GALINDEZvs. STATE OF FLORIDA

Supreme Court of Florida

____________

No. SC05-1341

____________

ALEXANDER GALINDEZ,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

[February 15, 2007]

STORY CONTINUED FROM PART I

III. CONCLUSION

For the foregoing reasons, we hold that harmless error analysis applies to Apprendi and Blakely error. Accordingly, we approve the result but not the reasoning of the decision below.

It is so ordered.

LEWIS, C.J., and ANSTEAD, PARIENTE, QUINCE, and CANTERO, JJ., concur.

CANTERO, J., specially concurs with an opinion, in which WELLS and BELL, JJ., concur.

WELLS and BELL, JJ., concur in result only.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

CANTERO, J., specially concurring.

I agree with the majority that any violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), or Blakely v. Washington, 542 U.S. 296 (2004), would be harmless error in this case. I write to express my belief that whether Apprendi and Blakely can evenbe applied at the resentencingof adefendant whose conviction and original sentence became final before those cases were decided depends on whether a new jury can be empaneled to decide facts relevant to sentencing.

We already have held that Apprendi does not apply retroactively. SeeHughes v. State, 901 So. 2d 837 (Fla. 2005). Presumably, neither does its offspring, Blakely. See, e.g., Hicks v. State, 905 So. 2d 990, 991 (Fla. 3d DCA) (holding that because Apprendi does not apply retroactively, neither does Blakely), review denied, 917 So. 2d 193 (Fla. 2005); Burrows v. State, 890 So. 2d 286 (Fla. 2d DCA 2004) (same), review denied, 914 So. 2d 952 (Fla. 2005); McBride v. State, 884 So. 2d 476 (Fla. 4th DCA 2004) (same). Nevertheless, we have traditionally held that resentencing should proceed de novo on all issues bearing on the proper sentence. Morton v. State, 789 So. 2d 324, 334 (Fla. 2001) (quoting Teffeteller v. State, 495 So. 2d 744, 745 (Fla. 1986)). Therefore, ifnew juries may be empanelled so that Apprendi and Blakely errors could be remedied entirely within the sentencing framework, then I would agree that applying those cases does not constitute a retroactive application. If, on the other hand, the resentencing court is restricted to the findings of the original jury at the time of the defendants (now final) conviction, then the facts that the sentencing judge may consider are frozen at the time of convictionif the jury did not find it, the judge may not consider it. Under such an interpretation, Apprendi and Blakely no longer affect only the sentencing; they affect the conviction as well because the facts found at that time dictate the sentence. If that is the case, then applying Apprendi and Blakely to a resentencing would alter the effect of a jury verdict and conviction. Galindez v. State, 910 So. 2d 284, 285 (Fla. 3d DCA 2005). Stated another way, if Apprendi and Blakely reverberate backward to the defendants conviction, applying those cases to defendants whose convictions already were final constitutes a retroactive application, contrary to our decision in Hughes. Such an approach also would be misguided as a matter of policy (retroactivity, after all, is more a policy question than anything else) because it penalizes the State for pursuing the conviction in accordance with then prevailing law without allowing it a remedy, and because it allows the defendant to benefit from a conviction he has shown no right to reopen.

Below I conclude that (I) if a new jury may be empanelled, the principle of de novo resentencing supports application of Apprendi and Blakely on resentencing; and that (II) if a new jury may not be empanelled, the principle of finality prohibits the application of Apprendi and Blakely on resentencing.

I. The Principle of De Novo Resentencing

We have consistently held that resentencing proceedings must be a clean slate, Preston v. State, 607 So. 2d 404, 408 (Fla. 1992), meaning that the defendants vacated sentence becomes a nullity and his resentencing should proceed de novo on all issues bearing on the proper sentence. Morton, 789 So. 2d at 334 (quoting Teffeteller, 495 So. 2d at 745). This means thatthe trial court must extend to the defendant the full panoply of existing procedural protections, State v. Scott, 439 So. 2d 219, 220 (Fla. 1983), including any new constitutional protections that have been recognized since the defendants original sentencing. Before Apprendi and Blakely, the law in this state, as we stated it in Lucas v. State, 841 So. 2d 380 (Fla. 2003), was that a resentencing is a completely new proceeding. It therefore necessarily follows that a resentencing court is not limited by evidence presented (or not presented) in . . . the original . . . sentencing phase. Id. at 387 (emphasis added) (citations omitted). Rather, both sides are entitled to produce additional evidence. SeeMann v. State, 453 So. 2d 784, 786 (Fla. 1984) (explaining that at a de novo resentencing both sides may, if they choose, present additional evidence). In fact, because resentencing is de novo, the State was required to produce evidence on sentencing issues even if the State established the fact at the original sentencing. This was required whether or not the defendant disputed the issues in the prior sentencing proceeding. See, e.g., Tubwell v. State, 922 So. 2d 378, 379 (Fla. 1st DCA 2006) (stating that because resentencing is de novo, the state was not relieved of its burden to prove the prior offenses); Rich v. State, 814 So. 2d 1207, 1208 (Fla. 4th DCA 2002) (holding that at a resentencing, the State must again prove the basis for an enhanced sentence even though such evidence was produced at the original sentencing); Baldwin v. State, 700 So. 2d 95, 96 (Fla. 2d DCA 1997) (stating that at resentencing, the defendant can challenge the prior convictions included on his scoresheet, even though he did not challenge them at the original sentencing).

In addition to the parties rights to present additional evidence and the States burden to produce evidence, we also have held that the trial court is not limited to its findings from the prior proceeding, but may make new findings and may even increase the sentence. SeeMorton, 789 So. 2d at 334 (stating that a trial court has no obligation to make the same findings as those made in a prior sentencing proceeding); Roberts v. State, 644 So. 2d 81 (Fla. 1994) (permitting the resentencing court to include an additional prior conviction on the revised guidelines scoresheet).

The question here is whether Apprendi and Blakely, two recent cases establishing that sentence-enhancing facts must be found by a jury beyond a reasonable doubt, apply on resentencing even though they were issued after the defendants conviction became final. The defendant argues that the principle of de novo resentencing requires application of those decisions because, as we recently explained, Apprendi affects only the procedure for enhancing the sentence, Hughes, 901 So. 2d at 843, and does not affect the determination of guilt or innocence. Id. at 841. As the defendant notes, we have traditionally included within the scope of de novo resentencing all issues bearing on the proper sentence. Morton, 789 So. 2d at 334 (quoting Teffeteller, 495 So. 2d at 745).

I agree with the defendant that, to the extent that Apprendi and Blakely affect only sentencing, under the principle of de novo resentencing those decisions apply to him. To ensure that result, howeverthat Apprendi and Blakely do affect only the sentencingwe must authorize the empanelling of new juries that could find any sentence-enhancing facts previously found by the judge. If such juries are not authorized, and the facts relevant to sentencing are frozen at the moment of convictionthat is, no further factfinding is permittedthen Apprendi and Blakely do in fact affect the conviction. Without a new jury, the resentencing court would be limited to those facts found by the original jury at the time of the conviction. The State, in turn, would be forever prejudiced by its reliance on the old rulei.e., that sentence-enhancing facts could be found by the judge. When new facts cannot be found and when the parties cannot adapt to the new law, resentencing is not truly de novo. The principle that governs in such circumstances is not that of de novo resentencing, but rather that of finality, which (as I explain in Section II) generally prohibits a defendant from using new laws to obtain relief based on the process leading to a still final conviction.

I would gladly authorize the empanelling of new juries on resentencing so that defendants can receive the protection of Apprendi and Blakely without undermining the finality of their convictions. We already predicted in Hughes that new juries would be necessary to remedy Apprendi errors at resentencing, which was one of our reasons for barring retroactive application of that case. See 901 So. 2d at 845 (In every case Apprendi affects, a new jury would have to be empaneled to determine, at least, the issue causing the sentence enhancement.). It is true that our existing rules do not provide a mechanism for empanelling a jury at the sentencing in a noncapital case. But we do have such a mechanism in death-penalty cases, see  921.141(1), Fla. Stat. (2005), so the concept is far from foreign. The lack of a corresponding procedure for noncapital cases should not prevent us from creating one, given that it represents the best remedy for the constitutional violation.

When confronted with new constitutional problems to which the Legislature has not yet responded, we have the inherent authority to fashion remedies. See, e.g., In re Order on Prosecution of Criminal Appeals by Tenth Judicial Circuit Public Defender, 561 So. 2d 1130, 1133 (Fla. 1990) (acknowledging the inherent power of courts . . . to afford us the remedy necessary for the protection of rights of indigent defendants, but warning that courts may not ignore the existing statutory mechanism). To remedy violations of Apprendi and Blakely, we would be entirely justified in adopting a procedure for the empanelling of new juries on resentencing. Nor would we be the first court to do so. SeeAragon v. Wilkinson, 97 P.3d 886, 891 (Ariz. Ct. App. 2004) (stating that although the statutory sentencing scheme does not currently provide for convening a jury trial during the sentencing phase of a non-capital case, nothing in our rules or statutes prohibits the court from doing so and that on remand to resolve any Apprendi or Blakely problem, the trial court may utilize its inherent authority to convene a jury trial on the existence of facts that may support imposition of an aggravated sentence); Smylie v. State, 823 N.E.2d 679, 684-85 (Ind.) (holding that to meet Blakely requirements, a jury may be convened to consider sentencing factors), cert. denied, 126 S. Ct. 545 (2005); State v. Schofield, 895 A.2d 927, 937 (Me. 2005) (Although state law does not specifically provide for a jury trial on sentencing, our recognition of such a procedure is well within our inherent judicial power        . . . .); but seeState v. Hughes, 110 P.3d 192, 209 (Wash. 2005) (This court will not create a procedure to empanel juries on remand . . . because the legislature did not provide such a procedure and, instead, explicitly assigned such findings to the trial court. To create such a procedure out of whole cloth would be to usurp the power of the legislature.), abrogated on other grounds byWashington v. Recuenco, 126 S. Ct. 2546, 2553 n.4 (2006).

Nor would the Double Jeopardy Clause bar the impaneling of juries upon resentencing. In the death-penalty context, when a case is remanded for a new penalty phase we regularly allow a new jury to be empanelled. See, e.g., Preston, 607 So. 2d at 408; Robinson v. State, 574 So. 2d 108, 112 (Fla. 1991); Rose v. State, 461 So. 2d 84, 87 (Fla. 1984). Outside of the capital context, the Double Jeopardy Clause is even less demanding with respect to sentencing. As the United States Supreme Court explained in United States v. DiFrancesco, 449 U.S. 117 (1980), double jeopardy considerations that bar reprosecution after an acquittal do not prohibit review of a sentence, id. at 136, because a sentence does not have the qualities of constitutional finality that attend an acquittal. Id. at 134. We, too, have concluded that double jeopardy is not implicated in the context of a resentencing following an appeal of a sentencing issue. Trotter v. State, 825 So. 2d 362, 365 (Fla. 2002) (citing Harris v. State, 645 So. 2d 386, 388 (Fla. 1994)). Of course, the facts found by a new jury at resentencing cannot conflict with any facts found by the original jury in connection with the defendants conviction. But in cases like this one, where the jury did not issue any finding concerning a sentence-enhancing fact, no double jeopardy concerns arise.

II. The Principle of Finality

Whereas the principle of de novo resentencing permits the application of new sentencing laws to reopened cases, the principle of finality prohibits retroactive application in most other circumstances. As we have explained, applying every new law to every old case would destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state . . . beyond any tolerable limit. Witt v. State, 387 So. 2d 922, 929-30 (Fla. 1980). The principle of finality avoids those dire consequences by allowing retroactive application only when new rulings so drastically alter the substantive or procedural underpinnings of a final conviction and sentence that the machinery of postconviction relief is necessary to avoid individual instances of obvious injustice. Id. at 925. We have already evaluated Apprendi under the Witt standard and held that it does not apply retroactively. SeeHughes, 901 So. 2d at 837. It is safe to assume that Blakely, which appl[ied] the rule . . . in Apprendi, 542 U.S. at 301, will not apply retroactively, either. Thus, the defendant clearly has no right to retroactive relief under Apprendi or Blakely.

The question here is whether applying those cases to a resentencing amounts to the same thing. The answer depends largely on when the principle of finality attaches. We have stated on several occasions that finality attaches when the defendants conviction(not the sentence) becomes final. SeeJohnson v. State, 904 So. 2d 400, 407 (Fla. 2005) (stating that once a conviction has been upheld on appeal, the State acquires a strong interest in finality); Goodwin v. State, 751 So. 2d 537, 546 (Fla. 1999) ([O]nce a conviction has been affirmed on direct appeal a presumption of finality and legality attaches to the conviction and sentence. (quoting Brecht v. Abrahamson, 507 U.S. 619, 633 (1993))). In fact, throughout our opinion in Hughes, we emphasized the affirmance of the conviction as the critical moment for retroactivity purposes. See 901 So. 2d at 838 (In this case, we consider whether a decision of the United States Supreme Court applies to defendants whose convictions already were final when that case was decided.); id. at 839 (Once a conviction is final, . . . the State acquires an interest in the finality of the convictions.); id. at 840 ([T]he issue is whether such cases [as Apprendi] can be applied to defendants whose convictions already were final when the decision was rendered.).[1]

The district court took seriously this language from Hughes. SeeGalindez, 910 So. 2d at 285 (Hughes[s] focus on the finality of the conviction is very important (quoting Isaac v. State, 911 So. 2d 813, 816 (Fla. 1st DCA 2005) (Kahn, J., dissenting))). Because the defendants conviction became final before Apprendi and Blakely, and because he offered no legitimate basis for reopening it, the district court concluded that any application of those two decisions on resentencing would be impermissibly retroactive under the express language of Hughes. Seeid. at 285. The district court relied heavily on an earlier dissent by Judge Kahn, who observed that under our existing rules of criminal procedure the factual matters underlying the guidelines departure sentences may not be submitted to a jury. Isaac, 911 So. 2d at 815 (Kahn, J., dissenting). Without a new jury, the district court reasoned, applying [Apprendi and Blakely] to this case would amount simply to a pardon of the defendant for an act he confessed to committing because the rules of the game were deemed to have changed after it was over. Galindez, 910 So. 2d at 285.

Certainly, if a sentencing jury can now be empaneled to decide the sentencing facts, then applying Apprendi and Blakely here would not implicate Galindezs conviction and would therefore not constitute a retroactive application of those cases. On the other hand, if a new jury cannot be empanelled at resentencing, then applying Apprendi or Blakely to defendants whose convictions already were final is retroactive and therefore violates Hughes. In fact, applying Apprendi and Blakely without a new jury is even more disruptive than most retroactive applications. It creates a bizarre paradox: the State is faulted for failing to prove sentence-enhancing facts to the jury at a time when it was not required to do so, yet is barred from proving those facts to a jury once such a requirement has been created. The result is that defendants will obtain relief (i.e., lighter sentences than their behavior warrants) because of defects in the process leading to their convictions, despite the continued finality of those convictions. That is the very essence of retroactive application. It violates the principle of finality that we so adamantly defended in Hughes and contradicts its express language. See 901 So. 2d at 838 (describing the issue as whether Apprendi applies to defendants whose convictions already were final when that case was decided, and then answering no).

III. Conclusion

I agree with the majority that any violation of Apprendi or Blakely would be harmless error in this case, and thus I join in affirming the denial of relief to the defendant. Eventually, however, we will have to decide whether Apprendi and Blakely apply to resentencing proceedings. Already other cases raising the same issue are pending in this Court. I believe the answer to the question is tightly bound with the procedures that would apply at resentencing. If a jury cannot be empaneled to decide the new sentencing facts, then applying Apprendi and Blakely to resentencings undermines the de novo nature of the proceedings and implicates the process leading up to a defendants still final conviction. It therefore affects more than just the sentencing; it affects the conviction itself, and applying Apprendi and Blakely amounts to a retroactive application, which we expressly prohibited in Hughes.

WELLS and BELL, JJ., concur.

Application for Review of the Decision of the District Court of Appeal - Certified Direct Conflict of Decisions

Third District - Case No. 3D04-44

(Dade County)

Bennett H. Brummer, Public Defender and Shannon Patricia McKenna, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida,

for Petitioner

Bill McCollum, Attorney General, Tallahassee, Florida, Richard L. Polin, Bureau Chief Criminal Appeals, Michael E. Hantman and Paulette R. Taylor, Assistant Attorney Generals, Miami, Florida,

for Respondent

Publication Courtesy of California attorney referral.

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3. Lest these statements be dismissed as accidental, I note that the United States Supreme Court, which applies a different retroactivity standard, has also placed emphasis on the conviction. SeeTeague v. Lane, 489 U.S. 288, 309 (1989) (plurality) (Application of constitutional rules not in existence at the time a conviction becomes final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.) (emphasis added); see alsoid. at 301 (defining a new rule as one not dictated by precedent existing at the time the defendants conviction became final) (emphasis omitted).