FLOURNOY

v.

STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

KEONDRE FLOURNOY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D2024-1491

July 2, 2025

Appeal from the Circuit Court for Pinellas County; Julie Sercus, Judge.

Blair Allen, Public Defender, and Brett S. Chase, Special Assistant Public Defender, Bartow, for Appellant.

James Uthmeier, Attorney General, Tallahassee, and Helene S. Parnes, Senior Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Keondre Flournoy appeals his convictions for the offenses of fire bomb (possess, manufacture, transport, or dispose) and attempted arson of a dwelling. Flournoy also challenges his sentence as a habitual felony offender (HFO) and prison releasee reoffender (PRR) for the attempted arson charge, arguing that for those enhancements to be applicable, a jury determination was required pursuant to Erlinger v. United States, 602 U.S. 821 (2024). We affirm the convictions without further

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comment, but we write to explain why we also affirm Flournoy's sentence for the attempted arson conviction.¹

The State concedes that HFO and PRR findings must, at a defendant's request, be made by the jury. We do not need to decide whether, pursuant to Erlinger, this concession is correct. This is because even assuming that the trial court erred by making the findings necessary to impose the HFO and PRR enhancements, rather than leaving those findings to the jury, the error was harmless. Erlinger, following the principle espoused in Apprendi v. New Jersey, 530 U.S. 466 (2000), and later adopted and expanded upon by Blakely v. Washington, 542 U.S. 296 (2004), and Alleyne v. United States, 570 U.S. 99 (2013), acknowledged that any fact which increases the "range of penalties" that a defendant is exposed to must be decided by a jury. Erlinger, 602 U.S. at 833 (quoting Apprendi, 530 U.S. at 490). Florida courts have recognized that the types of errors addressed in Apprendi, Blakely, and Alleyne are subject to harmless error review. See State v. Manago, 375

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So. 3d 190, 198-201, 203 (Fla. 2023); Toye v. State, 311 So. 3d 78, 82 (Fla. 2d DCA 2019); Ayos v. State, 275 So. 3d 178, 181 (Fla. 4th DCA 2019). It follows then that Erlinger errors are also subject to harmless error review.

"Where the error concerns sentencing, the error is harmless only if there is no reasonable possibility that the error contributed to the sentence." Hurst v. State, 202 So. 3d 40, 68 (Fla. 2016), receded from on other grounds by Gonzalez v. State, 375 So. 3d 886, 887 (Fla. 2023); see also N.J.O. v. State, 292 So. 3d 491, 499 (Fla. 2d DCA 2020). The State has the burden to prove beyond a reasonable doubt that the jury's failure to make the necessary findings for application of the HFO and PRR enhancements did not contribute to Flournoy's sentence. Cf. N.J.O., 292 So. 3d at 499 (relying on State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986), for the proposition that the State carries the burden to prove that an error is harmless).

It is undisputed that the State read Flournoy's prior record at the sentencing hearing and that Flournoy's certified department of corrections packet, which details all of his prior offenses and release dates, was filed below and is contained in our record. Flournoy did not dispute his prior record or release dates at sentencing. And defense counsel conceded at sentencing that Flournoy qualified for the PRR enhancement. Thus we conclude that there is no reasonable possibility that the error contributed to the sentence. Consequently, any error was harmless. Cf. Parrish v. State, 954 So. 2d 63, 64 (Fla. 4th DCA 2007) (concluding that even if there was an Apprendi/Blakely error due to the lack of a jury finding that the appellant qualified as a HFO, the error would be harmless). We thus affirm Flournoy's sentence for the attempted arson conviction.

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Affirmed.

SILBERMAN and LaROSE, JJ., Concur.

Opinion subject to revision prior to official publication.