FRANK L. ADAMS

v.

STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

FRANK L. ADAMS,

Appellant,

v. Case No. 5D19-2540

STATE OF FLORIDA,

Appellee. ________________________________/

Opinion filed January³, 2020

3.800 Appeal from the Circuit Court for Putnam County, Patti A. Christensen, Judge.

Frank L. Adams, Miami, pro se.

Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

LAMBERT, J.

Frank L. Adams appeals the postconviction court’s order summarily denying his Florida Rule of Criminal Procedure 3.800(a) motion to correct what he contends are illegal, upward departure prison sentences. The trial court sentenced Adams to prison based upon its written findings under section 775.082(10), Florida Statutes (2012), that imposing a nonstate prison sanction was not appropriate because Adams may present a danger to the public. Adams’s primary argument here is that the Florida Supreme Court’s

2 recent decision in Brown v. State, 260 So. 3d 147 (Fla. 2018), should be applied retroactively to his sentences. In Brown, the court held that section 775.082(10) is unconstitutional because the jury, and not the court, must make the requisite factual determination of dangerousness to the public under this statute as the predicate for the imposition of a state prison sentence. 260 So. 3d at 151. The postconviction court in this case ruled that Brown could not be applied retroactively. Although we disagree with its rationale,¹ we nevertheless affirm the court’s order under the “tipsy coachman” doctrine.²

In 2012, Adams was convicted after trial of tampering with physical evidence and interception of an oral communication, each being a third-degree felony.³ The Criminal Punishment Code Scoresheet that was prepared for his sentencing hearing showed that Adams scored 17.5 sentence points. As such, section 775.082(10), Florida Statutes (2012), required that Adams be sentenced to a nonstate prison sanction, unless the trial court made written findings that the imposition of such a sanction could present a danger

3 to the public.⁴ The trial court entered a separate written order finding that Adams did, in fact, present a clear, articulable danger to the public, thus warranting a prison sentence. Adams was sentenced to serve five years in prison on each felony conviction, with the sentences running consecutively.⁵ His direct appeal of the convictions and sentences was affirmed by this court without opinion. Adams v. State, 120 So. 3d 570 (Fla. 5th DCA 2013). As indicated, Adams contends here that, under Brown, his ten-year aggregate prison sentence is illegal because it was based on findings made by the court, and not a jury, that imposing a nonstate prison sanction would pose a danger to the public. In Brown, the Florida Supreme Court addressed the constitutionality of the provision in section 775.082(10) that authorized the imposition of a prison sentence, based solely upon the written findings made by the court, on a defendant who should otherwise receive a nonstate prison sentence. 260 So. 3d at 149. In its analysis, the court first acknowledged that by “‘requir[ing] a written finding regarding danger to the public’ for offenders who would otherwise be entitled to a nonstate prison sanction pursuant to

If a defendant is sentenced for an offense committed on or after July¹, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

4 subsection (10),” the Florida Legislature had “reinstated,” in this limited context, the “practice of upward departure sentences” that had existed prior to the 1998 adoption of the Criminal Punishment Code. Id. (quoting Bryant v. State, 148 So. 3d 1251, 1258 (Fla. 2014)). The court then observed that in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the United States Supreme Court had 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 150. The court next noted that, subsequently, in Blakely v. Washington, 542 U.S. 296, 303 (2004), the United States Supreme Court defined the term “statutory maximum” from Apprendi to be “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Id. Based upon the holdings and definitions from Apprendi and Blakely, the court concluded that by the plain language of section 775.082(10), the legislature had set the statutory maximum penalty for those offenders who qualified for sentencing under its terms to be “a nonstate prison sanction.” Id. (quoting § 775.082(10), Fla. Stat. (2015)). The court then held that, in light of Apprendi and Blakely, section 775.082(10)’s requirement that the trial court, and not the jury, make the finding of dangerousness to the public, as the predicate for imposing a sentence exceeding the statutory maximum nonstate prison sanction, violated a defendant’s constitutional right to a jury under the Sixth Amendment to the United States Constitution. Id. at 151. Returning to the present case, because he was convicted of two third-degree, nonforcible felonies that were not violations of chapter 810, Florida Statutes, and he scored 22 or less sentence points, Adams qualified for a nonstate prison sanction under section

5 775.082(10). And while Brown now precludes a trial court from making the written factual finding of dangerousness to the public under section 775.082(10) as a predicate to imposing a prison sentence, as was done here, Adams’s judgment and sentences were final in 2013, some five years before the opinion in Brown issued. Therefore, the question we resolve today is whether the holding in Brown should also be applied retroactively to offenders, such as Adams, when the opinion makes no mention of its retroactive application. In Witt v. State, 387 So. 2d 922, 931 (Fla. 1980), the Florida Supreme Court explained that a change in the 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.” Here, the first two prongs are met. Thus, the precise question comes down to whether Brown constitutes a development of fundamental significance. Stated differently, the issue is whether this change in the law is “of sufficient magnitude to necessitate retroactive application.” Id. at 929. In reaching this determination, a court must consider the following three factors: “(a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of a retroactive application of the new rule.” Id. at 926 (citing Stovall v. Denno, 388 U.S. 293, 297 (1967); Linkletter v. Walker, 381 U.S. 618, 629 (1965) (additional citations omitted)). We conclude that the decision in Brown should not be applied retroactively.⁶ In doing so, we are guided by the opinions in State v. Johnson, 122 So. 3d 856 (Fla. 2013),

6 and Hughes v. State, 901 So. 2d 837 (Fla. 2005), in which the Florida Supreme Court, after analyzing in each case the three factors described in Witt, held, respectively, that Blakely does not apply retroactively to final sentences or resentences, Johnson, 122 So. 3d at 857, and that Apprendi does not apply retroactively. Hughes, 901 So. 2d at 838. Because the court in Brown relied on both Apprendi and Blakely in finding that subsection (10) of section 775.082 was unconstitutional, it logically follows that the court, consistently with its decisions in Johnson and Hughes, would similarly hold that Brown does not have retroactive application to judgments and sentences, such as those in the present case, that were final before Brown was issued. Accordingly, we affirm the postconviction court’s order denying Adams’s rule 3.800(a) motion to correct illegal sentence.⁷

AFFIRMED.

EISNAUGLE and TRAVER, JJ., concur.

her sentence and been released from custody, the court did not reach the issue regarding the appropriate remedy. 260 So. 3d at 149–50.