         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-4743
                 _____________________________

TYRONE RANDY JOHNSON JR.,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Alachua County.
James M. Colaw, Judge.

                       December 10, 2018


PER CURIAM.

     Appellant, Tyrone Randy Johnson, Jr., appeals his sentence
and argues that the trial court erred in denying his motion to
correct a sentencing error filed pursuant to Florida Rule of
Criminal Procedure 3.800(b)(2) because its finding that he posed a
danger to the public warranting an enhanced sentence under
section 775.082(10), Florida Statutes (2017), was insufficient and
not supported by the record. For the following reasons, we agree
and, therefore, reverse and remand for resentencing.

     In October 2016, Appellant was convicted of acting as a bail
bond agent with a suspended or revoked license, theft, and grand
theft of a motor vehicle. The trial court sentenced Appellant on
the bail bond and grand theft offenses to concurrent terms of
fourteen months’ imprisonment in the Department of Corrections
to be followed by forty-two months’ probation and to time served
on the theft offense. On direct appeal, we vacated Appellant’s
convictions for “grand theft auto and theft of property,” affirmed
the conviction on the bail bond offense, and ordered that Appellant
be resentenced accordingly. Johnson v. State, 228 So. 3d 1164,
1168 (Fla. 1st DCA 2017).

     On resentencing, Appellant scored a total of 4.6 points for the
bail bond offense on his criminal punishment code scoresheet. The
scoresheet read in part, “If total sentence points are less than or
equal to 44, the lowest permissible sentence is any non-state prison
sanction. If the total sentence points are 22 points or less, see
Section 775.082(10), Florida Statutes, to determine if the court
must sentence the offender to a non-state prison sanction.” During
the resentencing hearing, the State requested “the previous
sentence in the same way.” Defense counsel requested that the
trial court sentence Appellant to “county jail as he now scores 4.6
points; and, therefore, would be presumed to get a non-prison
sanction.” Defense counsel explained, “He has served 383 days as
of today’s date, so the Court could not even sentence him to the
time served that he has under the current scoresheet.” The trial
court stated:

         I’m going to adjudicate you guilty of the offense of
    acting as a bail bond agent with a suspended or revoked
    license.    I’m going to sentence you to 383 days
    incarceration, give you credit for the 383 days you have
    time served. So your incarcerative sentence is completed
    as of today. . . .
         That’ll be followed by the 42 months of supervised
    probation. . . .

Defense counsel requested clarification “because 383 days would
be a Department of Corrections sentence and not a County Jail
sentence.” When asked if it was sentencing appellant to the
Department of Corrections, the court replied, “I’m sentencing him
to 383 days, and giving him credit for that amount that he’s
already served; that’s correct.” When asked if that would count as
a “Department of Corrections release for the purposes of PRR
[prison releasee reoffender sentencing for any future offenses],”

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the court replied, “It would.” After defense counsel objected under
section 775.082(10) “that he scores less than 22 points and cannot
be sentenced to the Department of Corrections as he stands at
resentencing,” the court stated, “For all the reasons that have been
previously articulated by the Court, both at the previous hearing
on your Motion for Pretrial Release, it’s for all those reasons that
I do find that any other sentence other than what the Court has
imposed would represent a risk to the community . . . .” 1

     In its subsequent Order Making Written Findings that a
Nonstate Prison Sanction Would be a Danger to the Public, the
trial court set forth in part:

         Here, a non-state prison sanction for defendant could
    present a danger to the public. First, as the record
    reflects, the defendant had his bond license revoked in
    2012. Nonetheless, he continued to act as, and was
    convicted of, Acting as a Bail Bond Agent With a Revoked
    License. The defendant was out on bond during the
    pendency of this case pre-trial. He was routinely late for
    court appearances. On September 7, 2016, the defendant
    signed a notice to appear in court on September 19, 2016
    at 9:00 a.m. Defendant failed to appear in court on
    September 19, 2016 at 9:00 a.m. and the court issued a
    capias for his arrest. He did ultimately appear at
    approximately 11:15 a.m. and was taken into custody at
    that time.      Additionally, prior to sentencing, the
    defendant and his attorney requested that a Pre-
    Sentence Investigation (PSI) report be completed. That
    report was completed on November 10, 2016 and was
    considered by the court at the time of the defendant’s
    sentencing. The PSI indicated that the defendant and/or
    his mother had largely refused to cooperate with the
    investigation that he and his attorney had requested. As


    1  During the prior hearing on Appellant’s motion for pretrial
release, the trial court found that Appellant was a flight risk, he
had established a track record of not complying with orders, he lost
his license as a bail bondsman due to his prior criminal offenses,
and he did not have a significant support system.

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    a result, much of the information obtained could not be
    verified or corroborated. The PSI made reference to the
    defendant behaving in a paranoid fashion. The PSI also
    outlined defendant’s prior probation sentence that he
    received in case 2011-CF-3029-A. In that case, the
    defendant was alleged to have violated his probation on
    multiple occasions including multiple violations for
    illegal drug use. The PSI had recommended a sentence
    of one (1) year in jail followed by probation. When
    viewing this case, and Defendant’s history, a reasonable
    person cannot conclude that he will not continue to
    commit crimes whenever he is released from
    incarceration. Furthermore, prior county jail sentences
    have had no effect on deterring Defendant from
    committing additional offenses. The criminal justice
    system has failed to protect the public from the
    defendant’s criminal conduct. It is unclear whether the
    defendant has the ability to stop his criminal behavior. It
    is clear to this Court that he could present a danger to the
    public and that a county jail sentence does not suffice as
    the appropriate punishment for him.

Pursuant to the written judgment, Appellant was “hereby
committed to the custody of the Department of Corrections.”

    During the pendency of his appeal, Appellant moved to correct
what he claimed was an illegal sentence based upon the trial
court’s enhancement. The trial court denied the motion without
comment. This appeal followed.

     The State argues, and the dissent agrees, that the issue in this
appeal is moot given that Appellant has already served the
entirety of his sentence. In Miller v. State, 79 So. 3d 209, 209 (Fla.
1st DCA 2012), we dismissed the appeal because the appellant,
who appealed the order revoking his probation and the sentence of
five years’ imprisonment, had already served his sentence, which
made the appeal moot. Similarly, in Jones v. State, 239 So. 3d
1294, 1294 (Fla. 1st DCA 2018), we dismissed an appeal after
noting that the appellant appealed her sentence and argued only
that the trial court considered improper factors when imposing an
eight-month jail sentence and setting forth, “But because she has

                                  4
not challenged her conviction – only her sentence – and because
she has already served that sentence, this appeal has become
moot.” Importantly, for purposes of this appeal, we noted that
although the appellant in Jones asserted that the appeal was not
moot because a possibility existed that adverse collateral legal
consequences would befall the appellant, the appellant had not
articulated what those consequences might be, and we could
conceive of none. Id. Here, in contrast, adverse legal consequences
could befall Appellant as a result of his sentence.

     As Appellant argues, there is a conflict among Florida’s
appellate courts as to whether county jail time triggers PRR
status. In State v. Wright, 180 So. 3d 1043, 1044 (Fla. 1st DCA
2015), we found the Fifth District’s reasoning in Louzon v. State,
78 So. 3d 678 (Fla. 5th DCA 2012), and the Fourth District’s
reasoning in Taylor v. State, 114 So. 3d 355 (Fla. 4th DCA 2013),
persuasive in holding that the appellant, who was committed to
the custody of the Department of Corrections and whose release
facility was listed as the Department’s central office, should be
considered a PRR notwithstanding that he was sentenced to time
served and physically walked out of a county jail. In Lewars, DOC
#Y44737 v. State, No. 2D15-3471, 2017 WL 1969691, at *2 (Fla. 2d
DCA May 12, 2017), the Second District held that the appellant,
who was sentenced to two terms of twenty-four months’
imprisonment and awarded 766 days’ jail credit and, thus, walked
out of the jail a free man instead of being transported to a
Department of Corrections’ facility, did not qualify as a PRR given
that a PRR is defined as a defendant who has committed an
enumerated offense “within 3 years after being released from a
state correctional facility operated by the Department of
Corrections.” The Second District certified conflict with Wright,
Taylor, and Louzon. Id. at *6. The Florida Supreme Court
accepted jurisdiction in September 2017. See State v. Lewars, No.
SC17-1002, 2017 WL 4022360, at *1 (Fla. Sept. 13, 2017).

     The State contends that the conflict in the appellate courts
will have no effect on Appellant since he served his term of
incarceration not in a county jail but in the Department of
Corrections. As Appellant argues, however, “[t]he entire point of
his appeal is that because on resentencing the trial court imposed
an illegal sentence, i.e., 383 days rather than 364 days, or a prison

                                 5
sentence rather than a jail sentence, [he] will be illegally subject
in the future to [PRR] classification.” Indeed, when asked if the
383 days “Department of Corrections sentence” “would count then
as a Department of Corrections release for the purposes of PRR,”
the trial court replied, “It would.” The State does not explain how
Appellant could have been subject to PRR sentencing in the future
had the trial court committed him “to the custody of the Alachua
County Sheriff’s Office, Department of the Jail,” which was an
option on the scoresheet. Given such, we do not believe that
Appellant’s challenge to the trial court’s findings is moot.

     Turning to the merits of this appeal, section 775.082(10),
Florida Statutes (2017), provides:

    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.

The legality of a sentence presents a question of law reviewable de
novo. Washington v. State, 199 So. 3d 1110, 1111 (Fla. 1st DCA
2016).

    Appellant argues on appeal that the trial court erred in
denying his rule 3.800(b)(2) motion because the court’s finding that
he posed a danger to the public if not incarcerated was not
supported by the record. 2 A trial court’s findings of dangerousness


    2  Notably, Appellant did not argue the constitutionality of
section 775.082(10) either below or on appeal. See Hughbanks v.
State, 190 So. 3d 1122, 1123 (Fla. 2d DCA 2016) (“In order to
properly preserve an as-applied constitutional challenge for
appeal, a defendant must timely raise the issue for the trial court’s
consideration.”); Lamore v. State, 983 So. 2d 665, 668 (Fla. 5th
                                 6
pursuant to section 775.082(10) must be in writing and must be
supported by the record; speculative findings are insufficient.
Jones v. State, 71 So. 3d 173, 175-76 (Fla. 1st DCA 2011). In
considering an upward departure pursuant to section 775.082(10),
courts have looked to factors such as criminal history, victim
injury, and propensity to commit future crimes. Reed v. State, 192
So. 3d 641, 646 (Fla. 2d DCA 2016). In finding an offender to be a
danger to the public, the trial court must do more than merely
recite acts inherent in the crimes of conviction and “must make
findings to establish a nexus between sentencing an offender to a
nonstate prison sanction and the resulting danger that nonstate
prison sanction could present the public.” Id. “[A] danger to the
public does not require a history of violence and can be based on
economic or other types of harm.” Jones, 71 So. 3d at 176.

     In Jones, the appellant was sentenced to three years in prison
for driving while his license was cancelled, suspended, or revoked
upon the trial court finding that a non-state prison sentence would
present a danger to the public. Id. at 174. The trial court found
that the appellant had evinced an unwillingness to discontinue
driving without a driver’s license despite repeated punishment,
driving without a license endangers the public, the appellant’s
insistence on driving without a license required that he drove
without insurance, and his unavailability to drive due to
incarceration in state prison was the only method open to the court
for the protection of the public. Id. In remanding for a non-state
prison sanction, we agreed with the appellant that the trial court’s
findings were not supported by the record and explained:

    Although Appellant’s history of driving without a license
    arguably supports the trial court's finding that he will
    continue to do so, the court did not make sufficient


DCA 2008) (noting that a “constitutional application of a statute to
a particular set of facts” must be raised at the trial level); see also
Booker v. State, 244 So. 3d 1151, 1156 (Fla. 1st DCA 2018) (holding
that the last sentence of section 775.082(10), which allowed the
trial court to sentence the appellant to prison rather than a non-
state prison sanction based upon its finding that he posed a danger
to the public, was unconstitutional as applied to the appellant).

                                  7
    findings and the record does not suggest that
    imprisonment within the state prison system rather than
    the county jail would better deter him from continued
    unlicensed driving. Nor is there any record support for
    the court’s implicit finding that one year of incarceration
    in the county jail would constitute a significantly lesser
    deterrent for Appellant than three years in state prison.
    The trial court’s additional findings are speculative at
    best because it does not appear from the record that
    Appellant has a history of vehicle accidents or engaging
    in high speed chases with law enforcement.

Id. at 176.

     In Reed, the appellant was convicted of eleven counts of
animal fighting and baiting and eleven counts of animal cruelty
and was sentenced to twenty-five years’ imprisonment upon the
trial court’s finding that he posed a danger to the public. 192 So.
3d at 642-43.       The trial court based its determination of
dangerousness on the findings that the dogs found in the
appellant’s home were kept in horrible conditions, the dogs were
tethered with heavy chains, blocks, and anchors, the dogs were
confined in very small areas, paperwork showed that the bloodline
of the dogs came from fighting dogs, expert testimony proved the
aggressive nature of the dogs towards other animals and people,
and the evidence was clear that the appellant was a professional
dog raiser and dog fighter. Id. at 644. The Second District
reversed the appellant’s prison sentence upon concluding that the
trial court’s written findings merely recited the charges against
him and some attendant details and failed to develop a nexus
between a non-state prison sanction and the resulting danger he
could present to the public. Id. at 647.

     Subsequently, in Johnson v. State, 219 So. 3d 167, 169 (Fla.
1st DCA 2017), we relied on Jones and Reed in vacating the
appellant’s upward departure prison sentence pursuant to section
775.082(10). There, the appellant was convicted of fleeing or
attempting to elude a law enforcement officer, but was acquitted
of aggravated battery on the same officer. Id. In finding that the
appellant was a danger to the public and in imposing a prison
sentence, the trial court found that the appellant was released on

                                8
bond for another charge at the time he committed the offense in
the case, the appellant was being taken into custody for failing to
appear in court at the time he committed the offense at issue, the
appellant represented a specific danger to a certain officer, the
appellant represented a danger to other traffic; while the appellant
was released on bond in the current case, he violated probation in
a separate offense and pled to an independent new law offense, and
the appellant was currently serving an independent prison
sentence for a violation of probation. Id. at 169. We concluded
that “none of the six grounds stated by the trial court explain how
a non-state prison sanction, such as jail, could present a danger to
the community, as required by the plain meaning of the statute as
well as by subsequent case law,” and we felt constrained to reverse
“[g]iven the lack of a ‘nexus.’” Id.

     In this case, the trial court found that a non-state prison
sanction could present a danger to the public because: (1)
Appellant continued to act as a bail bond agent after he had his
license revoked in 2012; (2) he was late for court appearances; (3)
he failed to appear on September 19, 2016; (4) his PSI report
indicated that he and/or his mother had largely refused to
cooperate with “the investigation that he and his attorney had
requested;” (5) the PSI made reference to Appellant behaving in a
paranoid fashion; and (6) the PSI outlined Appellant’s prior
probation sentence and noted that he was alleged to have violated
his probation on multiple occasions including multiple violation for
illegal drug use. The trial court determined that a reasonable
person could not conclude that Appellant would not continue to
commit crimes whenever he is released from incarceration and
that any prior county jail sentence had no effect on deterring
Appellant from committing additional offenses.

     As Appellant contends, the trial court impermissibly relied, at
least in part, upon the crime at issue when it noted that Appellant
continued to act as a bail bond agent after he had his license
revoked. As Appellant also argues, there is no established
connection between him appearing late for court and his danger to
the public. The same could be said of Appellant’s failure to appear
and failure to cooperate with an investigation. As for the trial
court’s reliance upon the fact that Appellant, in a separate case,
was alleged to have violated his probation on multiple occasions,

                                 9
including multiple violations for illegal drug use, the State argues
that the “prior VOPs were relevant insofar as they pertained to
Appellant’s amenability to probation.” However, whether or not
that is true does not change the fact that, like the situation in
Jones, there is no record support for the court’s implicit finding
that one year of incarceration in the county jail, or 364 days as
requested by the defense, would constitute a significantly lesser
deterrent for Appellant than the 383 days the trial court imposed.
Stated differently, the trial court, like the court in Reed, failed to
develop a nexus between a non-state prison sanction and the
resulting danger Appellant could present to the public. Like the
situation in Johnson where we found that none of the six grounds
stated by the trial court explained how a non-state prison sanction,
such as jail, could present a danger to the community, none of the
trial court’s findings in this case explained how sentencing
Appellant to a year or less in jail could present a danger to the
community, especially given the fact that Appellant was awarded
time served for the entirety of his 383-day sentence.

     The State argues on appeal that this case is more
appropriately compared to Porter v. State, 110 So. 3d 962, 963 (Fla.
4th DCA 2013), where the Fourth District affirmed a sentence
enhancement under section 775.082(10). There, the trial court,
after noting that the appellant was convicted by a jury for grand
theft, found that the theft, consistent with the appellant’s life-long
modus operandi, was accomplished by means of writing a
worthless check, the appellant, who was in his mid-sixties, had
engaged in financial fraud his entire adult life, the financial and
emotional damage in the case was significant, prior sentences had
no effect on deterring the appellant from committing financial
crimes, the criminal justice system had continuously failed to
protect the public from the appellant’s financial conduct, the public
was entitled to be secure in its financial dealings, the appellant
was a danger to the public in the past, was presently a danger to
the public, and would be a danger to the public in the future when
not incarcerated. Id. at 964.

    Porter is distinguishable from this case. Not appearing for
court or participating in investigations is far different from
spending one’s entire adult life engaging in a crime like financial
fraud. Moreover, there is no evidence in this case that Appellant

                                 10
had a history of acting as an unlicensed bail bond agent, aside from
the crime for which he was convicted.

    Accordingly, because the trial court erred in imposing an
enhanced sentence in this case, we reverse Appellant’s sentence
and remand for resentencing. On remand, the trial court must
impose a non-state prison sanction. See Johnson, 219 So. 3d at 170
(remanding for imposition of a non-state prison sanction and
noting that the trial court was not permitted to articulate new
reasons for a departure sentence); Jones, 71 So. 3d at 176 (same).

    REVERSED and REMANDED for resentencing.

WOLF and LEWIS, JJ., concur; ROWE, J., dissents with opinion.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

ROWE, J., dissenting.

     I dissent from the majority’s decision to reverse and remand
for resentencing in this case. I would dismiss the appeal as moot.
Johnson was sentenced to 383 days and given credit for the 383
days he had already served in a Department of Corrections’
facility. Johnson argues that his appeal is not moot because his
sentence should never have been imposed. However, it is the
decision in Booker v. State, 244 So. 3d 1151, 1156 (Fla. 1st DCA
2018), which prevented the imposition of his sentence, and he does
not raise this as a reason for reversal on appeal. Because he is not
challenging his conviction and has served his sentence, Johnson’s
challenge to the propriety of the trial court’s sentencing decision
has become moot. See Jones v. State, 239 So. 3d 1294, 1294 (Fla.
1st DCA 2018) (dismissing an appeal that challenged the
defendant’s sentence, not her conviction, because the defendant
had already served her sentence); Miller v. State, 79 So. 3d 209,
211 (Fla. 1st DCA 2012) (dismissing an appeal of an order revoking
probation and sentencing the defendant to five years’

                                11
imprisonment because the defendant had already served his
sentence).

               _____________________________


Andy Thomas, Public Defender, M. J. Lord, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Steven E. Woods, Assistant
Attorney General, Tallahassee, for Appellee.




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