GERALD BROWN

v.

STATE OF FLORIDA

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 5D2024-3233 LT Case No. 2010-CF-08065-A _____________________________

GERALD BROWN,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

3.800 Appeal from the Circuit Court for Duval County. Mark Jeffrey Borello, Judge.

Gerald Brown, Lake City, pro se.

No Appearance for Appellee.

May 30, 2025

EISNAUGLE, J.

Gerald Brown appeals the postconviction court’s dismissal of his Florida Rule of Criminal Procedure 3.800(a) motion in which— relying on Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); Alleyne v. United States, 570 U.S. 99 (2013); and Erlinger v. United States, 602 U.S. 821 (2024)—he argued his Habitual Felony Offender (“HFO”) sentences are illegal because the trial court, and not the jury, made the requisite factual findings. In dismissing the motion, the

While we are sympathetic to the postconviction court’s view that Brown’s Apprendi challenge is an odd fit for rule 3.800(a), our supreme court’s decision in Plott v. State, 148 So. 3d 90, 95 (Fla. 2014), concludes that claims of Apprendi error are indeed cognizable in a rule 3.800(a) motion. We are, of course, bound by Plott, as is the postconviction court.

Moreover, the postconviction court’s unelaborated statement that Erlinger is not retroactive misses the mark because, for one, Brown did not rely on Erlinger alone. He relied on Apprendi and its progeny which happens to include Erlinger. Importantly, Brown’s sentence became final long after Apprendi and Blakely were decided. At a minimum, we fail to see how Apprendi and Blakely would require retroactive application.1

Finally, given the postconviction court did not attach any records to its order, our record is insufficient for us to conduct a harmless error analysis, Galindez v. State, 955 So. 2d 517, 522–23 (Fla. 2007), or to determine if Brown’s Apprendi argument was preserved, McGregor v. State, 789 So. 2d 976, 977 (Fla. 2001). We therefore reverse and remand to the postconviction court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

WALLIS and LAMBERT, JJ., concur.

1 For this reason, we need not decide if Erlinger announces a new rule, and if it does, whether it requires retroactive application. See Witt v. State, 387 So. 2d 922, 926 (Fla. 1980).

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________