FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Samantha L.
L. Dimmig, II, Public Defender, and Matthew D. Bernstein,
Assistant Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao,
Assistant Attorney General, Tampa, for Appellee.
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.
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.
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
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.
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.
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."
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 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 ...