Third District Court of Appeal
State of Florida
Opinion filed July 13, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-871
Lower Tribunal No. F10-19687
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Heathcliff Peters,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from
the Circuit Court for Miami-Dade County, Ellen Sue Venzer, Judge.
Heathcliff Peters, in proper person.
Ashley Moody, Attorney General, for appellee.
Before EMAS, SCALES and GORDO, JJ.
PER CURIAM.
Affirmed. See Washington v. State,
335 So. 3d 1270 (Fla. 3d DCA
2022); Simmons v. State,
332 So. 3d 1129, 1131–32 (Fla. 5th DCA 2022)
(holding that neither Apprendi v. New Jersey,
530 U.S. 466,
120 S.Ct. 2348,
147 L.Ed.2d 435 (2000) nor Alleyne v. United States,
570 U.S. 99,
133 S.Ct.
2151,
186 L.Ed.2d 314 (2013) requires that the jury—rather than the trial
court—determine whether a defendant's instant offense was committed
within three years after being released from a state correctional facility, a fact
that must be established before a defendant may be sentenced as a prison
releasee reoffender: “The date of a defendant's release from prison
implicates neither the level of the offense, the facts of the underlying offense,
nor the character of the offender as it relates to aggravation of a sentence”);
Tobler v. State,
239 So. 3d 796 (Fla. 5th DCA 2018) (rejecting defendant's
argument that the prison releasee reoffender statute is unconstitutional
because it allows the judge, rather than the jury, to determine whether a
defendant qualifies as a prison releasee reoffender for sentencing
purposes); Williams v. State,
143 So. 3d 423, 424 (Fla. 1st DCA 2014)
(holding: “The key fact pertinent to PRR sentencing—whether the defendant
committed the charged offense within three years of release from prison—is
not an ingredient of the charged offense. Rather, it relates to the fact of a
prior conviction.”); Lopez v. State,
135 So. 3d 539, 540 (Fla. 2d DCA 2014)
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(holding that “because Lopez's date of release from prison is a part of his
prior record, that fact determination did not need to be presented to a jury
and proved beyond a reasonable doubt.”) See also Luton v. State,
934 So.
2d 7, 9-10 (Fla. 3d DCA 2006) (noting that, before a defendant may be
sentenced as an habitual violent felony offender (under section
775.084(1)(b), Florida Statutes) it must be established, inter alia, that the
defendant “committed the current offense during, or within five years after
completion of, the defendant's incarceration or supervision on the qualifying
offense”; further holding that such a determination can be made by the trial
court and need not be submitted to a jury: “The determination that a prior
conviction exists also includes the relevant historical facts about the
conviction: the date of the prior conviction, the sentence punishment
imposed, and the date of the defendant's end of sentence or release from
supervision. The Blakely [v. Washington,
542 U.S. 296 (2004)] decision does
not require that such findings be made by the jury”); Calloway v. State,
914
So. 2d 12, 14 (Fla. 2d DCA 2005) (holding that the trial court's determination
of a defendant's date of release after serving a prison sentence on a prior
conviction, for purposes of enhanced sentencing under the habitual offender
statute, did not violate Apprendi or Blakely because the trial court's finding—
that the instant offense was committed within five years of the date of the
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defendant's last felony conviction or the date of release from prison—was
“directly derivative of a prior conviction and therefore does not implicate Sixth
Amendment protections”); Gurley v. State,
906 So. 2d 1264, 1265 (Fla. 4th
DCA 2005) (holding: “For the purpose of applying Apprendi and Blakely, the
date of a defendant's release from prison under the prison releasee
reoffender statute is analogous to the fact of a prior conviction under the
habitual felony offender statute” and such determination can be made by the
trial court rather than the jury.)
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