final until disposition of timely filed motion for rehearing.
of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Bernard I.
Bober, Judge; L.T. Case Nos. 14-11224CF10A and 14-12215CF10A.
Gray, Quincy, pro se.
appearance for appellee.
Gray appeals the trial court's order summarily denying
his Rule 3.850 motion for postconviction relief. Gray claims
that he does not qualify for sentencing as a prison release
reoffender (PRR) because the crime for which he received the
PRR sentence was committed more than three years after he was
released from prison. We affirm and write to certify conflict
with Lewars v. State, 42 Fla.L.Weekly D1098 (Fla. 2d
DCA May 12, 2017), rev. granted, 2017 WL 40022360
(Fla. Sept. 13, 2017).
pled no contest in two cases of burglary of a dwelling (as
well as other charges), occurring on August 15 and 16, 2014.
He was sentenced as a PRR for these crimes. He later moved
pro se to correct an illegal sentence, which motion was
denied. He then moved for postconviction relief, contending
that he did not qualify as a PRR. The trial court denied
relief. In its order the court provided the following
statement of facts:
In the instant motion, Defendant alleges that his designation
as a prison releasee reoffender is illegal because the
burglaries in the instant cases were committed more than
three years after he was released from prison following his
completion of two previous sentences for two other burglaries
in case nos. 96-19656CF10A and 96-20930CF10A.
Section 775.082(9)(a)(1), Florida Statutes, provides that a
defendant is defined as a "prison releasee
reoffender" when he or she commits an enumerated felony
(including burglary of a dwelling) "within 3 years after
being released from a state correctional facility
operated by the Department of Corrections . . .
following incarceration for an offense for which the sentence
is punishable by more than 1 year in this state."
The record reveals that on February 1, 2011, Defendant
received a conditional release from prison for case no.
96-19656CF10A, even though his sentence in case no.
96-20930CF10A was not fully served, and it is unclear why he
was released. Nonetheless, on June 29, 2011, a warrant was
issued against Defendant for a parole violation (for new
offenses and arrests), and on August 17, 2011, he was
reincarcerated (in the Broward County Jail) and resumed
serving his sentence in case no. 96-20930CF10A. On March 5,
2012, Defendant completed his sentence in case no.
96-20930CF10A and was released (from the Broward County
Jail). While the burglaries in the instant cases, committed
on August 15-16, 2014, occurred less than three years from
the date of his release on March 5, 2012, Defendant argues
that because he was incarcerated in the Broward County
Jail from August 17, 2011, through March 5, 2012, and
was never transferred back to a state prison, this portion of
his incarceration was not in a "state facility operated
by the Department of Corrections" pursuant to section
775.082(9)(a)(1), Florida Statutes; as such, he argues that
his previous release date of February 1, 2011, which is more
than three years before he committed the burglaries in the
instant cases, should control, and, if the date of February
1, 2011, controls, he would not qualify as a prison
(Emphasis in original, footnote omitted).
trial court denied relief based on Taylor v. State,
114 So.3d 355, 355-56 (Fla. 4th DCA 2013), in which this
court held that a defendant's release from federal
custody while in county jail to perform substantial
assistance constitutes constructive release from a federal
correctional facility for purposes of the PRR statute,
adopting the reasoning of Louzon v. State, 78 So.3d
678, 680-81 (Fla. 5th DCA 2012).
affirm the denial of relief and hold that appellant was
constructively released from state custody when he was
released from the Broward County Jail. We continue to adhere
to Taylor. See also State v. Wright, 180
So.3d 1043, 1045 (Fla. 1st DCA 2015) (finding that a
defendant's release from county jail constituted
constructive release from the Department of Corrections'
custody for purposes of PRR sentencing).
recognize that in Lewars, the Second District held
that the PRR statute, section 775.082(9)(a)(1), Florida
Statutes, does not allow for constructive release and
requires release from a Department of Corrections facility,
not a county jail, to be within three years of the qualifying
PRR offense. 42 ...