Toye v. State

• Decision Date: 11 December 2019
• Docket Number: Case No. 2D16-5423
• Citation: 311 So.3d 78
• Parties: Ashley M. TOYE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

311 So.3d 78

Ashley M. TOYE, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D16-5423

District Court of Appeal of Florida, Second District.

Opinion filed December 11, 2019

Mariko Shitama Outman of Carlton Fields Jorden Burt, P.A., Tampa, and Chris W. Altenbernd of Banker Lopez Gassler P.A., Tampa, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.

KELLY, Judge.

In 2007, a jury found Ashley M. Toye guilty of two counts of first-degree felony murder, two counts of kidnapping, two counts of aggravated assault, and one count of tampering with evidence based on events that occurred when Toye was seventeen years old. The trial court sentenced Toye to the mandatory sentence of life in prison without the possibility of parole for the felony murders and to concurrent sentences totaling a term of twenty-five years for the other charges. In 2008, this court per curiam affirmed Toye's judgments and sentences. Toye v. State, 988 So. 2d 1104 (Fla. 2d DCA 2008) (table decision). In 2012, the Supreme Court declared that the Eighth Amendment to the United States Constitution prohibited the imposition of a mandatory life sentence without the possibility of parole for crimes committed by individuals under the age of eighteen. Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Relying on Miller, Toye unsuccessfully challenged her life sentences in the circuit court.¹ On appeal from that order, we reversed and instructed the circuit court to resentence Toye in accordance with the requirements of Miller. Toye v. State, 133 So. 3d 540, 547 (Fla. 2d DCA 2014).

After we remanded but before Toye was resentenced, the Florida Supreme Court held that Miller resentencings should be conducted pursuant to newly enacted legislation intended to bring Florida law in to conformity with Miller. See Falcon v. State, 162 So. 3d 954, 956-57, 963 (Fla. 2015), receded from on other grounds Williams v. State, 242 So. 3d 280 (Fla. 2018) ; Horsley v. State, 160 So. 3d 393, 395 (Fla. 2015). Pertinent to this appeal, section 775.082(1)(b), Florida Statutes (2015), provides:

1. A person who actually killed, intended to kill, or attempted to kill the victim and who is convicted ... of a capital felony ... which was committed before the person attained 18 years of age shall be punished by a term of imprisonment for life if, after a sentencing hearing conducted by the court in accordance with s. 921.1401, the court finds that life imprisonment is an appropriate sentence. If the court finds that life imprisonment is not an appropriate sentence, such person shall be punished by a term of imprisonment of at least 40 years. A person sentenced pursuant to this subparagraph is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(a).

2. A person who did not actually kill, intend to kill, or attempt to kill the victim and who is convicted ... of a capital felony ... which was committed before the person attained 18 years of age may be punished by a term of imprisonment for life or by a term of years equal to life if, after a sentencing hearing conducted by the court in accordance with s. 921.1401, the court finds that life imprisonment is an appropriate sentence. A person who is sentenced to a term of imprisonment of more than 15 years is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(c).

Section 921.1402, Florida Statutes (2015), in turn provides:

(2)(a) A juvenile offender sentenced under s. 775.082(1)(b) 1. is entitled to a review of his or her sentence after 25 Years....

....

(c) A juvenile offender sentenced to a term of more than 15 years under s. 775.082(1)(b) 2., s. 775.082(3)(a) 5.b., or s. 775.082(3)(b) 2.b. is entitled to a review of his or her sentence after 15 years.

Thus, a finding that a juvenile offender actually killed, intended to kill, or attempted to kill results in a mandatory minimum sentence of forty years' imprisonment and judicial review after twenty-five years, while a finding that a juvenile did not actually kill, attempt to kill, or intend to kill, carries no mandatory minimum and requires judicial review after fifteen years.

At the time of Toye's resentencing, it was up to the sentencing judge to make the finding regarding whether the defendant actually killed, intended to kill, or attempted to kill. See, e.g., Falcon, 162 So. 3d at 963 (holding that under section 775.082(1) the trial court must determine whether the defendant "actually killed, intended to kill, or attempted to kill the victim"). The State took the position that Toye should be sentenced under section 775.082(2)(b)(2), which entitled her to a review after fifteen years pursuant to section 921.1402(2)(c), and it recommended a term of years sentence rather than a life sentence:

I do know that the State has toyed with what would be appropriate given the other sentences [of Toye's codefendants who entered pleas] and has considered recommending 30 years to the Court as an appropriate sentence. I know the State has also considered thinking about recommending somewhat less and asking for a term of probation.

But it would be the State's recommendation that the Court consider something less than a life sentence for Ms. Toye.

The State explained that while Toye was "an active participant," her culpability was different from the three codefendants in her case who got the longest sentences, and it noted that the two actual shooters received life and fifty years, respectively. Finally, the State pointed to Toye's immaturity at the time of the offense and the fact that she had "actively sought to rehabilitate herself while she has been incarcerated." The circuit court orally announced Toye's sentence at a subsequent hearing where it imposed life sentences and also found that Toye had intended to kill the victims; therefore, pursuant to sections 775.082(1)(b)(1) and 921.1402(2)(a), she was not entitled to review of her sentences for twenty-five years.

Toye challenges these sentences in this appeal. While this appeal was pending, the Florida Supreme Court decided Williams v. State, 242 So. 3d 280, 282 (Fla. 2018), which held that under the Sixth Amendment to the U.S. Constitution and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), the finding that a defendant actually killed, intended to kill, or attempted to kill, under section 775.082(1)(b) must be made by a jury beyond a reasonable doubt, not by a judge. In light of Williams, this court relinquished jurisdiction to the circuit court so Toye could file a motion under Florida Rule of Criminal Procedure 3.800(b)(2) to correct sentencing error. The circuit court denied the motion after erroneously concluding that the legality of Toye's sentence could not be raised in a rule 3.800(b)(2) motion. See Jackson v. State, 983 So. 2d 562, 573-74 (Fla. 2008).

Thus, the first issue we address is whether Toye's sentence is legal under Williams. In Williams, the court held that in order for a juvenile offender to be sentenced under section 775.082(1)(b)(1), a jury must find beyond a reasonable doubt that the juvenile actually killed, intended to kill or attempted to kill the victim. 242 So. 3d at 287-88. Here, Toye was sentenced under section 775.082(1)(b)(1) after the sentencing judge found she intended to kill the victims. Absent a jury finding that she intended to kill the victims, however, Toye's sentence violated her Sixth Amendment right to a jury trial. See Alleyne, 570 U.S. at 114-15, 133 S.Ct. 2151 ; Williams, 242 So. 3d at 287-88. Thus, as did the court in Williams, we look to the verdict form and the jury instructions in Toye's case to determine if there is a "clear jury finding" that Toye intended to kill the victims.² See Williams, 242 So. 3d at 288-89. We conclude there is not, a fact the State acknowledges in its brief. Thus, Toye was sentenced in violation of Alleyne and Williams.

This does not end our inquiry, however. In Williams, the court also held that an Alleyne violation is subject to harmless error review. 242 So. 3d at 290. The court framed the harmless error inquiry as "whether the failure to have the jury make the finding as to whether the juvenile offender actually killed, intended to kill, or attempted to kill contributed to his sentence" or stated differently, "whether the record demonstrates beyond a reasonable doubt that a rational jury would have found the juvenile offender actually killed, intended to kill, or attempted to kill the victim." Id. (citing Galindez v. State, 955 So. 2d 517, 523 (Fla. 2007) ). The State rightly recognizes that given our recent decision in Washington v. State, 257 So. 3d 520 (Fla. 2d DCA 2018), a case involving one of Toye's codefendants, the Alleyne error in this case cannot be considered harmless.³

The State argues that should we reverse Toye's sentence, all that is required on remand is for the sentencing court to correct Toye's sentence to conform to the jury's finding that she did not actually kill, intend to kill, or attempt to kill the victims; therefore, she is entitled to have her sentence reviewed after fifteen years. Toye contends that under Williams, she is entitled to a de novo resentencing hearing conducted pursuant to section 924.1401. See Williams, 242 So. 3d at 292-93. We agree.

In Williams, the court remanded for resentencing, not simply for correction of Williams's sentence to reflect that he was entitled to have his sentence reviewed after fifteen years. 242 So. 3d at 293-94. While Williams rejected the argument that on resentencing a jury could be empaneled to make the findings required by section 775.082(1)(b), it nevertheless held that Williams was entitled to "resentencing under 775.082(1)(b)2." Id. We are not willing to infer that the court did not mean what it said when it held that "resentencing is the appropriate remedy for an Alleyne violation that is not harmless." Id....