         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-2992
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WILSON BRANDON SCOTT,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Bay County.
Michael C. Overstreet, Judge.

                       November 6, 2018


PER CURIAM.

    Appellant challenges his conviction for sexual battery raising
various grounds for error. We affirm and write only to address
Appellant’s contention that the trial court improperly sentenced
him to a first degree felony under section 794.011(5)(a), Florida
Statutes, and improperly assessed an adult-on-minor sentence
points multiplier under section 921.0024(2), Florida Statutes, in
absence of a jury verdict specifying the victim’s age.

    The age of the victim increased the maximum sentence faced
by Appellant and was therefore an element of the crime which
needed to be proven. See Apprendi v. New Jersey, 530 U.S. 466
(2000); Blakely v. Washington, 542 U.S. 296 (2004); Alleyne v.
United States, 570 U.S. 99 (2013); Insko v. State, 969 So. 2d 922
(Fla. 2007); see also Coggins v. State, 921 So. 2d 758 (Fla. 1st
DCA 2006). However, any error here is subject to a harmless
error analysis. “Where an Apprendi/Blakely error has occurred,
the harmless error analysis asks, ‘whether the record
demonstrates beyond a reasonable doubt that a rational jury
would have found [the facts at issue].’” DeLaFe v. State, 124 So.
3d 293, 294 (Fla. 1st DCA 2013) (quoting Galindez v. State, 955
So. 2d 517, 523 (Fla. 2007)); see also Perritte v. State, 912 So. 2d
332 (Fla. 5th DCA 2005) (holding that since defendant’s age was
not in dispute there was no error in failing to instruct the jury on
that element). *

     The issues in dispute at trial were whether the incidents
happened and whether the victim was under Appellant’s
custodial authority. The victim and her mother testified to the
victim’s age, and it was not in dispute. Further, during closing
arguments defense counsel called the victim “[a] 16 year old.” If
any error occurred here, it was harmless beyond a reasonable
doubt. Therefore, the judgment and sentence are AFFIRMED.

WETHERELL, BILBREY, and M.K. THOMAS, 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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Andy Thomas, Public Defender, and M.J. Lord, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Harris,
Assistant Attorney General, Tallahassee, for Appellee.




    * The possibility of jury pardon is not a consideration in
conducting this harmless error analysis.

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