Petition for Writ of Certiorari — Andrew Sposato, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

ANDREW SPOSATO, PETITIONER

Vv.

STATE OF FLORIDA, RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

CAREY HAUGHWOUT

Public Defender

Benjamin Hunter Eisenberg

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421 Third Street

West Palm Beach, Florida 33401

(561) 355-7600 .

beisenberg@pd15.state.fl.us

appeals@pd15.org

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ANDREW SPOSATO,

Appellant,

V.

STATE OF FLORIDA,

Appellee.

No. 4D21-2856

[May 24, 2023]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit,

Indian River County; Dan L. Vaughn, Judge; L.T. Case No.

312017CF000770A.

Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman,

Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR WRITTEN OPINION

PER CURIAM.

We grant the defendant’s motion for written opinion, withdraw our prior

opinion, and substitute the following in its place.

Affirmed. See Guzman v. State, 350 So. 3d 72, 73 (Fla. 4th DCA 2022),

rev. pending, No. SC22-1597.

KLINGENSMITH, C.J., DAMOORGIAN and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

RECEIVED 06/13/2023 2:03 pm ‘Fourth District Court Of Appeal

Supreme Court of Florida

TUESDAY, JUNE 13, 2023

Andrew Sposato, $C2023-0752

Petitioner(s) Lower Tribunal No(s).:

V. 4D21-2856;

312017CFO00770AXXXXX

State of Florida,

Respondent(s)

This case is hereby dismissed. This Court lacks jurisdiction to

review an unelaborated decision from a district court of appeal that

is issued without opinion or explanation or that merely cites to an

authority that is not a case pending review in, or reversed or

quashed by, this Court. See Wheeler v. State, 296 So. 3d 895 (Fla.

2020); Wells v. State, 132 So. 3d 1110 (Fla. 2014); Jackson v. State,

926 So. 2d 1262 (Fla. 2006); Gandy v. State, 846 So. 2d 1141 (Fla.

2003); Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002); Harrison v.

Hyster Co., 515 So. 2d 1279 (Fla. 1987); Dodi Publ’g Co. v. Editorial

Am. S.A., 385 So. 2d 1369 (Fla. 1980); Jenkins v. State, 385 So. 2d

1356 (Fla. 1980).

No motion for rehearing or reinstatement will be entertained

by the Court.

A True Copy

Test:

SLOP 952. 6/13/2023

John A. Tomasino

Clerk, Supretne Court

SC2023-0752 6/13/2023

CASE NO.: SC2023-0752

Page Two

DL

Served:

BENJAMIN EISENBERG

RACHAEL KAIMAN

HON. JEFFREY R. SMITH

HON. DAN L. VAUGHN

HON. LONN WEISSBLUM

ISSUE IV

APPELLANT WAS ENTITLED TO A TWELVE-

PERSON JURY UNDER THE SIXTH AND

FOURTEENTH AMENDMENTS AND HE DID

NOT WAIVE THAT RIGHT

Appellant was convicted of felonies by a jury comprised of a

mere six people. In particular, one of Appellant’s convictions was for

a capital offense, carrying a mandatory sentence of life imprisonment

without parole. He argues that the Sixth and Fourteenth

Amendments guarantee the right to a twelve-person jury when the

defendant is charged with a felony.

Appellant notes that this Court recently decided Guzman v.

State, 4D22-0148, 2022 WL 14688085 (Fla. 4th DCA Oct. 26, 2022),

which rejected a defendant’s argument “that his convictions by a Sixperson jury violated the Sixth and Fourteenth Amendments to the

United States Constitution.” Id. at *1. The majority opinion in

Guzman explained this Court was bound by the United States

Supreme Court’s holding in Williams that six-person juries are

constitutionally permissible until the high court expressly revisited

that holding. Id.

54

In a concurring opinion, Judge Gross “explain[ed] that [the

defendant’s] legal argument on jury composition presentled] a classic

example of how the law navigates the shifting sands of constitutional

analysis.” Id. at *2 (Gross, J., concurring). Although disagreeing with

the defendant that Ramos v. Louisiana, 140 S. Ct. 1390 (2020), had

overturned Williams, Judge Gross wrote that, “if applied to the issue

of jury size, the originalist analysis in Ramos would undercut

Williams’s functionalist underpinnings.” Jd. at *5 (Gross, J,

concurring). “At a minimum, Ramas.. . suggests that Williams was

wrongly decided.” (Gross, J., concurring). Furthermore, the

defendant “has a credible argument that the original public meaning

of the Sixth Amendment right to a ‘trial by an impartial jury’ included

the right to a 12-person jury. Id. (Gross, J., concurring).

Appellate attorneys have the obligation to “zealously assert|] the

client’s position under the rules of the adversary system.” R.

Regulating Fla. Bar prmbl. As part of this obligation, “[c]jounsel has

the responsibility to make such [arguments] as may be necessary to

keep the defendant’s case in an appellate ‘pipeline.” Sandoval v.

State, 884 So. 2d 214, 217 n. 1 (Fla. 2d DCA 2004). Therefore,

ao

although acknowledging this Court is bound by Guzman, Appellant

seeks to preserve this argument for further review.

On the merits, although the United States Supreme Court held

in Williams v. Florida, 399 U.S. 78, 86 (1970), that juries as small as

six were constitutionally permissible, Williams is impossible to

square with the Supreme Court’s ruling in Ramos v. Louisiana, 140

S. Ct. 1390 (2020), which concluded that the Sixth Amendment’s

“trial by an impartial jury” requirement encompasses what the term

“meant at the Sixth Amendment’s adoption.” Jd. at 1395.

After the Sixth Amendment was enacted, a bevy of state courts

interpreted it to require a twelve-person jury. See Miller, Comment,

Six of One Is Not A Dozen of the Other, 146 U. Pa. L. Rev. 621, 643

n.133 (1998) (collecting cases from the late 1700s to the 1860s). In

1898, the United States Supreme Court added its voice to the chorus,

noting that the Sixth Amendment protects a defendant’s right to be

tried by a twelve-person jury. Thompson v. Utah, 170 U.S. 343, 349-

350 (1898). The Supreme Court continued to cite the basic principle

that the Sixth Amendment requires a twelve-person jury in criminal

cases for seventy more years. See, e.g., Maxwell v. Dow, 176 U.S. 581,

56

586 (1900); Patton v. United States, 281 U.S. 276, 288 (1930); Duncan

v. Louisiana, 391 U.S. 145, 151-152 (1968).

In 1970, however, the Williams Court overruled this line of

precedent in a decision that Justice Harlan described as “stripping

off the livery of history from the jury trial” and ignoring both “the

intent of the Framers” and the Court’s long held understanding that

constitutional “provisions are framed in the language of the English

common law [] and ... read in the light of its history.” Baldwin v. New

York, 399 U.S. 117, 122-123 (1970) (citation omitted) (Harlan, J.,

concurring in the result in Williams). Indeed, Williams recognized that

the Framers “may well” have had “the usual expectation” in drafting

the Sixth Amendment “that the jury would consist of 12” members.

Williams, 399 U.S. at 98-99. But Williams concluded that such

“purely historical considerations” were not dispositive. Id. at 99.

Rather, the Court focused on the “function” that the jury plays in the

Constitution, concluding that the “essential feature” of a jury is it

leaves justice to the “commonsense judgment of a group of laymen”

and thus allows “guilt or innocence” to be determined via “community

participation and [with] shared responsibility.” Id. at 100-01.

According to the Williams Court, both “currently available evidence

57

[and] theory” suggested that function could just as easily be

performed with six jurors as with twelve. Id. at 101-102 &n.48.

Williams’s ruling that the Sixth Amendment (as incorporated

to the States by the Fourteenth) permits a six-person jury cannot

stand in light of Ramos. There, the Supreme Court held that the Sixth

Amendment requires a unanimous verdict to convict a defendant of

a serious offense. In reaching that conclusion, the Ramos Court

overturned Apodaca v. Oregon, 406 U.S. 404 (1972), a decision that

it faulted for “subject[ing] the ancient guarantee of a unanimous jury

verdict to its own functionalist assessment.” 140 S. Ct. at 1401-1402.

That reasoning undermines Williams as well. Ramos rejected

the same kind of “cost-benefit analysis” the Court undertook in

Williams, observing that it is not the Court’s role to “distinguish

between the historic features of common law jury trials that (we

think) serve important enough functions to migrate silently into the

Sixth Amendment and those that don’t.” 140 S. Ct. at 1400-01.

Ultimately, the Ramos Court explained, the question is whether “at

the time of the Sixth Amendment’s adoption, the right to trial by jury

included” the particular feature at issue. Id. at 1402. As the history

summarized above establishes, there can be no serious doubt that

58

the common understanding of the jury trial during the Revolutionary

War era was that twelve jurors were required. See 140 S. Ct. at 1395.

Even setting aside Williams’s now-disfavored functionalist logic,

its ruling suffered from another significant flaw: it was based on

research that was out of date shortly after the opinion issued.

Specifically, the Williams Court “flou]nd little reason to think” that

the goals of the jury guarantee—including, among others, “to provide

a fair possibility for obtaining a representative[] cross-section of the

community’—“are in any meaningful sense less likely to be achieved

when the jury numbers six, than when it numbers 12.” Id. at 100.

The Court theorized that “in practice the difference between the 12-

man and the six-man jury in terms of the cross-section of the

community represented seems likely to be negligible.” Id. at 102.

In the time since Williams, that determination has proven

incorrect. Indeed, the Court acknowledged as much just eight years

later in Ballew v. Georgia, 435 U.S. 223 (1978), when it concluded

that the Sixth Amendment barred the use of a five-person jury.

Although Ballew did not overturn Williams, the Ballew Court

observed that empirical studies conducted in the handful of

intervening years highlighted several problems with Williams’

59

assumptions. Moreover, the Ballew Court “admit[ted]’ that it “d[id]

not pretend to discern a clear line between six members and five,”

effectively acknowledging that the studies it relied on also cast doubt

on the effectiveness of the six-member jury. Id. at 239.

Post-Ballew research has further undermined Williams.

Current empirical evidence indicates that “reducing jury size

inevitably has a drastic effect on the representation of minority group

members on the jury.” Diamond et al., Achieving Diversity on the

Jury: Jury Size and the Peremptory Challenge, 6 J. of Empirical Legal

Stud. 425, 427 (Sept. 2009); see also Higginbotham et al., Better by

the Dozen: Bringing Back the Twelve-Person Civil Jury, 104

Judicature 47, 52 (Summer 2020). Because “the 12-member jury

produces significantly greater heterogeneity than does the sixmember jury,” Diamond et al., Achieving Diversity on the Jury, supra,

at 449, it increases “the opportunity for meaningful and appropriate

representation” and helps ensure that juries “represent adequately a

cross-section of the community.” Ballew, 435 U.S. at 237.

Appellant recognizes that the state constitution provides:

SECTION 22. Trial by jury.—The right of trial by jury shall

be secure to all and remain inviolate. The qualifications

60

and the number of jurors, not fewer than six, shall be fixed

by law.

Art. 1, § 22, Fla. Const. And he recognizes that section 913.10, Florida

Statutes, provides for six jurors except in capital cases. See also Fla.

R.. Crim. P, 3.270.

But Florida’s provision for a jury of six stems from the dawn of

the Jim Crow era, one month after federal troops were withdrawn

from the state. In 1875, the Jury Clause of the 1868 constitution was

amended to provide that the number of jurors “for the trial of causes

in any court may be fixed by law.” See Florida Fertilizer 8& Mfg. Co. v.

Boswell, 34 So. 241, 241 (Fla. 1903).The common law rule of a jury

of twelve was still kept in Florida while federal troops remained in the

state. There was no provision for a jury of less than twelve until the

Legislature enacted a provision specifying a jury of six in Chapter

3010, section 6. See Gibson v. State, 16 Fla. 291, 297-98 (1877);

Florida Fertilizer, 34 So. 15 241.

The Legislature enacted chapter 3010 with the jury-of-six

provision on February 17, 1877. Gibson, 16 Fla. 294. This was less

than a month after the last federal troops were withdrawn from

Florida in January 1877. See Jerrell H. Shofner, Reconstruction and

61

Renewal, 1865-1877, in The History of Florida 273 (Michael Gannon,

ed., first paperback edition 2018). The jury-of-six thus first saw light

at the birth of the Jim Crow era as former Confederates regained

power in southern states and state prosecutors made a concerted

effort to prevent blacks from serving on jurors.

In Ramos, Justice Gorsuch noted that the Louisiana nonunanimity rule arose from Jim Crow era efforts to enforce white

supremacy. Id. at 1394; see also id. at 1417 (Kavanaugh, J.,

concurring) (non-unanimity was enacted “as one pillar of a

comprehensive and brutal program of racist Jim Crow measures

against African-Americans, especially in voting and jury service.”).

The history of Florida’s jury of six arises from the same historical

context.

In view of the foregoing, a jury of six at a criminal trial for any

felony offense, particularly a crime punishable by up to life

imprisonment, is unconstitutional under the Sixth and Fourteenth

Amendments of the United States Constitution.

CONCLUSION

Based on the foregoing arguments and authorities, this Court

should reverse and remand for a new trial on all counts.

62

[_] Probation Violator [_] Modified In the Circuit Court,

[_] Community Control Violator [XJ] Amended Nineteenth Judicial Circuit

[_] Re-sentence [_] Mitigated In and for Indian River County, Florida

[-] Sentence Absentia [_] Corrected

Division: Felony

Case Number(s):

31201 7CF000770AXXXXX

Ste of Fora | AMENDED

AS TO COUNT 2 TO RUN CONCURRENT

ANDREW DAVID SPOSATO WITH COUNT 1

Defendant.

JUDGMENT

Defendant’s Attorney DOROTHY NAUMANN

State’s Attorney WILLIAM LONG,

The above Defendant, being personally before this Court and having:

been tried and found guilty by Jury/by Court of the following crime(s).

(J entered a plea of guilty to the following crime(s)

(Cl entered a plea of nolo contendere to the following crime(s)

Count ; Crime Offense Statute Deg of Crime OBTS #

Number

SEXUAL BATTERY - ON A CHILD UNDER 12

1 BY PERPETRATOR 18 OR OLDER 794.011(2) F Cc 310111353)

SEXUAL BATTERY ON A CHILD - FAMILIAL

2 OR CUSTODIAL AUTHORITY 794.011(8B) F F 3101114271

§2 and no cause having been shown why the Defendant should not be adjudicated guilty, IT IS ORDERED THAT the Defendant is

hereby ADJUDICATED GUILTY of the above crime(s).

(C1) and being a qualified offender pursuant to s. 943.325, the Defendant shall be required to submit DNA samples as required by law.

Wg

G

CC and good cause being shown; IT IS ORDERED THAT ADJUDICATION OF GUILT BE WITHHELD.

ae

DONE AND ORDERED in chambers on AUGUST 18, 2022 in Indian River County, Flori etal

co

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ia

G>

w

7

oe

SEPTEMBER 29, 2021

NUNC PRO TUNC

389

IN THE CIRCUIT COURT OF THE NINETEENTH JUDI CIRCUIT

IN AND FOR INDIAN RIVER COUNTY, STATE OF RIDA

Defendant: ANDREW DAVID SPOSATO Case: 312017CF000770AXXXXX

SENTENCE

(As to Count 1)

The Defendant, being personally before this court, accompanied by the defendant's attomey of record, DOROTHY NAUMANN and having been

adjudicated guilty herein, and the court having given Defendant an opportunity to be heard and to offer matters in mitigation of sentence, and to show

cause why the Defendant should not be sentenced as provided by law, and no cause bring shown.

(check one if applicable)

0 and the Court having on_____ deferred imposition of sentence until

be) and the Court having previously entered a judgment in this case on September 29, 2021 now resentences the Defendant.

0 and the Court having placed Defendant on [Iprobation/_Jcommunity control and having subsequently revoked the Defendant's

a i community control.

It Is the Sentence of the Court That:

Oo The Defendant pay a fine of $

required by section 960.25, Florida Statutes

pursuant to section 775.083, Florida Statutes, plus $_________ as the 5% surcharge

& The Defendant is hereby committed to the custody of the Department of Corrections,

oO The Defendant is hereby committed to the custody of the Sheriff of Indian River County, Florida.

oO The Defendant is sentenced as a youthful offender in accordance with section 958.04, Florida Statutes.

Oo The Defendant is hereby sentenced [J Probation

‘a Dmg Offender Probation

Community Control

(1) Sex Offender Probation

To Be Imprisoned (Check one, unmarked sections are inapplicable):

El For a term of natural life,

O For a term of Year(s) Month(s) Day(s) as a condition of [] Probation [-] Community Control

CO Said SENTENCE SUSPENDED for a period of _____ subject to conditions set forth in this order.

If "Split" sentence, complete the appropriate paragraph.

Oo Followed by a period of _____ Year(s) ____. Month(s) Day(s) on [Jprobation{_]community control under the supervision

of the Department of Corrections according fo the terms and conditions of supervision set forth in a separate order.

oO However, after serving a period of ________ imprisonment in ____. the balance of the sentence shall be suspended and the

Defendant shall be placed on []probation/{_]community control for a period of. under supervision of the Department of

Corrections according to the terms and conditions of probation/community control set forth in a separate order.

In the event the Defendant is ordered to serve additional split sentences, all incarceration. portions shall be satisfied before the Defendant begins

service of the supervision terms.

390

Defendant:

Case:

ANDREW DAVID SPOSATO 31201 7CFO00770AXXXXX

SPECIAL PROVISIONS

(As to Count 1 )

By appropriate notation, the following provisions apply to the sentence imposed:

Minimum/Mandatory Provisions:

- Firearm (1 __sItis further ordered that the ___ year minimum imprisonment provisions of section 775.087(2),

Florida Statutes, is hereby imposed for the sentence specified in this count.

Drug Trafficking (C] It is further ordered that the minimum mandatory imprisonment provisions of section

: 893.135(1), Florida Statutes, is hereby imposed for the sentence specified in this count.

Controlled Substance CI _ It is further ordered that the 3-year minimum imprisonment provision of section 893.13(1)e)1,

(within 1000 ft. of school) Florida Statutes, is hereby imposed for the sentence specified in this count.

Habitual Felony (_ The defendant is adjudicated a habitual felony offender and has been sentenced to an extended

Offender term in accordance with the provisions of section 775.084(4)(a), Florida Statutes. The requisite

findings by the court are set forth in a separate order or stated on the record in open court.

Habitual Violent (C]_ The defendant is adjudicated a habitual violent felony offender and has been sentenced to an

Felony Offender extended term in accordance with the provisions of section 775.084(4)(b), Florida Statutes. A

minimum term of ____ year(s) must be served prior to release. The requisite findings of the

Court are set forth in a separate order or stated on the record in open court.

Law Enforcement ( kt is further ordered that the defendant shall serve a minimum of years before release in

Protection Act accordance with section 775.0823, Florida Statutes.

Short-Barreled Rifle [] It is further ordered that the 5-year minimum provisions of section 790.221(2), Florida Statutes, are

Shotgun, Machine Gun hereby imposed for the sentence specified in this count.

Prison Releasee C1 The defendant is adjudicated a prison release reoffender and has been sentenced to an extended

Reoffender term of ____ years as such in accordance with the provisions of section 775.082(9)(a), Florida

Statutes. In accordance with section 775.082(b) the defendant must serve 100 percent of that

portion of the total sentence.

Criminal use of Personal [J It is further ordered that the 3 year mandatory minimum imprisonment provision of section

Identification 817.568(2)(b), Florida Statutes hereby imposed for the sentence specified in this court.

Information

Other Provisions:

Continuing Criminal ( it is further ordered that the 25-year minimum sentence provisions of section 893.20, Florida

Enterprise Statutes, are hereby imposed for the sentence specified in this count. ,

Taking a Law [1 ft is further ordered that the 3-year mandatory minimum imprisonment provision of section

Enforcement Officer’s 775.0875(1), Florida Statutes, is hereby imposed for the sentence specified in this court.

Firearm

Retention of Judication (‘The court retains jurisdiction over the defendant pursuant to section 947.16(3), Florida

Statutes (1983)

391

Defendant:

Case:

ANDREW DAVID SPOSATO 31201 7CFO00770AXXXXX

. Jail Credit

Credit for Time Served in

Restntencing after

Violation of Probation or

Community Control

Consecutive/Concurrent

As To: Other Counts

Consecutive/Concurrent.

As To Other Convictions

x

O

oo 8 OQ

It is further ordered that the defendant shall be allowed a total of 1.233 days as credit for time

incarcerated before imposition of this sentence [_] All Cts. Or Ct.

It is further ordered that the defendant be allowed days time served between the date of

arrest as a violator following release from prison to the date of re-sentencing. The Department of

Corrections shall apply original jail time credit and shall compute and apply credit for time served

and unforfeited. gain time previously awarded on case/count (Offenses committed before

October 1, 1989).

It is further ordered that the defendant be allowed days time served between date of arrest as

a violator following release from prison to the date of re-sentencing. The Department of

Corrections shall apply original jail time credit and shall compute and apply credit for time served

on case/count ._ (Offenses committed between October 1, 1989, and December 31, 1993).

The Court deems the unforfeited gain time previously awarded on the above case/count forfeited

under section 948.06(6)-

The Court allows unforfeited gain time previously awarded on the above case/count. (Gain time

may be subject to forfeiture by the Department of Corrections under section 944.28(1)).

It is farther ordered that the defendant be allowed days time served between date of arrest as

a violator following release from prison to the date of re-sentencing. The Department of

Corrections shall apply original jail time credit and shall compute ‘and apply credit for time served

only pursuant to section 921.0017, Florida Statutes, on case/count ___ (Offenses committed on

or after January 1, 1994)

It is further Ordered that the sentence imposed for this count shall run (check one)

(cIConsecutive to [] Concurrent with sentence set forth in count ____ of this case.

It is further ordered that the composite term of all sentencing imposed for the counts specified in

this order shall run (check one) (_] consecutive to [_] concurrent with the following: (check one)

Any active sentence being served.

Specific sentences: _.

392

IN THE CIRCUIT COURT OF THE NINETEENTH JUDICAL CIRCUIT

IN AND FOR INDIAN RIVER COUNTY, STATE OF FLORIDA

Defendant: ANDREW DAVID SPOSATO Case: 312017CFO00770AXXXXX

SENTENCE

(As to Count 2 )

The Defendant, beitig personally before this court, accompanied by the defendant's attomey of record, DOROTHY NAUMANN and having been

adjudicated guilty herein, and the court having given Defendant an opportunity to be heard and to offer matters in mitigation of sentence, and to show

cause why the Defendant should not be sentenced as provided by law, and no cause bring shown.

(check one if'epplicable).

Oa and the Court havingon__..__._._ deferred imposition of sentence until

& and the Court having previously entered a judgment in this case on September 29, 2021 now resentences the Defendant.

oO and the Court having placed dant on Clprobation/_lcommnunity control and having subsequently revoked the Defendant's

Ciprobation_}community control,

It Is the Sentence of the Court That:

O The Defendant pay'a fine of $.____, pursuant to section 775.083, Florida Statutes, plus $. as the 5% surcharge

required by section 960.25, Florida Statutes

The Defendant is hereby comintitted to the custody of the Department of Corrections.

The Defendant is hereby committed to the custody of the Sheriff of Indian Rivet County, Florida.

The Defendant is sentenced es a youthful offender in accordance with section 958.04, Florida Statutes,

O}aod w

The Defendant is hereby sentenced [J Probation

CJ] Drug Offender Probation

Community Control

CJ Sex Offender Probation

To Be Imprisoned (Check one, unmarked sections are inapplicable):

P| For aterm of natural life.

o For aterm of Year(s) Month(s) Day(s) as a condition of (J Probation J Community Control

o Said SENTENCE SUSPENDED for a period of _______ subject to conditions set forth in this order.

If "Split sentence, complete the appropriate paragraph.

oO Followed by a period of ____ Year(s) ___ Month(s) _____ Day(s) on []probation/_]community control under the supervision

of the Department of Corrections according to the terms and conditions of supervision set forth in a separate order.

O However, after serving @ period of imprisonment in the balance of the setitence shall be suspended and the

Defendant shall be placed on [Iprobation{_Jcommunity control for a period of ______ under supervision of the Department of

Corrections according to the terms and conditions of probation/community control set forth in a separate order.

In the event the Defendant is ordered to serve additional split sentences, all incarceration portions shall be satisfied before the Defendant begins

service of the supervision terms,

393

Defendant: ~

ANDREW DAVID SPOSATO

Case:

312017CFO00770AXXXXX

SPECIAL PROVISIONS

(As to Count 2 )

By appropriate notation, the following provisions apply to the sentence imposed:

Minimum/Mandatory Provisions :

Firearm

Drug Trafficking

Controlled Substance

(within 1000 ft. of school)

Habitual Felony

Offender

Habitual Violent

_ Felony Offender

Law Enforcement

Protection Act

Short-Barreled Rifle

Shotgun, Machine Gun

Prison Releasee

Reoffender

Criminal use of Personal

Identification

Information

Other Provisions:

Continuing Criminal

Enterprise

Taking a Law

Enforcement Officer’s

Firearm

Retention of Judication

O

OD

O

i)

O

0

It is further ordered that the year minimum imprisonment provisions of section 775.087(2),

Florida Statutes, is hereby imposed for the sentence specified in this count.

It is further ordered that the minimum mandatory imprisonment provisions of section

893.135(1), Florida Statutes, is hereby imposed for the sentence specified in this count.

It is further ordered that the 3-year minimum imprisonment provision of section 893.13(1)(e)1,

Florida Statutes, is hereby imposed for the sentence specified in this count.

The defendant is adjudicated a habitual felony offender and has been sentenced to an extended

term in accordance with the provisions of section 775.084(4)a), Florida Statutes. The requisite

findings by the court are set forth in a separate order or stated on the record in open court.

The defendant is adjudicated a habitual violent felony offender and has been sentenced to an

extended term in accordance with the provisions of section 775.084(4)(b), Florida Statutes. A

minimum term of year(s) must be served prior to release. The requisite findings of the

Court are set forth in a separate order or stated on the record in open court.

It is further ordered that the defendant shall serve a minimum of

accordance with section 775.0823, Florida Statutes.

years before release in

It is further ordered that the 5-year minimum provisions of section 790.221(2), Florida Statutes, are

hereby imposed for the sentence specified in this count.

The defendant is adjudicated a prison releasee reoffender and has been sentenced to an extended

term of years as such in accordance with the provisions of section 775.082(9)a), Florida

Statutes, In accordance with séction 775.082(b) the defendant must serve 100 percent of that

portion of the total sentence.

It is further ordered that the 3 year mandatory minimum imprisonment provision of section

$17.568(2)(b), Florida Statutes hereby imposed for the sentence specified in this court.

It is further ordered that the 25-year minimum sentence provisions of section 893.20, Florida

Statutes, are hereby imposed for the sentence specified in this count.

It is further ordered that the 3-year mandatory minimum imprisonment provision of section

775.0875(1), Florida Statutes, is hereby imposed for the sentence specified in this court.

The court retains jurisdiction over the defendant pursuant to section 947.16(3), Florida

Statutes (1983)

394

Defendant:

Case:

ANDREW DAVID SPOSATO . 312017CF000770AXXXXX

Jail Credit

Credit for Time Served in

Resentencing after

Violation of Probation or

Community Control

Consecutive/Concurrent

As To Other Counts

Consecutive/Concurrent

As To Other Convictions

i

O

Ooo a w®w

It is further ordered that the defendant shall be allowed a total of 1,233 days as credit for time

incarcerated before imposition of this sentence [] All Cts. Or Ct.

It is further ordered that the defendant be allowed days time served between the date of

arrest as a violator following release from prison to the date of re-sentencing. The Department of

Corrections shall apply original jail time credit and shall compute and apply credit for time served

and unforfeited gain time previously awarded on case/count __ (Offenses committed before

October 1, 1989).

It is further ordered that the defendant be allowed days time served between date of arrest as

a violator following release from prison to the date of re-sentencing. The Department of

Corrections shall apply original jail time credit and shall compute and apply credit for time served

on case/count (Offenses committed between October 1, 1989, and December 31, 1993).

The Court deems the unforfeited gain time previously awarded on the above case/count forfeited

under section 948.06(6).

The Court allows unforfeited gain time previously awarded on the above case/count, (Gain time

may be subject to forfeiture by the Department of Corrections under section 944.28(1)).

It is further ordered that the defendant be allowed days time served between date of arrest as

a violator following release from prison to the date of re-sentencing. The Department of

Corrections shall apply original jail time credit and shall compute and apply credit for time served

only pursuant to section 921.0017, Florida Statutes, on case/count (Offenses committed on

or after January 1, 1994)

It is further ordered that the sentence imposed for this count shall run (check one)

CIconsecutive to 52 Concurrent with sentence set forth in count _1_ of this case.

It is further ordered that the com ite term of all sentencing imposed for the counts specified in

this order shall run (check one) [_] consecutive to [] concurrent with the following: (check one)

Any active sentence being served.

Specific sentences: ___.

395

Defendant: Case:

ANDREW DAVID SPOSATO 312017CF000770AXXXXX

Other Provisions:

In the event the above sentence is to the Department of Corrections, the Sheriff of Indian River County, Florida, is hereby ordered and

directed to deliver the defendant to the Department of Corrections at the facility designated by the department together with a copy of

this judgment and sentence and any other document specified by Florida Statute.

The defendant in open court was advised of the right to appeal from this sentence by filing notice of appeal within 30 days from this

date with the clerk of this court and the defendant's right to assistance of counsel in taking the appeal at the expense of the State on

showing of indigency.

In imposing the above sentence, the court further recommends_AMENDED PER ORDER FILED ON AUGUST 18, 2022 AS TO

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ENTENCE IMPOSED IN COUN] OTHER f

DONE AND ORDERED in open court on AUGUST 18, 2022 at Indian River County, Florida.

SEPTEMBER 29, 2021

NUNC PRO TUNC 1

HONORABLE DAN VAUGHN

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