Simmons v. State
Decision Date | 13 February 2019 |
Docket Number | No. 3D17-832,3D17-832 |
Citation | 273 So.3d 116 |
Parties | Mister SIMMONS, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
Ashley Moody, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
Before LOGUE and MILLER, JJ., and SUAREZ, Senior Judge.
Mister Simmons ("Simmons") appeals from a fifty year upward departure sentence imposed upon resentencing pursuant to State v. Thompson, 750 So.2d 643 (Fla. 1999). For the following reasons, we affirm the trial court's imposition of a departure sentence but remand for the trial court to reduce Simmons's sentence from fifty years to forty years.
Simmons was convicted of second degree murder with a firearm and possession of a firearm with a removed serial number. The crimes were committed on January 30, 1997. On April 26, 2000, the trial court sentenced Simmons to a term of natural life in prison as a habitual felony offender.
In December 2014, Simmons filed a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing that his habitual offender sentence for second degree murder, which is a life felony, was invalid under State v. Thompson, 750 So.2d 643 (Fla. 1999). The trial court denied the motion, and Simmons appealed. This Court reversed and remanded for further proceedings, as the postconviction record failed to show conclusively that Simmons was entitled to no relief. Simmons v. State, 180 So.3d 244, 245 (Fla. 3d DCA 2015). This Court noted that Simmons's motion "may be well-taken" if he committed the offense on January 30, 1997, within the "window" for a Thompson error. Id.
On remand, the trial court resentenced Simmons under the 1994 version of the sentencing guidelines. The guidelines scoresheet indicated a permissible range of between 191 months and 318.875 months. The trial court sentenced Simmons to an upward departure sentence of fifty years, finding that Simmons engaged in an escalating pattern of criminal conduct. The trial court entered a written order, finding "that there is a reasonable justification for upward departure from the sentencing guidelines." Specifically, the trial court stated as follows:
In accordance with Florida Statutes section 921.001(1), the Court finds beyond a reasonable doubt that the defendant's prior convictions justify an upward departure from the sentencing guidelines. Specifically, this Court finds that the Defendant's prior convictions prove beyond and to the exclusion of every reasonable doubt that the Defendant engaged in an escalating course of conduct as described in 921.001(8),[1 ] and that he is not amenable to rehabilitation or supervision.
The trial court relied upon the fact that Simmons committed five armed robberies in the two months prior to the second degree murder at issue in the instant case, as well as 1995 convictions for two counts of unoccupied burglary, one count of petit theft, one count of criminal mischief, and one count of extortion. Simmons's appeal from the fifty-year sentence follows.
Montgomery v. State, 230 So.3d 1256, 1258 (Fla. 5th DCA 2017), review denied, No. SC18-102, 2018 WL 6434797 (Fla. Dec. 7, 2018) (citations omitted).
Simmons raises three arguments on appeal. First, Simmons asserts that the trial court's imposition of an upward departure sentence without a jury determination that he engaged in an escalating pattern of criminal conduct violates the dictates of 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). Second, Simmons argues that he is entitled to relief claiming the trial court failed to specifically find that he was not amenable to rehabilitation or supervision and that such a specific finding is required by section 921.0016(3)(p), Florida Statutes (1993), before a departure sentence may be imposed. Third, Simmons argues that his fifty-year sentence is illegal. We address each argument in turn.
In Apprendi, the Supreme Court held "[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. Subsequently, in Blakely, the Supreme Court held:
Our precedents make clear ... 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.
542 U.S. at 303-04, 124 S.Ct. 2531 (citations omitted).
It is well established that a violation of the principles set forth in Apprendi and Blakely is subject to harmless error review. Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) ( ); Galindez v. State, 955 So.2d 517, 522–23 (Fla. 2007) ( ); see also Williams v. State, 242 So.3d 280, 289-90 (Fla. 2018) ( ); Plott v. State, 148 So.3d 90, 94 (Fla. 2104) ("A claim of error under Apprendi and Blakely is subject to harmless error analysis."). For that reason, when "the record demonstrates beyond a reasonable doubt that a rational jury would have found" a fact that exposes the defendant to a sentence exceeding the statutory maximum, harmless error is shown. Galindez, 955 So.2d at 523, 524 ( ).
Given these principles, we find that the trial court improperly enhanced Simmons's sentence in violation of Apprendi and Blakely when it imposed an upward departure sentence based upon its own, rather than the jury's, factual finding that Simmons engaged in an escalating course of criminal conduct pursuant to section 921.001(8). In other words, because the trial court could not have departed from the guidelines sentence under section 921.001(8) based only on the jury's finding that Simmons was guilty of second degree murder with a firearm and possession of a firearm with a removed serial number, a violation of Blakely and Apprendi occurred. See e.g., Plott, 148 So.3d at 95 ( ); Plasencia v. State, 170 So.3d 865, 871 (Fla. 2d DCA 2015) (); Donohue v. State, 925 So.2d 1163 (Fla. 4th DCA 2006) ( ); cf. Brown v. State, 260 So.3d 147 (Fla. 2018) ( ).
As explained above, however, Blakely and Apprendi errors are subject to a harmless error analysis. We conclude, based on the record, that the trial court's violation of the principles set forth in Apprendi and Blakely was harmless beyond a reasonable doubt. In this case, Simmons was convicted in June 1995 of two counts of unoccupied burglary, one count of petit theft, one count of criminal mischief, and one count of extortion. Less than two years later, in December 1996, Simmons committed two armed robberies. The next month, January 1997, Simmons committed three armed robberies. That same month, on January 30, Simmons's crimes culminated with the second degree murder with a firearm committed in the instant case. Simmons's criminal activity, therefore, escalated over the course of two months from armed robbery to second degree murder, having begun less than two years earlier with non-violent crimes. Given this, a rational jury would have found that Simmons's prior record indicated an escalating pattern of criminal conduct, and any Apprendi and Blakely error is harmless. See Isaac v. State, 989 So.2d 1217, 1219 (Fla. 1st DCA 2008) (...
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...find such escalation when looking at defendant’s criminal record, comprised of several burglaries and armed robberies. Simmons v. State, 273 So. 3d 116 (Fla. 3d DCA 2019) Defendant filed a motion for a downward departure based on the grounds that he required specialized treatment for his ph......