                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

TONY MURPHY,                          NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D13-5178

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed April 7, 2015.

An appeal from the Circuit Court for Gadsden County.
Jonathan E. Sjostrom, Judge.

Nancy A. Daniels, Public Defender, and Ross Marshman, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney
General, Tallahassee, for Appellee.




SWANSON, J.

      In this appeal from his convictions and sentences for felony fleeing or

attempting to elude a law enforcement officer and driving while license suspended

or revoked, appellant claims the trial court committed reversible error when, after

one juror expressed reservations about the guilty verdict on the felony fleeing
charge, the court continued to poll the jurors before directing them to resume

deliberations on that charge. In addition, appellant claims the trial court erred in

denying his motion to correct sentencing error pursuant to Florida Rule of Criminal

Procedure 3.800(b)(2), which challenged the departure prison sentence imposed for

the felony fleeing conviction. We affirm as to the first claim without discussion.

However, we reverse as to the second claim and remand with directions that the

trial court resentence appellant to a nonstate prison sanction.

      Section 775.082, Florida Statutes (2012), provides in pertinent part:

                   (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.

See also Fla. R. Crim. P. 3.704(d)(29) (“If the total sentence points equal 22 or

less, the court must sentence the offender to a nonstate prison sanction unless it

makes written findings that a nonstate prison sanction could present a danger to the

public.”). This court has explained:

                   The clear purpose and obvious intent [of] section
             775.082(10) was to keep certain offenders out of the state
             prison system. The statute operates similarly to the pre-

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             Criminal Punishment Code sentencing guidelines by
             establishing a presumptive sentence from which the trial
             court may deviate up to the statutory maximum in limited
             circumstances and only if the court explains its reasons in
             writing. The first sentence of the statute provides that the
             presumptive mandatory sentence for qualifying offenders
             is a “nonstate prison sanction.” The statute does [not]
             define “nonstate prison sanction,” but the phrase is
             commonly understood to mean probation, community
             control, or imprisonment in the county jail for up to one
             year. The second sentence of the statute allows the trial
             court to deviate from the presumptive sentence and
             impose a prison sentence, but only if the court
             specifically finds that sentencing the offender to a
             nonstate prison sanction could present a danger to the
             public. The trial court’s findings must be in writing.


Jones v. State, 71 So. 3d 173, 175 (Fla. 1st DCA 2011) (citations and footnotes

omitted).   When the trial court fails to support the imposition of an upward

departure sentence with the requisite written finding that a nonstate prison sanction

could present a danger to the public, it is not permitted on remand to reimpose the

upward departure sentence even with a valid written reason for departure. Bryant

v. State, 148 So. 3d 1251, 1258 (Fla. 2014).

      In this case, appellant claims the trial court erred in denying his motion to

correct sentencing error challenging the departure prison sentence imposed

pursuant to section 775.082(10) because the trial court failed to file written reasons

for departure or a signed copy of the sentencing hearing transcript within fifteen

days of sentencing as required by Florida Rule of Criminal Procedure

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3.702(d)(18)(A). However, this rule does not apply to appellant’s sentence under

the Criminal Punishment Code, which is governed by Florida Rule of Criminal

Procedure 3.704. Although rule 3.704(d)(27)(A) contains similar language to rule

3.702(d)(18)(A), it applies only to downward departures.           Rule 3.704(d)(29),

which applies to upward departures under section 775.082(10), simply requires

“written findings.” It is undisputed the trial court never filed written findings that a

nonstate prison sanction could present a danger to the public. Although the trial

court ordered that the sentencing transcript be made part of the file, there is nothing

in rule 3.704(d)(29) indicating that the filing of a sentencing transcript satisfies the

statutory requirement of “written findings.” Moreover, the filing of an unsigned

copy of the sentencing transcript would not satisfy rule 3.704(d)(27)(A), if it

applied. See Pressley v. State, 921 So. 2d 736 (Fla. 1st DCA 2006); Boynton v.

State, 473 So. 2d 703 (Fla. 4th DCA) (en banc), approved, 478 So. 2d 351 (Fla.

1985). But see Esquivel v. State, 958 So. 2d 517 (Fla. 3d DCA 2007) (holding that

the trial court’s failure to sign the written transcription of its orally stated reasons

for an upward departure from the sentencing guidelines was harmless error that

could be corrected on remand).

      Although the trial court might have been able to correct its initial failure to

make the necessary written findings required by section 775.082(10) by granting

appellant’s rule 3.800(b)(2) motion, its failure to do so requires resentencing

                                           4
appellant on remand to a nonstate prison sanction. Bradley v. State, 155 So. 3d

1248 (Fla. 4th DCA 2015); Dresch v. State, 150 So. 3d 1199 (Fla. 4th DCA 2014);

Goldberg v. State, 76 So. 3d 1072 (Fla. 5th DCA 2011).             In light of this

disposition, we do not reach appellant’s alternate claim that section 775.082(10) is

unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its

progeny because the statute deprived him of his Sixth Amendment right to a jury

determination of any fact which enhances his sentence.

      AFFIRMED in part; REVERSED in part; and REMANDED for

resentencing.

ROBERTS and BILBREY, JJ., CONCUR.




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