          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D16-5189
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FRANKLIN VEREEN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Leon County.
Robert R. Wheeler, Judge.

                         March 28, 2019

PER CURIAM.

     Franklin Vereen was convicted of sexual battery and was
sentenced to twenty-four years in prison. On appeal, he does not
challenge his convictions, but he argues that his sentence was
unlawful. As the State concedes, we must reverse as to the
challenged fines and surcharges. But we reject Vereen’s remaining
arguments and affirm the rest of his sentence.

     At trial, the victim testified that she was sleeping in her car
and awoke to find Vereen next to her holding a gun. Vereen forced
her into the back seat and then drove her car to a nearby ATM.
Vereen took her ATM card from her purse and demanded her PIN.
He then wrapped his shirt around his face before approaching the
ATM and attempting a withdrawal. Her account lacked funds,
though, so Vereen left with no cash. He then drove the victim to an
apartment complex and told her she had to “give up” something
else. Vereen forced the victim to perform a sexual act on him, after
which Vereen forced intercourse. Vereen then drove to another
apartment complex, tossed the victim a wet shirt, and told her to
clean herself up. He then walked away, after telling the victim if
she started her car before he was out of sight, he would kill her.

     Vereen testified in his defense, offering an entirely different
version of events. He agreed that he and the victim spent some
time in her car together, doing drugs. They had intercourse and
she performed a separate sexual act. And they later went to the
ATM together, hoping to get money to buy more drugs. But he
insisted that he was never armed and that everything they did
together was consensual.

     The jury believed the victim. It convicted Vereen of two counts
of sexual battery, and the court imposed two consecutive twelve-
year terms of imprisonment, one for each sexual battery.

                                 I.

     Vereen first argues that he was sentenced in violation of his
Sixth Amendment rights. He relies on Alleyne v. United States, in
which the United States Supreme Court held that “any fact that
increases the mandatory minimum is an ‘element’ that must be
submitted to the jury.” 570 U.S. 99, 103 (2013). In calculating
Vereen’s lowest permissible sentence under the Criminal
Punishment Code, the court included eighty victim-injury points
for sexual penetration. § 921.0024(1)(a), Fla. Stat. Those points
had the necessary effect of increasing Vereen’s lowest permissible
sentence. Yet as Vereen explains, there was no jury finding of
penetration. The information alleged alternatively Vereen’s
“penetration of” or “union with” the victim’s mouth and vagina,
and the jury never specified on which basis it convicted. Thus,
Vereen contends, Alleyne precludes assessment of penetration
points, which raise his lowest permissible sentence. 570 U.S. at
115-16 (“The essential point is that the aggravating fact produced
a higher range, which, in turn, conclusively indicates that the fact
is an element of a distinct and aggravated crime. It must,
therefore, be submitted to the jury and found beyond a reasonable
doubt.”).

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     Even assuming Alleyne applies to victim-injury points under
Florida’s Criminal Punishment Code—but compare Bean v. State,
44 Fla. L. Weekly D219 (Fla. 4th DCA Jan. 9, 2019) (finding
Alleyne inapplicable to “scoring of victim injury points”) with Lakey
v. State, 172 So. 3d 989 (Fla. 5th DCA 2015) (“Because the jury did
not make a specific finding of penetration rather than union, it was
improper to include points for penetration.”)—this does not provide
a basis for reversal here. Here, any error in assessing penetration
points without a jury finding would have been harmless. “An
Alleyne error is harmless if the record demonstrates beyond a
reasonable doubt that a rational jury would have found the fact
required to impose the mandatory minimum term.” Britten v.
State, 181 So. 3d 1215, 1218 (Fla. 1st DCA 2015); see also Galindez
v. State, 955 So. 2d 517, 522 (Fla. 2007). We are convinced that,
under the facts of this case, no rational jury would have convicted
Vereen of sexual battery without also finding penetration. The
victim’s testimony, which was essential to the conviction, provided
evidence of penetration. And Vereen’s own testimony—including
his acknowledgment that the victim “sucked” on him—also would
have led a rational jury to find penetration. Penetration was not a
disputed issue; Vereen’s defense was that she consented to the
penetration. Any error in failing to ask the jury about penetration
was harmless.

                                 II.

     Next, we reject Vereen’s argument regarding a procedural due
process violation at the sentencing hearing. The officer who
prepared the Presentence Investigation Report (“PSI”) noted in the
report—and testified at the hearing—that she recommended a
downward-departure sentence. The victim, who had not
participated in the PSI process, testified at the hearing and asked
for a substantial sentence. Then, in response to questioning from
the State, the officer who recommended the downward departure
said her recommendation “probably” would have been different
had she first heard from the victim.

     Despite any change in recommendation, Vereen had the
opportunity to question the officer, to present his own witnesses in
mitigation, and to argue in favor of leniency. Moreover, the PSI
itself noted that the victim had not participated in the PSI process

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but would be presenting at the sentencing hearing. Having
reviewed the record, we conclude Vereen received “fair notice and
a real opportunity to be heard at a meaningful time and in a
meaningful manner.” Crosby v. Fla. Parole Comm’n, 975 So. 2d
1222, 1223 (Fla. 1st DCA 2008). There was no procedural due
process violation.

                               III.

     Finally, Vereen argues that the court erred in imposing
discretionary fines and surcharges pursuant to sections 775.083
and 938.04(1), Florida Statutes, without first orally pronouncing
them. We accept the State’s confession of error on this point. See
Thomas v. State, 236 So. 3d 1159, 1160 (Fla. 1st DCA 2018)
(holding that discretionary fines that are not specifically
pronounced must be stricken). On remand, the court may strike
the challenged fines and surcharges, or it “may reimpose them
after following the proper procedure.” Id.

    AFFIRMED in part, REVERSED in part, and REMANDED.

ROWE, BILBREY, and WINSOR, JJ., concur.

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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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Michael Ufferman, Michael           Ufferman   Law   Firm,   P.A.,
Tallahassee, for Appellant.

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




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