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Brown v. State

Florida Court of Appeals, Fifth District

December 15, 2017

LAVERNE BROWN, Appellant,
v.
STATE OF FLORIDA, Appellee.

          NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Orange County, Mark S. Blechman, Judge.

          James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.

          EISNAUGLE, J.

         Laverne 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.

         Appellant's 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 findings:

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 from Walmart.
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 stealing.
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.

         Appellant 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.

         The 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 ...


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