      DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                             DAVID PUZIO,
                               Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D17-3034

                            [August 7, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Paul L. Backman, Judge; L.T. Case No. 94-
12537CF10A.

   Ashley D. Kay and Kevin J. Kulik, P.A., Fort Lauderdale, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and James J. Carney,
Assistant Attorney General, West Palm Beach, for appellee.

                  ON APPELLANT’S MOTION FOR REHEARING

GERBER, J.

    We deny appellant’s motion for rehearing. However, we substitute the
following opinion for the opinion which we issued on May 8, 2019.

   The defendant appeals from his re-sentences for two counts of first
degree murder and one count of armed carjacking committed while he
was a juvenile. The defendant argues the circuit court erred in four
respects: (1) by sentencing him on the first degree murder counts under
section 775.082(1)(b)1., Florida Statutes (2017), when no jury has found
beyond a reasonable doubt that he actually killed, intended to kill, or
attempted to kill the victims; (2) by not reviewing his penalty phase
witnesses’ testimony from his original sentencing; (3) by departing from
the guidelines in sentencing him on the armed carjacking; and (4) by
increasing his sentences on the first degree murder counts several
months after pronouncing sentence, by adding forty-year mandatory
minimums required under section 775.082(1)(b)1.



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   We reverse on the defendant’s first argument, and remand for
correction of his sentences on the first degree murder counts under
section 775.082(1)(b)2., Florida Statutes (2017).     Because section
775.082(1)(b)2. does not require forty-year mandatory minimums, we
also reverse the inclusion of the forty-year mandatory minimums as
referenced in the defendant’s fourth argument, and do not need to reach
the defendant’s double jeopardy argument. We affirm on the defendant’s
second and third arguments without further discussion.

                           Procedural History

   In 1994, the state charged the then sixteen-year-old defendant with
two counts of first degree murder and one count of armed carjacking, and
sought the death penalty.

    At trial, the state presented evidence that the defendant was one of
three men in the backseat of a car, with two women in the driver’s and
front passenger’s seats. The men intended to rob the victims, and
directed the women to drive to a location, where the defendant shot and
killed the women. The defendant presented evidence that one of the other
men was the shooter.

   The state ultimately argued to the jury, and the trial court instructed
the jury, that the defendant could be found guilty of first degree murder
as either a premeditated act or under a felony murder theory if one of the
other men was the shooter. The verdict form asked the jury if the
defendant was guilty of first degree murder, but did not ask the jury to
decide between premeditation and felony murder.

   The jury found the defendant guilty on all three counts. During the
penalty phase, the jury was asked to consider aggravating and mitigating
factors. Next to the mitigating factor, “the defendant was an accomplice
in the offense for which he is to be sentenced but the offense was
committed by another person and the defendant’s participation was
relatively minor,” the jury wrote the word “yes.”         The jury also
recommended life in prison.

    The trial court sentenced the defendant to life in prison without parole
for all three counts.

    Twenty-one years later, in 2017, the defendant appeared before the
trial court for resentencing pursuant to Miller v. Alabama, 567 U.S. 460
(2012), which held that “mandatory life-without-parole sentences for
juveniles violate the Eighth Amendment.” Id. at 470.


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   The trial court had to decide whether to resentence the defendant
under subsection 1. or 2. of section 775.082(1)(b), Florida Statutes
(2017), which provides, in pertinent part:

      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).

      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 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).

§ 775.082(1)(b)1.-2., Fla. Stat. (2017) (emphasis added).         Section
921.1402(2), Florida Statutes (2017), provides in pertinent part:

      (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].

      ...




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      (c) A juvenile offender sentenced to a term of more than 15
      years under s. 775.082(1)(b)2. . . . is entitled to a review of
      his or her sentence after 15 years.

§ 921.1402(2)(a), (c), Fla. Stat. (2017) (emphasis added).

   The defendant argued he should be sentenced under section
775.082(1)(b)2., and therefore entitled to review after having spent fifteen
years in prison, because the jury was not asked to find, and did not find,
that he actually killed, attempted to kill, or intended to kill the victims,
as required under section 775.082(1)(b)1.

   The state argued the defendant should be sentenced under section
775.082(1)(b)1., and therefore not entitled to review until having spent
twenty-five years in prison, because the state’s evidence pointed to the
defendant as having actually killed, attempted to kill, or intended to kill
the victims.

   The trial court decided, on each of the first degree murder counts, to
sentence the defendant under section 775.082(1)(b)1. to sixty years in
prison, with entitlement to review after having spent twenty-five years in
prison. The trial court did not state that the defendant would be
punished by a term of imprisonment of at least forty years on the first
degree murder counts. On the armed carjacking count, the court
sentenced the defendant to forty years in prison.

    In 2018, several months after pronouncing the new sentences, the
trial court filed a new disposition order without a hearing and without
otherwise notifying the parties. On the 2018 order’s first page, the trial
court handwrote: “Corrected as to min/man.” On the second page, the
trial court checked the box next to “other mandatory minimum” and
handwrote: “40 yrs CT I and II pursuant to F.S. 921.1402(2)(a).” At the
bottom of that page, next to the trial court’s signature, the trial court
handwrote: “nunc pro tunc” to the 2017 resentencing order. In effect,
the 2018 disposition order altered the 2017 resentencing order’s sixty-
year sentences on the first degree murder counts by adding forty-year
mandatory minimums.

   Along with the new disposition order, the trial court issued a new
sentencing order to detail its resentencing findings in writing. Besides
the findings described above, the court also noted that “although it
proceeded under subsection 775.082(1)(b)(1), Florida Statutes, that it
equally finds a sixty-year sentence appropriate under section
775.082(1)(b)(2) in light of the facts of this case.”


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                               This Appeal

   This appeal followed. As stated above, the defendant’s first argument
contends that the trial court erred by sentencing him under section
775.082(1)(b)1. when no jury has found beyond a reasonable doubt that
he actually killed, intended to kill, or attempted to kill the victims.

   We agree. In Williams v. State, 242 So. 3d 280 (Fla. 2018), our
supreme court held: “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 [is required to] be submitted to a jury and
found beyond a reasonable doubt.” Id. at 288 (quotation marks and
internal citations omitted). However, our supreme court also held that a
violation of this requirement can be harmless if “the record demonstrates
beyond a reasonable doubt that a rational jury would have found the
[defendant] actually killed, intended to kill, or attempted to kill the
victim.” Id. at 290.

   Here, the verdict form did not ask the jury to choose between
premeditation and felony murder, and it cannot be determined from the
verdict form whether the jury found beyond a reasonable doubt that the
defendant actually killed, intended to kill, or attempted to kill the victims.

   This lack of jury finding cannot be deemed harmless. The record does
not demonstrate beyond a reasonable doubt that a rational jury would
have found the defendant killed, intended to kill, or attempted to kill the
victim. Although the state presented evidence that the defendant was
the shooter, the defendant presented evidence that one of the other men
was the shooter. The state ultimately argued to the jury, and the trial
court instructed the jury, that the defendant could be found guilty of
murder as either a premeditated act or under a felony murder theory.
After the jury found the defendant guilty of first degree murder, the jury
was asked during the sentencing phase to consider aggravating and
mitigating factors. Next to the mitigating factor, “the defendant was an
accomplice in the offense for which he is to be sentenced but the offense
was committed by another person and the defendant’s participation was
relatively minor,” the jury wrote the word “yes.”

   Based on the foregoing, we reverse the trial court’s resentencing of the
defendant for the first degree murder counts under section


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775.082(1)(b)1. We remand for correction of his sentences on the first
degree murder counts under section 775.082(1)(b)2., entitling the
defendant to review after having spent fifteen years in prison. Williams,
242 So. 3d at 292. The defendant need not be present for this ministerial
correction of his sentence. The defendant is not entitled to a new
sentencing hearing under section 775.082(1)(b)2., because the trial court
already stated that “it equally finds a sixty-year sentence appropriate
under section 775.082(1)(b)(2) in light of the facts of this case.” We agree
with the state that the trial court’s comments conclusively show that the
court would have imposed the same sentence. See Brooks v. State, 969
So. 2d 238, 238 (Fla. 2007); Muyico v. State, 50 So. 3d 1227, 1228 (Fla.
4th DCA 2011).

    As stated above, because section 775.082(1)(b)2. does not require
forty-year mandatory minimums, we also reverse the inclusion of the
forty-year mandatory minimums as referenced in the defendant’s fourth
argument, and do not need to reach the defendant’s double jeopardy
argument. We affirm on the defendant’s second and third arguments
without further discussion.

   Affirmed in part, reversed in part, and remanded for correction of
sentences.

CONNER, J., and METZGER, ELIZABETH, Associate Judge, concur.

                              *           *      *

          No further motions for rehearing shall be permitted.




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