FLOYD EDWIN NOLAND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Noland appeals his sentencing following guilty pleas to forgery and uttering a forged check, challenging the trial court's scoring of out-of-state theft convictions as felonies on the sentencing guidelines scoresheet and its imposition of court costs on an indigent defendant. The court reversed and remanded for resentencing, holding that out-of-state convictions must be scored according to their Florida analogues and that indigent defendants must be sentenced to community service rather than court costs.
The court held that out-of-state convictions must be scored according to their Florida analogues under the sentencing guidelines, and therefore the Indiana thefts should have been scored as misdemeanors, not felonies. The court also held that Section 27.3455(1), Florida Statutes, mandates that indigent defendants be sentenced to community service in lieu of court costs, and the trial court's imposition of costs on Noland was contrary to law.
[1] Out-of-state convictions must be scored according to the analogous or parallel Florida Statute.
[2] Theft of property valued under $100 in Florida is a misdemeanor, regardless of out-of-state statutes classifying similar thefts as felonies.
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Join FLexlaw to unlock all legal intelligence“When scoring federal, foreign, military, or out-of-state convictions, assign the score for the analogous or parallel Florida Statute.”
Establishes the governing rule that out-of-state convictions must be scored according to their Florida equivalents, not their classification in the originating state.
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Join FLexlaw to unlock all legal intelligenceNoland pled guilty to one count of forgery and one count of uttering a forged check. He had two prior theft convictions from Indiana involving $25 and…
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MILLS, Judge.
Noland appeals from a sentence imposed following entry of a guilty plea to one count of forgery and one count of uttering a forged check. Two points have been raised for our review. First, whether the trial court erred in scoring two prior theft convictions from Indiana as felonies on No-land’s guideline scoresheet. Secondly, whether the trial court erred in assessing court costs against Noland, who is an indigent, instead of ordering community service hours. We reverse.
Rule 3.701(d)(5)(a)(2), Fla.R.Crim.P., provides:
When scoring federal, foreign, military, or out-of-state convictions, assign the score for the analogous or parallel Florida Statute.
The theft of property with a value less than $100 in Florida is a misdemeanor. Section 812.014(2)(c), Florida Statutes (1983). The Indiana statute under which Noland was convicted for a theft involving $25 worth of property and a theft involving $46 worth of property provides that the theft of any property, without regard to value, is a “Class D Felony,” Chapter 35-43-4-2(a), Ind.Stat.Ann., punishable by two years in prison. Nonetheless, according to the cited rule the Indiana thefts should have been scored as misdemeanors because petit theft is a misdemeanor in Florida.
Likewise, the two Indiana thefts were incorrectly used as prior theft offenses in Part III B (Prior convictions for Category 6 offenses — Thefts, forgery, fraud) of Noland’s scoresheet. Bordeaux v. State, 471 So. 2d 1353 (Fla. 1st DCA 1985) (sentencing guidelines calculation of prior misdemeanor convictions as same-category offenses is improper inasmuch as the guidelines themselves apply only to felonies, and misdemeanors cannot be scored as primary offenses at conviction). Therefore, we vacate Noland’s sentence and remand the cause for entry of a new sentence in accordance with the guidelines and this opinion.
Section 27.3455(1), Florida Statutes (1985), provides:
All applicable fees and court costs shall be paid in full prior to the granting of any gain-time accrued. However, the court shall sentence those persons whom it determines to be indigent to a term of community service in lieu of the costs prescribed in this section, and such indigent persons shall be eligible to accrue gain-time and shall serve the term of community service at the termination of incarceration. Each hour of community service shall be credited against the additional cost imposed by the court at a rate equivalent to the minimum wage....
Noland was adjudged insolvent after his arrest and was represented in the trial court by the local public defender. During the sentencing hearing, counsel for Noland made an oral motion that the court substitute a term of community service in lieu of the $200 court costs imposed. The trial judge responded he was not sure whether Noland was indigent to the point he could not pay $200, since he would be going to work in prison. This ruling was plainly contrary to the law.
We remand this cause to the trial court with directions that it correct Noland’s sentence to show an imposition of community service in lieu of the $200 court costs. Additionally, we direct the trial court to order the Department of Corrections to allow Noland all appropriate gain-time in light of the corrected sentence.
Reversed and remanded.
WENTWORTH, J., concurs.
NIMMONS, J., specially concurs with opinion.
NIMMONS, Judge,
specially concurring.
I concur in Judge Mills’ opinion as to each issue. However, as to the court costs issue, raised under Section 27.3455(1), Florida Statutes (1985), I would point out certain additional facts which have led me to the same conclusion as Judge Mills.
At the conclusion of the sentencing hearing, after Noland’s public defender orally moved the Court to substitute a term of community service in lieu of the $200 court costs, the Court made the following inquiry concerning Noland’s indigency:
BY THE COURT: Are you indigent to the point, where you can’t pay $200?
BY THE DEFENDANT: At this time, Your Honor, I am.
BY THE COURT: You don’t have any money, whatsoever?
BY THE DEFENDANT: No, Your Hon-or. BY THE COURT: Well, I will leave it as it is, both of you check it out, you know my feelings about that cost, anyway, but both of you check it out and we will see, if I have to amend it.
The only subsequent action reflected by the record herein bearing upon the issue of Noland’s indigency is an order entered three weeks later appointing the public defender for purposes of appeal, in which order the Court observed that the defendant appeared to continue to be indigent.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Slaughter v. State, 493 So. 2d 1109 (Fla. 1st DCA 1986)…t’s indigency before assessing costs and a defendant found to be indigent must be ordered to serve a term of community service in lieu of the imposition of additional court costs. Lawton v. State, 492 So. 2d 404 (Fla. 1st DCA 1986); Noland v. State, 489 So. 2d 873 (Fla. 1st DCA 1986). We recognize that a defendant’s financial situation may change after his conviction. However, we believe the statute, properly construed, contemplates such circumstance by providing for the retention of jurisdiction by the tria…
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Lawton v. State, 492 So. 2d 404 (Fla. 1st DCA 1986)…and leads to only one meaning: indigency is to be determined at the time of sentencing and those persons found to be indigent must be ordered to serve a term of community service in lieu of the imposition of additional court costs. Noland v. State, 489 So. 2d 873 (Fla. 1st DCA 1986). Of course, this court recognizes that an inmate’s financial circumstances can often change, for various reasons, after conviction so that he is no longer indigent to the point that he cannot pay the fairly modest sum of $200. W…
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Forehand v. State, 524 So. 2d 1054 (Fla. 1st DCA 1988)…rida statute. See Rotz v. State, 521 So. 2d 355 (Fla. 5th DCA 1988); Samples v. State, 516 So. 2d 50 (Fla. 2d DCA 1987); Frazier v. State, 515 So. 2d 1061 (Fla. 5th DCA 1987); Armontrout v. State, 503 So. 2d 984 (Fla. 5th DCA 1987); Noland v. State, 489 So. 2d 873 (Fla. 1st DCA 1986); Robbins v. State, 482 So. 2d 580 (Fla. 5th DCA 1986); Rodriguez v. State, 472 So. 2d 1294 (Fla. 5th DCA 1985); Arquilla v. State, 464 So. 2d 716 (Fla. 4th DCA 1985). But see Weakland v. State, 520 So. 2d 311 (Fla. 2d DCA 1988);…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bordeaux v. State, 471 So. 2d 1353 (Fla. 1st DCA 1985)