Johnson v. State

• Decision Date: 10 December 2018
• Docket Number: No. 1D17-4743,1D17-4743
• Citation: 260 So.3d 502
• Parties: Tyrone Randy JOHNSON Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

260 So.3d 502

Tyrone Randy JOHNSON Jr., Appellant,

v.STATE of Florida, Appellee.

No. 1D17-4743

District Court of Appeal of Florida, First District.

December 10, 2018

Andy Thomas, Public Defender, M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Steven E. Woods, Assistant Attorney General, Tallahassee, for Appellee.

Per Curiam.

Appellant, Tyrone Randy Johnson, Jr., appeals his sentence and argues that the trial court erred in denying his motion to correct a sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) because its finding that he posed a danger to the public warranting an enhanced sentence under section 775.082(10), Florida Statutes (2017), was insufficient and not supported by the record. For the following reasons, we agree and, therefore, reverse and remand for resentencing.

In October 2016, Appellant was convicted of acting as a bail bond agent with a suspended or revoked license, theft, and grand theft of a motor vehicle. The trial court sentenced Appellant on the bail bond and grand theft offenses to concurrent terms of fourteen months' imprisonment in the Department of Corrections to be followed by forty-two months' probation and to time served on the theft offense. On direct appeal, we vacated Appellant's convictions for "grand theft auto and theft of property," affirmed the conviction on the bail bond offense, and ordered that Appellant be resentenced accordingly. Johnson v. State , 228 So.3d 1164, 1168 (Fla. 1st DCA 2017).

On resentencing, Appellant scored a total of 4.6 points for the bail bond offense on his criminal punishment code scoresheet. The scoresheet read in part, "If total sentence points are less than or equal to 44, the lowest permissible sentence is any non-state prison sanction. If the total sentence points are 22 points or less, see Section 775.082(10), Florida Statutes, to determine if the court must sentence the offender to a non-state prison sanction." During the resentencing hearing, the State requested "the previous sentence in the same way." Defense counsel requested that the trial court sentence Appellant to "county jail as he now scores 4.6 points; and, therefore, would be presumed to get a non-prison sanction." Defense counsel explained, "He has served 383 days as of today's date, so the Court could not even sentence him to the time served that he has under the current scoresheet." The trial court stated:

I'm going to adjudicate you guilty of the offense of acting as a bail bond agent with a suspended or revoked license. I'm going to sentence you to 383 days incarceration, give you credit for the 383 days you have time served. So your incarcerative sentence is completed as of today....

That'll be followed by the 42 months of supervised probation....

Defense counsel requested clarification "because 383 days would be a Department of Corrections sentence and not a County Jail sentence." When asked if it was sentencing appellant to the Department of Corrections, the court replied, "I'm sentencing him to 383 days, and giving him credit for that amount that he's already served; that's correct." When asked if that would count as a "Department of Corrections release for the purposes of PRR [prison releasee reoffender sentencing for any future offenses]," the court replied, "It would." After defense counsel objected under section 775.082(10)"that he scores less than 22 points and cannot be sentenced to the Department of Corrections as he stands at resentencing," the court stated, "For all the reasons that have been previously articulated by the Court, both at the previous hearing on your Motion for Pretrial Release, it's for all those reasons that I do find that any other sentence other than what the Court has imposed would represent a risk to the community ...."¹

In its subsequent Order Making Written Findings that a Nonstate Prison Sanction Would be a Danger to the Public, the trial court set forth in part:

Here, a non-state prison sanction for defendant could present a danger to the public. First, as the record reflects, the defendant had his bond license revoked in 2012. Nonetheless, he continued to act as, and was convicted of, Acting as a Bail Bond Agent With a Revoked License. The defendant was out on bond during the pendency of this case pre-trial. He was routinely late for court appearances. On September 7, 2016, the defendant signed a notice to appear in court on September 19, 2016 at 9:00 a.m. Defendant failed to appear in court on September 19, 2016 at 9:00 a.m. and the court issued a capias for his arrest. He did ultimately appear at approximately 11:15 a.m. and was taken into custody at that time. Additionally, prior to sentencing, the defendant and his attorney requested that a Pre-Sentence Investigation (PSI) report be completed. That report was completed on November 10, 2016 and was considered by the court at the time of the defendant's sentencing. The PSI indicated that the defendant and/or his mother had largely refused to cooperate with the investigation that he and his attorney had requested. As a result, much of the information obtained could not be verified or corroborated. The PSI made reference to the defendant behaving in a paranoid fashion. The PSI also outlined defendant's prior probation sentence that he received in case 2011-CF-3029-A. In that case, the defendant was alleged to have violated his probation on multiple occasions including multiple violations for illegal drug use. The PSI had recommended a sentence of one (1) year in jail followed by probation. When viewing this case, and Defendant's history, a reasonable person cannot conclude that he will not continue to commit crimes whenever he is released from incarceration. Furthermore, prior county jail sentences have had no effect on deterring Defendant from committing additional offenses. The criminal justice system has failed to protect the public from the defendant's criminal conduct. It is unclear whether the defendant has the ability to stop his criminal behavior. It is clear to this Court that he could present a danger to the public and that a county jail sentence does not suffice as the appropriate punishment for him.

Pursuant to the written judgment, Appellant was "hereby committed to the custody of the Department of Corrections."

During the pendency of his appeal, Appellant moved to correct what he claimed was an illegal sentence based upon the trial court's enhancement. The trial court denied the motion without comment. This appeal followed.

The State argues, and the dissent agrees, that the issue in this appeal is moot given that Appellant has already served the entirety of his sentence. In Miller v. State , 79 So.3d 209, 209 (Fla. 1st DCA 2012), we dismissed the appeal because the appellant, who appealed the order revoking his probation and the sentence of five years' imprisonment, had already served his sentence, which made the appeal moot. Similarly, in Jones v. State , 239 So.3d 1294, 1294 (Fla. 1st DCA 2018), we dismissed an appeal after noting that the appellant appealed her sentence and argued only that the trial court considered improper factors when imposing an eight-month jail sentence and setting forth, "But because she has not challenged her conviction – only her sentence – and because she has already served that sentence, this appeal has become moot." Importantly, for purposes of this appeal, we noted that although the appellant in Jones asserted that the appeal was not moot because a possibility existed that adverse collateral legal consequences would befall the appellant, the appellant had not articulated what those consequences might be, and we could conceive of none. Id. Here, in contrast, adverse legal consequences could befall Appellant as a result of his sentence.

As Appellant argues, there is a conflict among Florida's appellate courts as to whether county jail time triggers PRR status. In State v. Wright , 180 So.3d 1043, 1044 (Fla. 1st DCA 2015), we found the Fifth District's reasoning in Louzon v. State , 78 So.3d 678 (Fla. 5th DCA 2012), and the Fourth District's reasoning in Taylor v. State , 114 So.3d 355 (Fla. 4th DCA 2013), persuasive in holding that the appellant, who was committed to the custody of the Department of Corrections and whose release facility was listed as the Department's central office, should be considered a PRR notwithstanding that he was sentenced to time served and physically walked out of a county jail. In Lewars, DOC #Y44737 v. State , No. 2D15-3471, ––– So.3d ––––, ––––, 2017 WL 1969691, at *2 (Fla. 2d DCA May 12, 2017), the Second District held that the appellant, who was sentenced to two terms of twenty-four months' imprisonment and awarded 766 days' jail credit and, thus, walked out of the jail a free man instead of being transported to a Department of Corrections' facility, did not qualify as a PRR given that a PRR is defined as a defendant who has committed an enumerated offense "within 3 years after being released from a state correctional facility operated by the Department of Corrections." The Second District certified conflict with Wright , Taylor , and Louzon . Id. at ––––, at *6. The Florida Supreme Court accepted jurisdiction in September 2017. See State v. Lewars , No. SC17-1002, 2017 WL 4022360, at *1 (Fla. Sept. 13, 2017).

The State contends that the conflict in the appellate courts will have no effect on Appellant since he served his term of incarceration not in a county jail but in the Department of Corrections. As Appellant argues, however, "[t]he entire point of his appeal is that because on resentencing the trial court imposed an illegal sentence, i.e., 383 days rather than 364 days, or a prison sentence rather than a jail sentence, [he] will be illegally subject in the future to [PRR] classification." Indeed, when asked if the 383 days "Department of Corrections sentence" "would count then as a Department of Corrections release for the...