Lewars v. State

• Decision Date: 12 May 2017
• Docket Number: Case No. 2D15–3471
• Citation: 277 So.3d 143
• Parties: Dazarian Cordell LEWARS, DOC #Y44737, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

277 So.3d 143

Dazarian Cordell LEWARS, DOC #Y44737, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D15–3471

District Court of Appeal of Florida, Second District.

Opinion filed May 12, 2017.

Howard L. Dimmig, II, Public Defender, and Brian Lydic, Special Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Lisa Martin, Assistant Attorney General, Tampa, for Appellee.

ROTHSTEIN–YOUAKIM, Judge.

A jury found Dazarian Cordell Lewars guilty of burglary of an unoccupied dwelling (count one) and grand theft (greater than 300 dollars) (count two), and the trial court sentenced him to concurrent terms of fifteen years' imprisonment as a prison releasee reoffender (PRR) on count one and thirty-six months' and twenty-seven days' imprisonment on count two. On appeal, we reject without further comment Lewars's challenge to his conviction on count one, but we agree that the trial court erred in sentencing him as a PRR because he does not qualify as one under the plain language of section 775.082(9)(a)(1)(q), Florida Statutes (2012).¹ Accordingly, we affirm his conviction, reverse his PRR sentence, remand for resentencing, and certify conflict with the First, Fourth, and Fifth Districts as set forth below.

Background

In case number 09–CF–20276, the trial court adjudicated Lewars guilty of burglary of a structure, grand theft, and dealing in stolen property and sentenced him to concurrent sentences of 364 days' county jail followed by 3 years' probation. After his first violation of probation (VOP), the trial court sentenced him to two years' community control followed by two years' probation. After his second VOP, the trial court sentenced him to ten months' county jail followed by three years' probation.

Lewars was in the Lee County Jail when the trial court, on April 1, 2013, revoked his probation for yet a third time, sentenced him to concurrent terms of 24 months' imprisonment, and awarded him 766 days' jail credit. Because of that award of jail credit, Lewars walked out of the Lee County Jail the next day a free man instead of being transported to a Department of Corrections (DOC) facility.

On May 30, 2013, Lewars committed the burglary and grand theft that underlie this appeal, and a jury subsequently convicted him of those offenses. At sentencing, the State argued that he qualified as a PRR because he had committed these two offenses less than two months after he had finished serving the twenty-four-month prison sentence imposed upon the third revocation of his probation. The State argued that, although Lewars's 766 days of jail credit had allowed him to walk out of the Lee County Jail rather than ultimately out of a DOC facility, he had been in the DOC's legal custody and the DOC simply had approved his release from the Lee County Sheriff's Office's (LCSO) physical custody. The State called Sergeant Christian Emory of the LCSO to explain this process:

[Sergeant Emory:] When it comes to sentences that appear would be time served what happens is our classifications department will get ahold of Department of Corrections and they will let us know whether he will be a time served inmate or not. In this instance they did say that he–he would be a time served inmate and they sent the proper documentation, which is a packet. We had Mr. Lewars sign it back in 2013 and at that time he was released from custody.

[The State:] Okay. Is it fair to say the Department of Corrections gives you the greenlight to go ahead and release him?

[Sergeant Emory:] Yeah. Yes, after that we will receive a teletype stating that we can release him and he was released. He never went to DOC from–from us.

Notably, the final VOP judgment and sentence in case number 09–CF–20276 states: "It is the sentence of the Court that [Lewars] is hereby committed to the custody of the [DOC]" and "Be Imprisoned: For a term of 24 Months(s) ( [DOC] State Prison)." But there is no dispute that Lewars never actually set foot in a DOC facility before committing the burglary and grand theft.

Lewars agreed that the burglary was a qualifying offense but argued that the PRR designation was inapplicable because he had never physically gone to prison. Lewars contended that imprisonment in a state correctional facility is intended to deter offenders from committing future crimes—"for them to essentially be scared straight"—and that the legislature had created the PRR designation to punish more harshly those offenders whose previous stint in prison had not deterred them from committing qualifying offenses upon release. Therefore, Lewars asserted, designating him as a PRR would be inconsistent with the legislature's intent because he had served time only in county jail, which does not have the deterrent effect of a state correctional facility. The trial court disagreed and sentenced Lewars as a PRR on count one.

Analysis

Whether Lewars qualifies as a PRR under section 775.082(9)(a)(1) is a question of statutory interpretation that we review de novo. See State v. Hackley, 95 So.3d 92, 93 (Fla. 2012). "The first place we look when construing a statute is to its plain language—if the meaning of the statute is clear and unambiguous, we look no further." Id. In construing the statute's plain language, "words or phrases in a statute must be construed in accordance with their common and ordinary meaning," Atwater v. Kortum, 95 So.3d 85, 90 (Fla. 2012) (quoting Donato v. Am. Tel. & Tel. Co., 767 So.2d 1146, 1154 (Fla. 2000) ), and "phrases within a statute are not to be read in isolation, but rather should be construed within the context of the entire section," Thompson v. State, 695 So.2d 691, 692 (Fla. 1997). "We resort to other rules of statutory construction only where the statute is ambiguous in the sense that it could be reasonably understood to mean two different things." Burgess v. State, 198 So.3d 1151, 1155 (Fla. 2d DCA 2016).

Mindful of these caveats, we hold that Lewars does not qualify as a PRR under the plain language of the statute. The pertinent language of section 775.082(9)(a)(1)(q) defines a PRR as "any defendant who commits, or attempts to commit ... burglary of a dwelling ... within 3 years after being released from a state correctional facility operated by the Department of Corrections or a private vendor ...." (Emphasis added.) In requiring release from a DOC "facility"—rather than, for example, from DOC "custody" or simply "by DOC"—PRR status plainly contemplates release from a physical plant operated by the DOC (or a private vendor).² There is no dispute that, less than two months before committing the qualifying PRR offense of burglary of a dwelling, Lewars was released from a county jail having never spent a moment in a DOC facility. Consequently, under the unambiguous language of the statute, he does not qualify as a PRR.

Normally, our analysis would end here, see Hackley, 95 So.3d at 93 ("[I]f the meaning of the statute is clear and unambiguous, we look no further."), but we recognize (as does the State) that the three other district courts of appeal that have addressed the issue would have held that Lewars does qualify as a PRR, see State v. Wright, 180 So.3d 1043 (Fla. 1st DCA 2015) ; Taylor v. State, 114 So.3d 355 (Fla. 4th DCA 2013) ; Louzon v. State, 78 So.3d 678 (Fla. 5th DCA 2012). Consequently, we write to explain why we find the reasoning of those courts unpersuasive.

In Louzon, 78 So.3d at 679–80, the Fifth District reversed Louzon's robbery conviction and remanded for a new trial but nonetheless addressed Louzon's challenge to his PRR designation "in the event that Louzon [was] ultimately convicted of a robbery offense." Id. at 680. Like Lewars, Louzon argued that the trial court had erred in sentencing him as a PRR because his award of jail credit had precluded his physical transfer to a DOC facility. Id. In rejecting this argument, the Fifth District stated that Louzon had been in the DOC's "legal custody" and had been "constructively" held in a state prison facility when his sentence had expired and that "[t]o accept Louzon's argument would place form over substance and would be inconsistent with the Legislature's clear intent to provide for a greater sentence for individuals who commit a qualifying offense within three years of completion of a previously imposed prison sentence." Id. at 680–81. The Fifth District stated further:

To accept Louzon's argument would also mean that in order for the State to ensure that a defendant in Louzon's situation was eligible for subsequent PRR sentencing, it would have to physically transfer an individual from jail to a Department of Corrections facility—where the individual would then be entitled to an immediate release. Courts should not construe a statute so as to achieve an absurd result.

Id. at 681.

In Taylor, 114 So.3d at 355–56, the Fourth District adopted Louzon's reasoning and rejected the same argument by an offender who, although in federal custody, was "housed in a Palm Beach County jail in order to perform substantial assistance."³ Taylor, 114 So.3d at 356. The Fourth District reasoned that Taylor's "release from federal custody while housed at the county jail still constitutes constructive release from a federal correctional facility for purposes of" the PRR statute. Id.

While this appeal was pending, the First District relied on Louzon and Taylor to reverse a trial court's refusal to impose a PRR sentence under almost identical circumstances:

[Wright] had been sentenced to 454 days' imprisonment with credit for 454 days served in county jail. Pursuant to the judgment in that case, which was entered on June 12, 2013, [Wright] was "committed to the custody of the Department of Corrections." The Department of Corrections' Inmate Release Information Detail explained that [Wright] was released on June 13, 2013, and the Release Facility was listed as the "CENTRAL OFFICE."

Wright, 180 So.3d at 1044. Like Lewars, "rather than physically being released from...