Supreme Court of Florida

____________

No. SC2021-1047

____________

STATE OF FLORIDA,

Petitioner,

vs.

HERBERT LEON MANAGO, JR.,

Respondent.

November 30, 2023

COURIEL, J.

It is “the historic role of the jury” to stand as “an intermediary 

between the State and criminal defendants.” Alleyne v. United 

States, 570 U.S. 99, 114 (2013). For this reason, while a trial court

has broad discretion to sentence a person convicted of a crime to a 

term of incarceration within the range authorized by law, the Sixth 

Amendment requires that, when a fact other than the existence of a 

prior conviction “aggravates the legally prescribed range of allowable 

sentences, it constitutes an element of a separate, aggravated 

offense that must be found by the jury,” if not admitted by the 
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defendant, “regardless of what sentence the defendant might have 

received if a different range had been applicable.” Id. at 115.

We have said that when a trial court breaks this rule by 

making a decision constitutionally reserved to a jury (and commits

Alleyne error), it is the job of a reviewing court to decide whether 

the resulting violation of the defendant’s right to a fair trial was

harmful. Williams v. State, 242 So. 3d 280, 290 (Fla. 2018).

In this case, the trial court made an Alleyne error, then 

compounded its mistake by purporting to review its own decision to 

determine whether the Alleyne error was harmful—a task that 

resides with a reviewing court. On appeal, the Fifth District Court 

of Appeal found harmful error and, citing our decision in Williams, 

held that the only available remedy under the circumstances was to 

remand the case with instructions to resentence the defendant 

under a different statutory provision: one that carried a lesser 

penalty. Manago v. State, 317 So. 3d 1192 (Fla. 5th DCA 2021). In

doing so, it certified conflict with Green v. State, 314 So. 3d 611 

(Fla. 3d DCA 2020),1 on a narrow question: whether on remand, as 

1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
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an alternative to resentencing under the statute with the lesser 

penalty, the trial court could instead empanel a jury to make the 

factual determination that would have permitted the court to 

sentence the defendant under the statutory provision with a

harsher penalty.

On that narrow question, we find that the Third District Court 

of Appeal’s decision in Green more faithfully applies Alleyne’s 

command than the Fifth District’s decision in this case. Thus, 

while we agree with the Fifth District that the trial court committed

harmful Alleyne error, we quash its decision to the extent it directed 

that only resentencing would be an appropriate remedy. In doing

so, we recede from Williams’s rejection of the most natural remedy 

for a trial court’s having erroneously taken from a jury a decision 

that a jury alone should make: giving it back.

I

Herbert Leon Manago, Jr., was seventeen when he and three 

others—Adrian Nelson, Tamonta Sampson, and Ronald Brown—

carjacked a vehicle and shot its driver.

On the night of the incident, the group had pulled into a 

Burger King parking lot in Nelson’s car. In an adjacent vehicle, a 
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Ford Crown Victoria, sat Donell King, Ronald King, Mandy Gaddis, 

and Amanda Johnson. Manago and the others in Nelson’s car 

decided to steal the Ford.

Nelson and Sampson testified at Manago’s trial that Sampson 

was in the driver’s seat of Nelson’s car while Nelson, Manago, and 

Brown stood behind the car, planning their next move. At this 

point, Nelson testified, Manago “indicated” to the group that he had 

a gun in his waistband by patting his hip; Nelson did not actually 

see a weapon.2

When Ronald King exited the Ford and went into the Burger 

King, an individual from Manago’s group waited for him to 

return. Once he did, that individual approached Ronald King with 

a gun and forced him inside Nelson’s car. Nelson testified that he 

saw Manago hold Ronald King at gunpoint. And Sampson testified 

that he saw Manago force Ronald King into Nelson’s car. Ronald 

King, however, initially described whoever approached him at 

gunpoint as “a short guy,” no taller than 5’7”—a description that 

2. Ronald King initially told police that he remembered seeing 

a second gun in the lap of the person sitting in the driver seat of 

Nelson’s car, but he later recanted, telling police that he was 

mistaken.
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does not match Manago, who stood around 6’2” at the time of the 

shooting. Otherwise, Ronald King could not provide a positive 

identification.

Meanwhile, Nelson walked over to the Ford and sat in the 

driver’s seat. Gaddis bolted from the car as another individual 

removed Johnson from the front passenger’s seat. Johnson first 

identified Sampson as the person who pulled her from the car, then 

later insisted that it was Brown. Sampson, however, testified that 

Brown stood behind Nelson’s car while he remained in the driver’s

seat of Nelson’s car throughout the incident.

Nelson then tried to drive off in the Ford. But Donell King, still 

sitting in the back seat, grabbed Nelson from behind. Another 

individual joined the struggle. Sampson testified that he saw 

Manago get into the back seat of the Ford. Nelson testified that he 

“saw a glimpse” of Brown in the back seat of the Ford during the 

struggle. And Ronald King testified that, although he saw whoever

had approached him at gunpoint “approach[] the back seat” of the 

Ford, he never saw that individual get into the back seat.

The struggle between the three ended with a gunshot to Donell 

King’s neck, killing him. Just after the gun fired, Nelson took off in 
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the Ford as Donell King lay on the parking lot pavement. But 

Nelson’s getaway was brief; police apprehended him later that night. 

A test for gun residue on Nelson’s hands came back negative. He

cooperated with law enforcement. Subsequently, in exchange for 

his testimony against Manago, Nelson’s charge was reduced to 

second-degree murder.

Sampson, Brown, and Manago fled the crime scene on foot. 

Ronald King raced after whoever had approached him at gunpoint

through an alleyway behind Burger King until the individual 

escaped, jumping over the wall. A nearby law enforcement officer, 

Deputy Zufelt, testified that he spotted “two to three” people run 

into that same alleyway. Once Ronald King returned to the crime 

scene, he and Gaddis informed another law enforcement officer that 

Nelson was the shooter.

Sampson, Brown, and Manago regrouped at a hotel nearby. 

During their meeting, Sampson later testified, Manago admitted

that he pulled the trigger and hid the murder weapon in the 

alleyway behind the Burger King. Sally Sampson—Sampson’s 

mother and Nelson’s aunt—similarly testified that she heard 

Manago talking about hiding the gun after the shooting, which 
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motivated her to call the police and tell them where to find the 

weapon. Tamonta Sampson also testified that he overheard 

Manago’s phone call with his mother, Latasha Mitchell, in which he 

said he had shot someone and needed her to come pick him up.

Mitchell, however, disputed that account.

The State charged Manago, Brown, and Sampson with firstdegree felony murder and carjacking with a firearm. Though the 

State presented evidence at trial that Manago was the shooter, it

explained to the jury that Manago could be found guilty either as 

the shooter who killed the victim or as a principal to the crime.3 At 

the State’s request, the jury was instructed that Manago could be 

found guilty of first-degree felony murder under either theory:

To prove the crime of First Degree Felony Murder 

against Herbert Manago, the State must prove the 

following three elements beyond a reasonable doubt:

3. At the time of the trial, the jury did not need to determine

whether Manago was the shooter to convict him as charged, so long 

as it found that the victim was shot and killed during the 

carjacking. Under the statute at issue here, a life sentence without 

parole always followed a first-degree murder conviction. Whether 

Manago “actually killed” the victim became significant for 

sentencing purposes only with the retroactive application of section

775.082(1)(b), Florida Statutes (2014), as part of the State’s revised

juvenile sentencing scheme. See Horsley v. State, 160 So. 3d 393 

(Fla. 2015).
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. . .

3. Herbert Manago was the person who 

actually killed Donnell King;

or

Donnell King was killed by a person other 

than Herbert Manago; but both Herbert 

Manago and the person who killed Donnell 

King were principals in the commission of 

Carjacking.

In order to convict of First Degree Felony Murder, it

is not necessary for the State to prove that the defendant 

had a premeditated design or intent to kill.

The jury convicted Manago of carjacking with a firearm and 

first-degree felony murder. The verdict form did not specify whether 

Manago was the shooter, nor under which theory the jury convicted 

him for first-degree felony murder; it stated only that the jury found 

Manago guilty of first-degree felony murder and carjacking “as 

charged in the Indictment.” The trial court sentenced Manago to 

mandatory life in prison without the possibility of parole and a 

concurrent thirty-year prison sentence for carjacking with a 

firearm.

While Manago was serving his sentence, the United States

Supreme Court decided in Graham v. Florida that it is a violation of
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the Eighth Amendment’s prohibition on cruel and unusual 

punishment for a juvenile offender convicted of a non-homicide 

crime to receive a life sentence without the possibility of parole.

560 U.S. 48, 82 (2010). It explained that states are “not required to 

guarantee eventual freedom” to juvenile non-homicide offenders but 

must, at the least, impose a sentence that provides “some 

meaningful opportunity to obtain release based on demonstrated 

maturity and rehabilitation.” Id. at 75. Soon after, the U.S. 

Supreme Court extended its Graham holding in Miller v. Alabama to 

bar sentencing schemes that mandated life without the possibility 

of parole for juveniles convicted of homicide offenses. 567 U.S. 460, 

479 (2012).

The Florida Legislature then revised its juvenile sentencing 

scheme to bring it “into compliance with the [U.S.] Supreme Court’s

recent Eighth Amendment juvenile sentencing jurisprudence.”

Horsley v. State, 160 So. 3d 393, 394 (Fla. 2015). As part of this 

update, the Legislature amended section 775.082(1), Florida 

Statutes, to provide, in pertinent part:

(b)1. A person who actually killed, intended to kill, or 

attempted to kill the victim and who is convicted under s. 

782.04 of a capital felony, or an offense that was 
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reclassified as a capital felony, which was committed 

before the person attained 18 years of age shall be 

punished by a term of imprisonment for life if, after a 

sentencing hearing conducted by the court in accordance 

with s. 921.1401, the court finds that life imprisonment 

is an appropriate sentence. If the court finds that life 

imprisonment is not an appropriate sentence, such 

person shall be punished by a term of imprisonment of at 

least 40 years. A person sentenced pursuant to this 

subparagraph is entitled to a review of his or her 

sentence in accordance with s. 921.1402(2)(a).

2. A person who did not actually kill, intend to kill, or 

attempt to kill the victim and who is convicted under s. 

782.04 of a capital felony, or an offense that was 

reclassified as a capital felony, which was committed 

before the person attained 18 years of age may be 

punished by a term of imprisonment for life or by a term 

of years equal to life if, after a sentencing hearing 

conducted by the court in accordance with s. 921.1401, 

the court finds that life imprisonment is an appropriate 

sentence. A person who is sentenced to a term of 

imprisonment of more than 15 years is entitled to a 

review of his or her sentence in accordance with s. 

921.1402(2)(c).

Ch. 2014–220, § 1, Laws of Fla. Alongside these changes, the 

Legislature also created section 921.1402, Florida Statutes, which 

provides, in pertinent part:

(2)(a) A juvenile offender sentenced under s. 

775.082(1)(b)1. is entitled to a review of his or her 

sentence after 25 years [unless the juvenile offender has 

previously been convicted of certain enumerated offenses 

that were part of a separate criminal transaction or 

episode].
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. . .

(c) A juvenile offender sentenced to a term of more than 

15 years under s. 775.082(1)(b)2., s. 775.082(3)(a)5.b., or

s. 775.082(3)(b)2.b. is entitled to a review of his or her 

sentence after 15 years.

Ch. 2014–220, § 3, Laws of Fla.

Together, these statutes set new sentencing parameters for 

juvenile capital felony offenders while eliminating mandatory life 

sentences without the possibility of parole. Under the new 

sentencing scheme, juvenile capital felony offenders may still 

receive a term of life imprisonment. But if a defendant “actually 

kill[s]” a victim and is sentenced under section 775.082(1)(b)1., the 

mandatory minimum sentence is forty years, with review required 

after twenty-five years. And if the defendant did not “actually kill”

the victim and is sentenced instead under section 775.082(1)(b)2., 

there is no mandatory minimum sentence, with review required 

after fifteen years.

Manago sought resentencing under the new sentencing 

scheme, arguing that his original juvenile sentence of life without 

the possibility of parole was unlawful following Miller. The State 
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agreed, and the trial court granted Manago’s request. The parties

disagreed, however, about which sentencing provision applied.

Manago argued he should be resentenced under section 

775.082(1)(b)2., Florida Statutes (2016), because the jury never 

found beyond a reasonable doubt that he “actually kill[ed] . . . the 

victim.” The trial court had used a verdict form asking only

whether Manago was guilty “as charged in the Indictment.” At the 

time, Manago’s first-degree felony murder conviction and sentence 

did not turn on whether he was actually the shooter—the jury only 

had to determine that the victim was shot and killed during the 

carjacking. Thus, absent a jury finding that he was the shooter, 

Manago argued, he should be resentenced under section 

775.082(1)(b)2., which applied to juvenile capital felony offenders 

“who did not actually kill . . . the victim.” 

For support, Manago cited our decision in Williams, where we 

held—following Apprendi v. New Jersey, 530 U.S. 466, 476 (2000),

and its progeny4—that a defendant sentenced under section 

4. In Apprendi, the U.S. Supreme Court held that the Sixth 

Amendment requires, “[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 
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775.082(1)(b) has a right to have a jury determine whether the 

defendant “actually killed, intended to kill, or attempted to kill the 

victim.” 242 So. 3d at 294. So Manago requested that the trial 

court resentence him under 775.082(1)(b)2., which carries a lesser 

penalty.

The State, on the other hand, urged the trial court to 

determine that “the jury would have found [Manago] to be the 

actual killer” and sentence him instead under section

775.082(1)(b)1. It argued that when there is no jury finding that

the defendant “actually killed” the victim, Williams tasks the trial 

court with determining “whether the absence of such a finding was 

harmless.” And on the record before the trial court, the State 

asserted, the Alleyne violation was indeed harmless because “a 

rational jury would have found that [Manago] actually killed the 

victim.”

proved beyond a reasonable doubt.” 530 U.S. at 490. The Court 

later extended this Sixth Amendment principle to include 

mandatory minimum sentences in Alleyne, explaining that “[f]acts 

that increase the mandatory minimum sentence are . . . elements 

and must be submitted to the jury and found beyond a reasonable 

doubt.” 570 U.S. at 108.
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The trial court agreed with the State and sentenced Manago 

under section 775.082(1)(b)1. Recognizing that section 

775.082(1)(b)1. requires a jury to find beyond a reasonable doubt 

that the juvenile “actually killed, intended to kill, or attempted to 

kill the victim,” the court concluded that the case “lack[ed] an 

adequate jury finding.” Even so, it decided that a sentence under 

section 775.082(1)(b)1. was proper because “the record 

demonstrates beyond a reasonable doubt that a rational jury would 

have found [Manago] actually killed the victim.” In other words, the 

trial court determined that Manago was eligible for resentencing 

under section 775.082(1)(b)1. because it reviewed its own Alleyne

violation and found it harmless. After considering “all of [the 

section 921.1401] factors,” the court imposed a life sentence for 

Manago’s first-degree murder conviction and a concurrent thirty 

years for his carjacking conviction.

Manago appealed, and the Fifth District vacated his sentence. 

The court held that the “resentencing court erred in conducting a 

harmless error analysis to excuse its own concurrent Alleyne

violation.” Manago, 317 So. 3d at 1194. It explained that “even if 

the error could be considered harmless . . . it is not appropriate for 
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a [trial] court to commit error simply because it might be found to 

be harmless.” Id. (alteration in original) (quoting United States v. 

Salery, 119 F. Supp. 2d 1268, 1272 n.3 (M.D. Ala. 2000)).

Having found reversible error, the Fifth District turned to the 

proper remedy. Under similar circumstances in Green, the Third 

District had remanded for resentencing under section 

775.082(1)(b)2. while also providing the State with the option to 

empanel a jury on remand to find the missing facts. See 314 So. 3d 

at 616. But, said the Fifth District, this Court in Williams, 242 So. 

3d at 292-93, “specifically considered and rejected the option of 

empaneling a new jury to make the requisite findings, and clearly 

chose resentencing [under] section 775.082(1)(b)2. as the sole 

remedy on remand.” Manago, 317 So. 3d at 1195. So the Fifth 

District remanded with instructions to resentence Manago under 

section 775.082(1)(b)2. and certified direct conflict with the Third 

District’s decision in Green. Id.

The State moved for rehearing, arguing that the Fifth District

failed to conduct a harmless error review of the trial court’s Alleyne

violation. According to the State, the Fifth District wrongly 

concluded that, once the trial court had determined that it lacked 
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the requisite factual findings to resentence Manago under section 

775.082(1)(b)1., the only action the trial court could take was to 

resentence Manago under section 775.082(1)(b)2. But the district 

court disagreed:

[W]e already conducted a harmless error review, as 

required by section 924.33, Florida Statutes (2020), but 

we decline to use the analysis from Green because our 

case does not involve traditional Alleyne error. . . . The 

issue, and thus the error, presented to us in this case 

was whether the resentencing court erred in conducting 

a harmless error analysis to excuse its own concurrent 

Alleyne violation.

Manago, 317 So. 3d at 1195. And because the district court could 

not conclude the error was harmless beyond a reasonable doubt, it 

denied rehearing.

The State then sought review in this Court, challenging the 

Fifth District’s alleged failure to (1) consider whether the trial

court’s Alleyne error was harmless and (2) provide the State with

the option on remand to empanel a jury to make the required 

factual finding to support a sentence under section 775.082(1)(b)1.

II

The trial court committed harmful Alleyne error.
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A

Any “element of a separate, aggravated offense” that may 

increase a defendant’s sentence “must be found by the jury, 

regardless of what sentence the defendant might have received if a 

different range had been applicable.” Alleyne, 570 U.S. at 115. 

“[T]he essential Sixth Amendment inquiry is whether a fact is an 

element of the crime. When a finding of fact alters the legally 

prescribed punishment so as to aggravate it, the fact necessarily 

forms a constituent part of a new offense and must be submitted to 

the jury.” Id. at 114-15; see also Blakely v. Washington, 542 U.S. 

296, 304 (2004) (“When a judge inflicts punishment that the jury’s 

verdict alone does not allow, the jury has not found all the facts 

‘which the law makes essential to the punishment,’ and the judge 

exceeds his proper authority.” (citation omitted) (quoting 1 J. 

Bishop, Criminal Procedure § 87, at 55 (2d ed. 1872))); Apprendi, 

530 U.S. at 490 (“Other 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.”). 
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An error is subject to harmless error review unless it “always 

vitiate[s] the right to a fair trial and therefore [is] always harmful.” 

Davis v. State, 347 So. 3d 315, 323 (Fla. 2022) (quoting State v. 

Schopp, 653 So. 2d 1016, 1020 (Fla. 1995)). We reasoned in 

Williams that Alleyne errors could be harmless because the U.S. 

Supreme Court held, in Washington v. Recuenco, 548 U.S. 212, 

221-22 (2006), that errors of a similar kind were harmless. 242 So. 

3d at 290; see also Galindez v. State, 955 So. 2d 517, 522-23 (Fla. 

2007) (“[T]o the extent some of our pre-Apprendi decisions may 

suggest that the failure to submit factual issues to the jury is not 

subject to harmless error analysis, Recuenco has superseded 

them.”). The trial court in Recuenco had committed 

Apprendi/Blakely error5 by imposing a mandatory statutory 

sentencing enhancement without a jury finding on the necessary 

aggravating element; the U.S. Supreme Court said that the failure 

to instruct on an element of the offense was generally subject to 

5. An Apprendi/Blakely error occurs when a judge, rather 

than a jury, finds a fact that increases the statutory maximum

sentence; an Alleyne error occurs if that fact instead increases the 

mandatory minimum sentence. See United States v. Haymond, 139 

S. Ct. 2369, 2378-79 (2019).
- 19 -

harmless error review. Recuenco, 548 U.S. at 221-22. Even though

Recuenco did not directly address the standard of review for Alleyne 

errors (the Court considered only the Apprendi/Blakely error then 

before it), we noted in Williams, 242 So. 3d at 290, that the two 

errors stem from the same constitutional principle: “[a]ny fact that, 

by law, increases the penalty for a crime is an ‘element’ that must 

be submitted to the jury and found beyond a reasonable 

doubt.” Alleyne, 570 U.S. at 103 (citing Apprendi, 530 U.S. at 483 

n.10). Accordingly, we concluded that Alleyne violations, like 

Apprendi/Blakely errors, “can be harmless as well” and are 

therefore subject to harmless error review. Williams, 242 So. 3d at

290, 294.

Our harmless error rule is codified in section 924.33, Florida 

Statutes (2020):

No judgment shall be reversed unless the appellate court 

is of the opinion, after an examination of all the appeal 

papers, that error was committed that injuriously 

affected the substantial rights of the appellant. It shall 

not be presumed that error injuriously affected the 

substantial rights of the appellant.[6]

6. In State v. DiGuilio, this Court, considering the harmless 

error standard, explained:
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We recently said the test for harmless error focuses on the effect of 

the error on the trier of fact and “places the burden on the state, as 

the beneficiary of the error, to prove beyond a reasonable doubt that 

the error complained of did not contribute to the verdict or, 

alternatively stated, that there is no reasonable possibility that the 

error contributed to the conviction.” Davis, 347 So. 3d at 323

(quoting DiGuilio, 491 So. 2d at 1135). That is, unless the reviewing 

court can say that there is “no reasonable possibility” that the error 

affected the verdict, the error is harmful. Id. (quoting DiGuilio, 491 

So. 2d at 1135).

In Williams, this Court considered whether a trial court’s 

Alleyne error concerning section 775.082(1)(b), the same provision 

Section 924.33 respects the constitutional right to a fair 

trial free of harmful error but directs appellate courts not

to apply a standard of review which requires that trials 

be free of harmless errors. . . . Contraposed to this 

legislative authority, the courts may establish the rule 

that certain errors always violate the right to a fair trial 

and are, thus, per se reversible. To do so, however, we 

are obligated to perform a reasoned analysis which shows 

that this is true, and that, for constitutional reasons, we 

must override the legislative decision.

491 So. 2d 1129, 1134 (Fla. 1986) (footnote omitted).
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at issue here, was harmless. We explained that “the applicable 

question in evaluating whether an Alleyne violation is harmful with 

respect to section 775.082(1)(b) is whether the failure to have the 

jury make the finding as to whether a juvenile offender actually 

killed, intended to kill, or attempted to kill the victim contributed to 

his sentence.” Williams, 242 So. 3d at 290. In other words, a court

must assess “whether the record demonstrates beyond a reasonable 

doubt that a rational jury would have found the juvenile offender 

actually killed, intended to kill, or attempted to kill the victim.” Id.

B

We cannot say beyond a reasonable doubt that a rational jury 

would have found that Manago “actually killed, intended to kill, or 

attempted to kill” the victim in this case.

Courts have looked to the weight of the evidence in the record,

including credibility concerns, and any conflicting evidence when 

reviewing Alleyne violations for harmless error in cases involving 

section 775.082(1)(b).7 And here, the record includes several 

7. Compare Williams, 242 So. 3d at 291-92 (error not 

harmless beyond a reasonable doubt where (1) the defendant 

disputed both that he killed victim and that he willingly participated

in the murder; (2) the record contained “sharply conflicting 
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evidence”; and (3) an important state witness, whose testimony 

implicated the defendant as both an active participant in planning 

the felonious conduct and the actual killer, was a jailhouse 

informant who had impeachable motives, receiving a reduced 

sentence in exchange for his testimony), Green, 314 So. 3d at 615 

(error not harmless beyond a reasonable doubt where (1) “[t]he 

evidence presented at trial involved two competing narratives, the 

resolution of which required a credibility determination”; (2) the 

State’s main witness, who testified that the defendant “on several 

occasions” admitted to killing the victim, had impeachable motives, 

receiving a reward for his testimony; and (3) the defendant never 

admitted to actually killing or intending to kill the victim to law 

enforcement, though he admitted to other elements of the crimes 

with which he was charged), Romero v. State, 315 So. 3d 1245, 

1251-52 (Fla. 1st DCA 2021) (error not harmless beyond a 

reasonable doubt where (1) much of the evidence of the defendant’s 

wrongdoing and statements came from codefendants that had 

impeachable motives—including familial bias and incentive to 

testify in exchange for a lesser charge while awaiting sentencing; (2) 

evidence placed both the defendant and other codefendants close to 

the victim at the time of the attack; and (3) there was no evidence 

that the defendant admitted he planned to kill the victim), and

O’Neal v. State, 298 So. 3d 77, 83 (Fla. 4th DCA 2020) (error not 

harmless beyond a reasonable doubt where a key witness provided 

contradictory identifications, first identifying a codefendant as the 

shooter but later identifying the defendant instead), with Brown v. 

State, 277 So. 3d 616, 621 (Fla. 3d DCA 2018) (harmless error 

where (1) the defendant told detectives he was the only one armed 

with a .38 caliber handgun and that he fired the handgun and (2) 

“undisputed physical evidence” provided that at least one of the 

four shots fired from Brown’s gun struck the victim’s chest), and

Colon v. State, 291 So. 3d 643, 647-48 (Fla. 5th DCA 2020) 

(harmless error where (1) the defendant confessed to several 

witnesses and law enforcement that he shot the victim; (2) the 

defendant was in possession of the murder weapon when arrested; 

and (3) the record lacked competent evidence that anyone else was 

present at the time of the murder).
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instances of conflicting evidence and contradictory identifications 

from key witnesses, some with substantial credibility concerns. On 

those facts, given the lack of direct evidence that Manago was the 

shooter, we cannot say beyond a reasonable doubt that any rational 

jury would find that he actually killed, intended to kill, or attempted 

to kill the victim.

Other than the statements by Manago to which Sally and 

Tamonta Sampson testified, the State presented no direct evidence

that placed Manago inside the Ford around the time of the 

shooting. Police found none of his fingerprints or hair follicles in 

the car. When police presented Manago in a photo lineup to the 

carjacking victims, none identified Manago as even having been at 

the crime scene.

Witnesses Johnson, Gaddis, and Ronald King had conflicting 

testimony about the exact whereabouts of codefendants Sampson, 

Brown, and Manago around the time of the shooting. Johnson first 

identified Sampson as the person who removed her from the front 

passenger seat of the Ford. Later, however, Johnson retracted that 

statement and claimed that it was Brown who had taken her from 

the car. Gaddis, after first telling law enforcement that Nelson was 
- 24 -

the shooter, changed her mind and identified Sampson. Sampson 

testified that Brown stood behind Nelson’s car throughout the 

incident. But Johnson testified that Brown had removed her from 

the Ford—though she first identified Sampson as the person who 

had done so. And Nelson testified that while he was in the driver’s 

seat of the Ford, he “saw a glimpse” of Brown on the back 

passenger side of the car. Sampson, for his part, testified that he 

saw Manago get into the back seat of the Ford. And Ronald King 

testified that, while he saw whoever had approached him at 

gunpoint “approach[] the back seat” of the Ford, he did not see that 

individual get into the back seat.

Additionally, the State’s evidence linking Manago to the 

murder weapon implicates his codefendants. Deputy Zufelt testified 

that “two to three” people—at least including Manago and Brown—

ran from the crime scene into the alleyway behind Burger King,

where police found the murder weapon. Brown was out of Deputy 

Zufelt’s sight for about five seconds before being apprehended—

enough time, a rational jury might conclude, for him, and not 

Manago, to have hidden the gun.
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The record is also inconclusive as to whether Manago admitted 

to shooting the victim. We know Manago never admitted it to law 

enforcement. Tamonta Sampson testified that Manago admitted it 

to him. But on this and other matters, the jury could have rejected, 

or accepted only in part, the testimony of Manago’s codefendants 

Sampson and Nelson, who had an incentive to downplay their 

culpability. There was, for example, conflicting testimony about 

what Manago told his mother when he called her for a ride home. A 

rational jury could credit Latasha Mitchell’s testimony—that her 

son never said anything about a shooting that night—over the 

testimony of codefendant Tamonta Sampson.8

It is true that the jury found Manago guilty of carjacking with 

a firearm. But Manago could have been convicted of carjacking

with a deadly weapon as a principal even if the jury did not believe 

he personally possessed a gun. See Lopez v. State, 833 So. 2d 283, 

284 (Fla. 5th DCA 2002) (“The law of principals allows Lopez to be 

convicted of [carjacking with a firearm and robbery with a firearm] 

8. Tamonta’s mother, Sally Sampson, is the only witness who 

corroborated her son’s account, testifying that she overheard 

Manago talking about where he hid the gun.
- 26 -

regardless of whether he personally possessed a firearm . . . .”). In 

fact, the State, in its closing argument, emphasized that “intent that 

a carjacking occur[s]” was sufficient under the principal theory for 

the jury to convict Manago of first-degree felony murder. See 

Williams, 242 So. 3d at 292 (holding that intent to commit the 

underlying felony for felony murder does not “equal intent to kill”). 

And the jury was instructed that “to convict of First Degree Felony 

Murder, it is not necessary for the State to prove that the defendant 

had a premeditated design or intent to kill.”

If the jury determined Manago had carried a gun that night, 

that finding might still fall short of proving beyond a reasonable 

doubt that Manago was the shooter for a few reasons. First, there 

is evidence of another gun at the crime scene: Ronald King first told 

police that he remembered seeing it in the lap of the person sitting 

in the driver’s seat of Nelson’s car, and police in fact recovered 

another gun near the hotel where Manago, Sampson, and Brown 

regrouped following the shooting. Second, Ronald King, when 

shown the murder weapon, could not identify it with certainty as 

the same gun used to force him inside Nelson’s car. And third, if

Manago was indeed the individual who forced Ronald King into 
- 27 -

Nelson’s car at gunpoint, it is unclear whether he still would have 

possessed the gun at the time of the shooting.

Based on the record before us, we cannot conclude beyond a 

reasonable doubt that a rational jury would have found that 

Manago actually killed, intended to kill, or attempted to kill the 

victim. See Green, 314 So. at 615 (“The evidence presented at trial 

involved two competing narratives, the resolution of which required 

a credibility determination best suited for the jury and not judicial 

factfinding.”).

III

We come to the remedy. Manago insists the Fifth District got 

it right, remanding the case with instructions to conduct a de novo 

resentencing for his conviction of first-degree felony murder under

section 775.082(1)(b)2. After all, that is precisely what Williams

prescribes: “Where the error cannot be deemed harmless, the 

proper remedy is to resentence the juvenile offender pursuant to 

section 775.082(1)(b)2. . . . .” 242 So. 3d at 282.

That pronouncement, however, is an odd fit with our central

holding in Williams: that Alleyne requires a jury to make the 

necessary factual finding under section 775.082(1)(b). As the Third 
- 28 -

District correctly decided in Green, our answer to the certified 

question in Williams9 does not foreclose the conclusion that where 

“[t]he evidence presented at trial involved two competing 

narratives,” its resolution on remand may “require[] a credibility 

determination best suited for the jury and not judicial factfinding.” 

314 So. 3d at 615. 

To deny the trial court recourse to a jury on remand would in 

fact deviate from the core teaching of Alleyne, which is that a

factual finding like the one at issue here “must be submitted to the 

jury and found beyond a reasonable doubt.” 570 U.S. at 108; see 

Apprendi, 530 U.S. at 477 (“[T]rial by jury has been understood to 

require that ‘the truth of every accusation, whether preferred in the 

shape of indictment, information, or appeal, should afterwards be 

9. That question was:

DOES ALLEYNE V. UNITED STATES, 570 U.S. 99, 133 

S. Ct. 2151, 186 L. Ed. 2d 314 (2013), REQUIRE THE 

JURY AND NOT THE TRIAL COURT TO MAKE THE 

FACTUAL FINDING UNDER SECTION 775.082(1)(b), 

FLORIDA STATUTES (2016), AS TO WHETHER A 

JUVENILE OFFENDER ACTUALLY KILLED, INTENDED 

TO KILL, OR ATTEMPTED TO KILL THE VICTIM?

242 So. 3d at 282.
- 29 -

confirmed by the unanimous suffrage of twelve of [the defendant’s] 

equals and neighbours . . . .’ ” (alteration in original) (quoting 4 W. 

Blackstone, Commentaries on the Laws of England 343 (1769))). 

Precluding jury consideration of this question at resentencing has 

the effect of making a judicial finding about the facts, regardless of 

the evidence. It trespasses on a “fundamental reservation of power 

in our constitutional structure”: the role of the jury as factfinder.

Blakely, 542 U.S. at 306 (“Just as suffrage ensures the people’s 

ultimate control in the legislative and executive branches, jury trial 

is meant to ensure their control in the judiciary.” (citing Letter from 

Thomas Jefferson to the Abbe Arnoux (July 19, 1789), reprinted in

15 Papers of Thomas Jefferson 282, 283 (J. Boyd ed. 1958) (“Were I 

called upon to decide whether the people had best be omitted in the 

Legislative or Judiciary department, I would say it is better to leave 

them out of the Legislative”))).

Adherence in all cases to the remedy we prescribed in Williams 

would also transgress “the general rule ‘that a resentencing must 

proceed “as an entirely new proceeding.” ’ ” Williams, 242 So. 3d at 

294 (Canady, J., concurring in part and dissenting in part) (quoting 

State v. Collins, 985 So. 2d 985, 989 (Fla. 2008)). We have 
- 30 -

otherwise consistently maintained that “resentencing should

proceed de novo on all issues bearing on the proper sentence,”

Morton v. State, 789 So. 2d 324, 334 (Fla. 2001) (quoting Teffeteller 

v. State, 495 So. 2d 744, 745 (Fla. 1986)), and remanded 

accordingly, see Hurst v. State, 202 So. 3d 40, 45 (Fla. 2016) 

(remanding for a new penalty phase proceeding after concluding 

that sentencing error was not harmless beyond a reasonable doubt), 

receded from in part by State v. Poole, 297 So. 3d 487 (Fla. 2020); 

Gaymon v. State, 288 So. 3d 1087, 1093 (Fla. 2020) (remanding 

with instruction for a jury to make the required determination 

“complies with the de novo nature of sentencing proceedings, and 

fulfills the Legislature’s clear purpose”).

Our conclusion comports with the text of section 

775.082(1)(b). Under both relevant subsections, a jury finding is 

presupposed: sentencing according to subsection (b)1. requires a 

finding10 that the defendant “actually killed, intended to kill, or 

10. We presume that the Legislature is aware of the law, 

including relevant judicial precedent, when it enacts a new statute. 

Seagrave v. State, 802 So. 2d 281, 290 (Fla. 2001); see Cannon v. 

Univ. of Chicago, 441 U.S. 677, 696-97 (1979) (Stevens, J.) (“It is 

always appropriate to assume that our elected representatives, like 

other citizens, know the law . . . .”). The Legislature added section 
- 31 -

attempted to kill the victim”; sentencing according to subsection 

(b)2. requires a finding that the defendant “did not actually kill, 

intend to kill, or attempt to kill the victim.” § 775.082(1)(b)

(emphasis added). What the statute never contemplates is the 

remedy we compelled in Williams: one where no finding is made by 

the jury, and where the trial court simply elects the more lenient 

penalty.

Nor does our decision pose the double jeopardy concern we 

articulated in Williams, for it has long been the law that “a sentence 

does not have the qualities of constitutional finality that attend an 

acquittal.” United States v. DiFrancesco, 449 U.S. 117, 134 (1980); 

see, e.g., Hurst v. State, No. SC2017-0302, 2017 WL 1023762, at *1 

(Fla. Mar. 16, 2017) (unpublished) (summarily rejecting “without 

775.082(1)(b) more than a year after the U.S. Supreme Court 

announced its decision in Alleyne. Ch. 2014–220, § 1, Laws of Fla. 

And under Alleyne, a finding of actual killing, intent to kill, or 

attempt to kill under subsection (b)1. “aggravates the legally 

prescribed range of allowable sentences,” and is therefore an 

“element” of the offense, which must be submitted to a jury and 

found beyond a reasonable doubt. Alleyne, 570 U.S. at 115; see 

supra Section II-A. We thus assume that the Legislature, aware of 

this precedent, drafted subsection (b)1. to require a finding by a 

jury beyond a reasonable doubt on whether the defendant “actually 

killed, intended to kill, or attempted to kill the victim.”
- 32 -

merit” claims that the State “is precluded from seeking the death 

penalty” in Hurst resentencing proceedings based on “double 

jeopardy and due process grounds”); State v. Collins, 985 So. 2d 

985, 993 (Fla. 2008) (“A second attempt to prove the criteria for an 

enhanced sentence does not equate to ‘a second prosecution for the 

same offense after acquittal.’ ” (quoting Lippman v. State, 633 So. 2d 

1061, 1064 (Fla. 1994))); Trotter v. State, 825 So. 2d 362, 365 (Fla. 

2002) (“[D]ouble jeopardy is not implicated in the context of a 

resentencing following an appeal of a sentencing issue.” (citing 

Harris v. State, 645 So. 2d 386, 388 (Fla. 1994))).

“It is no small matter for one Court to conclude that a 

predecessor Court has clearly erred.” Poole, 297 So. 3d at 506. 

Indeed, having carefully evaluated Williams with the presumption 

that this Court faithfully and competently carried out its duty in 

deciding that case, see id., we reaffirm that decision’s bottom line: 

a reviewing court must decide, in cases like this one, whether the

resulting violation of the defendant’s right to a fair trial was

harmful. See Williams, 242 So. 3d at 290. It is in light of that 

conclusion that we find our holding as to the appropriate remedy in 

Williams to have been clearly erroneous. See supra pp. 29-32. No 
- 33 -

reliance interest compels our adhering to it, for no one, including 

Manago, “altered his behavior in expectation of the” remedy holding 

from which we recede. Poole, 297 So. 3d at 507; see also Alleyne, 

570 U.S. at 119 (Sotomayor, J., concurring) (“[W]hen procedural 

rules are at issue that do not govern primary conduct and do not 

implicate the reliance interests of private parties, the force of stare 

decisis is reduced.”).

We recede from Williams to the extent it is inconsistent with 

our conclusion that a trial court, on remand after making an 

Alleyne error, is not foreclosed from empaneling a jury to make a

factual determination that affects the legally prescribed range of 

allowable sentences.

IV

We quash in part the decision of the Fifth District and remand 

for resentencing proceedings consistent with our decision.

It is so ordered.

MUÑIZ, C.J., and CANADY, GROSSHANS, and FRANCIS, JJ., 

concur.

LABARGA, J., dissents with an opinion.

SASSO, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION 

AND, IF FILED, DETERMINED.
- 34 -

LABARGA, J., dissenting.

I disagree with the majority’s conclusion that a trial court may 

remedy a harmful Alleyne11 error by “empaneling a jury to make a 

factual determination that affects the legally prescribed range of 

allowable sentences.” Majority op. at 33. As such, I respectfully 

dissent to the majority opinion and the decision therein to recede in 

part from Williams.12

I fundamentally disagree with the majority’s conclusion that 

double jeopardy concerns are not implicated when a resentencing 

court empanels a new jury to find the facts necessary for sentencing 

under section 775.082(1)(b)1., Florida Statutes. In fact, the specific 

characteristics of Manago’s case heighten these double jeopardy 

concerns.

With many aggravated crimes, the aggravating factor is 

distinct from the facts necessary to form the underlying crime. See, 

e.g., § 784.021, Fla. Stat. (2023) (listing the elements for aggravated 

11. Alleyne v. United States, 570 U.S. 99 (2013).

12. Williams v. State, 242 So. 3d 280 (Fla. 2018).
- 35 -

assault). Here, however, the facts required to demonstrate that 

Manago “actually killed, intended to kill, or attempted to kill” the 

victim are highly relevant to his guilt, were alleged in the 

indictment, and were actually argued against by Manago at trial.

Empaneling a jury to allow the State to reargue these facts 

implicates double jeopardy concerns that are exacerbated by the 

majority’s holding that it cannot conclude beyond a reasonable 

doubt that a rational jury would have found that Manago actually 

killed, intended to kill, or attempted to kill the victim. Majority op. 

at 23. Under these circumstances, it is difficult to view empaneling 

a jury here as something other than a second bite at the apple.

For these reasons, I respectfully dissent.

Application for Review of the Decision of the District Court of Appeal

Direct Conflict of Decisions/Certified Direct Conflict of 

Decisions

Fifth District - Case No. 5D20-632

(Volusia County)

Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor 

General, Daniel W. Bell, Chief Deputy Solicitor General, and 

Christopher J. Baum, Senior Deputy Solicitor General, Office of the 

Attorney General, Tallahassee, Florida,

for Petitioner
- 36 -

Matthew R. McLain of McLain Law, P.A., Longwood, Florida,

for Respondent