       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                    MICHELLE A. HOLLINGSWORTH,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-3705

                               [April 1, 2020]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No.
502016CF000986AXXXMB.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Paul Patti, III,
Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

    Appellant challenges the trial court’s order revoking her probation for
the crime of aggravated stalking and the sentence imposed. She contends
that the court erred in finding her in violation of an oral condition imposed
after she violated her original probation, one of two conditions the court
found that she violated. We affirm as to the order revoking the probation.
Even if an error occurred in finding a violation of one condition, the order
could be based on the second more substantial violation, as the court’s
comments at the hearing make clear that it would have found the violation
of either condition sufficient to revoke probation. Cf. Costanz v. State, 740
So. 2d 71 (Fla. 4th DCA 1999). As to appellant’s sentence, the trial court
found pursuant to section 948.06(8)(c)(15), Florida Statutes (2018), that
she was a danger to the community. The statute requires mandatory
revocation of probation under that finding. Appellant challenges it on
grounds that a jury was required to make the finding. We affirm because
the Sixth Amendment does not require a jury to make a finding of
dangerousness when that finding does not change the range of
punishment authorized by the original jury verdict or plea of guilty. We
write to explain this part of our ruling.

   Appellant pled guilty to aggravated stalking and was placed on
probation. The State filed a petition to revoke her probation because of
various violations of probation. In resolving these charges, the court again
placed her on probation. When she violated her probation a second time,
the court found she had committed substantial violations of the probation.

    At the sentencing hearing, after the presentation of evidence, the State
argued for the maximum sentence of five years in prison. The prosecutor
also noted that under section 948.06(8), appellant was a violent felony
offender of special concern, and requested that the court find that she was
a danger to the community, as allowed under the statute. The court
questioned why such a finding was necessary, because the statute did not
provide for a mandatory minimum sentence based upon the finding. The
prosecutor thought that the finding would prevent the court from going
below the lowest permissible sentence, but the court noted that it could, if
there were reasons to depart. The court explained that the statute was
more directed at pre-hearing issues, such as the denial of a bond. The
prosecutor thought it would make a difference on the scoresheet.

    The court proceeded to hear argument, because appellant sought a
downward departure sentence. The court then announced its sentence
and concluded that it would not downwardly depart. It noted that it had
discretion to sentence appellant anywhere between the lowest permissible
sentence under the scoresheet to the statutory maximum of five years.
The court considered appellant’s several violations of probation as well as
the severity of the crime for which she was originally convicted. It then
revoked appellant’s probation and sentenced her to four years in prison
with credit for time served; ordered fines to be reduced to a judgment; and
ordered DNA swabs to be taken. It then stated that the proceeding was
finished but asked whether there was anything else to come before the
court. At that point, the prosecutor asked the court to make a finding of
dangerousness pursuant to section 948.06(8), as it had previously
requested. The court then said, “If you want me to sign an Order finding
as such, I will be happy to get it from you.” Subsequently, the court signed
an order finding that appellant was a danger to the community. Appellant
appealed the revocation and sentence.

   Once an appeal was filed, appellant’s appellate attorney filed a Florida
Rule of Criminal Procedure 3.800(b)(2) motion claiming that the finding of
dangerousness should have been made by a jury, citing to Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99

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(2013), as well as Brown v. State, 260 So. 3d 147 (Fla. 2018). Counsel
acknowledged that the argument he was making was contrary to this
court’s decision in Souza v. State, 229 So. 3d 387 (Fla. 4th DCA 2017). In
Souza we held that Apprendi and Alleyne did not apply to probation
proceedings, as the Sixth Amendment right to trial by jury did not apply.
We further held that as probation was an “act of grace,” the statute merely
prohibited the court from again exercising its discretion to confer that
grace but did not change the sentence which could have been imposed as
a result of the original findings, whether by plea or jury verdict. Souza,
229 So. 3d at 389. In the present case, the trial court was highly critical
of appellant’s attorney for filing the motion. It believed that a rule
3.800(b)(2) motion was not proper, and that Souza was directly on point.
Appellant challenges these rulings.

   The trial court was wrong in its criticism of appellant’s attorney for filing
a motion pursuant to rule 3.800(b)(2). This was the proper method to raise
the issue of an Apprendi violation. See State v. Fleming, 61 So. 3d 399
(Fla. 2011) (Apprendi claim raised in a rule 3.800(b)(2) motion). In Bean v.
State, 264 So. 3d 947 (Fla. 4th DCA 2019), we reviewed the appeal of a
denial of a rule 3.800(b)(2) motion, in which the defendant argued that the
court’s assessment of points for victim injury violated Apprendi and
Alleyne. Thus, counsel here properly raised the issue by way of Rule
3.800(b)(2).

   In the present case, appellant’s attorney acknowledged that he was
arguing a position contrary to Souza, which was decided by this court in
2017, but was advocating in good faith a change in the law. The attorney
was acting in full compliance with his professional responsibility in
accordance with the rules of the Florida Bar. Rule 4-3.1, Rules Regulating
the Florida Bar, defines the responsibilities of an advocate:

      A lawyer shall not bring or defend a proceeding, or assert or
      controvert an issue therein, unless there is a basis in law and
      fact for doing so that is not frivolous, which includes a good
      faith argument for an extension, modification, or reversal of
      existing law. A lawyer for the defendant in a criminal
      proceeding, or the respondent in a proceeding that could
      result in incarceration, may nevertheless so defend the
      proceeding as to require that every element of the case be
      established.

Appellate counsel acted in good faith and did not deserve the court’s
criticism. Nevertheless, we do not recede from Souza, as we conclude that
neither Brown v. State, 260 So. 3d 147 (Fla. 2018) nor U.S. v. Haymond,

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139 S. Ct. 2369 (2019) require that a jury make a finding of dangerousness
pursuant to section 948.06(8)(e), Florida Statutes, in order to comply with
the Sixth Amendment.

    When a defendant is convicted of a criminal offense, either as a result
of a plea or jury verdict, the Criminal Punishment Code, section 921.001,
Florida Statutes (2018), et seq., governs the sentence. However, a trial
court may place a defendant on probation if the defendant is deemed
unlikely to reoffend, see section 948.01(2), Florida Statutes (2018), or the
trial court may provide for a split sentence of incarceration followed by
probation. § 948.012(1), Fla. Stat. (2018). In such event, the court will
“stay and withhold the imposition of the remainder of sentence imposed
upon the defendant and direct that the defendant be placed upon
probation[.]”

   Upon a violation of probation, section 948.06(8)(e), Florida Statutes
requires mandatory revocation of probation for defendants who have
committed certain crimes when the court makes a finding that the
defendant is a danger to the community. This statute provides:

      (e) If the court, after conducting the hearing required by
      paragraph (d), determines that a violent felony offender of
      special concern has committed a violation of probation or
      community control other than a failure to pay costs, fines, or
      restitution, the court shall:

      1. Make written findings as to whether or not the violent
      felony offender of special concern poses a danger to the
      community . . . .

      2. Decide whether to revoke the probation or community
      control.

      a. If the court has found that a violent felony offender of
      special concern poses a danger to the community, the court
      shall revoke probation and shall sentence the offender up to
      the statutory maximum, or longer if permitted by law.

      b. If the court has found that a violent felony offender of
      special concern does not pose a danger to the community, the
      court may revoke, modify, or continue the probation or
      community control or may place the probationer into
      community control as provided in this section.


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Thus, the purpose of the finding of dangerousness is to determine whether
the court must revoke probation. In other words, the court cannot
continue to suspend the sentence and allow the defendant to remain on
probation if the court finds that the defendant is a danger to the
community.

    In Souza we held that section 948.06(8)(e), Florida Statutes, was not an
element for sentencing purposes. We said, “The statute simply limits the
trial court's discretion on whether or not to again extend this act of grace
for certain offenders.” It does not create either a mandatory minimum or
increase the statutory maximum, because probation merely suspends the
sentence which could otherwise be imposed under the Criminal
Punishment Code.

    Appellant points to Brown v. State, 260 So. 3d 147 (Fla. 2018) as
requiring us to recede from Souza. In Brown, a defendant was convicted
of third-degree felony petit theft. At sentencing she had fewer than twenty-
two scoresheet points. As such, section 775.082(10), Florida Statutes
(2018) required that, “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 . . . .” The trial
court found Brown presented “a danger to the public” under section
775.082(10) and gave her a State prison sentence of three years. On
appeal, she argued that Apprendi prohibited increasing her sentence based
upon the judicial fact-finding of danger to the community. A jury was
required to make that decision. Although the Fifth District affirmed, the
Florida Supreme Court quashed that decision and held that the statute
was unconstitutional because it allowed the court, rather than the jury, to
find the fact of “dangerousness to the public” which was necessary to
increase the statutory maximum nonstate prison sanction.

   Brown differs from Souza and this case, because it did not arise from a
probation revocation. More importantly, section 775.082(10) mandated a
non-state prison sentence in that case, unless the court made a
dangerousness finding, in which case the court could sentence the
defendant to any sentence up to the statutory maximum. Thus, the
judicial finding would increase the statutory minimum, contrary to the
principle of Alleyne, which requires any factor which increases the
statutory minimum punishment to be found by a jury.

   In this case, the danger finding does not increase either the statutory
maximum or the statutory minimum. The sentence, both at the time of
the plea and the time of revocation, was governed by the Criminal

                                     5
Punishment Code. That section 948.06(8)(e)2.a requires revocation of
probation upon a judicial finding of dangerousness only returns the
defendant to the position she was at the time of the plea—any sentence
which could be imposed pursuant to the Criminal Punishment Code.

    Haymond also does not change this result. In Haymond, a defendant
was convicted of a crime which carried a prison term from zero to ten years.
After serving a short prison term, he was placed on supervised release. He
then violated his conditions of release and the government sought
revocation. A federal statute provided that where the court finds that the
defendant committed an enumerated offense during supervised release,
the court must impose an additional prison term of at least five years and
up to life in prison. As a consequence, instead of a prison term with a
minimum of zero years, the court’s finding increased the minimum term
to five years. A plurality of the Supreme Court held that a jury must make
findings increasing the minimum mandatory punishment, thus applying
Alleyne to supervised release, something the dissenters would not have
allowed. However, the Supreme Court’s decision was narrow:

      As at the initial sentencing hearing, that does not mean a jury
      must find every fact in a revocation hearing that may affect
      the judge’s exercise of discretion within the range of
      punishments authorized by the jury’s verdict. But it does
      mean that a jury must find any facts that trigger a new
      mandatory minimum prison term.

Haymond, 139 S. Ct. at 2380 (footnotes omitted).

   In contrast, section 948.06(8)(e) does not change the range of
punishments under the Criminal Punishment Code. It merely prevents
the judge from deviating from the Code by again imposing probation. This
does not violate the principles of Alleyne or Haymond.

   The trial court thought that the statute did not apply to its sentencing
decision, because the court was revoking probation based upon
appellant’s string of violations. In fact, the court did not make a finding of
danger to the community in sentencing. It was only after the court had
completed pronouncing the sentence that the State asked the court to rule
that appellant was a danger to the community in accordance with the
statute.

   The after-the-fact finding of dangerousness did not change the
sentencing range. It did not increase the statutory minimum or maximum.
It did not prevent the trial court from downwardly departing from the

                                      6
lowest permissible sentence, had the court made the necessary findings.
The fact that a jury did not make the findings of dangerousness did not
violate the defendant’s Sixth Amendment rights nor did it violate Apprendi
or Alleyne.

   For the foregoing reasons, we affirm the order of revocation and
sentence.

FORST, J., and WALSH, LISA A., Associate Judge, concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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