       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 26, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-2894
                         Lower Tribunal No. 15-14709
                             ________________


                             Prince Roy Secong,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Stephen T.
Millan, Judge.

      Aubrey Webb, P.A., and Aubrey Webb, for appellant.

     Pamela Jo Bondi, Attorney General, and Arlisa Certain, Assistant Attorney
General, for appellee.


Before LAGOA, FERNANDEZ and SCALES, JJ.

      SCALES, J.
      Prince Roy Secong appeals the trial court’s denial of his Florida Rule of

Criminal Procedure 3.800(b) motion to correct a sentencing error, which

challenged the trial court’s imposition of an upward departure prison sentence for

his violation of community control. For the following reasons, we affirm the trial

court’s imposition of an upward departure sentence, but vacate the general

sentence entered by the trial court and remand for entry of a separate, distinct

sentence for each of the underlying counts to which Secong previously pled guilty.

      On August 20, 2015, Secong pled guilty to five counts of uttering worthless

checks in violation of section 832.05(2) of the Florida Statutes. The lower court

sentenced Secong to two years of community control followed by three years of

supervised probation. The same day Secong was placed on community control,

Secong failed to report to his probation officer and to submit to electronic

monitoring, for which the State filed an affidavit of violation of community

control. The trial court issued a warrant for Secong’s arrest on August 27, 2015.

      On October 10, 2015, Secong was arrested in Broward County under a false

name for third degree grand theft and multiple counts of criminal possession/use of

another person’s identification, for which the State filed an amended affidavit of

violation of community control.     Based on this arrest, the amended affidavit

included as an additional violation that Secong had associated with persons




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engaged in criminal activity. At a November 5, 2015 hearing, Secong admitted to

all of the violations of his community control.

      Prior to the sentencing hearing, the State filed a memorandum in support of

an upward departure sentence. Among other things, the State’s memorandum

recounted: (1) the circumstances surrounding Secong’s prior convictions for

uttering worthless checks, including Secong’s brandishing a firearm to intimidate

one of the victims; (2) Secong’s numerous failures to comply with the

requirements of his community control, which occurred the instant he was released

from jail1; and (3) Secong’s October 10, 2015 arrest in Broward County under an

alias for grand theft and criminal possession/use of another person’s identification,


1With respect to the arrest warrant issued for Secong’s arrest after he violated his
community control, the State recited the following:

      A probation violation warrant was issued for the Defendant on August
      24, 2014 [sic], four days after he took a plea. The following day, the
      undersigned Assistant State Attorney received an email from the
      Defendant’s attorney indicating that the Defendant knew about the
      warrant and was going to turn himself in on August 27, 2015. The
      Defendant failed to turn himself in on that day. . . . Despite the fact
      that the Defendant owed the victim $21,750 and failed to appear
      numerous times in court to make good on his debt, the Defendant
      posted pictures of himself on his Instagram account with large stacks
      of $100 bills with the caption “#catchmeifyoucan”.

             The next time this court heard from the Defendant, he had fled
      from this jurisdiction and was arrested in Broward County under a
      false name of Christopher Carstens. . . . .

(Citations omitted).

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which the State asserted was part of an ongoing investigation into an organized

scheme to defraud cellular telephone providers and their customers.

         On November 19, 2015, the trial court imposed an upward departure

sentence, sentencing Secong to a term of fifteen years on the five counts of uttering

worthless checks, to run concurrently.2 On January 7, 2016, Secong filed his rule

3.800(b) motion to correct his sentence, arguing that the trial court had failed to

comply with the requirements of section 775.082(10) of the Florida Statutes by its

not making any written findings justifying the upward departure sentence.3 The

trial court denied Secong’s rule 3.800(b) motion and separately entered its Order of

Written Findings on Imposition of Incarceration Pursuant to F.S. 775.082(10),

nunc pro tunc to November 19, 2015, the date of sentencing.




2   The record reflects this was a general sentence.
3   This statute provides:

         (10) If a defendant is sentenced for an offense committed on or after
         July 1, 2009, which is a third degree felony but not a forcible felony
         as defined in s. 776.08, and excluding any third degree felony
         violation under chapter 810, and if the total sentence points pursuant
         to s. 921.0024 are 22 points or fewer, the court must sentence the
         offender to a nonstate prison sanction. However, if the court makes
         written findings that a nonstate prison sanction could present a
         danger to the public, the court may sentence the offender to a state
         correctional facility pursuant to this section.

§ 775.082(10), Fla. Stat. (2015) (emphasis added).

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      In the order, after reciting the same facts set forth by the State in its motion

for an upward departure sentence, the lower court determined that Secong poses a

danger to the public:

             The crimes to which the Defendant pled guilty in the instant
      case and the crimes he was arrested for in Broward County share a
      common theme of dishonesty and deception to the public. Defendant
      defrauded the victim in the instant case, Dr. Elias Tobon, out of over
      $20,000 via a ruse that involved depositing five worthless checks,
      amounting to over $30,000, into the victim’s bank account. Despite
      pleading guilty to the charges associated with his victimization of Dr.
      Tobon and committing to making restitution payments, the Defendant
      chose to victimize additional members of the community by using
      stolen identification to illegally purchase cellular phones. This type of
      identity theft victimizes multiple members of the public—the
      individual whose identification has been stolen, the proprietor of the
      establishment from which the phone was illegally purchased, and
      cellular customers as a whole, who are subject to price increases
      levied by their cellular company in order to offset the cost of financial
      losses from theft. Furthermore, each crime the Defendant commits
      potentially endangers the public as police resources are diverted to his
      location for an investigation, diminishing police protection in other
      parts of the community.

             The Defendant’s continued crimes of theft and fraud present a
      threat to the property and financial security of those in his community.
      The Defendant has demonstrated a pattern of behavior that indicates
      that he has no respect for this Court or the laws of this State, that he
      has no concern for the property rights or personal information of
      others, that he is incapable of complying with any court-imposed
      conditions that could preclude incarceration, and is undeterred from
      victimizing the people of his community for his own personal
      economic gain.

            THEREFORE IT IS ORDERED AND ADJUDGED that the
      term of incarceration imposed on the Defendant by the Judgment and
      Sentence in this case is necessary and appropriate to protect the
      Public/Community.


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      Because the record supports the trial court’s written determination that the

defendant poses a danger to the public, we conclude that the trial court did not err

by imposing an upward departure sentence in accordance with section

775.082(10). See Porter v. State, 110 So. 3d 962, 964 (Fla. 4th DCA 2013)

(affirming the trial court’s imposition of an upward departure sentence under

section 775.082(10) for a grand theft conviction that “was accomplished by means

of writing a worthless check,” where the trial court found the defendant posed a

threat to the public based upon the grand theft conviction and his extensive history

of committing financial crimes, including prior convictions on nine worthless

checks charges); McCloud v. State, 55 So. 3d 643, 645 (Fla. 5th DCA 2011) (“The

record supports the trial court’s implicit finding that McCloud is an habitual thief

and presents a threat to property. The fact that police resources are diverted to his

location also potentially endangers the public, as it diminishes police protection in

other parts of the community. . . . There is nothing in the language of section

775.082(10) that suggests that the Legislature intended to limit the meaning of

‘danger to the public’ only to persons threatening physical violence or injury.”).

We, therefore, affirm denial of Secong’s rule 3.800(b) motion.

      Because, however, it appears on the face of the record that the court below

erred by imposing a general sentence for the separate, distinct counts of uttering a

worthless check, we vacate Secong’s general sentence and remand for the limited


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purpose of entering separate, distinct sentences for each count. See Holmes v.

State, 100 So. 3d 281, 283 (Fla. 3d DCA 2012) (“[A] trial court may not impose a

single general sentence to cover multiple counts. . . . [T]he remedy for such an

error is not the withdrawal of the underlying plea, but a vacation of the general

sentence and entry of a separate, distinct sentence for each of the individual

counts.”); see also State v. Jimenez, 173 So. 3d 1020, 1024 n.4 (Fla. 3d DCA

2015) (“We note that on resentencing a court may impose consecutive sentences in

order to effect the intent of the original sentencing court.”).

      Affirmed in part, reversed in part, remanded with instructions.




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