FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D15-3558

_____________________________

REGINALD LEE BOOKER, III,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

An appeal from the Circuit Court for Escambia County.

J. Scott Duncan, Judge.

April 18, 2018

MAKAR, J.

Reginald Lee Booker, III, pled no contest to fleeing or 

attempting to elude a law enforcement officer and driving without 

a valid driver’s license. His scoresheet reflected 20.4 sentence 

points, which by statute required that he be sentenced to a 

“nonstate prison sanction,” which “is ‘understood to mean 

probation, community control, or imprisonment in the county jail 

for up to one year.’” Reed v. State, 192 So. 3d 641, 645 (Fla. 2d DCA 

2016) (citing Jones v. State, 71 So. 3d 173, 175 (Fla. 1st DCA 

2011)). Section 775.082(10), Florida Statues (2018), says that “[i]f 

the total sentence points . . . are 22 points or fewer, the court must

sentence the offender to a nonstate prison sanction.” (Emphasis 

added). Because a “nonstate prison sanction” is mandated, 

Booker’s maximum incarceration would be eleven months and 

thirty days in a county jail (i.e., up to a year or “11/30” in 

sentencing parlance) based upon his plea to the charges. 
2

At the State’s request, however, the trial judge increased 

Booker’s punishment beyond the nonstate maximum, sentencing 

him to a four-year state prison term, based on his independent 

factual findings that Booker could present a danger to the public if 

subject only to a nonstate prison sanction. The authority for doing 

so—and the subject of this appeal—is the last sentence of section 

775.082(10), which says: “However, if the court makes written 

findings that a nonstate prison sanction could present a danger to 

the public, the court may sentence the offender to a state 

correctional facility pursuant to this section.”

The State acknowledged that it was “seeking an upward 

departure” from the maximum nonstate sanction the statute 

permitted. At the sentencing hearing, the State sought “prison 

time” due to Booker’s “danger to the community,” or, if the trial 

judge was “not willing to go beyond the guidelines,” then “at least 

11/30 county jail [time] followed by [a] significant amount of 

community control and probation.” In response, the trial judge 

queried that “the State is actually seeking an upward departure is 

what you are telling me,” to which the State responded: “Yes.”

Booker’s motion to correct his sentence claimed that the 

enhancement of his sentence was unconstitutional under the Sixth 

Amendment because the trial judge, rather than a jury, made the 

factual findings that were necessary to increase his punishment 

beyond the statutory maximum of a nonstate prison sanction to a 

state prison sanction, i.e., the four-year state prison term he 

received. See Blakely v. Washington, 542 U.S. 296 (2004); Apprendi 

v. New Jersey, 530 U.S. 466 (2000). This Court recently addressed 

the question of whether section 775.082(10) is facially

unconstitutional in violation of the jury trial right discussed in 

Apprendi and Blakely. Woods v. State, 214 So. 3d 803, 805 (Fla. 1st 

DCA 2017) (en banc), review dismissed, SC17-955, 2017 WL 

2264740 (Fla. May 24, 2017). We couldn’t reach a consensus on 

that question, leaving for another day the question of whether the 

statute may be unconstitutional as applied in a specific case, which 

we now address.

Background

The Florida Legislature, faced with budgetary challenges in 
3

2009, sought to reduce the burden of prison expense on the 

Department of Corrections by mandating that specified, nonviolent offenders, who score under twenty-two points on their 

criminal scoresheet, be sentenced to nonstate sanctions—thereby 

shifting incarceration of these offenders to county jails for a 

maximum of up to one year. See Woods, 214 So. 3d at 805 (citing 

Ch. 2009-63, § 1, Laws of Fla.; Fla. S. Comm. on Crim. & Civil Just. 

Approp., CS for SB 1722 (2009) Staff Analysis 2-3, 7 (April 6, 

2009)). It added section 775.082(10), consisting of the following two 

sentences:

(10) 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 public, the court may sentence the 

offender to a state correctional facility pursuant to this 

section.

§ 775.082(10), Fla. Stat. (emphasis added). The last sentence, 

which was used to enhance Booker’s sentence to a state prison 

sanction, is the focus of the Sixth Amendment claim at issue.

Combined with the Fourteenth Amendment’s prohibition that 

liberty may not be taken without “due process of law,” the Sixth 

Amendment’s declaration that “the accused shall enjoy the right to 

a speedy and public trial, by an impartial jury” in “all criminal 

prosecutions” “indisputably entitle[s] a criminal defendant to ‘a 

jury determination that [he] is guilty of every element of the crime 

with which he is charged, beyond a reasonable doubt.’” Apprendi, 

530 U.S. at 476-77 (quoting United States v. Gaudin, 515 U.S. 506, 

510 (1995)). The Supreme Court, in extolling the centuries-old 

foundation of the jury trial right, explained that:

“[T]o guard against a spirit of oppression and tyranny on 

the part of rulers,” and “as the great bulwark of [our] civil 

and political liberties,” 2 J. Story, Commentaries on the 
4

Constitution of the United States 540-541 (4th ed. 1873), 

trial 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 confirmed by the unanimous suffrage of twelve of [the 

defendant’s] equals and neighbours. . . .”

Apprendi, 530 U.S. at 477 (quoting Gaudin, 515 U.S. at 510-11) 

(citing 4 W. Blackstone, Commentaries on the Laws of England 

343 (1769)). It further explained why the “beyond a reasonable 

doubt” standard applies.

Equally well founded is the companion right to have the 

jury verdict based on proof beyond a reasonable doubt. . . 

. “‘It is now accepted in common law jurisdictions as the 

measure of persuasion by which the prosecution must 

convince the trier of all the essential elements of guilt.’” . 

. . [R]eliance on the “reasonable doubt” standard among 

common-law jurisdictions “‘reflect[s] a profound 

judgment about the way in which law should be enforced 

and justice administered.’” 

Apprendi, 530 U.S. at 478 (citations omitted). Given the “historic 

link” between the necessity of a jury’s verdict beyond a reasonable 

doubt and the sentence imposed, and the “consistent limitation on 

judges’ discretion to operate within the limits of the legal penalties 

provided,” the Supreme Court has noted the “novelty of a 

legislative scheme that removes the jury from the determination 

of a fact that, if found, exposes the criminal defendant to a penalty 

exceeding the maximum he would receive if punished according to 

the facts reflected in the jury verdict alone.” Id. at 482-83 (emphasis 

added).

The central point of Apprendi and Blakely is that any fact in 

a judicial proceeding—excepting the fact of a prior conviction—

that is used to increase a penalty for a crime beyond the relevant 

statutory maximum is unconstitutional because a jury, and not a 

judge, is entrusted with that responsibility under the Sixth 

Amendment. See 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 
5

jury, and proved beyond a reasonable doubt.”); see also Blakely, 542 

U.S. at 304 (“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). When 

faced with upward departures in sentencing, the Florida Supreme 

Court has held likewise. See Plott v. State, 148 So. 3d 90, 95 (Fla. 

2014) (“[W]e hold that upward departure sentences that are 

unconstitutionally enhanced in violation of Apprendi and Blakely

patently fail to comport with constitutional limitations, and 

consequently, the sentences are illegal under rule 3.800(a).”).

Application of Section 775.082(10), Florida Statutes

Given the momentous role of the jury in our country’s legal 

history, and the clarity of the stated principle in Apprendi and 

Blakely that judicial fact-finding is no substitute for jury factfinding if used for sentencing beyond a relevant statutory 

maximum, we conclude that the last sentence of subsection (10) 

violates this principle as applied to Booker. It empowered precisely 

what Apprendi and Blakely condemn: giving a trial judge the 

power to make factual findings independent of the jury (here, 

about future public dangerousness) that are used to increase an 

offender’s sentence beyond the maximum allowable by the “facts 

reflected in the jury verdict alone.” Blakely, 542 U.S. at 303. As 

applied to Booker, the result is that, rather than be subject to a 

maximum of up to a year in a county jail, he is sent to state prison 

for four years—based solely on factual findings as to his potential 

for future dangerousness upon which only a judge, not a jury, has 

passed.

The Supreme Court’s unequivocal language in Blakely drew a 

clear-cut line as to what constitutes the relevant statutory 

maximum sentence for Sixth Amendment purposes: it is the 

maximum sentence that could be imposed “solely on the basis of 

the facts reflected in the jury verdict or admitted by the defendant.” 

Id. The Supreme Court italicized this language to make an 

enduring point: the statutory maximum sentence is determined 

solely upon jury-verdict facts (or those admitted to by the offender).
6

For instance, in Blakely, the offender “was sentenced to more 

than three years above the 53-month statutory maximum of the 

standard range because he had acted with ‘deliberate cruelty.’” Id. 

This was done even though the “facts supporting that finding were 

neither admitted by petitioner nor found by a jury.” Id. In rejecting 

the State’s argument that a higher statutory maximum was 

appropriate, the Supreme Court said:

Our precedents make clear, however, that the “statutory 

maximum” for Apprendi purposes is the maximum 

sentence a judge may impose solely on the basis of the 

facts reflected in the jury verdict or admitted by the 

defendant. . . . In other words, the relevant “statutory 

maximum” is not the maximum sentence a judge 

may impose after finding additional facts, but the 

maximum he may impose without any additional 

findings. 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.

Id. at 303-04 (citations omitted; italics in original, bold added). 

What’s “relevant” for Sixth Amendment purposes is not the 

maximum sentence a statute may authorize with additional factfinding; it is what may be imposed without the judge making her 

own findings.

Applying the bolded language of Blakely to this case, “the 

relevant ‘statutory maximum’ is not the maximum sentence a 

judge may impose after finding additional facts [i.e., five years of 

state imprisonment based on additional judicial findings of 

potential future dangerousness], but the maximum he may impose 

without any additional findings [i.e., up to one year in county jail].” 

A jury verdict alone does not authorize an enhancement of an 

offender’s sentence beyond a nonstate sanction. That’s because 

subsection (10) requires additional judge-made fact-finding about 

an offender’s potential future dangerousness—upon which no jury 

ever passes—to make this enhancement. Stated differently, the 

only path to imposition of a state prison sanction that exceeds the 

statutory nonstate maximum is via judicial fact-finding with no 
7

jury involvement or input in the process. To make this point, 

imagine if the trial judge sentenced Booker to four years in prison 

without making the additional factual findings of potential future 

dangerousness; he’d be reversed. Standing alone, a jury verdict—

or an offender’s plea—authorizes at most a nonstate sanction 

capped at up to one year in county jail, which is the “relevant” 

statutory maximum for Apprendi purposes.

The view that a jury’s verdict alone—no matter the elements 

of the charged offense—authorizes a state prison sentence up to a 

maximum of five years1 overlooks the clear language of Supreme 

Court precedent, and is based on two misconceptions. First, the 

current statutory framework must be analyzed as it is, not as it 

 1 We disagree with the Fifth District that a jury verdict by 

itself authorizes a state sanction of up to five years of 

imprisonment, which it deems the relevant statutory maximum for 

Apprendi purposes. Brown v. State, 233 So. 3d 1262, 1264, 1265 

(Fla. 5th DCA 2017) (Brown’s “sentence [of three years in prison] 

was fully authorized by the jury verdict” and “the jury’s verdict 

authorized the trial court to sentence Appellant to five years in 

state prison before the trial judge considered the additional 

findings contemplated by section 775.082(10).”). We cannot 

reconcile how a jury’s finding of guilt on the petit theft charge in 

Brown authorized anything other than a nonstate sanction, future 

dangerousness not being an element of the jury’s verdict. We also 

do not see how section 775.082(10) establishes a “formula” that 

contains “factors” that an offender must satisfy to avoid a state 

sanction. Offenders are not required to plead or qualify for a 

nonstate sanction; to the contrary, the Legislature has mandated 

that trial judges “must” impose one. And we cannot accept that 

section 775.082(10) as a whole “create[s] an entitlement to 

mandatory mitigation for those offenders who satisfy both 

criteria,” i.e., less than 22 points and proof that they pose no public 

danger; thereby shifting the onus onto offenders to disprove to a 

trial judge’s satisfaction that they pose a future danger to the 

public. Id. at 1264. Finally, we disagree that “Section 775.082(10) 

never increases an offender’s sentence” and, instead, “reduces the 

sentence from a five-year maximum in state prison to a non-state 

sanction.” Id. at 1265. We view it as operating in exactly the 

opposite way (as did the State in Booker’s case).
8

existed prior to subsection (10)’s addition. Viewed this way, a jury 

verdict alone would have permitted up to a five-year sentence 

under the statutory framework that existed before subsection (10) 

was added in 2009. The penalty for a third-degree felony was 

capped at a state prison sanction of five years, which was the 

relevant “statutory maximum” for Apprendi purposes at that time. 

Subsection (10) markedly changed the status quo, however, by 

shifting incarcerative sentences of this broad category of felons to 

county jails, mandating that a trial judge “must sentence the 

offender to a nonstate prison sanction.” A jury’s verdict in the era 

before enactment of subsection (10) may have authorized up to five 

years in prison, but that same verdict post-enactment does not,

without additional fact-finding by trial judges as to offenders’ 

future dangerousness.

Second, the Legislature could have worded subsection (10) in 

a way that authorized a jury’s verdict to permit a statutory 

maximum for Apprendi purposes of five years of imprisonment, but 

it would also have to concurrently allow for downward departures 

to lesser nonstate sanctions for non-dangerous offenders via 

additional judicial fact-finding to achieve its policy goals. It did not 

do so, for good reason, as the following illustration shows:

If the total sentence points are 22 points or fewer, the 

court must sentence the offender to a state sanction up to 

five years. However, if the court makes written findings 

that a nonstate prison sanction would not present a 

danger to the public, the court may sentence the offender 

to a nonstate prison sanction pursuant to this section.

Under this type of statutory language, a jury verdict would 

authorize a state prison sentence up to five years, making it the 

relevant statutory maximum for Apprendi purposes. But rather 

than hold sporadic hearings where trial judges enhance the 

sentences of low-point offenders deemed to be potentially 

dangerous as currently occurs, this statute would require 

hundreds, if not thousands, of judicial fact-finding hearings 

annually to ferret out those offenders deemed to be non-dangerous

to be sentenced to nonstate prison sanctions, creating a disruptive 

and expensive sentencing morass.
9

Put simply, section 775.082(10)’s enactment shifted the 

sentencing paradigm markedly, and in the process eliminated the 

ability of a jury verdict alone to impose a state prison sanction. 

Protection of the jury trial right does not hamstring the 

Legislature’s ability to achieve its policy goals, however. For 

example, if section 775.082(10) required a jury—rather than a 

judge—to make factual findings about an offender’s potential for 

future dangerousness, the check on personal liberty that the Sixth 

Amendment’s right to a jury trial provides would be retained. A 

simple legislative fix might be to amend subsection (10) to say: “. . 

. if the court a jury makes written findings that a nonstate prison 

sanction could present a danger to the public, the court may 

sentence the offender to a state correctional facility pursuant to 

this section.” Courts, except by rewriting a clearly-worded statute, 

cannot achieve this policy result.

As to Booker, the Sixth Amendment breach becomes evident 

because subsection (10) permitted the trial judge to “inflict[] 

punishment that the jury’s verdict alone does not allow” via factual 

findings on future dangerousness that are not “essential to the 

punishment” of the underlying offense. Blakely, 542 U.S. at 296.

What happened to Booker is no different from what happened in 

Apprendi, where the defendant’s sentence was enhanced after an 

evidentiary hearing and based solely on independent judicial factfinding under a preponderance of the evidence standard that 

Apprendi acted with racial bias. 530 U.S. at 471. Similarly, 

Blakely’s sentence was enhanced based on judicial fact-finding 

that he acted with “deliberate cruelty” in the commission of his 

crime. Blakely, 542 U.S. at 298. That Booker’s sentence was 

enhanced on a judicial finding of future dangerousness—rather 

than on racial bias or as being deliberate cruelty as in Apprendi

and Blakely, respectively—matters not because in each situation 

the punishment inflicted is based on facts a jury’s verdict alone 

would not allow. Imagine if section 775.082(10) were revised to say 

the following:

If the total sentence points are 22 points or fewer, the 

court must sentence the offender to probation only. 

However, if the court makes written findings that: (a) the 

offender acted with racial bias; (b) the act committed was 

done with deliberate cruelty; or (c) probation could 
10

present a danger to the public, the court may sentence 

the offender to a state correctional facility for up to five 

years.

Would there be any doubt it violates the Sixth Amendment? 

Subsections (a) and (b) violate Apprendi and Blakely, respectively, 

so why wouldn’t subsection (c)? Blakely answered that question, 

stating:

Whether the judge’s authority to impose an enhanced 

sentence depends on finding a specified fact (as in 

Apprendi), one of several specified facts (as in Ring [v. 

Arizona, 536 U.S. 584 (2002)]), or any aggravating fact 

(as here), it remains the case that the jury’s verdict alone 

does not authorize the sentence. The judge acquires that 

authority only upon finding some additional fact.

Blakely, 542 U.S. at 305 (emphasis added). As to Booker, the trial 

judge acquired the authority to enhance his sentence only upon 

making additional factual findings required by subsection (10), 

making clear that a sentence enhancement for potential public 

danger under (c) is the same type of enhancement of a sentence 

that Apprendi/Blakely condemn as constitutionally unacceptable. 

Moreover, the claim that section 775.082(10) is a so-called 

“mitigation statute” that neuters the force of Apprendi and Blakely

is not well-taken for numerous reasons. First of all, nothing in the 

statute “mitigates” a defendant’s sentence; instead, it creates a 

process solely and exclusively for enhancing a defendant’s sentence 

from a mandatory nonstate sanction to a state sanction based 

exclusively on judge-made factual findings as to future 

dangerousness. It is a one-way ratchet, always upwards, with no 

jury involvement whatsoever.2

 2 We disagree with the Fourth District’s conclusion that 

subsection (10) “was a mandated mitigation of an otherwise 

available maximum penalty.” Porter v. State, 110 So. 3d 962, 963 

(Fla. 4th DCA 2013) (emphasis added). The maximum penalty of 

five years, however, is not “available” without the additional 

judicial fact-finding required under that subsection. We also 

disagree that subsection (10) gives trial courts “discretion . . . to 
11

Indeed, the State, at sentencing, sought what it agreed was 

an “upward departure” in this case, which is how our supreme 

court characterizes subsection (10). Bryant v. State, 148 So. 3d 

1251, 1258 (Fla. 2014) (“The practice of upward departure 

sentences was reinstated in 2009, when the Legislature enacted 

subsection (10) of section 775.082, Florida Statutes . . . .”). It bears 

emphasis that Florida’s Criminal Punishment Code, enacted in the 

late 1990s:

has, in almost every aspect, eliminated the “upward 

departure” of the former determinate guidelines 

sentencing schemes and replaced it with an 

indeterminate sentencing scheme in which the judge is 

free to sentence up to the statutory maximum without 

having to provide written reasons for doing so. . . . A 

statutory exception to indeterminate sentencing under 

the [Code] is found in section 775.082(10), Fla. Stat.

See 16 Fla. Prac., Sentencing § 6:48 (2017-2018 ed.); see generally

Ch. 97-194, Laws of Florida (effective October 1, 1998). The Code, 

with subsection (10) as the only “upward departure” exception,3

provides for indeterminate sentencing up to statutory maximums 

along with mitigation or downward departures under specified 

circumstance, an example being the “prison diversion program” by 

which “a court may divert from the state correctional system an 

offender who would otherwise be sentenced to a state facility by 

 

adhere to the Criminal Punishment Code in lieu of the mandated 

mitigation[.]” Id. (emphasis added). Instead, we see subsection (10) 

as authorizing trial judges to depart from the mandatory nonstate 

prison sanctions that same subsection compels.

3 In Butler v. State, 838 So. 2d 554, 556 (Fla. 2003), the 

supreme court held that when the statutory maximum sentence as 

provided in section 775.082 is “exceeded by the lowest permissible 

sentence under the code,” the latter “becomes the maximum 

sentence which the trial judge can impose.” Unlike here, no judgeimposed upward departure was at issue in Butler, only the 

harmonizing of sections 775.082 and 921.0024(2), to determine the 

maximum sentence permissible.
12

sentencing the offender to a nonstate prison sanction as provided 

[therein].” § 921.00241(2), Fla. Stat. (2018). In contrast to 

subsection (10), this type of sentencing statute, which allows 

diversion or reduction of a defendant’s sentence based on judicial 

fact-finding as to specified ameliorative factors, avoids a Sixth 

Amendment problem because it works in the opposite direction of 

what Apprendi and Blakely condemn; it mitigates versus enhances 

a sentence based on facts not passed upon by a jury.4 The Sixth 

Amendment protects a defendant from an enhanced sentence, not 

a reduced one, when based solely on additional judicial factfinding.

In addition, the Supreme Court has already rejected 

arguments that section 775.082(10) is merely a “mitigation” 

statute with no Sixth Amendment implications. One argument is 

“that the jury need only find whatever facts the legislature chooses 

to label elements of the crime, and that those it labels sentencing 

factors—no matter how much they may increase the punishment—

may be found by the judge.” Blakely, 542 U.S. at 306. Applied here, 

the parallel argument is that a jury verdict, no matter what the 

 4 In addressing this point, the Court in Apprendi said:

Finally, the principal dissent ignores the distinction the 

Court has often recognized . . . between facts in 

aggravation of punishment and facts in mitigation. . . . If 

facts found by a jury support a guilty verdict of murder, 

the judge is authorized by that jury verdict to sentence 

the defendant to the maximum sentence provided by the 

murder statute. If the defendant can escape the statutory 

maximum by showing, for example, that he is a war 

veteran, then a judge that finds the fact of veteran status 

is neither exposing the defendant to a deprivation of 

liberty greater than that authorized by the verdict 

according to statute, nor is the judge imposing upon the 

defendant a greater stigma than that accompanying the 

jury verdict alone. Core concerns animating the jury and 

burden-of-proof requirements are thus absent from such 

a scheme.

530 U.S. at 490 n.18.
13

elements of the underlying crime may be, thereby authorizes an 

increased sentence based on an offender’s potential future 

dangerousness as determined solely by a judge under section 

775.082(10). Concluding this type of argument leads to an “absurd 

result,” the Court gave the example “that a judge could sentence a 

man for committing murder even if the jury convicted him only of 

illegally possessing the firearm used to commit it—or of making an 

illegal lane change while fleeing the death scene.” Id.

The analog as applied to Booker is that the Legislature, by 

making an offender’s potential future dangerousness a sentencing 

factor solely for the judge’s determination, has removed the jury 

entirely from the fact-finding process upon which an enhanced 

sentence is based. Under these circumstances, where the jury is 

sidelined and judicial power garrisoned, the Court concluded that 

the “jury could not function as circuitbreaker in the State’s 

machinery of justice if it were relegated to making a determination 

that the defendant at some point did something wrong, a mere 

preliminary to a judicial inquisition into the facts of the crime the 

State actually seeks to punish.” Id. at 306-07. This point is 

reinforced here: the State’s invocation of subsection (10) triggers 

judge-only fact-finding without jury involvement even though far 

more serious punishment is to be inflicted. It is precisely in these 

circumstances, where a potentially lengthy judicial sentencing 

enhancement is unmoored from a jury’s verdict, that the Sixth 

Amendment must intercede.

Another argument is that legislatures may “establish legally 

essential sentencing factors within limits—limits crossed when, 

perhaps, the sentencing factor is a ‘tail which wags the dog of the 

substantive offense.’ . . . What this means in operation is that the 

law must not go too far—it must not exceed the judicial estimation 

of the proper role of the judge.” Id. at 307 (citation omitted). 

Rejecting this “too far” standard as overly subjective, manipulable, 

and unmanageable, the Supreme Court concluded that Apprendi’s 

“bright line rule” applied because it was implausible “that the 

Framers would have left definition of the scope of jury power up to 

judges’ intuitive sense of how far is too far. We think that claim 

not plausible at all, because the very reason the Framers put a 

jury-trial guarantee in the Constitution is that they were unwilling 

to trust government to mark out the role of the jury.” Id. at 308. 
14

Applied here, section 775.082(10)’s substitution of the judge—

and the elimination of the jury—as the fact-finder for enhanced 

sentencing based on future potential dangerousness—violates 

Apprendi’s bright line rule. See Apprendi, 530 U.S. at 490 (“[I]t is 

unconstitutional for a legislature to remove from the jury the 

assessment of facts that increase the prescribed range of penalties 

to which a criminal defendant is exposed.”). The Legislature 

intended and clearly stated that every eligible offender with 

twenty-two sentence points or less faces only the lesser panoply of 

nonstate punishments, capped at up to one year in county jail. 

Trial judges have broad discretion to sentence offenders in this 

category to probation, community control, or up to a year in the 

county jail. Id. at 481 (noting that “judges in this country have long 

exercised discretion of this nature in imposing sentence within 

statutory limits in the individual case”). For upward 

enhancements, however, the Legislature clearly stated that only 

the “court”—not the jury—is authorized to make “written findings 

that a nonstate prison sanction could present a danger to the 

public,” thereby precluding the jury’s traditional role. Only the 

Legislature, not this Court, has the power to rewrite the statute to 

conform to the Sixth Amendment.5

The use of scoresheets—whose assessment of points draw 

upon facts found by a jury’s verdict, are based on the fact of prior 

convictions, or are admitted by the offender—complies with 

Apprendi and Blakely. Id. (stating “that nothing in this [Nation’s 

common law] history suggests that it is impermissible for judges 

to exercise discretion-taking into consideration various factors 

relating both to offense and offender-in imposing a judgment

within the range prescribed by statute”); see Alleyne v. United 

States, 570 U.S. 99, 116 (2013) (“Our ruling today does not mean 

that any fact that influences judicial discretion must be found by a 

jury. We have long recognized that broad sentencing discretion, 

informed by judicial factfinding, does not violate the Sixth 

Amendment.”); Fleming v. State, 139 So. 3d 902, 903 (Fla. 1st DCA 

 5 We agree with the dissent in Brown, which was disinclined 

to rewrite the statute and, instead, would have applied it 

consistent with the Sixth Amendment principles expressed in 

Apprendi/Blakely and their progeny. See Brown, 233 So. 3d at 

1266-68 (Cohen, C.J., dissenting).
15

2006) (assessment of points for “severe victim injury” did not 

violate Apprendi because jury found defendant guilty of 

aggravated battery that caused great bodily harm, permanent 

disability, or permanent disfigurement), approved, 61 So. 3d 399 

(Fla. 2011); see also Moss v. Sec’y, Dep’t of Corr., No. 8:10-cv-1919-

T-17TBM, 2011 WL 1575384, at *1, *4 (M.D. Fla. Apr. 26, 2011) 

(noting that “the jury’s verdict did not lack the necessary finding 

to support the scoring of severe injury points on the scoresheet, 

and neither Apprendi nor Blakely apply”). The Second District 

made this point in Behl v. State:

Under the Supreme Court’s interpretation of the Sixth 

Amendment, victim injury thus can be used as a 

sentencing factor only if its existence is determined by the 

jury or admitted by the defendant. Accordingly, a 

guidelines sentence imposed at a level that is only 

permissible because victim injury points were assessed 

will exceed the “statutory maximum” for Apprendi

purposes if the victim injury points were not based on a 

determination made by the jury or on an admission of the 

defendant.

898 So. 2d 217, 221 (Fla. 2d DCA 2005) (reversing sentence under 

Apprendi where scoresheet reflected greater points assigned for 

sexual penetration when only sexual contact could be established 

by jury’s verdict). As such, the use of scoresheets (that must comply 

with Apprendi) to set a statutory maximum does nothing to 

undermine Apprendi’s holding that enhancing a sentence via 

additional judicial fact-finding violates the Sixth Amendment. It 

would be an odd and incongruous result otherwise.6

 6 We disagree with the Fifth District’s view that a “jury does 

not determine an offender’s score and will rarely make all of the 

other scoresheet findings.” Brown, 233 So. 3d at 1265. Rather, we 

read Supreme Court precedent and related Florida caselaw as 

establishing that jury findings must undergird the computation of 

sentence points else they violate the Sixth Amendment as 

construed by Apprendi and Blakeley (excepting prior convictions 

and facts admitted by a defendant).
16

That is because Apprendi and Blakely protect the Sixth 

Amendment’s right of jury trial, which:

is no mere procedural formality, but a fundamental 

reservation of power in our constitutional structure. 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. . . . Apprendi carries 

out this design by ensuring that the judge’s authority to 

sentence derives wholly from the jury’s verdict. Without 

that restriction, the jury would not exercise the control 

that the Framers intended.

Blakely, 542 U.S. at 305-06. The last sentence in subsection (10) is 

inconsistent with this constitutional design, displacing the jury’s 

fundamental role and replacing it with judicial power unyoked 

from jury control. The jury’s role as an equilibrating force between 

the power of the State and the accused is at its apex when more 

serious punishments are in play. Viewed in this light, subsection 

(10) exacerbates an acute Sixth Amendment problem: the jury is 

relieved of its traditional fact-finding role, but only when enhanced 

sentences are to be meted out. As applied to Booker, whose 

punishment was increased exponentially based on additional 

judicial findings (not even beyond a reasonable doubt), the statute 

excised the jury’s “control in the judiciary” and negated the 

principle that “the judge’s authority to sentence derives wholly 

from the jury verdict.” 

That Apprendi excludes from jury fact-finding the “fact of a 

prior conviction” does not save subsection (10)’s constitutionality 

as applied to Booker. First of all, the “last sentence of subsection 

(10) is not a violent career criminal statute, a habitual offender 

statute, or the like that excepts it from Apprendi; instead, it 

establishes a future dangerousness test based on additional factfinding by a judge.” Woods, 214 So. 3d at 808 (Makar, J., 

concurring in affirmance). 

It is one thing to enlarge a penalty where Congress or the 

State of Florida has made a prior conviction a central 

feature of a crime; it is another to allow a trial judge to 

engage in wide-ranging fact-finding—constitutionally 
17

entrusted to a jury—about an offender’s potential for 

being a “danger to the public” to support an enhanced 

penalty. And it is yet another to allow prior convictions, 

which already underlie the arithmetic determination of 

points for sentencing scoresheet purposes in Florida, to 

be used duplicatively to increase a sentence without jury 

involvement.

Id. at 809. Had the Legislature decided that the punishment for an 

offender like Booker could be increased based solely on the “fact of 

a prior conviction,” it could have done so via a repeat/habitual 

offender or career criminal type of statute that Apprendi and 

Blakely allow. See, e.g., Almendarez-Torres v. United States, 523 

U.S. 224 (1998). Prior convictions are established facts and thereby 

objective grounds for these types of legislatively-enhanced 

sentences that need not be based on independent fact-finding by a 

jury. Legislatively-enhanced punishment for a repeat or habitual 

offender based on the historical fact of the offender’s past

convictions differs markedly from a judge—entirely independent 

of the jury—extrapolating beyond prior convictions and 

prognosticating about an offender’s future dangerousness; doing so 

is a step beyond what Apprendi permits. See Apprendi, 530 U.S. at 

496 (noting that “there is a vast difference between accepting the 

validity of a prior judgment of conviction entered in a proceeding 

in which the defendant had the right to a jury trial and the right 

to require the prosecutor to prove guilt beyond a reasonable doubt, 

and allowing the judge to find the required fact under a lesser 

standard of proof”).

Second, subsection (10) places no limits on the evidence a trial 

judge may consider in making the factual finding that an offender 

may pose a “danger to the public.” Many factors other than the fact 

of prior convictions are germane in determining future 

dangerousness.

Adjudicating whether an offender “could present a 

danger to the public” absent a nonstate sanction involves 

a multitude of factors, only one of which is whether the 

offender has a criminal record for which a prior conviction 

is but a data point. Reed, 192 So. 3d at 646 (providing a 

non-exhaustive list of factors including criminal history, 
18

victim injury, and propensity for one to commit future 

crimes). Faced with substantial enhancement of his 

sentence, no defendant (through effective counsel) would 

limit the evidentiary review required under subsection 

(10) to only his prior convictions without presenting other 

evidence in mitigation. 

Woods, 214 So. 3d at 808-09 (Makar, J., concurring in affirmance) 

(footnote omitted). Whether an offender poses a “danger to the 

public” is a complex factual determination that far exceeds the 

type of legislatively-defined sentencing systems that increase 

punishment solely on the fact of prior criminal convictions.

Here, the trial judge had no statutory authority to elevate 

Booker’s sentence to state prison simply because Booker had prior 

convictions. And he considered matters other than prior 

convictions as well, such as whether Booker was working, lacked a 

driver’s license, failed to show up for his trial date, wore 

camouflage overalls to court, and so on, in assessing his future 

dangerousness. And the sole witness, the investigator from whom 

Booker had fled, merely recounted the details of Booker eluding 

her in a motor vehicle, which are only the facts inherent in the 

crime. Reed, 192 So. 3d at 647 (stating that “a sentencing court’s 

finding of an offender’s danger to the public must be more than the 

recitation of acts that are inherent to the crimes for which the 

defendant was convicted”).

As to Booker, the application of subsection (10) in this case 

went beyond the fact of his prior convictions and resulted in 

judicial fact-finding—entirely independent of the jury—to impose 

a sanction that exceeded the relevant maximum sentence for 

Apprendi purposes. Because the trial judge’s factual findings—and 

thereby Booker’s enhanced sentence—were neither based on a jury

finding that he poses a “danger to the public” nor limited to only 

the fact that Booker had prior convictions, the second sentence of 

subsection (10) is unconstitutional under the Sixth Amendment as 

applied to Booker.
19

Harmless Error/Remedy

Two questions remain: harmless error and remedy. The 

harmless error question asks if the constitutional error in using 

judge-made findings rather than jury-made findings is harmless 

beyond a reasonable doubt as applied to Booker’s sentencing. If so, 

our inquiry ends; if not, we turn to the remedy question, which 

asks, given that the second sentence in subsection (10) is 

unconstitutional as applied to Booker, what remedy would the 

Legislature have wanted in resentencing Booker.

As to the first question, both the Supreme Court and our 

supreme court have held that Apprendi/Blakely errors can be 

harmless. See Neder v. United States, 527 U.S. 1, 15 (1999) (noting 

that the “omission of an element [in a jury instruction] is an error 

that is subject to harmless-error analysis”); Plott, 148 So. 3d at 95 

(“A claim of error under Apprendi and Blakely is subject to a 

harmless error analysis.”); Galindez v. State, 955 So. 2d 517, 524 

(Fla. 2007) (“[W]e hold that harmless error analysis applies to 

Apprendi and Blakely error.”); see also Washington v. Recuenco, 

548 U.S. 212, 220 (2006) (holding that Blakely sentencing factor 

error not structural and thereby subject to harmless error 

analysis).

The harmless error test announced in Neder was adopted by 

our supreme court in Galindez: “Is it clear beyond a reasonable 

doubt that a rational jury would have found the defendant guilty 

absent the error?” Neder, 527 U.S. at 18. 

A reviewing court making this harmless-error inquiry 

does not, as Justice Traynor put it, “become in effect a 

second jury to determine whether the defendant is 

guilty.” Rather a court, in typical appellate-court fashion, 

asks whether the record contains evidence that could 

rationally lead to a contrary finding with respect to the 

omitted element.

Id. at 19 (citations omitted). Neder involved the omission of an 

element of a crime, but its analysis has been extended to the 

sentencing context. Galindez, 955 So. 2d at 523 (“[F]or purposes of 

our harmless error analysis the issue is whether the failure to have 
20

the jury make the victim injury finding . . . contributed to the 

conviction or sentence.”) (emphasis added) (citing Recuenco, 548 

U.S. at 220 (“[W]e have treated sentencing factors, like elements, 

as facts that have to be tried to the jury and proved beyond a 

reasonable doubt.”)). In Galindez, for example, the supreme court 

concluded that the record evidence demonstrated beyond a 

reasonable doubt that a rational jury (versus the trial judge who 

imposed additional points towards sentencing) would conclude 

that the act of sexual penetration occurred, rendering the 

Apprendi error harmless. 955 So. 2d at 523.

As applied to Booker’s sentencing in this case, the harmless 

error test requires that we ask whether there is record evidence 

“that could rationally lead” a jury to conclude—contrary to the trial 

court—that Booker did not present a danger to the public if he 

were given a nonstate prison sanction, such as up to a year in 

county jail plus probation or community control thereafter. If a 

“reasonable possibility” exists that the error affected the 

sentencing, such that we’re unable to conclude “beyond a 

reasonable doubt that the error did not affect” sentencing, the 

“error is by definition harmful.” State v. DiGuilio, 491 So. 2d 1129, 

1139 (Fla. 1986).

Booker is no model citizen, having a significant ongoing 

criminal record that dates to his youth, and enough sentence 

points to flirt with the statutory cutoff of 22 points. The nature of 

Booker’s past offenses, his lack of deportment, and his straddling 

the statutory cutoff make him a less sympathetic offender 

compared to the homeless mom in Woods, who had 8.3 sentence 

points and was stealing food to feed her kids. Nonetheless, the 

evidence cannot be said to be so compelling that a rational jury 

would necessarily conclude that Booker presented a danger to the 

public if subject to only a nonstate prison sanction of up to one year 

in the county jail coupled with significant community control and 

probation, which the State sought as an alternative to a state 

prison sanction. A jury could conclude, as Booker’s attorney 

argued, that his client’s offense—fleeing and eluding police 

officers—coupled with his deportment and record, were 

insufficient to demonstrate that he posed a continuing threat of 

danger to the community that justified state prison time. A jury 

might conclude that a year in county jail followed by significantly 
21

lengthy post-release restrictions would provide adequate 

protection to the public, relieving the State of the financial burden 

of incarcerating Booker for that time period. Perhaps most juries 

would find Booker posed a public danger that justified state prison, 

but the question is whether any rational one might not and deem 

county jail and lengthy probation/community control enough. 

Because it is not “clear beyond a reasonable doubt” that rational 

juries would always conclude that Booker deserved state prison 

rather than a nonstate prison sanction, the constitutional error is 

not harmless.

The next question is what resentencing remedy applies to 

Booker. Under the circumstances, we ordinarily would invalidate 

Booker’s sentence and simply remand for resentencing under that 

part of the statute that remains valid, which would be the 

imposition of a nonstate prison sanction under the authority of the 

first sentence of subsection (10). But, as the Supreme Court’s 

opinion in Booker demonstrates, the remedy in an as-applied 

constitutional challenge does not necessarily result in this default 

remedy, i.e., where what remains of a statute is rotely applied.

Instead, the Court in Booker was guided in its remedial 

determination by legislative intent, which focused on the 

determination of “what ‘Congress would have intended’ in light of 

the Court’s constitutional holding.” Booker, 543 U.S. at 246. In 

other words, “[w]ould Congress still have passed” the valid sections 

“had it known” about the constitutional invalidity of the other 

portions of the statute?” Denver Area Educ. Telecomm.

Consortium, Inc. v. FCC, 518 U.S. 727, 767 (1996) (plurality 

opinion) (internal quotation marks omitted). Given the 

constitutional violation in Booker, the Court was left with 

determining which of the competing “remedial approaches is the 

more compatible with the Legislature’s intent as embodied in the 

1984 Sentencing Act.” 543 U.S. at 246.

This question sharply divided the Court. The majority 

concluded that severing the mandatory nature of the sentencing 

guidelines eliminated the constitutional infirmity “while 

maintaining a strong connection between the sentence imposed 

and the offender’s real conduct—a connection important to the 

increased uniformity of sentencing that Congress intended its 
22

Guidelines system to achieve.” Id. Rejected was the dissenters’ 

remedy, which was to engraft a “jury trial” requirement into the 

sentencing system, thereby “preventing the sentencing court from 

increasing a sentence on the basis of a fact that the jury did not 

find (or that the offender did not admit).” Id. Both views, of course, 

had merit, each envisioning the realization of legislative intent 

differently.

Similarly, we must decide which remedial option the 

Legislature would have wanted if the last sentence of subsection 

(10) were to be deemed unconstitutional in its application. The 

most apparent options are: (a) engrafting a “jury trial” 

requirement into the last sentence of subsection (10) and 

remanding for proceedings under a judicially-revised process; (b)

construing “must” in the first sentence of subsection (10) to mean 

“may” thereby making compulsory nonstate prison sanctions noncompulsory and raising the relevant statutory maximum sentence 

to a state prison term; (c) remanding for resentencing under the 

first sentence of subsection (10) only; or (d) remanding for 

resentencing under the prior version of the sentencing statute, i.e., 

statutory revival.

We reject option (a) for much the same reasons that the Court 

in Booker did: no indication exists that the Legislature would have 

wanted a judicially-imposed jury trial requirement given the clear 

language of the statute. To do so would take away the role that the 

Legislature assigned solely to the judiciary and make more 

complex and costly a sentencing process it sought to streamline; it 

may have wanted an impassive judge rather than an impassioned 

jury deciding the public danger question. Plus, judicially rewriting

a statute, thereby creating a different sentencing procedure, risks 

its own collateral consequences that create known and unforeseen 

burdens and uncertainties.

Option (b), which is akin to what the majority applied in 

Booker, has the virtue of solving the Apprendi problem by 

completely recasting subsection (10) as an entirely permissive 

sentencing statute, eliminating compelled nonstate prison 

sanctions and thereby raising the relevant statutory maximum for 

Apprendi purposes to a five-year maximum. But the principal 

purpose of the 2009 sentencing revision was to compel judges to 
23

sentence offenders to nonstate prison sanctions thereby shifting 

incarceration costs from the State’s prison system to the counties. 

Were we to construe “must” to mean “may” (or even “should”), we

would be turning the raison d’être of the statute into a mere wish 

or velleity, and thereby impeding the legislative plan. Like Booker,

which excised a portion of the federal statute to achieve a 

constitutional result, transforming a clear word of compulsion 

(“must”) into one of permission (“may”) may achieve a similar 

constitutional result, but leaves the lingering question of whether 

the remedial impact comes close to what the Legislature 

envisioned. Because we are focused solely on the appropriate 

remedy in Booker’s case, however, we are disinclined to take this 

momentous step if another less drastic remedy is available as to 

Booker.

Option (c) is problematic because it would retain only one leg 

of the two-legged sentencing structure in subsection (10), making 

the application of severance principles useful. Booker, 543 U.S. at 

247 (“[S]ometimes severability questions (questions as to how, or 

whether, Congress would intend a statute to apply) can arise when 

a legislatively unforeseen constitutional problem requires 

modification of a statutory provision as applied in a significant 

number of instances.”). The severance test states:

The rule is well established that the unconstitutionality 

of a portion of a statute will not necessarily condemn the 

entire act. When a part of a statute is declared 

unconstitutional the remainder of the act 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.

Cramp v. Bd. of Pub. Instruction of Orange Cty., 137 So. 2d 828, 

830 (Fla. 1962); see also Schmitt v. State, 590 So. 2d 404, 415 (Fla. 
24

1991) (“The Cramp test is a well established component of Florida 

law. It has been applied repeatedly in countless Florida cases.”).

As applied here, factors (1), (2), and (4) are met: the first and 

second sentences of subsection (10) can be separated, the 

legislative purpose underlying the valid portion, i.e., the first 

sentence, can be accomplished without the second sentence; and 

the first sentence can stand as an “act complete in itself” without 

the second sentence.

We conclude, however, that “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.” Cramp, 

137 So. 2d at 830. 

The most reasonable conclusion is that the Legislature 

passed subsection (10) as a unified, inseparable whole 

and would not have wanted severance of its component 

parts. Subsection (10) reflects a compromise between two 

related goals: the fiscal goal of reducing state prison 

expenses and the public safety goal of ensuring that 

violent offenders be subject to state prison sentences if 

nonstate sanctions don’t suffice. Striking only the last 

sentence, which would result in nonstate sentences for all 

offenders no matter their dangerousness, serves the 

former goal at the expense of the latter. No indication 

exists that the Legislature would have down-graded 

sentences within this classification (from up to five years 

to nonstate sentences) without the concurrent potential 

for violent offenders to be placed in the state prison 

system. Stated differently, it cannot be said that the 

Legislature would have passed only the first sentence in 

subsection (10) but not the last; the two are intertwined.

Woods, 214 So. 3d at 810 (Makar, J., concurring in affirmance). 

Because we conclude that severance of subsection (10)’s sentences 

would run counter to legislative intent, we reject option (c), which 

would require that Booker be sentenced to a nonstate prison 

sanction only. The Legislature wanted a safeguard for truly violent 

offenders to be subject to possible state prison sentences, which 

this option would not offer.
25

Given that subsection (10)’s two sentences are inseparable, 

option (d) presents the remedy of statutory revival, which is to 

revert to the previous version of the sentencing statute, one that 

authorized trial judges to impose any term of imprisonment up to 

five years for the class of offenders to which subsection (10) 

applied. See § 775.082, Fla. Stat. (2008); see also Crim. and Civ. 

Just. Comm. SB 1722 Staff Analysis (discussing the then-current 

sentencing options); see generally B.H. v. State, 645 So. 2d 987, 995 

(Fla. 1994) (“Florida law has long held that, when the legislature 

approves unconstitutional statutory language and simultaneously 

repeals its predecessor, then the judicial act of striking the new 

statutory language automatically revives the predecessor unless 

it, too, would be unconstitutional.”). 

Like option (b), this remedy would subject Booker on remand 

to the full range of sentencing options, from a nonstate prison 

sanction to a state prison sanction, including the four-year prison 

sentence he received. Conceivably, he might be resentenced to the 

sentence he currently serves, but that likelihood is uncertain and 

is no reason to reject this option out of hand. Instead, the 

sentencing judge would take into account the full range of 

sentencing factors—not merely the one-dimensional “public 

danger” inquiry that was the sole focus here—in determining an 

appropriate sentence for Booker, which could result in a lower 

sentence or, theoretically, a higher one. The former is more likely 

given that Booker’s current sentence is near the five-year 

maximum and a higher sentence might trigger vindictive 

sentencing principles. See Baxter v. State, 127 So. 3d 726 (Fla. 1st 

DCA 2013).

Finally, reverting to the prior sentencing laws as the remedy 

in Booker’s case does less systemic harm than would a potentially 

far-reaching judicial decree under option (a) (insert “jury” for 

“court”) or option (b) (i.e., that “must” really means “may”). 

Judicially rewording the statute is inadvisable where a more 

modest remedy is available as applied to Booker and the small 

number of offenders similarly situated. That said, trial judges and 

attorneys prospectively will justifiably wonder what to do in cases 

where the State seeks to enhance a sentence under the last 

sentence of subsection (10). Of course, the vast swath of cases will 

continue to result in nonstate prison sanctions under the first 
26

sentence of subsection (10); but what if an offender is one for whom 

the Legislature intended potentially enhanced punishment? In 

those cases, the prosecutor could do as federal prosecutors did postApprendi, which is to allege facts by information or indictment 

necessary to establish the basis for an enhanced sentence. Booker, 

543 U.S. at 277 (Stevens, J., dissenting in part) (“In many cases, 

prosecutors could avoid an Apprendi . . . problem simply by 

alleging in the indictment the facts necessary to reach the chosen 

Guidelines sentence.”). Doing so may provide the factual basis for 

a trial judge to pass upon whether a state prison sanction is 

appropriate. And, although defendants ordinarily have no reason 

to waive their jury trial right and subject themselves to an 

enhanced sentence under the second sentence in subsection (10), 

some might do so in this limited circumstance if they perceive that 

judicial fact-finding may be more beneficial than jury fact-finding 

on the facts alleged in the information nor indictment.

Conclusion

Because the last sentence of subsection (10) is 

unconstitutional as applied to Booker, and the violation is not 

harmless, the remedy is to invalidate Booker’s sentence and 

remand for resentencing under the prior version of the sentencing 

statute. Unlike Woods, who had been released from prison after 

serving her full term and before relief could be granted, Woods, 214 

So. 3d at 804, Booker remains incarcerated and thereby has a basis 

for resentencing. His four-year sentence is beyond the relevant 

statutory maximum under subsection (10) making his current 

sentence invalid.

We recognize that some of our colleagues view subsection (10) 

as presenting no Sixth Amendment issue. Woods, 214 So. 3d at 812 

(Osterhaus, J., concurring in affirmance) (stating that subsection 

(10) “does not have an Apprendi-related, Sixth Amendment 

problem. Apprendi prohibits judicial findings that increase a 

criminal penalty beyond the maximum authorized by a jury’s 

verdict. Here, § 775.082(10) does not allow courts to increase the 

punishment, but only affects the form of a defendant’s penalty, 

whether it will include prison time or not.”); id. at 819 (Winokur, 

J., concurring). And a majority on Fifth District panel recently 

upheld the constitutionality of section 775.082(10). Brown, 233 So. 
27

3d at 1262-66. For these reasons, and although mandatory 

jurisdiction in our supreme court exists in this case, art. V, § 

3(b)(1), Fla. Const.; State v. Robinson, 873 So. 2d 1205, 1207 (Fla. 

2004), we certify conflict with Brown and Porter and certify the 

following question of great public importance:

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?

REVERSED and REMANDED; CONFLICT CERTIFIED; QUESTION 

OF GREAT PUBLIC IMPORTANCE CERTIFIED.

ROBERTS, J., concurs; JAY, J., concurs in part and dissents in part 

with opinion.

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

JAY, J., concurring in part and dissenting in part.

I concur insofar as the majority concludes that the trial court’s 

imposition of a prison sentence under section 775.082(10), Florida 

Statutes, is unconstitutional under Apprendi v. New Jersey, 530 

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

However, I would find that section 775.082(10) is unconstitutional 

on its face for the reasons outlined in Judge Makar’s concurring 

opinion in Woods v. State, 214 So. 3d 803, 805-09 (Fla. 1st DCA 

2017). 
28

Furthermore, I would conclude that the sentencing error in 

this case is harmless because the proper remedy is to sentence 

Booker under the prior version of the statute, which gives the trial 

court unfettered discretion to sentence Booker up to the statutory 

maximum of five years in prison. I find it inconceivable that the 

court would sentence Booker to a lesser sentence than four years 

in prison under a statute that gives it even greater discretion to 

impose a prison sentence. To the extent the court might consider a 

longer sentence, this could raise concerns about vindictive 

sentencing. Because I conclude beyond a reasonable doubt that 

the trial court would impose the same sentence at resentencing, I 

dissent to the extent the majority remands for a new sentencing 

hearing.

_____________________________

Andy Thomas, Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Robert Quentin Humphrey, 

Assistant Attorney General, Tallahassee, for Appellee.