Mills v. State

• Citation: 822 So.2d 1284
• Decision Date: 20 June 2002
• Docket Number: No. SC01-68.,SC01-68.
• Parties: Gayson MILLS, Petitioner, v. STATE of Florida, Respondent.
• Court: United States State Supreme Court of Florida

822 So.2d 1284

Gayson MILLS, Petitioner, v. STATE of Florida, Respondent.

No. SC01-68.

Supreme Court of Florida.

June 20, 2002.

Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.

Robert A. Butteworth, Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Douglas T. Squire, Assistant Attorney General, Tallahassee, FL, for Respondent.

LEWIS, J.

This case is before us for review of Mills v. State, 773 So.2d 650 (Fla. 1st DCA 2000). The basis for our exercise of jurisdiction is apparent conflict with Wright v. State, 586 So.2d 1024 (Fla.1991). See art. V, § 3(b)(3), Fla. Const. Upon further analysis, as discussed infra, we conclude that the apparent conflict arises in statutory construction, and that, when the proper construction is made, the appearance of conflict is resolved.

ANALYSIS

The petitioner, Gayson J. Mills, was sentenced to six years in prison as a habitual felony offender for battery on a law enforcement officer. The First District Court of Appeal, in a split decision, affirmed Mills's sentence. See Mills v. State, 773 So.2d 650 (Fla. 1st DCA 2000)

. In rejecting Mill's argument that his habitual felony offender¹ sentence violated double jeopardy, the majority declined to find controlling this Court's statement in Merritt v. State, 712 So.2d 384, 385 (Fla. 1998), that the statute for battery on a law enforcement officer is an enhancement statute, classifying such as "dicta." The dissent opined that Merritt precluded a habitual felony offender sentence, because battery on a law enforcement officer was already an enhancement, and double enhancement was barred by double jeopardy. This timely petition for review followed.

In Merritt, we held that section 784.07, Florida Statutes (1995)² (providing for reclassification of offenses and minimum sentences for assault or battery of law enforcement officers, firefighters, emergency medical care providers, public transit employees or agents, or other specified officers) did not apply to the offense of attempted battery of a law enforcement officer. See id. at 385 ("We agree that section 784.07(2), Florida Statutes (1995), does not include the offenses of attempted battery or attempted aggravated assault. Thus, neither attempted battery nor attempted aggravated assault can be reclassified based upon section 784.07(2)."). In so doing, we explained:

Section 784.07, Florida Statutes (1995), is an enhancement statute rather than a statute creating and defining any criminal offense. The plain language of the statute indicates that the legislature enacted section 784.07 in order to increase the penalties for the enumerated crimes of assault, aggravated assault, battery, and aggravated battery for offenders who commit these crimes upon law enforcement officers. At the time the enhancement statute was enacted, the legislature had created the four enumerated offenses in other statutory provisions.

Id. (emphasis supplied). We concluded in Merritt that section 784.07 contained "no enhancement or reclassification of penalties for the offense of attempted commission of the enumerated offenses; therefore, attempted assault and attempted battery as well as attempted aggravated assault and battery of a law enforcement officer are nonexistent offenses." Id. (emphasis supplied).

Mills appears to conflict with Merritt because of our statement in Merritt—albeit in the context of determining that section 784.07 did not create the substantive offenses of attempted assault, attempted battery, or attempted aggravated assault and battery of a law enforcement officer—that section 784.07 "is an enhancement statute rather than a statute creating and defining any criminal offense." 712 So.2d at 385. This statement was germane to resolution of the issue before us at that time, and was, therefore (as Judge Browning observed in a separate opinion below),³ not technically "dicta." However, as reflected in the language of the statute itself, section 784.07 operates as a reclassification statute. While the statute does not, in and of itself, create new offenses separate from those to which it makes reference, it does more than provide for minimum sentences applicable to those offenses; it also reclassifies the enumerated offenses based upon the status of the victim. Cf. Wright v. State, 586 So.2d 1024, 1030-31 (Fla.1991)

(observing that "[s]ection 784.07 of the Florida Statutes (1985), which defines the substantive offense [of battery upon a law enforcement officer], requires as an essential element of proof that the victim was in fact a law enforcement officer" (citing Fla. Std. Jury Instr. (Crim.) 93)); Grinage v. State, 641 So.2d 1362, 1369 & n. 3 (Fla. 5th DCA 1994) (assuming, without deciding, that section 784.07(3) creates a new substantive offense), approved, 656 So.2d 457 (Fla.1995); Carpentier v. State, 587 So.2d 1355 (Fla. 1st DCA 1991) (analyzing the "offense described" in section 784.07(3), Florida Statutes (Supp.1988), in determining that the statute was not unconstitutionally vague). Thus, although in Merritt we characterized the statute as an "enhancement statute" to emphasize that it resulted in greater penalties for already-enumerated offenses which qualified under the statute, rather than itself creating new offenses, there is a qualitative difference between a statute which reclassifies enumerated offenses committed against law enforcement officers and enhancement statutes such as the habitual offender statute, "which cut across some or all criminal statutes." State v. Brown, 476 So.2d 660, 662 (Fla. 1985) (holding that a penalty could not be enhanced under section 775.087(1) for a crime in which the use of a deadly weapon was an essential element, because that statute by its express terms did not apply to such felonies). As section 775.084 itself reflects, the Legislature has exempted certain offenses from the ambit of the habitual felony offender statute, as demonstrated by its partial exclusion of felonies committed pursuant to section 893.13, Florida Statutes (relating to the purchase or the possession of a controlled substance). See § 775.084(1)(a)(3), Fla. Stat. (2001) (specifically exempting those convicted of "purchase or possession of a controlled substance," pursuant to section 893.13, Florida Statutes, from a habitual offender sentence); see also Wilson v. State, 752 So.2d 1227 (Fla. 5th DCA 2000) (observing that section 812.014(2)(d), Florida Statutes (1991)—which had previously provided that sentencing for felony petit theft was required under section 775.082 (general criminal penalties), section 775.083 (criminal fines) or section 775.084 (habitual offenders) —was amended, and the reference to section 775.084 (habitual offenders) was deleted). We conclude that the Legislature did not intend felony convictions pursuant to section 784.07 to be so excluded.

Consistent with this legislative intent, offenses which are thus reclassified as felonies pursuant to section 784.07 qualify as felony offenses for purposes of habitual felony offender status, and such treatment does not offend double jeopardy. Here, there was a single underlying offense; the single offense was charged, submitted to a jury, and proven beyond a reasonable doubt. Cf. King v. State, 763 So.2d 546 (Fla. 5th DCA 2000)

(observing that, although there "is a logical argument to be made that battery on a law enforcement officer is a separate crime from battery," this Court's statement in Merritt that section 784.07 is an enhancement statute "should be adhered to by the lower courts," but this did not preclude the Fifth District's holding that King could be sentenced pursuant to both section 784.07 and section 775.084), review denied, 779 So.2d 271 (Fla.2000). Contrary to the petitioner's contention, the First, Second, Fourth and Fifth Districts have held that it is proper, and not proscribed by double jeopardy principles, to sentence a defendant convicted of a crime pursuant to section 775.087 to an enhanced sentence under a recidivist sentencing scheme for which (considering the section 775.087 conviction) the defendant qualifies. See Brown v. State, 789 So.2d 366 (Fla. 2d DCA) (applying prison releasee reoffender statute), review denied, 796 So.2d 535 (Fla.2001); Mills v. State, 773 So.2d 650 (Fla. 1st DCA 2000) (applying habitual felony offender statute); Spann v. State, 772 So.2d 38, 39-40 (Fla. 4th DCA 2000) (applying prison releasee reoffender statute); King v. State, 763 So.2d 546 (Fla. 5th DCA 2000) (applying habitual felony offender statute); cf. also Grant v. State, 770 So.2d 655, 658 (Fla.2000) (approving imposition of a concurrent prisoner releasee reoffender sentence with longer habitual felony offender sentence); Jackson v. State, 659 So.2d 1060, 1063 (Fla.1995) (holding that a defendant could receive a minimum mandatory sentence for possession of a firearm to run concurrently with a habitual felony offender sentence for offenses occurring within a single criminal episode); Perez v. State, 772 So.2d 577, 577 (Fla. 1st DCA 2000) ("Also, we do not find that a double jeopardy violation occurred upon imposition of a habitual violent felony offender sentencing following the reclassification, pursuant to section 784.07, Florida Statutes (1997), of appellant's attempted robbery offense for use of a firearm."). The Court's decision in State v. Whitehead, 472 So.2d 730, 732 (Fla.1985), is instructive in this regard.

In Whitehead, the defendant was convicted of second-degree murder with a firearm. The issue addressed by this Court was whether it constituted an improper double enhancement to apply both section 775.087(1) (providing that, when a person commits a felony with a firearm, the sentence is to be reclassified one category higher) and section 775.087(2) (providing, at that time, for a minimum mandatory sentence of three years for the possession of a firearm during...