SMITH v. STATE (2022)

ON MOTION FOR REHEARING

Upon consideration of Appellant's Motion for Rehearing, we grant rehearing and withdraw the opinion of November 10, 2021, and substitute the following opinion in its place.

Domonique Smith appeals the trial court's denial of his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Smith was charged with and convicted of burglary of a conveyance with an assault or battery on Count two, and such a conviction does not qualify for prison releasee reoffender sentencing under the catchall provision of section 775.082(9)(a)1.o, Florida Statutes (2000), we reverse the trial court's order denying Smith's Rule 3.800(a) motion. See Santiago v. State, 76 So. 3d 1027, 1031 (Fla. 3d DCA 2011) (finding that an offense of burglary of a conveyance with an assault or battery does not “qualify as a predicate offense under the catchall provision of section 775.082(9)(a)1.o, Florida Statutes”); Suffield v. State, 132 So. 3d 333, 334 (Fla. 4th DCA 2014) (holding that when a defendant is convicted of burglary with an assault or battery and improperly sentenced as a Prison Releasee Reoffender, they are entitled to resentencing); Ellis v. State, 135 So. 3d 478, 480 (Fla. 2d DCA 2014). Accordingly, we reverse and remand for resentencing as to Count two only.¹

Reversed and Remanded.

FOOTNOTES

1.   The defendant shall be present and represented by counsel at the resentencing on Count two as required by Florida Rule of Criminal Procedure 3.180.

PER CURIAM.