### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

CALVIN MELVIN
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 15

- 4071

[May 9, 2018 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Matthew I. Destry , Judge; L.T. Case No. 13

- 4752 CF10A

.

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant

Publ ic Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attor ney Gen eral, West Palm Beach, for appellee.

L EVINE
, J.

Appellant appeals his convictions and sentences for three counts of providing false information to law enforcement in a missing child investigation. Appellant raises several issues, including that the tr ial court erred in denying his motion to dismiss and in finding that a non

- state prison sanction presented a danger to the public. We affirm the denial of

the motion to dismiss based on the plain language of the statute under which appellant was charged. However, we reverse appellant’s sentence

because the trial court’s order was insufficient to support a finding that appellant was a danger to the public

. We affirm the remaining issues

without comment.

Appellant was charged with three counts of providing false information to law enforcement during the investigation of his missing child. He made

the alleged ly false statements on January 9 and 10, 2013. On January 11 and 12, the child’s skeletal remains were found in the backyard of the residence appellant had shared with Brittney Cierra, who was his girlfriend

and the deceased child’s mother. Forensics determined that the child had died in July 2011 at the age of five months

, around the same time the child2 had gone missing.

Ap pella nt moved to dismiss the charges, arguing there was no nexus between the false information he provided to law enforcement and the

child’s death since the child had died a year and a half before he gave the

false information

. The state argued that the statute and jury instruction did not contain any language requiring a causal connection. The trial court agreed with the state and denied the motion to dismiss. Thereafter, appellant entered an open plea to the charges, reserving the right to appeal

the den ial of his motion to dismiss.

Testimony during the sentencing hearing revealed that on January 9, 2013, Child Protective Services and a police officer went to appellant and

Cierra’s house to investigate the well

- being of the children residing there

. According to a report, Cierra used drugs, verbally abused the children, and threatened to physically harm them

. A t the house, when questioned about the missing child’s whereabouts, a ppellant told the authorities that the child was with the paternal grandm other . When the child could not be located, a detective became involved in the case.

The next day, during a five

- hour long interview with the police, appellant repeatedly stated th at th e child had been taken to a fire station.

Towards the end of the i nterview, appellant admitted he believed the missing child was dead because he had an argument with Cierra and left

f or a couple of months . When he came back, Cierra said, “[I]f you love me . . . you will forgive me,” but would not tell him w hat she was r eferring to.

He told the detectives to “look under the ground” behind the house where appellant used to live with Cierra and drew a map for the detectives. A search of the backyard revealed the skeletal remains o f the missing child

.

Appellant testified that he lied to the police because he was “ in love

, and being stupid. ” According to appellant, Cierra threatened to harm the children every time he left her. Appellant also testified he told the police that there was a spot in the bac kyard where Cierra would sit and cry.

After the hearing, the t rial court found that imposing a non

- state prison

sanction on appellant would present a danger to the public . The court

stated :

Through his lies and misdirection, the Defendant confused

an d delayed the investigation in the disappearance of a child, his child, who was ultimately found dead and buried in his own backyard. The Defendant’s actions put other young children at risk; most directly those who lived in the home3 with him and his para mour. His actions would allow others to carry out violence against children with potential impunity.

The trial court sentenced appellant to consecutive terms of five years’ imprisonment on two counts and time served on the third count.

“Because a motion to dismiss pursuant to rule 3.190(c)(4) requires the lower court to make a pretrial determination of the law of the case when the facts are not in dispute, the standard of review on appeal is de novo.” State v. Benjamin , 187 So. 3d 352, 354 (Fla. 4th DCA 2016) (citation omitted). “The interpretation of a statute is a purely legal matter and subject to review de novo.” State v. Brock , 138 So. 3d 1060, 1062 (Fla. 4th DCA 2014).

Appellant was charged with three counts of violating secti on 837.055(2) , Florida Statutes (2013) . This statute was enacted in the wake

of the Casey Anthony case. In that case, the defendant made false statements to the police during an investigation into the disappearance of her young da ughter. Anthony v. State , 108 So. 3d 1111, 1113 (Fla. 5th DCA 2013). The child’s remains were later discovered near the defendant’s family home. Id. at 1116. The defendant was convicted of four counts of providing false information to a law enforcement officer, a first

- de gree misdemeanor. Id. at 1117.

As a result of Anthony , the legislature enacted secti on 837.055(2), creating a third

- degree felony when a person

knowingly and willfully gives false information to a law enforcement officer who is conducting a missing p erson investigation involving a child 16 years of age or younger with the intent to mislead the officer or impede the investigation, and the child who is the subject of the investigation suffers great bodily harm, permanent disability, permanent disfigurem ent, or death

. . . .

§ 837.055(2), Fla. Stat. (2013).

Thus, the plain language of the statute requires two elements: (1) knowingly and willfully giving false information to law enforcement during a missing child investig ation, and (2) the child suffer ing great bodily harm, permanent disability, permanent disfigurement, or death. See id. In this case, both elements of the statute were met. As such, we find the trial court did not err in denying the motion to dismiss based on the plain language of the statute. See Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.4 3d 294, 313 (Fla. 2017) (“When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the [secondary] rules of statut ory interpretation and construction; the statute must be given its plain and obvious meaning

. ”) (Lawson, J., concurring) (citation omitted).

As to the sentencing issue, because appellant scored less than twenty

two points on the sentencing guidelines, the trial court was statutorily required to impose a non

- state prison sanction unless the court made written findings that a non

- state prison sanction would present a danger to the public. See § 775.082(10) , Fla. Stat . (2013). In considering the propriet y of an upward departure from a non

- state prison sanction, a court may consider “criminal history, victim injury, and propensity for one to

commit future crimes.” Reed v. State , 192 So. 3 d 641, 646 (Fla. 2d DCA 2016).

In Jones v. State , 71 So. 3d 173 (Fla. 1st DCA 2011), the trial court found the defendant a danger to the public after he was convicted of driving while his license was suspended. The trial court reasoned that the defendant was likely to continue to drive without a licens e, which would endanger the public because it made it more likely he would attempt to elude law enforcement officers. The First District reversed, finding that “the court did not make sufficient findings . . . that imprisonment within the state prison sys tem rather than the county jail would better deter him

from continued unlicensed driving.” Id. at 176.

In contrast, in Porter v. State , 110 So. 3d 962 (Fla. 4th DCA 2013), this court upheld a prison sentence for a defendant convicted of grand theft

bec ause the trial court articulated sufficient facts to sustain the requisite written finding that the defendant was a danger to the public. The trial

court found , inter alia, that the theft was accomplished by writing a worthless check, which was consistent with the defendant’ s lifelong modus operandi; that the defendant caused significant financial and emotional damage; and that he would continue to commit financial crimes against the public if not incarcerated. Id. at 964. Thus, the Porter court made

suf ficient written findings as to “criminal history, victim injury, and propensity for one to commit future crimes.” See Reed , 192 So. 3d at 646.

Like in Jones , and unlike in Porter , here the trial court’s written order

did not articulate sufficient facts to sustain a finding that appellant was a danger to the public as required by the statute

. The trial court did not explain how appellant’s actions “put other young children a t risk.” Nor

did the trial court state how the lies appellant told on January 9 delayed the investigation when he confessed the very next day and the remains5 were found a day or two later . The trial court also did not make any findings as to appellant’s lack of any criminal history or propens ity to

commit future crimes . Because the trial court did not make sufficient finding s that imprisonment within the state prison system rather than county jail or ano ther potential non

- state prison sanction would deter him

from committing future crimes , we reverse appellant’s sentence and remand for the trial court to impose a non

- state prison sanction. See id.

at 648.

Affirmed in part, reversed in part.

W ARNER
, J., concur s

. G ROSS

, J., concurs specially with opinion.

G ROSS

, J ., concurring specially.

I concur in the majority opinion. One possible reading of section 837.055(2), Florida Statutes (2013), is that the child who is the subject of investigation suffers harm after the giving of the false information, without there being any causal connection. If a criminal statute is ambiguous, we would normally apply the rule of lenity in section 775.021(1), Florida Statutes (2017), and construe the statute “most favorably to the accused.”

As the majority notes, the legislature amended the statu te in response to the Casey Anthony case, where the death of a child preceded a mother’s giving of false information. We know this from the legislative history. See Florida Staff Analysis, H.B. 37, 4/10/2012. “Although not determinative of legislative i ntent, staff analyses are one touchstone of the collective legislative will.” Sun Bank/South Florida, N.A. v. Baker , 632 So. 2d 669, 671 (Fla. 4th DCA 1994). We should not ignore the clear legislative history and engage in a hypertextual analysis of the statute to arrive at a result that the legislature sought to avoid in enacting the statute.

* * *

Not final until disposition of timely filed motion for rehearing.