       Third District Court of Appeal
                               State of Florida

                         Opinion filed February 13, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D17-832
                          Lower Tribunal No. 97-4270
                             ________________


                              Mister Simmons,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Charles K.
Johnson, Judge.

     Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public
Defender, for appellant.

     Ashley Moody, Attorney General, and Linda S. Katz, Assistant Attorney
General, for appellee.


Before LOGUE and MILLER, JJ., and SUAREZ, Senior Judge.

      SUAREZ, Senior Judge.
      Mister Simmons (“Simmons”) appeals from a fifty year upward departure

sentence imposed upon resentencing pursuant to State v. Thompson, 750 So. 2d

643 (Fla. 1999). For the following reasons, we affirm the trial court’s imposition

of a departure sentence but remand for the trial court to reduce Simmons’s

sentence from fifty years to forty years.

I.    FACTUAL AND PROCEDURAL HISTORY

      Simmons was convicted of second degree murder with a firearm and

possession of a firearm with a removed serial number. The crimes were committed

on January 30, 1997. On April 26, 2000, the trial court sentenced Simmons to a

term of natural life in prison as a habitual felony offender.

      In December 2014, Simmons filed a motion to correct an illegal sentence

pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing that his habitual

offender sentence for second degree murder, which is a life felony, was invalid

under State v. Thompson, 750 So. 2d 643 (Fla. 1999). The trial court denied the

motion, and Simmons appealed. This Court reversed and remanded for further

proceedings, as the postconviction record failed to show conclusively that

Simmons was entitled to no relief. Simmons v. State, 180 So. 3d 244, 245 (Fla. 3d

DCA 2015). This Court noted that Simmons’s motion “may be well-taken” if he

committed the offense on January 30, 1997, within the “window” for a Thompson

error. Id.


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         On remand, the trial court resentenced Simmons under the 1994 version of

the sentencing guidelines. The guidelines scoresheet indicated a permissible range

of between 191 months and 318.875 months. The trial court sentenced Simmons

to an upward departure sentence of fifty years, finding that Simmons engaged in an

escalating pattern of criminal conduct. The trial court entered a written order,

finding “that there is a reasonable justification for upward departure from the

sentencing guidelines.” Specifically, the trial court stated as follows:

                      In accordance with Florida Statutes section
               921.001(1), the Court finds beyond a reasonable doubt
               that the defendant’s prior convictions justify an upward
               departure from the sentencing guidelines. Specifically,
               this Court finds that the Defendant’s prior convictions
               prove beyond and to the exclusion of every reasonable
               doubt that the Defendant engaged in an escalating course
               of conduct as described in 921.001(8),[1] and that he is
               not amenable to rehabilitation or supervision.

1   Section 921.001(8), Florida Statutes (1993), provides as follows:

               (8) A sentence may be imposed outside the guidelines
               based on credible facts, proven by a preponderance of the
               evidence, which demonstrate that the defendant’s prior
               record, including offenses for which adjudication was
               withheld and the current criminal offense for which the
               defendant is being sentenced, indicate an escalating
               pattern of criminal conduct. The escalating pattern of
               criminal conduct may be evidenced by a progression
               from nonviolent to violent crimes, a progression of
               increasingly violent crimes, or a pattern of increasingly
               serious criminal activity.

§921.001(8), Fla. Stat. (1993).

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The trial court relied upon the fact that Simmons committed five armed robberies

in the two months prior to the second degree murder at issue in the instant case, as

well as 1995 convictions for two counts of unoccupied burglary, one count of petit

theft, one count of criminal mischief, and one count of extortion. Simmons’s

appeal from the fifty-year sentence follows.

II.    STANDARD OF REVIEW

       “The legality of a sentence is a question of law, and thus, subject to de novo

review. Similarly, our review of the constitutionality of a sentence is de novo.”

Montgomery v. State, 230 So. 3d 1256, 1258 (Fla. 5th DCA 2017), review denied,

No. SC18-102, 2018 WL 6434797 (Fla. Dec. 7, 2018) (citations omitted).

III.   ANALYSIS

       Simmons raises three arguments on appeal. First, Simmons asserts that the

trial court’s imposition of an upward departure sentence without a jury

determination that he engaged in an escalating pattern of criminal conduct violates

the dictates of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.

Washington, 542 U.S. 296 (2004). Second, Simmons argues that he is entitled to

relief claiming the trial court failed to specifically find that he was not amenable to

rehabilitation or supervision and that such a specific finding is required by section

921.0016(3)(p), Florida Statutes (1993), before a departure sentence may be




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imposed. Third, Simmons argues that his fifty-year sentence is illegal. We address

each argument in turn.

      A. Apprendi and Blakely error

      In Apprendi, the Supreme Court held “[o]ther 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.” 530 U.S. at 490. Subsequently, in Blakely, the Supreme Court held:

            Our precedents make clear . . . 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. In other words, the relevant “statutory
            maximum” is not the maximum sentence a judge may
            impose after finding additional facts, but the maximum
            he may impose without any additional findings. When a
            judge inflicts punishment that the jury’s verdict alone
            does not allow, the jury has not found all the facts “which
            the law makes essential to the punishment,” and the
            judge exceeds his proper authority.

542 U.S. at 303-04 (citations omitted).

      It is well established that a violation of the principles set forth in Apprendi

and Blakely is subject to harmless error review. Washington v. Recuenco, 548

U.S. 212 (2006) (holding that Blakely violations are subject to harmless error

review); Galindez v. State, 955 So. 2d 517, 522–23 (Fla. 2007) (holding that

harmless error analysis applies to Apprendi and Blakely error and explaining that

“to the extent some of our pre-Apprendi decisions may suggest that the failure to
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submit factual issues to the jury is not subject to harmless error analysis, Recuenco

has superseded them”); see also Williams v. State, 242 So. 3d 280, 289-90 (Fla.

2018) (noting that in Galindez the court concluded that Apprendi violations are

subject to harmless error review); Plott v. State, 148 So. 3d 90, 94 (Fla. 2104) (“A

claim of error under Apprendi and Blakely is subject to harmless error analysis.”).

For that reason, when “the record demonstrates beyond a reasonable doubt that a

rational jury would have found” a fact that exposes the defendant to a sentence

exceeding the statutory maximum, harmless error is shown. Galindez, 955 So. 2d

at 523, 524 (finding harmless error in the trial court’s failure to have the jury make

a finding of victim injury where there was “clear and uncontested record evidence”

of victim injury).

      Given these principles, we find that the trial court improperly enhanced

Simmons’s sentence in violation of Apprendi and Blakely when it imposed an

upward departure sentence based upon its own, rather than the jury’s, factual

finding that Simmons engaged in an escalating course of criminal conduct pursuant

to section 921.001(8). In other words, because the trial court could not have

departed from the guidelines sentence under section 921.001(8) based only on the

jury’s finding that Simmons was guilty of second degree murder with a firearm and

possession of a firearm with a removed serial number, a violation of Blakely and

Apprendi occurred. See e.g., Plott, 148 So. 2d at 95 (finding that upward departure


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sentences based on trial court’s finding that the crimes were committed in an

extraordinary   cruel,   egregious,   vicious,   and   wicked   manner    were   an

unconstitutional enhancement under Apprendi and Blakely); Plasencia v. State,

170 So. 3d 865, 871 (Fla. 2d DCA 2015) (“Accordingly, under the holding in

Blakely, the trial court improperly imposed a sentence in excess of Mr. Plasencia’s

guideline sentence based upon its findings that the murder was heinous, atrocious,

or cruel and that the victim suffered extraordinary physical and emotional trauma

in the absence of jury findings about those facts or Mr. Plasencia’s admission to

those facts.”); Donohue v. State, 925 So. 2d 1163 (Fla. 4th DCA 2006) (reversing

trial court’s upward departure from defendant’s guideline sentence on the basis of

victim’s vulnerability pursuant to section 921.0016(3)(j), Florida Statutes, because

the facts supporting vulnerability of the victim were neither found by the jury or

admitted by defendant as required by Blakely and Apprendi); cf. Brown v. State,

No. SC18-323 (Fla. Dec. 20, 2018) (holding that section 775.082(10), Florida

Statutes (2015), violates Apprendi and Blakely because it requires the court, rather

than the jury, to make the finding of dangerousness to the public necessary to

increase the statutory maximum nonstate prison sanction).

      As explained above, however, Blakely and Apprendi errors are subject to a

harmless error analysis. We conclude, based on the record, that the trial court’s

violation of the principles set forth in Apprendi and Blakely was harmless beyond


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a reasonable doubt. In this case, Simmons was convicted in June 1995 of two

counts of unoccupied burglary, one count of petit theft, one count of criminal

mischief, and one count of extortion. Less than two years later, in December 1996,

Simmons committed two armed robberies.           The next month, January 1997,

Simmons committed three armed robberies. That same month, on January 30,

Simmons’s crimes culminated with the second degree murder with a firearm

committed in the instant case. Simmons’s criminal activity, therefore, escalated

over the course of two months from armed robbery to second degree murder,

having begun less than two years earlier with non-violent crimes. Given this, a

rational jury would have found that Simmons’s prior record indicated an escalating

pattern of criminal conduct, and any Apprendi and Blakely error is harmless. See

Isaac v. State, 989 So. 2d 1217, 1219 (Fla. 1st DCA 2008) (holding that any

potential Apprendi or Blakely error in the trial court’s failure to have the jury

determine whether defendant’s convictions indicated an escalating pattern of

criminal conduct under section 921.001(8), Florida Statutes, was harmless where

defendant’s “convictions began with misdemeanors and, over the course of two to

three years, escalated to a considerable number of first-degree felonies involving

violent crimes and, notably, the use of firearms”); Dirk v. State, 114 So. 3d 1024,

1025 (Fla. 5th DCA 2012) (“We affirm Dirk’s upward departure sentence, finding

that any error in the trial court’s failure to apply Apprendi and Blakely, at Dirk’s


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resentencing was harmless error. The record demonstrates beyond a reasonable

doubt that a rational jury would have found that Dirk had engaged in an escalating

pattern of criminal conduct.” (citations omitted)); see also, e.g., Donohue v. State,

979 So. 2d 1058, 1060 (Fla. 4th DCA 2008).

      B. Section 921.0016(3)(p), Florida Statutes

      Simmons next argues that even if it was harmless error for the trial court to

sentence him to a departure sentence in the absence of a jury’s finding that he

participated in an escalating pattern of criminal activity, he is still entitled to relief

because under section 921.0016(3), the trial court was required and failed to

specifically find that he was not amenable to rehabilitation. We disagree.

      Section 921.0016(3)(p) does not require the trial court to find both that the

defendant participated in an escalating pattern of criminal conduct and also that the

defendant is not amenable to rehabilitation. The pertinent part of the statute states:

                     (3) Aggravating circumstances under which a
             departure from the sentencing guidelines is reasonably
             justified include, but are not limited to:
             ...
                     (p) The defendant is not amenable to rehabilitation
             or supervision, as evidenced by an escalating pattern of
             criminal conduct as described in s. 921.001(8).

§ 921.0016(3)(p), Fla. Stat. (1993).

      Pursuant to section 921.0016(3)(p) the trial court is not required to find both

that there was an escalating pattern of criminal conduct and that the defendant was


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not amenable to rehabilitation or supervision.          The latter part of section

921.0016(3)(p) defines the first part. In other words, the fact that the defendant

may not be amenable to rehabilitation is evidenced by—clearly shown by—the

finding of an escalating pattern of criminal conduct. By finding that Simmons

engaged in an escalating course of criminal conduct, the trial court established that

he was not amenable to rehabilitation.

      C. Simmons’s fifty year sentence exceeds the legal maximum

      Simmons argues that even if he is not entitled to relief under Apprendi and

Blakely, his fifty year sentence must still be reduced to a forty year sentence. The

State concedes that Simmons is correct on this point.

      The offense at issue occurred on January 30, 1997, within the window

period established in Trapp v. State, 760 So. 2d 924, 928 (Fla. 2000), to challenge

a guideline sentence under Heggs v. State, 759 So. 2d 620 (Fla. 2000). As a result,

Simmons was entitled to be resentenced under the 1994 version of the sentencing

guidelines. See Kinsey v. State, 831 So. 2d 1253, 1254 (Fla. 2d DCA 2002); Ned

v. State, 758 So. 2d 1286 (Fla. 3d DCA 2000). Under the 1994 version of the

sentencing guidelines, the legal maximum for the offense of second degree murder

was a term not exceeding forty years. §772.082(3)(a), Fla. Stat. (1993); see also

Miranda v. State, 832 So. 2d 937, 941 (Fla. 3d DCA 2002). For that reason,

Simmons’s fifty year sentence is illegal. The parties also agree that pursuant to


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Miranda, the proper remedy is for Simmons’s fifty year sentence to be reduced to

forty years. Id. at 941.

IV.   CONCLUSION

      Because a rational jury would have found that Simmons’s prior record

indicated an escalating pattern of criminal conduct, the trial court’s error in failing

to follow the principles set forth in Apprendi and Blakely is harmless and we

affirm the trial court’s imposition of an upward departure sentence. Nonetheless,

Simmons’s fifty year sentence must be reduced as it exceeds the statutory

maximum under the applicable 1994 penalty for a life felony.             On remand,

Simmons’s fifty year sentence must be reduced to a forty year prison term.

Miranda, 832 So. 2d at 941. Simmons need not be present for the sentence

reduction. Id.

      Affirmed in part, reversed in part, and remanded for reduction of sentence.




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