Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CEDRIC HUTCHINSON, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D22-2562 June 16, 2023 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Laura Ward, Judge. Cedric Hutchinson, pro se. Ashley Moody, Attorney General, Tallahassee, and Taylor A. Schell, Assistant Attorney General, Tampa, for Appellee. PER CURIAM. Cedric Hutchinson appeals from the order denying his motion filed under Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for further proceedings. On October 15, 2012, the trial court sentenced Mr. Hutchinson as a habitual felony offender to seventeen years in prison with a fifteen-year prison releasee reoffender mandatory minimum term for an aggravated battery he committed in 2011. Mr. Hutchinson challenged this sentence in his motion, alleging that the record demonstrates that he does not qualify as a prison releasee reoffender under the plain terms of section 775.082(9)(a)1. Florida Statutes (2011), as applied by the supreme court in State v. Lewars, 259 So. 3d 793 (Fla. 2018).1 Specifically, he asserted that the State relied on his release from a sentence served for a 2006 case to argue that he was a prison releasee reoffender, but the documents it relied on demonstrate that he was released from the Hillsborough County Jail for that sentence and not a prison or its equivalent. The postconviction court agreed that the documents in the Florida Department of Corrections criminal justice penitentiary packet and information that the State relied on at Mr. Hutchinson's sentencing hearing appear to show that Mr. Hutchinson was released from the county jail. But because the same documents show that he was initially sentenced to and served time in Florida Department of Corrections facilities, the postconviction court reasoned that Mr. Hutchinson's circumstances are distinguishable from those the supreme court addressed in Lewars and that his claim lacked merit. Because this reasoning is inconsistent with the supreme court's opinion in Lewars, we reverse. In Lewars, the State sought to qualify Mr. Lewars as a prison releasee reoffender based upon a twenty-four-month sentence that, due to the award of jail credit, Mr. Lewars served without having been 1 Although the supreme court addressed the 2012 version of the statute in Lewars, the language at issue is identical. See Lewars, 259 So. 3d at 795. 2 transferred from the county jail to a Florida Department of Corrections or private vendor facility. Lewars v. State, 277 So. 3d 143, 144 (Fla. 2d DCA 2017). Mr. Lewars committed a burglary within two months of his release, and the trial court sentenced him as a prison releasee reoffender for that offense. Id. at 144–45. This court reversed, holding "that Lewars does not qualify as a [prison releasee reoffender] under the plain language of the statute." Id. at 145. Section 775.082(9)(a)1 defined a prison releasee reoffender as a person who commits or attempts to commit a qualifying offense within 3 years after being released from a state correctional facility operated by the Department of Corrections or a private vendor or within 3 years after being released from a correctional institution of another state, the District of Columbia, the United States, any possession or territory of the United States, or any foreign jurisdiction, following incarceration for an offense for which the sentence is punishable by more than 1 year in this state. § 775.082(9)(a)1. This court certified a conflict with State v. Wright, 180 So. 3d 1043 (Fla. 1st DCA 2015), Taylor v. State, 114 So. 3d 355 (Fla. 4th DCA 2013), and Louzon v. State, 78 So. 3d 678 (Fla. 5th DCA 2012), opining that "the other district courts impermissibly expanded the plain meaning of the words in the statute—i.e., by conflating the concrete 'facility' with the more nebulous 'custody'—and by impermissibly injecting words—i.e., ' "constructive" release'—that simply are not there." Lewars, 277 So. 3d at 144, 148, 150. The supreme court approved, holding: [T]he language at issue unambiguously supports the conclusion reached by the Second District, that release from a county jail does not satisfy the "released from" element of statute's [prison releasee reoffender] definition. This language addresses the defendant's release from a "facility," not from 3 the legal custody of a particular entity and not from a particular sentence length, and it requires that that facility be one "operated by the Department of Corrections or a private vendor." A county jail is not "operated by the Department of Corrections or a private vendor." Lewars, 259 So. 3d at 798 (quoting § 775.082(9)(a)1). It concluded: [T]o satisfy the "released from" aspect of the [prison releasee reoffender] definition based on release from "a state correctional facility operated by the Department of Corrections or a private vendor," a defendant must have been incarcerated in and physically released from a prison, and not a county facility operated by the local government, within the statutory period. Id. at 800 (emphasis added) (quoting § 775.082(9)(a)1).2 The supreme court did not limit its holding to those, like Mr. Lewars, who were never transferred to a prison facility to serve a sentence for a felony offense. It specifically "disapprove[d] the decision of the Fourth District in Taylor, which construes different language than what is directly at issue in this case but relies on Louzon to arrive at a result inconsistent with the holding we reach in this case." Lewars, 259 So. 3d at 802–03. Mr. Taylor, like Mr. Hutchinson, was transferred from 2 In 2019, the legislature amended section 775.082(9)(a)1 to state that a prison releasee reoffender is a person who commits a qualifying offense within 3 years after being released from a state correctional facility operated by the Department of Corrections or a private vendor, a county detention facility following incarceration for an offense for which the sentence pronounced was a prison sentence, or a correctional institution of another state, the District of Columbia, the United States, any possession or territory of the United States, or any foreign jurisdiction, following incarceration for an offense for which the sentence is punishable by more than 1 year in this state. (Emphasis added.) See ch. 2019-167, § 30, Laws of Fla. 4 a correctional institution to a county jail and then physically released from a county jail. Taylor, 114 So. 3d at 355–56. The Fourth District affirmed Mr. Taylor's prison releasee reoffender sentence, holding that "[h]is release from federal custody while housed at the county jail still constitutes constructive release from a federal correctional facility for purposes of section 775.082(9)(a)(1)." Id. at 356. But as we can see from the supreme court's express disapproval of Taylor, time spent in a prison facility does not alter the supreme court's application of section 775.082(9)(a)1 to require "physical[] release[] from a prison, and not a county facility operated by the local government, within the statutory period." Lewars, 259 So. 3d at 800. In Wilson v. State, 279 So. 3d 756, 756 (Fla. 2d DCA 2019), this court held that a challenge to a prison releasee reoffender sentence based on the supreme court's opinion in Lewars and the plain language of section 775.082(9)(a)1 "may be raised in a timely postconviction motion under rule 3.850 or, if it is apparent from the face of the record, in a motion pursuant to rule 3.800(a) at any time." Mr. Hutchinson's case is one of those in which the claim is apparent from the face of the record. Accordingly, we reverse the postconviction court's order. On remand, the postconviction court shall enter an amended sentence that lacks the prison releasee reoffender designation and minimum mandatory term. Reversed and remanded. CASANUEVA, LaROSE, and LABRIT, JJ., Concur. Opinion subject to revision prior to official publication. 5