author: Makar, J. Jay, J., concurring in part and dissenting in part.

text:
    Reginald Lee BOOKER, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-3558
    District Court of Appeal of Florida, First District.
    April 18, 2018
    Andy Thomas, Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Makar, J.

Reginald Lee Booker, III, pled no contest to fleeing or attempting to elude a law enforcement officer and driving without a valid driver's license. His scoresheet reflected 20.4 sentence points, which by statute required that he be sentenced to a "nonstate prison sanction," which "is 'understood to mean probation, community control, or imprisonment in the county jail for up to one year.' " Reed v. State , 192 So.3d 641, 645 (Fla. 2d DCA 2016) (citing Jones v. State , 71 So.3d 173, 175 (Fla. 1st DCA 2011) ). Section 775.082(10), Florida Statues (2018), says that "[i]f the total sentence points ... are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction." (Emphasis added). Because a "nonstate prison sanction" is mandated, Booker's maximum incarceration would be eleven months and thirty days in a county jail (i.e., up to a year or "11/30" in sentencing parlance) based upon his plea to the charges.

At the State's request, however, the trial judge increased Booker's punishment beyond the nonstate maximum, sentencing him to a four-year state prison term, based on his independent factual findings that Booker could present a danger to the public if subject only to a nonstate prison sanction. The authority for doing so-and the subject of this appeal-is the last sentence of section 775.082(10), which says: "However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section."

The State acknowledged that it was "seeking an upward departure" from the maximum nonstate sanction the statute permitted. At the sentencing hearing, the State sought "prison time" due to Booker's "danger to the community," or, if the trial judge was "not willing to go beyond the guidelines," then "at least 11/30 county jail [time] followed by [a] significant amount of community control and probation." In response, the trial judge queried that "the State is actually seeking an upward departure is what you are telling me," to which the State responded: "Yes."

Booker's motion to correct his sentence claimed that the enhancement of his sentence was unconstitutional under the Sixth Amendment because the trial judge, rather than a jury, made the factual findings that were necessary to increase his punishment beyond the statutory maximum of a nonstate prison sanction to a state prison sanction, i.e., the four-year state prison term he received. See Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ; Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This Court recently addressed the question of whether section 775.082(10) is facially unconstitutional in violation of the jury trial right discussed in Apprendi and Blakely . Woods v. State , 214 So.3d 803, 805 (Fla. 1st DCA 2017) (en banc), review dismissed , SC17-955, 2017 WL 2264740 (Fla. May 24, 2017). We couldn't reach a consensus on that question, leaving for another day the question of whether the statute may be unconstitutional as applied in a specific case, which we now address.

Background

The Florida Legislature, faced with budgetary challenges in 2009, sought to reduce the burden of prison expense on the Department of Corrections by mandating that specified, non-violent offenders, who score under twenty-two points on their criminal scoresheet, be sentenced to nonstate sanctions-thereby shifting incarceration of these offenders to county jails for a maximum of up to one year. See Woods , 214 So.3d at 805 (citing Ch. 2009-63, § 1, Laws of Fla.; Fla. S. Comm. on Crim. & Civil Just. Approp., CS for SB 1722 (2009) Staff Analysis 2-3, 7 (April 6, 2009) ). It added section 775.082(10), consisting of the following two sentences:

(10) If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section .

§ 775.082(10), Fla. Stat. (emphasis added). The last sentence, which was used to enhance Booker's sentence to a state prison sanction, is the focus of the Sixth Amendment claim at issue.

Combined with the Fourteenth Amendment's prohibition that liberty may not be taken without "due process of law," the Sixth Amendment's declaration that "the accused shall enjoy the right to a speedy and public trial, by an impartial jury" in "all criminal prosecutions" "indisputably entitle[s] a criminal defendant to 'a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.' " Apprendi , 530 U.S. at 476-77, 120 S.Ct. 2348 (quoting United States v. Gaudin , 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) ). The Supreme Court, in extolling the centuries-old foundation of the jury trial right, explained that:

"[T]o guard against a spirit of oppression and tyranny on the part of rulers," and "as the great bulwark of [our] civil and political liberties," 2 J. Story, Commentaries on the Constitution of the United States 540-541 (4th ed. 1873), trial by jury has been understood to require that "the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbours...."

Apprendi , 530 U.S. at 477, 120 S.Ct. 2348 (quoting Gaudin , 515 U.S. at 510-11, 115 S.Ct. 2310 ) (citing 4 W. Blackstone, Commentaries on the Laws of England 343 (1769) ). It further explained why the "beyond a reasonable doubt" standard applies.

Equally well founded is the companion right to have the jury verdict based on proof beyond a reasonable doubt.... " 'It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.' " ... [R]eliance on the "reasonable doubt" standard among common-law jurisdictions " 'reflect[s] a profound judgment about the way in which law should be enforced and justice administered.' "

Apprendi , 530 U.S. at 478, 120 S.Ct. 2348 (citations omitted). Given the "historic link" between the necessity of a jury's verdict beyond a reasonable doubt and the sentence imposed, and the "consistent limitation on judges' discretion to operate within the limits of the legal penalties provided," the Supreme Court has noted the "novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone ." Id. at 482-83, 120 S.Ct. 2348 (emphasis added).

The central point of Apprendi and Blakely is that any fact in a judicial proceeding-excepting the fact of a prior conviction-that is used to increase a penalty for a crime beyond the relevant statutory maximum is unconstitutional because a jury, and not a judge, is entrusted with that responsibility under the Sixth Amendment. See Apprendi , 530 U.S. at 490, 120 S.Ct. 2348 ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."); see also Blakely , 542 U.S. at 304, 124 S.Ct. 2531 ("When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment,' ... and the judge exceeds his proper authority.") (citation omitted). When faced with upward departures in sentencing, the Florida Supreme Court has held likewise. See Plott v. State , 148 So.3d 90, 95 (Fla. 2014) ("[W]e hold that upward departure sentences that are unconstitutionally enhanced in violation of Apprendi and Blakely patently fail to comport with constitutional limitations, and consequently, the sentences are illegal under rule 3.800(a).").

Application of Section 775.082(10), Florida Statutes

Given the momentous role of the jury in our country's legal history, and the clarity of the stated principle in Apprendi and Blakely that judicial fact-finding is no substitute for jury factfinding if used for sentencing beyond a relevant statutory maximum, we conclude that the last sentence of subsection (10) violates this principle as applied to Booker. It empowered precisely what Apprendi and Blakely condemn: giving a trial judge the power to make factual findings independent of the jury (here, about future public dangerousness) that are used to increase an offender's sentence beyond the maximum allowable by the "facts reflected in the jury verdict alone." Blakely , 542 U.S. at 303, 124 S.Ct. 2531. As applied to Booker, the result is that, rather than be subject to a maximum of up to a year in a county jail, he is sent to state prison for four years-based solely on factual findings as to his potential for future dangerousness upon which only a judge, not a jury, has passed.

The Supreme Court's unequivocal language in Blakely drew a clear-cut line as to what constitutes the relevant statutory maximum sentence for Sixth Amendment purposes: it is the maximum sentence that could be imposed "solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. " Id. The Supreme Court italicized this language to make an enduring point: the statutory maximum sentence is determined solely upon jury-verdict facts (or those admitted to by the offender).

For instance, in Blakely , the offender "was sentenced to more than three years above the 53-month statutory maximum of the standard range because he had acted with 'deliberate cruelty.' " Id. This was done even though the "facts supporting that finding were neither admitted by petitioner nor found by a jury." Id . In rejecting the State's argument that a higher statutory maximum was appropriate, the Supreme Court said:

Our precedents make clear, however, that the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant .... In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings . When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts "which the law makes essential to the punishment," ... and the judge exceeds his proper authority.

Id. at 303-04, 124 S.Ct. 2531 (citations omitted; italics in original, bold added). What's "relevant" for Sixth Amendment purposes is not the maximum sentence a statute may authorize with additional factfinding; it is what may be imposed without the judge making her own findings.

Applying the bolded language of Blakely to this case, "the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts [i.e., five years of state imprisonment based on additional judicial findings of potential future dangerousness], but the maximum he may impose without any additional findings [i.e., up to one year in county jail]." A jury verdict alone does not authorize an enhancement of an offender's sentence beyond a nonstate sanction. That's because subsection (10) requires additional judge-made fact-finding about an offender's potential future dangerousness-upon which no jury ever passes-to make this enhancement. Stated differently, the only path to imposition of a state prison sanction that exceeds the statutory nonstate maximum is via judicial fact-finding with no jury involvement or input in the process. To make this point, imagine if the trial judge sentenced Booker to four years in prison without making the additional factual findings of potential future dangerousness; he'd be reversed. Standing alone, a jury verdict-or an offender's plea-authorizes at most a nonstate sanction capped at up to one year in county jail, which is the "relevant" statutory maximum for Apprendi purposes.

The view that a jury's verdict alone-no matter the elements of the charged offense-authorizes a state prison sentence up to a maximum of five years overlooks the clear language of Supreme Court precedent, and is based on two misconceptions. First, the current statutory framework must be analyzed as it is, not as it existed prior to subsection (10)'s addition. Viewed this way, a jury verdict alone would have permitted up to a five-year sentence under the statutory framework that existed before subsection (10) was added in 2009. The penalty for a third-degree felony was capped at a state prison sanction of five years, which was the relevant "statutory maximum" for Apprendi purposes at that time . Subsection (10) markedly changed the status quo, however, by shifting incarcerative sentences of this broad category of felons to county jails, mandating that a trial judge "must sentence the offender to a nonstate prison sanction." A jury's verdict in the era before enactment of subsection (10) may have authorized up to five years in prison, but that same verdict post-enactment does not, without additional fact-finding by trial judges as to offenders' future dangerousness.

Second, the Legislature could have worded subsection (10) in a way that authorized a jury's verdict to permit a statutory maximum for Apprendi purposes of five years of imprisonment, but it would also have to concurrently allow for downward departures to lesser nonstate sanctions for non-dangerous offenders via additional judicial fact-finding to achieve its policy goals. It did not do so, for good reason, as the following illustration shows:

If the total sentence points are 22 points or fewer, the court must sentence the offender to a state sanction up to five years. However, if the court makes written findings that a nonstate prison sanction would not present a danger to the public, the court may sentence the offender to a nonstate prison sanction pursuant to this section.

Under this type of statutory language, a jury verdict would authorize a state prison sentence up to five years, making it the relevant statutory maximum for Apprendi purposes. But rather than hold sporadic hearings where trial judges enhance the sentences of low-point offenders deemed to be potentially dangerous as currently occurs, this statute would require hundreds, if not thousands, of judicial fact-finding hearings annually to ferret out those offenders deemed to be non-dangerous to be sentenced to nonstate prison sanctions, creating a disruptive and expensive sentencing morass.

Put simply, section 775.082(10)'s enactment shifted the sentencing paradigm markedly, and in the process eliminated the ability of a jury verdict alone to impose a state prison sanction. Protection of the jury trial right does not hamstring the Legislature's ability to achieve its policy goals, however. For example, if section 775.082(10) required a jury-rather than a judge-to make factual findings about an offender's potential for future dangerousness, the check on personal liberty that the Sixth Amendment's right to a jury trial provides would be retained. A simple legislative fix might be to amend subsection (10) to say: "... if thecourt a jury makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section." Courts, except by rewriting a clearly-worded statute, cannot achieve this policy result.

As to Booker, the Sixth Amendment breach becomes evident because subsection (10) permitted the trial judge to "inflict[ ] punishment that the jury's verdict alone does not allow" via factual findings on future dangerousness that are not "essential to the punishment" of the underlying offense. Blakely , 542 U.S. at 296, 124 S.Ct. 2531. What happened to Booker is no different from what happened in Apprendi , where the defendant's sentence was enhanced after an evidentiary hearing and based solely on independent judicial factfinding under a preponderance of the evidence standard that Apprendi acted with racial bias. 530 U.S. at 471, 120 S.Ct. 2348. Similarly, Blakely's sentence was enhanced based on judicial fact-finding that he acted with "deliberate cruelty" in the commission of his crime. Blakely , 542 U.S. at 298, 124 S.Ct. 2531. That Booker's sentence was enhanced on a judicial finding of future dangerousness-rather than on racial bias or as being deliberate cruelty as in Apprendi and Blakely , respectively-matters not because in each situation the punishment inflicted is based on facts a jury's verdict alone would not allow. Imagine if section 775.082(10) were revised to say the following:

If the total sentence points are 22 points or fewer, the court must sentence the offender to probation only. However, if the court makes written findings that: (a) the offender acted with racial bias; (b) the act committed was done with deliberate cruelty; or (c) probation could present a danger to the public, the court may sentence the offender to a state correctional facility for up to five years.

Would there be any doubt it violates the Sixth Amendment? Subsections (a) and (b) violate Apprendi and Blakely , respectively, so why wouldn't subsection (c)? Blakely answered that question, stating:

Whether the judge's authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi ), one of several specified facts (as in Ring [v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) ] ), or any aggravating fact (as here), it remains the case that the jury's verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact .

Blakely , 542 U.S. at 305, 124 S.Ct. 2531 (emphasis added). As to Booker, the trial judge acquired the authority to enhance his sentence only upon making additional factual findings required by subsection (10), making clear that a sentence enhancement for potential public danger under (c) is the same type of enhancement of a sentence that Apprendi / Blakely condemn as constitutionally unacceptable.

Moreover, the claim that section 775.082(10) is a so-called "mitigation statute" that neuters the force of Apprendi and Blakely is not well-taken for numerous reasons. First of all, nothing in the statute "mitigates" a defendant's sentence; instead, it creates a process solely and exclusively for enhancing a defendant's sentence from a mandatory nonstate sanction to a state sanction based exclusively on judge-made factual findings as to future dangerousness. It is a one-way ratchet, always upwards, with no jury involvement whatsoever.

Indeed, the State, at sentencing, sought what it agreed was an "upward departure" in this case, which is how our supreme court characterizes subsection (10). Bryant v. State , 148 So.3d 1251, 1258 (Fla. 2014) ("The practice of upward departure sentences was reinstated in 2009, when the Legislature enacted subsection (10) of section 775.082, Florida Statutes...."). It bears emphasis that Florida's Criminal Punishment Code, enacted in the late 1990s:

has, in almost every aspect, eliminated the "upward departure" of the former determinate guidelines sentencing schemes and replaced it with an indeterminate sentencing scheme in which the judge is free to sentence up to the statutory maximum without having to provide written reasons for doing so.... A statutory exception to indeterminate sentencing under the [Code] is found in section 775.082(10), Fla. Stat.

See 16 Fla. Prac., Sentencing § 6:48 (2017-2018 ed.); see generally Ch. 97-194, Laws of Florida (effective October 1, 1998). The Code, with subsection (10) as the only "upward departure" exception, provides for indeterminate sentencing up to statutory maximums along with mitigation or downward departures under specified circumstance, an example being the "prison diversion program" by which "a court may divert from the state correctional system an offender who would otherwise be sentenced to a state facility by sentencing the offender to a nonstate prison sanction as provided [therein]." § 921.00241(2), Fla. Stat. (2018). In contrast to subsection (10), this type of sentencing statute, which allows diversion or reduction of a defendant's sentence based on judicial fact-finding as to specified ameliorative factors, avoids a Sixth Amendment problem because it works in the opposite direction of what Apprendi and Blakely condemn; it mitigates versus enhances a sentence based on facts not passed upon by a jury.

The Sixth Amendment protects a defendant from an enhanced sentence, not a reduced one, when based solely on additional judicial factfinding.

In addition, the Supreme Court has already rejected arguments that section 775.082(10) is merely a "mitigation" statute with no Sixth Amendment implications. One argument is "that the jury need only find whatever facts the legislature chooses to label elements of the crime, and that those it labels sentencing factors-no matter how much they may increase the punishment-may be found by the judge." Blakely , 542 U.S. at 306, 124 S.Ct. 2531. Applied here, the parallel argument is that a jury verdict, no matter what the elements of the underlying crime may be, thereby authorizes an increased sentence based on an offender's potential future dangerousness as determined solely by a judge under section 775.082(10). Concluding this type of argument leads to an "absurd result," the Court gave the example "that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it-or of making an illegal lane change while fleeing the death scene." Id.

The analog as applied to Booker is that the Legislature, by making an offender's potential future dangerousness a sentencing factor solely for the judge's determination, has removed the jury entirely from the fact-finding process upon which an enhanced sentence is based. Under these circumstances, where the jury is sidelined and judicial power garrisoned, the Court concluded that the "jury could not function as circuitbreaker in the State's machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish." Id. at 306-07, 124 S.Ct. 2531. This point is reinforced here: the State's invocation of subsection (10) triggers judge-only fact-finding without jury involvement even though far more serious punishment is to be inflicted. It is precisely in these circumstances, where a potentially lengthy judicial sentencing enhancement is unmoored from a jury's verdict, that the Sixth Amendment must intercede.

Another argument is that legislatures may "establish legally essential sentencing factors within limits -limits crossed when, perhaps, the sentencing factor is a 'tail which wags the dog of the substantive offense.' ... What this means in operation is that the law must not go too far -it must not exceed the judicial estimation of the proper role of the judge." Id. at 307, 124 S.Ct. 2531 (citation omitted). Rejecting this "too far" standard as overly subjective, manipulable, and unmanageable, the Supreme Court concluded that Apprendi 's "bright line rule" applied because it was implausible "that the Framers would have left definition of the scope of jury power up to judges' intuitive sense of how far is too far. We think that claim not plausible at all, because the very reason the Framers put a jury-trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the jury." Id. at 308, 124 S.Ct. 2531.

Applied here, section 775.082(10)'s substitution of the judge-and the elimination of the jury-as the fact-finder for enhanced sentencing based on future potential dangerousness-violates Apprendi 's bright line rule. See Apprendi , 530 U.S. at 490, 120 S.Ct. 2348 ("[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed."). The Legislature intended and clearly stated that every eligible offender with twenty-two sentence points or less faces only the lesser panoply of nonstate punishments, capped at up to one year in county jail. Trial judges have broad discretion to sentence offenders in this category to probation, community control, or up to a year in the county jail. Id. at 481, 120 S.Ct. 2348 (noting that "judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case"). For upward enhancements, however, the Legislature clearly stated that only the "court"-not the jury-is authorized to make "written findings that a nonstate prison sanction could present a danger to the public," thereby precluding the jury's traditional role. Only the Legislature, not this Court, has the power to rewrite the statute to conform to the Sixth Amendment.

The use of scoresheets-whose assessment of points draw upon facts found by a jury's verdict, are based on the fact of prior convictions, or are admitted by the offender-complies with Apprendi and Blakely . Id. (stating "that nothing in this [Nation's common law] history suggests that it is impermissible for judges to exercise discretion-taking into consideration various factors relating both to offense and offender-in imposing a judgment within the range prescribed by statute"); see Alleyne v. United States , 570 U.S. 99, 116, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ("Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment."); Fleming v. State , 139 So.3d 902, 903 (Fla. 1st DCA 2006) (assessment of points for "severe victim injury" did not violate Apprendi because jury found defendant guilty of aggravated battery that caused great bodily harm, permanent disability, or permanent disfigurement), approved , 61 So.3d 399 (Fla. 2011) ; see also Moss v. Sec'y, Dep't of Corr. , No. 8:10-cv-1919-T-17TBM, 2011 WL 1575384, at *1, *4 (M.D. Fla. Apr. 26, 2011) (noting that "the jury's verdict did not lack the necessary finding to support the scoring of severe injury points on the scoresheet, and neither Apprendi nor Blakely apply"). The Second District made this point in Behl v. State :

Under the Supreme Court's interpretation of the Sixth Amendment, victim injury thus can be used as a sentencing factor only if its existence is determined by the jury or admitted by the defendant. Accordingly, a guidelines sentence imposed at a level that is only permissible because victim injury points were assessed will exceed the "statutory maximum" for Apprendi purposes if the victim injury points were not based on a determination made by the jury or on an admission of the defendant.

898 So.2d 217, 221 (Fla. 2d DCA 2005) (reversing sentence under Apprendi where scoresheet reflected greater points assigned for sexual penetration when only sexual contact could be established by jury's verdict). As such, the use of scoresheets (that must comply with Apprendi ) to set a statutory maximum does nothing to undermine Apprendi 's holding that enhancing a sentence via additional judicial fact-finding violates the Sixth Amendment. It would be an odd and incongruous result otherwise.

That is because Apprendi and Blakely protect the Sixth Amendment's right of jury trial, which:

is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.... Apprendi carries out this design by ensuring that the judge's authority to sentence derives wholly from the jury's verdict. Without that restriction, the jury would not exercise the control that the Framers intended.

Blakely , 542 U.S. at 305-06, 124 S.Ct. 2531. The last sentence in subsection (10) is inconsistent with this constitutional design, displacing the jury's fundamental role and replacing it with judicial power unyoked from jury control. The jury's role as an equilibrating force between the power of the State and the accused is at its apex when more serious punishments are in play. Viewed in this light, subsection (10) exacerbates an acute Sixth Amendment problem: the jury is relieved of its traditional fact-finding role, but only when enhanced sentences are to be meted out. As applied to Booker, whose punishment was increased exponentially based on additional judicial findings (not even beyond a reasonable doubt), the statute excised the jury's "control in the judiciary" and negated the principle that "the judge's authority to sentence derives wholly from the jury verdict."

That Apprendi excludes from jury fact-finding the "fact of a prior conviction" does not save subsection (10)'s constitutionality as applied to Booker. First of all, the "last sentence of subsection (10) is not a violent career criminal statute, a habitual offender statute, or the like that excepts it from Apprendi ; instead, it establishes a future dangerousness test based on additional factfinding by a judge." Woods , 214 So.3d at 808 (Makar, J., concurring in affirmance).

It is one thing to enlarge a penalty where Congress or the State of Florida has made a prior conviction a central feature of a crime; it is another to allow a trial judge to engage in wide-ranging fact-finding-constitutionally entrusted to a jury-about an offender's potential for being a "danger to the public" to support an enhanced penalty. And it is yet another to allow prior convictions, which already underlie the arithmetic determination of points for sentencing scoresheet purposes in Florida, to be used duplicatively to increase a sentence without jury involvement.

Id. at 809. Had the Legislature decided that the punishment for an offender like Booker could be increased based solely on the "fact of a prior conviction," it could have done so via a repeat/habitual offender or career criminal type of statute that Apprendi and Blakely allow. See, e.g. , Almendarez-Torres v. United States , 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Prior convictions are established facts and thereby objective grounds for these types of legislatively-enhanced sentences that need not be based on independent fact-finding by a jury. Legislatively-enhanced punishment for a repeat or habitual offender based on the historical fact of the offender's past convictions differs markedly from a judge-entirely independent of the jury-extrapolating beyond prior convictions and prognosticating about an offender's future dangerousness ; doing so is a step beyond what Apprendi permits. See Apprendi , 530 U.S. at 496, 120 S.Ct. 2348 (noting that "there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof").

Second, subsection (10) places no limits on the evidence a trial judge may consider in making the factual finding that an offender may pose a "danger to the public." Many factors other than the fact of prior convictions are germane in determining future dangerousness.

Adjudicating whether an offender "could present a danger to the public" absent a nonstate sanction involves a multitude of factors, only one of which is whether the offender has a criminal record for which a prior conviction is but a data point. Reed , 192 So.3d at 646 (providing a non-exhaustive list of factors including criminal history, victim injury, and propensity for one to commit future crimes). Faced with substantial enhancement of his sentence, no defendant (through effective counsel) would limit the evidentiary review required under subsection (10) to only his prior convictions without presenting other evidence in mitigation.

Woods , 214 So.3d at 808-09 (Makar, J., concurring in affirmance) (footnote omitted). Whether an offender poses a "danger to the public" is a complex factual determination that far exceeds the type of legislatively-defined sentencing systems that increase punishment solely on the fact of prior criminal convictions.

Here, the trial judge had no statutory authority to elevate Booker's sentence to state prison simply because Booker had prior convictions. And he considered matters other than prior convictions as well, such as whether Booker was working, lacked a driver's license, failed to show up for his trial date, wore camouflage overalls to court, and so on, in assessing his future dangerousness. And the sole witness, the investigator from whom Booker had fled, merely recounted the details of Booker eluding her in a motor vehicle, which are only the facts inherent in the crime. Reed , 192 So.3d at 647 (stating that "a sentencing court's finding of an offender's danger to the public must be more than the recitation of acts that are inherent to the crimes for which the defendant was convicted").

As to Booker, the application of subsection (10) in this case went beyond the fact of his prior convictions and resulted in judicial fact-finding-entirely independent of the jury-to impose a sanction that exceeded the relevant maximum sentence for Apprendi purposes. Because the trial judge's factual findings-and thereby Booker's enhanced sentence-were neither based on a jury finding that he poses a "danger to the public" nor limited to only the fact that Booker had prior convictions, the second sentence of subsection (10) is unconstitutional under the Sixth Amendment as applied to Booker.

Harmless Error/Remedy

Two questions remain: harmless error and remedy. The harmless error question asks if the constitutional error in using judge-made findings rather than jury-made findings is harmless beyond a reasonable doubt as applied to Booker's sentencing. If so, our inquiry ends; if not, we turn to the remedy question, which asks, given that the second sentence in subsection (10) is unconstitutional as applied to Booker, what remedy would the Legislature have wanted in resentencing Booker.

As to the first question, both the Supreme Court and our supreme court have held that Apprendi / Blakely errors can be harmless. See Neder v. United States , 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (noting that the "omission of an element [in a jury instruction] is an error that is subject to harmless-error analysis"); Plott , 148 So.3d at 95 ("A claim of error under Apprendi and Blakely is subject to a harmless error analysis."); Galindez v. State , 955 So.2d 517, 524 (Fla. 2007) ("[W]e hold that harmless error analysis applies to Apprendi and Blakely error."); see also Washington v. Recuenco , 548 U.S. 212, 220, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (holding that Blakely sentencing factor error not structural and thereby subject to harmless error analysis).

The harmless error test announced in Neder was adopted by our supreme court in Galindez : "Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?" Neder , 527 U.S. at 18, 119 S.Ct. 1827.

A reviewing court making this harmless-error inquiry does not, as Justice Traynor put it, "become in effect a second jury to determine whether the defendant is guilty." Rather a court, in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

Id. at 19, 119 S.Ct. 1827 (citations omitted). Neder involved the omission of an element of a crime, but its analysis has been extended to the sentencing context. Galindez , 955 So.2d at 523 ("[F]or purposes of our harmless error analysis the issue is whether the failure to have the jury make the victim injury finding ... contributed to the conviction or sentence .") (emphasis added) (citing Recuenco , 548 U.S. at 220, 126 S.Ct. 2546 ("[W]e have treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt.") ). In Galindez , for example, the supreme court concluded that the record evidence demonstrated beyond a reasonable doubt that a rational jury (versus the trial judge who imposed additional points towards sentencing) would conclude that the act of sexual penetration occurred, rendering the Apprendi error harmless. 955 So.2d at 523.

As applied to Booker's sentencing in this case, the harmless error test requires that we ask whether there is record evidence "that could rationally lead" a jury to conclude-contrary to the trial court-that Booker did not present a danger to the public if he were given a nonstate prison sanction, such as up to a year in county jail plus probation or community control thereafter. If a "reasonable possibility" exists that the error affected the sentencing, such that we're unable to conclude "beyond a reasonable doubt that the error did not affect" sentencing, the "error is by definition harmful." State v. DiGuilio , 491 So.2d 1129, 1139 (Fla. 1986).

Booker is no model citizen, having a significant ongoing criminal record that dates to his youth, and enough sentence points to flirt with the statutory cutoff of 22 points. The nature of Booker's past offenses, his lack of deportment, and his straddling the statutory cutoff make him a less sympathetic offender compared to the homeless mom in Woods , who had 8.3 sentence points and was stealing food to feed her kids. Nonetheless, the evidence cannot be said to be so compelling that a rational jury would necessarily conclude that Booker presented a danger to the public if subject to only a nonstate prison sanction of up to one year in the county jail coupled with significant community control and probation, which the State sought as an alternative to a state prison sanction. A jury could conclude, as Booker's attorney argued, that his client's offense-fleeing and eluding police officers-coupled with his deportment and record, were insufficient to demonstrate that he posed a continuing threat of danger to the community that justified state prison time. A jury might conclude that a year in county jail followed by significantly lengthy post-release restrictions would provide adequate protection to the public, relieving the State of the financial burden of incarcerating Booker for that time period. Perhaps most juries would find Booker posed a public danger that justified state prison, but the question is whether any rational one might not and deem county jail and lengthy probation/community control enough. Because it is not "clear beyond a reasonable doubt" that rational juries would always conclude that Booker deserved state prison rather than a nonstate prison sanction, the constitutional error is not harmless.

The next question is what resentencing remedy applies to Booker. Under the circumstances, we ordinarily would invalidate Booker's sentence and simply remand for resentencing under that part of the statute that remains valid, which would be the imposition of a nonstate prison sanction under the authority of the first sentence of subsection (10). But, as the Supreme Court's opinion in Booker demonstrates, the remedy in an as-applied constitutional challenge does not necessarily result in this default remedy, i.e., where what remains of a statute is rotely applied.

Instead, the Court in Booker was guided in its remedial determination by legislative intent, which focused on the determination of "what 'Congress would have intended' in light of the Court's constitutional holding." United States v. Booker , 543 U.S. 220, 246, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In other words, "[w]ould Congress still have passed" the valid sections "had it known" about the constitutional invalidity of the other portions of the statute?" Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 767, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (plurality opinion) (internal quotation marks omitted). Given the constitutional violation in Booker , the Court was left with determining which of the competing "remedial approaches is the more compatible with the Legislature's intent as embodied in the 1984 Sentencing Act." 543 U.S. at 246, 125 S.Ct. 738.

This question sharply divided the Court. The majority concluded that severing the mandatory nature of the sentencing guidelines eliminated the constitutional infirmity "while maintaining a strong connection between the sentence imposed and the offender's real conduct-a connection important to the increased uniformity of sentencing that Congress intended its Guidelines system to achieve." Id. Rejected was the dissenters' remedy, which was to engraft a "jury trial" requirement into the sentencing system, thereby "preventing the sentencing court from increasing a sentence on the basis of a fact that the jury did not find (or that the offender did not admit)." Id. Both views, of course, had merit, each envisioning the realization of legislative intent differently.

Similarly, we must decide which remedial option the Legislature would have wanted if the last sentence of subsection (10) were to be deemed unconstitutional in its application. The most apparent options are: (a) engrafting a "jury trial" requirement into the last sentence of subsection (10) and remanding for proceedings under a judicially-revised process; (b) construing "must" in the first sentence of subsection (10) to mean "may" thereby making compulsory nonstate prison sanctions non-compulsory and raising the relevant statutory maximum sentence to a state prison term; (c) remanding for resentencing under the first sentence of subsection (10) only; or (d) remanding for resentencing under the prior version of the sentencing statute, i.e., statutory revival.

We reject option (a) for much the same reasons that the Court in Booker did: no indication exists that the Legislature would have wanted a judicially-imposed jury trial requirement given the clear language of the statute. To do so would take away the role that the Legislature assigned solely to the judiciary and make more complex and costly a sentencing process it sought to streamline; it may have wanted an impassive judge rather than an impassioned jury deciding the public danger question. Plus, judicially rewriting a statute, thereby creating a different sentencing procedure, risks its own collateral consequences that create known and unforeseen burdens and uncertainties.

Option (b), which is akin to what the majority applied in Booker , has the virtue of solving the Apprendi problem by completely recasting subsection (10) as an entirely permissive sentencing statute, eliminating compelled nonstate prison sanctions and thereby raising the relevant statutory maximum for Apprendi purposes to a five-year maximum. But the principal purpose of the 2009 sentencing revision was to compel judges to sentence offenders to nonstate prison sanctions thereby shifting incarceration costs from the State's prison system to the counties. Were we to construe "must" to mean "may" (or even "should"), we would be turning the raison d'être of the statute into a mere wish or velleity, and thereby impeding the legislative plan. Like Booker , which excised a portion of the federal statute to achieve a constitutional result, transforming a clear word of compulsion ("must") into one of permission ("may") may achieve a similar constitutional result, but leaves the lingering question of whether the remedial impact comes close to what the Legislature envisioned. Because we are focused solely on the appropriate remedy in Booker's case, however, we are disinclined to take this momentous step if another less drastic remedy is available as to Booker.

Option (c) is problematic because it would retain only one leg of the two-legged sentencing structure in subsection (10), making the application of severance principles useful. Booker , 543 U.S. at 247, 125 S.Ct. 738 ("[S]ometimes severability questions (questions as to how, or whether, Congress would intend a statute to apply) can arise when a legislatively unforeseen constitutional problem requires modification of a statutory provision as applied in a significant number of instances."). The severance test states:

The rule is well established that the unconstitutionality of a portion of a statute will not necessarily condemn the entire act. When a part of a statute is declared unconstitutional the remainder of the act will be permitted to stand provided: (1) the unconstitutional provisions can be separated from the remaining valid provisions, (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void, (3) the good and the bad features are not so inseparable in substance that it can be said that the Legislature would have passed the one without the other and, (4) an act complete in itself remains after the invalid provisions are stricken.

Cramp v. Bd. of Pub. Instruction of Orange Cty. , 137 So.2d 828, 830 (Fla. 1962) ; see also Schmitt v. State , 590 So.2d 404, 415 (Fla. 1991) ("The Cramp test is a well established component of Florida law. It has been applied repeatedly in countless Florida cases.").

As applied here, factors (1), (2), and (4) are met: the first and second sentences of subsection (10) can be separated, the legislative purpose underlying the valid portion, i.e., the first sentence, can be accomplished without the second sentence; and the first sentence can stand as an "act complete in itself" without the second sentence.

We conclude, however, that "the good and the bad features are not so inseparable in substance that it can be said that the Legislature would have passed the one without the other." Cramp , 137 So.2d at 830.

The most reasonable conclusion is that the Legislature passed subsection (10) as a unified, inseparable whole and would not have wanted severance of its component parts. Subsection (10) reflects a compromise between two related goals: the fiscal goal of reducing state prison expenses and the public safety goal of ensuring that violent offenders be subject to state prison sentences if nonstate sanctions don't suffice. Striking only the last sentence, which would result in nonstate sentences for all offenders no matter their dangerousness, serves the former goal at the expense of the latter. No indication exists that the Legislature would have down-graded sentences within this classification (from up to five years to nonstate sentences) without the concurrent potential for violent offenders to be placed in the state prison system. Stated differently, it cannot be said that the Legislature would have passed only the first sentence in subsection (10) but not the last; the two are intertwined.

Woods , 214 So.3d at 810 (Makar, J., concurring in affirmance). Because we conclude that severance of subsection (10)'s sentences would run counter to legislative intent, we reject option (c), which would require that Booker be sentenced to a nonstate prison sanction only. The Legislature wanted a safeguard for truly violent offenders to be subject to possible state prison sentences, which this option would not offer.

Given that subsection (10)'s two sentences are inseparable, option (d) presents the remedy of statutory revival, which is to revert to the previous version of the sentencing statute, one that authorized trial judges to impose any term of imprisonment up to five years for the class of offenders to which subsection (10) applied. See § 775.082, Fla. Stat. (2008) ; see also Crim. and Civ. Just. Comm. SB 1722 Staff Analysis (discussing the then-current sentencing options); see generally B.H. v. State , 645 So.2d 987, 995 (Fla. 1994) ("Florida law has long held that, when the legislature approves unconstitutional statutory language and simultaneously repeals its predecessor, then the judicial act of striking the new statutory language automatically revives the predecessor unless it, too, would be unconstitutional.").

Like option (b), this remedy would subject Booker on remand to the full range of sentencing options, from a nonstate prison sanction to a state prison sanction, including the four-year prison sentence he received. Conceivably, he might be resentenced to the sentence he currently serves, but that likelihood is uncertain and is no reason to reject this option out of hand. Instead, the sentencing judge would take into account the full range of sentencing factors-not merely the one-dimensional "public danger" inquiry that was the sole focus here-in determining an appropriate sentence for Booker, which could result in a lower sentence or, theoretically, a higher one. The former is more likely given that Booker's current sentence is near the five-year maximum and a higher sentence might trigger vindictive sentencing principles. See Baxter v. State , 127 So.3d 726 (Fla. 1st DCA 2013).

Finally, reverting to the prior sentencing laws as the remedy in Booker's case does less systemic harm than would a potentially far-reaching judicial decree under option (a) (insert "jury" for "court") or option (b) (i.e., that "must" really means "may"). Judicially rewording the statute is inadvisable where a more modest remedy is available as applied to Booker and the small number of offenders similarly situated. That said, trial judges and attorneys prospectively will justifiably wonder what to do in cases where the State seeks to enhance a sentence under the last sentence of subsection (10). Of course, the vast swath of cases will continue to result in nonstate prison sanctions under the first sentence of subsection (10); but what if an offender is one for whom the Legislature intended potentially enhanced punishment? In those cases, the prosecutor could do as federal prosecutors did post- Apprendi , which is to allege facts by information or indictment necessary to establish the basis for an enhanced sentence. Booker , 543 U.S. at 277, 125 S.Ct. 738 (Stevens, J., dissenting in part) ("In many cases, prosecutors could avoid an Apprendi ... problem simply by alleging in the indictment the facts necessary to reach the chosen Guidelines sentence."). Doing so may provide the factual basis for a trial judge to pass upon whether a state prison sanction is appropriate. And, although defendants ordinarily have no reason to waive their jury trial right and subject themselves to an enhanced sentence under the second sentence in subsection (10), some might do so in this limited circumstance if they perceive that judicial fact-finding may be more beneficial than jury fact-finding on the facts alleged in the information nor indictment.

Conclusion

Because the last sentence of subsection (10) is unconstitutional as applied to Booker, and the violation is not harmless, the remedy is to invalidate Booker's sentence and remand for resentencing under the prior version of the sentencing statute. Unlike Woods, who had been released from prison after serving her full term and before relief could be granted, Woods , 214 So.3d at 804, Booker remains incarcerated and thereby has a basis for resentencing. His four-year sentence is beyond the relevant statutory maximum under subsection (10) making his current sentence invalid.

We recognize that some of our colleagues view subsection (10) as presenting no Sixth Amendment issue. Woods , 214 So.3d at 812 (Osterhaus, J., concurring in affirmance) (stating that subsection (10) "does not have an Apprendi -related, Sixth Amendment problem. Apprendi prohibits judicial findings that increase a criminal penalty beyond the maximum authorized by a jury's verdict. Here, § 775.082(10) does not allow courts to increase the punishment, but only affects the form of a defendant's penalty, whether it will include prison time or not."); id. at 819 (Winokur, J., concurring). And a majority on Fifth District panel recently upheld the constitutionality of section 775.082(10). Brown , 233 So.3d at 1262-66. For these reasons, and although mandatory jurisdiction in our supreme court exists in this case, art. V, § 3(b)(1), Fla. Const.; State v. Robinson , 873 So.2d 1205, 1207 (Fla. 2004), we certify conflict with Brown and Porter and certify the following question of great public importance:

WHETHER THE SECOND SENTENCE IN SUBSECTION (10) OF SECTION 775.082, FLORIDA STATUTES , WHICH AUTHORIZES A TRIAL JUDGE TO MAKE FACTUAL FINDINGS INDEPENDENT OF A JURY AS TO AN OFFENDER'S POTENTIAL " DANGER TO THE PUBLIC " AND TO IMPOSE A STATE PRISON SENTENCE THAT EXCEEDS THE MAXIMUM NONSTATE SANCTION OF UP TO ONE YEAR IN COUNTY JAIL VIOLATES THE SIXTH AMENDMENT AS APPLIED TO BOOKER ? IF THE ERROR IS NOT HARMLESS, WHAT REMEDY IS APPROPRIATE ?

REVERSED and REMANDED; CONFLICT CERTIFIED; QUESTION OF GREAT PUBLIC IMPORTANCE CERTIFIED .

Roberts, J., concurs; Jay, J., concurs in part and dissents in part with opinion.

Jay, J., concurring in part and dissenting in part.

I concur insofar as the majority concludes that the trial court's imposition of a prison sentence under section 775.082(10), Florida Statutes, is unconstitutional under Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). However, I would find that section 775.082(10) is unconstitutional on its face for the reasons outlined in Judge Makar's concurring opinion in Woods v. State , 214 So.3d 803, 805-09 (Fla. 1st DCA 2017).

Furthermore, I would conclude that the sentencing error in this case is harmless because the proper remedy is to sentence Booker under the prior version of the statute, which gives the trial court unfettered discretion to sentence Booker up to the statutory maximum of five years in prison. I find it inconceivable that the court would sentence Booker to a lesser sentence than four years in prison under a statute that gives it even greater discretion to impose a prison sentence. To the extent the court might consider a longer sentence, this could raise concerns about vindictive sentencing. Because I conclude beyond a reasonable doubt that the trial court would impose the same sentence at resentencing, I dissent to the extent the majority remands for a new sentencing hearing.

      We disagree with the Fifth District that a jury verdict by itself authorizes a state sanction of up to five years of imprisonment, which it deems the relevant statutory maximum for Apprendi purposes. Brown v. State , 233 So.3d 1262, 1264, 1265 (Fla. 5th DCA 2017) (Brown's "sentence [of three years in prison] was fully authorized by the jury verdict" and "the jury's verdict authorized the trial court to sentence Appellant to five years in state prison before the trial judge considered the additional findings contemplated by section 775.082(10)."). We cannot reconcile how a jury's finding of guilt on the petit theft charge in Brown authorized anything other than a nonstate sanction, future dangerousness not being an element of the jury's verdict. We also do not see how section 775.082(10) establishes a "formula" that contains "factors" that an offender must satisfy to avoid a state sanction. Offenders are not required to plead or qualify for a nonstate sanction; to the contrary, the Legislature has mandated that trial judges "must" impose one. And we cannot accept that section 775.082(10) as a whole "create[s] an entitlement to mandatory mitigation for those offenders who satisfy both criteria," i.e., less than 22 points and proof that they pose no public danger; thereby shifting the onus onto offenders to disprove to a trial judge's satisfaction that they pose a future danger to the public. Id. at 1264. Finally, we disagree that "Section 775.082(10)never increases an offender's sentence" and, instead, "reduces the sentence from a five-year maximum in state prison to a non-state sanction." Id. at 1265. We view it as operating in exactly the opposite way (as did the State in Booker's case).

      We disagree with the Fourth District's conclusion that subsection (10) "was a mandated mitigation of an otherwise available maximum penalty." Porter v. State , 110 So.3d 962, 963 (Fla. 4th DCA 2013) (emphasis added). The maximum penalty of five years, however, is not "available" without the additional judicial fact-finding required under that subsection. We also disagree that subsection (10) gives trial courts "discretion ... to adhere to the Criminal Punishment Code in lieu of the mandated mitigation[.]" Id. (emphasis added). Instead, we see subsection (10) as authorizing trial judges to depart from the mandatory nonstate prison sanctions that same subsection compels.

      In Butler v. State , 838 So.2d 554, 556 (Fla. 2003), the supreme court held that when the statutory maximum sentence as provided in section 775.082 is "exceeded by the lowest permissible sentence under the code," the latter "becomes the maximum sentence which the trial judge can impose." Unlike here, no judge-imposed upward departure was at issue in Butler , only the harmonizing of sections 775.082 and 921.0024(2), to determine the maximum sentence permissible.

      In addressing this point, the Court in Apprendi said:
      Finally, the principal dissent ignores the distinction the Court has often recognized ... between facts in aggravation of punishment and facts in mitigation.... If facts found by a jury support a guilty verdict of murder, the judge is authorized by that jury verdict to sentence the defendant to the maximum sentence provided by the murder statute. If the defendant can escape the statutory maximum by showing, for example, that he is a war veteran, then a judge that finds the fact of veteran status is neither exposing the defendant to a deprivation of liberty greater than that authorized by the verdict according to statute, nor is the judge imposing upon the defendant a greater stigma than that accompanying the jury verdict alone. Core concerns animating the jury and burden-of-proof requirements are thus absent from such a scheme.
      530 U.S. at 490 n.18, 120 S.Ct. 2348.

      We agree with the dissent in Brown , which was disinclined to rewrite the statute and, instead, would have applied it consistent with the Sixth Amendment principles expressed in Apprendi /Blakely and their progeny. See Brown , 233 So.3d at 1266-68 (Cohen, C.J., dissenting).

      We disagree with the Fifth District's view that a "jury does not determine an offender's score and will rarely make all of the other scoresheet findings." Brown , 233 So.3d at 1265. Rather, we read Supreme Court precedent and related Florida caselaw as establishing that jury findings must undergird the computation of sentence points else they violate the Sixth Amendment as construed by Apprendi and Blakely (excepting prior convictions and facts admitted by a defendant).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Gregory WOODEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-2077
    District Court of Appeal of Florida, First District.
    April 18, 2018
    Andy Thomas, Public Defender, Richard M. Bracey, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Gregory Wooden appeals his conviction for possession of narcotics, arguing that the traffic stop that led to his arrest was unconstitutionally prolonged in order to perform a dog sniff search.

At approximately midnight on September 30, 2015, Wooden was driving on I-75 when he was pulled over by an officer due to an improper lane change that cut off a semi-truck. At the initiation of the traffic stop, the officer called for a K-9 unit to perform a sniff search of the exterior of Wooden's car. After its arrival approximately sixteen minutes later, and twenty minutes into the stop, the dog alerted to the presence of narcotics, and Wooden was placed under arrest and charged with possession of a controlled substance without a prescription. Wooden moved to suppress the evidence, arguing that the original traffic stop that led to his arrest was prolonged in order to perform the dog sniff search, contrary to the dictates of Rodriguez v. United States , --- U.S. ----, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015). The trial court denied the motion, stating that Wooden was "not unreasonably detained during the traffic stop as [the officer] was still in the process of issuing a written warning to the Defendant while the narcotics K-9 alerted to the Defendant's vehicle." Appellant pled nolo contendere to the possession charge, but reserved his right to appeal the denial of the dispositive motion.

In its oral pronouncement, the trial court found that the traffic stop was delayed, characterizing it as "de minimis" and a "very little" delay. As Wooden points out on appeal, the decision in Rodriguez does not frame the quantum of permissible delay in these terms. Rather, the "critical question ... is not whether the dog sniff occurs before or after the officer issues a ticket, ... but whether conducting the sniff 'prolongs'-i.e., adds time to-'the stop.' " 135 S.Ct. at 1616.

Because the trial court concluded that time was added, which delayed the traffic stop before the dog sniff was performed, it was necessary for the trial court to make a baseline finding that the officer had reasonable suspicion to detain Wooden for the prolonged period during which the sniff occurred. Although an officer "may conduct certain unrelated checks during an otherwise lawful traffic stop...., he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual." Id. at 1615. Because reasonable suspicion was not addressed below, and because there is no basis in the record to conclude that reasonable suspicion existed to justify prolonging the stop in accordance with Rodriguez , we REVERSE the trial court's order denying Wooden's dispositive motion to suppress and REMAND with instructions to vacate his conviction. See Maldonado v. State , 992 So.2d 839, 843 (Fla. 2d DCA 2008).

Ray, Makar, and Winsor, JJ., concur.


text:
    WCI COMMUNITIES, LLC, Appellant, v. Christine SHERIDAN, Action Roofing Services, Inc., Specialty Engineering Consultants, Engineered Air, LLC., Progressive Plastering, Inc., Douglas A. Zargham and Melanie Sinclair Zargham d/b/a Zargham & Sinclair Architecture, Appellees.
    No. 4D17-2963
    District Court of Appeal of Florida, Fourth District.
    April 18, 2018
    Rosemary Wilder of Marlow, Adler, Abrams, Newman & Lewis, Coral Gables, for appellant.
    Robert Rivas of Sachs Sax Caplan, P.L., Tallahassee, for Appellee Christine Sheridan.
   Per Curiam.

WCI Communities, LLC ("WCI") appeals a Broward County order denying its motion to dismiss or transfer the underlying action for improper venue. Because we find the Collier County venue clause in the parties' contract to be mandatory, we reverse.

Christine Sheridan ("Sheridan") entered a contract with WCI for the purchase of a newly-constructed single-family home. The contract contained a venue clause stating that the venue for any contractual disputes would be Collier County, Florida.

When Sheridan filed a breach of contract action against WCI in Broward County, WCI moved to transfer or dismiss the complaint based on the venue clause. The circuit court denied WCI's motion, ruling that, "the venue clause lacked exclusivity," and "the clause is permissive, and not mandatory." WCI appeals, contending that the clause is mandatory.

"Because an appellate court reviews the interpretation of a contractual forum selection provision as a matter of law, this case is reviewed de novo." R.S.B. Ventures, Inc. v. Berlowitz , 201 So.3d 719, 720 (Fla. 4th DCA 2016). A permissive forum selection clause merely represents consent to jurisdiction. Id. However, a mandatory forum selection clause contains exclusive language and requires that litigation be brought in a particular forum. Id. at 720-721.

Here, the parties' contract provided:

VENUE: Purchaser and Seller agree that the venue for resolution of any dispute regarding this Contract lies within Collier County, Florida.

(emphasis supplied). We have previously held that such language renders a forum selection clause mandatory. See, e.g., Golf Scoring Sys. Unlimited, Inc. v. Remedio , 877 So.2d 827 (Fla. 4th DCA 2004) (holding that a forum selection clause providing that Broward County was "the proper venue for all actions that may be brought pursuant to [this Agreement]" made Broward County the exclusive and mandatory forum in that case) (emphasis supplied).

Appellee Sheridan contends that Golf Scoring is distinguishable from the instant case. Sheridan argues that in Golf Scoring , we determined the forum selection clause was mandatory because the word "proper" appeared before "venue."

However, we did not focus on the word "proper" in reaching our decision. Instead, we focused on "the," in relation to the word, "venue." Golf Scoring , 877 So.2d at 829. Specifically, we concluded that the use of the definite article "the," when conjoined with the noun "venue," exclusively limits a forum selection clause to only one venue, "to the exclusion of all others." Id. Our subsequent discussion in R.S.B. also supports this conclusion:

[T]his court has recognized that a forum selection clause using "the" to modify "venue" ("the venue") indicates exclusivity consistent with mandatory forum selection clauses because the modification refers "to only one, to the exclusion of all others."

201 So.3d at 721 (citing and quoting Golf Scoring , 877 So.2d at 829 ) (emphasis supplied).

Accordingly, we reverse and remand the case for the circuit court to either dismiss or transfer the action to Collier County.

Reversed and Remanded.

Gerber, C.J., Taylor and Klingensmith, JJ., concur.


author: PER CURIAM.

text:
    Jessie WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1979
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018
    Jessie Williams, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Jessie Williams appeals the postconviction court order dismissing as successive his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the dismissal of Williams' claims with respect to his sentences in case CRC84-01679-CFANO without comment. However, because the record before this court does not demonstrate that Williams' claim with respect to his sentences in case CRC84-01993-CFANO is successive, we reverse and remand for further proceedings on that claim only.

In case CRC84-01993-CFANO, a jury convicted Williams of burglary of a dwelling or occupied structure and dealing in stolen property, both second-degree felonies. See §§ 810.02(3), 812.019(1), Fla. Stat. (Supp. 1984). The statutory maximum for these charges is fifteen years' imprisonment. See § 775.082(3)(c), Fla. Stat. (Supp. 1984). The circuit court sentenced Williams as a habitual felony offender, see § 775.084, to thirty years' imprisonment for each count to be served consecutively. This court vacated Williams' sentences on appeal because the trial court provided improper reasons for departing from the guidelines. See Williams v. State, 493 So.2d 48, 48-49 (Fla. 2d DCA 1986). On remand, the trial court again sentenced Williams to consecutive terms of thirty years' imprisonment and provided written reasons for departure. However, the written sentence does not provide that Williams was sentenced as a habitual felony offender. This court affirmed Williams' sentences on direct appeal. See Williams v. State, 509 So.2d 936 (Fla. 2d DCA 1987) (table decision).

The summary record reveals that Williams filed at least one prior rule 3.800(a) motion. In 2015, Williams filed a motion alleging that his "HFO sentence exceeds the maximum provided by law." In an October 19, 2015, order the postconviction court denied this claim as to case CRC84-01993-CFANO, reasoning that Williams' claims were without merit because he was not designated as a HFO and that his resentencing was affirmed on appeal. That order is silent as to whether Williams' sentences are illegal for exceeding the statutory maximum.

On March 1, 2017, Williams filed a motion pursuant to rule 3.800(a), arguing, in pertinent part, that his thirty-year sentences in case CRC84-01993-CFANO are illegal because they exceed the statutory maximum sentence for second-degree felonies, which is fifteen years' imprisonment. See § 775.082(3)(c). The postconviction court dismissed this claim as successive, referencing and attaching the October 19, 2015, order.

We review the denial of a rule 3.800(a) motion de novo. Smith v. State, 143 So.3d 1023, 1024 (Fla. 4th DCA 2014). Under rule 3.800(a), the burden is on the movant to establish an entitlement to relief on the face of the record. Smart v. State, 124 So.3d 347, 349 (Fla. 2d DCA 2013). Upon denying a facially sufficient motion, it is incumbent upon the postconviction court to attach records conclusively refuting the defendant's claim. England v. State, 879 So.2d 660, 662 (Fla. 5th DCA 2004).

Although rule 3.800(a) allows for the filing of successive motions, defendants are not entitled to litigate successive claims. State v. McBride, 848 So.2d 287, 290-91 (Fla. 2003). A postconviction court should not dismiss a claim as successive unless it was the specific issue raised by the prior motion and denied on the merits. See Fuston v. State, 764 So.2d 779, 780 (Fla. 2d DCA 2000). If a court does dismiss a claim as successive, "a copy of that portion of the files and records necessary to support the court's ruling must accompany the order dismissing the motion." Jones v. State, 198 So.3d 920, 921 (Fla. 5th DCA 2016) (quoting rule 3.800(a)(2) ); see also Pleasure v. State, 931 So.2d 1000, 1002 (Fla. 3d DCA 2006).

The postconviction court erred in dismissing Williams' claim that his sentences in CRC84-01993-CFANO are illegal for exceeding the statutory maximum on the basis that this claim was successive. The summary record does not demonstrate that the postconviction court has previously ruled on the merits of this particular claim. Although the postconviction court reasoned that it denied a similar claim, the October 19, 2015, order does not demonstrate that this specific issue was previously addressed on the merits. See Fuston, 764 So.2d at 780. The summary record before this court does not otherwise conclusively refute Williams' claim that his sentences are illegal for exceeding the statutory maximum.

Accordingly, we reverse and remand for further proceedings consistent with this opinion. If the postconviction court again dismisses the claim as successive, it must provide portions of the record to support its dismissal. Alternatively, if the court determines that Williams' claim is not successive, it should address the merits of Williams' claim.

Affirmed in part, reversed in part, and remanded.

SILBERMAN, SLEET, and ROTHSTEIN-YOUAKIM, JJ., Concur.

      On appeal, the State maintains that Williams was orally sentenced as a habitual felony offender and that the facial illegality of the sentence is due to a discrepancy between the oral and written sentences. See Ashley v. State, 850 So.2d 1265, 1268 (Fla. 2003). The State attached to its response copies of Williams' resentencing transcripts tending to support this assertion. However, we are precluded from considering the transcripts because they were not considered by the postconviction court and are not otherwise a part of the summary record. See St. Cyr v. State, 126 So.3d 1166, 1166-67 (Fla. 4th DCA 2012).


author: B.L. Thomas, C.J.

text:
    MAYPORT HOUSING PARTNERSHIP, LTD., Petitioner, v. Robert ALBANI, Respondent.
    No. 1D17-2908
    District Court of Appeal of Florida, First District.
    April 20, 2018
    Geddes D. Anderson, Jr. and Sarah Jeck Hulsberg of Murphy & Anderson, P.A., Jacksonville, for Petitioner.
    Vincent E. Verrocchio and John F. Cooney of Venable LLP, Washington, DC, pro hac vice for Petitioner.
    J. Michael Lindell of Lindell & Farson, P.A., Jacksonville, for Respondent.
   B.L. Thomas, C.J.

Petitioner, Mayport Housing Partnership, Ltd., seeks certiorari review of an order relating to the release of confidential partnership records sought by Respondent, Robert Albani. Because Mayport has not demonstrated the order will result in irreparable harm, we dismiss the petition.

This case originated below regarding Albani's status in the partnership-whether he is a limited partner or merely holds a transferee interest in Mayport. Mayport contends Albani is a mere transferee with no right to access partnership records. Albani asserts he is a limited partner, but argues that even if he is only a transferee, he is entitled under Mayport's Partnership Agreement to financial records to determine whether the partnership has deprived him of distributions to which he is entitled.

As part of the declaratory action to determine Albani's status and rights, Albani requested production of several financial documents. Mayport moved for a protective order, asserting that section 620.1702, Florida Statutes, expressly provides that a transferee of a partnership interest is not entitled to partnership information or records, except upon dissolution and winding up of the partnership, and that the Partnership Agreement provides Albani no greater access rights. Mayport argued that before disclosure of the records could be allowed, the threshold issue of Albani's status must be first determined by the trial court.

The trial court ultimately entered an order finding that the materials requested by Albani are reasonably calculated to lead to the discovery of admissible evidence regarding entitlement to distributions, but providing that the materials should only be produced with "proper safeguards in place." The court directed the parties to agree on a proposed joint confidentiality order or submit separate proposed orders, and ordered that "[n]o materials shall be produced until the Court enters a confidentiality order." Mayport seeks review of the order directing the parties to submit proposed confidentiality orders, arguing that it will lead to the disclosure of statutorily protected information.

A petitioner challenging an order compelling disclosure of confidential information has the burden to demonstrate "that the trial court departed 'from the essential requirements of law causing material harm for which there is no adequate remedy on final appeal.' " Cordis Corp. v. O'Shea , 988 So.2d 1163, 1165 (Fla. 4th DCA 2008) (quoting Katz v. N.M.E. Hosps., Inc. , 842 So.2d 853, 854 (Fla. 4th DCA 2002) ). "Irreparable harm is the element that must be considered first as it is the element that invokes the appellate court's jurisdiction." Fla. Gas Transmission Co., LLC v. City of Tallahassee , 230 So.3d 912, 913-14 (Fla. 1st DCA 2017) (citing Fla. Fish & Wildlife Conservation Comm'n v. Jeffrey , 178 So.3d 460, 464 (Fla. 1st DCA 2015) ).

"Generally speaking, irreparable harm cannot be speculative, but must be real and ascertainable." Wal-Mart Stores East, L.P. v. Endicott , 81 So.3d 486, 490 (Fla. 1st DCA 2011). An order requiring the disclosure of confidential information is recognized as an exception to this general rule, as it requires the dissemination of information that, once disclosed, cannot be remedied on appeal. Id. at 491 ; see also D. Stephenson Constr., Inc. v. Mendiguren , 958 So.2d 527, 528 (Fla. 4th DCA 2007) (holding that a discovery order that violates the threshold requirement of a statute "causes harm that cannot be remedied on appeal because it requires disclosure of 'cat out of the bag' material, i.e., confidential corporate records");

Eugene J. Strasser, M.D., P.A. v. Bose Yalamanchi, M.D., P.A. , 669 So.2d 1142, 1145 (Fla. 4th DCA 1996) (concluding petitioner demonstrated irreparable harm based on potential disclosure of allegedly confidential information).

Mayport argues the order at issue requires the release of protected information in a manner that cannot be remedied on appeal. However, by its express language, the trial court's order provides that no confidential information shall be produced until further order establishing the terms of disclosure. Thus, any injury to Mayport is too remote to invoke the certiorari jurisdiction of this Court, which may be exercised only upon a proper showing of irreparable harm. See Stephens v. Wilmington Tr., Nat'l Ass'n , 209 So.3d 659, 660 (Fla. 1st DCA 2017). Without this threshold showing of irreparable harm, the petition for certiorari must be dismissed. See id.

DISMISSED.

Bilbrey and Jay, JJ., concur.


author: Wolf, J.

text:
    Larry JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2818
    District Court of Appeal of Florida, First District.
    April 20, 2018
    Andy Thomas, Public Defender, and Kevin Steiger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Wolf, J.

Appellant challenges his judgment and sentence for one count of possession of a firearm by a convicted felon, raising two issues on appeal. We find merit as to appellant's claim that the trial court erred in applying a sufficiency of the evidence standard to his motion for a new trial. We find no merit as to the second issue raised by appellant.

Appellant was tried for possessing a firearm while being a convicted felon. After the presentation of evidence and closing arguments, the jury found appellant guilty. Appellant then filed a motion for a new trial, arguing in part that the verdict was against the manifest weight of the evidence. At the sentencing hearing, defense counsel specifically argued that the verdict was contrary to the weight of the evidence because the witnesses presented by the State were biased and could not provide a clear description of the firearm. The trial court then ruled, "All right. I will deny the motion for new trial. The jury did not agree with that position and they found him guilty beyond a reasonable doubt, so I will deny the motion ." (emphasis added).

While we generally review a trial court's denial of a motion for a new trial under the abuse of discretion standard, we review whether the trial court employed the proper standard de novo. Velloso v. State , 117 So.3d 903, 905 (Fla. 4th DCA 2013) ; Geibel v. State , 817 So.2d 1042, 1044-45 (Fla. 2d DCA 2002).

A motion for new trial requires a trial court to evaluate whether a jury's verdict is contrary to the weight of the evidence and to act, in effect, as an additional juror. Fla. R. Crim. P. 3.600(a)(2) ; Tibbs v. State , 397 So.2d 1120, 1123 n.9 (Fla. 1981). This standard is different than the one used by a court in ruling on a motion for a judgment of acquittal, which utilizes a sufficiency of the evidence standard. Velloso , 117 So.3d at 905. Although a trial court is not required to use "magic words" when ruling on a motion for a new trial, it is reversible error for the trial court to utilize the wrong standard. Palmer v. State , 196 So.3d 1289 (Fla. 1st DCA 2016) ; Velloso , 117 So.3d at 905 ; Ferebee v. State , 967 So.2d 1071, 1073 (Fla. 2d DCA 2007).

In the instant case, when the trial court said the jury did not agree with appellant's argument so the court would not either, the trial court implied that it denied appellant's motion because there was sufficient evidence to allow the jury to reach a decision. Thus, the trial court impermissibly used a sufficiency of the evidence standard in evaluating the motion. Palmer , 196 So.3d at 1289-90 ; Fulword v. State , 29 So.3d 425, 426 (Fla. 5th DCA 2010) ; Geibel , 817 So.2d at 1045. The trial court also impermissibly abrogated its responsibility to determine whether a verdict is against the manifest weight of the evidence independently of the jury.

As we have previously held, "Upon remand, if the trial court concludes that the verdict is against the weight of the evidence, it should grant the motion for new trial. In the event the trial court concludes that the verdict is not against the weight of the evidence, it may again deny the motion and enter a new judgment and sentence accordingly."

Palmer , 196 So.3d at 1290 (quoting Spear v. State , 860 So.2d 1080 (Fla. 1st DCA 2003) ).

REVERSED and REMANDED .

Roberts and Wetherell, JJ., concur.


author: Wetherell, J.

text:
    Jason Nicholas FRANDI, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3358
    District Court of Appeal of Florida, First District.
    April 20, 2018
    Bruce A. Miller, Public Defender, and Travis R. Gates, Assistant Public Defender, Shalimar; Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Jason Nicholas Frandi, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Wetherell, J.

Appellant entered a negotiated plea to and was adjudicated guilty of 19 counts of possession of child pornography in violation of section 827.071, Florida Statutes (2016). He was sentenced to an aggregate term of 25 years in prison followed by a total of 25 years of sex offender probation, and he was also designated a sexual predator pursuant to section 775.21(4)(a)1.b. On appeal, after his appointed counsel filed an Anders brief, Appellant filed a pro se brief arguing that the trial court erred in designating him a sexual predator because he had only been adjudicated delinquent-and not convicted-of a prior sex offense.

We affirm the sexual predator designation because Appellant failed to preserve this issue for appeal. He did not present the argument raised in his pro se brief to the trial court, either at the sentencing hearing or in a rule 3.800(b)(2) motion, and he cannot raise the issue for the first time on appeal. See Brannon v. State , 850 So.2d 452, 456 (Fla. 2003).

Even if the issue had been preserved, it is meritless for two reasons.

First, the record shows that Appellant specifically agreed to the sexual predator designation as part of the negotiated plea agreement. Because this designation is not a sentence or a punishment, Appellant was not precluded from agreeing to the designation even if he did not qualify under the statute. See Kingry v. State , 28 So.3d 173, 174 (Fla. 1st DCA 2010). And, because Appellant has received the benefits of the plea agreement, he cannot now seek to be relieved of one of the burdens imposed on him by the agreement. Id.

Second, in order to be designated a sexual predator pursuant to section 775.21(4)(a)1.b., the defendant must be "convicted" of a current offense that is a felony violation of an enumerated statute (such as section 827.071 ), and the defendant must also have previously "been convicted of or found to have committed" a violation of one of those enumerated statutes. Although an adjudication of delinquency does not qualify as a conviction for purposes of the current offense, see State v. J.M. , 824 So.2d 105 (Fla. 2002), it does qualify for purposes of the prior offense because section 775.21(4)(b) unequivocally states that "[i]n order to be counted as a prior felony for purposes of this subsection, the felony must have resulted in a conviction sentenced separately, or an adjudication of delinquency entered separately, prior to the current offense ..." (emphasis added). Here, Appellant was convicted-not adjudicated delinquent-of a current offense enumerated in section 775.21(4)(a)1.b., and although the record does not reflect the specific prior offense for which he was adjudicated delinquent, Appellant has not argued-below or on appeal-that the prior offense was not a violation of one of the statutes enumerated in section 775.21(4)(a)1.b. Accordingly, the trial court properly designated Appellant a sexual predator.

AFFIRMED .

Wolf and Roberts, JJ., concur.

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      For example, the 25-year prison sentence Appellant received pursuant to the agreement is far less than the maximum potential sentence of 135 years that he was facing.

      The record does not contain a copy of the judgement and sentence for the prior offense, and at the sentencing hearing, the prosecutor merely stated that Appellant "has a prior sex conviction." Likewise, in his pro se brief, Appellant only refers to the offense as a "sexual offense" for which he was "adjudicated as a juvenile delinquent" in 1999. However, the order designating Appellant as a sexual predator states that Appellant "has previously been convicted or found to have committed ... any violation of s. 800.04," and section 800.04 is one of the statutes enumerated in section 775.21(4)(a)1.b.