Woods v. State, CASE NO. 1D15–4042

• Court: Court of Appeal of Florida (US)
• Writing for the Court: PER CURIAM.
• Citation: 214 So.3d 803
• Parties: Marlena Christine WOODS, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 24 April 2017
• Docket Number: CASE NO. 1D15–4042

214 So.3d 803

Marlena Christine WOODS, Appellant,
v.
STATE of Florida, Appellee.

CASE NO. 1D15–4042

District Court of Appeal of Florida, First District.

Opinion filed April 24, 2017

Andy Thomas, Public Defender, and Steven L. Seliger and Brenda Roman, Assistant Public Defenders, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate and Quentin Humphrey, Assistant Attorneys General, Tallahassee, for Appellee.

ON REHEARING EN BANC

PER CURIAM.

AFFIRMED.

MAKAR, J., concurs in an opinion in which ROBERTS, C.J., LEWIS and BILBREY, JJ., join, and in which WETHERELL, J., joins except as to Part C.

OSTERHAUS, J., concurs in an opinion in which ROWE, KELSEY, and M.K. THOMAS, JJ., join.

WINOKUR, J., concurs with opinion.

WOLF, J., dissents with opinion.

WINSOR, J., dissents in an opinion in which B.L. THOMAS and RAY, JJ., join.

JAY, J., recused.

MAKAR, J., concurring in affirmance.

Marlena Woods, a homeless mom with four children, pled guilty to shoplifting food for her family from a Jacksonville Walmart. Due to prior petit theft convictions, she scored 8.3 points on her sentencing scoresheet, which meant a presumptive nonstate sentence not exceeding twelve months in the Duval County jail under section 775.082(10), Florida Statutes (2009), a statute not mentioned at her plea colloquy. Under that statute, the State argued that she should be sent to state prison because sentencing her to county jail (or some other nonstate sanction) would present a "danger to the public" that state incarceration would prevent. Based on his factual findings of Woods's alleged dangerousness to the public, the trial judge imposed an eighteen-month term of state imprisonment. At issue is whether section 775.082(10) is unconstitutional because it authorized a sentence above the statutory maximum (twelve months in county jail) based on factual findings made by the trial judge, rather than a jury, in violation of Woods's right to jury trial in the federal constitution. See U.S. Const. amend. VI ; Blakely v. Washington , 542 U.S. 296, 304, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ; Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). A panel opinion avoided the constitutional question by construing section 775.082(10) to require the jury, post-verdict, to make factual findings the statute says a judge must make, Woods v. State , 41 Fla. L. Weekly D1676, –––So.3d ––––, 2016 WL 3911076 (Fla. 1st DCA July 20, 2016), but a 10–4 vote resulted in en banc consideration of the case. Though Woods served her eighteen-month sentence after en banc review was granted (but before argument was ordered), the issue presented is one of ongoing

214 So.3d 805

and exceptional importance for judicial resolution.¹

I.

A. APPRENDI /BLAKELY

In 2009, the Florida Legislature enacted a requirement that trial judges sentence non-violent, low-scoring (under twenty-two points) offenders to nonstate² prison sanctions unless the judge determines via written findings that a nonstate prison sanction might "present a danger to the public," allowing him to exercise his discretion to impose a greater sanction. See Ch. 2009–63, § 1, Laws of Fla. (creating subsection 10 to section 775.082, Florida Statutes, which gives trial judges this discretion); Fla. S. Comm. on Crim. & Civil Just. Approp., CS for SB 1722 (2009) Staff Analysis 2–3, 7 (April 6, 2009), http://archive.flsenate.gov/data/session/2009/Senate/bills/analysis/pdf/2009s1722. wpsc.pdf [hereinafter Crim. and Civ. Just. Comm. SB 1722 Staff Analysis] (summarizing the subsection as "[c]reating a prison diversion approach by requiring the court to sentence certain non-violent low-scoring offenders to a nonstate prison sanction unless the court finds that such a sentence could endanger the public"). Due to budgetary reductions to Florida's Department of Corrections, the legislative intent was to reduce state expenses via the curtailment of the past practice of sentencing non-violent, low-scoring offenders to state prison, which was prevalent at the time. The newly-added subsection, consisting of two sentences, stated in full:

(10) If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

§ 775.082(10), Fla. Stat. (emphasis added). Highlighted is the last sentence, which is the primary portion at issue in this case. The text of subsection (10) has not changed since its enactment.

The statutory authority in the last sentence of subsection (10), allowing a trial judge to make factual findings to increase an offender's sentence to a state correctional facility, is unconstitutional because

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only a jury may make findings that increase a penalty beyond a statutory maximum (which is up to twelve months of incarceration as a nonstate sanction).³ See

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Apprendi , 530 U.S. at 490, 120 S.Ct. 2348 ("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."); see also Blakely , 542 U.S. at 304, 124 S.Ct. 2531 ("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.") (citation omitted). Our supreme court has held similarly in the context of upward departures. Plott v. State , 148 So.3d 90, 95 (Fla. 2014) ("[W]e hold that upward departure sentences that are unconstitutionally enhanced in violation of Apprendi and Blakely patently fail to comport with constitutional limitations, and consequently, the sentences are illegal under rule 3.800(a).").

The trial court's actions violated Woods's right to a jury under the Sixth Amendment as explained in Apprendi and its federal and Florida progeny, but Woods has raised only a facial constitutional challenge on appeal. Delancy v. Tucker , 88 So.3d 1036, 1037 (Fla. 1st DCA 2012) (stating that a "direct appeal is the proper avenue for a facial constitutional challenge to a criminal statute").⁴ A "facial challenge to a statute is more difficult than an ‘as applied’ challenge, because the challenger must establish that no set of circumstances exists under which the statute would be valid. ... such a challenge must fail unless no set of circumstances exists in which the statute can be constitutionally applied." Cashatt v. State , 873 So.2d 430, 434 (Fla. 1st DCA 2004).

One possible constitutional "application" of subsection (10) is that a defendant may

214 So.3d 808

waive his constitutional rights under Apprendi and Blakely by allowing a trial judge to make factual findings, rather than a jury. But in doing so, a defendant effectively waives the substantive constitutional right that subsection (10) fails to facially protect; if a statute is deemed constitutionally "applied" simply because a defendant waives his constitutional rights in the application of the challenged portion, then every statute has this potential "application," making no facial adjudication ever possible. The same is true of a defendant who—for inexplicable reasons—agrees to a factual finding that he could pose a "danger to the public" thereby allowing the trial judge to impose a nonstate sanction; this type of constitutional "application" is not only fanciful but also an avoidance, rather than an application, of the challenged statutory language at issue.

Similarly, another possible constitutional "application" of subsection (10) is to construe it in a way that avoids a constitutional violation. Under this approach (which the panel used), the statutory language requiring a trial court to make written factual findings would be interpreted to require a jury to make such findings instead. But this requires rewriting subsection (10) to say:

However, if the court jury makes writtenfindings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

Doing so judicially engrafts a requirement into the statute that a jury makes the factual findings that the statute says the court must make (in writing no less). Judicially rewriting a statute's offensive parts is not an "application" for purposes of a facial challenge.

Finally, another possible constitutional "application" is where a trial judge relies solely upon a defendant's past convictions to increase punishment to a state sanction. This application refers to the language of Apprendi that excluded from its holding "the fact of a prior conviction," which...