JASON HAMILTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the Apprendi rule is not retroactive to cases resentenced after Apprendi was decided, if the original sentencing occurred before Apprendi.
Appellant was sentenced before Apprendi, but resentenced after Apprendi was decided due to a prior appeal. The resentencing increased his sentence bas…
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KLEIN, J.
Appellant seeks review of an order denying post-conviction relief arguing that his sentence is illegal under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We affirm because Apprendi is not retroactive and certify conflict.
Procedurally, appellant is in the same situation as was the defendant in Isaac v. State, 911 So. 2d 813 (Fla. 1st DCA 2005). They were tried and sentenced before Ap-prendi but were resentenced, following a reversal of their sentences on direct appeal, after Apprendi was decided. The majority in Isaac held that Apprendi applied, but Judge Kahn dissented and explained that the majority was applying Ap-prendi retroactively, contrary to Hughes v. State, 901 So. 2d 837 (Fla.2005).
In this case appellant argues that his sentence, which was increased for severe victim injury, violated Apprendi in that the judge, not the jury, found severe victim injury. We agree, however, with Judge Kahn’s dissent that applying Apprendi under these circumstances would be a retroactive application and contrary to Hughes. So does the third district. Galindez v. State, 910 So. 2d 284 (Fla. 3d DCA 2005) (certifying conflict with Isaac). We affirm and certify direct conflict with Isaac.
WARNER and GROSS, JJ., concur.
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State v. Fleming, 61 So. 3d 399 (Fla. 2011)…See Cutts v. State, 940 So. 2d 1246, 1247 (Fla. 2d DCA 2006), quashed on other grounds, 976 So. 2d 579 (Fla.2008); Lester v. State, 923 So. 2d 596, 597 (Fla. 5th DCA 2006), quashed on other grounds, 976 So. 2d 577, 577 (Fla.2008); Hamilton v. State, 914 So. 2d 993, 994 (Fla. 4th DCA 2005), quashed on other grounds, 976 So. 2d 575, 576 (Fla.2008). C. Resolving the Conflict In holding that Apprendi and Blakely apply to resentencings regardless of the finality of the defendant’s conviction before they issued,…
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Barron v. State, 931 So. 2d 929 (Fla. 2d DCA 2006)…[*930] LaROSE, Judge. Affirmed. See Carter v. State, 920 So. 2d 774 (Fla. 3d DCA 2006); Cornet v. State, 915 So. 2d 239 (Fla. 3d DCA 2005); Hamilton v. State, 914 So. 2d 993 (Fla. 4th DCA 2005); Garcia v. State, 914 So. 2d 29 (Fla. 4th DCA 2005); Thomas v. State, 914 So. 2d 27 (Fla. 4th DCA 2005); Galindez v. State, 910 So. 2d 284 (Fla. 3d DCA 2005). We certify conflict with Isaac v. State, 911 So. 2d 813 (Fla. 1st DCA…
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Hamilton v. State, 976 So. 2d 575 (Fla. 2008)…PER CURIAM. We have for review Hamilton v. State, 914 So. 2d 993 (Fla. 4th DCA 2005), in which the Fourth District Court of Appeal certified conflict with Isaac v. State, 911 So. 2d 813 (Fla. 1st DCA 2005), notice to invoke discretionary jurisdiction filed, No. SC05-2047 (Fla. Oct.31, 2005). We have jurisdiction.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Hughes v. State, 901 So. 2d 837 (Fla. 2005)
- Lemuel E. Isaac v. State, 911 So. 2d 813 (Fla. 1st DCA 2005)
- Galindez v. State, 910 So. 2d 284 (Fla. 3d DCA 2005)