JUAN C. CASIANO, Appellant,
STATE OF FLORIDA, Appellee.
final until disposition of timely filed motion for rehearing.
Consolidated appeal from the Circuit Court for the Nineteenth
Judicial Circuit, Indian River County; Cynthia L. Cox, Judge;
L.T. Case Nos. 312017CF001209A and 312018CF000831A.
Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.
Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.
Casiano raises two challenges to the prison sentences he
received after entering a partially negotiated no contest
plea to several driving offenses. First, he argues the court
erred when it, and not a jury, made a finding that he was a
danger to the public under section 775.082(10), Florida
Statutes (2018). Second, he argues the court's findings
were legally insufficient to demonstrate that he would pose a
danger to the community if sentenced to a nonstate prison
sanction. But because Casiano has served the sentence he
challenges on appeal and has been released from prison, we
dismiss this appeal as moot.
the court sentenced Casiano to state prison, it applied
section 775.082(10), Florida Statutes. For a defendant who
scores fewer than twenty-two sentencing points and is being
sentenced for a third-degree felony, that section allows the
court to "sentence the offender to a state correctional
facility" if it makes "written findings that a
nonstate prison sanction could present a danger to the
public." Id. Otherwise, the court must sentence
the defendant to a nonstate prison sanction. Id.
time of Casiano's sentencing, the court properly applied
the statute because we had previously rejected his exact
argument. See Porter v. State, 110 So.3d 962 (Fla.
4th DCA 2013). In Porter, we rejected a
defendant's argument that a jury must make a finding that
he was a danger to the community. Id. at 963. The
circuit court therefore correctly complied with our decision
in Porter when it rejected Casiano's challenge.
after the court sentenced Casiano, our supreme court
disapproved Porter. Brown v. State, 260
So.3d 147, 151 (Fla. 2018). In Brown, the supreme
court held that section 775.082(10) "violates the Sixth
Amendment by requiring the court rather than the jury to make
the finding of dangerousness to the public necessary to
increase the statutory maximum nonstate prison sanction to a
state prison sentence." Id. As a result,
"for a court to impose any sentence above a nonstate
prison sanction when section 775.082(10) applies, a jury must
make the dangerousness finding." Id.
on Brown, Casiano is correct that the court erred
when it made a finding that he posed a danger to the
community, a finding a jury needed to make. Even so, we
cannot reverse Casiano's sentence.
this appeal, Casiano served his sentence and was released
from prison. Casiano's appeal therefore is moot See Woods
v State, 214 So.3d 803, 804-05 & n1 (Fla 1st DCA 2017)
(on reh'g en banc) (Makar, J, concurring in affirmance)
In Woods, the First District issued an en banc per curiam
affirmed decision with multiple concurring and dissenting
opinions Woods raised the same challenge to section
775082(10) as Casiano and, like Casiano, Woods was released
from prison before the en banc argument being scheduled
Id. at 804-05 (Makar, J, concurring in affirmance).
release from prison led eight out of the fourteen judges to
agree the appeal was moot. In Judge Makar's concurring
opinion, joined by four other judges, he explained that
Woods's appeal was moot. Id. at 804-05 & n.1
(Makar, J., concurring in affirmance). But he explained that
mootness does not destroy an appellate court's
jurisdiction when the issue is of great public importance and
likely to recur. Id. (Makar, J., concurring in
affirmance). In Judge Winsor's dissenting opinion, joined
by two other judges, he agreed the appeal was moot and argued
it should be dismissed. Id. at 825-26 (Winsor, J.,
later case, that court addressed this issue of mootness and
the prison releasee reoffender statute. Johnson v.
State, 260 So.3d 502, 505 (Fla. 1st DCA 2018). As here,
Johnson was released from prison during the appeal.
Id. Despite the apparent earlier agreement of eight
judges that the issue was moot, a split three-judge panel in
Johnson reached a different result. See id.
The majority stated that because "adverse legal
consequences could befall Appellant as a result of his
sentence," the appeal was not moot. Id. In
dissent, Judge Rowe stated that she "would dismiss the
appeal as moot. Johnson was sentenced to 383 days and given
credit for the 383 days he had already served in a Department
of Corrections' facility." Id. at 509
(Rowe, J., dissenting).
agree with Judge Rowe's opinion in Johnson and
those of the eight judges on the First District who agreed
the appeal in Woods was moot. When a defendant
challenges a sentence that has been served, the appeal is
dismissed as moot. See, e.g., Williams v.
State, 591 So.2d 295, 296 (Fla. 4th DCA 1991) (citing