WOODS v. STATE

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Marlena Christine WOODS, Appellant, v. STATE of Florida, Appellee.

CASE NO. 1D15–4042

Decided: April 24, 2017

Andy Thomas, Public Defender, and Steven L. Seliger and Brenda Roman, Assistant Public Defenders, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate and Quinton Humphrey, Assistant Attorneys General, Tallahassee, for Appellee.

On Rehearing En Banc

AFFIRMED.

Marlena Woods, a homeless mom with four children, pled guilty to shoplifting food for her family from a Jacksonville Walmart. Due to prior petit theft convictions, she scored 8.3 points on her sentencing scoresheet, which meant a presumptive nonstate sentence not exceeding twelve months in the Duval County jail under section 775.082(10), Florida Statutes (2009), a statute not mentioned at her plea colloquy. Under that statute, the State argued that she should be sent to state prison because sentencing her to county jail (or some other nonstate sanction) would present a “danger to the public” that state incarceration would prevent. Based on his factual findings of Woods's alleged dangerousness to the public, the trial judge imposed an eighteen-month term of state imprisonment. At issue is whether section 775.082(10) is unconstitutional because it authorized a sentence above the statutory maximum (twelve months in county jail) based on factual findings made by the trial judge, rather than a jury, in violation of Woods's right to jury trial in the federal constitution. See U.S. Const. amend. VI;  Blakely v. Washington, 542 U.S. 296, 304 (2004);  Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). A panel opinion avoided the constitutional question by construing section 775.082(10) to require the jury, post-verdict, to make factual findings the statute says a judge must make, Woods v. State, 41 Fla. L. Weekly D1676 (Fla. 1st DCA July 20, 2016), but a 10–4 vote resulted in en banc consideration of the case. Though Woods served her eighteen-month sentence after en banc review was granted (but before argument was ordered), the issue presented is one of ongoing and exceptional importance for judicial resolution.1

I.

A. APPRENDI/BLAKELY

In 2009, the Florida Legislature enacted a requirement that trial judges sentence non-violent, low-scoring (under twenty-two points) offenders to nonstate 2 prison sanctions unless the judge determines via written findings that a nonstate prison sanction might “present a danger to the public,” allowing him to exercise his discretion to impose a greater sanction. See Ch. 2009–63, § 1, Laws of Fla. (creating subsection 10 to section 775.082, Florida Statutes, which gives trial judges this discretion);  Fla. S. Comm. on Crim. & Civil Just. Approp., CS for SB 1722 (2009) Staff Analysis 2–3, 7 (April 6, 2009), http://archive.flsenate.gov/data/session/2009/Senate/bills/analysis/pdf/2009s1722. wpsc.pdf [hereinafter Crim. and Civ. Just. Comm. SB 1722 Staff Analysis] (summarizing the subsection as “[c]reating a prison diversion approach by requiring the court to sentence certain non-violent low-scoring offenders to a nonstate prison sanction unless the court finds that such a sentence could endanger the public”). Due to budgetary reductions to Florida's Department of Corrections, the legislative intent was to reduce state expenses via the curtailment of the past practice of sentencing non-violent, low-scoring offenders to state prison, which was prevalent at the time. The newly-added subsection, consisting of two sentences, stated in full:

(10) If a defendant is sentenced for an offense committed on or after July 1, 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.

§ 775.082(10), Fla. Stat. (emphasis added). Highlighted is the last sentence, which is the primary portion at issue in this case. The text of subsection (10) has not changed since its enactment.

The statutory authority in the last sentence of subsection (10), allowing a trial judge to make factual findings to increase an offender's sentence to a state correctional facility, is unconstitutional because only a jury may make findings that increase a penalty beyond a statutory maximum (which is up to twelve months of incarceration as a nonstate sanction).3 See Apprendi, 530 U.S. 490 (“Other 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.”);  see also Blakely, 542 U.S. at 304 (“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.”) (citation omitted). Our supreme court has held similarly in the context of upward departures. Plott v. State, 148 So. 3d 90, 95 (Fla. 2014) (“[W]e hold that upward departure sentences that are unconstitutionally enhanced in violation of Apprendi and Blakely patently fail to comport with constitutional limitations, and consequently, the sentences are illegal under rule 3.800(a).”).

The trial court's actions violated Woods's right to a jury under the Sixth Amendment as explained in Apprendi and its federal and Florida progeny, but Woods has raised only a facial constitutional challenge on appeal. Delancy v. Tucker, 88 So. 3d 1036, 1037 (Fla. 1st DCA 2012) (stating that a “direct appeal is the proper avenue for a facial constitutional challenge to a criminal statute”).4 A “facial challenge to a statute is more difficult than an ‘as applied’ challenge, because the challenger must establish that no set of circumstances exists under which the statute would be valid. ․ such a challenge must fail unless no set of circumstances exists in which the statute can be constitutionally applied.” Cashatt v. State, 873 So. 2d 430, 434 (Fla. 1st DCA 2004).

One possible constitutional “application” of subsection (10) is that a defendant may waive his constitutional rights under Apprendi and Blakely by allowing a trial judge to make factual findings, rather than a jury. But in doing so, a defendant effectively waives the substantive constitutional right that subsection (10) fails to facially protect;  if a statute is deemed constitutionally “applied” simply because a defendant waives his constitutional rights in the application of the challenged portion, then every statute has this potential “application,” making no facial adjudication ever possible. The same is true of a defendant who—for inexplicable reasons—agrees to a factual finding that he could pose a “danger to the public” thereby allowing the trial judge to impose a nonstate sanction;  this type of constitutional “application” is not only fanciful but also an avoidance, rather than an application, of the challenged statutory language at issue.

Similarly, another possible constitutional “application” of subsection (10) is to construe it in a way that avoids a constitutional violation. Under this approach (which the panel used), the statutory language requiring a trial court to make written factual findings would be interpreted to require a jury to make such findings instead. But this requires rewriting subsection (10) to say:

However, if the court jury 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.

Doing so judicially engrafts a requirement into the statute that a jury makes the factual findings that the statute says the court must make (in writing no less). Judicially rewriting a statute's offensive parts is not an “application” for purposes of a facial challenge.

Finally, another possible constitutional “application” is where a trial judge relies solely upon a defendant's past convictions to increase punishment to a state sanction. This application refers to the language of Apprendi that excluded from its holding “the fact of a prior conviction,” which trial judges had used for sentencing purposes where a prior conviction was a statutory feature of a crime. See, e.g., Almendarez–Torres v. United States, 523 U.S. 224, 227 (1998) (upholding a statute with a penalty provision allowing a “sentencing judge to impose a higher sentence when the unlawfully returning alien also has a record of prior convictions”). Excepting out prior convictions was deemed permissible because “unlike virtually any other consideration used to enlarge the possible penalty for an offense ․ a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.” Jones v. United States, 526 U.S. 227, 249 (1999).

But nothing in subsection (10) empowers a trial judge to rely solely on an offender's prior convictions as the factual basis for its “written findings that a nonstate prison sanction could present a danger to the public” as the statute requires. The last sentence of subsection (10) is not a violent career criminal statute, a habitual offender statute, or the like that excepts it from Apprendi;  instead, it establishes a future dangerousness test based on additional fact-finding by a judge. Adjudicating whether an offender “could present a danger to the public” absent a nonstate sanction involves a multitude of factors, only one of which is whether the offender has a criminal record for which a prior conviction is but a data point.5 Reed, 192 So. 3d at 646 (providing a non-exhaustive list of factors including criminal history, victim injury, and propensity for one to commit future crimes). Faced with substantial enhancement of his sentence, no defendant (through effective counsel) would limit the evidentiary review required under subsection (10) to only his prior convictions without presenting other evidence in mitigation. It is one thing to enlarge a penalty where Congress or the State of Florida has made a prior conviction a central feature of a crime;  it is another to allow a trial judge to engage in wide-ranging fact-finding—constitutionally entrusted to a jury—about an offender's potential for being a “danger to the public” to support an enhanced penalty. And it is yet another to allow prior convictions, which already underlie the arithmetic determination of points for sentencing scoresheet purposes in Florida, to be used duplicatively to increase a sentence without jury involvement. Id. at 647 (stating that “a sentencing court's finding of an offender's danger to the public must be more than the recitation of acts that are inherent to the crimes for which the defendant was convicted”). To do so would subject every offender to a state prison sentence, which conflicts with the intent of subsection (10) to enhance sentences of truly violent offenders. Id. at 648. If the Florida Legislature had deemed that the mere existence of a prior conviction was enough to increase punishment for this class of mostly non-violent offenders, it could have done so. See Almendarez–Torres, 523 U.S. at 227. Instead, it established a pliable “danger to public” standard for which the narrow exception of Apprendi was not intended. See Apprendi, 530 U.S. at 490 (“[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.”).

Given that no sensible constitutional application of subsection (10) exists, a facial challenge is appropriate. As the United States Supreme Court has noted, the “distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge.” Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 331 (2010). A court must weigh the alternatives offered when deciding whether an exercise of judicial authority is appropriate. As the Supreme Court explained:

It is not judicial restraint to accept an unsound, narrow argument just so the Court can avoid another argument with broader implications. Indeed, a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling.

Id. at 329. Where there exists “the lack of a valid basis for an alternative ruling,” a court's “full consideration of the continuing effect” of a constitutionally-challenged practice may be pursued. Such is the case here, where no readily apparent constitutional applications of subsection (10) exist.

B. SEVERANCE

Because the last sentence of subsection (10) is unconstitutional, the question of severance arises:  should all of subsection (10) be stricken or only its last sentence? If only the last sentence is stricken, sentencing of all offenders would be limited to nonstate sanctions;  if all of subsection (10) is stricken, reversion to the prior version of the sentencing statute would result, allowing trial judges to impose any term of imprisonment up to five years for the class of offenders to which subsection (10) applied. See § 775.082, Fla. Stat. (2008);  see also Crim. & Civ. Just. Comm. SB 1722 Staff Analysis (discussing the then-current sentencing options).

The well-established test for severance was set out in Cramp v. Board of Public Instruction of Orange County, 137 So. 2d 828, 830 (Fla. 1962):

The rule is well established that the unconstitutionality of a portion of a statute will not necessarily condemn the entire act. When a part of a statute is declared unconstitutional the remainder of the act will be permitted to stand provided:  (1) the unconstitutional provisions can be separated from the remaining valid provisions, (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void, (3) the good and the bad features are not so inseparable in substance that it can be said that the Legislature would have passed the one without the other and, (4) an act complete in itself remains after the invalid provisions are stricken.

Our supreme court has said the “Cramp test is a well established component of Florida law. It has been applied repeatedly in countless Florida cases.” Schmitt v. State, 590 So. 2d 404, 415 (Fla. 1991).

In this case, factors (1), (2), and (4) are met, the only question remaining is whether “the good and the bad features are not so inseparable in substance that it can be said that the Legislature would have passed the one without the other[.]” Cramp, 137 So. 2d at 830. The most reasonable conclusion is that the Legislature passed subsection (10) as a unified, inseparable whole and would not have wanted severance of its component parts. Subsection (10) reflects a compromise between two related goals:  the fiscal goal of reducing state prison expenses and the public safety goal of ensuring that violent offenders be subject to state prison sentences if nonstate sanctions don't suffice. Striking only the last sentence, which would result in nonstate sentences for all offenders no matter their dangerousness, serves the former goal at the expense of the latter. No indication exists that the Legislature would have down-graded sentences within this classification (from up to five years to nonstate sentences) without the concurrent potential for violent offenders to be placed in the state prison system. Stated differently, it cannot be said that the Legislature would have passed only the first sentence in subsection (10) but not the last;  the two are intertwined. Thus, striking the entirety of subsection (10) is required because the last sentence cannot be severed without undermining legislative prerogatives.

C. HARMLESS ERROR

Buttressing this conclusion is application of the harmless error doctrine, which the United States Supreme Court and our supreme court have held applies to Apprendi/Blakely errors. Neder v. United States, 527 U.S. 1, 15 (1999) (noting that the “omission of an element is an error that is subject to harmless-error analysis”);  Plott, 148 So. 3d at 95 (“A claim of error under Apprendi and Blakely is subject to a harmless error analysis.”);  Galindez v. State, 955 So. 2d 517, 524 (Fla. 2007) (“[W]e hold that harmless error analysis applies to Apprendi and Blakely error.”);  see also Hurst v. Florida, 136 S. Ct. 616, 624 (2016) (noting that the Supreme Court “normally leaves it to state courts to consider whether an error is harmless”);  Washington v. Recuenco, 548 U.S. 212, 222 (2006) (“Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error.”).

In Neder v. United States, the Supreme Court stated the harmless-error inquiry as follows:  “Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?” 527 U.S. at 18. Our supreme court adopted this harmless error test. See Galindez, 955 So. 2d at 522 (adopting Neder, 527 U.S. 1). The Supreme Court elaborated:

A reviewing court making this harmless-error inquiry does not, as Justice Traynor put it, “become in effect a second jury to determine whether the defendant is guilty.” ․ Rather 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.

Neder, 527 U.S. at 19. The Neder standard focuses on the omission of an element of a crime, which is not the case here, but our supreme court has extended the analysis to sentencing as well. Galindez, 955 So. 2d at 523 (“[F]or 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.”) (emphasis added).

Under this approach, we make believe that a hypothetical jury is presented with the dangerousness question and ask whether there is any evidence in the record “that could rationally lead” a jury to conclude that Woods did not present a danger to the public, if subject to only a nonstate sanction? On this point, the panel concluded that “no rational jury would have declined to find that [Woods] posed a financial danger to the public” based on her theft/burglary convictions, which is pure speculation;  she scored only 8.3 points and could be viewed sympathetically by jurors because at the time of the offense she was a homeless mom living in the woods with her kids for whom she had stolen food (she was living with an aunt at the time of sentencing). And because the clear import of the 2009 amendment was to ensure that only violent offenders be subject to state prison, it is not at all clear that a jury would necessarily find that the “financial danger” posed by Woods was the type of “danger to the public” unless subject to a state sanction that the Legislature meant to punish more severely. But see McCloud v. State, 55 So. 3d 643, 645 (Fla. 5th DCA 2011) (concluding that harm from writing bad checks falls within the meaning of “danger to the public”). What's more, even if a hypothetical jury found that Woods “posed a financial danger to the public,” the trial judge statutorily would still have to exercise his or her discretion in deciding whether to impose a prison sanction. See § 775.082(10), Fla. Stat. How that judicial discretion might be exercised in this particular case is equally speculative. For these reasons, the constitutional error cannot be deemed harmless because a jury could rationally conclude that Woods did not present a danger to the public under the circumstances.

As such, the most reasonable remedy is to revert to the prior sentencing statute. Because this case is a direct appeal, not a post-conviction case,6 Woods—had she not already served her eighteen-month sentence—would be resentenced on remand under the former statutory framework, which allowed a sentence of up to five years in state prison. The conundrum is that every sentence previously imposed under subsection (10) would necessarily be within the maximum of five years, raising the question of whether re-sentencing would be a useless exercise. It is conceivable that Woods could have been resentenced on remand to the same sentence. If so, the Apprendi/Blakely error could be deemed harmless as to her because it did not contribute to her sentence, one she could have been sentenced to under the prior sentencing statute. For this reason, although she prevails on the merits of her constitutional claim, no remedy is available for her. Prospectively, however, the invalidation of subsection (10) would operate to preclude trial courts from undertaking fact-finding as to an offender's potential for danger to the public if subject to a nonstate sanction.

CONCLUSION

Subsection 775.082(10) is unconstitutional under Apprendi and Blakely, and the appropriate remedy is to allow for resentencing under the prior version of the sentencing statute. By doing so, deference and respect is given to the Legislature and the language of its enactment, allowing trial judges to exercise their discretion by re-sentencing this class of offenders as they would have absent the unconstitutional process added in 2009. Prospectively, trial judges can still impose sentences in the lower ranges where the record reflects that a defendant has a non-violent past and is low-scoring;  if a defendant has indicia of violence and poses a true danger to the public, a sentence in the upper range could be imposed. As to Woods, no remedy is available since she's already served her time;  her sentence, though arrived at via an unconstitutional procedure, fell within the lawful range under the prior sentencing code.

I vote to affirm Ms. Woods' sentence because § 775.082(10), Florida Statutes, does not have an Apprendi–related, Sixth Amendment problem. Apprendi prohibits judicial findings that increase a criminal penalty beyond the maximum authorized by a jury's verdict. Here, § 775.082(10) does not allow courts to increase the punishment, but only affects the form of a defendant's penalty, whether it will include prison time or not. The maximum sentence for Ms. Woods' third-degree felony was five years whether she received prison or not. And her eighteen-month prison sentence, after the jury found her guilty of a third-degree felony, did not violate Apprendi because it was within the standard statutory range, well below the maximum sentence. Another reason § 775.082(10) doesn't violate Apprendi is that the fact-finding it assigns to judges at sentencing fully comports with their historic role. See Oregon v. Ice, 555 U.S. 160, 170 (2009). Courts, and not juries, have traditionally considered offender-specific, public safety factors at sentencing. And the Sixth Amendment doesn't require such well-established judicial sentencing functions to be delivered over to juries. Ice counsels that applying Apprendi in this case would violate federalism principles, Florida's right to manage its own criminal justice system, and strong state public safety interests.7

I.

After a jury finds a person guilty of a third-degree, non-forcible felony in Florida (or they plead guilty), § 775.082(10) requires the calculation of a sentencing score for use in determining whether an offender will receive a prison sanction or nonprison sanction. The maximum sentence, as with all third-degree felonies, is five years in state prison. § 775.082(3)(e), Fla. Stat. The sentencing score is largely determined by whether an offender has committed other serious crimes or has a serious criminal history (a third-degree, nonforcible felony scores few points by itself). See § 921.0024, Fla. Stat. (addressing the sentencing scoresheet). If an offender has committed additional or past serious crimes, he or she may receive a high score for purposes of § 775.082(10)—more than 22 points—which makes him or her eligible for a prison sanction based on the score alone (the judge retains sentencing discretion to give a non-prison sanction). But if an offender has a lesser criminal history and additional offenses, then his or her low score will not immediately qualify for a prison sentence. See, e.g., Porter v. State, 110 So. 3d 962, 963 (Fla. 4th DCA 2013) (scoring a total of 14.7 points for eleven theft-related crimes). The statute presumptively directs judges to sentence these low-scoring offenders to a nonprison sanction (jail, community control, probation, etc.) unless “a nonstate prison sanction could present a danger to the public.” § 775.082(10), Fla. Stat.

In Ms. Woods' case, she pled guilty to a third-degree felony with a statutory maximum punishment of five years in prison. At her sentencing hearing two weeks later, her criminal history revealed a persistent penchant for stealing things. She had multiple thefts and a burglary on her record. And previous nonprison sanctions had not reformed her criminal behavior. The court made two main findings. First, it approved a scoresheet totaling Ms. Woods' sentence points. She scored 8.3 sentence points, far below the 22–point, score-based threshold for a prison sentence. Second, the trial court found that Ms. Woods' criminal history, combined with the failure of previous nonprison sanctions, required a prison sentence:  “To date, the criminal justice system ha[d] failed to protect the public.” The judge sentenced Ms. Woods to eighteen months in prison under § 775.082(10), instead of giving her another (ineffectual) nonprison sanction. Cf. McCloud v. State, 55 So. 3d 643, 644 (Fla. 5th DCA 2011) (upholding a prison sentence for a defendant who “may not be a physically violent offender, [but] is apparently willing to steal anything and everything”).

II.

Ms. Woods now claims that her sentence violates the Sixth Amendment and the Apprendi v. New Jersey, 530 U.S. 466 (2000), line of cases, because only juries can make the “danger to the public” finding required by § 775.082(10) before a prison sanction is given. I disagree. Apprendi doesn't apply here for two reasons:  because § 775.082(10) doesn't increase the maximum penalty, and because § 775.082(10) involves a traditional judicial sentencing decision that doesn't impinge upon juries.8

A.

In Apprendi, the defendant pled guilty to a weapons offense punishable by five to ten years' imprisonment. After the trial court accepted the plea, the State moved to increase the imprisonment term above the statutory maximum based on a “hate crime” statute. The trial court agreed that the defendant had committed the crime with racial animus and essentially doubled the defendant's maximum sentence. Apprendi ultimately reached the United States Supreme Court, which decided that due process and the Sixth Amendment entitled the defendant to a jury determination on the sentencing enhancement. The 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.” Apprendi, 530 U.S. at 490. Later, in Blakely v. Washington, 542 U.S. 296 (2004), the Court clarified that the 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.” Id. at 303–04. The Court focused closely on the jury's verdict. The “judge's authority to sentence derives wholly from the jury's verdict. Without that restriction, the jury would not exercise the control that the Framers intended.” Id. at 306.

In deciding these cases, the Court did not altogether forbid judicial fact-finding at sentencing. Rather, it left trial courts free to make offender-specific findings in deciding the form of punishment (type and length of a sentence) within the statutory range of the crime proven to the jury:

[N]othing ․ suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case. See, e.g., Williams v. New York, [337 U.S. 241, 246 (1949)].

Apprendi, 530 U.S. at 481. As long as the court operates within the limits of punishment provided by statute, not increasing the maximum punishment, it is considered to have properly exercised sentencing authority. Id. at 482–83;  see also Alleyne v. United States, 133 S. Ct. 2151, 2158 (2013) (“The touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an ‘element’ or ‘ingredient’ of the charged offense. ․ [A] fact is by definition an element of the offense and must be submitted to the jury if it increases the punishment above what is otherwise legally prescribed.”).

B.

The first reason Apprendi doesn't apply here is because § 775.082(10) does not increase the five-year maximum penalty authorized by the jury's verdict (or guilty plea) for third-degree felonies. Rather, the statute guides the within-the-range sentencing choices that courts must make between different forms of punishment authorized by the jury's verdict—third-degree felonies may be punished by either prison or nonprison sanctions, or both. In stating Apprendi's rule, the United States Supreme Court has “never distinguished one form of punishment from another. Instead, [its] decisions broadly prohibit judicial fact-finding that increases maximum criminal ‘sentence[s],’ ‘penalties,’ or ‘punishment[s].’ ” Southern Union Co. v. United States, 132 S. Ct. 2344, 2351 (2012). With § 775.082(10), irrespective of whether a defendant receives a nonprison or prison sanction, the maximum penalty remains static at five years. In this case, Ms. Woods received an eighteen-month prison sanction. Her sentence not only fell within the five-year statutory maximum, but was a less punitive sanction than alternative nonprison sanctions available to the sentencing court (a penalty she would still be serving now). Ms. Woods' prison sentence was not a greater punishment than if, for instance, she'd received the maximum nonprison sanction—364 days incarcerated in county jail followed by four years of some combination of community control or probation, with attendant house arrest restrictions, having to provide an hourly accounting of her whereabouts, and having to participate in treatment or other special programs ordered by the trial court (along with the prospect of re-incarceration for any violation over this four years). Cf. Blair v. State, 667 So. 2d 834, 842 (Fla. 4th DCA 1996) (affirming a 3.5–year prison sentence followed by an 11.5–year probation sentence in a case involving a 15–year statutory maximum, where the sentencing guideline range called for “any nonstate prison sanction or community control or 1–3.5 years incarceration”);  Holloway v. State, 668 So. 2d 627, 628 (Fla. 5th DCA 1996) (noting that “only the incarcerative portion of a split sentence must fall within the sentencing guideline range”);  Brown v. State, 647 So. 2d 197, 198 (Fla. 1st DCA 1994) (same). Section 775.082(10) thus did not increase Ms. Woods' punishment even if Florida law required the trial court to make an extra finding before allowing her to fill one of its prison beds. Because Apprendi permits judicial fact-finding that informs decisions between alternative, within-the-range sentences, Ms. Woods' sentence should be affirmed and her facial challenge to § 775.082(10) must fail. See Cashatt, 873 So. 2d 434 (noting that with a facial challenge “the challenger must establish that no set of circumstances exists under which the statute would be valid”).

My colleagues who see an Apprendi–Blakely problem here view the statutory maximum in § 775.082(10) differently based on a single fact calculated at sentencing—the scoresheet score. Based on the judge's score finding, my colleagues define-down the maximum penalty to one year, which is different from the five-year maximum authorized by Ms. Woods' guilty plea. Their view conflicts with the definition of “maximum sentence” established in Blakely. Blakely said that a 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.” 542 U.S. at 303–04 (emphasis added). In other words, Apprendi and Blakely instruct us not to redefine statutory maximums based upon facts found at sentencing, like the scoresheet score here.

In addition to using sentencing facts to define down the statutory maximum for some third-degree felonies, my colleagues' analysis gives inordinate weight to the scoresheet score, which is only one of the sentencing facts referred to in the statute. The scoresheet score finding shouldn't be singled out and favored to the exclusion of other sentencing facts cited in the statute. Reading § 775.082(10) as an integrated whole, it calls for nonprison sanctions for some offenders only if the defendant's situation meets the scoresheet score threshold and satisfies public danger concerns. My colleagues' severability argument concedes that the public danger finding is integral to the statute. If the public danger factor is crucial to the statute and explicitly contemplates prison sanctions, then I don't think it proper to downwardly re-define the statutory maximum sentence as if prison sanctions were eliminated from the picture.

In sum, § 775.082(10) only affects the routine choice that sentencing judges must make between alternative jury-authorized punishments, whether to give one form or punishment or another. The statute does not authorize courts to sentence above the five-year statutory maximum applicable to third-degree felonies. For this reason, we should join those courts that have not extended Apprendi's rule to statutes like this one. See Porter, 110 So. 3d at 963 (denying a Blakely–based challenge to § 775.082(10));  State v. Anderson, 867 N.W.2d 718 (S.D. 2015) (holding that Apprendi doesn't extend to a presumptive probation statute that allows the trial court to impose a prison term upon finding predicate facts);  State v. Carr, 53 P.3d 843, 850 (Kan. 2002) (“Apprendi [is] inapplicable to a sentencing judge's decision to impose a dispositional departure prison sentence rather than to grant probation.”);  People v. Crawford, 961 N.E.2d 447 (2nd District Ill. 2011) (imposition of five year prison term instead of probation based upon judicial fact-finding didn't violate Apprendi ).

C.

The second reason Apprendi does not apply in this case is that Florida's judges, not juries, have traditionally made sentencing-related, public danger evaluations like those under § 775.082(10). The Apprendi cases are clear that jury rights do not attach to every type of fact-finding that can increase a sentence, nor “to every contemporary state-law ‘entitlement’ to predicate findings.” Ice, 555 U.S. at 170. The Court has extended constitutional protections only to facts that are “elements” or the “functional equivalent[s] of element[s]” of actual criminal offenses. See, e.g., United States v. Booker, 543 U.S. 220, 230 (2005) (recognizing the rights of criminal defendants to demand a jury verdict as to all the elements of the charged crime). It has excluded from Apprendi's reach sentencing decisions that are outside of the historic ambit of juries. Ice, 555 U.S. at 168–70. See also U.S. v. Bedgood, 569 Fed. Appx. 836, 838 (11th Cir. 2014) (“there is no requirement that sentencing facts be submitted to a jury and found beyond a reasonable doubt”) (quoting United States v. Diaz, 248 F.3d 1065, 1105 (11th Cir. 2001)).

The type of finding required by § 775.082(10) is different from the Apprendi cases because it doesn't include fact-finding about the defendant's crime itself, elements of the crime, or the degree of culpability involved with the crime. Apprendi, for instance, required the jury to determine if a crime constituted a “hate crime”;  in Blakely, the finding involved whether the crime was deliberately cruel;  in Booker, the finding involved whether the defendant possessed a certain quantity of drugs;  in Cunningham v. California, 549 U.S. 270 (2007), the finding involved whether the crime was violent and whether the victim was particularly vulnerable;  and in Alleyne, the finding involved whether the defendant brandished a firearm. In each of these cases, unlike in this case, a judge could increase the defendant's sentence based upon findings related to the crime itself.

The public danger finding required by § 775.082(10) involves a different kind of evaluation, which has traditionally been left to judges. It is not a finding about the crime itself, but about what type of jury-authorized penalty a judge should give to a convicted defendant. With § 775.082(10), the Legislature has directed courts presumptively to give a nonprison sanction to certain lower-level offenders, unless those sanctions could present a public danger. Judges evaluate public safety considerations like these at sentencing all the time. Oregon v. Ice counsels us not to apply Apprendi and rather to defer to state laws in which the fact-finding and decision-making of sentencing judges falls within the traditional authority vested in courts instead of juries. Ice, 555 U.S. 160. Ice involved an Oregon statute that required courts to impose concurrent sentences for multiple convictions instead of consecutive sentences, but with room for judges to depart upon making certain findings of fact. In Mr. Ice's case, the trial court made sentence-enhancing findings and then rendered consecutive sentences, substantially increasing his total sentence. The Oregon Supreme Court applied Apprendi and reversed the trial court because its findings had increased the quantum of Mr. Ice's punishment without involving a jury. But the United States Supreme Court reversed Oregon's high court. Despite a substantial increase in Mr. Ice's total sentence, the Supreme Court saw no Sixth Amendment issue with the trial court's fact-finding and decision to give consecutive sentences. The Court recognized instead that the power of states to manage their own criminal justice systems included authority to give judges fact-finding leeway to determine the appropriate sentence for each criminal defendant. The Court expressed significant federalism concerns for state sovereignty and allowing states to order their own penal systems, which “lies at the core of their sovereign status.” Id. at 170. The historic dominance and interest of states in their sentencing regimes counseled against extending Apprendi:  “It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government.” Id. at 170–71 (citation omitted). See also Williams v. New York, 337 U.S. 241, 246 (1949) (“[B]oth before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.”).

Along with its federalism rationale, Ice allowed for judicial fact-finding because the jury's historic role wasn't compromised. The Court said that Apprendi's scope “must be informed by the historical role of the jury at common law.” Ice, 555 U.S. at 170. And it noted that juries traditionally “played no role in the decision to impose sentences consecutively or concurrently. Rather, the choice rested exclusively with the judge.” Id. at 168. In the same way that juries in Ice weren't traditionally involved in deciding between concurrent and consecutive sentences, juries in Florida and elsewhere haven't been tasked with evaluating the relative public danger risks associated with different criminal sentences authorized by the jury's verdict. This is the customary job of judges. See, e.g., Ice, 555 U.S. at 171 (recognizing that judges decide, based on circumstances unique to defendants, “the length of supervised release following service of a prison sentence;  required attendance at drug rehabilitation programs or terms of community service;  and the imposition of statutorily prescribed fines and orders of restitution”);  Alleyne, 133 S. Ct. at 2169 (Roberts, C.J., dissenting) (“After rendering the verdict, the jury's role [is] completed, it [is] discharged, and the judge [begins] the process of determining where within that range to set [the defendant's] sentence. Everyone agrees that in making that determination, the judge [is] free to consider any relevant facts about the offense and offender, including facts not found by the jury beyond a reasonable doubt.”).

In Ewing v. California, 538 U.S. 11, 29–30 (2003), the Court recognized that sentencing decisions can rest upon public danger considerations. The plurality opinion noted that the defendant's 25–years-to-life sentence for shoplifting three golf clubs was “justified by the State's public-safety interest in incapacitating and deterring recidivist felons.” Id. (emphasis added). “[T]he trial judge justifiably exercised her discretion not to extend such lenient treatment given Ewing's long criminal history.” Id. at 29. See also Almendarez–Torres v. United States, 523 U.S. 224, 247 (1998) (holding that prior convictions are not facts that must be found by a jury). Florida is no different. It has long empowered judges to sentence offenders with an eye towards protecting the public. See State v. Parker, 100 So. 260, 263 (Fla. 1924) (recognizing judicial discretion to impose prison sentences “in the interest of public safety” and to sentence offenders differently within legal limits);  Eutsey v. State, 383 So. 2d 219 (Fla. 1980) (allowing trial courts to increase the sentences of habitual offenders where necessary to protect the public from additional criminal conduct);  Ross v. State, 88 So. 3d 297, 299 (Fla 1st DCA 2012) (holding that judges may find an escalating pattern of criminal behavior without violating the Sixth Amendment or Blakely );  see also § 775.084(3)(c)5., Fla. Stat. (providing that “the court must sentence the defendant as a violent career criminal, subject to imprisonment pursuant to this section unless the court finds that such sentence is not necessary for the protection of the public”) (emphasis added). Section 775.082(10) falls squarely within the tradition of judges making final sentencing decisions with public safety considerations in mind.9 Because § 775.082(10) involves a sentencing call that has been traditionally left to judges, and Ice emphasizes the states' important federalism interests in this area, Apprendi doesn't foreclose the sentences rendered under § 775.082(10).

III.

For these reasons, I would not extend Apprendi to invade the sentencing prerogative of Florida's judges under § 775.082(10). The Legislature has significant latitude to organize Florida's criminal justice system in the way that it wants and needn't remit the traditional sentencing authority of its judges to juries in order to satisfy the Sixth Amendment. How offenders serve their range-bound sentences is not the historic domain of juries. And “[i]ntruding Apprendi's rule into these decisions on sentencing choices or accoutrements surely would cut the rule loose from its moorings.” Ice, 555 U.S. at 171–72. Whatever sentencing grace flows from the Legislature's presumptive preference not to fill state prison beds (as opposed to county jail beds or other nonprison programs) with low-level, third-degree felons, it creates no entitlement to a jury when a judge decides to impose a prison sanction within the five-year maximum authorized by a jury's verdict (or, in this case, the guilty plea), instead of a nonprison sanction.

I agree with Judge Osterhaus' concurring opinion that a departure sentence pursuant to section 775.082(10), Florida Statutes, does not implicate Apprendi 10 and its progeny. However, even if a departure sentence did implicate Apprendi, I would find that section 775.082(10) is not facially unconstitutional because circumstances exist where it may be constitutionally applied.

I.

Judge Osterhaus' opinion notes that a defendant who qualifies under the first sentence of section 775.082(10) can be sentenced to as much as 364 days in jail followed by four years of community control or probation. In other words, the court can impose a five-year sentence, but only one year can be incarcerative. Accordingly, that opinion concludes that the second sentence of section 775.082(10) creates a “dispositional departure,” to which Apprendi and its progeny do not apply, rather than a “durational departure,” to which Apprendi would apply. I agree with this conclusion, and the legal reasoning supporting it.

I do so with some reservation. It is obvious that the “maximum sentence” permitted under the first sentence of section 775.082(10) (one year jail followed by four years of various forms of community sanction) is significantly less severe than the maximum sentence permitted with a departure under the second sentence of section 775.082(10) (five years imprisonment). As such, a reasonable argument can be made that a section 775.082(10) departure “increases the penalty for a crime beyond the prescribed statutory maximum,” Apprendi, 530 U.S. at 490, and therefore implicates the requirements of Apprendi.

Nonetheless, I conclude that this difference in severity does not invoke Apprendi for two reasons. First, I find the analysis of the Kansas Supreme Court in State v. Carr, 53 P.3d 843 (Kan. 2002), and the South Dakota Supreme Court in State v. Anderson, 867 N.W.2d 718 (S.D. 2015), to be persuasive in drawing a distinction between durational departures and dispositional departures.11 Second, because this distinction is sound, we should apply it here in order to meet our obligation to construe a statute “in such a manner so as to avoid an unconstitutional result.” State v. Jefferson, 758 So. 2d 661, 664 (Fla. 2000). With these qualifications, I agree with Judge Osterhaus' opinion that a departure sentence under section 775.082(10) does not violate the right to trial by jury.

II.

Even if a section 775.082(10) departure did increase the maximum sentence in a way that created an Apprendi issue, I would find that the subsection is not facially unconstitutional.12

A statute is facially unconstitutional only when “no set of circumstances exists in which the statute can be constitutionally applied.” Cashatt v. State, 873 So. 2d 430, 434 (Fla. 1st DCA 2004). Therefore, if we can conceive of any circumstance in which section 775.082(10) could be constitutionally applied, we are bound to reject any facial claim. While several applications of the statute could potentially save the statute's facial constitutionality,13 I believe the only valid one is that a jury could make the finding of “danger to the public” required by section 775.082(10). If a jury—through a special interrogatory or otherwise—found beyond a reasonable doubt that “a nonstate prison sanction could present a danger to the public,” and the judge sentenced the defendant accordingly, that sentence would comply with Apprendi.

The statutory language precludes the judge from imposing an enhanced sentence unless “the court makes written findings,” but because the statute says nothing about jury involvement, it does not preclude jury involvement. There would have been a jury finding authorizing the punishment, a jury standing between the accused and the enhanced sentence. Cf. Williams v. Florida, 399 U.S. 78, 100 (1970) (“[T]he essential feature of a jury obviously lies in [its] interposition between the accused and his accuser[.]”). That jury finding would ensure the defendant would not “get more punishment than he bargained for when he did the crime,” based solely on a judge's findings. Apprendi, 530 U.S. at 498 (Scalia, J., concurring) (emphasis omitted). That did not happen here, of course, but the possibility of this constitutional application requires us to reject Woods' facial claim. This ends the inquiry.

Judge Makar's concurring opinion does not appear to take issue with the conclusion that a jury finding of danger would overcome any constitutional right to jury trial issues. Instead, I read his concurring opinion as concluding that the hypothetical situation set out above is not permitted by the statute. I disagree.

Judge Makar's opinion argues that the approach set out above “judicially engrafts a requirement into the statute that a jury makes the factual findings that the statute says the court must make (in writing, no less),” which rewrites the statute. (Conc. Op. at 11). Not so. The approach set forth above does not shift the authority for making the finding of danger from the judge to the jury. The judge must still make a written finding of danger before a prison sentence is permissible. And the decision remains the judge's to make. Even if the jury made the finding of danger, the judge could reject it and choose to impose the non-prison sentence. All the judge cannot do is conclude that a non-prison sentence presents a danger and sentence the defendant to a prison term without that fact being found by the jury.

Nothing about this approach is inconsistent with section 775.082(10). The court can make the statutorily-required written finding, and sentence the offender to prison, perfectly consistent with the statute, but only if the jury has already made the finding of danger.14 This is a constitutional application of the statute. Again, because one exists, regardless of the possibility of unconstitutional applications, the statute is facially constitutional. Accordingly, even if section 775.082(10) implicates Apprendi, it is not facially unconstitutional. And because Woods did not preserve an as-applied constitutional challenge to her sentence, she is not entitled to relief.

Appellant Marlena Woods raises two issues concerning the trial court's determination pursuant to section 775.082(10), Florida Statutes, that sentencing appellant to a nonstate prison sanction could present a danger to the public. She asserts that 1) the statute allowing a judge rather than a jury to make this “danger to the public” finding is unconstitutional;  and 2) the trial judge made insufficient findings, and the record does not support, the finding that a nonstate prison sanction could present a danger to the public. I would not reach the constitutional question because I agree that the trial court's order is deficient, and the State presented insufficient evidence to meet its burden of proof under the statute. See Reed v. State, 192 So. 3d 641 (Fla. 2d DCA 2016);  Murphy v. State, 161 So. 3d 1282, 1284 (Fla. 1st DCA 2015);  Jones v. State, 71 So. 3d 173 (Fla. 1st DCA 2011). I would remand for resentencing to a nonstate prison sanction pursuant to Jones.

I. Facts

The only evidence presented to the trial court was that appellant stole food from Walmart, and she had prior convictions close in time to the underlying offense. No evidence was presented concerning the specific facts surrounding the conviction in the instant case or concerning appellant's prior convictions. The trial judge did not determine or provide an explanation as to why 18 months in prison rather than 1 year in jail would better deter appellant from committing crimes in the future. The court also did not identify the specific danger from which the public was being protected by the court sentencing appellant to prison. This court's opinion in Jones, 71 So. 3d 173, requires such evidence and determinations.

Appellant entered a plea to felony petit theft. The State and the defense stipulated that the factual basis for the plea was based on affidavits contained in the file. The police arrest affidavit, the only one contained in the file, indicated that appellant was arrested for shoplifting food at Walmart. The value of the stolen items was $17.19.

At sentencing, appellant testified that when she committed the theft, she and her four children were homeless and living in the woods, and she stole the food to feed her children and herself. Appellant testified that she was no longer homeless and was looking for a job. Appellant's counsel argued that appellant scored only 8.3 points on her sentencing scoresheet, and thus under section 775.082(10), she qualified for a recommended sentence not exceeding 12 months in county jail. Appellant's counsel asked the court to rely on Jones, 71 So. 3d 173, to support its sentencing appellant to jail rather than prison by finding that appellant was not a danger to the public.

The State argued that appellant was a danger to the public. The State recited appellant's prior record, asserting that she was arrested for the instant theft less than a month after being released from jail, where she had served time for a previous theft. The State presented no other evidence.

The trial court found that appellant presented a danger to the public and sentenced her to 18 months in state prison. The trial court based its written determination on appellant's prior convictions and the rapidity with which she committed her most recent theft after release from jail. The court went on to say, “The financial aspect of the case is significant, despite the fact the items were recovered.” There appears to be no evidentiary support for this conclusory statement made by the trial judge, nor did the trial judge explain why stealing food valued at $17.19 from Walmart that was ultimately recovered made the financial aspect of the case significant.

II. The Law

Section 775.082(10), Florida Statutes, states:

(10) If a defendant is sentenced for an offense committed on or after July 1, 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 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.

(Emphasis added).

Appellant only had 8.3 points on her scoresheet, and her crime was not one defined as a forcible felony, nor did it constitute a violation of chapter 810, Florida Statutes. Therefore, the trial court's departure had to be based on a written finding that a “nonstate prison sanction could present a danger to the public.” § 775.082(10), Fla. Stat.

The statute specifically states that “the court must sentence the offender to a nonstate prison sanction.” § 775.082(10), Fla. Stat. Departure is only authorized based on written findings that a nonstate prison sanction could pose a danger to the public. Thus, the State has the burden of proof, and the order of the trial court must make sufficient findings to justify a departure. Jones, 71 So. 3d 173.

Both the State's burden and the required findings by the trial court are based on the “clear purpose and obvious intent [of] section 775.082(10),” which was “to keep certain offenders out of the state prison system.” Id. at 175. Subsection (10) was enacted as part of a cost-saving measure intended to combat prison overcrowding by adopting a “ ‘prison diversion approach’ pursuant to which the trial court was required to ‘sentence certain non-violent low-scoring offenders to a non-state prison sanction unless the court finds that such a sentence could endanger the public.’ ” Id. at n.4 (quoting Fla. Comm. on Ways & Means, Bill Analysis & Fiscal Impact Statement for CS/SB 1722, at 1 (Apr. 6, 2009) (on file with comm.)). This approach was adopted based on research that concluded diversionary programs had “ ‘reduced offender recidivism and reduced prison populations' ” with the goal of “ ‘improv[ing] public safety by reducing crime through providing non-violent offenders with the tools to function successfully in the community.’ ” Id. (quoting Fla. Comm. on Ways & Means, Bill Analysis & Fiscal Impact Statement for CS/SB 1722, at 1).

In Jones, we addressed the sufficiency of the evidence to support a prison sentence pursuant to section 775.082(10). In that case, the defendant scored 8.2 points on his sentencing scoresheet and was convicted of driving while his license was cancelled, suspended, or revoked. Importantly, two of the trial court's findings in Jones were:

1. Defendant has evinced an unwillingness to discontinue driving without a driver's license, despite repeated punishment by the Courts;

4. Defendant's unavailability to drive due to incarceration in State prison is the only method open to the Court for the protection of the public from Defendant's irresponsible and dangerous behavior.

Id. at 174.

These findings are very similar to the ones made in the instant case that the only way to prevent future shoplifting based on appellant's record was to place her in prison. In Jones we found such findings to be insufficient to support the imposition of a prison sentence. We specifically stated:

Although Appellant's history of driving without a license arguably supports the trial court's finding that he will continue to do so, the court did not make sufficient findings and the record does not suggest that imprisonment within the state prison system rather than the county jail would better deter him from continued unlicensed driving. Nor is there any record support for the court's implicit finding that one year of incarceration in the county jail would constitute a significantly lesser deterrent for Appellant than three years in state prison. The trial court's additional findings are speculative at best because it does not appear from the record that Appellant has a history of vehicle accidents or engaging in high speed chases with law enforcement.

Id. at 176.

Several important concepts may be gleaned from Jones:

1. Repetitive convictions standing alone are insufficient to support imposition of a state prison sentence pursuant to the statute.

2. Speculative or conclusory statements not supported by the record will not support the imposition of state prison sentences.

3. The court must have evidence and explain how a prison sentence will be a greater deterrent to prevent the criminal behavior.

The instant case suffers from the same infirmities that existed in Jones.

In Reed v. State, 192 So. 3d 641, 648 (Fla. 2d DCA 2016), and Ryerson v. State, 189 So. 3d 1047, 1048 (Fla. 4th DCA 2016), our sister courts similarly struck down departure sentences pursuant to section 775.082(10) where the trial court's findings did not establish a nexus between nonstate prison sanctions and the resulting danger to the public. Because the trial court's findings here failed to establish that nexus, the findings were insufficient to support a prison sanction.

In addition, the Second District convincingly determined that “a sentencing court's finding of an offender's danger to the public must be more than the recitation of acts that are inherent to the crimes for which the defendant was convicted.” Reed, 192 So. 3d at 647. As previously noted, the State in this case relied solely on appellant's prior record without presenting any evidence concerning why a danger to the public was presented in this particular case.

There are only two cases in Florida holding economic crimes may be sufficient to justify a finding of danger to the public. See Porter v. State, 110 So. 3d 962 (Fla. 4th DCA 2013);  McCloud v. State, 55 So. 3d 643 (Fla. 5th DCA 2011). I do not necessarily disagree with that conclusion, but the application of this rule to the petit theft in this case without any other specific facts surrounding this offense or appellant's prior offenses is problematic.

In addition, neither Porter nor McCloud is binding on this court, and both are factually distinguishable. In McCloud, 55 So. 3d 643, the Fifth District was dealing with convictions for felony petit theft—the same crime we are dealing with in this case.15 McCloud is distinguishable, however, because the McCloud court gave a specific, detailed explanation concerning how the defendant's behavior constituted a danger to society.16 Id. at 644–45. In the instant case, there is no such explanation in the order, nor is there any testimony to support such a finding.

In Porter, 110 So. 3d 962, the other Florida case upholding a determination that the defendant posed a danger to the public based on financial crimes, the trial judge had the benefit of a full trial and evidence upon which he made a finding that “the financial and emotional damage in this case was significant.” The Porter court also determined that the underlying crime was consistent with the defendant's life-long modus operandi. Id. In the instant case, the facts do not support a finding of significant financial and emotional damage. The only facts on the record, stealing $17.19 worth of food from Walmart to feed appellant's children, absent other evidence, do not demonstrate any type of significant financial impact. In addition, the State presented no facts concerning appellant's previous crimes.

Further, the Fourth District, in a later decision, limited its holding in Porter, noting there still must be more than conclusory statements to establish the nexus between the nonstate prison sanction and the danger to society. Ryerson, 189 So. 3d 1047.

Here, in finding a danger to the public, the trial court relied in part on the fact that appellant committed the underlying petit theft only a month after being released from incarceration for a prior petit theft conviction. Appellant's history of committing petit theft might support a finding that appellant would continue to commit petit thefts. Jones, 71 So. 3d at 176. However, as this court found in Jones, the likelihood of recidivism is not enough to justify a prison sanction under section 775.082(10). The State must prove, and the court must explain, how imprisonment rather than a nonstate prison sanction would better deter continued thefts. Stated differently, the court must explain how one year of incarceration in county jail would constitute significantly less of a deterrent than a prison sentence. Here, there was no evidence or findings that a year in jail would constitute a significantly lesser deterrent than an 18–month prison sentence, nor was there any evidence or findings made by the trial court demonstrating that the types of petit thefts committed by appellant constituted a danger to the public.

Based upon the lack of evidence to support the trial court's finding that “the financial aspect of this case is significant,” the lack of an explanation as to what harm society was being protected from, and the lack of an explanation as to how the sentence actually imposed would afford greater protection to the public than a nonstate prison sanction, this case must be reversed pursuant to Jones.

Marlena Woods has served her time. She was released shortly before this court's en banc argument, and there is nothing we can do now to shorten her sentence. Because “[i]t is a fundamental maxim of judicial restraint that ‘courts should not decide constitutional issues unnecessarily,’ ” Johnson v. Feder, 485 So. 2d 409, 412 (Fla. 1986) (quoting In re Forfeiture of One Cessna 337H Aircraft, 475 So. 2d 1269, 1270–71 (Fla. 4th DCA 1985)), we should dismiss this appeal.

Woods challenged only her sentence—not her conviction. Generally, when a defendant challenges a sentence already completed, we dismiss the appeal as moot. See, e.g., Miller v. State, 996 So. 2d 954 (Fla. 1st DCA 2008) (Mem. Op.);  Toomer v. State, 895 So. 2d 1256 (Fla. 1st DCA 2005) (Mem. Op.);  Desrosiers v. State, 189 So. 2d 834 (Fla. 1st DCA 1966). We have even gone so far as to say “we have no choice but to dismiss the appeal” in this circumstance. Miller v. State, 79 So. 3d 209, 211 (Fla. 1st DCA 2012). That overstates it, of course, because we do have some discretion in this area. See Sims v. State, 998 So. 2d 494, 503 n.8 (Fla. 2008). But this is not a case that warrants departing from our usual approach.

The Florida Supreme Court has held that appellate courts may decide otherwise moot appeals if the issues are capable of repetition yet evading review. Id. Here, there is no obvious reason why the issues cannot reach timely review. They have in other cases, see, e.g., Porter v. State, 110 So. 3d 962 (Fla. 4th DCA 2013), and they nearly did here.17

Appellate courts may also decide otherwise moot appeals that raise issues of “great public importance.” Sims, 998 So. 2d at 503 n.8;  see also State v. Matthews, 891 So. 2d 479, 483 (Fla. 2004). This can be a difficult standard to define, but because of judicial restraint, we should apply this exception in only the most extraordinary circumstances. And we should be particularly reluctant to rely on this exception here because “[n]o questions can be brought before a judicial tribunal of greater delicacy than those which involve the constitutionality of a legislative act.” United States v. Cong. of Indus. Orgs., 335 U.S. 106, 125 (1948) (Frankfurter, J., concurring) (quoting Ex parte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (Marshall, C.J., on circuit)). This is simply not the type of case that warrants abandoning our usual judicial restraint.

There will be other opportunities to address the issues this case presents. We should wait for one that presents an actual dispute. Because the appeal is now moot, and because no compelling reason justifies our deciding the moot issues presented, we should vacate the panel opinion and dismiss the appeal.

FOOTNOTES

1.   See Godwin v. State, 593 So. 2d 211, 212 (Fla. 1992) (“[It] is well settled that mootness does not destroy an appellate court's jurisdiction ․ when the questions raised are of great public importance or are likely to recur.”) (quoting Holly v. Auld, 450 So. 2d 217, 218 n.1 (Fla. 1984));  see also Casper v. State, 187 So. 3d 255, 257 (Fla. 1st DCA 2016) (“Our court, though being presented with the issue, has avoided writing an opinion on it.”) (Makar, J., concurring);  Murphy v. State, 161 So. 3d 1282, 1284 (Fla. 1st DCA 2015) (“[W]e do not reach appellant's alternate claim that section 775.082(10) is unconstitutional under Apprendi and its progeny because the statute deprived him of his Sixth Amendment right to a jury determination of any fact which enhances his sentence.”) (internal citations omitted);  Jones v. State, 71 So. 3d 173, 179 (Fla. 1st DCA 2011) (B.L. Thomas, J., concurring in result only) (“We should hold that a trial court lacks the lawful authority under this statute to make any findings without a special jury verdict or a waiver of the defendant's Sixth Amendment right.”).

2.   Reed v. State, 192 So. 3d 641, 645 (Fla. 2d DCA 2016) (“Although section 775.082(10) does not define ‘nonstate prison sanction,’ the phrase is ‘understood to mean probation, community control, or imprisonment in the county jail for up to one year.’ ”) (citing Jones, 71 So. 3d at 175).

3.   Neither party advances the view that Apprendi is inapplicable simply because Woods's eighteen-month state prison sentence is less than five years, which is the maximum duration for both nonstate and state sentences under subsection (10), the reason being that a five-year state sanction (i.e., five years in prison) is substantially different from—and far more punitive than—any possible five-year nonstate sanction (i.e., up to twelve months in county jail plus four years of probation/community control or five years of the latter);  durational equivalence means nothing due to the punitive asymmetry between these two dissimilar punishments. As far back as Jones v. State, the State had the opportunity to respond to a focus order raising this specific issue, which comparatively cited State v. Carr, 53 P.3d 843, 850 (2002) (“Apprendi applies only to upward durational departures of a sentence” and is inapplicable to “a sentencing judge's decision to impose a dispositional departure prison sentence rather than to grant probation.”) and State v. Allen, 706 N.W.2d 40, 47 (Minn. 2005) (finding statute authorizing trial court to make an “upward dispositional departure upon finding an aggravating factor without the aid of a jury” is “unconstitutional as applied”). The State did not embrace this distinction in Jones and does not do so in this case;  indeed, it conceded that the last sentence of subsection (10) violated Apprendi on the facts of that case, which are similar to this case (see next footnote).Focusing solely on a durational maximum of five years, without distinguishing between the types of punishment imposed, overlooks two related points that demonstrate why Apprendi applies in this case. First, probation and community control are not incarcerative sentences;  instead, they are alternative non-incarcerative forms of penance. See § 948.001(9), Fla. Stat. (2016) (“ ‘Probation’ means a form of community supervision requiring specified contacts with parole and probation officers and other terms and conditions as provided” by statute.);  § 948.10, Fla. Stat. (2014) (Community control is “an alternative, community-based method to punish an offender in lieu of incarceration.”);  see also Carr, 53 P.3d at 850 (“A person on probation or parole is not serving a sentence.”). A judge deciding whether to impose probation or incarceration does not alter the range of incarcerative punishment. Thus, cases like Carr and State v. Anderson, 867 N.W.2d 718, 724 (S.D. 2015), which involved only the judicial choice between probation and an incarcerative sentence, don't apply here because the dispositional decision to place an offender on probation versus imposing a jail sentence within a specified incarcerative range (such as six months in jail rather than six months of probation) is different from imposing a harsher sentence beyond that specified range. The question in Carr and Anderson was a binary one:  whether a guilty offender should be placed on probation or incarcerated—one traditionally allocated to the trial judge's discretion and not subject to Apprendi, much like consecutive sentencing for multiple offenses. Oregon v. Ice, 555 U.S. 160, 163 (2009). Neither Carr nor Anderson involved the question here:  whether a court may increase punishment beyond the statutory maximum based on additional fact-finding by a judge. In fact, Anderson specifically disclaimed that its decision applied to situations where the range of imprisonment could be increased, and Carr held that Apprendi applied to “upward durational departures of a sentence,” as is the case here. See Anderson, 867 N.W.2d at 724 (the decision to deny or revoke probation and thereby incarcerate an offender “is within the court's purview to decide facts relevant to that decision. ․ such a decision does not alter the range of years of imprisonment that a court may impose for a particular offense”) (emphasis added);  Carr, 53 P.3d at 850.Second, up to five years in the Florida prison system is qualitatively more severe than up to twelve months in the county jail plus four years of probation;  the incarcerative component of the former is five times more punitive than the latter, making Apprendi applicable, as noted in Jones:Thus, without a jury finding, a trial court cannot impose a “dispositional departure,” i.e., incarceration rather than probation, because that would exceed the statutory maximum by increasing the quantum of punishment even though the length of the sentence might be no different. In other words, five years of probation is most certainly not equal to five years of state prison:  the latter is qualitatively, albeit not quantitatively, more severe. Accordingly, a “dispositional departure” is just as invalid for Sixth Amendment analysis as a “durational departure.”Jones, 71 So. 3d at 178 (B.L. Thomas, J., concurring in result). Here, Woods faced a maximum of up to one year in county jail, which increased to five years in state prison based solely on fact-finding by a judge, rather than a jury. In short, Apprendi doesn't apply when a trial judge exercises traditional sentencing discretion under the first sentence of subsection (10) by imposing a nonstate sanction;  if Woods had been sentenced to time in the county jail rather than a probationary term (or some combination of the two), Apprendi would not be implicated. Apprendi does apply, however, when a trial judge engages in the next step—that being to engage in additional factual-finding under the last sentence of subsection (10)—thereby allowing him to increase an incarcerative sentence beyond the statutory nonstate maximum founded upon jury findings.

4.   On similar facts, the State conceded six years ago that the application of subsection (10) violates Apprendi/Blakely. See Jones, 71 So. 3d at 178 (noting that “the State correctly conceded at oral argument that ‘on these facts [as found by the trial judge],’ the prison sentence under section 775.082(10), Florida Statutes, violates the holding of Blakely—not because the judge's findings are flawed, but because only a jury of Appellant's peers can make such a finding”) (B.L. Thomas, J., concurring in result). Indeed, prior to oral argument in Jones, the State and the public defender jointly stipulated as follows:  “The parties also agree that on the facts of this case, the trial court's imposition of sentence of 3–years state prison based solely on a judicial determination under the last of section 775.082(10), Florida Statutes, that ‘a nonstate prison sanction could present a danger to the public’, violates the holdings of the U.S. Supreme Court in Apprendi ․ and Blakely ․” And at oral argument, the State opened with the following:State:  Although the State would like to contend that Blakely does not apply, on the facts of this case, the State cannot in good faith contend that it does not.․Judge Swanson:  So the Attorney General for the State of Florida is conceding that Apprendi applies in this instance?State:  On the facts of this case ․Tr. of Oral Argument, 1D10–1568, at 15:36.

5.   A good example of how a “prior convictions” application might swallow the statute is Porter v. State, 110 So. 3d 962, 964 (Fla. 4th DCA 2013), case dismissed as moot, 137 So. 3d 1021 (Fla. 2014), which involved judicial fact-finding and prognostications that exceeded the mere fact that the defendant had prior convictions.

6.   On post-conviction review, it is probable that the Apprendi/Blakely error would be deemed either not retroactive or harmless in most, if not all, cases. See State v. Johnson, 122 So. 3d 856, 865–66 (Fla. 2013) (Blakely does not apply retroactively, in part, because of the adverse effect on the administration of justice.);  Mitchell v. State, 145 So. 3d 890, 892 (Fla. 1st DCA 2014) (sentences within the statutory maximum “are not subject to collateral attack on the basis of Blakely or Apprendi”).

7.   Regarding the mootness concern raised by some of my colleagues, I agree with the majority of my colleagues that Ms. Woods' facial challenge to § 775.082(10) should be decided on the merits and not dismissed as moot. “[T]he mootness doctrine does not destroy our jurisdiction when the question before us is of great public importance or is likely to recur.” Enterprise Leasing Co. v. Jones, 789 So. 2d 964, 965 (Fla. 2001). Here, we have a recurring issue. Multiple defendants have raised Apprendi–Blakely challenges to § 775.082(10) in this court and other courts within the last six years only to have the issue side-stepped and remain unaddressed. See, e.g., Murphy v. State, 161 So. 3d 1282, 1284 (Fla. 1st DCA 2015);  Murray v. State, 133 So. 3d 557, 559 (Fla. 1st DCA 2014);  Sprott v. State, 99 So. 3d 634, 635 (Fla. 1st DCA 2012);  Jones v. State, 71 So. 3d 173, 174 (Fla. 1st DCA 2011);  see also Casper v. State, 187 So. 3d 255, 257 (Fla. 1st DCA 2016) (Makar, J., concurring dubitante) (“Our court, though being presented with the issue, has avoided writing an opinion on it.”). This case raises an important issue. And there have been dozens of appeals citing § 775.082(10) in recent years. If the sentences rendered under this law aren't constitutional, we should say so. This case presents an exceptionally good vehicle for doing so. Our court voted to hear this case en banc and took the extraordinary steps of ordering additional briefing and an argument before the entire court (apparently for the first time in over two decades). Under these circumstances, with the important constitutional claim teed up now for resolution, it would be incorrect to stop short, wash our hands of this appeal, and simply punt this recurring constitutional issue to some future panel (with the looming prospect of a duplicative en banc process in some other case very soon).

8.   I note Judge Makar's point that the State didn't defend the statute on the grounds developed in this opinion. But that fact doesn't preclude us from affirming on these grounds. First, Florida's “tipsy coachman rule” requires an appellate court, in considering whether to uphold or overturn a lower court's judgment, to affirm the judgment if it is legally correct, so long as there is any basis for doing so. See Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002). We may even affirm in cases “where the State does not file a brief.” Powell v. State, 120 So. 3d 577, 592 (Fla. 1st DCA 2013) (Op. on Reh'g). Second, it is not the parties' job in litigation to decide whether a statute is facially constitutional. Rather, it is the work of the judiciary. See Cashatt v. State, 873 So. 2d 430, 434 (Fla. 1st DCA 2004). The State's limited defense of a statute—or even a full-blown failure to defend such a law—has no bearing on this court's duty to carefully and diligently decide a duly-presented constitutional issue. “No doubt the political branches have a role in interpreting and applying the Constitution, but ever since Marbury [courts have] remained the ultimate expositor of the constitutional text.” United States v. Morrison, 529 U.S. 598, 616 n.7 (2000). See also Gregory F. Zoeller, Duty to Defend and the Rule of Law, 90 Ind. L.J. 513, 534 (2015) (criticizing practices that would place “the attorney general in the position of exercising a ‘litigation veto’ over legislation whose constitutionality is open to debate”).

9.   Different from Apprendi's concern about increased punishments, § 775.082(10) does not authorize Florida's trial courts to give prison sanctions as a means of increasing a punishment. Rather, the statute allows prison sentences only if public safety interests call for that form of sanction. Punishment and public protection are distinctly different goals. See, e.g., Westerheide v. State, 831 So. 2d 93 (Fla. 2002) (finding Jimmy Ryce Act–related detention to be nonpunitive due to its public protection goal). See also United States v. Salerno, 481 U.S. 739, 748–50 (1987) (allowing pre-trial detention decisions by judges because governments have compelling public safety interests in preventing additional crimes).

10.   Apprendi v. New Jersey, 530 U.S. 466 (2000).

11.   While the maximum sentence with a departure under section 775.082(10) is “more severe” than the maximum sentence without a departure, the same is true regarding the Kansas and South Dakota sentencing statutes at issue in Carr and Anderson.

12.   “[A] claim of Apprendi error must be preserved for review.” Hughes v. State, 901 So. 2d 837, 844 (Fla. 2005);  accord Galindez v. State, 955 So. 2d 517, 521 (Fla. 2007);  see also United States v. Cotton, 535 U.S. 625, 634 (2002) (rejecting unpreserved Apprendi claim). Woods offered no Apprendi objection below, so her argument that her sentence violated Apprendi is unpreserved. However, Woods can still assert a challenge to the statute's facial constitutionality for the first time on appeal. See Trushin v. State, 425 So. 2d 1126, 1129 (Fla. 1982).

13.   It has been suggested that section 775.082(10) can be constitutionally applied if the defendant admits the facts justifying the departure, or if the defendant waives jury trial. If a statute violates a constitutional right, I doubt that a situation where a defendant waives the constitutional right constitutes an application that saves the facial constitutionality of the statute. However, this question need not be addressed here because the jury can decide the danger issue without the defendant waiving her right to jury trial.

14.   This excludes the situation where the defendant admits that a non-prison sentence presents a danger to the public.

15.   The court found a habitual thief could present a danger to the public pursuant to the statute, a conclusion that I also do not necessarily disagree with based on the facts of that case.

16.   There was specific testimony regarding how the defendant's behavior was acting as a drain on police resources.

17.   According to the parties, Ms. Woods was still incarcerated when the original panel decision issued—nearly eleven months after she filed her notice of appeal. Without the en banc proceedings, this appeal would have reached finality before her release. And some defendants raising these issues face even longer sentences, making complete appellate review even more likely. In Porter, for example, the defendant received a five-year sentence. 110 So. 3d at 963. His appeal—which rejected his Blakely challenge—was decided long before he completed his sentence.

PER CURIAM.

MAKAR, J., concurs in an opinion in which ROBERTS, C.J., LEWIS and BILBREY, JJ., join, and in which WETHERELL, J., joins except as to Part C. OSTERHAUS, J., concurs in an opinion in which ROWE, KELSEY, and M.K. THOMAS, JJ., join. WINOKUR, J., concurs with opinion. WOLF, J., dissents with opinion. WINSOR, J., dissents in an opinion in which B.L. THOMAS and RAY, JJ., join. JAY, J., recused.