Peterson v. StatePeterson v. State
Appellant Reginald Peterson was convicted of two counts of sexual battery and one count of use of a firearm during the commission of a felony. He was sentenced to two concurrent terms of life imprisonment as a prison releasee reoffender (PRR) on the sexual battery counts, and to time served on the remaining count. Appellant now seeks review of the convictions and sentence, raising three arguments. For the reasons below, we hereby affirm Appellant‘s convictions but reverse his sentence as a PRR.
Appellant‘s first argument is that the PRR sentence is illegal under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), as modified by Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because the trial court, and not a jury, determined that the PRR requirements were met. This argument is without merit because the two cases do not apply to the fact of a prior conviction, as revealed in Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63, and in Blakely, 124 S.Ct. at 2536, 124 S.Ct. 2531, and because Apprendi does not apply to PRR sentencing, as held in McDowell v. State, 789 So.2d 956 (Fla. 2001). Moreover, the Fourth District has specifically held that Apprendi and Blakely do not apply to the finding of a prior release date. See Gurley v. State, 906 So.2d 1264 (Fla. 4th DCA 2005).
Appellant‘s second argument is that admission of the Department of Corrections’ (DOC) records violated his rights under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). This argument is without merit because the DOC‘s business records are not “testimonial,” as the term is used in Crawford. See Desue v. State, 908 So.2d 1116 (Fla. 1st DCA 2005).
Appellant‘s third argument, however, warrants reversal of the PRR sentence. Appellant argues that the DOC records were not authenticated, and he is correct. See Arnett v. State, 843 So.2d 340 (Fla. 1st DCA 2003). The affidavit is not sufficient to authenticate the records either under the PRR statute or under the Florida Evidence Code‘s provision for self-authenticating business records found in
Accordingly, we AFFIRM Appellant‘s convictions but REVERSE his sentence and REMAND for resentencing. On remand, the trial court may again sentence Appellant as a PRR if it makes the required findings and the evidence supports those findings. See Glover v. State, 871 So.2d 1025 (Fla. 1st DCA 2004).
KAHN, C.J., and LEWIS, J., concur.