Cristian Pozos v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CRISTIAN POZOS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D2023-0248

[February 14, 2024]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.

Lucie County; Steven J. Levin, Judge; L.T. Case No. 562019CF000587C.

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public

Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Alexandra A. Folley,

Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

Following the defendant’s no contest plea to the third-degree felony of

furnishing a firearm to a minor, as prohibited under section 790.17(2)(a),

Florida Statutes (2018), the circuit court sentenced the defendant to one

year in the county jail, to be followed by two years’ community control

under state supervision, to be followed by two years’ probation under state

supervision. On appeal, the defendant argues that under section

775.082(10), Florida Statutes (2018), because he qualified for a nonstate

prison sanction, and no jury finding was made that a nonstate prison

sanction could present a danger to the public, any punishment beyond

one year in the county jail would be illegally excessive, and thus his

sentence’s community control and probation portions must be stricken.

We disagree with the defendant’s argument, and therefore affirm the

defendant’s sentence. However, our affirmance does not apply to certain

circumstances which may yet come to fruition, and thus are not ripe for

our consideration, as we will briefly mention at the end of this opinion.

Procedural History

The defendant pled no contest to the third-degree felony of furnishing

a firearm to a minor, as prohibited under section 790.17(2)(a), Florida

Statutes (2018). At the sentencing hearing, the defendant requested to be

sentenced to probation pursuant to section 775.082(10), Florida Statutes

(2018):

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.

§ 775.082(10), Fla. Stat. (2018).

According to the defendant, he qualified for a nonstate prison sanction

under section 775.082(10) because: (1) his third-degree felony offense of

furnishing a firearm to a minor was committed after July 1, 2009, was not

a forcible felony as defined in s. 776.08, and was not a third-degree felony

under chapter 810; and (2) his total sentence points under section

921.0024 were four, thus fewer than twenty-two points.

The state acknowledged that under section 775.082(10), the defendant

qualified for a nonstate prison sanction, and for the defendant to be

sentenced to a state correctional facility, “a jury must make a … legal

finding that he would pose a danger [to the public].” See Brown v. State,

260 So. 3d 147, 150 (Fla. 2018) (“[W]e hold that subsection (10) violates

the Sixth Amendment in light of Apprendi and Blakely based on its plain

language requiring the court, not the jury, to find the fact of

dangerousness to the public necessary to increase the statutory maximum

nonstate prison sanction.”).

However, the state did not request the circuit court to empanel a jury

to determine whether sentencing the defendant to a nonstate prison

sanction could present a danger to the public. Instead, the state opted to

argue that a nonstate prison sanction “is all of the mitigation that [the

defendant] should receive.” The state added: “[I]t is absolutely appropriate

that he be sentenced to what is the legal maximum before this Court at

2

this time, a year in the county jail to be followed by two years of community

control to be followed by two years of probation.”

The circuit court pronounced its agreement with the state’s sentencing

recommendation. In pronouncing the sentence, the circuit court

acknowledged section 775.082(10)’s requirement that without the state

proving a nonstate prison sanction could present a danger to the public,

the defendant could not be sentenced to a state correctional facility. The

circuit court added: “[T]he crime is punishable up to [five] years in prison,

but the Legislature said you have to look at the individual and as the State

said, there’s a certain burden on them that they have to legally assess and

make a determination … in conjunction with that law. … [T]he State …

would’ve gone forward I’m sure if they could’ve met their burden.”

After the hearing, the circuit court entered a written sentencing order

directing the defendant to be “confined in the County Jail for a term of 365

days with credit for [three] days jail time,” and thereafter, “placed on

Probation for a period of [four] years, with first [two] years of Community

Control under the supervision of the Department of Corrections.”

The defendant then filed a notice of appeal to this court. While the

notice of appeal was pending, the defendant filed in the circuit court a

Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct illegal

sentence. The defendant’s rule 3.800(b)(2) motion summarized:

Th[e] [circuit] [c]ourt erred by imposing an aggregate

sentence against [the defendant] which exceeded 365 days

county jail incarceration. Although a remedy for imposition

of an erroneous section 775.082(10) sentence that exceeds

one year jail is, at the State’s option, the empaneling of a jury

to determine [the defendant’s] future dangerousness[,] … the

State waived its option, by failing to initially seek a jury danger

finding and by failing to elicit legally sufficient evidence upon

which a jury could properly find [the defendant] posed a future

danger to the public. Both the crime [which] [the defendant]

committed, a non-forcible, non-Chapter 810 third degree

felony, and the circumstances surrounding the commission of

the crime fail to show he is a future danger to the public. Th[e]

[circuit] [c]ourt should grant [the defendant’s] motion,

maintain [the defendant’s] sentence of 365 days [in] county

jail[,] and strike both the community control and probation

sanctions.

3

The circuit court did not rule on the defendant’s rule 3.800(b)(2) motion

within sixty days. Thus, the motion is deemed denied. See Fla. R. Crim.

P. 3.800(b)(2)(B). Our review of this appeal then commenced.

Our Review

The defendant summarizes his argument as follows:

The [circuit] court erred in imposing an aggregate sentence

for [the defendant’s] sole crime of furnishing a firearm to a

minor, a third degree, level one, non-forcible and non-section-

810 felony offense, resulting in a total Criminal Punishment

Code sentencing point total of four points. Four points was

below the section 775.082(10) threshold to require imposition

of a non-state prison sanction of 365 days or less

incarceration, probation or a combination of both. The

sentence [which] the [circuit] court imposed of one year jail,

followed by two years[’] community control, and followed by

two years[’] probation was illegally excessive and all

community based sentences must be struck.

The state summarizes its response as follows:

[The defendant] received a “nonstate prison sanction” in

this case: 365 days [in] county jail with credit for time served,

followed by [two] years of community control and [two] years

of probation. The [circuit] court therefore complied with

subsection 775.082(10) and imposed a legal sentence.

Neither the language of subsection 775.082(10), nor any cases

cited by [the defendant], establishes that the subsection

restricts a defendant’s total punishment to one year; the

subsection only affects the type of punishment. The statute

also clearly provides that a danger finding is only required if a

defendant is sentenced to a “state correctional facility,” which

did not occur here.

Applying de novo review, we disagree with the defendant’s argument,

and agree with the state’s response. See Flowers v. State, 899 So. 2d 1257,

1259 (Fla. 4th DCA 2005) (“The legality of a sentence is a question of law

and is subject to de novo review.”); State v. Sampaio, 291 So. 3d 120, 123

(Fla. 4th DCA 2020) (“[I]ssues of statutory interpretation are reviewed de

novo.”).

4

Although section 775.082(10) requires circuit courts to sentence

qualifying third-degree felony offenders to a “nonstate prison sanction”

absent a jury’s finding that such a sentence could present a danger to the

public, section 775.082 does not define what constitutes a “nonstate

prison sanction.” However, “[t]he phrase ‘nonstate prison sanction’ ... is

commonly understood to mean probation, community control, or

imprisonment in the county jail for up to one year.” Ryerson v. State, 189

So. 3d 1047, 1048 (Fla. 4th DCA 2016) (quoting Jones v. State, 71 So. 3d

173, 175 (Fla. 1st DCA 2011)); accord Reed v. State, 192 So. 3d 641, 645

(Fla. 2d DCA 2016); see also § 921.00241(1)-(2), Fla. Stat. (2018) (using

the phrase “nonstate prison sanction” to refer to “a term of probation,

community control, or community supervision with mandatory

participation in a prison diversion program of the Department of

Corrections if such program is funded and exists in the judicial circuit in

which the offender is sentenced”).

Here, by sentencing the defendant to one year in the county jail, to be

followed by two years’ community control, to be followed by two years’

probation, the circuit court sentenced the defendant to a “nonstate prison

sanction,” and not a “state correctional facility,” as those phrases are

commonly understood. Although a nonstate prison sanction of county jail

incarceration must be limited to one year, nothing in section 775.082(10)

restricts the aggregate duration of all nonstate prison sanctions to one

year. Rather, the only durational limitation upon the defendant’s

combined five-year sentence of incarceration, community control, and

probation is found in section 772.083(3)(e), Florida Statutes (2018), with

which the defendant’s sentence complies. See § 775.082(3)(e), Fla. Stat.

(2018) (“A person who has been convicted of … a felony of the third degree,

[may be punished] by a term of imprisonment not exceeding 5 years.”)

(emphasis added); Smith v. State, 584 So. 2d 154, 154 (Fla. 2d DCA 1991)

(“The law is clear that when a defendant is sentenced to a split sentence

consisting of incarceration and probation ... the combined sanction cannot

exceed the maximum period of incarceration provided by law.”) (emphasis

added).

As such, the defendant’s sentence was not illegally excessive as the

defendant argues.

In deciding this appeal, we are mindful that if the defendant was to

violate his community control or probation, any resulting sentence to a

state correctional facility, beyond the one year which the defendant will

have already served in the county jail, raises the issue of whether such

further incarceration would be illegally excessive under section

775.082(10), given that the state already has opted not to seek a jury

5

finding that sentencing the defendant to a nonstate prison sanction could

present a danger to the public.

However, that issue is not ripe for consideration. If the defendant

successfully completes his community control and probation, the

defendant’s sentence will terminate. If the defendant violates his

community control or probation, the circuit court would not be required

to sentence the defendant for such violation to a state correctional facility

beyond the one year which the defendant will serve in the county jail.

Thus, until such time as the defendant violates his community control

or probation, and is sentenced for such violation to a state correctional

facility beyond the one year which the defendant will serve in the county

jail, the issue which we have identified would have to be raised to the

circuit court in the first instance.

Based on the foregoing, we affirm the defendant’s sentence.

Affirmed.

MAY and CIKLIN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

6