ANGEL COLON

v.

STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

ANGEL COLON,

Appellant,

v. Case No. 5D16-1789

STATE OF FLORIDA,

Appellee. ________________________________/

Opinion filed February 28, 2020

Appeal from the Circuit Court for Orange County, Marc L. Lubet, Judge.

James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellant.

Ashely Moody, Attorney General, Tallahassee, and Pamela

J.

Koller, Assistant Attorney General, Daytona Beach, for Appellee.

LAMBERT, J.

ON REMAND FROM THE FLORIDA SUPREME COURT

In an uncontested disposition order,¹ the Florida Supreme Court quashed our decision in Colon v. State, 211 So. 3d 355 (Fla. 5th DCA 2017), and remanded the case

PROCEDURAL BACKGROUND— Angel Colon was convicted in 1997 following trial of the crime of first-degree murder committed when he was a juvenile. Colon was sentenced to serve life in prison with no opportunity for parole, and his conviction and sentence were affirmed on direct appeal. Colon v. State, 705 So. 2d 912 (Fla. 5th DCA 1998). In 2013, Colon filed a motion under Florida Rule of Criminal Procedure 3.800(a) contending that, in light of the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012), his life-without-parole prison sentence as a juvenile homicide offender was illegal and unconstitutional.

The trial court agreed, granted Colon’s motion, and vacated his sentence. The court then scheduled Colon for resentencing under Florida’s then-new juvenile sentencing laws codified at sections 775.082(1)(b), 921.1401, and 921.1402, Florida Statutes (2016). Prior to the resentencing hearing, Colon moved to declare a portion of section 775.082 unconstitutional because, in pertinent part, this statute directed that the trial court, rather

2 In his concurring opinion to the disposition order, Chief Justice Canady, joined by Justices Polston and Lawson, wrote that “the Court has never considered on the basis of full briefing by the parties the issue of remedy addressed in Williams v. State, 242 So. 3d 280 (Fla. 2018). In my view, that issue will be ripe for reconsideration when it is properly presented to the Court.” Colon, 44 Fla. L. Weekly S251. Based upon the Chief Justice’s observation, we directed that the supplemental briefing address this issue.

The court denied Colon’s motion to find section 775.082 unconstitutional and to empanel a jury. It thereafter resentenced Colon to serve fifty years’ imprisonment, with a review hearing after twenty-five years, based on its factual finding that Colon did actually kill or intend to kill the victim.³

Colon’s direct appeal of this sentence was affirmed. Colon v. State, 211 So. 3d 355 (Fla. 5th DCA 2017).4 However, in our opinion, we certified a question of great public importance to the Florida Supreme Court that we had just certified to the court in our

3 We commend the court, which did not preside over Colon’s trial in 1997, for its detailed and thorough order.

4 opinion in the case of Williams v. State, 211 So. 3d 1070 (Fla. 5th DCA 2017), released two weeks earlier. In Williams, we faced the same question that we did here, namely, whether the trial court or the jury makes the factual finding under section 775.082 as to whether the juvenile homicide offender actually killed, intended to kill, or attempted to kill the victim. The appellant in Williams had argued that pursuant to the United States Supreme Court’s holding in Alleyne v. United States, 570 U.S. 99, 102 (2013), “any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury,” the provision in section 775.082(1)(b) that states the trial court, and not the jury, is to make the factual finding as to whether the juvenile homicide offender actually killed, attempted to kill, or intended to kill the victim, is unconstitutional. Williams, 211 So. 3d at 1071. Williams reasoned that because such a finding would “aggravate the legally prescribed range of allowable sentences,” under Alleyne, the jury must make this determination. Id.

In our decision, we observed that while Williams’s argument appeared to have merit, the Florida Supreme Court in Falcon v. State, 162 So. 3d 954, 963 (Fla. 2015), had directed the trial court to make the finding under section 775.082 whether the juvenile actually killed, intended to kill, or attempted to kill the victim. Williams, 211 So. 3d at 1073. Thus, in light of Falcon, we found that the trial court did not err in denying Williams’s motion to empanel a jury to make this factual finding. Id. However, because it appeared to us that in Falcon, the Florida Supreme Court did not have the opportunity to address the applicability of the decision in Alleyne, we certified the following question to the court as one of great public importance: DOES ALLEYNE v. UNITED STATES, 133 S. CT. 2151, 186 L. Ed. 2d 314 (2013), REQUIRE THE JURY AND NOT THE

5

TRIAL COURT TO MAKE THE FACTUAL FINDING UNDER

SECTION 775.082(1)(b), FLORIDA STATUTES (2016), AS

TO WHETHER A JUVENILE OFFENDER ACTUALLY

KILLED, INTENDED TO KILL, OR ATTEMPTED TO KILL

THE VICTIM?

Id. As previously mentioned, two weeks later, we certified this identical question in Colon. See 211 So. 3d at 355.

The supreme court accepted jurisdiction and quashed our decision in Williams. Williams, 242 So. 3d at 294. It answered the certified question in the affirmative, specifically holding that Alleyne requires that a jury must make the factual finding under the statute as to whether a juvenile offender actually killed, intended to kill, or attempted to kill the victim. Id. 293–94.5 The court further held that, as a matter of first impression, an Alleyne violation can be considered harmless, but, for the error to be harmless, the record must demonstrate beyond a reasonable doubt that, given the opportunity, a rational jury would have found that the juvenile offender actually killed, intended to kill, or attempted to kill the victim. Id. at 290 (citing Galindez v. State, 955 So. 2d 517, 523 (Fla. 2007)). Finally, the majority of the court held that when there is a non-harmless Alleyne violation, the remedy is to resentence the juvenile offender pursuant to section 775.082(1)(b)2., the applicable provision when there is a finding that the juvenile offender did not actually kill, intend to kill, or attempt to kill the victim. Id. at 292.

Returning to the instant appeal, having reconsidered this case upon the various holdings made by the Florida Supreme Court in Williams, and having considered the

HARMLESS ERROR ANALYSIS—

The victim in this case was Kizzie McRae. She was shot at close range one morning while she slept on the couch in her residence. The State presented evidence at trial that showed that Colon, who was living with McRae at the time, had purposely set his alarm clock to arise that morning to shoot McRae prior to her waking. Colon was indicted on one count of committing premeditated first-degree murder by shooting McRae with a firearm and was the sole defendant indicted.

The State’s evidence at trial showed that when Colon was arrested, he was found asleep with a .380 semiautomatic firearm under his pillow and that this firearm was the same firearm that killed McRae. The State also presented testimony from McRae’s father that he had previously seen Colon in possession of what appeared to be the same firearm. Additionally, during the criminal episode that resulted in McRae’s death, jewelry, guns, money, cocaine, and a vehicle were taken from her residence. These items were later found in Colon’s possession several days after the murder.

The State made no argument at trial that there was another shooter who could have caused McRae’s death. To the contrary, the State’s trial evidence was that Colon

6 As a result, the possibility of readdressing the appropriate remedy for a nonharmless Alleyne violation, raised by Chief Justice Canady in his brief concurring opinion, see Colon, 44 Fla. L. Weekly S251, is moot.

The jury returned its verdict finding Colon guilty of murder in the first-degree “as charged in the indictment.” It also found, in a separate special verdict, that Colon “did use, carry or display a firearm in the commission of this offense.” We are unable to agree with the State’s first argument that, by these verdicts, the jury in fact found that Colon had actually killed the victim and, thus, there was no Alleyne violation. Several factors support our conclusion. First, at trial, the court had separately instructed the jury to consider Colon’s guilt on the alternative theory of first-degree felony murder. This instruction explained to the jury that it could find Colon guilty of felony murder if the State had proven beyond a reasonable doubt that McRae’s death occurred as a consequence of Colon either engaging in or attempting to commit a robbery or while Colon or an accomplice were escaping from the immediate scene of a robbery. Next, the court provided a principals instruction to the jury that it could find Colon guilty of first-degree felony murder if the State had proven beyond a reasonable doubt that Colon actually killed McRae or that McRae was killed by a person other than Colon, but that both Colon and the person who killed McRae were principals in the commission of the robbery. Third, while the jury found Colon guilty of first-degree murder, the general verdict form did not provide the jury with the option to differentiate between whether Colon was guilty of premeditated or first-degree felony murder. Lastly, we note that under similar circumstances, the court in Williams concluded that an Alleyne violation had occurred. 242 So. 3d at 289.

AFFIRMED.

EVANDER, C.J., and TRAVER, J., concur.