Supreme Court of Florida
____________
No. SC19-2155
____________
STATE OF FLORIDA,
Petitioner,
vs.
RIDGE GABRIEL,
Respondent.
April 8, 2021
POLSTON, J.
We review the Fifth District Court of Appeal’s decision in
Gabriel v. State, 44 Fla. L. Weekly D2913 (Fla. 5th DCA Dec. 6,
2019), in which the Fifth District certified the following question of
great public importance:
IS THE LOWEST PERMISSIBLE SENTENCE AS DEFINED
BY AND APPLIED IN SECTION 921.0024(2), FLORIDA
STATUTES, AN INDIVIDUAL MINIMUM SENTENCE AND
NOT A COLLECTIVE MINIMUM SENTENCE WHERE
THERE ARE MULTIPLE CONVICTIONS SUBJECT TO
SENTENCING ON A SINGLE SCORESHEET?
Id. at D2913. In its decision, the Fifth District also certified conflict
with the decision of the Second District Court of Appeal in
Champagne v. State, 269 So. 3d 629 (Fla. 2d DCA 2019). 1
For the reasons explained below, we answer the certified
question in the affirmative, quash the Fifth District’s decision in
Gabriel, and approve the Second District’s decision in Champagne
to the extent that it is consistent with this opinion.
I. BACKGROUND
Ridge Gabriel was convicted of attempted first-degree murder
with a firearm of a law enforcement officer, resisting an officer with
violence, attempted robbery with a firearm, and aggravated assault
with a firearm. Gabriel, 44 Fla. L. Weekly at D2913. The Fifth
District reversed the attempted first-degree murder conviction,
which was stayed pending the outcome of the appeal. Id. at D2914
n.1. On remand, Gabriel was resentenced for attempted robbery
with a firearm (primary offense), aggravated assault with a firearm
(additional offense), and resisting an officer with violence (additional
offense). Id. at D2913; see also Gabriel v. State, 248 So. 3d 265,
1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
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267 (Fla. 5th DCA 2018). The Criminal Punishment Code (CPC)
Scoresheet indicated the lowest permissible sentence (LPS) was
107.25 months, and the trial court agreed with the State that the
LPS is an individual minimum sentence that must be applied to
each offense before the sentencing court if the LPS exceeds each
individual statutory maximum sentence. Gabriel, 44 Fla. L. Weekly
at D2913. On his second-degree felony of attempted robbery with a
firearm, the trial court sentenced Gabriel to the statutory maximum
sentence of 15 years with a 10-year mandatory minimum because
the LPS of 107.25 months did not exceed the individual statutory
maximum sentence. Id. On his third-degree felony of aggravated
assault with a firearm, the trial court sentenced Gabriel to 107.25
months with a 3-year minimum mandatory because the LPS of
107.25 months exceeded the statutory maximum sentence of 5
years. Id. Similarly, on his third-degree felony of resisting an
officer with violence, the trial court sentenced Gabriel to 107.25
months because the LPS of 107.25 months exceeded the statutory
maximum sentence of 5 years. Id. Due to consecutive sentences,
Gabriel’s sentences totaled approximately 33 years. Id.
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“On appeal, Gabriel argue[d] that his sentences for aggravated
assault with a firearm and resisting an officer with violence are
unlawful because they exceed the statutory maximum for those
offenses.” Id. The Fifth District applied the language in section
921.0024(2), Florida Statutes (2012), which provides that “[t]he
permissible range for sentencing shall be the lowest permissible
sentence up to and including the statutory maximum, as defined in
s. 775.082, for the primary offense and any additional offenses
before the court for sentencing.” Id. The Fifth District also applied
this Court’s decision in Moore v. State, 882 So. 2d 977 (Fla. 2004),
and concluded “that the sentencing range for Gabriel was 107.25
months, the LPS, to twenty-five years, the collective statutory
maximum sentence.” Gabriel, 44 Fla. L. Weekly at D2913. The
Fifth District interpreted this Court’s decision in Moore as standing
for the proposition that “the LPS is the collective total minimum
sentence for all offenses, but each has its own statutory maximum,”
and “[t]he LPS is not the sentence which must be applied to each
offense at sentencing.” Id. (quoting Dennard v. State, 157 So. 3d
1055, 1060 (Fla. 4th DCA 2014) (Warner, J., dissenting)). The Fifth
District explained, “[W]hen applying the provision of section
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921.0024(2), which requires the trial court to impose the LPS if it
exceeds the statutory maximum sentence, the LPS must exceed the
collective statutory maximum, not each individual statutory
maximum, before such exception is triggered.” Id. The Fifth
District further explained:
In this case, the statutory maximum sentence is
twenty-five years–fifteen plus five plus five. Because the
LPS does not exceed twenty-five years, the trial court was
not required to impose the LPS, and the sentences
should have been capped by their individual statutory
maximum sentences. Consequently, Gabriel’s sentences
for aggravated assault with a firearm and resisting an
officer with violence are illegal because they exceed the
statutory maximum sentence in contravention of section
921.0024(2).
Id.
Ultimately, the Fifth District reversed the trial court and
certified that its decision conflicts with the Second District’s
decision in Champagne. In Champagne, the defendant “was
convicted of robbery with a firearm, a first-degree felony punishable
by life in prison, and false imprisonment, a third-degree felony.”
269 So. 3d at 630 (citation omitted). The LPS was 240.15 months,
and the trial court sentenced the defendant to a life sentence on the
robbery count and “to twenty years (240 months) in prison on the
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false imprisonment count,” an additional offense. Id. at 631. The
trial court ruled that the LPS is an individual minimum sentence
that applies to each offense even though the LPS did not exceed the
statutory maximum sentence for the primary offense, which was a
life sentence. See id.
On appeal, the defendant did not challenge the life sentence
imposed on his primary offense but argued that the 240-month
sentence imposed on his conviction for false imprisonment was
illegal because it exceeded the 5-year statutory maximum sentence
for that offense. Id. at 630. The Second District examined the
statutory language in section 921.0024(2) and existing precedent
and “conclude[d] that the LPS is an individual minimum sentence
which must be imposed when the LPS exceeds the statutory
maximum sentence for each offense and therefore [the defendant]’s
sentence is legal.” Id. at 630. Accordingly, the Second District
affirmed the trial court and certified the same question of great
public importance as the Fifth District’s decision in Gabriel.
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II. ANALYSIS
The State argues that, based on the plain language of section
921.0024(2), the LPS is an individual minimum sentence, and the
trial court properly sentenced Gabriel to 107.25 months (the LPS)
on both of his third-degree felony convictions because the LPS
exceeded the 5-year individual statutory maximum sentence for
each of his third-degree felony convictions. Gabriel counters that
the LPS is a collective minimum sentence, and section 921.0024(2)
is ambiguous with respect to the maximum permissible punishment
for additional offenses when the LPS exceeds their respective
statutory maximum sentences.2 We agree with the State and
answer the certified question in the affirmative, quash the Fifth
District’s decision in Gabriel, and approve the Second District’s
decision in Champagne to the extent it is consistent with this
opinion. Based on our analysis of the text of the statute, we
conclude that under section 921.0024(2), the LPS is an individual
2. The certified question is one of statutory interpretation,
which we review de novo. Richards v. State, 288 So. 3d 574, 575
(Fla. 2020).
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minimum sentence where there are multiple convictions subject to
sentencing on a single scoresheet.
A court’s determination of the meaning of a statute begins
with the language of the statute. See Lopez v. Hall, 233 So. 3d 451,
453 (Fla. 2018) (citing Holly v. Auld, 450 So. 2d 217, 219 (Fla.
1984)). If that language is clear, the statute is given its plain
meaning, and the court does “not look behind the statute’s plain
language for legislative intent or resort to rules of statutory
construction.” City of Parker v. State, 992 So. 2d 171, 176 (Fla.
2008) (quoting Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64
(Fla. 2005)).
A. Section 921.0024(2), Florida Statutes
Section 921.0024(2) provides:
(2) The lowest permissible sentence is the minimum
sentence that may be imposed by the trial court, absent a
valid reason for departure. The lowest permissible
sentence is any nonstate prison sanction in which the
total sentence points equals or is less than 44 points,
unless the court determines within its discretion that a
prison sentence, which may be up to the statutory
maximums for the offenses committed, is appropriate.
When the total sentence points exceeds 44 points, the
lowest permissible sentence in prison months shall be
calculated by subtracting 28 points from the total
sentence points and decreasing the remaining total by 25
percent. The total sentence points shall be calculated
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only as a means of determining the lowest permissible
sentence. The permissible range for sentencing shall be
the lowest permissible sentence up to and including the
statutory maximum, as defined in s. 775.082, for the
primary offense and any additional offenses before the
court for sentencing. The sentencing court may impose
such sentences concurrently or consecutively. However,
any sentence to state prison must exceed 1 year. If the
lowest permissible sentence under the code exceeds the
statutory maximum sentence as provided in s. 775.082,
the sentence required by the code must be imposed. If
the total sentence points are greater than or equal to
363, the court may sentence the offender to life
imprisonment. An offender sentenced to life
imprisonment under this section is not eligible for any
form of discretionary early release, except executive
clemency or conditional medical release under s.
947.149.
§ 921.0024(2), Fla. Stat. (2012).
The first sentence of the statute specifies that the LPS is a
minimum sentence that a trial court may impose, absent a basis for
departure. The second through the fourth sentences of the statute
dictate how the LPS is calculated or scored. This calculation is
done in a manner that considers the entirety of a defendant’s
criminal background and history. 3 The fifth sentence of the statute
3. According to Florida Rule of Criminal Procedure
3.704(d)(25), “total sentence points” are the subtotal sentence
points. Rule 3.704(d)(18) further defines “subtotal sentence points”
as “the sum of the primary offense points, the total additional
offense points, the total victim injury points, the total prior record
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then provides a permissible “range” for sentencing, stating that
“[t]he permissible range for sentencing shall be the lowest
permissible sentence up to and including the statutory maximum,
as defined in s. 775.082, for the primary offense and any additional
offenses before the court for sentencing.” Notably, this fifth
sentence of the statute references both the primary offense and
additional offenses. 4 The sixth sentence of the statute provides for
concurrent or consecutive sentences, and the seventh sentence
provides that any state prison sentence must exceed 1 year.
Importantly, the eighth sentence of the statute (the LPS exception)
provides, “[i]f the lowest permissible sentence under the code
points, any legal status points, community sanction points, prior
serious felony points, prior capital felony points, and points for
possession of a firearm or semiautomatic weapon.”
4. Section 921.0021(4), Florida Statutes (2012), defines
“primary offense” as “the offense at conviction pending before the
court for sentencing for which the total sentence points recommend
a sanction that is as severe as, or more severe than, the sanction
recommended for any other offense committed by the offender and
pending before the court at sentencing” and explains that “[o]nly
one count of one offense before the court for sentencing shall be
classified as the primary offense.” Section 921.0021(1) defines
“additional offense” as “any offense other than the primary offense
for which an offender is convicted and which is pending before the
court for sentencing at the time of the primary offense.”
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exceeds the statutory maximum sentence as provided in s. 775.082,
the sentence required by the code must be imposed.” The last two
sentences of the statute address a sentence for life imprisonment.
We reject Gabriel’s argument that section 921.0024(2) is
ambiguous with respect to the maximum permissible sentence for
additional offenses when the LPS exceeds their respective statutory
maximum sentences. First, section 921.0024(2) specifies that the
LPS is the minimum sentence that a trial court may impose, absent
a basis for departure, and it must be imposed where it exceeds the
statutory maximum sentence. While the fifth sentence of section
921.0024(2) outlining the permissible range for sentencing
expressly includes the language “for the primary offense and any
additional offenses before the court for sentencing,” language which
could contemplate a “collective” approach, the LPS exception does
not. Compare (“The permissible range for sentencing shall be the
lowest permissible sentence up to and including the statutory
maximum, as defined in s. 775.082, for the primary offense and any
additional offenses before the court for sentencing.”) with (“If the
lowest permissible sentence under the code exceeds the statutory
maximum sentence as provided in s. 775.082, the sentence
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required by the code must be imposed.”). In other words, the fifth
sentence of the statute addressing the sentencing range sets forth a
general sentencing standard. However, the LPS exception in the
eighth sentence is an exception to this sentencing range that
increases the maximum sentence and applies regardless of whether
the felony is the primary or an additional offense. Accordingly, the
absence of the terms “for the primary offense and any additional
offenses before the court for sentencing” is significant. See Leisure
Resorts, Inc. v. Frank J. Rooney, Inc., 654 So. 2d 911, 914 (Fla.
1995) (“When the legislature has used a term, as it has here, in one
section of the statute but omits it in another section of the same
statute, we will not imply it where it has been excluded.”).
Further, the second sentence of section 921.0024(2) includes
the language “up to the statutory maximums for the offenses
committed,” which the Legislature also could have included in the
eighth sentence addressing the LPS exception but did not. Compare
(“The lowest permissible sentence is any nonstate prison sanction
in which the total sentence points equals or is less than 44 points,
unless the court determines within its discretion that a prison
sentence, which may be up to the statutory maximums for the
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offenses committed, is appropriate.”) with (“If the lowest permissible
sentence under the code exceeds the statutory maximum sentence
as provided in s. 775.082, the sentence required by the code must
be imposed.”). This Court may not “rewrite the statute or ignore the
words chosen by the Legislature so as to expand its terms.”
Knowles v. Beverly Enters.-Fla., Inc., 898 So. 2d 1, 7 (Fla. 2004).
Contrary to the Fifth District’s decision in Gabriel, nothing in the
plain language of section 921.0024(2) limits the LPS to be imposed
only if it exceeds the statutory maximum sentence for the primary
offense or the collective statutory maximum sentences for all of the
offenses before the court for sentencing.
Additionally, the “statutory maximum” referenced in the
sentence addressing the permissible sentencing range and the
“statutory maximum sentence” referenced in the sentence
addressing the LPS exception both refer to section 775.082, Florida
Statutes (2012). Section 775.082 is titled “Penalties; applicability of
sentencing structures; mandatory minimum sentences for certain
reoffenders previously released from prison.” Section 775.082 sets
forth the statutory maximum sentences for the degrees of felonies.
Specific to Gabriel’s convictions in this case, section 775.082(3)(c)-
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(d) provide that “[a] person who has been convicted of any other
designated felony may be punished . . . [f]or a felony of the second
degree, by a term of imprisonment not exceeding 15 years . . . [and]
[f]or a felony of the third degree, by a term of imprisonment not
exceeding 5 years.” Nothing in the plain language of section
921.0024(2) or section 775.082 refers to a collective statutory
maximum. Pursuant to section 921.0024(2), the LPS exception
increases the maximum for sentencing purposes, and the
Legislature has determined in a very certain way that a sentence
must be increased above the statutory maximum sentence when
exceeded by the LPS. In fact, the plain language of the LPS
exception only requires the LPS to exceed the statutory maximum
sentence as provided in section 775.082, and section 775.082 sets
forth individual statutory maximum sentences for each degree of
felony. When read as a whole, if the LPS exceeds the statutory
maximum penalty in section 775.082, the LPS is both the minimum
sentence and the maximum penalty for that offense. See Forsythe
v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455
(Fla. 1992) (“[A]ll parts of a statute must be read together in order to
achieve a consistent whole.”).
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Further, the fifth sentence, providing that “[t]he permissible
range for sentencing shall be the lowest permissible sentence up to
and including the statutory maximum, as defined in s. 775.082, for
the primary offense and any additional offenses before the court for
sentencing,” is followed by the sixth sentence, providing that “[t]he
sentencing court may impose such sentences concurrently or
consecutively.” (Emphasis added.) When read together, the plain
language provides that a trial court may impose a sentence for each
individual offense before the court and may sentence an offender up
to the statutory maximum for any offense before the court for
sentencing. See also § 921.002(1)(g), Fla. Stat. (2012) (“The trial
court judge may impose a sentence up to and including the
statutory maximum for any offense, including an offense that is
before the court due to a violation of probation or community
control.”). Therefore, to determine whether to increase the
maximum sentence based on the application of the LPS exception,
the trial court must look to each individual offense before the court
for sentencing.
Accordingly, we answer the certified question in the affirmative
and conclude that, under section 921.0024(2), the LPS is an
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individual minimum sentence where there are multiple convictions
subject to sentencing on a single scoresheet.
B. This Court’s Precedent
In Butler v. State, 838 So. 2d 554, 555 (Fla. 2003), the
defendant was sentenced to 75.6 months in prison, the LPS, on his
possession of cocaine conviction and filed a postconviction motion
“alleging that his sentence of 75.6 months exceeded the statutory
maximum of five years for the third-degree felony of cocaine
possession.” The district court affirmed the trial court’s denial of
the defendant’s postconviction motion and agreed that the sentence
was legal but questioned a potential statutory conflict between
section 921.002(1)(g), Florida Statutes (Supp. 1998) (providing that
a court may sentence an offender up to the statutory maximum for
any offense) and section 921.0024(2), Florida Statutes (Supp. 1998)
(providing that a court must impose the LPS where it exceeds the
statutory maximum sentence). Id. We concluded that the
defendant’s sentence was legal and that sections 921.002(1)(g) and
921.0024(2) were not in conflict and could be harmonized. Id. at
555-56. Specifically, we explained that section 921.002(1)(g)
applied to general sentencing, while section 921.0024(2) is an
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exception to the general sentencing provisions. Id. at 556. In doing
so, we held that “when section 921.0024(2) applies so that the
statutory maximum sentence as provided in section 775.082,
Florida Statutes (2002), is exceeded by the [LPS] under the code,
the [LPS] becomes the maximum sentence which the trial judge can
impose.” Id.
Then, in Moore v. State, 882 So. 2d 977, 978, 980 (Fla. 2004),
this Court addressed whether Tripp 5 credit must be awarded to
probation violators sentenced under the CPC and concluded that
Tripp and its progeny do not apply to CPC sentences. In the
analysis comparing the prior sentencing guidelines with the CPC,
we explained:
Under the prior guidelines, the individual offenses
were considered interrelated because together they were
used to establish the minimum and maximum sentence
that could be imposed. To the contrary, however, under
the CPC, together the individual offenses only establish
the minimum sentence that may be imposed; a single
maximum sentence is not established—each individual
offense has its own maximum sentence, namely the
statutory maximum for that offense.
5. Tripp v. State, 622 So. 2d 941, 942 (Fla. 1993) (“[I]f a trial
court imposes a term of probation on one offense consecutive to a
sentence of incarceration on another offense, credit for time served
on the first offense must be awarded on the sentence imposed after
revocation of probation on the second offense.”).
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Moore, 882 So. 2d at 985.
Nothing in this Court’s decisions in Butler or Moore contradicts
the plain language of section 921.0024(2). Gabriel argues that this
Court’s statement in Moore that together the individual offenses
only establish the minimum sentence that may be imposed
supports his argument that the LPS is a collective minimum
sentence. However, this statement is consistent with the fourth
sentence in section 921.0024(2), which provides that “[t]he total
sentence points shall be calculated only as a means of determining
the lowest permissible sentence.” As previously explained,
pursuant to rule 3.704(d)(18), the LPS calculation takes the entirety
of the defendant’s criminal history into consideration, including
“the sum of the primary offense points, the total additional offense
points, the total victim injury points, the total prior record points,
any legal status points, community sanction points, prior serious
felony points, prior capital felony points, and points for possession
of a firearm or semiautomatic weapon.” Further, in Moore, we
explained that “[t]he maximum sentence for each offense is
determined solely by the statutory maximum for the individual
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offenses.” 882 So. 2d at 985 (emphasis added). We also explained
that multiple offenses are no longer interrelated and that, under the
CPC, there is not a single sentencing range because each offense
has its own statutory maximum sentence such that the range could
differ for each offense.
C. The Conflict Cases
In the Fifth District’s decision in Gabriel, based on its own
interpretation of section 921.0024(2) and this Court’s decision in
Moore, the Fifth District reached a conclusion contrary to the plain
language of the statute. See Gabriel, 44 Fla. L. Weekly at D2913.
In Gabriel, the Fifth District concluded that the LPS is a collective
minimum sentence that should only be applied if the LPS exceeds
the collective statutory maximum sentences for all of the offenses
before the court for sentencing. Id. For purposes of our analysis,
the following chart summarizes Gabriel’s sentencing as to each
conviction:
Statutory
Conviction Felony Maximum Trial Court
Sentence Sentence
Attempted Second 15 years 15 years with
robbery with degree 10-year
a firearm minimum
mandatory
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(primary
offense)
Aggravated Third degree 5 years 107.25
assault with months with
a firearm 3-year
(additional minimum
offense) mandatory
Resisting an Third degree 5 years 107.25
officer with months
violence
(additional
offense)
Statutory Maximum Sentence Total = 25 years
Total Sentence (consecutive) = approximately 33 years
Lowest Permissible Sentence = 107.25 months or 8.93 years
The Fifth District concluded that “the sentencing range for
Gabriel was 107.25 months, the LPS, to twenty-five years, the
collective statutory maximum sentence.” Id. The Fifth District
explained, “when applying the provision of section 921.0024(2),
which requires the trial court to impose the LPS if it exceeds the
statutory maximum sentence, the LPS must exceed the collective
statutory maximum, not each individual statutory maximum, before
such exception is triggered.” Id. The Fifth District further
explained:
In this case, the statutory maximum sentence is
twenty-five years—fifteen plus five plus five. Because the
LPS does not exceed twenty-five years, the trial court was
not required to impose the LPS, and the sentences
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should have been capped by their individual statutory
maximum sentences. Consequently, Gabriel’s sentences
for aggravated assault with a firearm and resisting an
officer with violence are illegal because they exceed the
statutory maximum sentence in contravention of section
921.0024(2).
Id. 6 Contrary to the Fifth District’s decision in Gabriel, the plain
language of section 921.0024(2) does not require the LPS to be
imposed only if it exceeds the statutory maximum sentence for the
primarily scored offense or the collective statutory maximum
sentences.
We conclude that the result reached in the Second District’s
decision in Champagne is supported by the text of section
6. In the present case, in the section titled “Sentence
Computation,” Gabriel’s CPC Scoresheet listed the “maximum
sentence in years” as 25 years, the collective statutory maximum
for the 3 offenses before the court for sentencing. Where there are
multiple convictions subject to sentencing on a single scoresheet,
this single space only allows for entry of the collective statutory
maximum sentence total and does not contemplate the trial court’s
individual consideration of each offense’s statutory maximum
sentence for purposes of determining whether it is exceeded by the
LPS. The single space also suggests a collective maximum sentence
and a sentencing range between the LPS and the collective statutory
maximum sentence when there are multiple convictions subject to
sentencing. In light of this opinion, we will refer reconsideration of
the referenced section of the CPC Scoresheet contained in Florida
Rule of Criminal Procedure 3.992 to the Supreme Court Criminal
Court Steering Committee.
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921.0024(2) and our decisions in Butler and Moore. In Champagne,
the Second District concluded “that the LPS is an individual
minimum sentence which must be imposed when the LPS exceeds
the statutory maximum sentence for each offense.” 269 So. 3d at
630. Specifically, the Second District explained:
Based on the language of section 921.0024(2) and
bounded by the language of Butler and Moore, we
conclude that the LPS is an individual minimum
sentence which applies to each felony at sentencing for
which the LPS exceeds that felony’s statutory maximum
sentence, regardless of whether the felony is the primary
or an additional offense. The alternative interpretation,
that the LPS is a collective minimum sentence, while
seemingly reasonable, is not premised on the statutory
language or clearly reconcilable with Butler and Moore.
....
. . . Moore clearly holds that under the CPC there is
not a single sentencing range; rather, each offense has its
own statutory maximum sentence such that the range
may differ for each offense. But where the LPS exceeds
the offense’s statutory maximum sentence, there is no
range; the LPS must be imposed.
Id. at 636-37 (footnote omitted) (citations omitted).
Accordingly, because the Second District’s decision in
Champagne is consistent with the plain language of section
921.0024(2), we quash the Fifth District’s decision in Gabriel and
approve the Second District’s decision in Champagne to the extent
it is consistent with this opinion.
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III. CONCLUSION
For the above reasons, we answer the certified question in the
affirmative, quash the Fifth District’s decision in Gabriel, and
approve the Second District’s decision in the conflict case of
Champagne to the extent it is consistent with this opinion. In doing
so, we conclude that under section 921.0024(2), the LPS is an
individual minimum sentence where there are multiple convictions
subject to sentencing on a single scoresheet.
It is so ordered.
CANADY, C.J., and LAWSON, MUÑIZ, COURIEL, and GROSSHANS,
JJ., concur.
LABARGA, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
LABARGA, J., dissenting.
Because I believe that the lowest permissible sentence (LPS) is
a collective minimum sentence that applies to the cumulative total
of all pending charges as opposed to each individual charge, I would
answer the certified question in the negative, and approve of the
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Fifth District Court of Appeal’s opinion in Gabriel 7 and disapprove
of the Second District Court of Appeal’s opinion in Champagne. 8
Under the Criminal Punishment Code, multiple charged
offenses are considered collectively to establish a minimum
sentence, but they are considered individually when determining
the maximum punishment for each offense. Moore v. State, 882 So.
2d 977, 985 (Fla. 2004). I agree with Judge Warner’s analysis: “As I
understand Moore, the LPS is the collective total minimum sentence
for all offenses, but each has its own statutory maximum. The LPS
is not the sentence which must be applied to each offense at
sentencing.” Dennard v. State, 157 So. 3d 1055, 1060 (Fla. 4th
DCA 2014) (Warner, J., dissenting).
As observed by Judge Warner, applying the collective LPS to
each individual offense would, in some instances, allow a judge to
run the offenses consecutively to result in a sentence that is above
the collective statutory maximum for the combined offenses, despite
the LPS being below the collective statutory maximum. Id. at 1061.
7. Gabriel v. State, 44 Fla. L. Weekly D2913 (Fla. 5th DCA
Dec. 6, 2019).
8. Champagne v. State, 269 So. 3d 629 (Fla. 2d DCA 2019).
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This concern is not merely hypothetical. Indeed, the Fifth
District recognized that Gabriel’s case presented the very scenario
about which Judge Warner was concerned. See Gabriel, 44 Fla. L.
Weekly at D2913. Because the LPS was applied to each individual
offense and the sentences were imposed to run consecutively,
Gabriel’s sentence exceeded the combined statutory maximum of
the offenses despite the fact that the LPS did not exceed the
combined statutory maximum sentence. I do not believe that the
Legislature intended this result. Respectfully, I dissent.
Application for Review of the Decision of the District Court of Appeal
– Certified Great Public Importance/Certified Direct Conflict of
Decisions
Fifth District - Case No. 5D18-3264
(Orange County)
Ashley Moody, Attorney General, Tallahassee, Florida, Wesley Heidt,
Bureau Chief, and Richard A. Pallas, Jr., Assistant Attorney
General, Daytona Beach, Florida,
for Petitioner
James S. Purdy, Public Defender, Kevin R. Holtz and Scott G.
Hubbard, Assistant Public Defenders, Seventh Judicial Circuit,
Daytona Beach, Florida,
for Respondent
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