Harmless Error or Structural Error? Post-Erlinger Dilemma For Florida Courts

October 9, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

After the U.S. Supreme Court’s Erlinger decision, how are Florida’s courts responding to a wave of legal challenges to state sentencing laws? 

In the wake of the U.S. Supreme Court’s 2024 decision, Erlinger v. United States, 602 U.S. 821 (2024), courts throughout the nation have been faced with questions about how to apply it. The Supreme Court clarified in Erlinger that no fact besides the existence of a prior conviction may be found by a judge (rather than a jury) for purposes of enhancing a defendant’s sentence.

This has had major implications for Florida’s sentencing enhancement laws (Fla. Stat. 775.084), such as PRR or HFO. These statutory provisions (Prisoner Releasee Reoffender and Habitual Felony Offender) allow the trial judge, rather than a jury, to find various facts other than the existence of a prior conviction for enhancing (making longer) a defendant’s sentence.

These facts may include:

• Date of the prior conviction qualifying the defendant for PRR/HFO or other enhancement
• Date of release from a Florida prison/other eligible institution for that prior conviction (the offense the defendant is sentenced for must have occurred within a certain amount of time of their most recent previous release)
• Whether the prior conviction was a felony or not

Though these facts may seem “obvious” for a judge to find in many cases, Erlinger clarified there is a Sixth Amendment right to a jury for the finding of any additional fact (other than the existence of a prior conviction) that increases a defendant’s sentence. The Court was clear – this is a constitutional right, even if impaneling a jury seems “inefficient” or “wasteful.”

Before Erlinger, Florida courts had upheld PRR, HFO and similar sentencing laws based on the fact that these details (e.g. date of prior conviction, date of release, time between crimes) were “direct derivatives” of the prior conviction itself. Calloway v. State, 914 So.2d 12, 14 (Fla. 2d DCA 2005)

But the U.S. Supreme Court was clear in Erlinger that judges can go no further than finding the existence of a prior conviction. Even these “direct derivatives” (as Calloway called them) must be determined by a jury if a defendant requests it. 

Faced with this result, which seems to put the Supreme Court at odds with current sentencing laws (allowing for a judge to find these “direct derivatives” without a jury), Florida’s courts have deliberated how to respond. 

After Erlinger was decided, many defendants who previously were sentenced under PRR, HFO and similar laws challenged the legality of their sentences. They argued that their sentences were unconstitutional because the judge (rather than a jury) found the facts necessary to lengthen their prison term (under laws like HFO, PRR, VCC, etc.).

However, the Florida Supreme Court ruled in June 2025 that Erlinger v. U.S. does not apply retroactively. If someone was already sentenced under PRR, HFO or another enhancement, they do not have the right for a jury to decide their eligibility (or lack thereof) for the enhancement. Wainwright v. State, 411 So.3d 392 (Fla. 2025)

But do defendants after Erlinger (and even post-Wainwright) have the constitutional right to such a jury (under PRR, HFO, etc.)? This is a question Florida’s courts have thus far avoided ruling directly on, as it may mean many of Florida’s sentencing laws are unconstitutional in their current form.

Instead, Florida’s District Courts of Appeal are opting to subject potential Erlinger errors at trial to a harmless error analysis. Such an analysis occurs when there is a mistake at trial that is relatively minor, and does not taint the proceedings so much that it requires a new trial or the reversal of the verdict.

But there is another type of error that does require reversal (tossing out a verdict or an illegal sentence) – structural error. Structural error occurs when a trial is fundamentally defective in a manner that violates a defendant’s constitutional rights. Examples may include:

• Denying someone the right to counsel (Gideon v. Wainwright, 372 U.S. 335 (1963))
• A biased or partial judge
• Denial of the right to a public trial
• Racial discrimination in jury selection 
• Defective reasonable doubt instruction
• Sixth Amendment jury trial violations, including wrongful denial of a defendant’s counsel of choice (United States v. Gonzalez-Lopez, 548 U.S. 140 (2006))

If structural errors occur, the government cannot simply argue that what happened was “harmless error” because the jury would have found the defendant guilty anyway. The above defects taint the outcome of the proceeding irreparably – even if the result would have been “the same either way,” reversal is still required.

This leads us to the Florida First District Court of Appeal’s recent decision in McGlaun v. State (October 1, 2025). McGlaun was convicted of traveling to meet a minor and was found by the trial judge to be a Habitual Felony Offender (HFO). As noted, various additional facts must be found other than the mere existence of a prior conviction for HFO to apply.

McGlaun’s sentence was enhanced as a result of the HFO designation. He then appealed to the 1st DCA (which covers Tallahassee and Northwest Florida). Citing Erlinger, he argued he had a Sixth Amendment right for a jury to find additional facts necessary to support his HFO sentence (e.g. date of prior conviction, date of release).

The 1st DCA ruled against McGlaun, affirming his sentence. What made the ruling especially intriguing, however, was its reasoning. 

In line with a recent 6th District Court of Appeal decision (Avalos v. State, 50 Fla. L. Weekly D1950a, 2025 WL 2486901), the 1st DCA refrained from deciding if the U.S. Supreme Court’s Erlinger decision had an impact on the constitutionality of Florida sentencing laws such as HFO (allowing judges to find facts other than the existence of a prior conviction).

Instead, the court conducted a harmless error analysis. The majority wrote: 

“During his sentencing hearing, Appellant did not contest the HFO qualifying facts or the admission of any of the State’s evidence to prove these facts. He did not introduce any contrary evidence and never argued that he did not qualify for an HFO sentence enhancement.”

“The record demonstrates beyond a reasonable doubt that no rational jury would have found the timing of the predicate convictions relative to Appellant’s release from his latest sentence and the other HFO qualifying facts any differently than found by the sentencing court. Since any error here is harmless, Appellant’s HFO sentence is affirmed.”

But why use a “harmless error” analysis, rather than ruling that the denial of McGlaun’s request for a jury constituted a Sixth Amendment violation (per Erlinger) that required reversal of the sentence (structural error)? The 1st DCA cited one major case – the Florida Supreme Court’s ruling in Galindez v. State, 955 So. 2d 517, 523 (Fla. 2007).

In Galindez, the defendant was found guilty of sexual battery after being accused of having penetrative intercourse with a 12-year-old victim over many months. Sexual battery occurs when someone illegally engages in sexual penetration or union with the victim (union involves contact with the victim’s genitals without penetration). 

After hearing the child victim’s testimony as to the many times Galindez engaged in sexual intercourse with her, the jury found Galindez guilty of sexual battery. The jury didn’t make a specific finding as to penetration or union (nothing was written down). 

But because the victim testified as to repeated penetration, the judge used “penetration” (more severe than “union” for sentencing) on Galindez’s scoresheet. As a result, he received more time in prison than if the sexual battery had only involved “union.”

Galindez appealed his sentence, arguing the judge rather than a jury found a fact (penetration, not union) other than the existence of a prior conviction – which increased Galindez’s time in prison. He cited Apprendi, which was the supporting U.S. Supreme Court decision at the time. 

The Florida Supreme Court ruled against Galindez, arguing this was “harmless error.” The court reasoned that because the jury convicted Galindez of sexual battery after hearing the victim’s testimony regarding penetration, no reasonable jury would have not found penetration to have occurred.

As a result, even though the jury did not specifically find that penetration occurred (as opposed to union) it was implied by their verdict after hearing testimony as to the nature of the acts – which involved penetrative sexual intercourse.

But this is fundamentally different from McGlaun v. State. The jury had already convicted Galindez of sexual battery after hearing the victim testify that penetrative intercourse occurred. Considering this, the Florida Supreme Court held the jury essentially found penetration already through their verdict – they just didn’t write it down.

By contrast, a jury never heard anything as to the HFO sentencing issue in McGlaun. The jury determined McGlaun’s guilt only of the current charge. McGlaun’s HFO enhancement turned on entirely different facts from the ones at trial, none of which the jury ever knew about. 

Thus, some would argue that analogizing McGlaun to Galindez for purposes of conducting a “harmless error” analysis is mistaken. The judge had to conduct an entirely distinct analysis – unrelated to the jury’s trial findings – to determine if McGlaun qualified as an HFO.

Once Galindez and McGlaun are distinguished from each other, the remaining argument is that there was no evidence presented at the sentencing hearing indicating McGlaun did not qualify for HFO. Thus, it “didn’t matter” whether a jury heard about the HFO issue or not – because the result would have been the same (harmless error).

But some would say this misses the mark, because the failure to give McGlaun a jury trial on the HFO issue was structural error. As Erlinger noted, the right to a jury to find all facts relevant to increase a sentence (other than the sole fact of an existing prior conviction) is protected by the Sixth Amendment to the U.S. Constitution – just like the right to counsel (a lawyer).

If Erlinger’s logic is accepted, that would mean a failure to impanel a jury on sentencing issues is structural error. This is because the Sixth Amendment right to a jury trial is violated if a judge, not a jury, finds facts (other than the existence of a prior conviction) that enhance a sentence.

To hold otherwise would call every other structural error into question – including the right to counsel. If even structural errors can be overlooked because the verdict or sentence “would have been the same either way,” this would logically allow courts to affirm a guilty verdict or sentence against someone deprived of an attorney or someone who received a biased judge.

But no court is permitted to do so if there is structural error. Structural error requires reversing the outcome of the proceedings in which the structural error occurred. Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991)

This raises a series of $64,000 questions: 

• As Erlinger requires the impanelment of juries to find all facts (with the sole exception of a prior conviction) relevant to enhance a sentence – why would it not be a structural error to fail to impanel such a jury when requested?
• Because many of Florida’s current sentencing laws (e.g. HFO, PRR) allow the trial judge to find these facts, how can these be reconciled with Erlinger in their current form?
• If the right to a “sentencing jury” (Erlinger) is just as real as the right to a “trial jury” (to determine guilt or innocence), why does harmless error apply to the “sentencing jury” – but structural error applies to the “trial jury” (as it is a clear Sixth Amendment violation if not impaneled)? 
• How can a trial judge enhance a sentence based on various facts never heard or decided by a jury in the wake of Erlinger (as was decided in McGlaun)?

In sum, Florida’s 1st District Court of Appeal’s ruling in McGlaun is likely to attract significant discussion in the coming months. How the Florida Supreme Court and other DCAs will rule on this issue will be something to keep an eye on. Will these courts continue to use “harmless error” to affirm a potentially unconstitutional sentence, given Erlinger? Only time will tell.

If someone has questions about the charges in a criminal case, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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