Shields v. State

• Decision Date: 27 May 2020
• Docket Number: Case No. 2D19-493
• Citation: 296 So.3d 967
• Parties: Johnnie SHIELDS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

296 So.3d 967

Johnnie SHIELDS, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D19-493

District Court of Appeal of Florida, Second District.

Opinion filed May 27, 2020

Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.

SALARIO, Judge.

Johnnie Shields appeals from a sentence of five years in state prison that the trial court imposed after finding that he violated his probation. He argues that section 775.082(10), Florida Statutes (2016), limited the trial court to a non-state prison sanction and that its imposition of a state prison sentence based on a factual finding made by the trial judge rather than a jury violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution. We agree and reverse.

Mr. Shields was originally charged with three counts of promotion of child pornography.

He ended up pleading no contest to three counts of the lesser included offense of unlawful computer use. The trial court withheld adjudication and sentenced Mr. Shields to five years’ probation, one condition of which was that he not have unsupervised contact with minors. Mr. Shields later had unsupervised contact with a minor, and after a hearing, the trial court decided to revoke his probation on that account. The trial court then held a hearing for the purpose of sentencing Mr. Shields anew for the three counts of unlawful computer use to which he initially pleaded.

Under section 775.082(10), convicted defendants who score fewer than twenty-two sentencing points under the Criminal Punishment Code—a category into which it is undisputed Mr. Shields falls—may be sentenced only to a non-state prison sanction. An exception applies when "the court makes written findings that a nonstate prison sanction could present a danger to the public," in which case a state prison sentence is permissible. Id. Based on testimony concerning the initial conduct underlying Mr. Shields’ offenses and his subsequent conduct in violation of his probation, the State argued for a sentence of time in state prison.

Mr. Shields objected to the State's request, arguing that as interpreted by the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Sixth and Fourteenth Amendments require that a jury, not a judge, make the statutory finding of dangerousness. He directed the court to the Florida Supreme Court's decision in Brown v. State, 260 So. 3d 147 (Fla. 2018), which explicitly held that Apprendi extends to that statutory finding. Because he had fewer than twenty-two points and no jury had made a finding of dangerousness, he contended that the trial court had to sentence him to a non-state prison sentence.

The State responded that because Mr. Shields was being sentenced after the revocation of his probation, Apprendi and Brown—each of which involved the imposition of a sentence immediately after conviction, not after a subsequent probation violation—did not apply and that the trial court could make the finding of dangerousness itself. The trial court agreed, found that Mr. Shields was in fact a danger to the public, and sentenced him to five years’ state prison. Mr. Shields appeals from that sentence, raising the same argument he did at trial—namely, that the Sixth and Fourteenth Amendments prohibit a state prison sentence absent a jury finding of dangerousness.

In Apprendi, the 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. The Court recognized that the Sixth Amendment protection requiring a jury finding of guilt as to every element of a crime also applies to sentencing factors that increase a defendant's sentence beyond the statutory maximum because such sentencing factors "increase the prescribed range of penalties to which a criminal defendant is exposed." Id. at 476, 490, 120 S.Ct. 2348 (quoting Jones v. U.S., 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) ). In a subsequent decision, Blakely v. Washington, 542 U.S. 296, 303, 310, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Court applied Apprendi in the context of a plea case and also explained that a "statutory maximum" sentence 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 Brown, our supreme court held that Apprendi and Blakely require that a jury make a finding of dangerousness (or that the defendant admit to it) before a state prison sentence can be imposed under section 775.082(10). See 260 So. 3d at 150-51. The court explained that the statutory maximum sentence for a defendant with fewer than twenty-two sentencing points is "a nonstate prison sanction," since that is the maximum sentence that a judge could impose solely on the basis of the facts reflected by a jury verdict. Id. at 150 (citing Blakely, 542 U.S. at 303, 124 S.Ct. 2531 ). It therefore held that "subsection (10) violates the Sixth Amendment in light of Apprendi and Blakely based on its plain language requiring the court, not the jury, to find the fact of dangerousness to the public necessary to increase the statutory maximum nonstate prison sanction." Id. "In order for a court to impose any sentence above a nonstate prison sanction when section 775.082(10) applies, a jury must make the dangerousness finding." Id. at 151.

Thus, it is clear that the trial court could not have initially (i.e., upon his plea) sentenced Mr. Shields to state prison without a jury finding of dangerousness or Mr. Shields having admitted to it. The question is whether the result is any different here because the trial judge made the finding when Mr. Shields was sentenced a second time upon the revocation of his original probationary sentence. The answer depends on whether our supreme court's holding in Brown that a jury must make the dangerousness finding under section 775.082(10) governs in a postrevocation sentencing, an issue that no Florida court has explicitly addressed.

We hold that Brown governs in this context. Nothing in Apprendi and Blakely—the wellsprings of the decision in Brown—indicate that the right to a jury determination of any fact that increases a sentence beyond the statutory maximum is limited to an initial sentencing. Nor would that interpretation make sense. If a defendant has a constitutional interest in a jury determination of a fact that increases his sentence, that interest is every bit as material when the defendant is resentenced—following, say, an appellate reversal of an original sentence or a successful motion to correct an illegal sentence—as it was at the original sentencing hearing.

And although no Florida court has explicitly addressed whether Brown governs in a sentencing after a probation revocation, both our supreme court and the Fourth District have applied Brown to such a sentencing without discussing the question. See Gaymon v. State, 288 So. 3d 1087, 1089-90 (Fla. 2020) (holding, in a case involving a sentencing after a revocation of probation, that the proper remedy under Brown is to remand for resentencing to a non-state prison sanction or to empanel a jury to make the dangerousness finding); Lewis v. State, 286 So. 3d 290, 291-92 (Fla. 4th DCA 2019) (holding that a state prison sentence imposed after a probation revocation and based on a judge-made finding of dangerousness violated Brown ). Decisions in related contexts confirm these courts’ assumptions that Brown applies. For example, Florida courts have held that defendants in other resentencing proceedings are entitled to a jury determination of any fact that could increase a sentence beyond the statutory maximum. See, e.g., State v. Fleming, 61 So. 3d 399, 408 (Fla. 2011) (explaining that a resentencing pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) is a de novo proceeding which is afforded "the full panoply of due process rights" as the original sentencing and that Apprendi applies to such resentencings); Gilmore v. State, 64 So. 3d 200, 201 (Fla. 2d DCA 2011) ("The parties are correct that Apprendi and Blakely apply to Gilmore's resentencing."). And decisions involving constitutional protections due to a criminal defendant have not drawn any distinction between initial sentencings and postrevocation sentencings. See Finney v. State, 9 So. 3d 741, 744 (Fla. 2d DCA 2009) ("If the court could not have imposed imprisonment because a defendant was not represented in the underlying misdemeanor proceedings, it cannot impose incarceration upon an ensuing revocation of probation."); Santeufemio v. State, 745 So. 2d 1002, 1003 (Fla. 2d DCA 1999) (explaining that "[s]entencing is a critical stage of criminal prosecution for which the defendant has a constitutional right to attend" in the context of a postrevocation sentencing). We thus see no reason in law or logic why a resentencing for an offense for which a Florida court originally imposed a probationary sentence after a violation of probation would be treated any differently from any other sentencing proceeding to which Apprendi and Blakely apply.

On the contrary, the Florida law governing probation confirms that a resentencing after a violation of probation should be treated the same way as the original sentencing. Under Florida law, a "violation of probation is not itself an independent offense punishable at law." Lambert v. State, 545 So. 2d 838, 841 (Fla. 1989) ; accord Lee v. State, 54 So. 3d 573, 573 (Fla. 1st DCA 2011). Rather, it is a violation of the terms of community supervision for an offense imposed as an alternative to a more severe punishment, which can result in the loss of that more...