MARLENA CHRISTINE WOODS , Appellant,

v. STATE OF FLORIDA , Appellee

. IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CASE NO. 1D 15

- 4042

__ _______________ __ ____________/ Opinion filed July 20, 2016. An appeal from the Circuit Court for Duval County

. Russell L. Healey , Judge

. Nancy A. Daniels, Public Defender, Brenda L. Roman, Assistant Public Defender, Tallahassee , for Appellant. Pamela J o Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief

- Tallahassee, Criminal Appeals, Quentin Humphrey, Assistant Attorney General, Tallahassee , for Appellee.

B.L. THOMAS, J. Appellant Marlena Woods appeals an order of the circuit court senten cing her to an upward departure of 18 months in state prison. Appellant raises two claims on appeal, first challenging the constitutionality of section 775.082(10), Florida Statutes (2015), and second , alleging that the circuit court unlawfully2 deviated f rom section 775.082(10)’s presumptive non

- prison sanction in sentencing her. Because we find the second claim to be without merit, we write only to address Appellant’s constitutional challenge to section 775.082(10) , Florida
Statutes

. Appellant asserts that section 775.082(10) violates her right to a trial by jury as guaranteed under the United States Constitution and the Florida Constitution , because the statute mandates a non

- prison criminal sanction for certain felony offenders, but allows the court t o impose a more punitive sentence without a jury finding that the defendant poses a risk of danger to the public. See Apprendi v. New Jersey , 530 U.S. 466 (2000); Blakely v. Washington , 542 U.S. 296 (2004). Having now carefully considered all arguments presented, including whether the offending provision may be severed from the provision mandating the non

prison sanction for such offenders, we agree with Appellant that the statute must be interpreted to mandate that such upward departures must be based on a jury determination, absent either a waiver by the defendant or a negotiated sentence.
See Sloban v. Fla. Bd. of Pharmacy , 982 So. 2 d 26, 31

- 34 (Fla. 1st DCA 2008) (recognizing that courts “have an obligation to give a statute a constitutional

construc tion when this is possible” ) (citing Tyne v. Time Warner Entm’t Co. , 901
So

. 2d 802, 810 (Fla. 2005)). A s the Florida Supreme Court held in State v. Overfelt , 457 So. 2d 1385 (Fla. 1984), where it interpreted a statute wh ich3 mandated an enhanced felony co nviction based on possession of a firearm to require a jury finding, we similarly interpret section 775.082(10), Florida Statutes , to require a jury finding that Appellant poses a danger to the public before the sentencing court may depart from the presump tive sentence of a non

- prison sanction under Apprendi and Blakely

. We affirm Appellant’s sentence, however, as we find that the error here was harmless beyond a reasonable doubt. Galindez v.
State , 955 So. 2d 517, 522

- 23 (Fla. 2007) (holding that Apprend i and Blakely

errors were harmless in light of Appellant’s confession to facts supporting increased sentencing points for victim injury, and noting that Overfelt , which did not apply harmless error analysis , was superseded by Washington v. Recuenco , 548 U. S. 212 (2006)). Background Appella nt was arrested for shoplifting food from a Jacksonville Wal

- M art. Because she had two previous petit theft convictions, Appellant was charged by info rmation with felony petit theft, a third

- degree felony punishable by up to five years in state prison. Appellant pled guilty to the felony charge, voluntarily giving up her right to a trial by jury and her right to appeal any matter related to the judgment.
At sentencing, Appellant testified that when she committed the theft, she and her four children were homel ess and living in the woods, and she stole the food to4 feed her children and herself. Appellant testified that she was no longer homeless and was looking for a job. Appellant’s counsel argued that , under sectio n 775.082(10), Appellant scored only 8.3 poin ts on her sentencing scoresheet, qualifying her for a recommended sentence not exceeding 12 months in county jail , and ask ed the court to rely on Jones v. State , 71 So. 3d 173 (Fla. 1st DCA 2011), to find that A ppellant was not a danger to the public

. T he State argued that Appella nt was a danger to the public . The State recited Appellant’s prior record, a sserting that she was arrested for the instant theft less than a month after being released from jail wher e she serv ed time for a previous theft. The court agreed with the State that Appellant presented a danger to the public , and sentenced Appellant to 18 months in s tate p rison. In its order of departure, the court listed its factual findings, including A ppellant’s prior convictions, her criminal history, and the rapidity with which she committed her most recent theft after release from jail. The court relied on the Fourth District’s holding in Porter v. State , 110 So. 3d 962 (Fla. 4th DCA 2013), and foun d that a county jail sentence would not suffice as an appropriate punishment. Analysis Questions concerning the constitutionality of a statute are questions of law and are reviewed de novo

. Caribbean Conservation Corp., Inc. v. Fla. Fish &5 Wildlife Con servation Com m ’n , 838 So. 2d 492, 500 (Fla. 2003). Statutes are presumed valid, and “ all reasonable doubts about the statute’s validity must be resolved in favor of constitutionality.” State v. Catalano , 104 So. 3d 1069, 1075 (Fla. 2012). Furthermore, “ a determination that a statute is facially unconstitutional means that no set of circumstances exists under which the statute would be valid.” Fla. Dep’t of Revenue v. City of Gainesville , 918 So. 2d 250, 256 (Fla. 2005). Here, the challenged statute p rovides: (10) If a defendant is sentenced for an offense . . . which is a third degree felony but not a forcible felony as defined in s. 776.08 . . . and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence t he offender to a non state prison sanction. However, if the court makes written findings that a non state 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. (2015). Appellant argues that section 775.082(10) violates a defendant’s right to trial by an impartial jury, because the law exposes the defendant to punishment beyond the statutory maximum based on judge

- made factual findings , relying on Apprendi and Blakely for support. In Apprendi , the Supreme Court hel d that the jury protections guaranteed by the Sixth Amendment extend “to determinations that [ go ] not to a defendant’s guilt or innocence, but simply to the length of his sente nce.” 530 U.S. at 484 (quoting Almendarez

- Torres v. U.S. , 523 U.S. 224, 251 (1998) (Scalia, J., dissenting)). The Court cautioned6 that allowing a judge to determine a fact which would increase punishment beyond the statutory maximum raised due process an d Six th Amendment concerns, holding, “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 proved beyond a reasonable doubt.” Id. at 490. The C ourt’s later holding in Blakely clarified 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 .” 542 U.S. at 303 (emphasi s in original). Florida courts have interpreted the Supreme Court’s Apprendi line of cases

as hold ing that , “ under a guidelines sentencing scheme which restricts judicial discretion in imposing sentences, the factors used to calculate the maximum guideli nes sentence t o which a defendant is exposed must be based either on (1) findings made by the jury, (2) facts ad mitted by the defendant, or (3) the defendant’s prior convictions.” Behl v. State , 898 So. 2d 217, 221 (Fla. 2d DCA 2005) (emphasis in original ) ; Johnson v. State , 18 So. 3d 623, 625 (Fla. 1st DCA 2009), quashed on other grounds 122 So. 3d 856 (Fla. 2013). When a defendant enters a guilty plea, as Appellant did, the defendant only admits to the facts in their plea standing alone. See Blakely , 542 U.S. at 304 (stating that Blakely’s guilty plea only admitted to the elements of the crimes he7 was charged with and no other facts, and had the judge imposed an exceptional sentence “solely on the basis of the facts admitted in the guilty plea , ” he wo uld have been reversed). It is also permissible to enhance a defendant’s sentence solely on the basis of p rior convictions

– w hich essentially acknowledges a finding made by another jury

– because the procedural safeguards attached to the “fact s ” of
any p rior convictions mitigate constitutional concerns. Apprendi , 530 U.S. at 488. In Florida, section 775.082 provides the relevant statutory maximum for Apprendi purposes. Arrowood v. State , 843 So. 2d 940, 942 (Fla. 1st DCA 2003). Here, Appellant pled g uilty to a non

- forcible third

- degree felony and scored less than 22 points on her sentencing scoresheet, making section 775.082(10) the applicable statutory provision. P art (10) of section 775.082 mandat es that , absent a factual finding of danger to the p ublic, a third

- degree non

- forcible felony offender who score s 22 points or fewer on their sentencing score sheet must be sentenced to

a non - prison sanc tion; i.e., probation, community control, or imprisonment in the county jail f or up to one year. See § 92 1.00241(2), Fla. Stat. (2015); see also Jones v. State , 71 So. 3d 173, 175 (Fla. 1st DCA 2011). Therefore, the maximum punishment Appellant could receive under section 775.082(10) , without any additional factual findings, was one year in county jail; inst ead, Appellant was sentenced to 18 months in state prison based solely on additional findings of the trial judge, not the jury.8 The State conceded in oral argument that Apprendi and Blakely d o apply to section 775.082(10), but argued in its brief that Apprendi does not apply to cases like Appellant’s because section 775.082(10) is a mitigation statute, not an enhancement statute . In support of this argument, the State relied heavily on the Fourth District’s decision in Porter , which held that defendant s were not entitled to a jury determination for findings under section 775.082(10) because that statute is not a sentence enhancement statute. 110 So. 3d at 963

. However, the Supreme Court has consistently held that the Sixth Amendment right to trial by jury is implicated “whenever a judge seeks to impose a sentence that is not solely based

on ‘ facts reflected in the jury verdict or admitted by the defendant. ’ ” U.S. v. Booker , 543 U.S. 220, 232 (2005) (quoting Blakely , 542 U.S. at 303). And i n Apprendi , the Court held that the fact that N ew Jersey labeled the provision at issue a “sentence enhancement” rather than a separate crime was irrelevant for constitutional purposes. 530 U.S. at 495

- 96 . In Blakely , the Court held: Whether the judge’s authority t o impose an enhanced sentence depends on finding a specified fact (as in Apprendi ) , one of several specified facts (as in Ring [v. Arizona , 122 S. Ct. 2428 (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 upo n finding some additional fact. 542 U.S. at 305 . Regardless of its label, section 775.082(10) has the effect of mandating a non

- prison sanction for offenders who fall within its spe cified parameters, yet allows judges to impose a more punitive sentence

– incarceration9 in state prison

– on the basis of an additional factual finding. The Sixth Amendment requires such a finding to be made by a jury, and not a judge. Thus, we must exa mine the statute to decide if it can be interpreted in a manner that preserves its constitutional validity. State v. Giorgetti , 868 So. 2d 512 (Fla. 2004) (holding that statute providing criminal penalty for sexual offenders who fail to register an addres s change must be interpreted to require mens rea to preserve constitutionality of statute under due process clause); In re Interest of
D.F. , 622 So. 2d 1102, 1104 (Fla. 1st DCA 1993) (interpreting parental rights termination statute as mandating procedural protections to fulfill court’s “duty and obligation to interpret the statute so as to preserve its constitutionality”). In Giorgetti , the Florida Supreme Court noted that it was “obligated to construe statutes in a manner that avoids a holding that a stat ute may be unconstitutional.” 868 So. 2d at 518 (citing Gray v. Cent. Fla. Lumber Co. , 140 So. 320 (Fla. 1932)). Relying on the United States Supreme Court decision in Lambert v. California , 355 U.S. 225 (1957), the court in Giorgetti grafted a requiremen t of scienter on the statute at issue, which required designated sexual offenders to register address changes. Here, w e similarly hold that the statute must be interpreted to require a jury finding that the defendant poses a risk of danger to society befo re a judge can impose a sentence which is m ore punitive than any non

- prison sanction, as this is the only interpretation of the statute which would comply with the holdings of10 Apprendi and Blakely

. Therefore, after a guilty verdict is reached, the State must present evidence to the jury showing why sentencing the defendant to a non

- prison sanction would present a danger to the public. Section 775.082(10) does not expressly state what factors a finding of danger to the public must be based up on , but we c an logically conclude that the jury may consider any relevant factor evidencing why a state prison sentence would better protect the public by deterring the defendant from future criminal conduct. Past decisions show that courts have considered factors

su ch as whether the defendant’s behavior posed an ec onomic danger to the community, the financial and emotional damage caused by defendant’s crime, the effect the defendant’s prior sentences have had on deterring criminal conduct, and in one case, the fact t hat defendant’s habitual c riminal behavior was so well known that police were automatically deployed to his location, thereby diminishing police protection in other parts of the community. Porter , 110 So. 3d at 964; McCloud v.
State , 55 So. 3d 643, 645 (F la. 5th DCA 2011); Jones , 71 So. 3d at 176. Because we hold that section 775.082(10) can be construed so as to preserve its constitutionality , we need not address the issue of severability regarding the provision which purportedly allows the court to im pose a n upward departure sentence absent a jury finding.11 Harmless Error
A lthough Appellant’s upward departure sentence was not based on a jury finding, we agree with the State that we must apply a harmless error analysis under
Recuenco , 548 U.S. at 219

- 22 (holding that Sixth Amendment Apprendi violation was not “structural error , ” thus, harmless error analysis applied on appeal of Apprendi violation ), and Galindez , 955 So. 2d at 522

- 23 (holding that Apprendi and Blakely errors were subject to harmless e rror analysis). Applying a harmless error analysis, we affirm Appellant’s sentence, as no rational jury would have declined to find that she posed a financial danger to the public based on her three prior petit theft convictions, her prior burglary convic tion, and the fact that she committed the instant offense soon after her release from jail.
AFFIRMED

. KELSEY, J., and STONE, WILLIAM F., ASSOCIATE JUDGE, CONCUR.