The opinion
SIXTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
Case No. 6D2023-0825
Lower Tribunal No. CF19-007074-XX
_____________________________
KYLE KENNETH KLICK,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
Appeal from the Circuit Court for Polk County.
Sharon M. Franklin, Judge.
August 30, 2024
PER CURIAM.
This criminal appeal presents the question of whether the Florida Supreme
Court’s holding in Brown v. State, 260 So. 3d 147 (Fla. 2018), applies to a
defendant’s resentencing that occurs upon the revocation of the defendant’s original
probationary sentence.1 Adopting the Second District’s reasoning in Shields v. State,
1
This case was transferred from the Second District Court of Appeal to this
Court on January 1, 2023.
296 So. 3d 967 (Fla. 2d DCA 2020), we hold that Brown does apply to a resentencing
that occurs after the revocation of a defendant’s original probationary sentence.
Background and Procedural History
Appellant Kyle Klick (“Defendant”) pled nolo contendere to a charge of
felony petit theft, a third-degree felony, under section 812.014(3)(c), Florida Statutes
(2019). He scored 12.2 points on his Criminal Punishment Scoresheet which
required that he be sentenced to a nonstate prison sanction. See § 775.082(10), Fla.
Stat. (2019). The trial court adjudicated him guilty and sentenced him to sixty days
in the county jail followed by thirty-six months’ probation.
After Defendant served his jail sentence and during his period of probation,
his probation officer filed an affidavit of violation of probation alleging that
Defendant committed a petit theft, which constituted a violation of one of the
conditions of his probation. Subsequently, the violation of probation affidavit was
amended to add three additional allegations of violations of his probation, including
failing to report to his probation officer and committing the new offense of driving
with a suspended or revoked driver’s license.
Defendant admitted to all of the allegations in the amended affidavit of
violation of probation. The trial court revoked Defendant’s probation and conducted
a resentencing. At the resentencing, Defendant’s counsel argued that because
Defendant scored only 12.2 points, he could not be sentenced to prison. Defendant’s
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counsel argued that a county jail sentence between time served and 364 days was
appropriate. The State recited Defendant’s criminal history of theft and requested
that the trial court impose a sentence of four years in state prison. The State noted
that the trial court would have to make written findings in order to justify the prison
sentence.
The trial court agreed with the State’s argument and sentenced Defendant to
four years in state prison. In its oral ruling, the trial court found that Defendant was
a danger to the community based on Defendant’s prior history of recidivism. The
trial court then issued its “Written Findings Pursuant to Section 775.082(10), Fla.
Statutes” (“Written Findings”) in which it justified the “upward departure” of
Defendant’s sentence. In its Written Findings, the trial court found, among other
things, that:
The offender’s blatant conduct with regards to the new theft charge in
Orange County while on probation and the numerous criminal
convictions for Petit Theft indicate that the offender poses a danger and
a threat to the community and a threat to property in the State of Florida
and an upward departure was necessary to protect the public from the
defendant’s behavior.
Defendant filed a timely notice of appeal of the trial court’s sentence and
subsequently, a motion to correct sentencing error, which was deemed denied under
Florida Rule of Criminal Procedure 3.800(b)(2)(B) when the trial court failed to rule
on the motion within sixty days.
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Analysis
Defendant makes two arguments on appeal. First, Defendant argues, based
on Brown, that the trial court’s finding of dangerousness was error because that
finding could only be made by a jury. Defendant further argues that the trial court
erred when it determined that he himself could present a danger to the public instead
of determining whether sentencing Defendant to a nonstate prison sentence posed a
danger to the public. We agree with Defendant on both arguments.
I. Section 775.082(10) and Brown v. State
Section 775.082(10), Florida Statutes, provides:
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.2
“Although section 775.082(10) does not define ‘nonstate prison sanction,’ the
phrase 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
2
The finding “that a nonstate prison sanction could present a danger to the
public” is generally referred to in the case law as a “dangerousness finding.” Brown,
260 So. 3d at 150; Shields, 296 So. 3d at 970; Riordan v. State, 275 So. 3d 226, 228
(Fla. 5th DCA 2019); Pine v. State, 331 So. 3d 304, 305 n.1 (Fla. 5th DCA 2021).
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2016) (quoting Jones v. State, 71 So. 3d 173, 175 (Fla. 1st DCA 2011) (internal
quotations omitted)).
In Brown, applying Apprendi3 and Blakely4, the Florida Supreme Court held
that a jury must make the required finding of dangerousness (or the defendant must
admit to it) before a state prison sentence can be imposed under Section 775.082(10).
260 So. 3d at 150-51.
The [Florida Supreme Court] explained that the statutory maximum
sentence for a defendant with fewer than twenty-two sentencing points
is “a nonstate prison sanction,” since that is the maximum sentence that
a judge could impose solely on the basis of the facts reflected by a jury
verdict. [Brown, 260 So. 3d at 150] (citing Blakely, 542 U.S. at 303,
124 S.Ct. 2531). It therefore held that “subsection (10) violates the
Sixth Amendment in light of Apprendi and Blakely based on its plain
language requiring the court, not the jury, to find the fact of
dangerousness to the public necessary to increase the statutory
maximum nonstate prison sanction.” Id. “In order for a court to impose
any sentence above a nonstate prison sanction when section
775.082(10) applies, a jury must make the dangerousness finding.” Id.
at 151.
Shields, 296 So. 3d at 970. Thus, at Defendant’s original sentencing upon his plea
of nolo contendere, the trial court could not have sentenced Defendant to state prison
without a jury finding of dangerousness under Section 775.082(10).
The question presented in this case is whether the judge was permitted to make
the finding of dangerousness at Defendant’s resentencing upon revocation of his
3
Apprendi v. New Jersey, 530 U.S. 466 (2000).
4
Blakely v. Washington, 542 U.S. 296 (2004).
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probation or, pursuant to Brown, was a jury required to make the finding of
dangerousness. In other words, does the holding of Brown apply to a resentencing
that occurs after the revocation of a defendant’s original probationary sentence?
Writing for the Second District, former Judge Salario addressed this question
directly and, we believe, correctly in Shields. Having reviewed Judge Salario’s
reasoning in Shields, we cannot improve upon it. For this reason, we adopt the
reasoning of Shields and hold that Brown applies to a resentencing that occurs after
the revocation of a defendant’s original probationary sentence. Thus, when a
defendant that was sentenced to a nonstate prison sanction under Section
775.082(10) is subsequently resentenced for the defendant’s original offense upon a
revocation of the defendant’s original probationary sentence, the trial court cannot
sentence the defendant to state prison unless a jury makes the dangerousness finding
required by Section 775.082(10).
The Florida Supreme Court has held that the remedy for a court, instead of a
jury, making the finding of dangerousness under Section 775.082(10) is to remand
with instructions to either impose a nonstate prison sanction or to empanel a jury to
make the required dangerousness finding, if the State seeks that finding at the
resentencing. Gaymon v. State, 288 So. 3d 1087, 1093 (Fla. 2020). Therefore, we
reverse Defendant’s sentence and remand with that instruction.
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II. The correct dangerousness finding to be made.
Defendant is also correct that the trial court erred when it determined that
Defendant himself could present a danger to the public instead of determining
whether sentencing Defendant to a nonstate prison sentence posed a danger to the
public. The plain language of Section 775.082(10) unambiguously provides that the
dangerousness finding that must be made before a defendant can be sentenced to a
state prison sentence is that “a nonstate prison sanction could present a danger to the
public.” See Ham v. Portfolio Recovery Assocs., LLC, 308 So. 3d 942, 946 (Fla.
2020) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 56 (2012) (observing that in interpreting statutes, Florida courts
“follow the ‘supremacy-of-text principle’—namely, the principle that ‘[t]he words
of a governing text are of paramount concern, and what they convey, in their context,
is what the text means.’”)). Such a finding is not the same as a finding that Defendant
himself could present a danger to the public. Pine v. State, 331 So. 3d 304, 305 (Fla.
5th DCA 2021) (“[R]eversal is necessary because the jury in the sentencing
proceeding was incorrectly instructed to determine whether [the defendant]
himself—as opposed to a nonstate prison sentence—could present a danger to the
public.”). Therefore, if the State seeks a state prison sentence on remand and the
trial court empanels a jury to make the required dangerousness finding, the question
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the jury must be instructed to decide is whether sentencing Defendant to a nonstate
prison sentence could present a danger to the public.5
Conclusion
Defendant’s sentence is reversed, and this case is remanded to the trial court
for further proceedings consistent with this opinion.
REVERSED and REMANDED with instructions.
NARDELLA and MIZE, JJ., and LAMBERT, B.D., Associate Judge, concur.
Howard L. “Rex” Dimmig, II, Public Defender, and Maureen E. Surber, Assistant
Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Sonia C. Lawson, Assistant
Attorney General, Tampa, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING
AND DISPOSITION THEREOF IF TIMELY FILED
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While the appropriate language for such a jury instruction is not an issue
before us in this appeal, we can foresee the complexities involved in drafting a jury
instruction that properly instructs a jury to decide whether sentencing a defendant to
a nonstate prison sentence could present a danger to the public. For this reason, we
hereby make a referral to the Committee on Standard Jury Instructions in Criminal
Cases to consider recommending a standard jury instruction concerning the
application of Section 775.082(10). The Clerk of Court will forward a copy of this
opinion to the Committee.
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