## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________

No. 1D 17

- 3335

_____________________________

K EITA J ERMAINE G AYMON ,
Appellant,

v.

S TATE OF F LORIDA ,
Appellee.

_____________________________

On appeal from the Circuit Court for Alachua County

. James M. Colaw , Judge

.
April 11, 2019

P ER C URIAM

. Keita Gaymon admitted to violating his probation, and his corrected sc oresheet 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 sect ion 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 san ction 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 were2 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

, 26 0 So. 3d 147 (Fla. 2018) . The re, the supreme court held that section 775.082(10) was unconstitutional as it applied to Brown because it authorized the trial court to make fa ctual 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 i mpose a state prison sentence , including a finding that the short time between the commencement of Gaymon’s probation and his violation demonstrated an apparen t 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, t he trial court determined that sentencing Gaymon to a nonstate prison sanction posed a danger to the public a nd therefore increased Gaymo n’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 , t he 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 c ould either instruct the lower court to impose a nonstate prison sancti on 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 ver sion 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:3 W HETHER THE SECOND SE NTENCE IN SUBSECTION (10) OF
SECTION 775.082, F LORIDA S TATUTES , WHICH AUTHORIZES
A TRIAL JUDGE TO MAK E FACTUAL FINDINGS I NDEPENDENT
OF A JURY AS TO AN O FFENDER ' S POTENTIAL “ DANGER TO
THE PUBLIC ” AND TO IMPOSE A STA TE PRISON SENTENCE
THAT EXCEEDS THE MAX IMUM NONSTATE SANCTI ON OF UP
TO ONE YEAR IN COUNT Y JAIL V IOLATES THE S IXTH A MENDMENT AS APPLIED TO B OOKER ? I F THE ERROR IS NOT
HARMLESS , WHAT REMEDY IS APPR OPRIATE ?

Id. T he question remains pending before the supreme court. Booker v. State

, 244 So. 3d 1151 (Fla. 1st DCA 2018)

, review pending SC18

- 752

. U ntil 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.

R EVERSED and R EMANDED

.

W OLF , L EWIS , and R OWE , JJ., concur

.

_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331

.

_____________________________

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.