        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           DAREK LEE LEWIS,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                     Nos. 4D18-2548 and 4D18-2549

                            [November 27, 2019]

   Consolidated appeals from the Circuit Court for the Nineteenth Judicial
Circuit, St. Lucie County; Robert E. Belanger, Judge; L.T. Case Nos. 56-
2017-CF-001171A and 56-2017-CF001977A.

  Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.

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

PER CURIAM.

    Darek Lewis pled guilty to two counts of felony petit theft and one count
of possession of drug paraphernalia. He was sentenced to county jail,
followed by probation.

   Shortly after his release from jail, he entered an open plea to a violation
of probation. He scored 19.3 points on his Criminal Punishment Code
Scoresheet. Because he scored less than 22 points, his sentence fell under
section 775.082(10), Florida Statutes (2018), which provides:

      (10) If a defendant is sentenced for an offense committed on
      or after July 1, 2009, which is a third degree felony but not a
      forcible felony as defined in s. 776.08, and excluding any third
      degree felony violation under chapter 810, and if the total
      sentence points pursuant to s. 921.0024 are 22 points or
      fewer, the court must sentence the offender to a nonstate
      prison sanction. However, if the court makes written findings
      that a nonstate prison sanction could present a danger to the
      public, the court may sentence the offender to a state
      correctional facility pursuant to this section.

   Instead of imposing a nonstate prison sanction, the trial court found
that Lewis presented a “danger to the public” because he was “a chronic,
habitual thief” 1 and sentenced him to five years in state prison.

   After Lewis was sentenced, the Florida Supreme Court decided Brown
v. State, 260 So. 3d 147 (Fla. 2018); the Court held that section
775.082(10) was unconstitutional to the extent that it required the court,
and not a jury, to make the dangerousness finding that would permit
sentencing a defendant to state prison.

   Lewis moved to correct his sentence under Florida Rule of Criminal
Procedure 3.800(b)(2). The state conceded that Lewis was entitled to
resentencing, but argued that the trial court was bound by Booker v. State,
244 So. 3d 1151 (Fla. 1st DCA 2017), rev. granted, SC18-752, 2019 WL
1434049 (Fla. Apr. 1, 2019). Booker permitted the judge to impose the
statutory maximum of five years in prison. The sentencing judge followed
Booker and sentenced Lewis to five years in prison.

   Brown did not commit itself to the Booker remedy. In dicta contained
in footnote 1, the Florida Supreme Court leaned to a remedy more
deferential to the Legislature than the Booker approach; the Court
observed that a “future case” would address the proper remand
instructions where a court imposed a prison sentence without a jury
finding of dangerousness. Brown, 260 So. 3d at 151 n.1. The Court
described the resentencing options — “whether the appellate court remand
should instruct that a non-state prison sanction be imposed or afford the
State an opportunity to present the dangerousness to a jury.” Id.

    Consistent with Brown, we reverse the sentence imposed and remand
to the circuit court. On remand, if the state seeks enhanced sentencing,
the issue of whether Lewis is a danger to the public shall be presented to
a jury. If the jury makes a dangerousness finding, the circuit court may
make “written findings” based on the jury’s verdict and sentence Lewis to
a state prison sanction. § 775.082(10), Fla. Stat. Without a jury finding
of dangerousness, Lewis must be sentenced to a “nonstate prison
sanction.” Id.

GROSS, KLINGENSMITH and KUNTZ, JJ., concur.

1 We do not reach the issue of whether chronic, habitual thievery qualifies as a
“danger to the public” within the meaning of section 775.082(10).

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Not final until disposition of timely filed motion for rehearing.




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