Hamilton v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT July Term 2005 JASON HAMILTON, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D05-664 [October 12, 2005] KLEIN, J. Appellant seeks review of an order denying post-conviction relief arguing that his sentence is illegal under Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirm because Apprendi is not retroactive and certify conflict. Procedurally, appellant is in the same situation as was the defendant in Isaac v. State , 2005 WL 1467321 (Fla. 1st DCA June 23, 2005). They were tried and sentenced before Apprendi, but were resentenced, following a reversal of their sentences on direct appeal, after Apprendi was decided. The majority in Isaac held that Apprendi applied, but Judge Kahn dissented and explained that the majority was applying Apprendi retroactively, contrary to Hughes v. State , 901 So. 2d 837 (Fla. 2005). In this case appellant argues that his sentence, which was increased for severe victim injury, violated Apprendi in that the judge, not the jury, found severe victim injury. We agree, however, with Judge Kahn s dissent that applying Apprendi under these circumstances would be a retroactive application and contrary to Hughes. So does the third district. Galindez v. State, 30 Florida Law Weekly D1743 (Fla. 3d DCA July 20, 2005) (certifying conflict with Isaac). We affirm and certify direct conflict with Isaac. WARNER and GROSS, JJ., concur. * * * Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Richard I. Wennet, Judge; L.T. Case No. 96-7782 CFA02. Jason Hamilton, South Bay, pro se. No appearance required for appellee. Not final until disposition of timely filed motion for rehearing. 2
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