ROBERT DRESCH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Dresch appeals his conviction and five-year sentence for corruption by threat. The court reversed and remanded because the trial court failed to enter written findings required by statute before imposing a state prison sentence for a non-forcible felony when the defendant scored below the threshold points.
The trial court's sentence was reversed and remanded because it failed to enter the required written findings before imposing a state prison sentence for a non-forcible felony with low scoresheet points. On remand, the trial court cannot impose an upward departure sentence. Additionally, the State must provide competent evidence of the two contested prior crimes when resentencing.
[1] A trial court must make written findings that a nonstate prison sanction would impose a danger to the public before sentencing a defendant to a state correctional facilit…
[2] The crime of corruption by threat is not a forcible felony as defined by statute because it may be committed without the use or threat of physical force.
Previewing 2 of 5 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“Since the crime of corruption by threat is not a forcible felony within the meaning of section 776.08, and because Defendant scored less than 22 points on his score-sheet, the trial court was required to make written findings that a nonstate, prison sanction would impose a danger to the public before sentencing Defendant to a' state correctional facility.”
Establishes the mandatory nature of written findings when sentencing below-threshold defendants for non-forcible felonies
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Join FLexlaw to unlock all legal intelligenceDresch was convicted of corruption by threat and sentenced to five years in prison. The crime of corruption by threat may be committed without the use…
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Robert Dresch (“Defendant”) appeals from his conviction and sentence on the charge of corruption by threat. He was sentenced to five years in prison. The State agrees with Defendant that the crime of corruption by threat is not a *1200forcible felony within the meaning of section 776.08, Fla. Stat. (2013),1 because the “offense may be committed without the use or threat of physical force.” State v. Hearns, 961 So.2d 211, 215 (Fla.2007). Since the crime of corruption by threat is not a forcible felony within the meaning of section 776.08, and because Defendant scored less than 22 points on his score-sheet, the trial court was required to make written findings that a nonstate, prison sanction would impose a danger to the public before sentencing Defendant to a' state correctional facility. See 775.082(10), Fla. Stat. (2018).2 The trial court failed to enter written findings, even after Defendant raised this issue in his rule 3.800(b)(1) motion. Accordingly, we reverse and remand to the trial 'court for resentencing. On remand, the trial court is not permitted to impose an upward departure sentence. See Bryant v. State, 148 So.3d 1251 (Fla. 2014) (holding a trial court is not permitted on remand to impose an upward departure sentence under section 775.082(10) when it failed to enter written findings during the initial sentencing).
Additionally, we note that the State failed to come forward with any evidence that Defendant committed two of the prior crimes listed on his scoresheet. Defendant challenged the inclusion of these crimes, which added 0.4 to his score, in his rule 3.800(b)(1) motion. Once contested, the State was required to provide competent evidence that Defendant had committed these crimes. See Lyons v. State, 823 So.2d 250, 250-51 (Fla. 4th DCA 2002) (holding the state had the burden of providing competent evidence that the defendant had committed a past conviction, when the defendant challenged the inclusion of the past conviction in a rule 3.800(b) motion). On remand, the State is required to provide competent evidence of these prior crimes.
Reversed and remanded.
CIKLIN and GERBER, JJ., concur.
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Ryerson v. State, 189 So. 3d 1047 (Fla. 4th DCA 2016)…ourt’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 resentenc-ing. WARNER and KLING…
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Murphy v. State, 161 So. 3d 1282 (Fla. 1st DCA 2015)…gs required by section 775.082(10) by granting appellant’s rule 3.800(b)(2) motion, its failure to do so requires resentencing appellant on remand to a nonstate prison sanction. Bradley v. State, 155 So. 3d 1248 (Fla. 4th DCA 2015); Dresch v. State, 150 So. 3d 1199 (Fla. 4th DCA 2014); Goldberg v. State, 76 So. 3d 1072 (Fla. 5th DCA 2011). In light of this disposition, we do not reach appellant’s alternate claim that section 775.082(10) is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.…
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Jonny Sanders v. State (Fla. 4th DCA 2021)…roduce competent evidence in support of its scoring of Appellant’s prior record and failed to do so. “Once contested, 2 the State [is] required to provide competent evidence that [the d]efendant had committed these crimes.” Dresch v. State, 150 So. 3d 1199, 1200 (Fla. 4th DCA 2014) (citing Lyons v. State, 823 So. 2d 250, 250–51 (Fla. 4th DCA 2002) (holding the state had the burden of providing competent evidence that the defendant had committed a past conviction, when the defendant challenged the…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Hearns, 961 So. 2d 211 (Fla. 2007)
- Bryant v. State, 148 So. 3d 1251 (Fla. 2014)
- Lyons v. State, 823 So. 2d 250 (Fla. 4th DCA 2002)
- Smith v. Southland Suites OF Ormond Beach, LLC., 148 So. 3d 1251 (Fla. 2014)