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McCray v. State

Florida Court of Appeals, Second District

October 2, 2019



          Appeal from the Circuit Court for Pasco County; Susan G. Barthle, Judge.

          Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Chelsea N. Simms, Assistant Attorney General, Tampa, for Appellee.

          LaROSE, Judge.

         Robert Sanders McCray appeals the order revoking his community control and sentencing him as a Violent Felony Offender of Special Concern (VFOSC). We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A); 9.140(b)(1)(D), (F). We affirm the revocation and sentence. We remand, however, so that the trial court may correct a scrivener's error, and render the written VFOSC statutory findings necessary under section 948.06(8)(e), Florida Statutes (2014).


         The State charged Mr. McCray with petit theft, a third-degree felony. § 812.014(3)(c), Fla. Stat. (2014). He pleaded guilty. In August 2015, the trial court sentenced him to two years of community control. Mr. McCray repeatedly violated the conditions of his supervision.

         The "Prior Record" section of every one of Mr. McCray's scoresheets, beginning with his original August 2015 sentencing through his fifth and final violation hearing in January 2018, shows a conviction for second-degree felony burglary. Beginning with his first violation hearing, the State assessed legal status points for each successive violation of community control due to Mr. McCray's VFOSC designation.[1]See § 921.0024(1)(a)(2), Fla. Stat. (2014) (providing for the assessment of twelve community sanction points for each successive violation for a violent felony offender of special concern). Thus, at his last violation hearing, his scoresheet included sixty legal status points. As a result, Mr. McCray was looking at a bottom of the guidelines score of 56.775 months' imprisonment.

         At the January 2018 hearing, the trial court expressed exasperation with Mr. McCray. The trial court observed that he had "so many violations, that's what's scoring you. . . . I didn't want to send you to prison . . . because I don't think you're a bad guy, but dadgummit . . . . Enough." The trial court also lamented that Mr. McCray had been "g[iven] . . . so many chances. . . . I can't justify [community control] anymore." The trial court terminated his community control and sentenced him to fifty-seven months' imprisonment. In doing so, the trial court announced that it "had no desire to sentence Mr. McCray to anything above the bottom of the guidelines."

         Immediately after sentencing, defense counsel questioned the scoresheet's inclusion of sixty legal status points. The deputy clerk interjected that "he's in our system as a violent felony offender," to which the State offered that Mr. McCray had a prior conviction for burglary of a dwelling. The trial court observed, "That would do it - the second-degree burg." Defense counsel conceded, "I do remember that. That's been brought before. . . . That's fine. . . . I do remember that, Judge, now. Okay."


         We confront, as our sister district described, "the statutory intricacies of revocation of probation proceedings involving . . . a [VFOSC] under section 948.06." Barber v. State, 207 So.3d 379, 381 (Fla. 5th DCA 2016); see also Bailey v. State, 136 So.3d 617, 620 (Fla. 2d DCA 2013) (decrying the trial court's use of a preprinted form as insufficient to satisfy the "intricacies of section 948.06(8)"). Mr. McCray raises two points. First, he contends that he was "never found . . . to be a violent felony offender of special concern." Second, he claims that the trial court "never made the statutorily required written findings necessary to sentence [him] as [a VFOSC]. This resulted in 30 additional sentencing points being improperly added to [his] scoresheet," the exclusion of which would have reduced his lowest permissible sentence, and, based upon the trial court's comments, would have resulted in a lower sentence. Because Mr. McCray essentially challenges the legality of his sentence, we afford de novo review. See Cruz v. State, 198 So.3d 648, 650 (Fla. 2d DCA 2015) ("We review the legality of a sentence as a pure issue of law that is subject to de novo review.").

         We quickly dispatch Mr. McCray's claim that he was not previously designated as a VFOSC. This claim was not preserved for our review. Mr. McCray did not pursue this argument in the trial court. The record reflects that his counsel questioned whether Mr. McCray had the necessary qualifying offense. Cf. Alcantra v. State, 39 So.3d 535, 537 (Fla. 5th DCA 2010) ("When a defendant disputes a prior offense, the sentencing court must either require the State to produce corroborating evidence of the offense or not consider the offense."). The trial court promptly, and properly, disabused counsel of his concern. See § 948.06(8)(b)(2) (defining a VFOSC as an individual on "community control . . . and has previously been convicted of a qualifying offense"); (c)(12) (enumerating as a "qualifying offense" "[a]ny burglary offense . . . that is either a first degree felony or second degree felony"); see also Barber, 207 So.3d at 382 ("It is undisputed that Barber qualifies as a violent felony offender of special concern . . . . Barber concede[d] in the trial court that he qualifies for that designation . . . ."). Indeed, counsel conceded that Mr. McCray was designated properly. Thus, because Mr. McCray did not pursue the specific argument before the trial court, we will not consider it now. See Conner v. State, 987 So.2d 130, 132 (Fla. 2d DCA 2008) ("In order to be ...

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