Merson v. State

786 So. 2d 1267 (2001)

Jeremy James MERSON, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D00-1893.

District Court of Appeal of Florida, Third District.

June 20, 2001.

Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.

Before JORGENSON and RAMIREZ, JJ., and NESBITT, Senior Judge.

PER CURIAM.

Defendant appeals from the denial of his motion to correct an unlawful sentence.

We affirm the portion of the sentence that classifies defendant as a habitual offender. See Robbinson v. State, 784 So.2d 1246(Fla. 3d DCA 2001)(holding that Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) does not apply to Florida's habitual offender statute).

We reverse that portion of the sentence imposed pursuant to the Prisoner Release Reoffender Act, section 775.082(9), Florida Statutes (1999), as burglary of an unoccupied dwelling is not an enumerated offense. See State v. Huggins, 26 Fla. L. Weekly S174, ___ So.2d ___, 2001 WL 278107(Fla. March 22, 2001); Rodriguez v. State, 773 So. 2d 1222 (Fla. 3d DCA 2000).

Affirmed in part; reversed in part; remanded for resentencing.