                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

ROCHELLE HAWKINS,                     NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D14-3685

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed April 17, 2015.

An appeal from the Circuit Court for Leon County.
Terry P. Lewis, Judge.

Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and David Campbell, Assistant Attorney
General, Tallahassee, for Appellee.



WOLF, J.

      Appellant argues that the trial court erred in considering as prior record on

his Criminal Punishment Code scoresheet a crime for which he was convicted after

he committed the primary offense. We determine that the trial court properly

treated as prior record the criminal convictions which occurred prior to sentencing

in the instant case and affirm.
      Appellant was first arrested and charged with four offenses that are not the

subject of the current appeal, including armed robbery with a firearm, attempted

armed robbery with a firearm, aggravated battery with a deadly weapon, and the

burglary of a dwelling where a person was assaulted.

      Appellant was then released on pre-trial release. While on pre-trial release,

he was arrested and charged by information in the current case with possession of

cocaine with intent to sell or deliver, carrying a concealed firearm, and resisting an

officer without violence.

      Appellant was then sentenced to ten years’ imprisonment on his four original

charges. After being sentenced in that case, he made an open plea to the court in

the current case.

      The Criminal Punishment Code scoresheet for the current case included, as a

part of appellant’s prior record, the four prior offenses for which appellant was

convicted after he committed the current offenses. With that prior record, appellant

scored a lowest permissible prison sentence of 68.55 months.

      Appellant claims that the lower court improperly scored as prior record the

convictions for his initial four offenses, because, though he committed those

offenses prior to the commission of the current offenses, he was not convicted of

those four offenses until after the commission of the current offense.




                                          2
                               Prior Record Defined

      “Prior record” is defined both within the Florida Statutes and in the Florida

Rules of Criminal Procedure. The statutory definition of “prior record” is “a

conviction for a crime committed by the offender, as an adult or a juvenile, prior to

the time of the primary offense.” § 921.0021(5), Fla. Stat. (2013). Similarly, the

Florida Rules of Criminal Procedure define “prior record” as “any conviction for

an offense committed by the offender prior to the commission of the primary

offense.” Fla. R. Crim. P. 3.704(d)(14).

                                     Precedent

      In Thorp v. State, 555 So. 2d 362, 363 (Fla. 1990), the Florida Supreme

Court held that only past conduct must occur prior to the commission of the

primary offense in order to be considered “prior record.” However, the definition

of “prior record” in 1990 differed: it was defined then as “any past criminal

conduct on the part of the offender, resulting in conviction, prior to the commission

of the primary offense.” Fla. R. Crim. P. 3.701(d)(5).

      We determine the holding in Thorp, even though addressing somewhat

different language, still remains good law. In Thorp, the court stated, “There is

little reason why prior record should not include all past crimes for which

convictions have been obtained before sentencing.” Thorp, 555 So. 2d at 363.




                                           3
Nothing in the enactment of the Criminal Punishment Code or the new rule

language indicates that reasoning is any less valid.

      Further, in interpreting whether “prior record” as defined currently both by

Florida Statute and by the Florida Rules of Criminal Procedure encompasses a

conviction that occurs after the commission of the primary offense, it is useful to

utilize the last antecedent doctrine. The last antecedent doctrine provides that

“relative and qualifying words, phrases and clauses are to be applied to the words

or phrase immediately preceding, and are not to be construed as extending to, or

including, others more remote.” City of St. Petersburg v. Nasworthy, 751 So. 2d

772, 774 (Fla. 1st DCA 2000).

      Here, pursuant to statute, “prior record” is defined as “a conviction for a

crime committed by the offender, as an adult or a juvenile, prior to the time of the

primary offense.” § 921.0021(5), Fla. Stat. The last antecedent doctrine determines

that the qualifying phrase “prior to the time of the primary offense” modifies

“crime” rather than “conviction.” Thus, to be considered “prior record,” only the

crime must occur prior to the time of the primary offense.

      Similarly, pursuant to the Florida Rules of Criminal Procedure, which

defines “prior record” as “any conviction for an offense committed by the offender

prior to the commission of the primary offense,” the last antecedent doctrine

determines that the qualifying phrase “prior to the commission of the primary

                                          4
offense” modifies the word “offense” rather than the word “conviction.” Fla. R.

Crim. P. 3.704(d)(14). Thus, again, only the underlying offense must occur prior to

the commission of the primary offense.

      Therefore, we hold that as in Thorp, 555 So. 2d at 363, appellant’s prior

record was properly scored because appellant committed the prior record offenses

prior to committing the primary offense in the current case.

      For the foregoing reasons, we AFFIRM.

BENTON and RAY, JJ., CONCUR.




                                         5
