       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             BYRON DAMES,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D13-4132

                            [February 24, 2016]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; William L. Roby, Judge; L.T. Case No. 2010CF000446B.

  Carey Haughwout, Public Defender, and Zainabu Rumala, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

    Appellant Byron Dames pled no contest to a charge of child abuse and
was given a sentence of one year in the county jail, followed by four years
of community control/probation with sex-offender conditions. In return
for the plea, the State dropped a charge of lewd or lascivious battery. Upon
his release from custody, Appellant engaged in behavior that led to three
charges of Violation of Probation (VOP). Following the third report of VOP,
Appellant came before the trial court, admitted to the violation and entered
an open plea. He was sentenced to nearly eighty months in prison. It is
the trial court’s sentence that is the focus of the instant appeal. Upon
review, we reject Appellant’s challenge and affirm the sentence.

                               Background

   In May 2010, Appellant was charged by information with lewd or
lascivious battery for an incident that allegedly involved Appellant sexually
penetrating the fifteen-year-old victim. That following December, the
information was amended, adding a second count, child abuse. The child
abuse charge made no mention of the sexual nature of the act or of any
sexual penetration. As part of a plea agreement with the State, Appellant
acknowledged he was charged with lewd or lascivious battery and agreed
to plead no contest to the child abuse charge. The parties agreed that the
trial court would have the discretion to withhold adjudication and the
State recommended a sentence of one year in county jail followed by four
years of supervision, along with other conditions. The agreement also
noted that the maximum penalty for the charge Appellant pled to was five
years’ incarceration and a $5000 fine, but the agreement also stated “BUT
NOTE: I understand that under the Criminal Punishment Code, the
statutory maximum penalty may not apply. The maximum possible
penalty would depend on how my prior record and present offenses are
scored, and may be higher than the statutory maximum.”

   Appellant’s initial sentencing score sheet showed a minimum sentence
of 66.9 months. This score included eighty points in the “victim injury”
category for sexual penetration. At the hearing on Appellant’s plea,
Appellant stated he understood that he was pleading no contest to a third-
degree felony punishable by up to five years in prison. Appellant never
expressly stipulated to any facts, but the trial court stated that it was “well
aware of the facts of the case” because it had conducted a number of prior
hearings on the case. The trial court then asked “Is there any objection or
correction to the criminal punishment code score sheet, which has 66.9
total sentence points or no, excuse me, lowest permissible prison
sentence?”, to which Defense Counsel replied “No, Your Honor.” The
Defense also waived presentence investigation. When Appellant testified
at sentencing, he agreed with the prosecutor that that “the bottom of the
guideline calls for you to go, to go to prison for over 5 years” and admitted
that the plea deal was conferring a benefit upon him. The trial court also
stated “the Legislature determined that based upon the charge of child
abuse when there’s sexual penetration it’s 66 plus months in the
Department of Corrections.” Appellant agreed that his probation would
include sex offender conditions. Appellant never questioned or objected to
any mention of penetration.

    Appellant was adjudicated guilty and was sentenced to a year in county
jail and placed on community control for the first two years of his five-year
probationary period. Within months of Appellant’s release from custody,
he twice violated probation. The second violation involved Appellant
hosting an underage drinking party. In June 2013, Appellant violated his
probation for a third time. He admitted the violation and entered an open
plea to the court. He was sentenced to 75.9 months in prison, the lowest
permissible prison sentence based on his scoresheet, which included
eighty points for penetration. On appeal, Appellant challenges his
sentence, in particular the inclusion of the eighty points for penetration.

                                      2
                                  Analysis

   The legality of a sentence is a question of law to be reviewed de novo.
Bradley v. State, 155 So. 3d 1248, 1249 (Fla. 4th DCA 2015).

   Appellant argues that his sentence was illegally increased by including
eighty “penetration points” on his scoresheet. He contends that Apprendi
v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133 S.
Ct. 2151 (2013), demonstrate that any fact increasing mandatory
sentences must be charged, submitted to a jury, and proven beyond a
reasonable doubt. Appellant also argues the assessment of penetration
points was erroneous because penetration is not an element of the charge
to which Appellant pled and was not alleged in the information for that
charge.

   The State responds that neither Apprendi nor Alleyne involved a
violation of probation and are thus distinguishable. It further argues that
Appellant waived his Apprendi jury trial rights by agreeing to judicial fact
finding in the event of a VOP hearing. We have no need to reach a
conclusion on those arguments, however, because we rely instead on the
State’s most compelling point: that at the initial sentencing hearing,
Appellant, through counsel, stated he had no objection or correction to the
criminal punishment code scoresheet that scored eighty points for
penetration and reflected a minimum sentence of 66.9 months.

    The trial court referred to Appellant’s crime as “the charge of child
abuse when there’s sexual penetration.” At the plea colloquy that followed,
Appellant acknowledged that he understood that the bottom of the
sentencing guidelines called for him to go to prison for over five years. At
the time of accepting the State’s generous plea bargain, Appellant was not
left with the false impression that the maximum sentence he could receive
was five years’ imprisonment. In fact, the record demonstrates that
Appellant affirmatively agreed to the inclusion of penetration points on the
scoresheet and that this enhancement was part of the bargain that allowed
him to plea down to the child abuse charge, albeit with sex offender
probation conditions which Appellant proceeded to violate.

                                Conclusion

   Under the circumstances set forth above, we find no violation of due
process with respect to the trial court’s sentence following Appellant’s third
violation of probation. Accordingly, we affirm.


                                      3
  Affirmed.

WARNER, STEVENSON and FORST, JJ., concur.

                         *       *          *

  Not final until disposition of timely filed motion for rehearing.




                                 4
