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September 29, 2005

Eighth Circuit discusses scope of prior conviction exception

In a case with somewhat silly facts, the Eighth Circuit today in US v. Carrillo-Beltran, No. 04-3177 (8th Cir. Sept. 29, 2005) (available here) explained that a "court must be allowed to determine not only the 'fact of a prior conviction' but also those facts so 'intimately related' to the prior conviction to fall within the Apprendi exception."  Of course, this ruling raises questions as to what facts are "intimately related" to a prior conviction to allow for judicial factfinding (which, perhaps, is the converse of the questions raised after the Supreme Court in Shepard cautioned against judges finding facts "too far removed from the conclusive significance of a prior judicial record.")

September 29, 2005 at 04:25 PM | Permalink

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Defense Attorney (Pub Def, West Palm Beach,Fl.)
Florida Prison Releasee reoffender ( release from prison not "prior conviction" though Florida Fourth District holds it is sufficient by anology, Gurley v. State, 906 So. 2d 1264 (Fla. 4th DCA 2005),rev denied, Case No. No. SC05-1376 Us cert petition filed Nov. 17, 2005Case No. 05-7893) Question SCope of Prior Conviction Exception Abolish Faulty Prior Conviction Exception) QUESTIONS PRESENTED

1. Does a mandatory maximum prison sentence imposed by a sentencing judge pursuant to the Florida Prison Releasee Reoffender Act, Section 775.082(9), Florida Statutes, in lieu of a Florida guidelines sentence violate the Sixth Amendment in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004), and U.S. v. Booker, 125 S.Ct. 738 (2005), because the statutory prerequisites for this enhanced sentence do not fall within the narrow “prior conviction exception” recognized by the Court?
2. Should the “prior conviction exception” previously recognized by the Court be expressly abolished?

TABLE OF CONTENTS

QUESTIONS PRESENTED ii

TABLE OF CONTENTS iii

TABLE OF AUTHORITIES iv

OPINIONS BELOW 1

JURISDICTION 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 2

LIST OF PARTIES 2

STATEMENT 3

REASONS FOR GRANTING THE PETITION 6

A. THE PRIOR CONVICTION EXCEPTION 9

B. THE FLORIDA FOURTH DISTRICT COURT OF APPEAL MISUNDERSTOOD THIS COURT’S NARROW PRIOR CONVICTION EXCEPTION 11

C. THE DECISION OF THE FLORIDA FOURTH DISTRICT COURT OF APPEAL ALSO CONFLICTS WITH RECENT DECISIONS OF THE NINTH CIRCUIT, THE WASHINGTON STATE SUPREME COURT, AND OTHER STATE APPELLATE COURTS. 12

D. THE PRIOR CONVICTION EXCEPTION SHOULD BE EXPRESSLY ABOLISHED 18

CONCLUSION 22


TABLE OF AUTHORITIES
CASES

Almendarez Torres v. United States, 523 U.S. 224,
118 S.Ct. 1219 (1998) 18

Apprendi v. New Jersey, 530 U.S. 466, 491,
120 S.Ct. 2348, 2362 (2000) 10, 17

Blakely v. Washington, 542 U.S. 296,
124 S.Ct. 2531 (2004) passim

Gurley v State, SC 05-1376
(Fla. Nov. 1, 2005) 5

Gurley v. State, 906 So.2d 1264
(Fla. 4th DCA 2005) 1, 3, 11

Shepard v. United States,125 S.Ct. 1254
(2005) 6, 19

State v. Hughes, 154 Wash 2d 118,
110 P.3d 192, 204 (Wash. 2005) 11

State v. Mitchell, 687 N.W.2d 393
(Minn. App. 2004), rev. granted,
(Dec.22, 2004) 11, 15, 17

State v. Perez, 196 Or. App. 364,
102 P.3d 705 (Or. App. 2004),
rev. allowed, 388 Or.488,
113 P.3d 434 (2005) 11, 16, 17

U.S. v. Booker, 125 S.Ct. 738
(2005) ii, 6, 7, 10

United States v. Kartgaard, 425 F.3d 602, 609
(9th Cir. 2005) 10, 12
United States v. Ngo, 406 F.3d 839, 843
(7th Cir. 2005) 10

United States v. Thompson, 421 F.3d 278
(4th Cir. 2005), pet. for certiorari filed,
Case No. 05-7266 (Oct. 25, 2005) 10

United States v. Tighe, 266 F.3d 1187, 1194
(9th Cir. 2001) 10

United States v. Washington, 404 F.3d 834, 841
(4th Cir.2005) 10

FLORIDA STATUTES

Section 775.082(9) ii, 3
Section 775.082(9) (2004) 17
Section 775.084 (2004) 12
Section 921.002 (2003) 8

OTHER AUTHORITIES

1 J. Bishop, Criminal Procedure, ' 87 (2d ed. 1872) 9
18 U.S.C. ' 3553(b)(1) 8
18 U.S.C. ' 3742(e) 8
28 U.S.C. 1257(a) 2
4 Blackstone,Commentaries 20

FLORIDA RULES OF CRIMINAL PROCEDURE

Rule 3.704 3, 9
Rule 3.704(a),(d)(1) 8


UNITED STATES SUPREME COURT RULES

Rule 10(b),(c) 2




In the Supreme Court of the United States

OCTOBER TERM, 2005


DERRICK GURLEY, PETITIONER

v.

STATE OF FLORIDA, RESPONDENT

_________________________________


ON PETITION FOR A WRIT OF CERTIORARI
TO FLORIDA FOURT DISTRICT COURT AND
FLORIDA SUPREME COURT

_________________________________


PETITION FOR A WRIT OF CERTIORARI

Assistant Public Defender, Anthony Calvello, on behalf of Petitioner, Mr. Derrick Gurley, respectfully petitions for a writ of certiorari to review the judgment of the Florida Fourth District Court of Appeal and the Florida Supreme Court which denied discretionary review in this cause.
OPINIONS BELOW

The opinion of the Florida Fourth District Court of Appeal is reported at Gurley v. State, 906 So.2d 1264 (Fla. 4th DCA 2005). Pet.App. A, infra, 1-2. The Petitioner’s petition for discretionary review was denied by the Florida Supreme Court on November 1, 2005. Pet. App. B. Gurley v. State, No. SC05-1376 (Fla. Nov. 1, 2005).
JURISDICTION

The judgment of the Florida Fourth District Court of Appeal was entered on July 27, 2005. The order denying Petitioner’s petition for discretionary review to the Florida Supreme Court was entered on November 1, 2005. Pet. App. B. The jurisdiction of this Court is invoked under 28 U.S.C. 1257(a); U.S. Supreme Court Rule 10(b),(c).
CONSTUTUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment of the United States Constitution provides in relevant part that in “all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....”
Section 775.082(9), Florida Statutes (2004) the Florida Prison Releasee Reoffender Act is set out in the Petitioner’s appendix. Pet. App. C.
LIST OF PARTIES
All parties appear in the caption of the case on the cover page.


STATEMENT
Petitioner, Mr. Derrick. D. Gurley, was charged and convicted of burglary of an occupied dwelling in the 15th Judicial Circuit, in and for Palm Beach County, Florida. Prior to the Petitioner’s sentencing hearing, the Respondent-State of Florida, filed a pre-trial written notice to have Petitioner declared a Florida Prison Releasee Reoffender pursuant to Section 775.082(9), Florida Statutes (2004), in lieu of a Florida Criminal Punishment Code , guidelines sentence under Fla. R. Crim. P. 3.704.
“After a jury trial, appellant Derrick Gurley was convicted of burglary of an occupied dwelling. The trial court sentenced him as a prison releasee reoffender pursuant to section 775.082(9), Florida Statutes (2004).” Gurley v. State, 906 So. 2d 1264 (Fla. 4th DCA 2005). See Pet. App. A. Petitioner Gurley was sentenced to a mandatory maximum prison sentence of fifteen (15) year in prison as a Florida Prison Releasee Reoffender instead of a sentence pursuant to the Florida Criminal Punishment Code, Fla. Rule of Criminal Procedure 3.704 sentencing guidelines.
Mr. Gurley filed a timely Notice of Appeal to the Fourth District Court of Appeal. “On appeal Gurley argues that his prison releasee reoffender sentence was improper under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004), because it was a judge, and not a jury, who determined that his current conviction fell within three years of his release from prison.” Gurley v. State, supra. [e.s.] The Fourth District rejected Petitioner’s Sixth Amendment challenge to the non-jury procedure used to impose the enhanced Florida Prison Releasee Reoffender sentence upon Petitioner holding:
In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme 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.” The supreme court revisited Apprendi in Blakely and extended its application to sentencing guideline schemes which allow judges to sentence more severely based on facts that are a part of the criminal offense. For example, Blakely involved a defendant whose sentence was enhanced because he had acted with “deliberate cruelty” in committing the underlying crime.

Recidivist sentencing statutes based on a defendant’s prior criminal record fall outside of Apprendiand Blakely. The Florida Supreme Court has held that Apprendi does not apply to prison releasee reoffender sentences. See McGregor v. State, 789 So. 2d 976 (Fla. 2001). We have held that Apprendi does not apply to recidivism statutes, so that a jury is not required to find the existence of predicate convictions beyond a reasonable doubt before a habitual felony offender sentence may be imposed. See McBride v. State, 884 So. 2d 476, 477 (Fla. 4th DCA 2004); see also Frumenti v. State, 885 So. 2d 924, 925 (Fla. 5th DCA 2004); United States v. Marseille, 377 F.3d 1249, 1257 n.14 (11th Cir. 2004). For the purpose of applying Apprendi and Blakely, the date of a defendant’s release from prison under the prison releasee reoffender statute is analogous to the fact of a prior conviction under the habitual felony offender statute. For these reasons, the conviction and sentence are affirmed.

Id. [Emphasis Supplied].

Petitioner filed a timely Notice of Discretionary Review in the Florida Fourth District Court of Appeal on July 28, 2005, to the Florida Supreme Court.
The Florida Supreme Court on November 1, 2005, denied Petitioner’s request for discretionary review. Gurley v State, SC 05-1376 (Fla. Nov. 1, 2005). Pet. App. B. The Florida Supreme Court further ruled that no rehearing will be entertained.
The instant petition for writ of certiorari is thereby timely. U.S. Supreme Court Rule 13 (“filed within 90 days after entry of the order denying discretionary
review.”)


REASONS FOR GRANTING THE PETITION

The mandatory maximum prison sentence imposed in the instant case pursuant to the Florida Releasee Reoffender Act [hereinafter “Florida PRR”] violated the Petitioner’s Sixth Amendment rights in light of three decisions of the Court, Blakley v. Washington, 524 U.S. 296, 124 S.Ct. 2531 (2004), United States v. Booker, 125 S.Ct. 738 (2005), and Shepard v. United States,125 S.Ct. 1254 (2005). This Honorable Court should grant certiorari review of this important Sixth Amendment constitutional issue because it affects hundreds of Florida inmates illegally and unconstitutionally sentenced pursuant to the Florida PRR statute after the issuance of this Honorable Court’s decision in Blakely v. Washington, supra, on June 24, 2004.
The Florida PRR sentence imposed here violated Petitioners and others Sixth Amendment rights to (1) notice in the charging document ; (2) proof beyond a reasonable doubt and; (3) a jury trial of the statutory prerequisites for the enhanced mandatory sentence in light of Blakley, Booker, and Shepard.
The Court in Blakely, supra, addressed a provision of Washington State's determinate sentencing law that allowed a sentencing judge to impose a sentence above the standard statutory sentencing range if the sentencing judge found, by a preponderance of the evidence, that certain offense aggravating factors existed that justified a sentence in excess of the "standard range." Blakely, 524 U.S. at 299; 124 S.Ct. at 2535. In Blakely, the sentencing judge utilized this authority to impose a ninety (90) month sentence, even though the standard range for Mr. Blakely's offense, second degree kidnapping, was 49 to 53 months in prison. Id. In striking down Blakely's enhanced sentence, the Court explained "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Id. at 303; 124 S.Ct. at 2537. Thus, because the jury in Mr. Blakely=s case did not determine the factual basis for the enhanced sentence, and Blakely did not admit the facts, his enhanced sentence could not survive a Sixth Amendment challenge.
On January 12, 2005, this Court issued its opinion in United States v. Booker, 125 S.Ct. 738 (2005), finding certain provisions of the Federal Sentencing Guidelines, promulgated pursuant to the Sentencing Reform Act of 1984, unconstitutional. The Court initially held that the Federal Guidelines violated the defendant's Sixth Amendment right to a jury trial because they require judges to find facts which in turn increase a defendant's sentence beyond what could be imposed based solely on the jury's verdict. One of the Court's holdings is straightforward: The U.S. Sentencing Guidelines violate the Sixth Amendment to the extent that they allow judicial -- rather than jury fact finding to form the basis for sentencing. The other holding is far from straight-forward and not relevant to State sentencing.
The Florida Criminal Punishment Code, sentencing guidelines are the presumptive sentence under Florida law. Section 921.002, Florida Statutes (2003) (AThe Criminal Punishment Code shall apply to all felony offenses, except capital felonies, committed on or after October 1, 1998.@); Fla. R. Crim. P. 3.704(a),(d)(1).
The Florida Legislature delineated three (3) separate ways in which a defendant in Florida can qualify for an enhanced alterative mandatory sentence as a Florida PRR. Section 775.082(9)(a) requires the conviction of certain enumerated violent offenses and more importantly that the enumerated offense be committed :
(1) while in prison; or
(2) on escape from a prison,
(3) or within three (3) years of release from a Florida or other prison serving a sentence for an offense punishable by more than one year in prison in Florida.
This Florida PRR statute is nothing more than a mandatory departure from the Florida Criminal Code without a jury finding beyond a reasonable doubt condemned in both Blakely and Booker. It is an enhanced punishment beyond that allowed by the verdict alone i.e., the Florida Criminal Punishment Code, Fla. R. Crim. P. 3.704 sentencing guidelines. When a sentencing 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.'" Blakely, 542 U.S. at 303, 124 S.Ct. at 2537 (quoting 1 J. Bishop, Criminal Procedure ' 87 (2d ed. 1872)).
A. THE PRIOR CONVICTION EXCEPTION
Petitioner readily acknowledges that in Apprendi, Blakely, and Booker, the Court carved out a Aprior conviction@ exception as follows: AOther 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 v. New Jersey, 530 U.S. 466, 490 (2000); Blakely, 542 U.S. at 301; 124 S.Ct. at 2536; Booker, 125 S.Ct. at 756. However, this Court in Apprendi emphasized that the “prior conviction” exception is a “narrow exception” to the general rule that all facts essential to the maximum punishment must be found by the jury. Apprendi v. New Jersey, 530 U.S. 466, 491, 120 S.Ct. 2348, 2362 (2000). This exception was justified in part by “the certainty [of] procedural safeguards attached to any ‘fact’ of prior conviction.” Apprendi, 530 U.S. at 488, 120 S.Ct. at 2362 [Emphasis Added]; See also United States v. Tighe, 266 F.3d 1187, 1194 (9th Cir. 2001) (prior conviction exception “should remain a “narrow exception to Apprendi”) (quoting Apprendi, 530 U.S. at 490); United States v. Kartgaard, 425 F.3d 602, 609 (9th Cir. 2005); United States v. Ngo, 406 F.3d 839, 843 (7th Cir. 2005) (holding that the district court's finding that the defendant's prior convictions were not part of a common scheme or plan violated the Sixth Amendment principles articulated in Shepard); United States v. Thompson, 421 F.3d 278 (4th Cir. 2005), pet. for certiorari filed, Case No. 05-7266 (Oct. 25, 2005); United States v. Washington, 404 F.3d 834, 841 (4th Cir.2005) (holding that the 6th Amendment was violated because "the sentencing court relied on facts outside the indictment, "and that its analysis therefore "involved more than the 'fact of a prior conviction@); State v. Hughes, 154 Wash 2d 118,110 P.3d 192, 204 (Wash. 2005); State v. Mitchell, 687 N.W.2d 393 (Minn. App. 2004), rev. granted, (Dec.22, 2004); State v. Perez, 196 Or. App. 364, 102 P.3d 705 (Or. App. 2004), rev. allowed, 388 Or.488, 113 P.3d 434 (2005).
B. THE FOURTH DISTRICT COURT OF APPEAL MISUNDERSTOOD OR MISAPPLIED THIS COURT’S NARROW PRIOR CONVICTION EXCEPTION.

The Florida Fourth District in this case, Gurley v. State, 906 So.2d 1264 (Fla. 4th DCA 2005), rejected the Petitioner’s argument that the imposition of a mandatory enhanced sentence pursuant to the Florida PRR non-jury procedure violated his Sixth Amendment rights in light of Blakely. The Florida Fourth District relied on the “prior conviction” exception to uphold the statute: “Recidivist sentencing statutes based on a defendant=s prior criminal record fall outside of Apprendi and Blakely. . . . . For the purpose of applying Apprendi and Blakely, the date of a defendant’s release from prison under the prison releasee reoffender statute is analogous to the fact of a prior conviction under the habitual felony offender statute.” [Emphasis Supplied].
The Gurley decision is clearly wrong and directly conflicts with this Court’s decision on the narrow application of the “prior conviction” exception to the Apprendi/Blakely rule. The Florida appellate court’s error rested on two fundamental mistakes. The Florida PRR is not the State Habitual Felony Offender sentencing scheme that is contained in Section 775.084, Florida Statutes (2004). And more importantly, the Apprendi/Blakely “prior conviction” exception is not an elastic “recidivism exception” subject to analogies created by prosecutors and broadly applied by wayward courts. It is a “prior conviction” exception only. A sentencing judge’s determination that a defendant escaped from prison or committed the offense within three (3) years from release from prison as required for the Florida PRR enhanced mandatory departure from the Criminal code guidelines sentence, involved additional findings and facts beyond a “prior conviction.”
C. THE DECISION OF THE FLORIDA FOURTH DISTRICT COURT OF APPEAL ALSO CONFLICTS WITH RECENT DECISIONS OF THE NINTH CIRCUIT, THE WASHINGTON STATE SUPREME COURT, AND OTHER STATE APPELLATE COURTS.

In contrast to the Florida appellate court, federal appellate courts, State appellate courts, and the Washington Supreme Court have construed and applied the “prior conviction” exception narrowly as mandated by this Honorable Court not broadly invoking creative “analogies” like the Gurley court.
In United States v. Kortgaard, 425 F.3d 602, 609-610 (9th Cir. 2005), the Ninth Circuit held that the district court's enhancement of a defendant's sentence for manufacturing methamphetamine beyond the maximum authorized by the jury's verdict, under a mandatory sentencing guideline regime, by finding that the applicable Federal guideline range inadequately represented the seriousness of defendant's criminal history and likelihood of recidivism, required additional factual findings beyond the fact of prior conviction, not admitted by defendant or found by a jury beyond reasonable doubt, and thus violated the defendant's Sixth Amendment right to jury trial. The Ninth Circuit explained that
“guided by our decision in U.S. v. Tighe, the “prior conviction exception should remain a 'narrow exception' to Apprendi" 266 F.3d 1187, 1194 (9th Cir.2001)(quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348). As we noted in Tighe, the Apprendi Court derived the prior conviction exception from Almendarez-Torres; however, the Court also questioned the continuing validity of Almendarez-Torres regarding the consideration of recidivism in sentencing, construed it as "represent[ing] at best an exceptional departure from the historic practice that we have described," and therefore decided "to treat the case as a narrow exception to the general rule." Apprendi, 530 U.S. at 487, 489-90, 120 S.Ct. 2348. We treated it accordingly in Tighe and declined "to extend Apprendi's 'prior conviction' exception to include prior nonjury juvenile adjudications on the basis of Almendarez-Torres 'logic.' " Tighe, 266 F.3d at 1194.

We are faced here with another request to extend or broadly construe Apprendi's exception in order to include within it issues that have not been submitted to a jury. We once again decline to do so and continue to treat the exception as "a narrow exception to the general rule." Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348; cf. Smith,390 F.3d at 666 (holding that for purposes of ACCA enhancements the modified categorical approach is within the Apprendi exception so long as there is no inquiry into the underlying facts of the conviction).

Apprendi stated the exception as covering "the fact of a prior conviction," not facts that are derived or inferred there from. 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added); see also id. at 488, 120 S.Ct. 2348 ("any 'fact' of prior conviction"). While the Court repeated the "prior conviction" exception in both Blakely and Booker, in neither case did the Court have the occasion to redefine or expand its scope. Booker, 125 S.Ct. at 746-47, 756 ("reaffirm[ing]" Apprendi, and treating findings regarding drug quantity, obstruction of justice, and level of participation as factual); Blakely, 124 S.Ct. at 2536, 2537 (quoting Apprendi, and treating a finding of "deliberate cruelty" as factual). Even if the prior conviction exception legitimately includes facts that follow necessarily or as a matter of law from the fact of a prior conviction, we have already concluded that the findings required to support an upward departure under § 4A1.3 are not of that nature because they require the judgment of a fact finder.

Id. at 609-610.

In State v. Hughes, 154 Wash 2d 118, 110 P3d 192 (Wash. 2005), three defendants in consolidated cases were convicted of various felonies and exceptional (departure) sentences were imposed. The defendants sought direct Supreme Court review. Review and direct review were granted, and the three cases were consolidated before the Washington Supreme Court which reversed the departure aggravated prison sentences imposed.
The defendants’ guideline sentences were aggravated, inter alia, due to "rapid recidivism," and an "ongoing pattern of the same criminal conduct." CP (Hughes) at 21-23. The State argued that the defendant-Hughes' “rapid recidivism and ongoing pattern of criminal conduct are based on prior convictions and, therefore, can be found by the court without violating Hughes' Sixth Amendment right to a jury trial as defined by Blakely. See Resp't Br. at 10.” Id. at 140-141. The Washington Supreme Court rejected this argument holding:
Rapid recidivism was recognized as a valid aggravating factor in State v. Butler, 75 Wash.App. 47, 53-54, 876 P.2d 481 (1994). . . . Those same considerations are evident in Hughes. The trial court's findings of fact state that "[l]ess than three (3) months after being released from custody [for a prior similar crime], he committed the exact same offense against the same exact victim. This offense was committed only days after the defendant sat and heard testimony about the severe harm that he had done to the forest." CP (Hughes) at 22. The judge then stated that Hughes "demonstrated a flagrant disregard for the law and shows a complete lack of remorse." Id. These findings are extremely similar to the court's conclusion in Butler that the short time between release from prison and reoffense demonstrated a disregard and disdain for the law. The conclusions go well beyond merely stating Hughes' prior convictions. Indeed, if that was all that the aggravating factor was based on, it could not support an exceptional sentence under Washington law.

The Supreme Court has made an exception to the jury requirement only for prior convictions. The findings at issue here involve new factual determinations and conclusions, such as the defendant's disregard for the law, which are not properly made by the trial court following Blakely.

Id. at 140-142 [Emphasis Supplied].

In State v. Mitchell, 687 N.W. 2d 393 (Minn. App. 2004) review granted, Dec. 22, 2004, the Minnesota State Acareer offender statute@ was challenged on Blakely grounds. The Minnesota career-offender statute provides that, when a judge is imposing an executed sentence, and execution is the presumptive disposition that a sentencing judge may impose a departure sentence if there is a finding of five or more prior felony convictions and a Apattern of criminal conduct.@ The Court explained that: ADetermining whether a conviction is part of a Apattern of criminal conduct@ involves a comparison of different criminal acts, weighing the degree to which those acts are sufficiently similar with respect to any of the characteristics listed in Gorman. This determination goes beyond a mere determination as to the fact, or number, of the offender=s prior convictions, which judges are permitted to make without violating the Sixth Amendment jury trial right.@ Id. The Mitchell Court concluded:
The Apprendi court emphasized that the Aprior conviction@ recidivism factor is a Anarrow exception@ to the general rule that all facts essential to the maximum punishment must be found by the jury. 530 U.S. at 491,120 S. Ct. at 2362. This exception is justified in part by Athe certainty [of] procedural safeguards attached to any >fact= of prior conviction.@ Id. at 488, 120 S.Ct. at 2362. The bare fact of a prior conviction, however, does not establish the motive behind the crime, its purpose, results, participants, or victims. As to those aspects of the prior conviction, so essential to the determination of a Apattern of criminal conduct@ under Gorman, the earlier criminal prosecution has provided no Aprocedural safeguards.@ We, therefore, conclude that the career offender statute=s finding of Apattern of criminal conduct@ is beyond the scope of the recidivism exception recognized in Apprendi.
Id. at 400. [Emphasis Added].
In State v. Perez, 196 Or. App. 364, 102 P.3d 705 (Or.App.2004), rev. allowed, 338 Or. 488, 113 P3d 434 (2005), the Trial Judge=s findings that the defendant convicted of possession and delivery of narcotics had (1) persistent involvement in similar offenses, (2) that the defendant was on supervision at the time instant offenses occurred, and that (3) previous supervision failed to deter him which findings were based in part on Pre-sentence investigation report (PSI) characterizing the defendant as "psychopath," exceeded the scope of fact of the Aprior conviction exception@ to the Blakely rule that facts used to enhance a prison sentence be submitted to jury and proven beyond reasonable doubt.
Thus, Petitioner has demonstrated that the erroneous decision of the Florida appellate court here in Gurley, with its creative “analogous” exception is in direct conflict with a decision of this Honorable Court, Apprendi, Federal Courts of Appeal, Kortgaard, Tighe, Ngo, the State Supreme Court of Washington, Hughes, and other State Appellate Courts, Mitchell, Perez, on the interpretation and application of the Sixth Amendment “prior conviction exception” carved out in Apprendi and Blakely.
The Court in Blakely made clear “its commitment to the need to give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative branches, jury trial is meant to ensure their control in the judiciary.” Blakely, 542 U.S.at 305-306; 124 S.Ct. at 2538-2539. On this basis, Petitioner requests this Honorable Court to grant his petition for certiorari and decide this important Sixth Amendment sentencing issue on the merits.
D. THE PRIOR CONVICTION EXCEPTION SHOULD BE EXPRESSLY ABOLISHED

In the alternative, Petitioner respectfully submits that the “prior conviction” exception relied upon by the Florida appellate court in Gurley has been so distorted, discredited, and effectively abolished that the Court should expressly abolish it in this cause.
In 1998, the Court held in Almendarez Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998), that 8 U.S.C. 1326(b)(2), which enhances the penalty for the illegal return of an alien to the United States if his or her initial removal was subsequent to an aggravated felony conviction, does not describe a separate crime, such that the fact of the prior felony conviction must be charged in an indictment and proven to a jury beyond a reasonable doubt; rather, it describes a penalty provision authorizing a court to increase the sentence for a recidivist. Almendarez Torres, 523 U.S. at 228. Moreover, the Court said, Congress did not violate any constitutional constraints in defining recidivism as a sentencing factor rather than as an element of a separate crime. Id. at 247. That was back in 1998.
Now in Shepard v. United States, 125 S.Ct. 1254 (2005), Justice Thomas in a concurring opinion made clear that Almendarez-Torres is no longer good law:
The need for further refinement of Taylor endures because this Court has not yet reconsidered Almendarez Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998),which draws an exception to the Apprendi line of cases for judicial factfinding that concerns a defendant's prior convictions. See Apprendi, supra, at 487 490, 120 S.Ct. 2348.

Almendarez Torres, like Taylor, has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez Torres was wrongly decided. See 523 U.S., at 248 249, 118 S.Ct. 1219 (SCALIA, J., joined by STEVENS, SOUTER, and GINSBURG, JJ., dissenting); Apprendi, supra, at 520 521, 120 S.Ct. 2348 (THOMAS, J., con-curring) The parties do not request it here, but in an appropriate case, this Court should consider Almendarez Torres’ continuing viability. Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez Torres, despite the fundamental "imperative that the Court maintain absolute fidelity to the protections of the individual afforded by the notice, trial by jury, and beyond a reasonable doubt requirements."Harris v. United States, 536 U.S. 545, 581 582, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (THOMAS, J., dissenting).

Id. at 1264 [Emphasis Added].

This is the case where this party implores the Court to abolish the “prior conviction exception.” The theoretical soundness of this exception has been widely questioned, and Justice Thomas’ own comments about Almendarez-Torres suggest that there are no longer five votes on the Court to support this exception. Further, courts as demonstrated at bar have broaden the exception to the point it has eviscerated the Sixth Amendment application of the Blakely/Booker rule in sentencing.
Without a “prior conviction exception” which was misapplied here in Gurley to defeat Petitioner’s Sixth Amendment claim, Petitioner’s mandatory maximum Florida PRR sentence would violate the Sixth Amendment. There would be no court created “exception” to be misapplied to defeat his Sixth Amendment claim. Prior convictions are routinely an element of a criminal offense where a defendant is charged with possession of a firearm by a convicted felon. Likewise, the prerequisite for a Florida PRR sentence should be submitted to a jury and found beyond a reasonable doubt before the State can obtain the mandatory maximum prison sentence for the crime charged.
As Justice Scalia writing for the Court concluded in Blakely: “The Framers would not have thought it too much to demand that before depriving a man of three more years of liberty, the State should suffer the modest inconvenience of sub-mitting its accusation to the “unanimous suffrage of twelve of his equals and neighbors.” 4 Blackstone,Commentaries, at 343, rather than a lone employee of the State.” Id.at 313-314; 124 S.Ct. at 2534.
Trial Judges may not find facts by a preponderance of the evidence if those facts increase the severity of the punishment to which a defendant is exposed. Blakely. This is exactly what the lone sentencing judge did in the instant case and justified on appeal by a broad elastic exception to the Blakely/Booker rule far a field of the narrow exception countenanced by the Court. This is why it is important that the Court grant certiorari in this cause and abolish the “prior conviction” exception carved out in Apprendi, Blakely, and Booker.
Petitioner is one of the “[i]nnumerable criminal defendants” who has “been unconstitutionally sentenced under the flawed rule of Almendarez Torres, despite the fundamental "imperative that the Court maintain absolute fidelity to the protections of the individual afforded by the notice, trial by jury, and beyond – a – reasonable doubt requirements."

CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
CAREY HAUGHWOUT
PUBLIC DEFENDER


______________________
ANTHONY CALVELLO
ASSISTANT PUBLIC DEFENDER
Counsel of Record for Petitioner
421 Third Street, 6th Floor
West Palm Beach, Florida 33401
(561) 624-6560; (561) 355-7600

Posted by: Anthony Calvello | Dec 2, 2005 3:29:36 PM

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