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


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



ANTONIO D. TAYLOR,                           )
                                             )
             Appellant,                      )
                                             )
v.                                           )        Case No. 2D16-3130
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed December 6, 2017.

Appeal from the Circuit Court for Polk
County; Wayne M. Durden, Judge.

Howard L. Dimmig, II, Public Defender, and
Jean Marie Henne, Special Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Chelsea S. Alper,
Assistant Attorney General, Tampa, for
Appellee.


PER CURIAM.

             Antonio Taylor appeals his life sentence as a prison releasee reoffender

for armed burglary of a dwelling. His sentence is reversed based on this court's opinion

in Lewars v. State, 42 Fla. L. Weekly D1098 (Fla. 2d DCA May 12, 2017), pending

review, No. SC17-1002, 2017 WL 4022360 (Fla. Sept. 13, 2017). Given the Florida
Supreme Court's order staying the mandate and further proceedings in Lewars, the

mandate in this case is likewise stayed pending disposition of the Lewars petition. See

State v. Lewars, No. SC17-1002 (Fla. May 30, 2017) (order staying proceedings).



SILBERMAN and SALARIO, JJ., Concur.



BLACK, J., Concurs with opinion.

              As Lewars is the controlling precedent in this district, I concur in the

reversal of Taylor's sentence and designation as a prison releasee reoffender. Both

Lewars and this case present the issue of interpreting section 775.082(9)(a)(1), Florida

Statutes, part of the Prison Releasee Reoffender Punishment Act (the Act). I write to

express my agreement that resolution of the issue rests on a plain language analysis

and my concerns with how this statute has been interpreted in view of that analysis.

              Taylor, like Lewars, has asked this court to interpret the following

language: " 'Prison releasee reoffender' means any defendant who commits, or

attempts to commit [an enumerated offense] within 3 years after being released from a

state correctional facility operated by the Department of Corrections or a private vendor

. . . ." § 775.082(9)(a)(1). Taylor contends that he does not qualify as a prison releasee

reoffender (PRR) because he was sentenced to one year and one day in prison on his

prior conviction and was given credit for time served, resulting not in a transfer to a

Department of Corrections (DOC) prison where he might otherwise have served his




                                            -2-
prison sentence but in his physical release from the county jail.1 At the time Taylor was

sentenced, the First, Fourth, and Fifth Districts had addressed the issue. See State

v. Wright, 180 So. 3d 1043 (Fla. 1st DCA 2015); Taylor v. State, 114 So. 3d 355 (Fla.

4th DCA 2013); Louzon v. State, 78 So. 3d 678 (Fla. 5th DCA 2012). The defendants in

Wright and Louzon were similarly situated to Taylor: they had each been convicted of a

felony, sentenced to a prison term, committed to the custody of the DOC, and ordered

to be delivered to the DOC, but released from DOC custody by directive of the DOC and

physically released from a county jail by directive of the DOC because of jail credit

accumulated during the pendency of their respective cases.2 Wright, 180 So. 3d at

1045-46; Louzon, 78 So. 3d at 680. The defendant in Taylor had been convicted of a

federal crime and sentenced to a term of imprisonment in a federal correctional facility




              1
                The penitentiary pack introduced by the State at Taylor's sentencing
hearing indicated that Taylor was released from DOC's "Central Office." See also State
v. Wright, 180 So. 3d 1043, 1044 (Fla. 1st DCA 2015) (stating that defendant was
released from the "Central Office"). The documents established that Taylor had been
transferred from the county to the "Central Office" and then from "Central Office" back to
the county. See § 944.17(7), Fla. Stat. (2016) ("[T]he department may transfer
prisoners from one institution to another institution in the correctional system.");
944.17(8) ("If a state prisoner's presence is required in court for any reason after the
sheriff or chief correctional officer has relinquished custody to the department . . .
[n]either the court nor the sheriff or chief correctional officer may release such prisoner
without first obtaining confirmation from the department that the prisoner has no
commitments from other jurisdictions or outstanding detainers."). Although not
discussed in Lewars, it appears that Lewars was also released from the "Central Office"
by the DOC.
              2
               The sole issue addressed in the Wright opinion was the applicability of
the PRR designation to Wright. Notably, this court has previously affirmed the denial of
a motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure
3.800(a) with citation to Wright. See Anderson v. State, 2D16-3288, 2017 WL 685633
(Fla. 2d DCA Feb. 22, 2017) (table decision) (citing Wright in a per curiam affirmance).
We have also cited Louzon. See Bagley v. State, 177 So. 3d 612 (Fla. 2d DCA 2015)
(table decision) (citing Louzon in a per curiam affirmance).


                                           -3-
but was released from federal custody while housed at the county jail. Taylor, 114 So.

3d at 355-56. In all three cases, the courts determined that the defendants qualified as

PRRs. Relying on those cases, the trial court in our case sentenced Taylor as a PRR

on the armed burglary of a dwelling conviction. The legality of his sentence as a PRR is

the only issue Taylor has raised in this appeal.

              Whether a defendant qualifies as a PRR under the language of the Act is

a question of statutory interpretation. Lewars, 42 Fla. L. Weekly at D1099. When

considering an unambiguous statute, courts are not permitted to construe the statutory

language "in a way which would extend, modify, or limit, its express terms or

its reasonable and obvious implications. To do so would be an abrogation of legislative

power." Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (quoting Am. Bankers Life

Assurance Co. of Fla. v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968)).3 This

principle "reflects the constitutional obligation of the judiciary to respect the separate

powers of the legislature." State v. Brigham, 694 So. 2d 793, 797 (Fla. 2d DCA 1997).

              "When a term is undefined by statute, '[o]ne of the most fundamental

tenets of statutory construction' requires that we give a statutory term 'its plain and

ordinary meaning.' " Rollins v. Pizzarelli, 761 So. 2d 294, 298 (Fla. 2000) (alteration in

original) (quoting Green v. State, 604 So. 2d 471, 473 (Fla. 1992)). However, "in

considering the meaning of particular words and phrases, courts must also distinguish

between terms of art that may have specialized meanings and other words that are




              3
               "[T]he fact that appellate courts may differ with regard to the application
of statutory provisions does not necessarily render a statute ambiguous." Nettles v.
State, 850 So. 2d 487, 495 (Fla. 2003) (citing Seagrave v. State, 802 So. 2d 281, 291
n.15 (Fla. 2001)).


                                             -4-
ordinarily given a dictionary definition." OB/GYN Specialists of Palm Beaches, P.A. v.

Mejia, 134 So. 3d 1084, 1088 (Fla. 4th DCA 2014); see also Crews v. Fla. Pub. Emp'rs

Council 79, AFSCME, 113 So. 3d 1063, 1069 (Fla. 1st DCA 2013) ("[C]ourts should

give words in a statute their ordinary and everyday meaning unless the context reveals

that a technical meaning applies." (citing State v. Brown, 412 So. 2d 426, 428 (Fla. 4th

DCA 1982))). Here, related statutory provisions define the relevant terms. See, e.g.,

Hopkins v. State, 105 So. 3d 470, 472-73 (Fla. 2012) (applying definitions from chapter

985 when interpreting section 784.082, Florida Statutes (2007), to determine whether a

"detention facility" as used in section 784.082 included juvenile detention centers).

              The Act requires that a defendant previously have been "released from a

state correctional facility operated by the [DOC]." § 775.082(9)(a)(1). Thus, the phrase

"state correctional facility" is of primary importance to the question presented by this

case and by Lewars. And although Lewars focuses on the definition of "facility," the

statute is specific to a "state correctional facility," making the entire phrase the plain

language which we must apply. "State correctional facility" is a term of art not defined

within the Act; however, the definitions section of the State Correctional System chapter

defines "state correctional institution" as "any prison, road camp, prison industry, prison

forestry camp, or any prison camp or prison farm or other correctional facility, temporary

or permanent, in which prisoners are housed, worked, or maintained, under the custody

and jurisdiction of the [DOC]." § 944.02(8), Fla. Stat. (2016) (emphasis added). "State

prison" is defined by section 944.08(1) "as a place of confinement or punishment for a

crime" to "be construed to mean and refer to the custody of the Department of

Corrections within the state correctional system." (Emphasis added.) A state




                                             -5-
correctional facility, as used in the Act, would then be a state correctional institution

under the applicable definition; the words are interchangeable for definitional purposes

here. See also § 775.082(9)(a)(2) (including releasees from "correctional institution[s]

of . . . the United States" and further establishing that facility and institution are

interchangeable for definitional purposes); § 944.09(1)(e) ("The [DOC] has authority to

adopt rules . . . relating to . . . the operation and management of the correctional

institution or facility and its personnel and functions." (emphasis added)). Thus, in

pertinent part, a "state correctional facility operated by the [DOC]" means a prison or

"other correctional facility" in which "prisoners are housed . . . under the custody and

jurisdiction of the department." See §§ 775.082(9)(a)(1), 944.02(8).

              In turn, "prisoner" is defined to include "any person committed to or

detained in any municipal or county jail or state prison, prison farm, or penitentiary, or to

the custody of the [DOC] pursuant to lawful authority." § 944.02(6) (emphasis added);

see also § 944.17(1) ("Each prisoner sentenced to the state penitentiary shall be

committed by the court to the custody of the [DOC]."); § 945.42(7), Fla. Stat. (2016) ("

'Inmate' means any person committed to the custody of the [DOC]"). Thus, it is a

person's status of being under the jurisdiction and custody of the DOC that defines

prisoner. "State correctional facility" must then include both prison buildings as well as

other correctional facilities housing prisoners under the custody and control of the DOC.

Cf. Garner v. State, 839 So. 2d 924, 925-26 (Fla. 4th DCA 2003) (concluding that

legislative intent and statutory terms did not equate Jimmy Ryce facilities with




                                              -6-
correctional facilities for purposes of PRR designation).4 These provisions make clear

that a defendant who has been committed to the custody of the DOC is a prisoner such

that the building in which he is housed—temporarily or permanently—is a state

correctional facility.

               To the extent that the meaning of section 775.082(9)(a)(1) turns on the

phrase "operated by" rather than "state correctional facility," section 944.171(1) provides

that the DOC "may contract with county or municipal facilities for the purposes of

housing inmates committed to the [DOC]," and that an inmate in another facility

"remains under the jurisdiction of the [DOC]." § 944.171(1), (1)(b).5 Section 945.025,

Jurisdiction of Department, provides that the DOC's operational jurisdiction extends to




               4
                Moreover, a defendant must have been "released from a state
correctional facility." § 775.082(9)(a)(1) (emphasis added). This court has held that, in
this context, "release" "means actual release from a state prison sentence" and not the
defendant's "physical[] release[] from a state correctional facility" or his "release from a
temporary confinement that happens to be in state prison." Brinson v. State, 851 So. 2d
815, 816 (Fla. 2d DCA 2003) (emphasis added); see also Calloway v. State, 914 So. 2d
12, 14 (Fla. 2d DCA 2005) (affirming sentence as PRR and recognizing "that the fact of
Calloway's date of release from his prior prison sentence is not the same as a bare fact
of a prior conviction" (emphasis added)); Fitzpatrick v. State, 868 So. 2d 615, 616 (Fla.
2d DCA 2004) (stating that for PRR purposes, "it is the fact of defendant's release from
custody, not his status of being in custody, that is relevant" (second emphasis added)).
Brinson represents the inverse of Taylor's case in that Brinson committed the offense
for which he was designated a PRR after being physically released from a DOC building
following a temporary confinement based on an alleged conditional release violation.
Id.; see also § 947.1405, Fla. Stat. (1994). However, I note that the Act was amended
in 1999 to include "any defendant who commits or attempts to commit any" qualifying
offense "while the defendant was serving a prison sentence or on escape status from a
state correctional facility operated by the Department of Corrections or a private
vendor." Ch. 99-188, § 2, Laws of Fla.; see also § 775.082(9)(a)(2).
               5
               Whether the county facility in which Taylor was held following his
commitment to the DOC was under contract with the DOC is a question unanswered by
the record before this court. However, the State could present evidence on the issue to
establish that Taylor qualifies as a PRR.


                                           -7-
"other correctional facilities, including detention facilities of varying levels of security,

work-release facilities, and community correctional facilities, halfway houses, and other

approved community residential and nonresidential facilities and programs." §

945.025(3). Further, "[t]he DOC is 'responsible for the inmates and for the operation of,

and shall have supervisory and protective care, custody, and control of, all buildings,

grounds, property of, and matters connected with, the correctional system.' " Yisrael v.

State, 993 So. 2d 952, 959 (Fla. 2008) (quoting § 945.04(1), Fla. Stat. (2001)). These

statutory provisions further suggest that a county jail qualifies as a state correctional

institution operated by the DOC once a defendant has been convicted and sentenced

such that he is in the custody and under the jurisdiction of the DOC.

              By their plain language, these statutes lead to a conclusion that it is a

defendant's status as having been committed to the custody of the DOC to serve a

prison term, serving that term, and being released from DOC custody within three years

of committing the qualifying offense that classifies a defendant as a PRR. Cf. State v.

Hackley, 95 So. 3d 92, 94 (Fla. 2012) ("The plain language of the burglary, assault, and

PRR statutes leads us to conclude that burglary of a conveyance with an assault is a

qualifying PRR offense.").

              "[I]t is axiomatic that all parts of a statute must be read together in order to

achieve a consistent whole." Fla. Dep't of Children & Family Servs. v. P.E., 14 So. 3d

228, 234 (Fla. 2009) (alteration in original) (quoting Forsythe v. Longboat Key Beach

Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992)); see also Thompson v. State,

695 So. 2d 691, 692 (Fla. 1997) ("[P]hrases within a statute are not to be read in

isolation, but rather should be construed within the context of the entire section."). That




                                              -8-
is, "[statutory language] must be taken in context, so that its meaning may be

illuminated in the light of the statutory scheme of which it is a part." O'Hara v. State,

964 So. 2d 839, 843 (Fla. 2d DCA 2007). In that regard, section 775.082(9)(d)

provides: "It is the intent of the [l]egislature that offenders previously released from

prison who meet the criteria in paragraph (a) be punished to the fullest extent of the law

and as provided in this subsection . . . ." § 775.082(9)(d)(1) (emphasis added).

              In chapter 97-239, Laws of Florida, which created the Act, the legislature

expressly defined the Act as providing for enhanced sentencing "under specified

circumstances when the reoffender has been released from correctional custody." Ch.

97-239, at 4397, Laws of Fla. (emphasis added). The legislature also stated that

Florida residents and visitors deserve protection "from violent felony offenders who have

previously been sentenced to prison and who continue to prey on society by

reoffending." Id. (emphasis added).

              The Florida Supreme Court has repeatedly recognized that the Act is

"rationally related to the legitimate state interests of punishing recidivists more severely

than first time offenders and protecting the public from repeat criminal offenders." Grant

v. State, 770 So. 2d 655, 661 (Fla. 2000) (quoting Rollinson v. State, 743 So. 2d 585,

589 (Fla. 4th DCA 1999)); see also Nettles v. State, 850 So. 2d 487, 493 (Fla. 2003). In

that respect, "[t]he Act increases the penalty for a crime committed after its enactment,

based upon release from a term of imprisonment resulting from a conviction which

occurred prior to the Act." Grant, 770 So. 2d at 661.

              In addition to creating the Act, chapter 97-239 amended section 944.705

to provide that the DOC must "notify every inmate . . . in the inmate's release




                                             -9-
documents, that the inmate may be sentenced pursuant to [the Act] if the inmate

commits any felony offense described in [the Act] within 3 years after the inmate's

release." This provision further supports that section 775.082(9) applies to an otherwise

qualifying prisoner released from DOC's custody. Cf. State v. Ramsey, 475 So. 2d 671,

673 (Fla. 1985) (stating that the statutory phrase " 'transported to or from a place of

confinement' should not be so narrowly construed as to vitiate the intent of the statute").

              The First, Fourth, and Fifth Districts have all held that to accept Taylor's

argument "would be inconsistent with the [l]egislature's clear intent to provide for a

greater sentence for individuals who commit a qualifying offense within three years of

completion of a previously imposed prison sentence." Wright, 180 So. 3d at 1045;

Louzon, 78 So. 3d at 681; accord Taylor, 114 So. 3d at 356. Although the First, Fourth,

and Fifth Districts did not discuss defined statutory terms in their analyses, their

holdings are consistent with the above plain language analysis. Nothing in the statutory

text or context indicates that only those recidivists who were previously given a prison

sentence, served at least some part of that sentence in a DOC building, and were then

physically released from that building must be punished more severely. Applying the

statute in such a way improperly excludes those defendants who, like Taylor, were

awarded jail credit amounting to time-served on a prison sentence; those who were

transferred to a facility awaiting postconviction hearings; those who were temporarily

detained in a prison;6 or those who were transferred to another facility for medical care




              6
               See Brinson, 851 So. 2d at 816 (concluding that Brinson's postconviction
claim that he was not a PRR was not refuted by the record his physical release was
"from temporary detention [in a DOC building] . . . while awaiting action of the Parole
Commission"); see also § 947.141, Fla. Stat. (1994). Under the Lewars reading of the


                                           - 10 -
or to county jail to face unrelated charges.7 Such an interpretation is at odds with the

express statutory language requiring more severe punishment for reoffenders who were

released from correctional custody within three years of commission of their latest

offenses.

              Finally, I note that where the PRR designation is not supported by the

record, at a new sentencing hearing on remand the State may present additional or

other evidence to prove the defendant is a PRR or to establish that the defendant is

subject to a sentence enhancement previously noticed, for instance as a habitual

offender. See Dean v. State, 42 Fla. L. Weekly S769 (Fla. Aug. 31, 2017); see also

State v. Collins, 985 So. 2d 985, 990 (Fla. 2008). Thus, not all defendants will receive

the relief anticipated by the removal of the PRR designation.




statute, Brinson's temporary detention and subsequent physical release from the prison
would have qualified him as a PRR.
              7
                See Cassista v. State, 57 So. 3d 265, 267 n.1 (Fla. 5th DCA 2011) ("On
occasion, an offender's sentence expiration date might be relevant if for example, the
offender, while committed to a state correctional facility, is temporarily transported to a
hospital for treatment, or to a county jail to face unrelated charges. If that offender's
state prison sentence expires while he or she is temporarily residing in a hospital or
county jail, we would have no difficulty in concluding that the offender was constructively
in a state prison facility when his sentence expired for PRR purposes.").


                                          - 11 -
