Domonique Smith v. the State of Florida
CourtDistrict Court of Appeal of Florida
Date FiledApril 6, 2022
Docket3D21-1897
StatusPublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
Third District Court of Appeal
State of Florida
Opinion filed April 6, 2022.
________________
No. 3D21-1897
Lower Tribunal No. F00-10701
________________
Domonique Smith,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from
the Circuit Court for Miami-Dade County, Thomas J. Rebull, Judge.
Domonique Smith, in proper person.
Ashley Moody, Attorney General, and Sandra Lipman, Assistant
Attorney General, for appellee.
Before EMAS, LINDSEY and GORDO, JJ.
ON MOTION FOR REHEARING
PER CURIAM.
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
2
2014). Accordingly, we reverse and remand for resentencing as to Count
two only. 1
Reversed and Remanded.
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.
3