Record Basis for Upward Departure, Section 775.082(10)

JONES v. STATE, 36 Fla. L. Weekly D2120a (Fla. 1st DCA, Sep 23, 2011) – Appellant was sentenced to three years in prison for driving while his license was cancelled, suspended, or revoked. He does not challenge his conviction on appeal; he only challenges his sentence. He contends that the trial court erred in imposing a prison sentence because the record does not support the court’s finding pursuant to s. 775.082(10), Fla. Stat. Appellant contends that the court’s findings are not supported by the record and, therefore, the trial court erred in imposing a prison sentence under s. 775.082(10).

The clear purpose and obvious intent s. 775.082(10) was to keep certain offenders out of the state prison system. The statute operates similarly to the pre-Criminal Punishment Code sentencing guidelines by establishing a presumptive sentence from which the trial court may deviate up to the statutory maximum in limited circumstances and only if the court explains its reasons in writing. The first sentence of the statute provides that the presumptive mandatory sentence for qualifying offenders is a “nonstate prison sanction.” The statute doesn’t define “nonstate prison sanction,” but the phrase is commonly understood to mean probation, community control, or imprisonment in the county jail for up to one year. The second sentence of the statute allows the trial court to deviate from the presumptive sentence and impose a prison sentence, but only if the court specifically finds that sentencing the offender to a nonstate prison sanction could present a danger to the public. The trial court’s findings must be in writing.

The record in this case does not support the trial court’s finding regarding Appellant’s potential future dangerousness. Although Appellant’s history of driving without a license arguably supports the trial court’s finding that he will continue to do so, the court did not make sufficient findings and the record does not suggest that imprisonment within the state prison system rather than the county jail would better deter him from continued unlicensed driving. Nor is there any record support for the court’s implicit finding that one year of incarceration in the county jail would constitute a significantly lesser deterrent for Appellant than three years in state prison. The trial court’s additional findings are speculative at best because it does not appear from the record that Appellant has a history of vehicle accidents or engaging in high speed chases with law enforcement. Accordingly, because the trial court’s findings are unsupported by the record, the court erred in imposing a prison sentence rather than a nonstate prison sanction in accordance with section 775.082(10). Reversed.

Eric J Dirga, PA

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