Foulks v. State, No. 3D18-2529

• Decision Date: 31 August 2020
• Docket Number: No. 3D18-2529
• Citation: 306 So.3d 1178
• Parties: Cassel FOULKS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

306 So.3d 1178

Cassel FOULKS, Appellant,

v.The STATE of Florida, Appellee.

No. 3D18-2529

District Court of Appeal of Florida, Third District.

Opinion filed August 31, 2020

Carlos J. Martinez, Public Defender, and James A. Odell, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Brian H. Zack and Jennifer A. Davis, Assistant Attorneys General, for appellee.

Before SALTER, LOGUE and GORDO, JJ.

GORDO, J.

Cassel Foulks appeals the prison releasee reoffender ("PRR") minimum mandatory sentence imposed by the trial court after he violated probation. This appeal presents an issue of first impression regarding whether the State's initial waiver of the PRR sentence, pursuant to a negotiated plea, statutorily precludes the State from seeking to impose a PRR sentence upon revocation of probation. Analyzing this issue requires that this Court harmonize and give full effect to the plain language of the of the PRR statute, section 775.082, Florida Statutes (2019), and the statute governing resentencing upon revocation of probation, section 948.06, Florida Statutes (2019).¹ For the reasons that follow, we conclude the trial court appropriately imposed the minimum mandatory sentence after revoking Foulks’ probation and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Foulks was arrested and charged in 2007 for aggravated battery on a law enforcement officer using a deadly weapon, high-speed fleeing or attempting to elude a law enforcement officer, resisting an officer with violence to his or her person, and unlawful possession of cannabis. The State determined Foulks was a PRR because he had been convicted of second-degree murder, a qualifying offense, within three years of his release from prison. The State filed a notice informing the Defendant and court that he qualified as a PRR and seeking imposition of the PRR sentence. The State filed a separate notice of its intent to seek imposition of enhanced penalties because Foulks qualified as a habitual felony offender and a habitual violent felony offender.²

On August 10, 2009, the State and Defense notified the court they had reached a negotiated plea agreement wherein Foulks would plead guilty to a reduced charge of aggravated assault on a law enforcement officer using a deadly weapon, a second degree felony, and be sentenced to four years’ imprisonment as a habitual violent felony offender with a three-year minimum mandatory, followed by two years of probation. He agreed not to commit any further law violations. In exchange, the State would enter a waiver of the PRR imposition and agree to the reduced sentence.

During this original sentencing hearing, Foulks stipulated that he was convicted of murder in the second degree, for which he was released from state prison on June 6, 2005, and had not received any pardons for his sentence. The court advised Foulks that if he violated the terms and conditions of probation, he would be facing up to 30 years in state prison. Between 2012 and 2015, Foulks violated probation three times by committing new law violations. After his first revocation of probation in 2015, he was resentenced to 4.75 years in prison followed by three years of reporting probation. He committed his fourth violation of probation in 2018, which led to the resentencing at issue in this appeal.

At the November 1, 2018 probation violation hearing, Foulks admitted the violation and the trial court revoked his probation. The State sought to impose the PRR minimum mandatory sentence pursuant to the notice filed prior to the original sentencing and established the PRR designation by a preponderance of the evidence. Foulks again admitted on the record that he was released from prison on June 6, 2005, after serving seven years on a second-degree murder charge and he conceded having committed a qualifying offense³ on February 15, 2007, within three years of his release. The court sentenced Foulks to fifteen years and one day in state prison with a ten-year minimum mandatory as a habitual violent felony offender and a fifteen-year minimum mandatory as a PRR.

Foulks filed a motion to correct his sentence, which the trial court denied. This appeal followed.

STANDARD OF REVIEW

"Because a motion to correct a sentencing error involves a pure issue of law, our standard of review is de novo." Salter v. State, 77 So. 3d 760, 764 (Fla. 4th DCA 2011) (quoting Kittles v. State, 31 So. 3d 283, 284 (Fla. 4th DCA 2010) ). Additionally, this case presents a question of statutory construction, which is reviewed de novo. Cotto v. State, 139 So. 3d 283, 286 (Fla. 2014).

ANALYSIS

This appeal involves the convergence of the application of sections 775.082(9) and 948.06(2)(b), Florida Statutes. We begin our analysis with the actual text of both statutes as the starting point of any statutory analysis is always most reliably rooted in the actual language of the statutes themselves. See State v. Peraza, 259 So. 3d 728, 730 (Fla. 2018). "[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931) ).

A. Prison Releasee Reoffender Statute

Section 775.082 provides in relevant part:

(9)(a)1. "Prison releasee reoffender" means any defendant who commits, or attempts to commit:

....

o. Any felony that involves the use or threat of physical force or violence against an individual;

....

within 3 years after being released from a state correctional facility ... following incarceration for an offense for which the sentence pronounced was a prison sentence ....

....

3. If the state attorney determines that a defendant is a prison releasee reoffender as defined in subparagraph 1., the state attorney may seek to have the court sentence the defendant as a prison releasee reoffender. Upon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffender as defined in this section, such defendant is not eligible for sentencing under the sentencing guidelines and must be sentenced as follows:

....

c. For a felony of the second degree, by a term of imprisonment of 15 years ...

....

(d)1. It is the intent of the Legislature that offenders previously released from prison or a county detention facility following incarceration for an offense for which the sentence pronounced was a prison sentence who meet the criteria in paragraph (a) be punished to the fullest extent of the law and as provided in this subsection ....

"The PRR statute is a mandatory minimum provision that creates a sentencing floor." Cotto, 139 So. 3d at 286 (citing State v. Cotton, 769 So. 2d 345, 354 (Fla. 2000) ). "The PRR statute does not increase the maximum period of incarceration to which a person may be sentenced. Rather, under the PRR statute, only the maximum allowable sentence may be imposed." Id. at 289. The Florida Supreme Court has elaborated that "because the PRR statute imposes a mandatory minimum that is in accordance with, and not beyond, the statutory maximum, a PRR sentence is not an enhanced sentence." Id. at 285. For this reason, the Court has recognized that the PRR statute is applied differently than sentencing enhancements. See e.g., id. at 289.

"The PRR statute specifically states that the legislative intent is to punish those eligible for PRR sentencing to the fullest extent of the law ." Id. (citing § 775.082(9)(d) 1., Fla. Stat. (2002)). Additionally, the PRR statute vests the state attorney with sole discretion to seek imposition of a PRR sentence for an eligible offender or waive it. Cotton, 769 So. 2d at 349 ("[W]here a defendant qualifies as a ‘prison releasee reoffender,’ it is the state attorney, and not the trial court, who has the authority to determine (in the exercise of prosecutorial discretion) whether or not to seek sentencing under the Act."); § 775.082(9)(d) 1., Fla. Stat. "Imposing a PRR sentence is mandatory once the State proves that the defendant qualifies."

State v. Baker, 874 So. 2d 643, 643 (Fla. 2d DCA 2004) (citing Cotton, 769 So. 2d 345 ).

B. Revocation of Probation Statute

The resentencing of an offender upon revocation of probation is governed by section 948.06(2)(b), which provides:

If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control. (emphasis added).

The plain language of this section provides for the imposition of any sentence that might have originally been imposed before placing the offender on probation in exchange for a negotiated plea. See Eustache v. State, 248 So. 3d 1097, 1101 (Fla. 2018) ("This section clearly provides for the imposition of any sentence that was originally available to the sentencing judge.") (internal quotations omitted). Merriam-Webster defines "might" as the past tense of "may" used to "express permission, liberty, probability, or possibility in the past ," "say that something is possible" or "express a present condition contrary to fact."⁴ (emphasis added). This section encompasses any sentence the defendant was eligible to receive that might have been imposed at the original sentencing had a plea agreement not been reached. See, e.g., Aponte v. State, 810 So. 2d 1008, 1011 (Fla. 4th DCA 2002) ("There is no doubt that ... the trial court could have assessed victim injury points at the original sentencing hearing had the state presented evidence to support victim injury points. Therefore, we see no reason why the plain reading of section 948.06 [(2)(b)] does not permit the same victim injury...