Lead Opinion
This сase is before the Court for review of the Fourth District Court of Appeal’s decision in Rochester v. State,
I. BACKGROUND
Kemar Rochester was convicted of lewd or lascivious molestation of a child under the age of twelve in violation of section 800.04(5)(b), Florida Statutes (2008). Pri- or to sentencing, Rochester filed a motion seeking a downward departure sentence pursuant to section 921.0026(2)©, Florida Statutes (2008), which provides for downward departures in sentencing if certain
The Fourth District affirmed the trial court, concluding that the legislature intended to impose a mandatory minimum sentence of twenty-five years’ imprisonment in section 775.082(3)(a)4. Rochester,
II. ANALYSIS
Lewd or lascivious molestation of a child under twelve by an adult is “a life felony, punishable as provided in s. 775.082(3)(a)4.” § 800.04(5)(b), Fla. Stat. (2008). Section 775.082(3)(a)4. provides as follows:
(3) A person who has been convicted of any other designated felony may be punished as follows:
(a) ....
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4.a. Except as providеd in sub-sub-paragraph b., for a life felony committed on or after September 1, 2005, which is a violation of s. 800.04(5)(b), by:
(I) A term of imprisonment for life; or
(II) A split sentence that is a term of not less than 25 years’ imprisonment and not exceeding life imprisonment, followed by probation or community control for the remainder of the person’s natural life, as provided in s. 948.012(4).
b. For a life felony committed on or after July 1, 2008, which is a person’s second or subsequent violation of s. 800.04(5)(b), by a term of imprisonment for life.
The certified conflict issue in this case is whether the twenty-five year sentence set forth in subsection (3)(a)4.a(II) above is a mandatory minimum sentence.
We find that, contrary to Rochester’s argument, the use of the term
III. CONCLUSION
For the reasons explained above, we approve the decision of the Fourth District in Rochester and disapprove the Second District’s decision in Montgomery to the extent that it is inconsistent with this opinion.
It is so ordered.
Notes
. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
. Section 921.0026, Florida Statutes (2008), "applies to any felony offense, except any capital felony, committed on or after October 1, 1998,” and its subsection (2) provides as follows: "Mitigating circumstances under which a deрarture from the lowest permissible sentence is reasonably justified include, but are not limited to: .... (j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.”
. We do not reach the State’s argument that, while imposing a mandatory minimum sentence of twenty-five years’ imprisonment, section 775.082(3)(a)4. doеs not preclude the application of gain time. This issue was not addressed by the Fourth District and is not properly before this Court.
Dissenting Opinion
dissenting.
I dissent because the applicable statute does not preclude trial courts from imposing a downward departure sentence. Specifically, unlike a “mandatory minimum” statute that requires the defendant to serve a minimum sentеnce day-for-day, section 775.082(3)(a)4., Florida Statutes (2008), does not contain any language indicating that the twenty-five-year sentencing minimum it sets forth is a “mandatory minimum” sentence that must be served day-for-day, or that the application of gain time or other early release schemes is prohibited.
In my view, because there is no requirement that the defendant serve the twenty-five-year minimum sentence provided in section 775.082(3)(a)4. day-for-day, the Fourth District Court of Appeal erred in concluding that the trial court, which considered the twenty-five-year sentence in this case to be “extremely excessive,” was precluded from downwardly departing. Accordingly, Rochester — who was initially offered a sentence of seven and a half years by the State — should be resen-tenced.
At the heart of this case rests a question of statutory construction regarding whether the sentencing minimum provided by section 775.082(3)(a)4. is a “mandatory minimum” sentence that must be served day-for-day. Contrary to the majority’s construction of the statute, nothing within section 775.082(3)(a)4. expressly precludes a trial court from imposing a downward departure sentence. In addition, as even the State concedes in this proceeding, nothing within the statute precludes the defendant from receiving gain time, as in other statutes that provide for a “mandatory minimum” sentence that must be served day-for-day, and this Court should at least
Although the majority’s statutory construction analysis focuses solely on the impact of the word “may” in the statute, the specific question for this Court to resolve is whether the Legislature has expressly precluded trial courts from imposing a downward departure sentence of less than the twenty-five-year sentencing minimum provided in the statute — assuming the statutory requirements for a downward departure sentence are satisfied — and whether the defendant’s sentence is subject to gain time. The Fourth District and this Court have determined that the use of the word “may” within the statute is permissive in allowing a trial court the choice of only the sentencing alternatives within section 775.082(3)(a)4. itself, which requires either a sentence of life imprisonment or a sentence of not less than twenty-five years followed by probation or community control for the remainder of the defendant’s natural life. See majority op. at 4; Rochester v. State,
To the contrary, as is generally true with sentencing statutes unless otherwise exprеssly stated, nothing within section 775.082(3)(a)4. precludes a trial court from imposing a downward departure sentence if the statutory criteria of sections 921.0026 and 921.00265, Florida Statutes, concerning the requirements and mitigating circumstances for which a departure is reasonably justified, are met. This is because, although the sentencing minimum mandated by section 775.082(3)(a)4. is twenty-five years, the sentence is not a “mandatory minimum” sentence that must be served day-for-day such as those set forth in, for example, sections 775.082(9)(b) or 893.135(3), Florida Statutes, which contain specific language indicating that the sentence is a “mandatory minimum” or that the defendant is not eligible for any form of early release. See § 775.082(9)(b), Fla. Stat. (2008) (“A person sentenced under paragraph (a) shаll be released only by expiration of sentence and shall not be eligible for parole, control release, or any form of early release. Any person sentenced under paragraph (a) must serve 100 percent of the court-imposed sentence.”); § 893.135(3), Fla. Stat. (2008) (“A person sentenced to a mandatory minimum term of imprisonment under this section is not eligible for any form of discretionary early release, except pardon or executive clemency or conditional medical release under s. 947.149, prior to serving the mandatory minimum term of imprisonment.”).
While the majority acknowledges that the certified conflict issue in this case concerns whether the twenty-five-year sentencing minimum set forth in sеction 775.082(3)(a)4. is a “mandatory minimum,” the majority nevertheless fails to address the interrelated issue of whether the sentence is subject to gain time, as the Second District Court of Appeal concluded in the certified conflict case by determining that the statute does not provide for a “mandatory minimum” sentence that must be served day-for-day. See Montgomery v. State,
Specifically, the State took the position both in its brief and at oral argument that although the minimum term that a trial court is required by statute to impose is, in thе State’s view, a mandatory sentence of twenty-five years that cannot include a downward departure, the sentence is not a “mandatory minimum” sentence in the sense that it precludes the application of gain time. See Answer Brief of Respondent at 12, Rochester v. State, No. SC12-1932,
I would at least reach the issue and explain the differences between a “mandatory minimum” sentence that must be served day-for-day and a statutory sentencing minimum that need not, especially since the Second District’s opinion, with which the Fourth District certified conflict, held that the twenty-five-year minimum sentence provided in section 775.082(3)(a)4. was not a “mandatory minimum” precluding the application of gain time:
The State concedes, and we agree, that Montgomery’s sentence is not a minimum mandatory sentence. If the legislature intended to impose a minimum mandatory sentence, the statute would have included specific language to that effect. See §§ 316.1935(6), Fla. Stat. (2008); 775.087(2) & (3); 784.07(3)(b), Fla. Stat. (2008); 794.0115(7), Fla. Stat. (2008) (providing that a defendant “is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency or conditional medical release under s. 947.149,” prior to serving the minimum sentence). See also § 775.082(9)(b) (“A person sentenced under paragraph (a) shall be released only by expiration of sentence and shall not be eligible for parole, control release, or any form of early release. Tiny person sentenced under paragraph (a) must serve 100 percent of the court-imposed sentence.”); § 893.135(3), Fla. Stat. (2008) (“A person sentenced to a mandatory minimum term of imprisonment under this section is not eligible for any form of discretionary early release, except pardon or executive clemency or conditional medical release under s. 947.149, prior to serving the mandatory minimum term of imprisonment.”).
Moreover, if there is any ambiguity in the language of section 775.082(3)(a)(4)(a)(II), we must construe it in favor of the defendant. See § 775.021(1). Accordingly, we affirm Montgomery’s judgment and sentence but note that his sentence does not provide for a minimum mandatory term of imprisonment.
Montgomery,
Although this Court and the Fourth District did not consider the facts of this crime relevant, the facts do illustrate the excessiveness of the ultimate sentence imposed and help to explain why the trial court would have been justified in considering a downward departure. Before trial, Rochester was offered two plea deals. Initially, the Statе proposed a reduced charge and offered him ten years in prison followed by five years of probation. However, Rochester did not accept the deal, and after further negotiation, the State made another plea offer for seven and a half years in prison followed by seven and a half years of sex offender probation, which Rochester also declined.
The evidence at trial established that Rochester was visiting the home of JC, the victim, when he asked JC’s mother if he could go outside and look at the swimming pool. JC, who was nine years old at the time, was in the backyard when Rochester came outside to look at the swimming pool. JC testified that she was alone with Rochestеr in the backyard when he asked her “if [she] could keep a secret” and lifted her up, touched her on her clothed genitalia and clothed buttocks, and asked her to not tell anyone.
In a police recorded phone conversation with JC’s mother, Rochester admitted that he touched JC’s clothed genitalia, but not her buttocks. Further, in a videotaрed confession to police, which was played for the jury at trial, Rochester admitted that he touched JC’s clothed genitalia. He stated that he touched her for “no more than ten seconds” and admitted that his fingers were moving “a little bit” when he did it, but that he was not aroused by the touching and “wasn’t thinking anything” when he touched her. The explanation Rochester gave for his behavior, in his interview with police, was that “the devil got into [his] spirit or something and made [him] do it,” and that his spirit had been attacked and he was weak. He also stated that he had low self-esteem because he was overweight and that he had apologized to JC’s mom and promised it would not happen again.
Prior to sentencing, Rochester filed a motiоn for a downward departure sentence, pursuant to section 921.0026(2)(j), which provides that “[m]itigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to ... [t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026, Fla. Stat. Rоchester claimed that he qualified for this downward departure based on the fact that the crime met all three statutory criteria: it was committed in an unsophisticated manner, it was an isolated incident, and he had shown remorse.
Rochester further argued that the trial court should not impose the statutory sentence of twenty-five-years’ imprisonment because such a severe disposition for a first-time offense was fundamentally unfair, contending that the trial court had the discretion to impose a sentence of less than twenty-five years if it deemed it to be just. The trial court determined that the twenty-five-year sentence, followed by probation for the remainder of Rochester’s life, was required pursuant to seсtion 775.082(3)(a)4., and denied Rochester’s motion for a downward departure sentence. However, prior to orally pronouncing the sentence, the trial judge offered the following commentary regarding the mitigating circumstances in this case: “I think that 25 years is extremely excessive on a case
I disagree that the trial court did not have any discretion to downwardly depart from the minimum twenty-five-year sentence provided in the statute. Unlike other statutes that make a sentencing minimum a “mandatory minimum” that must be served day-for-day, there is no language in section 775.082(3)(a)4. indicating that the twenty-five-year sentencing minimum is a “mandаtory minimum” or that the application of gain time or other early release schemes is prohibited. Accordingly, I would quash the Fourth District’s decision in Rochester, approve the Second District’s decision in Montgomery, and remand this case so that Rochester can be resentenced in a manner that more closely comports with the trial court’s conclusion that twenty-five-years’ imprisonment “is extremely excessive” in this case.