Billups v. State, No. 4D17–3623

CourtCourt of Appeal of Florida (US)
Writing for the CourtGross, J.
Citation250 So.3d 706
Decision Date27 June 2018
Docket NumberNo. 4D17–3623
Parties Wylie BILLUPS, Appellant, v. STATE of Florida, Appellee.

250 So.3d 706

Wylie BILLUPS, Appellant,
v.
STATE of Florida, Appellee.

No. 4D17–3623

District Court of Appeal of Florida, Fourth District.

[Jun 27, 2018]


Antony P. Ryan, Regional Counsel, and Paul O'Neil, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.

Gross, J.

This case is the story of what can happen when words in a case become detached from a legal principle, to float freely in the ether of Westlaw or Lexis like free radicals ready to trigger mutations in the law. Here we return such free floating words to

250 So.3d 707

their original meaning and affirm the sentences under review.

After a trial, appellant was convicted of four felonies: (1) Robbery with a firearm; (2) robbery with a firearm; (3) aggravated assault with a firearm; and (4) felon in possession of a firearm.

His original sentences were:

Count I: robbery with a firearm, 30 years in prison, 10 year mandatory minimum;

Count II: robbery with a firearm, 30 years in prison, 10 year mandatory minimum;

Count III: aggravated assault with a firearm, 5 years in prison, 3 year mandatory minimum, and

Count IV: felon in possession of a firearm, 15 years in prison, 3 year mandatory minimum.

Counts I, II, and IV were imposed consecutively, including the mandatory minimum provisions. Count III was imposed concurrently to Count I.

These sentences were the subject of our decision in Billups v. State , 219 So.3d 900 (Fla. 4th DCA 2017). Based on the Supreme Court's decision in Williams v. State , 186 So.3d 989 (Fla. 2016)1 , we held that the imposition of consecutive mandatory minimum sentences under section 775.087(2)(d), Florida Statutes (2008), was improper, because appellant's convictions arose from the same criminal episode and did not involve the discharge of a firearm. Billups , 219 So.3d at 900 ; see also Walton v. State , 208 So.3d 60, 64 (Fla. 2016). We reversed the sentences and remanded the case to the circuit court for resentencing.

At the resentencing hearing, appellant argued that the four sentences, in their entirety, had to be run concurrently, not just the mandatory minimum portions of the sentences.

The circuit judge commented that, from his review of the original sentencing hearing, it was "clear" that the sentencing judge (since retired) intended that appellant serve 75 years in prison. In response to appellant's argument that all sentences had to run concurrently, the judge observed that Florida's policy is not that crimes are "cheaper by the dozen" and that "when you have separate victims the court should be able to impose consecutive sentences."

The judge resentenced appellant as follows, nunc pro tunc to September 17, 2010:

Count I: 30 years in prison, with a 10 year mandatory minimum;

Count II: 30 years in prison, with a 10 year mandatory minimum, consecutive to Count I;

Count III: 5 years in prison, with a 3 year mandatory minimum, concurrent to Count I;

Count IV: 15 years in prison, with a 3 year mandatory minimum, consecutive to Count II.

Pursuant to this court's mandate, the court ran all the mandatory minimum portions of the sentences concurrently.

This sentencing scheme creates two theoretical sentencing gaps in Counts II and IV. For Count II, the 20 year portion of the sentence in excess of the mandatory minimum does not begin to run until the

250 So.3d 708

sentence in Count I has been completed. For Count IV, the 12 year portion of the sentence in excess of the mandatory minimum does not begin to run until the 20 year portion of the Count II sentence has been completed. The chart below provides a pictorial representation of the sentences:

                Count 1 10 min man 20 years
                Count 2 10 min man - Break in sentence - 20 years
                Count 3 3 min
                Served man 5 years
                Count 4 3 min
                 man - Break in sentence - 12 years
                

Needless to say, appellant would continuously serve his prison sentence until the end of the sentence in Count IV, so the gaps are theoretical only. Appellant would experience the sentence as one long continuous period of incarceration.

Appellant's challenge here is to these theoretical sentencing gaps, arguing that the Florida Supreme Court has held, "a prisoner is entitled to pay his debt to society in one stretch, not in bits and pieces." Segal v. Wainwright , 304 So.2d 446, 448 (Fla. 1974).

In construing a sentencing statute, a court must "give effect to legislative intent." Mendenhall v. State , 48 So.3d 740, 747 (Fla. 2010).

The legislature has been crystal clear in stating the intent behind section 775.087 —"that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law ." § 775.087(2)(d), Fla. Stat. (2017) (emphasis supplied). The Supreme Court has expounded on this legislative policy:

[T]he Legislature has very clearly mandated that it is the policy of this State to deter the criminal use of firearms. This mandate is underscored by the widespread promulgation of the 10–20–LIFE law beyond mere statutory notice, through television commercials, posters, and other forms of advertising. This policy is further underscored by the statement of legislative intent in section 775.087, which was added in 1999, see ch. 99–12, § 1, at 538–42, Laws of Fla., and the accompanying increase to the mandatory minimum sentence under section 775.087 from three years for all crimes to ten years for all crimes except aggravated assault, possession of a firearm, or burglary. Id.

McDonald v. State , 957 So.2d 605, 611 (Fla. 2007). As the Court noted in McDonald , in promulgating the 10–20–Life statute, the Legislature set forth the reasons that violations of the statute be punished to the "fullest extent of the law:"

WHEREAS, Florida ranks among the most violent states in the nation, and

WHEREAS, in 1975 the Florida Legislature enacted legislation requiring a minimum mandatory sentence of three years in prison for possessing a gun during the commission or attempted commission of a violent felony, and

WHEREAS, the Legislature enacted this mandatory penalty in order to protect citizens from criminals who are known to use guns during the commission of violent crimes, and

WHEREAS, the FBI reports that among persons identified in the felonious killings of law enforcement officers in 1997, 71% had prior criminal convictions, and one of every four were on probation or parole for other crimes when they killed the officers, and
250 So.3d 709
WHEREAS, criminals who use guns during the commission of violent crimes pose an increased danger to the lives, health, and safety of Florida's citizens and to Florida's law enforcement officers who daily put their lives on the line to protect citizens from violent criminals, and

WHEREAS, the Legislature intends to hold criminals more accountable for their crimes, and intends for criminals who use guns to commit violent crimes to receive greater criminal penalties than they do today, and

WHEREAS, the Legislature intends that when law enforcement officers put themselves in harm's way to apprehend and arrest these gun-wielding criminals who terrorize the streets and neighborhoods of Florida, that these criminals be sentenced to longer mandatory prison terms than provided in current law, so that these offenders cannot again endanger law enforcement officers and the public, and

WHEREAS, there is a critical need for effective criminal justice measures that will ensure that violent criminals are sentenced to prison terms that will effectively incapacitate the offender, prevent future crimes, and reduce violent crime rates , and

WHEREAS, it is the intent of the Legislature that criminals who use guns to commit violent crimes be vigorously prosecuted and that the state demand that minimum mandatory terms of imprisonment be imposed pursuant to this act ...

Id . at 611–12, quoting Ch. 99–12, Laws of Fla., at 537–38 (Emphasis added).

Against this mass of legislative intent emphasizing punishment, appellant relies on language plucked from Segal v. Wainwright , that "a prisoner is entitled to pay his debt to society in one stretch, not in bits and pieces." 304 So.2d at 448. That is a far narrower principle than appellant contends. The legal principle derives from situations where a defendant has been released from incarceration, whether on parole or otherwise. This is not the situation presented here, where appellant will continuously serve the sentence imposed by the circuit judge.

Segal involved a situation where a defendant was convicted of attempted robbery, sentenced to "not more than 5 years" and paroled. He then committed two crimes, for which he was convicted and sentenced to one year and for which his parole was revoked. He completed his sentence for the two crimes (apparently in a county jail) and was returned to the state custody "for completion of his initial robbery sentence." Id. at 447. He was paroled, arrested for robbery, convicted, sentenced to 9 years, and for which his parole was revoked. Id.

The Division of Corrections took the...

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