State v. Thomas, 87-665
Decision Date | 26 July 1988 |
Docket Number | No. 87-665,87-665 |
Citation | 13 Fla. L. Weekly 1780,528 So.2d 1274 |
Parties | 13 Fla. L. Weekly 1780 The STATE of Florida, Appellant, v. Henry Lee THOMAS, Appellee. |
Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., and Ivy R. Ginsberg, Asst. Atty. Gen., for appellant.
Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellee.
Before NESBITT and DANIEL S. PEARSON and FERGUSON, JJ.
Upon his conviction for possession of crack cocaine in violation of Section 893.13(1)(e), Florida Statutes (1985), the defendant was sentenced to three years in prison. Because the maximum sentence allowable for this third-degree felony was five years imprisonment, § 775.082, Fla.Stat. (1985), the sentence was necessarily below the guideline sentence of twelve to seventeen years recommended for this defendant, who had a substantial record of prior felony convictions. On appeal, the State claims that where, as here, the recommended guideline sentence exceeds the statutory maximum, Florida Rule of Criminal Procedure 3.701(d)(10) demands that the statutory maximum sentence be imposed, but, if not, that the small quantity of cocaine possessed is not a valid reason for the court's downward departure from the five-year statutory maximum. We disagree that a five-year sentence was required, but agree that the court's given reason for its downward departure was not valid. We thus reverse the sentence and remand the cause for the imposition of a five-year sentence.
Florida Rule of Criminal Procedure 3.701(d)(10) provides:
"Sentences exceeding statutory maximums: If the composite score for a defendant charged with a single offense indicates a guideline sentence that exceeds the maximum sentence provided by statute for that offense, the statutory maximum sentence should be imposed."
(emphasis supplied).
As we perceive it, the State's argument is that "should" is the equivalent of "shall" and that "shall" is mandatory. While we acknowledge that "should" retains its arcane, schoolmarm meaning as a past tense of "shall," its modern usage is as the weaker companion to the obligatory "ought." Thus, it is said that "[o]ught should be reserved for expressions of necessity, duty, or obligation; should, the weaker word, expresses mere appropriateness, suitability or fittingness." B. Garner, A Dictionary of Modern Legal Usage 396 (1987). See University of South Florida v. Tucker, 374 So.2d 16, 17 (Fla. 2d DCA 1979) (). See also Cuevas v. Superior Court, 58 Cal.App.3d 406, 409, 130 Cal.Rptr. 238, 239 (1976) (); Starks v. Kentucky Health Facilities, 684 S.W.2d 5, 7 (Ky.Ct.App.1984) (); Texas & P. Ry. Co. v. Consolidated Co., 180 La. 180, 187, 156 So. 215, 217 (1934) () ; Magnuson v. County of Grand Forks, 97 N.W.2d 622, 624 (N.D.1959) (); Baldassarre v. West Oregon Lumber Co., 193 Or. 556, 563, 239 P.2d 839, 842 (1952) ; Roanoke Memorial Hospitals v. Kenley, 3 Va.App. 599, 606, 352 S.E.2d 525, 529 (1987) ( ). But even if, arguendo, we were to accept the extremely doubtful synonymy of "should" and "shall," the simplistic argument that "shall" is necessarily mandatory ignores the well-accepted rule that "[w]hether 'shall' is mandatory or discretionary will depend ... upon the context in which it is used and the legislative intent expressed in the statute." Allied...
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...‘the weaker companion to the obligatory “ought.” ’ ”) (quoting Webster's New Collegiate Dictionary 1065 (1979); State v. Thomas, 528 So.2d 1274, 1275 (Fla.Dist.Ct.App.(1988))). Louisiana Seafood also relies on Bryan Garner's A Dictionary of Modern Legal Usage, the most recent edition of whi......
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...rejects this "arcane" meaning and instead defines "should" as "the weaker companion to the obligatory 'ought.' " State v. Thomas, 528 So.2d 1274, 1275 (Fla. 3d DCA 1988) (citing Texas & P. R. Co. v. Consolidated Companies, 180 La. 180, 187, 156 So. 215, 217 (1934), in which this court ruled......
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...in this subsection. "Shall" as used in a statute has been construed to be either mandatory or directory in its effect. State v. Thomas, 528 So.2d 1274 (Fla. 3d DCA 1988); See Tibbals Flooring Company v. Marcum, 218 Tenn. 509, 404 S.W.2d 498 (1966); Compare Smith v. James Pirtle Construction......
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