          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                          No. 1D17-3335
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KEITA JERMAINE GAYMON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Alachua County.
James M. Colaw, Judge.

                           April 11, 2019


PER CURIAM.

     Keita Gaymon admitted to violating his probation, and his
corrected scoresheet reflected a total of twenty sentencing points.
Because he scored less than twenty-two sentencing points,
Gaymon argues that pursuant to section 775.082(10), Florida
Statutes (2015), the trial court was required to sentence him to a
nonstate prison sanction. However, pursuant to section
775.082(10), the trial court made written findings that Gaymon
could present a danger to the public if subject only to a nonstate
prison sanction and sentenced Gaymon to five years’
imprisonment. Gaymon argues that the enhancement of his
sentence under section 775.082(10) is unconstitutional because a
jury, not a judge, is required to make the factual findings that were
used to increase his punishment beyond the statutory maximum
of a nonstate prison sanction.

     The outcome of this case is controlled by Brown v. State, 260
So. 3d 147 (Fla. 2018). There, the supreme court held that section
775.082(10) was unconstitutional as it applied to Brown because it
authorized the trial court to make factual findings unrelated to her
prior convictions that increased her maximum sentence from one
year in county jail to three years in prison contrary to the holdings
in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 542 U.S. 296 (2004). Brown, 260 So. 3d at 149-51.
Here, the record demonstrates that the trial court relied on more
than Gaymon’s prior convictions to support its decision to impose
a state prison sentence, including a finding that the short time
between the commencement of Gaymon’s probation and his
violation demonstrated an apparent lack of self-control and that
Gaymon’s choices and behaviors could not be explained by a drug
or substance addiction. Based on these findings, the trial court
determined that sentencing Gaymon to a nonstate prison sanction
posed a danger to the public and therefore increased Gaymon’s
maximum sentence from one year in county jail to five years in
prison. Because the court’s order reflects that the court relied on
more than just Gaymon’s prior convictions when it imposed his
sentence, we reverse Gaymon’s sentence as required by Brown.

     As for the instructions on remand, the supreme court in
Brown declined to reach the parties’ arguments regarding the
appropriate remedy because Brown had already served her
sentence by the time the court reviewed her case. Id. at 149-50.
Although the supreme court noted that the proper procedure on
remand would be answered in a future case, it specifically
recognized as options that an appellate court could either instruct
the lower court to impose a nonstate prison sanction or afford the
State an opportunity to present the dangerousness issue to the
jury. Id. at n.1. This Court has already determined that on
remand, if the defendant remains incarcerated, the proper remedy
is to remand for resentencing under the prior version of section
775.082(10). Booker v. State, 244 So. 3d 1151, 1169 (Fla. 1st DCA
2018). In Booker, this Court certified the following question of
great public importance:


                                 2
    WHETHER THE SECOND SENTENCE IN SUBSECTION (10) OF
    SECTION 775.082, FLORIDA STATUTES, WHICH AUTHORIZES
    A TRIAL JUDGE TO MAKE FACTUAL FINDINGS INDEPENDENT
    OF A JURY AS TO AN OFFENDER'S POTENTIAL “DANGER TO
    THE PUBLIC” AND TO IMPOSE A STATE PRISON SENTENCE
    THAT EXCEEDS THE MAXIMUM NONSTATE SANCTION OF UP
    TO ONE YEAR IN COUNTY JAIL VIOLATES THE SIXTH
    AMENDMENT AS APPLIED TO BOOKER? IF THE ERROR IS NOT
    HARMLESS, WHAT REMEDY IS APPROPRIATE?

Id. The question remains pending before the supreme court.
Booker v. State, 244 So. 3d 1151 (Fla. 1st DCA 2018), review
pending SC18-752. Until the supreme court addresses the
question, we are compelled by Booker to remand Gaymon’s case
with instructions that the sentencing court resentence him under
the prior version of section 775.082(10). Id.

    REVERSED and REMANDED.

WOLF, LEWIS, and ROWE, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Steven L. Seliger, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Quentin Humphrey,
Assistant Attorney General, Tallahassee, for Appellee.




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