         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-4095
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KIMOTHY MARK SIMMONS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Duval County.
Linda F. McCallum, Judge.

                         March 7, 2019


PER CURIAM.

     Kimothy M. Simmons (“Simmons”) was seventeen years old
when he impersonated a law enforcement officer to gain access into
a home and stabbed the victim, a person he had never met, over
thirty-one times. A jury found Simmons guilty of first degree
murder, that the murder was committed during the commission of
a burglary, and that he carried, displayed, and used a weapon
during the commission of the offenses. He was sentenced to a
mandatory sentence of life in prison. In the wake of Miller v.
Alabama, 567 U.S. 460 (2012), Simmons was granted
resentencing. Following an evidentiary hearing, he was again
sentenced to life in prison with the opportunity for early release
with a review hearing to be conducted in accordance with sections
775.082 (1)(b)1. and 921.1402(2)(a), Florida Statutes. Simmons
now challenges that sentence.

     Simmons first argues the trial court erred in several of its
findings on the statutory factors set forth in section 921.1401,
Florida Statutes. However, as no contemporaneous objection was
made at the time of alleged errors at the sentencing hearing, the
issues were not preserved for review. Accordingly, this Court may
only review claims of fundamental error. See Nawaz v. State, 28
So. 3d 122, 124 (Fla. 1st DCA 2010). If a court considers a
constitutionally impermissible factor in imposing a sentence
fundamental error can occur. See Macan v. State, 179 So. 3d 551,
552 (Fla. 1st DCA 2015). Here, none of Simmons’ claims of error
involve impermissible factors. He merely disagrees with the trial
court’s assessment of the required factors under section 921.1401.
The statute requires only that the trial court “consider” these
factors before it can impose a life sentence. § 921.1401(2), Fla. Stat.
As the trial court did so, no fundamental error occurred.

     As to Simmons’ second issue on appeal, this Court has
previously rejected the argument that a jury, rather than the trial
court, must determine whether a life sentence is appropriate under
the statutory factors in section 921.1401. See Gonzalez v. State,
252 So. 3d 1282, 1283 (Fla. 1st DCA 2018); Roberson v. State, 247
So. 3d 718, 719 (Fla. 1st DCA 2018); Copeland v. State, 240 So. 3d
58, 59-60 (Fla. 1st DCA 2018). The statutory factors in section
921.1401 do not alter the maximum, or minimum, punishment
available for juvenile offenders. See Beckman v. State, 230 So. 3d
77, 96 (Fla. 3d DCA 2017). These factors are not elements of the
offense; they are merely sentencing factors which the trial judge
may take into consideration when exercising his discretion to
impose a sentence within the range prescribed by statute and
ensure proportionality. Id. at 94-96.

     Simmons’ argument that this Court should revisit Copeland
and subsequent cases due to the recent Florida Supreme Court
decision in Williams v. State, 242 So. 3d 280 (Fla. 2018), is
unavailing. The Williams decision does not affect the prior
holdings of this Court. In Williams, a jury convicted the juvenile
defendant of first-degree murder, without specifying whether it
was premeditated or felony murder, or both. Id. at 283. Under the

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section 921.1401, such a finding entitled the defendant to a
sentence review in twenty-five years. Id. at 288. Without this
finding, there was no minimum required sentence, and the
sentence review would be in fifteen years. Id. at 284, 288. At
resentencing, the trial court denied the defendant’s request to
impanel the jury to make this finding. Id. at 285. The Florida
Supreme Court reversed, holding Alleyne v. United States, 570
U.S. 99 (2013), required the jury to make this factual finding, not
the trial court. Id. at 282. Alleyne required a jury to decide any
facts which increased the sentencing floor, or minimum mandatory
sentence. Id. at 286. An Alleyne violation occurred in Williams
because there was no clear jury finding on the general verdict form
that Appellant had actually killed, intended to kill, or attempted
to kill the victim, a finding which would increase the minimum
required sentence.

     Alleyne is not implicated in the instant case because the jury
had made its required finding that Simmons actually killed the
victim. Although the jury, as in Williams, was instructed on both
premeditated murder and felony murder, the jury specifically
convicted Simmons of first-degree felony murder. The jury
expressly found on the verdict form Simmons killed the victim
during the commission of a burglary. Moreover, the jury, unlike
the jury in Williams, did not receive an instruction on principals.
Thus, the jury in the instant case was not given the option of
convicting Simmons of killing the victim based on the action of
another. As the jury made the requisite finding in this case, the
minimum floor has been set, and the trial court must procced to
determine whether a life sentence is appropriate under section
921.1401.

     The trial court issued a detailed sentencing order discussing
the statutory factors. Simmons has shown no error. Accordingly,
the life sentence is affirmed.

    AFFIRMED.

MAKAR and M.K. THOMAS, JJ., concur; WOLF, J., concurs in result
only.



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               _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and Glen P. Gifford, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley B. Moody, Attorney General, and Daniel Krumbholz,
Assistant Attorney General, Tallahassee, for Appellee.




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