McCloud v. State
| Decision Date | 28 December 2001 |
| Docket Number | No. 5D97-2011.,5D97-2011. |
| Citation | 803 So.2d 821 |
| Parties | Terrance E. McCLOUD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
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.
EN BANC
This case appears before us on remand from the United States Supreme Court. See McCloud v. Florida, 531 U.S. 1063, 121 S.Ct. 751, 148 L.Ed.2d 654 (2001). The Supreme Court's opinion was succinct:
Apprendi was a five-to-four decision of the United States Supreme Court in which the various opinions of the justices reflected sharp disagreement concerning the scope and meaning of the majority opinion. Commentators and courts that have thus far weighed in on Apprendi demonstrate a parallel uncertainty. See, e.g., People v. Carney, 196 Ill.2d 518, 256 Ill.Dec. 895, 752 N.E.2d 1137 (2000)
; Stephen A. Saltzburg, Due Process, History and Apprendi v. New Jersey, 38 Am.Crim. L.Rev. 243 (2001); Robert Batey, Column, Sentencing Guidelines and Statutory Maximums in Florida: How to Best Respond to Apprendi, 74 Fla. B.J. 57 (2000); Joseph Hoffman, Apprendi v. New Jersey, 38 Am. Crim. L.Rev. 255 (2001); Benjamin Priester, Constitutional Formalism and the Meaning of Apprendi v. New Jersey, 38 Am.Crim. L.Rev. 281 (2001). In order for the high court and anyone else not steeped in Florida's sentencing procedures to appreciate our difficulty in applying the holding of Apprendi, a brief explanation of the relevant sentencing guidelines is in order.
Florida has long been engaged in an effort to create a viable determinate sentencing scheme. The 1995 sentencing guidelines, which are applicable to this case, operated on a point system calculated on a "scoresheet" prepared for the sentencing hearing. § 921.0014, Fla. Stat. (1995). Crimes were categorized by offense severity level and a table contained in the statutes set forth the precise number of points to be assessed for the primary offense scored at conviction. Next, points were scored for additional convicted offenses. Third, the physical injury inflicted on the victim during the convicted offenses had to be evaluated to determine whether it should be categorized as either: "death", "severe", "sexual penetration", "moderate", "sexual contact", or "slight".1 If the trial judge, based on a preponderance of the evidence, found such a level of injury, it was scored a specific number of points.
After totaling the points for all these categories, a calculation of "prior record" points was made using a separate chart. Next, additional points were assessable for several separate categories such as "legal status" (meaning whether the defendant was on probation or community control when he committed the offense). Once all the points were scored and totaled, a calculation of state prison months was made. This was done by simply subtracting the number twenty-eight from the total score. The resulting number became a specific number of prison months, referred to as the "recommended sentence." The next entry on the scoresheet called for the calculation of twenty-five percent above the recommended sentence and twenty-five percent below. This would be the range of sentencing discretion given the trial court without having to follow the guidelines "departure procedure," which would require the finding of one or more statutorily identified upward or downward departure grounds. If the judge found a ground for upward departure, he or she was authorized to impose any sentence within the relevant maximum sentence for the particular degree of crime set forth in section 775.082, Florida Statutes. § 921.0016(1)(e) (1995).
Section 775.082, Florida Statutes (1995), entitled "Penalties", which long predates the advent of sentencing guidelines, identifies the range of penalties applicable to every degree of offense existing in Florida from a capital felony to a second-degree misdemeanor. This statute expressly sets forth the maximum penalty for every degree of offense. A second-degree felony, for example, is punishable "by a term of imprisonment not exceeding fifteen years." § 775.082(3)(c), Fla. Stat. (1995). The maximum penalties set forth in section 775.082 are referred to as the "statutory maximum" for each offense. See Mays v. State, 717 So.2d 515 (Fla.1998)
. Unless the offender falls within a category which qualifies for special sentencing treatment, such as "habitual offenders," the statutory maximum can only be exceeded if the guidelines range is greater than the statutory maximum.
McCloud was convicted of three second-degree felonies: sexual battery, burglary of a dwelling and lewd or lascivious act in the presence of a child. His case may be a propitious one for beginning an analysis of whether and how Florida's myriad of guidelines sentencing schemes stand up under Apprendi because McCloud's guidelines scoresheet is an uncharacteristically simple one.2 The sentencing calculation under the 1995 sentencing guidelines was the following:
Primary offense Sexual battery second-degree felony 74 points Additional offenses Burglary of an occupied dwelling second-degree felony 28 points Lewd, lascivious act in the presence of a child 28 points Victim injury Sexual penetration 80 points Prior record 2 points __________ Total 212 points 212 minus 28 = 184.0 recommended sentence 184.0 × .075 = 138 minimum prison months 184.0 × 1.25 = 230 maximum prison months
In order to determine whether the rule of Apprendi applies to require that the determination of victim injury be submitted to a jury and proved beyond a reasonable doubt, it is necessary to determine the "statutory maximum" for purposes of applying Apprendi. Is it fifteen years? Is it 230 months, or is it something else? Judge Harris suggests the "statutory maximum" would be the number of prison months yielded by scoring the convicted offenses alone under the guidelines. Because, under the sentencing guidelines, every point is equal to a prison month, the addition of even a single point will affect the guidelines sentencing range. Whenever any point is added for any reason, except recidivism, the resulting score will yield a sentence above the score for the crime standing alone; therefore, reasons Judge Harris, any such ground under the sentencing guidelines for adding any sentencing points above those assessable for the convicted offenses (and recidivism) must be proved to a jury beyond a reasonable doubt. This interpretation and application of Apprendi has support in Apprendi's majority opinion and even more in the concurring opinions. Also, there is an illogic to the constitutional imperative of a jury finding beyond a reasonable doubt for any sentencing fact that increases punishment even one day beyond the "statutory maximum" but makes no such requirement if the same fact is used to increase punishment for any amount of time below the statutory maximum. As a Fordham University law student recently observed in a fine student note attempting to decipher Apprendi:
If the Constitution entitles defendants to heightened protections at sentencing, then such protections should extend to every determination that a judge makes and not just be triggered by "the maximum." As a practical matter, after Apprendi, defendants' sentences can still be substantially increased as a result of findings made by judges, rather than juries, using merely a preponderance of the evidence standard. This interpretation yields the absurd result of continuing to allow judges to make findings of fact that increase the length of the defendant's sentence within the prescribed statutory maximum penalty, while they cannot make decisions that would raise the penalty above the statutory maximum.
Andrew J. Fuchs, Note, The Effect of Apprendi v. New Jersey on the Federal Sentencing Guidelines: Blurring the Distinction Between Sentencing Factors and Elements of a Crime, 69 Fordham L.Rev. 1399, 1427 (2001) (footnotes omitted.) Yet, ultimately, Mr. Fuchs and most others who have thus far undertaken an analysis of Apprendi appear to conclude that the court did indeed intend to preserve the trial judge's power to sentence within the commonly understood "statutory maximum" by making traditional sentencing judgments and to require proof to a jury beyond a reasonable doubt only where inclusion of these factors would increase the severity of the penalty beyond the statutory maximum. Stephen A. Saltzburg, supra; ...
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