WILFORD MCCLOUD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wilford McCloud appealed his prison sentence for two counts of felony petit theft, arguing that under Florida Statutes § 775.082(10), he should have received a non-state prison sanction because he had no history of violence and scored only 14.2 sentence points (well below the 22-point threshold). The court affirmed, holding that 'danger to the public' under the statute is not limited to physical violence and can encompass economic harm and property crimes.
The court held that the trial court did not err in imposing a state prison sentence because 'danger to the public' under § 775.082(10) is not limited to violent offenders and can encompass economic harm, property crimes, and situations where criminal propensity diverts police resources from other communities.
[1] A "danger to the public" under section 775.082(10), Florida Statutes, is not limited to the potential for physical violence or injury.
[2] A defendant's propensity to commit property crimes can constitute a danger to the public.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“While McCloud may not be a physically violent offender, he is apparently willing to steal anything and everything. We believe that 'danger may, at least in some cases, encompass pecuniary or economic harm.'”
Establishes that the court's interpretation of 'danger to the public' extends beyond physical violence to include economic and property harm
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Join FLexlaw to unlock all legal intelligenceMcCloud pleaded guilty to two counts of felony petit theft and was sentenced to two years in prison followed by two years of community control. He is …
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After pleading guilty to two counts of felony petit theft, Wilford McCloud was sentenced to two years in prison, followed by two years of community control. He now appeals, contending that pursuant to section 775.082(10), Florida Statutes (2009), he should have received a non-state prison sanction. We disagree and affirm.
The Florida Legislature enacted section 775.082(10), Florida Statutes, which provides:
(10) 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.
Ch. 2009-63, § 1, Laws of Fla., eff. July 1, 2009. Relying on this statute, McCloud argued at sentencing that because he had no history of violence, he did not pose “a danger to the public,” a predicate required by the statute if a state prison sentence is to be imposed.1 McCloud contends that only a violent, or potentially violent, offender can present a danger to the public. We believe that construction of the statute is too narrow.
McCloud is an habitual thief, albeit one with a history of no violence. He has served two separate eighteen-month prison terms, and has accumulated twenty misdemeanor and five felony convictions, not including the two felonies now before us. Despite this impressive criminal record, McCloud only scored 14.2 sentence points.2 In addition to his prior record, at sentencing, the State offered the testimony of two Titusville police officers, who informed the court that McCloud’s larcenous behavior was so well-known and frequent that when he was seen in a neighborhood, additional police resources were deployed to his location.
While McCloud may not be a physically violent offender, he is apparently willing to steal anything and everything. We believe that “danger may, at least in some cases, encompass pecuniary or economic harm.” United States v. Reynolds, 956 F.2d 192, 192-93 (9th Cir.1992); see United States v. Provenzano, 605 F.2d 85, 95 (3rd Cir.1979) (explaining that danger is not limited to physical harm; concept includes opportunity to exercise substantial and corrupting influence within labor un*645ion); United States v. Parr, 399. F.Supp. 883, 888 (W.D.Tex.1975) (“The ‘danger to ... the community’ provision [in the Bail Reform Act] permits consideration of the defendant’s propensity to commit crime generally, even where only pecuniary and not physical, harm might result to the community at large.”); see also United States v. Moss, 522 F.Supp. 1033, 1035 (E.D.Pa.1981) (“It is generally agreed, of course, that a [c]ourt may refuse bail on the ground that a defendant poses a threat to the community even though the threat is pecuniary rather than physical.”), aff'd 688 F.2d 826 (3rd Cir.1982); United States v. Miranda, 442 F.Supp. 786, 792 (S.D.Fla.1977) (“First, it is beyond dispute that the criterion of ‘danger to the community,’ which is an explicit component of the Bail Reform Act, is not limited to the potential for doing physical harm.”).
The record supports the trial court’s implicit finding that McCloud is an habitual thief and presents a threat to property. The fact that police resources are diverted to his location also potentially endangers the public, as it diminishes police protection in other parts of the community. Thus, we conclude that the trial court did not err in sentencing McCloud to a prison sanction based on its determination that McCloud “could present a danger to the public.” There is nothing in the language of section 775.082(10) that suggests that the Legislature intended to limit the meaning of “danger to the public” only to persons threatening physical violence or injury.
AFFIRMED.
GRIFFIN and LAWSON, JJ„ concur.
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Jones v. State, 71 So. 3d 173 (Fla. 1st DCA 2011)…st DCA 2010). There is very little case law interpreting section 775.082(10). The only case reviewing the sufficiency of the findings made by the trial court to justify a prison sentence, rather than a nonstate prison sanction, is McCloud v. State, 55 So. 3d 643 (Fla. 5th DCA 2011). In that case, the defendant [*176] pled guilty to two counts of petit theft and was sentenced to two years in prison followed by two years of community control. Id. at 644. At the trial court, the defendant argued that he did no…
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Reed v. State, 192 So. 3d 641 (Fla. 2d DCA 2016)…h to consider — criminal history, victim injury, and propensity for one to commit future crimes. See Porter, 110 So. 3d at 964 (affirming an upward departure based on section 775.082(10) due to victim injury and criminal- history); McCloud v. State, 55 So. 3d 643, 645 (Fla. 5th DCA 2011) (affirming an upward departure based on section 775.082(10), where defendant was a “habitual thief’ who “presents a threat to property”). Legislative' authority to depart upward due- to public danger, however, does not manda…
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Porter v. State, 110 So. 3d 962 (Fla. 4th DCA 2013)…under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and section 775.082(10), Florida Statutes (2010). The trial court disagreed and found the defendant was an economic “danger to the community,” citing McCloud v. State, 55 So. 3d 643 (Fla. 5th DCA 2011). The court sentenced the defendant to five years in prison. On appeal, the defendant continues to argue that the trial court was required to sentence him to non-state sanctions under section 775.082(10) absent a jury finding tha…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Provenzano, 605 F.2d 85 (3d Cir. 1979)
- United States v. R.G. Reynolds, 956 F.2d 192 (9th Cir. 1992)