Simmons v. State

• Decision Date: 28 January 2022
• Docket Number: Case No. 5D21-2917
• Citation: 332 So.3d 1129
• Parties: Hermando Laquin SIMMONS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

332 So.3d 1129

Hermando Laquin SIMMONS, Appellant,

v.STATE of Florida, Appellee.

Case No. 5D21-2917

District Court of Appeal of Florida, Fifth District.

Opinion filed January 28, 2022

Hermando L. Simmons, Lowell, pro se.

Ashley Moody, Attorney General, Tallahassee, and Roberts J. Bradford Jr. Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

Hermando Laquin Simmons appeals the trial court's order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm.

In 2013, a jury found Simmons guilty of robbery with a firearm and grand theft. He was sentenced to life in prison pursuant to section 775.082(9), Florida Statutes (2013), the Prison Releasee Reoffender ("PRR") statute.¹ His convictions and sentence were per curiam affirmed on appeal. See Simmons v. State, 869 So. 2d 572 (Fla. 5th DCA 2004).

Procedurally, the instant case began with Simmons sending a petition to the Florida Supreme Court challenging the constitutionality of the PRR statute. Simmons' challenge was precipitated by an order from the circuit court in Orange County, which found the PRR statute unconstitutional as improperly granting the court a function strictly within the purview of the jury, relying upon Alleyne v. State, 570 U.S. 99, 103, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ("Any fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.").² The Florida Supreme Court transferred Simmons' petition to the circuit court in Lake County, where his PRR sentence was imposed, to be treated as a motion to correct illegal sentence under rule 3.800(a). The circuit court denied the motion, and this appeal followed.

Echoing the Orange County circuit court's ruling, Simmons argues that a jury must make the factual finding under section 775.082(9) as to whether the crime for which he was subject to PRR sentencing was committed within three years of being released from prison. He contends that, similar to an increase in the sentence ceiling, the PRR statute increases the sentencing floor for offenses, and the elevation of the floor directly effects the liberty of the affected defendants, requiring a jury determination beyond a reasonable doubt. We disagree.

Simmons relies on, inter alia, Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), where the Court held that "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." However, Simmons overlooks that Apprendi includes a significant exception—the fact of a prior conviction. Id. Still, that exception is not absolute. If the fact of a prior conviction is an element of the offense, then the existence of the prior conviction must be determined by a jury, like in instances where prior convictions for theft can raise a second-degree misdemeanor of petit theft to either a first-degree misdemeanor or a third-degree felony. See § 812.014(3)(a)–(c), Fla. Stat. (2021). Likewise, if the prosecution seeks an upward departure under section 775.082(10), which requires consideration of whether a nonstate prison sanction for the defendant poses a danger to the public, such a finding must be made by the jury. See Brown v. State, 260 So. 3d 147, 150–51 (Fla. 2018) (finding section 775.082(10) unconstitutional where it required court, rather than jury, to make factual finding of dangerousness to public in order to increase maximum sentence). Under those scenarios, the fact of a prior conviction, or a defendant's criminal history, is rightfully submitted to the jury. Nevertheless, the instant case does not involve those scenarios, as establishing the date of release from prison is simply a ministerial act.

The date of a defendant's release from prison implicates neither the level of the offense, the facts of the underlying offense, nor the character of the offender as it relates to aggravation of a sentence. As such, the cases relied upon by Simmons (and the circuit court in Orange County) are inapposite. Cf. Alleyne, 570 U.S. at 117, 133 S.Ct. 2151 (holding that factual finding as to whether defendant had brandished firearm in connection with crime of violence, which would elevate mandatory minimum sentence, was element of offense to be determined by jury); Williams v. State, 242 So. 3d 280, 294 (Fla. 2018) (finding that under Alleyne, jury was required to make factual finding as to whether juvenile defendant actually killed, intended to kill, or attempted to kill victim before imposing increased minimum sentence).

This Court, in Tobler v. State, 239 So. 3d 796 (Fla. 5th DCA 2018), as well as the First and Second District Courts of Appeal, has reached the same conclusion specific to the PRR statute. See Williams v. State, 143 So. 3d 423, 424 (Fla. 1st DCA 2014) ("The key fact pertinent to PRR sentencing—whether the defendant committed the charged offense within three years of release from prison—is not an ingredient of the charged offense. Rather, it relates to the fact of a prior conviction."); Lopez v. State, 135 So. 3d 539, 540 (Fla. 2d DCA...