         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-1611
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TIMOTHY WADE COFFELL,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Washington County.
Tim Register, Judge.

                        October 31, 2018


PER CURIAM.

     Appellant, Timothy Wade Coffell, was convicted of possession
of marijuana in excess of twenty grams (Count 1), cultivation of
cannabis (Count 2), and possession of paraphernalia (Count 3).
His sentencing scoresheet reflected a score of 16.9 points.
Pursuant to section 775.082(10), Florida Statutes (2016),
Appellant was entitled to a non-state prison sanction, unless the
trial court made written findings that a non-state prison sanction
could present a danger to the public. The trial court made written
findings that Appellant could present a danger to the public if
subject to only a non-state prison sanction and sentenced him to
concurrent terms of three years of imprisonment on Counts 1 and
2 and to time served on Count 3. Appellant challenges the
constitutionality of section 775.082(10), arguing that it is
unconstitutional under Apprendi v. New Jersey, 530 U.S. 466
(2000), because the finding of danger to the public was not made
by a jury.

     The outcome of this case is controlled by our recent decision
in Booker v. State, 244 So. 3d 1151 (Fla. 1st DCA 2018), where we
held that section 775.082(10) was unconstitutional as applied to
Booker because it authorized the trial court to make factual
findings that increased his maximum sentence from one year in
county jail to four years in prison, contrary to the holdings in
Apprendi and Blakely v. Washington, 542 U.S. 296 (2004). Id. at
1156-64. But see Brown v. State, 233 So. 3d 1262 (Fla. 5th DCA
2017), review granted, SC18-323, 2018 WL 2069393 (Fla. Apr. 9,
2018). Here, the trial court made factual findings that increased
Appellant’s maximum sentence from one year in jail to three years
in prison. Therefore, as required by Booker, we reverse Appellant’s
sentence and remand for resentencing under the prior version of
section 775.082(10). See 244 So. 3d at 1168-69.

    REVERSED and REMANDED.

WOLF and LEWIS, JJ., concur; ROWE, J., concurs with opinion.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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ROWE, J, concurring.

     I fully concur with the majority opinion and write only to
address the State’s argument that Coffell’s sentence was not
unconstitutional or in conflict with the holdings in Apprendi or
Blakely because the trial court made explicit findings based on
Coffell’s prior convictions to support its finding that the imposition
of a nonstate prison sanction would present a danger to the public.
Contrary to the State’s argument, the record demonstrates that
the trial court did not rely solely on Coffell’s prior convictions when
it decided to impose a state prison sentence pursuant to section

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775.082(10). Instead, the trial court made several findings
unrelated to Coffell’s prior convictions including the following:
that a number of firearms were located in Coffell’s residence, that
some of the firearms were hidden in a couch, that Coffell lived in a
trailer park with nearby residents, and that Coffell possessed the
firearms “to protect the cannabis that he was in possession of at
the time of the search warrant.” Because the court’s order reflects
that the court relied on more than just Coffell’s prior convictions
when it imposed his sentence, I agree we are constrained by our
decision in Booker v. State, 244 So. 2d 1151 (Fla. 1st DCA 2018), to
reverse and remand for resentencing.

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Andy Thomas, Public Defender, and Megan Long, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Quentin Humphrey,
Assistant Attorney General, Tallahassee, for Appellee.




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