Pappas v. State
| Decision Date | 13 April 2022 |
| Docket Number | 1D21-1596 |
| Citation | 346 So.3d 1200 |
| Parties | Gregory James PAPPAS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Gregory James Pappas, pro se, Appellant.
Ashley Moody, Attorney General, and Jovona I. Parker, Assistant Attorney General, Tallahassee, for Appellee.
In 2007, Appellant fired a flare gun at a vehicle occupied by a woman and her daughter. The State charged him with shooting at, into, or within an occupied vehicle and aggravated assault with actual possession and discharge of a firearm. A jury convicted him as charged and made specific findings that he possessed a firearm and discharged it during the course of the offense. The trial court imposed a twenty-year minimum mandatory sentence as an enhanced penalty under section 775.087(2), Florida Statutes (2007), the 10 - 20 -Life statute, for discharging a firearm during the aggravated assault.
On February 1, 2021, Appellant filed the instant postconviction motion claiming the twenty-year mandatory minimum sentence for aggravated assault was illegal because aggravated assault was not an enumerated offense that qualified for enhanced penalties for discharging a firearm under section 775.087(2).1 Without the enhancement for discharging a firearm, the maximum sentence Appellant could have lawfully received for aggravated assault was five years’ imprisonment.
Appellant's arguments rely on amendments to the 10-20-Life statute and the "Savings Clause" under article X, section 9 of the Florida Constitution. In 2016, the Legislature amended the 10-20-Life statute to remove aggravated assault from the list of enumerated offenses. Appellant claimed that the amendment applied retroactively to his sentence. In 2018, the "Savings Clause" was amended to allow the Legislature to apply amendments to criminal statutes retroactively.
Appellant argued that he timely raised the claim in the instant motion on February 1, 2021. The fundamental constitutional right asserted was not established within the two-year period generally applicable to motions for postconviction relief under rule 3.850. See Fla. R. Crim. P. 3.850(b)(2). The fundamental constitutional right became retroactive on May 9, 2018, when the Legislature amended the Savings Clause. Art. X, § 9, Fla. Const. Appellant did not file within the two years following this amendment due to excusable neglect. Appellant had until May 9, 2020, to timely bring his motion but was prevented from doing so by exigencies caused by COVID-19.
The postconviction court summarily denied relief finding the motion did not meet rule 3.850 ’s pleading requirements and that Appellant's sentence was not illegal.
On appeal, Appellant reiterates his argument that his sentence is illegal, and he argues that he has shown that the amendment to section 775.087(2) satisfied all the requirements for retroactive application. Moreover, he argues that the magnitude of the change—removal of aggravated assault from the list of felonies that may be enhanced—mandates retroactive application as a matter of law, notwithstanding legislative intent to the contrary as expressed in section 775.022(4). He also argues that his sentence, and the sentences of all similarly situated defendants, are disproportionate to the sentences of those sentenced for aggravated assault after the 2016 amendment.
Appellant is not entitled to relief. The 2016 amendment to the 10-20-Life statute is not retroactive. See Sheaffers v. State , 243 So. 3d 518, 519–20 (Fla. 1st DCA 2018) (); see also Stapleton v. State , 286 So. 3d 837, 839 (Fla. 5th DCA 2019) (); State v. Reininger , 254 So. 3d 996, 999 (Fla. 4th DCA 2018) (); Wright v. State , 225 So. 3d 914, 915–16 (Fla. 1st DCA 2017) (Wolf, J., concurring) (). Appellant also concedes that the Savings Clause precluded the Legislature from retroactively applying the 2016 amendment to section 775.087(2).
Furthermore, the 2018 amendment to the Savings Clause does not require retroactive application of the 2016 amendment to the 10-20-Life statute to Appellant and similarly situated defendants. "[U]nder the rules of statutory construction, there must be a clear expression of intended retrospective application." Orme v. State , 25 So. 3d 536, 547 (Fla. 2009). The Legislature has not made the 2016 amended section 775.087(2) retroactive.2 As Appellant correctly pointed out, the Savings Clause as amended and effective January 8, 2019, repealed the constitutional prohibition against applying a substantively amended criminal statute retroactively. Jimenez v. Jones , 261 So. 3d 502, 504 (Fla. 2018). However, that repeal did not "mandate[ ] affirmative application of the action previously prohibited," id. at 503, and "the Legislature did not attempt to apply section 775.087 retroactively." Stapleton , 286 So. 3d at 839. Rather, section 775.022, enacted on June 7, 2019, provides:
§ 775.022(3), Fla. Stat. (2019). Subsections (4) and (5) provide exceptions for retroactive application where the penalty, forfeiture, or punishment has not yet been imposed, and where a judgment and sentence has not yet become final. See Dean v. State , 303 So. 3d 257, 259 (Fla. 5th DCA 2020) (distinguishing Stapleton ). In light of section 775.022(3) ’s expression of legislative intent, Appellant's argument for retroactive application of section 775.087(2) fails.
Appellant's remaining arguments, that the firearm enhancement is unconstitutionally disproportionate as applied and that such application violates equal protection, are meritless. The claims are untimely if treated as filed under rule 3.850 as Appellant did not raise them within two years of his convictions and sentences becoming final, within two years of the sentencereducing amendment, or within two years of the effective date of the constitutional amendment, and they are not based on a fundamental constitutional right that has been held to apply retroactively. See Fla. R. Crim. P. 3.850(b)(2) ; cf. Charlemagne v. State , 168 So. 3d 245, 245 (Fla. 5th DCA 2015) (). A rule 3.800(a) motion to correct an illegal sentence is intended to address cases in which the sentence imposed involves a penalty not authorized by law. Bover v. State , 797 So. 2d 1246, 1249 (Fla. 2001) (citing Judge v. State , 596 So. 2d 73, 77 (Fla. 2d DCA 1991) ). Appellant's claim that his sentence is disproportionate to other defendants’ sentences imposed for the same offense is not cognizable in a rule 3.800(a) motion. Shivers v. State , 96 So. 3d 1039, 1040 (Fla. 4th DCA 2012) (). Appellant's claim that his sentence violates equal protection is not cognizable in a 3.800(a) motion because it challenges the enhancement statute rather than his sentence and is thus not a proper claim in a motion to correct an illegal sentence. See State v. Arrington , 95 So. 3d 324, 326 (Fla. 4th DCA 2012) (); Delancy v. Tucker , 88 So. 3d 1036, 1037 (Fla. 1st DCA 2012) ().
Appellant's arguments regarding proportionality and...
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