PITTS v. STATE, 2D99-3912 (Fla.App. 2 Dist. 3-14-2001)

CLIFTON PITTS, Appellant/Cross-Appellee, v. STATE OF FLORIDA, Appellee/Cross-Appellant.

No. 2D99-3912.District Court of Appeal of Florida, Second District.
Opinion filed March 14, 2001.

Appeal from the Circuit Court for Polk County; Donald G. Jacobsen, Judge.

Convictions affirmed; sentence reversed; remanded for resentencing; conflict certified.

James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Clifton Pitts appeals his convictions for burglary and criminal mischief. We see no reversible error and, therefore, affirm. On cross-appeal, the State argues that the trial court erred by refusing to sentence Pitts as a prison releasee reoffender. Based on the supreme court’s decision in State v. Cotton, 769 So.2d 345 (Fla. 2000), we reluctantly agree that the prosecutor, not the trial court, possesses discretion on whether a defendant should be sentenced as a prison releasee reoffender. Therefore, we reverse. On remand, the prosecutor, in his or her discretion, may seek prison releasee reoffender sentencing with the appropriate proof to demonstrate that Pitts qualifies for this enhanced penalty. We certify conflict with State v. Huggins, 744 So.2d 1215
(Fla. 4th DCA 1999), review granted, 761 So.2d 332 (Fla. 2000), on the issue of whether prison releasee reoffender sanctions apply to burglary of an unoccupied dwelling. See Medina v. State, 751 So.2d 138 (Fla. 2d DCA), review granted, 760 So.2d 947 (Fla. 2000).

SALCINES and STRINGER, JJ., Concur.

BLUE, A.C.J., Concurs specially.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

BLUE, Acting Chief Judge, Specially concurring.

I concur in this decision because the result is required by the prison releasee reoffender statute as interpreted by our supreme court. I write to suggest that the legislature may want to reconsider the assignment of discretion for sentencing decisions required by the Prison Releasee Reoffender Punishment Act (PRR).

From the record before our court, this case involves an unseemly domestic altercation between Pitts and his ex-girlfriend. Pitts broke into the victim’s apartment when she was away, cut up some clothes, and left a vulgar message written in lipstick on the mirror. The victim’s apartment had been the residence of Pitts until shortly before the charged incident. For reasons not apparent from the record, the victim did not testify at trial. The victim did appear at sentencing and, orally and in writing, requested that Pitts be spared PRR sentencing. The trial court agreed and imposed a guidelines sentence of forty months in prison. We have, as we are required, reversed this sentence, and Pitts now faces fifteen years in prison as a prison releasee reoffender.

This sentence results not from the discretion of the trial judge, but based on the judgment of an assistant state attorney. I am troubled by the unreviewable nature of a prosecutor’s exercise of discretion. SeeSchaeffer v. State, 25 Fla. L. Weekly D2678, D2680 (Fla. 2d DCA Nov. 17, 2000) (Seals, Assoc. J., concurring) (noting that the PRR “does not require the prosecutor to consider anything in the exercise of its discretion because the prosecutor’s decision cannot be challenged, appealed or set aside”). We know the trial judge obtained the position by election of the voters in his circuit or by a judicial nominating committee’s recommendation to the governor. However, the legislature has chosen to place the discretion for the sentencing decision at issue with an assistant state attorney. This particular assistant state attorney may have a superior understanding of the need for punishment in this case, or he or she may be merely cutting another notch in their gun belt. I would feel much more comfortable with the decision to impose PRR sentencing in this case if I knew the assistant state attorney was subjected to the same scrutiny when he or she became a prosecuting attorney as are the trial judges of this state when they take the bench.