ANTHONY JESSE LAMBERSON

v.

STATE OF FLORIDA

SMITH, Judge. This case arises from our opinion in Lamberson v. State, 317 So. 3d 286 (Fla. 2d DCA 2021), in which we held that Anthony

Lamberson was entitled to a new direct appeal after agreeing that Mr. Lamberson's appellate counsel was ineffective for failing to file a motion under Florida Rule of Criminal Procedure 3.800(b)(2) to preserve the issue of the illegality of Mr. Lamberson's sentence. In that case we held Mr. Lamberson's five-year prison sentence for his third-degree felony convictions—which netted a total of 18 points on his scoresheet—violated section 775.082(10), Florida Statutes (2017).

Section 775.082(10) expressly states that if the sentence points are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction unless the court makes "written findings that a nonstate prison sanction could present a danger to the public." In Mr. Lamberson's case, the trial court did not make any written findings that would allow for a prison sentence.

However, there was a change in the law related to the remedy available to Mr. Lamberson after the mandate issued in his direct appeal. Specifically, when the mandate issued in Mr. Lamberson's direct appeal, the law was that if the trial court failed to include written reasons that would allow for a prison sentence under section 775.082(10), the trial court "must impose a nonstate prison sanction on remand." Lamberson, 317 So. 3d at 288-89 (quoting

Rodriguez-Aguilar v. State, 198 So. 3d 792, 797 (Fla. 2d DCA 2016)). Two weeks after the mandate issued in Mr. Lamberson's direct appeal, the Florida Supreme Court ruled that section 775.082(10) is unconstitutional because it requires the judge rather than a jury to make the finding of dangerousness that would allow for a prison sentence. See id. (citing Brown v. State, 260 So. 3d 147, 150 (Fla. 2018)).

Accordingly, this court limited Mr. Lamberson's new direct appeal to the issue of whether Brown applies retroactively to his case. Id. at 289. In this case Mr. Lamberson argues he is entitled to remand for the entry of a nonstate prison sentence under Rodriguez-Aguilar because that was the law at the time of his direct appeal. He also argues that the supreme court has effectively ruled that Brown is not retroactive when it denied review of the Fifth District's opinion in Adams v. State, 289 So. 3d 958, 961 (Fla. 5th DCA 2020), reh'g denied (Feb. 7, 2020), review denied, SC20-337, 2020 WL 4463105 (Fla. Aug. 4, 2020), which held that Brown is not retroactive. The State concedes that Brown should not be applied retroactively.

Because we agree that Brown does not apply retroactively, we reverse Mr. Lamberson's sentence, and remand for the trial court to impose a nonprison sentence. Reversed and remanded with instructions. KHOUZAM and LUCAS, JJ., Concur. Opinion subject to revision prior to official publication.