Vereen v. State

• Decision Date: 28 March 2019
• Docket Number: No. 1D16-5189,1D16-5189
• Parties: Franklin VEREEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

267 So.3d 548

Franklin VEREEN, Appellant,

v.STATE of Florida, Appellee.

No. 1D16-5189

District Court of Appeal of Florida, First District.

March 28, 2019

Michael Ufferman, Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

Ashley B. Moody, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.

Per Curiam.

Franklin Vereen was convicted of sexual battery and was sentenced to twenty-four years in prison. On appeal, he does not challenge his convictions, but he argues that his sentence was unlawful. As the State concedes, we must reverse as to the challenged fines and surcharges. But we reject Vereen's remaining arguments and affirm the rest of his sentence.

At trial, the victim testified that she was sleeping in her car and awoke to find Vereen next to her holding a gun. Vereen forced her into the back seat and then drove her car to a nearby ATM. Vereen took her ATM card from her purse and demanded her PIN. He then wrapped his shirt around his face before approaching the ATM and attempting a withdrawal. Her account lacked funds, though, so Vereen left with no cash. He then drove the victim to an apartment complex and told her she had to "give up" something else. Vereen forced the victim to perform a sexual act on him, after which Vereen forced intercourse. Vereen then drove to another apartment complex, tossed the victim a wet shirt, and told her to clean herself up. He then walked away, after telling the victim if she started her car before he was out of sight, he would kill her.

Vereen testified in his defense, offering an entirely different version of events. He agreed that he and the victim spent some time in her car together, doing drugs. They had intercourse and she performed a separate sexual act. And they later went to the ATM together, hoping to get money to buy more drugs. But he insisted that he was never armed and that everything they did together was consensual.

The jury believed the victim. It convicted Vereen of two counts of sexual battery, and the court imposed two consecutive twelve-year terms of imprisonment, one for each sexual battery.

I.

Vereen first argues that he was sentenced in violation of his Sixth Amendment rights. He relies on Alleyne v. United States , in which the United States Supreme Court held that "any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury." 570 U.S. 99, 103, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). In calculating Vereen's lowest permissible sentence under the Criminal Punishment Code, the court included eighty victim-injury points for sexual penetration. § 921.0024(1)(a), Fla. Stat. Those points had the necessary effect of increasing Vereen's lowest permissible sentence. Yet as Vereen explains, there was no jury finding of penetration. The information alleged alternatively Vereen's "penetration of" or "union with" the victim's mouth and vagina, and the jury never specified on which basis it convicted. Thus, Vereen contends, Alleyne precludes assessment of penetration points, which raise his lowest permissible sentence. 570 U.S. at 115-16, 133 S.Ct. 2151 ("The essential point is that the aggravating fact produced a higher range, which, in turn, conclusively indicates that the fact is an element of a distinct and aggravated crime. It must, therefore, be submitted to the jury and found beyond a reasonable doubt.").

Even assuming Alleyne applies to victim-injury points under Florida's Criminal Punishment Code—but compare Bean v. State , 264 So.3d 947, 2019 WL 140825 (Fla. 4th DCA Jan. 9, 2019) (finding Alleyne inapplicable to "scoring of victim injury points") with Lakey v. State , 172 So.3d 989 (Fla. 5th DCA 2015) ("Because the jury did not make a specific finding of penetration rather than union, it was improper to include points for penetration.")—this does not provide a basis for reversal here. Here, any error in assessing penetration points without a jury finding would have been harmless. "An Alleyne error is harmless if the record demonstrates beyond a reasonable doubt that a rational jury would have found the fact required to impose the mandatory minimum term." Britten v. State , 181 So.3d 1215, 1218 (Fla. 1st DCA 2015) ; see also Galindez v. State , 955 So.2d 517, 522 (Fla. 2007). We are convinced that, under the facts of this case, no rational jury would have convicted Vereen of sexual battery without also finding penetration. The victim's testimony, which was essential to the conviction, provided evidence of penetration. And Vereen's own testimony—including his acknowledgment that the victim "sucked" on him—also...