                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

MARLENA CHRISTINE WOODS,                NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Appellant,                        DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D15-4042

STATE OF FLORIDA,

     Appellee.
_______________________________/

Opinion filed July 20, 2016.

An appeal from the Circuit Court for Duval County.
Russell L. Healey, Judge.

Nancy A. Daniels, Public Defender, Brenda L. Roman, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief-Tallahassee,
Criminal Appeals, Quentin Humphrey, Assistant Attorney General, Tallahassee,
for Appellee.




B.L. THOMAS, J.

      Appellant Marlena Woods appeals an order of the circuit court sentencing

her to an upward departure of 18 months in state prison. Appellant raises two

claims on appeal, first challenging the constitutionality of section 775.082(10),

Florida Statutes (2015), and second, alleging that the circuit court unlawfully
deviated from section 775.082(10)’s presumptive non-prison sanction in

sentencing her. Because we find the second claim to be without merit, we write

only to address Appellant’s constitutional challenge to section 775.082(10), Florida

Statutes.

      Appellant asserts that section 775.082(10) violates her right to a trial by jury

as guaranteed under the United States Constitution and the Florida Constitution,

because the statute mandates a non-prison criminal sanction for certain felony

offenders, but allows the court to impose a more punitive sentence without a jury

finding that the defendant poses a risk of danger to the public. See Apprendi v.

New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004).

      Having now carefully considered all arguments presented, including whether

the offending provision may be severed from the provision mandating the non-

prison sanction for such offenders, we agree with Appellant that the statute must be

interpreted to mandate that such upward departures must be based on a jury

determination, absent either a waiver by the defendant or a negotiated sentence.

See Sloban v. Fla. Bd. of Pharmacy, 982 So. 2d 26, 31-34 (Fla. 1st DCA 2008)

(recognizing that courts “have an obligation to give a statute a constitutional

construction when this is possible”) (citing Tyne v. Time Warner Entm’t Co., 901

So. 2d 802, 810 (Fla. 2005)). As the Florida Supreme Court held in State v.

Overfelt, 457 So. 2d 1385 (Fla. 1984), where it interpreted a statute which

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mandated an enhanced felony conviction based on possession of a firearm to

require a jury finding, we similarly interpret section 775.082(10), Florida Statutes,

to require a jury finding that Appellant poses a danger to the public before the

sentencing court may depart from the presumptive sentence of a non-prison

sanction under Apprendi and Blakely. We affirm Appellant’s sentence, however,

as we find that the error here was harmless beyond a reasonable doubt. Galindez v.

State, 955 So. 2d 517, 522-23 (Fla. 2007) (holding that Apprendi and Blakely

errors were harmless in light of Appellant’s confession to facts supporting

increased sentencing points for victim injury, and noting that Overfelt, which did

not apply harmless error analysis, was superseded by Washington v. Recuenco,

548 U.S. 212 (2006)).

                                    Background

      Appellant was arrested for shoplifting food from a Jacksonville Wal-Mart.

Because she had two previous petit theft convictions, Appellant was charged by

information with felony petit theft, a third-degree felony punishable by up to five

years in state prison. Appellant pled guilty to the felony charge, voluntarily giving

up her right to a trial by jury and her right to appeal any matter related to the

judgment.

      At sentencing, Appellant testified that when she committed the theft, she and

her four children were homeless and living in the woods, and she stole the food to

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feed her children and herself. Appellant testified that she was no longer homeless

and was looking for a job.        Appellant’s counsel argued that, under section

775.082(10), Appellant scored only 8.3 points on her sentencing scoresheet,

qualifying her for a recommended sentence not exceeding 12 months in county jail,

and asked the court to rely on Jones v. State, 71 So. 3d 173 (Fla. 1st DCA 2011), to

find that Appellant was not a danger to the public.

      The State argued that Appellant was a danger to the public. The State

recited Appellant’s prior record, asserting that she was arrested for the instant theft

less than a month after being released from jail where she served time for a

previous theft.

      The court agreed with the State that Appellant presented a danger to the

public, and sentenced Appellant to 18 months in state prison. In its order of

departure, the court listed its factual findings, including Appellant’s prior

convictions, her criminal history, and the rapidity with which she committed her

most recent theft after release from jail. The court relied on the Fourth District’s

holding in Porter v. State, 110 So. 3d 962 (Fla. 4th DCA 2013), and found that a

county jail sentence would not suffice as an appropriate punishment.

                                      Analysis

      Questions concerning the constitutionality of a statute are questions of law

and are reviewed de novo. Caribbean Conservation Corp., Inc. v. Fla. Fish &

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Wildlife Conservation Comm’n, 838 So. 2d 492, 500 (Fla. 2003). Statutes are

presumed valid, and “all reasonable doubts about the statute’s validity must be

resolved in favor of constitutionality.” State v. Catalano, 104 So. 3d 1069, 1075

(Fla. 2012).       Furthermore, “a determination that a statute is facially

unconstitutional means that no set of circumstances exists under which the statute

would be valid.” Fla. Dep’t of Revenue v. City of Gainesville, 918 So. 2d 250,

256 (Fla. 2005).

      Here, the challenged statute provides:

      (10) If a defendant is sentenced for an offense . . . which is a third
      degree felony but not a forcible felony as defined in s. 776.08 . . . 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. (2015).     Appellant argues that section 775.082(10)

violates a defendant’s right to trial by an impartial jury, because the law exposes

the defendant to punishment beyond the statutory maximum based on judge-made

factual findings, relying on Apprendi and Blakely for support. In Apprendi, the

Supreme Court held that the jury protections guaranteed by the Sixth Amendment

extend “to determinations that [go] not to a defendant’s guilt or innocence, but

simply to the length of his sentence.” 530 U.S. at 484 (quoting Almendarez-Torres

v. U.S., 523 U.S. 224, 251 (1998) (Scalia, J., dissenting)). The Court cautioned
                                         5
that allowing a judge to determine a fact which would increase punishment beyond

the statutory maximum raised due process and Sixth Amendment concerns,

holding, “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.” Id. at 490. The Court’s later

holding in Blakely clarified that “the ‘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.” 542 U.S. at 303

(emphasis in original).

      Florida courts have interpreted the Supreme Court’s Apprendi line of cases

as holding that, “under a guidelines sentencing scheme which restricts judicial

discretion in imposing sentences, the factors used to calculate the maximum

guidelines sentence to which a defendant is exposed must be based either on

(1) findings made by the jury, (2) facts admitted by the defendant, or (3) the

defendant’s prior convictions.” Behl v. State, 898 So. 2d 217, 221 (Fla. 2d DCA

2005) (emphasis in original); Johnson v. State, 18 So. 3d 623, 625 (Fla. 1st DCA

2009), quashed on other grounds 122 So. 3d 856 (Fla. 2013).

      When a defendant enters a guilty plea, as Appellant did, the defendant only

admits to the facts in their plea standing alone. See Blakely, 542 U.S. at 304

(stating that Blakely’s guilty plea only admitted to the elements of the crimes he

                                        6
was charged with and no other facts, and had the judge imposed an exceptional

sentence “solely on the basis of the facts admitted in the guilty plea,” he would

have been reversed). It is also permissible to enhance a defendant’s sentence

solely on the basis of prior convictions – which essentially acknowledges a finding

made by another jury – because the procedural safeguards attached to the “facts” of

any prior convictions mitigate constitutional concerns. Apprendi, 530 U.S. at 488.

       In Florida, section 775.082 provides the relevant statutory maximum for

Apprendi purposes. Arrowood v. State, 843 So. 2d 940, 942 (Fla. 1st DCA 2003).

Here, Appellant pled guilty to a non-forcible third-degree felony and scored less

than 22 points on her sentencing scoresheet, making section 775.082(10) the

applicable statutory provision. Part (10) of section 775.082 mandates that, absent a

factual finding of danger to the public, a third-degree non-forcible felony offender

who scores 22 points or fewer on their sentencing scoresheet must be sentenced to

a non-prison sanction; i.e., probation, community control, or imprisonment in the

county jail for up to one year. See § 921.00241(2), Fla. Stat. (2015); see also Jones

v. State, 71 So. 3d 173, 175 (Fla. 1st DCA 2011). Therefore, the maximum

punishment Appellant could receive under section 775.082(10), without any

additional factual findings, was one year in county jail; instead, Appellant was

sentenced to 18 months in state prison based solely on additional findings of the

trial judge, not the jury.

                                         7
      The State conceded in oral argument that Apprendi and Blakely do apply to

section 775.082(10), but argued in its brief that Apprendi does not apply to cases

like Appellant’s because section 775.082(10) is a mitigation statute, not an

enhancement statute. In support of this argument, the State relied heavily on the

Fourth District’s decision in Porter, which held that defendants were not entitled to

a jury determination for findings under section 775.082(10) because that statute is

not a sentence enhancement statute. 110 So. 3d at 963. However, the Supreme

Court has consistently held that the Sixth Amendment right to trial by jury is

implicated “whenever a judge seeks to impose a sentence that is not solely based

on ‘facts reflected in the jury verdict or admitted by the defendant.’” U.S. v.

Booker, 543 U.S. 220, 232 (2005) (quoting Blakely, 542 U.S. at 303). And in

Apprendi, the Court held that the fact that New Jersey labeled the provision at

issue a “sentence enhancement” rather than a separate crime was irrelevant for

constitutional purposes. 530 U.S. at 495-96. In Blakely, the Court held:

      Whether the judge’s authority to impose an enhanced sentence
      depends on finding a specified fact (as in Apprendi), one of several
      specified facts (as in Ring [v. Arizona, 122 S. Ct. 2428 (2002)]), or
      any aggravating fact (as here), it remains the case that the jury’s
      verdict alone does not authorize the sentence. The judge acquires that
      authority only upon finding some additional fact.

542 U.S. at 305. Regardless of its label, section 775.082(10) has the effect of

mandating a non-prison sanction for offenders who fall within its specified

parameters, yet allows judges to impose a more punitive sentence – incarceration
                                         8
in state prison – on the basis of an additional factual finding.          The Sixth

Amendment requires such a finding to be made by a jury, and not a judge.

      Thus, we must examine the statute to decide if it can be interpreted in a

manner that preserves its constitutional validity. State v. Giorgetti, 868 So. 2d 512

(Fla. 2004) (holding that statute providing criminal penalty for sexual offenders

who fail to register an address change must be interpreted to require mens rea to

preserve constitutionality of statute under due process clause); In re Interest of

D.F., 622 So. 2d 1102, 1104 (Fla. 1st DCA 1993) (interpreting parental rights

termination statute as mandating procedural protections to fulfill court’s “duty and

obligation to interpret the statute so as to preserve its constitutionality”). In

Giorgetti, the Florida Supreme Court noted that it was “obligated to construe

statutes in a manner that avoids a holding that a statute may be unconstitutional.”

868 So. 2d at 518 (citing Gray v. Cent. Fla. Lumber Co., 140 So. 320 (Fla. 1932)).

Relying on the United States Supreme Court decision in Lambert v. California, 355

U.S. 225 (1957), the court in Giorgetti grafted a requirement of scienter on the

statute at issue, which required designated sexual offenders to register address

changes. Here, we similarly hold that the statute must be interpreted to require a

jury finding that the defendant poses a risk of danger to society before a judge can

impose a sentence which is more punitive than any non-prison sanction, as this is

the only interpretation of the statute which would comply with the holdings of

                                         9
Apprendi and Blakely.

      Therefore, after a guilty verdict is reached, the State must present evidence

to the jury showing why sentencing the defendant to a non-prison sanction would

present a danger to the public. Section 775.082(10) does not expressly state what

factors a finding of danger to the public must be based upon, but we can logically

conclude that the jury may consider any relevant factor evidencing why a state

prison sentence would better protect the public by deterring the defendant from

future criminal conduct. Past decisions show that courts have considered factors

such as whether the defendant’s behavior posed an economic danger to the

community, the financial and emotional damage caused by defendant’s crime, the

effect the defendant’s prior sentences have had on deterring criminal conduct, and

in one case, the fact that defendant’s habitual criminal behavior was so well known

that police were automatically deployed to his location, thereby diminishing police

protection in other parts of the community. Porter, 110 So. 3d at 964; McCloud v.

State, 55 So. 3d 643, 645 (Fla. 5th DCA 2011); Jones, 71 So. 3d at 176.

      Because we hold that section 775.082(10) can be construed so as to preserve

its constitutionality, we need not address the issue of severability regarding the

provision which purportedly allows the court to impose an upward departure

sentence absent a jury finding.




                                        10
                                  Harmless Error

      Although Appellant’s upward departure sentence was not based on a jury

finding, we agree with the State that we must apply a harmless error analysis under

Recuenco, 548 U.S. at 219-22 (holding that Sixth Amendment Apprendi violation

was not “structural error,” thus, harmless error analysis applied on appeal of

Apprendi violation), and Galindez, 955 So. 2d at 522-23 (holding that Apprendi

and Blakely errors were subject to harmless error analysis). Applying a harmless

error analysis, we affirm Appellant’s sentence, as no rational jury would have

declined to find that she posed a financial danger to the public based on her three

prior petit theft convictions, her prior burglary conviction, and the fact that she

committed the instant offense soon after her release from jail.

      AFFIRMED.

KELSEY, J., and STONE, WILLIAM F., ASSOCIATE JUDGE, CONCUR.




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