McCloud v. State, 97-2011.

• Decision Date: 08 January 1999
• Docket Number: No. 97-2011.,97-2011.
• Citation: 741 So.2d 512
• Parties: Terrance E. McCLOUD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

741 So.2d 512

Terrance E. McCLOUD, Appellant, v. STATE of Florida, Appellee.

No. 97-2011.

District Court of Appeal of Florida, Fifth District.

January 8, 1999.

Opinion Denying Rehearing September 24, 1999.

James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Jennifer Meek, Assistant Attorney General, Daytona Beach, for Appellee.

Opinion Denying Rehearing En Banc September 24, 1999.

ON MOTION FOR REHEARING, OR, ALTERNATIVELY, FOR CERTIFICATION

GRIFFIN, C.J.

We grant the state's motion for rehearing and withdraw our prior opinion. We have reconsidered our opinion in light of the decision of the Second District Court of Appeal in Lowman v. State, 720 So.2d 1105 (Fla. 2d DCA 1998) and the decision of the First District Court of Appeal in Bradford v. State, 23 Fla. L. Weekly D2577, 722 So.2d 858 (Fla. 1st DCA 1998). We have decided to accept the view of the Lowman court that all issues pertaining to the assessment of points on the scoresheet are to be determined by the court, not the jury, and that the defendant is not constitutionally entitled to have a jury make the predicate factual determination for the scoring of penetration.

For some aspects of the scoring of points, the issue is not difficult. It is obviously most appropriate for the court to determine the defendant's prior criminal record. It is also logical that the court would best be able to ascribe a seriousness level to victim injury. We see as somewhat different, however, the question whether penetration has occurred in a sexual battery case. This involves not so much a legal judgment as a finding of a pure question of fact pertaining to the offense itself. In Lowman, the appellate court was faced with apparently clear and undisputed evidence of penetration which the lower court could simply recognize and score. We were presented with a more difficult case where proof of penetration was not required for conviction and the evidence of penetration versus mere union was in conflict. In such a situation, it is counterintuitive to say that the court may weigh the evidence and determine the nature of the defendant's offense; hence, our prior opinion. Upon reflection, however, we recognize, as did Lowman, that no distinction is made in the statute or rule between point assessment for penetration and all other aspects of scoresheet point assessment. The Bradford court did not even find it objectionable for the court to score points for possession of a firearm during the commission of the offense, even though the jury made no finding that the defendant had done so. We are doubtful about this method of adjudication in a criminal case, especially given the proliferation of point assessment categories but, at least as to the category of "victim injury," we will not recognize a special requirement of a jury finding to support a point assessment for penetration. Consistent with Lowman, we will allow this to be determined by the court. The judgment and sentence are affirmed.

Motion GRANTED; Judgment and Sentence AFFIRMED.

COBB and ANTOON, JJ., concur.

ON APPELLANT'S MOTION FOR REHEARING, REHEARING EN BANC AND/OR CERTIFICATION

GRIFFIN, J.

We initially issued an opinion in this case on November 6, 1998, vacating the defendant's sentence. Thereafter, we granted the state's motion for rehearing and issued an opinion approving the sentence. The defendant, Terrance McCloud, now seeks rehearing en banc of our second opinion urging that the opinion is in conflict with another recent opinion of this court, May v. State, 721 So.2d 741 (Fla. 5th DCA 1998), review denied, 729 So.2d 394 (Fla.1999). We have elected to consider this case en banc in order to resolve any conflict between May and this case. After considering the issue, the court, en banc, approves the decision on rehearing and disapproves of May to the extent that it may conflict with the decision in this case.

Our concern at the outset was whether victim injury points for sexual penetration could be scored for sentencing purposes in the absence of a jury finding of penetration. A guilty verdict in a sex case where penetration is a necessary element of the offense provides a clear basis for the court to score victim injury points for penetration. The problem arises where a finding of penetration does not inhere in the verdict. In such a case, the question that arises is whether the court can make the "penetration" determination by a preponderance of the evidence, or whether penetration must be charged and proved to a jury beyond a reasonable doubt. The consensus answer of the panel assigned to this case, after consideration of Lowman v. State, 720 So.2d 1105 (Fla. 2d DCA), review denied, 727 So.2d 907 (Fla.1998), and Bradford v. State, 722 So.2d 858 (Fla. 1st DCA 1998), was that no jury finding is required. The correctness of that view seems to be validated by the United States Supreme Court's recent decision in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In considering whether the federal carjacking statute's escalating provisions were separate offenses or sentencing factors, the Jones court reaffirmed that "sentencing factors" are exempt from the requirements of being charged and determined by a jury verdict. Id. at 1217. Under the Jones analysis, the threshold question is whether the legislature intended the particular factor to be an element of the offense or merely a sentencing factor.¹ The high court explained that a sentencing factor can be a penalty aggravator and, although the presence or absence of a particular fact that increases the maximum penalty for an offense may be an indicator that the fact is an element of the offense, it does not necessarily follow that any factor that increases the maximum penalty is necessarily an element of the offense. Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Both Jones and Almendarez-Torres demonstrate that the solution lies in legislative intent. If the court finds that the legislature intended a given fact to merely be a sentencing factor, then it need not be charged, it need not be decided by the jury and it need not be proved beyond a reasonable doubt. The problem the Jones court faced was uncertainty over legislative intent requiring consideration of the "constitutional doubt rule." 526 U.S. at ___, 119 S.Ct. at 1224. The "constitutional doubt" rule provides that where a statute is susceptible of two constructions, one of which creates grave constitutional questions and the other of which such questions are avoided, the court's duty is to choose the latter. Jones at 1222. This rule is inapplicable here because there is no doubt whatsoever that the Florida legislature intends "victim injury" to be a sentencing factor. Nor is there any suggestion in Jones or any related case that "victim injury" is not a constitutionally permissive sentencing factor.

In this case, we do not have the statutory ambiguities that troubled the high court in Jones and Almendarez-Torres. It is plain that the scoring of victim injury points under Section 921.0024, Florida Statutes (1997) is a "sentencing factor", not an element of the offense.² Indeed, the only reason "sexual penetration" appears in the category of "victim injury" is because of the Supreme Court of Florida's decision in Karchesky v. State, 591 So.2d 930 (Fla.1992), that sexual penetration did not qualify as a "victim injury." By undoing Karchesky through legislation, the legislature has simply created an additional victim injury point category. Penetration as a sentencing factor plainly does not need to be charged, nor must it be decided by a jury, nor must it be decided beyond a reasonable doubt. See McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). The dissent's underlying view that due process requires the issue of penetration to be decided by a jury is answered by Jones, Almendarez-Torres and McMillan.

To create an even finer wedge in the controlling law, the dissent appears to urge that where penetration is charged as a possible alternative element of an offense and the jury does not expressly find that its decision was grounded upon the "penetration alternative," it would somehow be violative of the defendant's due process rights for the trial court to assess points for penetration as if ignoring the possibility that the jury had concluded that no penetration had occurred. We find this to be a circumstance without constitutional significance. If it is not necessary for the jury to make a finding on a sentencing factor that is completely distinct from any of the elements of the offense, it makes no sense to require a jury finding just because a sentencing factor is similar to one of the alternative elements of the offense. Just as the trial court can assess victim injury points where supported by a preponderance of the evidence without a specific finding yea or nay by the jury, a trial court can do the same even if the victim injury category was an alternative element of the charged offense. To the extent that the May panel opinion required, just as we had in our original panel opinion in this case, a jury finding of penetration as a predicate for scoring penetration as victim injury on a scoresheet for purpose of determining a sentence, it is now superseded by our opinion on rehearing.

The motion for rehearing and for certification are denied.

JUDGMENT and SENTENCE AFFIRMED.

ANTOON, C.J., DAUKSCH, COBB, W. SHARP, GOSHORN and THOMPSON, JJ., concur.

HARRIS, J., dissents, with opinion, in which PETERSON, J., concurs.

HARRIS, J., dissenting.

The issue in this case is whether the jury, as opposed to the judge, must determine that a material fact exists in order to assess victim injury points when such fact is an element, even an alternative element, of the charged offense...