Florida Third District Court of Appeal – Criminal Headnotes – June 6, 2018

  • Jun 7 2018


Appeal from the denial of a post-conviction motion to correct an illegal sentence of life imprisonment as a habitual felony offender for attempted second-degree murder of a law enforcement officer engaged in lawful performance of his duty.  At the sentencing hearing, both the defense and the state informed the trial court that the maximum sentence under section 775.0823 of the Florida statutes, as it then existed, was thirty years, with a ten-year concurrent sentence on the conviction on the related charge of resisting an officer with violence.

On a direct appeal from the conviction and sentence in 2010, the defendant, who was represented by the public defender, did not raise the issue.  In 2010 he filed a motion for post-conviction relief pro se, raising the issue, but did not appeal the trial court’s denial of that motion.  He filed another motion in 2014, conceding that he motion was consecutive, but arguing manifest injustice.  The trial court denied this motion as barred by collateral estoppel, and the appeals court affirmed without opinion.

The present motion was the defendant’s third successive post-conviction motion, and the trial court again denied relief, again citing collateral estoppel, and also finding that the defendant was properly sentenced as a habitual felony offender and that he had been given proper notice that the state intended to seek an enhanced sentence on that ground.

The appeals court affirmed the second and third determinations, but reversed the collateral estoppel ruling, citing State v. Akins, 69 So. 3d 261 (Fla. 2011), which confirmed the authority of an appeals court to correct erroneous rulings made in earlier appeals “in exceptional circumstances and where reliance on the previous decision would result in manifest injustice.”

The appeals court then turned to the question of interpreting the sentencing statutes — again, as they existed in 2007, at the time the crime was committed.  Section 782.04 defined attempted second-degree murder as a second-degree felony, punishable as provided in several cross-referenced statutes.  Of particular relevance, section 775.084 addressed the question of sentencing of a habitual felony offender, providing at subparagraph (4)(a)2 for a maximum sentence of thirty years for a second-degree felony.

The difficulty arose with respect to language in section 775.0823, which provided for enhanced sentences where the crime involved violence against a law enforcement officer engaged in lawful performance of his duty.  The cross-references under subparagraph (5), which dealt with attempted second-degree murder, were actually to statutes setting penalties for the completed crime of murder, rather than the attempt.  In setting the sentence here, the trial court apparently interpreted this discrepancy as indicating that the legislature had intended to enhance the sentence by “reclassifying” the crime as though the murder had been completed.

The appeals court, on this third successive post-conviction motion, determined that this was a misreading of the legislature’s intent.  In making this determination, the appeals court considered (a) the fact that the statute as originally enacted in 1989 did not include provisions for enhanced sentencing for “attempted” violent crimes against law enforcement officers, (b) the fact that if the statute as it existed in 2007 were read to require this “reclassification,” the penalty for an attempted second-degree degree murder of an officer in the performance of his duty would be identical to the penalty for a completed second-degree murder, which the court said would be anomalous, and (c) later amendments which completely restructured the sentencing mechanisms under the statute, among other things abandoning the mandatory minimum sentencing structure.

The appeals court also cited other provisions of the criminal code in which the legislature clearly expressed its intent to “reclassify” particular felonies to higher degrees.  And finally, the court cited section 775.021, which requires that all sentencing statutes be construed strictly, and in the case of ambiguity, “most favorably to the accused.”

Reversed and remanded for resentencing.

The court also directed the clerk to send a copy of this decision to the chief of legislative affairs at the office of the chief courts administrator, to alert the legislature of the possible need to remove what the court described as “vestigial” language in section 775.0823 that still refers to “increase and certainty of penalty,” despite subsequent amendments removing the mandatory minimum sentencing structure.

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Posted in: Criminal, Third DCA, Violent Crimes