       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                     DUSTIN ALLAN WAYMAN SIMS,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D19-1506

                           [November 27, 2019]

   Appeal of order denying rule 3.800 motion from the Circuit Court for
the Nineteenth Judicial Circuit, St. Lucie County; Charles A. Schwab,
Judge; L.T. Case No. 562014CF001321A.

   Barbara Kibbey of Kibbey Wagner, Stuart, for appellant.

  Ashley Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   Appellant Dustin Allan Wayman Sims appeals the denial of his motion
to correct illegal sentence filed pursuant to Florida Rule of Criminal
Procedure 3.800(a). Appellant argues that his prison releasee reoffender
(“PRR”) sentences are illegal pursuant to State v. Lewars, 259 So. 3d 793
(Fla. 2018). Because we conclude that Lewars does not apply retroactively,
we affirm.

                               Background

    In 2015, a jury convicted Appellant of robbery with a deadly weapon,
burglary of a structure with an assault while armed, burglary of a
conveyance while armed, and grand theft. The court sentenced Appellant
to five years in prison for the grand theft conviction, and life in prison as
a PRR for the remaining offenses.

   As the State concedes, Appellant committed the PRR qualifying offenses
within three years of being released from county jail. Although the court
sentenced Appellant to a “prison sentence” for the prior offense, Appellant
was never transported to the Department of Corrections or a state-run
facility. Instead, Appellant was released from the county jail the same day
he was sentenced due to the amount of jail time that he already had
served.

   Subsequently, the Florida Supreme Court held in Lewars that, under
the prison releasee reoffender statute, “release from a state correctional
facility operated by the Department of Corrections or a private vendor”
does not include a county jail. Id. at 802. Therefore, the commission of a
PRR-qualifying offense within three years of release from jail, rather than
prison, does not satisfy the requirements of section 775.082(9)(a)1.,
Florida Statutes. Id.

    Based on Lewars, Appellant filed a Rule 3.800(a) motion to correct
illegal sentence. He argued that Lewars should be applied retroactively to
vacate his prison releasee reoffender sentences.

   The trial court denied the motion, ruling that Appellant is not entitled
to relief based on Lewars. The trial court reasoned that Lewars was
decided more than two years after Appellant’s sentences became final, and
the Florida Supreme Court has not held that Lewars applies retroactively.

                                    Analysis

   We find no error with the trial court order. We have previously applied
Witt retroactivity analysis 1 to Rule 3.800(a) claims. See Thomas v. State,
914 So. 2d 27 (Fla. 4th DCA 2005) (holding that Blakely 2 did not apply
retroactively where defendant filed a Rule 3.800(a) motion, claiming his
sentence was illegal under Blakely); see also Cotto v. State, 141 So. 3d 615
(Fla. 4th DCA 2014) (applying Witt analysis to a Rule 3.800(a) claim and
holding that Miller v. Alabama 3 is a development of fundamental
significance).

   Applying Witt analysis here, we conclude that Lewars does not apply
retroactively. First, the Florida Supreme Court has not held that Lewars
applies retroactively. Additionally, we find persuasive the Second District’s
reasoning that Lewars “is an evolutionary refinement . . . law and not a

1 Under Witt, a change of law will not be applied retroactively “unless the change:
(a) emanates from [the Supreme Court of Florida] or the United States Supreme
Court, (b) is constitutional in nature, and (c) constitutes a development of
fundamental significance.” Witt v. State, 387 So. 2d 922, 931 (Fla. 1980).
2 Blakely v. Washington, 542 U.S. 296 (2004).
3 Miller v. Alabama, 567 U.S. 460 (2012).


                                        2
development of fundamental significance, a major constitutional change,
or jurisprudential upheaval that requires retroactive application to cases
on collateral review.” Wilson v. State, 44 Fla. L. Weekly D1992 (Fla. 2d
DCA Aug. 2, 2019) (quoting Flowers v. State, 54 So. 3d 1049, 1049 (Fla.
4th DCA 2011)).

                                Conclusion

    We affirm the trial court’s denial of Appellant’s Rule 3.800(a) motion to
correct illegal sentence and deny Appellant’s request to certify a question
for review by the Florida Supreme Court.

   Affirmed.

MAY, CONNER and FORST, JJ., concur.

                            *         *        *

   Not final until disposition of timely filed motion for rehearing.




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