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Booker v. State

Florida Court of Appeals, First District

April 18, 2018

Reginald Lee Booker, III, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          An appeal from the Circuit Court for Escambia County. J. Scott Duncan, Judge.

          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 (2004); Apprendi v. New Jersey, 530 U.S. 466 (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 (quoting United States v. Gaudin, 515 U.S. 506, 510 (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 (quoting Gaudin, 515 U.S. at 510-11) (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 (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 (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 ("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 ("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 fact-finding 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. 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 (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 fact-finding; 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[1] 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 ...


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