Rojas v. State, 85-2204
| Decision Date | 12 May 1987 |
| Docket Number | No. 85-2204,85-2204 |
| Citation | 506 So.2d 1158,12 Fla. L. Weekly 1219 |
| Parties | 12 Fla. L. Weekly 1219 Julio ROJAS, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Elliot J. Scherker, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Margarita Muina Febres, Asst. Atty. Gen., for appellee.
Before BARKDULL, NESBITT and FERGUSON, JJ.
Julio Rojas appeals from his conviction of and sentence for burglary and petit theft. We affirm. Finding no merit to Rojas's challenge of his conviction, we limit our discussion to the appeal of his sentence.
Rojas was arrested while burglarizing a store less than one month after he had been convicted and placed on a twelve-month term of community control for second-degree robbery. A jury found Rojas guilty of burglary and petit theft. In completing the sentencing guidelines score sheet pursuant to Florida Rules of Criminal Procedure 3.701 and 3.988, the trial judge treated the burglary as the primary offense, the petit theft as an additional offense, and the robbery conviction and three prior misdemeanor offenses as prior convictions. After adding ten points for Rojas's violation of the community control constraint, the trial judge arrived at a total score of fifty-two points which translated into a recommended sentence of twelve to thirty months of incarceration or community control. Citing Rojas's almost immediate return to crime following his robbery conviction as justification, the trial judge departed from the sentencing guidelines and sentenced Rojas to two five-year terms and one sixty-day term, to run concurrently.
Rojas relies upon State v. Salsberry, 487 So.2d 402 (Fla. 5th DCA 1986); Bradley v. State, 480 So.2d 647 (Fla. 2d DCA 1985); cause dismissed, 486 So.2d 595 (Fla.1986); and Hallback v. State, 479 So.2d 865 (Fla. 5th DCA 1985), to support his contention that, because he had been placed under community control, the trial court erred in treating the robbery conviction as a prior conviction for purposes of the sentencing guidelines score sheet, rather than as an additional offense. This, according to Rojas, inflated the score by fourteen points and incorrectly elevated the recommended sentence from "any non-state prison sanction" to twelve to thirty months of incarceration or community control. See Fla.R.Crim.P. 3.988(e). Rojas claims that the sentence must be reversed because a sentence departure cannot be sustained when it is grounded upon a miscalculated score sheet. See Parker v. State, 478 So.2d 823 (Fla. 2d DCA 1985); Scott v. State, 469 So.2d 865 (Fla. 1st DCA 1985).
We affirm Rojas's sentence because the trial judge did not miscalculate the recommended sentence. The judge was correct in treating Rojas's prior robbery conviction as a prior conviction rather than an additional offense. Florida Rule of Criminal Procedure 3.701(d)(5)(a) defines "prior record" as including "any past criminal conduct on the part of the offender, resulting in conviction, prior to the commission of the primary offense." Although we acknowledge that the cases cited by Rojas provide some support for his position, the clarification of the committee notes to Florida Rule of Criminal Procedure 3.701, approved by the supreme court, see The Florida Bar Re: Rules of Criminal Procedure, 482 So.2d 311 (Fla.1985), and adopted and implemented by the legislature, see § 921.0015, Fla.Stat. (Supp.1986), as required by section 921.001, Florida Statutes (Supp.1986), makes it clear that Rojas's robbery conviction was properly treated as a prior...
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