When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, and the judge exceeds his or her proper authority.(3) The application of the principles of Apprendi to guidelines sentencing schemes was reaffirmed by the Court in United States v. Booker,(4) which held that the imposition of a sentence under the federal sentencing guidelines based on additional facts that the sentencing judge found by a preponderance of the evidence violated the Sixth Amendment.

Blakely and Booker thus hold that under a guidelines sentencing scheme which restricts judicial discretion in imposing sentences, the factors used to calculate the maximum guidelines sentence to which a defendant must be exposed must be based either on findings made by the jury, facts admitted by the defendant in a guilty plea, at sentencing,(5) or in a stipulation at trial,(6) or judicial findings to which the defendant assented(7) or the defendant’s prior convictions. The effect of Apprendi and Blakely on sentencing in Florida is that upward departures beyond the presumptive range under the guidelines, and beyond the relevant statutory maximum under the Criminal Punishment Code, are impermissible unless the fact on which the departure is based is a prior conviction, was submitted to a jury and proven beyond a reasonable doubt, was stipulated to by the defendant, or was determined by judicial fact finding agreed to by the defendant. A defendant’s pre-trial confession to law enforcement officers cannot serve as such an admission,(8) nor can the defendant’s testimony at trial.(9)

Apprendi is, however, inapplicable to a number of situations. Apprendi does not apply to Florida’s capital sentencing scheme,(10) or retroactively to sentences that were final prior to its issuance because the State has an interest in the finality of convictions and the rule of Apprendi is not of sufficient magnitude as to require retroactive application that would disturb the law of the case as to sentencing where the jury has been discharged and it is now impossible to submit matters to the jury.(11) A conviction is final after appellate proceedings have concluded and mandate issues.(12)

There is presently, however, a conflict between the First District Court of Appeal and the Second, Third, Fourth, and Fifth Districts on the matter of Apprendi as explained by Blakely to resentencings. The First District has taken the view that reliance on the law of the case doctrine would be manifestly unfair because the United States Supreme Court has made it clear that upward departures that are based on facts, other than prior convictions, that were not submitted to a jury violate a defendant’s Sixth Amendment rights.(13) The position of the First District is that Apprendi and Blakely apply not only to those cases where the defendant is resentenced after those cases were decided, but also to cases where Apprendi and Blakely were not decided before the defendant’s resentencing became final.(14) The Second, Third, Fourth, and Fifth Districts, on the other hand, have held that Apprendi and Blakely do not apply to convictions that became final before the issuance of the opinion in Apprendi, even though resentencing occurs after its issuance.(15) The Florida Supreme Court has partially addressed this conflict by approving the result, but not the reasoning of the Third District and has suggested, moreover, that in the absence of legislative action to remedy the constitutional problem of applying Apprendi and Blakely to resentencings of defendants who were originally sentenced in noncapital cases before the issuance of those decisions would be for the Court to create a new rule that would allow the empaneling of a jury at the resentencing to make findings of any sentence-enhancing facts previously found by the original sentencing judge.(16) Although the matter has not yet been decided in Florida, at least one Florida trial court has attempted to remedy the Apprendi/Blakely resentencing problem by impaneling a new jury to consider aggravating sentencing factors,(17) courts in some states have rejected the taking of this approach in the absence of rules or statutes authorizing this sort of procedure,(18) while courts in other jurisdictions have held that impaneling a new jury to remedy an Apprendi/Blakely error is permissible.(19)

The sentencing enhancement scheme found in the Prison Releasee Reoffender (PRR) Punishment Act, section 775.082, F.S., is also unaffected by Apprendi.(20) Consistent with Apprendi’s language excluding recidivism from its holding, Florida courts have uniformly held that an habitual offender sentence is not subject to an Apprendi challenge.(21) There is nothing in Blakely that casts doubt on the numerous Florida decisions holding that Apprendi does not apply to a determination that a defendant has previous felony convictions that qualify him or her for a habitual offender sentence, and Blakely does not require that a jury make factual determinations concerning a defendant’s qualification for habitual offender sentencing.(22) Consecutive sentencing, in which each of the individual sentences are not above the relevant statutory maximums, does not give rise to an Apprendi claim.(23)

1. Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.2348, 147 L. Ed. 2d 435 (2000).

2. Blakely v. Washington, 542 U.S. 296, 124 S. Ct.2531, 159 L. Ed. 2d 403 (2004).

3. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); see, Behl v. State, 898 So. 2d 217 (Fla.2005).

4. United States v. Booker, 543 U.S. 220, 125 S. Ct.738, 160 L. Ed. 2d 621 (2005).

5. See, United States v. Collier, 413 F. 3d 858, 860-61 (8th Cir. 2005).

6. See, United States v. Champion, 234 F. 3d 106, 110 (2d Cir. 2000).

7. See, Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct.1254, 161 L. Ed. 2d 205 (2005).

8. Galindez v. State, 955 So. 2d 517 (Fla.2007).

9. Donohoe v. State, — So. 2d —, 2008 WL 782555 (Fla. Dist. Ct. App. 4th Dist. 2008).

10. Spencer v. State, 842 So. 2d 52 (Fla.2003).

11. See, Hughes v. State, 901 So. 2d 837 (Fla.2005); see also, Modest v. State, 892 So. 2d 566 (Fla. Dist. Ct. App. 3d Dist. 2005) (the decisions in Apprendi and Blakely are also not retroactive in those situations where they might otherwise apply).

12. See, Smith v. State, 598 So. 2d 1063 (Fla.1992).

13. Barron v. State, 931 So. 2d 929 (Fla. Dist. Ct. App. 2d Dist. 2006); Langford v. State, 929 So. 2d 598 (Fla. Dist. Ct. App. 5th Dist. 2006); Isaac v. State, 911 So. 2d 813 (Fla.Dist Cit App. 1st Dist. 2005).

14. McGriff v. State, — So. 2d —, 32 Fla.L. Weekly D520, 2007 WL 516148 (Fla. Dist. Ct. App. 1st Dist. 2007); Isaac v. State, 911 So. 2d 813 (Fla. Dist. Ct. App. 1st Dist. 2005).

15. Barron v. State, 931 So. 2d 929 (Fla. Dist. Ct. App. 2d Dist. 2006); Langford v. State, 929 So. 2d 598 (Fla. Dist. Ct. App. 5th Dist. 2006); Thomas v. State, 914 So. 2d 27 (Fla. Dist. Ct. App. 4th Dist. 2005); Galindez v. State, 910 So. 2d 284 (Fla. Dist. Ct. App. 3d Dist. 2005).

16. See, Galindez v. State, 955 So. 2d 517 (Fla.2007).

17. Ayala v. State, — So. 2d —, 2008 WL 268699 (Fla. Dist. Ct. App. 5th Dist. 2008).

18. See, e.g., State v. Shattuck, 704 N.W. 2d 131 (Minn. 2005); State v. Hughes, 154 Wash. 2d 118, 110 P. 3d 192 (2005); State ex rel. Mason v. Griffin, 104 Ohio St. 3d 279, 819 N.E. 2d 644 (2004); State v. Kessler, 276 Kan. 202, 73 P.3d 761 (2003) (holding that court could not improvise sentencing jury proceeding to respond to Apprendi).

19. See, e.g., U.S. v. Henry, 282 F. 3d 242 (3d Cir. 2002) (holding that jury can be convened for sole purpose of deciding facts that will determine sentence following Apprendi error at trial); State v. Schofield, 895 A.2d 927 (Me. 2005) (holding that court had “inherent judicial power” to impanel sentencing jury in response to Blakely); Smylie v. State, 823 N.E.2d 679, 684-85 (Ind. 2005) (holding that to meet Blakely requirements, jury may be convened to consider sentencing factors), cert. denied, 546 U.S. 976, 126 S. Ct. 545 (2005); Aragon v. Wilkinson, 209 Ariz. 61, 97 P.3d 886, 891 (2004) (stating that “although the statutory sentencing scheme does not currently provide for convening a jury trial during the sentencing phase of a non-capital case, nothing in our rules or statutes prohibits the court from doing so” and that on remand to resolve any Apprendi or Blakely problem, the trial court “may utilize its inherent authority to convene a jury trial on the existence of facts that may support imposition of an aggravated sentence”).

20. See, Robinson v. State, 793 So. 2d 891, 893 (Fla. 2001) (holding that Florida’s PRR statute is not invalidated by Apprendi: “The [PRR] 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.”).

21. Gudinas v. Florida, 879 So. 2d 616 (Fla.2004) (habitual violent felony offender sentences do not run afoul of Apprendi); Gordon v. State, 787 So. 2d 892 (Fla. Dist. Ct. App. 4th Dist. 2001); Walker v. State, 790 So. 2d 1200 (Fla. Dist. Ct. App. 5th Dist. 2001); Jacobs v. State, 785 So. 2d 713 (Fla. Dist. Ct. App. 4th Dist. 2001); Morant v. State, 785 So. 2d 665 (Fla. Dist. Ct. App. 3d Dist. 2001); Simmons v. State, 782 So. 2d 1000 (Fla. Dist. Ct. App. 4th Dist. 2001); Gray v. State, 780 So. 2d 1042 (Fla. Dist. Ct. App. 4th Dist. 2001); Wright v. State, 780 So. 2d 216 (Fla. Dist. Ct. App. 5th Dist. 2001); see also, Eutsey v. State, 383 So. 2d 219 (Fla. 1980) (rejecting the notion that a defendant was entitled to have a jury determine, beyond a reasonable doubt, the existence of the predicates necessary for imposition of a habitual felony offender sentence).

22. Tillman v. State, 900 So. 2d 633 (Fla. Dist. Ct. App. 2d Dist. 2005); Matthews v. State, 891 So. 2d 596 (Fla. Dist. Ct. App. 3d Dist. 2004); Frumenti v. State, 885 So. 2d 924 (Fla. Dist. Ct. App. 5th Dist. 2004); McBride v. State, 884 So. 2d 476 (Fla. Dist. Ct. App. 4th Dist. 2004); Fyler v. State, 852 So. 2d 442 (Fla. Dist. Ct. App. 5th Dist. 2003), review denied, 860 So. 2d 977 (Fla. 2003); Grant v. State, 815 So. 2d 667, 668 n. 3 (Fla. Dist. Ct. App. 2d Dist. 2002); Jones v. State, 791 So. 2d 580 (Fla. Dist. Ct. App. 1st Dist. 2001); Saldo v. State, 789 So. 2d 1150 (Fla. Dist. Ct. App. 3d Dist. 2001); Gordon v. State, 787 So. 2d 892 (Fla. Dist. Ct. App. 4th Dist. 2001).

23. Hall v. State, 823 So. 2d 757 (Fla. 2002), citing United States v. White, 240 F.3d 127, 135 (2nd Cir. 2001) (holding that the district court’s use of section 5G1.2(d) [of the United States Sentencing Guidelines to sentence defendant consecutively] did not result in a sentence on any one count above the maximum available on that count . . . and so did not violate Apprendi); People v. Wagener, 196 Ill. 2d 269, 752 N.E.2d 430, 441, 256 Ill. Dec. 550 (Ill.), cert. denied, 534 U.S. 1011, 122 S. Ct. 498, 151 L. Ed. 2d 408 (2001) (holding Apprendi concerns are not implicated by consecutive sentencing).