Jesse David Hicks v. State of Florida

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2024-1300

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JESSE DAVID HICKS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Holmes County.

Colby Peel, Judge.

October 15, 2025

PER CURIAM.

Appellant, Jesse David Hicks, argues on appeal that the trial

court erred in sentencing him as a prison releasee reoffender

(“PRR”) because under Erlinger v. United States, 602 U.S. 821

(2024), he was entitled to a jury determination of whether he was

released from prison within three years of committing his current

offenses. Appellant also argues that the sentencing procedure to

impose a PRR sentence under section 775.082(9), Florida Statutes,

is now unconstitutional in light of the holding in Erlinger. ∗

∗

Because Appellant’s sentence is before us on direct appeal, it

is thus not final for purposes of the application of decisional law

issued after sentencing. See State v. Fleming, 61 So. 3d 399 (Fla.

As the Fifth District did in Ashford v. State, 407 So. 3d 537,

537 (Fla. 5th DCA 2025), we affirm without reaching the merits of

Appellant’s arguments as to Erlinger’s impact, if any, upon section

775.082(9) because even if Erlinger applies, any error in this case

is harmless. When considering harmless error when the claimed

error is failure to have a jury finding made during sentencing, the

issue is “whether the failure to have the jury make the . . . finding

. . . contributed to the . . . sentence—in other words, whether the

record demonstrates beyond a reasonable doubt that a rational

jury would have found” the same thing. Galindez v. State, 955

So. 2d 517, 523 (Fla. 2007).

Both Appellant and his counsel acknowledged below that he

was released from prison within three years of committing his

current offenses, and the Department of Corrections’ records so

reflect. Thus, the record demonstrates beyond a reasonable doubt

that no rational jury would have determined that Appellant did

not qualify for PRR sentencing based upon the timing of his release

from prison on his past offenses and the commission of his current

offenses. We, therefore, affirm. See Flournoy v. State, 415 So. 3d

806, 808 (Fla. 2d DCA 2025) (“[E]ven assuming that the trial court

erred [under Erlinger] by making the findings necessary to impose

the HFO and PRR enhancements, rather than leaving those

findings to the jury, the error was harmless.”); Ashford, 407 So. 3d

at 537; see also Avalos v. State, 50 Fla. L. Weekly D1950a (Fla. 6th

DCA Aug. 29, 2025); Jackson v. State, 410 So. 3d 4 (Fla. 4th DCA

2025).

AFFIRMED.

LEWIS and ROWE, JJ., concur; WINOKUR, J., concurs with opinion.

2011). Cf. Wainwright v. State 411 So. 3d 392 (Fla. 2025) (holding

that Erlinger does not apply retroactively to a postconviction

claim).

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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WINOKUR, J., concurring.

I concur in the decision to affirm, in particular with the

conclusion that the alleged error is subject to harmless-error

analysis pursuant to Galindez v. State, 955 So. 2d 517 (Fla. 2007),

I write separately to make three observations.

I

First, I have concerns about the propriety of raising an

Apprendi error 1 by motion under Florida Rule of Criminal

Procedure 3.800, particularly under rule 3.800(b), as Hicks did

here. This concern stems from the ruling in Jackson v. State, 983

So. 2d 562, 574 (Fla. 2008), which holds that rule 3.800(b) may be

used to correct “any error in an order entered as a result of the

sentencing process—that is, orders related to the sanctions

imposed[,]” as opposed to “an error in the sentencing process[.]” An

Apprendi error seems to be an error in the sentencing process, as

that phrase is described in Jackson. As such, it does not appear

that an appellant can rely on rule 3.800(b) to raise an Apprendi

error.

An Apprendi claim typically alleges violations of two separate

provisions of the Constitution: (1) a judge, instead of a jury, found

a fact in violation of the defendant’s Sixth Amendment right to a

trial by jury; and, (2) the factfinder, in violation of the defendant’s

right to due process, utilized the preponderance of the evidence

1 I use the phrase “Apprendi error” broadly to mean an order

that violates Apprendi v. New Jersey, 530 U.S. 466 (2000); Alleyne

v. United States, 570 U.S. 99 (2013); Erlinger v. United States; 602

U.S. 821 (2013), or any other related case. “Apprendi claim” is

similarly broad.

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standard instead the beyond a reasonable doubt standard. See

Apprendi, 530 U.S. at 476 (“[U]nder the Due Process Clause of the

Fifth Amendment and the notice and jury trial guarantees of the

Sixth Amendment, any fact (other than prior conviction) that

increases the maximum penalty for a crime must be charged in an

indictment, submitted to a jury, and proven beyond a reasonable

doubt.”). In other words, an Apprendi claim alleges that the wrong

entity (judge instead of jury) found a fact under the wrong

standard (preponderance of the evidence instead of beyond a

reasonable doubt). See, e.g., Hughes v. State, 901 So. 2d 837, 841

(Fla. 2005) (“The effect of [Apprendi] is solely to shift factfinding

responsibility from the judge to the jury and to increase the burden

of proof for those facts that increase the penalty for a crime beyond

its statutory maximum.”).

An Apprendi claim, therefore, alleges an error in the

sentencing process—not an error in the sentencing order itself. See

Hughes, 901 So. 2d at 841 (“Rules that allocate decision-making

authority in this fashion are prototypical procedural rules”). And

because it is an error in the sentencing process, our supreme court

has held that it cannot be raised by motion under rule 3.800(b).

I recognize that this conclusion is at odds with Plott v. State,

148 So. 3d 90 (Fla. 2014), which ruled that Apprendi claims are

cognizable under rule 3.800(a). Claims made under rule 3.800(a)

are cognizable under rule 3.800(b), see Brooks v. State, 969 So. 2d

238, 242 n.7 (Fla. 2007), so logically these cases lead to the

conclusion that an Apprendi claim may be raised by motion under

rule 3.800(b). Respectfully, I do not believe that this conclusion

takes Jackson, which was not mentioned in Plott, into account. 2 As

2 Our supreme court once explicitly refused to address the

argument that Jackson does not permit Apprendi claims by rule

3.800(b) motion, because the State had failed to advance that

argument in the district court. State v. Fleming, 61 So. 3d 399, 401

n.3 (Fla. 2011). The Second District has read this footnote to mean

that “the Florida Supreme Court has acknowledged that Apprendi

claims are properly preserved by a rule 3.800(b) motion.” Flournoy

v. State, 415 So. 3d 806, 808 n.1 (Fla. 2d DCA 2025). I disagree.

The Florida Supreme Court refused to consider the issue because

the State failed to raise it in the district court. The Fleming court

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of the date of this opinion, it appears that our supreme court may

address the viability of Plott in its review of Maye v. State, 368 So.

3d 531 (Fla. 6th DCA 2023), review granted, No. SC2023-1184,

2024 WL 1796831 (Fla. Apr. 25, 2024). 3 In the meantime, we are

bound by Plott.

II

Second, I question the relevance of Erlinger to any Florida

sentencing matter, particularly the one presented here. Erlinger

involved the question of whether a series of prior offenses qualified

as separate offenses (as the Government contended), which

permitted enhanced sentencing under the Federal Armed Career

Criminal Act (ACCA), or whether the offenses were part of a single

criminal episode (as the offender contended), which precluded such

enhanced sentencing. The answer to this inquiry was a “fact-laden

task,” involving analysis of whether the crimes were committed

close in time or proximity, or whether they were “similar or

intertwined.” Id. at 834. The Court noted that the case was “as

nearly on all fours with Apprendi and Alleyne as any we might

imagine[,]”and concluded that a jury must resolve the “ACCA’s

occasions inquiry unanimously and beyond a reasonable doubt.”

did note that “Jackson does not directly address or even mention

Apprendi error[,]” 61 So. 3d 399, 401 n.3, but this observation is

not a holding that Apprendi claims are properly raised by a rule

3.800(b) motion.

3 I agree with Judge Eisnaugle that rule 3.800(a) is an “odd

fit” for Apprendi errors. Turnage v. State, 411 So. 3d 517 n.1 (Fla.

5th DCA 2025) (Eisnaugle, J., concurring specially). However, I

believe this is because Apprendi errors are sentencing process

errors, not because a rule 3.800(a) motion cannot be used when the

claimed error is subject to harmless-error analysis—like Apprendi

errors. A sentencing scoresheet error, for instance, may be raised

in a rule 3.800(a) motion, but the error is subject to the “could-

have-been-imposed” harmless error standard. Brooks, 969 So. 2d

at 239. Rule 3.800(a) is not necessarily inconsistent with harmless-

error analysis.

5

Id. at 835. In other words, Erlinger merely applied Apprendi and

Alleyne.

Moreover, the Erlinger court was clear that its decision did

not affect the viability of Almendarez-Torres v. United States, 523

U.S. 224 (1998), which permits a court to find the fact of a prior

conviction without submitting the question to a jury. See Erlinger,

602 U.S. at 838 (“[N]o one in this case has asked us to revisit

Almendarez-Torres. Nor is there need to do so today.”).

Nor does Erlinger change what facts qualify as part of the fact

of prior conviction. See Erlinger, 602 U.S. at 839 (permitting a

sentencing judge to use information from sentencing documents

“for the limited function of determining the fact of a prior

conviction and the then-existing elements of that offense[.]”); see

also Shepard v. United States, 544 U.S. 13, 26 (2005) (holding that

the enquiry to determine whether a guilty plea admitted elements

necessary for ACCA sentencing “is limited to the terms of the

charging document, the terms of a plea agreement or transcript of

colloquy between judge and defendant in which the factual basis

for the plea was confirmed by the defendant, or to some comparable

judicial record of this information.”).

In short, Erlinger dealt with a particular fact-intensive

inquiry related to federal sentencing by merely applying existing

cases and did not expand the Court’s right-to-jury jurisprudence in

a way that requires us to re-examine whether facts supporting a

PRR sentence must be presented to a jury. Even the key feature

for which Erlinger is cited, that a sentencing judge may find only

the fact of a prior conviction without submitting the question to a

jury, simply applies a well-established rule from Almendarez-

Torres and Alleyne. The foofaraw surrounding Erlinger and its

supposed effects on Florida sentencing, particularly PRR

sentencing, is unnecessary.

III

In contrast, Alleyne did substantially expand the Court’s

right-to-jury jurisprudence. Prior to Alleyne, Apprendi was

interpreted to require a jury finding only for a fact that “increases

the penalty for a crime beyond the prescribed statutory

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maximum,” leaving the judge free to find facts that supported a

mandatory minimum sentence without a jury finding. Harris v.

United States, 536 U.S. 545, 550 (2002). However, the Court in

Alleyne explicitly overruled Harris, holding “any fact that

increases the mandatory minimum is an ‘element’ that must be

submitted to the jury.” Alleyne, 570 U.S. at 103. This was a major

expansion to the right of any defendant to a jury finding of facts

that supported the sentence.

Based on this observation, I believe that several district court

of appeal decisions holding that Alleyne did not require facts

supporting a PRR sentence to be found by the jury were wrongly

decided. 4 In Williams v. State, for instance, we found that 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.” Id. at 424. We

ruled that the critical fact for PRR purposes only “relates to the

fact of a prior conviction.” Id. Other district courts have ruled

similarly. See, e.g., Lopez, 135 So. 3d at 540 (finding that the fact

of the date of release from prison is “directly derivative of a prior

conviction”); Chapa, 159 So. 3d at 362 (adopting Williams and

Lopez); Ryland, 360 So. 3d at 786 (refusing to require a jury

determination under Alleyne because the relevant fact “requires

only a mechanical calculation or ministerial determination by the

judge”); Maye, 368 So. 3d 531.

I submit that the district court decisions on this issue

misapplied Alleyne and Almendarez-Torres. As to Alleyne,

Florida’s PRR statute clearly imposes mandatory minimum

sentences. See, e.g., § 775.082(9)(a)3.b., Fla. Stat. (“Upon proof

from the state attorney that establishes by a preponderance of the

evidence that a defendant is a prison releasee reoffender as defined

in this section, such defendant is not eligible for sentencing under

the sentencing guidelines and must be sentenced as follows . . . [f]or

4 See, e.g., Williams v. State, 143 So. 3d 423 (Fla. 1st DCA

2014); Lopez v. State, 135 So. 3d 539 (Fla. 2d DCA 2014); Ryland

v. State, 360 So. 3d 784 (Fla. 3d DCA 2023); Chapa v. State, 159

So. 3d 361 (Fla. 4th DCA 2015); Tobler v. State, 239 So. 3d 796 (Fla.

5th DCA 2018); Maye, 368 So. 3d 531.

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a felony of the first degree, by a term of imprisonment of 30 years”

(emphasis supplied)). Regarding Almendarez-Torres, the date that

a prisoner is released from prison is not part of the fact of prior

conviction. See Shepard, 544 U.S. at 26; see also Deschamps v.

United States, 570 U.S. 254, 262 (2013).

Alleyne, not Erlinger, provides the basis for this decision

regarding PRR. This issue, too, is likely to be resolved by the

Florida Supreme Court in Maye.

IV

While I believe that Apprendi claims cannot be raised by rule

3.800(b) motion, and that Alleyne, rather than Erlinger, provides a

basis to conclude that we cannot impose a PRR sentence without

submitting the question of date of release to a jury, I nonetheless

agree with the decision to affirm because the error is harmless.

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Jessica J. Yeary, Public Defender, and Tyler Kemper Payne,

Assistant Public Defender, Tallahassee, for Appellant.

James Uthmeier, Attorney General, and Darcy Townsend,

Assistant Attorney General, Tallahassee, for Appellee.

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