Kinard v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

ROY DAVID KINARD,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D2024-2347

April 4, 2025

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pasco County; Joshua Riba, Judge.

Roy David Kinard, pro se.

PER CURIAM. Affirmed. See Robinson v. State, 793 So. 2d 891, 893 (Fla. 2001) ("[P]roof to the jury of a defendant's release which subjects a defendant to a sentence under the [Prison Releasee Reoffender ("PRR")] Act is not required."); Robinson v. State, 337 So. 3d 1275, 1276 (Fla. 2d DCA 2022) ("[B]ecause a defendant's date of release from a prior prison sentence is directly derivative of a prior conviction, it need not be found by a jury beyond a reasonable doubt in order for a defendant to be subject to a PRR sentence." (citing Lopez v. State, 135 So. 3d 539, 540 (Fla. 2d DCA 2014))); Calloway v. State, 914 So. 2d 12, 14 (Fla. 2d DCA 2005) ("While

we recognize 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, we conclude that it is directly derivative of a prior conviction and therefore does not implicate Sixth Amendment protections."); Shortridge v. State, 884 So. 2d 321, 321 (Fla. 2d DCA 2004) (holding that attacks related to convictions and not sentences are not cognizable pursuant to rule 3.800(a)); Denson v. State, 50 Fla. L. Weekly D257 (Fla. 5th DCA Jan. 28, 2025); Maye v. State, 368 So. 3d 531, 532 (Fla. 6th DCA 2023) ("[T]he date a defendant was released from prison or jail and the nature of the qualifying offense are ministerial in nature and thus do not require jury findings."), review granted, No. SC2023-1184, 2024 WL 1796831 (Fla. Apr. 25, 2024); Johnson v. State, 297 So. 3d 638, 639 (Fla. 1st DCA 2020) ("[W]here the oral pronouncement is ambiguous but the record clearly shows the trial court's intent, the proper sentence is what the judge intended it to be."); Thomas v. State, 778 So. 2d 429, 430 (Fla. 5th DCA 2001) ("Whether a sentencing statute is constitutional cannot be raised for the first time in a Rule 3.800(a) motion. This type of issue, which seeks a change in the law, must be raised at sentencing and then on direct appeal.").

SILBERMAN, VILLANTI, and LABRIT, JJ., Concur. Opinion subject to revision prior to official publication.