Jose Gabino Diaz v. State of Florida

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

JOSE GABINO DIAZ, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D13-2957

STATE OF FLORIDA,

Appellee. _____________________________/ Opinion filed September 12, 2014.

An appeal from the Circuit Court for Duval County. J. Bradford Stetson, Judge.

Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant challenges his concurrent life sentences as an Habitual Violent Felony Offender (HVFO) and Prison Releasee Reoffender (PRR) for his conviction of armed robbery with a deadly weapon. We agree that the HVFO sentence is illegal because it is the same length as the PRR. Thus, we reverse and remand for the trial court to strike appellant’s designation as an HVFO. See Grant *2 v. State, 770 So. 2d 655, 658 (Fla. 2000); Daniels v. State, 31 So. 3d 190, 191 (Fla. 1st DCA 2009). Because this is a purely ministerial act, appellant need not be present at resentencing. On all other issues, we affirm.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH

INSTRUCTIONS.

WOLF, ROBERTS, and ROWE, JJ., CONCUR.