Supreme Court of Florida
____________
No. SC17-1002
____________
STATE OF FLORIDA,
Petitioner,
vs.
DAZARIAN CORDELL LEWARS,
Respondent.
December 13, 2018
LAWSON, J.
This case is before the Court for review of the decision of the Second
District Court of Appeal in Lewars v. State, 42 Fla. L. Weekly D1098 (Fla. 2d
DCA May 12, 2017), which certified conflict with the decisions in State v. Wright,
180 So. 3d 1043 (Fla. 1st DCA 2015), Taylor v. State, 114 So. 3d 355 (Fla. 4th
DCA 2013), and Louzon v. State, 78 So. 3d 678 (Fla. 5th DCA 2012). The
certified conflict concerns the construction of one element of the definition of
“prison releasee reoffender” provided in section 775.082(9)(a)1., Florida Statutes
(2012). The part of the statute at issue requires the defendant, within the three
years preceding his or her commission of a qualifying offense, to have been
“released from a state correctional facility operated by the Department of
Corrections or a private vendor.” § 775.082(9)(a)1. The First and Fifth District
Courts of Appeal in Wright and Louzon concluded that this language is satisfied
when a defendant is released from a county jail after serving a sentence entirely in
the county jail where the sentence would have required transfer to a Florida prison
but for the accumulation of jail credit. Wright, 180 So. 3d at 1045-46; Louzon, 78
So. 3d at 680-81. The Second District in this case disagreed with this conclusion
and reached the opposite result from the First and Fifth Districts on essentially
identical facts. Lewars, 42 Fla. L. Weekly at D1099-1100. The Second District
also disagreed with the Fourth District Court of Appeal’s decision in Taylor, which
construes similar language from the same statute involving release from a
“correctional institution of . . . the United States,” applies its construction to a
defendant’s release from a county jail after being temporarily housed there, and
reaches a result consistent with Wright and Louzon. Id.; Taylor, 114 So. 3d at 355-
56.
We have jurisdiction due to the certification of conflict. See art. V, §
3(b)(4), Fla. Const. For the reasons expressed below, we approve the decision of
the Second District in Lewars and hold that release from a county jail under the
circumstances of this case does not satisfy the language of section 775.082(9)(a)1.
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We therefore disapprove the decisions of the First, Fourth, and Fifth Districts in
Wright, Taylor, and Louzon.
FACTS
Dazarian Cordell Lewars was convicted of burglary of an unoccupied
dwelling. Lewars, 42 Fla. L. Weekly at D1098. For this offense, Lewars was
sentenced to a mandatory minimum term of fifteen years’ imprisonment under
section 775.082(9), the prison releasee reoffender (PRR) statute, over his objection
that the PRR statute does not apply to him. Id. at D1099. On appeal, the Second
District agreed with Lewars and reversed his PRR sentence, holding that Lewars
does not qualify as a PRR because he was not “released from a state correctional
facility operated by the Department of Corrections [(DOC)] or a private vendor”
within the three years preceding the burglary at issue, as required by the pertinent
language of the PRR statute. Id. at D1099-1101.
To support PRR sentencing, the trial court relied on the fact that Lewars had
been released from a twenty-four-month sentence within the three years preceding
the burglary. Id. The legal issue concerning the applicability of the PRR statute
centers on whether Lewars’ release from that sentence satisfies the “released from”
language of the PRR statute, given that Lewars served his prior twenty-four-month
sentence entirely in the county jail, rather than in prison, due to his accumulation
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of 766 days’ jail credit while he awaited a violation-of-probation hearing and
sentencing. Id. at D1099.
Although the sentencing order for the prior case committed Lewars to the
custody of the DOC for a prison sentence, Lewars was never physically transferred
to a prison facility. Id. After sentencing in that case, the local sheriff’s office
observed that Lewars had been sentenced to time served and contacted the DOC
for instructions. Id. Upon receiving confirmation from the DOC that Lewars was
entitled to release, the local sheriff’s office had Lewars sign a “prison release
form” sent by the DOC and then released him directly from the county jail. Id.
DOC records state that Lewars was released from the “Central Office.” However,
it is undisputed that “Lewars never actually set foot in a DOC facility before
committing the burglary” for which he was given a PRR sentence. Id.
In reversing Lewars’ PRR sentence, the Second District relied on the plain,
unambiguous language of the PRR statute, reasoning as follows:
The pertinent language of section 775.082(9)(a)(1)(q) defines a PRR
as “any defendant who commits, or attempts to commit . . . burglary
of a dwelling . . . within 3 years after being released from a state
correctional facility operated by the Department of Corrections or a
private vendor . . . .” (Emphasis added.) In requiring release from a
DOC “facility”—rather than, for example, from DOC “custody” or
simply “by DOC”—PRR status plainly contemplates release from a
physical plant operated by the DOC (or a private vendor).[n.2]
[n.2] Webster’s New World College Dictionary 485 (3d
ed. 1996), which was published near the time that the
legislature created the PRR designation, see ch. 97-239, §
-4-
2, at 4398-4401, 4404, Laws of Fla. (effective May 30,
1997), defines a “facility,” in pertinent part, as “a
building, special room, etc., that facilitates or makes
possible some activity.” See also Sanders v. State, 35 So.
3d 864, 871 (Fla. 2010) (“When a word in a statute is not
expressly defined, it is ‘ “appropriate to refer to
dictionary definitions . . .” in order to ascertain the plain
and ordinary meaning’ of the word.” (omission in
original) (quoting Sch. Bd. of Palm Beach Cty. v.
Survivors Charter Schs., Inc., 3 So. 3d 1220, 1233 (Fla.
2009))).
There is no dispute that, less than two months before committing the
qualifying PRR offense of burglary of a dwelling, Lewars was
released from a county jail having never spent a moment in a DOC
facility. Consequently, under the unambiguous language of the
statute, he does not qualify as a PRR.
Id. at D1099.
The Second District recognized that “the three other district courts of appeal
that have addressed the issue would have held that Lewars does qualify as a PRR”
and, accordingly, certified conflict with the three decisions establishing this point:
Wright, Taylor, and Louzon. Id. at D1099, D1101. The Second District noted that
these three cases, like the case before it, all involved defendants who had been
released from either federal or DOC custody while housed in county jails and that
these courts had found the PRR statute applicable under a theory of “constructive
release” from qualifying facilities. Id. at D1100.1 Rejecting these holdings, the
1. As an alternative to the language directly at issue in this case, the PRR
statute defines “prison releasee reoffender” as a defendant who commits a
qualifying offense “within 3 years after being released from a correctional
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Second District pointed out that the plain language of the statute requires release
from a qualifying “facility,” not release from qualifying “custody.” Id. The
Second District also disputed the proposition—advanced by the Fifth District,
embraced by the Fourth District, and accepted by one judge in the First District—
that the custody-based construction of the statute is appropriate under the absurdity
exception to the plain-language doctrine. Id. at D1100-01. We accepted review to
resolve the certified conflict.
ANALYSIS
The certified conflict concerns an issue of statutory construction, which we
review de novo. See Lopez v. Hall, 233 So. 3d 451, 453 (Fla. 2018); State v.
Miller, 227 So. 3d 562, 563 (Fla. 2017). To answer a question of statutory
construction, courts must first look to the statute’s language, Miller, 227 So. 3d at
563, considering its words in the context of the entire section rather than in
isolation, Thompson v. State, 695 So. 2d 691, 692 (Fla. 1997). If the statutory
language is clear and unambiguous, the court must recognize the statute’s plain
meaning and, therefore, need not employ any other rules of statutory construction.
institution of . . . the United States . . . following incarceration for an offense for
which the sentence is punishable by more than 1 year in this state.” §
775.082(9)(a)1.
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Miller, 227 So. 3d at 563 (quoting Daniels v. Fla. Dep’t of Health, 898 So. 2d 61,
64 (Fla. 2005)); Lopez, 233 So. 3d at 453.
The plain-language approach is required because the courts of this state lack
the “power to construe an unambiguous statute in a way which would extend,
modify, or limit[] its express terms or its reasonable and obvious implications.”
Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (emphasis omitted) (quoting Am.
Bankers Life Assurance Co. of Fla. v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA
1968)). Such a construction “would be an abrogation of legislative power.” Id.;
see art. II, § 3, Fla. Const. Thus, “[e]ven where a court is convinced that the
legislature really meant and intended something not expressed in the phraseology
of the act, it will not deem itself authorized to depart from the plain meaning of the
language which is free from ambiguity.” St. Petersburg Bank & Trust Co. v.
Hamm, 414 So. 2d 1071, 1073 (Fla. 1982) (quoting Van Pelt v. Hilliard, 78 So.
693, 694 (Fla. 1918)).
Section 775.082(9)(a)1. defines “prison releasee reoffender” as “any
defendant who commits, or attempts to commit” any qualifying offense (as
enumerated in the statute) within three years after a certain event, described in the
statute as follows:
being released from a state correctional facility operated by the
Department of Corrections or a private vendor or . . . being released
from a correctional institution of another state, the District of
Columbia, the United States, any possession or territory of the United
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States, or any foreign jurisdiction, following incarceration for an
offense for which the sentence is punishable by more than 1 year in
this state.[2]
The district courts disagree over whether a defendant is “released from a
state correctional facility operated by the Department of Corrections or a private
vendor” when the defendant is physically released from a county jail after having
been committed to the legal custody of the Department of Corrections but not
physically taken to a facility operated by the Department of Corrections. Compare
Lewars, 42 Fla. L. Weekly at D1099-1100, with Wright, 180 So. 3d at 1044-46,
and Louzon, 78 So. 3d at 680-81; cf. Taylor, 114 So. 3d at 355-56 (construing the
similar language pertaining to federal institutions consistently with the decisions in
Louzon and Wright). In support of the proposition that it is the legal, rather than
physical, custody that matters, the State argues that release from a “prison
sentence,” as opposed to a prison facility, is sufficient to satisfy the language of
this provision.
However, the language at issue unambiguously supports the conclusion
reached by the Second District, that release from a county jail does not satisfy the
“released from” element of statute’s PRR definition. This language addresses the
2. The 2012 statute is cited in this opinion because Lewars was released
from the sentence the State argues satisfies section 775.082(9)(a)1. in April 2013.
The present version of the PRR statute is identical to the 2012 version.
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defendant’s release from a “facility,” not from the legal custody of a particular
entity and not from a particular sentence length, and it requires that that facility be
one “operated by the Department of Corrections or a private vendor.” A county
jail is not “operated by the Department of Corrections or a private vendor.” See
Hopkins v. State, 105 So. 3d 470, 474 (Fla. 2012) (“A ‘jail’ is a detention center
used by local governments for persons who are awaiting trial or have been
convicted of misdemeanors.” (citing Black’s Law Dictionary, 910 (9th ed. 2009)).
Therefore, a defendant’s release from a county jail is not sufficient to satisfy the
plain language of section 775.082(9)(a)1.
The surrounding language in section 775.082 confirms the plain meaning of
the specific provision at issue, showing that release from a particular type of
facility, namely a prison or its equivalent—and not a county jail—is a necessary
component of the PRR definition. The PRR statute’s focus on the facility where a
defendant served a prior sentence begins in the title of section 775.082, which
notes that this section provides “mandatory minimum sentences for certain
reoffenders previously released from prison.” That focus is also manifested in the
label that the statute gives to a defendant who qualifies for these mandatory
minimum sentences: “prison releasee reoffender.” § 775.082(9)(a)1. This label,
like the title of the section, references release from prison, not jail, and not a
“prison sentence.”
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Continuing its focus on prisons as facilities, the PRR statute makes release
from “a correctional institution” of certain other jurisdictions a way to satisfy the
“released from” component of the PRR definition. § 775.082(9)(a)1. Specifically,
it provides the following as the alternative “released from” event:
being released from a correctional institution of another state, the
District of Columbia, the United States, any possession or territory of
the United States, or any foreign jurisdiction, following incarceration
for an offense for which the sentence is punishable by more than 1
year in this state.
§ 775.082(9)(a)1. “Correctional institution” is commonly understood to refer to a
facility within a prison system, particularly in Florida. Cf. Gaulden v. State, 195
So. 3d 1123, 1128-29 (Fla. 2016) (Canady, J., concurring in result) (relying on the
common understanding of a particular phrase to decide its meaning). Further, the
jurisdictions listed in section 775.082(9)(a)1. as the categories of the governmental
entities to which the referenced “correctional institution” must belong identify
sovereign entities, rather than subdivisions of the sovereigns. The fact that the
correctional institutions referenced in this portion of the definition must be “of” the
highest governmental divisions of the jurisdictions at issue shows that this portion
of the statute is concerned with identifying facilities that are equivalent to prisons
in Florida’s criminal justice system. See § 775.082(9)(a)1. The requirement of
section 775.082(9)(a)1. that incarceration in a “correctional institution” of another
sovereign jurisdiction be “for an offense for which the sentence is punishable by
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more than 1 year in this state” is limiting language that further ensures that the
institutions of other jurisdictions be sufficiently equivalent to Florida prisons
before incarceration in those facilities can satisfy the “released from” element of
the PRR definition.
As another indication of a focus on prison, as opposed to jail, the PRR
statute states that “[i]t is the intent of the Legislature that offenders previously
released from prison who meet the criteria in paragraph (a) be punished to the
fullest extent of the law and as provided in this subsection.” § 775.082(9)(d)1.
This direct statement of legislative intent—the only one in the statute—focuses on
“release[] from prison,” which is a type of facility, rather than release from a
prison-length sentence.
That the length of the sentence is not a determining factor under section
775.082(9)(a)1. is illustrated by contrasting that provision with the following
alternative definition provided in the PRR statute:
“Prison releasee reoffender” also means any defendant who commits
or attempts to commit any offense listed in sub-subparagraphs (a)1.a.-
r. while the defendant was serving a prison sentence or on escape
status from a state correctional facility operated by the Department of
Corrections or a private vendor or while the defendant was on escape
status from a correctional institution of another state, the District of
Columbia, the United States, any possession or territory of the United
States, or any foreign jurisdiction, following incarceration for an
offense for which the sentence is punishable by more than 1 year in
this state.
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§ 775.082(9)(a)2. This alternative PRR definition shows that the Legislature knew
how to make the prison sentence, as opposed to the facility, the focus of the
definitional inquiry, if the Legislature intended to do so. See Cason v. Fla. Dep’t
of Mgmt. Servs., 944 So. 2d 306, 315 (Fla. 2006) (“[W]e have pointed to language
in other statutes to show that the Legislature ‘knows how to’ accomplish what it
has omitted in the statute in question.”); cf. § 775.084(1)(a)2.b., (b)2.b., (c)2.b.,
(d)2.b., Fla. Stat. (2018) (defining “[h]abitual felony offender,” “[h]abitual violent
felony offender,” “[t]hree-time violent felony offender,” and “[v]iolent career
criminal” in part by reference to the defendant’s prior “release from a prison
sentence”).
For the foregoing reasons, we conclude that to satisfy the “released from”
aspect of the PRR definition based on release from “a state correctional facility
operated by the Department of Corrections or a private vendor,” a defendant must
have been incarcerated in and physically released from a prison, and not a county
facility operated by the local government, within the statutory period. We agree
with the observation made below that, in reaching a different or inconsistent
conclusion, the courts in Wright, Taylor, and Louzon “skipped the ‘plain language’
step of the statutory-construction analysis” and injected into the PRR statute
words, such as “constructive release,” that “simply are not there.” Lewars, 42 Fla.
L. Weekly at D1100.
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Contrary to the suggestions of the courts in Wright, Taylor, and Louzon, the
absurdity doctrine does not justify recognizing release from the legal, as opposed
to physical, custody of the DOC (or, in the case of Taylor, the federal government)
as a means of satisfying the “released from” component of the PRR definition.
Although the Court has stated that “a literal interpretation of the language of a
statute need not be given when to do so would lead to an unreasonable or
ridiculous conclusion,” courts must have “cogent reasons for believing that the
letter [of the law] does not accurately disclose the [legislative] intent” before
departing from it. Holly, 450 So. 2d at 219 (citing Johnson v. Presbyterian Homes
of Synod of Fla., Inc., 239 So. 2d 256 (Fla. 1970), and then quoting State ex rel.
Hanbury v. Tunnicliffe, 124 So. 279, 281 (Fla. 1929)). This rule, sometimes called
the “absurdity doctrine,” “is not to be used as a freewheeling tool for courts to
second-guess and supplant the policy judgments made by the Legislature.” State v.
Hackley, 95 So. 3d 92, 95 (Fla. 2012). Therefore, it applies “only under rare and
exceptional circumstances.” Id. (quoting Crooks v. Harrelson, 282 U.S. 55, 60
(1930)). Such circumstances are not attendant to section 775.082(9)(a)1.
Judge Makar, in his dissent from the Wright decision, explained why the
plain language of section 775.082(9)(a)1. is not absurd:
A reasonable person could take the view that offenders released from
DOC-operated state prisons are, on average, guilty of more serious
crimes such that offenders released from a county facility would not
trigger PRR sentencing; or perhaps the Legislature erred on the side of
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caution, limiting PRR status to releases from state prisons to avoid
potential misclassifications of prisoners released from county
facilities. Even if these are anomalous views, they are not wholly
unreasonable; in fact, they make some sense.
Wright, 180 So. 3d at 1048 (Makar, J., dissenting). To this analysis, the Lewars
court added two possible reasons the Legislature might have chosen not to apply to
the PRR statute to the circumstances presented in this case: (1) “the legislature
reasonably could have excluded offenders like [Lewars] from PRR status because
it intended only to punish, and to protect society from, those prior offenders who
had not been dissuaded by the possibility of extended prison terms despite having
already had a sample,” or (2) “the legislature could have reasoned that enhanced
sentencing would have been unwarranted for those like Lewars who had previously
been confined for longer than their sentence of imprisonment required.” Lewars,
42 Fla. L. Weekly at D1100-01.
We agree with the rationale stated by Judge Makar and the Lewars court.
Indeed, this rationale is consistent with our identification of the basis for the PRR
statute’s classification system in State v. Cotton, 769 So. 2d 345, 356 (Fla. 2000),
when addressing an equal protection challenge: “While the Act’s classification
scheme does not differentiate based upon the character of the releasee’s prior
crimes, it does focus on the character (and severity) of the latest criminal conduct,
together with the fact that recent imprisonment did not dissuade the defendant from
engaging in the qualifying offense.” In addition, we agree with Judge Makar’s
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observation that “[l]egislative line drawing is a fact of life; and it is no more
unreasonable to dismiss a lawsuit filed one day after a statute of limitations has
expired than to withhold PRR status for offenders who walk out of county
facilities.” Wright, 180 So. 3d at 1052 (Makar, J., dissenting from denial of
certification).
Further, we agree with Judge Makar’s point that the absurdity doctrine is not
appropriate for this statute because, to reach the interpretation advanced by the
State and the courts in Wright, Taylor, and Louzon, we would have to rewrite the
statute, rather than correct a “technical or ministerial error.” Wright, 180 So. 3d at
1048-49 (Makar, J., dissenting). This we cannot do. See Fla. Dep’t of Revenue v.
Fla. Mun. Power Agency, 789 So. 2d 320, 324 (Fla. 2001) (“[C]ourts cannot
judicially alter the wording of statutes . . . . A court’s function is to interpret
statutes as they are written and give effect to each word in the statute.”) (footnote
omitted).
Nevertheless, to bolster its argument under the absurdity doctrine, the State
identifies a number of potential scenarios that it argues could result in an arbitrary
denial of the State’s opportunity to seek PRR sentencing against a defendant who
would have qualified but for fortuitous circumstances. The State argues that these
considerations show that the plain-language construction we have reached would
violate defendants’ rights to equal protection. Although it is proper to consider
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potential constitutional infirmities in a plain-language reading of a statute when
deciding whether the absurdity doctrine justifies departure from the plain language,
see Larimore v. State, 2 So. 3d 101, 115 (Fla. 2008) (considering whether a
particular construction of a statute would be “in accord with fairness and due
process considerations” in applying the absurdity doctrine), we do not agree that
requiring actual release from a prison, as opposed to a jail, results in either
absurdity or a denial of equal protection.
The concerns expressed by the State in this case are addressed by our
analysis in Grant v. State, 770 So. 2d 655, 660 (Fla. 2000), where we rejected a
similar equal protection challenge to the PRR statute (which at that time did not
include release from federal prison as an alternative way to satisfy the “released
from” requirement):
[Grant] contends that the Act draws no rational distinction between
offenders who serve county jail sentences and those who commit the
same acts and yet serve short prison sentences; between those who
commit a new offense on the third anniversary of release from prison
and others who commit a similar offense three years and a day after
release; and between offenders who commit enumerated felonies
within three years after their release from the Florida state prison
system and those who were recently released from federal prison,
local jails or other state prisons. . . . As observed by the Fifth District
in King[v. State, 557 So. 2d 899, 902 (Fla. 5th DCA 1990)], “[e]qual
protection does not require a state to choose between attacking every
aspect of a problem or not attacking it at all.” Id. at 902 (citing In re
Estate of Greenberg, 390 So. 2d 40, 46 (Fla. 1980)). “It is not a
requirement of equal protection that every statutory classification be
all-inclusive.” Rather, “the statute must merely apply equally to
members of the statutory class and bear a reasonable relationship to
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some legitimate state interest.” LeBlanc v. State, 382 So. 2d 299, 300
(Fla. 1980) (citations omitted).
The Legislature “has wide discretion in creating statutory
classifications, and there is a presumption in favor of validity.” State
v. Leicht, 402 So. 2d 1153, 1154 (Fla. 1981) (citations omitted). A
statutory classification will be deemed to violate equal protection only
if it causes “different treatments so disparate as relates to the
difference in classification so as to be wholly arbitrary.” In Re Estate
of Greenberg, 390 So. 2d 40, 42 (Fla. 1980) (citations omitted). As
we have stated in a different context, where, as here, no suspect
classification is involved, “the statute need only bear a reasonable
relationship to a legitimate state interest.” Some inequality or
imprecision will not “render a statute invalid.” Acton v. Fort
Lauderdale Hospital, 440 So. 2d 1282, 1284 (Fla. 1983).
We concluded in Grant that the PRR statute survived an equal protection challenge
because it is reasonably related to a legitimate state interest, a test that we
explained tolerates “[s]ome inequity or imprecision” in statutory classifications.
Id. at 660. That legitimate state interest is, in part, an interest in heightened
punishment for repeat offenders whose recent imprisonment “did not dissuade
[them] from engaging in the qualifying offense[s].” Id. (quoting Cotton, 769 So.
2d at 356). This reasoning applies equally to the arguments presented in this case.
CONCLUSION
For the foregoing reasons, we conclude that “release from a state
correctional facility operated by the Department of Corrections or a private
vendor,” § 775.082(9)(a)1., does not include release from a county jail. Therefore,
commission of a PRR-qualifying offense within three years of release from jail,
rather than prison, does not satisfy the requirements of section 775.082(9)(a)1.
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Accordingly, we approve the Second District’s decision in this case and disapprove
the decisions of the First and Fifth Districts in Wright and Louzon. We also
disapprove the decision of the Fourth District in Taylor, which construes different
language than what is directly at issue in this case but relies on Louzon to arrive at
a result inconsistent with the holding we reach in this case.
Ultimately, the State may be correct in its assertion that the Legislature
intended for defendants who are sentenced to prison but released from county jails
without ever setting foot in a prison to be punished as PRRs. Or, it is possible that
the Legislature did not contemplate this circumstance. However, any intent to
have a defendant like Lewars punished as a PRR is not clear from the plain
language of the statute. The plain language requires the opposite, and it does not
result in absurdity or an equal protection violation. We are bound by our precedent
and the doctrine of separation of powers to apply the statute as written. See Holly,
450 So. 2d at 219.
It is so ordered.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and
LABARGA, JJ., concur.
ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR
REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS
AFTER THE FILING OF THE MOTION FOR
REHEARING/CLARIFICATION. NOT FINAL UNTIL THIS TIME PERIOD
EXPIRES TO FILE A REHEARING/CLARIFICATION MOTION AND, IF
FILED, DETERMINED.
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Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions
Second District - Case No. 2D15-3471
(Lee County)
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Suzanne Beschard,
Bureau Chief, and Lisa Martin, Assistant Attorney General, Tampa, Florida,
for Petitioner
Howard L. Dimmig, II, Public Defender, Matthew Overpeck, and Maureen E.
Surber, Assistant Public Defenders, Tenth Judicial Circuit, Bartow, Florida,
for Respondent
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