North Florida’s Highest Court Addresses Conflict Between Florida Sentencing Laws and U.S. Supreme Court

November 11, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 1st District Court of Appeal recently affirmed a defendant’s sentence even if it violated the U.S. Supreme Court’s Erlinger ruling, after applying a “harmless error analysis.” But one judge expressed reservations about this.

In Florida, various sentencing laws such as PRR and HFO allow a judge to “find” various facts that lengthen the minimum or maximum sentence a defendant faces. Some of these include:

• The existence of a defendant’s prior conviction
• The time that has elapsed between the time of the last conviction to the time of conviction in the current case
• When a defendant was last released from custody
• Whether the defendant was incarcerated in an eligible institution under Florida law that triggers these enhancements (e.g. prison)

To learn more on PRR (Prisoner Releasee Reoffender), HFO (Habitual Felony Offender), and other sentencing enhancements in Florida, click here.

For decades, Florida’s status quo on sentencing has been to let the judge find all of the above facts that contribute to increasing the mandatory minimum or maximum sentence a defendant faces under laws like PRR or HFO. But in recent years, there has been growing scrutiny of the structure of Florida’s sentence enhancement statutes (Fla. Stat. 775.082, 775.084, etc.).

A growing number of legal advocates argue some Florida sentencing laws, as they are currently structured, are unconstitutional. Their reasoning is rooted in three U.S. Supreme Court decisions handed down since 2000 – Apprendi v. New Jersey, 530 U.S. 466 (2000), Alleyne v. United States, 570 U.S. 99 (2013), and Erlinger v. United States, 602 U.S. 821 (2024).

The first of these, Apprendi, held that any fact that increases the statutory maximum jail or prison (sentencing) exposure a defendant faces must be found by a jury rather than a judge. Apprendi held that the only exception to this rule was the existence of a prior conviction that triggered sentencing enhancement(s), which could be found by the judge.

This did not directly implicate many of Florida’s sentencing laws, as these generally increase the mandatory minimum penalties that a defendant faces. Moreover, many Florida courts held that the facts required to be found by trial judges under laws like PRR and HFO (defendant’s date of release from prison, etc.) were “direct derivatives” of the existence of a prior conviction.

Because of this, Apprendi was largely seen as a significant development, but not to the extent that Florida’s sentencing laws had to be restructured. However, this changed in 2013 with the U.S. Supreme Court’s Alleyne ruling. 

Alleyne went further than Apprendi, holding that any fact (other than the existence of a prior conviction) that increases the minimum penalty a defendant faces (not just the maximum) must be found by a jury. But many of Florida’s sentencing laws (e.g. PRR) allow a judge to find more than the existence of a prior conviction, and increase a defendant’s minimum sentence as a result.

As a result, a new wave of legal challenges as to the constitutionality of Florida’s sentencing laws (as currently written) was triggered. Nevertheless, Florida courts held that Alleyne did not require PRR, HFO and other statutes to be rewritten. This was largely based on similar “direct derivative” logic that courts embraced in the wake of Apprendi. 

But last year, this debate was significantly impacted by Erlinger v. United States, 602 U.S. 821 (2024). In Erlinger, the U.S. Supreme Court was clear that no “direct derivative” of a prior conviction may be found by a judge for enhancement purposes. Only the existence of a prior conviction can be determined by a judge, while the remainder must be found by a jury.

In the context of Florida’s sentencing laws, this means other facts necessary to establish that a defendant is covered by a sentencing enhancement (e.g. under PRR, HFO) must be found by a jury. But as of 2025, Florida law still allows judges to determine the following (in addition to the fact of a prior conviction):

• When the prior conviction occurred 
• The defendant’s date of release after their prior conviction/sentence
• Whether they were housed at an eligible institution under the law

Given Erlinger and Alleyne, it appears some of Florida’s sentence enhancement laws (as they are presently written) defy the U.S. Supreme Court’s rulings. The language of these decisions, Erlinger especially, raises serious questions about the validity of continuing to have judges find all of the above facts for sentencing. 

Despite the spate of challenges to legality of HFO and PRR sentencing in the wake of Erlinger, Florida’s District Courts of Appeal and Florida’s Supreme Court have declined to apply Erlinger. To this day, a jury is not required to be impaneled for sentencing under these statutes. 

But Florida’s courts have also declined to rule that Erlinger did not change anything. Instead, courts have applied a “harmless error” analysis to any potential Erlinger errors (allowing a judge to make a PRR/HFO finding rather than a jury). 

These rulings have reasoned that even if a jury should have been impaneled, they would have reached the same result (designated the defendant PRR/HFO) beyond a reasonable doubt.

Notably, this has kicked off a debate surrounding whether an Erlinger error is properly analyzed under the “harmless error” doctrine, or whether it is a “structural error” (constitutional violation) that requires rectification via the impanelment of a jury on the issue (even if the jury would reach the same conclusion as the judge). For more on that, click here.  

In the time since Alleyne and Erlinger were decided, judges on Florida’s District Courts of Appeal and the Florida Supreme Court have almost never implied (or outright stated) that Florida’s sentencing laws expressly conflict with these U.S. Supreme Court decisions. But that changed with one recent ruling by Tallahassee and North Florida’s highest court.

Let’s discuss Hicks v. State (Fla. 1st DCA, October 15, 2025) and what it means for sentencing law in Florida going forward. 

KEY CASE: Hicks v. State (Fla. 1st DCA, October 15, 2025)

In Hicks, the defendant (Hicks) was convicted of a felony. He was sentenced under Florida’s PRR statute, after the trial judge found that Hicks had a prior conviction that triggered the law and that his release from a Florida prison was within 3 years of committing the charged offenses. 

After he was sentenced, Hicks appealed to Florida’s 1st DCA. He argued that given Erlinger’s holding put any debate about the viability of Florida’s PRR law as currently written to bed. As a PRR determination necessarily involves finding facts other than the sole existence of a previous conviction, Hicks asserted he was entitled to a jury trial on the issue.

The 1st DCA did not express disagreement with Hicks’s underlying argument. But it declined to rule on it, instead citing the “harmless error” doctrine outlined in Galindez v. State:

“[W]e affirm without reaching the merits of Appellant’s arguments as to Erlinger’s impact, if any, upon section 775.082(9) because even if Erlinger applies, any error in this case is harmless. When considering harmless error when the claimed error is failure to have a jury finding made during sentencing, the issue is ‘whether the failure to have the jury make the … finding … contributed to the … sentence—in other words, whether the record demonstrates beyond a reasonable doubt that a rational jury would have found’ the same thing. Galindez v. State, 955 So. 2d 517, 523 (Fla. 2007).”

In essence, the 1st DCA echoed its previous rulings on the issue of Erlinger’s applicability to PRR sentencing (such as McGlaun v. State) – affirming the PRR sentence without addressing whether a jury was truly required to be impaneled. 

What was notable about Hicks, however, is a concurring opinion by 1st DCA Judge Winkour. Judge Winkour agreed with the 1st DCA’s application of a “harmless error” analysis in the case. But he also voiced his personal opinion that the “date of release” issue must be decided by a jury during PRR sentencing under Alleyne, not Erlinger:

“… I question the relevance of Erlinger to any Florida sentencing matter, particularly the one presented here. Erlinger involved the question of whether a series of prior offenses qualified as separate offenses (as the Government contended), which permitted enhanced sentencing under the Federal Armed Career Criminal Act (ACCA), or whether the offenses were part of a single criminal episode (as the offender contended), which precluded such enhanced sentencing.”

“In short, Erlinger dealt with a particular fact-intensive inquiry related to federal sentencing by merely applying existing cases and did not expand the Court’s right-to-jury jurisprudence in a way that requires us to re-examine whether facts supporting a PRR sentence must be presented to a jury.”

In essence, Judge Winkour indicated his belief that Erlinger did not actually implicate Florida’s sentencing laws, as it dealt with a separate and significantly narrower issue. However, according to Judge Winkour, it was Alleyne that provided the basis for the right to a jury to decide PRR sentencing:

“[T]he Court in Alleyne explicitly overruled Harris, holding ‘any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.’ Alleyne, 570 U.S. at 103, 133 S.Ct. 2151. This was a major expansion to the right of any defendant to a jury finding of facts that supported the sentence.”

“Based on this observation, I believe that several district court of appeal decisions holding that Alleyne did not require facts supporting a PRR sentence to be found by the jury were wrongly decided. … As to Alleyne, Florida’s PRR statute clearly imposes mandatory minimum sentences. … Alleyne, not Erlinger, provides the basis for this decision regarding PRR. This issue, too, is likely to be resolved by the Florida Supreme Court in Maye.”

Reiterating his view that Alleyne v. United States, 570 U.S. 99 (2013) applied directly to Hicks’s case, Judge Winkour concluded:

“While I believe that Apprendi claims cannot be raised by rule 3.800(b) motion, and that Alleyne, rather than Erlinger, provides a basis to conclude that we cannot impose a PRR sentence without submitting the question of date of release to a jury, I nonetheless agree with the decision to affirm because the error is harmless.”

Although Judge Winkour’s concurrence voiced opposition to Erlinger as grounds to argue for a PRR jury, it still does recognize a legal basis for one in Alleyne. Many of Florida’s courts have indicated a belief Erlinger conflicts with PRR, but Alleyne does not. Judge Winkour believes the opposite.

As Judge Winkour noted in his concurrence, the Florida Supreme Court is set to rule directly on this issue in an upcoming case, Maye v. State. When this is decided, Florida defendants will learn whether they have a jury trial right to determine date of release (and other details) before PRR sentencing can occur – or if a trial judge can alone continue to find these.

In sum, Hicks v. State (Fla. 1st DCA, October 15, 2025) is a significant development in Florida case law surrounding Alleyne v. United States, 570 U.S. 99 (2013), Erlinger v. United States, 602 U.S. 821 (2024), and sentencing enhancements such as PRR. The 1st DCA punted on the issue of whether Erlinger directly conflicts with PRR and applied a “harmless error” analysis in the case.

Perhaps more intriguing than the majority opinion, however, is Judge Winkour’s concurrence. Judge Winkour argued that Erlinger did not conflict with Florida’s PRR law, but Alleyne did. As Alleyne requires a jury to find any additional facts other than a prior conviction that increase a defendant’s minimum sentence, Judge Winkour voiced support for juries in PRR cases.

If someone has questions about the charges in a criminal case and sentencing enhancements in Florida, 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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