       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                            NICKOLAS WHITE,
                                Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-3500

                              [ May 8, 2019 ]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Paul L. Backman, Judge; L.T. Case No. 95-000066
CF10B.

  Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley B. Moody, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

   Appellant, Nickolas White, was convicted of first-degree murder for a
homicide he committed as a juvenile. In 2017, appellant was resentenced
to life in prison with sentencing review after 25 years. Appellant now
appeals that sentence, raising six issues. We reverse as to appellant’s first
issue and hold that the trial court erred in failing to order a presentence
investigation (“PSI”) before resentencing him to life in prison. We affirm as
to all other issues raised, but write to address appellant’s argument that
section 921.1401, Florida Statutes, violates the Sixth Amendment.

   PSI Issue

   We first address appellant’s argument that the trial court erred in
resentencing him without first obtaining a PSI.

   The legality of a criminal sentence is reviewed de novo. State v. Valera,
75 So. 3d 330, 331–32 (Fla. 4th DCA 2011).
   Florida Rule of Criminal Procedure 3.710 governs presentence
investigations. The version of rule 3.710(a) in effect at the time of
appellant’s resentencing states in relevant part:

       No sentence or sentences other than probation shall be
       imposed on any defendant found guilty of a first felony offense
       or found guilty of a felony while under the age of 18 years,
       until after such investigation has first been made and the
       recommendations of the Department of Corrections received
       and considered by the sentencing judge.

Fla. R. Crim. P. 3.710(a) (2017). 1

    Under this version of rule 3.710(a), a PSI is required for a first-time
felony offender or juvenile offender where the trial court has sentencing
discretion and where probation is not ordered. Hernandez v. State, 137
So. 3d 542, 543–45 (Fla. 4th DCA 2014). “The trial court’s failure to
consider a mandatory presentence investigation report before sentencing
a defendant is a sentencing error that can be preserved via the filing of a
rule 3.800(b) motion.” Albarracin v. State, 112 So. 3d 574, 574 n.1 (Fla.
4th DCA 2013).

   In this case, the trial court had the discretion to sentence appellant
anywhere between 40 years in prison and life in prison.                See §
775.082(1)(b)1., Fla. Stat. (2017) (prescribing the sentencing range for a
juvenile who is convicted of a capital felony and who actually killed,
intended to kill, or attempted to kill the victim). 2 Thus, because appellant
was a juvenile at the time of the offense and the trial court had sentencing
discretion, the trial court’s failure to order a PSI before resentencing
appellant to life in prison was error. Moreover, we conclude that this error
was preserved in appellant’s rule 3.800(b)(2) motion, and that the defense
never expressly waived the right to a PSI.




1The rule was amended effective January 1, 2019. In re Amends. to Fla. Rules of
Criminal Procedure—2018 Regular-Cycle Report, 43 Fla. L. Weekly S430 (Fla. Oct.
4, 2018). The rule now states that “[n]o sentence or sentences other than
probation or the statutorily required mandatory minimum may be imposed on any
defendant found guilty of a first felony offense or found guilty of a felony while
under the age of 18 years . . . .” Fla. R. Crim. P. 3.710(a) (2019) (emphasis added).

2 Based on the jury instructions at trial and the language of the indictment, the
jury necessarily found that appellant actually killed the victim.

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    The State acknowledges Hernandez and Albarracin, but argues that a
trial court’s failure to order a PSI should be treated as an error in the
sentencing process that is not cognizable in a rule 3.800(b) motion. We
reject the State’s argument.

   Rule 3.800(b) “may be used to correct and preserve for appeal any error
in an order entered as a result of the sentencing process—that is, orders
related to the sanctions imposed.” Jackson v. State, 983 So. 2d 562, 574
(Fla. 2008). In other words, “rule 3.800(b) is intended to permit defendants
to bring to the trial court’s attention errors in sentence-related orders, not
any error in the sentencing process.” Id. at 572. “Sentencing errors” under
rule 3.800(b) are errors “related to the ultimate sanctions imposed,
whether involving incarceration, conditions of probation, or costs.” Id. at
573.

    Here, the trial court’s failure to order a PSI created an error in the “order
entered as a result of the sentencing process.” Id. at 574. The trial court’s
imposition of a life sentence in this case without first ordering a PSI was
an error that was apparent on the face of the sentencing order and was
related to the ultimate sanction imposed. Stated another way, this issue
involves an error in the sentencing order because, contrary to the version
of rule 3.710(a) in effect at the time of resentencing, the trial court imposed
a sanction greater than probation on a juvenile offender without first
ordering a PSI. Therefore, as this court has already held, a trial court’s
failure to consider a mandatory PSI before sentencing a defendant is a
sentencing error that may be preserved via the filing of a rule 3.800(b)
motion. Id. at 574 n.1.

    The State also argues that even if the trial court erred in failing to order
a PSI, any error was harmless because the trial court considered evidence
regarding “essentially everything that would have been included in a PSI.”
We reject the State’s harmless-error argument. The version of rule 3.710
in effect at the time of resentencing expressly prohibited the imposition of
a sentence other than probation on any juvenile or first-time felony
offender until: (1) after a PSI had first been made; and (2) the
recommendations of the Department had been received and considered by
the trial judge. Accordingly, as a juvenile offender in a case where the trial
court had sentencing discretion, appellant had a mandatory procedural
right to a PSI, which was never waived on the record. Furthermore, it is
possible that the PSI may have included additional information on some
of the relevant sentencing factors. Thus, it cannot be said that the error
was harmless.



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   Sixth Amendment Issue

    For the trial court’s benefit on remand, we also address appellant’s
argument that section 921.1401, Florida Statutes, violates the Sixth
Amendment by allowing the trial court, rather than a jury, to make the
finding as to whether life imprisonment is an appropriate sentence for a
juvenile offender under the relevant sentencing factors. Because this issue
is a pure question of law, our standard of review is de novo. Plott v. State,
148 So. 3d 90, 93 (Fla. 2014).

   “Other 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.” Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). Stated another way, “any fact that
exposes the defendant to a greater punishment than that authorized by
the jury’s guilty verdict is an element that must be submitted to a jury.”
Hurst v. Florida, 136 S. Ct. 616, 621 (2016) (internal alterations and
quotation marks omitted).

   However, as the United States Supreme Court explained in Apprendi,
nothing in our legal history “suggests that it is impermissible for judges to
exercise discretion—taking into consideration various factors relating both
to offense and offender—in imposing a judgment within the range
prescribed by statute.” Id. at 481. “[J]udges in this country have long
exercised discretion of this nature in imposing sentence within statutory
limits in the individual case.” Id.

   Furthermore, the Supreme Court has expressly rejected the notion that
“any fact that influences judicial discretion must be found by a jury,”
explaining that “broad sentencing discretion, informed by judicial
factfinding, does not violate the Sixth Amendment.” Alleyne v. United
States, 570 U.S. 99, 116 (2013).

   The present case involves the constitutionality of a juvenile sentencing
statute that was enacted to satisfy the dictates of Miller v. Alabama, 567
U.S. 460 (2012). Florida’s juvenile sentencing procedure requires a trial
court to conduct an individualized sentencing hearing to determine if life
imprisonment is an appropriate sentence for a juvenile convicted of a
capital felony. §§ 775.082, 921.1401, Fla. Stat. (2017). In determining
whether life imprisonment is an appropriate sentence, the court must
consider factors relevant to the offense and offender, including various
enumerated statutory factors. § 921.1401(2), Fla. Stat. (2017).



                                     4
   Both the First District and the Third District have held that Florida’s
juvenile sentencing procedure set forth in section 921.1401 does not
violate the Sixth Amendment under Apprendi and its progeny. See, e.g.,
Simmons v. State, 44 Fla. L. Weekly D659, D659 (Fla. 1st DCA Mar. 7,
2019); Copeland v. State, 240 So. 3d 58, 59–60 (Fla. 1st DCA 2018);
Beckman v. State, 230 So. 3d 77, 94–97 (Fla. 3d DCA 2017). Our sister
courts reasoned that section 921.1401 does not alter the statutory
maximum or minimum that may be imposed on a juvenile offender; nor
does it make the imposition of a life sentence contingent on any particular
finding of fact. Simmons, 44 Fla. L. Weekly at D659; Beckman, 230 So. 3d
at 96. The statutory factors in section 921.1401 are not elements that
enhance the prescribed penalty, but rather “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.” Simmons, 44 Fla. L. Weekly at D659.

    We reject appellant’s attempt to analogize section 921.1401 to Florida’s
pre-Hurst death-penalty statute. The procedure in section 921.1401 is
distinguishable from Florida’s pre-Hurst death-penalty statute, as the
latter statute unconstitutionally required the sentencing judge to find the
existence of an aggravating circumstance that was necessary for the
imposition of the death penalty. See Hurst, 136 S. Ct. at 624 (“Florida’s
sentencing scheme, which required the judge alone to find the existence
of an aggravating circumstance, is therefore unconstitutional.”).

   We find Beckman and Simmons to be persuasive and adopt their
reasoning as our own. Section 921.1401 does nothing more than require
a trial judge to take into consideration traditional sentencing factors—
relating both to offense and offender—in imposing a sentence within the
range prescribed by statute. Therefore, we conclude that the juvenile
sentencing procedure set forth in section 921.1401 does not violate the
Sixth Amendment under Apprendi.

   Conclusion

   In sum, we reverse appellant’s sentence and remand with instructions
for the trial court to order a PSI before resentencing appellant. See
Householder v. State, 231 So. 3d 490, 490–91 (Fla. 4th DCA 2017). On all
other issues, we affirm.

   Affirmed in part, Reversed in part, and Remanded.

CIKLIN and LEVINE, JJ., concur.


                                     5
                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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