Petition for Writ of Certiorari — Miguel Jaimes-Luviano, Petitioner v. Florida

Supreme Court briefJan 24, 2024

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No.

IN THE SUPREME COURT OF THE UNITED STATES

MIGUEL JAIMES LUVIANO, 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

Jaimes-Luviano v, State, 373 So.3d 349 (2023)

48 Fla. L. Weekly D2023

373.80.3d 349 (Mem)

District Court of Appeal of Florida, Fourth District.

Miguel JAIMES-LUVIANO, Appellant,

STATE of Florida, Appellee.

No. 4D2022-1382

[October 18, 2023]

Appeal from the Circuit Court for the Nineteenth Judicial

Circuit, Martin County; Sherwood Bauer, Jr, Judge; L.T.

Case No. 2020CF000951.

Attorneys and Law Firms

Carey Haughwout, Public Defender, and Cynthia L.

Anderson, Assistant Public Defender, West Palm Beach, for

appellant.

Ashley Moody, Attorney General, Tallahassee, and

Alexandra A. Folley, Assistant Attorney General, West Palm

Beach, for appellee.

Opinion

Gerber, J.

The defendant primarily appeals from his conviction for

trafficking in methamphetamines — 200 grams or more.

We affirm that conviction on all arguments raised without

further discussion. However, we remand for the circuit court

to correct its written sentencing order on the defendant's

misdemeanor convictions for driving without a valid driver's

license, leaving the scene of an accident with property

damage, and resisting arrest without violence.

After the circuit court adjudicated the defendant guilty on

those three misdemeanor charges, the circuit court orally

sentenced the defendant “to time served on each and every

one of those charges.” However, the circuit court later

entered a written sentencing order which, contrary to the

oral pronouncement, imposed a 591-day prison term on those

charges.

The defendant filed a Florida Rule of Criminal Procedure

3.800(b)(2) motion challenging the 591-day prison sentence

as “greater than the maximum allowable sentences for those

three crimes.” Because the circuit court did not rule on the

motion within sixty days, the motion is deemed denied. See

Fla. R. Crim. P. 3.800(b)(2)(B).

The defendant argues, and the state concedes, the circuit

court must ministerially correct its written sentencing order to

conform to its orally pronounced sentence of “time served.”

Driving without a valid driver's license and leaving the scene

of an accident with property damage are second degree

misdemeanors for which a person may be sentenced “by

a definite term of imprisonment not exceeding 60 days.”

§§ 316.061(1), 322.39, 775.082(4)(b), Fla. Stat. (2020).

Resisting arrest without violence *350 is a first degree

misdemeanor for which a person may be sentenced “by adefinite term of imprisonment not exceeding 1 year.” §§

775.082(4)(a), 843.02, Fla. Stat. (2020). Thus, the written

sentencing order's 591-day prison term, whether viewed

cumulatively or individually for each of those charges,

exceeded the respective statutory maximums.

Based on the foregoing, we remand for the circuit court

to ministerially correct its written sentencing order on the

three misdemeanor charges to either conform to its orally

pronounced sentence of “time served” or set forth the

statutory maximum of days for each of those charges. See

Raines v. State, 317 So, 3d 1162, 1162 (Fla. 4th DCA 2021)

(“Where a trial court's written sentencing order conflicts with

the oral pronouncement, the oral pronouncement controls. On

remand, the trial court shall correct the written sentencing

order.”) (internal citations and quotation marks omitted). The

defendant need not be present for this ministerial task. /d.

Lastly, we conclude the defendant's argument that the circuit

court erred in imposing costs which were not mandatory or

orally pronounced lacks merit, with no further discussion

required. We also conclude the defendant's argument that

he was entitled to a twelve-person jury under the Sixth and

Fourteenth Amendments to the United States Constitution has

been rejected in Guzman v. State, 350 So. 3d 72, 73 (Fla.

4th DCA 2022), review denied, No. SC22-1597, 2023 WL

3830251 (Fla. June 6, 2023).

Affirmed; remanded for correction of written sentencing

order.

Levine.and Conner, JJ., concur.

Jaimes-Luviano v. State, 373 So.3d 349 (2023)

48 Fla. L. Weekly D2023

All Citations

373 So.3d 349 (Mem), 48 Fla. L. Weekly D2023

Supreme Court of Florida

FRIDAY, JANUARY 5, 2024

Miguel Jaimes-Luviano, $C2023-1497

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

v. 4D2022-1382;

432020CF00095 1 CFAXMX

State of Florida,

Respondent(s)

This cause having heretofore been submitted to the Court on

jurisdictional briefs and portions of the record deemed necessary to

reflect jurisdiction under Article V, Section 3(b), Florida

Constitution, and the Court having determined that it should

decline to accept jurisdiction, it is ordered that the petition for

review is denied.

No motion for rehearing will be entertained by the Court. See

Fla. R. App. P. 9.330(d)(2).

CANADY, LABARGA, COURIEL, GROSSHANS, and FRANCIS, JJ.,

concur.

A True Copy

Test:

SEIOYTHROT 1/5/2024

John A. Tomasino

Clerk, Supreme Court

8C2023-1497 1/5/2024

Served:

CASE NO.: SC2023-1497

Page Two

CYNTHIA LORRAINE ANDERSON

HON. SHERWOOD BAUER UR.

4DCA CLERK

MARTIN CLERK

ALEXANDRA ANTOINETTE FOLLEY

NI. APPELLANT WAS ENTITLED TO A TWELVE PERSON JURY

UNDER THE SIXTH AND FOURTEENTH AMENDMENTS AND HE

DID NOT WAIVE THAT RIGHT.

Jaimes Luviano was convicted by a jury comprised of a mere six

people. T 238. The Sixth and Fourteenth Amendments guarantee the

right to a twelve-person jury when the defendant is charged with a

felony.

C. Standard of review and preservation

The standard of review of constitutional claims is de novo. See

A.B. v. Florida Dept. of Children & Family Services, 901 So. 2d 324,

326 (Fla. 3d DCA 2005).

Jaimes Luviano did not personally waive his right to a twelve

person jury.

D. Jaimes Luviano acknowledges Guzman pending

before the Florida Supreme Court on identical

issue

Jaimes Luviano notes that this Court recently decided Guzman

v. State, 350 So. 3d 72 (Fla. 4th DCA 2022) pending SC22-1597,

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

United States Constitution.” Jd. at 73. The majority opinion in

Guzman found 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.

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

defendant's] legal argument on jury composition present|ed] a classic

example of how the law navigates the shifting sands of constitutional

analysis.” Id. at 75 (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.” Id. at 78 (Gross, J,

concurring). “At a minimum, Ramos... 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).

Guzman is currently pending before the Florida Supreme Court.

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, undersigned

“[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, although acknowledging this Court is bound by Guzman,

Jaimes Luviano seeks to preserve this argument for further review.

E. The Constitution requires a twelve-person jury.

On the merits, although the 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 time of the Sixth Amendment’s adoption,” id. at 1395; U.S. Const.

amend. VI.

Prior to 1970, subjecting Jaimes Luviano to a trial with only six

jurors would have indisputably violated his Sixth Amendment rights.

As the Ramos Court observed, even Blackstone recognized that under

the common law, “no person could be found guilty of a serious crime

unless ‘the truth of every accusation ... should ... be confirmed by

the unanimous suffrage of twelve of his equals and neighbors[.]”

Ramos, 140 8. Ct. at 1395. “A ‘verdict, taken from eleven, was no

verdict’ at all.” Id.

After the Sixth Amendment was enacted, a bevy of state

courts—ranging from Alabama to Missouri to New Hampshire—

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 U.S. 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) overruled on other grounds by Collins v. Youngblood, 497 U.S.

37, 51-52 (1990). As the Thompson Court explained, since the time

of the Magna Carta, the word “jury” had been understood to mean a

body of twelve people. Id. Given that understanding had been

accepted since 1215, the Court reasoned, “[i]t must” have been “that

the word jury” in the Sixth Amendment was “placed in the

constitution of the United States with reference to [that] meaning

affixed to [it].” Id. at 350.

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. For example, in 1900, the Court explained

that “there [could] be no doubt” “[t]hat a jury composed, as at

common law, of twelve jurors was intended by the Sixth Amendment

to the Federal Constitution.” Maxwell v. Dow, 176 U.S. 581, 586

(1900). Thirty years later, the Court reiterated that it was “not open

to question” that “the phrase ‘trial by jury” in the Constitution

incorporated juries’ “essential elements” as “they were recognized in

this country and England,” including the requirement that they

“consist of twelve men, neither more nor less.” Patton v. United States,

281 U.S. 276, 288 (1930). And as recently as 1968, the Court

remarked that “by the time our Constitution was written, jury trial in

criminal cases had been in existence in England for several centuries

and carried impressive credentials traced by many to Magna Carta,”

such as the necessary inclusion of twelve members. Duncan v.

Louisiana, 391 U.S. 145, 151-152 (1968).2

2 See also, e.g., Capital Traction Co v. Hof, 174 U.S. 1, 13 (1899)

(“Trial by jury,’ in the primary and usual sense of the term at the

common law and in the American constitutions, is not merely a trial

by a jury of 12 men” but also contains other requirements);

Rassmussen v. United States, 197 U.S. 516, 529 (1905) (“The

constitutional requirement that ‘the trial of all crimes, except in cases

of impeachment, shall be by jury,’ means, as this court has adjudged,

a trial by the historical, common-law jury of twelve persons’).

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, 122-24 (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

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

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

Burch v. Louisiana, 441 U.S. 130, 137 (1979) (acknowledging that

Williams and its progeny “departed from the strictly historical

requirements of jury trial”).

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.” Ramos, 140 S. Ct. at

1401-02.

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.” Ramos, 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 the common understanding of the jury trial during the

Revolutionary War era was that twelve jurors were required—a

“verdict, taken from eleven, was no verdict at all.” See id. at 1395

(quotation marks omitted).

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.”

Williams, 399 U.S. 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’

assumptions. For example, Ballew noted that more recent research

showed that (1) “smaller juries are less likely to foster effective group

deliberation,” id. at 232, (2) smaller juries may be less accurate and

cause “increasing inconsistency” in verdict results, id. at 234, (3) the

chance for hung juries decreases with smaller juries,

disproportionally harming the defendant, id. at 236; and (4)

decreasing jury sizes “foretell[] problems ... for the representation of

minority groups in the community,” undermining a jury’s likelihood

of being “truly representative of the community,” id. at 236-37.

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; see also id. at

245-46 (Powell, J., concurring) (agreeing that five-member juries are

unconstitutional, while acknowledging that “the line between fiveand six-member juries is difficult to justify’).

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) (“Larger juries are also more

inclusive and more representative of the community. ... In reality,

cutting the size of the jury dramatically increases the chance of

excluding minorities.”). Because “the 12-member jury produces

significantly greater heterogeneity than does the six-member jury,”

Diamond et al., 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.

Other important considerations also weigh in favor of the

twelve-member jury. For instance, studies indicate that twelve-

member juries deliberate longer, recall evidence better, and rely less

on irrelevant factors during deliberation. See Smith & Saks, The Case

for Overturning Williams v. Florida and the Six-Person Jury, 60 FLA. L.

REv. 441, 465 (2008). Minority views are also more likely to be

thoroughly expressed in a larger jury, as “having a large minority

helps make the minority subgroup more influential,” and,

unsurprisingly, “the chance of minority members having allies is

greater on a twelve-person jury.” Id. at 466. Finally, larger juries

deliver more predictable results. In the civil context, for example,

“[slix-person juries are four times more likely to return extremely

high or low damage awards compared to the average.” Higginbotham

et al., at 52.

Jaimes Luviano recognizes that the state constitution provides:

SECTION 22. Trial by jury—tThe right of trial by jury shall be

secure to all and remain inviolate. The qualifications and the

number of jurors, not fewer than six, shall be fixed by law.

Art. I, § 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. The historical background is as follows:

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 & 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) (quoting and discussing Chapter

3010, section 6, Laws of Florida (1877)); Florida Fertilizer, 34 So. at

241 (noting that previously all juries had twelve members).

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

provision on February 17, 1877. Gibson, 16 Fla. at 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

Renewal, 1865-1877, in THE HISTORY OF FLORIDA 273 (Michael

Gannon, ed., first paperback edition 2018) (“there were [no] federal

troops” in Florida after 23 January 1877”).

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.

On its face the 1868 constitution extended the franchise to

Black men. But the historical context shows that that it was part of

the overall resistance to Reconstruction efforts to protect the rights

of Black citizens. The constitution was the product of a remarkable

series of events including a coup in which leaders of the white

southern (or native) faction took possession of the assembly hall in

the middle of the night, excluding Radical Republican delegates from

the proceedings. See Richard L. Hume, Membership of the Florida

Constitutional Convention of 1868: A Case Study of Republican

Factionalism in the Reconstruction South, 51 Fla. Hist. QO. 1, 5-6

{1972); SHOFNER, at 266. A reconciliation was effected as the “outside”

whites “united with the majority of the body’s native whites to frame

a constitution designed to continue white dominance.” Hume at 15.

The racist purpose of the resulting constitution was spelled out

by Harrison Reed, a leader of the prevailing faction and the first

governor elected under the 1868 constitution, who wrote to Senator

Yulee that the new constitution was constructed to bar Blacks from

legislative office:

Under our Constitution the Judiciary & State officers will be

appointed & the apportionment will prevent a negro legislature.

Hume, at 15-16. See also SHOFNER, at 266.

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

supremacy. Ramos, 140 So. Ct. 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 is

unconstitutional under the Sixth and Fourteenth Amendments of the

United States Constitution. See U.S. Const. amend. VI, U.S. Const.

amend. XIV.

Finally, Jaimes Luviano did not waive his Sixth Amendment

right to a twelve-person jury. A defendant may waive his right to a

constitutional jury, but the “express and intelligent consent of the

defendant” is required. Patton, 281 U.S. at 312. Jaimes Luviano’s

claim is of “constitutional dimension” not statutory right, which is

fundamental error and can be raised for the first time on appeal. See

e.g., Johnson v. State, 994 So. 2d 960, 964 (Fla. 2008) (holding

Johnson’s general silence “did not constitute a valid waiver” of “his

right to a jury trial”); Smith v. State, 857 So. 2d 268, 270 (Fla. 5th

DCA 2003) (reasoning the constitutional right to a jury trial is

fundamental in nature).

This Court should reverse the judgment and sentence and

remand for a new trial with a twelve-person jury, as required by the

Sixth and Fourteenth Amendments to the United States

Constitution.

IV. UNAUTHORIZED COSTS SHOULD BE STRICKEN

Jaimes Luviano specifically requests that the $200 cost of

prosecution (COP) and an unspecified $50 be struck because there

is no statutory authority for $200 COP and the written order appears

to impose $50 more than what was orally pronounced. In addition,

statutory authority for the $415 should be provided for adequate

review of the written cost order.

A. Standard of review and preservation

This Court reviews the statutory authority of costs de novo as it

is a pure legal question. McNeil v. State, 215 So. 3d 55, 58 (Fla. 20 17).

Jaimes Luviano preserved this issue by raising it in a Rule 3.800(b) (2)

motion. SR.400.

B. No statutory authority for a $200 Cost of

Prosecution

The $200 cost of prosecution must be struck because it is not

statutorily authorized. Florida Statute 938.27(8) mandates trial

courts impose $100 cost of prosecution per case for a felony offense

and provides authority to increase that amount upon “sufficient proof

of higher costs incurred.” § 938.27(8), Fla. Stat. (2013). The burden

of demonstrating costs incurred is on the state attorney. § 938.27(4),

Fla. Stat. (2013). Here, the State entered no evidence to prove the

$200 cost of prosecution. See T.537. Without such evidence, the trial

court had no authority to impose more than $100. See § 938.27(8),

Fla. Stat. (2013); see also Icon v. State, 322 So. 3d 117, 119 (Fla. 4th

DCA 2021).

Further, the trial court did not ask if Jaimes Luviano wanted a

hearing on the matter nor did Jaimes Luviano affirmatively state no

objection; therefore, his due process rights were violated. See T.250;

Gaudagno v. State, 291 So. 3d 962, 963 (Fla. 4th DCA 2020) (holding

$200 COP “was done without notice or record support}; Brown v.

State, 189 So. 3d 837, 840 (Fla. 4th DCA 2015) (holding the imposed

costs violated due process “because the court did not provide him an

opportunity to be heard and the state did not prove the amount of

the costs.”).

Thus, the cost of prosecution should be struck because the trial

court had no statutory authority to impose $200.

C. Bulk amount should be stricken or statutory

authority provided

“It is well established that a court lacks the power to impose

costs in a criminal case unless specifically authorized by statute.”

Chapman v. State, 974 So. 2d 625, 626 (Fl. 4th DCA 2008) (original

quotations omitted). Even for mandatory costs, “it is improper for a

trial court to impose costs in a sentencing order without providing an

explanation in the record as to what the costs represent, so as to

permit a reviewing court to determine the statutory authority for the

costs.” Anderson v. State, 229 So. 3d 383, 386 (Fla. 4th DCA 20 17).

Although, each statutory authority for every fee is not required, a

breakdown of costs is otherwise the appellate court has no way to

“determine the statutory authority for each assessment.” Id. at 387;

see also Chapman, 974 So. 2d at 626 (requiring statutory

authorization for all costs).

The cost order has one line item for felony costs and mandatory

fines with a total of $262,915. The mandatory fine plus the five

percent surcharge is $262,500, leaving a bulk amount of $415.

Without statutory authority, it is unclear if the $415 is statutorily

mandated and it is in violation of Anderson. Further, the trial court

orally pronounced $610 court costs yet written order imposes $660

(415 + (65*3) + 50) in court costs. This Court should at a minimum

strike the additional $50 that was not oral pronounced. See Tory v.

State, 686 So. 2d 689 (Fla. 4th DCA 1996) (where written order does

not conform to oral pronouncement of sentence, latter prevails). And

it should require the trial court to provide statutory authority for the

$415 bulk amount so each assessment can be readily reviewed.

Filing # 148672367 E-Filed 04/29/2022 02:09:32 PM

IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT

IN AND FOR MARTIN COUNTY FLORIDA

UCN: 432020CF000951CFAXMX

STATE OF FLORIDA, Casé Number: 2000095 1CFAXMX

vs. OBTS#: 4302100884

MIGUEL JAIMES-LUVIANO

Defendant.

Judgment

CO PROBATION VIOLATOR C1 RESENTENCE

C1 COMMUNITY CONTROL VIOLATOR 0D RETRIAL

C MODIFICATION 0 AMENDED

The defendant, MIGUEL JAIMES-LUVIANO, being personally before the court represented

by EDWARD LOPEZ, the attorney of record and the state represented by KRISTEN CHASE

and having

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

CNT# Statute Statute Description Level/Degree

1 316.061 LSOA-CAUSING PROPERTY DAMAGE Misdemeanor/SECOND

° DEGREE

2 843.02 RESISTING OFFICER WITHOUT VIOLENCE Misdemeanor/FIRST

. DEGREE

3 322,03(1) DRIVING WITHOUT VALID DRIVERS LICENSE Misdemeanor/SECOND

. DEGREE

been tried and found guilty by jury/by court of the following crime(s):

CNT# Statute Statute Description Level/Degree

4 893.135(1f1) TRAFFICKING IN METHAM PHETAMINES - 200 Felony/FIRST

GRAMS OR MORE DEGREE

OThe__ PROBATION _ COMMUNITY CONTROL previously ordered in this case is

revoked. . ,

C1 PRIOR ADJUDICATION on

It is ordered that the defendant is hereby Guilty of the above crime(s).

‘O Itis.ordered that the defendant is hereby Adjudication Withheld of the above crime(s).

and being a qualified offender pursuant to s. 943.325, the defendant shall be required to

submit DNA samples as required by law.

DONE and ORDERED at Martin County, Florida this Thursday, April 28

| DN

yy CIRCUIT JUDGE ROBERTL PEGG

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. Page { of 13

Filing # 148672367 E-Filed 04/29/2022 02:09:32 PM

IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT

IN AND FOR MARTIN COUNTY FLORIDA

STATE OF FLORIDA, UCN: 432020CF00095 1CFAXMX

Case Number: 20000951CFAXMX

vs. .

MIGUEL JAIMES-LUVIANO

Defendant.

. Charges/Costs/Fees .

The defendant is hereby ordered to pay the following sums:

FEL CIVIL LIEN PD APPL 40 $ 50.00 10/09/2020

Felony Costs plus 5% and Mandatory Fine $262,915.00 04/28/2022

BOCC ORD 642 $65 _ $ 65.00 04/28/2022

BOCC ORD 642 $65 $ 65.00 04/28/2022

STATE ATTY PROSECUTION CS $ 200.00 04/28/2022

__ OTHER _

Total Assessed at Judgment: $263,360.00

Total Assessment balance: $263,360.00

DONE and ORDERED at Martin County, Florida ay of April,

oS is

CIRGUIT JUDGE ROBERT LPEGG

Page_<> of _13.

Filing # 148672367 E-Filed 04/29/2022 02:09:32 PM

STATE OF FLORIDA .

IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT

~ IN AND FOR MARTIN COUNTY FLORIDA

STATE OF FLORIDA UCN: 432020CF00095 | CFAXMX

vs. Case Number: 20000951 CFAXMX

MIGUEL JAIMES-LUVIANO

Defendant,

Sentence

(As to Count 14,3)

The defendant, being personally before this court, accompanied by the defendants’ attorney of

secord, EDWARD LOPEZ, and having been adjudicated guilty herein, and the court having given

the 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 being

shown.

(Check applicable provision)

O and the court having on deferred imposition of sentence until this

date 04/28/2022,

O and the court having previously entered a judgment ia this'case on now

resentences the defendant

1 and the court having placed the defendant on probation/community control and having

subsequently revoked the defendant's probation/community control

IT IS THE SENTENCE OF THE COURT that:

The Defendant is hereby committed to the custody of the COUNTY JAIL.

Oi The defendant pay a fine pursuant to section 775.083, Florida Statutes, plus a 5% surcharge

pursuant to section 950.25 Florida Statutes, as indicated on the Fine/Costs/Fee Page.

0 The defendant is sentenced as a youthful offender in accordance with section 958,04,

Florida Statutes.

TO BE IMPRISONED;

| __[ Fora term of 591.00 days

In the event the defendant is ordered to serve additional split sentences, all incarcerations portions

shall be satisfied before the defendant begins service to the supervision terms.

Page 3 of 13

STATE OF FLORIDA

IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT

IN AND FOR MARTIN COUNTY FLORIDA

STATE OF FLORIDA UCN: 432020CF000951CFAXMX

¥S, . Case Number: 20000951 CFAKMX

MIGUEL JAIMES-LUVIANO

Defendant.

Sentence

(Asto Count 4)

The defendant, being personally before this court, accompanied by the defendants’ attomey of

record, EDWARD LOPEZ, and having been adjudicated guilty herein, and the court having given

the 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 faw, and no cause being

shown.

(Check applicable provision)

O and the court having on deferred imposition of sentence until this

date 04/28/2022.

O and the court having previously entered a judgment in this‘case on now

Tesentences the defendant

C and the court having placed the defendant on probation/community contro! and having

subsequently revoked the defendant's probation/community control

IT IS THE SENTENCE OF THE COURT that:

The Defendant is hereby committed to the custody of the PRISON.

C The defendant pay‘ fine pursuant to section 775.083, Florida Statutes, plus a 5% surcharge

pursuant to section 950,25 Florida Statutes, as indicated on the Fine/Costs/Fee Page.

C The defendant {s sentenced as a youthful offender in accordance with section 958.04,

Florida Statutes.

TO BE IMPRISONED:

| Fora term of 15,00 years

In the event the defendant is ordered to serve additional split sentences, all incarccrations portions

shall be satisfied before the defendant begins service to the supervision terms.

Page 4 of 13

STATE OF FLORIDA UCN: 432020CF000951CRAXMX

Case Number: 20000951 CFAXMX

ys.

MIGUEL JAIMES-LUVIANO

Defendant.

Special Provisions

(As to Count 4 )

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

Mandatory/Minimum Provisions:

4q¥

Fircarm‘Weapon {tis further ordered that the “year minimum imprisonment provisions of section 775.087,

Florida Statutes, is hereby Imposed for the sentence specified in this court.

Drug Trafficking Itis further ordered that the i5 year mandatory minimum imprisonment provisions of section

id 393,135(1), Florida Statutes, is hereby imposed for the sentence spcelfied in this court, -

Controlled Substance Within 1,099 Feet of School/Park/Community Center

It is further ordered that the 3-year minimum imprisonment provisions of section 893.13, Florida

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

Habitual/Felony Offender

‘The Defendant is adjudicated a habitual felony offender and has been sentenced to an

extended term In accordance with the provigions of section 775.084(4){a), Florida Statutes:

The requisite findings by the court are ser forth ina Separate order or stated on the

tecord in open court,

Habitual Violent Felony Offender

The defendant ts adjudicated a habitual violent felony offender and has been sentenced to the

extended (crm in accordance with the provisions of section 7 '75,084(4)(b), Florida Statutes, A

tainimum term of year(s) must be served prior ta release, The requisite findings of

the court are set forth in a separate order ar stated on the record in open court,

Law Enforcement Protvetion Act

Te fs further ordered that the defendant shall serve a minimum of -yeass before release in

accordance with section 775.0923, Florida Statutes.

Capital Offense

ft is further ordered that the defendant shall serve no less than 24 years in accordunce with the.

provisions of section 775.082(1), Florida Statutes.

Short-Barraled Riffe, Shotgue, Machine Gun

Itis further ordered that the S-year munimum provisions of section 790,22 1(2), Florida Statutes, are

hereby inaposed for the sentence specified in this court, :

Continuing Criminal Enterprise

[tis further ordered that the 25-year minimum sentences provisions of section 893.20, Florida

Statutes, ate hereby imposed for the sentence specified in this court,

Taking a Law Enforcement Officer's Firearm

(tis further ordered that the 3-year minimum provisfons of section 773,0875(1), Florida Statutes,

are heraby imposed (or the sentence specified In this court,

Page 5 of _/3_

STATE OF FLORIDA UCN: 432020CF00095 1 CFAXMX

Case Number: 20000951CRAXMX

vs,

MIGUEL JAIMES-LUVIANO

Defendant. Other Provisions:

Retention of 947,163), ______ The court retains jurisdiction over the defendant pursuant to section Statutes

Florida Jurisdiction (1983),

Jail Credit / Itis further ordered that the defendant shall be allowed a total of OF /days

credit for time incarcerated beforc imposition of this sentence.

Credit for Time Served ___It is further ordered that the defendant be allowed days time

in Resentenoing after served between date of arrest as a violator following release from prison to the

Violation of Probation or dateof resentencing, The Department of Corrections shal! apply original jail

Community Control ume credit and shall compute and apply original jail time credit and shall

compute and 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 }, 1989)

———lt is further ordered that the defendant be allowed days time served

between date of arrest as a violator following relesse from prison to the date of

resentencing, The Department of Corrections shall apply original jail time credit

and shall compute and apply credit for time served on case/count

(Offenses cammitted between October 1, 1989, and December 31, 1993)

——- The Court deems the unforfeited gain time previously awarded on the above

casc/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 shall be allowed days time

served between date of arrest as 2 violator following release from Prison to the

dateof resentencing. The Department of Corrections shal! apply original Jail

time credit and shall compute and apply credit for time served only pursuant to

section 921.0017, Florida Statutes, on casc/count - (Offenses

committed on or after January 1, 1994)

(CHECK ONE) Consceutive to Concurrent with the sentence

Set for in count of this case.

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