Patrick Scott v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D15-3134 _____________________________

PATRICK SCOTT,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Leon County. James O. Shelfer, Judge.

December 14, 2018

PER CURIAM.

In this direct appeal, we affirm Appellant’s convictions and sentences for sexual battery and possession of cocaine. We write only to address Appellant’s claim that the trial court erred in scoring his prior Georgia burglary conviction as burglary of an occupied structure.

Below and on appeal, the parties disagree whether the underlying facts establish that the store in Georgia was occupied when Appellant burglarized it. However, “neither the trial court nor this court is permitted to consider underlying facts in determining the existence of an analogous Florida offense.” Snipes v. State, 793 So. 2d 1107, 1108 (Fla. 1st DCA 2001). Instead, only the elements of the out-of-state crime should be considered in

determining whether a conviction is analogous to a Florida crime. Dautel v. State, 658 So. 2d 88, 91 (Fla. 1995); Bracey v. State, 109 So. 3d 311, 314 (Fla. 2d DCA 2013); Michaud v. State, 2 So. 3d 375, 376 (Fla. 4th DCA 2008); Montoure v. State, 880 So. 2d 793, 794 (Fla. 1st DCA 2004); Knarich v. State, 866 So. 2d 165, 168 (Fla. 2d DCA 2004); Snipes, 793 So. 2d at 1108; Holybrice v. State, 753 So. 2d 621, 623 (Fla. 4th DCA 2000); Lee v. State, 675 So. 2d 682, 683 (Fla. 1st DCA 1996).

Appellant has not argued below or on appeal that the trial court erred in relying on underlying facts to score the Georgia burglary conviction or that the elements of the out-of-state crime were not analogous to the Florida offense of burglary of an occupied structure. Here, the court will not reverse the trial court’s ruling on grounds neither raised nor argued by the parties. Accordingly, we affirm.

AFFIRMED.

BILBREY, WINOKUR, and JAY, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.