          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                  RYAN CHRISTOPHER BUCHMANN,
                            Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D19-2904

                             [April 29, 2020]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Dan L. Vaughn, Judge; L.T. Case No.
312018CF001347A.

  Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Marc B. Hernandez,
Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

    The remedy for application of an unconstitutional statute is the subject
of this appeal. The defendant appeals his prison sentence imposed on a
violation of probation. He argues the trial court erred in employing
statutory revival to justify his prison sentence under section 775.082(10),
Florida Statutes (2018). We agree and reverse.

   The State charged the defendant with third-degree grand theft for
shoplifting items from Target. The defendant entered a negotiated no
contest plea and received eight months in county jail followed by two years’
probation. He violated his probation.

   At the violation hearing, the trial court advised the defendant of the
maximum sentence of five years in prison. The defendant then entered an
open plea. The court proceeded to sentencing.

   The defendant’s scoresheet reflected 20.6 points. He requested a non-
state prison sanction because he scored less than 22 points. The State
asked for a 24-month prison sentence because the defendant violated
probation three times. The State relied on Booker v. State, 244 So. 3d
1151, 1164 (Fla. 1st DCA 2018), rev’d, Gaymon v. State, 288 So. 3d 1087
(Fla. 2020). There, the First District held the second sentence of section
775.082(10) unconstitutional, but affirmed a prison sentence utilizing
statutory revival.

   The defendant argued Booker was not binding. He advised there had
been neither a jury, nor judicial finding that he was a danger to the public.
He argued without such a finding, the trial court could not impose a prison
sentence.

   Relying on Booker, the trial court used statutory revival. It utilized a
prior version of section 775.082(10), and sentenced the defendant to 30
months in prison with credit for 224 days served. The defendant now
appeals.

   The defendant argues the trial court erred by imposing a prison
sentence without a jury finding that he presented a danger to the public.
The State responds the trial court properly applied Booker. It was the only
district court decision at the time addressing the constitutionality of
section 775.082(10) and providing a remedy.

   We have de novo review of this legal question. Flowers v. State, 899 So.
2d 1257, 1259 (Fla. 4th DCA 2005).

   Section 775.082(10), Florida Statutes, provides:

      (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.

Id. (emphasis added).

   The State is correct that Booker was the only authority on the issue at
the time of sentencing. There, the First District declared the second
sentence of section 775.082(10) unconstitutional. It articulated the

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following remedies:

      (a) engrafting a “jury trial” requirement into the last sentence
      of subsection (10) and remanding for proceedings under a
      judicially-revised process; (b) construing “must” in the first
      sentence of subsection (10) to mean “may” thereby making
      compulsory nonstate prison sanctions non-compulsory and
      raising the relevant statutory maximum sentence to a state
      prison term; (c) remanding for resentencing under the first
      sentence of subsection (10) only; or (d) remanding for
      resentencing under the prior version of the sentencing statute,
      i.e., statutory revival.

Id. at 1166. The First District employed the fourth option of statutory
revival. Id. at 1168–69.

   Shortly after the defendant’s sentencing, our supreme court agreed
with Booker and declared the second sentence of section 775.082(10)
unconstitutional. Brown v. State, 260 So. 3d 147, 149–50 (Fla. 2018).
But, the court stopped short of suggesting a remedy. Id. at 149–150.

    More recently, our supreme court rejected the statutory revival remedy
“because it would be inconsistent with the plain purpose of th[e] legislative
enactment—mandating nonstate prison sanctions for most low-scoring
offenses.” Gaymon, 288 So. 3d at 1091.

   Gaymon is dispositive. 1 The trial court cannot revive the previous
statutory version of section 775.082(10) to justify the imposition of a
prison sentence.    We therefore reverse and remand the case for
resentencing. See Lewis v. State, 286 So. 3d 290 (Fla. 4th DCA 2019)
(reversing and remanding the case for a jury determination on whether the
defendant is a danger to the public or for imposition of non-state
sanctions).

   Here, the defendant’s criminal punishment code scoresheet reflected a
total of 20.6 points, qualifying him for a non-state prison sanction under
section 775.082(10). Upon remand, the trial court has two options: (1)
impose a non-state sanction; or (2) empanel a jury to make a finding that
the defendant is a danger to the public.

    Reversed and Remanded.

1We understand the trial court did not have the benefit of Gaymon at the time of
sentencing.

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GROSS and GERBER, JJ., concur.

                         *       *        *

  Not final until disposition of timely filed motion for rehearing.




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