          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                        ANTONIO L. THOMPSON,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-3871

                            [February 27, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara Anne McCarthy, Judge; L.T. Case No. 09-
7084CF10A.

  Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley B. Moody, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

    The defendant appeals an order denying his Rule 3.800(b)(2) motion to
correct a sentencing error. He argues his scoresheet improperly included
twelve, rather than six, points for a community sanction violation as a
violent felony offender of special concern (“VFOSC”), and four points for a
legal status violation. We agree in part. We reverse and remand the case
to the trial court to consider the statutory factors and make the statutorily
mandated written finding that the defendant was a danger to the
community.

   The defendant initially pleaded nolo contendere to the lesser charge of
aggravated child abuse under section 827.03(2), Florida Statutes (2007),
in exchange for a negotiated sentence of five years in prison with credit for
483 days’ time served and ten years’ probation. The State nolle prossed a
second count.      The court imposed standard probation conditions,
including that the defendant “live without violating the law.”

   The probation violation alleged the defendant violated the law by having
images of child pornography in his possession. At the hearing, a probation
officer testified that the defendant was instructed on the probation
conditions three times. The defendant signed the probation order.

    A detective testified that he received two cyber tips from the National
Center for Missing and Exploited Children. The cyber tips originated from
Google and referenced a Gmail account. When he received a second cyber
tip, he reviewed the videos and images and found they contained child
pornography.

   The detective obtained a search warrant to obtain account details.
Once he received that data, he observed additional child pornography
within the account. The detective determined the defendant owned the
account.

    The police executed a search warrant and performed an administrative
search of the defendant’s residence. The detective seized the defendant’s
cell phone. A digital forensics examiner retrieved and analyzed the cell
phone’s contents and recovered several images and videos containing child
pornography.

   The defendant was arrested and interviewed. He consented to the
search of his phone. He initially denied downloading the images. But,
when the detective suggested he might have to show the images to family
members to see if they depicted someone the defendant knew, he admitted
sending himself the child pornography images.

   Defense counsel argued the defendant intended to download adult porn
and accidentally downloaded the child pornography. Defense counsel
argued the defendant only admitted possessing the images after the
detective threatened to show them to his family.

   The trial court found the defendant violated his probation, revoked his
probation, and found the greater weight of the evidence supported a
finding of a willful and substantial violation.

   At the sentencing hearing, the scoresheet showed a lowest permissible
prison sentence of sixty months. The defendant expressed remorse, and
claimed that he was very sorry for his mistake. The State asked for thirty
years, and argued the defendant was nothing but a danger to children.
Defense counsel requested a five-year sentence and objected to the four-
point assessment for a legal status violation. The trial court sentenced the
defendant to thirty years in state prison with credit for time served.


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   The defendant filed a Rule 3.800(b)(2) motion, and argued that his
scoresheet included twelve, rather than six, points for a community
sanction violation because he was improperly designated as VFOSC. He
argued the State did not request the VFOSC designation, and the court
did not follow the statute in designating him as such. He also argued the
scoresheet improperly added four points for a legal status violation.
Because the trial court did not rule on the motion within sixty days, it was
deemed denied.

   The defendant now appeals.

  We have de novo review of the claimed scoresheet error. Somps v. State,
183 So. 3d 1090, 1092 (Fla. 4th DCA 2015).

    The defendant continues to make the same arguments on appeal: (1)
the scoresheet improperly contained twelve points for his designation as a
VFOSC; and (2) the trial court failed to comply with the statutory
requirements of section 948.06(8), Florida Statutes (2015). He further
argues he is entitled to a new sentencing hearing in which the court
considers the statutory factors in determining whether he poses a danger
to the community and makes the required written finding.

   Section 948.06(8) provides:

      (b) For purposes of this section . . . the term “violent felony
      offender of special concern” means a person who is on:
          ...

      3. Felony probation . . . and is found to have violated that
      probation . . . by committing a qualifying offense;
         ...

      (c) For purposes of this section, the term “qualifying offense”
      means any of the following:
          ...

      9. Computer pornography under s. 847.0135(2) or (3), [or]
      transmission of child pornography under s. 847.0137 . . . .
         ...

      (e) If the court, . . . determines that a violent felony offender of
      special concern has committed a violation of probation . . . the
      court shall:


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      1. Make written findings as to whether or not the violent
      felony offender of special concern poses a danger to the
      community. In determining the danger to the community
      posed by the offender’s release, the court shall base its
      findings on one or more of the following:

      a. The nature and circumstances of the violation and any new
      offenses charged.

      b. The offender’s     present   conduct,     including criminal
      convictions.

      c. The offender’s amenability to nonincarcerative sanctions
      based on his or her history and conduct during the probation
      . . . from which the violation hearing arises and any other
      previous supervisions, including disciplinary records of
      previous incarcerations.

      d. The weight of the evidence against the offender.

      e. Any other facts the court considers relevant.

      2. Decide whether to revoke the probation or community
      control.

      a. If the court has found that a violent felony offender of
      special concern poses a danger to the community, the court
      shall revoke probation and shall sentence the offender up to
      the statutory maximum, or longer if permitted by law.

      b. If the court has found that a violent felony offender of
      special concern does not pose a danger to the community, the
      court may revoke, modify, or continue the probation or
      community control or may place the probationer into
      community control as provided in this section.

§ 948.06(8), Fla. Stat. (2015) (emphasis added).

    This case is similar to Whittaker v. State, 223 So. 3d 270 (Fla. 4th DCA
2017). There, the defendant pled nolo contendere to aggravated battery
with a deadly weapon and was placed on probation. Id. at 272. The State
sought revocation of probation based on six violations including resisting
an officer without violence. Id. The court conducted a “danger hearing.”
Id.

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   The defendant’s probation officer testified that he didn’t think
Whittaker was a danger to the community. Id. The court found him not
to be a danger. Id. The defendant then entered an open plea to the alleged
violations. Id.

   The scoresheet included twelve points for violation of probation as a
VFOSC, to which the defense objected. Id. The court sentenced the
defendant to forty-nine months in prison. Id. The disposition order
indicated the defendant was not a danger and that his probation was
revoked. Id. However, it did not indicate that the court had considered
any of the factors in section 948.06(8)(e). Id. And, the court did not enter
a written order specifying the conditions violated. Id. The defendant filed
two Rule 3.800(b)(2) motions to correct sentencing errors, which were
denied. Id.

   On appeal, Whittaker argued the trial court failed to comply with
section 948.06(8). Id. He argued the court did not make the “danger”
finding using the enumerated factors, and the order designating him as a
VFOSC failed to comply with the statutory requirements. Id. at 272-73.

    We agreed and held the disposition order revoking his probation was
deficient. Id. at 275. Although the defendant qualified as a VFOSC, the
trial court had not made mandatory written findings regarding whether
the defendant posed a danger to the community and failed to specify which
conditions had been violated. Id. at 275-76. The remedy: reverse and
remand for another sentencing hearing to allow the court to make the
necessary written findings under section 948.06(8)(e). Id. at 276.

    Here, as in Whittaker, the defendant qualified as a violent felony
offender of special concern under section 948.06(8)(b)3 because he was on
felony probation and violated probation by committing the qualifying
offense of transmission of child pornography. His designation as a VFOSC
was imposed as a matter of law; it did not depend on a finding that he
posed a danger to the community. Thus, the twelve points were correctly
added to his scoresheet.

    However, under the second part of the statute, the court was required
to consider the factors under section (e) and make written findings as to
whether the defendant was a danger to the community. In this regard, the
trial court failed. We must therefore reverse and remand the case for a
new sentencing hearing.

   As the State concedes, the scoresheet should not have included four

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additional points for a legal status violation. Nevertheless, the error was
harmless as the trial court imposed the maximum sentence, rendering the
four points irrelevant. State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).
Because we must remand the case for a new sentencing hearing for the
court to consider the statutory factors and make the required findings, the
trial court should eliminate the four points.

   Reversed and Remanded.

LEVINE and FORST, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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