KENNETH J. TERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Terry was sentenced to 18 months imprisonment for felony battery after revocation of community control. The Florida appellate court vacated the sentence because the trial court failed to make the statutorily required written findings justifying imprisonment rather than a non-state prison sanction for a defendant whose scoresheet was below 22 points.
The sentence is unlawful and must be vacated because Florida Statute § 775.082(10) requires written findings when imposing a prison sentence in these circumstances, and the trial court made no such findings. On remand, the trial court must resentence Terry to a non-state prison sanction.
[1] A trial court must impose a non-state prison sanction for a non-forcible, third degree felony offense committed on or after July 1, 2009, if the defendant's scoresheet to…
[2] Failure to make the statutorily required written findings when sentencing a defendant for a non-forcible, third degree felony with 22 or fewer scoresheet points necessita…
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Join FLexlaw to unlock all legal intelligence“when a defendant, whose offense was committed on or after July 1, 2009, and whose scoresheet totals 22 points or less, is being sentenced for a non-forcible, third degree felony, then the trial court "must sentence the offender to a nonstate prison sanction" unless the trial court "makes written findings that a non-state prison sanction could present a danger to the public."”
Statement of the mandatory sentencing requirement that the trial court failed to follow
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Join FLexlaw to unlock all legal intelligenceTerry's offense was a non-forcible third degree felony (felony battery) committed after July 1, 2009. His sentencing scoresheet totaled less than 22 p…
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Following the revocation of his community control, Appellant was sentenced to 18 months imprisonment for the underlying offense of felony battery, a third degree felony. § 784.03(2), Fla. Stat. (2015). Appellant now argues this sentence is unlawful. Because the trial court did not make the statutorily required written findings, we agree.
Pursuant to section 775.082(10), Florida Statutes (2015), when a defendant, whose offense was committed on or after July 1, 2009, and whose scoresheet totals 22 points or less, is being sentenced for a non-forcible, third degree felony, then the trial court “must sentence the offender to a nonstate prison sanction” unless the trial court “makes written findings that a non-state prison sanction could present a danger to the public.” See Fla. R. Crim. P. 3.704(29). It is not disputed that Appellant’s scoresheet reflected less than 22 sentence points. Nor is it disputed that Appellant was being sentenced for a non-forcible felony, as that term is defined in section 776.08, Florida Statutes.1
The trial court did not make any written findings in support of the sentence, and therefore, we are obliged to vacate the sentence. The trial court may well have had good reason to find a non-state prison sentence would present a danger to the community given Appellant’s record, but written findings are necessary so that we can evaluate the sufficiency of the findings on appeal. See Jones v. State, 71 So.3d 173 (Fla. 1st DCA 2011). Further, given the mandatory nature of section 775.082, we cannot overlook the requirement of a written finding, despite the State’s request that we do so. See Bryant v. State, 148 So.3d 1251 (Fla. 2014). Finally, we reject the State’s suggestion that any error was invited as the Appellant plainly requested a sentence less than prison. On remand, the trial court shall resentence Appellant to a nonstate prison sanction. Bryant.
Accordingly, Appellant’s sentenced is VACATED, and the cause is REMANDED for imposition of a nonstate prison sanction.
LEWIS and WINOKUR, JJ., CONCUR.
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- State v. Hearns, 961 So. 2d 211 (Fla. 2007)
- Jones v. State, 71 So. 3d 173 (Fla. 1st DCA 2011)
- Bryant v. State, 148 So. 3d 1251 (Fla. 2014)
- Smith v. Southland Suites OF Ormond Beach, LLC., 148 So. 3d 1251 (Fla. 2014)