Summary
holding that neither Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 nor Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 requires that the jury—rather than the trial court—determine whether a defendant's instant offense was committed within three years after being released from a state correctional facility, a fact that must be established before a defendant may be sentenced as a prison releasee reoffender: "The date of a defendant's release from prison implicates neither the level of the offense, the facts of the underlying offense, nor the character of the offender as it relates to aggravation of a sentence"
Summary of this case from Peters v. StateOpinion
Case No. 5D21-2917
01-28-2022
Hermando Laquin SIMMONS, Appellant, v. STATE of Florida, Appellee.
Hermando L. Simmons, Lowell, pro se. Ashley Moody, Attorney General, Tallahassee, and Roberts J. Bradford Jr. Assistant Attorney General, Daytona Beach, for Appellee.
Hermando L. Simmons, Lowell, pro se.
Ashley Moody, Attorney General, Tallahassee, and Roberts J. Bradford Jr. Assistant Attorney General, Daytona Beach, for Appellee.
COHEN, J.
Hermando Laquin Simmons appeals the trial court's order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm.
In 2013, a jury found Simmons guilty of robbery with a firearm and grand theft. He was sentenced to life in prison pursuant to section 775.082(9), Florida Statutes (2013), the Prison Releasee Reoffender ("PRR") statute. His convictions and sentence were per curiam affirmed on appeal. See Simmons v. State, 869 So. 2d 572 (Fla. 5th DCA 2004).
The PRR statute provides, in pertinent part:
"Prison releasee reoffender" means any defendant who commits, or attempts to commit:
[enumerated crimes]
within 3 years after being released from a state correctional facility operated by the Department of Corrections ... , following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.
§ 775.082(9)(a)1., Fla. Stat. (2013). The statute further provides that upon proof by a preponderance of the evidence that the defendant meets the PRR definition, the court must sentence the defendant to certain mandatory minimum terms, depending on the degree of the offense. § 775.082(9)(a) 3.a.–d., Fla. Stat. (2013). In this case, it is undisputed that Simmons meets the statutory requirements for sentencing under the statute. His appeal concerns only whether the factual finding that his crimes were committed within three years after release from prison should have been submitted to the jury.
Procedurally, the instant case began with Simmons sending a petition to the Florida Supreme Court challenging the constitutionality of the PRR statute. Simmons' challenge was precipitated by an order from the circuit court in Orange County, which found the PRR statute unconstitutional as improperly granting the court a function strictly within the purview of the jury, relying upon Alleyne v. State, 570 U.S. 99, 103, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ("Any fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt."). The Florida Supreme Court transferred Simmons' petition to the circuit court in Lake County, where his PRR sentence was imposed, to be treated as a motion to correct illegal sentence under rule 3.800(a). The circuit court denied the motion, and this appeal followed.
This Court has seen a number of appeals challenging the constitutionality of the PRR statute since that order was entered, as it raises the prospect of significant relief for those sentenced under the auspices of the statute.
Echoing the Orange County circuit court's ruling, Simmons argues that a jury must make the factual finding under section 775.082(9) as to whether the crime for which he was subject to PRR sentencing was committed within three years of being released from prison. He contends that, similar to an increase in the sentence ceiling, the PRR statute increases the sentencing floor for offenses, and the elevation of the floor directly effects the liberty of the affected defendants, requiring a jury determination beyond a reasonable doubt. We disagree.
Simmons relies on, inter alia, Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), where the Court held that "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." However, Simmons overlooks that Apprendi includes a significant exception—the fact of a prior conviction. Id. Still, that exception is not absolute. If the fact of a prior conviction is an element of the offense, then the existence of the prior conviction must be determined by a jury, like in instances where prior convictions for theft can raise a second-degree misdemeanor of petit theft to either a first-degree misdemeanor or a third-degree felony. See § 812.014(3)(a)–(c), Fla. Stat. (2021). Likewise, if the prosecution seeks an upward departure under section 775.082(10), which requires consideration of whether a nonstate prison sanction for the defendant poses a danger to the public, such a finding must be made by the jury. See Brown v. State, 260 So. 3d 147, 150–51 (Fla. 2018) (finding section 775.082(10) unconstitutional where it required court, rather than jury, to make factual finding of dangerousness to public in order to increase maximum sentence). Under those scenarios, the fact of a prior conviction, or a defendant's criminal history, is rightfully submitted to the jury. Nevertheless, the instant case does not involve those scenarios, as establishing the date of release from prison is simply a ministerial act.
The date of a defendant's release from prison implicates neither the level of the offense, the facts of the underlying offense, nor the character of the offender as it relates to aggravation of a sentence. As such, the cases relied upon by Simmons (and the circuit court in Orange County) are inapposite. Cf. Alleyne, 570 U.S. at 117, 133 S.Ct. 2151 (holding that factual finding as to whether defendant had brandished firearm in connection with crime of violence, which would elevate mandatory minimum sentence, was element of offense to be determined by jury); Williams v. State, 242 So. 3d 280, 294 (Fla. 2018) (finding that under Alleyne, jury was required to make factual finding as to whether juvenile defendant actually killed, intended to kill, or attempted to kill victim before imposing increased minimum sentence).
This Court, in Tobler v. State, 239 So. 3d 796 (Fla. 5th DCA 2018), as well as the First and Second District Courts of Appeal, has reached the same conclusion specific to the PRR statute. See Williams v. State, 143 So. 3d 423, 424 (Fla. 1st DCA 2014) ("The key fact pertinent to PRR sentencing—whether the defendant committed the charged offense within three years of release from prison—is not an ingredient of the charged offense. Rather, it relates to the fact of a prior conviction."); Lopez v. State, 135 So. 3d 539, 540 (Fla. 2d DCA 2014) ("[B]ecause Lopez's date of release from prison is a part of his prior record, that fact determination did not need to be presented to a jury and proved beyond a reasonable doubt."); see also Calloway v. State, 914 So. 2d 12, 14–15 (Fla. 2d DCA 2005) ("While we recognize that the fact of Calloway's date of release from his prior prison sentence is not the same as a bare fact of a prior conviction, we conclude that it is directly derivative of a prior conviction and therefore does not implicate Sixth Amendment protections." (citations omitted)).
In summary, we affirm the circuit court's denial of Simmons' motion to correct illegal sentence and find that the PRR statute is neither facially unconstitutional nor unconstitutional as applied to Simmons in failing to require a jury to make a finding that Simmons' underlying conviction was committed less than three years after his release from prison.
AFFIRMED.
EDWARDS and TRAVER, JJ., concur.