Sanderson v. State of Florida

FIRST D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
_____________________________
Nos. 1D2024-1311
1D2024-1312
1D2024-1313
(Consolidated for disposition)*
_____________________________
JOSEPH SANDERSON,
Appellant,
v.
STATE OF FLORIDA ,
Appellee.
_____________________________
On appeal from the Circuit Court for Santa Rosa County.
Clifton Alan Drake, Judge.
May 13, 2026
O PINION ON M OTION FOR R EHEARING OR C ERTIFICATION
PER C URIAM.
We grant, in part, Appellant’s motion for rehearing or for
certification filed April 13, 2026, withdraw our opinion of April 1,
2026, and substitute this opinion in its place in order to correct the
* Santa Rosa County case number 2021-CF-806 generated
appeal number 1D2024-1311; case number 2022-CF-117 became
1D2024-1312; and case number 2023-CF-970 became 1D2024-
1313.

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reference 	to 	Appellant’s 	reported 	violation 	of 	probation. 	We
otherwise deny the motion.
This case joins many others testing the application of Erlinger
v. United States, 602 U.S. 821 (2024). Appellant argues that
Erlinger bars a trial court from finding that a defendant is a
violent 	felony 	offender 	of 	special 	concern 	(VFOSC) 	or 	that 	a
VFOSC is a danger to the community; and that instead, a jury
must make such findings. We reject the argument and affirm
Appellant’s judgment and sentence.
Appellant was on sex-offender probation after admitting guilt
for fifteen counts of possession of child sexual abuse material in
case number 2021-CF-80; and two counts of attempted sexual
battery 	plus 	one 	count 	of 	attempted 	lewd 	and 	lascivious
molestation, in case number 2022-CF-117 (victim under age 12).
He does not dispute that these offenses qualified him for VFOSC
status. See § 948.06(8)(b)1., Fla. Stat. (2023) (defining VFOSC as
a person on felony probation or community control for a qualifying
offense). He also does not dispute that he violated his sex-offender
probation by failing to register a cell phone as a sex offender and
accessing the internet, and was reported for having prohibited
contact with a minor, addressed in case number 2023-CF-970.
Appellant pleaded straight up to the trial court. The court
made 	express 	written 	findings 	that 	Appellant 	qualified 	as 	a
VFOSC, and found him to be a danger to the community. See
§ 948.06(8)(c)4.–5., 8., Fla. Stat. (defining “qualifying offense” as
including 	sexual 	battery, 	attempted 	sexual 	battery, 	actual 	or
attempted lewd or lascivious battery, and actual or attempted
sexual performance by a child). The court sentenced him to twenty-
five years in prison, covering two sexual battery counts; and 234
months prison for the numerous additional counts, concurrent
with each other and concurrent with the battery sentence.
The fact that Appellant’s criminal punishment scoresheet was
increased due to his qualifying as a VFOSC does not violate his
Sixth Amendment right to a jury trial. A judge is authorized to use
“judicial records, plea agreements, and colloquies between a judge
and the defendant . . . for the ‘limited function’ of determining the
fact of a prior conviction and the then-existing elements of that

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offense.” Erlinger, 602 U.S. at 839; see also § 90.202(6), Fla. Stat.
(authorizing courts to take judicial notice of records of any state or
federal court); Gilbert v. State, 397 So. 3d 57, 59 (Fla. 4th DCA
2024) 	(recognizing 	court’s 	authority 	to 	take 	judicial 	notice 	of
original sentencing records to establish habitual felony offender
status).
The Supreme Court in Erlinger expressly recognized that a
court 	can 	“undertake 	the 	job 	of 	finding 	the 	fact 	of 	a 	prior
conviction—and that job alone.” 602 U.S. at 835–38. Under Florida
law, Appellant is a VFOSC if he was on “[f]elony probation . . .
related to the commission of a qualifying offense.” § 948.06(8)(b)1.,
Fla. Stat. Erlinger does not require a jury to find the fact of
Appellant’s 	prior 	conviction 	for 	purposes 	of 	the 	VFOSC
designation. See Maye v. State, 368 So. 3d 531, 532 (Fla. 6th DCA
2023) (“[T]he date a defendant was released from prison or jail and
the nature of the qualifying offense are ministerial in nature and
thus do not require jury findings.”), review granted, No. SC2023-
1184, 2024 WL 1796831 (oral argument held February 6, 2025).
Even if there had been any error, it was harmless. See, e.g., Hugger
v. State, 51 Fla. L. Weekly D169, 2026 WL 215872, at *1 (Fla. 1st
DCA January 28, 2026) (holding trial court did not err in relying
on certified copy of the Department of Corrections Crime and Time
Report to adjudicate appellant a prison releasee reoffender); Jett
v. State, 426 So. 3d 596, 597 (Fla. 1st DCA 2025) (“Based on the
uncontroverted evidence, any error in not submitting the PRR
determination 	to 	a 	jury 	was 	harmless 	beyond 	a 	reasonable
doubt.”); Flowers v. State, 424 So. 3d 1062, 1063 (Fla. 1st DCA
2025) (same).
When 	a 	VFOSC 	probationer 	is 	alleged 	to 	have 	violated
probation “other than a failure to pay costs, fines, or restitution,”
the court must “[m]ake written findings as to whether or not the
violent felony offender of special concern poses a danger to the
community.” 	§ 	948.06(8)(e)1., 	Fla. 	Stat. 	The 	trial 	court 	must
consider 	various 	factors 	in 	making 	that 	dangerousness
determination. See § 948.06(8)(e)1.a.–e., Fla. Stat. Here, the trial
court found Appellant to be a danger to the community, and
entered a written order as the statute requires.

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In two of Appellant’s three consolidated cases, the judicial
“danger 	to 	the 	community” 	fact-finding 	occurred 	in 	probation
revocation proceedings, in which there appears to be no Sixth
Amendment 	concern 	regardless 	of 	the 	impact 	on 	Appellant’s
sentence. See Hollingsworth v. State, 293 So. 3d 1049, 1052–53
(Fla. 4th DCA 2020); Souza v. State, 229 So. 3d 387, 389 (Fla. 4th
DCA 2017). However, case number 2023-CF-970 involved new
criminal charges. If the trial court, rather than a jury, had found
Appellant a “danger to the community” and increased Appellant’s
sentence, it would violate the Sixth Amendment right to a jury
trial. See Brown v. State, 260 So. 3d 147, 149 (Fla. 2018). In Brown,
the 	trial 	court 	was 	required 	to 	determine, 	under 	section
775.082(10) 	of 	the 	Florida 	Statutes, 	whether 	sentencing 	a
defendant to a “nonstate prison sanction” rather than a prison
sentence “could present a danger to the public.” The court made
the public-danger determination without a jury. Id. at 150. The
supreme 	court 	held 	that 	this 	violated 	the 	defendant’s 	Sixth-
Amendment right to a jury trial. Id. at 150–51.
Here, 	in 	contrast, 	the 	community-danger 	finding 	under
section 948.06(8)(e)1., Florida Statutes, only impacts whether a
VFOSC probationer can be restored to probation, or must have
probation revoked and be sentenced up to the statutory maximum
prison 	sentence, 	or 	longer 	if 	permitted 	by 	law. 	See 	§
948.06(8)(e)2.a.–b., Fla. Stat. Any increase in sentence is from the
VFOSC finding, which was stipulated-to here, but can also be
based on a trial court’s determining a defendant’s past criminal
convictions, without violating the Sixth Amendment. As a result,
the holding in Brown does not apply to the sentencing of a VFOSC
defendant. See Hollingsworth, 293 So. 3d at 1052–53.
A FFIRMED.
BILBREY , KELSEY , and NORDBY, JJ., concur.

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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Robert David Malove and Hani Adel Demetrious of The Law Office
of Robert David Malove, P.A., Fort Lauderdale, for Appellant.
James 	Uthmeier, 	Attorney 	General, 	and 	Darcy 	Townsend,
Assistant Attorney General, Tallahassee, for Appellee.