JOHN D. MORROW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant challenged his departure sentence for second-degree murder on Sixth Amendment grounds under Apprendi and Blakely, arguing the trial court improperly found aggravating factors by a preponderance of evidence rather than beyond a reasonable doubt. The appellate court reversed the trial court's summary denial of the Rule 3.800(a) motion and remanded for resentencing or refutation of the Apprendi claim, holding that both Apprendi and Blakely apply to the appellant's case.
Both Apprendi and Blakely apply to the appellant's case because the conviction became final after Apprendi was decided. The appellant's maximum sentence is limited to the length a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant, and a departure sentence imposed pursuant to the trial court determining a fact by merely a preponderance of the evidence violates Apprendi. The trial court's facial challenge to the 1983 sentencing guidelines fails because the provision allowing departure is permissive, not mandatory.
[1] A criminal sentence is considered final after appellate proceedings have concluded and mandate has issued.
[2] Apprendi v. …
Previewing 2 of 5 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“the appellant's maximum sentence is limited to the length "a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," Blakely, 124 S.Ct. at 2537, and a departure sentence imposed pursuant to the trial court determining a fact by merely a preponderance of the evidence violates the holding of Apprendi”
Establishes the core holding that departure sentences based on facts found only by preponderance violate constitutional protections established in Apprendi and Blakely
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Join FLexlaw to unlock all legal intelligenceFollowing a jury trial, the appellant was convicted of second-degree murder and sentenced to life imprisonment as a departure sentence based on the tr…
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PER CURIAM.
The appellant challenges the trial court’s order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) alleging that his sentence is illegal. Because the trial court improperly ruled that neither Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), nor Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 2536, 159 L.Ed.2d 403 (2004), apply to the appellant’s case, we reverse and remand for resentencing or for record attachments conclusively refuting the appellant’s claim.
Following a jury trial, the appellant was convicted and sentenced for second-degree murder, a lesser-included offense, and was sentenced to a departure sentence of life imprisonment based on the cruel, heinous, and atrocious manner of the crime as well as the appellant’s complete lack of passion and remorse. The appellant argues that his departure sentence violates his Sixth Amendment right to a jury as explained in Apprendi and Blakely.
The trial court incorrectly ruled that the appellant’s sentence was final when Apprendi was decided. A conviction is final after appellate proceedings have concluded and mandate issues. See Smith v. State, 598 So. 2d 1063, 1066 (Fla.1992). As the state concedes, Apprendi applies to the instant case because Apprendi was decided on June 26, 2000, and the instant case did not become final until December 21, 2000, when mandate issued. Blakely likewise applies to the appellant because Blakely was a clarification of Apprendi See Isaac v. State, 911 So. 2d 813 (Fla. 1st DCA 2005). But see Garcia v. State, 914 So. 2d 29 (Fla. 4th DCA 2005)(certifying conflict with Isaac); Thomas v. State, 914 So. 2d 27 (Fla. 4th DCA 2005)(same); Galindez v. State, 910 So. 2d 284 (Fla. 3d DCA 2005)(same). Thus, the appellant’s maximum sentence is limited to the length “a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,” Blakely, 124 S.Ct. at 2537, and a departure sentence imposed pursuant to the trial court determining a fact by merely a preponderance of the evidence violates the holding of Ap-prendi. See Isaac, 911 So. 2d at 815.
As to the appellant’s facial challenge to the 1983 sentencing guidelines, this argument is without merit because the provision which allows the trial court to depart from the scoresheet ranges is permissive instead of mandatory. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 759, 160 L.Ed.2d 621 (2005).
We therefore affirm in part and reverse in part the trial court’s summary denial of the appellant’s motion and remand to the trial court for resentencing or to refute the appellant’s Apprendi claim with record attachments.
REVERSED AND REMANDED.
VAN NORTWICK and HAWKES, JJ., concur; THOMAS, J., concurs in result only.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Morrow v. State, 104 So. 3d 1226 (Fla. 1st DCA 2012)…pellant’s sentence is legal because the Apprendi/Blakely violation was harmless under Galindez v. State, 955 So. 2d 517 (Fla.2007). Appellant contends that the trial court’s disposition of the motion exceeds this court’s mandate in Morrow v. State, 972 So. 2d 202 (Fla. 1st DCA 2006), and that the record excerpts attached to the trial court’s order do not conclusively show that he is entitled to no relief.3 We find no merit in the first point, but we agree that reversal is required on the second point. In th…
Authorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Blakely v. Washington, 542 U.S. 296 (U.S. 2004)
- United States v. Booker, 543 U.S. 220 (U.S. 2005)
- Rhoda Smith v. State, 598 So. 2d 1063 (Fla. 1992)
- Lemuel E. Isaac v. State, 911 So. 2d 813 (Fla. 1st DCA 2005)
- Galindez v. State, 910 So. 2d 284 (Fla. 3d DCA 2005)
- Thomas v. State, 914 So. 2d 27 (Fla. 4th DCA 2005)
- Garcia v. State, 914 So. 2d 29 (Fla. 4th DCA 2005)