Smith v. State
Decision Date | 05 July 2001 |
Docket Number | No. SC00-820.,SC00-820. |
Citation | 793 So.2d 889 |
Parties | Thomas Mitchell SMITH, Petitioner, v. STATE of Florida, Respondent. |
Court | Florida Supreme Court |
Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.
Robert A. Butterworth, Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, FL, for Respondent.
We have for review Smith v. State, 754 So.2d 100 (Fla. 1st DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The petitioner challenges his sentence under the Prison Releasee Reoffender Act (the "Act") on several grounds, many of which have been previously addressed by opinions of this Court. See Grant v. State, 770 So.2d 655 (Fla.2000)
( ); McKnight v. State, 769 So.2d 1039 (Fla.2000) ( ); State v. Cotton, 769 So.2d 345 (Fla.2000) ( ); Ellis v. State, 762 So.2d 912 (Fla.2000) ( ).
Petitioner also asserts entitlement to relief pursuant to the United States Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, (2000). First, the petitioner did not properly preserve the issue for appellate review. Even if it were, we hold that an argument for relief under Apprendi lacks merit here. In Apprendi, the Supreme Court stated:
Other 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.
120 S.Ct. at 2362-63. The petitioner now asserts that because sentencing under the Act requires that a defendant "commit[ ], or attempt[ ] to commit" any of an enumerated list of crimes "within 3 years of being released from a state correctional facility operated by the Department of Corrections or a private vendor," section 775.082(9)(a)(1),1 Fla. Stat. (Supp.1998), the reasoning in Apprendi requires that a defendant's release be proved to a jury beyond a reasonable doubt. We disagree.
In our view, Apprendi did not overrule the Supreme Court's previous decision in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In McMillan, the Supreme Court considered a statute which imposed a mandatory minimum sentence in connection with an offense committed while a defendant possessed a visible firearm and held that proof of the possession of the firearm was not required because the possession did not alter the maximum penalty or create a separate offense calling for a separate penalty. The Apprendi Court made clear that it was not overruling McMillan when it stated:
The principal dissent accuses us of today "overruling McMillan." We do not overrule McMillan. We limit its holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury's verdict— a limitation identified in the McMillan opinion itself.
Apprendi, 120 S.Ct. at 2361 n. 13 (citation omitted). The Apprendi Court analyzed that the statute addressed in McMillan neither altered the maximum penalty for the crime committed nor created a separate offense calling for a separate penalty. The statute was viewed solely as a limitation upon the sentencing court's discretion to select the penalty within the range already available.
It is our opinion that the Act does not increase the maximum statutory penalty. Here the sentencing court's discretion in selecting a penalty within the statutory range is simply limited. Accordingly, proof to the jury of a defendant's release which subjects a defendant to a sentence under the Act is not required.
We agree with the reasoning of the Fourth District in Kijewski v. State, 773 So.2d 124 (Fla. 4th DCA 2000), review denied, No. SC01-181, 790 So.2d 1105 (Fla. Apr.30, 2001). We hold that Apprendi does not require that the petitioner's release be proved to a jury beyond a reasonable doubt. We also determine that the petitioner's related arguments based on Apprendi are similarly unavailing.2 Moreover, it is important to note that we have previously reached a similar conclusion in connection with sentencing under another recidivist statute. See Eutsey v. State, 383 So.2d 219, 224 (Fla.1980)
(...
To continue reading
Request your trial-
Gudinas v. State
...977-78 (Fla.2001); Sheffield v. State, 794 So.2d 592, 594 (Fla.2001); Barnes v. State, 794 So.2d 590, 592 (Fla.2001); Smith v. State, 793 So.2d 889, 891 (Fla.2001); Marshall v. State, 789 So.2d 969, 970-71 (Fla.2001); McDowell v. State, 789 So.2d 956, 957 (Fla. 2001); Sheffield v. State, 78......
-
Welch v. State, 5D01-233.
...Tallahassee, and Alfred Washington, Jr., Assistant Attorney General, Daytona Beach, for Appellee. PER CURIAM. AFFIRMED. See Smith v. State, 793 So.2d 889 (Fla.2001). HARRIS, PLEUS and ORFINGER, R. B., JJ., ...