CASE NO. 1D Andy Thomas, Public Defender, and Steven L. Seliger and Brenda Roman, Assistant Public Defenders, Tallahassee, for Appellant.

Transcription

1 IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA MARLENA CHRISTINE WOODS, v. Appellant, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D STATE OF FLORIDA, Appellee. / Opinion filed April 24, An appeal from the Circuit Court for Duval County. Russell L. Healey, Judge. Andy Thomas, Public Defender, and Steven L. Seliger and Brenda Roman, Assistant Public Defenders, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate and Quinton Humphrey, Assistant Attorneys General, Tallahassee, for Appellee. PER CURIAM. AFFIRMED. ON REHEARING EN BANC

2 MAKAR, J., concurs in an opinion in which ROBERTS, C.J., LEWIS and BILBREY, JJ., join, and in which WETHERELL, J., joins except as to Part C. OSTERHAUS, J., concurs in an opinion in which ROWE, KELSEY, and M.K. THOMAS, JJ., join. WINOKUR, J., concurs with opinion. WOLF, J., dissents with opinion. WINSOR, J., dissents in an opinion in which B.L. THOMAS and RAY, JJ., join. JAY, J., recused. 2

3 MAKAR, J., concurring in affirmance. Marlena Woods, a homeless mom with four children, pled guilty to shoplifting food for her family from a Jacksonville Walmart. Due to prior petit theft convictions, she scored 8.3 points on her sentencing scoresheet, which meant a presumptive nonstate sentence not exceeding twelve months in the Duval County jail under section (10), Florida Statutes (2009), a statute not mentioned at her plea colloquy. Under that statute, the State argued that she should be sent to state prison because sentencing her to county jail (or some other nonstate sanction) would present a danger to the public that state incarceration would prevent. Based on his factual findings of Woods s alleged dangerousness to the public, the trial judge imposed an eighteen-month term of state imprisonment. At issue is whether section (10) is unconstitutional because it authorized a sentence above the statutory maximum (twelve months in county jail) based on factual findings made by the trial judge, rather than a jury, in violation of Woods s right to jury trial in the federal constitution. See U.S. Const. amend. VI; Blakely v. Washington, 542 U.S. 296, 304 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). A panel opinion avoided the constitutional question by construing section (10) to require the jury, post-verdict, to make factual findings the statute says a judge must make, Woods v. State, 41 Fla. L. Weekly D1676 (Fla. 1st DCA 3

4 July 20, 2016), but a 10-4 vote resulted in en banc consideration of the case. Though Woods served her eighteen-month sentence after en banc review was granted (but before argument was ordered), the issue presented is one of ongoing and exceptional importance for judicial resolution. 1 I. A. APPRENDI/BLAKELY In 2009, the Florida Legislature enacted a requirement that trial judges sentence non-violent, low-scoring (under twenty-two points) offenders to nonstate 2 1 See Godwin v. State, 593 So. 2d 211, 212 (Fla. 1992) ( [It] is well settled that mootness does not destroy an appellate court s jurisdiction... when the questions raised are of great public importance or are likely to recur. ) (quoting Holly v. Auld, 450 So. 2d 217, 218 n.1 (Fla. 1984)); see also Casper v. State, 187 So. 3d 255, 257 (Fla. 1st DCA 2016) ( Our court, though being presented with the issue, has avoided writing an opinion on it. ) (Makar, J., concurring); Murphy v. State, 161 So. 3d 1282, 1284 (Fla. 1st DCA 2015) ( [W]e do not reach appellant s alternate claim that section (10) is unconstitutional under Apprendi and its progeny because the statute deprived him of his Sixth Amendment right to a jury determination of any fact which enhances his sentence. ) (internal citations omitted); Jones v. State, 71 So. 3d 173, 179 (Fla. 1st DCA 2011) (B.L. Thomas, J., concurring in result only) ( We should hold that a trial court lacks the lawful authority under this statute to make any findings without a special jury verdict or a waiver of the defendant s Sixth Amendment right. ). 2 Reed v. State, 192 So. 3d 641, 645 (Fla. 2d DCA 2016) ( Although section (10) does not define nonstate prison sanction, the phrase is understood to mean probation, community control, or imprisonment in the county jail for up to one year. ) (citing Jones, 71 So. 3d at 175). 4

5 prison sanctions unless the judge determines via written findings that a nonstate prison sanction might present a danger to the public, allowing him to exercise his discretion to impose a greater sanction. See Ch , 1, Laws of Fla. (creating subsection 10 to section , Florida Statutes, which gives trial judges this discretion); Fla. S. Comm. on Crim. & Civil Just. Approp., CS for SB 1722 (2009) Staff Analysis 2-3, 7 (April 6, 2009), wpsc.pdf [hereinafter Crim. and Civ. Just. Comm. SB 1722 Staff Analysis] (summarizing the subsection as [c]reating a prison diversion approach by requiring the court to sentence certain non-violent low-scoring offenders to a nonstate prison sanction unless the court finds that such a sentence could endanger the public ). Due to budgetary reductions to Florida s Department of Corrections, the legislative intent was to reduce state expenses via the curtailment of the past practice of sentencing non-violent, low-scoring offenders to state prison, which was prevalent at the time. The newly-added subsection, consisting of two sentences, stated in full: (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 , and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes 5

6 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 (10), Fla. Stat. (emphasis added). Highlighted is the last sentence, which is the primary portion at issue in this case. The text of subsection (10) has not changed since its enactment. The statutory authority in the last sentence of subsection (10), allowing a trial judge to make factual findings to increase an offender s sentence to a state correctional facility, is unconstitutional because only a jury may make findings that increase a penalty beyond a statutory maximum (which is up to twelve months of incarceration as a nonstate sanction). 3 See Apprendi, 530 U.S. 490 ( Other than the 3 Neither party advances the view that Apprendi is inapplicable simply because Woods s eighteen-month state prison sentence is less than five years, which is the maximum duration for both nonstate and state sentences under subsection (10), the reason being that a five-year state sanction (i.e., five years in prison) is substantially different from and far more punitive than any possible five-year nonstate sanction (i.e., up to twelve months in county jail plus four years of probation/community control or five years of the latter); durational equivalence means nothing due to the punitive asymmetry between these two dissimilar punishments. As far back as Jones v. State, the State had the opportunity to respond to a focus order raising this specific issue, which comparatively cited State v. Carr, 53 P.3d 843, 850 (2002) ( Apprendi applies only to upward durational departures of a sentence and is inapplicable to a sentencing judge s decision to impose a dispositional departure prison sentence rather than to grant probation. ) and State v. Allen, 706 N.W.2d 40, 47 (Minn. 2005) (finding statute authorizing trial court to make an upward dispositional departure upon finding an aggravating factor without the aid of a jury is unconstitutional as applied ). The State did not 6

7 embrace this distinction in Jones and does not do so in this case; indeed, it conceded that the last sentence of subsection (10) violated Apprendi on the facts of that case, which are similar to this case (see next footnote). Focusing solely on a durational maximum of five years, without distinguishing between the types of punishment imposed, overlooks two related points that demonstrate why Apprendi applies in this case. First, probation and community control are not incarcerative sentences; instead, they are alternative non-incarcerative forms of penance. See (9), Fla. Stat. (2016) ( Probation means a form of community supervision requiring specified contacts with parole and probation officers and other terms and conditions as provided by statute.); , Fla. Stat. (2014) (Community control is an alternative, community-based method to punish an offender in lieu of incarceration. ); see also Carr, 53 P.3d at 850 ( A person on probation or parole is not serving a sentence. ). A judge deciding whether to impose probation or incarceration does not alter the range of incarcerative punishment. Thus, cases like Carr and State v. Anderson, 867 N.W.2d 718, 724 (S.D. 2015), which involved only the judicial choice between probation and an incarcerative sentence, don t apply here because the dispositional decision to place an offender on probation versus imposing a jail sentence within a specified incarcerative range (such as six months in jail rather than six months of probation) is different from imposing a harsher sentence beyond that specified range. The question in Carr and Anderson was a binary one: whether a guilty offender should be placed on probation or incarcerated one traditionally allocated to the trial judge s discretion and not subject to Apprendi, much like consecutive sentencing for multiple offenses. Oregon v. Ice, 555 U.S. 160, 163 (2009). Neither Carr nor Anderson involved the question here: whether a court may increase punishment beyond the statutory maximum based on additional factfinding by a judge. In fact, Anderson specifically disclaimed that its decision applied to situations where the range of imprisonment could be increased, and Carr held that Apprendi applied to upward durational departures of a sentence, as is the case here. See Anderson, 867 N.W.2d at 724 (the decision to deny or revoke probation and thereby incarcerate an offender is within the court s purview to decide facts relevant to that decision.... such a decision does not alter the range of years of imprisonment that a court may impose for a particular offense ) (emphasis added); Carr, 53 P.3d at

8 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 ( 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 Second, up to five years in the Florida prison system is qualitatively more severe than up to twelve months in the county jail plus four years of probation; the incarcerative component of the former is five times more punitive than the latter, making Apprendi applicable, as noted in Jones: Thus, without a jury finding, a trial court cannot impose a dispositional departure, i.e., incarceration rather than probation, because that would exceed the statutory maximum by increasing the quantum of punishment even though the length of the sentence might be no different. In other words, five years of probation is most certainly not equal to five years of state prison: the latter is qualitatively, albeit not quantitatively, more severe. Accordingly, a dispositional departure is just as invalid for Sixth Amendment analysis as a durational departure. Jones, 71 So. 3d at 178 (B.L. Thomas, J., concurring in result). Here, Woods faced a maximum of up to one year in county jail, which increased to five years in state prison based solely on fact-finding by a judge, rather than a jury. In short, Apprendi doesn t apply when a trial judge exercises traditional sentencing discretion under the first sentence of subsection (10) by imposing a nonstate sanction; if Woods had been sentenced to time in the county jail rather than a probationary term (or some combination of the two), Apprendi would not be implicated. Apprendi does apply, however, when a trial judge engages in the next step that being to engage in additional factual-finding under the last sentence of subsection (10) thereby allowing him to increase an incarcerative sentence beyond the statutory nonstate maximum founded upon jury findings. 8

9 exceeds his proper authority. ) (citation omitted). Our supreme court has held similarly in the context of upward departures. 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). ). The trial court s actions violated Woods s right to a jury under the Sixth Amendment as explained in Apprendi and its federal and Florida progeny, but Woods has raised only a facial constitutional challenge on appeal. Delancy v. Tucker, 88 So. 3d 1036, 1037 (Fla. 1st DCA 2012) (stating that a direct appeal is the proper avenue for a facial constitutional challenge to a criminal statute ). 4 A 4 On similar facts, the State conceded six years ago that the application of subsection (10) violates Apprendi/Blakely. See Jones, 71 So. 3d at 178 (noting that the State correctly conceded at oral argument that on these facts [as found by the trial judge], the prison sentence under section (10), Florida Statutes, violates the holding of Blakely not because the judge s findings are flawed, but because only a jury of Appellant s peers can make such a finding ) (B.L. Thomas, J., concurring in result). Indeed, prior to oral argument in Jones, the State and the public defender jointly stipulated as follows: The parties also agree that on the facts of this case, the trial court s imposition of sentence of 3-years state prison based solely on a judicial determination under the last of section (10), Florida Statutes, that a nonstate prison sanction could present a danger to the public, violates the holdings of the U.S. Supreme Court in Apprendi... and Blakely.... And at oral argument, the State opened with the following: 9

10 facial challenge to a statute is more difficult than an as applied challenge, because the challenger must establish that no set of circumstances exists under which the statute would be valid.... such a challenge must fail unless no set of circumstances exists in which the statute can be constitutionally applied. Cashatt v. State, 873 So. 2d 430, 434 (Fla. 1st DCA 2004). One possible constitutional application of subsection (10) is that a defendant may waive his constitutional rights under Apprendi and Blakely by allowing a trial judge to make factual findings, rather than a jury. But in doing so, a defendant effectively waives the substantive constitutional right that subsection (10) fails to facially protect; if a statute is deemed constitutionally applied simply because a defendant waives his constitutional rights in the application of the challenged portion, then every statute has this potential application, making no facial adjudication ever possible. The same is true of a defendant who for inexplicable reasons agrees to a factual finding that he could pose a danger to State: Although the State would like to contend that Blakely does not apply, on the facts of this case, the State cannot in good faith contend that it does not.... Judge Swanson: So the Attorney General for the State of Florida is conceding that Apprendi applies in this instance? State: On the facts of this case... Tr. of Oral Argument, 1D , at 15:36. 10

11 the public thereby allowing the trial judge to impose a nonstate sanction; this type of constitutional application is not only fanciful but also an avoidance, rather than an application, of the challenged statutory language at issue. Similarly, another possible constitutional application of subsection (10) is to construe it in a way that avoids a constitutional violation. Under this approach (which the panel used), the statutory language requiring a trial court to make written factual findings would be interpreted to require a jury to make such findings instead. But this requires rewriting subsection (10) to say: However, if the court 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. Doing so judicially engrafts a requirement into the statute that a jury makes the factual findings that the statute says the court must make (in writing no less). Judicially rewriting a statute s offensive parts is not an application for purposes of a facial challenge. Finally, another possible constitutional application is where a trial judge relies solely upon a defendant s past convictions to increase punishment to a state sanction. This application refers to the language of Apprendi that excluded from its holding the fact of a prior conviction, which trial judges had used for sentencing purposes where a prior conviction was a statutory feature of a crime. See, e.g., 11

12 Almendarez-Torres v. United States, 523 U.S. 224, 227 (1998) (upholding a statute with a penalty provision allowing a sentencing judge to impose a higher sentence when the unlawfully returning alien also has a record of prior convictions ). Excepting out prior convictions was deemed permissible because unlike virtually any other consideration used to enlarge the possible penalty for an offense... a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees. Jones v. United States, 526 U.S. 227, 249 (1999). But nothing in subsection (10) empowers a trial judge to rely solely on an offender s prior convictions as the factual basis for its written findings that a nonstate prison sanction could present a danger to the public as the statute requires. 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 fact-finding by a judge. 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 12

13 but a data point. 5 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. 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 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 ). To do so would subject every offender to a state prison sentence, which conflicts with the 5 A good example of how a prior convictions application might swallow the statute is Porter v. State, 110 So. 3d 962, 964 (Fla. 4th DCA 2013), case dismissed as moot, 137 So. 3d 1021 (Fla. 2014), which involved judicial fact-finding and prognostications that exceeded the mere fact that the defendant had prior convictions. 13

14 intent of subsection (10) to enhance sentences of truly violent offenders. Id. at 648. If the Florida Legislature had deemed that the mere existence of a prior conviction was enough to increase punishment for this class of mostly non-violent offenders, it could have done so. See Almendarez-Torres, 523 U.S. at 227. Instead, it established a pliable danger to public standard for which the narrow exception of Apprendi was not intended. See Apprendi, 530 U.S. at 490 ( [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. ). Given that no sensible constitutional application of subsection (10) exists, a facial challenge is appropriate. As the United States Supreme Court has noted, the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge. Citizens United v. Fed. Election Comm n, 558 U.S. 310, 331 (2010). A court must weigh the alternatives offered when deciding whether an exercise of judicial authority is appropriate. As the Supreme Court explained: It is not judicial restraint to accept an unsound, narrow argument just so the Court can avoid another argument with broader implications. Indeed, a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling. 14

15 Id. at 329. Where there exists the lack of a valid basis for an alternative ruling, a court s full consideration of the continuing effect of a constitutionallychallenged practice may be pursued. Such is the case here, where no readily apparent constitutional applications of subsection (10) exist. B. SEVERANCE Because the last sentence of subsection (10) is unconstitutional, the question of severance arises: should all of subsection (10) be stricken or only its last sentence? If only the last sentence is stricken, sentencing of all offenders would be limited to nonstate sanctions; if all of subsection (10) is stricken, reversion to the prior version of the sentencing statute would result, allowing trial judges to impose any term of imprisonment up to five years for the class of offenders to which subsection (10) applied. See , Fla. Stat. (2008); see also Crim. & Civ. Just. Comm. SB 1722 Staff Analysis (discussing the then-current sentencing options). The well-established test for severance was set out in Cramp v. Board of Public Instruction of Orange County, 137 So. 2d 828, 830 (Fla. 1962): 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 15

16 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. Our supreme court has said the Cramp test is a well established component of Florida law. It has been applied repeatedly in countless Florida cases. Schmitt v. State, 590 So. 2d 404, 415 (Fla. 1991). In this case, factors (1), (2), and (4) are met, the only question remaining is whether 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 16

17 Legislature would have passed only the first sentence in subsection (10) but not the last; the two are intertwined. Thus, striking the entirety of subsection (10) is required because the last sentence cannot be severed without undermining legislative prerogatives. C. HARMLESS ERROR Buttressing this conclusion is application of the harmless error doctrine, which the United States Supreme Court and our supreme court have held applies to Apprendi/Blakely errors. Neder v. United States, 527 U.S. 1, 15 (1999) (noting that the omission of an element 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 Hurst v. Florida, 136 S. Ct. 616, 624 (2016) (noting that the Supreme Court normally leaves it to state courts to consider whether an error is harmless ); Washington v. Recuenco, 548 U.S. 212, 222 (2006) ( Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error. ). In Neder v. United States, the Supreme Court stated the harmless-error inquiry as follows: Is it clear beyond a reasonable doubt that a rational jury would 17

18 have found the defendant guilty absent the error? 527 U.S. at 18. Our supreme court adopted this harmless error test. See Galindez, 955 So. 2d at 522 (adopting Neder, 527 U.S. 1). The Supreme Court elaborated: 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. Neder, 527 U.S. at 19. The Neder standard focuses on the omission of an element of a crime, which is not the case here, but our supreme court has extended the analysis to sentencing as well. 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 as to Count I contributed to the conviction or sentence. ) (emphasis added). Under this approach, we make believe that a hypothetical jury is presented with the dangerousness question and ask whether there is any evidence in the record that could rationally lead a jury to conclude that Woods did not present a danger to the public, if subject to only a nonstate sanction? On this point, the panel concluded that no rational jury would have declined to find that [Woods] posed a financial danger to the public based on her theft/burglary convictions, which is pure speculation; she scored only 8.3 points and could be viewed sympathetically 18

19 by jurors because at the time of the offense she was a homeless mom living in the woods with her kids for whom she had stolen food (she was living with an aunt at the time of sentencing). And because the clear import of the 2009 amendment was to ensure that only violent offenders be subject to state prison, it is not at all clear that a jury would necessarily find that the financial danger posed by Woods was the type of danger to the public unless subject to a state sanction that the Legislature meant to punish more severely. But see McCloud v. State, 55 So. 3d 643, 645 (Fla. 5th DCA 2011) (concluding that harm from writing bad checks falls within the meaning of danger to the public ). What s more, even if a hypothetical jury found that Woods posed a financial danger to the public, the trial judge statutorily would still have to exercise his or her discretion in deciding whether to impose a prison sanction. See (10), Fla. Stat. How that judicial discretion might be exercised in this particular case is equally speculative. For these reasons, the constitutional error cannot be deemed harmless because a jury could rationally conclude that Woods did not present a danger to the public under the circumstances. 19

20 As such, the most reasonable remedy is to revert to the prior sentencing statute. Because this case is a direct appeal, not a post-conviction case, 6 Woods had she not already served her eighteen-month sentence would be resentenced on remand under the former statutory framework, which allowed a sentence of up to five years in state prison. The conundrum is that every sentence previously imposed under subsection (10) would necessarily be within the maximum of five years, raising the question of whether re-sentencing would be a useless exercise. It is conceivable that Woods could have been resentenced on remand to the same sentence. If so, the Apprendi/Blakely error could be deemed harmless as to her because it did not contribute to her sentence, one she could have been sentenced to under the prior sentencing statute. For this reason, although she prevails on the merits of her constitutional claim, no remedy is available for her. Prospectively, however, the invalidation of subsection (10) would operate to preclude trial courts from undertaking fact-finding as to an offender s potential for danger to the public if subject to a nonstate sanction. 6 On post-conviction review, it is probable that the Apprendi/Blakely error would be deemed either not retroactive or harmless in most, if not all, cases. See State v. Johnson, 122 So. 3d 856, (Fla. 2013) (Blakely does not apply retroactively, in part, because of the adverse effect on the administration of justice.); Mitchell v. State, 145 So. 3d 890, 892 (Fla. 1st DCA 2014) (sentences within the statutory maximum are not subject to collateral attack on the basis of Blakely or Apprendi ). 20

21 CONCLUSION Subsection (10) is unconstitutional under Apprendi and Blakely, and the appropriate remedy is to allow for resentencing under the prior version of the sentencing statute. By doing so, deference and respect is given to the Legislature and the language of its enactment, allowing trial judges to exercise their discretion by re-sentencing this class of offenders as they would have absent the unconstitutional process added in Prospectively, trial judges can still impose sentences in the lower ranges where the record reflects that a defendant has a nonviolent past and is low-scoring; if a defendant has indicia of violence and poses a true danger to the public, a sentence in the upper range could be imposed. As to Woods, no remedy is available since she s already served her time; her sentence, though arrived at via an unconstitutional procedure, fell within the lawful range under the prior sentencing code. ROBERTS, C.J., LEWIS and BILBREY, JJ., join; WETHERELL, J., joins except as to Part C. 21

22 OSTERHAUS, J., concurring in affirmance. I vote to affirm Ms. Woods sentence because (10), Florida Statutes, 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, (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. The maximum sentence for Ms. Woods third-degree felony was five years whether she received prison or not. And her eighteen-month prison sentence, after the jury found her guilty of a third-degree felony, did not violate Apprendi because it was within the standard statutory range, well below the maximum sentence. Another reason (10) doesn t violate Apprendi is that the fact-finding it assigns to judges at sentencing fully comports with their historic role. See Oregon v. Ice, 555 U.S. 160, 170 (2009). Courts, and not juries, have traditionally considered offender-specific, public safety factors at sentencing. And the Sixth Amendment doesn t require such well-established judicial sentencing functions to be delivered over to juries. Ice counsels that applying Apprendi in this case would violate federalism principles, Florida s right 22

23 to manage its own criminal justice system, and strong state public safety interests. 7 I. After a jury finds a person guilty of a third-degree, non-forcible felony in Florida (or they plead guilty), (10) requires the calculation of a sentencing score for use in determining whether an offender will receive a prison sanction or nonprison sanction. The maximum sentence, as with all third-degree felonies, is five years in state prison (3)(e), Fla. Stat. The sentencing 7 Regarding the mootness concern raised by some of my colleagues, I agree with the majority of my colleagues that Ms. Woods facial challenge to (10) should be decided on the merits and not dismissed as moot. [T]he mootness doctrine does not destroy our jurisdiction when the question before us is of great public importance or is likely to recur. Enterprise Leasing Co. v. Jones, 789 So. 2d 964, 965 (Fla. 2001). Here, we have a recurring issue. Multiple defendants have raised Apprendi-Blakely challenges to (10) in this court and other courts within the last six years only to have the issue side-stepped and remain unaddressed. See, e.g., Murphy v. State, 161 So. 3d 1282, 1284 (Fla. 1st DCA 2015); Murray v. State, 133 So. 3d 557, 559 (Fla. 1st DCA 2014); Sprott v. State, 99 So. 3d 634, 635 (Fla. 1st DCA 2012); Jones v. State, 71 So. 3d 173, 174 (Fla. 1st DCA 2011); see also Casper v. State, 187 So. 3d 255, 257 (Fla. 1st DCA 2016) (Makar, J., concurring dubitante) ( Our court, though being presented with the issue, has avoided writing an opinion on it. ). This case raises an important issue. And there have been dozens of appeals citing (10) in recent years. If the sentences rendered under this law aren t constitutional, we should say so. This case presents an exceptionally good vehicle for doing so. Our court voted to hear this case en banc and took the extraordinary steps of ordering additional briefing and an argument before the entire court (apparently for the first time in over two decades). Under these circumstances, with the important constitutional claim teed up now for resolution, it would be incorrect to stop short, wash our hands of this appeal, and simply punt this recurring constitutional issue to some future panel (with the looming prospect of a duplicative en banc process in some other case very soon). 23

24 score is largely determined by whether an offender has committed other serious crimes or has a serious criminal history (a third-degree, nonforcible felony scores few points by itself). See , Fla. Stat. (addressing the sentencing scoresheet). If an offender has committed additional or past serious crimes, he or she may receive a high score for purposes of (10) more than 22 points which makes him or her eligible for a prison sanction based on the score alone (the judge retains sentencing discretion to give a non-prison sanction). But if an offender has a lesser criminal history and additional offenses, then his or her low score will not immediately qualify for a prison sentence. See, e.g., Porter v. State, 110 So. 3d 962, 963 (Fla. 4th DCA 2013) (scoring a total of 14.7 points for eleven theft-related crimes). The statute presumptively directs judges to sentence these low-scoring offenders to a nonprison sanction (jail, community control, probation, etc.) unless a nonstate prison sanction could present a danger to the public (10), Fla. Stat. In Ms. Woods case, she pled guilty to a third-degree felony with a statutory maximum punishment of five years in prison. At her sentencing hearing two weeks later, her criminal history revealed a persistent penchant for stealing things. She had multiple thefts and a burglary on her record. And previous nonprison sanctions had not reformed her criminal behavior. The court made two main findings. First, 24

25 it approved a scoresheet totaling Ms. Woods sentence points. She scored 8.3 sentence points, far below the 22-point, score-based threshold for a prison sentence. Second, the trial court found that Ms. Woods criminal history, combined with the failure of previous nonprison sanctions, required a prison sentence: To date, the criminal justice system ha[d] failed to protect the public. The judge sentenced Ms. Woods to eighteen months in prison under (10), instead of giving her another (ineffectual) nonprison sanction. Cf. McCloud v. State, 55 So. 3d 643, 644 (Fla. 5th DCA 2011) (upholding a prison sentence for a defendant who may not be a physically violent offender, [but] is apparently willing to steal anything and everything ). II. Ms. Woods now claims that her sentence violates the Sixth Amendment and the Apprendi v. New Jersey, 530 U.S. 466 (2000), line of cases, because only juries can make the danger to the public finding required by (10) before a prison sanction is given. I disagree. Apprendi doesn t apply here for two reasons: because (10) doesn t increase the maximum penalty, and because 25

26 (10) involves a traditional judicial sentencing decision that doesn t impinge upon juries. 8 A. In Apprendi, the defendant pled guilty to a weapons offense punishable by five to ten years imprisonment. After the trial court accepted the plea, the State moved to increase the imprisonment term above the statutory maximum based on a hate crime statute. The trial court agreed that the defendant had committed the crime with racial animus and essentially doubled the defendant s maximum sentence. Apprendi ultimately reached the United States Supreme Court, which 8 I note Judge Makar s point that the State didn t defend the statute on the grounds developed in this opinion. But that fact doesn t preclude us from affirming on these grounds. First, Florida s tipsy coachman rule requires an appellate court, in considering whether to uphold or overturn a lower court s judgment, to affirm the judgment if it is legally correct, so long as there is any basis for doing so. See Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002). We may even affirm in cases where the State does not file a brief. Powell v. State, 120 So. 3d 577, 592 (Fla. 1st DCA 2013) (Op. on Reh g). Second, it is not the parties job in litigation to decide whether a statute is facially constitutional. Rather, it is the work of the judiciary. See Cashatt v. State, 873 So. 2d 430, 434 (Fla. 1st DCA 2004). The State s limited defense of a statute or even a full-blown failure to defend such a law has no bearing on this court s duty to carefully and diligently decide a dulypresented constitutional issue. No doubt the political branches have a role in interpreting and applying the Constitution, but ever since Marbury [courts have] remained the ultimate expositor of the constitutional text. United States v. Morrison, 529 U.S. 598, 616 n.7 (2000). See also Gregory F. Zoeller, Duty to Defend and the Rule of Law, 90 Ind. L.J. 513, 534 (2015) (criticizing practices that would place the attorney general in the position of exercising a litigation veto over legislation whose constitutionality is open to debate ). 26

27 decided that due process and the Sixth Amendment entitled the defendant to a jury determination on the sentencing enhancement. The Court held that [o]ther 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. Apprendi, 530 U.S. at 490. Later, in Blakely v. Washington, 542 U.S. 296 (2004), the Court clarified that the 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. Id. at The Court focused closely on the jury s verdict. 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. Id. at 306. In deciding these cases, the Court did not altogether forbid judicial factfinding at sentencing. Rather, it left trial courts free to make offender-specific findings in deciding the form of punishment (type and length of a sentence) within the statutory range of the crime proven to the jury: [N]othing... 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. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case. See, e.g., Williams v. New York, [337 U.S. 241, 246 (1949)]. 27

28 Apprendi, 530 U.S. at 481. As long as the court operates within the limits of punishment provided by statute, not increasing the maximum punishment, it is considered to have properly exercised sentencing authority. Id. at ; see also Alleyne v. United States, 133 S. Ct. 2151, 2158 (2013) ( The touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an element or ingredient of the charged offense.... [A] fact is by definition an element of the offense and must be submitted to the jury if it increases the punishment above what is otherwise legally prescribed. ). B. The first reason Apprendi doesn t apply here is because (10) does not increase the five-year maximum penalty authorized by the jury s verdict (or guilty plea) for third-degree felonies. Rather, the statute guides the within-therange sentencing choices that courts must make between different forms of punishment authorized by the jury s verdict third-degree felonies may be punished by either prison or nonprison sanctions, or both. In stating Apprendi s rule, the United States Supreme Court has never distinguished one form of punishment from another. Instead, [its] decisions broadly prohibit judicial factfinding that increases maximum criminal sentence[s], penalties, or punishment[s]. Southern Union Co. v. United States, 132 S. Ct. 2344,

29 (2012). With (10), irrespective of whether a defendant receives a nonprison or prison sanction, the maximum penalty remains static at five years. In this case, Ms. Woods received an eighteen-month prison sanction. Her sentence not only fell within the five-year statutory maximum, but was a less punitive sanction than alternative nonprison sanctions available to the sentencing court (a penalty she would still be serving now). Ms. Woods prison sentence was not a greater punishment than if, for instance, she d received the maximum nonprison sanction 364 days incarcerated in county jail followed by four years of some combination of community control or probation, with attendant house arrest restrictions, having to provide an hourly accounting of her whereabouts, and having to participate in treatment or other special programs ordered by the trial court (along with the prospect of re-incarceration for any violation over this four years). Cf. Blair v. State, 667 So. 2d 834, 842 (Fla. 4th DCA 1996) (affirming a 3.5-year prison sentence followed by an 11.5-year probation sentence in a case involving a 15-year statutory maximum, where the sentencing guideline range called for any nonstate prison sanction or community control or years incarceration ); Holloway v. State, 668 So. 2d 627, 628 (Fla. 5th DCA 1996) (noting that only the incarcerative portion of a split sentence must fall within the sentencing guideline range ); Brown v. State, 647 So. 2d 197, 198 (Fla. 1st DCA 29

30 1994) (same). Section (10) thus did not increase Ms. Woods punishment even if Florida law required the trial court to make an extra finding before allowing her to fill one of its prison beds. Because Apprendi permits judicial fact-finding that informs decisions between alternative, within-the-range sentences, Ms. Woods sentence should be affirmed and her facial challenge to (10) must fail. See Cashatt, 873 So. 2d 434 (noting that with a facial challenge the challenger must establish that no set of circumstances exists under which the statute would be valid ). My colleagues who see an Apprendi-Blakely problem here view the statutory maximum in (10) differently based on a single fact calculated at sentencing the scoresheet score. Based on the judge s score finding, my colleagues define-down the maximum penalty to one year, which is different from the five-year maximum authorized by Ms. Woods guilty plea. Their view conflicts with the definition of maximum sentence established in Blakely. Blakely said that a 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. 542 U.S. at (emphasis added). In other words, Apprendi and Blakely instruct us not to redefine statutory maximums based upon facts found at sentencing, like the scoresheet score here. 30

31 In addition to using sentencing facts to define down the statutory maximum for some third-degree felonies, my colleagues analysis gives inordinate weight to the scoresheet score, which is only one of the sentencing facts referred to in the statute. The scoresheet score finding shouldn t be singled out and favored to the exclusion of other sentencing facts cited in the statute. Reading (10) as an integrated whole, it calls for nonprison sanctions for some offenders only if the defendant s situation meets the scoresheet score threshold and satisfies public danger concerns. My colleagues severability argument concedes that the public danger finding is integral to the statute. If the public danger factor is crucial to the statute and explicitly contemplates prison sanctions, then I don t think it proper to downwardly re-define the statutory maximum sentence as if prison sanctions were eliminated from the picture. In sum, (10) only affects the routine choice that sentencing judges must make between alternative jury-authorized punishments, whether to give one form or punishment or another. The statute does not authorize courts to sentence above the five-year statutory maximum applicable to third-degree felonies. For this reason, we should join those courts that have not extended Apprendi s rule to statutes like this one. See Porter, 110 So. 3d at 963 (denying a Blakely-based challenge to (10)); State v. Anderson, 867 N.W.2d 718 (S.D. 2015) 31

32 (holding that Apprendi doesn t extend to a presumptive probation statute that allows the trial court to impose a prison term upon finding predicate facts); State v. Carr, 53 P.3d 843, 850 (Kan. 2002) ( Apprendi [is] inapplicable to a sentencing judge s decision to impose a dispositional departure prison sentence rather than to grant probation. ); People v. Crawford, 961 N.E.2d 447 (2nd District Ill. 2011) (imposition of five year prison term instead of probation based upon judicial factfinding didn t violate Apprendi). C. The second reason Apprendi does not apply in this case is that Florida s judges, not juries, have traditionally made sentencing-related, public danger evaluations like those under (10). The Apprendi cases are clear that jury rights do not attach to every type of fact-finding that can increase a sentence, nor to every contemporary state-law entitlement to predicate findings. Ice, 555 U.S. at 170. The Court has extended constitutional protections only to facts that are elements or the functional equivalent[s] of element[s] of actual criminal offenses. See, e.g., United States v. Booker, 543 U.S. 220, 230 (2005) (recognizing the rights of criminal defendants to demand a jury verdict as to all the elements of the charged crime). It has excluded from Apprendi s reach sentencing decisions that are outside of the historic ambit of juries. Ice, 555 U.S. at See also 32

33 U.S. v. Bedgood, 569 Fed. Appx. 836, 838 (11th Cir. 2014) ( there is no requirement that sentencing facts be submitted to a jury and found beyond a reasonable doubt ) (quoting United States v. Diaz, 248 F.3d 1065, 1105 (11th Cir. 2001)). The type of finding required by (10) is different from the Apprendi cases because it doesn t include fact-finding about the defendant s crime itself, elements of the crime, or the degree of culpability involved with the crime. Apprendi, for instance, required the jury to determine if a crime constituted a hate crime ; in Blakely, the finding involved whether the crime was deliberately cruel; in Booker, the finding involved whether the defendant possessed a certain quantity of drugs; in Cunningham v. California, 549 U.S. 270 (2007), the finding involved whether the crime was violent and whether the victim was particularly vulnerable; and in Alleyne, the finding involved whether the defendant brandished a firearm. In each of these cases, unlike in this case, a judge could increase the defendant s sentence based upon findings related to the crime itself. The public danger finding required by (10) involves a different kind of evaluation, which has traditionally been left to judges. It is not a finding about the crime itself, but about what type of jury-authorized penalty a judge should give to a convicted defendant. With (10), the Legislature has 33