DULIE ALONZO GREEN, JR.

v.

THE STATE OF FLORIDA

Third District Court of Appeal State of Florida

Opinion filed December 23, 2020. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D18-2429 Lower Tribunal No. 03-28843B ________________

Dulie Alonzo Green, Jr., Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Dennis J. Murphy and Mark Blumstein, Judges.

Carlos J. Martinez, Public Defender, and Jonathan Greenberg and Manuel Alvarez, Assistant Public Defenders, for appellant.

Ashley Moody, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.

Before FERNANDEZ, LINDSEY, and GORDO, JJ.

LINDSEY, J.

2

Dulie Alfonzo Green, Jr., who was a juvenile offender, appeals from a final order imposing a sentence following a resentencing hearing conducted pursuant to Miller v. Alabama, 567 U.S. 460 (2012). Green argues a jury was required to make the factual finding that he actually killed or intended to kill the victim. We agree, and because we conclude, based on the record before us, that this violation cannot be deemed harmless, we reverse.

I.

BACKGROUND

In 1995, police discovered Ms. Beverly Jackson’s body in the trunk of a car that had been submerged in a canal. The cause of death was drowning, and the victim had bruising on her scalp. The autopsy and DNA evidence indicated she had sexual intercourse prior to her death. The case went cold until 2003, when Vilsion Laurenvil came forward and told police about several incriminating statements Green had allegedly made. After further investigation, Green and co-defendant Victor Pestano were arrested and charged with first-degree murder, armed sexual battery, armed carjacking, and kidnapping with a weapon for the crimes committed in 1995, when Green was 15 years old.

The jury was instructed on principal theory and was also instructed on firstdegree premeditated murder and first-degree felony murder. Green was convicted as charged; however, the verdict form did not specify the theory under which Green

In 2010, the U.S. Supreme Court held that sentencing a juvenile offender to life without parole for a non-homicide offense violates the Eighth Amendment. Graham v. Florida, 560 U.S. 48 (2010). In 2012, the U.S. Supreme Court held that automatically sentencing a juvenile offender to life for a homicide offense is likewise unconstitutional. Miller, 567 U.S. 460. Green filed a motion for post-conviction relief based on Graham and Miller, and the trial court vacated his life sentences and held a resentencing hearing in November 2018.

At the hearing, the parties agreed the proper procedure was to vacate the original sentence and resentence Green de novo. The parties also agreed Green had to be resentenced in conformance with chapter 2014-220, Laws of Florida, which the Florida legislature unanimously enacted to bring Florida’s juvenile sentencing statutes into compliance with Graham and Miller. Chapter 2014-220 amended section 775.082(1)(b), Florida Statutes, to provide as follows:

1. A person who actually killed, intended to kill, or

attempted to kill the victim and who is convicted under s. 782.04 of a capital felony, or an offense that was reclassified as a capital felony, which was committed before the person attained 18 years of age shall be punished by a term of imprisonment for life if, after a

2. A person who did not actually kill, intend to kill,

or attempt to kill the victim and who is convicted under s. 782.04 of a capital felony, or an offense that was reclassified as a capital felony, which was committed before the person attained 18 years of age may be punished by a term of imprisonment for life or by a term of years equal to life if, after a sentencing hearing conducted by the court in accordance with s. 921.1401, the court finds that life imprisonment is an appropriate sentence. A person who is sentenced to a term of imprisonment of more than 15 years is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(c).

(Emphasis added).

Green argued, based on Williams v. State, 242 So. 3d 280 (Fla. 2018), that he had to be resentenced under section 775.082(1)(b)2 because there was no jury finding that he actually killed or intended to kill the victim as required by section 775.082(1)(b)1.1

ANALYSIS

In Williams, the Florida Supreme Court held that a jury is required to make the factual finding under section 775.082(1)(b)¹ as to whether a juvenile offender actually killed, intended to kill, or attempted to kill the victim. 242 So. 3d at 282. The Court’s holding was based on Alleyne v. United States, 570 U.S. 99 (2013), a case in which the U.S. Supreme Court held that any fact that increases the mandatory minimum sentence for an offense is an “element” that must be submitted to a jury and found beyond a reasonable doubt. Cf. Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that any fact that increases the statutory maximum is an element that must be submitted to a jury and found beyond a reasonable doubt).

Although a jury is required to find that a juvenile actually killed, intended to kill, or attempted to kill the victim under subsection (1)(b)¹, the Williams Court held that a violation is subject to harmless error review. That is, “the applicable question in evaluating whether an Alleyne violation is harmful with respect to section 775.082(1)(b) is . . . whether the record demonstrates beyond a reasonable doubt that

2 Under section 775.082(1)(b)2, Green would be eligible for sentence review after 15 years as opposed to 25.

The State also points to a videotaped conversation between Green and Pestano that occurred while they were at the police station where Green actively tried to get Pestano to change his story. Additionally, the State claims that Green’s credibility “was considerably less than zero” based on the different version of the events he told during the interview process. These different versions had to do with whether Green had consensual sex and whether a third person, Courtney Smith, was involved. But in none of these versions did Green admit to killing or intending to kill the victim.

Green argues that the State cannot prove harmless error in this case because there were no eyewitnesses, no forensic evidence linking Green to the crime, Laurenvil testified that Green said he did not intend to kill the victim, and Green himself consistently denied killing the victim in statements to the police and at trial. Ultimately, Green contends there were two competing narratives that should have been resolved by a jury. Green also points to the prosecutor’s statements at trial. At opening, the prosecutor stated that “we’re never going to know the exact details of what happened. We’re never going to really know what happened in those last few moments of Beverly Jackson’s life.” And in closing, the prosecutor told the jury it could convict Green on felony murder. The State also told the jury it could convict Green as a principal if it believed his version of the events and did not believe he actually killed the victim.

Though it is undisputed the State made a strong case, we cannot say that the record in this case demonstrates beyond a reasonable doubt that no rational jury would have concluded that Green did not actually kill or intend to kill the victim. The evidence presented at trial involved two competing narratives, the resolution of which required a credibility determination best suited for the jury and not judicial factfinding. See Williams, 242 So. 3d at 291 (finding an Alleyne violation harmful

III.

CONCLUSION

Because a jury did not determine whether Green actually killed or intended to kill the victim, and we conclude this violation cannot be deemed harmless, we vacate the sentence and remand for resentencing pursuant to section 775.082(1)(b)2, or, if requested by the State, to empanel a jury to make the necessary factual determination. Cf. Gaymon v. State, 288 So. 3d 1087, 1093 (Fla. 2020) (“[T]he proper remedy for harmful error resulting from the court, not the jury, finding the fact of dangerousness under section 775.082(10) is to remand for resentencing with instructions to empanel a jury to make such a determination, if the State seeks that finding in the defendant’s case.”).