Brown v. State

• Decision Date: 15 December 2017
• Docket Number: Case No. 5D16–1045
• Citation: 233 So.3d 1262
• Parties: Laverne BROWN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

233 So.3d 1262

Laverne BROWN, Appellant,

v.STATE of Florida, Appellee.

Case No. 5D16–1045

District Court of Appeal of Florida, Fifth District.

Opinion filed December 15, 2017

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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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 she is a "danger to the public," is an unconstitutional enhancement above that second statutory maximum.

This argument is without merit. Section 775.082(10), by its clear language, is not an upward departure statute, but rather, provides for mandatory mitigation based on two criteria. See Porter v. State , 110 So.3d 962, 963 (Fla. 4th DCA 2013). Pursuant to the statute, an offender is entitled to mandatory mitigation when (1) he or she scores twenty-two points or fewer, unless (2) a nonstate prison sanction could present a danger to the public. Contrary to Appellant's argument, the two sentences in subsection (10) cannot be read separately to create both a second statutory maximum and a separate enhancement. Rather, they operate together to create an entitlement to mandatory mitigation¹ for those offenders who satisfy both criteria.²

A review of the United States Supreme Court's opinions in Apprendi and Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), helps to illustrate the error in Appellant's argument. In Apprendi , the United States Supreme Court held that "[o]ther 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." 530 U.S. at 490, 120 S.Ct. 2348. Later, in Blakely , Justice Scalia, writing for the majority, explained that to identify the statutory maximum, we need simply look to the punishment authorized by the jury's verdict. 542 U.S. at 303, 124 S.Ct. 2531 ("[T]he ‘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 ." (citation omitted)). In other words, Apprendi is only implicated "[w]hen a judge inflicts punishment that the jury's verdict alone does not allow ." Id. at 304, 124 S.Ct. 2531 (emphasis added).

Apprendi is not implicated here for at least two reasons. First, Appellant's sentence was fully authorized by the jury's verdict and is therefore not above the statutory maximum. In fact, the jury's verdict authorized a sentence of five years in state prison—far more than the sentence Appellant received here. See § 775.082(3)(e), Fla. Stat. (2015). Thus, Appellant's three-year sentence is not an upward departure due to judicial fact-finding. Rather, the trial court simply determined that although Appellant met the first factor for mitigation, she did not meet the second.

The essence of Appellant's argument is that she was entitled to the benefit of mitigation based upon her satisfaction of half of the factors adopted by the Legislature. Appellant cannot have it both ways. If she wants the trial court to consider mitigation of her sentence, then she must qualify based on the entire formula—including that she does not present a danger to the public. Otherwise, she is entitled to sentencing pursuant to the statutory maximum of five years' imprisonment just like every other defendant convicted of a third-degree felony. In sum, Appellant's sentence is constitutional because it is well within the five-year maximum sentence authorized by the jury.

Given this reality, the dissent attempts to seize upon other language in Blakely to support its position. It is true, as the dissent notes, "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." Blakely , 542 U.S. at 303–04, 124 S.Ct. 2531 (emphasis in original). However, the jury's verdict authorized the trial court to sentence Appellant to five years in state prison before the trial judge considered the additional findings contemplated by section 775.082(10). As Judge Osterhaus has aptly observed, the consideration of a scoresheet itself amounts to judicial fact-finding outside the purview of the jury, and therefore cannot meet Blakely' s definition of a statutory maximum. See Woods v. State , 214 So.3d 803, 816 (Fla. 1st DCA 2017) (Osterhaus, J., concurring in affirmance) (" Apprendi and Blakely instruct us not to redefine statutory maximums based upon facts found at sentencing, like the scoresheet score here."). Stated differently, the total sentence points reflected in the scoresheet cannot set the statutory maximum because the jury does not determine an offender's score and will rarely make all of the other scoresheet findings. Thus, the dissent's reliance on this language in Blakely is misplaced.

The dissent further misconceives Blakely insisting that "Justice Scalia rejected the precise argument the majority relies upon to justify affirmance in this case." Specifically, the dissent notes that in Blakely the government maintained the statutory maximum was ten years rather than the range of forty-nine to fifty-three months. Yet the distinction here is obvious. In Blakely , the defendant's plea authorized a maximum sentence of no more than fifty-three months. The ten-year maximum in that case, in contrast, served to limit any upward departure sentence imposed by the judge above the forty-nine to fifty-three months range. Unlike in Blakely , the jury's verdict in this case authorized a sentence well above the one imposed.

Second, we need only consider the way section 775.082(10) operates to confirm that it is a mitigation statute. Section 775.082(10)never increases an offender's sentence. Rather, when an offender qualifies, it reduces the sentence from a five-year maximum in state prison to a nonstate sanction. Notably, unlike in Apprendi and Blakely ,³ if the statute here were struck down as unconstitutional, then Appellant's sentence would stand because it is well within the maximum sentence authorized for the crime she committed. See, e.g. , Woods v....