Juan C. CASIANO, Appellant,
STATE of Florida, Appellee.
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 courts 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
time of Casianos 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
defendants 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 Casianos 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 Casianos sentence.
this appeal, Casiano served his sentence and was released
from prison. Casianos appeal therefore is moot. See
Woods v. State, 214 So.3d 803, 804-05 & n.1 (Fla.
1st DCA 2017) (on rehg 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 775.082(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
release from prison led eight out of the fourteen judges to
agree the appeal was moot. In Judge Makars concurring
opinion, joined by four other judges, he explained that
Woodss appeal was moot. Id. at 804-05 & n.1 (Makar,
J., concurring in affirmance). But he explained that mootness
does not destroy an appellate courts jurisdiction when the
issue is of great public importance and likely to recur.
Id. (Makar, J., concurring in affirmance). In Judge
Winsors 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., dissenting).
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. Seeid. 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 ...