State v. Fleming

• Decision Date: 03 February 2011
• Docket Number: No. SC06–1173.,SC06–1173.
• Parties: STATE of Florida, Petitioner,v.Christian FLEMING, Respondent.
• Court: Florida Supreme Court

61 So.3d 399

STATE of Florida, Petitioner,

v.Christian FLEMING, Respondent.

No. SC06–1173.

Supreme Court of Florida.

Feb. 3, 2011.

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Christine Ann Guard, Assistant Attorneys General, Tallahassee, FL, for Petitioner.Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Respondent.CANADY, C.J.

In this case, we consider the application in resentencing proceedings of the constitutional right to a jury determination of facts that are essential to the sentence imposed. We have for review Fleming v. State, ––– So.3d ––––, 2006 WL 1041164, 31 Fla. L. Weekly D1112 (Fla. 1st DCA 2006), in which the First District Court of Appeal certified conflict with Galindez v. State, 910 So.2d 284 (Fla. 3d DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Following our disposition of Galindez v. State, 955 So.2d 517 (Fla.2007), approving the Third District Court of Appeal's decision on other grounds, we granted the State's petition to review this case and resolve the ongoing conflict in the district courts regarding the applicability 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), to resentencing proceedings that became final after Apprendi and Blakely issued, where the conviction and the original sentence were final before they issued. Because resentencing is a de novo proceeding in which the decisional law effective at the time of the resentencing applies, we approve the decision in Fleming holding that Apprendi and Blakely apply to such resentencings conducted after Apprendi and Blakely issued.

I. BACKGROUND

A jury found Fleming guilty as charged of aggravated battery with great bodily harm, permanent disability, or permanent disfigurement (Count I); shooting within a dwelling (Count II); and false imprisonment (Count III). On June 30, 1997, the trial court sentenced Fleming to an upward departure sentence of consecutive ten-year sentences on the first two counts and a consecutive five-year term for the third. The trial court found four departure bases for the sentence: (1) the crime was committed in a heinous, atrocious, or cruel manner; (2) the victim suffered permanent physical injury; (3) the offense was committed to avoid arrest; and (4) the primary offense was scored at level seven or higher, and a prior conviction scored at level eight or higher. The conviction and sentence became final when affirmed by the district court in 1999. Fleming v. State, 740 So.2d 531 (Fla. 1st DCA 1999). Apprendi was decided the following year.

Subsequently, the district court reversed the denial of Fleming's postconviction motion, in which Fleming alleged his sentence was illegal under Heggs v. State, 759 So.2d 620, 627 (Fla.2000), and remanded for resentencing. See Fleming v. State, 808 So.2d 287 (Fla. 1st DCA 2002). ¹ At Fleming's 2003 resentencing, the circuit court scored forty points on the scoresheet for severe victim injury and again departed upward from the guidelines range of fifty-five and a half months to ninety-two and a half months upon finding the same four departure reasons. The court sentenced Fleming to twenty years' imprisonment: consecutive sentences of ten years for aggravated battery and five years each for shooting in a dwelling and false imprisonment.

A year after Blakely was decided, see 542 U.S. 296, 124 S.Ct. 2531, the First District granted Fleming a belated appeal from the 2003 resentencing order. Fleming v. State, 895 So.2d 538, 539 (Fla. 1st DCA 2005) (“Petitioner has shown that he was not advised of his right to appeal at the time of resentencing, and we therefore grant the petition.”). During the pendency of the belated appeal, Fleming filed a motion under Florida Rule of Criminal Procedure 3.800(b)(2), claiming that his new sentence violated Apprendi and Blakely. The State did not respond to the motion, and the circuit court did not rule on it. Accordingly, on appeal Fleming argued that the forty victim injury points and three of the departure reasons were invalid under Apprendi and Blakely because a judge, not a jury, made these findings. Fleming also contended that the fourth departure reason was invalid on its face because he had no convictions at level eight or higher, an issue the State conceded. Applying its prior decision in Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), review granted, 4 So.3d 677 (Fla.2009), which held that Apprendi applies to resentencings held after Apprendi issued, the First District addressed Fleming's claims. The district court found no error regarding the trial court's scoring of forty points for victim injury after determining they were supported by the jury's verdict. Fleming, –––So.3d at ––––, 31 Fla. L. Weekly at 1112.² The First District, however, determined—and the State conceded—that under Isaac the trial court's finding of the other three upward departure grounds did violate Apprendi and Blakely. Accordingly, the court reversed and remanded for resentencing. Id.

The First District subsequently granted the State's motion to certify conflict and stay the mandate in the case. By order, the district court certified conflict with the Third District's Galindez decision and two decisions from the Fourth District to the extent they “suggest that Blakely and Apprendi do not apply to resentencing proceedings.” The State then petitioned this Court for review. We postponed our decision on jurisdiction and stayed the case pending our decision in Galindez, 955 So.2d 517, which presented the conflict issue but which we ultimately decided on harmless error grounds. Finally, we granted the State's request to review this case and resolve the extant conflict.

II. ANALYSIS

The question we address here is whether—in cases in which the convictions were final before Apprendi issued— Apprendi and Blakely apply to resentencing proceedings held after Apprendi issued where the resentencing was not final when Blakely issued. As stated above, the First District has held that Apprendi and Blakely do apply in such resentencing proceedings. As explained below, however, the other four district courts of appeal disagree, reasoning that this would constitute an improper retroactive application of these United States Supreme Court decisions.³

To provide context for our analysis, we begin by (A) outlining the holdings of Apprendi and Blakely and the determinations regarding their retroactive application to final cases. Next, we (B) explain the conflict in the district courts regarding their applicability in resentencings. Finally, we (C) resolve the conflict and hold that because resentencing proceedings are de novo in nature, Apprendi and Blakely necessarily apply to resentencings held after Apprendi and Blakely issued, even where the conviction was final before they issued.

A. Apprendi and Blakely and Retroactivity to Final Cases

In its decisions in Apprendi and Blakely, the United States Supreme Court altered the rules of procedure regarding fact-finding in criminal sentencing based on the Court's interpretation of the requirements of the Sixth Amendment right to trial by jury and the Due Process Clause of the Fourteenth Amendment.

As part of a plea agreement, Apprendi pleaded guilty to, among others, a second-degree firearms offense for which the statutory maximum sentence was ten years. Apprendi, 530 U.S. at 468, 120 S.Ct. 2348. Under the state's “hate crime” statute, however, the trial court could impose a sentence of up to twenty years for the crime upon making an additional finding by a preponderance of the evidence. Id. at 468–69, 120 S.Ct. 2348. After an evidentiary hearing, the trial court found that Apprendi's crime was motivated by racial bias and imposed an enhanced sentence of twelve years. Id. at 469–71, 120 S.Ct. 2348. The question before the Supreme Court was “whether Apprendi had a constitutional right to have a jury find [the sentencing factor of] bias on the basis of proof beyond a reasonable doubt.” Id. at 475–76, 120 S.Ct. 2348. After reviewing the history of criminal sentencing, the Supreme Court stated that “nothing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute” and that “judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case.” Id. at 481, 120 S.Ct. 2348. In contrast, the New Jersey sentencing scheme provided the trial court with the power to find additional facts and impose a sentence beyond the prescribed penalty for that crime. Accordingly, 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.” Id. at 490, 120 S.Ct. 2348.

In light of the holding in Apprendi, Florida courts determined that trial courts were still empowered to find additional facts in imposing lengthier sentences, but they were limited by the maximum punishment provided by the statute for the specific crime. See Hall v. State, 823 So.2d 757, 764 (Fla.2002) (“Because the sentence for each of Hall's offenses did not exceed the statutory maximum, we conclude that Apprendi is inapplicable.”); Isaac v. State, 826 So.2d 396 (Fla. 1st DCA 2002) (“The rule of [ Apprendi ] ... does not apply when the sentence does not exceed the statutory maximum permitted by section 775.082, Florida Statutes.”).

Four years after Apprendi, the Supreme Court in Blakely addressed the application of the principles of Apprendi to guidelines sentencing schemes. In Blakely, the defendant entered a guilty plea, ...