FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Lee County; Thomas S. Reese,
L. Dimmig, II, Public Defender, and Brian Lydic, Special
Assistant Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Lisa Martin,
Assistant Attorney General, Tampa, for Appellee.
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). 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.
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.
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.
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
[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.
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.
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 ...