The opinion
FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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Case No. 5D2024-3233
LT Case No. 2010-CF-08065-A
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GERALD BROWN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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3.800 Appeal from the Circuit Court for Duval County.
Mark Jeffrey Borello, Judge.
Gerald Brown, Lake City, pro se.
No Appearance for Appellee.
May 30, 2025
EISNAUGLE, J.
Gerald Brown appeals the postconviction court’s dismissal of
his Florida Rule of Criminal Procedure 3.800(a) motion in which—
relying on Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v.
Washington, 542 U.S. 296 (2004); Alleyne v. United States, 570
U.S. 99 (2013); and Erlinger v. United States, 602 U.S. 821
(2024)—he argued his Habitual Felony Offender (“HFO”)
sentences are illegal because the trial court, and not the jury, made
the requisite factual findings. In dismissing the motion, the
postconviction court reasoned, inter alia, that (1) Brown’s
Apprendi challenge to his HFO sentences “is not the kind of issue
that Rule 3.800(a) motions are intended to resolve,” and (2)
Erlinger does not apply retroactively. Given the nature of the
postconviction court’s analysis and disposition, it did not attach
records to the order. We reverse.
While we are sympathetic to the postconviction court’s view
that Brown’s Apprendi challenge is an odd fit for rule 3.800(a), our
supreme court’s decision in Plott v. State, 148 So. 3d 90, 95 (Fla.
2014), concludes that claims of Apprendi error are indeed
cognizable in a rule 3.800(a) motion. We are, of course, bound by
Plott, as is the postconviction court.
Moreover, the postconviction court’s unelaborated statement
that Erlinger is not retroactive misses the mark because, for one,
Brown did not rely on Erlinger alone. He relied on Apprendi and
its progeny which happens to include Erlinger. Importantly,
Brown’s sentence became final long after Apprendi and Blakely
were decided. At a minimum, we fail to see how Apprendi and
Blakely would require retroactive application.1
Finally, given the postconviction court did not attach any
records to its order, our record is insufficient for us to conduct a
harmless error analysis, Galindez v. State, 955 So. 2d 517, 522–23
(Fla. 2007), or to determine if Brown’s Apprendi argument was
preserved, McGregor v. State, 789 So. 2d 976, 977 (Fla. 2001). We
therefore reverse and remand to the postconviction court for
further proceedings consistent with this opinion.
REVERSED AND REMANDED.
WALLIS and LAMBERT, JJ., concur.
1 For this reason, we need not decide if Erlinger announces a
new rule, and if it does, whether it requires retroactive application.
See Witt v. State, 387 So. 2d 922, 926 (Fla. 1980).
2
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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3