         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                   NOT FINAL UNTIL TIME EXPIRES TO
                                                   FILE MOTION FOR REHEARING AND
                                                   DISPOSITION THEREOF IF FILED


RODERICK D'ANTHONY WILLIAMS,

              Appellant,

 v.                                                               Case No. 5D16-1348

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed February 10, 2017

Appeal from the Circuit Court
for St. Johns County,
J. Michael Traynor, Judge.

Valarie Linnen, Atlantic Beach, for
Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kristen L. Davenport,
Assistant Attorney General, Daytona
Beach, for Appellee.


WALLIS, J.

       Roderick D'Anthony Williams ("Appellant") appeals his sentences for first-degree

murder and kidnapping. We find that one of Appellant's arguments on appeal warrants

discussion. Appellant argues the trial court erred by denying his motion to empanel a jury

to make a factual finding as to whether he actually killed, intended to kill, or attempted to

kill the victim. We affirm the trial court's denial of Appellant's motion to empanel a jury and
uphold his sentences, but we certify a question to our supreme court as one of great

public importance.

       In 2010, the State charged Appellant, then sixteen years old, by grand jury

indictment with first-degree murder (count 1) and kidnapping (count 2) for his role in the

death of James Vincent Brookins (the "victim"), whose body was discovered in the trunk

of an abandoned car in rural St. Johns County. With regard to count 1, the State charged

Appellant with premeditated first-degree murder, but also included theories of felony

murder and accessory to first-degree murder. Ultimately, the verdict form listed only "First

Degree Murder," without differentiating between premeditated and felony murder. The

jury convicted Appellant as charged, and the trial court sentenced Appellant to life

imprisonment with the possibility of parole after twenty-five years on count 1 and fifty

years' incarceration on count 2.

       Appellant directly appealed his convictions and sentences, challenging several

rulings on the admissibility of evidence at trial. While his direct appeal was pending,

Appellant filed a Florida Rule of Criminal Procedure 3.800(b) motion to correct his

sentence, reasoning that the United States Supreme Court's decision in Miller v.

Alabama, 132 S. Ct. 2455 (2012), rendered unconstitutional his life sentence for first-

degree murder. Williams v. State, 171 So. 3d 143, 144 (Fla. 5th DCA 2015). Our court

agreed with Appellant, reversing and remanding for resentencing under chapter 2014-

220, Laws of Florida. Id. at 145. Our court elaborated on its instructions upon remand as

follows:

              Because the jury did not find that [Appellant] actually
              possessed and discharged a firearm during the crime, the
              court must make a written finding as to whether [Appellant]
              killed, intended to kill, or attempted to kill the victim. Based on



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applied the seven-year minimum. Id. The Supreme Court reversed, reasoning that,

"[b]ecause the finding of brandishing increased the penalty to which the defendant was

subjected, it was an element, which had to be found by the jury beyond a reasonable

doubt. The judge, rather than the jury, found brandishing, thus violating petitioner's Sixth

Amendment rights." Id. at 2163–64.

       Appellant contends that the trial court similarly erred by failing to empanel a jury to

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

Because the affirmative finding in the case at bar increases both the mandatory-minimum

from zero years to forty years—if the sentencing court determines that life is not an

appropriate sentence—and the time for a sentence review hearing from fifteen years to

twenty-five years, Appellant argues this issue must be determined by the jury by proof

beyond a reasonable doubt.

       Although Appellant's argument initially appears to have merit, we note that our

supreme court, under circumstances similar to those in this case, did not direct a jury to

make the factual finding as to whether the juvenile defendant actually killed, intended to

kill, or attempted to kill the victim. Falcon v. State, 162 So. 3d 954, 963 (Fla. 2015). Rather,

the court specifically directed the trial court to make this finding, reasoning that the record

did not "conclusively establish this fact" because "the jury did not find [the defendant] to

have had actual possession of a firearm during the attempted armed robbery." Id. at 963

n.4.

       In light of Falcon, we find that the trial court did not err by denying Appellant's

motion to empanel a jury. Our supreme court has expressly authorized a trial court to

make the factual determination as to whether a defendant actually killed, attempted to kill,




                                               5
              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).

              3. The court shall make a written finding as to whether a
              person is eligible for a sentence review hearing under s.
              921.1402(2)(a) or (c). Such a finding shall be based upon
              whether the person actually killed, intended to kill, or
              attempted to kill the victim. The court may find that multiple
              defendants killed, intended to kill, or attempted to kill the
              victim.

§ 775.082(1)(b), Fla. Stat. (2016).

       In Alleyne, the defendant was convicted of robbery with a firearm. 133 S. Ct. at

2156. The applicable sentencing statute prescribed mandatory-minimum sentences of

five years for carrying a weapon, seven years for brandishing a weapon, and ten years

for discharging a weapon during the commission of a crime of violence. Id. at 2155-56.

The jury found that the defendant used or carried a firearm during his offense, but did not

find that he brandished or discharged the weapon. Id. However, the trial court nonetheless

found that the defendant brandished a weapon during the commission of his offense and




                                             4
applied the seven-year minimum. Id. The Supreme Court reversed, reasoning that,

"[b]ecause the finding of brandishing increased the penalty to which the defendant was

subjected, it was an element, which had to be found by the jury beyond a reasonable

doubt. The judge, rather than the jury, found brandishing, thus violating petitioner's Sixth

Amendment rights." Id. at 2163–64.

       Appellant contends that the trial court similarly erred by failing to empanel a jury to

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

Because the affirmative finding in the case at bar increases both the mandatory-minimum

from zero years to forty years—if the sentencing court determines that life is not an

appropriate sentence—and the time for a sentence review hearing from fifteen years to

twenty-five years, Appellant argues this issue must be determined by the jury by proof

beyond a reasonable doubt.

       Although Appellant's argument initially appears to have merit, we note that our

supreme court, under circumstances similar to those in this case, did not direct a jury to

make the factual finding as to whether the juvenile defendant actually killed, intended to

kill, or attempted to kill the victim. Falcon v. State, 162 So. 3d 954, 963 (Fla. 2015). Rather,

the court specifically directed the trial court to make this finding, reasoning that the record

did not "conclusively establish this fact" because "the jury did not find [the defendant] to

have had actual possession of a firearm during the attempted armed robbery." Id. at 963

n.4.

       In light of Falcon, we find that the trial court did not err by denying Appellant's

motion to empanel a jury. Our supreme court has expressly authorized a trial court to

make the factual determination as to whether a defendant actually killed, attempted to kill,




                                               5
or intended to kill a victim. See id. at 963. However, because Falcon did not address the

applicability of Alleyne—as it does not appear that either party raised that issue—we

certify the following question to the Florida Supreme Court as one of great public

importance:

              DOES ALLEYNE V. UNITED STATES, 133 S. CT. 2151
              (2013), REQUIRE THE JURY AND NOT THE TRIAL COURT
              TO MAKE THE FACTUAL FINDING UNDER SECTION
              775.082(1)(b), FLORIDA STATUTES (2016), AS TO
              WHETHER A JUVENILE OFFENDER ACTUALLY KILLED,
              INTENDED TO KILL, OR ATTEMPTED TO KILL THE
              VICTIM?


      AFFIRMED; QUESTION CERTIFIED.


EVANDER and LAMBERT, JJ., concur.




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