          Supreme Court of Florida
                                   ____________

                                   No. SC18-323
                                   ____________

                               LAVERNE BROWN,
                                   Petitioner,

                                          vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                 December 20, 2018

LAWSON, J.

      We review the Fifth District Court of Appeal’s decision in Brown v. State,

233 So. 3d 1262 (Fla. 5th DCA 2017). In Brown, the Fifth District expressly

declared valid section 775.082(10), Florida Statutes (2015), which requires that a

qualifying offender whose sentencing scoresheet totals 22 points or fewer be

sentenced to a nonstate prison sanction unless the trial court makes written findings

that a nonstate prison sanction could present a danger to the public. We have

jurisdiction. See art. V, § 3(b)(3), Fla. Const. As explained below, because

subsection (10) requires the court, not the jury, to find the fact of dangerousness to

the public that is necessary to increase the statutory maximum nonstate prison
sanction, we hold that subsection (10) violates the Sixth Amendment to the United

States Constitution and quash the Fifth District’s decision.

                                 BACKGROUND

      Subsection (10) provides as follows:

      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.

§ 775.082(10), Fla. Stat.

      But for subsection (10), the penalty for a third-degree felony would be “a

term of imprisonment not exceeding 5 years” pursuant to section 775.082(3)(e),

Florida Statutes (2015). However, as this Court has previously explained, with the

2009 addition of subsection (10), the Florida Legislature “reinstated” the “practice

of upward departure sentences” by “requir[ing] a written finding regarding danger

to the public” for offenders who would otherwise be entitled to a nonstate prison

sanction pursuant to subsection (10). Bryant v. State, 148 So. 3d 1251, 1258 (Fla.

2014). In other words, subsection (10) marks a change from the Criminal

Punishment Code (CPC) that the Legislature adopted in 1998, in that the CPC




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“does not contemplate upward departure sentences, because generally the statutory

maximum sentence is the highest possible sentence for any crime.” Id.

      In the decision on review, the Fifth District expressly declared subsection

(10) valid in the context of rejecting Laverne Brown’s argument that “her state

prison sentence violates the Sixth Amendment, as interpreted by Apprendi v. New

Jersey, 530 U.S. 466 (2000), and its progeny, because the jury did not find that she

presents a danger to the public under section 775.082(10).” Brown, 233 So. 3d at

1262. Brown’s jury found her guilty of petit theft for stealing a DVD player from

a store, which was a third-degree felony based upon Brown’s prior convictions.

See id. Although Brown’s scoresheet totaled 16.4 points, the trial court found that

imposing a nonstate prison sanction presented a danger to the public and imposed

an upward departure sentence of three years’ incarceration in state prison. Id. at

1263. To avoid the constitutional problem of imposing an upward departure

sentence based upon judicial factfinding (as opposed to facts reflected in the jury

verdict or admitted by the defendant), the Fifth District adopted the Fourth

District’s prior classification of subsection (10) as providing for “mandatory

mitigation” of the maximum penalty of up to 5 years’ imprisonment that, but for

subsection (10), would apply to Brown’s third-degree felony conviction pursuant

to subsection (3)(e). Id. at 1263-64 (citing Porter v. State, 110 So. 3d 962, 963

(Fla. 4th DCA 2013)); see also id. at 1265-66 (“[S]ection 775.082(10) is a


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mitigation statute, and not one that unconstitutionally allows an increase in the

statutory maximum based upon judicial fact-finding.”).

      Because Brown has since served her sentence and been released from

custody, we limit our review to the jurisdictional issue of the Fifth District’s

express declaration of subsection (10)’s validity and do not reach the parties’

arguments regarding harmless error and remedy. 1 Cf. State v. Matthews, 891 So.

2d 479, 483-84 (Fla. 2004) (retaining discretionary jurisdiction to address certified

conflict concerning a sentencing issue, even though the defendant had been

released from prison, explaining “[t]he mootness doctrine does not destroy [this

Court’s] jurisdiction because the question . . . is one of great public importance and

is likely to recur” and further “elect[ing] to proceed because the problem . . . is

capable of repetition yet evading review”).




       1. The statute’s constitutionality is a question of law we review de novo.
See Caribbean Conservation Corp., Inc. v. Fla. Fish & Wildlife Conservation
Comm’n, 838 So. 2d 492, 500 (Fla. 2003). Although the 2015 version of the
statute is at issue in this case, the language of subsection (10) has not changed
since its addition in 2009. In addition, we note that the remedy to be addressed in a
future case relates to the remand instructions to be given by the appellate court if it
finds that a sentencing court has improperly imposed a prison sentence without a
jury finding of dangerousness. In other words, 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 issue to a jury.

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                                    ANALYSIS

      In Apprendi, the United States Supreme Court held that “[o]ther 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.” 530 U.S. at 490 (emphasis added). In Blakely v. Washington,

542 U.S. 296, 303 (2004), the Supreme Court defined the “statutory maximum” as

“the maximum sentence a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defendant.”

      We agree with Brown that subsection (10) unambiguously sets the statutory

maximum penalty, for Apprendi purposes as defined by Blakely, as “a nonstate

prison sanction,” § 775.082(10), Fla. Stat., for her and similarly situated offenders.

This is because, absent a factual finding of “dangerousness to the public”—a

finding not reflected in the jury’s verdict on the theft charge—the statute plainly

states that “the court must sentence the offender to a nonstate prison sanction,” id.

(emphasis added), given the crime charged and Brown’s criminal history as

reflected on her criminal punishment code scoresheet. Although it would have

been possible for the Legislature to have written this statute as a “mitigation

statute,” giving the court discretion to impose up to five years unless the defendant

proved non-dangerousness, the Legislature did not do so. We read statutes as they

are written. See Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (“[W]hen the


                                         -5-
language of the statute is clear and unambiguous and conveys a clear and definite

meaning, there is no occasion for resorting to the rules of statutory interpretation

and construction; the statute must be given its plain and obvious meaning.”

(quoting A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159 (1931)).

      Accordingly, we hold that subsection (10) violates the Sixth Amendment in

light of Apprendi and Blakely based on its plain language requiring the court, not

the jury, to find the fact of dangerousness to the public necessary to increase the

statutory maximum nonstate prison sanction. Cf. Booker v. State, 244 So. 3d 1151,

1164 (Fla. 1st DCA 2018) (holding that “the second sentence of subsection (10) is

unconstitutional under the Sixth Amendment as applied to [the defendant]”

because “the trial judge’s factual findings—and thereby [the defendant’s] enhanced

sentence—were neither based on a jury finding that he poses a ‘danger to the

public’ nor limited to only the fact that [the defendant] had prior convictions”); cf.

also Plott v. State, 148 So. 3d 90, 95 (Fla. 2014) (“hold[ing] that upward departure

sentences that are unconstitutionally enhanced in violation of Apprendi and Blakely

patently fail to comport with constitutional limitations, and consequently, the

sentences are illegal under rule 3.800(a)”).

                                  CONCLUSION

      Because subsection (10) violates the Sixth Amendment by requiring the

court rather than the jury to make the finding of dangerousness to the public


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necessary to increase the statutory maximum nonstate prison sanction to a state

prison sentence, we quash the Fifth District’s express declaration of subsection

(10)’s validity in Brown and disapprove the Fourth District’s decision in Porter

rejecting a similar Sixth Amendment challenge to subsection (10). In order for a

court to impose any sentence above a nonstate prison sanction when section

775.082(10) applies, a jury must make the dangerousness finding.

      It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and
LABARGA, JJ., concur.

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
ON OR BEFORE DECEMBER 27, 2018. A RESPONSE TO THE MOTION
FOR REHEARING/CLARIFICATION MAY BE FILED ON OR BEFORE
JANUARY 2, 2019. NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO
FILE A REHEARING/CLARIFICATION MOTION AND, IF FILED,
DETERMINED.

Application for Review of the Decision of the District Court of Appeal – Statutory
Validity/Constitutional Construction

      Fifth District - Case No. 5D16-1045

      (Orange County)

James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public
Defender, Seventh Judicial Circuit, Daytona Beach, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Wesley Heidt, Bureau
Chief, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach,
Florida,



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for Appellee




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