MARK JEROME SAMPLES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1987-12-02
Nos. 86-1072, 86-1276
SCHOONOVER and HALL, JJ., concur.
516 So. 2d 50 Florida District Court of Appeal, Second District (1987) Positive Treatment
Cited by 8 cases

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Synopsis

Mark Jerome Samples challenged his sentencing guidelines score for a prior federal drug conviction and the assessment of court costs. The appellate court affirmed the sentence after finding the state properly demonstrated that Samples' federal conspiracy conviction was analogous to Florida's trafficking statute, but remanded the costs issue as moot because Samples had already paid them after filing his appeal.


Holding

The trial court properly scored the federal conviction under Florida's trafficking statute because the state met its burden of demonstrating the nature of the prior crime through DEA reports showing the conspiracy involved over one hundred pounds of marijuana. The costs issue was remanded as moot because Samples paid the assessed costs after filing his appeal, thereby making the validity of the assessment moot.


Headnotes

[1] A prior federal conviction is scored the same as the analogous or parallel Florida offense would be scored under Florida Rule of Criminal Procedure 3.701(d)(5)(a)(2).

[2] When scoring prior convictions for sentencing, the specific facts of the prior offense are not normally considered unless there is a question as to severity.

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Key Quotes

“Florida Rule of Criminal Procedure 3.701(d)(5)(a)(2) clearly intends that convictions, not acts, are to be scored. For this reason, the specific facts of the prior offense are not normally considered.”

Establishes the foundational rule that prior convictions are scored based on the conviction itself, not the specific facts of how the offense was committed.

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Facts & Procedural History

Samples entered a negotiated plea of nolo contendere to delivery of cocaine, with an agreement that if he fell into the first guidelines cell, he woul…

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Opinion of the Court
CAMPBELL, Acting Chief Judge.

CAMPBELL, Acting Chief Judge.

The appellant, Mark Jerome Samples, challenges both his sentence and the costs imposed under section 27.3455, Florida Statutes (1985). He contends that his sentence was improper because the court assigned too many guidelines scoresheet points to his prior federal conviction. He also contends that, since he was insolvent and had received no prior notice, the court improperly assessed costs under section 27.3455, Florida Statutes (1985). We affirm the appellant’s sentence and remand on the issue of costs.

The appellant entered a negotiated plea of nolo contendere to the charge of delivery of cocaine. A condition of the agreement was that if the appellant fell into the first cell on the guidelines scoresheet the court would sentence him to no more than eight months in the county jail.

The appellant had a prior federal conviction for conspiracy to possess with intent to distribute marijuana under 21 U.S. C. §§ 846 and 841(a)(1), (1970 and 1978). Under Florida Rule of Criminal Procedure 3.701(d)(5)(a)(2), a prior federal conviction is to be scored the same as the analogous or parallel Florida offense would be scored. The trial court here scored the federal conviction as it would an offense under the Florida trafficking statute. § 893.135(l)(a)(l), Fla.Stat. (1985). This increased appellant’s guidelines sentence to thirty months in prison, substantially more than the hoped-for eight months in county jail.

The appellant contends that the court should have scored his prior federal conviction under section 893.13(l)(a)(2), Florida Statutes (1985) and the conspiracy statute (section 777.04(4)(d), Florida Statutes (1985)) because section 893.13(l)(a)(2) is the true analogue to the federal statute involved. Since a violation of section 893.-13(l)(a)(2) is a third-degree felony, the conspiracy statute would reduce the offense to a first degree misdemeanor and result in the desired sentence of no more than eight months in the county jail.

The appellant notes that the Florida trafficking statute contains a specific pound requirement, while the federal statute does not. In addition, while the federal statute proscribes possession with intent to sell, the Florida trafficking statute does not. The Florida Statute (§ 893.13(l)(a)(2), Fla. Stat. (1985)) advanced by the appellant does contain that language.

Florida Rule of Criminal Procedure 3.701(d)(5)(a)(2) clearly intends that convictions, not acts, are to be scored. For this reason, the specific facts of the prior offense are not normally considered. If there is any question, however, as to the severity, “[t]he burden ... is on the state to clearly demonstrate the nature of the prior crime, ... otherwise, as the rules provide, the benefit of the doubt goes to the defendant.” Rodriguez v. State, 472 So. 2d 1294, 1296 (Fla. 5th DCA 1985).

There was a question as to severity here because there is no precisely parallel Florida Statute. Accordingly, the state here introduced into evidence DEA reports of the appellant’s prior federal conviction. Those reports revealed that the appellant was convicted of conspiring to possess and deliver over one hundred pounds of marijuana. Under these circumstances, where there is no precisely parallel Florida Statute, we believe that the state met its burden of proving the nature of the crime and that, as a consequence, the court properly found the appellant’s prior federal conviction to be most analogous to the Florida offense of trafficking under section 893.-135(l)(a)(l), Florida Statutes (1985). The court properly scored the appellant’s prior federal conviction, and we uphold the sentence imposed.

The appellant also argues that the court improperly assessed $200 costs against him under section 27.3455. Although that section only allows costs to be assessed against a solvent defendant who has been given prior notice, the court assessed costs against the appellant despite the appellant’s alleged insolvency and lack of notice. The appellant also argues that the court improperly imposed costs without giving the appellant prior notice. Jenkins v. State, 444 So. 2d 947 (Fla.1984). The record shows, however, that appellant paid the assessed costs on May 20, 1986, after filing his notice of appeal, thereby making moot his objections to the costs assessment. He thereby shall not be denied any applicable gain time.

Affirmed.

SCHOONOVER and HALL, JJ., concur.


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Citator

Cited By

  • Forehand v. State, 524 So. 2d 1054 (Fla. 1st DCA 1988)
    …statute for an analogous or parallel crime. If such a crime exists in Florida, the out-of-state conviction should be scored as a conviction under the analogous Florida 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…
    1 / 2
  • Rotz v. State, 521 So. 2d 355 (Fla. 5th DCA 1988)
    …“conduct as it would be treated in Florida ...” See Frazier v. State, 515 So. 2d 1061 (Fla. 5th DCA 1987). Thus, it is the nature of the prior crime that is to be considered when attempting to find an analogous Florida statute. See Samples v. State, 516 So. 2d 50 (Fla. 2nd DCA 1987). The penalty is not the determining factor. Unless the offense defined in the appropriate Indiana statute is significantly different from that in Brown, Rotz’ prior conviction should be scored as a second degree felony as there i…
  • Dautel v. State, 647 So. 2d 236 (Fla. 1st DCA 1994)
    …ally never penetrated his victim. The court never specifically addressed [*238] whether the trial judge could utilize evidence of the underlying facts of the out-of-state conviction in determining the analogous Florida statute.1 In Samples v. State, 516 So. 2d 50 (Fla. 2d DCA 1987), however, the Second District Court of Appeal did approve the trial court’s consideration of underlying facts, and stated that while the specific facts of the prior offense are not normally considered, if there is any question as…
    1 / 2

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