Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-2829 _____________________________ ERIC PIERCE, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Clay County. Don H. Lester, Judge. July 20, 2021 ON MOTION FOR REHEARING AND/OR CLARIFICATION PER CURIAM. We deny Appellee’s motion for rehearing and/or clarification, but withdraw our prior opinion dated March 24, 2021, and substitute the following opinion in its place. In this appeal from his convictions and sentences for two counts of vehicular homicide, Appellant claims that the trial court erred in imposing consecutive sentences of ten and eleven years in prison where the Criminal Punishment Code scoresheet provided for a lowest permissible sentence of 19.8 years. We agree and reverse and remand for resentencing. I. After Appellant entered an open guilty plea to two counts of vehicular homicide, the trial court rejected Appellant’s request for a downward departure and sentenced Appellant to concurrent terms of twenty-one years in prison as to each count. After filing a timely notice of appeal, Appellant filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The motion claimed that the trial court was required to impose sentences of 19.706 years on each count because this was the lowest permissible sentence under the Criminal Punishment Code scoresheet and exceeded the fifteen-year statutory maximum for a second-degree felony. The trial court entered an order granting Appellant’s motion insofar as Appellant’s individual sentences exceeded the statutory maximum of fifteen years for a second-degree felony. However, it rejected Appellant’s argument that the lowest permissible sentence must be imposed when it exceeded the statutory maximum for each individual count. Citing Gabriel v. State, 44 Fla. L. Weekly D2913 (Fla. 5th DCA Dec. 6, 2019), the court found that the lowest permissible sentence must be imposed only when it exceeded the collective statutory maximum for all counts, which in Appellant’s case was thirty years if the court imposed consecutive sentences of fifteen years in prison. Based on a corrected scoresheet, the court found that the lowest permissible sentence was 19.8 years, which did not exceed the collective statutory maximum of thirty years. Accordingly, the trial court ordered that Appellant be resentenced using a corrected scoresheet. At Appellant’s resentencing hearing, the State argued that “a 21-year sentence can still be fashioned here, based on just a consecutive sentence between the counts.” Defense counsel acknowledged that the court could impose consecutive sentences as long as Appellant’s constitutional rights were not violated and requested that the court “consider giving him the guidelines which is maybe about a little—little more than a year under 21 years.” The court agreed that it could not exceed the twenty-one-year sentence originally imposed. The court then resentenced Appellant to consecutive terms of ten and eleven years in prison for a total sentence of twenty-one years. 2 II. Under the Criminal Punishment Code, sentence points are scored for the primary offense, “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”; additional offenses, those “for which an offender is convicted and which [are] pending before the court for sentencing at the time of the primary offense”; and the prior record, “a conviction for a crime committed . . . prior to the time of the primary offense.” § 921.0021(1), (4) & (5), Fla. Stat. (2019). A scoresheet is used to calculate total sentence points that determine the lowest permissible sentence, i.e., the minimum sentence that may be imposed by the trial court absent a valid reason for departure. § 921.0024(1)(a) & (2), Fla. Stat. (2019). “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.” § 921.0024(2), Fla. Stat. (2019). The Criminal Punishment Code also provides that the trial court “may impose a sentence up to and including the statutory maximum for any offense” and expressly allows for concurrent or consecutive sentencing. §§ 921.002(1)(g) & 921.0024(2), Fla. Stat. (2019). However, “[i]f 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.” § 921.0024(2), Fla. Stat. (2019). In this case, Appellant claims that the trial court erred in imposing consecutive sentences of ten and eleven years in prison where the Criminal Punishment Code scoresheet provided for a lowest permissible sentence of 19.8 years in prison, asserting that the trial court should have imposed concurrent sentences of 19.8 years for both counts. The issue here is whether the lowest permissible sentence applies under section 921.0024(2) when the lowest permissible sentence exceeds the statutory maximum for each individual count or when it exceeds the collective statutory maximum for all counts. 3 In Champagne v. State, 269 So. 3d 629 (Fla. 2d DCA 2019), the Second District concluded that the lowest permissible sentence “is an individual minimum sentence which applies to each felony at sentencing for which the [lowest permissible sentence] exceeds that felony’s statutory maximum sentence, regardless of whether the felony is the primary or an additional offense.” Id. at 636. The court expressly rejected the alternative interpretation that the lowest permissible sentence “is a collective minimum sentence.” Id. Subsequently, in Gabriel v. State, 44 Fla. L. Weekly D2913 (Fla. 5th DCA Dec. 6, 2019), review granted, No. SC19-2155, 2020 WL 1888656 (Fla. Apr. 16, 2020), the Fifth District disagreed with Champagne and held that the lowest permissible sentence must be applied under section 921.0024(2) only when it exceeds the collective statutory maximum—not each individual statutory maximum. The court certified conflict with Champagne as well as 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. Recently, the Florida Supreme Court answered the above question in the affirmative, disapproved the Fifth District’s decision in Gabriel, and approved the Second District’s decision in Champagne. State v. Gabriel, 46 Fla. L. Weekly S62 (Fla. Apr. 8, 2021). In light of the supreme court’s pronouncement on this issue, the trial court was required to impose sentences of 19.8 years for each count of vehicular homicide where the Criminal Punishment Code scoresheet provided for a lowest permissible sentence of 19.8 years. III. The Florida Supreme Court has held that the lowest permissible sentence is an individual minimum sentence where 4 there are multiple convictions subject to sentencing on a single scoresheet. As a result, the trial court should have imposed 19.8 years for both counts of vehicular homicide where the scoresheet prescribed a lowest permissible sentence of 19.8 years. Accordingly, we reverse and remand for resentencing. REVERSED and REMANDED for resentencing. M.K. THOMAS and NORDBY, JJ., concur; JAY, J., specially concurs with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ JAY, J., specially concurring. The Florida Supreme Court’s recent decision in Gabriel has effectively limited the trial court’s sentencing discretion in this case to the imposition of either concurrent or consecutive sentences. However, if consecutive sentences were to be imposed on remand, this would almost double the trial court’s original sentence of twenty-one years, giving rise to a presumption of vindictiveness in violation of due process. See Trotter v. State, 825 So. 2d 362, 369 (Fla. 2002) (explaining that following the reversal of a sentence on appeal, the presumption of vindictiveness arises when the trial judge imposes a more severe sentence upon resentencing). Because the trial court acknowledged that it could not exceed its original sentence of twenty-one years, I believe that the trial court should impose concurrent sentences of 19.8 years. _____________________________ Jessica J. Yeary, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant. 5 Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee. 6