Terrance E. McCLOUD, Appellant, v. STATE of Florida, Appellee, 803 So. 2d 821

EN BANC GRIFFIN, J. This case appears before us on remand from the United States Supreme Court. See McCloud v. Florida, 531 U.S. 1063, 121 S.Ct. 751, 148 L.Ed.2d 654 (2001). The Supreme Court’s opinion was succinct: On petition for writ of certiorari to the District Court of Appeal of Florida, Fifth District. Motion of petitioner for leave to proceed in forma pauperis and petition for writ of certiorari granted. Judgment vacated, and case remanded to the District Court of Appeal of Florida, Fifth District, for further consideration in light of Apprendi v.

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Id. This court’s en banc opinion, vacated by the Supreme Court as described above, was issued on January 8, 1999. See McCloud v. State, 741 So.2d 512 (Fla. 5th DCA 1999), vacated and remanded, 531 U.S. 1063, 121 S.Ct. 751, 148 L.Ed.2d 654 (2001).

In that opinion, which involved a sexual battery conviction, we held “that all issues pertaining to the assessment of points on the [sentencing guidelines] score-sheet are to be determined by the court, not the jury, and that the defendant is not constitutionally entitled to have a jury make the predicate factual determination for the scoring of penetration.” Id. at 512-13.

That holding must now be reexamined by this court in light of the holding of Apprendi: “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.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Apprendi was a five-to-four decision of the United States Supreme Court in which the various opinions of the justices reflected sharp disagreement concerning the scope and meaning of the majority opinion.

Commentators and courts that have thus far weighed in on Apprendi demonstrate a parallel uncertainty. See, e.g., People v. Carney, 196 Ill.2d 518, 256 Ill.Dec. 895, 752 N.E.2d 1137 (2000); Stephen A. Saltzburg, Due Process, History and Apprendi v. New Jersey, 38 Am.Crim. L.Rev. 243 (2001); Robert Batey, Column, Sentencing Guidelines and Statutory Maximums in Florida: How to Best Respond to Apprendi, 74 Fla. B.J. 57 (2000); Joseph Hoffman, Apprendi v. New Jersey, 38 Am.Crim. L.Rev. 255 (2001); Benjamin Priester, Constitutional Formalism and the Meaning of Apprendi v. New Jersey, 38 Am.Crim. L.Rev. 281 (2001).

In order for the high court and anyone else not steeped in Florida’s sentencing procedures to appreciate our difficulty in applying the holding of Apprendi, a brief explanation of the relevant sentencing guidelines is in order. Florida has long been engaged in an effort to create a viable determinate sentencing scheme. The 1995 sentencing guidelines, which are applicable to this case, operated on a point system calculated on a “scoresheet” prepared for the sentencing hearing. § 921.0014, Fla. Stat. (1995).

Crimes were categorized by offense severity level and a table contained in the statutes set forth the precise number of points to be assessed for the primary offense scored at conviction. Next, points were scored for additional convicted offenses. Third, the physical injury inflicted on the victim during the convicted offenses had to be evaluated to determine whether it should be categorized as either: “death”, “severe”, “sexual penetration”, “moderate”, “sexual contact”, or “slight”.

If the trial judge, based on a preponderance of the evidence, found such a level of injury, it was scored a specific number of points. After totaling the points for all these categories, a calculation of “prior record” points was made using a separate chart. Next, additional points were assessable for several separate categories such as “legal status” (meaning whether the defendant was on probation or community control when he committed the offense). Once all the points were scored and totaled, a calculation of state prison months was made.

This was done by simply subtracting the number twenty-eight from the total score. The resulting number became a specific number of prison months, referred to as the “recommended sentence.” The next entry on the scoresheet called for the calculation of twenty-five percent above the recommended sentence and twenty-five percent below. This would be the range of sentencing discretion given the trial court without having to follow the guidelines “departure procedure,” which would require the finding of one or more statutorily identified upward or downward departure grounds.

If the judge found a ground for upward departure, he or she was authorized to impose any sentence within the relevant maximum sentence for the particular degree of crime set forth in

section 775.082, Florida Statutes. § 921.0016(l)(e) (1995).

Section 775.082, Florida Statutes (1995), entitled “Penalties”, which long predates the advent of sentencing guidelines, identifies the range of penalties applicable to every degree of offense existing in Florida from a capital felony to a second-degree misdemeanor. This statute expressly sets forth the maximum penalty for every degree of offense. A second-degree felony, for example, is punishable “by a term of imprisonment not exceeding fifteen years.” § 775.082(3)(c), Fla. Stat. (1995). The maximum penalties set forth in

section 775.082 are referred to as the “statutory maximum” for each offense. See Mays v. State, 717 So.2d 515 (Fla.1998). Unless the offender falls within a category which qualifies for special sentencing treatment, such as “habitual offenders,” the statutory maximum can only be exceeded if the guidelines range is greater than the statutory maximum. McCloud was convicted of three second-degree felonies: sexual battery, burglary of a dwelling and lewd or lascivious act in the presence of a child.

His case may be a propitious one for beginning an analysis of whether and how Florida’s myriad of guidelines sentencing schemes stand up under Apprendi because McCloud’s guidelines scoresheet is an uncharacteristically simple one.

The sentencing calculation under the 1995 sentencing guidelines was the following: Primary offense Sexual battery second-degree felony 74 points Additional offenses Burglary of an occupied dwelling, second-degree felony 28 points Lewd, lascivious act in the presence of a child 28 points Victim injury Sexual penetration 80 points Prior record 2 points Total 212 points 212 minus 28 = 184.0 recommended sentence 184.0 X .075 = 138 minimum prison months 184.0 x 1.25 = 230 maximum prison months In order to determine whether the rule of Apprendi applies to require that the determination of victim injury be submitted to a jury and proved beyond a reasonable doubt, it is necessary to determine the “statutory maximum” for purposes of applying Apprendi Is it fifteen years?

Is it 230 months, or is it something else? Judge Harris suggests the “statutory maximum” would be the number of prison months yielded by scoring the convicted offenses alone under the guidelines. Because, under the sentencing guidelines, every point is equal to a prison month, the addition of even a single point will affect the guidelines sentencing range.

Whenever any point is added for any reason, except recidivism, the resulting score will yield a sentence above the score for the crime standing alone; therefore, reasons Judge Harris, any such ground under the sentencing guidelines for adding any sentencing points above those assessable for the convicted offenses (and recidivism) must be proved to a jury beyond a reasonable doubt. This

interpretation and application of Apprendi has support in Appren-di’s majority opinion and even more in the concurring opinions. Also, there is an il-logic to the constitutional imperative of a jury finding beyond a reasonable doubt for any sentencing fact that increases punishment even one day beyond the “statutory maximum” but makes no such requirement if the same fact is used to increase punishment for any amount of time below the statutory maximum.

As a Fordham University law student recently observed in a fine student note attempting to decipher Apprendi: If the Constitution entitles defendants to heightened protections at sentencing, then such protections should extend to every determination that a judge makes and not just be triggered by “the maximum.” As a practical matter, after Ap-prendi, defendants’ sentences can still be substantially increased as a result of findings made by judges, rather than juries, using merely a preponderance of the evidence standard. This

interpretation yields the absurd result of continuing to allow judges to make findings of fact that increase the length of the defendant’s sentence within the prescribed statutory maximum penalty, while they cannot make decisions that would raise the penalty above the statutory maximum. Andrew J. Fuchs, Note, The Effect of Apprendi v. New Jersey on the Federal Sentencing Guidelines: Blurring the Distinction Between Sentencing Factors and Elements of a Crime, 69 Fordham L.Rev. 1399, 1427 (2001) (footnotes omitted.) Yet, ultimately, Mr.

Fuchs and most others who have thus far undertaken an analysis of Apprendi appear to conclude that the court did indeed intend to preserve the trial judge’s power to sentence within the commonly understood “statutory maximum” by making traditional sentencing judgments and to require proof to a jury beyond a reasonable doubt only where inclusion of these factors would increase the severity of the penalty beyond the statutory maximum. Stephen A. Saltzburg, supra; Robert Batey, supra; Joseph Hoffman, supra; Fuchs, supra, at 1433.

Florida’s sentencing guidelines were initially developed as a result of legislation passed in 1982. The legislature’s stated purpose for creation of the guidelines is: [T]o establish a uniform set of standards to guide the sentencing judge in the sentence decisionmaking process. The guidelines represent a synthesis of current sentencing theory, historical sentencing practices, and a rational approach to managing correctional resources.

The sentencing guidelines are intended to eliminate unwarranted variation in the sentencing process by reducing the subjectivity in interpreting specific offense-related and offender— related criteria and in defining the relative importance of those criteria in the sentencing decision. § 921.001, Fla. Stat. (1995).

Although it is true that the sentencing guidelines can confine a sentence for a given offense to a number of prison months less than the statutory maximum applicable to the degree of crime committed, and that certain facts must be present to alter the score and thereby enlarge the trial judge’s scope of sentencing discretion, it would also seem to be true, based on Apprendi, that this restraint on sentencing judges would present no constitutional issue. Indeed, it would seem that the constitution would favor objective guideposts for the exercise of judicial sentencing discretion.

The guidelines organize and objectify what may otherwise be subjective and diffuse. If any sentence up to the statutory maximum is available absent the guidelines, imposition of a guidelines sentence within that statutory maximum would not seem to present an issue like the one the high court found in Apprendi.

If it were, especially in the face of the lugubrious warnings of the dissents, it would be surprising for the Apprendi majority to dismiss the issue in a brief footnote, as it seems to have done: The principal dissent, in addition, treats us to a lengthy disquisition on the benefits of determinate sentencing schemes and the effect of today’s decision on the federal Sentencing Guidelines. The Guidelines are, of course, not before the Court. 530 U.S. at 497 n. 21, 120 S.Ct. 2348.

All of the federal circuit courts of appeal that have considered this issue have agreed that: a district court may make various factual determinations under the guidelines, thereby affecting a defendant’s sentence, so long as such determinations do not cause the defendant’s sentence to exceed the prescribed statutory maximum for that crime. United States v. Skidmore, 254 F.3d 635, 643 (7th Cir.2001). See also, United States v. Bennett, No. 00-5637, 2001 WL 1450741 (6th Cir. Oct.30, 2001); United States v. Sanchez, 269 F.3d 1250 (11th Cir.2001); United States v. Hussey, 254 F.3d 428 (2d Cir.2001); United States v.

Robinson, 241 F.3d 115 (1st Cir.), cert. denied, — U.S. —, 122 S.Ct. 130, 151 L.Ed.2d 84 (2001); United States v. Garcia, 240 F.3d 180 (2d Cir.), cert. denied, — U.S. —, 121 S.Ct. 2615, 150 L.Ed.2d 769 (2001); United States v. Enigwe, No.Crim. A. 92-257, 2001 WL 708903 (E.D.Pa. June 21, 2001). In a recent decision of the District of Columbia Court of Appeals, that court rejected the claim that Apprendi required guidelines enhancements to be determined by a jury and proved beyond a reasonable doubt. In re: Sealed Case, 246 F.3d 696 (D.C.Cir.2001).

After noting the longstanding role of judges in exercising discretion -within statutory limits and the high court’s allowance of sentencing enhancements based on a preponderance of the evidence, the District of Columbia Court of Appeals observed: Given this traditional latitude, and the Apprendi Court’s explicit endorsement of the tradition, it is hard to see how the Court could have intended to mandate the heightened standard for application of the Guidelines’ enhancement instructions when the resulting sentence remains within the statutory maximum.

Reading the Apprendi rule to avoid such a result is consistent with the Court’s statement that the case addressed a “narrow issue.” Id. at 699. In this case, McCloud’s maximum guidelines score for three second-degree felonies (230 months) resulted in a possible sentence of as many as fifty prison months above the fifteen year statutory maximum for one second-degree felony (180 months). McCloud was sentenced to 184 months for each of the three offenses, to be served concurrently.

Assuming that only the sexual battery offense is taken into account, the statutory maximum for that single offense was fifteen years, or 180 months. Because the victim injury points scored by virtue of the judge-determined penetration sentencing factor was a component of the score that made possible a sentencing range for the single offense that exceeded 180 months, it is true that the 40 “sexual penetration” victim injury points assessed by the trial judge increased McCloud’s available sentence above the statutory maximum by four months. § 775.082(3)(c), Fla. Stat. (1995).

We do not reach this apparent Ap-prendi violation, however, because to complicate matters even more, after McCloud was decided, the 1995 sentencing guidelines were declared unconstitutional by the Supreme Court of Florida based on a violation of the state constitution’s “single subject” rule. See Heggs v. State, 759 So.2d 620 (Fla.2000). Therefore, irrespective of the issues presented in this case, McCloud will have to be resentenced using a 1994 Florida Sentencing Guidelines Worksheet.

Using a 1994 sentencing guidelines worksheet, it would appear that, even including the complained-of points awarded for the judge-determined “sexual penetration”, McCloud’s maximum potential sentence no longer reaches the fifteen year “statutory maximum” for the crime. Under the 1994 sentencing scheme, his maximum prison months score is 166 months. That being the case, assuming “statutory maximum” means the fifteen year maximum sentence for a second-degree felony (180 months), the Apprendi issue is resolved.

It appears to us that the Florida courts that have considered Apprendi thus far understand the term “statutory maximum” under Florida’s sentencing scheme to be the maximum penalties set forth in

section 775.082. McGregor v. State, 789 So.2d 976 (Fla.2001), approving Kijewski v. State, 773 So.2d 124 (Fla. 4th DCA 2000), review denied, 790 So.2d 1105 (Fla.2001). See Gilson v. State, 795 So.2d 105 (Fla. 4th DCA 2001)(penetration “is merely a ‘sentencing factor’ that the judge considered in his broad discretion to sentence, ‘within the range prescribed by statute ’ ”)(eiting Apprendi, 530 U.S. at 466, 120 S.Ct. 2348)(emphasis in original).

We agree with Judge Harris, however, that only the Supreme Court of the United States can say what “statutory maximum” means to them in the context of determinate sentencing schemes such as the one at issue here. In Caraballo v. State, 805 So.2d 882 (Fla. 2d DCA 2001), the Second District Court of Appeal recently considered the question whether the trial court erred in assessing victim injury points for sexual battery without a jury finding that victim injury was proven beyond a reasonable doubt.

The court held that because Cara-ballo’s sentence of twenty-three years for the first-degree felony was less than the statutory maximum of thirty years as set forth in

section 775.082(3)(b), Florida Statutes, the defendant was not entitled to relief under Apprendi. We hold that, in Florida, for purposes of determining a constitutional violation under Apprendi, the relevant “statutory maximum” is found in

section 775.082. We choose this answer to the question posed by the United States Supreme Court’s remand because it is our best guess about what Apprendi means. It also seems consistent with the views of others that so long as the statutory maximum applicable to the crime (not the guidelines range applicable to the circumstances of a particular offense) is not exceeded, the sentencing judge may determine sentencing factors by a greater weight of the evidence standard.

We also choose this answer because virtually every sentence involving a crime of violence that has been handed down in Florida for almost two decades has included a judicially-determined victim injury component to the guidelines score. Justice O’Connor’s observation that the effect of Apprendi to guidelines sentencing would be “colossal” barely describes the cataclysm in Florida if such sentences are invalidated because the jury did not make the “victim injury” finding. Before we take that path, we should have a clearer mandate from the United States. Supreme Court that it is constitutionally required.

Accordingly, we remand this case for resentencing under the 1994 guidelines and hold that points on the 1994 guidelines scoresheet for “sexual penetration” may be included because the inclusion of these points does not cause the imposition of a sentence more severe than the statutory maximum for the second-degree felony of sexual battery established by the jury’s verdict. SENTENCE VACATED and REMANDED for proceedings in accordance with this opinion. THOMPSON, C.J., SHARP, W., PETERSON, SAWAYA, PLEUS, JJ., concur.

HARRIS, J., concurs and dissents in part, with opinion, in which COBB, PALMER and ORFINGER, R.B., JJ., concur. . The sexual penetration category was added in response to a 1992 decision by the Supreme Court of Florida that sexual penetration alone did not qualify as a victim injury under the relevant rule of criminal procedure. Karchesky v. State, 591 So.2d 930 (Fla.1992). . On the other hand, this case also presents a complication that Judge Harris has discussed at length. In Florida, sexual battery,

section 794.01 l(l)(h), Florida Statutes, consists either of oral, anal or yaginal penetration or union with the sexual organ of another. No special verdict asked the jury whether it found both union and penetration or only union. Judge Harris suggests that, at sentencing, the trial judge must conclude that only "union” was found by the jury and, thus, may only score victim injury sentencing points attributable to the victim injury category of "sexual contact” (40 points), rather than the victim injury category of "sexual penetration” (80 points).

This argument was discussed in the original majority opinion and dissent. 741 So.2d at 514-16. We do not believe this issue was the reason for the Supreme Court’s remand for reconsideration in light of Apprendi. Although the key phrases important in Apprendi show up in this discussion, this is not really an Apprendi issue. If Judge Harris is correct that any sentencing factor that affects the guidelines sentence has to be determined by the jury, it does not matter whether it is an alternative element of the offense. If he is wrong, it also does not matter, for reasons explained in this opinion.

McCloud was convicted by the jury of the crime of sexual battery. When he was sentenced for this crime under the guidelines, the court was obliged to consider many factors, among them what level of injuries he inflicted while committing the offense. There may be no more basic factor a sentencing judge may take into consideration than the effect of the crime on the victim. The fact that we cannot know whether the jury found sexual penetration beyond a reasonable doubt as an element of the offense does not mean that “sexual penetration” injury points cannot be assessed by the trial judge at sentencing.

It is a mistake to confuse the "union” element of the crime of sexual battery with the “contact” category of victim injury on the scoresheet and confuse the offense element of penetration with the "penetration” level of injury on the scoresheet. There is no reason why the court should be disabled from evaluating the extent of victim injury as a sentencing factor simply because it is similar to an alternative offense element. . Even if Apprendi would forbid a sentence for sexual battery above 180 months, a sentencing combination for the three crimes could achieve the same 184 months overall sentence. .

Id. 530 U.S. at 551 120 S.Ct. 2348 (O'Connor, J., dissenting). . Accord Caraballo v. State, supra.