Doner v. StateDoner v. State
Verne Albert Doner appeals a judgment adjudicating him guilty of three counts of burglary and three counts of grand theft and his sentence of four and one-half years’ imprisonment to be followed by five years’ probation.
This is a sentencing guidelines case involving alleged errors in the scoresheet. In 1984, the state charged Doner with burglary, grand theft, and dealing in stolen property, violations of
Doner‘s points on appeal relate only to his sentence. He claims there are several errors in the scoresheet, and he argues that the trial court erred by placing the burden on him to prove such scoresheet errors and certain defects in the presentencing investigation report.
Doner‘s first complaint concerns the denomination of the two burglaries charged in the 1986 information as the “primary offense at conviction” on the scoresheet. He urges that all three burglary offenses pending for sentencing should have been included under the primary offense category regardless of the dates of the offenses or the fact that there were separate informations. His position on this point is consistent with the provisions set forth in
Doner‘s second contention is directed to his 1984 convictions for dealing in stolen property and grand theft. He argues that it is the state‘s burden to produce corroborating evidence as to scoring both the dealing in stolen property and grand theft for the same property. We disagree. The burden was on Doner to show that the convictions involved the same property. Croft v. State, 513 So.2d 759 (Fla. 2d DCA 1987). Doner not only failed to do this, but he also pled guilty to both charges. The record reflects that neither the convictions nor the sentences were challenged int he trial court.
Doner‘s third complaint is that the state should have been required to corroborate its position as to scoring points for legal constraint. At Doner‘s sentencing hearings, he maintained that his parole was revoked in January 1984. Thus, he argues that he was not under legal constraint when he committed the offenses charged in the 1984 and 1986 informations. The state, however, contends that Doner‘s parole was revoked in March 1985. We think that the burden to determine when Doner‘s probation was revoked was on the state. See Vandeneynden v. State, 478 So.2d 429
Fourth, Doner argues that the state did not establish that his 1984 Virginia grand larceny offense was a second-degree felony as opposed to a third-degree felony as in Florida. He is correct on this point. On remand, the state should produce evidence concerning the degree of the Virginia conviction. See Vandeneynden, 478 So.2d at 430. If the degree of felony is impossible to determine or is doubtful, then this uncertainty should be resolved in Doner‘s favor, and the Virginia grand larceny conviction should be scored as a third-degree felony.
Finally, Doner argues that the trial court erred when it delegated to a probation officer the determination of the amount of restitution he was to pay one of his victims. We agree with Doner. We have repeatedly said that the task of determining the amount of restitution rests solely with the trial court and cannot be delegated. Perry v. State, 513 So.2d 254 (Fla. 2d DCA 1987); Mansell v. State, 498 So.2d 604 (Fla. 2d DCA 1986). On remand, the trial court should determine this amount.
Accordingly, we affirm Doner‘s convictions, but we vacate his sentence and remand for resentencing in accordance with the directions herein.
DANAHY, C.J., and SCHOONOVER, J., concur.