Galindez v. State

In Galindez v. State, 910 So.2d 284, 285 (Fla. 3d DCA 2005), the Third District Court of Appeal certified conflict with the First District Court of Appeal’s decision in Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), which held that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), decided after the defendant’s conviction was final, apply to a subsequent resentencing. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.; Galindez v. State, 925 So.2d 1030 (Fla.2006) (granting review). As we explain below, we find that any failure to apply Apprendi and Blakely in this case constitutes harmless error. Accordingly, we need not determine whether these Supreme Court cases apply in such resen-tencings and we decline to resolve the conflict at this time.

I. APPRENDI AND BLAKELY AND THE CONFLICT IN THE DISTRICT COURTS

Below we first explain the holdings in Apprendi and Blakely and the pertinent facts of Galindez and briefly describe the conflict between the district courts. We then apply the Supreme Court’s recent decision in Washington v. Recuenco, — U.S. -, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), to the facts of this case and conclude that any error in applying Apprendi and Blakely is harmless.

A. Apprendi and Blakely and Sentencing

The Supreme Court’s decisions in Ap-prendi and Blakely have significantly affected criminal sentencing procedure at both the state and federal levels. In 2000, the Court held in Apprendi that “[o]ther 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.” 530 U.S. at 490, 120 S.Ct. 2348. Four years later, the Court applied Apprendi in examining a sentence imposed upon the defendant’s guilty plea. Blakely, 542 U.S. at 301, 124 S.Ct. 2531. Addressing the State’s claim that the sentence fell within the statutory maximum, the Court stated the following:

Our precedents make clear, however, that the “statutory maximum” for Ap-prendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. 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 proper authority.

Id. at 303-04, 124 S.Ct. 2531 (citations omitted).

The Supreme Court recently applied the principles of Apprendi and Blakely to a determinate sentencing statute. Cunningham v. California, — U.S. -, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). California’s sentencing scheme granted trial courts discretion to sentence defendants to one of three terms of years. The middle term was the designated default, but the trial court could impose the upper term upon its own finding of aggravating factors that the Supreme Court concluded were “neither inherent in the jury’s verdict nor embraced by the defendant’s plea.” Id. at 860. Concluding that the middle term constituted the statutory maximum, the Court held that “[bjecause the [statute] allocates to judges the sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment.” Id. at 859.

With these three decisions, the Court effectively eliminated most judicial factfinding that would increase a sentence. Except for the fact of a prior conviction, a judge may not find any fact that exposes a defendant to a sentence exceeding the relevant statutory maximum, unless that fact inheres in the verdict, the defendant waives the right to a jury finding, or the defendant admits the fact. Under Appren-di, Blakely, and Cunningham, such sentence-elevating facts must be found by a jury, not a judge, and established beyond a reasonable doubt.

B. The Facts of the Case

Based on the evidence, including the twenty-four-year-old Galindez’s admissions that he repeatedly had sexual relations with a twelve-year-old girl over a period of several months and impregnated her and the pregnant victim’s testimony confirming those facts, a jury found Galindez guilty of two counts of lewd and lascivious assault on a minor and one count of child abuse by impregnating the victim. See §§ 800.04, 827.04(3), Fla. Stat. (1997). Galindez’s sentencing scoresheet assessed 240 victim injury points (3 x 80) for sexual penetration, and the trial court sentenced Gal-indez to a guidelines sentence of thirty years in prison. The Third District affirmed. Galindez v. State, 728 So.2d 333 (Fla. 3d DCA 1999).

Galindez then filed a motion under Florida Rule of Criminal Procedure 3.800(a), alleging scoresheet error. See Galindez v. State, 831 So.2d 780, 780 (Fla. 3d DCA 2002). On rehearing, the district court held that Galindez’s scoresheet “erroneously reflect[ed] an assessment of 80 victim injury points” for his conviction on one of the lewd and lascivious assault counts. Id. Because “the conviction was for sexual union without penetration” and sexual penetration was not charged, the court held he should have been assessed only 40 points. Id. The Third District reversed and remanded for resentencing.

On October 30, 2003, the circuit court used a revised guidelines scoresheet assessing 200 victim injury points to sentence Galindez to 24 years in prison: 18 years on Count I (lewd assault on a minor); a consecutive sentence of six years on Count TV (lewd assault on a minor); and, concurrent with Count IV, a five-year sentence on Count V (child abuse by impregnation).

Almost immediately, Galindez filed a motion for resentencing, which the circuit court denied on November 21, 2003. Gal-indez appealed to the Third District. During the pendency of that appeal, he filed a motion in the circuit court under Florida Rule of Criminal Procedure 3.800(b), arguing for the first time that the assessment of victim injury points violated Apprendi because the jury did not make the victim injury findings. The circuit court denied the motion.

The following month, the United States Supreme Court decided Blakely. In considering Galindez’s appeal, the Third District stated that the “primary issue” was whether Apprendi and Blakely “require the invalidation of any points for penetration because they were assessed by the court, rather than by the jury.” Galindez, 910 So.2d at 284-85. The court held that to apply Apprendi and Blakely to the re-sentencing in this case would constitute their retroactive application and thus “alter the effect of a jury verdict and conviction.” Id. at 285. The court certified conflict with the First District’s contrary decision in Isaac.

C. The Conflict with Isaac

In light of our decision in Hughes v. State, 901 So.2d 837, 838 (Fla.2005), that Apprendi does not apply retroactively to cases that were final when it was decided, the Third District in Galindez held that to apply Apprendi and Blakely in a resen-tencing held after those opinions issued, when the conviction and original sentence were final before they issued, would constitute retroactive application. Galindez, 910 So.2d at 285. In the conflict case, however, the First District held the opposite. See Isaac, 911 So.2d at 814.

Isaac’s conviction was final in 1998, and his sentence was final the next year. See id. Subsequently, pursuant to a rule 3.800(a) motion, Isaac’s sentence was vacated, and he was resentenced. During the pendency of his appeal from resentenc-ing, he filed motions under Florida Rules of Criminal Procedure 3.850 and 3.800(b) raising claims of Apprendi error. See Isaac, 911 So.2d at 814; Isaac v. State, 826 So.2d 396, 396 (Fla. 1st DCA 2002). In considering the circuit court’s denial of Isaac’s 3.850 motion, the First District stated that the “heart” of Isaac’s claim was that, by making the factual determination of an escalating pattern of criminal activity in imposing a departure sentence at resen-tencing, the trial court violated Apprendi, as clarified by Blakely. 911 So.2d at 814. The First District concluded that

as Apprendi was decided prior to the appellant’s resentencing, the trial court was bound by its holding. Although this Court previously affirmed the appellant’s departure sentence on the basis that Apprendi does not apply so long as a sentence does not exceed the statutory maximum set forth in section 775.082, Isaac, 826 So.2d at 396, the statutory maximum has since been revealed to mean “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 124 S.Ct. at 2537. Therefore, a departure sentence imposed pursuant to the trial court determining a fact by merely a preponderance of the evidence violates the holding of Apprendi as explained by Blakely.

Id. at 814-15; accord Moline v. State, 31 Fla. L. Weekly D701, — So.2d -, 2006 WL 504028 (Fla. 1st DCA Mar.3, 2006), notice invoking discretionary review filed, No. SC06-482 (Fla. Mar. 13,2006).

Although these two district court decisions clearly conflict regarding the application of Apprendi and Blakely in resentenc-ings held after a conviction is final, we express no opinion on this issue. As we explain below, if it was error not to apply these cases at the resentencing hearing, the error is harmless.

II. APPRENDI AND HARMLESS ERROR

We agree with the State that even if Apprendi and Blakely apply to Galindez’s resentencing, any error is harmless beyond a reasonable doubt in this case. Although we have not previously addressed whether Apprendi error may be harmless, we have previously held that it is not fundamental error, and that the error must be preserved for appellate review in order to obtain relief. Hughes, 901 So.2d at 844 (“Finally, concerning Apprendi, we [have] held ... that a claim of Apprendi error must be preserved for review and we expressly rejected the assertion that such error is fundamental.”). Recently, however, the United States Supreme Court addressed the harmless error issue directly. Below, we address (A) the applicable harmless error test, and (B) our conclusion that any error is harmless in Galindez’s case.

A. The Applicable Harmless Error Test

The United States Supreme Court has recently addressed whether an Ap-prendi error can be harmless. In Washington v. Recuenco, — U.S. -, -, 126 S.Ct. 2546, 2549, 165 L.Ed.2d 466 (2006), the jury found the defendant guilty of assaulting his wife with a deadly weapon, which the information charged was “a handgun.” At sentencing, the judge found that the defendant was armed with a “firearm” and imposed the three-year mandatory sentence enhancement attendant to that finding, rather than the one-year enhancement attendant to the jury’s “deadly weapon” finding. On appeal, the State conceded that this violated Blakely and Apprendi, but argued the error was harmless. Id. at 2549-50. The Washington Supreme Court, however, had previously concluded that Apprendi/Blakely error could never be harmless. Id. at 2550 (quoting State v. Hughes, 154 Wash.2d 118, 110 P.3d 192, 205 (2005), which held that Blakely error was structural error requiring reversal). The Supreme Court granted review solely to determine whether harmless error analysis applies to such error.

The Court acknowledged that under Ap-prendi it “ha[d] treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt.” 126 S.Ct. at 2552. Accordingly, the Court found the case before it in Recuenco “indistinguishable from” Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), explaining:

The only difference between this case and Neder is that in Neder, the prosecution failed to prove the element of materiality to the jury beyond a reasonable doubt, while here the prosecution failed to prove the sentencing factor of “armed with a firearm” to the jury beyond a reasonable doubt. Assigning this distinction constitutional significance cannot be reconciled with our recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes.

Recuenco, 126 S.Ct. at 2552.

Because the question of Appren-di/Blakely error also involved judicial fact-finding versus jury factfinding, the Court concluded that the harmless error analysis applied in Neder also applied to the error in Recuenco. Id. In Neder, the Court framed the test as follows: “Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?” Neder, 527 U.S. at 18, 119 S.Ct. 1827. The Court concluded that the same harmless error analysis developed in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and applied in cases concerning the erroneous admission of evidence under the Fifth and Sixth Amendments, also applied to infringement of the jury’s factfinding role under the Sixth Amendment. Neder, 527 U.S. at 18, 119 S.Ct. 1827. The Court explained that

a court, in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is “no,” holding the error harmless does not “reflec[t] a denigration of the constitutional rights involved.” Rose [v. Clark], 478 U.S. [570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)].

527 U.S. at 19, 119 S.Ct. 1827. For example, in Neder, the jury instructions omitted the element of materiality, a fact which was improperly found by the judge in violation of the right to jury trial. Id. at 18, 119 S.Ct. 1827. The Court found that strong evidence supported the judicial finding and explained that “[i]n a case such as this one, where a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee.” Id. at 19, 119 S.Ct. 1827.

This Court has long applied Chapman’s harmless error analysis, which we outlined in State v. DiGuilio, 491 So.2d 1129 (Fla.1986), to claims of failure to instruct on an undisputed element. See Glover v. State, 863 So.2d 236, 237-38 (Fla.2003) (approving the district court’s holding that the age of the defendant is an element of capital sexual battery but that any error in failing to instruct on this undisputed element was harmless); see also State v. Delva, 575 So.2d 643, 645 (Fla.1991) (stating that the failure “to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error” and is subject to the contemporaneous objection rule).

Finally, in Recuenco, the Supreme Court reversed the Washington Supreme Court’s holding that harmless error analysis does not apply'to Apprendi error. Accordingly, to the extent some of our pre-Apprendi decisions may suggest that the failure to submit factual issues to the jury is not subject to harmless error analysis, Re-cuenco has superseded them. See, e.g., State v. Estevez, 753 So.2d 1, 7 (Fla.1999) (holding that even where the evidence is uncontroverted, to sentence a defendant to a minimum mandatory sentence for trafficking, the jury must make express findings of the amount of cocaine involved); State v. Hargrove, 694 So.2d 729, 730 (Fla.1997) (holding that even where evidence regarding the use of a firearm is unrebut-ted, to impose mandatory minimum sentence, a jury must make that finding); State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) (holding that to enhance a sentence because of the defendant’s use of a firearm, the jury must find the defendant guilty of a crime involving a firearm or otherwise specifically find that a firearm was used).

We now turn to the question of harmless error in this case.

B. Apprendi Error Is Harmless in this Case

At resentencing, the trial court assessed 200 points for victim injury with regard to Counts I and IV (lewd and lascivious assault) and Count V. Galindez contends that the trial court erred in assessing 80 points as to Count I. Count I charged that “on various occasions” in a four-month period, Galindez “committed an act defined as sexual battery” on a child “by placing his penis in union with ... and/or penetrating the vagina of A.M. (a minor) with his penis.” Galindez claims that because the charge was made in the alternative (and therefore the jury did not specifically find that penetration was involved), the trial court could assess only 40 points for victim injury. The exception in Blakely does not apply because Galindez did not waive the right to factfinding by a jury and did not admit the facts. Blakely, 542 U.S. at 303-304, 124 S.Ct. 2531. Therefore, assuming Apprendi applies to Galindez’s resentencing, for purposes of our harmless error analysis the issue is whether the failure to have the jury make the victim injury finding as to Count I contributed to the conviction or sentence— in other words, whether the record demonstrates beyond a reasonable doubt that a rational jury would have found penetration. Cf. Delvalle v. State, 653 So.2d 1078, 1079 (Fla. 5th DCA 1995) (citing DiGuilio and holding that where the defendant alleged that error regarding a lesser included offense deprived him of a jury pardon, “[gjiven the evidence adduced at trial, the error also was harmless, since it is inconceivable that any rational jury could have returned a verdict finding that there was no firearm involved in the commission of the charged offenses”).

At trial the young victim, then pregnant by Galindez, testified that she and Galin-dez engaged in sexual intercourse on multiple occasions over a period of several months. Galindez’s confession confirming these facts, including his admission that they repeatedly had sexual intercourse, was admitted at trial. Finally, Galindez’s defense at trial was that the twelve-year-old victim consented. Thus, Galindez did not dispute the facts of the sexual relationship at trial, and he did not contest them at resentencing, either.

In light of the clear and uncontested record evidence of penetration regarding Count I, we hold that no reasonable jury would have returned a verdict finding there was no penetration. See Neder, 527 U.S. at 19, 119 S.Ct. 1827 (“[Wjhere a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee.”). Accordingly, we find the error in this case harmless beyond a reasonable doubt.

III. CONCLUSION

For the foregoing reasons, we hold that harmless error analysis applies to Appren-di and Blakely error. Accordingly, we approve the result but not the reasoning of the decision below.

It is so ordered.

LEWIS, C.J., and ANSTEAD, PARIENTE, QUINCE, and CANTERO, JJ., concur.

CANTERO, J., specially concurs with an opinion, in which WELLS and BELL, JJ., concur.

WELLS and BELL, JJ., concur in result only.

. Although in his rule 3.800(b) motion Galin-dez disputed the trial court’s assessing any victim injury points, he does not repeat that claim here.

. Galindez’s confession, which was admitted at trial, would not be an "admission” as contemplated in Blakely. The admissions to which the Court alluded were facts the defendant admits in a guilty plea. Blakely, 542 U.S. at 304, 124 S.Ct. 2531; cf. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (noting that in determining the nature of the defendant’s prior conviction for sentence-enhancing purposes, the sentencer is "generally limited to examining the statutory definition [of the crime], charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented ”) (emphasis added). Courts have included a defendant’s testimony at sentencing and stipulations at trial in this category. See, e.g., United States v. Collier, 413 F.3d 858, 860-61 (8th Cir.2005) (holding "no Sixth Amendment violation” occurred because the defendant "chose to testify [at sentencing] and admitted the facts upon which the court imposed sentence”); United States v. Champion, 234 F.3d 106, 110 (2d Cir.2000) (finding that at trial the defendant stipulated to the quantity of drugs involved in the crime and “he would have been subject to a mandatory minimum sentence of 10 years, in any event”). Galindez’s confession at arrest does not constitute an express agreement to a jury or judicial finding.