Marshall v. StateMarshall v. State
We have for review Marshall v. State, 753 So.2d 767 (Fla. 1st DCA 2000). We have jurisdiction. See
The petitioner challenges his sentence under the Prison Releasee Reoffender Act (the “Act“) on several grounds, many of which have been previously addressed by opinions of this Court. See Grant v. State, 770 So.2d 655 (Fla.2000) (rejecting an ex post facto challenge to the Act and holding that the Act violates neither the single subject rule for legislation nor principles of equal protection); McKnight v. State, 769 So.2d 1039 (Fla.2000) (holding that a defendant has the right both to present evidence to prove that the defendant does not qualify for sentencing under the Act and to
Finally, the petitioner asserts that he is entitled to relief pursuant to the United States Supreme Court‘s holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). First, the petitioner did not properly preserve the issue for appellate review. Even if it were, we hold that an argument for relief under Apprendi lacks merit here. In Apprendi, the Supreme Court stated:
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 the jury, and proved beyond a reasonable doubt.
Apprendi, 120 S.Ct. at 2362-63. The petitioner now asserts that because sentencing under the Act requires that a defendant “commit[], or attempt[] to commit” any of an enumerated list of crimes “within 3 years of being released from a state correctional facility operated by the Department of Corrections or a private vendor,”
In our view, Apprendi did not overrule the Supreme Court‘s previous decision in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In McMillan, the Supreme Court considered a statute which imposed a mandatory minimum sentence in connection with an offense committed while a defendant possessed a visible firearm and held that proof of the possession of the firearm was not required because the possession did not alter the maximum penalty or create a separate offense calling for a separate penalty. The Apprendi Court made clear that it was not overruling McMillan when it stated:
The principal dissent accuses us of today “overruling McMillan.” We do not overrule McMillan. We limit its holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury‘s verdict— a limitation identified in the McMillan opinion itself.
Apprendi, 120 S.Ct. at 2361 n. 13. The Apprendi Court reasoned that the statute addressed in McMillan neither altered the maximum penalty for the crime committed nor created a separate offense calling for a separate penalty. The statute was viewed solely as a limitation upon the sentencing court‘s discretion to select the penalty within the range already available.
It is our opinion that the Act does not increase the maximum statutory penalty. Here the sentencing court‘s discretion in selecting a penalty within the statutory range is simply limited. Accordingly, proof to the jury of a defendant‘s release which subjects a defendant to a sentence under the Act is not required.
We agree with the reasoning of the Fourth District in Kijewski v. State, 773 So.2d 124 (Fla. 4th DCA 2000), denied reviewed, No. SC01-181, 790 So.2d 1105 (Fla. Apr.30, 2001). We hold that Apprendi does not require that the petitioner‘s release be proved to a jury beyond a reasonable doubt. We also determine that the petitioner‘s related arguments based on Apprendi are similarly unavailing.2 Moreover, it is important to note that we have previously reached a similar conclusion in connection with sentencing under another recidivist statute. See Eutsey v. State, 383 So.2d 219, 224 (Fla.1980) (rejecting a petitioner‘s due process argument that particular facts required for his sentencing under a habitual offender statute were subject to standard of being proved beyond a reasonable doubt to a jury). Accordingly, we approve the decision of the district court to the extent it is consistent with Grant, McKnight, Cotton, and Ellis.
It is so ordered.
WELLS, C.J., and SHAW, HARDING, ANSTEAD, and PARIENTE, JJ., concur.
QUINCE, J., dissents.