Lloyd Newman Dubuc v. State of Florida

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D2024-2250

LT Case No. 2020-CF-4302-A

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LLOYD NEWMAN DUBUC,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Marion County.

Peter M. Brigham, Judge.

Matthew J. Metz, Public Defender, and Joseph Chloupek,

Assistant Public Defender, Daytona Beach, for Appellant.

James Uthmeier, Attorney General, Tallahassee, and Kaylee D.

Tatman, Assistant Attorney General, Daytona Beach, for

Appellee.

July 18, 2025

JAY, C.J.

The trial court imposed an upward departure prison sentence.

Because the court did so based on a finding that only a jury can

make, we reverse.

A jury found Appellant guilty of driving with a permanently

revoked license and resisting a law enforcement officer without

violence. The court acknowledged that Appellant qualified for a

nonstate prison sanction but found that such a sanction could

endanger the public. See § 775.082(10), Fla. Stat. (2020) (providing

that when a defendant commits a third-degree, non-forcible felony

and has 22 points or fewer on his scoresheet, he must receive a

nonstate prison sanction unless that sanction “could present a

danger to the public”). Based on this finding, the court sentenced

Appellant to four years in prison. Appellant moved for a sentencing

correction under Florida Rule of Criminal Procedure 3.800(b)(2).

Citing Brown v. State, 260 So. 3d 147 (Fla. 2018), he argued that

only a jury could make the dangerousness finding. The court

denied relief. Our review is de novo. See State v. Janes, 351 So. 3d

646, 648 (Fla. 5th DCA 2022).

In Brown, the Supreme Court of Florida held that “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.” 260 So. 3d at 151 (emphasis added); see also Fla. R. Crim.

P. 3.704(d)(31) (reflecting this requirement). The Court reached

this conclusion by applying Apprendi v. New Jersey, 530 U.S. 466

(2000), where the Supreme Court of the United States held that a

jury must find any fact—other than a prior conviction—that

increases a defendant’s sentence beyond the prescribed statutory

maximum. Brown, 260 So. 3d at 150.

Here, because a jury did not make the dangerousness finding,

Appellant argues that his prison sentence is illegal. The State does

not dispute the merits of Appellant’s argument but claims that it

is unpreserved since he did not raise it until moving for relief

under Rule 3.800(b)(2)—that is, after his sentencing hearing. The

State is incorrect. See Klick v. State, 393 So. 3d 820, 822 (Fla. 6th

DCA 2024) (holding that an appellant was entitled to relief under

Brown in a case where he “filed a timely notice of appeal of the

trial court’s sentence and subsequently, a motion to correct

sentencing error” under Rule 3.800(b)(2)); Lamberson v. State, 317

So. 3d 286, 287 (Fla. 2d DCA 2021) (agreeing that “appellate

counsel was ineffective for failing to file a motion under Florida

Rule of Criminal Procedure 3.800(b)(2) to preserve the issue of the

illegality of [the appellant’s] sentence” under Brown); Donald v.

State, 310 So. 3d 948, 949–50 (Fla. 4th DCA 2021) (reversing a

sentence in a case where the appellant “filed a motion to correct

illegal sentence pursuant to Florida Rule of Criminal Procedure

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3.800(b)(2) that raised the sentencing issue [Brown] we consider in

this appeal”); Hollingsworth v. State, 293 So. 3d 1049, 1051 (Fla.

4th DCA 2020) (explaining that a Rule 3.800(b)(2) motion is “the

proper method” for raising an Apprendi violation).

The State also contends that Appellant invited the court’s

error, pointing to a brief exchange between the court and defense

counsel at sentencing. Counsel said, “Yes, Your Honor” when the

court referenced the possibility of finding that Appellant is

“otherwise dangerous,” but the court said nothing more about what

that meant. Looking at the exchange in context, counsel did not

“invite” the court to make a ruling or otherwise lead the court into

error. See Alexander v. Quail Pointe II Condo., 170 So. 3d 817, 822

(Fla. 5th DCA 2015) (quoting Volusia County. v. Niles, 445 So. 2d

1043, 1048 (Fla. 5th DCA 1984); Keller Indus., Inc. v. Morgart, 412

So. 2d 950, 951 (Fla. 5th DCA 1982)). The hallmark of invited error

is asking a trial court to do something and then arguing on appeal

that the court should not have listened. See, e.g., Roberts v. Fla.

Ins. Guar. Ass’n, 50 Fla. L. Weekly D1462, 2025 WL 1831585, at

*1 (Fla. 5th DCA July 3, 2025) (finding invited error where the

appellant “attack[ed] a procedure that she advocated below”);

Gjokhila v. Seymour, 349 So. 3d 496, 501–02 (Fla. 1st DCA 2022)

(holding that it was invited error for a party to complain on appeal

about “an agreement that she asked the court to approve”); Flowers

v. State, 149 So. 3d 1206, 1208 (Fla. 1st DCA 2014) (“Mr. Flowers

knowingly sought the instruction, the jury used the instruction,

and he now takes issue with the instruction. This falls squarely

within the invited error doctrine.”). That is far from what occurred

here.

The bottom line is that the court enhanced Appellant’s

sentence based on a finding that only a jury can make. See Brown,

260 So. 3d at 151. Therefore, we reverse Appellant’s prison

sentence and remand for the court to either impose a nonstate

prison sanction or empanel a jury to make the dangerousness

finding, if requested by the State. See Gaymon v. State, 288 So. 3d

1087, 1089–90 (Fla. 2020); Klick, 393 So. 3d at 823.

REVERSED and REMANDED with instructions.

HARRIS, J., concurs.

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EISNAUGLE, J., concurs specially with opinion.

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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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Case No. 5D2024-2250

LT Case No. 2020-CF-4302-A

EISNAUGLE, J., concurring specially with opinion.

I agree that we must reverse Appellant’s sentence because we

are bound by the Florida Supreme Court’s interpretation of

Apprendi v. New Jersey, 530 U.S. 466 (2000), as set forth in Brown

v. State, 260 So. 3d 147 (Fla. 2018). I also agree that Gaymon v.

State, 288 So. 3d 1087, 1089–90 (Fla. 2020), permits the State to

request a jury determination on remand. However, I write to

explain why I respectfully submit that our supreme court should

reconsider the remedy announced in Gaymon.

Section 775.082(10) 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.

§ 775.082(10) (emphasis added). Important here, the Legislature

could have assigned the dangerousness finding to the jury. It did

not. Instead, it required the court to make the finding.

Florida’s Constitution contains an express separation of

powers provision. Article II, Section 3 states:

The powers of the state government shall be divided into

legislative, executive and judicial branches. No person

belonging to one branch shall exercise any powers

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appertaining to either of the other branches unless

expressly provided herein.

Art. III, § 3, Fla. Const.

The separation of powers is no technicality. As Justice Scalia

observed, “[w]ithout a secure structure of separated powers, our

Bill of Rights would be worthless, as are the bills of rights of many

nations of the world that have adopted, or even improved upon, the

mere words of ours.” Morrison v. Olson, 487 U.S. 654, 697 (1988)

(Scalia, J., dissenting).

Consistent with this strict separation of powers, Florida’s

courts are without authority “to add words to statutes that were

not placed there by the Legislature.” Hayes v. State, 750 So. 2d 1,

4 (Fla. 1999). Nor can we modify a statute’s express terms. Koster

v. Sullivan, 160 So. 3d 385, 390 (Fla. 2015); Pepper v. Pepper, 66

So. 2d 280, 284 (Fla. 1953). “To do so would be an abrogation of

legislative power.” Koster, 160 So. 3d at 390 (citation omitted).

Perhaps the Legislature, if given the opportunity, would

choose Gaymon’s remedy. But that is beside the point. The

Legislature alone must wield the legislative power, and I can find

no exception to Florida’s separation of powers applicable here.

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