FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Mark S. Blechman,
S. Purdy, Public Defender, and Matthew Funderburk, Assistant
Public Defender, Daytona Beach, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Kaylee D.
Tatman, Assistant Attorney General, Daytona Beach, for
Brown timely appeals from a final judgment and sentence of
three years in prison after a jury found her guilty of petit
theft, a third-degree felony due to her prior convictions. On
appeal, Appellant argues, inter alia, that her state
prison sentence violates the Sixth Amendment, as interpreted
by Apprendi v. New Jersey, 530 U.S. 466 (2000), and
its progeny, because the jury did not find that she presents
a danger to the public under section 775.082(10), Florida
Statutes (2015). We find no error and affirm.
sentencing scoresheet totaled 16.4 points. At sentencing,
Appellant argued that she should not receive a prison
sentence and instead requested a nonstate sentence of one
year in county jail, followed by probation. The trial court
rejected her request, orally finding that she presented a
danger to the public, and sentenced her instead to three
years' incarceration in state prison. Subsequently,
Appellant filed a motion to correct sentencing error, arguing
that the trial court erred by failing to make written
findings that she presented a danger to the public. The trial
court granted her motion, and provided the following written
1. Appellant was convicted of two thefts prior to being
convicted of theft and trespass in the instant case: (i) in
2014-CF-014390-A-O, Appellant was convicted of possession of
antishoplifting or inventory control device countermeasure
and petit theft of $100 or more on February 3, 2015, after
she stole merchandise from Macy's; and (ii) in
2014-CF-016501-A-O, she was convicted of grand theft
third-degree on March 11, 2015, after she stole merchandise
2. She has a pattern of complaining about chest pains when
confronted with the thefts, and using her father's
illness and demise as an excuse for her criminal behavior.
3. Appellant's convictions in February and March 2015 did
not deter her from committing the crimes in the instant case.
4. A probationary sentence would be a waste of resources
because the trial court has no confidence that she will stop
5. Based upon her actions, the trial court finds that
Appellant will continue to steal, and is therefore a danger
to the community.
Shortly thereafter, Appellant filed a second motion to
correct sentencing error, this time arguing that her sentence
is unconstitutional because it violates the Sixth Amendment.
The trial court denied this motion.
raises one issue on appeal that merits discussion. She argues
that her sentence violates the Sixth Amendment and
Apprendi because the trial court enhanced her
sentence above the statutory maximum based upon the trial
court's conclusion that she presented a danger to the
public. Section 775.082(10) provides:
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.
maximum sentence for an offender convicted of a third-degree
felony, like Appellant, is five years in state prison. §
775.082(3)(e), Fla. Stat. (2015). Appellant essentially
argues that the first sentence of subsection (10) creates a
second, lower statutory maximum for qualifying offenders like
her, and that the application of the second sentence by the
trial court, in the absence of a jury finding that ...