Reginald Lee Booker, I I I v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D15-3558
_____________________________
REGINALD LEE BOOKER, III,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
An appeal from the Circuit Court for Escambia County.
J. Scott Duncan, Judge.
April 18, 2018
MAKAR, J.
Reginald Lee Booker, III, pled no contest to fleeing or
attempting to elude a law enforcement officer and driving without
a valid driver’s license. His scoresheet reflected 20.4 sentence
points, which by statute required that he be sentenced to a
“nonstate prison sanction,” which “is ‘understood to mean
probation, community control, or imprisonment in the county jail
for up to one year.’” Reed v. State, 192 So. 3d 641, 645 (Fla. 2d DCA
2016) (citing Jones v. State, 71 So. 3d 173, 175 (Fla. 1st DCA
2011)). Section 775.082(10), Florida Statues (2018), says that “[i]f
the total sentence points . . . are 22 points or fewer, the court must
sentence the offender to a nonstate prison sanction.” (Emphasis
added). Because a “nonstate prison sanction” is mandated,
Booker’s maximum incarceration would be eleven months and
thirty days in a county jail (i.e., up to a year or “11/30” in
sentencing parlance) based upon his plea to the charges.
At the State’s request, however, the trial judge increased
Booker’s punishment beyond the nonstate maximum, sentencing
him to a four-year state prison term, based on his independent
factual findings that Booker could present a danger to the public if
subject only to a nonstate prison sanction. The authority for doing
so—and the subject of this appeal—is the last sentence of section
775.082(10), which says: “However, if the court makes written
findings that a nonstate prison sanction could present a danger to
the public, the court may sentence the offender to a state
correctional facility pursuant to this section.”
The State acknowledged that it was “seeking an upward
departure” from the maximum nonstate sanction the statute
permitted. At the sentencing hearing, the State sought “prison
time” due to Booker’s “danger to the community,” or, if the trial
judge was “not willing to go beyond the guidelines,” then “at least
11/30 county jail [time] followed by [a] significant amount of
community control and probation.” In response, the trial judge
queried that “the State is actually seeking an upward departure is
what you are telling me,” to which the State responded: “Yes.”
Booker’s motion to correct his sentence claimed that the
enhancement of his sentence was unconstitutional under the Sixth
Amendment because the trial judge, rather than a jury, made the
factual findings that were necessary to increase his punishment
beyond the statutory maximum of a nonstate prison sanction to a
state prison sanction, i.e., the four-year state prison term he
received. See Blakely v. Washington, 542 U.S. 296 (2004); Apprendi
v. New Jersey, 530 U.S. 466 (2000). This Court recently addressed
the question of whether section 775.082(10) is facially
unconstitutional in violation of the jury trial right discussed in
Apprendi and Blakely. Woods v. State, 214 So. 3d 803, 805 (Fla. 1st
DCA 2017) (en banc), review dismissed, SC17-955, 2017 WL
2264740 (Fla. May 24, 2017). We couldn’t reach a consensus on
that question, leaving for another day the question of whether the
statute may be unconstitutional as applied in a specific case, which
we now address.
Background
The Florida Legislature, faced with budgetary challenges in
2
2009, sought to reduce the burden of prison expense on the
Department of Corrections by mandating that specified, non-
violent offenders, who score under twenty-two points on their
criminal scoresheet, be sentenced to nonstate sanctions—thereby
shifting incarceration of these offenders to county jails for a
maximum of up to one year. See Woods, 214 So. 3d at 805 (citing
Ch. 2009-63, § 1, Laws of Fla.; Fla. S. Comm. on Crim. & Civil Just.
Approp., CS for SB 1722 (2009) Staff Analysis 2-3, 7 (April 6,
2009)). It added section 775.082(10), consisting of the following two
sentences:
(10) If a defendant is sentenced for an offense committed
on or after July 1, 2009, which is a third degree felony but
not a forcible felony as defined in s. 776.08, and excluding
any third degree felony violation under chapter 810, and
if the total sentence points pursuant to s. 921.0024 are 22
points or fewer, the court must sentence the offender to a
nonstate prison sanction. However, if the court makes
written findings that a nonstate prison sanction could
present a danger to the public, the court may sentence the
offender to a state correctional facility pursuant to this
section.
§ 775.082(10), Fla. Stat. (emphasis added). The last sentence,
which was used to enhance Booker’s sentence to a state prison
sanction, is the focus of the Sixth Amendment claim at issue.
Combined with the Fourteenth Amendment’s prohibition that
liberty may not be taken without “due process of law,” the Sixth
Amendment’s declaration that “the accused shall enjoy the right to
a speedy and public trial, by an impartial jury” in “all criminal
prosecutions” “indisputably entitle[s] a criminal defendant to ‘a
jury determination that [he] is guilty of every element of the crime
with which he is charged, beyond a reasonable doubt.’” Apprendi,
530 U.S. at 476-77 (quoting United States v. Gaudin, 515 U.S. 506,
510 (1995)). The Supreme Court, in extolling the centuries-old
foundation of the jury trial right, explained that:
“[T]o guard against a spirit of oppression and tyranny on
the part of rulers,” and “as the great bulwark of [our] civil
and political liberties,” 2 J. Story, Commentaries on the
3
Constitution of the United States 540-541 (4th ed. 1873),
trial by jury has been understood to require that “the
truth of every accusation, whether preferred in the shape
of indictment, information, or appeal, should afterwards
be confirmed by the unanimous suffrage of twelve of [the
defendant’s] equals and neighbours. . . .”
Apprendi, 530 U.S. at 477 (quoting Gaudin, 515 U.S. at 510-11)
(citing 4 W. Blackstone, Commentaries on the Laws of England
343 (1769)). It further explained why the “beyond a reasonable
doubt” standard applies.
Equally well founded is the companion right to have the
jury verdict based on proof beyond a reasonable doubt. . .
. “‘It is now accepted in common law jurisdictions as the
measure of persuasion by which the prosecution must
convince the trier of all the essential elements of guilt.’” .
. . [R]eliance on the “reasonable doubt” standard among
common-law jurisdictions “‘reflect[s] a profound
judgment about the way in which law should be enforced
and justice administered.’”
Apprendi, 530 U.S. at 478 (citations omitted). Given the “historic
link” between the necessity of a jury’s verdict beyond a reasonable
doubt and the sentence imposed, and the “consistent limitation on
judges’ discretion to operate within the limits of the legal penalties
provided,” the Supreme Court has noted the “novelty of a
legislative scheme that removes the jury from the determination
of a fact that, if found, exposes the criminal defendant to a penalty
exceeding the maximum he would receive if punished according to
the facts reflected in the jury verdict alone.” Id. at 482-83 (emphasis
added).
The central point of Apprendi and Blakely is that any fact in
a judicial proceeding—excepting the fact of a prior conviction—
that is used to increase a penalty for a crime beyond the relevant
statutory maximum is unconstitutional because a jury, and not a
judge, is entrusted with that responsibility under the Sixth
Amendment. See 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
4
jury, and proved beyond a reasonable doubt.”); see also Blakely, 542
U.S. at 304 (“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.”) (citation omitted). When
faced with upward departures in sentencing, the Florida Supreme
Court has held likewise. See Plott v. State, 148 So. 3d 90, 95 (Fla.
2014) (“[W]e hold that upward departure sentences that are
unconstitutionally enhanced in violation of Apprendi and Blakely
patently fail to comport with constitutional limitations, and
consequently, the sentences are illegal under rule 3.800(a).”).
Application of Section 775.082(10), Florida Statutes
Given the momentous role of the jury in our country’s legal
history, and the clarity of the stated principle in Apprendi and
Blakely that judicial fact-finding is no substitute for jury fact-
finding if used for sentencing beyond a relevant statutory
maximum, we conclude that the last sentence of subsection (10)
violates this principle as applied to Booker. It empowered precisely
what Apprendi and Blakely condemn: giving a trial judge the
power to make factual findings independent of the jury (here,
about future public dangerousness) that are used to increase an
offender’s sentence beyond the maximum allowable by the “facts
reflected in the jury verdict alone.” Blakely, 542 U.S. at 303. As
applied to Booker, the result is that, rather than be subject to a
maximum of up to a year in a county jail, he is sent to state prison
for four years—based solely on factual findings as to his potential
for future dangerousness upon which only a judge, not a jury, has
passed.
The Supreme Court’s unequivocal language in Blakely drew a
clear-cut line as to what constitutes the relevant statutory
maximum sentence for Sixth Amendment purposes: it is the
maximum sentence that could be imposed “solely on the basis of
the facts reflected in the jury verdict or admitted by the defendant.”
Id. The Supreme Court italicized this language to make an
enduring point: the statutory maximum sentence is determined
solely upon jury-verdict facts (or those admitted to by the offender).
5
For instance, in Blakely, the offender “was sentenced to more
than three years above the 53-month statutory maximum of the
standard range because he had acted with ‘deliberate cruelty.’” Id.This was done even though the “facts supporting that finding were
neither admitted by petitioner nor found by a jury.” Id. In rejecting
the State’s argument that a higher statutory maximum was
appropriate, the Supreme Court said:
Our precedents make clear, however, that the “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; italics in original, bold added).
What’s “relevant” for Sixth Amendment purposes is not the
maximum sentence a statute may authorize with additional fact-
finding; it is what may be imposed without the judge making her
own findings.
Applying the bolded language of Blakely to this case, “the
relevant ‘statutory maximum’ is not the maximum sentence a
judge may impose after finding additional facts [i.e., five years of
state imprisonment based on additional judicial findings of
potential future dangerousness], but the maximum he may impose
without any additional findings [i.e., up to one year in county jail].”
A jury verdict alone does not authorize an enhancement of an
offender’s sentence beyond a nonstate sanction. That’s because
subsection (10) requires additional judge-made fact-finding about
an offender’s potential future dangerousness—upon which no jury
ever passes—to make this enhancement. Stated differently, the
only path to imposition of a state prison sanction that exceeds the
statutory nonstate maximum is via judicial fact-finding with no
6
jury involvement or input in the process. To make this point,
imagine if the trial judge sentenced Booker to four years in prison
without making the additional factual findings of potential future
dangerousness; he’d be reversed. Standing alone, a jury verdict—
or an offender’s plea—authorizes at most a nonstate sanction
capped at up to one year in county jail, which is the “relevant”
statutory maximum for Apprendi purposes.
The view that a jury’s verdict alone—no matter the elements
of the charged offense—authorizes a state prison sentence up to a
maximum of five years 1 overlooks the clear language of Supreme
Court precedent, and is based on two misconceptions. First, the
current statutory framework must be analyzed as it is, not as it
1 We disagree with the Fifth District that a jury verdict by
itself authorizes a state sanction of up to five years of
imprisonment, which it deems the relevant statutory maximum for
Apprendi purposes. Brown v. State, 233 So. 3d 1262, 1264, 1265
(Fla. 5th DCA 2017) (Brown’s “sentence [of three years in prison]
was fully authorized by the jury verdict” and “the jury’s verdict
authorized the trial court to sentence Appellant to five years in
state prison before the trial judge considered the additional
findings contemplated by section 775.082(10).”). We cannot
reconcile how a jury’s finding of guilt on the petit theft charge in
Brown authorized anything other than a nonstate sanction, future
dangerousness not being an element of the jury’s verdict. We also
do not see how section 775.082(10) establishes a “formula” that
contains “factors” that an offender must satisfy to avoid a state
sanction. Offenders are not required to plead or qualify for a
nonstate sanction; to the contrary, the Legislature has mandated
that trial judges “must” impose one. And we cannot accept that
section 775.082(10) as a whole “create[s] an entitlement to
mandatory mitigation for those offenders who satisfy both
criteria,” i.e., less than 22 points and proof that they pose no public
danger; thereby shifting the onus onto offenders to disprove to a
trial judge’s satisfaction that they pose a future danger to the
public. Id. at 1264. Finally, we disagree that “Section 775.082(10)
never increases an offender’s sentence” and, instead, “reduces the
sentence from a five-year maximum in state prison to a non-state
sanction.” Id. at 1265. We view it as operating in exactly the
opposite way (as did the State in Booker’s case).
7
existed prior to subsection (10)’s addition. Viewed this way, a jury
verdict alone would have permitted up to a five-year sentence
under the statutory framework that existed before subsection (10)
was added in 2009. The penalty for a third-degree felony was
capped at a state prison sanction of five years, which was the
relevant “statutory maximum” for Apprendi purposes at that time.
Subsection (10) markedly changed the status quo, however, by
shifting incarcerative sentences of this broad category of felons to
county jails, mandating that a trial judge “must sentence the
offender to a nonstate prison sanction.” A jury’s verdict in the era
before enactment of subsection (10) may have authorized up to five
years in prison, but that same verdict post-enactment does not,
without additional fact-finding by trial judges as to offenders’
future dangerousness.
Second, the Legislature could have worded subsection (10) in
a way that authorized a jury’s verdict to permit a statutory
maximum for Apprendi purposes of five years of imprisonment, but
it would also have to concurrently allow for downward departures
to lesser nonstate sanctions for non-dangerous offenders via
additional judicial fact-finding to achieve its policy goals. It did not
do so, for good reason, as the following illustration shows:
If the total sentence points are 22 points or fewer, the
court must sentence the offender to a state sanction up to
five years. However, if the court makes written findings
that a nonstate prison sanction would not present a
danger to the public, the court may sentence the offender
to a nonstate prison sanction pursuant to this section.
Under this type of statutory language, a jury verdict would
authorize a state prison sentence up to five years, making it the
relevant statutory maximum for Apprendi purposes. But rather
than hold sporadic hearings where trial judges enhance the
sentences of low-point offenders deemed to be potentially
dangerous as currently occurs, this statute would require
hundreds, if not thousands, of judicial fact-finding hearings
annually to ferret out those offenders deemed to be non-dangerous
to be sentenced to nonstate prison sanctions, creating a disruptive
and expensive sentencing morass.
8
Put simply, section 775.082(10)’s enactment shifted the
sentencing paradigm markedly, and in the process eliminated the
ability of a jury verdict alone to impose a state prison sanction.
Protection of the jury trial right does not hamstring the
Legislature’s ability to achieve its policy goals, however. For
example, if section 775.082(10) required a jury—rather than a
judge—to make factual findings about an offender’s potential for
future dangerousness, the check on personal liberty that the Sixth
Amendment’s right to a jury trial provides would be retained. A
simple legislative fix might be to amend subsection (10) to say: “. .
. if the court a jury makes written findings that a nonstate prison
sanction could present a danger to the public, the court may
sentence the offender to a state correctional facility pursuant to
this section.” Courts, except by rewriting a clearly-worded statute,
cannot achieve this policy result.
As to Booker, the Sixth Amendment breach becomes evident
because subsection (10) permitted the trial judge to “inflict[]
punishment that the jury’s verdict alone does not allow” via factual
findings on future dangerousness that are not “essential to the
punishment” of the underlying offense. Blakely, 542 U.S. at 296.
What happened to Booker is no different from what happened in
Apprendi, where the defendant’s sentence was enhanced after an
evidentiary hearing and based solely on independent judicial fact-
finding under a preponderance of the evidence standard that
Apprendi acted with racial bias. 530 U.S. at 471. Similarly,
Blakely’s sentence was enhanced based on judicial fact-finding
that he acted with “deliberate cruelty” in the commission of his
crime. Blakely, 542 U.S. at 298. That Booker’s sentence was
enhanced on a judicial finding of future dangerousness—rather
than on racial bias or as being deliberate cruelty as in Apprendi
and Blakely, respectively—matters not because in each situation
the punishment inflicted is based on facts a jury’s verdict alone
would not allow. Imagine if section 775.082(10) were revised to say
the following:
If the total sentence points are 22 points or fewer, the
court must sentence the offender to probation only.
However, if the court makes written findings that: (a) the
offender acted with racial bias; (b) the act committed was
done with deliberate cruelty; or (c) probation could
9
present a danger to the public, the court may sentence
the offender to a state correctional facility for up to five
years.
Would there be any doubt it violates the Sixth Amendment?
Subsections (a) and (b) violate Apprendi and Blakely, respectively,
so why wouldn’t subsection (c)? Blakely answered that question,
stating:
Whether the judge’s authority to impose an enhanced
sentence depends on finding a specified fact (as in
Apprendi), one of several specified facts (as in Ring [v.
Arizona, 536 U.S. 584 (2002)]), or any aggravating fact
(as here), it remains the case that the jury’s verdict alone
does not authorize the sentence. The judge acquires that
authority only upon finding some additional fact.
Blakely, 542 U.S. at 305 (emphasis added). As to Booker, the trial
judge acquired the authority to enhance his sentence only upon
making additional factual findings required by subsection (10),
making clear that a sentence enhancement for potential public
danger under (c) is the same type of enhancement of a sentence
that Apprendi/Blakely condemn as constitutionally unacceptable.
Moreover, the claim that section 775.082(10) is a so-called
“mitigation statute” that neuters the force of Apprendi and Blakely
is not well-taken for numerous reasons. First of all, nothing in the
statute “mitigates” a defendant’s sentence; instead, it creates a
process solely and exclusively for enhancing a defendant’s sentence
from a mandatory nonstate sanction to a state sanction based
exclusively on judge-made factual findings as to future
dangerousness. It is a one-way ratchet, always upwards, with no
jury involvement whatsoever. 2
2 We disagree with the Fourth District’s conclusion that
subsection (10) “was a mandated mitigation of an otherwise
available maximum penalty.” Porter v. State, 110 So. 3d 962, 963
(Fla. 4th DCA 2013) (emphasis added). The maximum penalty of
five years, however, is not “available” without the additional
judicial fact-finding required under that subsection. We also
disagree that subsection (10) gives trial courts “discretion . . . to
10
Indeed, the State, at sentencing, sought what it agreed was
an “upward departure” in this case, which is how our supreme
court characterizes subsection (10). Bryant v. State, 148 So. 3d
1251, 1258 (Fla. 2014) (“The practice of upward departure
sentences was reinstated in 2009, when the Legislature enacted
subsection (10) of section 775.082, Florida Statutes . . . .”). It bears
emphasis that Florida’s Criminal Punishment Code, enacted in the
late 1990s:
has, in almost every aspect, eliminated the “upward
departure” of the former determinate guidelines
sentencing schemes and replaced it with an
indeterminate sentencing scheme in which the judge is
free to sentence up to the statutory maximum without
having to provide written reasons for doing so. . . . A
statutory exception to indeterminate sentencing under
the [Code] is found in section 775.082(10), Fla. Stat.
See 16 Fla. Prac., Sentencing § 6:48 (2017-2018 ed.); see generally
Ch. 97-194, Laws of Florida (effective October 1, 1998). The Code,
with subsection (10) as the only “upward departure” exception, 3
provides for indeterminate sentencing up to statutory maximums
along with mitigation or downward departures under specified
circumstance, an example being the “prison diversion program” by
which “a court may divert from the state correctional system an
offender who would otherwise be sentenced to a state facility by
adhere to the Criminal Punishment Code in lieu of the mandated
mitigation[.]” Id. (emphasis added). Instead, we see subsection (10)
as authorizing trial judges to depart from the mandatory nonstate
prison sanctions that same subsection compels.
3 In Butler v. State, 838 So. 2d 554, 556 (Fla. 2003), the
supreme court held that when the statutory maximum sentence as
provided in section 775.082 is “exceeded by the lowest permissible
sentence under the code,” the latter “becomes the maximum
sentence which the trial judge can impose.” Unlike here, no judge-
imposed upward departure was at issue in Butler, only the
harmonizing of sections 775.082 and 921.0024(2), to determine the
maximum sentence permissible.
11
sentencing the offender to a nonstate prison sanction as provided
[therein].” § 921.00241(2), Fla. Stat. (2018). In contrast to
subsection (10), this type of sentencing statute, which allows
diversion or reduction of a defendant’s sentence based on judicial
fact-finding as to specified ameliorative factors, avoids a Sixth
Amendment problem because it works in the opposite direction of
what Apprendi and Blakely condemn; it mitigates versus enhances
a sentence based on facts not passed upon by a jury. 4 The Sixth
Amendment protects a defendant from an enhanced sentence, not
a reduced one, when based solely on additional judicial fact-
finding.
In addition, the Supreme Court has already rejected
arguments that section 775.082(10) is merely a “mitigation”
statute with no Sixth Amendment implications. One argument is
“that the jury need only find whatever facts the legislature chooses
to label elements of the crime, and that those it labels sentencing
factors—no matter how much they may increase the punishment—
may be found by the judge.” Blakely, 542 U.S. at 306. Applied here,
the parallel argument is that a jury verdict, no matter what the
4 In addressing this point, the Court in Apprendi said:
Finally, the principal dissent ignores the distinction the
Court has often recognized . . . between facts in
aggravation of punishment and facts in mitigation. . . . If
facts found by a jury support a guilty verdict of murder,
the judge is authorized by that jury verdict to sentence
the defendant to the maximum sentence provided by the
murder statute. If the defendant can escape the statutory
maximum by showing, for example, that he is a war
veteran, then a judge that finds the fact of veteran status
is neither exposing the defendant to a deprivation of
liberty greater than that authorized by the verdict
according to statute, nor is the judge imposing upon the
defendant a greater stigma than that accompanying the
jury verdict alone. Core concerns animating the jury and
burden-of-proof requirements are thus absent from such
a scheme.
530 U.S. at 490 n.18.
12
elements of the underlying crime may be, thereby authorizes an
increased sentence based on an offender’s potential future
dangerousness as determined solely by a judge under section
775.082(10). Concluding this type of argument leads to an “absurd
result,” the Court gave the example “that a judge could sentence a
man for committing murder even if the jury convicted him only of
illegally possessing the firearm used to commit it—or of making an
illegal lane change while fleeing the death scene.” Id.The analog as applied to Booker is that the Legislature, by
making an offender’s potential future dangerousness a sentencing
factor solely for the judge’s determination, has removed the jury
entirely from the fact-finding process upon which an enhanced
sentence is based. Under these circumstances, where the jury is
sidelined and judicial power garrisoned, the Court concluded that
the “jury could not function as circuitbreaker in the State’s
machinery of justice if it were relegated to making a determination
that the defendant at some point did something wrong, a mere
preliminary to a judicial inquisition into the facts of the crime the
State actually seeks to punish.” Id. at 306-07. This point is
reinforced here: the State’s invocation of subsection (10) triggers
judge-only fact-finding without jury involvement even though far
more serious punishment is to be inflicted. It is precisely in these
circumstances, where a potentially lengthy judicial sentencing
enhancement is unmoored from a jury’s verdict, that the Sixth
Amendment must intercede.
Another argument is that legislatures may “establish legally
essential sentencing factors within limits—limits crossed when,
perhaps, the sentencing factor is a ‘tail which wags the dog of the
substantive offense.’ . . . What this means in operation is that the
law must not go too far—it must not exceed the judicial estimation
of the proper role of the judge.” Id. at 307 (citation omitted).
Rejecting this “too far” standard as overly subjective, manipulable,
and unmanageable, the Supreme Court concluded that Apprendi’s
“bright line rule” applied because it was implausible “that the
Framers would have left definition of the scope of jury power up to
judges’ intuitive sense of how far is too far. We think that claim
not plausible at all, because the very reason the Framers put a
jury-trial guarantee in the Constitution is that they were unwilling
to trust government to mark out the role of the jury.” Id. at 308.
13
Applied here, section 775.082(10)’s substitution of the judge—
and the elimination of the jury—as the fact-finder for enhanced
sentencing based on future potential dangerousness—violates
Apprendi’s bright line rule. See Apprendi, 530 U.S. at 490 (“[I]t is
unconstitutional for a legislature to remove from the jury the
assessment of facts that increase the prescribed range of penalties
to which a criminal defendant is exposed.”). The Legislature
intended and clearly stated that every eligible offender with
twenty-two sentence points or less faces only the lesser panoply of
nonstate punishments, capped at up to one year in county jail.
Trial judges have broad discretion to sentence offenders in this
category to probation, community control, or up to a year in the
county jail. Id. at 481 (noting that “judges in this country have long
exercised discretion of this nature in imposing sentence within
statutory limits in the individual case”). For upward
enhancements, however, the Legislature clearly stated that only
the “court”—not the jury—is authorized to make “written findings
that a nonstate prison sanction could present a danger to the
public,” thereby precluding the jury’s traditional role. Only the
Legislature, not this Court, has the power to rewrite the statute to
conform to the Sixth Amendment. 5
The use of scoresheets—whose assessment of points draw
upon facts found by a jury’s verdict, are based on the fact of prior
convictions, or are admitted by the offender—complies with
Apprendi and Blakely. Id. (stating “that nothing in this [Nation’s
common law] history suggests that it is impermissible for judges
to exercise discretion-taking into consideration various factors
relating both to offense and offender-in imposing a judgment
within the range prescribed by statute”); see Alleyne v. United
States, 570 U.S. 99, 116 (2013) (“Our ruling today does not mean
that any fact that influences judicial discretion must be found by a
jury. We have long recognized that broad sentencing discretion,
informed by judicial factfinding, does not violate the Sixth
Amendment.”); Fleming v. State, 139 So. 3d 902, 903 (Fla. 1st DCA
5 We agree with the dissent in Brown, which was disinclined
to rewrite the statute and, instead, would have applied it
consistent with the Sixth Amendment principles expressed in
Apprendi/Blakely and their progeny. See Brown, 233 So. 3d at
1266-68 (Cohen, C.J., dissenting).
14
2006) (assessment of points for “severe victim injury” did not
violate Apprendi because jury found defendant guilty of
aggravated battery that caused great bodily harm, permanent
disability, or permanent disfigurement), approved, 61 So. 3d 399(Fla. 2011); see also Moss v. Sec’y, Dep’t of Corr., No. 8:10-cv-1919-
T-17TBM, 2011 WL 1575384, at *1, *4 (M.D. Fla. Apr. 26, 2011)
(noting that “the jury’s verdict did not lack the necessary finding
to support the scoring of severe injury points on the scoresheet,
and neither Apprendi nor Blakely apply”). The Second District
made this point in Behl v. State:
Under the Supreme Court’s interpretation of the Sixth
Amendment, victim injury thus can be used as a
sentencing factor only if its existence is determined by the
jury or admitted by the defendant. Accordingly, a
guidelines sentence imposed at a level that is only
permissible because victim injury points were assessed
will exceed the “statutory maximum” for Apprendi
purposes if the victim injury points were not based on a
determination made by the jury or on an admission of the
defendant.
898 So. 2d 217, 221 (Fla. 2d DCA 2005) (reversing sentence under
Apprendi where scoresheet reflected greater points assigned for
sexual penetration when only sexual contact could be established
by jury’s verdict). As such, the use of scoresheets (that must comply
with Apprendi) to set a statutory maximum does nothing to
undermine Apprendi’s holding that enhancing a sentence via
additional judicial fact-finding violates the Sixth Amendment. It
would be an odd and incongruous result otherwise. 6
6 We disagree with the Fifth District’s view that a “jury does
not determine an offender’s score and will rarely make all of the
other scoresheet findings.” Brown, 233 So. 3d at 1265. Rather, we
read Supreme Court precedent and related Florida caselaw as
establishing that jury findings must undergird the computation of
sentence points else they violate the Sixth Amendment as
construed by Apprendi and Blakeley (excepting prior convictions
and facts admitted by a defendant).
15
That is because Apprendi and Blakely protect the Sixth
Amendment’s right of jury trial, which:
is no mere procedural formality, but a fundamental
reservation of power in our constitutional structure. Just
as suffrage ensures the people’s ultimate control in the
legislative and executive branches, jury trial is meant to
ensure their control in the judiciary. . . . Apprendi carries
out this design by ensuring that the judge’s authority to
sentence derives wholly from the jury’s verdict. Without
that restriction, the jury would not exercise the control
that the Framers intended.
Blakely, 542 U.S. at 305-06. The last sentence in subsection (10) is
inconsistent with this constitutional design, displacing the jury’s
fundamental role and replacing it with judicial power unyoked
from jury control. The jury’s role as an equilibrating force between
the power of the State and the accused is at its apex when more
serious punishments are in play. Viewed in this light, subsection
(10) exacerbates an acute Sixth Amendment problem: the jury is
relieved of its traditional fact-finding role, but only when enhanced
sentences are to be meted out. As applied to Booker, whose
punishment was increased exponentially based on additional
judicial findings (not even beyond a reasonable doubt), the statute
excised the jury’s “control in the judiciary” and negated the
principle that “the judge’s authority to sentence derives wholly
from the jury verdict.”
That Apprendi excludes from jury fact-finding the “fact of a
prior conviction” does not save subsection (10)’s constitutionality
as applied to Booker. First of all, the “last sentence of subsection
(10) is not a violent career criminal statute, a habitual offender
statute, or the like that excepts it from Apprendi; instead, it
establishes a future dangerousness test based on additional fact-
finding by a judge.” Woods, 214 So. 3d at 808 (Makar, J.,
concurring in affirmance).
It is one thing to enlarge a penalty where Congress or the
State of Florida has made a prior conviction a central
feature of a crime; it is another to allow a trial judge to
engage in wide-ranging fact-finding—constitutionally
16
entrusted to a jury—about an offender’s potential for
being a “danger to the public” to support an enhanced
penalty. And it is yet another to allow prior convictions,
which already underlie the arithmetic determination of
points for sentencing scoresheet purposes in Florida, to
be used duplicatively to increase a sentence without jury
involvement.
Id. at 809. Had the Legislature decided that the punishment for an
offender like Booker could be increased based solely on the “fact of
a prior conviction,” it could have done so via a repeat/habitual
offender or career criminal type of statute that Apprendi and
Blakely allow. See, e.g., Almendarez-Torres v. United States, 523
U.S. 224 (1998). Prior convictions are established facts and thereby
objective grounds for these types of legislatively-enhanced
sentences that need not be based on independent fact-finding by a
jury. Legislatively-enhanced punishment for a repeat or habitual
offender based on the historical fact of the offender’s past
convictions differs markedly from a judge—entirely independent
of the jury—extrapolating beyond prior convictions and
prognosticating about an offender’s future dangerousness; doing so
is a step beyond what Apprendi permits. See Apprendi, 530 U.S. at
496 (noting that “there is a vast difference between accepting the
validity of a prior judgment of conviction entered in a proceeding
in which the defendant had the right to a jury trial and the right
to require the prosecutor to prove guilt beyond a reasonable doubt,
and allowing the judge to find the required fact under a lesser
standard of proof”).
Second, subsection (10) places no limits on the evidence a trial
judge may consider in making the factual finding that an offender
may pose a “danger to the public.” Many factors other than the fact
of prior convictions are germane in determining future
dangerousness.
Adjudicating whether an offender “could present a
danger to the public” absent a nonstate sanction involves
a multitude of factors, only one of which is whether the
offender has a criminal record for which a prior conviction
is but a data point. Reed, 192 So. 3d at 646 (providing a
non-exhaustive list of factors including criminal history,
17
victim injury, and propensity for one to commit future
crimes). Faced with substantial enhancement of his
sentence, no defendant (through effective counsel) would
limit the evidentiary review required under subsection
(10) to only his prior convictions without presenting other
evidence in mitigation.
Woods, 214 So. 3d at 808-09 (Makar, J., concurring in affirmance)
(footnote omitted). Whether an offender poses a “danger to the
public” is a complex factual determination that far exceeds the
type of legislatively-defined sentencing systems that increase
punishment solely on the fact of prior criminal convictions.
Here, the trial judge had no statutory authority to elevate
Booker’s sentence to state prison simply because Booker had prior
convictions. And he considered matters other than prior
convictions as well, such as whether Booker was working, lacked a
driver’s license, failed to show up for his trial date, wore
camouflage overalls to court, and so on, in assessing his future
dangerousness. And the sole witness, the investigator from whom
Booker had fled, merely recounted the details of Booker eluding
her in a motor vehicle, which are only the facts inherent in the
crime. Reed, 192 So. 3d at 647 (stating that “a sentencing court’s
finding of an offender’s danger to the public must be more than the
recitation of acts that are inherent to the crimes for which the
defendant was convicted”).
As to Booker, the application of subsection (10) in this case
went beyond the fact of his prior convictions and resulted in
judicial fact-finding—entirely independent of the jury—to impose
a sanction that exceeded the relevant maximum sentence for
Apprendi purposes. Because the trial judge’s factual findings—and
thereby Booker’s enhanced sentence—were neither based on a jury
finding that he poses a “danger to the public” nor limited to only
the fact that Booker had prior convictions, the second sentence of
subsection (10) is unconstitutional under the Sixth Amendment as
applied to Booker.
18
Harmless Error/Remedy
Two questions remain: harmless error and remedy. The
harmless error question asks if the constitutional error in using
judge-made findings rather than jury-made findings is harmless
beyond a reasonable doubt as applied to Booker’s sentencing. If so,
our inquiry ends; if not, we turn to the remedy question, which
asks, given that the second sentence in subsection (10) is
unconstitutional as applied to Booker, what remedy would the
Legislature have wanted in resentencing Booker.
As to the first question, both the Supreme Court and our
supreme court have held that Apprendi/Blakely errors can be
harmless. See Neder v. United States, 527 U.S. 1, 15 (1999) (noting
that the “omission of an element [in a jury instruction] is an error
that is subject to harmless-error analysis”); Plott, 148 So. 3d at 95
(“A claim of error under Apprendi and Blakely is subject to a
harmless error analysis.”); Galindez v. State, 955 So. 2d 517, 524
(Fla. 2007) (“[W]e hold that harmless error analysis applies to
Apprendi and Blakely error.”); see also Washington v. Recuenco,
548 U.S. 212, 220 (2006) (holding that Blakely sentencing factor
error not structural and thereby subject to harmless error
analysis).
The harmless error test announced in Neder was adopted by
our supreme court in Galindez: “Is it clear beyond a reasonable
doubt that a rational jury would have found the defendant guilty
absent the error?” Neder, 527 U.S. at 18.
A reviewing court making this harmless-error inquiry
does not, as Justice Traynor put it, “become in effect a
second jury to determine whether the defendant is
guilty.” Rather a court, in typical appellate-court fashion,
asks whether the record contains evidence that could
rationally lead to a contrary finding with respect to the
omitted element.
Id. at 19 (citations omitted). Neder involved the omission of an
element of a crime, but its analysis has been extended to the
sentencing context. Galindez, 955 So. 2d at 523 (“[F]or purposes of
our harmless error analysis the issue is whether the failure to have
19
the jury make the victim injury finding . . . contributed to the
conviction or sentence.”) (emphasis added) (citing Recuenco, 548
U.S. at 220 (“[W]e have treated sentencing factors, like elements,
as facts that have to be tried to the jury and proved beyond a
reasonable doubt.”)). In Galindez, for example, the supreme court
concluded that the record evidence demonstrated beyond a
reasonable doubt that a rational jury (versus the trial judge who
imposed additional points towards sentencing) would conclude
that the act of sexual penetration occurred, rendering the
Apprendi error harmless. 955 So. 2d at 523.
As applied to Booker’s sentencing in this case, the harmless
error test requires that we ask whether there is record evidence
“that could rationally lead” a jury to conclude—contrary to the trial
court—that Booker did not present a danger to the public if he
were given a nonstate prison sanction, such as up to a year in
county jail plus probation or community control thereafter. If a
“reasonable possibility” exists that the error affected the
sentencing, such that we’re unable to conclude “beyond a
reasonable doubt that the error did not affect” sentencing, the
“error is by definition harmful.” State v. DiGuilio, 491 So. 2d 1129,
1139 (Fla. 1986).
Booker is no model citizen, having a significant ongoing
criminal record that dates to his youth, and enough sentence
points to flirt with the statutory cutoff of 22 points. The nature of
Booker’s past offenses, his lack of deportment, and his straddling
the statutory cutoff make him a less sympathetic offender
compared to the homeless mom in Woods, who had 8.3 sentence
points and was stealing food to feed her kids. Nonetheless, the
evidence cannot be said to be so compelling that a rational jury
would necessarily conclude that Booker presented a danger to the
public if subject to only a nonstate prison sanction of up to one year
in the county jail coupled with significant community control and
probation, which the State sought as an alternative to a state
prison sanction. A jury could conclude, as Booker’s attorney
argued, that his client’s offense—fleeing and eluding police
officers—coupled with his deportment and record, were
insufficient to demonstrate that he posed a continuing threat of
danger to the community that justified state prison time. A jury
might conclude that a year in county jail followed by significantly
20
lengthy post-release restrictions would provide adequate
protection to the public, relieving the State of the financial burden
of incarcerating Booker for that time period. Perhaps most juries
would find Booker posed a public danger that justified state prison,
but the question is whether any rational one might not and deem
county jail and lengthy probation/community control enough.
Because it is not “clear beyond a reasonable doubt” that rational
juries would always conclude that Booker deserved state prison
rather than a nonstate prison sanction, the constitutional error is
not harmless.
The next question is what resentencing remedy applies to
Booker. Under the circumstances, we ordinarily would invalidate
Booker’s sentence and simply remand for resentencing under that
part of the statute that remains valid, which would be the
imposition of a nonstate prison sanction under the authority of the
first sentence of subsection (10). But, as the Supreme Court’s
opinion in Booker demonstrates, the remedy in an as-applied
constitutional challenge does not necessarily result in this default
remedy, i.e., where what remains of a statute is rotely applied.
Instead, the Court in Booker was guided in its remedial
determination by legislative intent, which focused on the
determination of “what ‘Congress would have intended’ in light of
the Court’s constitutional holding.” Booker, 543 U.S. at 246. In
other words, “[w]ould Congress still have passed” the valid sections
“had it known” about the constitutional invalidity of the other
portions of the statute?” Denver Area Educ. Telecomm.
Consortium, Inc. v. FCC, 518 U.S. 727, 767 (1996) (plurality
opinion) (internal quotation marks omitted). Given the
constitutional violation in Booker, the Court was left with
determining which of the competing “remedial approaches is the
more compatible with the Legislature’s intent as embodied in the
1984 Sentencing Act.” 543 U.S. at 246.
This question sharply divided the Court. The majority
concluded that severing the mandatory nature of the sentencing
guidelines eliminated the constitutional infirmity “while
maintaining a strong connection between the sentence imposed
and the offender’s real conduct—a connection important to the
increased uniformity of sentencing that Congress intended its
21
Guidelines system to achieve.” Id. Rejected was the dissenters’
remedy, which was to engraft a “jury trial” requirement into the
sentencing system, thereby “preventing the sentencing court from
increasing a sentence on the basis of a fact that the jury did not
find (or that the offender did not admit).” Id. Both views, of course,
had merit, each envisioning the realization of legislative intent
differently.
Similarly, we must decide which remedial option the
Legislature would have wanted if the last sentence of subsection
(10) were to be deemed unconstitutional in its application. The
most apparent options are: (a) engrafting a “jury trial”
requirement into the last sentence of subsection (10) and
remanding for proceedings under a judicially-revised process; (b)
construing “must” in the first sentence of subsection (10) to mean
“may” thereby making compulsory nonstate prison sanctions non-
compulsory and raising the relevant statutory maximum sentence
to a state prison term; (c) remanding for resentencing under the
first sentence of subsection (10) only; or (d) remanding for
resentencing under the prior version of the sentencing statute, i.e.,
statutory revival.
We reject option (a) for much the same reasons that the Court
in Booker did: no indication exists that the Legislature would have
wanted a judicially-imposed jury trial requirement given the clear
language of the statute. To do so would take away the role that the
Legislature assigned solely to the judiciary and make more
complex and costly a sentencing process it sought to streamline; it
may have wanted an impassive judge rather than an impassioned
jury deciding the public danger question. Plus, judicially rewriting
a statute, thereby creating a different sentencing procedure, risks
its own collateral consequences that create known and unforeseen
burdens and uncertainties.
Option (b), which is akin to what the majority applied in
Booker, has the virtue of solving the Apprendi problem by
completely recasting subsection (10) as an entirely permissive
sentencing statute, eliminating compelled nonstate prison
sanctions and thereby raising the relevant statutory maximum for
Apprendi purposes to a five-year maximum. But the principal
purpose of the 2009 sentencing revision was to compel judges to
22
sentence offenders to nonstate prison sanctions thereby shifting
incarceration costs from the State’s prison system to the counties.
Were we to construe “must” to mean “may” (or even “should”), we
would be turning the raison d’être of the statute into a mere wish
or velleity, and thereby impeding the legislative plan. Like Booker,
which excised a portion of the federal statute to achieve a
constitutional result, transforming a clear word of compulsion
(“must”) into one of permission (“may”) may achieve a similar
constitutional result, but leaves the lingering question of whether
the remedial impact comes close to what the Legislature
envisioned. Because we are focused solely on the appropriate
remedy in Booker’s case, however, we are disinclined to take this
momentous step if another less drastic remedy is available as to
Booker.
Option (c) is problematic because it would retain only one leg
of the two-legged sentencing structure in subsection (10), making
the application of severance principles useful. Booker, 543 U.S. at
247 (“[S]ometimes severability questions (questions as to how, or
whether, Congress would intend a statute to apply) can arise when
a legislatively unforeseen constitutional problem requires
modification of a statutory provision as applied in a significant
number of instances.”). The severance test states:
The rule is well established that the unconstitutionality
of a portion of a statute will not necessarily condemn the
entire act. When a part of a statute is declared
unconstitutional the remainder of the act will be
permitted to stand provided: (1) the unconstitutional
provisions can be separated from the remaining valid
provisions, (2) the legislative purpose expressed in the
valid provisions can be accomplished independently of
those which are void, (3) the good and the bad features
are not so inseparable in substance that it can be said
that the Legislature would have passed the one without
the other and, (4) an act complete in itself remains after
the invalid provisions are stricken.
Cramp v. Bd. of Pub. Instruction of Orange Cty., 137 So. 2d 828,
830 (Fla. 1962); see also Schmitt v. State, 590 So. 2d 404, 415 (Fla.
23
1991) (“The Cramp test is a well established component of Florida
law. It has been applied repeatedly in countless Florida cases.”).
As applied here, factors (1), (2), and (4) are met: the first and
second sentences of subsection (10) can be separated, the
legislative purpose underlying the valid portion, i.e., the first
sentence, can be accomplished without the second sentence; and
the first sentence can stand as an “act complete in itself” without
the second sentence.
We conclude, however, that “the good and the bad features are
not so inseparable in substance that it can be said that the
Legislature would have passed the one without the other.” Cramp,
137 So. 2d at 830.
The most reasonable conclusion is that the Legislature
passed subsection (10) as a unified, inseparable whole
and would not have wanted severance of its component
parts. Subsection (10) reflects a compromise between two
related goals: the fiscal goal of reducing state prison
expenses and the public safety goal of ensuring that
violent offenders be subject to state prison sentences if
nonstate sanctions don’t suffice. Striking only the last
sentence, which would result in nonstate sentences for all
offenders no matter their dangerousness, serves the
former goal at the expense of the latter. No indication
exists that the Legislature would have down-graded
sentences within this classification (from up to five years
to nonstate sentences) without the concurrent potential
for violent offenders to be placed in the state prison
system. Stated differently, it cannot be said that the
Legislature would have passed only the first sentence in
subsection (10) but not the last; the two are intertwined.
Woods, 214 So. 3d at 810 (Makar, J., concurring in affirmance).
Because we conclude that severance of subsection (10)’s sentences
would run counter to legislative intent, we reject option (c), which
would require that Booker be sentenced to a nonstate prison
sanction only. The Legislature wanted a safeguard for truly violent
offenders to be subject to possible state prison sentences, which
this option would not offer.
24
Given that subsection (10)’s two sentences are inseparable,
option (d) presents the remedy of statutory revival, which is to
revert to the previous version of the sentencing statute, one that
authorized trial judges to impose any term of imprisonment up to
five years for the class of offenders to which subsection (10)
applied. See § 775.082, Fla. Stat. (2008); see also Crim. and Civ.
Just. Comm. SB 1722 Staff Analysis (discussing the then-current
sentencing options); see generally B.H. v. State, 645 So. 2d 987, 995
(Fla. 1994) (“Florida law has long held that, when the legislature
approves unconstitutional statutory language and simultaneously
repeals its predecessor, then the judicial act of striking the new
statutory language automatically revives the predecessor unless
it, too, would be unconstitutional.”).
Like option (b), this remedy would subject Booker on remand
to the full range of sentencing options, from a nonstate prison
sanction to a state prison sanction, including the four-year prison
sentence he received. Conceivably, he might be resentenced to the
sentence he currently serves, but that likelihood is uncertain and
is no reason to reject this option out of hand. Instead, the
sentencing judge would take into account the full range of
sentencing factors—not merely the one-dimensional “public
danger” inquiry that was the sole focus here—in determining an
appropriate sentence for Booker, which could result in a lower
sentence or, theoretically, a higher one. The former is more likely
given that Booker’s current sentence is near the five-year
maximum and a higher sentence might trigger vindictive
sentencing principles. See Baxter v. State, 127 So. 3d 726 (Fla. 1st
DCA 2013).
Finally, reverting to the prior sentencing laws as the remedy
in Booker’s case does less systemic harm than would a potentially
far-reaching judicial decree under option (a) (insert “jury” for
“court”) or option (b) (i.e., that “must” really means “may”).
Judicially rewording the statute is inadvisable where a more
modest remedy is available as applied to Booker and the small
number of offenders similarly situated. That said, trial judges and
attorneys prospectively will justifiably wonder what to do in cases
where the State seeks to enhance a sentence under the last
sentence of subsection (10). Of course, the vast swath of cases will
continue to result in nonstate prison sanctions under the first
25
sentence of subsection (10); but what if an offender is one for whom
the Legislature intended potentially enhanced punishment? In
those cases, the prosecutor could do as federal prosecutors did post-
Apprendi, which is to allege facts by information or indictment
necessary to establish the basis for an enhanced sentence. Booker,
543 U.S. at 277 (Stevens, J., dissenting in part) (“In many cases,
prosecutors could avoid an Apprendi . . . problem simply by
alleging in the indictment the facts necessary to reach the chosen
Guidelines sentence.”). Doing so may provide the factual basis for
a trial judge to pass upon whether a state prison sanction is
appropriate. And, although defendants ordinarily have no reason
to waive their jury trial right and subject themselves to an
enhanced sentence under the second sentence in subsection (10),
some might do so in this limited circumstance if they perceive that
judicial fact-finding may be more beneficial than jury fact-finding
on the facts alleged in the information nor indictment.
Conclusion
Because the last sentence of subsection (10) is
unconstitutional as applied to Booker, and the violation is not
harmless, the remedy is to invalidate Booker’s sentence and
remand for resentencing under the prior version of the sentencing
statute. Unlike Woods, who had been released from prison after
serving her full term and before relief could be granted, Woods, 214
So. 3d at 804, Booker remains incarcerated and thereby has a basis
for resentencing. His four-year sentence is beyond the relevant
statutory maximum under subsection (10) making his current
sentence invalid.
We recognize that some of our colleagues view subsection (10)
as presenting no Sixth Amendment issue. Woods, 214 So. 3d at 812(Osterhaus, J., concurring in affirmance) (stating that subsection
(10) “does not have an Apprendi-related, Sixth Amendment
problem. Apprendi prohibits judicial findings that increase a
criminal penalty beyond the maximum authorized by a jury’s
verdict. Here, § 775.082(10) does not allow courts to increase the
punishment, but only affects the form of a defendant’s penalty,
whether it will include prison time or not.”); id. at 819 (Winokur,
J., concurring). And a majority on Fifth District panel recently
upheld the constitutionality of section 775.082(10). Brown, 233 So.
263d at 1262-66. For these reasons, and although mandatory
jurisdiction in our supreme court exists in this case, art. V, §
3(b)(1), Fla. Const.; State v. Robinson, 873 So. 2d 1205, 1207 (Fla.
2004), we certify conflict with Brown and Porter and certify the
following question of great public importance:
WHETHER THE SECOND SENTENCE IN SUBSECTION (10) OF
SECTION 775.082, FLORIDA STATUTES, WHICH AUTHORIZES
A TRIAL JUDGE TO MAKE FACTUAL FINDINGS INDEPENDENT
OF A JURY AS TO AN OFFENDER’S POTENTIAL “DANGER TO
THE PUBLIC” AND TO IMPOSE A STATE PRISON SENTENCE
THAT EXCEEDS THE MAXIMUM NONSTATE SANCTION OF UP
TO ONE YEAR IN COUNTY JAIL VIOLATES THE SIXTH
AMENDMENT AS APPLIED TO BOOKER? IF THE ERROR IS NOT
HARMLESS, WHAT REMEDY IS APPROPRIATE?
REVERSED and REMANDED; CONFLICT CERTIFIED; QUESTION
OF GREAT PUBLIC IMPORTANCE CERTIFIED.
ROBERTS, J., concurs; JAY, J., concurs in part and dissents in part
with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
JAY, J., concurring in part and dissenting in part.
I concur insofar as the majority concludes that the trial court’s
imposition of a prison sentence under section 775.082(10), Florida
Statutes, is unconstitutional under Apprendi v. New Jersey, 530
U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).
However, I would find that section 775.082(10) is unconstitutional
on its face for the reasons outlined in Judge Makar’s concurring
opinion in Woods v. State, 214 So. 3d 803, 805-09 (Fla. 1st DCA
2017).
27
Furthermore, I would conclude that the sentencing error in
this case is harmless because the proper remedy is to sentence
Booker under the prior version of the statute, which gives the trial
court unfettered discretion to sentence Booker up to the statutory
maximum of five years in prison. I find it inconceivable that the
court would sentence Booker to a lesser sentence than four years
in prison under a statute that gives it even greater discretion to
impose a prison sentence. To the extent the court might consider a
longer sentence, this could raise concerns about vindictive
sentencing. Because I conclude beyond a reasonable doubt that
the trial court would impose the same sentence at resentencing, I
dissent to the extent the majority remands for a new sentencing
hearing.
_____________________________
Andy Thomas, Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Robert Quentin Humphrey,
Assistant Attorney General, Tallahassee, for Appellee.
28