        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             CALVIN MELVIN,
                                Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D15-4071

                               [May 9, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Matthew I. Destry, Judge; L.T. Case No. 13-4752 CF10A.

  Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

   Appellant appeals his convictions and sentences for three counts of
providing false information to law enforcement in a missing child
investigation. Appellant raises several issues, including that the trial court
erred in denying his motion to dismiss and in finding that a non-state
prison sanction presented a danger to the public. We affirm the denial of
the motion to dismiss based on the plain language of the statute under
which appellant was charged. However, we reverse appellant’s sentence
because the trial court’s order was insufficient to support a finding that
appellant was a danger to the public. We affirm the remaining issues
without comment.

    Appellant was charged with three counts of providing false information
to law enforcement during the investigation of his missing child. He made
the allegedly false statements on January 9 and 10, 2013. On January 11
and 12, the child’s skeletal remains were found in the backyard of the
residence appellant had shared with Brittney Cierra, who was his girlfriend
and the deceased child’s mother. Forensics determined that the child had
died in July 2011 at the age of five months, around the same time the child
had gone missing.

    Appellant moved to dismiss the charges, arguing there was no nexus
between the false information he provided to law enforcement and the
child’s death since the child had died a year and a half before he gave the
false information. The state argued that the statute and jury instruction
did not contain any language requiring a causal connection. The trial
court agreed with the state and denied the motion to dismiss. Thereafter,
appellant entered an open plea to the charges, reserving the right to appeal
the denial of his motion to dismiss.

   Testimony during the sentencing hearing revealed that on January 9,
2013, Child Protective Services and a police officer went to appellant and
Cierra’s house to investigate the well-being of the children residing there.
According to a report, Cierra used drugs, verbally abused the children, and
threatened to physically harm them. At the house, when questioned about
the missing child’s whereabouts, appellant told the authorities that the
child was with the paternal grandmother. When the child could not be
located, a detective became involved in the case.

     The next day, during a five-hour long interview with the police,
appellant repeatedly stated that the child had been taken to a fire station.
Towards the end of the interview, appellant admitted he believed the
missing child was dead because he had an argument with Cierra and left
for a couple of months. When he came back, Cierra said, “[I]f you love me
. . . you will forgive me,” but would not tell him what she was referring to.
He told the detectives to “look under the ground” behind the house where
appellant used to live with Cierra and drew a map for the detectives. A
search of the backyard revealed the skeletal remains of the missing child.

   Appellant testified that he lied to the police because he was “in love,
and being stupid.” According to appellant, Cierra threatened to harm the
children every time he left her. Appellant also testified he told the police
that there was a spot in the backyard where Cierra would sit and cry.

   After the hearing, the trial court found that imposing a non-state prison
sanction on appellant would present a danger to the public. The court
stated:

      Through his lies and misdirection, the Defendant confused
      and delayed the investigation in the disappearance of a child,
      his child, who was ultimately found dead and buried in his
      own backyard. The Defendant’s actions put other young
      children at risk; most directly those who lived in the home

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      with him and his paramour. His actions would allow others
      to carry out violence against children with potential impunity.

The trial court sentenced appellant to consecutive terms of five years’
imprisonment on two counts and time served on the third count.

   “Because a motion to dismiss pursuant to rule 3.190(c)(4) requires the
lower court to make a pretrial determination of the law of the case when
the facts are not in dispute, the standard of review on appeal is de novo.”
State v. Benjamin, 187 So. 3d 352, 354 (Fla. 4th DCA 2016) (citation
omitted). “The interpretation of a statute is a purely legal matter and
subject to review de novo.” State v. Brock, 138 So. 3d 1060, 1062 (Fla. 4th
DCA 2014).

   Appellant was charged with three counts of violating section
837.055(2), Florida Statutes (2013). This statute was enacted in the wake
of the Casey Anthony case. In that case, the defendant made false
statements to the police during an investigation into the disappearance of
her young daughter. Anthony v. State, 108 So. 3d 1111, 1113 (Fla. 5th
DCA 2013). The child’s remains were later discovered near the defendant’s
family home. Id. at 1116. The defendant was convicted of four counts of
providing false information to a law enforcement officer, a first-degree
misdemeanor. Id. at 1117.

   As a result of Anthony, the legislature enacted section 837.055(2),
creating a third-degree felony when a person

      knowingly and willfully gives false information to a law
      enforcement officer who is conducting a missing person
      investigation involving a child 16 years of age or younger with
      the intent to mislead the officer or impede the investigation,
      and the child who is the subject of the investigation suffers
      great bodily harm, permanent disability, permanent
      disfigurement, or death . . . .

§ 837.055(2), Fla. Stat. (2013).

   Thus, the plain language of the statute requires two elements: (1)
knowingly and willfully giving false information to law enforcement during
a missing child investigation, and (2) the child suffering great bodily harm,
permanent disability, permanent disfigurement, or death. See id. In this
case, both elements of the statute were met. As such, we find the trial
court did not err in denying the motion to dismiss based on the plain
language of the statute. See Schoeff v. R.J. Reynolds Tobacco Co., 232 So.

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3d 294, 313 (Fla. 2017) (“When the language of the statute is clear and
unambiguous and conveys a clear and definite meaning, there is no
occasion for resorting to the [secondary] rules of statutory interpretation
and construction; the statute must be given its plain and obvious
meaning.”) (Lawson, J., concurring) (citation omitted).

   As to the sentencing issue, because appellant scored less than twenty-
two points on the sentencing guidelines, the trial court was statutorily
required to impose a non-state prison sanction unless the court made
written findings that a non-state prison sanction would present a danger
to the public. See § 775.082(10), Fla. Stat. (2013). In considering the
propriety of an upward departure from a non-state prison sanction, a court
may consider “criminal history, victim injury, and propensity for one to
commit future crimes.” Reed v. State, 192 So. 3d 641, 646 (Fla. 2d DCA
2016).

   In Jones v. State, 71 So. 3d 173 (Fla. 1st DCA 2011), the trial court
found the defendant a danger to the public after he was convicted of
driving while his license was suspended. The trial court reasoned that the
defendant was likely to continue to drive without a license, which would
endanger the public because it made it more likely he would attempt to
elude law enforcement officers. The First District reversed, finding that
“the court did not make sufficient findings . . . that imprisonment within
the state prison system rather than the county jail would better deter him
from continued unlicensed driving.” Id. at 176.

   In contrast, in Porter v. State, 110 So. 3d 962 (Fla. 4th DCA 2013), this
court upheld a prison sentence for a defendant convicted of grand theft
because the trial court articulated sufficient facts to sustain the requisite
written finding that the defendant was a danger to the public. The trial
court found, inter alia, that the theft was accomplished by writing a
worthless check, which was consistent with the defendant’s lifelong modus
operandi; that the defendant caused significant financial and emotional
damage; and that he would continue to commit financial crimes against
the public if not incarcerated. Id. at 964. Thus, the Porter court made
sufficient written findings as to “criminal history, victim injury, and
propensity for one to commit future crimes.” See Reed, 192 So. 3d at 646.

   Like in Jones, and unlike in Porter, here the trial court’s written order
did not articulate sufficient facts to sustain a finding that appellant was a
danger to the public as required by the statute. The trial court did not
explain how appellant’s actions “put other young children at risk.” Nor
did the trial court state how the lies appellant told on January 9 delayed
the investigation when he confessed the very next day and the remains

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were found a day or two later. The trial court also did not make any
findings as to appellant’s lack of any criminal history or propensity to
commit future crimes. Because the trial court did not make sufficient
findings that imprisonment within the state prison system rather than
county jail or another potential non-state prison sanction would deter him
from committing future crimes, we reverse appellant’s sentence and
remand for the trial court to impose a non-state prison sanction. See id.
at 648.

   Affirmed in part, reversed in part.

WARNER, J., concurs.
GROSS, J., concurs specially with opinion.

GROSS, J., concurring specially.

   I concur in the majority opinion. One possible reading of section
837.055(2), Florida Statutes (2013), is that the child who is the subject of
investigation suffers harm after the giving of the false information, without
there being any causal connection. If a criminal statute is ambiguous, we
would normally apply the rule of lenity in section 775.021(1), Florida
Statutes (2017), and construe the statute “most favorably to the accused.”

    As the majority notes, the legislature amended the statute in response
to the Casey Anthony case, where the death of a child preceded a mother’s
giving of false information. We know this from the legislative history. See
Florida Staff Analysis, H.B. 37, 4/10/2012. “Although not determinative
of legislative intent, staff analyses are one touchstone of the collective
legislative will.” Sun Bank/South Florida, N.A. v. Baker, 632 So. 2d 669,
671 (Fla. 4th DCA 1994). We should not ignore the clear legislative history
and engage in a hypertextual analysis of the statute to arrive at a result
that the legislature sought to avoid in enacting the statute.

                            *            *     *

   Not final until disposition of timely filed motion for rehearing.




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