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Florida Supreme Court Holds Sentencing Statute That Allows Judge to Determine Dangerousness Triggering Upward Depar-ture of Maximum Sentence Unconstitutional

by Dale Chappell

A Florida sentencing statute that allows a judge to find aggravating factors to impose a higher sentence violates the Sixth Amendment to the U.S. Constitution, the Supreme Court of Florida held.

When Laverne Brown was convicted of a third-degree felony, she scored a total of 16.4 points, which required that the circuit court impose a non-prison sanction such as probation. The judge, however, found that Brown presented a danger to the public and departed upward to three years in prison. Brown believed that was an excessive sentence for stealing a DVD player, so she appealed.

The district court of appeal determined that the law allowing the judge to find facts to increase the statutory sentence is valid because the statute provides “mandatory mitigation” (not discretionary increase) of a sentence that otherwise carries a five-year maximum. § 775.082(10), Fla. Stat. (2015). Thus, the court ruled that the sentencing judge did not overstep constitutional boundaries. Brown appealed to the Florida Supreme Court.

The question before the Court was whether the provision allowing the judge to find facts to increase the statutory maximum sentence violates the U.S. Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that only a jury (or a defendant’s admission) may find facts to increase the maximum sentence without violating the Sixth Amendment.

The Florida sentencing statute in question states that a judge “must” sentence a defendant to a non-prison term if the score is 22 points or less. But the last sentence says that “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.” § 775.082(10).

This subsection was added after the U.S. Supreme Court’s Apprendi decision, and some Florida courts of appeal have found it is constitutional as a mitigating statute, as the court of appeal did here.

Combined with the U.S. Supreme Court’s later decision in Blakely v. Washington, 542 U.S. 296 (2004), holding that “statutory maximum” means “the maximum sentence a judge may impose,” the Florida Supreme Court held that “subsection (10) unambiguously sets the statutory maximum penalty, for Apprendi purposes.” Therefore, either a jury must find the facts, or the defendant admit the facts, relied on by the sentencing court.

Here the circuit court did not use facts found by a jury or admitted by Brown, and this violated her Sixth Amendment rights. Brown’s sentence, then, was unconstitutional. But since Brown had already served this illegal sentence by the time her appeal wound through the courts, the Supreme Court rendered its decision to prevent the harm from happening again.

Accordingly, the Court announced that in order for a sentencing court to impose a sentence above a non-prison sanction under § 775.082(10), a jury, not the judge, must make the dangerousness finding. See: Brown v. State, 260 So.3d 147 (Fla. 2018). 

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