DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
NAKIA JOHNSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-3557
[January 4, 2023]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert E. Belanger, Judge; L.T. Case No.
562015CF002667A.
Carey Haughwout, Public Defender, and Elijah Giuliano, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Heidi L. Bettendorf,
Senior Assistant Attorney General, West Palm Beach, for appellee.
GROSS, J.
We affirm the revocation and termination of probation in circuit court
case number 2015-CF-2667 in all respects. We write to address two
sentencing issues.
In April 2017, appellant pleaded no contest to shooting or throwing a
deadly missile, a second-degree felony. He was sentenced as a youthful
offender to four years in the Department of Corrections, followed by two
years of probation, along with certain court costs to which he agreed. His
sentence ran concurrently to another sentence, imposed on the same day,
for burglary of a conveyance, two counts of grand theft, and loitering; these
crimes were committed in 2015. Appellant did not file an appeal.
In March 2020, appellant was charged with a violation of probation due
to an arrest on felony charges. He admitted to violating his probation and
entered an open plea to the court.
A scoresheet was prepared which listed the burglary, grand theft, and
loitering convictions as “prior record.” The burglary conviction and two
grand theft convictions were scored as third-degree felonies and the
loitering and prowling charge was scored as a misdemeanor. This scoring
added 4.2 points to the scoresheet. As calculated on the scoresheet,
appellant’s lowest permissible sentence was 13.65 months and his
maximum sentence was 15 years.
The circuit judge sentenced appellant to 14 years in the Department of
Corrections and entered a final judgment imposing a total of $1,798.98 in
fees, costs, and additional charges.
We have carefully reviewed the judge’s comments at sentencing and
conclude that the record does not demonstrate a vindictive sentence under
Wilson v. State,
845 So. 2d 142 (Fla. 2003). Nor do we read the judge’s
words as indicating that he gave sentences proportional to the time, effort,
and expense which defendants cause the state to incur. Rather, the court
pointed out the reality of the plea bargaining process, where defendants
are incentivized by the possibility of receiving lower sentences. This is not
a case where a defendant was penalized for maintaining his innocence,
like the cases cited in the appellant’s brief. See, e.g., Colon v. State,
53 So.
3d 376 (Fla. 5th DCA 2011).
Appellant asserts that the scoresheet utilized by the court at the time
of his sentencing on the VOP was incorrect because it improperly scored
two prior convictions for grand theft. He contends that these convictions
should have been scored as misdemeanors instead of third-degree felonies.
Appellant’s prior theft convictions were pursuant to section
812.014(2)(c)1., Florida Statutes. In 2015, section 812.014(2)(c)1. made it
a third-degree felony to steal property “[v]alued at $300 or more, but less
than $5,000.” § 812.014(2)(c)1., Fla. Stat. (2015). This subsection was
subsequently amended, effective October 1, 2019, to increase the
threshold for a theft to qualify as a felony. Ch. 2019-167, § 36, Laws of
Fla. The amendment made it a third-degree felony to steal property
“[v]alued at $750 or more, but less than $5,000.” Id. The penalty for theft
of property “[v]alued at $100 or more, but less than $750” became a first-
degree misdemeanor. Id.
Appellant argues that because his prior grand theft convictions
establish only that he stole at least $300, the convictions should have been
scored as first-degree misdemeanors under the current version of the
statute, not as third-degree felonies.
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We reject that argument and hold that, because appellant’s grand theft
convictions were classified as third-degree felonies at the time of his 2017
convictions, they were properly scored as felonies on the scoresheet.
This case is similar to Johnson v. State,
476 So. 2d 786 (Fla. 1st DCA
1985), involving the sentencing guidelines, the predecessor to the current
Criminal Punishment Code.
In Johnson, defense counsel objected to the scoring of two prior
burglary convictions as second-degree felonies, arguing that they should
be characterized as third-degree felonies, their classification at the time of
the sentencing there at issue.
Id. at 786. The Johnson defendant had
previously been convicted of two burglaries, which at the time of their
commission fell under section 810.01(2), Florida Statutes, as second-
degree felonies.
Id. That statute was later repealed, and section 810.02(3)
was implemented, which reclassified appellant’s burglaries from second-
degree felonies to third-degree felonies.
Id.
On appeal, the Johnson defendant argued that his prior convictions
should be scored in accordance with how they were reclassified by the
legislature after the commission of his crimes.
Id. The First District held
that “the classification in effect at the time of appellant’s prior convictions
should control any later scoring of those convictions,” explaining, “[w]e
believe this approach provides certainty and relieves the sentencing judge
of the often difficult task of analyzing a legislature’s reasons for changing
an offense’s classification.”
Id. at 787; see also Roberts v. State,
507 So.
2d 761, 762 (Fla. 1st DCA 1987) (“Prior convictions scored on the
sentencing guidelines scoresheet are to be classified as they were at the
time of the convictions.”); Frazier v. State,
515 So. 2d 1061, 1061 (Fla. 5th
DCA 1987) (rejecting appellant’s argument that his prior convictions
should not have been scored as second-degree misdemeanors “on the
basis that they are not considered misdemeanors at the present time”);
Pugh v. State,
463 So. 2d 582, 584 (Fla. 1st DCA 1985).
The logic of the sentencing guidelines cases is applicable to control the
scoresheet classification argument raised in this case. It is undisputed
that the grand theft convictions were classified as third-degree felonies at
the time of appellant’s conviction and sentencing.
We distinguish Perdue v. State,
333 So. 3d 207 (Fla. 4th DCA 2022),
upon which appellant relies. That case involved the scoring of a prior
conviction for “an offense involving lewd conduct,” but the record was
silent as to which statutory subsection was implicated.
Id. at 207. Unlike
Perdue, in this case there was no confusion concerning the subsection of
3
the statute involved in the prior convictions. There was thus no need to
engage in a “same elements” analysis to determine how the convictions
should be scored.
Finally, as the state concedes, the trial court erred by imposing a $200
cost of prosecution because the state did not request a higher amount or
present sufficient proof to support the cost. See Bartolone v. State,
327
So. 3d 331, 336 (Fla. 4th DCA 2021). We reverse the $200 cost of
prosecution and remand for the imposition of a $100 cost.
Affirmed in part, reversed in part and remanded.
LEVINE and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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