Stevens v. State

• Citation: 691 So.2d 622
• Decision Date: 18 April 1997
• Docket Number: No. 96-2492,96-2492
• Parties: 22 Fla. L. Weekly D1001 Solomon STEVENS, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 622

691 So.2d 622

22 Fla. L. Weekly D1001

Solomon STEVENS, Appellant, v. STATE of Florida, Appellee.

No. 96-2492.

District Court of Appeal of Florida,

Fifth District.

April 18, 1997.

Solomon Stevens, Bushnell, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

ANTOON, Judge.

Following his conviction for, among other things, attempted second-degree murder of a law enforcement officer, Solomon Stevens (defendant) was sentenced to life in prison with a mandatory minimum term of twenty-five years. He has appealed the denial of his motion for post-conviction relief filed under Florida Rule of Criminal Procedure 3.850. We reverse because the defendant's sentence is illegal under State v. Iacovone, 660 So.2d 1371 (Fla.1995). ¹

In 1988, the legislature enacted section 784.07(3), Florida Statutes (Supp.1988), which provided that any person convicted of attempting to murder a law enforcement officer would be guilty of a life felony, punishable as provided in section 775.0825, Florida Statutes (Supp.1988). This latter section in turn provided that a person convicted of attempted murder of a law enforcement officer would be required to serve "no less than 25 years before becoming eligible for parole." These statutes made no distinction with regard to the degrees of the murder attempted. In other words, it appeared from the plain reading of the statute that the punishment would be the same regardless of whether the attempt was to commit first-, second-, or third-degree murder.

However, in Iacovone, our supreme court construed sections 784.07(3) and 775.0825 to apply only to the crime of attempted first-degree murder. In so ruling, the court pointed out that, if the statutes were interpreted otherwise, the crimes of attempted second- and third-degree murder would be punished more severely than the completed crime of second- or third-degree murder. For example, a defendant convicted of attempted second-degree murder of a law enforcement officer would receive a sentence of life or forty years with a twenty-five-year mandatory minimum, while a defendant who actually committed second-degree murder would receive no more than thirty years with a twenty-five-year mandatory minimum. Similarly, a defendant convicted of attempted third-degree murder of a law enforcement officer would receive a sentence of life or forty years with a twenty-five-year mandatory minimum, while one who actually committed third-degree murder would receive a term of imprisonment not exceeding fifteen years with a fifteen-year mandatory minimum. 660 So.2d at 1373.

The state acknowledges the holding in Iacovone but argues that the decision cannot be applied retroactively to the defendant's 1990 conviction. We disagree. Pursuant to the test for retroactivity set forth in Witt v. State, 387 So.2d 922 (Fla.1980), Iacovone must be applied retroactively to this case.

In Witt, our supreme court held that a "change in decisional law" will not be considered in a motion for post-conviction relief unless the change: (a) originates in either the United States Supreme Court or the Florida Supreme Court; (b) is constitutional in nature; and (c) has fundamental significance. Witt v. State, 387 So.2d at 931. In reaching this conclusion, the court weighed two conflicting "goals of the criminal justice system--ensuring finality of decision on the one hand, and ensuring fairness and uniformity in individual cases on the other...." Id. at 925. This three-part test was recently affirmed in State v. Callaway, 658 So.2d 983, 986 (Fla.1995).

The Iacovone decision clearly satisfies the first prong of the Witt analysis. The second prong is not as easily resolved because the Iacovone decision rests upon the application of standard rules of statutory construction. However, in a footnote, the court referred to the constitutional implications of the issue, writing:

"Were we to address the constitutional issue, the penalty scheme proposed by the State [applying the statutes to all degrees] would face formidable due process hurdles." See, e.g., State v. Saiez, 489 So.2d 1125, 1128 (Fla.1986) ( [T]he guarantee of due process requires that the means selected shall have a reasonable and substantial relation to the object sought to be obtained....).

State v. Iacovone, 660 So.2d at 1373, n. 1. This language supports the conclusion that the Iacovone decision is constitutional in nature.

The second district court's opinion in Iacovone v. State, 639 So.2d 1108 (Fla. 2d DCA 1994), evinces concern over the due process implications of sections 784.07(3) and 775.0825. While the second district's opinion focuses on equal protection, the court refers to Judge Zehmer's concurring opinion in Carpentier v. State, 587 So.2d 1355, 1359 (Fla. 1st DCA 1991), review denied, 599 So.2d 654 (Fla.1992), wherein he wrote that:

[A statutory scheme that provides] for a single level of punishment for an "attempted murder" of a law enforcement officer while preserving different levels of punishment for the actual murder of such officers ... and ... purports to impose a greater penalty for an "attempted murder in the third degree" than for a consummated killing constituting "murder in the third degree," smacks heavily of arbitrary and capricious legislation so vague and uncertain in meaning that it fails to meet constitutional requirements of due process.

Iacovone v. State, 639 So.2d at 1109-1110, n. 3.

The constitutional nature of the supreme court's opinion is further demonstrated by the court's discussion of the legislative goal of providing maximum protection for law enforcement officers, and the suggestion that this goal would not be served by punishing an attempt more severely than the completed act. This discussion reveals the statute's vulnerability to equal protection arguments, thereby further suggesting that the Iacovone decision is constitutional in nature.

The third and final consideration under the Witt analysis is whether the change in the law has fundamental significance. Changes in the law which have "fundamental significance" fall into two categories: (a) changes in the law which remove authority from the state to regulate certain conduct or to impose certain penalties, and (b) changes in the law which are of such sufficient magnitude to necessitate retroactive application. Witt v. State, 387 So.2d at 929. The change in the law effectuated by the ruling in Iacovone satisfies the first category since the decision has removed from the state the legislative authority to impose certain penalties for the crimes of attempted second- and third-degree murder of law enforcement officers. In other words, the state may no longer punish the attempt to commit a murder more severely than the completed act of murder. ²

In summary, we hold that the decision in Iacovone applies retroactively, and therefore, the defendant's sentence of life imprisonment with a twenty-five-year minimum mandatory term must be reversed. On remand, the trial court must resentence the defendant and treat the crime of attempted second-degree murder of a law enforcement officer as a second-degree felony. Notably, the trial court previously determined that the defendant was a habitual violent felony offender. While habitual offender sanctions can not be imposed for life felonies, see e.g. Wiley v. State, 636 So.2d 547 (Fla. 1st DCA 1994), the instant offense is no longer a life felony and, as a result, on remand the trial court may impose enhanced sanctions.

We certify the following question as one of great public importance:

WHETHER STATE V. IACOVONE, 660 So.2d 1371 (Fla.1995), MUST BE APPLIED RETROACTIVELY.

REVERSED and REMANDED.

PETERSON, C.J., concurs.

GRIFFIN, J., dissents with opinion.

GRIFFIN, Judge, dissenting.

I respectfully dissent. The point at which I part company with the majority is its conclusion that the Iacovone decision is "constitutional in nature." This is based on dictum in footnote one of the Iacovone decision where the court referenced the due process requirement that the means selected have a reasonable and substantial relation to the object sought to be obtained. 660 So.2d at 1373, n. 1. The holding of Iacovone, however, was that section 784.07(3) and section 775.0825, Florida Statutes, in referring to "attempted murder of a law enforcement officer" meant attempted first-degree...