           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT

                                 ANTHONY CRUZ,
                                    Appellant,

                                         v.

                              STATE OF FLORIDA,
                                   Appellee.

                                  No. 4D13-1408

                                 [ May 20, 2015 ]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Ilona M. Holmes, Judge; L.T. Case No. 09004601CF10A.

  Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

    Anthony Cruz was convicted of manslaughter with a weapon and
attempted second degree murder with a weapon. In this appeal from his
judgments and sentences, he argues that the trial court erred in: (1)
denying his motion for judgment of acquittal because the state failed to
prove beyond a reasonable doubt that he did not act in self–defense; (2)
permitting the state to read to the jury, in its case-in-chief, his testimony
from the Stand Your Ground hearing; (3) allowing the state to use his
Stand Your Ground testimony without conducting a Richardson inquiry1;
(4) instructing the jury on self-defense; and (5) imposing habitual offender
sentences without jury findings of the necessary predicate facts. We affirm
on all issues.

      Factual Background

   Appellant was charged with manslaughter with a weapon and
attempted second-degree murder with a weapon. The charges arose from

1
    We find no reversible error on this issue and affirm without further comment.
a fight involving several men who worked together and lived with the father
of one of the victims, Carlos “Carlitos” Gonzalez, Jr. The fight erupted
outside their apartment late one night after they had been drinking
throughout the afternoon and evening. Appellant stabbed both Carlitos
and Jose “Rubi” Mendez, killing Carlitos and wounding Rubi. The state’s
key evidence at trial consisted of appellant’s statement to police, his
testimony at a pre-trial Stand Your Ground hearing, and the testimony of
a witness, Miguel Sosa, who observed much of the fight but was not
present when the stabbings occurred.2

   On the night of the incident, when Sosa saw appellant choking Carlitos,
Sosa and Rubi tried to pull appellant off, but he would not let go. Carlitos
was on the floor and appellant was on top of him. Sosa then grabbed
appellant by the throat and hit him because he would not let Carlitos go.
Sosa and Rubi were hitting appellant, and appellant eventually let go of
Carlitos.

   Sosa testified that appellant later went outside and told him that he
was going to kill him. Appellant took out a knife. Sosa ran away and told
Carlitos to tell his father, Carlos, Sr., that appellant wanted to kill him.
Appellant followed Sosa, who grabbed a rock. Appellant stopped following
him and went into the house. The next time Sosa saw Carlitos and Rubi,
they had stab wounds. Sosa did not see them get stabbed.

   Carlitos’s father, Carlos, Sr., testified that his son came upstairs,
looking pale from a stab wound next to his heart, and said, “Look, Daddy,
what Tony [appellant] did to me.” Shortly thereafter, Carlitos died of his
injury.

    Appellant left the scene after he heard someone say “we need an
ambulance.” A few hours after the stabbings, the police found appellant
walking down the street. Appellant later told the police that he left because
“[a]ll of them were looking for me to beat me up.”

   Appellant claimed self-defense, maintaining that he defended himself
against a fierce attack by Carlitos, Sosa, and Rubi with their fists, bottles,
and other heavy objects. Appellant claimed that Rubi started the fight.
Appellant said that the fight was “three to one” and that the three other
men smashed his head against a brick wall. Appellant’s blood was found
on the brick wall, and a CSI officer testified that the blood pattern was an
impact pattern.


2
    Rubi was unavailable to testify at trial.

                                            2
   Most of the facts supporting appellant’s self-defense claim were elicited
in the state’s case-in-chief, when the state introduced appellant’s
statement to the police and his pre-trial Stand Your Ground testimony.
There were portions of appellant’s pre-trial statements, however, that were
not beneficial to the defense. Appellant gave inconsistent statements
regarding key details in the case. He also made incriminating statements
that undermined his self-defense claim.

   After the state rested its case, the defense called two witnesses who
corroborated that three men were beating appellant. But those witnesses
did not see the stabbings or how the fight started.

   The trial court denied appellant’s motion for judgment of acquittal. The
jury found appellant guilty as charged on each count, and the trial court
imposed concurrent thirty-year habitual offender sentences on those
counts. This appeal followed.

   Denial of Judgment of Acquittal

   On appeal, appellant first argues that the state failed to present
competent substantial evidence disproving the theory that he acted in self-
defense. The state responds that it produced evidence which contradicted
appellant’s claim of self-defense and was sufficient to send the case to the
jury. We agree with the state and affirm.

   A de novo standard of review applies to the denial of a motion for
judgment of acquittal. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). In
moving for a judgment of acquittal, a defendant admits the facts in
evidence and every conclusion favorable to the state that may be
reasonably inferred from the evidence. Turner v. State, 29 So. 3d 361, 364
(Fla. 4th DCA 2010). A court should grant a motion for judgment of
acquittal only if “the evidence is such that no view which the jury may
lawfully take of it favorable to the opposite party can be sustained under
the law.” Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974). “If, after viewing
the evidence in the light most favorable to the State, a rational trier of fact
could find the existence of the elements of the crime beyond a reasonable
doubt, sufficient evidence exists to sustain a conviction.” Pagan, 830 So.
2d at 803 (citations omitted).

   “While the defendant may have the burden of going forward with
evidence of self-defense, the burden of proving guilt beyond a reasonable
doubt never shifts from the State, and this standard broadly includes the
requirement that the State prove that the defendant did not act in self-
defense beyond a reasonable doubt.” Brown v. State, 454 So. 2d 596, 598

                                      3
(Fla. 5th DCA 1984).

   When the state’s evidence is legally insufficient to rebut a prima facie
case establishing self-defense, the trial court must enter a judgment of
acquittal. See Fowler v. State, 921 So. 2d 708, 711-12 (Fla. 2d DCA 2006)
(the state’s evidence failed to rebut the defendant’s testimony that the
victim pulled a gun on him to rob him, and that he grabbed the gun and
shot the victim in self-defense; no eyewitnesses saw the shooting or the
events preceding it, and the defendant’s panicked actions after the
shooting—including hiding the gun—did not rebut his claim of self-
defense); Sneed v. State, 580 So. 2d 169, 170-71 (Fla. 4th DCA 1991) (the
state failed to rebut the defendant’s testimony that he shot the victim in
self-defense during a struggle in which “the victim carried himself as if
holding a knife and rushed toward him grabbing the rifle”; the state’s case
“not only failed to rebut appellant’s allegation of self-defense, but
corroborated a majority of appellant’s testimony”); Fowler v. State, 492 So.
2d 1344, 1349-52 (Fla. 1st DCA 1986) (reversing murder conviction where
the defendant’s hypothesis that “the shooting was purely accidental and
in self-defense” had not been overcome; the defendant testified that he
shot the victim with the victim’s gun during a struggle that took place after
the victim told the defendant he was going to have to “play the role of a
woman,” and the physical evidence—including the path of the bullet—
corroborated the defendant’s testimony); Diaz v. State, 387 So. 2d 978,
979-80 (Fla. 3d DCA 1980) (reversing manslaughter conviction where the
state “presented no evidence to rebut the defendant’s direct testimony that
he acted in self defense nor was it able to diminish his testimony on cross-
examination”; the defendant testified that he drew his weapon and
accidentally fired at the victim after the victim threatened to shoot him
“while apparently reaching in his pocket for a weapon”).

   A defendant’s inconsistent statements can, however, “constitute
grounds upon which a trier of fact may reject the defendant’s reasonable
hypothesis of innocence.” Carranza v. State, 985 So. 2d 1199, 1203 (Fla.
4th DCA 2008). Thus, a motion for judgment of acquittal should be denied
where a jury could reasonably infer guilt and reject the defendant’s
explanation of self-defense, either because the defendant gave false,
inconsistent, or incriminating statements, or because a common sense
view of the circumstantial evidence would allow the jury to reject the
defendant’s story as unbelievable. See Romero v. State, 901 So. 2d 260,
265-66 (Fla. 4th DCA 2005) (holding that the State presented sufficient
evidence to rebut the defendant’s hypothesis that he shot and killed only
one of the victims, and that he did so in self-defense after watching that
victim shoot and kill the other victim; the defendant admitted that he shot
one of the victims and that “he did not have to do so,” there were

                                     4
inconsistencies in defendant’s versions of events over time, and the
defendant left the scene, hid the gun, and lied to the police); Hampton v.
State, 549 So. 2d 1059, 1060-61 (Fla. 4th DCA 1989) (holding that “there
was competent evidence from which the jury could reasonably infer guilt
and reject the appellant’s explanation” of how the shooting of his girlfriend
occurred, where the defendant claimed that his girlfriend initially pulled
out the gun and that it fired in a subsequent struggle, but the defendant
gave differing explanations in the course of the investigation, and “also
made several statements indicating a lack of remorse, evidencing feelings
of hostility toward the victim, and that he expected to be charged with the
shooting”).

   In this case, there was competent evidence from which the jury could
reasonably infer guilt and reject appellant’s explanation of self-defense.
Viewed in the light most favorable to the state, the jury could have
reasonably found that appellant did not act in self-defense when he
stabbed the victims. By his own admission, appellant was drunk on the
night of the fight. And Sosa’s testimony, if believed, would establish that
appellant was the initial aggressor. Appellant had gotten on top of Carlitos
and was choking him, which prompted the initial fight. Further, while
Sosa did not witness the actual stabbings, he did witness the events
leading up to the stabbings. He testified that after the initial fight was
over, appellant got a knife and threatened to kill him.

   The present case is distinguishable from the cases relied upon by
appellant. In those cases, the prosecution failed to rebut a claim of self-
defense. Here, by contrast, appellant’s own statements—both in his police
interview and his Stand Your Ground testimony—often undermined his
self-defense claim. Appellant admitted to the detective that he armed
himself with a knife after the initial fight was over, and that he was furious
at the time of the stabbings. In his Stand Your Ground testimony,
appellant claimed that he did not remember stabbing Carlitos, and
seemingly admitted that he did not stab Carlitos in self-defense: “I never
stated that I stabbed him to defend myself.”

   The jury could have reasonably found that the threat to appellant was
over when he armed himself with the knife, and that appellant’s use of
deadly force was not “necessary to prevent imminent death or great bodily
harm.” Sosa’s testimony concerning the events leading up to the
stabbings, coupled with appellant’s own incriminating statements and
inconsistent explanations, provided sufficient evidence to create a jury
question on the issue of whether appellant stabbed the victims in self-
defense. The trial court properly denied the motion for judgment of
acquittal.

                                      5
   Admission of Appellant’s Testimony at the Stand Your Ground Hearing

   At trial, the defense objected to the state reading to the jury, in its case-
in-chief, a redacted transcript of appellant’s testimony at the pre-trial
Stand Your Ground hearing.           The defense argued that appellant’s
testimony at the immunity hearing, similar to testimony at a motion to
suppress hearing, “would not be automatically admissible as evidence
against him” at trial. The trial court initially ruled that the testimony from
the Stand Your Ground hearing could be admitted only for impeachment
purposes, but later decided that a defendant’s statements at a Stand Your
Ground hearing were admissible as substantive evidence at trial. The
court agreed with the state’s argument that “no Constitutional right was
being asserted” through appellant’s testimony at the Stand Your Ground
hearing.

    Appellant argues that the trial court erred in admitting his testimony
from the Stand Your Ground hearing as substantive evidence at trial,
contending that the state may not use as substantive evidence a
defendant’s testimony as to a “constitutional or substantive” right.
Appellant maintains that the Stand Your Ground law enforces a
constitutional right—namely, the right to bear arms in self-defense. See
Art. I, § 8(a), Fla. Const. (“The right of the people to keep and bear arms in
defense of themselves . . . shall not be infringed”); Dist. of Columbia v.
Heller, 554 U.S. 570, 628 (2008) (“[T]he inherent right of self-defense has
been central to the Second Amendment right.”); Weiand v. State, 732 So.
2d 1044, 1057 (Fla. 1999) (stating that “[t]he right to fend off an
unprovoked and deadly attack is nothing less than the right to life itself,
which [article I, section 2] of our Constitution declares to be a basic right”)
(citation and internal quotation marks omitted); see also Ch. 2005-27,
Laws of Fla. (stating in preamble to the Stand Your Ground legislation:
“WHEREAS, Section 8 of Article I of the State Constitution guarantees the
right of the people to bear arms in defense of themselves”).

    “A trial court’s decision to admit evidence is reviewed using the abuse
of discretion standard of review, as limited by the rules of evidence.” Lopez
v. State, 97 So. 3d 301, 304 (Fla. 4th DCA 2012). But where, as here, an
evidentiary issue presents a pure question of law, the standard of review
is de novo. See Linn v. Fossum, 946 So. 2d 1032, 1036 (Fla. 2006).

   The United States Supreme Court has held that “when a defendant
testifies in support of a motion to suppress evidence on Fourth
Amendment grounds, his testimony may not thereafter be admitted
against him at trial on the issue of guilt unless he makes no objection.”

                                       6
Simmons v. United States, 390 U.S. 377, 394 (1968). The Court reasoned
that a defendant should not be forced to choose between asserting a
Fourth Amendment claim and waiving the Fifth Amendment privilege
against self-incrimination: “In these circumstances, we find it intolerable
that one constitutional right should have to be surrendered in order to
assert another.” Id.

   The rule of Simmons has been applied in other contexts where the
defendant gave testimony in the exercise of a constitutional right. See
Johnson v. State, 537 So. 2d 1116, 1117-18 (Fla. 4th DCA 1989) (applying
Simmons and holding that a defendant’s pre-trial testimony could not be
used as substantive evidence against him at trial where the testimony was
given in support of a motion to dismiss charges based on an alleged Brady
violation); United States v. Garcia, 721 F.2d 721, 723 (11th Cir. 1983)
(applying Simmons to a pre-trial double jeopardy hearing); see also Pedrero
v. Wainwright, 590 F.2d 1383, 1388 n.3 (5th Cir. 1979) (in dicta, citing
Simmons for the proposition that “[h]ad Pedrero testified at the
arraignment in support of his insanity defense or his incompetency claim,
that testimony could not have been admitted at trial over his objection”).

   Simmons does not, however, require exclusion of a defendant’s pre-trial
admissions where the defendant was not forced to surrender one
constitutional right in order to assert another. See State v. Palmore, 510
So. 2d 1152, 1153 (Fla. 3d DCA 1987). In Palmore, the Third District held
that a defendant’s statements in a sworn motion to dismiss were
admissible against the defendant at trial in the state’s case-in-chief. Id.
The court reasoned that because there is no constitutionally protected
right to file a motion for dismissal, a defendant making admissions in a
motion to dismiss is not forced to choose between two constitutional
rights. Id. at 1154. The court found that Simmons was not applicable,
explaining that Simmons was expressly limited to cases in which the
exercise of a constitutional right conflicts with exercise of another
constitutional right. Id.

    Similarly, as a general rule, a defendant’s testimony at a former trial is
admissible against the defendant at retrial, even if the defendant declines
to testify at the retrial.3 State v. Billie, 881 So. 2d 637, 639 (Fla. 3d DCA

3 There is a limited exception to this rule. A defendant’s trial testimony may not
be used against him in his retrial where the government introduced illegally
obtained confessions at the defendant’s first trial, and the defendant took the
stand at the first trial solely to rebut the illegally obtained confessions. See
Harrison v. United States, 392 U.S. 219 (1968).


                                        7
2004). And, in Tarver v. State, 571 So. 2d 98 (Fla. 3d DCA 1990), a
defendant’s prior statements at an Arthur4 hearing were held to be
admissible both in the state’s case-in-chief and for impeachment of the
defendant, though the Tarver court did not discuss Simmons.

   Here, because appellant was not forced to make a choice between two
constitutional rights, his testimony at the pre-trial Stand Your Ground
immunity hearing was admissible against him at trial. Cf. Palmore, 510
So. 2d at 1153-54. Appellant was not required to surrender any
constitutional right by voluntarily testifying in the pre-trial Stand Your
Ground immunity hearing.

   To be sure, “section 776.032 grants defendants a substantive right to
assert immunity from prosecution and to avoid being subjected to a trial.”
Dennis v. State, 51 So. 3d 456, 462 (Fla. 2010). But this is not a
constitutional right. Stand Your Ground immunity from prosecution is
entirely a creature of statute. Because Simmons is limited to situations
where the exercise of one constitutional right conflicts with the exercise of
another constitutional right, the reasoning of Simmons should not be
extended to any substantive right that may be created by statute or by
rule.

   In any event, appellant was not forced to choose between exercising his
right to bear arms in self-defense and his Fifth Amendment privilege
against self-incrimination. Appellant obviously had the right of self-
defense. The only dispute was whether appellant was, in fact, exercising
that right when he stabbed the two victims.

   This case does not present a reason to deviate from the general rule
that a defendant’s testimony is admissible against him in later
proceedings. Any time a defendant exercises the right to testify at a
criminal trial, he risks that his testimony could be used against him at any
subsequent retrial. This case is far more analogous to Billie than it is to
Simmons. Because a dismissal under the Stand Your Ground law is not a
constitutional right, appellant was not forced to make a choice between
two constitutional rights when he decided to testify at the pre-trial
immunity hearing. His testimony was therefore admissible in subsequent
proceedings.



4 State v. Arthur, 390 So. 2d 717, 720 (Fla. 1980) (“[B]efore release on bail pending
trial can ever be denied, the state must come forward with a showing that the
proof of guilt is evident or the presumption is great.”).

                                         8
    Jury Instructions on the Justifiable Use of Deadly Force

   The trial court gave the standard jury instructions on the justifiable use
of deadly force as to both counts. For example, as to the manslaughter
count, the relevant portions of the instruction on the justifiable use of
deadly force are as follows:

          An issue in this case is whether the defendant acted in self-
       defense. It is a defense to the offense with which Anthony
       Cruz is charged if the death of Carlos Gonzalez resulted from
       the justifiable use of deadly force.

          “Deadly Force” means force likely to cause death or great
       bodily harm.

          The use of deadly force is justifiable only if the defendant
       reasonably believes that the force is necessary to prevent
       imminent death or great bodily harm to himself or another
       while resisting any attempt to commit Aggravated Battery
       upon him[.]

          However, the use of deadly force is not justifiable if you
       find:

          Anthony Cruz initially provoked the use of force against
          himself, unless:

          (a) The force asserted toward the defendant was so great
          that he reasonably believed that he was in imminent
          danger of death or great bodily harm and had exhausted
          every reasonable means to escape the danger, other
          than using deadly force on Carlos Gonzalez. [Or]5

          (b) In good faith, the defendant withdrew from physical
          contact with Carlos Gonzalez and indicated clearly to
          Carlos Gonzalez that he wanted to withdraw and stop
          the use of deadly force, but Carlos Gonzalez continued
          or resumed the use of force.

          In deciding whether defendant was justified in the use of

5The written instructions did not include an “or,” but the court did say “or” while
giving the oral instructions.

                                        9
      deadly force you must judge him by the circumstances by
      which he was surrounded at the time the force was used. . . .

         If the defendant was not engaged in any unlawful activity
      and was attacked in any place where he had a right to be, he
      had no duty to retreat and had the right to stand his ground
      and meet force with force, including deadly force, if he
      reasonably believed that it was necessary to do so to prevent
      death or great bodily harm to himself or another, or to prevent
      the commission of a forcible felony.

(emphasis added).

   On appeal, appellant argues that under Floyd v. State, 151 So. 3d 452
(Fla. 1st DCA 2014), rev. granted 2014 WL 7251662 (Fla. Dec. 16, 2014),
the jury instruction on the justifiable use of deadly force is fundamental
error because it provides conflicting instructions on the duty to retreat.

   Because this issue was unpreserved by an objection below, it “can be
raised on appeal only if fundamental error occurred.” State v. Delva, 575
So. 2d 643, 644 (Fla. 1991). Fundamental error exists where the
defendant’s sole defense at trial was that he acted in self-defense, and
incorrect jury instructions on the duty to retreat effectively negate that
defense. Dorsey v. State, 149 So. 3d 144, 147 (Fla. 4th DCA 2014);
Richards v. State, 39 So. 3d 431, 434 (Fla. 2d DCA 2010).

    In Floyd, a case where the defendant’s sole defense at trial was that his
use of deadly force was justified, the First District held that the standard
instruction on the justifiable use of deadly force constituted fundamental
error because it provided conflicting instructions on the duty to retreat
and negated the defendant’s only defense. 151 So. 3d at 453-54. The
court found that the instruction was conflicting because the Stand Your
Ground portion of the instruction stated that the defendant had no duty
to retreat if he was not engaged in any unlawful activity, but the
provocation portion of the instruction stated that a defendant who initially
provoked the use of force may use deadly force “only if the defendant has
first exhausted every means of escape.” Id. at 454 (emphasis removed).
The court stated: “In effect, the jury instruction here provided that Floyd
did not have to retreat . . . and did have a duty to try to retreat before using
deadly force if in fear of death or great bodily harm.” Id. The court thus
found fundamental error, reasoning that “[t]he conflicting jury instructions
negated each other in their effect, and therefore negated their possible
application to Floyd’s only defense.” Id.


                                      10
   Although not stated in the Floyd opinion, the First District issued an
order certifying the following question to the Florida Supreme Court as one
of great public importance: “DOES FLORIDA STANDARD JURY
INSTRUCTION         (CRIMINAL)       3.6(F)     PROVIDE      CONFLICTING
INSTRUCTIONS AS TO THE DUTY TO RETREAT?” The Florida Supreme
Court has granted review. See State v. Floyd, 2014 WL 7251662 (Fla. Dec.
16, 2014).

     In the meantime, the First District continues to adhere to Floyd. See
Furr v. State, 157 So. 3d 541 (Fla. 1st DCA 2015); Ross v. State, 157 So.
3d 406(Fla. 1st DCA Feb. 3, 2015). By contrast, in McClain v. State, 2015
WL 1256439 (Fla. 5th DCA Mar. 20, 2015), the Fifth District declined to
take a position on whether Floyd was correctly decided, explaining: “We
. . . conclude that McClain could not establish fundamental error in this
case even if we were to follow Floyd, because McClain did not advance a
self-defense theory at trial.”

   We note that courts have declined to find fundamental error under
Floyd where there was a factual dispute as to who was the initial aggressor.
See Woodsmall v. State, 40 Fla. L. Weekly D864 (Fla. 5th DCA Apr. 10,
2015); Sims v. State, 140 So. 3d 1000, 1003 n.3 (Fla. 1st DCA 2014).

    The instructions in this case are virtually identical to the ones given in
Floyd. And even though there was a factual dispute in this case as to who
was the initial aggressor, our determination that the trial court did not err
in giving the standard instructions is not based on Floyd; we conclude that
Floyd was incorrectly decided.

    The standard instruction on the justifiable use of deadly force, given
both in Floyd and in this case, is not internally inconsistent. The Stand
Your Ground portion of the instruction stands for the general proposition
that a defendant who is not engaged in any unlawful activity and is
attacked in a place where he has the right to be has no duty to retreat,
while the “aggressor” part of the instruction provides an exception to this
general proposition for a defendant who provokes the use of force against
himself (without withdrawing from physical contact in good faith). Both
parts of the instruction are a correct statement of the law. Indeed, the
relevant language of the instruction comes directly from the applicable
provisions of Chapter 776. See § 776.013(3), Fla. Stat. (2008) (stating that
“[a] person who is not engaged in an unlawful activity and who is attacked
in any other place where he or she has a right to be has no duty to retreat
and has the right to stand his or her ground and meet force with force,
including deadly force . . . .”); § 776.041(2), Fla. Stat. (2008) (“The
justification described in the preceding sections of this chapter is not

                                     11
available to a person who: . . . (2) Initially provokes the use of force against
himself or herself, . . . .”).

    Because the standard instruction on the justifiable use of deadly force
is a correct statement of the law, appellant has not shown error in the jury
instructions, let alone fundamental error. We affirm on this issue and
certify conflict with Floyd.

   Habitual Offender Sentence

   Finally, appellant argues that it was unconstitutional to impose
habitual offender sentences on him based on findings of fact regarding the
defendant’s prior criminal record that were not made by the jury.

   “The standard of review for the legality of a criminal sentence is de
novo.” State v. Valera, 75 So. 3d 330, 332 (Fla. 4th DCA 2011).

   In Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013), the United
States Supreme Court ruled, consistent with its earlier decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000), that “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” The Alleyne Court
explicitly stated, however, that it was not revisiting Almendarez–Torres v.
United States, 523 U.S. 224 (1998), in which it had previously “recognized
a narrow exception to this general rule for the fact of a prior conviction.”
Alleyene, 133 S.Ct. at 2160 n.1.

   Our court has previously held that habitual offender sentences do not
violate Apprendi. See, e.g., St. Louis v. State, 985 So. 2d 16, 18 (Fla. 4th
DCA 2008).

    Appellant acknowledges our court’s precedent, but argues that this line
of cases “must be revisited in light of Alleyne” and that the “logic of Alleyne
dictates that Almendarez-Torres be overruled.” The problem with this
argument, however, is that we do not have the authority to overrule
Almendarez-Torres. Because the United States Supreme Court has yet to
overrule the “prior conviction” exception, Almendarez-Torres is still binding
precedent. See United States v. Rivas, 555 Fed.Appx. 895, 897 (11th Cir.
2014) (“Alleyne expressly left Almendarez–Torres undisturbed, and we are
bound to follow Almendarez–Torres as binding precedent.”).

   Likewise, the cases rejecting Apprendi/Alleyene challenges to
recidivism statutes remain good law. See St. Louis, 985 So. 2d at 18; Culp
v. State, 141 So. 3d 1279 (Fla. 1st DCA 2014); Williams v. State, 143 So.

                                      12
3d 423 (Fla. 1st DCA 2014); Lopez v. State, 135 So. 3d 539 (Fla. 2d DCA
2014).

   Appellant’s habitual offender sentence did not violate Apprendi or
Alleyene. Under current precedent, the existence of appellant’s prior
convictions is not a fact that must be submitted to a jury. We affirm as to
this issue.

   Conclusion

   For the foregoing reasons, we affirm appellant’s convictions and
sentences.

   Affirmed; conflict certified.

STEVENSON and CIKLIN, JJ., concur.

                              *      *        *

   Not final until disposition of timely filed motion for rehearing.




                                     13
