Apprendi error in Florida

2026Weekly S116 , No. SC2023-1184, 2026 WL 1346031 , at *4 (Fla. May 14, 2026) (noting that Erlinger[1] does not apply retroactively to cases that have 1 Erlinger v. United States, 602 U.S. 821 (2024). become final and that arguments related to Apprendi[2] are not cognizable under rule 3.800(a)); see also Galindez v. State, 955 So. 2d 517, 522 (Fla. 2007) (holding that the harmless error analysis to be applied to an Apprendi violation is whether the record demonstrates beyond a reasonable doubt that a rational jury would have found the fact absent the error).

2026Weekly S116 , No. SC2023-1184, 2026 WL 1346031 , at *4 (Fla. May 14, 2026) (noting that Erlinger[1] does not apply retroactively to cases that have 1 Erlinger v. United States, 602 U.S. 821 (2024). become final and that arguments related to Apprendi[2] are not cognizable under rule 3.800(a)); see also Galindez v. State, 955 So. 2d 517, 522 (Fla. 2007) (holding that the harmless error analysis to be applied to an Apprendi violation is whether the record demonstrates beyond a reasonable doubt that a rational jury would have found the fact absent the error).

2026See Washington v. Recuenco, 548 U.S. 212, 222 (2006) (holding that errors under Apprendi’s progeny, Blakely v. Washington, 542 U.S. 296 (2004), are subject to harmless error review); United States v. King, 751 F.3d 1268, 1279 (11th Cir. 2014) (“We have consistently held that Apprendi violations are subject to harmless error analysis.”).

2026See Washington v. Recuenco, 548 U.S. 212, 222 (2006) (holding that errors under Apprendi’s progeny, Blakely v. Washington, 542 U.S. 296 (2004), are subject to harmless error review); United States v. King, 751 F.3d 1268, 1279 (11th Cir. 2014) (“We have consistently held that Apprendi violations are subject to harmless error analysis.”).

2025An Apprendi claim typically alleges violations of two separate provisions of the Constitution: (1) a judge, instead of a jury, found a fact in violation of the defendant’s Sixth Amendment right to a trial by jury; and, (2) the factfinder, in violation of the defendant’s right to due process, utilized the preponderance of the evidence 1 I use the phrase “Apprendi error” broadly to mean an order that violates Apprendi v. New Jersey, 530 U.S. 466 (2000); Alleyne v. United States, 570 U.S. 99 (2013); Erlinger v. United States; 602 U.S. 821 (2013), or any other related case.

2025An Apprendi claim typically alleges violations of two separate provisions of the Constitution: (1) a judge, instead of a jury, found a fact in violation of the defendant’s Sixth Amendment right to a trial by jury; and, (2) the factfinder, in violation of the defendant’s right to due process, utilized the preponderance of the evidence 1 I use the phrase “Apprendi error” broadly to mean an order that violates Apprendi v. New Jersey, 530 U.S. 466 (2000); Alleyne v. United States, 570 U.S. 99 (2013); Erlinger v. United States; 602 U.S. 821 (2013), or any other related case.

2026See Washington v. Recuenco, 548 U.S. 212, 222 (2006) (holding that errors under Apprendi’s progeny, Blakely v. Washington, 542 U.S. 296 (2004), are subject to harmless error review); United States v. King, 751 F.3d 1268, 1279 (11th Cir. 2014) (“We have consistently held that Apprendi violations are subject to harmless error analysis.”).

2026See Washington v. Recuenco, 548 U.S. 212, 222 (2006) (holding that errors under Apprendi’s progeny, Blakely v. Washington, 542 U.S. 296 (2004), are subject to harmless error review); United States v. King, 751 F.3d 1268, 1279 (11th Cir. 2014) (“We have consistently held that Apprendi violations are subject to harmless error analysis.”).

2026We approve the result of the Sixth District’s decision6 and hold that rule 3.800(a) is not the proper vehicle for raising a claim of error under Apprendi and its progeny, including Alleyne (“Apprendi claims”). 7 In so holding, we recede from Plott v. State, 148 So. 3d 90 (Fla. 2014), and its contrary holding that an Apprendi claim is cognizable under rule 3.800(a). 5.

2026We approve the result of the Sixth District’s decision6 and hold that rule 3.800(a) is not the proper vehicle for raising a claim of error under Apprendi and its progeny, including Alleyne (“Apprendi claims”). 7 In so holding, we recede from Plott v. State, 148 So. 3d 90 (Fla. 2014), and its contrary holding that an Apprendi claim is cognizable under rule 3.800(a). 5.

2017While the maximum sentence with a departure under section 775.082(10) is “more severe" than the maximum sentence without a departure, the same is true regarding the Kansas and South Dakota sentencing statutes at issue in Carr and Anderson . . "[A] claim of Apprendi error must be preserved for review.” Hughes v. State, 901 So.2d 837, 844 (Fla. 2005); accord Galindez v. State, 955 So.2d 517, 521 (Fla. 2007); see also United States v. Cotton, 535 U.S. 625, 634 , 122 S.Ct. 1781 , 152 L.Ed.2d 860 (2002) (rejecting unpreserved Apprendi claim).

2017While the maximum sentence with a departure under section 775.082(10) is “more severe" than the maximum sentence without a departure, the same is true regarding the Kansas and South Dakota sentencing statutes at issue in Carr and Anderson . . "[A] claim of Apprendi error must be preserved for review.” Hughes v. State, 901 So.2d 837, 844 (Fla. 2005); accord Galindez v. State, 955 So.2d 517, 521 (Fla. 2007); see also United States v. Cotton, 535 U.S. 625, 634 , 122 S.Ct. 1781 , 152 L.Ed.2d 860 (2002) (rejecting unpreserved Apprendi claim).

2012See Isaac, 911 So.2d at 814-15 .

2007See Isaac, 911 So.2d at 814 ; Isaac v. State, 826 So.2d 396, 396 (Fla. 1st DCA 2002).

2025See, e.g., Moss v. State, 925 So. 2d 1131, 1132 (Fla. 2d DCA 2006); Gisi v. State, 848 So. 2d 1278, 1282 (Fla. 2d DCA 2003); Hollingsworth v. State, 293 So. 3d 1049 , 1051 (Fla. 4th DCA 2020); cf. Rosado v. State, 308 So. 3d 1065 , 1067 n.2 (Fla. 5th DCA 2020) (rejecting State's argument that Apprendi issue could not be properly raised in a rule 3.800(b) motion).

2025See, e.g., Moss v. State, 925 So. 2d 1131, 1132 (Fla. 2d DCA 2006); Gisi v. State, 848 So. 2d 1278, 1282 (Fla. 2d DCA 2003); Hollingsworth v. State, 293 So. 3d 1049 , 1051 (Fla. 4th DCA 2020); cf. Rosado v. State, 308 So. 3d 1065 , 1067 n.2 (Fla. 5th DCA 2020) (rejecting State's argument that Apprendi issue could not be properly raised in a rule 3.800(b) motion).

2019See Smallridge v. State , 904 So.2d 601 , 606 (Fla. 1st DCA 2005) ; see generally Plott , 148 So.3d at 95 ("[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).").

2019See Smallridge v. State , 904 So.2d 601 , 606 (Fla. 1st DCA 2005) ; see generally Plott , 148 So.3d at 95 ("[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).").

2003Under the Apprendi analysis, the trial court erred in assessing victim injury points for moderate injury without a jury finding as to whether the "damage to person" was moderate or slight. "[I]n Florida, for purposes of determining a constitutional violation under Apprendi , the relevant `statutory maximum' is found in section 775.082." McCloud v. State, 803 So.2d 821, 827 (Fla. 5th DCA 2001) (en banc), rev. denied, 821 So.2d 298 (Fla.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 553 , 154 L.Ed.2d 455 (2002).

2003Under the Apprendi analysis, the trial court erred in assessing victim injury points for moderate injury without a jury finding as to whether the "damage to person" was moderate or slight. "[I]n Florida, for purposes of determining a constitutional violation under Apprendi , the relevant `statutory maximum' is found in section 775.082." McCloud v. State, 803 So.2d 821, 827 (Fla. 5th DCA 2001) (en banc), rev. denied, 821 So.2d 298 (Fla.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 553 , 154 L.Ed.2d 455 (2002).

2017While the maximum sentence with a departure under section 775.082(10) is “more severe" than the maximum sentence without a departure, the same is true regarding the Kansas and South Dakota sentencing statutes at issue in Carr and Anderson . . "[A] claim of Apprendi error must be preserved for review.” Hughes v. State, 901 So.2d 837, 844 (Fla. 2005); accord Galindez v. State, 955 So.2d 517, 521 (Fla. 2007); see also United States v. Cotton, 535 U.S. 625, 634 , 122 S.Ct. 1781 , 152 L.Ed.2d 860 (2002) (rejecting unpreserved Apprendi claim).

2017While the maximum sentence with a departure under section 775.082(10) is “more severe" than the maximum sentence without a departure, the same is true regarding the Kansas and South Dakota sentencing statutes at issue in Carr and Anderson . . "[A] claim of Apprendi error must be preserved for review.” Hughes v. State, 901 So.2d 837, 844 (Fla. 2005); accord Galindez v. State, 955 So.2d 517, 521 (Fla. 2007); see also United States v. Cotton, 535 U.S. 625, 634 , 122 S.Ct. 1781 , 152 L.Ed.2d 860 (2002) (rejecting unpreserved Apprendi claim).

2025This concern stems from the ruling in Jackson v. State, 983 So. 2d 562, 574 (Fla. 2008), which holds that rule 3.800(b) may be used to correct “any error in an order entered as a result of the sentencing process—that is, orders related to the sanctions imposed[,]” as opposed to “an error in the sentencing process[.]” An Apprendi error seems to be an error in the sentencing process, as that phrase is described in Jackson.

2025This concern stems from the ruling in Jackson v. State, 983 So. 2d 562, 574 (Fla. 2008), which holds that rule 3.800(b) may be used to correct “any error in an order entered as a result of the sentencing process—that is, orders related to the sanctions imposed[,]” as opposed to “an error in the sentencing process[.]” An Apprendi error seems to be an error in the sentencing process, as that phrase is described in Jackson.

2026See Washington v. Recuenco, 548 U.S. 212, 222 (2006) (holding that errors under Apprendi’s progeny, Blakely v. Washington, 542 U.S. 296 (2004), are subject to harmless error review); United States v. King, 751 F.3d 1268, 1279 (11th Cir. 2014) (“We have consistently held that Apprendi violations are subject to harmless error analysis.”).

2026See Washington v. Recuenco, 548 U.S. 212, 222 (2006) (holding that errors under Apprendi’s progeny, Blakely v. Washington, 542 U.S. 296 (2004), are subject to harmless error review); United States v. King, 751 F.3d 1268, 1279 (11th Cir. 2014) (“We have consistently held that Apprendi violations are subject to harmless error analysis.”).

2025See, e.g., Moss v. State, 925 So. 2d 1131, 1132 (Fla. 2d DCA 2006); Gisi v. State, 848 So. 2d 1278, 1282 (Fla. 2d DCA 2003); Hollingsworth v. State, 293 So. 3d 1049 , 1051 (Fla. 4th DCA 2020); cf. Rosado v. State, 308 So. 3d 1065 , 1067 n.2 (Fla. 5th DCA 2020) (rejecting State's argument that Apprendi issue could not be properly raised in a rule 3.800(b) motion).

2025See, e.g., Moss v. State, 925 So. 2d 1131, 1132 (Fla. 2d DCA 2006); Gisi v. State, 848 So. 2d 1278, 1282 (Fla. 2d DCA 2003); Hollingsworth v. State, 293 So. 3d 1049 , 1051 (Fla. 4th DCA 2020); cf. Rosado v. State, 308 So. 3d 1065 , 1067 n.2 (Fla. 5th DCA 2020) (rejecting State's argument that Apprendi issue could not be properly raised in a rule 3.800(b) motion).

2015See Blackwood v. State, 946 So.2d 960, 976-77 (Fla.2006) (rejecting a Ring /Apprendi claim in Blackwood’s habeas petition as proeedurally barred because it was raised and rejected on direct appeal); see also Smith, 126 So.3d at 1053 (“Habeas corpus should not be used as a vehicle for presenting issues which should have been raised at trial and on appeal or in postcon-viction proceedings.” (quoting Wright v. State, 857 So.2d 861, 874 (Fla.2003))).

2007See Blackwood v. State, 946 So.2d 960, 976-77 (Fla.2006) (rejecting a Ring/Apprendi claim in Blackwood's habeas petition as procedurally barred since it was raised and rejected as part of his direct appeal). *253 In addition, the trial court found both the "prior violent felony" aggravator and the "in commission of a violent felony" aggravator in issuing Belcher's death sentence.

2014In so holding, the district court relied on this Court’s decision in McGregor v. State, 789 So.2d 976, 977 (Fla.2001), which held that an Apprendi error is procedural in nature and must be preserved for review.

2014In so holding, the district court relied on this Court’s decision in McGregor v. State, 789 So.2d 976, 977 (Fla.2001), which held that an Apprendi error is procedural in nature and must be preserved for review.

2020Two years later, Ring v. Arizona, 536 U.S. 584 (2002), gave the Supreme Court the opportunity to apply its Apprendi rule in the capital sentencing context.

2006These cases were followed by Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), which made the Apprendi analysis applicable to Arizona's capital sentencing statute.

2026Weekly S116 , No. SC2023-1184, 2026 WL 1346031 , at *4 (Fla. May 14, 2026) (noting that Erlinger[1] does not apply retroactively to cases that have 1 Erlinger v. United States, 602 U.S. 821 (2024). become final and that arguments related to Apprendi[2] are not cognizable under rule 3.800(a)); see also Galindez v. State, 955 So. 2d 517, 522 (Fla. 2007) (holding that the harmless error analysis to be applied to an Apprendi violation is whether the record demonstrates beyond a reasonable doubt that a rational jury would have found the fact absent the error).

2026Weekly S116 , No. SC2023-1184, 2026 WL 1346031 , at *4 (Fla. May 14, 2026) (noting that Erlinger[1] does not apply retroactively to cases that have 1 Erlinger v. United States, 602 U.S. 821 (2024). become final and that arguments related to Apprendi[2] are not cognizable under rule 3.800(a)); see also Galindez v. State, 955 So. 2d 517, 522 (Fla. 2007) (holding that the harmless error analysis to be applied to an Apprendi violation is whether the record demonstrates beyond a reasonable doubt that a rational jury would have found the fact absent the error).

2025The Court noted that the case was “as nearly on all fours with Apprendi and Alleyne as any we might imagine[,]”and concluded that a jury must resolve the “ACCA’s occasions inquiry unanimously and beyond a reasonable doubt.” did note that “Jackson does not directly address or even mention Apprendi error[,]” 61 So. 3d 399 , 401 n.3, but this observation is not a holding that Apprendi claims are properly raised by a rule 3.800(b) motion. 3 I agree with Judge Eisnaugle that rule 3.800(a) is an “odd fit” for Apprendi errors.

2020See State v. Fleming, 61 So. 3d 399 (Fla. 2011) (Apprendi claim raised in a rule 3.800(b)(2) motion).

2025We do not overlook Bean v. State, 264 So. 3d 947, 951 (Fla. 4th DCA 2019), wherein the court opined that "[t]he scoring of victim injury points establishes the lowest permissible sentence pursuant to the [CPC] but it is not a fact which increases a mandatory minimum sentence." However, Bean is distinguishable from this case because there, the appellant pleaded guilty, acknowledged and accepted that the lowest permissible sentence included the victim injury points, and admitted the factual basis for his plea including the fact of the victim's injury.

2020In Bean v. State, 264 So. 3d 947 (Fla. 4th DCA 2019), we reviewed the appeal of a denial of a rule 3.800(b)(2) motion, in which the defendant argued that the court’s assessment of points for victim injury violated Apprendi and Alleyne.

2014In Hughes, the First District found that “rule 3.800(a) is an appropriate procedural vehicle for raising an Apprendi claim, since such a violation would produce a sentence in excess of constitutional and statutory máximums and would be apparent from the face of the record.” Id. at 1072 (emphasis added). 7 This, of course, expressly and directly conflicts with the district court’s decision below which concluded that the claim of Apprendi error was not cognizable under rule 3.800(a).

2014In Hughes, the First District found that “rule 3.800(a) is an appropriate procedural vehicle for raising an Apprendi claim, since such a violation would produce a sentence in excess of constitutional and statutory máximums and would be apparent from the face of the record.” Id. at 1072 (emphasis added). 7 This, of course, expressly and directly conflicts with the district court’s decision below which concluded that the claim of Apprendi error was not cognizable under rule 3.800(a).