Opinion
5D20-632
06-04-2021
HERBERT LEON MANAGO, JR., Appellant, v. STATE OF FLORIDA, Appellee.
Matthew R. McLain, of McLain Law, P.A., Longwood, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
Appeal from the Circuit Court for Volusia County, Matthew M. Foxman, Judge.
Matthew R. McLain, of McLain Law, P.A., Longwood, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
ON MOTION FOR REHEARING
EDWARDS, J.
Relying on Green v. State, 46 Fla.L.Weekly D17 (Fla. 3d DCA Dec. 23, 2020), the State argues, as grounds for rehearing, that this Court should have conducted a harmless error analysis which, the State asserts, would have demonstrated that the Alleyne error in this case was harmless and required this Court to affirm the resentencing order.
Alleyne v. United States, 570 U.S. 99 (2013).
The State is mistaken. In fact, we already conducted a harmless error review, as required by section 924.33, Florida Statutes (2020), but we decline to use the analysis from Green because our case does not involve traditional Alleyne error. In our view, the Third District's harmless error analysis in Green was neither required nor authorized given the decision in Williams v. State, 242 So.3d 280 (Fla. 2018). The issue, and thus the error, presented to us in this case was whether the resentencing court erred in conducting a harmless error analysis to excuse its own concurrent Alleyne violation. There was no doubt the resentencing court was aware that Williams required that Appellant be resentenced pursuant to section 775.082(1)(b)2., Florida Statutes (2014), because the jury had not been called upon to make the requisite factual findings.
This is not a "pipeline case" in which resentencing occurred prior to the release of the Florida Supreme Court's decision in Williams.
The resentencing court was also aware the Florida Supreme Court in Williams held, as a matter of first impression, that an Alleyne violation could constitute harmless error. However, that language in Williams referred only to an appellate court conducting a harmless error review. Nothing in Williams suggests that a resentencing court can conduct its own harmless error analysis of its concurrent Alleyne violation. As the Third District in Green and we in our original opinion noted, harmless error reviews are only conducted by appellate courts.
With this error as our focus, we cannot conclude the error was harmless beyond a reasonable doubt. Indeed, the State properly conceded that point at oral argument.
REHEARING DENIED.
EISNAUGLE and TRAVER, JJ., concur.