Millien v. State
| Decision Date | 02 March 2022 |
| Docket Number | 4D20-1940 |
| Citation | 336 So.3d 354 |
| Parties | Kelly Peterson MILLIEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Elijah Giuliano, Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
Kelly Peterson Millien appeals the judgments and sentences imposed after a jury found him guilty of two counts of lewd or lascivious battery on a person 12 years of age or older but less than 16 years of age. Millien raises eight issues on appeal. We affirm as to seven of the issues without discussion. We affirm on the remaining issue as well but explain our reasoning. The issue we discuss is Millien's argument that the trial court illegally sentenced him to a term exceeding the statutory maximum for second degree felonies because the trial court did not properly apply the adult-on-minor sentencing multiplier provision in calculating the lowest permissible sentence. We disagree with Millien's interpretation of the adult-on-minor sentencing multiplier provision and affirm.
To explain our analysis for affirming the trial court on the sentencing issue which we discuss, crime and evidence background is not necessary.
At sentencing, Millien's scoresheet reflected the lowest permissible sentence was 182.25 months in prison. After acknowledging the lowest permissible sentence, the trial court stated that the permissible range of sentences for Millien was "the lowest permissible prison sentence, 182.25 months, up to thirty years." Millien agreed. The State recommended ten years on each count to be served consecutively. Millien moved for downward departure but did not request a specific sentence. The trial court stated that because the lowest permissible sentence exceeded the statutory maximum for each count of lewd or lascivious battery, absent a downward departure, it was required to sentence Millien to the lowest permissible sentence, 182.25 months in prison, for each count. The trial court denied Millien's motion for downward departure and sentenced him to 182.25 months in prison on each count to run concurrently. The statutory adult-on-minor sentencing multiplier was not discussed at any point. After sentencing, Millien gave notice of appeal.
During this appeal's pendency, Millien filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing errors, raising the application of the adult-on-minor multiplier provision contained in section 921.0024(1)(b), Florida Statutes (2015) ("the adult-on-minor multiplier"). The motion is deemed denied because the trial court failed to rule within sixty days. See Fla. R. Crim. P. 3.800(b)(2)(B).
Millien contends the trial court erred in sentencing him to 185.25 months in prison on each count of lewd or lascivious battery on a child and denying his motion to correct sentencing errors. Because his arguments focus on statutory interpretation and denial of his 3.800(b)(2) motion, our review is de novo. See Metellus v. State , 310 So. 3d 90, 92 (Fla. 4th DCA 2021) ; Henry v. State , 229 So. 3d 390, 393-94 (Fla. 4th DCA 2017).
As mentioned, there was no discussion concerning the adult-on-minor multiplier at sentencing. Although Millien argues that the trial court should have applied the multiplier, he does not argue why the trial court was required to apply it. However, we agree that once Millien met the threshold qualifications for the adult-on-minor multiplier, the trial court was required to consider it at sentencing.
In discussing a different multiplier, we have stated that when a defendant qualifies for a multiplier, "application of th[e] sentencing multiplier is not discretionary." State v. Stafford , 711 So. 2d 612, 612 (Fla. 4th DCA 1998). However, we note that the drug trafficking multiplier, also listed in both section 921.0024(b) and Florida Rule of Criminal Procedure 3.704(19), has a clause providing that it may be applied "at the discretion" of the court. § 921.0024(b), Fla. Stat.; Fla. R. Crim. P. 3.704(19). "[T]he Legislature's use of different terms in different parts of the same statute is ‘strong evidence that different meanings were intended.’ " D.M.H. v. Pietilla , 33 So. 3d 800, 801 (Fla. 5th DCA 2010) (quoting Maddox v. State , 923 So. 2d 442, 446 (Fla. 2006) ). Therefore, the fact that the legislature included discretionary terms in the drug trafficking multiplier within section 921.0024(1)(b), but specifically left the discretionary term out of the adult-on-minor multiplier, supports the conclusion that consideration of the adult-on-minor multiplier is mandatory, not discretionary.
Although the trial court erred in not considering the adult-on-minor multiplier at sentencing, for the reasons discussed below, we affirm. We focus our analysis first on the sentence imposed for count 1 (lewd or lascivious battery on a child), which was the primary offense on Millien's scoresheet, and then shift our analysis to count 2 (lewd or lascivious battery on a child), identified as the additional offense on the scoresheet.
Section 921.0024(1)(b) provides the Criminal Punishment Code scoresheet's "Worksheet Key" to be used to compute the subtotal and total sentence points for sentencing. § 921.0024(1)(b), Fla. Stat. (2015). The Worksheet Key includes instructions for sentencing multipliers used to compute the subtotal and total sentencing points. Id. Regarding adult-on-minor sex offenses, subsection (1)(b) provides:
Adult-on-minor sex offense: If the offender was 18 years of age or older and the victim was younger than 18 years of age at the time the offender committed the primary offense, and if the primary offense was an offense committed on or after October 1, 2014, and is a violation of s. 787.01(2) or s. 787.02(2), if the violation involved a victim who was a minor and, in the course of committing that violation, the defendant committed a sexual battery under chapter 794 or a lewd act under s. 800.04 or s. 847.0135(5) against the minor; s. 787.01(3)(a) 2. or 3.; s. 787.02(3)(a) 2. or 3.; s. 794.011, excluding s. 794.011(10); s. 800.04; or s. 847.0135(5), the subtotal sentence points are multiplied by 2.0. If applying the multiplier results in the lowest permissible sentence exceeding the statutory maximum sentence for the primary offense under chapter 775, the court may not apply the multiplier and must sentence the defendant to the statutory maximum sentence.
Id. As can be seen, the adult-on-minor multiplier has two components: (1) qualifying language establishing the threshold for its application; and (2) language limiting its application once the threshold is met. The parties disagree as to both portions on appeal.
First, the State argues that the adult-on-minor multiplier was not applicable to Millien's sentencing because the multiplier applies only when there has been a violation of either section 787.01(2)or section 787.02(2), Florida Statutes, and a violation of one of the various sexual offenses listed. Based on the statute's plain meaning, we disagree. See Lopez v. Hall , 233 So. 3d 451, 453 (Fla. 2018) (). The statute's use of the semi-colons and the final "or" indicates that each portion between the semi-colons is a separate category. See Igwe v. City of Miami , 208 So. 3d 150, 154-55 (Fla. 3d DCA 2016) .
This conclusion is further supported by Florida Rule of Criminal Procedure 3.704. Rule 3.704 gives the procedures for implementing Florida's Criminal Punishment Code. The rule's subsection (d)(24) contains the provision regarding the adult-on-minor multiplier. As opposed to one long sentence, the qualifying language is set forth in list format, listing each of the qualifying offenses separately.1
Fla. R. Crim. P. 3.704(d)(24)(A). As a separate qualifying offense, the rule lists "a violation of ... section 800.04, Florida Statutes, (lewd or lascivious offenses)," making it clear that Millien's offenses qualify for the adult-on-minor multiplier. Fla. R. Crim. P. 3.704(d)(24)(A)(ii) e.
Having determined that Millien's offenses met the threshold qualifications for the adult-on-minor multiplier, the next question is the effect of section 921.0024(1)(b) ’s limiting language of the multiplier. The limiting language states:
If applying the multiplier results in the lowest permissible sentence exceeding the statutory maximum sentence for the primary offense under chapter 775, the court may not apply the multiplier and must sentence the defendant to the statutory maximum sentence.
§ 921.0024(1)(b), Fla. Stat. (2015). As an initial matter, we note that a plain reading of the adult-on-minor multiplier reveals that the qualifying and limiting language refers to the primary offense. Next, Millien's lowest permissible sentence ("LPS"), without application of the multiplier, is 182.5 months in prison. Applying the multiplier, Millien's LPS would be 385.5 months2 in prison. The maximum sentence under section 775.082 for Millien's primary offense, lewd or lascivious battery on a child, is fifteen years in prison (180 months). § 800.04(4)(b), Fla. Stat. (2015) ; § 775.082(3)(d), Fla. Stat. (2015). Therefore, applying the multiplier results in Millien's LPS exceeding the statutory maximum sentence for his primary offense under chapter 775. What the adult-on-minor multiplier requires once this determination is made is the main point of contention.
Millien argues that because his LPS after applying the...
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