         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D15-3134
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PATRICK SCOTT,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Leon County.
James O. Shelfer, Judge.

                       December 14, 2018


PER CURIAM.

     In this direct appeal, we affirm Appellant’s convictions and
sentences for sexual battery and possession of cocaine. We write
only to address Appellant’s claim that the trial court erred in
scoring his prior Georgia burglary conviction as burglary of an
occupied structure.

     Below and on appeal, the parties disagree whether the
underlying facts establish that the store in Georgia was occupied
when Appellant burglarized it. However, “neither the trial court
nor this court is permitted to consider underlying facts in
determining the existence of an analogous Florida offense.” Snipes
v. State, 793 So. 2d 1107, 1108 (Fla. 1st DCA 2001). Instead, only
the elements of the out-of-state crime should be considered in
determining whether a conviction is analogous to a Florida crime.
Dautel v. State, 658 So. 2d 88, 91 (Fla. 1995); Bracey v. State, 109
So. 3d 311, 314 (Fla. 2d DCA 2013); Michaud v. State, 2 So. 3d 375,
376 (Fla. 4th DCA 2008); Montoure v. State, 880 So. 2d 793, 794
(Fla. 1st DCA 2004); Knarich v. State, 866 So. 2d 165, 168 (Fla. 2d
DCA 2004); Snipes, 793 So. 2d at 1108; Holybrice v. State, 753 So.
2d 621, 623 (Fla. 4th DCA 2000); Lee v. State, 675 So. 2d 682, 683
(Fla. 1st DCA 1996).

    Appellant has not argued below or on appeal that the trial
court erred in relying on underlying facts to score the Georgia
burglary conviction or that the elements of the out-of-state crime
were not analogous to the Florida offense of burglary of an occupied
structure. Here, the court will not reverse the trial court’s ruling
on grounds neither raised nor argued by the parties. Accordingly,
we affirm.

    AFFIRMED.

BILBREY, WINOKUR, and JAY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Michael Ufferman of Michael Ufferman Law Firm, P.A.,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Amanda D. Stokes,
Assistant Attorney General, Tallahassee, for Appellee.




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