Devon Kane Ryerson v. State of Florida , 2016 Fla. App. LEXIS 5991 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DEVON KANE RYERSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D15-1902
[April 20, 2016]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Robert L. Pegg, Judge; L.T. Case No.
312014CF001158A.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
CIKLIN, C.J.
The appellant appeals his prison sentence, arguing that the trial court
did not make the findings required under section 775.082(10), Florida
Statutes (2014). We agree and reverse and remand for resentencing.
The state charged the appellant with two non-forcible felonies. The
appellant pled no contest without any negotiated agreement as to the
sentence. The scoresheet prepared reflects a total score of 5.1 sentence
points, which, under the facts of this case, presumed a nonstate prison
sanction unless the sentencing judge made certain factual findings. The
trial court sentenced the appellant to thirty months in prison followed by
two years of probation, the sentences to run concurrently. After the
appellant appealed, he moved to correct a sentencing error, pointing out
that the trial court, in fact, failed to make the required factual findings
that a nonstate prison sanction would pose a harm to the public.
In response, the trial court entered an order entitled “Order Finding
Defendant To Be A Danger To The Community,” in which the court
recited the charges against the appellant and some details surrounding
them. The court found that “[t]his defendant is a clear and present
danger to the community.”
On appeal, the appellant argues that the trial court did not make the
findings required to sentence him to prison where his scoresheet total
was less than 22 points and he otherwise fell within section 775.082,
Florida Statutes. The statute provides as follows:
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.
§ 775.082(10), Fla. Stat. (2014). See also Fla. R. Crim. P.
3.704(d)(29)(2014) (“If the total sentence points equal 22 or less, the
court must sentence the offender to a nonstate prison sanction unless it
makes written findings that a nonstate prison sanction could present a
danger to the public.”).
If the statute applies, then a nonstate prison sanction is the
“presumptive mandatory sentence.” Jones v. State, 71 So. 3d 173, 175
(Fla. 1st DCA 2011). The phrase ‘“nonstate prison sanction’ . . . is
commonly understood to mean probation, community control, or
imprisonment in the county jail for up to one year.” Id. “The second
sentence of the statute allows the trial court to deviate from the
presumptive sentence and impose a prison sentence, but only if the court
specifically finds that sentencing the offender to a nonstate prison
sanction could present a danger to the public.” Id. (citation omitted); see
also Bradley v. State, 155 So. 3d 1248, 1250 (Fla. 4th DCA 2015)
(recognizing that under the statute, a nonstate prison sentence is
required unless the court finds “that such a sentence poses a danger to
the public”). The trial court’s findings must be in writing. Bradley, 155
So. 3d at 1250; Jones, 71 So. 3d at 175 (citations omitted).
A relatively recent opinion of this court provides guidance as to the
sufficiency of a trial court’s findings under section 775.082(10). In Porter
v. State, 110 So. 3d 962 (Fla. 4th DCA 2013), the defendant scored 14.7
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points. The trial court sentenced him to prison, finding that the
defendant “is in his mid-sixties and has engaged in financial fraud his
entire adult life,” and that because of his criminal history, “no reasonable
person could conclude that the defendant will not continue to commit
financial crimes whenever he is released from incarceration, it has been
his lifelong mo[d]us operandi.” Id. at 964 (alteration in original). The
court also found that “[p]rior sentences have had no effect on deterring
the defendant from committing financial crimes,” that the defendant
posed a danger to the public when he was not incarcerated, and that “a
county jail sentence does not suffice as the appropriate punishment in
this case.” Id. On appeal, this court held that the trial court made the
required finding. Id.
Here, the state does not dispute that section 775.082(10) applies to
the appellant. The trial court’s findings, however, did not establish a
nexus between a nonstate prison sanction and a danger to the public.
Instead, the trial court found that the appellant was a “present danger to
the community.” While the trial court in Porter made it clear in its
findings that the defendant would continue to pose a danger to the
public after his release from a nonstate prison sanction, the trial court’s
conclusory findings here did not make that connection. And this is
indeed a distinction with a difference.
Accordingly, we reverse and remand for the trial court to resentence
the appellant to a nonstate prison sanction. See Dresch v. State, 150 So.
3d 1199, 1200 (Fla. 4th DCA 2014) (recognizing that where the trial
court fails to make the necessary findings required by section
775.082(10), on remand it must impose a nonstate prison sanction).
Reversed and remanded for resentencing.
WARNER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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