Behl v. State, 2D03-184.

• Decision Date: 16 March 2005
• Docket Number: No. 2D03-184.,2D03-184.
• Parties: Edward A. BEHL, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

898 So.2d 217

Edward A. BEHL, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.

No. 2D03-184.

District Court of Appeal of Florida, Second District.

March 16, 2005.

James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant/Cross-Appellee.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee/Cross-Appellant.

CANADY, Judge.

Edward A. Behl appeals the judgments and sentences imposed on him for one count of the capital felony of sexual battery on a child under the age of twelve years¹ (count I) and two counts of the first-degree felony of sexual battery by a person in familial or custodial authority² (counts II and III), as well as his designation as a sexual predator.³ The State cross-appeals the trial court's order suppressing certain evidence.

We conclude that the arguments raised by Behl with respect to his convictions and his designation as a sexual predator are without merit. We therefore affirm those convictions and the sexual predator designation without further comment. In view of our affirmance of Behl's convictions, we need not address the State's cross-appeal.

Behl challenges the assessment of victim injury points for sex penetration on the sentencing guidelines scoresheet, which was used in sentencing for counts II and III. Behl, whose sentences were imposed under the sentencing guidelines⁴ in place before the Criminal Punishment Code became effective, contends that the trial court's assessment of victim injury points violated the principles of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), with respect to the Sixth Amendment's requirements for jury findings of facts upon which a sentence is based. We conclude that the trial court erred in scoring sex penetration points for one of the offenses of sexual battery by a person in familial or custodial authority. We therefore reverse Behl's sentences for counts II and III and remand for resentencing utilizing a corrected scoresheet. We affirm Behl's life sentence for count I, which was not affected by the guidelines scoresheet.

I. Background

The felony information against Behl alleged with respect to one of the counts of sexual battery on a person in familial or custodial authority (count II) that Behl committed the offense "by placing the mouth of [Behl] into or in union with the vagina of" the child victim. With respect to the other count of that offense (count III), the information alleged that Behl committed the offense "by placing the finger of [Behl] into the vagina of" the child victim. Jury instructions were given which tracked the allegations of the information. That is, the jury was instructed that in order to convict Behl on the respective counts it would have to determine that the evidence supported the facts alleged in the indictment. The jury returned verdicts finding that Behl was "guilty of Sexual Battery by a person in familial or custodial authority, as charged."

Behl was sentenced under the 1995 guidelines. The Florida Rule of Criminal Procedure 3.991(a) sentencing guidelines scoresheet utilized in imposing sentence on Behl for the two offenses of sexual battery by a person in familial or custodial authority contains the following notation in the portion of the scoresheet relating to victim injury: "Sex Penetration 80 x 2 = 160." It is thus apparent that points were separately assessed for sex penetration with respect to both of the offenses of sexual battery by a person in familial or custodial authority. The scoresheet shows total sentence points of 298. The sentence calculated was for 270 state prison months, with 202.5 minimum prison months and 337.5 maximum prison months. Behl was ultimately sentenced to concurrent prison terms of 337.5 months (28.125 years) for the two offenses.

Behl filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentence claiming that it was error for the trial court "to assess points for penetration because this factor was never specifically found by the jury." Behl argued that the trial court's assessment of the points for penetration violated the holding in Apprendi that where the determination of any factor, other than the existence of a prior conviction, causes a sentence to be increased beyond the statutory maximum the existence of that factor must be specifically determined by the jury. He contended that absent points for penetration his maximum recommended guidelines sentence would be 19.7 years. The trial court rejected Behl's claim.

II. Issue on Appeal

Behl argues that the sentences in counts II and III far exceed the applicable maximum sentence under the sentencing guidelines absent points for penetration. He contends that the trial court's determination that penetration occurred violates the Sixth Amendment, based on the principles articulated in Apprendi. The State argues in response that in finding Behl guilty the jury necessarily concluded that penetration occurred. Thus, the State contends, the "sentencing enhancement was based on a factor that was determined by a jury."

III. Analysis

In Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 the Supreme Court held that the Sixth Amendment right to trial by jury — as applied to the states by the Due Process Clause of the Fourteenth Amendment — requires application of this rule: "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." The court 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, 120 S.Ct. 2348. The Court specifically ruled unconstitutional New Jersey's hate crime enhancement statute which provided for an increased term of imprisonment for certain offenders based on the trial judge's finding, by a preponderance of the evidence, that the offender committed the offense with a purpose to intimidate because of race, color, gender, handicap, religion, sexual orientation, or ethnicity.

The Court applied the principles of Apprendi to the context of capital sentencing proceedings in Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), holding that the Sixth Amendment does not permit "a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty." "If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt." Id. at 602, 122 S.Ct. 2428.

After the trial court in the instant case had rejected Behl's Apprendi claim, the Supreme Court addressed the issue of Apprendi's application to the State of Washington's guidelines sentencing scheme in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The defendant in Blakely had been given a sentence exceeding the maximum sentence under the applicable standard sentencing range based on the trial judge's finding that the defendant had acted with deliberate cruelty. Id. at 2536. The Court held that the sentence violated the principles articulated in Apprendi.

Our precedents make clear ... 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 2537 (citations omitted).

The application of Apprendi's principles to guidelines sentencing schemes was reaffirmed by the Court in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 746, 160 L.Ed.2d 621 (2005), which held that the imposition of a sentence under the federal sentencing guidelines based on "additional facts that the sentencing judge found by a preponderance of the evidence" violated the Sixth Amendment. The Court noted that under the federal guidelines, as under Washington's guidelines sentencing scheme, "the relevant sentencing rules are mandatory and impose binding requirements on all sentencing judges." Id. at 749-50. The Court further observed that "[t]he availability of a departure in specified circumstances does not avoid the constitutional issue." Id. at 750.

Blakely and Booker thus hold that under a guidelines sentencing scheme which restricts judicial discretion in imposing sentences, the factors used to calculate the maximum guidelines sentence to which a defendant is exposed must be based either on (1) findings made by the jury, (2) facts admitted by the defendant, or (3) the defendant's prior convictions. The sentencing guidelines under which Behl was sentenced placed legal limitations on the trial judge's exercise of discretion in sentencing. They unquestionably were "mandatory and impose[d] binding requirements on all sentencing judges." Booker, 125 S.Ct. at 749-50; see State v. Matthews, 891 So.2d 479, 488-90 (Fla.2004),

("Under the sentencing guidelines, a narrow range of permissible sentences is determined through a strict mathematical formula. It is then within the trial judge's discretion to sentence the defendant within that narrow range.... The sentencing guidelines limit the discretion of sentencing judges to impose presumptive sentences and only allow departure...