          Supreme Court of Florida
                                       ____________

                                       No. SC19-712
                                       ____________

                         KEITA JERMAINE GAYMON,
                                 Petitioner,

                                            vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                      January 23, 2020

LAWSON, J.

      We accepted jurisdiction in this case to review the following question

certified to be of great public importance by the First District Court of Appeal:

      Whether the second sentence in subsection (10) of section 775.082,
      Florida Statutes, which authorizes a trial judge to make factual
      findings independent of a jury as to an offender’s potential “danger to
      the public” and to impose a state prison sentence that exceeds the
      maximum nonstate sanction of up to one year in county jail violates
      the Sixth Amendment as applied to [the defendant]? If the error is not
      harmless, what remedy is appropriate?

Gaymon v. State, 268 So. 3d 222, 224 (Fla. 1st DCA 2019). We have jurisdiction.

See art. V, § 3(b)(4), Fla. Const.1


       1. As explained in Gaymon, this issue was originally certified in Booker v.
State, 244 So. 3d 1151 (Fla. 1st DCA 2018), review granted, No. SC18-752 (Fla.
      The first part of this question was resolved in Brown v. State, 260 So. 3d

147, 150 (Fla. 2018), where we held that the portion of section 775.082(10),

Florida Statutes (2015), which required the court, not the jury, to find the fact of

dangerousness to the public necessary to increase the statutory maximum nonstate

prison sanction violated the Sixth Amendment. Accordingly, we rephrase the

certified question as follows:

      What is the proper remedy for harmful error resulting from the court,
      not the jury, finding the fact of dangerousness under section
      775.082(10) in violation of the Sixth Amendment?

      Having held statutory revival to be the proper remedy, the First District

vacated Gaymon’s sentence and remanded for resentencing under the prior version

of the sentencing statute, which could have resulted in reimposition of Gaymon’s

sentence without any findings by a jury or the trial court. Gaymon, 268 So. 3d at

224; § 775.082(3)(d), Fla. Stat. (2008) (now codified at § 775.082(3)(e), Fla. Stat.

(2015)). As explained below, we quash the First District’s decision in this case

and answer the rephrased question by holding that the proper remedy for harmful




Apr. 1, 2019). Gaymon, 268 So. 3d at 224. After accepting discretionary review
of Booker pursuant to article V, section 3(b)(4) of the Florida Constitution, we
accepted review of Gaymon, over which we also have jurisdiction because Booker
remains pending in this Court. See Jollie v. State, 405 So. 2d 418, 420 (Fla. 1981).
We elected to address the question of great public importance in Gaymon’s case
after being notified that Booker had completed his prison sentence.


                                         -2-
error2 resulting from the court, not the jury, finding the fact of dangerousness

under section 775.082(10) is to remand for resentencing with instructions to either

impose a nonstate sanction of up to one year in county jail or empanel a jury to

make the determination of dangerousness, if requested by the State.

                                  BACKGROUND

      Gaymon initially pled no contest to charges of fraudulent use of personal

identification information and fraudulent use of a credit card, third-degree felonies

with a maximum penalty of five years in state prison. Gaymon admitted to

violating his probation, and the trial court sentenced him to five years’

imprisonment. The statute under which Gaymon was sentenced, section

775.082(10), Florida Statutes (2015) (subsection (10)), 3 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


       2. We note that the State’s answer brief filed in the First District contained a
brief argument that any error in failing to have a jury make the dangerousness
finding in Gaymon’s case was harmless, citing Galindez v. State, 955 So. 2d 517,
523-24 (Fla. 2007). As there was no briefing on this issue in this Court, we have
not addressed it and therefore assume for purposes of our analysis that the error
was harmful.
      3. While the 2015 version of the statute is at issue, the statutory language of
subsection (10) has remained the same since 2009.


                                         -3-
      public, the court may sentence the offender to a state correctional
      facility pursuant to this section.

§ 775.082(10), Fla. Stat. Since Gaymon’s scoresheet reflected twenty sentence

points, the statutory maximum penalty was a nonstate prison sanction of up to one

year under subsection (10). The trial court increased Gaymon’s punishment

beyond the nonstate maximum, sentencing him to a five-year state prison term

based on the court’s independent factual findings that Gaymon could present a

danger to the public if subject only to a nonstate prison sanction.

      In the decision on review, the First District relied on our decision in Brown

to hold subsection (10) unconstitutional as applied to Gaymon. Specifically, the

First District held that the sentencing court’s reliance on facts—other than

Gaymon’s prior convictions—that were not found by a jury to increase the penalty

beyond the statutory maximum nonstate prison sanction violated the Sixth

Amendment in light of the United States Supreme Court’s decisions in Apprendi v.

New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).

Gaymon, 268 So. 3d at 223-24 (citing Brown, 260 So. 3d at 149-51). Relying on

its previous decision in Booker, 244 So. 3d at 1169, the First District held that

statutory revival was the proper remedy and remanded the case for resentencing

under the prior version of the sentencing statute, which is reflected in section

775.082(3)(e)’s authorization for the trial court to impose any term of

imprisonment up to five years. Gaymon, 268 So. 3d at 224. Gaymon petitioned

                                         -4-
this Court for review, and we accepted jurisdiction to resolve the issue left open in

Brown, namely the proper remedy for harmful error resulting from the court, not

the jury, finding the fact of dangerousness under subsection (10).

                                     ANALYSIS

      The parties suggest four remedies for the Apprendi/Blakely violation that

occurred: (1) severing the second sentence from subsection (10) while leaving the

rest of the statute intact; (2) reviving section 775.082(3)(e) and thereby authorizing

the trial court to impose any term of imprisonment up to five years; (3) remanding

for resentencing to a constitutionally permissible sentence under subsection (10),

i.e., a nonstate prison sanction of less than one year; or (4) remanding for

resentencing with an opportunity to empanel a jury to determine the dangerousness

issue. For the reasons set forth below, we hold that the latter option is the proper

remedy and will demonstrate why by addressing each of the possible remedies.

      Regarding the first proposed remedy of severance, this Court has held that

when a portion of a statute is declared unconstitutional, the rest of the statute will

be permitted to stand provided:

      (1) the unconstitutional provisions can be separated from the
      remaining valid provisions, (2) the legislative purpose expressed in
      the valid provisions can be accomplished independently of those
      which are void, (3) the good and the bad features are not so
      inseparable in substance that it can be said that the Legislature would
      have passed the one without the other and, (4) an act complete in itself
      remains after the invalid provisions are stricken.


                                         -5-
Cramp v. Bd. of Pub. Instruction of Orange Cty., 137 So. 2d 828, 830 (Fla. 1962).

With respect to the severance remedy, the third Cramp factor is not satisfied, as it

is not clear that the Legislature would have passed subsection (10) without the

upward departure provision regarding offenders who present a danger to the

public. See Barndollar v. Sunset Realty Corp., 379 So. 2d 1278, 1281 (Fla. 1979)

(“When . . . the valid and void parts of a statute are mutually connected with and

dependent upon each other as conditions, considerations, or compensations for

each other, then a severance of the good from the bad would effect a result not

contemplated by the legislature . . . .” (quoting Small v. Sun Oil Co., 222 So. 2d

196, 199-200 (Fla. 1969))). We accordingly reject the first proposed remedy.

      We also reject the second option, statutory revival, because it would be

inconsistent with the plain purpose of this legislative enactment—mandating non-

state prison sanctions for most low-scoring offenses. Although we have

recognized that statutory revival is appropriate under certain circumstances, see,

e.g., B.H. v. State, 645 So. 2d 987, 995 (Fla. 1994) (holding that statutory revival is

an appropriate remedy where the Legislature approves unconstitutional statutory

language and simultaneously repeals its predecessor), we have also refused to

adopt statutory revival as a remedy where it would be “patently inconsistent with

the legislative intent as to the appropriate remedy,” Horsley v. State, 160 So. 3d

393, 395 (Fla. 2015). This is one of those instances, as reviving section


                                         -6-
775.082(3)(e) would violate the obvious purpose underlying the Legislature’s

enactment of subsection (10), which is to require nonstate prison sanctions for low-

scoring offenders in all cases where the lesser sentence would not endanger the

public. Another practical consideration also counsels against statutory revival.

Statutory revival in this case would oddly render every constitutional violation (of

failing to submit the issue of dangerousness to a jury) harmless error—thereby

leaving those who suffered a constitutional deprivation with no remedy at all. We

therefore reject the second proposed remedy of statutory revival and quash that

part of the First District’s decision adopting statutory revival as the proper remedy.

      This leaves two other proposed remedies: (1) remanding for resentencing to

a nonstate prison sanction or (2) remanding for resentencing with instructions to

empanel a jury to determine the dangerousness finding. Remanding for

resentencing under the valid portion of subsection (10) would reach the same result

as severance—something our severance jurisprudence would not permit as

explained above. The nonstate prison sanction would become the mandatory

sentence for all offenders that meet subsection (10)’s criteria even if they could

present a danger to the public, and it is not clear that the Legislature would have

passed subsection (10) without the upward departure provision. Remanding for

resentencing under the valid portion of subsection (10) would also be inconsistent

with the approach we have taken in the death penalty context. See Williams v.


                                         -7-
State, 242 So. 3d 280, 294-95 (Fla. 2018) (Canady, J., concurring in part and

dissenting in part) (explaining that the Court remanded for a new penalty phase

proceeding in Hurst v. State, 202 So. 3d 40 (Fla. 2016), and that “we have

summarily rejected as ‘without merit’ claims based ‘on double jeopardy and due

process grounds’ that the State ‘is precluded from seeking the death penalty’ in

Hurst resentencing proceedings” (quoting Hurst v. State, No. SC17-302, 2017 WL

1023762, at *1 (Fla. Mar. 16, 2017) (unpublished))). The Sixth Amendment

violation in subsection (10) is sufficiently similar to the capital sentencing errors to

which Hurst applies since both “involve failing to present an issue to the jury that

must be decided by the jury.” Williams, 242 So. 3d at 296 (Canady, C.J.,

concurring in part and dissenting in part). As a Hurst-compliant penalty phase

allowed the death penalty to remain a sentencing option, so too would remanding

for a new sentencing proceeding that complies with Apprendi/Blakely fulfill the

Legislature’s intent for the nonstate prison sanction reflected in subsection (10).

      In addition to curing the constitutional infirmity in subsection (10) and being

consistent with the approach we have taken in the death penalty context,

remanding for a jury to make the dangerousness finding under subsection (10) best

protects the due process rights of defendants while complying with the de novo

nature of resentencing proceedings. This Court has held that “[i]n both capital and

noncapital cases, . . . resentencing is a new proceeding” and that “ ‘resentencing


                                          -8-
entitles the defendant to a de novo sentencing hearing with the full array of due

process rights.’ ” State v. Collins, 985 So. 2d 985, 989 (Fla. 2008) (quoting Trotter

v. State, 825 So. 2d 362, 367-68 (Fla. 2002)); see also Galindez v. State, 955 So.

2d 517, 526 (Fla. 2007) (Cantero, J., specially concurring) (explaining that without

the empaneling of new juries, a resentencing court would be limited to the facts

found by the original jury and the State would, in effect, be harmed by its reliance

on the law at the time—that sentence-enhancing facts could be found by the

judge).

      We recognize that the remedy of remanding to empanel a jury implicates

separation of powers to the extent subsection (10) does not expressly require a jury

finding of dangerousness. See art. II, § 3, Fla. Const.; see also Hall v. State, 823

So. 2d 757, 763 (Fla. 2002) (explaining that “a statutory criminal sentencing

scheme, such as the [Criminal Punishment] Code, is substantive in nature because

it is a product of legislative policy” and therefore within the province of the

Legislature). However, the Florida Constitution provides that “[t]he judicial power

shall be vested in a supreme court, district courts of appeal, circuit courts and

county courts.” Art. V, § 1, Fla. Const. “When confronted with new constitutional

problems to which the Legislature has not yet responded, we have the inherent

authority to fashion remedies.” Galindez, 955 So. 2d at 527 (Fla. 2004) (Cantero,

J., specially concurring) (citing In re Order on Prosecution of Criminal Appeals by


                                         -9-
Tenth Judicial Circuit Pub. Defender, 561 So. 2d 1130, 1133 (Fla. 1990)); see also

State v. Rodriguez, 575 So. 2d 1262, 1266 (Fla. 1991) (imposing a bifurcated trial

requirement to a felony DUI statute in order to protect the due process rights of

defendants). Mindful that this power should be invoked “only in situations of clear

necessity” and not lead courts “to invade areas of responsibility confided to the

other two branches,” Rose v. Palm Beach Cty., 361 So. 2d 135, 138 (Fla. 1978), we

hold that the proper remedy for harmful error resulting from the court, not the jury,

finding the fact of dangerousness under section 775.082(10) is to remand for

resentencing with instructions to empanel a jury to make such a determination, if

the State seeks that finding in the defendant’s case. This remedy is the least

intrusive remedy to both safeguard defendants’ Sixth Amendment rights and

effectuate the Legislature’s clear purpose in enacting subsection (10).

                                  CONCLUSION

      Because remanding for a jury to make the dangerousness determination

cures the constitutional infirmity, is consistent with how we have treated Hurst

resentencing proceedings, protects the due process rights of defendants, complies

with the de novo nature of sentencing proceedings, and fulfills the Legislature’s

clear purpose in subsection (10) to require nonstate prison sanctions for certain

low-scoring offenders where those sentences would not endanger the public, we




                                        - 10 -
quash the First District’s decision to the extent that it chose statutory revival as the

proper remedy4 and remand for further proceedings consistent with this opinion.

      It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, and MUÑIZ, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

      First District - Case No. 1D17-3335

      (Alachua County)

Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender,
Second Judicial Circuit, Tallahasee, Florida,

      for Petitioner

Ashley Moody, Attorney General, and Quentin Humphrey, Assistant Attorney
General, Tallahassee, Florida,

      for Respondent




      4. We disapprove the First District’s decision in Booker for the same reason.

                                         - 11 -
