State of Florida v. Herbert Leon Manago, Jr.

Supreme Court of Florida
____________

No. SC2021-1047
____________

STATE OF FLORIDA,
Petitioner,

vs.

HERBERT LEON MANAGO, JR.,
Respondent.

November 30, 2023

COURIEL, J.

It is “the historic role of the jury” to stand as “an intermediary

between the State and criminal defendants.” Alleyne v. United

States, 570 U.S. 99, 114 (2013). For this reason, while a trial court

has broad discretion to sentence a person convicted of a crime to a

term of incarceration within the range authorized by law, the Sixth

Amendment requires that, when a fact other than the existence of a

prior conviction “aggravates the legally prescribed range of allowable

sentences, it constitutes an element of a separate, aggravated

offense that must be found by the jury,” if not admitted by the
defendant, “regardless of what sentence the defendant might have

received if a different range had been applicable.” Id. at 115.

We have said that when a trial court breaks this rule by

making a decision constitutionally reserved to a jury (and commits

Alleyne error), it is the job of a reviewing court to decide whether

the resulting violation of the defendant’s right to a fair trial was

harmful. Williams v. State, 242 So. 3d 280, 290 (Fla. 2018).

In this case, the trial court made an Alleyne error, then

compounded its mistake by purporting to review its own decision to

determine whether the Alleyne error was harmful—a task that

resides with a reviewing court. On appeal, the Fifth District Court

of Appeal found harmful error and, citing our decision in Williams,

held that the only available remedy under the circumstances was to

remand the case with instructions to resentence the defendant

under a different statutory provision: one that carried a lesser

penalty. Manago v. State, 317 So. 3d 1192 (Fla. 5th DCA 2021). In

doing so, it certified conflict with Green v. State, 314 So. 3d 611

(Fla. 3d DCA 2020), 1 on a narrow question: whether on remand, as

1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

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an alternative to resentencing under the statute with the lesser

penalty, the trial court could instead empanel a jury to make the

factual determination that would have permitted the court to

sentence the defendant under the statutory provision with a

harsher penalty.

On that narrow question, we find that the Third District Court

of Appeal’s decision in Green more faithfully applies Alleyne’s

command than the Fifth District’s decision in this case. Thus,

while we agree with the Fifth District that the trial court committed

harmful Alleyne error, we quash its decision to the extent it directed

that only resentencing would be an appropriate remedy. In doing

so, we recede from Williams’s rejection of the most natural remedy

for a trial court’s having erroneously taken from a jury a decision

that a jury alone should make: giving it back.

I

Herbert Leon Manago, Jr., was seventeen when he and three

others—Adrian Nelson, Tamonta Sampson, and Ronald Brown—

carjacked a vehicle and shot its driver.

On the night of the incident, the group had pulled into a

Burger King parking lot in Nelson’s car. In an adjacent vehicle, a

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Ford Crown Victoria, sat Donell King, Ronald King, Mandy Gaddis,

and Amanda Johnson. Manago and the others in Nelson’s car

decided to steal the Ford.

Nelson and Sampson testified at Manago’s trial that Sampson

was in the driver’s seat of Nelson’s car while Nelson, Manago, and

Brown stood behind the car, planning their next move. At this

point, Nelson testified, Manago “indicated” to the group that he had

a gun in his waistband by patting his hip; Nelson did not actually

see a weapon. 2

When Ronald King exited the Ford and went into the Burger

King, an individual from Manago’s group waited for him to

return. Once he did, that individual approached Ronald King with

a gun and forced him inside Nelson’s car. Nelson testified that he

saw Manago hold Ronald King at gunpoint. And Sampson testified

that he saw Manago force Ronald King into Nelson’s car. Ronald

King, however, initially described whoever approached him at

gunpoint as “a short guy,” no taller than 5’7”—a description that

2. Ronald King initially told police that he remembered seeing
a second gun in the lap of the person sitting in the driver seat of
Nelson’s car, but he later recanted, telling police that he was
mistaken.

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does not match Manago, who stood around 6’2” at the time of the

shooting. Otherwise, Ronald King could not provide a positive

identification.

Meanwhile, Nelson walked over to the Ford and sat in the

driver’s seat. Gaddis bolted from the car as another individual

removed Johnson from the front passenger’s seat. Johnson first

identified Sampson as the person who pulled her from the car, then

later insisted that it was Brown. Sampson, however, testified that

Brown stood behind Nelson’s car while he remained in the driver’s

seat of Nelson’s car throughout the incident.

Nelson then tried to drive off in the Ford. But Donell King, still

sitting in the back seat, grabbed Nelson from behind. Another

individual joined the struggle. Sampson testified that he saw

Manago get into the back seat of the Ford. Nelson testified that he

“saw a glimpse” of Brown in the back seat of the Ford during the

struggle. And Ronald King testified that, although he saw whoever

had approached him at gunpoint “approach[] the back seat” of the

Ford, he never saw that individual get into the back seat.

The struggle between the three ended with a gunshot to Donell

King’s neck, killing him. Just after the gun fired, Nelson took off in

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the Ford as Donell King lay on the parking lot pavement. But

Nelson’s getaway was brief; police apprehended him later that night.

A test for gun residue on Nelson’s hands came back negative. He

cooperated with law enforcement. Subsequently, in exchange for

his testimony against Manago, Nelson’s charge was reduced to

second-degree murder.

Sampson, Brown, and Manago fled the crime scene on foot.

Ronald King raced after whoever had approached him at gunpoint

through an alleyway behind Burger King until the individual

escaped, jumping over the wall. A nearby law enforcement officer,

Deputy Zufelt, testified that he spotted “two to three” people run

into that same alleyway. Once Ronald King returned to the crime

scene, he and Gaddis informed another law enforcement officer that

Nelson was the shooter.

Sampson, Brown, and Manago regrouped at a hotel nearby.

During their meeting, Sampson later testified, Manago admitted

that he pulled the trigger and hid the murder weapon in the

alleyway behind the Burger King. Sally Sampson—Sampson’s

mother and Nelson’s aunt—similarly testified that she heard

Manago talking about hiding the gun after the shooting, which

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motivated her to call the police and tell them where to find the

weapon. Tamonta Sampson also testified that he overheard

Manago’s phone call with his mother, Latasha Mitchell, in which he

said he had shot someone and needed her to come pick him up.

Mitchell, however, disputed that account.

The State charged Manago, Brown, and Sampson with first-

degree felony murder and carjacking with a firearm. Though the

State presented evidence at trial that Manago was the shooter, it

explained to the jury that Manago could be found guilty either as

the shooter who killed the victim or as a principal to the crime. 3 At

the State’s request, the jury was instructed that Manago could be

found guilty of first-degree felony murder under either theory:

To prove the crime of First Degree Felony Murder
against Herbert Manago, the State must prove the
following three elements beyond a reasonable doubt:

3. At the time of the trial, the jury did not need to determine
whether Manago was the shooter to convict him as charged, so long
as it found that the victim was shot and killed during the
carjacking. Under the statute at issue here, a life sentence without
parole always followed a first-degree murder conviction. Whether
Manago “actually killed” the victim became significant for
sentencing purposes only with the retroactive application of section
775.082(1)(b), Florida Statutes (2014), as part of the State’s revised
juvenile sentencing scheme. See Horsley v. State, 160 So. 3d 393
(Fla. 2015).

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...

3. Herbert Manago was the person who
actually killed Donnell King;

or

Donnell King was killed by a person other
than Herbert Manago; but both Herbert
Manago and the person who killed Donnell
King were principals in the commission of
Carjacking.

In order to convict of First Degree Felony Murder, it
is not necessary for the State to prove that the defendant
had a premeditated design or intent to kill.

The jury convicted Manago of carjacking with a firearm and

first-degree felony murder. The verdict form did not specify whether

Manago was the shooter, nor under which theory the jury convicted

him for first-degree felony murder; it stated only that the jury found

Manago guilty of first-degree felony murder and carjacking “as

charged in the Indictment.” The trial court sentenced Manago to

mandatory life in prison without the possibility of parole and a

concurrent thirty-year prison sentence for carjacking with a

firearm.

While Manago was serving his sentence, the United States

Supreme Court decided in Graham v. Florida that it is a violation of

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the Eighth Amendment’s prohibition on cruel and unusual

punishment for a juvenile offender convicted of a non-homicide

crime to receive a life sentence without the possibility of parole.

560 U.S. 48, 82 (2010). It explained that states are “not required to

guarantee eventual freedom” to juvenile non-homicide offenders but

must, at the least, impose a sentence that provides “some

meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.” Id. at 75. Soon after, the U.S.

Supreme Court extended its Graham holding in Miller v. Alabama to

bar sentencing schemes that mandated life without the possibility

of parole for juveniles convicted of homicide offenses. 567 U.S. 460,

479 (2012).

The Florida Legislature then revised its juvenile sentencing

scheme to bring it “into compliance with the [U.S.] Supreme Court’s

recent Eighth Amendment juvenile sentencing jurisprudence.”

Horsley v. State, 160 So. 3d 393, 394 (Fla. 2015). As part of this

update, the Legislature amended section 775.082(1), Florida

Statutes, to provide, in pertinent part:

(b)1. A person who actually killed, intended to kill, or
attempted to kill the victim and who is convicted under s.
782.04 of a capital felony, or an offense that was

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reclassified as a capital felony, which was committed
before the person attained 18 years of age shall be
punished by a term of imprisonment for life if, after a
sentencing hearing conducted by the court in accordance
with s. 921.1401, the court finds that life imprisonment
is an appropriate sentence. If the court finds that life
imprisonment is not an appropriate sentence, such
person shall be punished by a term of imprisonment of at
least 40 years. A person sentenced pursuant to this
subparagraph is entitled to a review of his or her
sentence in accordance with s. 921.1402(2)(a).

2. A person who did not actually kill, intend to kill, or
attempt to kill the victim and who is convicted under s.
782.04 of a capital felony, or an offense that was
reclassified as a capital felony, which was committed
before the person attained 18 years of age may be
punished by a term of imprisonment for life or by a term
of years equal to life if, after a sentencing hearing
conducted by the court in accordance with s. 921.1401,
the court finds that life imprisonment is an appropriate
sentence. A person who is sentenced to a term of
imprisonment of more than 15 years is entitled to a
review of his or her sentence in accordance with s.
921.1402(2)(c).

Ch. 2014–220, § 1, Laws of Fla. Alongside these changes, the

Legislature also created section 921.1402, Florida Statutes, which

provides, in pertinent part:

(2)(a) A juvenile offender sentenced under s.
775.082(1)(b)1. is entitled to a review of his or her
sentence after 25 years [unless the juvenile offender has
previously been convicted of certain enumerated offenses
that were part of a separate criminal transaction or
episode].

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...

(c) A juvenile offender sentenced to a term of more than
15 years under s. 775.082(1)(b)2., s. 775.082(3)(a)5.b., or
s. 775.082(3)(b)2.b. is entitled to a review of his or her
sentence after 15 years.

Ch. 2014–220, § 3, Laws of Fla.

Together, these statutes set new sentencing parameters for

juvenile capital felony offenders while eliminating mandatory life

sentences without the possibility of parole. Under the new

sentencing scheme, juvenile capital felony offenders may still

receive a term of life imprisonment. But if a defendant “actually

kill[s]” a victim and is sentenced under section 775.082(1)(b)1., the

mandatory minimum sentence is forty years, with review required

after twenty-five years. And if the defendant did not “actually kill”

the victim and is sentenced instead under section 775.082(1)(b)2.,

there is no mandatory minimum sentence, with review required

after fifteen years.

Manago sought resentencing under the new sentencing

scheme, arguing that his original juvenile sentence of life without

the possibility of parole was unlawful following Miller. The State

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agreed, and the trial court granted Manago’s request. The parties

disagreed, however, about which sentencing provision applied.

Manago argued he should be resentenced under section

775.082(1)(b)2., Florida Statutes (2016), because the jury never

found beyond a reasonable doubt that he “actually kill[ed] . . . the

victim.” The trial court had used a verdict form asking only

whether Manago was guilty “as charged in the Indictment.” At the

time, Manago’s first-degree felony murder conviction and sentence

did not turn on whether he was actually the shooter—the jury only

had to determine that the victim was shot and killed during the

carjacking. Thus, absent a jury finding that he was the shooter,

Manago argued, he should be resentenced under section

775.082(1)(b)2., which applied to juvenile capital felony offenders

“who did not actually kill . . . the victim.”

For support, Manago cited our decision in Williams, where we

held—following Apprendi v. New Jersey, 530 U.S. 466, 476 (2000),

and its progeny 4—that a defendant sentenced under section

4. In Apprendi, the U.S. Supreme Court held that the Sixth
Amendment requires, “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and

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775.082(1)(b) has a right to have a jury determine whether the

defendant “actually killed, intended to kill, or attempted to kill the

victim.” 242 So. 3d at 294. So Manago requested that the trial

court resentence him under 775.082(1)(b)2., which carries a lesser

penalty.

The State, on the other hand, urged the trial court to

determine that “the jury would have found [Manago] to be the

actual killer” and sentence him instead under section

775.082(1)(b)1. It argued that when there is no jury finding that

the defendant “actually killed” the victim, Williams tasks the trial

court with determining “whether the absence of such a finding was

harmless.” And on the record before the trial court, the State

asserted, the Alleyne violation was indeed harmless because “a

rational jury would have found that [Manago] actually killed the

victim.”

proved beyond a reasonable doubt.” 530 U.S. at 490. The Court
later extended this Sixth Amendment principle to include
mandatory minimum sentences in Alleyne, explaining that “[f]acts
that increase the mandatory minimum sentence are . . . elements
and must be submitted to the jury and found beyond a reasonable
doubt.” 570 U.S. at 108.

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The trial court agreed with the State and sentenced Manago

under section 775.082(1)(b)1. Recognizing that section

775.082(1)(b)1. requires a jury to find beyond a reasonable doubt

that the juvenile “actually killed, intended to kill, or attempted to

kill the victim,” the court concluded that the case “lack[ed] an

adequate jury finding.” Even so, it decided that a sentence under

section 775.082(1)(b)1. was proper because “the record

demonstrates beyond a reasonable doubt that a rational jury would

have found [Manago] actually killed the victim.” In other words, the

trial court determined that Manago was eligible for resentencing

under section 775.082(1)(b)1. because it reviewed its own Alleyne

violation and found it harmless. After considering “all of [the

section 921.1401] factors,” the court imposed a life sentence for

Manago’s first-degree murder conviction and a concurrent thirty

years for his carjacking conviction.

Manago appealed, and the Fifth District vacated his sentence.

The court held that the “resentencing court erred in conducting a

harmless error analysis to excuse its own concurrent Alleyne

violation.” Manago, 317 So. 3d at 1194. It explained that “even if

the error could be considered harmless . . . it is not appropriate for

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a [trial] court to commit error simply because it might be found to

be harmless.” Id. (alteration in original) (quoting United States v.

Salery, 119 F. Supp. 2d 1268, 1272 n.3 (M.D. Ala. 2000)).

Having found reversible error, the Fifth District turned to the

proper remedy. Under similar circumstances in Green, the Third

District had remanded for resentencing under section

775.082(1)(b)2. while also providing the State with the option to

empanel a jury on remand to find the missing facts. See 314 So. 3d

at 616. But, said the Fifth District, this Court in Williams, 242 So.

3d at 292-93, “specifically considered and rejected the option of

empaneling a new jury to make the requisite findings, and clearly

chose resentencing [under] section 775.082(1)(b)2. as the sole

remedy on remand.” Manago, 317 So. 3d at 1195. So the Fifth

District remanded with instructions to resentence Manago under

section 775.082(1)(b)2. and certified direct conflict with the Third

District’s decision in Green. Id.

The State moved for rehearing, arguing that the Fifth District

failed to conduct a harmless error review of the trial court’s Alleyne

violation. According to the State, the Fifth District wrongly

concluded that, once the trial court had determined that it lacked

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the requisite factual findings to resentence Manago under section

775.082(1)(b)1., the only action the trial court could take was to

resentence Manago under section 775.082(1)(b)2. But the district

court disagreed:

[W]e already conducted a harmless error review, as
required by section 924.33, Florida Statutes (2020), but
we decline to use the analysis from Green because our
case does not involve traditional Alleyne error. . . . The
issue, and thus the error, presented to us in this case
was whether the resentencing court erred in conducting
a harmless error analysis to excuse its own concurrent
Alleyne violation.

Manago, 317 So. 3d at 1195. And because the district court could

not conclude the error was harmless beyond a reasonable doubt, it

denied rehearing.

The State then sought review in this Court, challenging the

Fifth District’s alleged failure to (1) consider whether the trial

court’s Alleyne error was harmless and (2) provide the State with

the option on remand to empanel a jury to make the required

factual finding to support a sentence under section 775.082(1)(b)1.

II

The trial court committed harmful Alleyne error.

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A

Any “element of a separate, aggravated offense” that may

increase a defendant’s sentence “must be found by the jury,

regardless of what sentence the defendant might have received if a

different range had been applicable.” Alleyne, 570 U.S. at 115.

“[T]he essential Sixth Amendment inquiry is whether a fact is an

element of the crime. When a finding of fact alters the legally

prescribed punishment so as to aggravate it, the fact necessarily

forms a constituent part of a new offense and must be submitted to

the jury.” Id. at 114-15; see also Blakely v. Washington, 542 U.S.

296, 304 (2004) (“When a judge inflicts punishment that the jury’s

verdict alone does not allow, the jury has not found all the facts

‘which the law makes essential to the punishment,’ and the judge

exceeds his proper authority.” (citation omitted) (quoting 1 J.

Bishop, Criminal Procedure § 87, at 55 (2d ed. 1872))); Apprendi,

530 U.S. at 490 (“Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.”).

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An error is subject to harmless error review unless it “always

vitiate[s] the right to a fair trial and therefore [is] always harmful.”

Davis v. State, 347 So. 3d 315, 323 (Fla. 2022) (quoting State v.

Schopp, 653 So. 2d 1016, 1020 (Fla. 1995)). We reasoned in

Williams that Alleyne errors could be harmless because the U.S.

Supreme Court held, in Washington v. Recuenco, 548 U.S. 212,

221-22 (2006), that errors of a similar kind were harmless. 242 So.

3d at 290; see also Galindez v. State, 955 So. 2d 517, 522-23 (Fla.

2007) (“[T]o the extent some of our pre-Apprendi decisions may

suggest that the failure to submit factual issues to the jury is not

subject to harmless error analysis, Recuenco has superseded

them.”). The trial court in Recuenco had committed

Apprendi/Blakely error5 by imposing a mandatory statutory

sentencing enhancement without a jury finding on the necessary

aggravating element; the U.S. Supreme Court said that the failure

to instruct on an element of the offense was generally subject to

5. An Apprendi/Blakely error occurs when a judge, rather
than a jury, finds a fact that increases the statutory maximum
sentence; an Alleyne error occurs if that fact instead increases the
mandatory minimum sentence. See United States v. Haymond, 139
S. Ct. 2369, 2378-79 (2019).

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harmless error review. Recuenco, 548 U.S. at 221-22. Even though

Recuenco did not directly address the standard of review for Alleyne

errors (the Court considered only the Apprendi/Blakely error then

before it), we noted in Williams, 242 So. 3d at 290, that the two

errors stem from the same constitutional principle: “[a]ny fact that,

by law, increases the penalty for a crime is an ‘element’ that must

be submitted to the jury and found beyond a reasonable

doubt.” Alleyne, 570 U.S. at 103 (citing Apprendi, 530 U.S. at 483

n.10). Accordingly, we concluded that Alleyne violations, like

Apprendi/Blakely errors, “can be harmless as well” and are

therefore subject to harmless error review. Williams, 242 So. 3d at

290, 294.

Our harmless error rule is codified in section 924.33, Florida

Statutes (2020):

No judgment shall be reversed unless the appellate court
is of the opinion, after an examination of all the appeal
papers, that error was committed that injuriously
affected the substantial rights of the appellant. It shall
not be presumed that error injuriously affected the
substantial rights of the appellant.[6]

6. In State v. DiGuilio, this Court, considering the harmless
error standard, explained:

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We recently said the test for harmless error focuses on the effect of

the error on the trier of fact and “places the burden on the state, as

the beneficiary of the error, to prove beyond a reasonable doubt that

the error complained of did not contribute to the verdict or,

alternatively stated, that there is no reasonable possibility that the

error contributed to the conviction.” Davis, 347 So. 3d at 323

(quoting DiGuilio, 491 So. 2d at 1135). That is, unless the reviewing

court can say that there is “no reasonable possibility” that the error

affected the verdict, the error is harmful. Id. (quoting DiGuilio, 491

So. 2d at 1135).

In Williams, this Court considered whether a trial court’s

Alleyne error concerning section 775.082(1)(b), the same provision

Section 924.33 respects the constitutional right to a fair
trial free of harmful error but directs appellate courts not
to apply a standard of review which requires that trials
be free of harmless errors. . . . Contraposed to this
legislative authority, the courts may establish the rule
that certain errors always violate the right to a fair trial
and are, thus, per se reversible. To do so, however, we
are obligated to perform a reasoned analysis which shows
that this is true, and that, for constitutional reasons, we
must override the legislative decision.

491 So. 2d 1129, 1134 (Fla. 1986) (footnote omitted).

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at issue here, was harmless. We explained that “the applicable

question in evaluating whether an Alleyne violation is harmful with

respect to section 775.082(1)(b) is whether the failure to have the

jury make the finding as to whether a juvenile offender actually

killed, intended to kill, or attempted to kill the victim contributed to

his sentence.” Williams, 242 So. 3d at 290. In other words, a court

must assess “whether the record demonstrates beyond a reasonable

doubt that a rational jury would have found the juvenile offender

actually killed, intended to kill, or attempted to kill the victim.” Id.

B

We cannot say beyond a reasonable doubt that a rational jury

would have found that Manago “actually killed, intended to kill, or

attempted to kill” the victim in this case.

Courts have looked to the weight of the evidence in the record,

including credibility concerns, and any conflicting evidence when

reviewing Alleyne violations for harmless error in cases involving

section 775.082(1)(b). 7 And here, the record includes several

7. Compare Williams, 242 So. 3d at 291-92 (error not
harmless beyond a reasonable doubt where (1) the defendant
disputed both that he killed victim and that he willingly participated
in the murder; (2) the record contained “sharply conflicting

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evidence”; and (3) an important state witness, whose testimony
implicated the defendant as both an active participant in planning
the felonious conduct and the actual killer, was a jailhouse
informant who had impeachable motives, receiving a reduced
sentence in exchange for his testimony), Green, 314 So. 3d at 615
(error not harmless beyond a reasonable doubt where (1) “[t]he
evidence presented at trial involved two competing narratives, the
resolution of which required a credibility determination”; (2) the
State’s main witness, who testified that the defendant “on several
occasions” admitted to killing the victim, had impeachable motives,
receiving a reward for his testimony; and (3) the defendant never
admitted to actually killing or intending to kill the victim to law
enforcement, though he admitted to other elements of the crimes
with which he was charged), Romero v. State, 315 So. 3d 1245,
1251-52 (Fla. 1st DCA 2021) (error not harmless beyond a
reasonable doubt where (1) much of the evidence of the defendant’s
wrongdoing and statements came from codefendants that had
impeachable motives—including familial bias and incentive to
testify in exchange for a lesser charge while awaiting sentencing; (2)
evidence placed both the defendant and other codefendants close to
the victim at the time of the attack; and (3) there was no evidence
that the defendant admitted he planned to kill the victim), and
O’Neal v. State, 298 So. 3d 77, 83 (Fla. 4th DCA 2020) (error not
harmless beyond a reasonable doubt where a key witness provided
contradictory identifications, first identifying a codefendant as the
shooter but later identifying the defendant instead), with Brown v.
State, 277 So. 3d 616, 621 (Fla. 3d DCA 2018) (harmless error
where (1) the defendant told detectives he was the only one armed
with a .38 caliber handgun and that he fired the handgun and (2)
“undisputed physical evidence” provided that at least one of the
four shots fired from Brown’s gun struck the victim’s chest), and
Colon v. State, 291 So. 3d 643, 647-48 (Fla. 5th DCA 2020)
(harmless error where (1) the defendant confessed to several
witnesses and law enforcement that he shot the victim; (2) the
defendant was in possession of the murder weapon when arrested;
and (3) the record lacked competent evidence that anyone else was
present at the time of the murder).

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instances of conflicting evidence and contradictory identifications

from key witnesses, some with substantial credibility concerns. On

those facts, given the lack of direct evidence that Manago was the

shooter, we cannot say beyond a reasonable doubt that any rational

jury would find that he actually killed, intended to kill, or attempted

to kill the victim.

Other than the statements by Manago to which Sally and

Tamonta Sampson testified, the State presented no direct evidence

that placed Manago inside the Ford around the time of the

shooting. Police found none of his fingerprints or hair follicles in

the car. When police presented Manago in a photo lineup to the

carjacking victims, none identified Manago as even having been at

the crime scene.

Witnesses Johnson, Gaddis, and Ronald King had conflicting

testimony about the exact whereabouts of codefendants Sampson,

Brown, and Manago around the time of the shooting. Johnson first

identified Sampson as the person who removed her from the front

passenger seat of the Ford. Later, however, Johnson retracted that

statement and claimed that it was Brown who had taken her from

the car. Gaddis, after first telling law enforcement that Nelson was

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the shooter, changed her mind and identified Sampson. Sampson

testified that Brown stood behind Nelson’s car throughout the

incident. But Johnson testified that Brown had removed her from

the Ford—though she first identified Sampson as the person who

had done so. And Nelson testified that while he was in the driver’s

seat of the Ford, he “saw a glimpse” of Brown on the back

passenger side of the car. Sampson, for his part, testified that he

saw Manago get into the back seat of the Ford. And Ronald King

testified that, while he saw whoever had approached him at

gunpoint “approach[] the back seat” of the Ford, he did not see that

individual get into the back seat.

Additionally, the State’s evidence linking Manago to the

murder weapon implicates his codefendants. Deputy Zufelt testified

that “two to three” people—at least including Manago and Brown—

ran from the crime scene into the alleyway behind Burger King,

where police found the murder weapon. Brown was out of Deputy

Zufelt’s sight for about five seconds before being apprehended—

enough time, a rational jury might conclude, for him, and not

Manago, to have hidden the gun.

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The record is also inconclusive as to whether Manago admitted

to shooting the victim. We know Manago never admitted it to law

enforcement. Tamonta Sampson testified that Manago admitted it

to him. But on this and other matters, the jury could have rejected,

or accepted only in part, the testimony of Manago’s codefendants

Sampson and Nelson, who had an incentive to downplay their

culpability. There was, for example, conflicting testimony about

what Manago told his mother when he called her for a ride home. A

rational jury could credit Latasha Mitchell’s testimony—that her

son never said anything about a shooting that night—over the

testimony of codefendant Tamonta Sampson.8

It is true that the jury found Manago guilty of carjacking with

a firearm. But Manago could have been convicted of carjacking

with a deadly weapon as a principal even if the jury did not believe

he personally possessed a gun. See Lopez v. State, 833 So. 2d 283,

284 (Fla. 5th DCA 2002) (“The law of principals allows Lopez to be

convicted of [carjacking with a firearm and robbery with a firearm]

8. Tamonta’s mother, Sally Sampson, is the only witness who
corroborated her son’s account, testifying that she overheard
Manago talking about where he hid the gun.

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regardless of whether he personally possessed a firearm . . . .”). In

fact, the State, in its closing argument, emphasized that “intent that

a carjacking occur[s]” was sufficient under the principal theory for

the jury to convict Manago of first-degree felony murder. See

Williams, 242 So. 3d at 292 (holding that intent to commit the

underlying felony for felony murder does not “equal intent to kill”).

And the jury was instructed that “to convict of First Degree Felony

Murder, it is not necessary for the State to prove that the defendant

had a premeditated design or intent to kill.”

If the jury determined Manago had carried a gun that night,

that finding might still fall short of proving beyond a reasonable

doubt that Manago was the shooter for a few reasons. First, there

is evidence of another gun at the crime scene: Ronald King first told

police that he remembered seeing it in the lap of the person sitting

in the driver’s seat of Nelson’s car, and police in fact recovered

another gun near the hotel where Manago, Sampson, and Brown

regrouped following the shooting. Second, Ronald King, when

shown the murder weapon, could not identify it with certainty as

the same gun used to force him inside Nelson’s car. And third, if

Manago was indeed the individual who forced Ronald King into

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Nelson’s car at gunpoint, it is unclear whether he still would have

possessed the gun at the time of the shooting.

Based on the record before us, we cannot conclude beyond a

reasonable doubt that a rational jury would have found that

Manago actually killed, intended to kill, or attempted to kill the

victim. See Green, 314 So. at 615 (“The evidence presented at trial

involved two competing narratives, the resolution of which required

a credibility determination best suited for the jury and not judicial

factfinding.”).

III

We come to the remedy. Manago insists the Fifth District got

it right, remanding the case with instructions to conduct a de novo

resentencing for his conviction of first-degree felony murder under

section 775.082(1)(b)2. After all, that is precisely what Williams

prescribes: “Where the error cannot be deemed harmless, the

proper remedy is to resentence the juvenile offender pursuant to

section 775.082(1)(b)2. . . . .” 242 So. 3d at 282.

That pronouncement, however, is an odd fit with our central

holding in Williams: that Alleyne requires a jury to make the

necessary factual finding under section 775.082(1)(b). As the Third

- 27 -
District correctly decided in Green, our answer to the certified

question in Williams 9 does not foreclose the conclusion that where

“[t]he evidence presented at trial involved two competing

narratives,” its resolution on remand may “require[] a credibility

determination best suited for the jury and not judicial factfinding.”

314 So. 3d at 615.

To deny the trial court recourse to a jury on remand would in

fact deviate from the core teaching of Alleyne, which is that a

factual finding like the one at issue here “must be submitted to the

jury and found beyond a reasonable doubt.” 570 U.S. at 108; see

Apprendi, 530 U.S. at 477 (“[T]rial by jury has been understood to

require that ‘the truth of every accusation, whether preferred in the

shape of indictment, information, or appeal, should afterwards be

9. That question was:

DOES ALLEYNE V. UNITED STATES, 570 U.S. 99, 133
S. Ct. 2151, 186 L. Ed. 2d 314 (2013), REQUIRE THE
JURY AND NOT THE TRIAL COURT TO MAKE THE
FACTUAL FINDING UNDER SECTION 775.082(1)(b),
FLORIDA STATUTES (2016), AS TO WHETHER A
JUVENILE OFFENDER ACTUALLY KILLED, INTENDED
TO KILL, OR ATTEMPTED TO KILL THE VICTIM?

242 So. 3d at 282.

- 28 -
confirmed by the unanimous suffrage of twelve of [the defendant’s]

equals and neighbours . . . .’ ” (alteration in original) (quoting 4 W.

Blackstone, Commentaries on the Laws of England 343 (1769))).

Precluding jury consideration of this question at resentencing has

the effect of making a judicial finding about the facts, regardless of

the evidence. It trespasses on a “fundamental reservation of power

in our constitutional structure”: the role of the jury as factfinder.

Blakely, 542 U.S. at 306 (“Just as suffrage ensures the people’s

ultimate control in the legislative and executive branches, jury trial

is meant to ensure their control in the judiciary.” (citing Letter from

Thomas Jefferson to the Abbe Arnoux (July 19, 1789), reprinted in

15 Papers of Thomas Jefferson 282, 283 (J. Boyd ed. 1958) (“Were I

called upon to decide whether the people had best be omitted in the

Legislative or Judiciary department, I would say it is better to leave

them out of the Legislative”))).

Adherence in all cases to the remedy we prescribed in Williams

would also transgress “the general rule ‘that a resentencing must

proceed “as an entirely new proceeding.” ’ ” Williams, 242 So. 3d at

294 (Canady, J., concurring in part and dissenting in part) (quoting

State v. Collins, 985 So. 2d 985, 989 (Fla. 2008)). We have

- 29 -
otherwise consistently maintained that “resentencing should

proceed de novo on all issues bearing on the proper sentence,”

Morton v. State, 789 So. 2d 324, 334 (Fla. 2001) (quoting Teffeteller

v. State, 495 So. 2d 744, 745 (Fla. 1986)), and remanded

accordingly, see Hurst v. State, 202 So. 3d 40, 45 (Fla. 2016)

(remanding for a new penalty phase proceeding after concluding

that sentencing error was not harmless beyond a reasonable doubt),

receded from in part by State v. Poole, 297 So. 3d 487 (Fla. 2020);

Gaymon v. State, 288 So. 3d 1087, 1093 (Fla. 2020) (remanding

with instruction for a jury to make the required determination

“complies with the de novo nature of sentencing proceedings, and

fulfills the Legislature’s clear purpose”).

Our conclusion comports with the text of section

775.082(1)(b). Under both relevant subsections, a jury finding is

presupposed: sentencing according to subsection (b)1. requires a

finding 10 that the defendant “actually killed, intended to kill, or

10. We presume that the Legislature is aware of the law,
including relevant judicial precedent, when it enacts a new statute.
Seagrave v. State, 802 So. 2d 281, 290 (Fla. 2001); see Cannon v.
Univ. of Chicago, 441 U.S. 677, 696-97 (1979) (Stevens, J.) (“It is
always appropriate to assume that our elected representatives, like
other citizens, know the law . . . .”). The Legislature added section

- 30 -
attempted to kill the victim”; sentencing according to subsection

(b)2. requires a finding that the defendant “did not actually kill,

intend to kill, or attempt to kill the victim.” § 775.082(1)(b)

(emphasis added). What the statute never contemplates is the

remedy we compelled in Williams: one where no finding is made by

the jury, and where the trial court simply elects the more lenient

penalty.

Nor does our decision pose the double jeopardy concern we

articulated in Williams, for it has long been the law that “a sentence

does not have the qualities of constitutional finality that attend an

acquittal.” United States v. DiFrancesco, 449 U.S. 117, 134 (1980);

see, e.g., Hurst v. State, No. SC2017-0302, 2017 WL 1023762, at *1

(Fla. Mar. 16, 2017) (unpublished) (summarily rejecting “without

775.082(1)(b) more than a year after the U.S. Supreme Court
announced its decision in Alleyne. Ch. 2014–220, § 1, Laws of Fla.
And under Alleyne, a finding of actual killing, intent to kill, or
attempt to kill under subsection (b)1. “aggravates the legally
prescribed range of allowable sentences,” and is therefore an
“element” of the offense, which must be submitted to a jury and
found beyond a reasonable doubt. Alleyne, 570 U.S. at 115; see
supra Section II-A. We thus assume that the Legislature, aware of
this precedent, drafted subsection (b)1. to require a finding by a
jury beyond a reasonable doubt on whether the defendant “actually
killed, intended to kill, or attempted to kill the victim.”

- 31 -
merit” claims that the State “is precluded from seeking the death

penalty” in Hurst resentencing proceedings based on “double

jeopardy and due process grounds”); State v. Collins, 985 So. 2d

985, 993 (Fla. 2008) (“A second attempt to prove the criteria for an

enhanced sentence does not equate to ‘a second prosecution for the

same offense after acquittal.’ ” (quoting Lippman v. State, 633 So. 2d

1061, 1064 (Fla. 1994))); Trotter v. State, 825 So. 2d 362, 365 (Fla.

2002) (“[D]ouble jeopardy is not implicated in the context of a

resentencing following an appeal of a sentencing issue.” (citing

Harris v. State, 645 So. 2d 386, 388 (Fla. 1994))).

“It is no small matter for one Court to conclude that a

predecessor Court has clearly erred.” Poole, 297 So. 3d at 506.

Indeed, having carefully evaluated Williams with the presumption

that this Court faithfully and competently carried out its duty in

deciding that case, see id., we reaffirm that decision’s bottom line:

a reviewing court must decide, in cases like this one, whether the

resulting violation of the defendant’s right to a fair trial was

harmful. See Williams, 242 So. 3d at 290. It is in light of that

conclusion that we find our holding as to the appropriate remedy in

Williams to have been clearly erroneous. See supra pp. 29-32. No

- 32 -
reliance interest compels our adhering to it, for no one, including

Manago, “altered his behavior in expectation of the” remedy holding

from which we recede. Poole, 297 So. 3d at 507; see also Alleyne,

570 U.S. at 119 (Sotomayor, J., concurring) (“[W]hen procedural

rules are at issue that do not govern primary conduct and do not

implicate the reliance interests of private parties, the force of stare

decisis is reduced.”).

We recede from Williams to the extent it is inconsistent with

our conclusion that a trial court, on remand after making an

Alleyne error, is not foreclosed from empaneling a jury to make a

factual determination that affects the legally prescribed range of

allowable sentences.

IV

We quash in part the decision of the Fifth District and remand

for resentencing proceedings consistent with our decision.

It is so ordered.

MUÑIZ, C.J., and CANADY, GROSSHANS, and FRANCIS, JJ.,
concur.
LABARGA, J., dissents with an opinion.
SASSO, J., did not participate.

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

- 33 -
LABARGA, J., dissenting.

I disagree with the majority’s conclusion that a trial court may

remedy a harmful Alleyne11 error by “empaneling a jury to make a

factual determination that affects the legally prescribed range of

allowable sentences.” Majority op. at 33. As such, I respectfully

dissent to the majority opinion and the decision therein to recede in

part from Williams. 12

I fundamentally disagree with the majority’s conclusion that

double jeopardy concerns are not implicated when a resentencing

court empanels a new jury to find the facts necessary for sentencing

under section 775.082(1)(b)1., Florida Statutes. In fact, the specific

characteristics of Manago’s case heighten these double jeopardy

concerns.

With many aggravated crimes, the aggravating factor is

distinct from the facts necessary to form the underlying crime. See,

e.g., § 784.021, Fla. Stat. (2023) (listing the elements for aggravated

11. Alleyne v. United States, 570 U.S. 99 (2013).

12. Williams v. State, 242 So. 3d 280 (Fla. 2018).

- 34 -
assault). Here, however, the facts required to demonstrate that

Manago “actually killed, intended to kill, or attempted to kill” the

victim are highly relevant to his guilt, were alleged in the

indictment, and were actually argued against by Manago at trial.

Empaneling a jury to allow the State to reargue these facts

implicates double jeopardy concerns that are exacerbated by the

majority’s holding that it cannot conclude beyond a reasonable

doubt that a rational jury would have found that Manago actually

killed, intended to kill, or attempted to kill the victim. Majority op.

at 23. Under these circumstances, it is difficult to view empaneling

a jury here as something other than a second bite at the apple.

For these reasons, I respectfully dissent.

Application for Review of the Decision of the District Court of Appeal
Direct Conflict of Decisions/Certified Direct Conflict of
Decisions

Fifth District - Case No. 5D20-632

(Volusia County)

Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor
General, Daniel W. Bell, Chief Deputy Solicitor General, and
Christopher J. Baum, Senior Deputy Solicitor General, Office of the
Attorney General, Tallahassee, Florida,

for Petitioner

- 35 -
Matthew R. McLain of McLain Law, P.A., Longwood, Florida,

for Respondent

- 36 -