Gurley v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT July Term 2005 DERRICK D. GURLEY, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D04-2697 [July 27, 2005] GROSS, J. 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). On appeal Gurley argues that his prison releasee reoffender sentence was improper under Blakely v. Washington, ___ U.S. ___, 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. 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 Apprendi and 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. STEVENSON , C.J., and SHAHOOD, J., concur. * * * Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Stephen A. Rapp, Judge; L.T. Case No. 03CF009100A02. Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L Italien, Assistant Attorney General, West Palm Beach, for appellee. Not final until disposition of timely filed motion for rehearing. -2-
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