       Third District Court of Appeal
                               State of Florida

                        Opinion filed November 28, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-1903
                        Lower Tribunal No. 94-33949 B
                             ________________


                              Franchot Brown,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


     An Appeal from the Circuit Court for Miami-Dade County, Rodolfo A. Ruiz
and Michael A. Genden, Judges.

     McLain Law, P.A., and Matthew R. McLain (Longwood), for appellant.

      Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant
Attorney General, for appellee.


Before ROTHENBERG, C.J., and FERNANDEZ and LUCK, JJ.

     ROTHENBERG, C.J.

     Franchot Brown (“Brown”) appeals his sentence for first degree murder.
Based on the Florida Supreme Court’s decision in Williams v. State, 242 So. 3d

280 (Fla. 2018), decided during the pendency of this appeal, and our review of the

record, we affirm.

                           PROCEDURAL HISTORY

      On or about November 2, 1994, Brown was indicted for the crimes of first

degree murder, attempted armed robbery, and burglary with an assault or battery

while armed, offenses committed on August 27, 1994, while Brown was seventeen

years old. Brown proceeded to trial and was found guilty of first degree murder

with a firearm personally used by Brown and attempted robbery with a firearm

personally used by Brown. On January 27, 1999, he was adjudicated guilty and

sentenced to life without the possibility of parole for his conviction for first degree

murder and four years imprisonment for his conviction for attempted armed

robbery, with each sentence to run concurrent. The judgment and sentences were

subsequently affirmed on appeal. See Brown v. State, 751 So. 2d 580 (Fla. 3d

DCA 2000).

      After filing several unsuccessful motions, petitions, and appeals, on June 25,

2015, Brown filed another pro se motion to vacate and/or correct an illegal

sentence based, this time, on the United States Supreme Court’s decision in Miller

v. Alabama, 567 U.S. 460 (2012) (concluding that a life without parole sentence

for a juvenile offender who was convicted of a homicide constitutes cruel and

                                          2
unusual punishment in violation of the Eighth Amendment).           The trial court

appointed counsel to represent Brown, and Brown’s appointed counsel filed an

amended motion on September 21, 2015, contending that, based on Miller, Brown

must be resentenced, and when resentenced he must be resentenced under section

775.082(1)(b)2., Florida Statutes (2015), not section 775.082(1)(b)1., Florida

Statutes (2015).

      The trial court granted Brown’s motion to vacate his life sentence, and after

conducting a new sentencing hearing on June 24, 2016, at which ten witnesses,

including Brown, testified, and reading the entire trial transcript, the trial court

sentenced Brown to forty-five years’ incarceration with credit for all time

previously served. Brown does not appeal his forty-five year sentence. The sole

issue raised on appeal is the propriety of the trial court’s application of section

775.082(1)(b)1. when sentencing Brown.

      During the pendency of Brown’s appeal, the Florida Supreme Court had

before it the same issue that has been raised in Brown’s appeal. This Court,

therefore, stayed Brown’s appeal pending the Florida Supreme Court’s review of

the Fifth District Court of Appeal’s decision in Williams v. State, 211 So. 3d 1070

(Fla. 5th DCA 2017). The Florida Supreme Court has now issued its opinion in

Williams v. State, 242 So. 3d 280 (Fla. 2018), and thus we perform our analysis

under the Florida Supreme Court’s decision in Williams.

                                         3
                                   ANALYSIS

      The issue on appeal is the trial court’s application of section 775.082(1)

when it resentenced Brown. In Horsley v. State, 160 So. 3d 393, 405 (Fla. 2015),

the Florida Supreme Court concluded that the appropriate remedy for juveniles

whose sentences are unconstitutional under Miller is to resentence them in

conformity with Chapter 2014-220, Laws of Florida.         Chapter 2014-220 was

enacted to bring Florida’s juvenile sentencing law in compliance with the United

States Supreme Court’s Eighth Amendment jurisprudence.              Thus, section

775.082(1) was amended, in pertinent part, to include the following provisions:

      (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).

      (b)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
                                        4
     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).

      Based on these amendments, the Florida Legislature enacted section

921.1402, Florida Statutes (2017), and specifically subsection (2) which provides,

in pertinent part, as follows:

      (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.

Thus, a juvenile who actually killed, intended to kill, or attempted to kill the victim

and who is not sentenced to life imprisonment must be sentenced to a minimum of

forty years imprisonment under section 775.082(1)(b)1. and he is entitled to a

review of his sentence after serving twenty-five years. However, a juvenile who

did not actually kill, intend to kill, or attempt to kill the victim must be sentenced

under section 775.082(1)(b)2., and under this provision, there is no minimum

sentence that must be imposed and if he is sentenced to a term of more than fifteen

years, he is entitled to a review of his sentence after fifteen years.

      The question in this case is who must make the determination as to whether

Brown actually killed, intended to kill, or attempted to kill the victim—the judge or

                                            5
the jury? The Florida Supreme Court has now answered that question in Williams.

The Florida Supreme Court in Williams held that, based on the United States

Supreme Court’s decision in Alleyne v. United States, 570 U.S. 99 (2013), the jury

must make this factual finding, but the Court additionally concluded that “Alleyne

violations” are subject to a harmless error analysis. Williams, 242 So. 3d at 282.

The Court reasoned that:

      Because a finding of actual killing, intent to kill, or attempt to kill
      aggravates the legally prescribed range of allowable sentences 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
      “element” of the offense, which Alleyne requires be submitted to a
      jury and found beyond a reasonable doubt.

Williams, 242 So. 3d at 288 (citations and internal quotation marks omitted).

However, because the Florida Supreme Court noted that this finding conflicted

with the Court’s earlier ruling in Falcon v. State, 162 So. 3d 954 (Fla. 2015), the

Court receded from Falcon “to the extent it concludes this determination is to be

made by a trial court.” Williams, 242 So. 3d at 288 n.7.

A. There was an Alleyne violation because it is unclear whether the jury found
   that Brown actually killed, intended to kill, or attempted to kill the victim

      In Williams, the Florida Supreme Court looked to the verdict form and jury

instructions to determine whether the jury found that the defendant actually killed,

intended to kill, or attempted to kill the victim. The Williams jury found the

defendant guilty of first degree murder on a general verdict form. Williams, 242
                                         6
So. 3d at 283, 289. The jury was instructed that it could find the defendant guilty

of first degree murder if it found that he committed premeditated murder, felony

murder, or was involved in the murder as a principal. Id. at 288. Because the jury

was instructed on three different theories of first degree murder, two of which did

not require that the defendant actually killed, intended to kill, or attempted to kill

the victim, the Court held “it cannot be determined from the general verdict form

whether the jury found beyond a reasonable doubt that [the defendant] actually

killed, intended to kill, or attempted to kill [the victim].” Id. “[B]ased on the

instructions given,” the Court explained, “the general guilty verdict for first-degree

murder fails to demonstrate the jury found beyond a reasonable doubt that [the

defendant] actually killed” the victim.” Id. at 289. And “[w]hether the jury found

beyond a reasonable doubt that [the defendant] intended to kill [the victim] cannot

be determine from the verdict.” Id. Unable to tell from the verdict form and jury

instructions whether the jury made a clear finding that the defendant actually

killed, intended to kill, or attempted to kill the victim, the Court found “an Alleyne

violation.” Id.

      Here, also, the jury found by general verdict that Brown was guilty of first-

degree murder, and the jury was instructed that Brown could be found guilty of

first degree murder if the jury found that he committed premeditated murder,

felony murder, or was involved in the murder as a principal. Thus, just as in

                                          7
Williams, we are unable to determine from the general verdict under which theory

the jury found Brown guilty of first-degree murder. Although premediated murder

could support a finding that Brown actually killed, intended to kill, or attempted to

kill the victim, the other two theories – felony murder and guilty as a principal – do

not clearly support such a finding. Because, as in Williams, we cannot determine

from the verdict form whether the jury made the necessary finding, we too must

find an Alleyne violation. But that does not end our analysis.

         In the instant case, the jury found Brown guilty of first degree murder and

specifically checked the boxes indicating that it was additionally finding that

Brown committed the murder “with a firearm” and that the firearm was

“personally used by [Brown],” However, because this was a multi-defendant case,

with multiple theories upon which the jury could have reached its verdict, the

determination of whether the trial court correctly applied section 775.082(1)(b)1.

when resentencing Brown, cannot be made based on our review of the verdict form

alone.

         We specifically note, however, that this will not always be the case. For

example, if the case is a single defendant case and the jury found the juvenile

offender guilty of first degree murder with a firearm, then the reviewing court may

be able to make a determination that the juvenile offender actually killed, intended

to kill, or attempted to kill the victim by simply examining the charging document

                                          8
and the verdict form.

B. Examination of the record demonstrates that the Alleyne violation is
   harmless beyond a reasonable doubt

      As already discussed, the Alleyne violation is not fatal because, as the

Florida Supreme Court held in Williams, it is subject to a harmless error analysis.

Williams, 242 So. 3d at 292-93. In order to find that the Alleyne error is harmless

pursuant to Williams, the record must “demonstrate beyond a reasonable doubt that

a rational jury would have found that [Brown] actually killed, intended to kill, or

attempted to kill [the victim].” Id. at 292. The “record” necessary to establish

harmless error may, in some cases, only be the charging document and the verdict

form, where in other cases, a review of the evidence may be required. In the

instant case, we have reviewed the entire record, and based on the evidence

presented in this case and the jury’s findings, we conclude that the error was

harmless beyond a reasonable doubt.

      A review of the evidence and record in this case reflects the following. The

victim, seventeen-year-old Ralphie Santana, was working with his sixteen-year-old

brother, Alex, in a beeper store when Brown and two other individuals (identified

by Brown during his pre-trial statement to the homicide detective as “Kevin” and

“Mark”) entered the store, each armed with firearms. According to Brown, he was

armed with a .38 caliber or .357 caliber handgun, while Kevin and Mark were both

armed with 9 millimeter handguns. Kevin and the victim (Ralphie) got into an
                                        9
argument, and according to Brown in his pre-trial statement, Kevin pulled out his

gun and pointed it at Ralphie’s head, Ralphie reached for his own gun, shots were

fired, and Brown pulled out his own gun and began firing. Ralphie sustained

eleven gunshot wounds. He was shot in the face, in the chest, in the back, and on

his arms and legs. Two of the gunshots were fired at close range and the only

projectile of value that was recovered from Ralphie’s body was fired from a .38

caliber revolver and was recovered from Ralphie’s chest.

      Six bullet casings were recovered from the scene and all of these casings

were fired from a 9 millimeter handgun. Nine projectiles were also recovered.

Eight of the nine projectiles that were recovered were from the scene and one was

recovered from Ralphie’s body. Three of the eight projectiles recovered from the

scene were fired from a .38 caliber revolver, and, as stated earlier, the projectile

recovered from Ralphie’s body was also fired from a .38 caliber revolver.

Ralphie’s gun was fully loaded and none of the bullets were fired from his gun.

      Although Brown told the detective who interviewed him that when he fired

his gun he was pointing it at the ceiling, no bullet holes were found in the ceiling,

and when the detective told Brown that bullets from both a .38 caliber firearm and

a 9 millimeter handgun struck the victim, Brown conceded, “I guess I hit him.”

Additionally, “Kevin” (Kevin Wadley) testified at the trial that he, Mark Brisco,

and Brown went into the beeper store while Robert Peterkin, who drove them to

                                         10
the store, remained in the car. While looking at beepers, Brown got into an

argument with the victim. Kevin, who believed the victim was attempting to reach

for a gun, shot the victim. Then Brown shot the victim in the face at close range,

and when the victim reached up to cover his face, Brown continued to shoot his

gun, Kevin started firing his gun, and when the victim backed up towards the back

room of the store, Kevin, Mark, and Brown left the store. When they all got into

the car, Brown told Robert (the driver) what had happened and that he had shot the

“clerk.” Alex Santana, Ralphie’s sixteen-year-old brother, was in the back room

during the altercation, and although he heard the shots being fired, he did not

witness the shooting.

      Thus, based on Brown’s own admission that he was armed with a .38 caliber

handgun and that Kevin and Mark were armed with 9 millimeter handguns;

Kevin’s corroboration of this admission; and the undisputed physical evidence,

Brown fired his .38 caliber handgun at least four times, and one of the four

projectiles fired from Brown’s gun struck the victim in the chest, and according to

Kevin, the gunshot wound to the victim’s face was also inflicted by Brown. Also,

based on Brown’s admissions to the detective and to Robert, at least one of the

projectiles fired from Brown’s gun, struck Ralphie.      Lastly, according to the

medical examiner, Ralphie’s death was caused by “multiple gunshot wounds.”

      The evidence unequivocally establishes that Brown “actually killed”

                                        11
Ralphie. That is because Brown admitted that he was the only one armed with a

.38 caliber firearm, a .38 caliber projectile was recovered from Ralphie’s chest, and

the multiple gunshot wounds, including the gunshot wound to Ralphie’s chest was

the unrefuted cause of death. Additionally, when Brown was informed that the

victim received bullet wounds from both a .38 and a 9 millimeter handgun, he

stated, “I guess I hit him,” and when he got into the waiting get-away car, he told

the driver, Robert, that he had shot the clerk.

      In Williams, the Florida Supreme Court held that:

      [T]he 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 actually killed, intended to kill, or attempted
      to kill the victim.

Williams, 242 So. 3d at 290. Brown contends that such a finding cannot be made

in this case because: (1) he was charged, in the alternative, with first degree

premeditated murder and felony murder and, although the jury found him guilty of

first degree murder, the jury was not asked, and did not specify, whether they were

finding him guilty of first degree premeditated murder or felony murder; (2) there

were multiple perpetrators and the jury was given the option of finding him guilty

of first degree murder as a principal. Based on the evidence in this case, we

conclude that these arguments are without merit.
                                          12
      (1) The general verdict form

      Section 775.082(1)(b)1. does not require a finding of premeditation. All that

is required is that the defendant actually killed, intended to kill, or attempted to kill

the victim. Thus, it does not matter if the jury found that Brown committed first

degree premeditated murder or felony murder as long as the evidence establishes

that he actually killed, intended to kill, or attempted to kill the victim.

      Based on Brown’s own admissions that: he was the only one armed with a

.38 caliber handgun; he fired his handgun several times; and he must have shot the

victim, plus the physical evidence that at least one of the shots fired by Brown

struck Ralphie in the chest and killed Ralphie, the evidence, even in the light most

favorable to Brown, (which is not even the test under Williams) unequivocally

established that Brown “actually killed” the victim in this case.

      (2) The principal theory

      The same argument applies to consideration of the possibility that the jury

convicted Brown under the principal theory. All four perpetrators were involved in

the robbery and killing of the victim. At least two of those perpetrators, Brown

and Kevin, discharged their firearms during commission of the robbery/homicide,

with each firing their weapons multiple times. Ralphie sustained eleven gunshot

wounds, and the physical evidence established that the .38 caliber projectile fired

by Brown struck Ralphie in the chest and lodged itself in Ralphie’s chest cavity.

                                           13
The cause of death was multiple gunshot wounds. The jury also heard from Kevin

that Brown additionally shot Ralphie in the face, and after shooting him in the face,

he continued to shoot him.

       We, therefore, conclude that under Williams “the record demonstrates

beyond a reasonable doubt that a rational jury would have found [Brown] actually

killed, intended to kill, or attempted to kill the victim.” Williams, 242 So. 3d at

290.   Thus, the Alleyne violation in the instant case is harmless beyond a

reasonable doubt, and we affirm.

                                     CONCLUSION

       The Florida Supreme Court has mandated that it is the jury, not the trial

court, which must make the factual finding that the juvenile offender actually

killed, intended to kill, or attempted to kill the victim in order to sentence a

juvenile offender under section 775.082(1)(b)1. However, if we cannot determine

whether the jury made such a finding by examining the verdict form, charging

document, and jury instructions so as to trigger section 775.082(1)(b)1., the error is

harmless if the record demonstrates beyond a reasonable doubt that a rational jury

would have found that the juvenile actually killed, intended to kill, or attempted to

kill the victim.

       Based on the record in this case, we have made such a finding. The jury

found Brown guilty of first degree murder and attempted armed robbery. The jury

                                         14
also specifically found that Brown committed these offenses with a firearm that he

actually used during the homicide and the attempted armed robbery. Additionally,

Brown admitted that he was the only one armed with a .38 caliber firearm, that he

discharged his firearm, and that he must have “hit” the victim. Ralphie died from

multiple gunshot wounds, including a gunshot wound to his chest by a .38 caliber

firearm. Accordingly, we find the Alleyne violation to be harmless beyond a

reasonable doubt.

      Affirmed.

    ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN
DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE
FILED WITHIN FIVE DAYS THEREAFTER.




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