Myers v. State, 96-1785

• Decision Date: 25 June 1997
• Docket Number: No. 96-1785,96-1785
• Citation: 696 So.2d 893
• Parties: 22 Fla. L. Weekly D1515 Michael MYERS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 893

696 So.2d 893

22 Fla. L. Weekly D1515

Michael MYERS, Appellant, v. STATE of Florida, Appellee.

No. 96-1785.

District Court of Appeal of Florida Fourth District.

June 25, 1997.

Rehearing and Clarification Denied

July 23, 1997.

Richard L. Jorandby, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

FARMER, Judge.

Today we confront the punitive calculus effected by the 1993 and 1994 revisions to the sentencing guidelines. ¹ After analyzing the pertinent statutory text, we reverse the sentences imposed in this case. In so doing, we have not lightly rejected the construction placed on the same statutes by two other District Courts of Appeal and thus certify conflict.

First, the necessary facts. Defendant pleaded guilty to 3 counts of sexual battery (without great force) and 2 counts of battery on a person 65 or older. ² His guidelines scoresheet reflects the following assessments of points. First, he scored 74 points for the primary offense of sexual battery, a level 8 offense. Next he scored 19.2 points for the two other sexual batteries as additional offenses and 7.2 points for the two counts of battery on a person 65 or older. Then for victim injury, he scored 128 points determined as follows: 40 points each for the three sexual battery counts involving penetration; and 4 points each for slight victim injury for the two battery counts. His prior juvenile record added an additional .6 point. In the end, his guidelines scoresheet showed a total of 229 points. On the basis of this scoresheet, his sentence computation is 201 state prison months, or 16.75 years.

The trial court imposed a sentence of 18 years on each of the sexual battery counts, and a sentence of 5 years on each of the counts of battery on a person 65 or older. The 18 year sentences for sexual battery were to be followed by 2 years of community control and 8 years of probation. All sentences are to run concurrently. This was not a departure sentence with written reasons; rather it was imposed as a straight guidelines sentence.

Defendant begins his argument on appeal by pointing to section 921.001(5), Florida Statutes (Supp.1994), which provides as follows:

"(5) Sentences imposed by trial court judges under the 1994 revised sentencing guidelines on or after January 1, 1994, must be within the 1994 guidelines unless there is a departure sentence with written findings. If a recommended sentence under the guidelines exceeds the maximum sentence otherwise authorized by s. 775.082, the sentence under the guidelines must be imposed, absent a departure. If a departure sentence, with written findings, is imposed, such sentence mustbe within any relevant maximum sentence limitations provided in s. 775.082. The failure of a trial court to impose a sentence within the sentencing guidelines is subject to appellate review pursuant to chapter 924. However, the extent of a departure from a guidelines sentence is not subject to appellate review." [e.s.]

Next he asserts that section 775.082(3)(c), Florida Statutes (Supp.1994), prescribes 15 years as the maximum sentence for these sexual battery convictions. ³ Counsel then argues as follows:

"The sentences of 18 years are illegal because the 'guideline recommended sentence' was not in excess of the statutory maximum. Under the terms of the statute the court below could not impose sentence beyond the statutory maximum allowed by section 775.082. The statute uses the term 'guideline recommended sentence' without specifically defining that term. In order to effectuate its procedure the statute refers to the guidelines. The guidelines are contained in the Rules of Criminal Procedure, specifically as applicable to the present case Rule 3.702 (1994). There the term, 'recommended sentence' is used to mean the sentencing range that the trial court must utilize absent a departure. The term 'presumptive sentence' is not used in the Rule. The presumptive sentence is defined by the statute as the guideline score converted into the same number of months to be served. Thus, the 'guideline recommended sentence' in this case is not the 16 years but the range between 12 and 20 years and thus it was not necessary to exceed the maximum statutory sentence to impose a guideline sentence. A sentence could have been imposed within both the statutory maximum and within the guidelines recommended range. The 16 years is the 'presumptive sentence' which has no meaning as far as the statutory authority in section 921.001(5) to impose sentence in excess of the statutory maximum."

There are a number of misconceptions in this argument which require a word or two.

First, the guidelines are adopted by and contained in the statutes, namely chapter 921, Florida Statutes. The Rules of Criminal Procedure repeat the substantive provisions of the statutes in the effort to implement them. We look to the statutes, however, for the meaning and content of the sentencing guidelines, not the rules. Any doubt as to the accuracy of the foregoing analysis is laid to rest in Smith v. State, 537 So.2d 982 (Fla.1989), where the court said:

"rules 3.700 and 3.988 as originally enacted in 1983 were invalid. Whether this case is viewed as one involving a legislative power which cannot be delegated or one in which the legislature failed to provide sufficiently ascertainable standards under which the delegation of authority could be sustained, we are convinced that section 921.001 did not legally authorize this Court to promulgate the grid schedules and recommended ranges for sentencing. Even though the legislative and judicial branches were working together to accomplish a laudable objective, the fact remains that by enacting rules which placed limitations upon the length of sentencing, this Court was performing a legislative function. Moreover, while section 922.001 mandated the establishment of rules to reduce the disparity in sentencing, the delegation of authority provided little or no guidance concerning how the schedules were to be prepared or the criteria to be considered in determining the recommended ranges.

"Our holding does not mean that the sentencing guidelines are now invalid. When the legislature adopted rules 3.701 and 3.988 in chapter 84-328, the substantive/procedure problem was resolved because the rules then became a statute. This practice has been followed thereafter when the legislature has chosen to adopt new Supreme Court rule changes."

537 So.2d at 987. This is precisely the rationale used recently by the fifth district in rejecting the same kind of argument in Gardner v. State, 661 So.2d 1274 (Fla. 5th DCA 1995), where the court stated:

"Gardner further challenges the validity of section 921.001(5), arguing that the legislature improperly vested the Sentencing Guidelines Commission with rule-making authority on a matter of substantive law. He contends that the rule-making authority resulted in the enactment of section 921.001(5), which authorizes the imposition of sentences in excess of the statutory maximum. This argument fails, because the enactment of section 921.001(5) was an act of the legislature, not a rule or regulation of the sentencing commission."

661 So.2d at 1276. Consequently, there can be no serious contention that we should look to the rules for the substance and content of the sentencing guidelines.

Second, although the definitional provisions of the sentencing guidelines, see section 921.0011, Florida Statutes (1993), do not contain a specific definition of the term "recommended guidelines sentence", another statute does specify the content underlying the term. Section 921.0014(2) provides as follows:

"(2) Recommended sentences:

"If the total sentence points are less than or equal to 40, the recommended sentence shall not be a state prison sentence; however, the court, in its discretion may increase the total sentence points by up to, and including, 15 percent.

If the total sentence points are greater than 40 and less than or equal to 52, the decision to incarcerate in a state prison is left to the discretion of the court.

If the total sentence points are greater than 52, the sentence must be a state prison sentence calculated by total sentence points. A state prison sentence is calculated as follows:

State prison months = total sentence points minus 28.

The recommended sentence length in state prison months may be increased by up to, and including, 25 percent or decreased by up to, and including, 25 percent, at the discretion of the court. The recommended sentence length may not be increased if the total sentence points have been increased for that offense by up to, and including, 15 percent. If a recommended sentence under the guidelines exceeds the maximum sentence otherwise authorized by s. 775.082, the sentence recommended under the guidelines must be imposed absent a departure.

If the total sentence points are equal to or greater than 363, the court may sentence the offender to life imprisonment. An offender sentenced to life imprisonment under this section is not eligible for any form of discretionary early release, except pardon, executive clemency, or conditional medical release under s. 947.149." [e.s.]

See § 921.0014(2), Florida Statutes (Supp.1994). Under section 921.0014(2), the nature of the recommended sentence depends on the total points assessed: if the points are under 40, the court may not sentence to state prison but may increase the point total by up to 15%; if the points are between 40 and 52, the court may in its discretion imprison; if the points are greater than 52 the court must imprison; and if the points are greater than 362 the court may imprison for life. Here the points were 229, so the recommended sentence is therefore 201 months, or 16.75 years.

The highlighted text of section 921.0014(2),...