KENNETH WALKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Walker appeals his resentenced sentence following remand from a prior appeal that required recalculation of his sentencing guideline scoresheet to include additional victim injury points. The court affirms the sentence, holding that because Walker was designated an habitual offender, his sentence is not subject to Apprendi challenge and is lawful regardless of the guideline calculation.
Walker's sentence is affirmed because, although the victim injury points were determined by the judge rather than a jury, Walker's sentence as an habitual offender is not subject to an Apprendi challenge. An habitual offender sentence is governed by recidivism rather than guideline calculations, and Apprendi explicitly excludes recidivism from its holding.
[1] A sentence is not subject to an Apprendi challenge when the defendant has been designated an habitual offender, as the potential maximum sentence is governed by recidivis…
[2] Facts that increase a crime's penalty beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt, unless the fact is a prior conviction…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Other than the fact of a prior conviction, 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.”
Establishes the Apprendi rule that Walker attempted to invoke; the court notes Apprendi explicitly excludes recidivism from this requirement.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWalker was sentenced as an habitual offender. On his first appeal (Walker I), the appellate court agreed with the state that an additional 80 victim i…
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PLEUS, J.
Kenneth Walker challenges the sentence he received from the trial court on remand from his earlier appeal, Walker v. State, 758 So. 2d 743 (Fla. 5th DCA 2000). In Walker I, we agreed with the state’s argument on cross-appeal, that based on our decision in McCloud v. State, 741 So. 2d 512 (Fla. 5th DCA 1999), Walker’s sentencing guideline scoresheet should have included an additional 80 victim injury points for sexual penetration. We vacated Walker’s sentence and remanded for the addition of the injury points “and any concomitant change in his sentence the court may lawfully make.” Walker at 743.
On remand, both the state and Walker acknowledged that because Walker had been designated an habitual offender, the trial court, neither in the first proceeding nor in the remand, was bound by the sentencing guidelines. The trial court, nonetheless, concluded that, “I have a clear duty today to resentence as they told me to do with a corrected scoresheet.”
In this appeal, Walker asserts that because the United States Supreme Court has ordered this court to reconsider its opinion in McCloud, in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), his sentence must be reversed. Walker does not complain of the trial court’s finding that Walker I required the trial court to resentence him in accordance with a re-calculated scoresheet.
In Apprendi, the Supreme Court, by a 5-4 margin, held: “Other than the fact of a prior conviction, 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.” 530 U.S. at 490, 120 S.Ct. at 2362-63. The determinations of victim injury points in McCloud and the instant case which increased the defendants’ presumptive guideline sentences were made by the judge, not the jury. Walker’s potential maximum sentence, however, was not governed by the operation of the guidelines, but by the fact that he was designated an habitual offender. Consistent with Apprendi’s language excluding recidivism from its holding, Florida courts, including this district, have uniformly held that an habitual offender sentence is not subject to an Apprendi challenge. Jacobs v. State, 785 So. 2d 713 (Fla. 4th DCA 2001); Morant v. State, 785 So. 2d 665 (Fla. 3d DCA 2001); Simmons v. State, 782 So. 2d 1000 (Fla. 4th DCA 2001); Gray v. State, 780 So. 2d 1042 (Fla. 4th DCA 2001); Wright v. State, 780 So. 2d 216 (Fla. 5th DCA 2001).
We affirm Walker’s sentence because it is not in excess of that which he lawfully could have received as an habitual offender. AFFIRMED.
SHARP, W., J., concurs.
ORFINGER, R.B., J., concurs in result only.
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Fyler v. State, 852 So. 2d 442 (Fla. 5th DCA 2003)…20 S.Ct. 2348, 147 L.Ed.2d 435 (2000). However, this court has held that an habitual offender classification based on a defendant’s prior criminal record does not require a jury determination pursuant to the holding in Apprendi. See Walker v. State, 790 So. 2d 1200 (Fla. 5th DCA 2001); Wright v. State, 780 So. 2d 216 (Fla. 5th DCA 2001). Taking judicial notice of our own records, we note that Fyler raised this same argument in a prior 3.850 motion.1 The fact that he is now relying on Ring v. Arizona, 536 U.S…
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Andrews v. State, 892 So. 2d 1209 (Fla. 5th DCA 2005)…iolent felony offender sentence imposed on him by the trial court. The case of Stabile v. State, 790 So. 2d 1235 (Fla. 5th DCA 2001), approved, 838 So. 2d 557 (Fla.2003), answers the first issue that he raises on appeal. The case of Walker v. State, 790 So. 2d 1200 (Fla. 5th DCA 2001), answers the second. AFFIRMED. SAWAYA, C.J., PETERSON and MONACO, JJ., concur.…
Authorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Wright v. State, 780 So. 2d 216 (Fla. 5th DCA 2001)
- McCLOUD v. State, 741 So. 2d 512 (Fla. 5th DCA 1999)
- Malone v. State, 782 So. 2d 1000 (Fla. 1st DCA 2001)
- Simmons v. State, 782 So. 2d 1000 (Fla. 4th DCA 2001)
- Alonza W. Jacobs v. State, 785 So. 2d 713 (Fla. 4th DCA 2001)
- Pernell Morant v. State, 785 So. 2d 665 (Fla. 3d DCA 2001)
- Daniels v. State, 780 So. 2d 1042 (Fla. 4th DCA 2001)
- Walker v. State, 758 So. 2d 743 (Fla. 5th DCA 2000)
- Gray v. State, 780 So. 2d 1042 (Fla. 4th DCA 2001)