Galindez v. State

• Decision Date: 15 February 2007
• Docket Number: No. SC05-1341.,SC05-1341.
• Citation: 955 So.2d 517
• Parties: Alexander GALINDEZ, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

955 So.2d 517

Alexander GALINDEZ, Petitioner, v. STATE of Florida, Respondent.

No. SC05-1341.

Supreme Court of Florida.

February 15, 2007.

Rehearing Denied April 17, 2007.

Bennett H. Brummer, Public Defender and Shannon Patricia McKenna, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief Criminal Appeals, Michael E. Hantman and Paulette R. Taylor, Assistant Attorney Generals, Miami, FL, for Respondent.

PER CURIAM.

In Galindez v. State, 910 So.2d 284, 285 (Fla. 3d DCA 2005), the Third District Court of Appeal certified conflict with the First District Court of Appeal's decision in Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), which held that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), decided after the defendant's conviction was final, apply to a subsequent resentencing. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.; Galindez v. State, 925 So.2d 1030 (Fla. 2006) (granting review). As we explain below, we find that any failure to apply Apprendi and Blakely in this case constitutes harmless error. Accordingly, we need not determine whether these Supreme Court cases apply in such resentencings and we decline to resolve the conflict at this time.

I. APPRENDI AND BLAKELY AND THE CONFLICT IN THE DISTRICT COURTS

Below we first explain the holdings in Apprendi and Blakely and the pertinent facts of Galindez and briefly describe the conflict between the district courts. We then apply the Supreme Court's recent decision in Washington v. Recuenco, ___ U.S. ___, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), to the facts of this case and conclude that any error in applying Apprendi and Blakely is harmless.

A. Apprendi and Blakely and Sentencing

The Supreme Court's decisions in Apprendi and Blakely have significantly affected criminal sentencing procedure at both the state and federal levels. In 2000, the Court held in Apprendi 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. Four years later, the Court applied Apprendi in examining a sentence imposed upon the defendant's guilty plea. Blakely, 542 U.S. at 301, 124 S.Ct. 2531. Addressing the State's claim that the sentence fell within the statutory maximum, the Court stated the following:

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, 124 S.Ct. 2531 (citations omitted).

The Supreme Court recently applied the principles of Apprendi and Blakely to a determinate sentencing statute. Cunningham v. California, ___ U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). California's sentencing scheme granted trial courts discretion to sentence defendants to one of three terms of years. The middle term was the designated default, but the trial court could impose the upper term upon its own finding of aggravating factors that the Supreme Court concluded were "neither inherent in the jury's verdict nor embraced by the defendant's plea." Id. at 860. Concluding that the middle term constituted the statutory maximum, the Court held that "[b]ecause the [statute] allocates to judges the sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment." Id. at 859.

With these three decisions, the Court effectively eliminated most judicial factfinding that would increase a sentence. Except for the fact of a prior conviction, a judge may not find any fact that exposes a defendant to a sentence exceeding the relevant statutory maximum, unless that fact inheres in the verdict, the defendant waives the right to a jury finding, or the defendant admits the fact. Under Apprendi, Blakely, and Cunningham, such sentence-elevating facts must be found by a jury, not a judge, and established beyond a reasonable doubt.

B. The Facts of the Case

Based on the evidence, including the twenty-four-year-old Galindez's admissions that he repeatedly had sexual relations with a twelve-year-old girl over a period of several months and impregnated her and the pregnant victim's testimony confirming those facts, a jury found Galindez guilty of two counts of lewd and lascivious assault on a minor and one count of child abuse by impregnating the victim. See §§ 800.04, 827.04(3), Fla. Stat. (1997). Galindez's sentencing scoresheet assessed 240 victim injury points (3 × 80) for sexual penetration, and the trial court sentenced Galindez to a guidelines sentence of thirty years in prison. The Third District affirmed. Galindez v. State, 728 So.2d 333 (Fla. 3d DCA 1999).

Galindez then filed a motion under Florida Rule of Criminal Procedure 3.800(a), alleging scoresheet error. See Galindez v. State, 831 So.2d 780, 780 (Fla. 3d DCA 2002). On rehearing, the district court held that Galindez's scoresheet "erroneously reflect[ed] an assessment of 80 victim injury points" for his conviction on one of the lewd and lascivious assault counts. Id. Because "the conviction was for sexual union without penetration" and sexual penetration was not charged, the court held he should have been assessed only 40 points. Id. The Third District reversed and remanded for resentencing.

On October 30, 2003, the circuit court used a revised guidelines scoresheet assessing 200 victim injury points to sentence Galindez to 24 years in prison: 18 years on Count I (lewd assault on a minor); a consecutive sentence of six years on Count IV (lewd assault on a minor); and, concurrent with Count IV, a five-year sentence on Count V (child abuse by impregnation).

Almost immediately, Galindez filed a motion for resentencing, which the circuit court denied on November 21, 2003. Galindez appealed to the Third District. During the pendency of that appeal, he filed a motion in the circuit court under Florida Rule of Criminal Procedure 3.800(b), arguing for the first time that the assessment of victim injury points violated Apprendi because the jury did not make the victim injury findings. The circuit court denied the motion.

The following month, the United States Supreme Court decided Blakely. In considering Galindez's appeal, the Third District stated that the "primary issue" was whether Apprendi and Blakely "require the invalidation of any points for penetration because they were assessed by the court, rather than by the jury." Galindez, 910 So.2d at 284-85. The court held that to apply Apprendi and Blakely to the resentencing in this case would constitute their retroactive application and thus "alter the effect of a jury verdict and conviction." Id. at 285. The court certified conflict with the First District's contrary decision in Isaac.

C. The Conflict with Isaac

In light of our decision in Hughes v. State, 901 So.2d 837, 838 (Fla.2005), that Apprendi does not apply retroactively to cases that were final when it was decided, the Third District in Galindez held that to apply Apprendi and Blakely in a resentencing held after those opinions issued, when the conviction and original sentence were final before they issued, would constitute retroactive application. Galindez, 910 So.2d at 285. In the conflict case, however, the First District held the opposite. See Isaac, 911 So.2d at 814.

Isaac's conviction was final in 1998, and his sentence was final the next year. See id. Subsequently, pursuant to a rule 3.800(a) motion, Isaac's sentence was vacated, and he was resentenced. During the pendency of his appeal from resentencing, he filed motions under Florida Rules of Criminal Procedure 3.850 and 3.800(b) raising claims of Apprendi error. See Isaac, 911 So.2d at 814; Isaac v. State, 826 So.2d 396, 396 (Fla. 1st DCA 2002). In considering the circuit court's denial of Isaac's 3.850 motion, the First District stated that the "heart" of Isaac's claim was that, by making the factual determination of an escalating pattern of criminal activity in imposing a departure sentence at resentencing, the trial court violated Apprendi, as clarified by Blakely. 911 So.2d at 814. The First District concluded that

as Apprendi was decided prior to the appellant's resentencing, the trial court was bound by its holding. Although this Court previously affirmed the appellant's departure sentence on the basis that Apprendi does not apply so long as a sentence does not exceed the statutory maximum set forth in section 775.082, Isaac, 826 So.2d at 396, the statutory maximum has since been revealed to mean "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 124 S.Ct. at 2537. Therefore, a departure sentence imposed pursuant to the trial court determining a fact by merely a preponderance of the evidence violates the holding of Apprendi as explained by Blakely.

Id. at 814-15; accord Moline v. State, 31 Fla. L. Weekly D701, ___ So.2d ___, 2006 WL 504028 (Fla. 1st DCA Mar.3, 2006), notice invoking discretionary review filed, No. SC06-482 (Fla. Mar. 13, 2006).

Although these two district court decisions clearly conflict regarding the application of Apprendi and Blakely in resentencings held after a conviction is final, we express no...