5D97-2011 McCloud v. State corrected January 14, 2002

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State: Florida

Court: Florida Southern District Court

Docket No: 5D97-2011.op.cor

Case Date: 12/24/2001

Plaintiff: 5D97-2011 McCloud

Defendant: State corrected January 14, 2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2001

TERRANCE E. MCCLOUD, Appellant, v. STATE OF FLORIDA, Appellee. ______________________________/ Opinion filed December 28, 2001 Appeal from the Circuit Court for Putnam County, Stephen L. Boyles, Judge. James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Jennifer Meek, Assistant Attorney General, Daytona Beach, for Appellee. 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 (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. CASE NO. 5D97-2011 CORRECTED

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 (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] scoresheet 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. 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. Carrey, 752 N.E.2d 1137 (Ill. 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,

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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.

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