section 775.082 guidelines sentence in Florida

2022See Owens v. Flowers, 286 So. 3d 346 , 347 (Fla. 5th DCA 2019) (holding that “when the trial court imposed the forty-year sentence followed by fifteen years of probation, the probationary portion of the sentence was illegal ab initio because it exceeded the statutory maximum”); Ward v. State, 558 So. 2d 166, 167 (Fla. 1st DCA 1990) (“[O]nce the trial judge sentences a defendant under section 775.082(3)(a) to a term of years as opposed to a term of imprisonment for life, the total sentence, including any probationary period, must not exceed 40 years.”).

1991Cf. Ward v. State, 558 So.2d 166 (Fla. 1st DCA 1990) (once a trial court sentences a defendant under section 775.082(3)(a) to a term of years as opposed to a term of imprisonment for life, the total sentence, including any probationary period, must not exceed 40 years).

2009State v. Rinkins, 646 So.2d 727 (Fla.1994). 1 As a prison releasee re-offender, the statutory language of section 775.082(9)(a)3, Florida Statutes (2008), provides that, upon proof from the State Attorney that establishes by a preponderance of evidence that a defendant is a prison releasee offender, the defendant must be sentenced according to the statute and there is no discretion to impose a lesser sentence under the sentencing guidelines.

1994See State v. Rinkins, 646 So.2d 727 (Fla.1994); Geohagen v. State, 639 So.2d 611 (Fla.1994); King, 597 So.2d at 314-15 (“conclud[ing] that a trial judge retains the discretion to ... decide not to sentence the defendant as an habitual offender”).

2021V, § 3(b)(3), Fla. Const. The conflict turns on the proper remedy for a harmful Alleyne error that occurs where, in sentencing a juvenile offender under section 775.082(1)(b), Florida Statutes (2020), the trial court enhances the sentence under section 775.082(1)(b)1. without a jury finding of the fact that authorizes the enhancement, namely whether the juvenile offender “actually killed, intended to kill, or attempted to kill the victim.” 1 See Alleyne v. United States, 570 U.S. 99, 103 (2013) (“Any fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to

2019Thus, the necessary intent to kill was found by a jury, and Bailey's sentence does not run afoul of Alleyne v. United States, 570 U.S. 99, 108 (2013), which requires that "[f]acts that increase the mandatory minimum sentence . . . be submitted to the jury and found beyond a reasonable doubt." -4- In his second point on appeal, Bailey argues that the forty-year minimum sentence in section 775.082(1)(b)(1) is unconstitutional for the same reasons set forth in Miller.

2018The State argues on appeal that this case is more appropriately compared to Porter v. State, 110 So. 3d 962, 963 (Fla. 4th DCA 2013), where the Fourth District affirmed a sentence enhancement under section 775.082(10).

2017See Porter v. State, 110 So.3d 962, 964 (Fla. 4th DGA 2013) (affirming the trial court’s imposition of an upward departure sentence under section 775.082(10) for a grand theft conviction that “was accomplished by means of writing a worthless check,” where the trial court found the defendant posed a threat to the public based upon the grand theft conviction and his extensive history of committing financial crimes, including prior convictions on nine worthless checks charges); McCloud v. State, 55 So.3d 643, 645 (Fla. 5th DCA 2011) (“The record supports the trial court’s implicit finding that Mc

2018Reed v. State, 192 So. 3d 641, 646 (Fla. 2d DCA 2016).

2017In Reed v. State, 192 So.3d 641, 648 (Fla. 2d DCA 2016), and Ryerson v. State, 189 So.3d 1047, 1048 (Fla. 4th DCA 2016), our sister courts similarly struck down departure sentences pursuant to section 775.082(10) where the trial court’s findings did not establish a nexus between nonstate prison sanctions and the resulting danger to the public.

1994Unlike prisoners sentenced under the guidelines, prisoners sentenced as habitual offenders are, moreover, ineligible for parole, conditional release, or control release, and "basic gain-time" cannot foreshorten their prison terms. § 775.084(4)(e), Fla. Stat. (1989); see Lincoln v. Florida Parole Commission, 643 So.2d 668 (Fla. 1st DCA 1994); Corley v. State, 586 So.2d 432 (Fla. 1st DCA 1991).

1994Unlike prisoners sentenced under the guidelines, prisoners sentenced as habitual offenders are, moreover, ineligible for parole, conditional release, or control release, and “basic gain-time” cannot foreshorten their prison terms. § 775.084(4)(e), Fla.Stat. (1989); see Lincoln v. Florida Parole Commission, 643 So.2d 668 (Fla. 1st DCA 1994); Corley v. State, 586 So.2d 432 (Fla. 1st DCA 1991).

1994See State v. Rinkins, 646 So.2d 727 (Fla. 1994); Geohagen v. State, 639 So.2d 611 (Fla. 1994); King, 597 So.2d at 314-15 ("conclud[ing] that a trial judge retains the discretion to ... decide not to sentence the defendant as an habitual offender").

1994See State v. Rinkins, 646 So.2d 727 (Fla.1994); Geohagen v. State, 639 So.2d 611 (Fla.1994); King, 597 So.2d at 314-15 (“conclud[ing] that a trial judge retains the discretion to ... decide not to sentence the defendant as an habitual offender”).

2021V, § 3(b)(3), Fla. Const. The conflict turns on the proper remedy for a harmful Alleyne error that occurs where, in sentencing a juvenile offender under section 775.082(1)(b), Florida Statutes (2020), the trial court enhances the sentence under section 775.082(1)(b)1. without a jury finding of the fact that authorizes the enhancement, namely whether the juvenile offender “actually killed, intended to kill, or attempted to kill the victim.” 1 See Alleyne v. United States, 570 U.S. 99, 103 (2013) (“Any fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to

2021However, rather than remanding for a de novo resentencing under section 775.082(1)(b)2., Florida Statutes (2017), pursuant to Williams v. State, 242 So. 3d 280 (Fla. 2018), we remanded for ministerial correction of the defendant’s sentences under section 775.082(1)(b)2. because, during the resentencing hearing, the trial court already had stated “it equally finds a sixty-year sentence appropriate under section 775.082(1)(b)(2) in light of the facts of this case,” thus conclusively showing the trial court would have imposed the same sentence.

2021As the Third District Court of Appeal has explained, future sentence enhancement under section 775.082(9)(a)1. is contingent “first on the because they were “beyond the scope of the conflict in this case and they were not reached by the decision below”); cf. Smith v. State, 151 So. 3d 1177, 1184 (Fla. 2014) (concluding that to the extent the appellant presented new arguments that were never presented to the postconviction court below, those arguments were unpreserved for review). -4- defendant’s voluntary decision to commit another crime; second, on whether the new crime is one capable of havi

2021While a conviction may indeed have consequences for a future sentence, - 10 - see e.g., Roberts v. State, 644 So. 2d 81, 82-83 (Fla. 1994) (addressing a case where the defendant’s prior convictions affected scoresheet calculation), Casiano is not challenging his conviction, and he has not, in any event, identified a case where we have used that potential consequence as a basis to preclude dismissal of an appeal as moot.

2021As the Third District Court of Appeal has explained, future sentence enhancement under section 775.082(9)(a)1. is contingent “first on the because they were “beyond the scope of the conflict in this case and they were not reached by the decision below”); cf. Smith v. State, 151 So. 3d 1177, 1184 (Fla. 2014) (concluding that to the extent the appellant presented new arguments that were never presented to the postconviction court below, those arguments were unpreserved for review). -4- defendant’s voluntary decision to commit another crime; second, on whether the new crime is one capable of havi

2018In remanding for a non-state prison sanction, we agreed with the appellant that the trial court’s findings were not supported by the record and explained: Although Appellant’s history of driving without a license arguably supports the trial court's finding that he will continue to do so, the court did not make sufficient DCA 2008) (noting that a “constitutional application of a statute to a particular set of facts” must be raised at the trial level); see also Booker v. State, 244 So. 3d 1151, 1156 (Fla. 1st DCA 2018) (holding that the last sentence of section 775.082(10), which allowed the tri

2017In Reed v. State, 192 So.3d 641, 648 (Fla. 2d DCA 2016), and Ryerson v. State, 189 So.3d 1047, 1048 (Fla. 4th DCA 2016), our sister courts similarly struck down departure sentences pursuant to section 775.082(10) where the trial court’s findings did not establish a nexus between nonstate prison sanctions and the resulting danger to the public.

2017Accordingly, “[w]here the judge has no discretion in imposing a mandatory minimum sentence, the failure to do so makes the sentence illegal.” Vargas, 188 So. 3d at 916 (finding defendant’s sentences illegal where they were not imposed as mandatory minimum sentences as required by section 775.087(2)).

2017See Dunbar v. State, 89 So. 3d 901 , 906 n.5 (Fla. 2012) (“[N]o discretion is given to trial courts in deciding whether to impose mandatory minimum terms under section 775.087(2) . . . .”); Termitus v. State, 86 So. 3d 1179, 1181 (Fla. 5th DCA 2012) (reversing denial of a rule 3.800(a) motion to correct illegal sentence where the trial court failed in its nondiscretionary duty to impose required mandatory minimum sentences under section 775.082(2)); Johnson v. State, 53 So. 3d 360, 362 (Fla. 5th DCA 2011) (“[T]he imposition of a mandatory minimum sentence under section 775.087(2) is a non-disc

2017See Dunbar v. State, 89 So. 3d 901 , 906 n.5 (Fla. 2012) (“[N]o discretion is given to trial courts in deciding whether to impose mandatory minimum terms under section 775.087(2) . . . .”); Termitus v. State, 86 So. 3d 1179, 1181 (Fla. 5th DCA 2012) (reversing denial of a rule 3.800(a) motion to correct illegal sentence where the trial court failed in its nondiscretionary duty to impose required mandatory minimum sentences under section 775.082(2)); Johnson v. State, 53 So. 3d 360, 362 (Fla. 5th DCA 2011) (“[T]he imposition of a mandatory minimum sentence under section 775.087(2) is a non-disc

2017See Dunbar v. State, 89 So. 3d 901 , 906 n.5 (Fla. 2012) (“[N]o discretion is given to trial courts in deciding whether to impose mandatory minimum terms under section 775.087(2) . . . .”); Termitus v. State, 86 So. 3d 1179, 1181 (Fla. 5th DCA 2012) (reversing denial of a rule 3.800(a) motion to correct illegal sentence where the trial court failed in its nondiscretionary duty to impose required mandatory minimum sentences under section 775.082(2)); Johnson v. State, 53 So. 3d 360, 362 (Fla. 5th DCA 2011) (“[T]he imposition of a mandatory minimum sentence under section 775.087(2) is a non-disc

2017See Porter v. State, 110 So.3d 962, 964 (Fla. 4th DGA 2013) (affirming the trial court’s imposition of an upward departure sentence under section 775.082(10) for a grand theft conviction that “was accomplished by means of writing a worthless check,” where the trial court found the defendant posed a threat to the public based upon the grand theft conviction and his extensive history of committing financial crimes, including prior convictions on nine worthless checks charges); McCloud v. State, 55 So.3d 643, 645 (Fla. 5th DCA 2011) (“The record supports the trial court’s implicit finding that Mc

2016See Hechtman v. Nations Title Ins. of New York, 840 So.2d 993, 996 (Fla.2003) (“[Significance and effect must be given to every word, phrase, sentence, and part of the statute if possible.”).

2014See Bryant v. State, 148 So.3d 1251 (Fla. 2014) (holding a trial court is not permitted on remand to impose an upward departure sentence under section 775.082(10) when it failed to enter written findings during the initial sentencing).

2013See Sheppard v. State, 113 So.3d 148 (Fla. 2d DCA 2013).