NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ANTHONY McCARTHY, )
)
Appellant, )
)
v. ) Case No. 2D15-1511
)
STATE OF FLORIDA, )
)
Appellee. )
________________________________ )
Opinion filed April 5, 2017.
Appeal from the Circuit Court for
Hillsborough County; Samantha L.
Ward, Judge.
Howard L. Dimmig, II, Public Defender,
and Matthew D. Bernstein, Assistant
Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Ha Thu Dao,
Assistant Attorney General, Tampa,
for Appellee.
NORTHCUTT, Judge.
The circuit court revoked Anthony McCarthy's probation in four cases.
Although McCarthy's sentencing scoresheet prescribed a nonstate prison sanction, the
court sentenced him to prison pursuant to section 775.082(10), Florida Statutes (2010).
We conclude that the court's findings were insufficient to establish the required nexus
between sentencing McCarthy to a nonstate prison sanction and any resulting danger to
the public. Therefore, we reverse and remand for the imposition of a nonstate prison
sanction.
In each of two separate cases, McCarthy pleaded to one count of
obtaining property in return for a worthless check, in violation of section 832.05(4)(c),
Florida Statutes (2010). In each of two other cases, he pleaded to one count of failure
to return leased property with a value of $300 or more, in violation of section
812.155(3), Florida Statutes (2010). All of the offenses are third-degree felonies.
McCarthy was placed on probation in all four cases.
In the instant proceeding, the amended affidavit of violation of probation
alleged that McCarthy failed to report to the probation officer, a violation of condition
one; that McCarthy changed his residence without first obtaining the consent of the
probation officer, a violation of condition three; that McCarthy changed his employment
without first obtaining the consent of his probation officer, a violation of condition three;
that McCarthy failed to submit to a urinalysis test on April 21, 2014, a violation of
condition eleven; and that McCarthy committed the offense of sexual battery on at least
four occasions, a violation of condition five.
McCarthy's probation officer was the only witness at the revocation
hearing. There was no testimony whatever regarding the alleged new law violations.
The circuit court found that McCarthy violated condition one by failing to report,
condition three by changing his residence without permission, and condition eleven by
failing to submit to a urinalysis test. The court imposed a five-year prison sentence in
each case, with the sentences to run concurrently.
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Section 775.082(10) states:
If a defendant is sentenced for an offense committed on or
after July 1, 2009, which is a third degree felony but not a
forcible felony as defined in s. 776.08, and excluding any
third degree felony violation under chapter 810, and if the
total sentence points pursuant to s. 921.0024 are 22 points
or fewer, the court must sentence the offender to a nonstate
prison sanction. However, if the court makes written findings
that a nonstate prison sanction could present a danger to the
public, the court may sentence the offender to a state
correctional facility pursuant to this section.
In Reed v. State, 192 So. 3d 641, 648 (Fla. 2d DCA 2016), we noted that
written findings sufficient to permit an upward departure under this statute "must do
more than just describe the defendant's criminal conduct. The circuit court must make
findings to establish a nexus between sentencing an offender to a nonstate prison
sanction and the resulting danger that nonstate prison sanction could present the
public." Here, McCarthy scored 20.5 points on the Criminal Punishment Code
scoresheet. None of the third-degree felonies was a forcible felony or a violation of
chapter 810. Thus, the circuit court was required to sentence McCarthy to any nonstate
prison sanction unless it made sufficient written findings that satisfied the requirements
of Reed. See Reed, 192 So. 3d at 647-49. When sentencing McCarthy to prison, the
court placed the following notation on the Criminal Punishment Code scoresheet:
"ANSP would be a danger to the public - no compliance with orders/new law viola[tion]
absconding."
Manifestly, the court's written findings merely described McCarthy's
conduct in the most general of terms. They did not establish a nexus between
sentencing McCarthy to a nonstate prison sanction and a resulting danger to the public.
Moreover, the court's reference to McCarthy's alleged new law violation was
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unsupported by evidence. In Rodriguez-Aguilar v. State, 198 So. 3d 792, 796 (Fla. 2d
DCA 2016), this court held:
[A] prediction of future danger to the public that allows for a
prison sentence under section 775.082(10) cannot be
established by proof of alleged prior offenses when the proof
falls below the standard of preponderance of the evidence;
proof that merely reaches the level of probable cause or
reasonable suspicion is not sufficient.
Here, there was no testimony presented at the revocation hearing regarding any new
law violation. Thus, the court could not base the prison sentence on this finding.
We reverse the sentences in all four cases and remand for McCarthy to be
sentenced to a nonstate prison sanction. See Reed 192 So. 3d at 648-49 (reversing
and remanding for imposition of a nonstate prison sanction).
Reversed and remanded.
SLEET and SALARIO, JJ., Concur.
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