GREGORY A. CUTTS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gregory Cutts appeals his 2005 resentencing for sexual battery convictions, arguing the sentences violated Blakely v. Washington by enhancing his guidelines sentence based on judicial findings rather than jury findings. The Second District affirms, holding that Blakely does not apply retroactively on collateral review to convictions that became final before Blakely was decided.
Blakely does not apply retroactively on collateral review to convictions that became final before Blakely was decided. Therefore, Cutts' 2005 resentencing, imposed on convictions that became final in 2001, does not violate Blakely.
[1] The Supreme Court's decision in Blakely v. …
[2] A defendant resentenced after the finalization of their conviction cannot challenge the sentence based on Blakely v. …
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Join FLexlaw to unlock all legal intelligence“enhancement is improper based upon facts found by a judge rather than a jury”
Establishes Blakely's core prohibition that the court was evaluating
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Join FLexlaw to unlock all legal intelligenceCutts was convicted and originally sentenced in March 2000 for two sexual battery convictions. His convictions and sentences became final on March 23,…
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CASANUEVA, Judge.
We affirm Gregory A. Cutts’ challenges to his sentences for two sexual battery convictions, which he contends were imposed in contravention of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Mr. Cutts was convicted and originally sentenced in March 2000. His convictions and sentences were final on March 23, 2001, when this court issued its mandate from his direct appeal. As the result of collateral postconviction proceedings, however, Mr. Cutts was resentenced in 2005. He now appeals from those sentences on the ground that they violate Blakely’s proscription against enhancement of a guidelines sentence under a scheme — such as Florida’s 1994 sentencing guidelines — with a maximum sentence exposure absent a departure from the guidelines. In such a case, according to the Blakely decision, enhancement is improper based upon facts found by a judge rather than a jury. See Behl v. State, 898 So. 2d 217 (Fla. 2d DCA 2005) (involving a case pending on direct review when Blakely was decided).
Mr. Cutts’ challenge will be successful only if Blakely is retroactively applied to the sentences that arose from his 2001 convictions, and he cites the First District’s decision in Isaac v. State, 911 So. 2d 813 (Fla. 1st DCA 2005), in support of his contention. As Mr. Cutts acknowledges, however, this court has held that Blakely is not to be retroactively applied on collateral review to convictions that became final before Blakely was decided. Hughes v. State, 933 So. 2d 1285 (Fla. 2d DCA 2006); Burrows v. State, 890 So. 2d 286, 287 (Fla. 2d DCA 2004), review denied, 914 So. 2d 952 (Fla.2005).
In so holding, we have aligned ourselves with the Third, Fourth, and Fifth District Courts of Appeal. See Langford v. State, 929 So. 2d 598 (Fla. 5th DCA 2006); Thomas v. State, 914 So. 2d 27 (Fla. 4th DCA 2005); Galindez v. State, 910 So. 2d 284 (Fla. 3d DCA 2005), review granted, 925 So. 2d 1030 (Fla.2006).
We also agree with Judge Kahn’s observation in his dissent in Isaac that the Florida Supreme Court’s “focus on finality of the conviction is very important.” 911 So. 2d at 816 (Kahn, J., dissenting) (citing Hughes v. State, 901 So. 2d 837 (Fla.2005)).
Accordingly, we affirm the sentences imposed in 2005 for Mr. Cutts’ convictions that became final in 2001. As in Barron v. State, 931 So. 2d 929 (Fla. 2d DCA 2006), we certify direct conflict with the First District’s decision in Isaac, 911 So. 2d at 813.
STRINGER and LaROSE, JJ., Concur.
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Citator
Cited By
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State v. Fleming, 61 So. 3d 399 (Fla. 2011)…ts agreed with the Third District and Judge Kahn’s dissent that Apprendi and Blakely do not apply to convictions final before the Supreme Court decisions issued and thus do not apply to any subsequent resentencings in such cases. 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 2…
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Cutts v. State, 976 So. 2d 579 (Fla. 2008)…PER CURIAM. We have for review Cutts v. State, 940 So. 2d 1246 (Fla. 2d DCA 2006), in which the Second 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.…
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Tarus Edward Harvey v. State, 954 So. 2d 101 (Fla. 2d DCA 2007)…n his original appeal was affirmed and this court’s mandate issued on April 3, 2000, over two months before [*103] the June 26, 2000, decision in Apprendi Thus, Apprendi is potentially applicable only if given retroactive effect. See Cutts v. State, 940 So. 2d 1246 (Fla. 2d DCA 2006); Barron v. State, 931 So. 2d 929 (Fla. 2d DCA 2006). Recently, the Florida Supreme Court declined to decide the retro-activity issue in Galindez v. State, No. SC05-1341, 955 So. 2d 517, 2007 WL 471164 (Fla. Feb.15, 2007), and empl…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Blakely v. Washington, 542 U.S. 296 (U.S. 2004)
- 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)
- Burrows v. State, 890 So. 2d 286 (Fla. 2d DCA 2004)
- Behl v. State, 898 So. 2d 217 (Fla. 2d DCA 2005)
- Thomas v. State, 914 So. 2d 27 (Fla. 4th DCA 2005)
- Burrows v. State, 914 So. 2d 952 (Fla. 2005)
- Denson v. State, 929 So. 2d 598 (Fla. 3d DCA 2006)
- Barron v. State, 931 So. 2d 929 (Fla. 2d DCA 2006)