       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           JUAN C. CASIANO,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                     Nos. 4D18-3255 & 4D18-3257

                          [September 18, 2019]

   Consolidated appeal from the Circuit Court for the Nineteenth Judicial
Circuit, Indian River County; Cynthia L. Cox, Judge; L.T. Case Nos.
312017CF001209A and 312018CF000831A.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.

KUNTZ, J.

   Juan C. Casiano raises two challenges to the prison sentences he
received after entering a partially negotiated no contest plea to several
driving offenses. First, he argues the court erred when it, and not a jury,
made a finding that he was a danger to the public under section
775.082(10), Florida Statutes (2018). Second, he argues the court’s
findings were legally insufficient to demonstrate that he would pose a
danger to the community if sentenced to a nonstate prison sanction. But
because Casiano has served the sentence he challenges on appeal and has
been released from prison, we dismiss this appeal as moot.

    When the court sentenced Casiano to state prison, it applied section
775.082(10), Florida Statutes. For a defendant who scores fewer than
twenty-two sentencing points and is being sentenced for a third-degree
felony, that section allows the court to “sentence the offender to a state
correctional facility” if it makes “written findings that a nonstate prison
sanction could present a danger to the public.” Id. Otherwise, the court
must sentence the defendant to a nonstate prison sanction. Id.
   At the time of Casiano’s sentencing, the court properly applied the
statute because we had previously rejected his exact argument. See Porter
v. State, 110 So. 3d 962 (Fla. 4th DCA 2013). In Porter, we rejected a
defendant’s argument that a jury must make a finding that he was a
danger to the community. Id. at 963. The circuit court therefore correctly
complied with our decision in Porter when it rejected Casiano’s challenge.

   But after the court sentenced Casiano, our supreme court disapproved
Porter. Brown v. State, 260 So. 3d 147, 151 (Fla. 2018). In Brown, the
supreme court held that section 775.082(10) “violates the Sixth
Amendment by requiring the court rather than the jury to make the finding
of dangerousness to the public necessary to increase the statutory
maximum nonstate prison sanction to a state prison sentence.” Id. As a
result, “for a court to impose any sentence above a nonstate prison
sanction when section 775.082(10) applies, a jury must make the
dangerousness finding.” Id.

    Based on Brown, Casiano is correct that the court erred when it made
a finding that he posed a danger to the community, a finding a jury needed
to make. Even so, we cannot reverse Casiano’s sentence.

    During this appeal, Casiano served his sentence and was released from
prison. Casiano’s appeal therefore is moot. See Woods v. State, 214 So.
3d 803, 804-05 & n.1 (Fla. 1st DCA 2017) (on reh’g en banc) (Makar, J.,
concurring in affirmance). In Woods, the First District issued an en banc
per curiam affirmed decision with multiple concurring and dissenting
opinions. Woods raised the same challenge to section 775.082(10) as
Casiano and, like Casiano, Woods was released from prison before the en
banc argument being scheduled. Id. at 804-05 (Makar, J., concurring in
affirmance).

    Woods’s release from prison led eight out of the fourteen judges to agree
the appeal was moot. 1 In Judge Makar’s concurring opinion, joined by
four other judges, he explained that Woods’s appeal was moot. Id. at 804-
05 & n.1 (Makar, J., concurring in affirmance). But he explained that
mootness does not destroy an appellate court’s jurisdiction when the issue
is of great public importance and likely to recur. Id. (Makar, J., concurring
in affirmance). In Judge Winsor’s dissenting opinion, joined by two other
judges, he agreed the appeal was moot and argued it should be dismissed.
Id. at 825-26 (Winsor, J., dissenting).


1   There are fifteen judges on the First District Court of Appeal, but one judge was recused.

                                               2
    In a later case, that court addressed this issue of mootness and the
prison releasee reoffender statute. Johnson v. State, 260 So. 3d 502, 505
(Fla. 1st DCA 2018). As here, Johnson was released from prison during
the appeal. Id. Despite the apparent earlier agreement of eight judges
that the issue was moot, a split three-judge panel in Johnson reached a
different result. See id. The majority stated that because “adverse legal
consequences could befall Appellant as a result of his sentence,” the
appeal was not moot. Id. In dissent, Judge Rowe stated that she “would
dismiss the appeal as moot. Johnson was sentenced to 383 days and given
credit for the 383 days he had already served in a Department of
Corrections’ facility.” Id. at 509 (Rowe, J., dissenting).

   We agree with Judge Rowe’s opinion in Johnson and those of the eight
judges on the First District who agreed the appeal in Woods was moot.
When a defendant challenges a sentence that has been served, the appeal
is dismissed as moot. See, e.g., Williams v. State, 591 So. 2d 295, 296
(Fla. 4th DCA 1991) (citing Williams v. State, 549 So. 2d 734, 735 (Fla. 2d
DCA 1989)). That is the required result in this case.

   We recognize Casiano’s argument that a collateral consequence may
flow from his sentence: his potential designation as a prison releasee
reoffender under section 775.082(9)(a)1., Florida Statutes. But any
collateral consequence that might flow from Casiano’s detention in a state
prison facility has not materialized. Section 775.082(9)(a)1. is clear and
unambiguous and applies when a defendant is released from a state
facility and is later being sentenced for a new offense. State v. Lewars,
259 So. 3d 793, 798 (Fla. 2018) (citing § 775.082(9)(a)1., Fla. Stat. (2012)).

    The statute exists to provide for “heightened punishment for repeat
offenders whose recent imprisonment ‘did not dissuade [them] from
engaging in the qualifying offense[s].’” Id. at 802 (alterations in original)
(quoting Grant v. State, 770 So. 2d 655, 660 (Fla. 2000)). So “the length
of the sentence is not a determining factor.” Id. at 799. Instead, the
determinative factor is whether the defendant was released from a county
jail or a state correctional facility. Id. at 800. 2

   But we do not assume Casiano’s punishment failed to dissuade him
from engaging in future qualifying offenses. Nor do we preclude him from
challenging the application of the prison releasee reoffender statute in any


2 After Lewars was issued, the legislature amended the statute to include defendants

released from a Department of Corrections’ facility or “a county detention facility following
incarceration for an offense for which the sentence pronounced was a prison sentence . .
. .” § 775.082(9)(a)1., Fla. Stat. (eff. Oct. 1, 2019).

                                             3
future case in which the State seeks to apply it. Instead, we determine
that we can offer no relief here. His sentence was served, and his appeal
is moot.

   Appeal dismissed.

LEVINE, C.J., and DAMOORGIAN, J., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




                                   4
