McKendry v. State, No. 81477

• Court: United States State Supreme Court of Florida
• Writing for the Court: GRIMES; OVERTON, J., concurs with an opinion, in which KOGAN; SHAW; OVERTON; KOGAN; SHAW
• Citation: 641 So.2d 45
• Parties: 19 Fla. L. Weekly S267 John McKENDRY, Petitioner, v. STATE of Florida, Respondent.
• Docket Number: No. 81477
• Decision Date: 19 May 1994

Page 45

641 So.2d 45 19 Fla. L. Weekly S267 John McKENDRY, Petitioner,
v.
STATE of Florida, Respondent. No. 81477. Supreme Court of Florida. May 19, 1994.
Rehearing Denied Aug. 25, 1994.

Ronald B. Smith, Waxler & Smith, Stuart, for petitioner.

Robert A. Butterworth, Atty. Gen., Joan Fowler, Sr. Asst. Atty. Gen., and Melvina Racey Flaherty, Asst. Atty. Gen., West Palm Beach, for respondent.

GRIMES, Chief Justice.

We review State v. McKendry, 614 So.2d 1158 (Fla. 4th DCA 1993), in which the court certified the following question as one of great public importance:

DO THE PROVISIONS OF SECTION 948.01, FLORIDA STATUTES (1989), AUTHORIZE THE IMPOSITION OF A SENTENCE OTHER THAN AS PROVIDED IN SECTION 790.221(2), FLORIDA STATUTES (1989)?

Id. at 1161. We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution.

John McKendry was convicted of possession of a short-barreled shotgun in violation of section 790.221, Florida Statutes (1989). Although the recommended guidelines sentence for McKendry's crime was community control or twelve to thirty months in prison, section 790.221(2) provided for a mandatory

Page 46

minimum term of imprisonment of five years. ¹ The trial judge sentenced McKendry to the mandated term of five years. However, because of the facts of the case ² and McKendry's prior record, the judge suspended the five-year prison term and placed McKendry on community control for one year to be followed by three years of probation.

The State appealed and the district court of appeal reversed McKendry's sentence. The court held that section 948.01, Florida Statutes (1989), the statute which gives a trial court authority to suspend a sentence and implement community control, could not operate to avoid the enforcement of the mandatory minimum term in section 790.221(2). However, because of the conflicting provisions of section 790.221(2) and section 948.01, the court certified the question quoted above.

Under section 790.221, Florida Statutes (1989), it is illegal for any person to own or have in his or her care, custody, possession, or control a short-barreled shotgun. Section 790.221(2) provides that any person convicted under this statute "shall be sentenced to a mandatory minimum term of imprisonment of 5 years." Sec. 790.221(2), Fla.Stat. (1989). At the same time, section 948.01, Florida Statutes (1989), states:

(3) If it appears to the court upon a hearing of the matter that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law, the court, in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt; and, in either case, it shall stay and withhold the imposition of sentence upon such defendant and shall place him upon probation....

(4) If, after considering the provisions of subsection (3) and the offender's prior record or the seriousness of the offense, it appears to the court in the case of a felony disposition that probation is an unsuitable dispositional alternative to imprisonment, the court may place the offender in a community control program.

The issue presented is whether or not section 948.01 authorizes a trial judge to depart from the minimum mandatory sentence set forth in section 790.221(2).

We begin our analysis of the issue by applying accepted rules of statutory construction to the statutes in question. First, a specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms. Adams v. Culver, 111 So.2d 665, 667 (Fla.1959); State v. Billie, 497 So.2d 889, 894 (Fla. 2d DCA 1986), review denied, 506 So.2d 1040 (Fla.1987). The more specific statute is considered to be an exception to the general terms of the more comprehensive statute. Floyd v. Bentley, 496 So.2d 862, 864 (Fla. 2d DCA 1986), review denied, 504 So.2d 767 (Fla.1987). Under this rule, section 790.221(2), which specifically addresses the criminal penalty for possession of a short-barreled shotgun, prevails over section 948.01, which generally gives a trial judge discretion to suspend criminal sentences. To arrive at any other conclusion would render the specific mandatory language of section 790.221(2) without meaning.

Further, when two statutes are in conflict, the later promulgated statute should prevail as the last expression of legislative intent. Sharer v. Hotel Corp. of Am., 144 So.2d 813 (Fla.1962); State v. Ross, 447 So.2d 1380, 1382 (Fla. 4th DCA 1984), review denied, 456 So.2d 1182 (Fla.1984). Section 948.01 was originally enacted in 1941 long before mandatory minimum sentences were known except in capital cases and at a time when trial courts still had virtually unlimited discretion in sentencing. While section 790.221 was originally enacted in 1969, it was not until 1989 that the statute was amended to include the mandatory sentencing language.

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Although section 948.01 was also amended in 1989, the amendment concerned an unrelated issue, and there was no mention of section 790.221. Therefore, section 790.221(2) should prevail over section 948.01 as the last expression of legislative intent on the subject of sentencing for possession of a short-barreled shotgun.

Legislative intent is also made clear by the 1989 amendment to section 790.221(2). Prior to 1989, section 790.221(2) read as follows: "[a]ny person convicted of violating this section is guilty of a felony and upon conviction thereof shall be punished by imprisonment in the state penitentiary not to exceed 5 years." Ch. 69-306, Sec. 10, at 1110, Laws of Fla. The 1989 amendment changed the statute to read "[u]pon conviction thereof he shall be sentenced to a mandatory minimum term of imprisonment of 5 years." Ch. 89-312, Sec. 1, at 2042, Laws of Fla. The legislature specifically amended the statute to replace the permissive sentencing language limiting the maximum term of imprisonment to five years with mandatory sentencing language limiting the minimum term of imprisonment to five years. We find the 1989 amendment changing the language of section 790.221(2) to be a clear and unambiguous expression of the legislature's intent.

McKendry argues that Scates v. State, 603 So.2d 504 (Fla.1992), should control in the instant case. In Scates, the defendant was convicted under section 893.13(1)(e)(1), Florida Statutes (1989), of purchasing cocaine within 1000 feet of a school. Section 893.13(1)(e)(1) provides for a minimum term of imprisonment of three years. However, the defendant in Scates was sentenced to two years' probation and ordered to undergo drug rehabilitation pursuant to section 397.12, Florida Statutes (1989). This Court held that trial judges may order a defendant to participate in a drug rehabilitation program pursuant to section 397.12 rather than impose the three-year minimum sentence under 893.13(1)(e)(1). The State argues that...