HFO & PRR FINDINGS MUST BE MADE BY A JURY AT DEFENDANT'S REQUEST, BUT IS SUBJECT TO HARMLESS ERROR
HFO and PRR findings must, at a defendant's request, be made by the jury, but is subject to a harmless error analysis.
Flournoy v. State, _ So.3d _ (Fla. 2nd DCA 2025):
The State concedes that HFO and PRR findings must, at a defendant's request, be made by the jury. We do not need to decide whether, pursuant to Erlinger, this concession is correct. This is because even assuming that the trial court erred by making the findings necessary to impose the HFO and PRR enhancements, rather than leaving those findings to the jury, the error was harmless. Erlinger, following the principle espoused in Apprendi v. New Jersey, 530 U.S. 466 (2000), and later adopted and expanded upon by Blakely v. Washington, 542 U.S. 296 (2004), and Alleyne v. United States, 570 U.S. 99 (2013), acknowledged that any fact which increases the "range of penalties" that a defendant is exposed to must be decided by a jury. Erlinger, 602 U.S. at 833 (quoting Apprendi, 530 U.S. at 490). Florida courts have recognized that the types of errors addressed in Apprendi, Blakely, and Alleyne are subject to harmless error review. See State v. Manago, 375 So. 3d 190, 198-201, 203 (Fla. 2023); Toye v. State, 311 So. 3d 78, 82 (Fla. 2d DCA 2019); Ayos v. State, 275 So. 3d 178, 181 (Fla. 4th DCA 2019). It follows then that Erlinger errors are also subject to harmless error review.
"Where the error concerns sentencing, the error is harmless only if there is no reasonable possibility that the error contributed to the sentence." Hurst v. State, 202 So. 3d 40, 68 (Fla. 2016), receded from on other grounds by Gonzalez v. State, 375 So. 3d 886, 887 (Fla. 2023); see also N.J.O. v. State, 292 So. 3d 491, 499 (Fla. 2d DCA 2020). The State has the burden to prove beyond a reasonable doubt that the jury's failure to make the necessary findings for application of the HFO and PRR enhancements did not contribute to Flournoy's sentence. Cf. N.J.O., 292 So. 3d at 499 (relying on State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986), for the proposition that the State carries the burden to prove that an error is harmless).