Florida appeals judge flags Sixth Amendment problem in judicial application of prison releasee reoffender statute

A helpful reader flagged an interesting concurring opinion in a case from Florida’s Fifth District Court of Appeals which showcases a potental state echo from the Supreme Court’s recent Sixth Amendment ruling in US v. Erlinger.  At issue is application of Florida’s “prison releasee reoffender” (PRR) statute which imposes increased punishment for a new crime committed within 3 years of a defendant’s release from federal or state prison.  The defendant in Denson v. Florida loses his Sixth Amendment claim based on a prior state ruling that judges can make release date findings (full opinion here), but Judge Eisnaugle authors an extended concurrence explaining why he thinkg that prior ruling is wrong. I recommend the opinion in full, and here are snippets:

Erlinger now makes plain what Apprendi signaled years ago — the exception for the fact of a prior conviction is questionable to begin with, and as a result, it must be applied narrowly.  In short, the Sixth Amendment will not tolerate an expansion of the exception — even if the bench might view it as logical or slight….

Blakely and Erlinger leave no room for an efficiency exception to the Sixth Amendment. To be sure, “[t]he jury trial may have ‘never been efficient,’” Erlinger, 602 U.S. at 849 (quoting Apprendi, 530 U.S. at 498 (Scalia, J., concurring)), but it is required by the Sixth Amendment even when the evidence might be “overwhelming.” Id. at 842….

Given the United States Supreme Court’s now long-standing and clear Sixth Amendment jurisprudence, this court has no authority to expand, or otherwise invent, an exception to the rule announced in Apprendi.  Therefore, were I not bound by Simmons, I would conclude that Denson’s PRR sentence violates the Sixth Amendment and would remand for the trial court to conduct a harmless error analysis.