Hughes v. State

In this case, we consider whether a decision of the United States Supreme Court applies to defendants whose convictions already were final when that case was decided. In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the United States Supreme Court held that “[ojther 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.” In Hughes v. State, 826 So.2d 1070 (Fla. 1st DCA 2002), the district court certified as a question of great public importance whether the rule announced in Apprendi applies retroactively. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. As explained below, we hold that Apprendi does not apply retroactively.

I. FACTS

Sections 921.001(5) and 921.0014(2), Florida Statutes (1997), (part of the 1994 sentencing guidelines) require that, when the recommended sentence computed on the sentencing scoresheet exceeds the maximum sentence provided in section 775.082, Florida Statutes (1997), the guidelines sentence must be imposed. In this case, a jury convicted the petitioner of battery by a jail detainee on a jail detainee. The crime constituted a third-degree felony, for which the maximum sentence under section 775.082 is 60 months’ imprisonment. 826 So.2d at 1071-72; see § 784.082, Fla. Stat. (1997) (providing that the offense is a third-degree felony). The petitioner’s sentencing guidelines score-sheet, however, assessed forty points for severe victim injury and four points for a legal status violation. The scoresheet required a sentence of 80.4 months, which is longer than the statutory maximum. Consistent with section 921.001(5), the trial court imposed the longer sentence.

After the petitioner’s conviction and sentence became final, he filed a motion under Florida Rule of Criminal Procedure 3.800(a) (used to correct an illegal sentence), contending that the points assessed on his scoresheet for severe victim injury and a legal status violation caused his sentence to exceed the statutory maximum, in violation of Apprendi The trial court denied relief, and the district court affirmed. Hughes, 826 So.2d at 1074-75. The First District Court of Appeal held, among other things, that Apprendi does not apply retroactively. Id. Since then, each of the district courts has agreed. See Burrows v. State, 890 So.2d 286, 287 (Fla. 2d DCA 2004); Enoch v. State, 873 So.2d 443 (Fla. 5th DCA 2004); Figarola v. State, 841 So.2d 576, 577 (Fla. 4th DCA 2003), notice invoking discretionary review filed, No. SC03-586 (Fla. Apr. 7, 2003); Brown v. State, 829 So.2d 286, 287 (Fla. 3d DCA 2002), cert. denied, 537 U.S. 1196, 123 S.Ct. 1263, 154 L.Ed.2d 1033 (2003).

II. COMPREHENDING APPRENDI

The defendant in Apprendi was charged with possession of a firearm for an unlawful purpose, which under New Jersey law carried a maximum sentence of ten years’ imprisonment. 530 U.S. at 468-70, 120 S.Ct. 2348. The trial court found that the defendant committed the offense while motivated by racial bias and therefore imposed an enhanced eighteen-year sentence under the state’s “hate crime” statute. The issue was “whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt.” Id. at 469, 120 S.Ct. 2348. The Supreme Court held 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.” Id. at 490,120 S.Ct. 2348.

III. THE WITT RETROACTIVITY ANALYSIS

When the United States Supreme Court or this Court renders a decision favorable to criminal defendants, the question becomes: who may benefit from the decision? We have held that such decisions apply in all cases to convictions that are not yet final — that is convictions for which an appellate court mandate has not yet issued. Smith v. State, 598 So.2d 1063, 1066 (Fla.1992) (holding that “any decision of this Court announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final”), limited by Wuornos v. State, 644 So.2d 1000, 1007 n. 4 (Fla.1994) (reading Smith “to mean that new points of law established by this Court shall be deemed retrospective with respect to all non-final cases unless this Court says otherwise”), cert. denied, 514 U.S. 1069, 115 S.Ct. 1705, 131 L.Ed.2d 566 (1995); see also Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (holding “that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final”).

Once a conviction is final,, however, the State acquires an interest in the finality of the convictions. As we have previously statéd,

[t]he importance of finality in any justice system, including the criminal justice system, cannot be understated. It has long been recognized that, for several reasons, litigation must, at some point, come to an end. In terms of the availability of judicial resources, cases must eventually become final simply to allow effective appellate review of other cases. There is no evidence that subsequent collateral review is generally better than contemporaneous appellate review for ensuring that a conviction or sentence is just. Moreover, an absence of finality casts a cloud of tentativeness over the criminal justice system, benefitting neither the person convicted nor society as a whole.

Witt v. State, 387 So.2d 922, 925 (Fla.1980); see also United States v. Addonizio, 442 U.S. 178, 184 n. 11, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (noting that “[ijnroads on the concept of finality tend to undermine confidence in the integrity of our procedures”). Therefore, the issue is whether such cases can be applied to defendants whose convictions already were final when the decision was rendered.

We analyze whether a change in decisional law should be applied retroactively under the framework outlined in Witt. There, we held that a change of law would not be deemed retroactive “unless the change: (a) emanates from this Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance.” Id. at 931. In this case, it is clear, and the parties agree, that the first two prongs are met. Accordingly, the question is whether Apprendi constitutes a “development of fundamental significance.” In Witt, we stated that most major constitutional changes fall within one of two categories: changes “which place beyond the authority of the state the power to regulate certain conduct or impose certain penalties” and those “which are of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall and Linkletter.” 387 So.2d at 929. The holding in Apprendi does not fall within the first category. Therefore, the still narrower question is whether it is of sufficient magnitude as to require retroactive application. To decide that issue, we must consider the three factors of the Stovall/Linkletter test: (a) the purpose to be served by the new rule; (b) the extent of rebanee on the old rule; and (c) the effect of retroactive application of the rule on the administration of justice. Witt, 387 So.2d at 926. In Witt we described those decisional changes that do not meet this standard, and we are guided by this principle now:

In contrast to these jurisprudential upheavals are evolutionary refinements in the criminal law, affording new or different standards for the admissibility of evidence, for procedural fairness, for proportionality review of capital cases, and for other like matters. Emergent rights in these categories, or the retraction of former rights of this genre, do not compel an abridgement of the finality of judgments. To allow them that impact would, we are convinced, destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state, fiscally and intellectually, beyond any tolerable limit.

Id. at 929-30 (emphasis added). We address each of the Stovall/Linkletter factors in turn.

A. The Purpose To Be Served by the New Rule

The first factor we must consider under the Stovall/Linkletter test is the purpose to be served by the new rule. Witt, 387 So.2d at 926. To reiterate, the holding in Apprendi is that “[ojther 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. The decision in Apprendi was intended to guard against erosion of the Sixth Amendment’s guarantee of the right to jury trial, by requiring that a jury decide the facts supporting a sentence that exceeds the statutory maximum. See 530 U.S. at 483, 120 S.Ct. 2348. That rule is procedural, as is clear from the Supreme Court’s statement that its concern was with the adequacy of New Jersey’s criminal procedure. 530 U.S. at 475, 120 S.Ct. 2348 (“The substantive basis for New Jersey’s enhancement is thus not at issue; the adequacy of New Jersey’s procedure is.”); see also id. at 484, 120 S.Ct. 2348 (describing the reasonable doubt standard as a type of criminal procedure protection); Curtis v. United States, 294 F.3d 841, 843 (7th Cir.) (noting that “Apprendi is about nothing but procedure — who decides a given question (judge versus jury) and under what standard (preponderance versus reasonable doubt)”), cert. denied, 537 U.S. 976, 123 S.Ct. 451, 154 L.Ed.2d 334 (2002). The Court affirmed this understanding in Ring v. Arizona, 536 U.S. 584, 605, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which applied Apprendi to death penalty cases, when it characterized Apprendi as determining “ ‘who decides,’ judge or jury.” See also Schriro v. Summerlin, 542 U.S. 348, -, 124 S.Ct. 2519, 2523, 159 L.Ed.2d 442 (2004) (stating that “Ring altered the range of permissible methods for determining whether a defendant’s conduct is punishable by death”). The effect of the rule is solely to shift factfinding responsibility from the judge to the jury and to increase the burden of proof for those facts that increase the penalty for a crime beyond its statutory maximum. See Summerlin, 124 S.Ct. at 2523. (“Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules, a conclusion we have reached in numerous other contexts.”); United States v. Sanders, 247 F.3d 139, 148 (4th Cir.) (stating that the Apprendi rule “merely shifts the fact-finding duties from an impartial judge to a jury”), cert. denied, 534 U.S. 1032, 122 S.Ct. 573, 151 L.Ed.2d 445 (2001).

Moreover, Apprendi permits a judge to continue to make these same factual determinations as long as the resulting sentence does not exceed the statutory maximum. See Harris v. United States, 536 U.S. 545, 557, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (holding that the determination of whether a weapon was “brandished” to support the imposition of a mandatory minimum sentence was a sentencing factor to be found by the trial court, and the plurality explaining that a judge may determine a fact increasing the minimum sentence within the statutory maximum because the jury verdict already authorizes the sentence); see also Sepulveda v. United States, 330 F.3d 55, 60 (1st Cir.2003) (noting that the defendant’s sentence was not “plucked out of thin air”; the judge determined it “based upon discrete findings of fact established by a fair preponderance of the evidence”). The Court was not concerned that the established procedure was fundamentally unfair. As the Court explained in Ring, “The Sixth Amendment jury trial right ... does not turn on the relative rationality, fairness, or efficiency of potential factfinders.” 536 U.S. at 607, 122 S.Ct. 2428; accord Summerlin, 124 S.Ct. at 2525 (“When so many presumably reasonable minds continue to disagree over whether juries are better factfinders at all, we cannot say that judicial factfinding seriously diminishes accuracy.”).

Apprendi does not affect the determination of guilt or innocence; it only requires that sometimes the jury, not the judge, must decide factual aspects of the sentencing decision. See Sepulveda, 330 F.3d at 60 (stating that “Apprendi’s new rule not only fails to impugn the accuracy of convictions that became final beforehand but also falls short of rendering sentences imposed under the pre-Apprendi regime seriously inaccurate”); United States v. Brown, 305 F.3d 304, 309 (5th Cir.2002) (stating that Apprendi “did not change what the Government must prove, only that the jury, rather than the judge must decide” the question), cert. denied, 538 U.S. 1007, 123 S.Ct. 1919, 155 L.Ed.2d 840 (2003). Although Apprendi reflects due process concerns, it does not address a miscarriage of justice or effect a judicial upheaval to the degree necessary to require its retroactive application. See Coleman v. United States, 329 F.3d 77, 89 (2d Cir.2003) (stating that Apprendi “merely ‘clarified and extended’ the scope of two well-settled principles of criminal procedure: the defendant’s right to a jury trial and the government’s burden of proof beyond a reasonable doubt”), cert. denied, 540 U.S. 1061, 124 S.Ct. 840, 157 L.Ed.2d 719 (2003). As the First District noted, “the plight of a defendant who is serving a sentence that was enhanced because of judge-decided factors is not necessarily any more severe than that of an equally-situated defendant whose sentence was enhanced based on jury-determined factors.” Hughes, 826 So.2d at 1074.

Further supporting our analysis are cases from the United States Supreme Court and this Court. We begin with a pair of cases that closely parallel the situation here. In Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Supreme Court held that the Sixth Amendment right to a jury trial applies to the States through the Fourteenth Amendment. Concluding that this right is “fundamental to the American scheme of justice,” the Court stated that this conclusion in no way impugned the integrity of bench trials. Id. at 149, 157-58, 88 S.Ct. 1444. The Court explained,

“We would not assert, however, that every criminal trial — or any particular trial— held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury.” Id. at 158, 88 S.Ct. 1444. The Court rejected the retroactive application of Duncan in DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968). Using the Linkletter standard we adopted in Witt, the Court cited the above-quoted language in Duncan and determined that “[t]he values implemented by the right to jury trial would not measurably be served by requiring retrial of all persons convicted in the past by procedures not consistent with the Sixth Amendment right to jury trial.” Id. at 634, 88 S.Ct. 2093. Thus, under the Linkletter standard we apply in this case, the Supreme Court did not consider the previous denials of jury trials in criminal cases to have been so fundamentally flawed or implicitly unfair that Duncan required retroactive application. As the Court explained in Johnson v. New Jersey, 384 U.S. 719, 728-29, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) (holding that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) was not retroactive), “the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the factfinding process is necessarily a matter of degree.” The decision not to apply a constitutional ruling retroactively “do[es] not disparage a constitutional guarantee in any manner.” Id. at 728, 86 S.Ct. 1772.

By comparison, the rule in Apprendi imposing a requirement that a jury, rather than the judge, must decide the facts affecting sentencing, is clearly of lesser stature than the decision in Duncan, which extended to the States the constitutional right to a jury trial. See State v. Towery, 204 Ariz. 386, 64 P.3d 828, 835 (2003) (using the Linkletter elements to hold that Ring did not apply retroactively and noting that “[i]f the basic right to a jury trial does not apply retroactively, then a right to a jury determination of aggravating circumstances that function essentially as elements of a greater offense also does not apply retroactively”), cert. dismissed, 539 U.S. 986, 124 S.Ct. 44, 156 L.Ed.2d 702 (2003). Therefore, Apprendi does not implicate core values to the degree necessary to its retroactive application.

The Supreme Court’s recent decision in Summerlin, 124 S.Ct. at 2519, further supports our conclusion. The Court in Sum-merlin considered whether the holding in Ring, which applied the Apprendi rule to death penalty cases, applied retroactively. Stating that rules “that regulate only the manner of determining the defendant’s culpability are procedural,” the Court held that the rule announced in Ring was procedural. Id. at 2523. The Court explained that because judicial fact-finding does not seriously diminish the reliability or accuracy of the fact-finding process, the earlier procedure by which judges found the facts relevant to sentencing is not fundamentally unfair. Id. at 2525. As to retroactivity, the Court concluded that “[i]f under DeStefano a trial held entirely without a jury was not impermissibly inaccurate, it is hard to see how a trial in which a judge finds only aggravating factors could be.” Id. at 2526.

Nor does the failure to submit an element of a crime to the jury always require a remedy. In Neder v. United States, 527 U.S. 1, 8-9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), the Supreme Court held that a trial court’s determination of materiality in a tax fraud case, which violated United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (holding that materiality is an element for the jury), was not a structural error that rendered the trial fundamentally unfair. Rather, the Court held that although the failure to submit the element to the jury violated the right to a jury trial, the error was subject to. harmless error analysis. 527 U.S. at 9, 12, 119 S.Ct. 1827. Thus, in the Supreme Court’s view, a Sixth Amendment error does not automatically require a retrial even if a jury did not decide all the facts relevant to sentencing.

Chief Justice Pariente contends that Ap-prendi must be applied retroactively because of its extension of the beyond-a-reasonable-doubt standard of proof to findings of fact authorizing a sentence greater than that stemming directly from the jury verdict., Dissenting op. at 852. She relies on the Supreme Court’s statement in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), discussing the importance of the reasonable doubt standard in reducing the risk of an inaccurate conviction. Although Apprendi did cite Winship for this principle, it does not follow that the decision is so fundamentally significant that it must be applied retroactively. First, the defendant already has been convicted based on the reasonable doubt standard. Apprendi affects only the procedure for enhancing the sentence. See United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir.), cert. denied, 537 U.S. 939, 123 S.Ct. 48, 154 L.Ed.2d 243 (2002); see also State v. Tallard, 149 N.H. 183, 816 A.2d 977, 981 (2003) (‘Apprendi altered the procedure under which an enhanced sentence can be imposed. It did not affect the procedure for obtaining an accurate conviction on the underlying offense.”). Thus, Apprendi “does not rise to the level of importance of Winship.” San-■ chez-Cervantes, 282 F.3d at 671. Further, “even in the post-Apprendi era, findings of fact made by the sentencing judge, under a preponderance standard, remain an important part of the sentencing regimen.” Sepulveda, 330 F.3d at 60.

Analytically, the impact of failing to apply the reasonable doubt standard to a sentencing factor is certainly no more serious than the impact of omitting an element of a crime from the jury’s consideration. Yet the Supreme Court has held that the latter is subject to harmless error analysis. See Neder, 527 U.S. at 9, 119 S.Ct. 1827 (“Unlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.”). Thus, neither the accuracy of convictions nor of sentences imposed and final before Apprendi issued is seriously impugned. Id.

Finally, concerning Apprendi, we held in McGregor v. State, 789 So.2d 976, 977 (Fla.2001), that a claim of Apprendi error must be preserved for review and we expressly rejected the assertion that such error is fundamental. The United States Supreme Court also rejected an unpreserved Apprendi claim in United States v. Cotton, 535 U.S. 625, 634, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Under its plain error analysis, the Court held that even if an Apprendi error were presumed to have affected the defendant’s substantial rights, “the error did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings.” Id. at 632-33, 122 S.Ct. 1781. The Court concluded that “[t]he real threat then to the ‘fairness, integrity, and public reputation of. judicial proceedings’ would be if respondents, despite the overwhelming and uncontrovert-ed evidence that they were involved in a vast drug conspiracy, were to receive a sentence prescribed for those committing less substantial drug offenses because of an error that was never objected to at trial.” Id. at 634, 122 S.Ct. 1781; see also United States v. Sanchez-Cervantes, 282 F.3d 664, 670 (9th Cir.) (stating that because Apprendi claims are subject to a harmless error analysis, Apprendi is not a “bedrock procedural rule”), cert. denied, 537 U.S. 939, 123 S.Ct. 48, 154 L.Ed.2d 243 (2002). As the First District stated, “If an Apprendi violation can be harmless, it is difficult to logically conclude that the purpose behind the change of law in Apprendi is fundamentally significant.” Hughes, 826 So.2d at 1074.

In Witt we rejected the retroactive application of changes of law “in the absence of fundamental and constitutional changes which cast serious doubt on the veracity or the integrity of the original proceeding.” 387 So.2d at 929 (emphasis added). Ap-prendi shifted certain fact-finding from judge to jury and “clarified and extended” the right to a jury trial to require the State to prove convictions beyond a reasonable doubt by applying the standard to certain factors affecting sentencing under certain conditions. United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.), cert. denied, 537 U.S. 961, 123 S.Ct. 388, 154 L.Ed.2d 315 (2002). But Apprendi does not impugn the “very integrity of the fact-finding process” or present “the clear danger of convicting the innocent.” Johnson v. New Jersey, 384 U.S. 719, 728, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) (quoting Link-letter, 381 U.S. at 639, 85 S.Ct. 1731). It announced an emerging right of procedural fairness that does not compel the disruption of final judgments. See Witt, 387 So.2d at 929 (stating that “[ejmergent rights in these categories [e.g., procedural fairness] ... do not compel an abridgement of the finality of judgments”).

B. The Extent of Reliance on the Old Rule

The second factor under the Sto-vall/Linkletter test is the extent of reliance on the old rule. Witt, 387 So.2d at 926. Trial courts have long exercised discretion in sentencing. Moreover, since 1994 our trial courts have been permitted to impose sentences exceeding the statutory máxi-mums based on the judge’s factual findings made under the sentencing guidelines and the Criminal Punishment Code. See § 921.001(5), Fla. Stat. (Supp.1994); § 921.0024(2), Fla. Stat. (Supp.1998). Therefore, when Apprendi was decided there had been a considerable period of reliance on this principle in sentencing under both the guidelines and the Code.

C. Effect of Retroactive Application on the Administration of Justice

The third and final factor is the effect of retroactive application on the administration of justice. Witt, 387 So.2d at 926. Two district courts of appeal have stated that retroactive application of Apprendi would have a far-reaching adverse impact on the administration of justice. As the Fifth District noted,

virtually every sentence involving a crime of violence that has been handed down in Florida for almost two decades has included a judicially-determined victim injury component to the guidelines score. Justice O’Connor’s observation that the effect of Apprendi to guidelines sentencing would be “colossal” barely describes the cataclysm in Florida if such sentences are invalidated because the jury did not make the “victim injury” finding.

McCloud v. State, 803 So.2d 821, 827 (Fla. 5th DCA 2001) (en banc), review denied, 821 So.2d 298 (Fla,), cert. denied, 537 U.S. 1036, 123 S.Ct. 553, 154 L.Ed.2d 455 (2002). In this case, the First District concluded that the impact on the administration of justice “would be monumental.” Hughes, 826 So.2d at 1074. As the court noted, “[ejach and every enhancement factor that was determined by a judge and which resulted in a sentence above the statutory maximum will either have to be stricken completely and the sentences recalculated without the factor (which in itself is a laborious process), or a jury will have to be empaneled to decide those factors.” Id.

Also, as previously stated, an Apprendi error must be preserved for review and does not constitute fundamental error. McGregor, 789 So.2d at 977. Therefore, if Apprendi were applied retroactively, defendants convicted before Apprendi but who preserved the issue would be in a better position than defendants convicted after Apprendi but who did not preserve it.

To apply Apprendi retroactively would require review of the record and sentencing proceedings in many eases simply to identify cases where Apprendi may apply. In every case Apprendi affects, a new jury would have to be empaneled to determine, at least, the issue causing the sentence enhancement. In most , cases, issues such as whether the defendant possessed a firearm during the commission of a crime, the extent of victim injury or sexual contact, and whether a child was present (to support use of the domestic violence multiplier) cannot be considered in isolation. Many, if not all, of the surrounding facts would have to be presented. In others, a jury would have to determine factors unrelated to the case (e.g., whether legal status points may be assessed).

In the numerous cases we have decided under Witt, we have “rarely f[ound] a change in decisional law to require retroactive application.” Mitchell v. Moore, 786 So.2d 521, 529 (Fla.2001) (noting that the Court had decided over sixty retroactivity cases at that time). Based on our consideration of the Stovall/Linkletter factors, we conclude that the new criminal proce-

dure rule announced in Apprendi does not warrant retroactive application.

IV. DECISIONS OF OTHER JURISDICTIONS

We also find it persuasive that all but one of the federal courts of appeals have expressly considered the issue, albeit under a different retroactivity analysis, and not one has held Apprendi to apply retroactively. Several state courts also have considered the issue, and again not one has held Apprendi to apply retroactively. Finally,. the United States Supreme Court has held that Ring, which applied Appren-di in the death penalty context, does not apply retroactively. See Summerlin, 124 S.Ct. at 2526.

Justice Anstead criticizes our reliance on these cases because they employ a different standard for determining retroactivity. See infra at 857 (Anstead, J., dissenting). Federal courts, and the majority of state courts, now use the standard articulated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion), which was decided after our decision in Witt. Under Teague, decisions announcing new constitutional rules apply retroactively on collateral review only under two circumstances: (1) decisions placing conduct beyond the power of the government to proscribe; and (2) decisions announcing a “watershed” rule of criminal procedure that is “implicit in the concept of ordered liberty.” 489 U.S. at 311, 109 S.Ct. 1060. While the standards of Teague are different from those of Witt, they are based on many of the same concerns. Compare Teague, 489 U.S. at 309, 109 S.Ct. 1060 (noting that “Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system”), with Witt, 387 So.2d at 925 (noting that “[t]he importance of finality in any justice system, including the criminal justice system, cannot be understated.”). Therefore, although we should conduct our own analysis under the Witt standard (and have done so) we should not blind ourselves to how other courts interpret Apprendi. We consider it relevant, though not dispositive, that no court anywhere in the country, whether state or federal, has held Apprendi to apply retroactively.

Regardless of the standardised, we find it persuasive that courts unanimously consider Apprendi to be a rule of procedure that simply changes who decides certain sentencing issues. Moreover, we have not, as the dissent suggests, relied only on cases that have analyzed retroactivity under Teague. As we explained earlier, the Supreme Court used the same standard we adopted in Witt in holding that the right to a jury trial itself is- not so fundamental as to require retroactive application. See DeStefano, 392 U.S. at 638-34, 88 S.Ct. 2093. If, using the same analysis as we did in Witt, the right to jury trial itself is not retroactive, we fail to see how a subset of that right — a jury determination of facts relevant to sentencing — can be retroactive.

Y. CONCLUSION

In its decision below, the First District Court of Appeal considered other issues that are rendered moot in light of our decision that Apprendi does not apply retroactively. See McCoy v. United States, 266 F.3d 1245, 1255-56 (11th Cir.2001) (deciding the retroactivity issue first because “if Apprendi does not apply retroactively, this alone resolves the case”), cert. denied, 536 U.S. 906, 122 S.Ct. 2362, 153 L.Ed.2d 183 (2002). Therefore, we answer the certified question in the negative, approve the decision, and approve the opinion below to the extent that it holds Apprendi does not apply retroactively.

It is so ordered.

WELLS, QUINCE, and BELL, JJ„ concur.

LEWIS, J., concurs in result only with an opinion.

PARIENTE, C.J., and ANSTEAD, J., dissent with opinions.

. The precise question was:

DOES THE RULING ANNOUNCED IN AP-PRENDI v. NEW JERSEY, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), APPLY RETROACTIVELY?

826 So.2d at 1074.

. Section 921.001(5), Florida Statutes (1997), provides in relevant part that "[i]f 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.” The identical sentence appears in section 921.0014(2), Florida Statutes (1997).

. Figarola also certified the question of whether Apprendi is retroactive. See 841 So.2d at 577.

. The references are to Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

. Notwithstanding the fundamental nature of the right to a jury trial, the Court in Summer-lin concluded that "it does not follow that, when a criminal defendant has had a full trial and one round of appeals in which the State faithfully applied the Constitution as we understood it at the time, he may nevertheless continue to litigate his claims indefinitely in hope that we will one day have a . change of heart.” 124 S.Ct. at 2526.

. As Justice Anstead notes in his dissent, "the underlying conviction is not at issue here.” See dissenting op. at 868.

. We already require a jury finding of firearm possession where the trial court imposes the mandatory minimum sentence for use of a firearm. State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984). Courts have not required a jury finding, however, to assess points for firearm possession during felonies not enumerated in the statute. Crossley v. State, 741 So.2d 1208, 1211 (Fla. 5th DCA 1999); Bradford v. State, 722 So.2d 858, 860 (Fla. 1st DCA 1998); see Fla. R.Crim. P. 3.703(d); White v. State, 714 So.2d 440, 442-44 (Fla.1998).

. See Sepulveda v. United States, 330 F.3d 55, 60 (1st Cir.2003); Coleman v. United States, 329 F.3d 77, 90 (2d Cir.), cert. denied, 540 U.S. 1061, 124 S.Ct 840, 157 L.Ed.2d 719 (2003); United States v. Swinton, 333 F.3d 481, 491 (3d Cir.), cert. denied, 540 U.S. 977, 124 S.Ct. 458, 157 L.Ed.2d 330 (2003); United States v. Brown, 305 F.3d 304, 309 (5th Cir.2002), cert. denied, 538 U.S. 1007, 123 S.Ct. 1919, 155 L.Ed.2d 840 (2003); Goode v. United States, 305 F.3d 378, 382-85 (6th Cir.), cert. denied, 537 U.S. 1096, 123 S.Ct. 711, 154 L.Ed.2d 647 (2002); Curtis v. United States, 294 F.3d 841, 843-44 (7th Cir.), cert. denied, 537 U.S. 976, 123 S.Ct. 451, 154 L.Ed.2d 334 (2002); United States v. Mora, 293 F.3d 1213, 1218-19 (10th Cir.), cert. denied, 537 U.S. 961, 123 S.Ct. 388, 154 L.Ed.2d 315 (2002); United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir.), cert. denied, 537 U.S. 939, 123 S.Ct. 48, 154 L.Ed.2d 243 (2002); United States v. Sanders, 247 F.3d 139, 146 (4th Cir.), cert. denied, 534 U.S. 1032, 122 S.Ct. 573, 151 L.Ed.2d 445 (2001); McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir.2001), cert. denied, 536 U.S. 906, 122 S.Ct. 2362, 153 L.Ed.2d 183 (2002); United States v. Moss, 252 F.3d 993, 998 (8th Cir.2001), cert. denied, 534 U.S. 1097, 122 S.Ct. 848, 151 L.Ed.2d 725 (2002). Federal courts use the retroactivity analysis of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion), under which a new rule is not retroactive unless it (1) places “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority,” or (2) “requires the observance of 'those procedures that ... are implicit in the concept of ordered liberty’ ” and “implicate[s] the fundamental fairness of the trial.” Id. at 307, 311-312, 109 S.Ct. 1060 (quoting Mackey v. United States, 401 U.S. 667, 692, 693, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J„ concurring in judgments in part and dissenting in part)). To qualify under the latter exception, the rule must " ‘alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular proceeding.’ ” Id. at 311, 109 S.Ct. 1060 (quoting Mackey, 401 U.S. at 693, 91 S.Ct. 1171). This exception applies only to "watershed” rules of procedure “central to an accurate determination of innocence or guilt.” Id. at 311, 313.

. See, e.g., Sanders v. State, 815 So.2d 590, 592 (Ala.Crim.App.), cert. denied, 534 U.S. 956, 122 S.Ct. 358, 151 L.Ed.2d 271 (2001); State v. Sepulveda, 201 Ariz. 158, 32 P.3d 1085, 1088 (Ct.App.2001); People v. Bradbury, 68 P.3d 494, 499 (Colo.Ct.App.2002), cert. denied, No. 02SC850, 2003 WL 1958429 (Col. Apr. 28, 2003); People v. De La Paz, 204 Ill.2d 426, 274 Ill.Dec. 397, 791 N.E.2d 489, 497 (2003), cert. denied, 540 U.S. 922, 124 S.Ct. 320, 157 L.Ed.2d 221 (2003); Whisler v. State, 272 Kan. 864, 36 P.3d 290, 300 (2001), cert. denied, 535 U.S. 1066, 122 S.Ct. 1936, 152 L.Ed.2d 841 (2002); Meemken v. State, 662 N.W.2d 146, 150 (Minn.Ct.App.2003); State ex rel. Nixon v. Sprick, 59 S.W.3d 515, 520 (Mo.2001); State v. Tallard, 149 N.H. 183, 816 A.2d 977, 981 (2003); Page v. Palmateer, 336 Or. 379, 84 P.3d 133, 134, cert. denied, - U.S. -, 125 S.Ct. 205, 160 L.Ed.2d 110 (2004); Greenup v. State, No. W2001-01764-CCA-R3PC, 2002 WL 31246136 (Tenn.Crim.App. Oct.2, 2002); see also State v. Lotter, 266 Neb. 245, 664 N.W.2d 892, 907 (2003) (noting that "clear majority of state and federal jurisdictions hold that Apprendi may not be applied retroactively to final judgments on collateral review”), cert. denied, - U.S. -, 124 S.Ct. 2904, 159 L.Ed.2d 815 (2004). These courts also applied the Teague analysis.

.In a separate opinion, this Court holds, employing a Witt analysis, that Ring does not apply retroactively. Johnson v. State, No. SC03-1042, 904 So.2d 400, 405, 2005 WL 977017 (Fla. Apr. 28, 2005); see also Monlyn v. State, 894 So.2d 832, 839-40 (Fla.2004) (Cantero, J., concurring); id. at 841 (Pariente, C.J., specially concurring). Other state courts also have held that Ring does not apply retroactively. State v. Towery, 204 Ariz. 386, 64 P.3d 828, 836, cert. dismissed, 539 U.S. 986, 124 S.Ct. 44, 156 L.Ed.2d 702 (2003); Head v. Hill, 277 Ga. 255, 587 S.E.2d 613, 619 (2003); Porter v. State, 140 Idaho 780, 102 P.3d 1099 (2004); State v. Lotter, 266 Neb. 245, 664 N.W.2d 892, 908 (2003); Colwell v. State, 118 Nev. 807, 59 P.3d 463, 471 (2002), cert. denied, 540 U.S. 981, 124 S.Ct. 462, 157 L.Ed.2d 370 (2003); Moeller v. Weber, 689 N.W.2d 1 (S.D.2004); Ex parte Briseno, 135 S.W.3d 1, 9-10 (Tex.Crim.App.2004) ("[W]e join those courts that have held that the Supreme Court’s decision in Ring ... is not retroactively applicable to cases on post-conviction habeas corpus review.”).

. Justice Anstead is correct to state that this Court "has never adopted” Teague. Dissenting op. at 861. In fact, Florida courts have never considered whether to adopt it. See Windom v. State, 886 So.2d 915, 944 (Fla.2004) (Cantero, J., specially concurring). Nor need we do so now, as we have concluded that even under the Witt standard, Appren-di is not retroactive.

. Florida Rule of Criminal Procedure 3.850, which governs postconviction relief, was promulgated to provide “a method of reviewing a conviction based on a major change of law, where unfairness was so fundamental in either process or substance that the doctrine of finality had to be set aside.” Witt, 387 So.2d at 927.