FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-3335

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KEITA JERMAINE GAYMON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Alachua County.

James M. Colaw, Judge.

April 11, 2019

PER CURIAM.

Keita Gaymon admitted to violating his probation, and his 

corrected scoresheet reflected a total of twenty sentencing points. 

Because he scored less than twenty-two sentencing points, 

Gaymon argues that pursuant to section 775.082(10), Florida 

Statutes (2015), the trial court was required to sentence him to a 

nonstate prison sanction. However, pursuant to section 

775.082(10), the trial court made written findings that Gaymon 

could present a danger to the public if subject only to a nonstate 

prison sanction and sentenced Gaymon to five years’ 

imprisonment. Gaymon argues that the enhancement of his 

sentence under section 775.082(10) is unconstitutional because a 

jury, not a judge, is required to make the factual findings that were 
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used to increase his punishment beyond the statutory maximum 

of a nonstate prison sanction.

The outcome of this case is controlled by Brown v. State, 260

So. 3d 147 (Fla. 2018). There, the supreme court held that section 

775.082(10) was unconstitutional as it applied to Brown because it 

authorized the trial court to make factual findings unrelated to her 

prior convictions that increased her maximum sentence from one

year in county jail to three years in prison contrary to the holdings 

in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. 

Washington, 542 U.S. 296 (2004). Brown, 260 So. 3d at 149-51.

Here, the record demonstrates that the trial court relied on more 

than Gaymon’s prior convictions to support its decision to impose 

a state prison sentence, including a finding that the short time 

between the commencement of Gaymon’s probation and his

violation demonstrated an apparent lack of self-control and that 

Gaymon’s choices and behaviors could not be explained by a drug 

or substance addiction. Based on these findings, the trial court

determined that sentencing Gaymon to a nonstate prison sanction 

posed a danger to the public and therefore increased Gaymon’s 

maximum sentence from one year in county jail to five years in 

prison. Because the court’s order reflects that the court relied on 

more than just Gaymon’s prior convictions when it imposed his 

sentence, we reverse Gaymon’s sentence as required by Brown.

As for the instructions on remand, the supreme court in 

Brown declined to reach the parties’ arguments regarding the

appropriate remedy because Brown had already served her 

sentence by the time the court reviewed her case. Id. at 149-50. 

Although the supreme court noted that the proper procedure on 

remand would be answered in a future case, it specifically 

recognized as options that an appellate court could either instruct 

the lower court to impose a nonstate prison sanction or afford the 

State an opportunity to present the dangerousness issue to the 

jury. Id. at n.1. This Court has already determined that on 

remand, if the defendant remains incarcerated, the proper remedy 

is to remand for resentencing under the prior version of section 

775.082(10). Booker v. State, 244 So. 3d 1151, 1169 (Fla. 1st DCA 

2018). In Booker, this Court certified the following question of 

great public importance:
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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 BOOKER? IF THE ERROR IS NOT 

HARMLESS, WHAT REMEDY IS APPROPRIATE?

Id. The question remains pending before the supreme court. 

Booker v. State, 244 So. 3d 1151 (Fla. 1st DCA 2018), review 

pending SC18-752. Until the supreme court addresses the 

question, we are compelled by Booker to remand Gaymon’s case 

with instructions that the sentencing court resentence him under 

the prior version of section 775.082(10). Id.

REVERSED and REMANDED.

WOLF, LEWIS, and ROWE, 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 Steven L. Seliger, Assistant 

Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Quentin Humphrey, 

Assistant Attorney General, Tallahassee, for Appellee.