Rodrick D. Williams v. State of Florida , 242 So. 3d 280 ( 2018 )


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  •           Supreme Court of Florida
    ____________
    No. SC17-506
    ____________
    RODRICK D. WILLIAMS,
    Petitioner,
    vs.
    STATE OF FLORIDA,
    Respondent.
    [February 22, 2018]
    LABARGA, C.J.
    This case is before the Court for review of the decision of the Fifth District
    Court of Appeal in Williams v. State (Williams II), 
    211 So. 3d 1070
    (Fla. 5th DCA
    2017). In its decision, the Fifth District ruled upon the following question certified
    to be of great public importance:
    DOES ALLEYNE V. UNITED STATES, 
    570 U.S. 99
    , 
    133 S. Ct. 2151
    ,
    
    186 L. Ed. 2d 314
    (2013), REQUIRE THE JURY AND NOT THE
    TRIAL COURT TO MAKE THE FACTUAL FINDING UNDER
    SECTION 775.082(1)(b), FLORIDA STATUTES (2016), AS TO
    WHETHER A JUVENILE OFFENDER ACTUALLY KILLED,
    INTENDED TO KILL, OR ATTEMPTED TO KILL THE VICTIM?
    
    Id. at 1073.
    We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the
    reasons explained below, we hold that Alleyne requires a jury to make the factual
    finding, but conclude that Alleyne violations are subject to harmless error review.
    Where the error cannot be deemed harmless, the proper remedy is to resentence the
    juvenile offender pursuant to section 775.082(1)(b)2., Florida Statutes (2016).
    FACTS AND PROCEDURAL BACKGROUND
    On December 19, 2013, a jury found Petitioner Rodrick D. Williams guilty
    of first-degree murder and kidnapping. During the evening hours of April 26,
    2010, and through the early morning hours of April 27, 2010, victim James
    Vincent Brookins was beaten and bound with duct tape at a “trap house”1 in
    Jacksonville, then transported in the trunk of a vehicle to a rural road in St. Johns
    County, where he was shot twice. Two other individuals, Harry Henderson and
    Sharina Parker, were also involved in the death of Brookins. Williams and Parker
    were involved in a sexual relationship. Although Henderson and Parker were
    adults at the time of the murder, Williams was sixteen years old. The firearm used
    to commit the murder was never located.
    The predominant evidence offered during trial to connect Williams to the
    offenses included: (1) the police interrogation of Williams, during which his
    1. During trial, a St. Johns County Sheriff’s Office detective explained that
    the term “trap house” is “a slang term for a house, an apartment, a whatever,
    residence where folks don’t actually live. They just go there to either sell drugs or
    use drugs. It’s kind of just a vacant residence.”
    -2-
    mother was present and Williams signed a Miranda2 waiver; (2) a text message
    purportedly sent by Williams to Parker at 6:24 p.m. on April 26, in which Williams
    stated, “Bae thx killah[3] i cant talk cuz im round 2 many people but jus chill bae
    ima take care of yo problems jus give me the greenlight”; and (3) the testimony of
    a jailhouse informant.
    During the interrogation, Williams contended it was Henderson who shot
    Brookins. According to Williams, Parker called him between 2 and 3 p.m. on
    April 26—less than five hours before the text message was sent—and told him she
    had been robbed of marijuana by a relative of Brookins during a drug transaction,
    and Parker believed Brookins had “set her up.” Williams asserted that Parker and
    Henderson brought Brookins to the trap house later that day in an attempt to force
    him to give them money or disclose the location of his safe, where Parker believed
    the stolen marijuana was stored. Parker subsequently picked up Williams and
    drove him to the trap house, where, upon entering the house, Williams saw “blood
    all over” and Brookins begging for his life. According to Williams, Henderson
    beat Brookins with a gun, and Henderson and Parker bound his arms and legs and
    covered his mouth with duct tape as Brookins screamed. Williams stated that
    2. Miranda v. Arizona, 
    384 U.S. 436
    (1966).
    3. Williams’s mother gave him the nickname “Killer.”
    -3-
    while at the trap house, Parker told him she and Henderson planned to leave
    Brookins alive in the trunk of the vehicle.4 Williams admitted he drove the vehicle
    with Brookins in the trunk to the rural road while Henderson and Parker rode in a
    separate vehicle. He stated that upon arriving, Henderson wiped down the vehicle
    used to transport Brookins, opened the trunk, and shot Brookins. Williams
    asserted that he only participated in the offenses because he feared he would be
    harmed if he refused.
    In contrast, during trial, the informant testified that while they were housed
    together at the St. Johns County jail, Williams admitted that he brought a gun to
    the trap house and shot Brookins. According to the informant, Williams stated he
    was involved in the plan to lure Brookins to the trap house on the pretense of
    having gold teeth created5 and then force him to disclose the location of his safe.
    Coincidentally, prior to his interactions with Williams, the informant was housed
    4. However, Williams also contradicted himself by implying he knew
    Henderson and Parker planned to kill Brookins:
    I was telling them, I’m, like, “I’m not going to be driving this man
    around. Is y’all crazy? What if we get stopped? I’m gonna catch this
    murder charge, not y’all.” You know what I’m saying? . . . [“]And
    I’m not going to jail for y’all.”
    (Emphasis added.)
    5. According to the informant, Brookins possessed portable equipment for
    creating gold teeth.
    -4-
    with codefendant Henderson at the St. Johns County jail. The informant testified
    on cross-examination that Henderson assisted him by filing a motion on his behalf
    with respect to a drug-related charge and, as a result of Henderson’s assistance, the
    charge was dropped. However, the informant testified that Henderson never spoke
    with him about the Brookins homicide.
    The jury was instructed on both first-degree premeditated murder and first-
    degree felony murder with robbery, attempted robbery, kidnapping, and attempted
    kidnapping as the underlying felonies; however, the verdict form did not require
    the jury to specify the theory upon which it found Williams guilty of first-degree
    murder. Upon conviction, the trial court sentenced Williams to life imprisonment
    with the possibility of parole in twenty-five years for the murder. The court relied
    upon Horsley v. State (Horsley I), 
    121 So. 3d 1130
    (Fla. 5th DCA 2013), quashed,
    
    160 So. 3d 393
    (Fla. 2015), in which the Fifth District Court of Appeal addressed
    the implications of Miller v. Alabama, 
    567 U.S. 460
    (2012), for Florida sentencing
    law. See Williams v. State (Williams I), 
    171 So. 3d 143
    , 144-45 (Fla. 5th DCA
    2015). Because Miller determined “the Eighth Amendment forbids a sentencing
    scheme that mandates life in prison without possibility of parole for juvenile
    
    offenders,” 567 U.S. at 479
    , the Fifth District in Horsley I held that in Florida, the
    only sentence available for a juvenile offender convicted of capital murder was life
    -5-
    imprisonment with the possibility of parole after twenty-five years. Williams 
    I, 171 So. 3d at 144
    .
    On appeal, the Fifth District affirmed Williams’s convictions but reversed
    his sentence with respect to the murder conviction. 
    Id. The district
    court
    recognized that while the trial court properly relied on Horsley I when it imposed
    the sentence, this Court subsequently granted review of Horsley I based upon a
    certified question. 
    Id. at 144-45.
    In Horsley v. State (Horsley II), 
    160 So. 3d 393
    (Fla. 2015), we held the appropriate remedy for juveniles whose sentences are
    unconstitutional under Miller is to resentence them in conformance with chapter
    2014-220, Laws of Florida. See Williams 
    I, 171 So. 3d at 144
    . Chapter 2014-220
    was enacted to bring Florida juvenile sentencing law into compliance with United
    States Supreme Court Eighth Amendment jurisprudence. See Horsley II, 
    160 So. 3d
    at 394. It amended section 775.082(1), Florida Statutes, to provide, in pertinent
    part:
    (b)1. A person who actually killed, intended to kill, or
    attempted to kill the victim and who is convicted under s. 782.04 of a
    capital felony, or an offense that was reclassified as a capital felony,
    which was committed before the person attained 18 years of age shall
    be punished by a term of imprisonment for life if, after a sentencing
    hearing conducted by the court in accordance with s. 921.1401, the
    court finds that life imprisonment is an appropriate sentence. If the
    court finds that life imprisonment is not an appropriate sentence, such
    person shall be punished by a term of imprisonment of at least 40
    years. A person sentenced pursuant to this subparagraph is entitled to
    a review of his or her sentence in accordance with s. 921.1402(2)(a).
    -6-
    2. A person who did not actually kill, intend to kill, or attempt
    to kill the victim and who is convicted under s. 782.04 of a capital
    felony, or an offense that was reclassified as a capital felony, which
    was committed before the person attained 18 years of age may be
    punished by a term of imprisonment for life or by a term of years
    equal to life if, after a sentencing hearing conducted by the court in
    accordance with s. 921.1401, the court finds that life imprisonment is
    an appropriate sentence. A person who is sentenced to a term of
    imprisonment of more than 15 years is entitled to a review of his or
    her sentence in accordance with s. 921.1402(2)(c).
    Ch. 2014-220, § 1, Laws of Fla. The session law also created section 921.1402,
    Florida Statutes (2017), which provides, in pertinent part:
    (2)(a) A juvenile offender sentenced under s. 775.082(1)(b)1. is
    entitled to a review of his or her sentence after 25 years [unless the
    juvenile offender has been previously convicted of certain enumerated
    offenses that were part of a separate criminal transaction or episode].
    ....
    (c) A juvenile offender sentenced to a term of more than 15
    years under s. 775.082(1)(b)2., s. 775.082(3)(a)5.b., or
    s. 775.082(3)(b)2.b. is entitled to a review of his or her sentence after
    15 years.
    Ch. 2014-220, § 3, Laws of Fla.
    The Fifth District in Williams I instructed the trial court as follows:
    On remand, the trial court shall hold an individualized sentencing
    hearing . . . to consider the enumerated and other pertinent factors
    “relevant to the offense and [Williams’s] youth and attendant
    circumstances.” Ch. 2014–220, § 2, Laws of Fla. Because the jury
    did not find that Williams actually possessed and discharged a firearm
    during the crime, the court must make a written finding as to whether
    Williams killed, intended to kill, or attempted to kill the victim.
    Ch. 2014–220, § 1, Laws of Fla. Based on that determination, after
    holding the individualized hearing, the trial court may sentence
    Williams to life imprisonment if it finds that life is an appropriate
    sentence. 
    Id. If the
    trial court determines that life is not an
    -7-
    appropriate sentence, then it should sentence Williams to a term of at
    least forty years’ imprisonment. 
    Id. Either way,
    unless Williams has
    a prior conviction of a felony enumerated in section three of chapter
    2014–220, Laws of Florida, arising out of a separate criminal
    transaction or episode, he will receive a judicial review of his sentence
    after fifteen or twenty-five years, depending on the court’s
    determination. See ch. 2014–220, § 3, Laws of 
    Fla. 171 So. 3d at 145
    (second alteration in original).
    On September 30, 2015, Williams filed with the trial court a Motion to
    Empanel Jury. Williams asserted that because the finding that a juvenile offender
    actually killed, intended to kill, or attempted to kill the victim leads to a minimum
    forty-year sentence with a sentence review after twenty-five years—whereas a
    finding that the offender did not actually kill, intend to kill, or attempt to kill the
    victim results in there being no minimum sentence and a sentence review after
    fifteen years—Alleyne requires that this factual determination be made by a jury
    beyond a reasonable doubt. The trial court denied the motion on the basis that it
    had been directed by the Fifth District to make the finding.
    After a hearing, the trial court found that Williams both actually killed and
    intended to kill Brookins. The court subsequently held a resentencing hearing on
    the first-degree murder conviction pursuant to section 921.1401, Florida Statutes
    (2016), and again sentenced Williams to life imprisonment, but with a sentence
    review in twenty-five years, as required by section 921.1402(2)(a), Florida Statutes
    (2016).
    -8-
    On appeal, Williams challenged the trial court’s denial of his Motion to
    Empanel Jury. Williams 
    II, 211 So. 3d at 1071
    . The Fifth District held that the
    trial court properly denied the motion, but noted that the Alleyne challenge
    appeared to have merit on the basis that the finding “increases both the mandatory-
    minimum from zero years to forty years—if the sentencing court determines that
    life is not an appropriate sentence—and the time for a sentence review hearing
    from fifteen years to twenty-five years.” 
    Id. at 1072-73.
    However, the Fifth
    District explained that in Falcon v. State, 
    162 So. 3d 954
    (Fla. 2015), this Court
    stated the trial court was to make the finding of whether the defendant actually
    killed, intended to kill, or attempted to kill the victim. 
    Id. at 1073.
    6 As a result, the
    Fifth District certified the question now before this Court as one of great public
    importance.
    ANALYSIS
    Alleyne v. United States
    In Alleyne, the defendant (Alleyne) was charged with using or carrying a
    firearm in relation to a crime of violence, as well as other federal offenses, arising
    from the robbery of a store 
    manager. 570 U.S. at 103
    . The applicable statute
    provided that anyone who uses or carries a firearm in relation to a crime of
    6. Our decision in Falcon did not address the applicability of Alleyne to
    chapter 2014-220 because neither party raised the issue.
    -9-
    violence shall be sentenced to a minimum of five years in prison. 
    Id. However, if
    the firearm is brandished, the statute mandated a minimum sentence of seven
    years’ incarceration. 
    Id. at 104.
    The jury convicted Alleyne and indicated on the
    verdict form that he used or carried a firearm; however, the jury did not indicate a
    finding that the firearm was brandished. 
    Id. The trial
    court found that the evidence
    supported a finding of brandishing and imposed a seven-year sentence on this
    count. 
    Id. The United
    States Court of Appeals for the Fourth Circuit affirmed. 
    Id. On certiorari
    review, the United States Supreme Court vacated the Fourth
    Circuit’s judgment with respect to the sentence on the count of using or carrying a
    firearm in relation to a crime of violence and remanded for resentencing. 
    Id. at 117-18.
    The Supreme Court held that any fact that increases the mandatory
    minimum sentence for an offense is an “element” which must be submitted to a
    jury and found beyond a reasonable doubt. 
    Id. at 108.
    In reaching this holding, the
    Supreme Court relied upon Apprendi v. New Jersey, 
    530 U.S. 466
    (2000), in which
    it held that any fact that increases the statutory maximum sentence is an “element”
    of the offense to be found by a jury. 
    Alleyne, 570 U.S. at 106
    ; see also 
    Apprendi, 530 U.S. at 490
    (“Other than the fact of a prior conviction, any fact that increases
    the penalty for a crime beyond the prescribed statutory maximum must be
    submitted to a jury, and proved beyond a reasonable doubt.”).
    - 10 -
    The Supreme Court explained that “Apprendi’s definition of ‘elements’
    necessarily includes not only facts that increase the ceiling, but also those that
    increase the floor. Both kinds of facts alter the prescribed range of sentences to
    which a defendant is exposed and do so in a manner that aggravates the
    punishment.” 
    Alleyne, 570 U.S. at 108
    . The Court further stated:
    [I]t is impossible to dispute that facts increasing the legally prescribed
    floor aggravate the punishment. Elevating the low end of a
    sentencing range heightens the loss of liberty associated with the
    crime: the defendant’s “expected punishment has increased as a result
    of the narrowed range” and “the prosecution is empowered, by
    invoking the mandatory minimum, to require the judge to impose a
    higher punishment than he might wish.” 
    Apprendi, supra, at 522
    , 
    120 S. Ct. 2348
    (THOMAS, J., concurring). Why else would Congress link
    an increased mandatory minimum to a particular aggravating fact
    other than to heighten the consequences for that behavior? This
    reality demonstrates that the core crime and the fact triggering the
    mandatory minimum sentence together constitute a new, aggravated
    crime, each element of which must be submitted to the jury. [n.2]
    [N.2.] Juries must find any facts that increase either the
    statutory maximum or minimum because the Sixth
    Amendment applies where a finding of fact both alters
    the legally prescribed range and does so in a way that
    aggravates the penalty. Importantly, this is distinct from
    factfinding used to guide judicial discretion in selecting a
    punishment “within limits fixed by law.” Williams v.
    New York, 
    337 U.S. 241
    , 246 (1949). While such
    findings of fact may lead judges to select sentences that
    are more severe than the ones they would have selected
    without those facts, the Sixth Amendment does not
    govern that element of sentencing.
    
    Id. at 113
    (citations omitted).
    - 11 -
    The Supreme Court rejected the contention that, because the seven-year
    sentence could have been imposed without the finding of brandishing, the Sixth
    Amendment right to trial by jury was not violated:
    [T]he essential Sixth Amendment inquiry is whether a fact is an
    element of the crime. When a finding of fact alters the legally
    prescribed punishment so as to aggravate it, the fact necessarily forms
    a constituent part of a new offense and must be submitted to the jury.
    It is no answer to say that the defendant could have received the same
    sentence with or without that fact. It is obvious, for example, that a
    defendant could not be convicted and sentenced for assault, if the jury
    only finds the facts for larceny, even if the punishments prescribed for
    each crime are identical. One reason is that each crime has different
    elements and a defendant can be convicted only if the jury has found
    each element of the crime of conviction.
    Similarly, because the fact of brandishing aggravates the legally
    prescribed range of allowable sentences, it constitutes an element of a
    separate, aggravated offense that must be found by the jury, regardless
    of what sentence the defendant might have received if a different
    range had been applicable.
    
    Id. at 114-15.
    Section 775.082(1)(b)
    The relevant portion of section 775.082(1), Florida Statutes, provides:
    (b)1. A person who actually killed, intended to kill, or
    attempted to kill the victim and who is convicted under s. 782.04 of a
    capital felony, or an offense that was reclassified as a capital felony,
    which was committed before the person attained 18 years of age shall
    be punished by a term of imprisonment for life if, after a sentencing
    hearing conducted by the court in accordance with s. 921.1401, the
    court finds that life imprisonment is an appropriate sentence. If the
    court finds that life imprisonment is not an appropriate sentence, such
    person shall be punished by a term of imprisonment of at least 40
    years. A person sentenced pursuant to this subparagraph is entitled to
    a review of his or her sentence in accordance with s. 921.1402(2)(a).
    - 12 -
    2. A person who did not actually kill, intend to kill, or attempt
    to kill the victim and who is convicted under s. 782.04 of a capital
    felony, or an offense that was reclassified as a capital felony, which
    was committed before the person attained 18 years of age may be
    punished by a term of imprisonment for life or by a term of years
    equal to life if, after a sentencing hearing conducted by the court in
    accordance with s. 921.1401, the court finds that life imprisonment is
    an appropriate sentence. A person who is sentenced to a term of
    imprisonment of more than 15 years is entitled to a review of his or
    her sentence in accordance with s. 921.1402(2)(c).
    (Emphasis added.) Thus, a finding that a juvenile offender actually killed,
    intended to kill, or attempted to kill the victim results in a minimum sentence of
    forty years’ imprisonment under subsection (1)(b)1. Without this finding, the trial
    court is not required to impose a minimum sentence. See § 775.082(1)(b)2., Fla.
    Stat. Further, under section 921.1402, a finding of actual killing, intent to kill, or
    attempt to kill entitles a juvenile offender to a sentence review in twenty-five
    years, whereas without the finding, the juvenile offender is entitled to a sentence
    review in fifteen years (provided the trial court imposes a sentence greater than
    fifteen years). § 921.1402(2)(a), (c), Fla. Stat. Because a finding of actual killing,
    intent to kill, or attempt to kill “aggravates the legally prescribed range of
    allowable sentences,” 
    Alleyne, 570 U.S. at 115
    , by increasing the sentencing floor
    from zero to forty years and lengthening the time before which a juvenile offender
    is entitled to a sentence review from fifteen to twenty-five years, this finding is an
    - 13 -
    “element” of the offense, which Alleyne requires be submitted to a jury and found
    beyond a reasonable doubt. See 
    id. at 108.7
    The Verdict
    In this case, the verdict form did not separate out the theories of first-degree
    murder; therefore, it is unclear whether the jury found Williams guilty of
    premeditated murder, felony murder, or both. Further, with respect to the offense
    of first-degree murder, there was no interrogatory on the verdict form as to whether
    Williams discharged a firearm.8 Based upon the jury instructions given, it cannot
    be determined from the general verdict form whether the jury found beyond a
    reasonable doubt that Williams actually killed, intended to kill, or attempted to kill
    Brookins.
    First, with respect to actual killing, as part of the instruction on premeditated
    first-degree murder, the jury received an instruction on principals, which allowed it
    to find Williams guilty even if he did not actually shoot Brookins. The jury was
    advised:
    If the defendant helped another person or persons commit a
    crime, the defendant is a principal and must be treated as if he had
    done all the things the other person or persons did if, one, the
    defendant had a conscious intent that the criminal act be done; and,
    7. We recede from Falcon to the extent it concludes this determination is to
    be made by a trial court.
    8. The lesser included offenses contained interrogatories.
    - 14 -
    two, the defendant did some act or said some word which was
    intended to and which did incite, cause, encourage, assist, or advise
    the other person or persons to commit—to actually commit the crime.
    Moreover, as part of the felony-murder instruction, the jury was instructed based
    both upon whether Williams was the actual killer or whether someone else shot
    Brookins:
    To prove the crime of first-degree felony murder, the State must
    prove the following three elements beyond a reasonable doubt:
    1. That James Vincent Brookins is dead.
    2. The death occurred as a consequence of and while Rodrick
    Williams was engaged in the commission of a robbery, an attempted
    robbery, kidnapping, or an attempted kidnapping.
    3. That Rodrick Williams was a person who actually killed James
    Vincent Brookins, or James Vincent Brookins was killed by a person
    other than Rodrick Williams but both Rodrick Williams and the
    person who killed James Vincent Brookins were principals in the
    commission of a robbery, an attempted robbery, kidnapping, or an
    attempted kidnapping.
    (Emphasis added.) Therefore, based upon the instructions given, the general guilty
    verdict for first-degree murder fails to demonstrate the jury found beyond a
    reasonable doubt that Williams actually killed Brookins.
    Whether the jury found beyond a reasonable doubt that Williams intended to
    kill Brookins cannot be determined from the verdict either. The jury was
    instructed under the premeditated theory of first-degree murder that “[k]illing with
    premeditation is killing after consciously deciding to do so. The decision must be
    present in the mind at the time of the killing.” Therefore, regardless of whether
    - 15 -
    Williams actually killed Brookins, or was a principal, a finding of intent to kill
    would have been inherent in a guilty verdict as to first-degree premeditated
    murder. However, the general verdict form that was used is problematic because
    the jury was instructed that “[i]n order to convict of first-degree felony murder, it is
    not necessary for the State to prove that the defendant had a premeditated design or
    intent to kill.”
    The jury found Williams guilty of the underlying felony of kidnapping.
    However, with respect to that offense, the jury was instructed as follows:
    To prove the crime of kidnapping, the State must prove the
    following three elements beyond a reasonable doubt:
    1. That Rodrick Williams forcibly or by threat confined or abducted
    or imprisoned James Vincent Brookins against his will.
    2. Rodrick Williams had no lawful authority.
    3. Rodrick Williams acted with intent to commit or facilitate
    commission of robbery or attempted robbery . . . .
    4. Or inflict bodily harm upon or to terrorize the victim or another
    person.
    (Emphasis added.) Even if the jury found that Williams acted with the intent to
    inflict bodily harm upon Brookins,9 this does not equate to an intent to kill.
    9. During the interrogation, Williams admitted to hitting Brookins with his
    hands. The jailhouse informant testified that Williams stated he struck Brookins
    with a gun.
    - 16 -
    Based upon the foregoing, and because of the general verdict form with
    respect to the charge of first-degree murder, there is no clear jury finding that
    Williams actually killed, intended to kill, or attempted to kill Brookins. Therefore,
    an Alleyne violation occurred.
    Harmless Error
    Neither this Court nor the United States Supreme Court has addressed
    whether Alleyne violations are subject to harmless error review. We conclude such
    violations can be harmless. In Apprendi, the Supreme Court held “[o]ther than the
    fact of a prior conviction, any fact that increases the penalty for a crime beyond the
    prescribed statutory maximum must be submitted to a jury, and proved beyond a
    reasonable 
    doubt.” 530 U.S. at 490
    . In Blakely v. Washington, 
    542 U.S. 296
    (2004), the Supreme Court explained:
    [T]he “statutory maximum” for Apprendi purposes is the maximum
    sentence a judge may impose solely on the basis of the facts reflected
    in the jury verdict or admitted by the defendant. In other words, the
    relevant “statutory maximum” is not the maximum sentence a judge
    may impose after finding additional facts, but the maximum he may
    impose without any additional findings. When a judge inflicts
    punishment that the jury’s verdict alone does not allow, the jury has
    not found all the facts “which the law makes essential to the
    punishment,” and the judge exceeds his proper authority.
    
    Id. at 303-04
    (citations omitted) (quoting 1 Joel Prentiss Bishop, Criminal
    Procedure § 87, at 55 (2d ed. 1872)). In Washington v. Recuenco, 
    548 U.S. 212
    ,
    215 (2006), the Supreme Court held that Blakely violations are subject to harmless
    - 17 -
    error review. See also Galindez v. State, 
    955 So. 2d 517
    , 522-23 (Fla. 2007) (“[T]o
    the extent some of our pre-Apprendi decisions may suggest that the failure to
    submit factual issues to the jury is not subject to harmless error analysis, Recuenco
    has superseded them.”). Because Blakely derived from Apprendi, and Blakely
    errors are subject to harmless error review, we conclude that Alleyne violations can
    be harmless as well.
    In Galindez, after concluding that Apprendi violations are subject to
    harmless error review, this Court delineated the applicable consideration under the
    facts of that case:
    Count I charged that “on various occasions” in a four-month period,
    Galindez “committed an act defined as sexual battery” on a child “by
    placing his penis in union with . . . and/or penetrating the vagina of
    A.M. (a minor) with his penis.” Galindez claims that because the
    charge was made in the alternative (and therefore the jury did not
    specifically find that penetration was involved), the trial court could
    assess only 40 points for victim injury. . . . [F]or purposes of our
    harmless error analysis the issue is whether the failure to have the
    jury make the victim injury finding as to Count I contributed to the
    conviction or sentence—in other words, whether the record
    demonstrates beyond a reasonable doubt that a rational jury would
    have found penetration.
    At trial the young victim, then pregnant by Galindez, testified
    that she and Galindez engaged in sexual intercourse on multiple
    occasions over a period of several months. Galindez’s confession
    confirming these facts, including his admission that they repeatedly
    had sexual intercourse, was admitted at trial. Finally, Galindez’s
    defense at trial was that the twelve-year-old victim consented. Thus,
    Galindez did not dispute the facts of the sexual relationship at trial,
    and he did not contest them at resentencing, either.
    - 18 
    - 955 So. 2d at 523-24
    (first alteration in original) (emphasis added) (citation
    omitted). We concluded that “[i]n light of the clear and uncontested record
    evidence of penetration,” the error was harmless beyond a reasonable doubt. 
    Id. at 524.
    Based upon Galindez, the applicable question in evaluating whether an
    Alleyne violation is harmful with respect to section 775.082(1)(b) is whether the
    failure to have the jury make the finding as to whether a juvenile offender actually
    killed, intended to kill, or attempted to kill the victim contributed to his sentence—
    stated differently, whether the record demonstrates beyond a reasonable doubt that
    a rational jury would have found the juvenile offender actually killed, intended to
    kill, or attempted to kill the victim. See 
    Galindez, 955 So. 2d at 523
    .
    Application
    Based upon our review of the record in this case, the Alleyne violation
    cannot be deemed harmless. Unlike the defendant in Galindez, who did not
    dispute during trial that he and the victim engaged in sexual intercourse, Williams
    disputed both that he killed Brookins and that he was a willing participant in the
    murder. There was sharply conflicting evidence in the form of Williams’s
    statements during his interrogation that he hoped Brookins would live, and the
    testimony of the jailhouse informant who painted Williams as both an active
    participant in the plan to lure Brookins to the trap house and the actual killer.
    - 19 -
    In the light least favorable to Williams, the evidence reflects that (1) Parker
    called Williams and informed him that she had been robbed, and she believed
    Brookins “set her up”; (2) within a few hours of that call, Williams sent Parker a
    text message stating, “i cant talk cuz im round 2 many people but jus chill bae ima
    take care of yo problems jus give me the greenlight”; and (3) according to the
    informant, Williams helped devise the plan to lure Brookins to the trap house on
    the pretense of having gold teeth created and actively participated in the crimes
    against Brookins. This included striking Brookins with a firearm that Williams
    brought to the house; demanding the location of the safe while Brookins pleaded,
    “It doesn’t have to be like this. I thought we was better than this”; sending Parker
    to purchase duct tape; binding Brookins with the tape; waiting until the early
    morning hours to move Brookins to avoid being seen; placing Brookins in the
    trunk of a vehicle, bound and beaten but still alive; driving the vehicle to St. Johns
    County with Henderson in the passenger seat while Parker followed in a separate
    vehicle; wiping down the vehicle; and shooting Brookins twice.
    However, the jury could have rejected the informant’s testimony on the basis
    that he was a jailhouse informant who received a reduced sentence in exchange for
    his testimony, because certain aspects of his testimony did not make sense,10 or
    10. The informant testified that Henderson, Parker, and Williams acquired
    approximately $300,000 from Brookins’s safe and divided it equally. According to
    the informant, Williams used a portion of his third of the money to purchase a
    - 20 -
    because the informant had been previously housed with codefendant Henderson,
    who, according to the informant, assisted him with having a criminal charge
    dropped. Nonetheless, Williams’s interrogation still paints an incriminating
    picture. Williams admitted the following: (1) when he arrived at the trap house,
    Henderson gave him a firearm; (2) once he saw Brookins, who was unconscious
    from being beaten, he stepped outside and covered a portion of his face with a
    shirt;11 (3) he told Brookins, “Just cooperate, bro, and . . . you won’t die”; (4) he
    struck Brookins with his hands; (5) while at the trap house, and after Brookins had
    been severely beaten and duct-taped, he smoked marijuana that had been removed
    from Brookins’s pocket; (6) he rode with Parker to the location where Brookins
    had parked a vehicle and then drove that vehicle back to the trap house; (7) he
    removed a scooter from the trunk of that vehicle to make room for Brookins;
    (8) for approximately forty-five minutes, he drove the vehicle with Brookins in the
    trunk to the rural road in St. Johns County while Parker and Henderson rode in a
    separate vehicle; and (9) upon arrival, he could hear Brookins in the trunk
    screaming.
    house for his mother and a vehicle. However, the informant testified immediately
    afterwards that Williams’s mother was evicted from the house for “falling behind
    in rent.”
    11. When the detective suggested that Williams did this because he and
    Brookins knew each other and he “felt bad,” Williams agreed.
    - 21 -
    It can be argued that a juvenile who admits to participating in a kidnapping
    and homicide to this extent intended for the victim to be killed. The jury found
    Williams guilty of kidnapping Brookins; however, as previously discussed, intent
    to kidnap does not equal intent to kill, and the jury was instructed that to find
    Williams guilty of felony murder, the State need not prove Williams had a
    premeditated design or intent to kill. The jury could have believed that Williams
    intended to kidnap Brookins in an attempt to recover money or the drugs that had
    been stolen from Parker, a woman with whom he was having a sexual relationship,
    but that he neither shot Brookins nor intended for him to die. A review of the
    interrogation recording reflects that Williams stated he hoped and believed
    Brookins would live.12 Further, during closing statements, defense counsel argued
    that the fact that Williams placed a shirt over a portion of his face after seeing
    Brookins at the trap house demonstrated he believed Brookins would not be killed:
    Well, if he knows that Mr. Brookins is going to be murdered,
    why would you cover your face? He’s the only person there that
    could say anything about [Williams] being involved. You don’t cover
    12. Williams made statements such as “[H]onestly, I was hoping that he
    would live,” “The plan was that . . . they was going to leave him alive,” “They
    telling me now at this point that they going to drop him off and leave him in the
    trunk . . . . [There’s] so much relief just going off in my body. I’m, like, okay, so
    he’s gonna live . . . . But little do we found out, when we get there [Henderson]
    kills him,” and “I was getting out of the car, and I heard [Brookins] still screaming
    or whatever. And I was, like, okay, he’s still living. So I was happy at that point .
    . . that he wasn’t dead.”
    - 22 -
    your face if you know somebody’s going to be murdered. That
    doesn’t make sense.
    Because the record fails to demonstrate beyond a reasonable doubt that a
    rational jury would have found that Williams actually killed, intended to kill, or
    attempted to kill Brookins, the Alleyne violation here was not harmless.
    Remedy
    Williams suggests two alternative remedies for the Alleyne violation that
    occurred: empanel a new jury to make the requisite finding or resentence him
    pursuant section 775.082(1)(b)2., the applicable provision where there is a finding
    that the juvenile offender did not actually kill, intend to kill, or attempt to kill the
    victim. Our precedent in the context of Apprendi/Blakely violations demonstrates
    the latter is the appropriate remedy. In Plott v. State, 
    148 So. 3d 90
    , 95 (Fla.
    2014), the circuit court during resentencing imposed upward departure sentences
    without a jury determining the applicable factual basis for the departure, in
    violation of Apprendi and Blakely. We described the remedy as follows:
    We remand to the district court for the application of a harmless error
    analysis under Galindez, and, if it is determined not to be harmless, to
    remand the case for resentencing.
    
    Id. (emphasis added).13
    13. On remand, the Second District determined the error was harmless. See
    Plott v. State, 
    165 So. 3d 33
    , 34 (Fla. 2d DCA 2015).
    - 23 -
    Because Alleyne derives from Apprendi, and resentencing is the proper
    remedy where a harmful Apprendi/Blakely violation has occurred, see 
    Plott, 148 So. 3d at 95
    , we hold resentencing is the appropriate remedy for an Alleyne
    violation that is not harmless. Here, because the record fails to demonstrate
    beyond a reasonable doubt that a rational jury would have found Williams actually
    killed, intended to kill, or attempted to kill Brookins, he is entitled to be
    resentenced under section 775.082(1)(b)2.
    The dissent questions whether this remedy is necessary or appropriate, and
    suggests that nothing precludes the empaneling of a jury to make the factual
    determination. We are, however, hesitant to wade into “a thicket of potential and
    thorny double jeopardy issues.” United States v. Pena, 
    742 F.3d 508
    , 518 (1st Cir.
    2014). In Pena, a case that involved guilty pleas to drug offenses, the United
    States conceded an Alleyne error occurred that was not harmless, but requested that
    a “sentencing” jury be empaneled to make a factual determination as to an element
    that, if found beyond a reasonable doubt, would authorize an enhanced mandatory
    minimum sentence. 
    Id. at 509,
    514.14 In declining this request, the United States
    Court of Appeals for the First Circuit first noted:
    14. The element was death or serious bodily injury resulting from use of the
    drugs. 
    Id. at 509.
    The defendant in Pena entered “a straight guilty plea to drug
    dealing but not to ‘death resulting.’ ” 
    Id. - 24
    -
    Decisions of the Courts of Appeals after Alleyne have remanded
    for resentencing by the court. We are not aware of any court that has
    been confronted with facts analogous to those here. But in at least
    nine circuit court cases that have found reversible Alleyne error, the
    sentence was vacated and remanded for resentencing by the district
    judge. We are aware of no case, and the parties have cited none,
    remanding for use of a sentencing jury after a reversible Alleyne error.
    
    Id. at 517-18
    (footnote omitted). Further, with respect to double jeopardy
    concerns, the First Circuit stated:
    If this conviction were final, the constraint of double jeopardy would
    be clearer. It is also true that those double jeopardy safeguards do not
    usually apply to resentencing. But the effect of Alleyne and its
    predecessors is to preclude certain sentences from being imposed
    unless the elements supporting them have been proven to a jury
    beyond a reasonable doubt. The Supreme Court has not yet dealt with
    the double jeopardy issues in this context, much less in these
    transition cases where what was once thought to be a sentencing issue
    has been recognized instead to be an element of a crime.
    ....
    The prosecution’s proposed course of action here seeks to . . .
    obtain the benefit of the plea’s admissions to the essential elements of
    the two drug crimes, which are also among the essential elements . . .
    of the aggravated “death resulting” crime. Indeed, the prosecution’s
    brief is explicit that the sentencing jury would take the admissions of
    guilt from the plea for the other elements and then decide only the
    “death resulting” issue. Under the doctrine of constitutional
    avoidance, we do not decide the double jeopardy issues associated
    with the government’s request, but note them and avoid them.
    
    Id. at 518-19
    (citation omitted). In light of the constitutional concerns presented by
    the Pena court with respect to empaneling a jury where a harmful Alleyne error has
    occurred, we conclude that resentencing pursuant to section 775.082(1)(b)2. is the
    more prudent course.
    - 25 -
    CONCLUSION
    Based upon the foregoing, we answer the certified question by holding that
    Alleyne requires the jury to make the factual finding under section 775.082(1)(b) as
    to whether a juvenile offender actually killed, intended to kill, or attempted to kill
    the victim. Although we conclude that Alleyne violations are subject to harmless
    error review, the violation here cannot be deemed harmless. Therefore, Williams
    is entitled to resentencing under section 775.082(1)(b)2. We quash the decision of
    the Fifth District in Williams II and remand to the district court for further
    proceedings consistent with this opinion.
    It is so ordered.
    LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
    CANADY, J., concurs in part and dissents in part with an opinion, in which
    POLSTON and LAWSON, JJ., concur.
    NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
    IF FILED, DETERMINED.
    CANADY, J., concurring in part and dissenting in part.
    I agree with the majority that under Alleyne v. United States, 
    570 U.S. 99
    (2013), the factual findings provided for in section 775.082(1)(b), Florida Statutes
    (2016), must be made by the jury and that the absence of such jury findings in this
    case requires reversal of the sentence imposed under section 775.082(1)(b)1. and
    resentencing in the trial court. But I dissent from the majority’s direction
    regarding the remand, which requires imposition of the less severe sanction
    - 26 -
    available under the statute. Because the issue of the remedy on remand has not
    been briefed in this case, I would simply direct remand for resentencing rather than
    preclude jury proceedings that might result in imposition of the more severe
    sentence under the statute.
    Although we have not had the benefit of briefing on this issue, I am deeply
    skeptical that the direction given by the majority precluding jury proceedings is
    either necessary or appropriate. As the majority opinion reflects, Williams’s
    counsel earlier suggested impaneling a jury to make the factual determination
    provided for in section 775.082(1)(b). And the majority has pointed to no basis in
    our law establishing that suggestion to be inconsistent with any legal requirement.
    The majority’s reliance on Plott v. State, 
    148 So. 3d 90
    (Fla. 2014), is entirely
    unwarranted. In Plott, we simply directed that the district court remand for
    resentencing if it determined that the Apprendi/Blakely error was not 
    harmless. 148 So. 3d at 95
    . Our opinion is silent concerning whether a jury should be
    impaneled to consider the factual determinations necessary to support an upward
    departure sentence on remand.
    The majority’s direction restricting the proceedings on remand is
    inconsistent with the general rule “that a resentencing must proceed ‘as an entirely
    new proceeding,’ and that a ‘resentencing should proceed de novo on all issues
    bearing on the proper sentence.’ ” State v. Collins, 
    985 So. 2d 985
    , 989 (Fla. 2008)
    - 27 -
    (citation omitted) (quoting Wike v. State, 
    698 So. 2d 817
    , 821 (Fla. 1997), and
    Teffeteller v. State, 
    495 So. 2d 744
    , 745 (Fla. 1986)). It necessarily follows from
    that rule that if a jury determination is required regarding facts bearing on the
    sentence in a resentencing proceeding, the State should have the opportunity to
    prove those facts to a jury.
    Notably, the majority’s decision on this point seems irreconcilable with the
    manner in which we are treating the death cases that have been reversed based on
    the majority’s decision in Hurst v. State, 
    202 So. 3d 40
    (Fla. 2016), cert. denied,
    
    137 S. Ct. 2161
    (2017). In Hurst, we “remand[ed] for a new penalty phase
    
    proceeding.” 202 So. 3d at 69
    . And we have summarily rejected as “without
    merit” claims based “on double jeopardy and due process grounds” that the State
    “is precluded from seeking the death penalty” in Hurst resentencing proceedings.
    Hurst v. State, No. SC17-302, 
    2017 WL 1023762
    , at *1 (Fla. Mar. 16, 2017)
    (unpublished). Although we did not explain our conclusion, the Arizona Supreme
    Court has provided an extensive constitutional analysis for its holding that double
    jeopardy did not bar death sentence proceedings after reversal of death sentences
    for Ring errors. See State v. Ring, 
    65 P.3d 915
    , 928-32 (Ariz. 2003), on remand
    from Ring v. Arizona, 
    536 U.S. 584
    (2002). Affording the State an opportunity to
    obtain death sentences in new jury proceedings in the death cases is inconsistent
    - 28 -
    with the majority’s decision here denying the State an opportunity to obtain the
    more severe sentence available under section 775.082(1)(b).
    Unable to identify any support for its position in our jurisprudence, the
    majority cites the decision of the First Circuit in United States v. Pena, 
    742 F.3d 508
    (1st Cir. 2014), and relies on the invocation—more aptly, incantation—in that
    decision of “the doctrine of constitutional avoidance.” Majority op. at 25 (quoting
    
    Pena, 742 F.3d at 519
    ). The majority announces that it is “hesitant to wade into ‘a
    thicket of potential and thorny double jeopardy issues.’ ” 
    Id. at 24
    (emphasis
    added) (quoting 
    Pena, 742 F.3d at 518
    ). Without deciding that double jeopardy
    doctrine actually requires that the less severe sentence be imposed on remand, the
    majority mandates imposition of that less severe sanction because it asserts there
    might be a double jeopardy problem with the more severe sentence.
    But this use of the constitutional avoidance doctrine is not consistent with
    how we have understood and applied that doctrine. Under the doctrine, hesitancy
    and doubt alone are not a ground for decision. In the absence of a legal basis that
    otherwise resolves the point at issue, the Court must confront and decide the
    constitutional question—assuming that issue has been properly presented for
    decision. Yet here the majority does not base its decision on an alternative ground
    that avoids the constitutional issue. See Singletary v. State, 
    322 So. 2d 551
    , 552
    (Fla. 1975) (relying on “the settled principle of constitutional law that courts
    - 29 -
    should not pass upon the constitutionality of statutes if the case in which the
    question arises may be effectively disposed of on other grounds”). Nor does the
    majority avoid a potential constitutional problem by adopting a statutory
    interpretation that presents no constitutional issue rather than another interpretation
    that is constitutionally problematic. See State v. Giorgetti, 
    868 So. 2d 512
    , 518
    (Fla. 2004) (recognizing “the canons of statutory construction requiring us to
    interpret the statutes in a way as to avoid any potential constitutional quandaries”).
    Instead, the majority’s decision is planted firmly in the air.
    The constitutional avoidance doctrine is “a principle of judicial restraint.” In
    re Holder, 
    945 So. 2d 1130
    , 1133 (Fla. 2006); see also Lyng v. Northwest Indian
    Cemetery Protective Ass’n, 
    485 U.S. 439
    , 445 (1988) (“A fundamental and
    longstanding principle of judicial restraint requires that courts avoid reaching
    constitutional questions in advance of the necessity of deciding them.”). The
    doctrine recognizes that the judicial branch should only invalidate legislation—
    thereby thwarting the action of a coordinate branch of government—when no other
    course of action is properly available. But the majority here has turned the
    doctrine on its head. Rather than avoiding judicial action that thwarts legislative
    action, the majority has deployed the doctrine to preclude the opportunity to carry
    out the legislative purpose embodied in section 775.082(1)(b).
    - 30 -
    In applying this misshaped version of the constitutional avoidance doctrine,
    the majority strains to find doubt and simply ignores the elephant in the room. It
    fails to explain how summary rejection of double jeopardy claims in the Hurst
    context was appropriate if this case now presents “a thicket of potential and thorny
    double jeopardy issues.” No basis is stated by the majority—and no basis is
    apparent—for distinguishing the double jeopardy implications of a resentencing
    following reversal for an Alleyne error from the implications following reversal for
    an Apprendi, Blakely, Ring, or Hurst error—all of which involve failing to present
    an issue to the jury that must be decided by the jury.
    POLSTON and LAWSON, JJ., concur.
    Application for Review of the Decision of the District Court of Appeal – Certified
    Great Public Importance
    Fifth District - Case No. 5D16-1348
    (St. Johns County)
    Valarie Linnen, Atlantic Beach, Florida,
    for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Wesley Heidt, Bureau
    Chief, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, Florida,
    for Respondent
    - 31 -