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Lewars v. State

Florida Court of Appeals, Second District

May 12, 2017

DAZARIAN CORDELL LEWARS, DOC #Y44737, Appellant,
v.
STATE OF FLORIDA, Appellee.

          NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Lee County; Thomas S. Reese, Senior Judge.

          Howard L. Dimmig, II, Public Defender, and Brian Lydic, Special Assistant Public Defender, Bartow, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Lisa Martin, Assistant Attorney General, Tampa, for Appellee.

          ROTHSTEIN-YOUAKIM, Judge.

         A jury found Dazarian Cordell Lewars guilty of burglary of an unoccupied dwelling (count one) and grand theft (greater than 300 dollars) (count two), and the trial court sentenced him to concurrent terms of fifteen years' imprisonment as a prison releasee reoffender (PRR) on count one and thirty-six months' and twenty-seven days' imprisonment on count two. On appeal, we reject without further comment Lewars's challenge to his conviction on count one, but we agree that the trial court erred in sentencing him as a PRR because he does not qualify as one under the plain language of section 775.082(9)(a)(1)(q), Florida Statutes (2012).[1] Accordingly, we affirm his conviction, reverse his PRR sentence, remand for resentencing, and certify conflict with the First, Fourth, and Fifth Districts as set forth below.

         Background

         In case number 09-CF-20276, the trial court adjudicated Lewars guilty of burglary of a structure, grand theft, and dealing in stolen property and sentenced him to concurrent sentences of 364 days' county jail followed by 3 years' probation. After his first violation of probation (VOP), the trial court sentenced him to two years' community control followed by two years' probation. After his second VOP, the trial court sentenced him to ten months' county jail followed by three years' probation.

         Lewars was in the Lee County Jail when the trial court, on April 1, 2013, revoked his probation for yet a third time, sentenced him to concurrent terms of 24 months' imprisonment, and awarded him 766 days' jail credit. Because of that award of jail credit, Lewars walked out of the Lee County Jail the next day a free man instead of being transported to a Department of Corrections (DOC) facility.

          On May 30, 2013, Lewars committed the burglary and grand theft that underlie this appeal, and a jury subsequently convicted him of those offenses. At sentencing, the State argued that he qualified as a PRR because he had committed these two offenses less than two months after he had finished serving the twenty-four-month prison sentence imposed upon the third revocation of his probation. The State argued that, although Lewars's 766 days of jail credit had allowed him to walk out of the Lee County Jail rather than ultimately out of a DOC facility, he had been in the DOC's legal custody and the DOC simply had approved his release from the Lee County Sheriff's Office's (LCSO) physical custody. The State called Sergeant Christian Emory of the LCSO to explain this process:

[Sergeant Emory:] When it comes to sentences that appear would be time served what happens is our classifications department will get ahold of Department of Corrections and they will let us know whether he will be a time served inmate or not. In this instance they did say that he-he would be a time served inmate and they sent the proper documentation, which is a packet. We had Mr. Lewars sign it back in 2013 and at that time he was released from custody.
[The State:] Okay. Is it fair to say the Department of Corrections gives you the greenlight to go ahead and release him?
[Sergeant Emory:] Yeah. Yes, after that we will receive a teletype stating that we can release him and he was released. He never went to DOC from-from us.

         Notably, the final VOP judgment and sentence in case number 09-CF-20276 states: "It is the sentence of the Court that [Lewars] is hereby committed to the custody of the [DOC]" and "Be Imprisoned: For a term of 24 Months(s) ([DOC] State Prison)." But there is no dispute that Lewars never actually set foot in a DOC facility before committing the burglary and grand theft.

          Lewars agreed that the burglary was a qualifying offense but argued that the PRR designation was inapplicable because he had never physically gone to prison. Lewars contended that imprisonment in a state correctional facility is intended to deter offenders from committing future crimes-"for them to essentially be scared straight"- and that the legislature had created the PRR designation to punish more harshly those offenders whose previous stint in prison had not deterred them from committing qualifying offenses upon release. Therefore, Lewars asserted, designating him as a PRR would be inconsistent with the legislature's intent because he had served ...


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