Steven BROUGHTON, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Second District.
James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
CASANUEVA, Judge.
After a trial where several eyewitnesses identified him as the perpetrator, Steven Broughton was convicted of burglary of an unoccupied dwelling and sentenced to fifteen years in prison as a habitual offender, with a fifteen-year minimum mandatory term based on section 775.082(9), Florida Statutes (1999), the Prison Releasee Reoffender Punishment Act (PRRPA). He appeals his conviction and sentence raising three issues: the sufficiency of the evidence to convict him, an allegedly misleading *1119 jury instruction, and the fifteen-year minimum mandatory designation on his sentence as a prison releasee reoffender (PRR) for the crime of which he was convicted. We affirm in part and reverse in part.
The sufficiency of the evidence claim is without merit. We reject Mr. Broughton's contentions on this issue without further discussion and turn to the merits of his jury instruction claim. In charging the jury, the trial court gave the following standard jury instruction: "Your duty is to determine if the defendant has been proven guilty or not in accord with the law. It is the judge's job to determine a proper sentence if the defendant is guilty." Because the State had noticed its intention to seek PRR status in sentencing, Mr. Broughton argues that this instruction misled the jury because the Florida Supreme Court has decided in State v. Cotton,
We reject Mr. Broughton's argument on this issue. Florida Rule of Criminal Procedure 3.390(a) precludes the judge, in a noncapital case, from instructing the jury on the sentence that may be imposed. In spite of Mr. Broughton's interpretation of the effect of State v. Cotton, it remains the sole province of the judge to impose sentence. Admittedly, the trial court's discretion as to what that sentence will be is severely constrained in PRR cases. However, we cannot agree with Mr. Broughton's argument that in a potential PRR case the jury, if it convicts, both determines guilt and imposes a mandatory penalty. Only after the jury has decided that all the elements of the crime have been proven beyond a reasonable doubt will possible sentencing enhancements come into play. See Knight v. State,
The challenged instruction appropriately reiterates the evolving policy of removing from a noncapital jury any knowledge of potential penalties for the crimes with which a defendant is charged. As stated in Legette v. State,
Mr. Broughton has, however, presented a meritorious argument regarding his sentence. After the trial court sentenced Mr. Broughton to fifteen years as a habitual offender with fifteen years to be served as a minimum mandatory term as a PRR, the Florida Supreme Court decided State v. Huggins, 26 Fla. L. Weekly *1120 S174, ___ So.2d ___,
Conviction and habitual offender sentence affirmed; mandatory minimum term and PRR designation stricken.
PARKER, A.C.J., and NORTHCUTT, J., Concur.
NOTES
Notes
[1] Prior to the amendment, Florida Rule of Criminal Procedure 3.990(a) provided that, upon request of the State or the defendant, the trial judge should include the maximum and minimum sentences for the crimes charged in its jury instructions.