Third District Court of Appeal State of Florida
Opinion filed February 13, 2019. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D17-832 Lower Tribunal No. 97-4270 ________________
Mister Simmons, Appellant,
vs.
The State of Florida, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Charles K. Johnson, Judge.
Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
Ashley Moody, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
Before LOGUE and MILLER, JJ., and SUAREZ, Senior Judge.
SUAREZ, Senior Judge. Mister Simmons (“Simmons”) appeals from a fifty year upward departure
sentence imposed upon resentencing pursuant to State v. Thompson, 750 So. 2d
643 (Fla. 1999). For the following reasons, we affirm the trial court’s imposition
of a departure sentence but remand for the trial court to reduce Simmons’s
sentence from fifty years to forty years.
I. FACTUAL AND PROCEDURAL HISTORY
Simmons was convicted of second degree murder with a firearm and
possession of a firearm with a removed serial number. The crimes were committed
on January 30, 1997. On April 26, 2000, the trial court sentenced Simmons to a
term of natural life in prison as a habitual felony offender.
In December 2014, Simmons filed a motion to correct an illegal sentence
pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing that his habitual
offender sentence for second degree murder, which is a life felony, was invalid
under State v. Thompson, 750 So. 2d 643 (Fla. 1999). The trial court denied the
motion, and Simmons appealed. This Court reversed and remanded for further
proceedings, as the postconviction record failed to show conclusively that
Simmons was entitled to no relief. Simmons v. State, 180 So. 3d 244, 245 (Fla. 3d
DCA 2015). This Court noted that Simmons’s motion “may be well-taken” if he
committed the offense on January 30, 1997, within the “window” for a Thompson
error. Id.
2 On remand, the trial court resentenced Simmons under the 1994 version of
the sentencing guidelines. The guidelines scoresheet indicated a permissible range
of between 191 months and 318.875 months. The trial court sentenced Simmons
to an upward departure sentence of fifty years, finding that Simmons engaged in an
escalating pattern of criminal conduct. The trial court entered a written order,
finding “that there is a reasonable justification for upward departure from the
sentencing guidelines.” Specifically, the trial court stated as follows:
In accordance with Florida Statutes section 921.001(1), the Court finds beyond a reasonable doubt that the defendant’s prior convictions justify an upward departure from the sentencing guidelines. Specifically, this Court finds that the Defendant’s prior convictions prove beyond and to the exclusion of every reasonable doubt that the Defendant engaged in an escalating course of conduct as described in 921.001(8),[1] and that he is not amenable to rehabilitation or supervision.
1 Section 921.001(8), Florida Statutes (1993), provides as follows:
(8) A sentence may be imposed outside the guidelines based on credible facts, proven by a preponderance of the evidence, which demonstrate that the defendant’s prior record, including offenses for which adjudication was withheld and the current criminal offense for which the defendant is being sentenced, indicate an escalating pattern of criminal conduct. The escalating pattern of criminal conduct may be evidenced by a progression from nonviolent to violent crimes, a progression of increasingly violent crimes, or a pattern of increasingly serious criminal activity.
§921.001(8), Fla. Stat. (1993).
3 The trial court relied upon the fact that Simmons committed five armed robberies
in the two months prior to the second degree murder at issue in the instant case, as
well as 1995 convictions for two counts of unoccupied burglary, one count of petit
theft, one count of criminal mischief, and one count of extortion. Simmons’s
appeal from the fifty-year sentence follows.
II. STANDARD OF REVIEW
“The legality of a sentence is a question of law, and thus, subject to de novo
review. Similarly, our review of the constitutionality of a sentence is de novo.”
Montgomery v. State, 230 So. 3d 1256, 1258 (Fla. 5th DCA 2017), review denied,
No. SC18-102, 2018 WL 6434797 (Fla. Dec. 7, 2018) (citations omitted).
III. ANALYSIS
Simmons raises three arguments on appeal. First, Simmons asserts that the
trial court’s imposition of an upward departure sentence without a jury
determination that he engaged in an escalating pattern of criminal conduct violates
the dictates of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 542 U.S. 296 (2004). Second, Simmons argues that he is entitled to
relief claiming the trial court failed to specifically find that he was not amenable to
rehabilitation or supervision and that such a specific finding is required by section
921.0016(3)(p), Florida Statutes (1993), before a departure sentence may be
4 imposed. Third, Simmons argues that his fifty-year sentence is illegal. We address
each argument in turn.
A. Apprendi and Blakely error
In Apprendi, the Supreme Court held “[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.” 530 U.S. at 490. Subsequently, in Blakely, the Supreme Court held:
Our precedents make clear . . . 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.
542 U.S. at 303-04 (citations omitted).
It is well established that a violation of the principles set forth in Apprendi
and Blakely is subject to harmless error review. Washington v. Recuenco, 548
U.S. 212 (2006) (holding that Blakely violations are subject to harmless error
review); Galindez v. State, 955 So. 2d 517, 522–23 (Fla. 2007) (holding that
harmless error analysis applies to Apprendi and Blakely error and explaining that
“to the extent some of our pre-Apprendi decisions may suggest that the failure to 5 submit factual issues to the jury is not subject to harmless error analysis, Recuenco
has superseded them”); see also Williams v. State, 242 So. 3d 280
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Third District Court of Appeal State of Florida
Opinion filed February 13, 2019. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D17-832 Lower Tribunal No. 97-4270 ________________
Mister Simmons, Appellant,
vs.
The State of Florida, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Charles K. Johnson, Judge.
Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
Ashley Moody, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
Before LOGUE and MILLER, JJ., and SUAREZ, Senior Judge.
SUAREZ, Senior Judge. Mister Simmons (“Simmons”) appeals from a fifty year upward departure
sentence imposed upon resentencing pursuant to State v. Thompson, 750 So. 2d
643 (Fla. 1999). For the following reasons, we affirm the trial court’s imposition
of a departure sentence but remand for the trial court to reduce Simmons’s
sentence from fifty years to forty years.
I. FACTUAL AND PROCEDURAL HISTORY
Simmons was convicted of second degree murder with a firearm and
possession of a firearm with a removed serial number. The crimes were committed
on January 30, 1997. On April 26, 2000, the trial court sentenced Simmons to a
term of natural life in prison as a habitual felony offender.
In December 2014, Simmons filed a motion to correct an illegal sentence
pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing that his habitual
offender sentence for second degree murder, which is a life felony, was invalid
under State v. Thompson, 750 So. 2d 643 (Fla. 1999). The trial court denied the
motion, and Simmons appealed. This Court reversed and remanded for further
proceedings, as the postconviction record failed to show conclusively that
Simmons was entitled to no relief. Simmons v. State, 180 So. 3d 244, 245 (Fla. 3d
DCA 2015). This Court noted that Simmons’s motion “may be well-taken” if he
committed the offense on January 30, 1997, within the “window” for a Thompson
error. Id.
2 On remand, the trial court resentenced Simmons under the 1994 version of
the sentencing guidelines. The guidelines scoresheet indicated a permissible range
of between 191 months and 318.875 months. The trial court sentenced Simmons
to an upward departure sentence of fifty years, finding that Simmons engaged in an
escalating pattern of criminal conduct. The trial court entered a written order,
finding “that there is a reasonable justification for upward departure from the
sentencing guidelines.” Specifically, the trial court stated as follows:
In accordance with Florida Statutes section 921.001(1), the Court finds beyond a reasonable doubt that the defendant’s prior convictions justify an upward departure from the sentencing guidelines. Specifically, this Court finds that the Defendant’s prior convictions prove beyond and to the exclusion of every reasonable doubt that the Defendant engaged in an escalating course of conduct as described in 921.001(8),[1] and that he is not amenable to rehabilitation or supervision.
1 Section 921.001(8), Florida Statutes (1993), provides as follows:
(8) A sentence may be imposed outside the guidelines based on credible facts, proven by a preponderance of the evidence, which demonstrate that the defendant’s prior record, including offenses for which adjudication was withheld and the current criminal offense for which the defendant is being sentenced, indicate an escalating pattern of criminal conduct. The escalating pattern of criminal conduct may be evidenced by a progression from nonviolent to violent crimes, a progression of increasingly violent crimes, or a pattern of increasingly serious criminal activity.
§921.001(8), Fla. Stat. (1993).
3 The trial court relied upon the fact that Simmons committed five armed robberies
in the two months prior to the second degree murder at issue in the instant case, as
well as 1995 convictions for two counts of unoccupied burglary, one count of petit
theft, one count of criminal mischief, and one count of extortion. Simmons’s
appeal from the fifty-year sentence follows.
II. STANDARD OF REVIEW
“The legality of a sentence is a question of law, and thus, subject to de novo
review. Similarly, our review of the constitutionality of a sentence is de novo.”
Montgomery v. State, 230 So. 3d 1256, 1258 (Fla. 5th DCA 2017), review denied,
No. SC18-102, 2018 WL 6434797 (Fla. Dec. 7, 2018) (citations omitted).
III. ANALYSIS
Simmons raises three arguments on appeal. First, Simmons asserts that the
trial court’s imposition of an upward departure sentence without a jury
determination that he engaged in an escalating pattern of criminal conduct violates
the dictates of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 542 U.S. 296 (2004). Second, Simmons argues that he is entitled to
relief claiming the trial court failed to specifically find that he was not amenable to
rehabilitation or supervision and that such a specific finding is required by section
921.0016(3)(p), Florida Statutes (1993), before a departure sentence may be
4 imposed. Third, Simmons argues that his fifty-year sentence is illegal. We address
each argument in turn.
A. Apprendi and Blakely error
In Apprendi, the Supreme Court held “[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.” 530 U.S. at 490. Subsequently, in Blakely, the Supreme Court held:
Our precedents make clear . . . 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.
542 U.S. at 303-04 (citations omitted).
It is well established that a violation of the principles set forth in Apprendi
and Blakely is subject to harmless error review. Washington v. Recuenco, 548
U.S. 212 (2006) (holding that Blakely violations are subject to harmless error
review); Galindez v. State, 955 So. 2d 517, 522–23 (Fla. 2007) (holding that
harmless error analysis applies to Apprendi and Blakely error and explaining that
“to the extent some of our pre-Apprendi decisions may suggest that the failure to 5 submit factual issues to the jury is not subject to harmless error analysis, Recuenco
has superseded them”); see also Williams v. State, 242 So. 3d 280, 289-90 (Fla.
2018) (noting that in Galindez the court concluded that Apprendi violations are
subject to harmless error review); Plott v. State, 148 So. 3d 90, 94 (Fla. 2104) (“A
claim of error under Apprendi and Blakely is subject to harmless error analysis.”).
For that reason, when “the record demonstrates beyond a reasonable doubt that a
rational jury would have found” a fact that exposes the defendant to a sentence
exceeding the statutory maximum, harmless error is shown. Galindez, 955 So. 2d
at 523, 524 (finding harmless error in the trial court’s failure to have the jury make
a finding of victim injury where there was “clear and uncontested record evidence”
of victim injury).
Given these principles, we find that the trial court improperly enhanced
Simmons’s sentence in violation of Apprendi and Blakely when it imposed an
upward departure sentence based upon its own, rather than the jury’s, factual
finding that Simmons engaged in an escalating course of criminal conduct pursuant
to section 921.001(8). In other words, because the trial court could not have
departed from the guidelines sentence under section 921.001(8) based only on the
jury’s finding that Simmons was guilty of second degree murder with a firearm and
possession of a firearm with a removed serial number, a violation of Blakely and
Apprendi occurred. See e.g., Plott, 148 So. 2d at 95 (finding that upward departure
6 sentences based on trial court’s finding that the crimes were committed in an
extraordinary cruel, egregious, vicious, and wicked manner were an
unconstitutional enhancement under Apprendi and Blakely); Plasencia v. State,
170 So. 3d 865, 871 (Fla. 2d DCA 2015) (“Accordingly, under the holding in
Blakely, the trial court improperly imposed a sentence in excess of Mr. Plasencia’s
guideline sentence based upon its findings that the murder was heinous, atrocious,
or cruel and that the victim suffered extraordinary physical and emotional trauma
in the absence of jury findings about those facts or Mr. Plasencia’s admission to
those facts.”); Donohue v. State, 925 So. 2d 1163 (Fla. 4th DCA 2006) (reversing
trial court’s upward departure from defendant’s guideline sentence on the basis of
victim’s vulnerability pursuant to section 921.0016(3)(j), Florida Statutes, because
the facts supporting vulnerability of the victim were neither found by the jury or
admitted by defendant as required by Blakely and Apprendi); cf. Brown v. State,
No. SC18-323 (Fla. Dec. 20, 2018) (holding that section 775.082(10), Florida
Statutes (2015), violates Apprendi and Blakely because it requires the court, rather
than the jury, to make the finding of dangerousness to the public necessary to
increase the statutory maximum nonstate prison sanction).
As explained above, however, Blakely and Apprendi errors are subject to a
harmless error analysis. We conclude, based on the record, that the trial court’s
violation of the principles set forth in Apprendi and Blakely was harmless beyond
7 a reasonable doubt. In this case, Simmons was convicted in June 1995 of two
counts of unoccupied burglary, one count of petit theft, one count of criminal
mischief, and one count of extortion. Less than two years later, in December 1996,
Simmons committed two armed robberies. The next month, January 1997,
Simmons committed three armed robberies. That same month, on January 30,
Simmons’s crimes culminated with the second degree murder with a firearm
committed in the instant case. Simmons’s criminal activity, therefore, escalated
over the course of two months from armed robbery to second degree murder,
having begun less than two years earlier with non-violent crimes. Given this, a
rational jury would have found that Simmons’s prior record indicated an escalating
pattern of criminal conduct, and any Apprendi and Blakely error is harmless. See
Isaac v. State, 989 So. 2d 1217, 1219 (Fla. 1st DCA 2008) (holding that any
potential Apprendi or Blakely error in the trial court’s failure to have the jury
determine whether defendant’s convictions indicated an escalating pattern of
criminal conduct under section 921.001(8), Florida Statutes, was harmless where
defendant’s “convictions began with misdemeanors and, over the course of two to
three years, escalated to a considerable number of first-degree felonies involving
violent crimes and, notably, the use of firearms”); Dirk v. State, 114 So. 3d 1024,
1025 (Fla. 5th DCA 2012) (“We affirm Dirk’s upward departure sentence, finding
that any error in the trial court’s failure to apply Apprendi and Blakely, at Dirk’s
8 resentencing was harmless error. The record demonstrates beyond a reasonable
doubt that a rational jury would have found that Dirk had engaged in an escalating
pattern of criminal conduct.” (citations omitted)); see also, e.g., Donohue v. State,
979 So. 2d 1058, 1060 (Fla. 4th DCA 2008).
B. Section 921.0016(3)(p), Florida Statutes
Simmons next argues that even if it was harmless error for the trial court to
sentence him to a departure sentence in the absence of a jury’s finding that he
participated in an escalating pattern of criminal activity, he is still entitled to relief
because under section 921.0016(3), the trial court was required and failed to
specifically find that he was not amenable to rehabilitation. We disagree.
Section 921.0016(3)(p) does not require the trial court to find both that the
defendant participated in an escalating pattern of criminal conduct and also that the
defendant is not amenable to rehabilitation. The pertinent part of the statute states:
(3) Aggravating circumstances under which a departure from the sentencing guidelines is reasonably justified include, but are not limited to: ... (p) The defendant is not amenable to rehabilitation or supervision, as evidenced by an escalating pattern of criminal conduct as described in s. 921.001(8).
§ 921.0016(3)(p), Fla. Stat. (1993).
Pursuant to section 921.0016(3)(p) the trial court is not required to find both
that there was an escalating pattern of criminal conduct and that the defendant was
9 not amenable to rehabilitation or supervision. The latter part of section
921.0016(3)(p) defines the first part. In other words, the fact that the defendant
may not be amenable to rehabilitation is evidenced by—clearly shown by—the
finding of an escalating pattern of criminal conduct. By finding that Simmons
engaged in an escalating course of criminal conduct, the trial court established that
he was not amenable to rehabilitation.
C. Simmons’s fifty year sentence exceeds the legal maximum
Simmons argues that even if he is not entitled to relief under Apprendi and
Blakely, his fifty year sentence must still be reduced to a forty year sentence. The
State concedes that Simmons is correct on this point.
The offense at issue occurred on January 30, 1997, within the window
period established in Trapp v. State, 760 So. 2d 924, 928 (Fla. 2000), to challenge
a guideline sentence under Heggs v. State, 759 So. 2d 620 (Fla. 2000). As a result,
Simmons was entitled to be resentenced under the 1994 version of the sentencing
guidelines. See Kinsey v. State, 831 So. 2d 1253, 1254 (Fla. 2d DCA 2002); Ned
v. State, 758 So. 2d 1286 (Fla. 3d DCA 2000). Under the 1994 version of the
sentencing guidelines, the legal maximum for the offense of second degree murder
was a term not exceeding forty years. §772.082(3)(a), Fla. Stat. (1993); see also
Miranda v. State, 832 So. 2d 937, 941 (Fla. 3d DCA 2002). For that reason,
Simmons’s fifty year sentence is illegal. The parties also agree that pursuant to
10 Miranda, the proper remedy is for Simmons’s fifty year sentence to be reduced to
forty years. Id. at 941.
IV. CONCLUSION
Because a rational jury would have found that Simmons’s prior record
indicated an escalating pattern of criminal conduct, the trial court’s error in failing
to follow the principles set forth in Apprendi and Blakely is harmless and we
affirm the trial court’s imposition of an upward departure sentence. Nonetheless,
Simmons’s fifty year sentence must be reduced as it exceeds the statutory
maximum under the applicable 1994 penalty for a life felony. On remand,
Simmons’s fifty year sentence must be reduced to a forty year prison term.
Miranda, 832 So. 2d at 941. Simmons need not be present for the sentence
reduction. Id.
Affirmed in part, reversed in part, and remanded for reduction of sentence.