FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Brevard County, James H. Earp,
S. Purdy, Public Defender, and Kevin R. Holtz, Assistant
Public Defender, Daytona Beach, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Kaylee D.
Tatman, Assistant Attorney General, Daytona Beach, for
Taylor appeals his three-year sentence in the Department of
Corrections imposed following his violation of community
control. Taylor was originally charged with two counts of
robbery with a firearm, grand theft, and petit
theft. He entered into a negotiated plea with the
State in which the State entered a nolle prosequi on the
robbery and petit theft charges, and Taylor pleaded guilty to
the grand theft charge. Taylor received two years of
community control, followed by three years of probation. The
trial court accepted the negotiated plea and sentenced Taylor
subsequently violated his community control by committing a
new offense, failing to submit to electronic monitoring, and
failing to remain confined to his approved residence. During
the violation hearing, Taylor admitted each of those
violations in an open plea to the court. Taylor's
sentencing scoresheet for the grand theft conviction
reflected 19.7 points. The court ordered a presentence
investigation, which resulted in a recommendation for a state
prison sentence. At sentencing, Taylor did not object to the
court's consideration of the presentence investigation
report. The court sentenced Taylor to three years'
incarceration after finding Taylor to be a danger to the
community, in part based on the allegations in the arrest
affidavit regarding all of the original charges.
filed a motion to correct sentence, objecting to the
court's consideration of the arrest affidavit. The motion
was denied, and this timely appeal followed.
775.082(10), Florida Statutes (2016), provides:
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.
argues that the trial court erred in considering the arrest
affidavit in finding that he presented a danger to the
community because that conduct was affiliated with charges
for which he was not convicted and the grand theft conviction
alone would be insufficient to support the trial court's
finding. We agree, in part. In sentencing Taylor, the court
The facts of the case that he plead [sic] to involve a series
of several robberies committed by two people wearing hooded
sweatshirts pulled down tight up on their heads. It involved
robberies from separate victims over a short period of time.
In fact, one of the robberies involved the use of a firearm.
And based on the facts of the case for which he has plead
[sic] in consideration for his prior record I do believe you
are a danger to our community.
court gleaned those facts from the arrest affidavit and, if
proven by the State, would have supported a state prison
sentence. However, the State nolle prossed the
robbery and petit theft charges, and Taylor pleaded to only
the grand theft charge. The trial court's consideration
of the firearm possession was foreclosed by the State's
decision not to proceed on the charges that alleged
possession of a firearm. See, e.g., Dinkines v.
State, 122 So.3d 477, 481 (Fla. 4th DCA 2013)
(concluding that trial court erred in relying on offenses for
which defendant was not convicted to support a finding under
Taylor requests that we direct the trial court to impose a
non-state prison sentence, remand for resentencing is more
appropriate. Although not mentioned by the trial court during
sentencing, the presentence investigation report was
submitted to the court without objection. On remand, the
trial court is not foreclosed from considering the report and