Billups v. State
| Decision Date | 27 June 2018 |
| Docket Number | No. 4D17–3623,4D17–3623 |
| Citation | 250 So.3d 706 |
| Parties | Wylie BILLUPS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
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.
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 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:
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:
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 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:"
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 position that the defendant would not complete service of his initial 5 year sentence until after he served the subsequently imposed 9 year sentence. The Supreme Court rejected that approach in a situation where the defendant had been paroled on the initial 5 year sentence, was sentenced subsequently for later committed crimes, and was entitled to some credit on the 5 year sentence for time served on the one year sentence. Id. at 448.
As authority for the statement that a defendant "is entitled to pay his debt to society in one stretch, not in bits and pieces," Segal relied on State v. Coleman , 149 Fla. 28, 5 So.2d 60 (1941), a case which also involves a situation where a defendant was released from custody. The Coleman defendant was "committed to the county jail" to serve a six month...
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