Petition for Writ of Certiorari — Glynn T. Murphy, Petitioner v. Florida

No.

IN THE

SUPREME COURT OF THE UNITED STATES

GLYNN T. MURPHY,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

On Petition for Writ of Certiorari

to the Florida First District Court of Appeal

PETITION FOR WRIT OF CERTIORARI

MICHAEL UFFERMAN

Michael Ufferman Law Firm, P.A.

2022-1 Raymond Diehl Road

Tallahassee, Florida 32308

(850) 386-2345/fax (850) 224-2340

FL Bar No. 114227

Email: ufferman@uffermanlaw.com

COUNSEL FOR THE PETITIONER

A. QUESTION PRESENTED FOR REVIEW

Whether the Petitioner’s sentence violates his Sixth Amendment right to a jury

trial when the trial court imposed a minimum mandatory sentence of fifteen years’

imprisonment based on the trial court’s finding that the Petitioner is a prison releasee

reoffender (i.e., the trial court made a factual finding that the Petitioner’s burglary

offense was committed within three years of the date that he was released from prison)

– a conclusion that was not found beyond a reasonable doubt by the jury.

ii

B. PARTIES INVOLVED

The parties involved are identified in the style of the case.

iii

C. TABLE OF CONTENTS AND TABLE OF AUTHORITIES

1.

TABLE OF CONTENTS

A.

QUESTION PRESENTED FOR REVIEW .. . . . . . . . . . . . . . . . . . . . . . . . . . . ii

B.

PARTIES INVOLVED .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

C.

TABLE OF CONTENTS AND TABLE OF AUTHORITIES . . . . . . . . . . . . . . iv

1.

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

2.

Table of Cited Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

D.

CITATION TO OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

E.

BASIS FOR JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

F.

CONSTITUTIONAL PROVISION INVOLVED . . . . . . . . . . . . . . . . . . . . . . . 1

G.

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

H.

REASON FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

The question presented is important and has a potential impact on

numerous criminal prosecutions nationwide. . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

J.

APPENDIX

iv

2.

TABLE OF CITED AUTHORITIES

a.

Cases

Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151 (2013).. . . . . . . . . . . . . . . . . 4-5

Almendarez-Torres v. United States, 523 U.S. 224 (1997). . . . . . . . . . . . . . . . . . . . . 5

Murphy v. State, 227 So. 3d 242 (Fla. 1st DCA 2017). . . . . . . . . . . . . . . . . . . . . . . . . 1

United States v. Salazar-Lopez, 506 F.3d 748 (9th Cir. 2007). . . . . . . . . . . . . . . . . . 6

Williams v. State, 143 So. 3d 423 (Fla. 1st DCA 2014). . . . . . . . . . . . . . . . . . . . . . . . 3

b.

Statutes

8 U.S.C. § 1326(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

28 U.S.C. § 1257. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

§ 775.082(9), Fla. Stat.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3

§ 775.082(9)(a), Fla. Stat.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

§ 775.082(9)(a)1., Fla. Stat.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

§ 775.082(9)(b), Fla. Stat.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

§ 810.02(3), Fla. Stat.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

c.

Other Authority

Fla. R. Crim. P. 3.800(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

U.S. Const. amend VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

v

The Petitioner, GLYNN T. MURPHY, requests the Court to issue a writ of

certiorari to review the opinion/judgment of the Florida First District Court of Appeal

entered in this case on October 11, 2017. (A-1).1

D. CITATION TO ORDER BELOW

Murphy v. State, 227 So. 3d 242 (Fla. 1st DCA 2017).

E. BASIS FOR JURISDICTION

The jurisdiction of the Court is invoked pursuant to 28 U.S.C. § 1257 to review

the final judgment of the Florida First District Court of Appeal rendered on October

11, 2017.

F. CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment of the United States Constitution provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by

an impartial jury . . . .”

Section 775.082(9), Florida Statutes, states in relevant part:

(a)1. “Prison releasee reoffender” means any defendant who

commits, or attempts to commit:

....

q. Burglary of a dwelling or burglary of an occupied structure;

....

1

References to the appendix to this petition will be made by the designation “A”

followed by the appropriate page number.

1

within 3 years after being released from a state correctional facility

operated by the Department of Corrections or a private vendor or within

3 years after being released from a correctional institution of another

state, the District of Columbia, the United States, any possession or

territory of the United States, or any foreign jurisdiction, following

incarceration for an offense for which the sentence is punishable by more

than 1 year in this state.

....

3. If the state attorney determines that a defendant is a prison

releasee reoffender as defined in subparagraph 1., the state attorney may

seek to have the court sentence the defendant as a prison releasee

reoffender. 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:

....

c. For a felony of the second degree, by a term of imprisonment of

15 years[.]

....

(b) A person sentenced under paragraph (a) shall be released only

by expiration of sentence and shall not be eligible for parole, control

release, or any form of early release. Any person sentenced under

paragraph (a) must serve 100 percent of the court-imposed sentence.

2

G. STATEMENT OF THE CASE

In 2014, the Petitioner was convicted following a jury trial of burglary of a

dwelling (a second-degree felony). See § 810.02(3), Fla. Stat. At the sentencing

hearing, the trial court sentenced the Petitioner to a mandatory sentence of fifteen

years’ imprisonment, finding that the Petitioner is a prison releasee reoffender

pursuant to section 775.082(9), Florida Statutes). (A-7). On direct appeal (and in a

post-trial motion pursuant to Florida Rule of Criminal Procedure 3.800(b)), the

Petitioner argued that his prison releasee reoffender sentence violates his Sixth

Amendment right to a jury trial. The Florida First District Court of Appeal affirmed

the sentence, stating:

We affirm in all other respects, and reject, as we have before, the

argument that a prison releasee reoffender sentence is unconstitutional

if a jury did not make the finding that the defendant was released within

the previous three years. See Williams v. State, 143 So. 3d 423, 424 (Fla.

1st DCA 2014).

(A-2).

3

H. REASON FOR GRANTING THE WRIT

The question presented is important and has a potential impact on

numerous criminal prosecutions nationwide.

This case provides the Court with an opportunity to decide whether the Sixth

Amendment right to a jury trial is implicated when the timing of a defendant’s

previous conviction is a necessary element of a sentencing enhancement. In the

instant case, the Petitioner’s sentence was increased due to facts/elements not charged

in the information nor proven beyond a reasonable doubt to the jury. The information

is silent regarding (1) any prior felonies for which the Petitioner was convicted and/or

(2) the date on which the Petitioner was previously released from prison. (A-13). The

jury was never asked to determine whether the Petitioner had previously been

convicted of a felony, and specifically, whether the Petitioner committed the instant

offense within three years after being released from prison. The Petitioner’s sentence

was severely increased due to the trial court’s finding that he is a prison releasee

reoffender (he was sentenced to a mandatory minimum sentence of fifteen years’

imprisonment with no possibility of gain time).

See § 775.082(9)(b), Fla. Stat.2

Accordingly, the Petitioner submits that his sentence violates his Sixth Amendment

right to a jury trial.

In Alleyne v. United States, 570 U.S. 99, –, 133 S. Ct. 2151, 2163 (2013), the

2

But for the imposition of the minimum mandatory prison releasee reoffender

sentences, the Petitioner would have been sentenced pursuant to the Florida Criminal

Punishment Code (and the trial court would have been afforded discretion to impose

a sentence of less than fifteen years’ imprisonment).

4

Court held that “facts that increase mandatory minimum sentences must be submitted

to the jury” and established “beyond a reasonable doubt.” In the instant case, the issue

of whether the Petitioner is a prison releasee reoffender was not submitted to the jury

nor found beyond a reasonable doubt (i.e., the trial court – not the jury – made the

factual finding that the Petitioner was a prison releasee reoffender).

The Petitioner is aware that under the current law, there is a “prior conviction

exception” to the Sixth Amendment right to a jury trial (i.e., when a sentencing

enhancement is based solely on the existence of a “prior conviction,” the existence of

the prior conviction need not be found beyond a reasonable doubt by the jury). See

Almendarez-Torres v. United States, 523 U.S. 224 (1997). However, in order to find

that a defendant is a prison releasee reoffender, more is required than just establishing

the “prior conviction.” In addition to establishing the “prior conviction,” a factual

determination must be made as to whether the sentencing offense was committed

within three years of the defendant’s release from prison. See § 775.082(9)(a), Fla. Stat.

In the instant case, this determination was made using the preponderance of the

evidence standard (as opposed to the beyond a reasonable doubt standard). Pursuant

to Alleyne, this factual finding as to whether the sentencing offense was committed

within three years of the Petitioner’s release from prison should have been submitted

to the jury and found beyond a reasonable doubt. See Alleyne, 570 U.S. at –, 133 S. Ct.

at 2163 (“facts that increase mandatory minimum sentences must be submitted to the

jury” and established “beyond a reasonable doubt”).

5

The Petitioner notes that the Ninth Circuit Court of Appeals has held that the

Sixth Amendment right to a jury trial is implicated when the timing of a defendant’s

previous conviction is a necessary element of a sentencing enhancement. In United

States v. Salazar-Lopez, 506 F.3d 748 (9th Cir. 2007), the Ninth Circuit considered 8

U.S.C. § 1326(b)(1), which provides for a sentencing enhancement if a defendant is an

alien who has been removed from the United States following a felony conviction. The

Ninth Circuit held that the timing of the defendant’s previous conviction was a “fact

other than a prior conviction”:

[T]he temporal relationship between Salazar-Lopez’s removal and his

previous conviction was a fact that increased the maximum sentence that

he faced. As such, the date of the removal, or at least the fact that

Salazar-Lopez had been removed after his conviction, should have been

alleged in the indictment and proved to the jury.

Salazar-Lopez, 506 F.3d at 752. Similarly, in light of the prison releasee reoffender

enhancement in the instant case, the temporal relationship of the instant offense and

the Petitioner’s previous release from prison was a “fact other than a prior conviction.”

In order to establish that the Petitioner qualified as a prison releasee reoffender, the

prosecution was required to establish that the Petitioner was released from prison

within three years from the date of the alleged offense in the instant case. See §

775.082(9)(a)1., Fla. Stat. Pursuant to Salazar-Lopez, the prosecution was required

to prove the Petitioner’s prison release date to the jury. Because this alleged “fact” was

not found beyond a reasonable doubt by the jury, the imposition of the minimum

mandatory prison releasee reoffender sentence in this case violates the Petitioner’s

6

Sixth Amendment rights.

The question presented in this case is ripe for consideration by the Court. By

granting this petition for writ of certiorari, the Court will have the opportunity to

consider this important question.

7

I. CONCLUSION

The Petitioner requests the Court to grant the petition for writ of certiorari.

Respectfully Submitted,

/s/ Michael Ufferman

MICHAEL UFFERMAN

Michael Ufferman Law Firm, P.A.

2022-1 Raymond Diehl Road

Tallahassee, Florida 32308

(850) 386-2345/fax (850) 224-2340

FL Bar No. 114227

Email: ufferman@uffermanlaw.com

COUNSEL FOR THE PETITIONER

8