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

STERLING ALLEN JOHNSON,              NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D16-1577

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed May 5, 2017.

An appeal from the Circuit Court for Washington County.
Colby Peel, Judge.

Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney
General, Tallahassee, for Appellee.




BILBREY, J.

      Sterling Allen Johnson challenges the five-year prison sentence he received

upon his conviction for fleeing or attempting to elude a law enforcement officer.

Because the written findings made in support of the prison sanction are
insufficient, we vacate the sentence and remand for entry of a non-state prison

sanction.

      By amended information, Johnson was charged with (i) aggravated battery

of a law enforcement officer and (ii) fleeing or attempting to elude a law

enforcement officer. These charges followed a traffic stop for an equipment

violation. During the stop, as the officer was waiting on warrants check, Johnson

drove away; the officer had claimed he was dragged by Johnson’s vehicle. The

stop and Johnson’s flight were captured on the video recorder on the officer’s

patrol car. The cause proceeded to a jury trial, and at the conclusion, Johnson was

acquitted of the charge of aggravated battery on a law enforcement officer but was

found guilty as charged with respect to the remaining count. A judgment entered

in accordance with that verdict. Johnson’s scoresheet produced a score of 5.6

points. Pursuant to section 775.082(10), Florida Statutes, the presumptive sentence

for Johnson is a non-state sanction given that his scoresheet totaled less than 22

points and that he was convicted of a non-forcible third degree felony committed

after 1999. The trial court sentenced Johnson to 5 years in prison. No written

findings were entered in support of this sentence.

      Johnson moved to correct what he claimed to be an illegal sentence. The

State agreed with Johnson that a written finding in support of the sentence was

required by section 775.082(10), but disagreed that Johnson should be sentenced to

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a non-state sanction. The trial court thereafter refused to reduce the sentence and

entered findings in support of it. The findings of the court were:

             1. The defendant was released on bond for another
             charge at the time he committed the offense in this case.

             2. The defendant was being taken into custody for failing
             to appear in court at the time he committed the offense in
             this case.

             3. The defendant represented a specific danger to Officer
             Harrison. The video played during the course of the trial
             showed the defendant accelerating his vehicle into the
             roadway while the officer was partially in and/or attached
             to the defendant’s vehicle.

             4. The defendant represented a danger to other traffic as
             a semi-truck could be seen entering the video frame
             seconds after the defendant fled the scene of the traffic
             stop.

             5. While the defendant was released on bond in the
             current case, he violated probation in a separate offense
             and pled to an independent new law offense.

             6. The defendant is currently serving an independent
             prison sentence for a violation of probation.

      On appeal, Johnson contends that section 775.082(10) is unconstitutional;

alternatively, he argues that the findings do not comply with the statute and thus

are insufficient. As we agree that the findings are insufficient, it is not necessary to

address the constitutional questioned raised.

             Section 775.082(10) provides:



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             (10) If a defendant is sentenced for an offense ... which
             is a third degree felony but not a forcible felony as
             defined in s. 776.08 ... 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.
(Emphasis added).

      No guidance has been provided by the Legislature for deciding when a

“nonstate prison sanction could present a danger to the public.” In Jones v. State,

71 So. 3d 173, 176 (Fla. 1st DCA 2011), this court held that the phrase “danger to

the public” need not require a history of violence and can be based on economic or

other types of harm. See also Ryerson v. State, 189 So. 3d 1047 (Fla. 4th DCA

2016). However, in reversing the non-state prison sanction imposed, this court

found that the record in Jones did not show that a prison sentence rather than a

county jail sentence “would better deter” the defendant from future commissions of

the offense for which he was being sentenced (“unlicensed driving”). Jones, 71

So. 3d at 176. Similarly, in Reed v. State, 192 So. 3d 641, 648 (Fla. 2d DCA

2016), the reviewing court explained that the statute requires a “nexus” between a

sentence to a non-state prison sanction and the resulting danger a defendant could

then present to the public. See McCarthy v. State, No. 2D15-1511 (Fla. 2d DCA

April 5, 2017). In the case at bar, none of the six grounds stated by the trial court


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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. Given the lack of a “nexus,” we are constrained to reverse.

      Further, with regard to the third ground (that Johnson represented a danger

to the officer), the prison sentence was improperly imposed for conduct for which

Johnson was acquitted. See Dinkines v. State, 122 So. 3d 477, 481 (Fla. 4th DCA

2013) (reversing a prison sentence because the trial court erred in relying on

offenses for which the defendant was either acquitted or never charged to support

its findings under section 775.082(10)); see also Doty v. State, 884 So. 2d 547 (Fla.

4th DCA 2004) (holding that trial judge erred in imposing maximum sentences

after citing as grounds therefor charges for which defendant was acquitted).

      Further still, as for the fourth ground, that Johnson “represented a danger to

other traffic as a semi-truck could be seen entering the video frame seconds after

the defendant fled the scene of the traffic stop,” this finding is not supported by a

preponderance of evidence. While a truck passes Johnson’s vehicle as he is fleeing

the scene, the video recording reflects that Johnson neither entered the truck’s lane

nor otherwise posed a danger to it. See Rodriguez-Aguilar v. State, 198 So. 3d 792

(Fla. 2d DCA 2016) (explaining that a finding for imposition of a non-state prison

sanction must be based on preponderance of record evidence).




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      On remand, the trial court must impose a non-state prison sanction, and thus,

is not permitted to articulate new reasons for a departure. See Bryant v. State, 148

So. 3d 1251 (Fla. 2014); Jones, 71 So. 3d at 176.

      Accordingly, Johnson’s sentence is VACATED, and the cause is

REMANDED for resentencing.

WETHERELL and JAY, JJ., CONCUR.




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