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

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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

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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

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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).

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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.

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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.

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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.

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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.

26

3d 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