229 So. 3d 387
Fla. Dist. Ct. App.2017Background
- Appellant (Souza) received downward-departure probation for robbery with a weapon and for possession-related offenses; she was designated a habitual felony offender on the robbery count.
- The State later charged her with violating probation for changing her address without permission; she admitted the violation.
- Souza qualified as a “violent felony offender of special concern” under section 948.06(8)(e)2., which requires the court to determine whether the offender “poses a danger to the community” before resentencing.
- The trial court held a danger hearing, orally found Souza posed a danger based on the instant offenses and an escalating criminal history, revoked probation, and imposed the scoresheet minimum prison sentence (later reduced for a scoresheet error).
- On appeal Souza argued the statute is facially unconstitutional under Apprendi/Blakely because it assigns the dangerousness finding to a judge rather than a jury and thus increases the minimum penalty; she also challenged the lack of written findings.
- The Fourth District affirmed the revocation and sentence, ruled Apprendi does not apply to revocation proceedings, but remanded because the court failed to issue the written danger-to-community findings required by section 948.06(8)(e)1.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 948.06(8)(e)2. is facially unconstitutional under Apprendi/Blakely because it permits a judge (not a jury) to find dangerousness that affects sentencing | Souza: judge-made dangerousness finding increases minimum punishment and thus violates the Sixth Amendment per Apprendi/Blakely | State: revocation proceedings are not criminal jury trials; Apprendi does not apply; the finding only removes judicial grace, not increase statutory penalty | Court: Apprendi/Blakely do not apply to probation revocation; statute not facially unconstitutional because the finding does not increase statutory maximum or minimum sentence range |
| Whether the trial court erred by failing to make required written findings that the offender poses a danger to the community | Souza: oral findings insufficient; statute mandates written findings | State: conceded the absence of written findings but the record supports entry of a written order | Court: remanded for entry of written findings as required by § 948.06(8)(e)1.; affirmed revocation and sentence |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty beyond statutory maximum must be found by a jury or admitted)
- Blakely v. Washington, 542 U.S. 296 (2004) (Apprendi principle applied to state sentencing schemes)
- Alleyne v. United States, 570 U.S. 99 (2013) (fact increasing mandatory minimum must be submitted to jury)
- Minnesota v. Murphy, 465 U.S. 420 (1984) (probation revocation is not a criminal proceeding requiring jury trial)
- Arnone v. State, 204 So. 3d 556 (Fla. 4th DCA 2016) (remand for written danger-to-community findings under § 948.06)
- State ex rel. Roberts v. Cochran, 140 So. 2d 597 (Fla. 1962) (no general right to a jury trial in probation revocation proceedings)