Walsh v. State
| Decision Date | 04 March 2016 |
| Docket Number | 2D14–4920.,Nos. 2D14–4735,s. 2D14–4735 |
| Citation | 198 So.3d 783 |
| Parties | Harry Martin WALSH, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender, and Dane K. Chase, Special Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Lisa Martin, Assistant Attorney General, Tampa, for Appellee.
Harry Martin Walsh, Jr. appeals his convictions and sentences, totaling 63.5 years in prison, for possession of child pornography. See §§ 827.071(5)(a), 775.0847, Fla. Stat. (2012). We have jurisdiction. See Fla. R.App. P. 9.140(b)(1)(A). We consolidated these cases for purposes of this opinion. We affirm on all issues raised by Mr. Walsh. We write to discuss section 775.0847, the child pornography reclassification statute. We also remand for the trial court to correct a scrivener's error in the sentence for case number 2D14–4735.
Pursuant to an open plea of no contest, the trial court convicted Mr. Walsh of ten counts of possession of child pornography (ten or more images) on his home computer in case number 2D14–4735 and seven counts of possession of child pornography (ten or more images) on his business computer in case number 2D14–4920. See §§ 827.071(5)(a), 775.0847. Although the plea involved 170 images of child pornography, law enforcement officers discovered over 3000 pornographic images on Mr. Walsh's home computer.
The State reclassified Mr. Walsh's offenses pursuant to section 775.0847(2) and (3) :
The State sorted the 170 total images into groups of ten; each group included an image of a sexual battery on a child. The State then charged one count of “possession of child pornography-ten or more images” for each group of ten. The State reclassified each of the seventeen counts to a second-degree felony. Each count, therefore, exposed Mr. Walsh to a statutory maximum sentence of fifteen years. See § 775.082(3)(d).
Mr. Walsh argues that the trial court could not convict him for seventeen separate counts. He contends that section 775.0847 required the State to charge any number of images arising from a single criminal episode totaling ten or more as a single offense. Thus, Mr. Walsh posits that he could not have been convicted for more than one count in each case, and that thus the trial court violated double jeopardy.1 We disagree.
Under section 827.071(5)(a), “[t]he possession ... of each such ... image ... is a separate offense. ” (Emphasis added.) Consequently, this is not double jeopardy. The State could have charged each of the 170 images as a separate count. As third-degree felonies, Mr. Walsh would have faced up to 850 years in prison. Section 775.0847 does not constrain the State's charging discretion. Rather, section 775.0847 allows the State to reclassify violations of section 827.071 to second-degree felonies if the offender possesses ten or more images and the content of at least one image contains at least one of the types of images listed in the statute. Id. Read together, the statutes contemplate a possible separate charge for each image and allow for upward reclassification if the number of images totals ten or more. Section 775.0847 does not require the State, as it did here, to limit the charges to one offense per ten images in order to reclassify. Indeed, the State could have charged Mr. Walsh with 170 second-degree felonies. As the State pointed out at sentencing, Mr. Walsh benefitted by the State charging only one offense for each group of ten images.
In case 2D14–4735, the trial court sentenced Mr. Walsh to the guidelines minimum sentence of 18.5 years for count one, 15 years consecutive for count two, 15 years consecutive for count three, and 15 years each for counts four to ten concurrent to counts one to three, for a total of 48.5 years. In case 2D14–4920, the trial court sentenced him to 15 years for each of the seven counts, concurrent to each other and consecutive to the sentences in case 2D14–4735. His total sentence is 63.5 years.2 Citing Hale v. State, 630 So.2d 521, 524 (Fla.1993), Mr. Walsh argues that his sentences were enhanced and therefore he was not subject to consecutive sentences because the offenses arose from the same criminal episode. Mr. Walsh preserved this issue for review by filing a timely motion to correct sentencing error. See Fla. R.Crim. P. 3.800(b). Declining to extend Hale to this case, the trial court denied the motion. Our review of the trial court's order is de novo. Kittles v. State, 31 So.3d 283, 284 (Fla. 4th DCA 2010).
Mr. Walsh's reliance on Hale is misplaced. Hale held that for multiple crimes committed during a single criminal episode, upon enhancing sentences for a habitual violent felony offender (HVFO) through mandatory minimums pursuant to section 775.084(4)(b), Florida Statutes (1991), the trial court could not further increase the total penalty by ordering the mandatory minimum sentences to run consecutively.
Hale, 630 So.2d at 525 ; see also Daniels v. State, 595 So.2d 952, 954 (Fla.1992). Enhancements enable the trial judge “to impose a more severe sentence for a convicted offense when certain factual findings have been made.” Pethtel v. State, 177 So.3d 631, 637 (Fla. 2d DCA 2015). The enhancement statute stands separately from the sentencing statute for the underlying crime and allows imposition of a sentence longer than the statutory maximum or mandatory minimum.
In Mills v. State, 822 So.2d 1284, 1286–87 (Fla.2002), the supreme court explained the difference between enhancement and reclassification statutes. Enhancement statutes increase the penalties for enumerated offenses defined in other statutory provisions. Id. at 1286 ; see also Pethtel, 177 So.3d at 637. Reclassification statutes, on the other hand, do not “create new offenses separate from those to which [they] make[ ] reference, [but they do] more than provide for minimum sentences applicable to those offenses; [they] also reclassif[y] the enumerated offense[ ].” Mills, 822 So.2d at 1287.
The statute in question here, section 775.0847(2), provides that “[a] violation of s. 827.071... shall be reclassified to the next higher degree” under certain statutorily dictated conditions. (Emphasis added.)3 As we explained in Pethtel, a statute that increases “a criminal conviction from one degree to a higher degree” based on certain factual requirements is a reclassification statute that operates independently from enhancement statutes. 177 So.3d at 637.4 Section 775.0847 authorizes the trial court to reclassify a violation of the child pornography statute, section 827.071, when it finds that the requirements of subsections (a) and (b) have been met. In an analogous situation, the Fourth District held in Talley v. State, 877 So.2d 840, 842 (Fla. 4th DCA 2004), that reclassifying the degree of offenses arising from a single episode under section 784.07 where the victim was a law enforcement officer and then imposing consecutive sentences was legal because section 784.07 is not an enhancement statute.
In Hale, the habitual felony offender statute provided for prison terms longer than the statutory sentencing maximums by increasing total prison time and by adding minimum sentences. 630 So.2d at 523 ; see also § 775.084. Had the trial court not found Hale to be an HVFO, it could have imposed his separate sentences for the possession and the sale of cocaine consecutively. Hale, 630 So.2d at 525. However, section 775.084(4)(b),5 gave the trial court discretion to enhance Hale's sentence as an HVFO to a prison term not exceeding thirty years per count and to impose a ten-year mandatory minimum sentence. Hale, 630 So.2d at 523. The trial court sentenced Hale to two consecutive twenty-five-year HVFO terms, each with a ten-year mandatory minimum; thus, he would serve a minimum of twenty years in prison. Id.
In holding that only one HVFO mandatory minimum term could be imposed, Hale “distinguished statutory sentences [for underlying offenses] in which the legislature ... included a minimum mandatory sentence, such as the sentences for capital crimes,[6 ]from sentences in which there is no minimum mandatory penalty although one may be provided as an enhancement through the habitual violent offender statute.” Id. at 524. The supreme court explained that although the legislature intended to provide for longer periods of incarceration for repeat felony offenders, the statute lacked the specific legislative authorization for the trial court to both enhance Hale's sentence as a habitual offender and further increase it by ordering that the sentences run consecutively. Id.7
The trial court properly declined to extend Hale to Mr. Walsh's cases. Section 827.071(5)(a) reclassifies the offense; it does not enhance the sentence, the concern addressed in Hale. The maximum sentence for possession of child pornography, a third-degree felony with a statutory maximum of five years, is increased to fifteen years under...
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