Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT KENNETH LEE ARCHER, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D20-1025 November 24, 2021 Appeal from the Circuit Court for Lee County; Nicholas R. Thompson, Judge. Howard L. Dimmig, II, Public Defender, and Rachel Paige Roebuck, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee. BLACK, Judge. Kenneth Archer challenges his sentence for DUI manslaughter rendered after his open plea to the charge. We find merit in Archer's argument that the trial court reversibly erred in sentencing him because the court did not impose mandatory probation as required by section 316.193(5), Florida Statutes (2018). Archer was sentenced to fifteen years in prison with a four- year minimum mandatory term for the second-degree felony; his lowest permissible sentence under the Criminal Punishment Code was 126.15 months (10.5125 years). Archer's attorney did not object to the sentence at its imposition. However, a timely motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) was filed, thereby preserving the issue. See Fla. R. App. P. 9.140(b)(2)(A)(ii)(d). Archer claims, as he did in his rule 3.800(b) motion, that the trial court erred in sentencing him to a term of fifteen years without a period of probation, in violation of section 316.193(5). In pertinent part, section 316.193(5) provides that "[t]he court shall place all offenders convicted of violating this section on monthly reporting probation and shall require completion of a substance abuse course conducted by a DUI program licensed by the [D]epartment [of Highway Safety and Motor Vehicles] under s. 322.292." In denying Archer's motion, the trial court determined that because section 316.193(3) states that a person who commits 2 DUI manslaughter shall be punished as provided in section 775.082, 775.083, or 775.084, Florida Statutes, and does not reference subsection (5), punishment is not governed by section 316.193's DUI sentencing requirements. After the denial of Archer's motion and during the pendency of this appeal, the Fourth District addressed the issue. In Powers v. State, 316 So. 3d 352 (Fla. 4th DCA 2021), the court reversed Powers' fifteen-year sentence with a four-year minimum mandatory for DUI manslaughter with instructions that Powers be resentenced to a total sentence not exceeding fifteen years but which must "include a probationary period that, at a minimum, is of sufficient length to permit [Powers] to complete a substance abuse course pursuant to section 316.193(5)." Id. at 356. The court also certified a question of great public importance, recognizing that section 316.193(5) could be interpreted as preventing a trial court from ever sentencing a defendant convicted of DUI manslaughter to a full fifteen years of imprisonment. Id. We are tasked, as the Powers court was, with considering on de novo review whether section 316.193(5) unambiguously conveys a clear meaning such that it must be given that meaning. See 316 3 So. 3d at 355 (quoting McNeil v. State, 215 So. 3d 55, 58 (Fla. 2017)). We find the Powers opinion persuasive and agree with its conclusion and analysis. Section 316.193(5) is unambiguous and requires that "in fashioning a sentence for a person convicted under section 316.193 (as here), the court shall place this person on 'monthly reporting probation' and shall require this person to complete a substance abuse course." Powers, 316 So. 3d at 355 (quoting § 316.193(5), Fla. Stat. (2011)). Like the court in Powers, we also conclude that there is no conflict between the general sentencing statute—section 775.082, Florida Statutes (2018), in this case—and section 316.193 because section 775.082 provides for a maximum prison term of fifteen years not a mandatory prison term of fifteen years. Further, even if section 316.193(5) was ambiguous such that statutory construction principles were to be applied, the more specific statute is section 316.193(5) and the two provisions can otherwise be read in harmony. See Powers, 316 So. 3d at 355-56 (discussing principles of statutory construction and recognizing that in McGhee v. State, 847 So. 2d 498, 504 (Fla. 4th DCA 2003), the court had "necessarily rejected the argument that section 316.193(3)'s 4 sentencing parameters are solely provided by section 775.082" because "[s]ubsection (5) requires probation and DUI school on any violation of section 316.193"). Contrary to the State's assertions, this court's decision in McGarrah v. State, 38 So. 3d 217 (Fla. 2d DCA 2010), does not require an affirmance. McGarrah addressed the legality of a seventeen-year sentence for DUI manslaughter where the statutory maximum sentence of fifteen years was exceeded by the defendant's lowest permissible sentence under the Criminal Punishment Code. This court held: A sentence can exceed the statutory maximum for an offense, but only if the lowest permissible sentence under the Criminal Punishment Code exceeds the statutory maximum for that offense. Fla. R. Crim. P. 3.704(d)(25); § 921.0024, Fla. Stat. (2007). When the lowest permissible sentence under the Code exceeds the statutory maximum, the trial court must impose the sentence required by the Code. Id. McGarrah's Criminal Punishment Code scoresheet provides for a lowest permissible sentence of 15.593 years. Because this sentence is greater than the fifteen-year statutory maximum sentence for DUI manslaughter, the court was required to sentence McGarrah to a term of 15.593 years for that offense. Id. at 218. This court did not remand with instructions that the court impose a sentence of 15.593 years in prison; rather, we 5 remanded "for imposition of a sentence consistent with th[e] opinion." Id. Our holding in McGarrah is consistent with our holding here: the trial court was required to impose a sentence with some combination of prison and probation. In McGarrah, that meant a total sentence term of 15.593 years; here, that means a total sentence of at least 126.15 months (10.5125 years) but no more than 15 years. We reverse Archer's sentence and remand for the trial court to conduct a de novo sentencing hearing following which the court must impose a sentence between 126.15 months and 15 years that shall include a probation period of sufficient length to allow Archer to complete the substance abuse course requirement of section 316.193(5).1 We also certify a question of great public importance, as the Fourth District has done: DOES SECTION 316.193(5)'S REQUIREMENTS OF "MONTHLY REPORTING PROBATION" AND COMPLETION OF A SUBSTANCE ABUSE COURSE 1 Additionally, because "a conviction under section 316.193(3) contains different penalties than a conviction under section 316.193(1)," Powers, 316 So. 3d at 357, and Archer was convicted only of a violation of subsection (3), the trial court must impose those requirements of section 316.193 applicable to Archer's conviction and not those applicable to a conviction under subsection (1). 6 VITIATE A TRIAL COURT'S DISCRETION TO IMPOSE THE MAXIMUM FIFTEEN-YEAR PRISON SENTENCE PROVIDED IN SECTION 775.082, FLORIDA STATUTES? Reversed and remanded; question certified. VILLANTI and STARGEL, JJ., Concur. Opinion subject to revision prior to official publication. 7