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Parr v. State

Florida Court of Appeals, Fourth District

May 23, 2018

ANTHONY CHAS PARR, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; Lawrence M. Mirman, Judge; L.T. Case No. 43201lCF001175CFAXMX.

          Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.

          WARNER, J.

         Appellant pled guilty to a violation of probation imposed after his convictions for two counts of dealing in stolen property and two counts of giving false ownership or identification information to a secondhand dealer. The trial court sentenced him to fifteen years concurrent on each of the counts for dealing in stolen property and to five year concurrent sentences for the remaining charges. We reverse the sentences because the trial court departed from a position of neutrality in the sentencing proceeding. Appellant also contends that in sentencing him the court erred in considering juvenile dispositions more than five years old, which were included on his scoresheet. We disagree, as prior convictions may be considered, even though they cannot be scored for purposes of determining the lowest permissible sentence under the Criminal Punishment Code. We remand for resentencing before another judge.

         In 2011, appellant was charged by information with two counts of dealing in stolen property and two counts of giving false ownership or identification information to a secondhand dealer. Appellant pled to the charges and was adjudicated guilty. He was sentenced to three years in prison for all counts, followed by two years of probation, and was ordered to pay restitution.

         Appellant's probation was set to expire in July 2016. However, in November 2015, appellant's probation officer filed a probation violation report for violations including: failure to report to his probation officer; change of residence without consent; and failure to pay restitution and other costs. The officer alleged that appellant absconded and that his whereabouts were unknown. In the addendum to the violation report, new charges were added, including leaving his county of residence without permission and being arrested for possession of heroin.

         In November 2016, the trial court held an initial hearing on appellant's VOP. The prosecutor told the judge that plea offers had been made but were now revoked. After appellant rejected an offer of an eight year cap, the State offered appellant a straight eight year prison term, but appellant rejected that offer as well. Appellant told the court that he thought the eight year cap offer was still open, partially because of his change of attorneys due to his dissatisfaction with his first attorney. The court then questioned appellant about the two offers. While appellant said he would take the eight year cap today, the court was not inclined to accept a capped sentence. The court asked appellant whether he would take the straight eight years. After discussing it with his attorney, appellant rejected the court's offer.

         At a subsequent hearing, appellant entered an open plea, admitting the violations, except the possession of heroin charge which the State dropped. The court stated that based on the underlying offenses and appellant's scoresheet, appellant faced a sentence between 13.2 months and forty years in prison.

         The court reviewed appellant's sentencing scoresheet which included numerous juvenile dispositions, all of which were more than five years old. Appellant then testified, stating that he was homeless and turned himself in after the VOP warrant was issued. Appellant testified that he wished to receive treatment, and if released on probation, he would live with his grandfather. He stated that the victims of "[e]very case [he] ever had" were his family. The prosecutor cross-examined him on his record, listing various charges. Appellant could not remember whether all the juvenile charges were against family members.

         Defense counsel then called appellant's grandfather to testify. The grandfather stated that appellant's family did not want him to go back to jail. The court, not the prosecutor, asked the grandfather if appellant was a danger to the community, and he responded, "Absolutely not."

         The court began to question the grandfather about appellant's juvenile and adult criminal record. Appellant's juvenile dispositions included burglary of a dwelling, grand theft of a vehicle, forgery, assault, and improper exhibition of a weapon. The court commented on appellant's two burglaries of a dwelling, juvenile dispositions, and the grandfather and appellant responded that those incidents occurred at appellant's mother's house. Appellant told the court that the grand theft of a vehicle charge was from when he was a juvenile. The court stated, "It counts though, correct. Whose car did he steal?" The grandfather and appellant admitted that appellant took the grandfather's van. The court then asked about the juvenile forgery disposition, and the grandfather responded that appellant took his checks. The court asked about two other grand theft charges, adult offenses, but the grandfather told the court that he did not know about those offenses. The following exchange took place:

THE COURT: Two other - two other grand thefts, are you familiar with those?
GRANDFATHER: You'll have to tell me what they are.
THE COURT: I don't know, I'm asking you. Do you know what they are?
THE DEFENDANT: I don't - one was - one was -
THE COURT: I'm not asking you, I'm asking [your Grandfather].
GRANDFATHER: Sir, I don't know.
THE COURT: Cause you're coming into my courtroom and you're saying he's not a danger to anyone else.
GRANDFATHER: I - I don't think -
THE COURT: He's never victimized anybody else?
GRANDFATHER: No, not that I know of.
THE COURT: Not that you know of.
GRANDFATHER: Uh-huh.
THE COURT: Is your lack of knowledge intentional or accidental ...

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