          Supreme Court of Florida
                                    ____________

                                    No. SC17-506
                                    ____________

                           RODRICK D. WILLIAMS,
                                 Petitioner,

                                         vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                [February 22, 2018]

LABARGA, C.J.

      This case is before the Court for review of the decision of the Fifth District

Court of Appeal in Williams v. State (Williams II), 211 So. 3d 1070 (Fla. 5th DCA

2017). In its decision, the Fifth District ruled upon the following question certified

to be of great public importance:

      DOES ALLEYNE V. UNITED STATES, 570 U.S. 99, 133 S. Ct. 2151,
      186 L. Ed. 2d 314 (2013), REQUIRE THE JURY AND NOT THE
      TRIAL COURT TO MAKE THE FACTUAL FINDING UNDER
      SECTION 775.082(1)(b), FLORIDA STATUTES (2016), AS TO
      WHETHER A JUVENILE OFFENDER ACTUALLY KILLED,
      INTENDED TO KILL, OR ATTEMPTED TO KILL THE VICTIM?

Id. at 1073. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the

reasons explained below, we hold that Alleyne requires a jury to make the factual
finding, but conclude that Alleyne violations are subject to harmless error review.

Where the error cannot be deemed harmless, the proper remedy is to resentence the

juvenile offender pursuant to section 775.082(1)(b)2., Florida Statutes (2016).

                FACTS AND PROCEDURAL BACKGROUND

      On December 19, 2013, a jury found Petitioner Rodrick D. Williams guilty

of first-degree murder and kidnapping. During the evening hours of April 26,

2010, and through the early morning hours of April 27, 2010, victim James

Vincent Brookins was beaten and bound with duct tape at a “trap house”1 in

Jacksonville, then transported in the trunk of a vehicle to a rural road in St. Johns

County, where he was shot twice. Two other individuals, Harry Henderson and

Sharina Parker, were also involved in the death of Brookins. Williams and Parker

were involved in a sexual relationship. Although Henderson and Parker were

adults at the time of the murder, Williams was sixteen years old. The firearm used

to commit the murder was never located.

      The predominant evidence offered during trial to connect Williams to the

offenses included: (1) the police interrogation of Williams, during which his




       1. During trial, a St. Johns County Sheriff’s Office detective explained that
the term “trap house” is “a slang term for a house, an apartment, a whatever,
residence where folks don’t actually live. They just go there to either sell drugs or
use drugs. It’s kind of just a vacant residence.”


                                         -2-
mother was present and Williams signed a Miranda2 waiver; (2) a text message

purportedly sent by Williams to Parker at 6:24 p.m. on April 26, in which Williams

stated, “Bae thx killah[3] i cant talk cuz im round 2 many people but jus chill bae

ima take care of yo problems jus give me the greenlight”; and (3) the testimony of

a jailhouse informant.

      During the interrogation, Williams contended it was Henderson who shot

Brookins. According to Williams, Parker called him between 2 and 3 p.m. on

April 26—less than five hours before the text message was sent—and told him she

had been robbed of marijuana by a relative of Brookins during a drug transaction,

and Parker believed Brookins had “set her up.” Williams asserted that Parker and

Henderson brought Brookins to the trap house later that day in an attempt to force

him to give them money or disclose the location of his safe, where Parker believed

the stolen marijuana was stored. Parker subsequently picked up Williams and

drove him to the trap house, where, upon entering the house, Williams saw “blood

all over” and Brookins begging for his life. According to Williams, Henderson

beat Brookins with a gun, and Henderson and Parker bound his arms and legs and

covered his mouth with duct tape as Brookins screamed. Williams stated that




      2. Miranda v. Arizona, 384 U.S. 436 (1966).
      3. Williams’s mother gave him the nickname “Killer.”


                                         -3-
while at the trap house, Parker told him she and Henderson planned to leave

Brookins alive in the trunk of the vehicle.4 Williams admitted he drove the vehicle

with Brookins in the trunk to the rural road while Henderson and Parker rode in a

separate vehicle. He stated that upon arriving, Henderson wiped down the vehicle

used to transport Brookins, opened the trunk, and shot Brookins. Williams

asserted that he only participated in the offenses because he feared he would be

harmed if he refused.

      In contrast, during trial, the informant testified that while they were housed

together at the St. Johns County jail, Williams admitted that he brought a gun to

the trap house and shot Brookins. According to the informant, Williams stated he

was involved in the plan to lure Brookins to the trap house on the pretense of

having gold teeth created5 and then force him to disclose the location of his safe.

Coincidentally, prior to his interactions with Williams, the informant was housed



     4. However, Williams also contradicted himself by implying he knew
Henderson and Parker planned to kill Brookins:

      I was telling them, I’m, like, “I’m not going to be driving this man
      around. Is y’all crazy? What if we get stopped? I’m gonna catch this
      murder charge, not y’all.” You know what I’m saying? . . . [“]And
      I’m not going to jail for y’all.”

(Emphasis added.)

       5. According to the informant, Brookins possessed portable equipment for
creating gold teeth.


                                        -4-
with codefendant Henderson at the St. Johns County jail. The informant testified

on cross-examination that Henderson assisted him by filing a motion on his behalf

with respect to a drug-related charge and, as a result of Henderson’s assistance, the

charge was dropped. However, the informant testified that Henderson never spoke

with him about the Brookins homicide.

      The jury was instructed on both first-degree premeditated murder and first-

degree felony murder with robbery, attempted robbery, kidnapping, and attempted

kidnapping as the underlying felonies; however, the verdict form did not require

the jury to specify the theory upon which it found Williams guilty of first-degree

murder. Upon conviction, the trial court sentenced Williams to life imprisonment

with the possibility of parole in twenty-five years for the murder. The court relied

upon Horsley v. State (Horsley I), 121 So. 3d 1130 (Fla. 5th DCA 2013), quashed,

160 So. 3d 393 (Fla. 2015), in which the Fifth District Court of Appeal addressed

the implications of Miller v. Alabama, 567 U.S. 460 (2012), for Florida sentencing

law. See Williams v. State (Williams I), 171 So. 3d 143, 144-45 (Fla. 5th DCA

2015). Because Miller determined “the Eighth Amendment forbids a sentencing

scheme that mandates life in prison without possibility of parole for juvenile

offenders,” 567 U.S. at 479, the Fifth District in Horsley I held that in Florida, the

only sentence available for a juvenile offender convicted of capital murder was life




                                         -5-
imprisonment with the possibility of parole after twenty-five years. Williams I,

171 So. 3d at 144.

        On appeal, the Fifth District affirmed Williams’s convictions but reversed

his sentence with respect to the murder conviction. Id. The district court

recognized that while the trial court properly relied on Horsley I when it imposed

the sentence, this Court subsequently granted review of Horsley I based upon a

certified question. Id. at 144-45. In Horsley v. State (Horsley II), 160 So. 3d 393

(Fla. 2015), we held the appropriate remedy for juveniles whose sentences are

unconstitutional under Miller is to resentence them in conformance with chapter

2014-220, Laws of Florida. See Williams I, 171 So. 3d at 144. Chapter 2014-220

was enacted to bring Florida juvenile sentencing law into compliance with United

States Supreme Court Eighth Amendment jurisprudence. See Horsley II, 160 So.

3d at 394. It amended section 775.082(1), Florida Statutes, to provide, in pertinent

part:

               (b)1. A person who actually killed, intended to kill, or
        attempted to kill the victim and who is convicted under s. 782.04 of a
        capital felony, or an offense that was reclassified as 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).


                                          -6-
              2. A person who did not actually kill, intend to kill, or attempt
      to kill the victim and who is convicted under s. 782.04 of a capital
      felony, or an offense that was reclassified as 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).

Ch. 2014-220, § 1, Laws of Fla. The session law also created section 921.1402,

Florida Statutes (2017), which provides, in pertinent part:

             (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 [unless the
      juvenile offender has been previously convicted of certain enumerated
      offenses that were part of a separate criminal transaction or episode].
             ....
             (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.

Ch. 2014-220, § 3, Laws of Fla.

      The Fifth District in Williams I instructed the trial court as follows:

      On remand, the trial court shall hold an individualized sentencing
      hearing . . . to consider the enumerated and other pertinent factors
      “relevant to the offense and [Williams’s] youth and attendant
      circumstances.” Ch. 2014–220, § 2, Laws of Fla. Because the jury
      did not find that Williams actually possessed and discharged a firearm
      during the crime, the court must make a written finding as to whether
      Williams killed, intended to kill, or attempted to kill the victim.
      Ch. 2014–220, § 1, Laws of Fla. Based on that determination, after
      holding the individualized hearing, the trial court may sentence
      Williams to life imprisonment if it finds that life is an appropriate
      sentence. Id. If the trial court determines that life is not an

                                         -7-
      appropriate sentence, then it should sentence Williams to a term of at
      least forty years’ imprisonment. Id. Either way, unless Williams has
      a prior conviction of a felony enumerated in section three of chapter
      2014–220, Laws of Florida, arising out of a separate criminal
      transaction or episode, he will receive a judicial review of his sentence
      after fifteen or twenty-five years, depending on the court’s
      determination. See ch. 2014–220, § 3, Laws of Fla.
171 So. 3d at 145 (second alteration in original).

      On September 30, 2015, Williams filed with the trial court a Motion to

Empanel Jury. Williams asserted that because the finding that a juvenile offender

actually killed, intended to kill, or attempted to kill the victim leads to a minimum

forty-year sentence with a sentence review after twenty-five years—whereas a

finding that the offender did not actually kill, intend to kill, or attempt to kill the

victim results in there being no minimum sentence and a sentence review after

fifteen years—Alleyne requires that this factual determination be made by a jury

beyond a reasonable doubt. The trial court denied the motion on the basis that it

had been directed by the Fifth District to make the finding.

      After a hearing, the trial court found that Williams both actually killed and

intended to kill Brookins. The court subsequently held a resentencing hearing on

the first-degree murder conviction pursuant to section 921.1401, Florida Statutes

(2016), and again sentenced Williams to life imprisonment, but with a sentence

review in twenty-five years, as required by section 921.1402(2)(a), Florida Statutes

(2016).



                                           -8-
      On appeal, Williams challenged the trial court’s denial of his Motion to

Empanel Jury. Williams II, 211 So. 3d at 1071. The Fifth District held that the

trial court properly denied the motion, but noted that the Alleyne challenge

appeared to have merit on the basis that the finding “increases both the mandatory-

minimum from zero years to forty years—if the sentencing court determines that

life is not an appropriate sentence—and the time for a sentence review hearing

from fifteen years to twenty-five years.” Id. at 1072-73. However, the Fifth

District explained that in Falcon v. State, 162 So. 3d 954 (Fla. 2015), this Court

stated the trial court was to make the finding of whether the defendant actually

killed, intended to kill, or attempted to kill the victim. Id. at 1073.6 As a result, the

Fifth District certified the question now before this Court as one of great public

importance.

                                     ANALYSIS

                               Alleyne v. United States

      In Alleyne, the defendant (Alleyne) was charged with using or carrying a

firearm in relation to a crime of violence, as well as other federal offenses, arising

from the robbery of a store manager. 570 U.S. at 103. The applicable statute

provided that anyone who uses or carries a firearm in relation to a crime of



      6. Our decision in Falcon did not address the applicability of Alleyne to
chapter 2014-220 because neither party raised the issue.


                                          -9-
violence shall be sentenced to a minimum of five years in prison. Id. However, if

the firearm is brandished, the statute mandated a minimum sentence of seven

years’ incarceration. Id. at 104. The jury convicted Alleyne and indicated on the

verdict form that he used or carried a firearm; however, the jury did not indicate a

finding that the firearm was brandished. Id. The trial court found that the evidence

supported a finding of brandishing and imposed a seven-year sentence on this

count. Id. The United States Court of Appeals for the Fourth Circuit affirmed. Id.

      On certiorari review, the United States Supreme Court vacated the Fourth

Circuit’s judgment with respect to the sentence on the count of using or carrying a

firearm in relation to a crime of violence and remanded for resentencing. Id. at

117-18. The Supreme Court held that any fact that increases the mandatory

minimum sentence for an offense is an “element” which must be submitted to a

jury and found beyond a reasonable doubt. Id. at 108. In reaching this holding, the

Supreme Court relied upon Apprendi v. New Jersey, 530 U.S. 466 (2000), in which

it held that any fact that increases the statutory maximum sentence is an “element”

of the offense to be found by a jury. Alleyne, 570 U.S. at 106; see also Apprendi,

530 U.S. at 490 (“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.”).




                                        - 10 -
      The Supreme Court explained that “Apprendi’s definition of ‘elements’

necessarily includes not only facts that increase the ceiling, but also those that

increase the floor. Both kinds of facts alter the prescribed range of sentences to

which a defendant is exposed and do so in a manner that aggravates the

punishment.” Alleyne, 570 U.S. at 108. The Court further stated:

      [I]t is impossible to dispute that facts increasing the legally prescribed
      floor aggravate the punishment. Elevating the low end of a
      sentencing range heightens the loss of liberty associated with the
      crime: the defendant’s “expected punishment has increased as a result
      of the narrowed range” and “the prosecution is empowered, by
      invoking the mandatory minimum, to require the judge to impose a
      higher punishment than he might wish.” Apprendi, supra, at 522, 120
      S. Ct. 2348 (THOMAS, J., concurring). Why else would Congress link
      an increased mandatory minimum to a particular aggravating fact
      other than to heighten the consequences for that behavior? This
      reality demonstrates that the core crime and the fact triggering the
      mandatory minimum sentence together constitute a new, aggravated
      crime, each element of which must be submitted to the jury. [n.2]

             [N.2.] Juries must find any facts that increase either the
             statutory maximum or minimum because the Sixth
             Amendment applies where a finding of fact both alters
             the legally prescribed range and does so in a way that
             aggravates the penalty. Importantly, this is distinct from
             factfinding used to guide judicial discretion in selecting a
             punishment “within limits fixed by law.” Williams v.
             New York, 337 U.S. 241, 246 (1949). While such
             findings of fact may lead judges to select sentences that
             are more severe than the ones they would have selected
             without those facts, the Sixth Amendment does not
             govern that element of sentencing.

Id. at 113 (citations omitted).




                                         - 11 -
      The Supreme Court rejected the contention that, because the seven-year

sentence could have been imposed without the finding of brandishing, the Sixth

Amendment right to trial by jury was not violated:

      [T]he essential Sixth Amendment inquiry is whether a fact is an
      element of the crime. When a finding of fact alters the legally
      prescribed punishment so as to aggravate it, the fact necessarily forms
      a constituent part of a new offense and must be submitted to the jury.
      It is no answer to say that the defendant could have received the same
      sentence with or without that fact. It is obvious, for example, that a
      defendant could not be convicted and sentenced for assault, if the jury
      only finds the facts for larceny, even if the punishments prescribed for
      each crime are identical. One reason is that each crime has different
      elements and a defendant can be convicted only if the jury has found
      each element of the crime of conviction.
              Similarly, because the fact of brandishing aggravates the legally
      prescribed range of allowable sentences, it constitutes an element of a
      separate, aggravated offense that must be found by the jury, regardless
      of what sentence the defendant might have received if a different
      range had been applicable.

Id. at 114-15.

                              Section 775.082(1)(b)

      The relevant portion of section 775.082(1), Florida Statutes, provides:

             (b)1. A person who actually killed, intended to kill, or
      attempted to kill the victim and who is convicted under s. 782.04 of a
      capital felony, or an offense that was reclassified as 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).

                                       - 12 -
              2. A person who did not actually kill, intend to kill, or attempt
      to kill the victim and who is convicted under s. 782.04 of a capital
      felony, or an offense that was reclassified as 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).

(Emphasis added.) Thus, a finding that a juvenile offender actually killed,

intended to kill, or attempted to kill the victim results in a minimum sentence of

forty years’ imprisonment under subsection (1)(b)1. Without this finding, the trial

court is not required to impose a minimum sentence. See § 775.082(1)(b)2., Fla.

Stat. Further, under section 921.1402, a finding of actual killing, intent to kill, or

attempt to kill entitles a juvenile offender to a sentence review in twenty-five

years, whereas without the finding, the juvenile offender is entitled to a sentence

review in fifteen years (provided the trial court imposes a sentence greater than

fifteen years). § 921.1402(2)(a), (c), Fla. Stat. Because a finding of actual killing,

intent to kill, or attempt to kill “aggravates the legally prescribed range of

allowable sentences,” Alleyne, 570 U.S. at 115, by increasing the sentencing floor

from zero to forty years and lengthening the time before which a juvenile offender

is entitled to a sentence review from fifteen to twenty-five years, this finding is an




                                         - 13 -
“element” of the offense, which Alleyne requires be submitted to a jury and found

beyond a reasonable doubt. See id. at 108.7

                                    The Verdict

      In this case, the verdict form did not separate out the theories of first-degree

murder; therefore, it is unclear whether the jury found Williams guilty of

premeditated murder, felony murder, or both. Further, with respect to the offense

of first-degree murder, there was no interrogatory on the verdict form as to whether

Williams discharged a firearm.8 Based upon the jury instructions given, it cannot

be determined from the general verdict form whether the jury found beyond a

reasonable doubt that Williams actually killed, intended to kill, or attempted to kill

Brookins.

      First, with respect to actual killing, as part of the instruction on premeditated

first-degree murder, the jury received an instruction on principals, which allowed it

to find Williams guilty even if he did not actually shoot Brookins. The jury was

advised:

            If the defendant helped another person or persons commit a
      crime, the defendant is a principal and must be treated as if he had
      done all the things the other person or persons did if, one, the
      defendant had a conscious intent that the criminal act be done; and,


     7. We recede from Falcon to the extent it concludes this determination is to
be made by a trial court.
      8. The lesser included offenses contained interrogatories.


                                        - 14 -
      two, the defendant did some act or said some word which was
      intended to and which did incite, cause, encourage, assist, or advise
      the other person or persons to commit—to actually commit the crime.

Moreover, as part of the felony-murder instruction, the jury was instructed based

both upon whether Williams was the actual killer or whether someone else shot

Brookins:

            To prove the crime of first-degree felony murder, the State must
      prove the following three elements beyond a reasonable doubt:

      1. That James Vincent Brookins is dead.

      2. The death occurred as a consequence of and while Rodrick
      Williams was engaged in the commission of a robbery, an attempted
      robbery, kidnapping, or an attempted kidnapping.

      3. That Rodrick Williams was a person who actually killed James
      Vincent Brookins, or James Vincent Brookins was killed by a person
      other than Rodrick Williams but both Rodrick Williams and the
      person who killed James Vincent Brookins were principals in the
      commission of a robbery, an attempted robbery, kidnapping, or an
      attempted kidnapping.
(Emphasis added.) Therefore, based upon the instructions given, the general guilty

verdict for first-degree murder fails to demonstrate the jury found beyond a

reasonable doubt that Williams actually killed Brookins.

      Whether the jury found beyond a reasonable doubt that Williams intended to

kill Brookins cannot be determined from the verdict either. The jury was

instructed under the premeditated theory of first-degree murder that “[k]illing with

premeditation is killing after consciously deciding to do so. The decision must be

present in the mind at the time of the killing.” Therefore, regardless of whether


                                       - 15 -
Williams actually killed Brookins, or was a principal, a finding of intent to kill

would have been inherent in a guilty verdict as to first-degree premeditated

murder. However, the general verdict form that was used is problematic because

the jury was instructed that “[i]n order to convict of first-degree felony murder, it is

not necessary for the State to prove that the defendant had a premeditated design or

intent to kill.”

       The jury found Williams guilty of the underlying felony of kidnapping.

However, with respect to that offense, the jury was instructed as follows:

             To prove the crime of kidnapping, the State must prove the
       following three elements beyond a reasonable doubt:

       1. That Rodrick Williams forcibly or by threat confined or abducted
       or imprisoned James Vincent Brookins against his will.

       2. Rodrick Williams had no lawful authority.

       3. Rodrick Williams acted with intent to commit or facilitate
       commission of robbery or attempted robbery . . . .

       4. Or inflict bodily harm upon or to terrorize the victim or another
       person.
(Emphasis added.) Even if the jury found that Williams acted with the intent to

inflict bodily harm upon Brookins,9 this does not equate to an intent to kill.




      9. During the interrogation, Williams admitted to hitting Brookins with his
hands. The jailhouse informant testified that Williams stated he struck Brookins
with a gun.


                                         - 16 -
      Based upon the foregoing, and because of the general verdict form with

respect to the charge of first-degree murder, there is no clear jury finding that

Williams actually killed, intended to kill, or attempted to kill Brookins. Therefore,

an Alleyne violation occurred.

                                  Harmless Error

      Neither this Court nor the United States Supreme Court has addressed

whether Alleyne violations are subject to harmless error review. We conclude such

violations can be harmless. In Apprendi, the Supreme Court held “[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.” 530 U.S. at 490. In Blakely v. Washington, 542 U.S. 296

(2004), the Supreme Court explained:

      [T]he “statutory maximum” for Apprendi purposes is the maximum
      sentence a judge may impose solely on the basis of the facts reflected
      in the jury verdict or admitted by the defendant. In other words, the
      relevant “statutory maximum” is not the maximum sentence a judge
      may impose after finding additional facts, but the maximum he may
      impose without any additional findings. 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.

Id. at 303-04 (citations omitted) (quoting 1 Joel Prentiss Bishop, Criminal

Procedure § 87, at 55 (2d ed. 1872)). In Washington v. Recuenco, 548 U.S. 212,

215 (2006), the Supreme Court held that Blakely violations are subject to harmless



                                        - 17 -
error review. See also Galindez v. State, 955 So. 2d 517, 522-23 (Fla. 2007) (“[T]o

the extent some of our pre-Apprendi decisions may suggest that the failure to

submit factual issues to the jury is not subject to harmless error analysis, Recuenco

has superseded them.”). Because Blakely derived from Apprendi, and Blakely

errors are subject to harmless error review, we conclude that Alleyne violations can

be harmless as well.

       In Galindez, after concluding that Apprendi violations are subject to

harmless error review, this Court delineated the applicable consideration under the

facts of that case:

       Count I charged that “on various occasions” in a four-month period,
       Galindez “committed an act defined as sexual battery” on a child “by
       placing his penis in union with . . . and/or penetrating the vagina of
       A.M. (a minor) with his penis.” Galindez claims that because the
       charge was made in the alternative (and therefore the jury did not
       specifically find that penetration was involved), the trial court could
       assess only 40 points for victim injury. . . . [F]or purposes of our
       harmless error analysis the issue is whether the failure to have the
       jury make the victim injury finding as to Count I contributed to the
       conviction or sentence—in other words, whether the record
       demonstrates beyond a reasonable doubt that a rational jury would
       have found penetration.
              At trial the young victim, then pregnant by Galindez, testified
       that she and Galindez engaged in sexual intercourse on multiple
       occasions over a period of several months. Galindez’s confession
       confirming these facts, including his admission that they repeatedly
       had sexual intercourse, was admitted at trial. Finally, Galindez’s
       defense at trial was that the twelve-year-old victim consented. Thus,
       Galindez did not dispute the facts of the sexual relationship at trial,
       and he did not contest them at resentencing, either.




                                        - 18 -
955 So. 2d at 523-24 (first alteration in original) (emphasis added) (citation

omitted). We concluded that “[i]n light of the clear and uncontested record

evidence of penetration,” the error was harmless beyond a reasonable doubt. Id. at

524.

       Based upon Galindez, the applicable question in evaluating whether an

Alleyne violation is harmful with respect to section 775.082(1)(b) is whether the

failure to have the jury make the finding as to whether a juvenile offender actually

killed, intended to kill, or attempted to kill the victim contributed to his sentence—

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. See Galindez, 955 So. 2d at 523.

                                     Application

       Based upon our review of the record in this case, the Alleyne violation

cannot be deemed harmless. Unlike the defendant in Galindez, who did not

dispute during trial that he and the victim engaged in sexual intercourse, Williams

disputed both that he killed Brookins and that he was a willing participant in the

murder. There was sharply conflicting evidence in the form of Williams’s

statements during his interrogation that he hoped Brookins would live, and the

testimony of the jailhouse informant who painted Williams as both an active

participant in the plan to lure Brookins to the trap house and the actual killer.


                                         - 19 -
      In the light least favorable to Williams, the evidence reflects that (1) Parker

called Williams and informed him that she had been robbed, and she believed

Brookins “set her up”; (2) within a few hours of that call, Williams sent Parker a

text message stating, “i cant talk cuz im round 2 many people but jus chill bae ima

take care of yo problems jus give me the greenlight”; and (3) according to the

informant, Williams helped devise the plan to lure Brookins to the trap house on

the pretense of having gold teeth created and actively participated in the crimes

against Brookins. This included striking Brookins with a firearm that Williams

brought to the house; demanding the location of the safe while Brookins pleaded,

“It doesn’t have to be like this. I thought we was better than this”; sending Parker

to purchase duct tape; binding Brookins with the tape; waiting until the early

morning hours to move Brookins to avoid being seen; placing Brookins in the

trunk of a vehicle, bound and beaten but still alive; driving the vehicle to St. Johns

County with Henderson in the passenger seat while Parker followed in a separate

vehicle; wiping down the vehicle; and shooting Brookins twice.

      However, the jury could have rejected the informant’s testimony on the basis

that he was a jailhouse informant who received a reduced sentence in exchange for

his testimony, because certain aspects of his testimony did not make sense,10 or


       10. The informant testified that Henderson, Parker, and Williams acquired
approximately $300,000 from Brookins’s safe and divided it equally. According to
the informant, Williams used a portion of his third of the money to purchase a

                                        - 20 -
because the informant had been previously housed with codefendant Henderson,

who, according to the informant, assisted him with having a criminal charge

dropped. Nonetheless, Williams’s interrogation still paints an incriminating

picture. Williams admitted the following: (1) when he arrived at the trap house,

Henderson gave him a firearm; (2) once he saw Brookins, who was unconscious

from being beaten, he stepped outside and covered a portion of his face with a

shirt;11 (3) he told Brookins, “Just cooperate, bro, and . . . you won’t die”; (4) he

struck Brookins with his hands; (5) while at the trap house, and after Brookins had

been severely beaten and duct-taped, he smoked marijuana that had been removed

from Brookins’s pocket; (6) he rode with Parker to the location where Brookins

had parked a vehicle and then drove that vehicle back to the trap house; (7) he

removed a scooter from the trunk of that vehicle to make room for Brookins;

(8) for approximately forty-five minutes, he drove the vehicle with Brookins in the

trunk to the rural road in St. Johns County while Parker and Henderson rode in a

separate vehicle; and (9) upon arrival, he could hear Brookins in the trunk

screaming.



house for his mother and a vehicle. However, the informant testified immediately
afterwards that Williams’s mother was evicted from the house for “falling behind
in rent.”

     11. When the detective suggested that Williams did this because he and
Brookins knew each other and he “felt bad,” Williams agreed.


                                         - 21 -
      It can be argued that a juvenile who admits to participating in a kidnapping

and homicide to this extent intended for the victim to be killed. The jury found

Williams guilty of kidnapping Brookins; however, as previously discussed, intent

to kidnap does not equal intent to kill, and the jury was instructed that to find

Williams guilty of felony murder, the State need not prove Williams had a

premeditated design or intent to kill. The jury could have believed that Williams

intended to kidnap Brookins in an attempt to recover money or the drugs that had

been stolen from Parker, a woman with whom he was having a sexual relationship,

but that he neither shot Brookins nor intended for him to die. A review of the

interrogation recording reflects that Williams stated he hoped and believed

Brookins would live.12 Further, during closing statements, defense counsel argued

that the fact that Williams placed a shirt over a portion of his face after seeing

Brookins at the trap house demonstrated he believed Brookins would not be killed:

            Well, if he knows that Mr. Brookins is going to be murdered,
      why would you cover your face? He’s the only person there that
      could say anything about [Williams] being involved. You don’t cover



        12. Williams made statements such as “[H]onestly, I was hoping that he
would live,” “The plan was that . . . they was going to leave him alive,” “They
telling me now at this point that they going to drop him off and leave him in the
trunk . . . . [There’s] so much relief just going off in my body. I’m, like, okay, so
he’s gonna live . . . . But little do we found out, when we get there [Henderson]
kills him,” and “I was getting out of the car, and I heard [Brookins] still screaming
or whatever. And I was, like, okay, he’s still living. So I was happy at that point .
. . that he wasn’t dead.”


                                         - 22 -
      your face if you know somebody’s going to be murdered. That
      doesn’t make sense.

      Because the record fails to demonstrate beyond a reasonable doubt that a

rational jury would have found that Williams actually killed, intended to kill, or

attempted to kill Brookins, the Alleyne violation here was not harmless.

                                        Remedy

      Williams suggests two alternative remedies for the Alleyne violation that

occurred: empanel a new jury to make the requisite finding or resentence him

pursuant section 775.082(1)(b)2., the applicable provision where there is a finding

that the juvenile offender did not actually kill, intend to kill, or attempt to kill the

victim. Our precedent in the context of Apprendi/Blakely violations demonstrates

the latter is the appropriate remedy. In Plott v. State, 148 So. 3d 90, 95 (Fla.

2014), the circuit court during resentencing imposed upward departure sentences

without a jury determining the applicable factual basis for the departure, in

violation of Apprendi and Blakely. We described the remedy as follows:

      We remand to the district court for the application of a harmless error
      analysis under Galindez, and, if it is determined not to be harmless, to
      remand the case for resentencing.

Id. (emphasis added).13




       13. On remand, the Second District determined the error was harmless. See
Plott v. State, 165 So. 3d 33, 34 (Fla. 2d DCA 2015).


                                          - 23 -
      Because Alleyne derives from Apprendi, and resentencing is the proper

remedy where a harmful Apprendi/Blakely violation has occurred, see Plott, 148

So. 3d at 95, we hold resentencing is the appropriate remedy for an Alleyne

violation that is not harmless. Here, because the record fails to demonstrate

beyond a reasonable doubt that a rational jury would have found Williams actually

killed, intended to kill, or attempted to kill Brookins, he is entitled to be

resentenced under section 775.082(1)(b)2.

      The dissent questions whether this remedy is necessary or appropriate, and

suggests that nothing precludes the empaneling of a jury to make the factual

determination. We are, however, hesitant to wade into “a thicket of potential and

thorny double jeopardy issues.” United States v. Pena, 742 F.3d 508, 518 (1st Cir.

2014). In Pena, a case that involved guilty pleas to drug offenses, the United

States conceded an Alleyne error occurred that was not harmless, but requested that

a “sentencing” jury be empaneled to make a factual determination as to an element

that, if found beyond a reasonable doubt, would authorize an enhanced mandatory

minimum sentence. Id. at 509, 514.14 In declining this request, the United States

Court of Appeals for the First Circuit first noted:




      14. The element was death or serious bodily injury resulting from use of the
drugs. Id. at 509. The defendant in Pena entered “a straight guilty plea to drug
dealing but not to ‘death resulting.’ ” Id.


                                         - 24 -
             Decisions of the Courts of Appeals after Alleyne have remanded
      for resentencing by the court. We are not aware of any court that has
      been confronted with facts analogous to those here. But in at least
      nine circuit court cases that have found reversible Alleyne error, the
      sentence was vacated and remanded for resentencing by the district
      judge. We are aware of no case, and the parties have cited none,
      remanding for use of a sentencing jury after a reversible Alleyne error.
Id. at 517-18 (footnote omitted). Further, with respect to double jeopardy

concerns, the First Circuit stated:

      If this conviction were final, the constraint of double jeopardy would
      be clearer. It is also true that those double jeopardy safeguards do not
      usually apply to resentencing. But the effect of Alleyne and its
      predecessors is to preclude certain sentences from being imposed
      unless the elements supporting them have been proven to a jury
      beyond a reasonable doubt. The Supreme Court has not yet dealt with
      the double jeopardy issues in this context, much less in these
      transition cases where what was once thought to be a sentencing issue
      has been recognized instead to be an element of a crime.
              ....
              The prosecution’s proposed course of action here seeks to . . .
      obtain the benefit of the plea’s admissions to the essential elements of
      the two drug crimes, which are also among the essential elements . . .
      of the aggravated “death resulting” crime. Indeed, the prosecution’s
      brief is explicit that the sentencing jury would take the admissions of
      guilt from the plea for the other elements and then decide only the
      “death resulting” issue. Under the doctrine of constitutional
      avoidance, we do not decide the double jeopardy issues associated
      with the government’s request, but note them and avoid them.

Id. at 518-19 (citation omitted). In light of the constitutional concerns presented by

the Pena court with respect to empaneling a jury where a harmful Alleyne error has

occurred, we conclude that resentencing pursuant to section 775.082(1)(b)2. is the

more prudent course.



                                        - 25 -
                                   CONCLUSION

      Based upon the foregoing, we answer the certified question by holding that

Alleyne requires the jury to make the factual finding under section 775.082(1)(b) as

to whether a juvenile offender actually killed, intended to kill, or attempted to kill

the victim. Although we conclude that Alleyne violations are subject to harmless

error review, the violation here cannot be deemed harmless. Therefore, Williams

is entitled to resentencing under section 775.082(1)(b)2. We quash the decision of

the Fifth District in Williams II and remand to the district court for further

proceedings consistent with this opinion.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY, J., concurs in part and dissents in part with an opinion, in which
POLSTON and LAWSON, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

CANADY, J., concurring in part and dissenting in part.

      I agree with the majority that under Alleyne v. United States, 570 U.S. 99

(2013), the factual findings provided for in section 775.082(1)(b), Florida Statutes

(2016), must be made by the jury and that the absence of such jury findings in this

case requires reversal of the sentence imposed under section 775.082(1)(b)1. and

resentencing in the trial court. But I dissent from the majority’s direction

regarding the remand, which requires imposition of the less severe sanction

                                         - 26 -
available under the statute. Because the issue of the remedy on remand has not

been briefed in this case, I would simply direct remand for resentencing rather than

preclude jury proceedings that might result in imposition of the more severe

sentence under the statute.

      Although we have not had the benefit of briefing on this issue, I am deeply

skeptical that the direction given by the majority precluding jury proceedings is

either necessary or appropriate. As the majority opinion reflects, Williams’s

counsel earlier suggested impaneling a jury to make the factual determination

provided for in section 775.082(1)(b). And the majority has pointed to no basis in

our law establishing that suggestion to be inconsistent with any legal requirement.

The majority’s reliance on Plott v. State, 148 So. 3d 90 (Fla. 2014), is entirely

unwarranted. In Plott, we simply directed that the district court remand for

resentencing if it determined that the Apprendi/Blakely error was not harmless.

148 So. 3d at 95. Our opinion is silent concerning whether a jury should be

impaneled to consider the factual determinations necessary to support an upward

departure sentence on remand.

      The majority’s direction restricting the proceedings on remand is

inconsistent with the general rule “that a resentencing must proceed ‘as an entirely

new proceeding,’ and that a ‘resentencing should proceed de novo on all issues

bearing on the proper sentence.’ ” State v. Collins, 985 So. 2d 985, 989 (Fla. 2008)


                                        - 27 -
(citation omitted) (quoting Wike v. State, 698 So. 2d 817, 821 (Fla. 1997), and

Teffeteller v. State, 495 So. 2d 744, 745 (Fla. 1986)). It necessarily follows from

that rule that if a jury determination is required regarding facts bearing on the

sentence in a resentencing proceeding, the State should have the opportunity to

prove those facts to a jury.

      Notably, the majority’s decision on this point seems irreconcilable with the

manner in which we are treating the death cases that have been reversed based on

the majority’s decision in Hurst v. State, 202 So. 3d 40 (Fla. 2016), cert. denied,

137 S. Ct. 2161 (2017). In Hurst, we “remand[ed] for a new penalty phase

proceeding.” 202 So. 3d at 69. And we have summarily rejected as “without

merit” claims based “on double jeopardy and due process grounds” that the State

“is precluded from seeking the death penalty” in Hurst resentencing proceedings.

Hurst v. State, No. SC17-302, 2017 WL 1023762, at *1 (Fla. Mar. 16, 2017)

(unpublished). Although we did not explain our conclusion, the Arizona Supreme

Court has provided an extensive constitutional analysis for its holding that double

jeopardy did not bar death sentence proceedings after reversal of death sentences

for Ring errors. See State v. Ring, 65 P.3d 915, 928-32 (Ariz. 2003), on remand

from Ring v. Arizona, 536 U.S. 584 (2002). Affording the State an opportunity to

obtain death sentences in new jury proceedings in the death cases is inconsistent




                                        - 28 -
with the majority’s decision here denying the State an opportunity to obtain the

more severe sentence available under section 775.082(1)(b).

      Unable to identify any support for its position in our jurisprudence, the

majority cites the decision of the First Circuit in United States v. Pena, 742 F.3d

508 (1st Cir. 2014), and relies on the invocation—more aptly, incantation—in that

decision of “the doctrine of constitutional avoidance.” Majority op. at 25 (quoting

Pena, 742 F.3d at 519). The majority announces that it is “hesitant to wade into ‘a

thicket of potential and thorny double jeopardy issues.’ ” Id. at 24 (emphasis

added) (quoting Pena, 742 F.3d at 518). Without deciding that double jeopardy

doctrine actually requires that the less severe sentence be imposed on remand, the

majority mandates imposition of that less severe sanction because it asserts there

might be a double jeopardy problem with the more severe sentence.

      But this use of the constitutional avoidance doctrine is not consistent with

how we have understood and applied that doctrine. Under the doctrine, hesitancy

and doubt alone are not a ground for decision. In the absence of a legal basis that

otherwise resolves the point at issue, the Court must confront and decide the

constitutional question—assuming that issue has been properly presented for

decision. Yet here the majority does not base its decision on an alternative ground

that avoids the constitutional issue. See Singletary v. State, 322 So. 2d 551, 552

(Fla. 1975) (relying on “the settled principle of constitutional law that courts


                                        - 29 -
should not pass upon the constitutionality of statutes if the case in which the

question arises may be effectively disposed of on other grounds”). Nor does the

majority avoid a potential constitutional problem by adopting a statutory

interpretation that presents no constitutional issue rather than another interpretation

that is constitutionally problematic. See State v. Giorgetti, 868 So. 2d 512, 518

(Fla. 2004) (recognizing “the canons of statutory construction requiring us to

interpret the statutes in a way as to avoid any potential constitutional quandaries”).

Instead, the majority’s decision is planted firmly in the air.

      The constitutional avoidance doctrine is “a principle of judicial restraint.” In

re Holder, 945 So. 2d 1130, 1133 (Fla. 2006); see also Lyng v. Northwest Indian

Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and

longstanding principle of judicial restraint requires that courts avoid reaching

constitutional questions in advance of the necessity of deciding them.”). The

doctrine recognizes that the judicial branch should only invalidate legislation—

thereby thwarting the action of a coordinate branch of government—when no other

course of action is properly available. But the majority here has turned the

doctrine on its head. Rather than avoiding judicial action that thwarts legislative

action, the majority has deployed the doctrine to preclude the opportunity to carry

out the legislative purpose embodied in section 775.082(1)(b).




                                         - 30 -
      In applying this misshaped version of the constitutional avoidance doctrine,

the majority strains to find doubt and simply ignores the elephant in the room. It

fails to explain how summary rejection of double jeopardy claims in the Hurst

context was appropriate if this case now presents “a thicket of potential and thorny

double jeopardy issues.” No basis is stated by the majority—and no basis is

apparent—for distinguishing the double jeopardy implications of a resentencing

following reversal for an Alleyne error from the implications following reversal for

an Apprendi, Blakely, Ring, or Hurst error—all of which involve failing to present

an issue to the jury that must be decided by the jury.

POLSTON and LAWSON, JJ., concur.

Application for Review of the Decision of the District Court of Appeal – Certified
Great Public Importance

      Fifth District - Case No. 5D16-1348

      (St. Johns County)

Valarie Linnen, Atlantic Beach, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Wesley Heidt, Bureau
Chief, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, Florida,

      for Respondent




                                        - 31 -
