Petition for Writ of Certiorari — Joshua Terrel Brown, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

JOSHUA TERREL BROWN, PETITIONER

v.

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

Mara Catherine Herbert

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

mherbert@pd15.state.fl.us

appeals@pd15.org

1

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOSHUA TERREL BROWN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D2022-1488

[November 29, 2023]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.

Lucie County; William L. Roby, Judge; L.T. Case No. 562021CF001955A.

Carey Haughwout, Public Defender, and Mara Herbert, Assistant Public

Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, Alexandra A. Folley,

Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

Joshua Terrel Brown appeals his convictions for two counts of lewd or

lascivious exhibition in the presence of a correctional facility employee,

entered after a jury trial. We reject his double jeopardy argument and

affirm the convictions, but we reverse certain costs imposed at sentencing.

We affirm on all other issues. 1

The evidence at trial demonstrated that Brown intentionally

masturbated in his cell within the clear view of two members of the

correctional facility’s mental health staff.

1 As to appellant’s contention that he was entitled to a twelve-person jury, we

affirm. See Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022), rev. denied, No.

SC2022-1597, 2023 WL 3830251 (Fla. June 6, 2023), cert. pending, No. 23-5173

(U.S. July 21, 2023). Additionally, without further discussion, we affirm as to

appellant’s argument regarding fundamental error in the sentencing process.

2

On appeal, Brown argues that his two convictions for lewd or lascivious

exhibition violate the prohibition against double jeopardy. He argues that

the statute does not allow for multiple convictions “for a single act of lewd

behavior when it is done in the presence of multiple employees.”

In pertinent part, section 800.09(2)(a), Florida Statutes (2021), is

directed at a person who “intentionally masturbate[s] . . . in the presence

of a person he or she knows or reasonably should know is an employee.”

Subsection (1) defines “employee” to include “[a]ny person employed at or

performing contractual services for a county detention facility.”

§

800.09(1)(a)4., Fla. Stat. (2021).

“The intent of the Legislature is to convict and sentence for each

criminal offense committed in the course of one criminal episode or

transaction . . . .” § 775.021(4)(b), Fla. Stat. (2021). One exception to this

rule of construction is for “offenses which require identical elements of

proof.” § 775.021(4)(b)1., Fla. Stat. (2021). If a defendant is charged with

two counts of the same statutory offense, the “allowable unit of

prosecution” standard applies to the double jeopardy analysis. Mauldin v.

State, 9 So. 3d 25, 27 (Fla. 4th DCA 2009). The “unit of prosecution”

means “the aspect of criminal activity that the Legislature intended to

punish.” McKnight v. State, 906 So. 2d 368, 371 (Fla. 5th DCA 2005).

Determining the unit of prosecution “is a task of statutory construction.”

Id. “Double jeopardy is not violated if the legislature intended separate

punishments.” Mauldin, 9 So. 3d at 28.

To determine the unit of prosecution, courts look first to the statute’s

actual language. State v. Losada, 175 So. 3d 911, 913 (Fla. 4th DCA

2015). “If the statutory language is unclear, we apply rules of statutory

construction and explore legislative history to determine legislative intent.”

Bautista v. State, 863 So. 2d 1180, 1185 (Fla. 2003). “In performing this

analysis, a court must consider the statute as a whole, including the evil

to be corrected and the language, title, and history of its enactment to

decipher the statute’s intent.” Losada, 175 So. 3d at 913 (internal

quotation marks and citation omitted). Finally, if the statute is still

ambiguous, a court will apply the rule of lenity and construe the statute

in favor of the accused. Id.

“[A]bsent clear legislative intent to the contrary, the a/any test serves

as a valuable but nonexclusive means to assist courts in determining the

intended unit of prosecution.” Bautista, 863 So. 2d at 1188. Under this

test, “when the article ‘a’ precedes the item described in a statute, it is the

intent of the Legislature to make each separate item subject to a separate

prosecution.” Allen v. State, 82 So. 3d 118, 121 (Fla. 4th DCA 2012). By

2

3

contrast, “when the word ‘any’ precedes the item, an ambiguity may arise

as to the intended unit of prosecution.” Losada, 175 So. 3d at 914. Still,

the unit of prosecution is not “automatically rendered ambiguous

whenever a statute uses the word ‘any.’” Bautista, 863 So. 2d at 1188.

Here, appellant’s two convictions under section 800.09 for a single lewd

act in the presence of two correctional facility employees did not violate

double jeopardy. Section 800.09 is unambiguous and allows for separate

convictions for each employee present during the lewd act.

Section 800.09(2)’s use of the word “a” in the phrase “presence of a

person” indicates that each victim present at an exposure will support a

separate charge. Applying the “a/any test,” we conclude that the allowable

unit of prosecution is the number of employees, not the number of lewd

acts.

This interpretation is consistent with cases allowing multiple

convictions for a single act where the statutory language reflected an intent

to punish on a per-victim basis. See Suggs v. State, 72 So. 3d 145, 149

(Fla. 4th DCA 2011) (“[T]he statute’s plain focus is on ‘the person’ to whom

such letter or communication is sent. Thus, we hold that, under section

836.10, the unit of allowable prosecution is determined by the number of

persons to whom a letter or communication is sent, and not the number

of letters or communications sent.”) (internal citation omitted); Mauldin, 9

So. 3d at 28 (“It is clear from the assault statute that the legislature

intended to punish the criminal defendant separately for each victim the

defendant placed in fear by his or her threat.”).

We reject Brown’s focuses on the word “any” in the section

800.09(1)(a)4. definition of “employee.”

To determine the unit of

prosecution, the crucial provision of section 800.09(2)(a) is the subsection

prohibiting the behavior, not the statute’s definition of an “employee.”

Brown’s reliance upon section 775.021(4)(b)1., Florida Statutes (2021),

is similarly misplaced. Under section 775.021(4)(b)1., an exception to the

legislature’s intent to convict for “each criminal offense committed in the

course of one criminal episode” applies where the “offenses require

identical elements of proof.” Id. Here, Count I required proof that the lewd

act was committed in the presence of victim A.D., while Count II required

proof that the lewd act was committed in the presence of victim K.J. Each

count involved a different victim, so the counts did not require identical

elements of proof. See Simon v. State, 615 So. 2d 236, 238 (Fla. 3d DCA

1993) (holding that “[w]ithout dispute, each of the six false imprisonment

3

4

offense involved a different victim and therefore did not require identical

elements of proof”).

We distinguish the Florida Supreme Court’s decision in State v.

Hernandez, 596 So. 2d 671 (Fla. 1992). There, the supreme court held

that a single lewd act, though seen by more than one child, was subject to

only one conviction under section 800.04(3), Florida Statutes (1987). Id.

at 672. However, the statute at issue in Hernandez proscribed the

knowing commission of lewd act in the presence of “any child.” The court

reasoned that the statute’s focus was not on the number of victims, but

rather was “on the commission of the lewd act whether in the presence of

one or more children[.]” Id. (quoting Lifka v. State, 530 So. 2d 371, 373

n.1 (Fla. 1st DCA 1988)). The court explained: “The size of the audience

or the number of witnesses should not determine the number of allowable

convictions under subsection 800.04(3); rather, the number of distinct

lewd acts should be determinative.” Id. By contrast, because of the use

of the article “a” instead of “any,” section 800.09(2)’s focus is on the

number of employees present during the commission of a lewd act, not the

number of distinct lewd acts committed.

As the State concedes, certain costs were imposed in error. We reverse

and remand with instructions to impose a $100 cost of prosecution instead

of $200 and to strike the $50 cost of investigation, the $151 cost for the

Rape Crisis Trust Fund on each count, and the $201 for the Domestic

Violence Surcharge on each count. Brown preserved these issues for

appeal by filing a post-trial motion.

Affirmed in part, reversed in part and remanded.

GERBER and CONNER, JJ., concur.

*

*

*

Not final until disposition of timely filed motion for rehearing.

4

5

POINT IV -- APPELLANT WAS ENTITLED TO A TWELVE

PERSON JURY UNDER THE SIXTH AND FOURTEENTH

AMENDMENTS.

Appellant was convicted by a jury comprised of a mere six

people. He asserts that the Sixth and Fourteenth Amendments

guarantee the right to a twelve-person jury.

Standard of Review

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).

Appellant notes that this Court recently decided Guzman v.

State, 350 So. 3d 72 (Fla. 4th DCA 2022), which rejected a

defendant’s argument “that his convictions by a six-person jury

violated the Sixth and Fourteenth Amendments to the United States

Constitution.” Id. 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. Although

acknowledging this Court is bound by Guzman, Appellant seeks to

preserve this argument for further review.

Legal Analysis

41

6

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 Appellant 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 S. 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).

42

7

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, 349350 (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 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

43

8

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

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.,

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”).

2

44

9

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”).

The ruling in Williams that the Sixth Amendment (as

incorporated to the States by the Fourteenth Amendment) permits a

six-person jury cannot stand in light of Ramos. There, the Supreme

Court held that the Sixth Amendment requires a unanimous verdict

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10

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 140001. 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).

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11

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 “f[ou]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

47

12

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

48

13

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 twelvemember 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

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14

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

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

“[s]ix-person juries are four times more likely to return extremely

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

et al., at 52.

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 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

50

15

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

51

16

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. Q. 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

52

17

(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 a

crime punishable up to life imprisonment 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, Appellant 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. See also Johnson v.

State, 994 So. 2d 960, 964 (Fla. 2008) (holding Johnson’s general

silence “did not constitute a valid waiver” to “his right to a jury trial”).

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

Constitution.

53

18

to

the

United

States

JOSHUA TERREL BROWN vs. STATE OF FLORIDA

LT. CASE NO: 2021CF001955 A

HT. CASE NO: 22-1488

IN THE CIRCUIT/COUNTY COURT OF THE NINETEENTH JUDICIAL CIRCUIT

IN AND FOR ST LUCIE COUNTY, FLORIDA

Modified

Resentence

Amended

Corrected

Mitigated

Community Control Vlolator

Probation Violator

Case Number:

562021CF001955AXXXXX

STATE OF FLORIDA

- vs -

Sexual Predator

JOSHUA TERREL BROWN AKA 'J OSHUA T BROWN

Sex Offender

Defendant

Minor Victim

Sentenced in Absentia

The Defendant, JOSHUA TERREL BROWN being personally before this Court represented

by Attorney STEPHEN CHARLES HOOPER, the Attorney of record, and the State represented

by JUSTIN THOMAS MILLER, and having:

X been tried and found guilty by Jury oftbe tonowjng crjmeCs).

entered a plea of gullty to the followlng crlme(s).

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

Admitted Violation of Probation

Found Guilty of Violation of Probation

Admitted a Violation of Community Control

Found Guilty of Violation of Community Control

Count

Offense Statute

Number(s)

Crime

Level/

Degree

OBTS

Number

1

LEWD OR LASCIVIOUS EXHIBITION IN THE

PRESENCE OF A CORRECTIONAL FACILITY

EMPLOYEE

800.09(2)

F-3

N/A

2

LEWD OR LASCIVIOUS EXHIBITION IN THE

PRESENCE OF A CORRECTIONAL FACILITY

EMPLOYEE

800.09(2)

F-3

N/A

x

and ·no cause being shown why the defendant should not be adjudicated guilty, II 1s ORDERED THAI

the defendant js hereby ADJUDICATED GUILTY of the aboye crlmeCs) · AS IQ CQUNTfs} 1. 2

x

and ,being a qualified offender pursuant to 'Florida statute 943 325 - defendant shall be required to

submit PNA samples as required by law

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

KEB/DC

Page 1 of 1

DOC

163

19

JOSHUA TERREL BROWN vs. STATE OF FLORIDA

LT. CASE NO: 2021CF001955 A

HT. CASE NO: 22-1488

CASE NUMBER

2021CF001955 A

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 the assistance of counsel in

taking the appeal at the expense of the State on showing of indigency.

Circuit Judge

FINGERPRINTS OF DEFENDANT

1. Right Thumb

2. Right Index

3. Right Middle

4. Right Ring

5, Right Little

6. Lett Thumb

7. Left Index

8. Left Middle

9. Left Ring

10. Left Little

'

.. t

Fingerprints taken by:

"S:,J§tlJJ.l':::117J/ · :ttq49

.t;:,g:£ury .:SHeR.1

~C)

Title

Name

a=

I HEARBY CERTIFY that the above and forgoing fingerprints are the fingerprints of the Defendant _ _ _ _ __

_J_O_S_H_U_A_T_E_R_R_E_L_B_R_O_W_N_ _ _ _ _ _ _ _ _ _ and that they were placed thereon by said Defendant in my

presence in open Court this date.

DONE AND ORDERED In Open Court at St. Lucie County, Florida, on

Monday, May 23, 2022

Nunc Pro Tune To:

Circuit Judge WILLIAM L ROBY

164

20

JOSHUA TERREL BROWN vs. STATE OF FLORIDA

LT. CASE NO: 2021CF001955 A

HT. CASE NO: 22-1488

Violation of Probation, Previously Adjudged Guilty

Violation of Community Control, Previously Adjudged Guilty

Resentenced

Case Number

Modified

Amended

OBTS Number

Mitigated

562021 CF001955AXXXXX

N/A.

Corrected

Defendant

JOSHUA TERREL BROWN AKA JOSHUA

TBROWN

SENTENCE.

(As to Count 1 )

The Defendant, being personally before this Court, accompanied by the Defendant's Attorney of record STEPHEN

CHARLES HOOPER and having been adjudicated guilty, 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 Defense should not be sentenced as

provided by law, and no cause being shown

_

and the Court having on _ _ deferred imposition of sentence until this date.

_

and the Court having previously entered a judgment in this case on _ _ now resentence the Defendant.

_

and the Court having placed the Defendant on _ _ _ _ _ _ _ and having subsequently

revoked the Defendant's _ _ _ _ _ _ _ __

It Is The Sentence Of Court that:

_ The defendant pay a fine of _ _ _ pursuant to section 775.083, Florida Statutes, plus _ _ _ as the 5% surcharge

required on 938.04, Florida Statutes.

X The Defendant is hereby committed to the custody of the Department of Corrections.

_ The Defendant is hereby committed to the custody of the Sheriff of St. Lucie County Florida.

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

To Be Imprisoned (check one; unmarked sections are inapplicable.):

For a term of Natural Life.

For a term of Natural Life with a 25 year mandatory minimum

X For a term of 52.00 MONTH(S)

_

The SENTENCE IS SUSPENDED for a period of _ _ _ subject to conditions set forth in this Order.

If'split' sentence complete the

appropriate Paragraph.

_

Followed by a period of _ _ on Community Control under the supervision of the

Department of Corrections according to the terms and conditions of supervision as set forth

in a separate order.

_

Followed by a period of _ _ probation under the supervision of the Department

of Corrections according to the tenns and conditions of supervision as set forth in a

separate order.

_

However, after serving a period of imprisonment in PRISON, the balance of the

sentence will be suspended and the Defendant will be on Probation/Community Control

under the supervision of the Department of Corrections according to the terms and

conditions of Probation/Community Control as 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.

Page 1 of5

165

21

JOSHUA TERREL BROWN vs. STATE OF FLORIDA

LT. CASE NO: 2021CF001955 A

HT. CASE NO: 22-1488

562021CF001955AXXXXX

SPECIAL PROVISIONS

(As to Count 1)

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

Mandatory/ Minimum Provisions:

Flream,

It is further ordered that the _ _ _ minimum imprisonment provisions of section 775 .087, Florida

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

Drug Traf/1cking

It is further ordered that the___ minimum imprisonment provisions of section 893. 135, Florida Statutes, is

hereby imposcdfor the sentence specified in this court, and that the Defendant pay a line of$_, pursuant to section

893.135, Florida Statutes, plus$_ as a 5% surcharge.

Law Enforcement

It is further ordered that the _ _ _ minimum mandatory imprisonment provision of section 784.07, Florida

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

Controlled Substance

Within 1,000 Feet o/School

It is further ordered that the 3 year minimum imprisonment provision of section 893.13(l){c), Florida

Statutes, is hereby imposed for the sentence in this co1mt.

Habitual Felony Offender

The Defendant is adjudicaied a habitual felony offender and has been sentenced to an extended

tcnn 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 Felony

The Defendant is adjudicated a habitual violent felony offender and bas been sentenced to an

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

term of _ _ _ ycar(s) must be served prior to release. Tne requisite findings of the Court arc set forth

in a separate order as stated on the record in open court.

Violem Career Criminal

The Defendant is adjudicated a violent career criminal and has been sentenced to an extended term in

accordance with the provisions of section 775.084(4)(d), Florida Statutes, A minimum of _ _ _

prior to release. The requisite findings of the Court as set forth in a separate order or stated on

the record in open court. (For crimes committed on or after May 24, 1997.)

must be served

Capital Ojfense

Jt is further that the Defendant shall serve no less than 25 years in accordance with provisions of section

775.082{1 ), Florida Statutes. (For first degree murder committed prior to May 25, 1994, and for any other capital

felony committed prior to October I, 1995.)

Prison Releasee

Defendant is adjudged a prison releasec reoffender in accordance with the provision of section 775.082(9), FL Statutes.

Sexual Predator

Defendant is adjudged a sexual predator in accordance with provision of section 775 .21, Florida Statutes.

Other Provisions:

Jail Credit

Credit/or Time Served

in Resentencing After

Violation ofProbation or

Community Control

X

It is further ordered thnt the Defendant shnll be allowed a totnl of

as credit for time Incarcerated before imposltlon of this sentence,

293 DAV(Sl

rt is further ordered that the Defendant be allowed _ _ days time served between date of arrest

as a violator following Release ftom prison to the date ofresentencing. The Department of Corrections

shall apply original jail time credit and shall compute and apply credit for time served and unforfeitcd gain time

previously awarded on case/count _ _ _ _ (Offenses committed before October I, 1989)

It is further.ordered that the Defendant be allowed _ _ days time served between date or arrest as a violator

following release from prison to tbe date of rcscntencing. The Department of Correction shall apply original ja.il time

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

·

(Offenses committed between October I, 1989, and December 31, 1993)

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

under section 948.06(6), Florida Statutes.

_

The Court allows unforfeitcd 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)), Florida Statutes.

It is further ordered that the Defendant be allowed _ _ time served between date of arrest as a violator following

release from prison to the date of resentcncing. 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 commitied on or after January I, 1994)

Conseclllivel Concurrent

As To Other Counts

It is further ordered·thut the sentence imposed for this count shalh1.1n _ _ wilh the sentence .set forth in count _ _

- - of this case.

Page 2 of 5

166

22

JOSHUA TERREL BROWN vs. STATE OF FLORIDA

LT. CASE NO: 2021CF001955 A

HT. CASE NO: 22-1488

Violation of Probation, Previously Adjudged Guilty

Violation of Community Control, Previously Adjudged Guilty

Resentenced

Modified

Amended

Mitigated

Case Number

562021 CF001955AXXXXX

OBTS Number

N/A

Corrected

Defendant

JOSHUA TERREL BROWN AKA JOSHUA

TBROWN

SENTENCE.

(As to Count 2 )

The Defendant, being personally before this Court, accompanied by the Defendant's Attorney of record STEPHEN

CHARLES HOOPER and having been adjudicated guilty, 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 Defense should not be sentenced as

provided by law, and no cause being shown

_

and the Court having on _ _ deferred imposition of sentence until this date.

_

and the Court having previously entered a judgment in this case on _ _ now resentence the Defendant.

_

and the Court having placed the Defendant on _ _ _ _ _ _ _ and having subsequently

revoked the Defendant's _ _ _ _ _ _ _ __

It Is The Sentence Of Court that:

_ The defendant pay a fine of ___ pursuant to section 775.083, Florida Statutes, plus _ _ _ as the 5% surcharge

required on 938.04, Florida Statutes.

X The Defendant is hereby committed to the custody of the Department of Corrections.

_ The Defendant is hereby committed to the custody of the Sheriff of St. Lucie County Florida.

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

To Be Imprisoned (check one; unmarked sections are inapplicable.):

_

_

For a term of Natural Life.

For a tenn of Natural Life with a 25 year mandatory minimum

X For n term of 52.00 MONTH(S}

The SENTENCE IS SUSPENDED for a period of _ _- subject to conditions set forth in this Order.

If 'split' sentence complete the

appropriate Paragraph.

_

Followed by a period of _ _ on Community Control under the supervision of the

Department of Corrections according to the terms and conditions of supervision as set forth

in a ·separate order.

_

Followed by a period of _ _ probation under the supervision of the Department

of Corrections according to the terms and conditions of supervision as set forth in a

separate order.

_

However, after serving a period of imprisonment in PRISON, the balance of the

sentence will be suspended and the Defendant will be on Probation/Community Control

under the supervision of the Department of Corrections according to the terms and

conditions of Probation/Community Control as 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.

Page 3 of 5

167

23

JOSHUA TERREL BROWN vs. STATE OF FLORIDA

LT. CASE NO: 2021CF001955 A

HT. CASE NO: 22-1488

562021CF00195SAXXXXX

SPECIAL PROVISIONS

(As to Count 2)

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

Mandatory/ Minimum Provisions:

Firearm

It is further ordered that th e _ _ _ minimum imprisonment provisions of section 775 .087, Florida

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

Drug Trafficking

It is further ordered that the _ _ _ minimum imprisonment provisions of scction -893.135, Florida Statutes, is

hereby imposed for the sentence specified in this court, and that the Defendant pay a fine of$__, pursuant to section

893.135, Florida Statutes, plus $_as a 5% surcharge.

Law·E11forcement

It is fllnhc:r ordered that the: _ _ _ minimum mlllldatocy imprisonment provision of section 784.07, Florida

Co,itrolled Subsumce

Wuhin J,000Feel ofSchool

It is further ordered that the 3 year minimwn imprisonment provision ofsection 893.13(1 )(c), Florida

Statutes, is hereby imposed for the sentence in this counL

Habitual Felony Offender

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

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

term in accordance with the provisions ofsectioo 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 Felony

The Defendant is adjudicated a habitual violent.felony offender and has ·becn sentenced to an

extended tenn in accordance with the provisions of sections 775.084(4)(b), Florida Statutes. A minimum

term of _ _ _ year(s) must be served prior to release. The requisite findings of the Court nre set forth

in a separate order as stated on the record in open court.

Violent Career Criminal

The Defendant is ·adjudicatcd a violent career criminal and has been sentenced lo an extended term in

accordance with the provisions of section 775.084(4){d), Florida Statutes, A minimum of _ _ _ _

prior to release. The requisite findings of the Court as set forth in a separate order or stated on

the record in open court. (For crimes committed on or after May 24, 1997.)

must be served

Capital Offe11se

It is further that the Defendant shall serve no less than 25 years in accordance with provisions of section

775.082(1 ), Florida Statutes. {For first degree murder committed prior to May 25, 1994, and for any other capital

felony committed prior to October I, 1995.)

Prmm Releasee

Defendant is adjudged a prison rcleasee rcoffcndcr in accordance with the provision of section 775.082(9), FL Statutes.

Sexual Predator

Defendant is adjudged n sexual predator in accordance with provision of section 775.21, Florida Statutes.

Other Provisions:

X It Is further ordered that the Defendant shall be allowed a total of ZERO DAYS

as credit for time

Jail Credit

Incarcerated before Imposition of this sentence.

Credit for Time Served

in Resentencing After

Violation ofProbaJii:m or

Commwdty Control

as a violator following Release from prison to the date of rescntcncing. The,Oepartmcnt of Corrections

It is further ordered that the Defendant be allowed _ _ days time served between date of arrest

shall apply original jail time credit and shall compute and apply credit for time served and unforfcited gain time

previously awarded on case/ count _ _ _ _ (Offenses committed before October I, 1989)

It is further ordered that the ·Dcfendant Ix: allowed _ _ days time served.between date or.arrest as a violator

following releasc'from prison to the date of rcscntencing. The Dcpn.rtment of Correction shall apply original jail time

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

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

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

under section 948 .06(6), Florida Statutes.

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

_

to forfeiture by tbe Department of Corrections under section 944.28(1 )), Florida Statutes.

time served between date of arrest as a violator following

It is further ordered that the Defendant be allowed

release from prison to the date of resentcncing. The Department of Corrections shall apply original jail lime credit and

shall compute and apply credit for time sCJVed only pur.;uant to section 921.0017, Florida Statutes, on case/ count .

(Offenses committed on or after January I, 1994)

Consecutive/ Concurrent

As Tb Other ComJ/s

X

It Is further ordered fhat the sentence Imposed for this count shall run CONSECUj'JVE w[lh lhe sentence set

- - forth ID co11nt 1 oftflls case

Page 4 of5

168

24

JOSHUA TERREL BROWN vs. STATE OF FLORIDA

LT. CASE NO: 2021CF001955 A

HT. CASE NO: 22-1488

Violation of Probation, Previously Adjudged Guilty

Violation of Community Control, Previously Adjudged Guilty

Resentenced

Modified

Amended

Mitigated

Corrected

Case Number: 562021CF001955AXXXXX

Defendant: JOSHUA TERREL BROWN AKA JOSHUA T BROWN

Other provisions, continued:

Consecutive/Concurrent

To Other Convictions

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

in this order will run

(check one) LJ Consecutive To LJ Concurrent To

Concurrent with the following:

(check one)

LJ any active sentence being served.

LJ specific sentences:

In the event the above sentence is to the Department of Corrections, the Sheriff of St. Lucie County, Florida, is hereby

ordered and directed to deliver the defendant to the Department of Corrections and the facility designated by the

department together with a copy of this Judgment and Sentence and any other documents 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 the assistance of counsel in taking the appeal

at the expense of the state upon a showing of indigency.

In imposing the above sentence, the Court further recommends / orders

DONE AND ORDERED in Open Court at St. Lucie County, Florida, on May, 23.2022.

Nunc Pro Tune to:

[µUJ

Circuit/County Judge WILLIAM L ROBY

Page 5 of 5

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25