State v. Johnson, 92-0306
| Decision Date | 24 November 1993 |
| Docket Number | No. 92-0306,92-0306 |
| Citation | 627 So.2d 98 |
| Parties | 18 Fla. L. Weekly D2494 STATE of Florida, Appellant, v. Wilton JOHNSON, Appellee. |
| Court | Florida District Court of Appeals |
Appellee was sentenced for delivery of, and possession with intent to sell, cocaine within one thousand feet of a school, in violation of section 893.13(1)(e)1, Florida Statutes (1989). That statute imposes a three year minimum sentence. The trial court sentenced Appellee to three and one-half years in prison, but did not designate that the statutorily required minimum three-year sentence was applied. The state appeals, arguing that the box on the printed sentence form used by the court must be checked, indicating that a statutory minimum sentence is imposed in conjunction with a sentence exceeding the statutory minimum. We agree and reverse. See State v. McKenzie, 574 So.2d 1176 (Fla. 5th DCA 1991) (en banc), receding from State v. Hall, 538 So.2d 468 (Fla. 5th DCA), rev. denied, 547 So.2d 1211 (Fla.1989).
The trial court relied on State v. Moran, 561 So.2d 685 (Fla. 4th DCA 1990) in concluding that it was not required to address the mandatory minimum term in its sentence. We recede from any inference which may be drawn from a reading of Moran to the extent that it conflicts with this opinion. In Moran, this court cited Hall. However, the Fifth District, as indicated above, receded from Hall in McKenzie.
We resolve the issue en banc in order to clarify the obligation of the sentencing judge to check off applicable provisions on the sentencing form in order to avoid confusion. 1 We recognize that nothing of ultimate significance may occur, regardless of whether the court checks or fails to check the statutory minimum box provided on the sentencing form. The sentence imposed exceeds the mandatory minimum. Any impact of the minimum sentence provisions of the statute on the length of sentence actually served is provided by law and does not result from an exercise of court discretion. The judgment and sentence advise the Department of Corrections as to which statute was violated and the length of sentence imposed. The department takes it from there. No statute mandates that the trial court redundantly specify that the violated statute provides for a minimum sentence, nor do we disagree with those statements in Judge Cowart's dissent in McKenzie which recognize that this is the case. Therefore, in receding, we do not declare that this court erred in Moran. Nevertheless, in accord with Judge Griffin's concurring opinion in McKenzie, 2 we conclude that it is patently confusing to provide specific applicable language in the sentence form, with a box to check, when imposing a sentence pursuant to this statute, and to leave the box blank. Although we cannot be certain as to how such an omission will modify the actual time served on Appellee's sentence, the state's concern that the omission may result in the Department of Corrections' ignoring the minimum sentence provision and its impact is valid and should be addressed.
We note that rule 3.986, Florida Rules of Criminal Procedure, providing a uniform sentence form, implicitly recognizes that sentencing courts should indicate that the sentence includes the imposition of a statutory minimum by checking off a space provided, although the rule does permit variations from the provided form. That form now includes a section for indicating that the three-year minimum penalty of section 893.13(1)(e)1 was imposed. Fla.R.Crim.P. 3.986(d). Here, the sentence form used by the trial court includes a box provided for the purpose of indicating whether the minimum sentence provisions of section 893.13(1)(e)1 were applied or are applicable.
Therefore, the sentence is reversed with instructions to modify the sentence on remand in accordance with this opinion.
Today this court elevates microanalysis of sentencing judgments to truly rarefied levels by insisting, as our decision today undoubtedly does, that it is not enough for the sentencing judge to do everything the statutes require and to refrain from doing what they prohibit. We now effectually hold, in addition, that the trial judge must indicate on the sentencing form just how much of the sentence the defendant must actually serve.
The court announces that it is prompted in its decision by the opinion of the Fifth District en banc in State v. McKenzie, 574 So.2d 1176 (Fla. 5th DCA 1991). I, however, agree with the views and conclusions reached by Judges Sharp and Cowart in their dissenting opinions in McKenzie. They demonstrate that statutes requiring mandatory minimum sentences go no farther than to impose an obligation on a sentencing judge: (a) to incarcerate rather than impose some lesser penalty, and (b) impose a period of incarceration not less than some prescribed minimum duration. 3 Once these things have been accomplished in the sentence imposed, the command of the mandatory sentencing provision has been fully satisfied.
The court's apparent concern is whether the defendant actually serves the entire mandatory minimum period. The only purpose served by requiring sentencing judges to check a mandatory minimum box--or, I suppose, otherwise indicate in a sentence prepared without the use of the optional form--is to affect how the prison authorities execute the sentence. In other words, the purpose is to influence the executive branch, prison authorities on how they carry out their separate duties in making parole decisions or, as Judges Sharp and Cowart show, in allocating gain time or provisional credits to the person sentenced.
My colleagues worry that, if the sentencing order does not say in so many words that the imposition of a 4 1/2 year sentence includes a 3 year mandatory minimum period, the prison authorities might not know that fact. But the sentencing order identifies the statute under which the sentence was imposed, here section 893.13(1)(e). The statute under which the sentence was imposed will tell them whether a mandatory minimum period is involved and whether it is less than a larger guidelines period. In the circumstances, there is no logical reason not to suppose that the greater period imposed subsumes the lesser required period.
If they err in calculating how much of the sentence must actually be served,...
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Allen v. State
...by other means, without a judicial order, it would be questionable whether minimum service was required); see also State v. Johnson, 627 So.2d 98 (Fla. 4th DCA 1993) (en banc) (receding from State v. Moran, 561 So.2d 685 (Fla. 4th DCA 1990)); State v. McKenzie, 574 So.2d 1176 (Fla. 5th DCA ......
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Anderson v. State
...sentencing form to indicate the twenty-five year minimum mandatory provision which was orally imposed. See State v. Johnson, 627 So.2d 98 (Fla. 4th DCA 1993)(en banc). GLICKSTEIN, STEVENSON and SHAHOOD, JJ., ...