Hindenach v. StateHindenach v. State
Appellant, John Hindenach, appeals from his resentencing after the trial court granted his motion to correct illegal sentence under Heggs v. State, 759 So.2d 620 (Fla.2000) (holding that defendant is entitled to resentencing if the sentence imposed under the unconstitutional 1995 sentencing guidelines would constitute an impermissible departure sentence under the 1994 guidelines). Appellant contends that the trial court erred in resentencing him to a guidelines sentence which exceeds the statutory maximum for his offense contrary to the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We affirm.
On June 13, 1996, appellant was charged by information with driving under the influence (DUI) and/or driving with a blood alcohol level of .08 or higher (UBAL) causing serious bodily injury to another under sections
Appellant appealed from his sentence and this court reversed the sentence finding that the trial court could not enhance a recommended sentence that already exceeds the maximum set by the penalty statute by a further extension within the guidelines range. See Hindenach v. State, 708 So.2d 336 (Fla. 4th DCA 1998). The state filed a Notice of Discretionary Review with the supreme court which was granted and on review, the supreme court quashed this court‘s decision relying on its decision in Mays v. State, 717 So.2d 515 (Fla.1998). See State v. Hindenach, 720 So.2d 242 (Fla.1998). Pursuant to the supreme court‘s decision, this court issued a mandate affirming appellant‘s conviction and sentence.
On July 12, 2000, appellant filed a motion to correct illegal sentence in the trial court under Florida Rule of Criminal Procedure 3.800(a). He argued that under Heggs his sentence was unconstitutional. The state responded to the motion conceding that appellant would receive a lower sentence under the 1994 guidelines. Attached to appellant‘s motion was a newly calculated 1994 guidelines scoresheet in which appellant entered victim injury points for severe injury (40 points). The trial court determined that appellant was
Appellant now argues that because the trial court determined that victim injury points were appropriate in this case, appellant‘s maximum guidelines sentence was increased beyond the statutory five year maximum for his offense and under Apprendi, sentencing him to more than the statutory maximum was error.
In Apprendi, the United States Supreme Court held:
Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: “[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.” [Jones v. United States, 526 U.S. 227, 252-253, 119 S.Ct. 1215, 143 L.Ed.2d 311 (opinion of STEVENS, J.), see also id. at 253, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (opinion of SCALIA, J.)].
530 U.S. at 490, 120 S.Ct. 2348 (footnote omitted).
In 1998, the Florida Supreme Court decided Mays v. State, 717 So.2d 515 (Fla. 1998). It determined that:
The interplay between the sentencing guidelines and the statutory maximums is simple. Prior to 1994, a court could not impose a guidelines sentence outside the statutory limits. The legislature, however, amended the guidelines, effective January 1, 1994, to provide that only departure sentences cannot exceed the statutory maximums. The guidelines currently provide:
Sentences imposed by trial court judges under the 1994 revised sentencing guidelines on or after January 1, 1994, must be within the 1994 guidelines unless there is a departure sentence with written findings. If a recommended sentence under the guidelines exceeds the maximum sentence otherwise authorized by s. 775.082, the sentence under the guidelines must be imposed, absent a departure.
§ 921.001(5), Fla. Stat. (1995) .
Id. at 516. Appellant asserts that Apprendi has effectively overruled Mays because the legislature‘s enactment of a statute that permits a guidelines sentence to exceed the statutory maximum cannot override the due process right in Apprendi. The state responds that Florida has a “floating” or individualized statutory maximum and the United States Supreme Court did not hold these to be unconstitutional in Apprendi.
It would be more accurate to conclude that the United States Supreme Court did not clearly address the issue of what constitutes the relevant “statutory maximum.” Even if the state‘s assertion is correct, it does not preclude the application of Apprendi to a particular sentencing enhancement which must be considered the functional equivalent of an element of the offense.
In McCloud v. State, 741 So.2d 512 (Fla. 5th DCA 1999), on rehearing en banc, the
In Gilson v. State, 795 So.2d 105 (Fla. 4th DCA 2001), this court summarized the current state of the law as espoused in Apprendi as follows:
Due Process requires that every element of the crime charged must be proved, to a jury, beyond a reasonable doubt. Included within this requirement is the necessity for a strictly defined and easily predictable sentence directly attached to the crime: The accused must be sufficiently apprized of the consequences of his act and ensured a review of these facts by a jury of his peers. Even though the prescribed sentence must be strictly defined, there may be a provision within the sentence for a maximum and a minimum bound within which the accused must be sentenced. It is unconstitutional for a legislature to remove from the jury the examination of any facts that increase the prescribed range of penalties to which the accused is exposed. Therefore, any fact which, if proved, allows the judge to exceed the maximum bound of the prescribed sentence, must be proved to a jury, to a constitutional sufficiency. However, any fact which, if proved, provides for a higher sentence within the prescribed bounds need not be proved to a jury to a constitutional certainty. Instead, these sentencing factors may be determined by the judge by a preponderance of the evidence.
Id. at 110 (citing Apprendi, 530 U.S. at 490, 120 S.Ct. 2348). Gilson was charged with lewd and lascivious battery under
In Caraballo v. State, 805 So.2d 882 (Fla. 2d DCA 2001), the second district affirmed the appeal of a summary denial of a Rule 3.800(a) motion in which Caraballo argued that the trial court erred in assessing victim injury points for a sexual battery without a jury finding of victim injury beyond a reasonable doubt under Apprendi. It was affirmed again because his sentence did not exceed the statutory maximum.
In Cameron v. State, 804 So.2d 338 (Fla. 4th DCA 2001), the defendant was convicted of six counts of manslaughter while operating a vessel under the influence of alcohol (BUI), six counts of UBAL manslaughter, one count of BUI injury, one count of UBAL injury, and other charges not relevant to this discussion. Although some of the counts were reversed in the decision and the state vacated some of the convictions, the final result in the decision left for sentencing three counts of UBAL manslaughter. In a footnote, Judge Farmer wrote:
We reject defendant‘s argument that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), bars any use of additional points for the death of the victims in the guidelines sentencing calculus. He contends that Apprendi requires that the death/injury enhancement itself be explicitly submitted to the jury before the court may use these additional points to increase the sentence. The short answer is that the jury‘s conviction on the UBAL manslaughter counts represents a sufficient jury finding to authorize an enhancement based on these additional points. Cf. Tucker v. State, 726 So.2d 768 (Fla. 1999) (jury verdict finding defendant “guilty of attempted first-degree murder with a firearm” sufficient to increase permissible sentencing range based on defendant‘s use of firearm, even though verdict form not technically a special verdict form).
In the instant case appellant was sentenced to a term greater than the maximum and the forty victim injury points resulted in raising the sentence above the statutory maximum. However, there are other factors which take this case outside the holding in Apprendi. Appellant in this case pled nolo contendere and admitted the facts as presented to the court at the original sentencing hearing in 1997. At that hearing appellant‘s plea was to the charges of DUI or UBAL with serious bodily injury. The victim was a pedestrian who was hit by appellant‘s car. He testified at great length about the extent of his multiple injuries which included almost having his left leg amputated. He had multiple surgeries including skin grafts and his medical bills exceeded $150,000. In addition to permanent disfiguring injuries, the victim sustained a permanent impairment which precludes his gainful employment. In Apprendi, the defendant was charged with and pled guilty to possession of a firearm for an unlawful purpose but thereafter the trial judge made a factual determination by the preponderance of the evidence that the sentence should be enhanced under a separate “hate crime” statute. The defendant was not specifically charged with the hate crime and he did not plead guilty to it.
Appellant in the instant case waived his right to a jury trial and entered his plea of nolo contendere. He admitted that he seriously injured the victim. There was substantial testimony at the original sentencing hearing and resentencing hearing
On the basis of the foregoing, although appellant received a sentence in excess of the statutory maximum by pleading nolo contendere to DUI causing serious bodily injury, he waived his right to a jury finding on this issue.
AFFIRMED.
TAYLOR and MAY, JJ., concur.