IN THE SUPREME COURT FOR THE STATE OF FLORIDA

JUAN A. NEIRA,

Petitioner, CASE NO. SC03-1261 vs. L.T. CASE NO. 4D02-2237 L.T. CASE NO. 2001-1316 STATE OF FLORIDA,

Respondent. ______/

RESPONDENT’S ANSWER BRIEF ON THE MERITS

CHARLES J. CRIST, JR. Attorney General Tallahassee, Florida

CELIA TERENZIO Assistant Attorney General Bureau Chief, West Palm

JEANINE M. GERMANOWICZ Assistant Attorney General Florida Bar No. 0019607 1515 N. Flagler Drive, 9th Floor West Palm Beach, FL 33401-3432 Telephone: (561) 837-5000 Counsel for Respondent CASE NO. SC03-1261 JUAN A. NEIRA v. STATE OF FLORIDA

TABLE OF CONTENTS

TABLE OF CONTENTS ...... ii

AUTHORITIES CITED ...... iii

PRELIMINARY STATEMENT ...... iv

STATEMENT OF THE CASE AND FACTS ...... 1

SUMMARY OF THE ARGUMENT ...... 3

ARGUMENT ...... 4

DOES STATE V. OVERFELT, 457 So. 2d 1385 (FLA. 1984) REQUIRE THE TO FIND PENETRATION FOR THE PURPOSE OF ASSESSING VICTIM INJURY POINTS? ...... 4

CONCLUSION ...... 13

CERTIFICATE OF SERVICE ...... 13

CERTIFICATE OF FONT TYPE AND SIZE ...... 14

APPENDIX ...... 15

ii AUTHORITIES CITED

FEDERAL CASES

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) ...... 9

Harris v. United States, 122 S. Ct. 2406 (2002) ...... 9

McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986) ...... 9, 11

Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 2d 1337 (1949) ...... 9

STATE CASES

Bradford v. State, 722 So. 2d 858 (Fla. 1st DCA 1998) ...... 6, 7

Crossley v. State, 741 So. 2d 1208 (Fla. 5th DCA 1999) ...... 6

Guzman v. State, 721 So. 2d 1155 (Fla. 1998) ...... 12

Hindenach v. State, 807 So. 2d 739 (Fla. 4th DCA 2002) ...... 9

Lowman v. State, 720 So. 2d 1105 (Fla. 2d DCA), rev. denied, 727 So. 2d 907 (Fla. 1998) ...6, 7

McCloud v. State, 741 So. 2d 512 (Fla. 5th DCA 1999) ...... 6

Neira v. State, 847 So. 2d 1134 (Fla. 4th DCA 2003) ...... 4-6 State v. Hargrove, 694 So. 2d 729 (Fla. 1997) ...... 5

State v. Overfelt, 457 So. 2d 1385 (Fla. 1984) ...... 1, 2, 4, 5, 7

OTHER

Fla. R. Crim. P. 3.704(d)(27) ...... 6

Fla. R. Crim. P. 3.998(b) ...... 8

iii PRELIMINARY STATEMENT

Petitioner was the defendant in the trial court and the appellant in the appellate court and the State of Florida was the prosecution in the trial court and the appellee in the appellate court. In this brief, the parties will be referred to as

Petitioner and the State respectively.

The following symbols will be used:

“R” Record on Appeal

“HT” Transcript of the trial - April 8, 2002

“IB” Initial Brief of the Petitioner

For example, page one of the Hearing Transcript would appear as (HT-1).

iv STATEMENT OF THE CASE AND FACTS

Appellant was convicted of sexual activity with a seventeen year old minor in violation of Section 794.05(1), Florida Statutes (2001). He appealed his sentence to the Court of Appeal for the Fourth District. As the Fourth District stated in its opinion on direct appeal:

Briefly, the facts were that the victim testified that she had consensual sexual intercourse with Appellant. Appellant denied actual penetration. He was convicted. At sentencing, he argued that the jury did not make a specific finding of penetration and the crime could have been committed by “penetration by, or union with,” the sexual organ of another. §800.04(1)(a), Fla. Stat. (2001). Therefore, he argued only 40 points should be assessed on the scoresheet for sexual contact, and not the 80 points assessed for penetration. With 40 points for sexual contact, the lowest permissible sentence would have been 36 months in prison. With 80 points for penetration, the lowest permissible sentence was 66.15 months, which the trial judge imposed.

The Fourth District rejected Appellant’s argument that the additional forty points assessed for penetration was contrary to State v. Overfelt, 457 So. 2d 1385 (Fla.

1984), and its progeny. However, the court certified the following question as one of great public importance:

1 DOES STATE V. OVERFELT, 457 So. 2d 1385 (FLA. 1984) REQUIRE THE JURY TO FIND PENETRATION FOR THE PURPOSE OF ASSESSING VICTIM INJURY POINTS?

This proceeding followed.

2 SUMMARY OF THE ARGUMENT

The decision of the Fourth District Court of Appeal in this case was not error. The trial judge could properly assess victim injury points for penetration even without a specific finding by the jury - this is exactly the type of fact which has traditionally been taken into consideration when imposing sentence. It is not a fact that need be submitted to the jury where it does not increase the degree of the felony of which a defendant is adjudicated guilty, does not result in the imposition of a mandatory minimum sentence, and does not result in a sentence exceeding the statutory maximum. The District Court of Appeal, Fourth District properly upheld the imposition of victim injury points herein.

3 ARGUMENT

DOES STATE V. OVERFELT, 457 So. 2d 1385 (FLA. 1984) REQUIRE THE JURY TO FIND PENETRATION FOR THE PURPOSE OF ASSESSING VICTIM INJURY POINTS?

Petitioner contends that, pursuant to State v. Overfelt, 457 So. 2d 1385 (Fla.

1984), a jury must make a specific finding that a defendant has sexually penetrated the victim before the trial court can impose victim injury points for sexual penetration on the score sheet. Petitioner believes that since the jury did not make such a finding in the case at bar, the judge could not score extra points for sexual penetration herein. Thus, the petitioner argues, his sentence should be reduced.

The State disagrees - this is exactly the type of fact which has traditionally been taken into consideration when imposing sentence. It is not a fact that need be submitted to the jury where it does not increase the degree of the felony of which a defendant is adjudicated guilty, does not result in the imposition of a mandatory minimum sentence, and does not result in a sentence exceeding the statutory maximum. For this reason, the District Court of Appeal, Fourth District properly upheld the imposition of victim injury points in Neira v. State, 847 So. 2d 1134

(Fla. 4th DCA 2003).

4 Standard of Review

The standard of review for a legal question is de novo. “Appellate courts are not required to defer to trial judges and administrative law judges on pure issues of law. The standard of review of legal issues involve no more than a determination whether the issue was correctly decided.” Section 9.4 Philip J. Padovano,

FLORIDA APPELLATE PRACTICE (2d ed. 1997)

Discussion

In Overfelt, this Court faced the question of whether there must be a specific jury finding that an accused actually possessed a firearm before a trial court could apply the enhancement and mandatory minimum sentencing provisions of section

775.087, Florida Statutes (1983). Overfelt, 457 So. 2d at 1387. This Court ruled that there must be such a finding. Id. See also, State v. Hargrove, 694 So. 2d 729

(Fla. 1997). However, this Court also noted that a trial judge could make findings on matters not associated with the criminal episode when rendering a sentence. Id.

As the Fourth District wrote below, Overfelt and its progeny do not control the instant case. Neira, 847 So. 2d at 1135. This case involves neither an enhancement nor a mandatory minimum sentence. Id., at 1136. The degree of the felony of which the petitioner was convicted did not rise nor did the petitioner receive a mandatory minimum sentence. Id. The finding resulted only in an

5 adjustment of the sentencing range within the maximum sentence allowed for a second degree felony. Id. No mandatory minimum sentence was imposed since, under the sentencing guidelines, a judge could theoretically impose a downward departure sentence and since a defendant could still earn credits toward an early release which he could not earn otherwise. See Fla. R. Crim. P. 3.704(d)(27). Id.

Thus, Overfelt does not apply for scoring purposes. Significantly, Lowman v. State, 720 So. 2d 1105 (Fla. 2d DCA), rev. denied, 727 So. 2d 907 (Fla. 1998), and McCloud v. State, 741 So. 2d 512 (Fla. 5th DCA 1999)(en banc), have held that a finding is not a prerequisite to the scoring of victim injury points on the guidelines scoresheet. “Penetration as a sentencing factor plainly does not need to be charged, nor must it be decided by a jury, nor must it be decided beyond a reasonable doubt.” McCloud, 741 So. 2d at 512.(emphasis supplied).

Similarly, Bradford v. State, 722 So. 2d 858 (Fla. 1st DCA 1998), and Crossley v.

State, 741 So. 2d 1208 (Fla. 5th DCA 1999), have held that a jury finding is not a prerequisite to the imposition of firearm points on a defendant’s guidelines scoresheet.

The preparation of a sentencing guidelines scoresheet is "materially different" from the type of enhancement or mandatory minimum at issue in Overfelt and

Hargrove. Bradford, 722 So. 2d at 860. The Lowman court explained this

6 distinction in the context of victim injury points:

There are factual issues involved in the preparation of a sentencing scoresheet that must be determined by the trial judge. Thus, for example, issues concerning prior record are resolved by the judge and not by the jury. The nature and extent of victim injury are often irrelevant to the jury’s decision to convict on a particular offense. We conclude that victim injury points are properly assessed based on a factual determination by the trial judge... The trial judge cannot assess points on a scoresheet that conflict with the jury’s factual findings concerning the offense. The trial judge, however, may weigh the evidence presented during the trial or consider additional evidence at the sentencing hearing in determining victim injury points.

Lowman, 720 So. 2d at 1107; Bradford, 722 So. 2d at 860. Like the scoring of semiautomatic firearm points under Section 921.0014, Florida Statutes, the nature and extent of the victim’s injury is a scoresheet issue which does not involve an enhancement or minimum mandatory. Therefore, Overfelt does not apply.

Even if Overfelt were to apply, Overfelt itself makes it clear that a trial judge, rather than a jury, may still make certain findings of fact for sentencing purposes.

Overfelt, 457 So. 2d at 1387. The State submits that the instant case presents one of those instances.

Traditionally, judges have taken various facts into consideration when imposing sentence. One function of the sentencing guidelines is to incorporate certain types of facts, the ones sentencing judges would likely consider, into the scoresheet to achieve uniformity in sentencing. For

7 sexual offenses, the scoresheet characterizes the victim’s physical injury into four types: no contact, contact but no penetration, penetration or slight injury, death or serious injury. See Fla. R. Crim. P. 3.998(b). When sentencing for a sexual offense, these are the types of facts judges have traditionally taken into consideration, even though they might come from observations at a trial or from a presentence investigation.

Neira, 847 So. 2d at 1136. Since victim injury is clearly a factor which a judge traditionally considered in imposing sentence, it is one that is properly left to the judge.

Moreover, it would be unduly burdensome to require the jury to make factual determinations on every issue that may be a factor on the guidelines scoresheet.

This is especially so with factors such as victim injury or prior record. These scoresheet factors are not elements of most offenses and are therefore irrelevant to the jury’s decision of whether to convict in most cases. In fact, evidence of these matters would likely be highly prejudicial if presented to a jury. Yet, if a special jury finding is required before such factors may be taken into account, then the State will be entitled -- indeed, required -- to present evidence on these matters to the jury. Every will be lengthened considerably by the presentation of this additional evidence, further taxing our already over-burdened trial courts. These matters are properly left to the sentencing judge. This Court should reject the

8 contention that a special jury finding is a prerequisite to the scoring of victim injury points.

It is worth noting that the federal courts have similarly recognized the difference between factors required for conviction and factors required for sentencing and have rejected the assertion that due process always requires a jury finding. In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), the

United States Supreme Court ruled that, under the Constitution, "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." Id., 120 S.Ct. at

2362-63. However, the Court pointed out that “[w]e have often noted that judges in this country have long exercised discretion of this nature in imposing sentences within statutory limits in the individual case.” Apprendi, 120 S.Ct. at 2358. A bit later in the analysis, the Court, quoting Williams v. New York, 337 U.S. 241, 69

S.Ct. 1079, 93 L.Ed.2d 1337 (1949), observed that there was a long history of the exercise of a wide discretion in sentencing, “within the limits fixed by law.”

The Supreme Court’s decision in Apprendi has been interpreted to mean that

“any fact which, if proved, provides for a higher sentence within the prescribed bounds need not be proved to a jury to a constitutional certainty. Instead, these sentencing factors may be determined by the judge by a preponderance of the

9 evidence.” Hindenach v. State, 807 So. 2d 739, 742 (Fla. 4th DCA 2002). This conclusion is supported by the United States Supreme Court’s opinions in Harris v. United States, 122 S. Ct. 2406 (2002), and McMillan v. Pennsylvania, 477 U.S.

79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).

In analyzing Apprendi, the United States Supreme Court, in Harris, drew a distinction between two types of factual findings. One type of factual finding is a finding which results in an extension of the defendant’s sentence beyond the maximum authorized by the jury’s verdict. This finding of fact becomes an element of the crime for the purposes of constitutional analysis and thus must be alleged in the , submitted to the jury, and proven beyond a reasonable doubt. This type of factual finding is different from the type of factual finding that does not extend the sentence beyond the statutory maximum. This type of fact is akin to those facts which judges have traditionally considered when exercising their discretion to choose a sentence within the range authorized by the jury. Therefore, the Supreme Court held, it does not have to be alleged in the indictment or submitted to the jury.

Similarly, in McMillan, the petitioner McMillan argued that a sentencing aggravator, visible possession of a firearm, was an element of the crime for which he was convicted, and thus must be proved beyond a reasonable doubt. The Court

10 found that visible possession was not an element of the crime, but was a sentencing factor that came into play only after a defendant had been found guilty of the offense.

In so holding, the Court observed,

[The statute] neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. 106 S.Ct. at 2417.

The Court further observed,

The Pennsylvania Legislature did not change the definition of any existing offense. It simply took one factor that has always been considered by sentencing courts to bear on punishment – the instrumentality used in committing a violent felony – and dictated the precise weight to be given that factor if the instrumentality is a firearm.

Clearly, there is no absolute constitutional bar against leaving factual findings such as the one in the case at bar to the sentencing judge as long as such findings do not result in a sentence exceeding the statutory maximum, increase the degree of the felony, or result in the imposition of a mandatory minimum sentence. Here, the finding of penetration in the case at bar did not result in Petitioner being sentenced to a sentence which he could not have been sentenced to absent the finding - it fell within the range of sentences permissible absent the finding. The finding was

11 permissible.

Moreover, it was based on competent substantial evidence. The victim expressly testified that the petitioner had placed his penis in her vagina. She was very certain of that despite the fact that she did not remember every detail about the incident. (HT- 18; 34). In addition, the victim’s sister was worried about the victim becoming pregnant and asked the petitioner, during the controlled phone call, whether he had used a condom. The petitioner answered that he had and then stated: “I got, like a drawer full of condoms.” (HT- 51-2). The petitioner also admitted to Detective Gregory that he had sex with the victim although he made sure that he was protected. (HT-82, 87).

The trial court has the superior vantage point to see and hear the witnesses and judge their credibility. Guzman v. State, 721 So. 2d 1155, 1159 (Fla. 1998). The trial court believed the victim rather than the petitioner as to what happened. This is not an unreasonable position in the case at bar.

In conclusion, the trial court was correct in imposing victim injury points for penetration without a factual finding by the jury. Further, the trial court based its decision to impose victim injury points for penetration on competent substantial evidence. The decision of the Fourth District to uphold the trial court’s decision should be affirmed.

12 CONCLUSION

Wherefore, based on the foregoing arguments and authorities, the State respectfully requests this Court AFFIRM the petitioner’s conviction and sentence below.

Respectfully submitted,

CHARLES J. CRIST, JR. Attorney General, Tallahassee, Florida

CELIA A. TERENZIO Bureau Chief, West Palm Beach

______JEANINE GERMANOWICZ Assistant Attorney General Florida Bar No. 0019607 1515 N. Flagler Drive, 9th Floor West Palm Beach, FL 33401-3432 (561) 837-5000/(561) 837-5099 (Fax)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing "Answer Brief of Appellee" has been furnished by courier on October ___, 2003, to GARY

CALDWELL, Assistant Public Defender, The Criminal Justice Building, 421 Third

Street, 6th Floor, West Palm Beach, Fl 33401.

______Of Counsel

13 CERTIFICATE OF FONT COMPLIANCE

I hereby certify that this document, in accordance with Rule 9.210 of the Florida

Rules of Appellate Procedure, has been prepared with 14 Point Times New Roman.

______Of Counsel

14 IN THE SUPREME COURT FOR THE STATE OF FLORIDA

JUAN A. NEIRA,

Petitioner, CASE NO. SC03-1261 vs. L.T. CASE NO. 4D02-2237 L.T. CASE NO. 2001-1316 STATE OF FLORIDA,

Respondent. ______/

RESPONDENT’S INDEX TO APPENDIX AND APPENDIX

Neira v. State, 847 So. 2d 1134 (Fla. 4th DCA 2003) ...... A-1

15