Florida Criminal Law Opinions

LENORRIS PARKER, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D04-1939

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

August 31, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY:    [*1]

An appeal from the Circuit Court for Leon County. Thomas H. Bateman, III, Judge.

DISPOSITION:  

AFFIRMED.

COUNSEL:   Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   BARFIELD, ALLEN, and HAWKES, JJ., CONCUR.

OPINION  

PER CURIAM.

The appellant, Lenorris Parker, raises several issues on direct appeal. Only one issue merits discussion. Mr. Parker contends that the trial court erred in sentencing him as a prison releasee reoffender because the State adduced only hearsay to prove the date of his release from prison. The State did not offer a witness to establish appellant’s release date. At the original sentencing hearing, the State relied on inadmissible hearsay to establish appellant’s release date, similar to evidence that the Court ruled insufficient in Gray v. State, 910 So. 2d 867 (Fla. 1st DCA 2005), review denied 920 So. 2d 628 (Fla. 2005). Relying on Gray, appellant filed a 3.800(b) motion to correct sentencing error. At the resentencing hearing, the State relied on a “Certification of Records.” The document introduced by the State during the resentencing hearing provided:

I, Ramona  [*2]  Cox-Pye, hereby certify that I am a custodian of records of the Florida Department of Corrections…. I hereby certify the following:

a) that as part of my regular duties I maintain custody and control of the official records of the Florida Department of Corrections,

b) that the attached DC14 computer data record of Lenorris Q. Parker, DC No. N01172 consisting of 7 pages reflects entries of information that were made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person having knowledge of those matters,

c) that it is the regular practice of the Florida Department of Corrections to make, keep, and maintain the attached computer data during the course of regularly conducted business,

d) and that the attached computer data record is a true and correct copy of the original record contained in the official records of the Florida Department of Corrections maintained pursuant to Section 945.25.Computer printouts detailing his intake, assignments, disciplinary records, and 7/20/02 release date were attached.

In Gray, the document the State offered to establish the date Mr. Gray had been released from prison purported to be a Department of  [*3]  Corrections employee’s declaration or affirmation certifying that the seal in the letterhead was official, and that Mr. Gray was released on a certain date. As the panel on appeal noted,

Ms. Smith’s statement constituted hearsay, and the State proved no proper predicate for its admission under any exception to the rule excluding hearsay. The document fails to identify the official records on which it relied, if any, does not state that it is a true and correct representation of any record, and does not say where or in whose custody any original official or business records are kept. As Ms. Smith’s statement is essentially a (defective) affidavit devoid of any reference to records the DOC maintains, see Belvin v. State, 30 Fla. L. Weekly D1421, D1422, –So.2d –, –, 2005 WL 1336497 (Fla. 4th DCA June 8, 2005) (disapproving resort to “affidavits … prepared for use at a criminal prosecution”), it is less deserving of consideration than the probation officer’s testimony we held should have been excluded in the King case.Gray, 910 So. 2d at 869-870. The document introduced by the State at resentencing in the present case, however, does not suffer from the deficiencies noted with regard  [*4]  to the document at issue in Gray.

Section 90.902(11), Florida Statutes, provides:

90.902 Self-authentication.–Extrinsic evidence of authenticity as a condition precedent to admissibility is not required for:

. . .

(11) An original or a duplicate of evidence that would be admissible under s. 90.803(6), which is maintained in a foreign country or domestic location and is accompanied by a certification or declaration from the custodian of the records or another qualified person certifying or declaring that the record:

(a) Was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person having knowledge of those matters;

(b) Was kept in the course of the regularly conducted activity; and

(c) Was made as a regular practice in the course of the regularly conducted activity, provided that falsely making such a certification or declaration would subject the maker to criminal penalty under the laws of the foreign or domestic location in which the certification or declaration was signed.The affidavit attached to the records in the present case satisfied the requirements of section 90.902(11), Florida Statutes. We reject Mr. Parker’s argument  [*5]  that application of this provision, which became effective after the date of the commission of his offenses, is unconstitutional in violation of the ex post facto provision. Mr. Parker erroneously asserts that prior to enactment of section 90.902(11), the State would have been required to present a witness with personal knowledge of his release date from prison. Instead, the State would have been required to present the live testimony of a records custodian. Section 90.902(11), in the present context, does not result in a conviction based on less evidence than the law required at the time the offense was committed. We also reject Mr. Parker’s argument that the evidence presented to establish his alleged release date from prison violated his right of confrontation set forth in the Sixth Amendment to the United States Constitution. See Peterson v. State, 911 So. 2d 184 (Fla. 1st DCA 2005) (Department of Corrections records were not testimonial, and thus admission of those records to determine defendant’s status as a prison releasee reoffender (PRR) for sentencing purposes did not violate his rights under Confrontation), review denied 920 So. 2d 628 (Fla. 2005).

AFFIRMED.

BARFIELD, ALLEN,  [*6]  and HAWKES, JJ., CONCUR.

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EON G. COOPER, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-5635

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

August 31, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

PRIOR HISTORY:    [*1]

An appeal from the Circuit Court for Jackson County. William L. Wright, Judge.

DISPOSITION:  

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

COUNSEL:   Nancy A. Daniels, Public Defender, Joel Arnold and Archie F. Gardner, Jr., Assistant Public Defenders, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   KAHN, BENTON, AND VAN NORTWICK, JJ., CONCUR.

OPINION  

PER CURIAM.

Eon G. Cooper appeals an order denying his motion to correct sentencing error which was filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Cooper argues that the trial court erred in not correcting his sentence to reflect credit for time he served in the Jackson County jail and time served in the Broward County jail. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

Appellant was convicted of grand larceny in Jackson County and, on March 9, 2004, he was sentenced to five years probation, with the special condition that he serve 90 days in jail. He was given 42 days jail time credit. On March 28, 2006, the appellant was arrested in Broward County. He  [*2]  was in the custody of the Broward County jail on the new charges from March 28, 2006, until he was transferred to the Jackson County jail on September 7, 2006. The warrant for appellant’s violation of probation (VOP) in the Jackson County case was served on September 8, 2006. Because of his arrest on the new charges and other violations of the conditions of his probation, the appellant’s probation was revoked. On October 20, 2006, the circuit court imposed a fifteen-month prison sentence, with credit for 90 days jail time served. According to the jail records, the appellant was in the Jackson County jail November 5 and 6, 2003, from January 25 to April 2, 2004, and from September 7 to October 20, 2006.

The appellant appealed and filed a 3.800(b)(2) motion to correct sentencing error. In his motion, he contended that he was entitled to 115 days of credit for time served in Jackson County, instead of the 90 days reflected in the sentencing order, and that he should be given credit in the instant case for the seven months he spent in the Broward County jail. The trial court accepted the argument of the State that the appellant had been given credit for 132 days (90 days + 42 days). Accordingly,  [*3]  although the court recognized the appellant had served more than 90 days in jail, the court denied the motion, reasoning that the appellant had already received more jail time credit than he was due.

The State concedes that the appellant should be given credit for more than 90 days served and submits that the sentencing documents should correctly reflect the number of days the appellant has served in the Jackson County jail. n1 In Sinks v. State, 691 So. 2d 1202, 1204 (Fla. 4th DCA 1997), the State similarly conceded that the trial court had incorrectly calculated the amount of credit for time served and that the written statement on record did not reflect the correct total. The court directed that, on remand, the trial court should correct the written record to reflect the correct amount of credit for time spent. Id.; See also Hough v. State, 671 So. 2d 839, 840 (Fla. 2d DCA 1996) (recognizing in a similar situation that a defendant’s sentencing documents need to reflect award of unforfeited prison credit).

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We do not address the dispute between the parties whether the Jackson County jail time credit is 112 or 115 days, as the trial court never addressed this issue.
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As for the time appellant  [*4]  spent in the Broward County jail, he relies on Kendrigan v. State, 941 So. 2d 529 (Fla. 4th DCA 2006) for his contention that he is entitled to credit in this proceeding for the time served in the Broward County jail. However, Kendrigan is inapposite as it awarded credit for jail time from the date of arrest for the new offenses because the new offenses constituted the basis for revoking probation. In this case, appellant’s probation was revoked based on his arrest for new offenses and other violations of the conditions of his probation. More on point is this court’s decision in Hardenbrook v. State, 953 So. 2d 717-718 (Fla. 1st DCA 2007). There, we held that credit for jail time spent in another county must be given only when the sentences run concurrently. Here, appellant makes no argument that the Jackson County and Broward County sentences will run concurrently.

Further, appellant is not entitled to credit for time served in Broward County because the warrant for VOP was not executed until September 8, 2006. Gethers v. State, 838 So. 2d 504, 505 (Fla. 2003) (”absent the execution of an arrest warrant, a defendant who is in jail in a specific county pursuant to an arrest on one or  [*5]  more charges need not be given credit for time served in that county on charges in another county when the second county has only lodged a detainer against the defendant.”) Thus, we affirm that portion of the order on appeal.

As to the jail credit for time served in Jackson County, we reverse and remand for further proceedings. On remand, the trial court shall correct the appellant’s sentence to reflect the amount of jail time served in the Jackson County jail. Griffin v. State, 828 So. 2d 1087, 1088 (Fla. 1st DCA 2002) (stating that the trial court is required to correct a defendant’s sentence to award the full amount of jail credit earned).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

KAHN, BENTON, AND VAN NORTWICK, JJ., CONCUR.

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KEITH A. SHRUM, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-1606

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

August 31, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Marion County, Hale R. Stancil, Judge.

DISPOSITION:  

AFFIRMED in part; REVERSED in part and REMANDED.

COUNSEL:   Keith A. Shrum, Lake Butler, Pro se.

Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   TORPY, LAWSON and EVANDER, JJ., concur.

OPINION  

PER CURIAM.

Appellant challenges the summary denial of his motion to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.170(l). We affirm the summary denial in all respects except Appellant’s contention that the fine imposed was in violation of the plea agreement. The plea agreement is not in the record on appeal. n1 When we ordered that it be filed, the lower court clerk was unable to locate it. Therefore, Appellant’s contention that the fine violated the plea agreement has not been refuted by the record. On remand, the lower court is directed to conduct an evidentiary hearing on this point or attach portions of the record that conclusively refute the claim.

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Although the plea agreement is not in the record on appeal, Appellant furnished the court with what he purports to be a copy of the plea agreement. The document is not signed by a judge but does  [*2]  bear the purported signature of the assistant state attorney. Whether the document is authentic will have to be determined by the trial court on remand.
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AFFIRMED in part; REVERSED in part and REMANDED.

TORPY, LAWSON and EVANDER, JJ., concur.

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ROBERT STRICKROTH, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-2768

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

August 31, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Sarasota County; Andrew D. Owens, Jr., Judge.

DISPOSITION:  

Reversed.

COUNSEL:   Peter M. Collins, Sarasota, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   LaROSE, Judge. SALCINES and VILLANTI, JJ., Concur.

OPINION BY:   LaROSE

OPINION  

LaROSE, Judge.

Robert Strickroth appeals his conviction for cocaine possession; he pleaded no contest, reserving the right to appeal the trial court’s denial of his motion to suppress evidence. See Fla. R. App. P. 9.140(b)(2)(A)(i). The trial court sentenced Mr. Strickroth to eighteen months of probation. Because the police lacked probable cause to arrest Mr. Strickroth, we reverse.

Facts

Following the receipt of anonymous complaints over several weeks about illegal drug transactions, Sarasota Police Officer Shanafelt and several other officers set up surveillance of an apartment complex. The surveillance was an impromptu endeavor of these patrol officers. Officer Shanafelt had been a police officer for eight years. He had no formal narcotics training but had made approximately seventy-five drug arrests. Officer Shanafelt had arrested someone near the apartment complex two weeks earlier for  [*2]  possession of cocaine.

During his surveillance, Officer Shanafelt, from a distance, saw two men “counting things out in their hands.” He did not see what they were holding. Nevertheless, he interpreted this as “indicative of somebody selling rock cocaine.” From about fifty feet away, Officer Shanafelt observed what he believed were three drug transactions. The first involved an encounter between the two men and a man on a bicycle. The bicyclist left the area without incident. The second involved a pedestrian who exchanged something with the two men, then left the area. Although he did not see what was exchanged, Officer Shanafelt called a nearby patrol unit and instructed them to stop and investigate the pedestrian whom he described. Cocaine was found on the pedestrian, who described the seller to the patrol officer. Our record is silent as to whether Officer Shanafelt knew these facts when he observed the third transaction.

In the third transaction, Officer Shanafelt saw one of the two men he was watching–whom we now know matched the description given by the pedestrian in the second encounter–approach a white van with a stripe and exchange something with the driver. Again, Officer  [*3]  Shanafelt did not see what changed hands. He was confident, however, that he had seen a drug transaction. He, again, called a nearby patrol unit and directed them to stop the van.

Officer Worthington, who responded to the call, stopped the van and ordered the driver, Mr. Strickroth, to exit the vehicle. No one else was in the van. Officer Worthington’s practice was to assume that everyone she stopped was armed. Accordingly, she immediately handcuffed Mr. Strickroth. As it turned out, Mr. Strickroth was not armed and Officer Worthington had no objective information suggesting that he was armed or dangerous. Two other officers arrived promptly at the scene. They put Mr. Strickroth in their police car and searched him. They found cocaine in his pocket.

In denying Mr. Strickroth’s motion to suppress, the trial court concluded that the police had probable cause to believe that he possessed cocaine. The trial court specifically found that Mr. Strickroth was arrested when Officer Worthington ordered him out of the van and handcuffed him.

Analysis

Florida law recognizes three levels of police-citizen encounters: (1) a consensual encounter involving minimal police contact in which the citizen is  [*4]  free to leave; (2) an investigatory stop requiring “a well-founded, articulable suspicion of criminal activity”; and (3) an arrest supported by “probable cause that a crime has been or is being committed.” Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). The parties do not dispute that Officer Worthington had reasonable suspicion to conduct an investigatory stop of Mr. Strickroth. See id. at 187.

But, the trial court concluded that Mr. Strickroth was under arrest the moment Officer Worthington ordered him out of the van and immediately handcuffed him. The record supports this factual determination, and we see no legal basis to disturb the trial court’s ruling on this point. See State v. Glatzmayer, 789 So. 2d 297, 301 (Fla. 2001). Thus, we must consider whether Officer Worthington had probable cause to arrest Mr. Strickroth. We recognize that Officer Worthington acted on instructions from Officer Shanafelt. Consequently, our examination necessarily focuses on whether Officer Shanafelt had probable cause that could be imputed to Officer Worthington. n1

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“[T]he collective knowledge of police investigating a crime is imputed to each member under a rule of law often called the ‘fellow officer  [*5]  rule’ or ‘collective knowledge doctrine.’” Johnson v. State, 660 So. 2d 648, 657 (Fla. 1995); see also State v. Marrero, 890 So. 2d 1278, 1282 (Fla. 2d DCA 2005). It can involve direct communications between officers who have sufficient information and the officer who stops the suspect, or it can involve general communications among officers of whom at least one possesses the required level of suspicion. See State v. Peterson, 739 So. 2d 561, 565 (Fla. 1999).
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“[R]easonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause.” Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990); State v. Hendrex, 865 So. 2d 531, 534 (Fla. 2d DCA 2003). Probable cause to arrest, however, demands a heightened level of certainty about the suspect’s involvement in a crime. Revels v. State, 666 So. 2d 213, 215-16 (Fla. 2d DCA 1995). Factors supporting a finding of probable cause include (1) evidence of the officers’ training and experience in drug investigations; (2) well-planned and well-controlled surveillance procedures; (3) actual proof of the area’s history of drug activity; (4) detailed proof of prior drug sales immediately preceding  [*6]  the arrest; (5) prior knowledge of a suspect’s involvement in drug activity; and (6) a detailed written arrest report that confirms factual details that establish probable cause. Id. at 216-17. Based on the record before us, we conclude that Officer Shanafelt and, by extension, Officer Worthington, lacked probable cause to arrest Mr. Strickroth.

As noted earlier, Officer Shanafelt had no formal narcotics training and was participating in what can be best described as a spontaneous surveillance. Although Officer Shanafelt had made a drug arrest in the general area two weeks earlier, the surveillance was set up based on anonymous complaints. Our record does not disclose that Officer Shanafelt had any prior knowledge concerning Mr. Strickroth’s drug activity or whether the two men he was watching were known drug dealers. Significantly, we cannot say that Officer Shanafelt, at the time he observed the encounter with Mr. Strickroth, knew that the pedestrian from the second transaction had been arrested with cocaine obtained from a person whom Officer Shanafelt later saw with Mr. Strickroth. Particularly important is the fact that Officer Shanafelt did not see cash or drugs change hands in  [*7]  any of the three transactions he observed. In Revels, 666 So. 2d 213, we held that the surveilling officers had probable cause to radio a patrol officer to stop and search the defendant. Revels, however, involved experienced narcotics officers who actually saw currency exchanged for a small object. See id. at 214. That the officers saw money exchanged was “critical to our decision.” Id. at 215.

Our decision in Burnette v. State, 658 So. 2d 1170, 1171 (Fla. 2d DCA 1995), is more to the point. There, the officers saw a “hand-to-hand” transaction, but saw no money or drugs change hands. The surveilling officers radioed other officers, who stopped Mr. Burnette’s car and found cocaine. Id. Although the officers had reasonable suspicion for an investigatory stop, we held that they lacked probable cause for an arrest. Id. We come to the same conclusion here.

Based on Officer Shanafelt’s observations and directions, Officer Worthington had reasonable suspicion to conduct an investigatory stop. As the trial court correctly concluded, however, she immediately arrested Mr. Strickroth. Burnette compels us to conclude that the officers arrested Mr. Strickroth without probable cause. See id.; Cocke v. State, 889 So. 2d 132, 135 (Fla. 4th DCA 2004);  [*8]  Johnson v. State, 813 So. 2d 1027, 1028 (Fla. 3d DCA 2002) (holding that handcuffing temporary detainee was improper where not reasonably justified by threat to officer’s safety or suspect’s attempt to flee). Consequently, the trial court should have granted the motion to suppress. Mr. Strickroth’s conviction cannot stand.

Reversed.

SALCINES and VILLANTI, JJ., Concur.

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CURTIS LARON ROUSE, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-414 and 5D06-468

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

August 31, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Orange County, Jeffrey M. Fleming, Judge.

DISPOSITION:  

AFFIRMED.

COUNSEL:   Rudolph C. Campbell, Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   ORFINGER, J. GRIFFIN and TORPY, JJ., concur.

OPINION BY:   ORFINGER

OPINION  

ORFINGER, J.

Curtis L. Rouse appeals a sentencing order entered following a resentencing proceeding conducted pursuant to Heggs v. State, 759 So. 2d 620 (Fla. 2000). On appeal, he contends that the trial court erred by including victim injury points on his sentencing guidelines scoresheet contrary to the holdings of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We disagree and affirm.

Following a jury trial, Mr. Rouse was convicted of second-degree murder, resulting from an incident that occurred in December 1996. In a special finding, the jury found that Mr. Rouse used a firearm in the commission of the crime. At his initial sentencing, a 1995 guidelines scoresheet was utilized, which included points for victim injury. Pursuant to Heggs, Mr. Rouse was resentenced using a 1994 sentencing guidelines scoresheet, which again included victim injury  [*2]  points. Unlike the earlier 1995 scoresheet, points were also added for a prior offense. Mr. Rouse then filed a timely notice of appeal. While this appeal was pending, he filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The motion alleged that the trial court erred by including points for a prior offense. Relying on Isaac v. State, 911 So. 2d 813 (Fla. 1st DCA 2005), Mr. Rouse also argued that the holding of Apprendi should have applied to his resentencing, thus, precluding the inclusion of any victim injury points, as no jury finding was made on that issue. The trial court found that the points for his prior offense were appropriate and denied his Apprendi claim, relying on this Court’s opinion in Langford v. State, 929 So. 2d 598 (Fla. 5th DCA 2006).

Mr. Rouse contends that because the jury made no finding of victim injury, the trial court’s inclusion of victim injury points on his sentencing scoresheet violated his Sixth Amendment right to have all facts increasing his sentence beyond the statutory maximum found by a jury, as explained in Apprendi, and clarified by Blakely. Apprendi instructs that any facts supporting the imposition of  [*3]  a sentence beyond the statutory maximum must be found beyond a reasonable doubt by a jury or admitted by the defendant. 530 U.S. at 490. Blakely clarified that the “statutory maximum” is “not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” 542 U.S. at 303-04.

Mr. Rouse’s challenge can be successful only if Apprendi and Blakely applied to his 2006 resentencing resulting from his 1999 conviction, and cites the First District’s decision in Isaac to support his contention. However, he acknowledges this Court’s decision in Langford is contrary to his position. In Langford, we held that Apprendi and Blakely do not apply to cases, such as this one, when the conviction became final before Apprendi was decided, even though resentencing took place post-Apprendi due to a scoresheet error. Langford, 929 So. 2d at 600. In so holding, we aligned ourselves with the Second, Third and Fourth District Courts of Appeal, and certified conflict with Isaac. See, e.g., Thomas v. State, 914 So. 2d 27 (Fla. 4th DCA 2005); Galindez v. State, 910 So. 2d 284 (Fla. 3d DCA 2005), affirmed but criticized, 955 So. 2d 517 (Fla. 2007);  [*4]  Burrows v. State, 890 So. 2d 286 (Fla. 2d DCA 2004), review denied, 914 So. 2d 952 (Fla. 2005).

Even if Apprendi does apply, we must perform a harmless error analysis. See Galindez v. State, 955 So. 2d 517 (Fla. 2007). Under a harmless error analysis, we must determine if the record “demonstrates beyond a reasonable doubt that a rational jury” would have found victim injury. Id. at 523. On this record, we easily conclude that any error in not having a jury make the finding needed to assess victim injury points on the scoresheet for second degree murder was harmless. The jury’s verdict demonstrates beyond a reasonable doubt that it concluded that Mr. Rouse injured the victim, resulting in the victim’s death. Consequently, the inclusion of victim injury points on the scoresheet, regardless of the retroactivity of Apprendi and Blakely, was harmless. As a result, we need not certify conflict with Isaac.

Finding no merit in Mr. Rouse’s remaining claim, we affirm the trial court’s judgment.

AFFIRMED.

GRIFFIN and TORPY, JJ., concur.

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