TONY MURPHY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D13-5178

_____________________________/

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 pre2
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

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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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