Fleming v. State

The last time this case was before us— noting the state conceded error as to all four grounds cited for upward departure— we reversed and remanded for resentenc-ing, without considering any question of harmless error. See Fleming v. State, — So.3d —, 2006 WL 1041164 (Fla. 1st DCA 2006). In his initial brief, filed with this court on October 18, 2005, Mr. Fleming argued that the failure to submit for the jury’s determination any factual allegation pertinent to a sentencing factor required resentencing, and that errors of this kind were not subject to harmless error analysis. In its answer…