NOT
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
An
appeal from the Circuit Court for Washington County. Colby
Peel, Judge.
Andy
Thomas, Public Defender, and Lori A. Willner, Assistant
Public Defender, Tallahassee, for Appellant.
Pamela
Jo Bondi, Attorney General, and Quentin Humphrey, Assistant
Attorney General, Tallahassee, for Appellee.
BILBREY, J.
Sterling
Allen Johnson challenges the five-year prison sentence he
received upon his conviction for fleeing or attempting to
elude a law enforcement officer. Because the written findings
made in support of the prison sanction are insufficient, we
vacate the sentence and remand for entry of a non-state
prison sanction.
By
amended information, Johnson was charged with (i) aggravated
battery of a law enforcement officer and (ii) fleeing or
attempting to elude a law enforcement officer. These charges
followed a traffic stop for an equipment violation. During
the stop, as the officer was waiting on warrants check,
Johnson drove away; the officer had claimed he was dragged by
Johnson's vehicle. The stop and Johnson's flight were
captured on the video recorder on the officer's patrol
car. The cause proceeded to a jury trial, and at the
conclusion, Johnson was acquitted of the charge of aggravated
battery on a law enforcement officer but was found guilty as
charged with respect to the remaining count. A judgment
entered in accordance with that verdict. Johnson's
scoresheet produced a score of 5.6 points. Pursuant to
section 775.082(10), Florida Statutes, the presumptive
sentence for Johnson is a non-state sanction given that his
scoresheet totaled less than 22 points and that he was
convicted of a non-forcible third degree felony committed
after 1999. The trial court sentenced Johnson to 5 years in
prison. No written findings were entered in support of this
sentence.
Johnson
moved to correct what he claimed to be an illegal sentence.
The State agreed with Johnson that a written finding in
support of the sentence was required by section 775.082(10),
but disagreed that Johnson should be sentenced to a non-state
sanction. The trial court thereafter refused to reduce the
sentence and entered findings in support of it. The findings
of the court were:
1. The defendant was released on bond for another charge at
the time he committed the offense in this case.
2. The defendant was being taken into custody for failing to
appear in court at the time he committed the offense in this
case.
3. The defendant represented a specific danger to Officer
Harrison. The video played during the course of the trial
showed the defendant accelerating his vehicle into the
roadway while the officer was partially in and/or attached to
the defendant's vehicle.
4. The defendant represented a danger to other traffic as a
semi-truck could be seen entering the video frame seconds
after the defendant fled the scene of the traffic stop.
5. While the defendant was released on bond in the current
case, he violated probation in a separate offense and pled to
...