FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D19-418
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FARRIS DEAN GREGORY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Suwannee County.
Mark E. Feagle, Judge.
September 10, 2020
B.L. THOMAS, J.
Appellant argues that his sentence constitutes cruel and
unusual punishment in violation of article I, section 17 of the
Florida Constitution and the Eighth Amendment to the United
States Constitution. We disagree.
Appellant was charged by information with two counts of
dealing in stolen property and two counts of grand theft. In 2018,
Appellant removed twelve steel fence posts from the fences of two
property owners and sold them at a nearby recycling plant. The
posts were valued at between $300 and $500 each, but Appellant
received approximately $11 for each post. All of the fence posts
were recovered within days.
After a jury trial, Appellant was found guilty as charged.
Appellant’s scoresheet reflected a lowest permissible score of forty-
two months. The two counts of grand theft were vacated pursuant
to double jeopardy. Appellant had a lengthy prior record which
included robbery while armed, burglary of a dwelling, burglary of
a conveyance, dealing in stolen property, grand theft, uttering a
forgery, false identification of ownership, four misdemeanor thefts,
and thirteen additional misdemeanors. Appellant’s most recent
crimes were committed within one year of his last release from
prison. The trial court found Appellant to be a habitual felony
offender, and Appellant faced a maximum of thirty years in prison.
However, the trial court sentenced Appellant to fifteen years in
prison, followed by five years of probation.
Appellant then filed a motion pursuant to Florida Rule of
Criminal Procedure 3.800(b), alleging his sentence constituted
cruel and unusual punishment. The trial court denied the motion.
We hold that Appellant’s sentence was permissible and well
under the maximum possible sentence of thirty years under
Florida’s habitual felony offender statute. See § 775.084(4)(a), Fla.
Stat. (2019). We also find that Appellant’s sentence does not
constitute cruel and unusual punishment under the Eighth
Amendment.
When considering Eighth Amendment issues, appellate
courts must yield “substantial deference to the broad authority
that legislatures necessarily possess in determining the types and
limits of punishment for crimes, as well as to the discretion that
trial courts possess in sentencing convicted criminals.” Andrews v.
State, 82 So. 3d 979, 984 (Fla. 1st DCA 2011) (quoting Solem v.
Helm, 463 U.S. 277, 290 (1983)); see also Hanf v. State, 182 So. 3d
704, 706 (Fla. 1st DCA 2015) (citing Adaway v. State, 902 So. 2d
746, 750 (Fla. 2005)).
Appellant relies on Solem for the proposition that his fifteen-
year sentence constitutes a grossly disproportionate prison
sentence. In Solem, the defendant was sentenced to life
imprisonment without parole for writing a “no account” check for
$100. 463 U.S. at 281. The defendant would have ordinarily been
sentenced to a maximum of five years imprisonment, but he had a
criminal record of six non-violent felonies, and was therefore,
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subject to South Dakota’s recidivist statute. Id. None of the six
felonies was a crime against a person. Id. The Supreme Court
reversed, finding the sentence to be disproportional and stating
“[the defendant's] crime was one of the most passive felonies a
person could commit. It involved neither violence nor threat of
violence to any person.” Id. at 296.
However, this Court and the Fifth District Court have
previously stated that “Solem applie[s] only to non-violent
felonies.” Andrews, 82 So. 3d at 986 (quoting Long v. State, 558 So.
2d 1091, 1092 (Fla. 5th DCA 1990)). Furthermore, this Court noted
that “the all-important factor that made the sentence cruel and
unusual in Solem was that all of the defendant’s prior convictions
were non-violent,” and that where a defendant’s prior convictions
were not all non-violent, Solem did not apply. Id. at 986. In
Andrews, although the triggering crime was non-violent and did
not involve harm to any particular individual, all of the
defendant’s prior convictions were violent crimes. Id. Thus, Solem
did not apply in Andrews, and similarly does not apply in the
present case because not all of Appellant’s prior convictions were
non-violent. See id. In addition, unlike in Solem, Appellant’s
crimes were not victimless, and the victims were adamant that
Appellant’s crimes had cost them money as well as time away from
their jobs and families.
Therefore, we hold that Appellant’s fifteen-year sentence for
the crimes of dealing in stolen property and grand theft does not
violate either article I, section 17 of the Florida Constitution or the
Eighth Amendment to the United States Constitution.
AFFIRMED.
RAY, C.J., and KELSEY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, and Laurel Cornell Niles,
Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Steven Edward Woods,
Assistant Attorney General, and Robert Charles Lee, Assistant
Attorney General, Tallahassee, for Appellee.
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