FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pasco County; Susan G. Barthle,
L. Dimmig, II, Public Defender, and Robert D. Rosen,
Assistant Public Defender, Bartow, for Appellant.
Moody, Attorney General, Tallahassee, and Chelsea N. Simms,
Assistant Attorney General, Tampa, for Appellee.
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).
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.
"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.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'
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
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.
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.").
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