Florida/Georgia Personal Injury & Workers Compensation

...Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” 28 U.S.C. § 1738. 26  Case: 15-10206 Date Filed: 03/30/2017 Page: 27 of 46 921.0021(2) (“‘Conviction’ means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld.”). The Florida Supreme Court has held “a judgment of conviction ....

...The Legislature amended the sentencing statute applicable to felonies committed on or after October 1, 1998. See ch. 97-194, Laws of Fla. (creating the Florida Criminal Punishment Code, codified at sections 921.002-921.0026, Florida Statutes (1997)); see also § 921.0027, Fla. Stat. (1999). Section 921.0021, Florida Statutes (2000) provides for the same scoring guidelines for victim injury regarding sexual contact as provided by section 921.0011....

...which governs sentencing. In support of this contention, the State relies upon Montgomery v. State, 897 So.2d 1282, 1286 (Fla.2005), in which this Court held, in the context of sentencing guidelines, that the statutory definition of "conviction" in section 921.0021, Florida Statutes (2002), includes those felonies to which a defendant pled no contest, regardless of whether adjudication was withheld. A review of the legislative history of the definition of "conviction" leads us to conclude that the Legislature did not intend for the definition in section 921.0021, Florida Statutes (2003), to apply to the "prior violent felony conviction" aggravator....

...plain language of section 921.0011, the 1993 definition of "conviction" applied to section 921.141(5)(b), and a plea, regardless of whether adjudication was withheld, constituted a conviction. In 1997, section 921.0011 was repealed and renumbered as section 921.0021. See ch. 97-194, §§ 1, 4, at 3674-75, Laws of Fla. While renumbered, section 921.0021 still indicated in 1997 that it applied to the whole of chapter 921....

...ss of whether adjudication is withheld. Ch. 98-204, § 3, at 1937-38, Laws of Fla. (emphasis supplied). In Montgomery v. State, 897 So.2d 1282, 1285-86 (Fla.2005), we subsequently held that, under the statutory definition of "conviction" provided in section 921.0021, a no contest plea with adjudication withheld constituted a conviction for purposes of the sentencing guidelines, *878 which do not apply to capital felonies. The specific decision of the Legislature in 1998 to limit section 921.0021 to noncapital felonies demonstrates that it did not intend for the broader definition of the word "conviction" to apply to the "prior violent felony" aggravating circumstance in capital cases....

...purposes of the sentencing guidelines. For sentencing purposes, chapter 921, Florida Statutes, provides that prior convictions are scored on the sentencing guidelines worksheet in computing a defendant's sentence. See § 921.0014, Fla. Stat. (2002). Section 921.0021 defines a conviction as "a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld." See § 921.0021(2), Fla....

...State, 395 So.2d 1145 (Fla.1980), reiterated the position that guilty pleas with adjudication withheld are considered convictions for purposes of capital sentencing. Despite this language in Garron, the Legislature, eleven years after Garron, enacted section 921.0021, [1] defining convictions and specifically including convictions whether or not adjudication is withheld. A finding that a no contest plea is a prior conviction, regardless of adjudication being withheld, is consistent with the legislative intent of section 921.0021(2)....

...State, 802 So.2d 281, 286 (Fla.2001) (citation omitted) (quoting Green v. State, 604 So.2d 471, 473 (Fla.1992)). Here, the statutory language is clear and unambiguous. A conviction is a "determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld." § 921.0021(2), Fla....

...ithheld, are prior convictions for purposes of sentencing under section 921.0014. For sentencing purposes, a conviction is defined as "a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld." § 921.0021(2), Fla. Stat. (2002). Prior record is defined as "a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense." § 921.0021(5), Fla....

...I believe a plain reading of the sentencing statute compels that the question be answered in the negative. I therefore respectfully dissent. In the sentencing statute, the term "conviction" is defined as "a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld." § 921.0021(2), Fla....

...(2004) (defining "conviction" as "a determination of guilt which is the result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld"). In chapter 921, on the other hand, the Legislature did not employ such a broad definition, and any interpretation of section 921.0021(2) should account for this fact....

discretion of the Probation and Parole Commission. § 921.21, Fla. Stat. (1977). Accordingly, appellant's judgments

...ative. Offenses over which the trial court no longer has jurisdiction cannot be scored as additional offenses during a sentencing proceeding following a violation of probation because they do not fit the definition of "additional offense" set out in section 921.0021, Florida Statutes (1999)....

...The Second District explained that an additional offense is "any offense other than the primary offense for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense." Id. at 234 (quoting § 921.0021(1), Fla....

...pending for sentencing. See also Fla. R.Crim. P. 3.704(d)(2) ("One scoresheet must be prepared for all offenses committed under any single version or revision of the guidelines or Criminal Punishment Code pending before the court for sentencing."). Section 921.0021, Florida Statutes (1999), defined the scoresheet categories of noncapital, felony offenses committed on or after October 1, 1998, as follows: (1) "Additional offense" means any offense other than the primary offense for which an offe...

...offense. Convictions by federal, out-of-state, military, or foreign courts, and convictions for violations of county or municipal ordinances that incorporate by reference a penalty under state law, are included in the offender's prior record. . . . § 921.0021, Fla....

...Stat. (1999) ("Upon the termination of the period of probation, the probationer shall be released from probation and is not liable to sentence for the offense for which probation was allowed."); State v. Hall, 641 So.2d 403, 404 (Fla.1994) (same). Section 921.0021 does not differentiate original sentencing proceedings, sentencing proceedings upon revocation of probation, and resentencing proceedings....

...The reasons articulated by the Second District for treating the offenses for which the two-year probationary period had previously expired as additional offenses do not justify departing from the plain meaning of "additional offense" as set forth in section 921.0021(1)....

...nsure" that Sanders faced the same sentencing possibilities upon the revocation of his probation. Id. We conclude, however, that this broad reading of the relevant provision of section 948.06(1) cannot be reconciled with the plain import of sections 921.0021(1) and 921.0024(1)(b) or with our reasoning in Roberts....

...offenses. Thus, Sanders is entitled to a new sentencing proceeding. Sanders contends that two of the three third-degree felony convictions should have been scored as prior record when he was sentenced following revocation of his probation. We agree. Section 921.0021(5) defines "prior record" as "a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense." To be scored as prior record the offense must have been committed prior to the commission of the primary offense....

...Where the trial court's jurisdiction over a criminal offense has expired, the trial court may not score that offense as an additional offense during a sentencing proceeding. Because the trial court's scoring of the third-degree felonies in this case did not comport with section 921.0021 and because the record does not demonstrate that the error was harmless, we quash the decision of Second District....

...In Florida, the decision of a trial court to impose victim-injury points is subject to an abuse-of-discretion standard. See Key v. State, 837 So.2d 535, 536 (Fla. 2d DCA 2003). However, here, Sims contends that the trial court did not follow the law and instead misinterpreted sections 316.027(1)(b) and 921.0021(7)(a), Florida Statutes (2001)....

...Although not in the form of an objection, Sims placed the trial court on notice of his position with regard to the imposition of victim-injury points at the outset of the sentencing proceeding. Sims alerted the trial court that the definition of "victim injury" arguably included the "direct result" language of section 921.0021, Florida Statutes (2001)....

...The trial court also recognized that to permit the imposition of victim-injury points, case law required the crime to be a cause of death. Therefore, the causation claim was properly presented to the trial court and preserved for appellate review. Based upon the plain language of section 921.0021(7)(a), which defines "victim injury" for the purpose of scoring victim-injury points, we conclude that under these facts, the imposition of such points for leaving the scene in violation of section 316.027(1)(b) was incorrect....

...State, 934 So.2d 1226, 1233 (Fla.2006) ("[T]his Court must first look to the plain language of the statute, and if the statute is ambiguous on its face, the Court can only then rely upon the rules of statutory construction in order to discern legislative intent."). Section 921.0021(7)(a) applies here because it concerns felony offenses committed on or after October 1, 1998, and Sims committed the alleged offense on May 12, 2001. Section 921.0021(7)(a) provides: "Victim injury" means the physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense....

...l be ordered for any "[d]amage or loss caused directly or indirectly by the defendant's offense," imposes a causation requirement. Schuette, 822 So.2d at 1280 (emphasis supplied). This statutory language is similar to the "direct result" language of section 921.0021(7)(a). Accordingly, here, a similar interpretation of section 921.0021(7)(a), requiring the existence of a causal connection to impose victim-injury points, is warranted....

...esents the floor for basic freedoms; the state constitution, the ceiling."). [8] See § 944.40, Fla. Stat. (1997). [9] See § 843.15, Fla. Stat. (1997). [10] See §§ 38.22, 900.04 Fla. Stat. (1997). [11] See § 921.0011, Fla. Stat. (1997). [12] See § 921.0021, Fla....

...by the Act." Id. (quoting Walls v. State, 765 So.2d 733, 734 (Fla. 1st DCA 2000)). [10] A comparison of the sentencing guidelines and the CPC indicates that the same terms are used in both and defined in an identical manner. Compare § 921.0011 with § 921.0021....

...orida offenses in effect when he committed the prior military offenses. *171 VICTIM INJURY POINTS Knarich also argues that forty victim injury points should not have been scored for sexual contact based only on his touching of the victim's buttocks. Section 921.0021(7)(b), Florida Statutes (1997), provides for victim injury points to be scored for "sexual contact that does not include sexual penetration," but the statute does not define sexual contact....

...2d DCA 2003) (victim injury points must be submitted to jury if addition of points causes sentence to go beyond statutory maximum). Below, the appellant also asserted that the trial court erred, as a matter of law, by scoring victim injury points for "death" when the jury acquitted him of all murder charges. We agree. Section 921.0021(7)(a), Fla....

...McCrae v. State, 395 So.2d 1145 (Fla. 1980). There was no statutory definition of conviction applicable in Garron. We conclude that Garron does not control because there is a statutory definition of conviction for purposes of preparing a scoresheet. Section 921.0021(2), Florida Statutes (1999) defines conviction as follows: "Conviction" means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld....

...Because Philippe was convicted for second degree felony murder, he was scored for this primary offense. Because the victim's injuries occurred during the attempted armed robbery in which Philippe was a principal, victim injury points were also scored. See § 921.0021(7)(a), Fla....

...We relied on State v. Lamar, 659 So.2d 262 (Fla.1995), to allow the scoring of such offense in any particular manner so long as the combination resulted in the most severe sanction. 847 So.2d at 1092. We used the definition of "additional offense" provided by section 921.0021(1), Florida Statutes, and Florida Rule of Criminal Procedure 3.704(d)(7) to support our reasoning that all offenses not scored as primary offense should be scored as additional offenses....

...Rule 3.704 applies to these offenses, as this sentencing rule implemented the Criminal Punishment Code and applies to offenses committed on or after October 1, 1998. This rule also changed the definitions and used the statutory definitions contained in section 921.0021, Florida Statutes....

...The question before us is whether the jury's finding of guilt as to the lewd or lascivious molestation charge constituted a conviction, such that the record of this finding on the judgment and sentence placed Appellant in double jeopardy. This issue may be settled by reference to the statutory definition of "conviction." Section 921.0021, Florida Statutes (2008), defines "conviction" as "a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld." Thus, the constitutional prohibition against multiple convictions f...

...ogeny. Finally, we conclude that penetration was not an element or the functional equivalent of an element of the offense charged against Rogers and accordingly was not required to be alleged in the information. 1. The Basis for Victim Injury Points Section 921.0021(7), Florida Statutes (2003), provides the definition of victim injury that governs the assessment of victim injury points on Criminal Punishment Code scoresheets....

...The statute sets forth the basic definition of victim injury as "the physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense." § 921.0021(7)(a) (emphasis added). The statute contains additional provisions with respect to offenses "involving sexual contact." § 921.0021(7)(b)....

...volving sexual contact that includes sexual penetration, the sexual penetration must be scored in accordance with the sentence points provided under s. 921.0024 for sexual penetration, regardless of whether there is evidence of any physical injury." § 921.0021(7)(b)(1) (emphasis added)....

...s where penetration was an element specifically charged in the information. An offense can be one "involving sexual contact that includes sexual penetration" regardless of whether penetration was an element of the offense alleged in the information. § 921.0021(7)(b)(1)....

...State, 731 So.2d 9 (Fla. 2d DCA 1999), and Bogan v. State, 725 So.2d 1216 (Fla. 2d DCA 1999). It is so ordered. CANADY, C.J., and PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur. CANADY, C.J., concurring with an opinion. POLSTON, J., dissenting with an opinion. . Section 921.0021(7)(b)(2), Florida Statutes (2004), provides that if a conviction is for an offense involving sexual contact which does not include sexual penetration, the sexual contact must be scored on the Criminal Punishment Code sentencing score...

...As defined in rule 3.704(d)(6), "`[c]onviction' means a determination of guilt that is the result of a plea or trial, regardless of whether adjudication is withheld." The definition of "conviction" in rule 3.704(d)(6) is the same as that set forth in section 921.0021(2), Florida Statutes (1999)....

...The rule of lenity provides that when the language of a criminal sentencing statute is ambiguous, the statute must be construed favorably to the accused. See § 775.021, Fla. Stat. (1999); State v. Rife, 789 So.2d 288, 294 (Fla.2001). We, therefore, read rule 3.704(d)(6) and section 921.0021(2) to require a finding of guilt....

...While we are not unsympathetic to the State's concerns, adopting the "merger" procedure it advances is not as simple or workable as the State suggests. What comes to mind is the treatment to be afforded such a "merged" judgment of conviction during subsequent sentencing proceedings. Section 921.0021(2), Florida Statutes, defines a "conviction" as "a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld." See also Fla. R.Crim. P. 3.704(d)(6). That same statute defines a "prior record" as "a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense." § 921.0021(5), Fla....

...A trial court abuses its discretion "only where no reasonable man would take the view adopted by the trial court." See Nolte v. State, 726 So.2d 307, 309 (Fla. 2d DCA 1998). We believe that the imposition of victim injury points in this case was within the trial court's discretion, and that no abuse has been shown. Section 921.0021(7)(a) defines victim injury as: The physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense....

...Dealing in stolen property, a second degree felony, may justify a less severe punishment than leaving the scene of a crash involving death. To assure that the seriousness of the latter crime is recognized, the legislature has required that victim injury points be added if the death is the direct result of the offense. See § 921.0021(7)(a), Fla....

...irements of s. 316.062. Section 316.062 mandates that the driver must give information about the accident to authorities and render such aid as appropriate and needed to the victim. At the time of the accident (May 13, 2001), the applicable statute, section 921.0021(7)(a) (2001) defined "victim injury" as: [T]he physical injury or death suffered by a person as a direct result of the primary offense, ......

...This was the lowest permissible sentence according to Chapman's scoresheet which included in the total score 120 points for victim injury for the death of Rivas. Florida Rule of Criminal Procedure 3.704(d)(9) provides that a "victim injury must not be scored for an offense for which the offender has not been convicted." Section 921.0021(7)(a), Florida Statutes (1999), defines victim injury as a "physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense for which an offender is convicted and which is pending be...

...We reverse Graham's sentence due to a scoresheet error and remand for re-sentencing. It was error to fail to delete from Graham's sentencing scoresheet prior juvenile dispositions on offenses committed more than five years before the offense for which he was being sentenced. See § 921.0021, Fla. Stat. (2005); rule 3.704, Fla. R.Crim. P. Florida Statutes section 921.0021 provides, in part: (5) "Prior record" means a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense. . . . Juvenile dispositions of offenses committed by the offender within 5 years before the primary offense are included in the offender's prior record. . . . § 921.0021(5), Fla....

...higher sentencing range. He therefore argues that he should be resentenced using a corrected scoresheet. [1] At the time Sanders was originally sentenced in 2000, his scoresheet correctly listed the third-degree felonies as additional offenses. See § 921.0021(1), Fla....

...Because only the second-degree felonies were before the trial court for sentencing after revocation of Sanders' probation, the third-degree felonies could not be listed as additional offenses on a recalculated scoresheet. The only other way these offenses might be scored on a recalculated scoresheet would be as prior record. Section 921.0021(5) defines prior record as "a conviction for a crime committed by the offender......

...d convictions. § 921.231(l)(c), Fla. Stat. (2010). In other words, by definition, the arrests and convictions considered by a trial judge in.sentencing occur “prior to the time of the primary offense,” and not subsequent to the primary offense. § 921.0021(5), Fla. Stat. (2010). Additionally, the terms “primary offense” and “prior record,” which are included in the CPC’s sentencing principles, do not include a subsequent arrest and its . related charges. See §§ 921.0021(4)(5), Fla....

...It looked to those factors enumerated in the provisions of the presentence investigation report, noting that under section 921.231(1)(c), Florida Statutes (2010), a court may consider an offender’s prior arrests and convictions, as well as the definition of “prior record” in the CPC. Id.; see §§ 921.0021(4), (5), Fla. Stat. (2010). The “prior record” of a defendant, as defined in the CPC, excludes juvenile dispositions for offenses committed more than five years prior to the primary offense. See § 921.0021(5), Fla. Stat. (2016). Such convictions cannot be scored for purposes of determining the lowest permissible sentence and should not appear as a “prior record” on the sentencing scoresheet. See § 921.0021(5), Fla....

...the criminal offenses in the 2000 case as "additional offenses" rather than as "prior record" offenses. The state argued that because the 2000 offenses also were pending before the court for sentencing, they qualified as "additional offenses" under section 921.0021(1), Florida Statutes (2001)....

...is convicted and which is pending before the court for sentencing at the time of the primary offense. ... (14) "Prior record" refers to any conviction for an offense committed by the offender prior to the commission of the primary offense. See also § 921.0021(1), (4), (5), Fla....

...ense as part of appellant's prior record. The armed robbery in this case occurred on July 1, 2000. The armed robbery that was scored as a prior robbery occurred on July 16, 2000. It is therefore not a prior offense. See Fla. R. Crim P. 3.704(d)(14); § 921.0021(5), Fla....

...ses because Halfacre pled guilty to the offenses prior to his sentencing in this case. However, the Criminal Punishment Code defines "prior record" as convictions for offenses "committed by the offender ... prior to the time of the primary offense." § 921.0021(5), Fla....

...convictions even when "`[a] "determination" that an infraction has been committed ... arise[s] from a no contest plea.'" 763 So.2d at 293 (quoting Keirn, 720 So.2d at 1089 n. 3). Cf. Montgomery v. State, 897 So.2d 1282 (Fla.2005) (holding that under section 921.0021(5), Florida Statutes (2002), "no contest plea, even though adjudication was withheld, should be considered a prior conviction for sentencing purposes")....

...The provision of section 39.10(4), Florida Statutes (1989), which prohibits the use of juvenile adjudications as convictions, is found in section 39.053(4), Florida Statutes (1991). The trial court denied Vonador’s motion, citing the provision of section 921.0021(5), Florida Statutes (2001-2003), which states that “[j]uvenile dispositions of offenses committed by the offender within 5 years before the primary offense are included in the offender’s prior record when the offense would have...

...prior record under the sentencing guidelines and has no relevance to the determination of what constitutes a predicate conviction under the habitual offender statute. Furthermore, the trial court, in its order, failed to indicate to which version of section 921.0021(5) it was citing....

...nse. See Larkins v. State, 739 So.2d 90 , 96 n. 1 (Fla.1999). The trial court then found that Vonador’s claim could not be resolved without an evidentiary hearing. This was based on the trial court’s erroneous conclusion that the 2001 version of section 921.0021(5) controlled in this case....

...a statutory definition of conviction for purposes of preparing a scoresheet. "`Conviction' means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld." Montgomery, 821 So.2d at 465 (citing section 921.0021(2), Florida Statutes (1999))....

...t a valid basis for downward departure, because the question of whether and the extent to which a trial court may consider “remote” prior convictions has already been addressed by the legislature in the Criminal Punishment Code. Specifically, section 921.0021(5) provides a definition for “prior record” and sets forth the parameters under which a remote conviction will not be scored under the Criminal Punishment Code....

...expressed through the provisions of the Criminal Punishment Code. Further, the statute provides that for a prior conviction to be excluded as remote, the defendant must maintain a conviction-free record for the intervening ten-year period. § 921.0021(5), Fla....

...physically injured and for each offense resulting in physical injury whether 3 there are one or more victims” for all offenses for which the defendant has been convicted. Id.; see Fla. R. Crim. P. 3.703(d)(9). Sections 921.0021(7) and 921.0024, Florida Statutes, provide for different amounts of injury points depending on whether the victim’s injury is severe, moderate, or slight. See § 921.0021(7)(a), Fla....

...In its response below, the State conceded that the scoresheet used at Handley's resentencing added points for offenses for which Handley was convicted as a juvenile and which occurred prior to the applicable three-year limit allowed for scoring such offenses. See § 921.0021(5), Fla....

...We conclude that the trial court did not abuse its discretion in denying the motion and, therefore, affirm the conviction. McMillan argues next that the trial court erred by including victim injury points for sexual penetration on the criminal punishment code scoresheet. Section 921.0021(7)(a), Florida Statutes (1999), defines victim injury as "the physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which an offender is convicted and which is pending...

the adult-on-minor sex offense multiplier in § 921.0021(1)(b), Fla. Stat., instruct as folloivs. Alleyne

...After the defendant filed his notice of appeal, he filed a rule 3.800(b)(2) motion to correct sentencing error, effectively staying this appeal. Fla. R.Crim. P. 3.800(b)(2) (2008). The motion alleged that the scoresheet included two offenses in violation of section 921.0021(5), Florida Statutes (2008)....

...r's prior record if the offender has not been convicted of any other crime for a period of 10 consecutive years from the most recent date of release from confinement, supervision, or sanction, whichever is later, to the date of the primary offense." § 921.0021(5), Fla....

...nd convictions, and not mere arrests subsequent to the charged crime. Id. ("[A]rrests and convictions considered by a trial judge in sentencing occur 'prior to the time of the primary offense,' and not subsequent to the primary offense." (quoting § 921.0021(5), Fla....

...his violation of community control. The 1998 version of section 921.0024(1)(b) directs that the assessment of "[c]ommunity sanction violation points [be] assessed when a community sanction violation is before the court for sentencing." See also § 921.0021(6)(b) (enumerating community control as a "community sanction")....

..."Primary offense" is defined as the "the offense at conviction pending before the court for sentencing for which the total sentence points recommend a sanction that is as severe as, or more severe than, the sanction recommended for any other offense committed by the offender and pending before the court at sentencing." § 921.0021(4). "Prior record" is defined as "a conviction for a crime committed ... prior to the time of the primary offense." § 921.0021(5). Additional offenses, those "for which an offender is convicted and which [are] pending before the court for sentencing at the time of the primary offense," § 921.0021(1), are scored and included in the total sentence points calculation, which is then used solely to determine the offender's LPS, see § 921.0024(1)(a), (2)....

...l offender sentence for an offense, the trial court removes that offense from sentencing under the guidelines and cannot include that offense either as a primary or additional offense on the guidelines scoresheet."). However, we note that "[s]ection 921.0021 does not differentiate original sentencing proceedings ......

...eld. In Montgomery v. State, 897 So.2d 1282, 1286 (Fla.2005), the Florida Supreme Court "h[e]ld that a no contest plea followed by a withhold of adjudication is a conviction for purposes of sentencing under section 921.0014." Importantly, "[s]ection 921.0021 define[d] a conviction as `a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld.'" Id. at 1284. Since the definition of "convicted" in the 1997 version of section 943.0435 is essentially the same as the section 921.0021 definition of conviction, Montgomery supports the conclusion that "convicted" under the 1997 version of section 943.0435 included the entry of a plea of nolo contendere where adjudication was withheld....

...ibility for the preparation of score-sheets and to place sole authority with the state attorneys’ offices. This enactment requires a comparable amendment to rule 3.704(d)(1). In chapter 2001-210, section 2, Laws of Florida, the Legislature amended section 921.0021(5), Florida Statutes (2000), to allow scoring of juvenile dispositions as prior record if they were committed up to five years before the offense, rather than the current limit of three years....

...1994)). A subsequent arrest or charge is not a proper factor for the sentencing judge to consider under Florida's Criminal Punishment Code. See Norvil v. State, 191 So. 3d 406, 409 (Fla. 2016) (relying upon the clear definitions in sections 921.231(1)(c) and 921.0021(5), Florida Statutes (2010), which reference "primary offense" and "prior record" as 1 In responding to the uncharged conduct, Mr....

...2d DCA 2023) (stating the record reflected "no inkling that the trial court relied upon impermissible factors"); N.D.W. v. State, 235 So. 3d 1001, 1002 2 " 'Prior record' means a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense." § 921.0021(5), Fla....

2 See id.; see also § 921.0021(5), Fla. Stat. (2020) (stating the definition

...and convictions. § 921.231(1)(c), Fla. Stat. (2010). In other words, by definition, the arrests and convictions considered by a trial judge in sentencing occur “prior to the time of the primary offense,” and not subsequent to the primary offense. § 921.0021(5), Fla. Stat. (2010). Additionally, the terms “primary offense” and “prior record,” which are included in the CPC’s sentencing principles, do not include a subsequent arrest and its related charges. See §§ 921.0021(4)(5), Fla. Stats....

...r’s “prior record.” 191 So. 2d at 409 (citation omitted). The Criminal Punishment Code defines “prior record” as “a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense.” § 921.0021(5), Fla. Stat. (2016). 5  We apply the “last antecedent doctrine” to conclude that section 921.0021(5)’s antecedent phrase, “committed by the offender, as an adult or juvenile, prior to the time of the primary offense,” modifies only the immediately preceding term – “crime” – and not the earlier preceding term “conviction.” See Kasischke v....

...ve here, applied the last antecedent doctrine: Pursuant to statute, “prior record” is defined as “a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense.” § 921.0021(5), Fla....

correct sentence, stating, “the language of [section 921.0021(7)(a), Florida Statutes] imparts no such requirement;

...t a valid basis for downward departure, because the question of whether and the extent to which a trial court may consider “remote” prior convictions has already been addressed by the legislature in the Criminal Punishment Code. Specifically, section 921.0021(5) provides a definition for “prior record” and sets forth the parameters under which a remote conviction will not be scored under the Criminal Punishment Code....

...expressed through the provisions of the Criminal Punishment Code. Further, the statute provides that for a prior conviction to be excluded as remote, the defendant must maintain a conviction-free record for the intervening ten-year period. § 921.0021(5), Fla....

...motion denied. See Harper, 5 So.3d at 766 n. 1. Because Shorter was not before the court for sentencing on the leaving the scene of an accident charge, it was improper to consider those victim injury points in sentencing Shorter for child abuse. See § 921.0021(7)(a), Fla....

...A primary offense is “the offense at conviction pending before the court for sentencing for which the total sentence points recommend a sanction that is as severe as, or more severe than, the sanction recommended for any other offense committed by the offender and pending before the court at sentencing.” § 921.0021(4), Fla. Stat. An additional offense is “any offense other than the primary offense for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.” § 921.0021(1), Fla....

...states that a court may add points to a defendant’s CPC score sheet for 6 “victim injury” when there is “physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing.” Accord § 921.0021(7)(a), Fla....

raises two facial constitutional challenges to section 921.0021(7)(e), Florida Statutes (2022). He also challenges

...Because Appellant completed his sentences for those seventeen counts of third-degree grand theft prior to the time he violated his probation, and therefore, those counts were not “pending before the court for sentencing at the time of the primary offense,” we agree the scoresheet was scored improperly. See § 921.0021(1), Fla....

...2010) (“Offenses over which the trial court no longer has jurisdiction cannot be scored as additional offenses during a sentencing proceeding following a violation of probation because they do not fit the definition of ‘additional offense’ set out in section 921.0021, Florida Statutes (1999).”); Somps v....

...concluded that “the arrests and convictions” considered by a trial judge in 7 sentencing must, “by definition,” occur “prior to the time of the primary offense” and not after the primary offense. Id. (quoting § 921.0021(5), Fla. Stat....

...Indeed, the Florida Supreme Court emphasized, “the terms ‘primary offense’ and ‘prior record,’ which are included in the [Criminal Punishment Code’s] sentencing principles, do not include a subsequent arrest and its related charges.” Id. (citing §§ 921.0021(4), (5), Fla....

...The court noted that the Criminal Punishment Code defines “prior record” as “a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense,” and applied the “last antecedent doctrine” to conclude that section 921.0021(5)’s antecedent phrase, “committed by the offender, as an adult or juvenile, prior to the time of the primary offense,” modified only the immediately preceding term—“crime”—and not the earlier preceding term “conviction.” Id. (citing § 921.0021(5), Fla....

...2), sexual misconduct by a county or municipal detention facility employee. Specifically, Lewis contests the 80 points assessed for victim injury on his criminal punishment code scoresheet. Lewis argues victim injury points are inappropriate because section 921.0021(7)(a) prohibits such points from being assessed for violations of a similar statute, section 944.35(3)(b)2., Florida Statutes (2002). See § 921.0021(7)(c), Fla. Stat. (2002). As the resolution of this appeal hinges upon statutory construction, the appeal is reviewed de novo. See State v. Burkhart, 869 So.2d 1242, 1244 (Fla. 4th DCA 2004). Section 921.0021(7)(c), exempts the assessment of victim injury points when the defendant is convicted of a violation of section 944.35(3)(b)2., which is similar to section 951.221(1), but applies exclusively to State Department of Corrections employees. § 944.35(3)(b)2., Fla. Stat. 1 We affirm the trial court’s ruling because the clear language of section 921.0021(7) does not exempt victim injury points from being assessed for a violation of section 951.221(1)....

...State, 802 So.2d 281, 287 (Fla.2001) (“[A] basic principle of statutory construction” prevents courts from “add[ing] words to statutes that were not placed there by the Legislature.”). We write, however, to suggest the Legislature may wish -to readdress section 921.0021(7)(e), insomuch as the law provides an exemption from victim injury points to a State detention worker who violates section 944.35(3)(b)2., but' does not provide the same exemption to a county or municipal detention worker who violates section 951.221(1)....

...Court to grant Lewis the relief he requests. See, e.g., Shulmister v. City of Pompano Beach, 798 So.2d 799, 802 (Fla. 4th DCA 2001) (quoting City of Miami Beach v. Galbut, 626 So.2d 192, 193 (Fla.1993)). GUNTHER, STONE and STEVENSON, JJ„ concur. . Section 921.0021(7) also exempts the assessment of victim injury points for violations of section 872.06, Florida Statutes. § 921.0021(7)(d), Fla....

...imposed for the primary offense (count 1). That is because the LPS for the primary offense in this case exceeds the maximum sentence for the offense under section 775.082. Again, the statutes’ plain language and the Gabriel opinion guide the analysis. Section 921.0021, Florida Statutes (2015), of the Florida Criminal Punishment Code provides the definition of “primary offense” and “additional offense” as used on the scoresheet to calculate the LPS: (1) “Additional offense” means...

...severe than, the sanction recommended for any other offense committed by the offender and pending before the court at sentencing. Only one count of one offense before the court for sentencing shall be classified as the primary offense. § 921.0021(1), (4), Fla....

...(2015) (emphasis added). Because (1) the primary offense’s total sentence points, by definition, must be “as severe as, or more severe than, the sanction recommended for any other offense committed by the offender and pending before the court at sentencing,” § 921.0021(4), Fla....

...that does not include sexual penetration, the sexual contact must be scored in accordance with the sentence points provided under s. 921.0024 for sexual contact, regardless of whether there is evidence of any physical injury. § 921.0021(7)(a)–(b), Fla....

...ng that there were errors on his scoresheet and that he was not given proper credit for time served. In his 3.800(a) motion, Walkes argued that his prior convictions should not have been scored on his Criminal Punishment Code scoresheet, pursuant to section 921.0021(5), Florida Statutes, because the prior convictions were too remote....

...his “prior record.” We conclude the defendant’s first and second sentencing arguments lack merit, without further discussion. The state concedes error on the defendant’s third sentencing argument. We agree and will address briefly. Section 921.0021(5), Florida Statutes (2012), defines a “prior record” as “a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense.” Florida Rule of Criminal Procedure 3.704(d)(14) provides the same definition....

...The court granted Graham’s motion for judgment of acquittal for a separate count, giving a false name to a law enforcement officer; however, points were assessed for this offense on his score-sheet. Furthermore, points for Graham’s prior juvenile convictions were incorrectly included as prior record. Section 921.0021(5), Florida Statutes, (2004) provides, in relevant part, that “juvenile dispositions of offenses committed by the offender within 5 years before the primary offense are included in the offender’s prior record when the offense would have been a crime had the offender been an adult rather than a juvenile.” § 921.0021(5), Fla....

...touching the victim’s clothed buttocks. Fretwell objected to the assessment of these points, and the trial judge overruled the objection. Fretwell contends that the inclusion of the points was error under existing case precedent. Florida Statutes section 921.0021(7) (2002) permits assessing sentence points for victim injury for incidences of sexual contact....

...sentences imposed after the defendant violated his probation on two sentences. Second, Sanders involved three other felonies for which the defendant had completed his sentence, so they could not qualify as “additional offenses” within the meaning of section 921.0021(1), Florida Statutes, because the court no longer had jurisdiction over them....

...not be scored as primary offenses at conviction. State v. Troutman, 685 So.2d 1290 (Fla.1996); Armstrong v. State, 656 So.2d 455 (Fla.1995); Bordeaux v. State, 471 So.2d 1353 (Fla. 1st DCA 1985). We also acknowledge that the introductory language in section 921.0021 tends to support Fudge’s argument that additional offenses must be felonies: 921.0021 Definitions....

...amended sentence guideline scoresheet as a prior offense resulting in a much greater sentence for violating his probation. The State concedes error. The court should have sentenced him pursuant to the guideline range of his original scoresheet. See § 921.0021(5), Fla....

...The scoresheet therefore should have reflected the primary offense as a level nine, instead of a level ten, offense. The defendant should have been assessed 92 points instead of 116 points. This is a difference of twenty- four (24) points. o Victim Injury Points Section 921.0021(7)(a), Fla....

...ant caused the victim’s injury or death as part of aggravated fleeing or eluding: Give if it is alleged in the charging document that the defendant caused victim injury or death as part of violating § 316.027, Fla. Stat. § 921.0021(7)(e), Fla....

...on that creates a substantial risk of death, serious disfigurement, or protracted loss or impairment of the function of a bodily member or organ. Give if it is alleged in the charging document that the defendant caused victim injury or death. § 921.0021(7)(e), Fla....

...� or willfully failed to give reasonable assistance, the State satisfies this element of the offense. Give if it is alleged in the charging document that the defendant caused victim injury or death as part of violating § 316.027, Fla. Stat. § 921.0021(7)(e), Fla....

...� or willfully failed to give reasonable assistance, the State satisfies this element of the offense. Give if it is alleged in the charging document that the defendant caused victim injury or death as part of violating § 316.027, Fla. Stat. § 921.0021(7)(e), Fla....

discretion of the Parole and Probation Commission. § 921.21, Fla.Stat. (1979). Accordingly, the judgment and

...he death penalty under recently enacted section 921.137, Florida Statutes (2001). See ch.2001-202, § 1 at 1831-33, Laws of Fla. The Rules Committee also sought to amend rule 3.704, the Criminal Punishment Code, to comport with a recent amendment to section 921.0021(5), Florida Statutes (2000), which redefines the term “prior record” to include juvenile dispositions that were committed up to five years, rather than three years, before the primary offense....

...n light of the Court’s decision in Amendments to Florida Rules of Criminal Procedure 3.70k & 3.992 (Criminal Punishment Code), 810 So.2d 826 (Fla.2001). In that case, the Court amended rule 3.704(d)(14)(B) to comport with the 2001 amendment to section 921.0021(5)....

...sion of the primary offense. “Prior record” was previously defined to include juvenile disposition of offenses committed within 3 years prior to the date of the commission of the primary offense. This amendment reflects the legislative change to section 921.0021, Florida Statutes, effective July 1, 2001....

“prior record.” We agree that this was error. Section 921.0021(5), Florida Statutes (2018), defines “prior

...We affirmed the court’s consideration of the new charge, but the Florida Supreme Court quashed our decision, holding that “the arrests and convictions considered by a trial judge in sentencing occur ‘prior to the time of the primary offense,’ and not subsequent to the primary offense.” Id. at 409 (quoting § 921.0021(5), Fla....

...I read the second and last sentences in pari materia. Although not explicit, I contend the legislature intended the last sentence to refer only to the primary offense, since under the Criminal Punishment Code scoring system, there can be only one primary offense. § 921.0021(4), Fla....

...ication of any kind. Some statutes expressly define a conviction to include a disposition where an accused pleads no contest or guilty but a formal adjudication is withheld. See, e.g., Montgomery v. State, 897 So.2d 1282 (Fla.2005) (recognizing that § 921.0021(2) (2002) defines conviction to include withhold adjudication and probation under no contest plea); Westberry v....

...cation of any kind. Some statutes expressly define a conviction to include a disposition where an accused pleads no contest or guilty but a formal adjudication is withheld. See, e.g., Montgomery v. State, 897 So.2d 1282 (Fla. 2005) (recognizing that § 921.0021(2) (2002) defines conviction to include withhold adjudication and probation under no contest plea); Westberry v....

...provides, “[i]f the lowest permissible sentence under the code points, any legal status points, community sanction points, prior serious felony points, prior capital felony points, and points for possession of a firearm or semiautomatic weapon.” 4. Section 921.0021(4), Florida Statutes (2012), defines “primary offense” as “the offense at conviction pending before the court for sentencing for which the total sentence points recommend a sanction that is as severe as, or more severe than, the sanction recommended for any other offense committed by the offender and pending before the court at sentencing” and explains that “[o]nly one count of one offense before the court for sentencing shall be classified as the primary offense.” Section 921.0021(1) defines “additional offense” as “any offense other than the primary offense for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.” - 10 - exceeds the statutory maximum sentence as provided in s....

..."Primary offense" is defined as the "the offense at conviction pending before the court for sentencing for which the total sentence points recommend a sanction that is as severe as, or more severe than, the sanction recommended for any other offense committed by the offender and pending before the court at sentencing." § 921.0021(4). "Prior record" is defined as "a conviction for a crime committed ... prior to the time of the primary offense." § 921.0021(5). Additional offenses, those "for which an offender is convicted and which [are] pending before the court for sentencing at the time of the primary offense," § 921.0021(1), are scored and included in the total sentence points calculation, which is then used solely to determine the offender's LPS, see § 921.0024(1)(a), (2)....

...l offender sentence for an offense, the trial court removes that offense from sentencing under the guidelines and cannot include that offense either as a primary or additional offense on the guidelines scoresheet."). However, we note that "[s]ection 921.0021 does not differentiate original sentencing proceedings ......

...when the trial court imposes a habitual offender sentence for an offense, the trial court removes that offense from sentencing under the guidelines and cannot include that offense either as a primary or additional offense on the guidelines scoresheet."). However, we note that "[s]ection 921.0021 does not differentiate original sentencing proceedings ....

..."Primary offense" is defined as the "the offense at conviction pending before the court for sentencing for which the total sentence points recommend a sanction that is as severe as, or more severe than, the sanction recommended for any other offense committed by the offender and pending before the court at sentencing." § 921.0021(4). "Prior record" is defined as "a conviction for a crime committed . . . prior to the time of the primary offense." § 921.0021(5). Additional offenses, those "for which an offender is convicted and which [are] pending before the court for sentencing at the time of the primary offense," § 921.0021(1), are scored and included in the total sentence points -5- calculation, which is then used solely to determine the offender's LPS, see § 921.0024(1)(a), (2)....

...uilty on count VI. Despite the fact that the jury did not find Leveille guilty of a violation of section 800.04, the trial court assessed “sexual contact” points, because it found that the charged offense included sexual contact. This was error. Section 921.0021(7), Florida Statutes, provides: (7)(a) “Victim injury” means the physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for ivhich an offender is convicted and which is pending before the court for sentencing at the time of the primary offense....

...the Florida Statutes and in the Florida Rules of Criminal Procedure. The statutory definition of “prior record” is “a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense.” § 921.0021(5), Fla....

...Nasworthy, 751 So. 2d 772, 774 (Fla. 1st DCA 2000). Here, pursuant to statute, “prior record” is defined as “a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense.” § 921.0021(5), Fla....

...ictment or information on which the defendant is to be tried”). Alternatively, if a defendant pleads guilty or nolo contendere, changes his plea to one of these before trial, or is found guilty at trial, there will be a judgment of conviction. See § 921.0021(2), Fla....

...Contrary to the State’s argument, the record shows he was sentenced under the Criminal Punishment Code, not a recidivist statute. The scoresheet should not have included pending charges from a separate case which he had not been convicted of at the time of sentencing in this case. § 921.0021(1), Fla....