Palmer v. State

• Decision Date: 01 September 1983
• Docket Number: No. 62,449,62,449
• Parties: Ronald Gene PALMER, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 1

438 So.2d 1

Ronald Gene PALMER, Petitioner, v. STATE of Florida, Respondent.

No. 62,449.

Supreme Court of Florida.

Sept. 1, 1983.

Rehearing Denied Oct. 19, 1983.

Richard L. Jornadby, Public Defender and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for petitioner.

Jim Smith, Atty. Gen. and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for respondent.

McDONALD, Justice.

This case is before us to review a decision of the Fourth District Court of Appeal, Palmer v. State, 416 So.2d 878 (Fla. 4th DCA 1982). We quash that portion of the district court's opinion allowing the imposition of cumulative three-year mandatory minimums for each of thirteen consecutive sentences arising from the same criminal episode.

On July 28, 1979 Ronald Gene Palmer walked into an Oakland Park funeral parlor during a wake, held a revolver to the head of the assistant funeral director, and ordered him to inform the twenty-five to thirty mourners present that a robbery was taking place. Brandishing the pistol, Palmer ordered the mourners to throw their money and valuables on the floor and threatened to kill them if they failed to comply. He also forced the assistant director to open the funeral home cash box. After fifteen to twenty minutes, and having stuffed the mourners' cash and wallets into his pockets and waistband, Palmer left the funeral home. He was apprehended almost immediately by police responding to a call from mourners who had managed to sneak out a side door of the funeral home without being noticed. Police returned Palmer to the funeral home where those he had just victimized identified him as the robber.

After trial, during which defense counsel's argument centered on Palmer's state of mind at the time he committed the acts charged, a Broward County jury convicted Palmer on all counts of a sixteen-count information. The trial court sentenced Palmer to seventy-five years' imprisonment on each of thirteen robbery counts, the sentences to run consecutively for a total of 975 years. The court also imposed the mandatory minimum of three years on each robbery count for a total of thirty-nine years. On counts of aggravated assault and carrying a concealed firearm Palmer received sentences of five years for each, consecutive to each other and to the robbery counts. The trial court retained jurisdiction on all fifteen sentences for a total of 328 1/3 years of the total 985-year sentence. On appeal the fourth district affirmed all aspects of the convictions and sentences, except that it reversed the retention of jurisdiction over one-third of the sentence for carrying a concealed weapon.

We are primarily concerned with the issue of whether the trial court erred in imposing three-year mandatory minimums on each of thirteen consecutive sentences, for a total of thirty-nine years without eligibility for parole. We conclude that this portion of the sentences imposed constitutes reversible error.

Subsection 775.087(2), Florida Statutes (1981), provides that any person who had in his possession a firearm during the commission of certain specified felonies, including robbery, shall be sentenced to a minimum term of imprisonment of three calendar years. Subsection 775.021(4), Florida Statutes (1981), requires separate sentences for separate offenses ¹ arising from a single criminal transaction or episode and allows the trial court to order the sentences served concurrently or consecutively. The state contends that these two sections, when read in pari materia, allow the "stacking" of consecutive mandatory three-year minimum sentences. We disagree.

We rely in part upon a fundamental rule of statutory construction, i.e., that criminal statutes shall be construed strictly in favor of the person against whom a penalty is to be imposed. Ferguson v. State, 377 So.2d 709 (Fla.1979). We have held that " 'nothing that is not clearly and intelligently described in [a penal statute's] very words, as well as manifestly intended by the Legislature, is to be considered as included within its terms.' " State v. Wershow, 343 So.2d 605, 608 (Fla.1977), quoting Ex Parte Amos, 93 Fla. 5, 112 So. 289 (1927). This rule of construction has, in fact, been codified as part of the very statute on which the state relies. ² Nowhere in the language of section 775.087 do we find express authority by which a trial court may deny, under subsection 775.087(2), a defendant eligibility for parole for a period greater than three calendar years.

The Florida Constitution delegates exclusively to the executive branch the power to grant paroles or conditional releases to persons under sentences for crime. Art. IV, § 8(c), Fla. Const. It is true that we have previously rejected attacks on the constitutionality of statutes requiring that those persons convicted of certain offenses serve X number of years without eligibility for a parole. In Owens v. State, 316 So.2d 537 (Fla.1975), we held that the statute mandating a minimum sentence of twenty-five years without eligibility for parole, upon conviction of a capital felony, did not usurp the power of the Parole and Probation Commission, nor did it violate Florida's constitutional scheme for separation of powers. Id. at 538. The statute under consideration sub judice was upheld against a similar constitutional attack in Scott v. State, 369 So.2d 330 (Fla.1979). In Owens and Scott, however, the sentences imposed, with no possibility of parole, were for exactly the term of years expressly authorized by statute. Palmer, on the other hand, was sentenced to thirty-nine years, without eligibility for parole, based on a statute expressly authorizing denial of eligibility for parole for only three years.

As we noted in Owens, the legislature reserved to itself, at the time it created the Parole and Probation...