DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
KELLY PETERSON MILLIEN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D20-1940
[March 2, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Kirk Volker, Judge; L.T. Case No. 50-2018-CF-005945-
AXXX-MB.
Carey Haughwout, Public Defender, and Elijah Giuliano, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.
CONNER, C.J.
Kelly Peterson Millien appeals the judgments and sentences imposed
after a jury found him guilty of two counts of lewd or lascivious battery on
a person 12 years of age or older but less than 16 years of age. Millien
raises eight issues on appeal. We affirm as to seven of the issues without
discussion. We affirm on the remaining issue as well but explain our
reasoning. The issue we discuss is Millien’s argument that the trial court
illegally sentenced him to a term exceeding the statutory maximum for
second degree felonies because the trial court did not properly apply the
adult-on-minor sentencing multiplier provision in calculating the lowest
permissible sentence. We disagree with Millien’s interpretation of the
adult-on-minor sentencing multiplier provision and affirm.
Background
To explain our analysis for affirming the trial court on the sentencing
issue which we discuss, crime and evidence background is not necessary.
At sentencing, Millien’s scoresheet reflected the lowest permissible
sentence was 182.25 months in prison. After acknowledging the lowest
permissible sentence, the trial court stated that the permissible range of
sentences for Millien was “the lowest permissible prison sentence, 182.25
months, up to thirty years.” Millien agreed. The State recommended ten
years on each count to be served consecutively. Millien moved for
downward departure but did not request a specific sentence. The trial
court stated that because the lowest permissible sentence exceeded the
statutory maximum for each count of lewd or lascivious battery, absent a
downward departure, it was required to sentence Millien to the lowest
permissible sentence, 182.25 months in prison, for each count. The trial
court denied Millien’s motion for downward departure and sentenced him
to 182.25 months in prison on each count to run concurrently. The
statutory adult-on-minor sentencing multiplier was not discussed at any
point. After sentencing, Millien gave notice of appeal.
During this appeal’s pendency, Millien filed a Florida Rule of Criminal
Procedure 3.800(b)(2) motion to correct sentencing errors, raising the
application of the adult-on-minor multiplier provision contained in section
921.0024(1)(b), Florida Statutes (2015) (“the adult-on-minor multiplier”).
The motion is deemed denied because the trial court failed to rule within
sixty days. See Fla. R. Crim. P. 3.800(b)(2)(B).
Appellate Analysis
Millien contends the trial court erred in sentencing him to 185.25
months in prison on each count of lewd or lascivious battery on a child
and denying his motion to correct sentencing errors. Because his
arguments focus on statutory interpretation and denial of his 3.800(b)(2)
motion, our review is de novo. See Metellus v. State,
310 So. 3d 90, 92
(Fla. 4th DCA 2021); Henry v. State,
229 So. 3d 390, 393-94 (Fla. 4th DCA
2017).
As mentioned, there was no discussion concerning the adult-on-minor
multiplier at sentencing. Although Millien argues that the trial court
should have applied the multiplier, he does not argue why the trial court
was required to apply it. However, we agree that once Millien met the
threshold qualifications for the adult-on-minor multiplier, the trial court
was required to consider it at sentencing.
In discussing a different multiplier, we have stated that when a
defendant qualifies for a multiplier, “application of th[e] sentencing
multiplier is not discretionary.” State v. Stafford,
711 So. 2d 612, 612 (Fla.
4th DCA 1998). However, we note that the drug trafficking multiplier, also
2
listed in both section 921.0024(b) and Florida Rule of Criminal Procedure
3.704(19), has a clause providing that it may be applied “at the discretion”
of the court. § 921.0024(b), Fla. Stat.; Fla. R. Crim. P. 3.704(19). “[T]he
Legislature’s use of different terms in different parts of the same statute is
‘strong evidence that different meanings were intended.’” D.M.H. v. Pietilla,
33 So. 3d 800, 801 (Fla. 5th DCA 2010) (quoting Maddox v. State,
923 So.
2d 442, 446 (Fla. 2006)). Therefore, the fact that the legislature included
discretionary terms in the drug trafficking multiplier within section
921.0024(1)(b), but specifically left the discretionary term out of the adult-
on-minor multiplier, supports the conclusion that consideration of the
adult-on-minor multiplier is mandatory, not discretionary.
Although the trial court erred in not considering the adult-on-minor
multiplier at sentencing, for the reasons discussed below, we affirm. We
focus our analysis first on the sentence imposed for count 1 (lewd or
lascivious battery on a child), which was the primary offense on Millien’s
scoresheet, and then shift our analysis to count 2 (lewd or lascivious
battery on a child), identified as the additional offense on the scoresheet.
Section 921.0024(1)(b) provides the Criminal Punishment Code
scoresheet’s “Worksheet Key” to be used to compute the subtotal and total
sentence points for sentencing. § 921.0024(1)(b), Fla. Stat. (2015). The
Worksheet Key includes instructions for sentencing multipliers used to
compute the subtotal and total sentencing points. Id. Regarding adult-
on-minor sex offenses, subsection (1)(b) provides:
Adult-on-minor sex offense: If the offender was 18 years of
age or older and the victim was younger than 18 years of age
at the time the offender committed the primary offense, and if
the primary offense was an offense committed on or after
October 1, 2014, and is a violation of s. 787.01(2) or s.
787.02(2), if the violation involved a victim who was a minor
and, in the course of committing that violation, the defendant
committed a sexual battery under chapter 794 or a lewd act
under s. 800.04 or s. 847.0135(5) against the minor; s.
787.01(3)(a) 2. or 3.; s. 787.02(3)(a) 2. or 3.; s. 794.011,
excluding s. 794.011(10); s. 800.04; or s. 847.0135(5), the
subtotal sentence points are multiplied by 2.0. If applying the
multiplier results in the lowest permissible sentence
exceeding the statutory maximum sentence for the primary
offense under chapter 775, the court may not apply the
multiplier and must sentence the defendant to the statutory
maximum sentence.
3
Id. As can be seen, the adult-on-minor multiplier has two components: (1)
qualifying language establishing the threshold for its application; and (2)
language limiting its application once the threshold is met. The parties
disagree as to both portions on appeal.
First, the State argues that the adult-on-minor multiplier was not
applicable to Millien’s sentencing because the multiplier applies only when
there has been a violation of either section 787.01(2) or section 787.02(2),
Florida Statutes, and a violation of one of the various sexual offenses
listed. Based on the statute’s plain meaning, we disagree. See Lopez v.
Hall,
233 So. 3d 451, 453 (Fla. 2018) (“We first examine the statute’s plain
meaning, resorting to rules of statutory construction only if the statute’s
language is ambiguous.”). The statute’s use of the semi-colons and the
final “or” indicates that each portion between the semi-colons is a separate
category. See Igwe v. City of Miami,
208 So. 3d 150, 154-55 (Fla. 3d DCA
2016) (“Each category is independent, as the list is separated by the use
of semicolons and by the word ‘or,’ which ‘as used in a statute, is a
disjunctive article indicating an alternative.’” (quoting TEDC/Shell City,
Inc. v. Robbins,
690 So. 2d 1323, 1325 (Fla. 3d DCA 1997))).
This conclusion is further supported by Florida Rule of Criminal
Procedure 3.704. Rule 3.704 gives the procedures for implementing
Florida’s Criminal Punishment Code. The rule’s subsection (d)(24)
contains the provision regarding the adult-on-minor multiplier. As
opposed to one long sentence, the qualifying language is set forth in list
format, listing each of the qualifying offenses separately. 1 Fla. R. Crim. P.
1(24) (A) Adult on minor sex offense. The subtotal sentence points are multiplied
by 2.0 if:
(i) the offender was 18 years of age or older and the victim was
younger than 18 years of age at the time the offender committed the
primary offense; and
(ii) the primary offense was committed on or after October 1, 2014,
and is a violation of:
a. section 787.01(2) (kidnapping) or 787.02(2) (false
imprisonment), Florida Statutes, if in the course of committing the
kidnapping or false imprisonment the defendant committed a
sexual battery under chapter 794, Florida Statutes, or a lewd act
under section 800.04 or 847.0135(5), Florida Statutes, against the
victim;
b. section 787.01(3)(a)2. or (3)(a)3., Florida Statutes, (kidnapping
of a child under 13 with a sexual battery or lewd act);
4
3.704(d)(24)(A). As a separate qualifying offense, the rule lists “a violation
of . . . section 800.04, Florida Statutes, (lewd or lascivious offenses),”
making it clear that Millien’s offenses qualify for the adult-on-minor
multiplier. Fla. R. Crim. P. 3.704(d)(24)(A)(ii)e.
Having determined that Millien’s offenses met the threshold
qualifications for the adult-on-minor multiplier, the next question is the
effect of section 921.0024(1)(b)’s limiting language of the multiplier. The
limiting language states:
If applying the multiplier results in the lowest permissible
sentence exceeding the statutory maximum sentence for the
primary offense under chapter 775, the court may not apply
the multiplier and must sentence the defendant to the
statutory maximum sentence.
§ 921.0024(1)(b), Fla. Stat. (2015). As an initial matter, we note that a
plain reading of the adult-on-minor multiplier reveals that the qualifying
and limiting language refers to the primary offense. Next, Millien’s lowest
permissible sentence (“LPS”), without application of the multiplier, is 182.5
months in prison. Applying the multiplier, Millien’s LPS would be 385.5
months 2 in prison. The maximum sentence under section 775.082 for
Millien’s primary offense, lewd or lascivious battery on a child, is fifteen
years in prison (180 months). § 800.04(4)(b), Fla. Stat. (2015); §
775.082(3)(d), Fla. Stat. (2015). Therefore, applying the multiplier results
in Millien’s LPS exceeding the statutory maximum sentence for his primary
offense under chapter 775. What the adult-on-minor multiplier requires
once this determination is made is the main point of contention.
c. section 787.02(3)(a)2. or (3)(a)3., Florida Statutes, (false imprisonment
of a child under 13 with a sexual battery or lewd act);
d. section 794.011, Florida Statutes, (sexual battery), excluding section
794.011(10);
e. section 800.04, Florida Statutes, (lewd or lascivious offenses); or
f. section 847.0135(5), Florida Statutes, (lewd or lascivious exhibition
using a computer).
Fla. R. Crim. P. 3.704(d)(24)(A).
2 The record reveals that the subtotal sentence points on Millien’s scoresheet is
271 points. When his subtotal sentence points are multiplied by 2.0, the
applicable adult-on-minor enhancement, the total sentence points becomes 542
points, which translates into the lowest permissible sentence of 385.5 months
(271 pts x 2 = 542 pts – 28 pts = 514 pts x.75 = 385.5 months).
5
Count 1, The Primary Offense
Millien argues that because his LPS after applying the adult-on-minor
multiplier exceeds the statutory maximum sentence for his primary
offense under chapter 775, the limiting language of the adult-on-minor
multiplier required the trial court to sentence Millien to the statutory
maximum for his primary offense under chapter 775, or 180 months in
prison. In support of his argument, Millien contends that the phrase “the
statutory maximum sentence” means the same thing in both places it
occurs in the limiting language. Based on the plain language of the adult-
on-minor multiplier, we disagree.
When interpreting a statute, “[w]e first examine the statute’s plain
meaning, resorting to rules of statutory construction only if the statute’s
language is ambiguous.” Lopez, 233 So. 3d at 453. We conclude that the
adult-on-minor multiplier is not ambiguous. That conclusion, and our
determination as to the adult-on-minor multiplier’s plain meaning, is
guided by another portion of section 921.0024, as well as our supreme
court’s interpretation of that portion in its recent decision, State v. Gabriel,
314 So. 3d 1243 (Fla. 2021).
Section 921.0024(2), Florida Statutes (2015), states, in part:
(2) The lowest permissible sentence is the minimum sentence
that may be imposed by the trial court, absent a valid reason
for departure. . . . 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 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. . . . 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.
§ 921.0024(2), Fla. Stat. (2015) (emphasis added).
In Gabriel, our supreme court interpreted section 921.0024(2). The
court determined that the lowest permissible sentence is an individual
6
minimum sentence. 314 So. 3d at 1252. In conducting its analysis, the
court noted that when the legislature referenced “the statutory maximum”
and the “statutory maximum sentence” in the two italicized portions above
within section 921.0024(2), respectively, “both refer to section 775.082.”
Id. at 1248. As to the adult-on-minor multiplier, the first use of the phrase
“the statutory maximum sentence” is specifically linked to chapter 775. §
921.0024(2), Fla. Stat. (“If applying the multiplier results in the lowest
permissible sentence exceeding the statutory maximum sentence for the
primary offense under chapter 775 . . . ” (emphasis added)). However, in
the concluding words of the limiting language, the legislature did not link
“the statutory maximum sentence” to chapter 775. Id. (“. . . the court may
not apply the multiplier and must sentence the defendant to the statutory
maximum sentence” (emphasis added)).
If the adult-on-minor multiplier limiting language referenced chapter
775 in relation to “the statutory maximum sentence” in both instances,
the trial court clearly would have been required to sentence Millien to 180
months in prison. However, the fact that the limiting language refers to
“the statutory maximum sentence” in reference to chapter 775 in the first
iteration of the term, but not in the second iteration, “is significant.” See
Gabriel, 314 So. 3d at 1248 (“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.” (quoting
Leisure Resorts, Inc. v. Frank J. Rooney, Inc.,
654 So. 2d 911, 914 (Fla.
1995))). In other words, Millien is asking us to insert words into the statute
that are not there. However, “[i]t is not our role to act as the Legislature
or to add words to the statute which do not exist.” State v. Estime,
259
So. 3d 884, 889 (Fla. 4th DCA 2018).
Accordingly, because the limiting language’s concluding words do not
reference chapter 775 when using the phrase “the statutory maximum
sentence,” it follows that “the statutory maximum sentence” as used in the
limiting language’s concluding words is literally the maximum sentence
which Millien faced under the Florida Criminal Punishment Code, without
application of the adult-on-minor multiplier.
We also find section 921.0024(2)’s language relevant to the
interpretation of the adult-on-minor multiplier for a second reason. “It is
axiomatic that all parts of a statute must be read together in order to
achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion
Control Dist.,
604 So. 2d 452, 455 (Fla. 1992). “Where possible, courts
must give full effect to all statutory provisions and construe related
statutory provisions in harmony with one another.”
Id. As noted above,
section 921.0024(2) states: “If the lowest permissible sentence under the
7
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. (2015). Millien’s interpretation of the adult-on-minor multiplier
would nullify section 921.0024(2)’s language requiring that the LPS must
be imposed where it exceeds the statutory maximum under section
775.082. 3
Accordingly, we conclude that the adult-on-minor multiplier’s limiting
language precluded the trial court from doubling Millien’s subtotal
sentence points to calculate the LPS, and instead, the trial court was
required to sentence Millien on count 1 to the maximum sentence under
Florida Criminal Punishment Code for the scoresheet’s primary offense
without applying the adult-on-minor multiplier. See § 921.0024(1)(b), Fla.
Stat. (2015); § 921.0024(2), Fla. Stat. (2015); Gabriel, 314 So. 3d at 1248-
49 (“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.”). Thus, the trial court did not err
in imposing the sentence for count 1.
Count 2, The Additional Offense
3 We note that in Butler v. State,
838 So. 2d 554 (Fla. 2003), the supreme court
addressed a concern about a potential statutory conflict between section
921.002(1)(g), Florida Statutes (Supp. 1998) (providing that a trial 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 trial court must
impose the lowest permissible sentence where it exceeds the statutory maximum
sentence).
Id. at 555. The supreme court concluded that sections 921.002(1)(g)
and 921.0024(2) were not in conflict and could be harmonized.
Id. at 555-56.
The court explained that section 921.002(1)(g) is a general sentencing provision,
while section 921.0024(2) is an exception to the general sentencing provisions.
Id. at 556. Thus, the supreme court 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 lowest permissible sentence under the code,
the lowest permissible sentence under the code becomes the maximum sentence
which the trial judge can impose.”
Id.
Similarly, the first clause of the adult-on-minor’s limiting language applies the
general sentencing provisions under chapter 775, whereas the second clause
addresses the possibility that the lowest permissible sentence may be higher than
the statutory maximum sentence under chapter 775.
8
Moving to count 2, we agree with Millien that the sentence imposed for
the scoresheet’s additional offense (count 2) had to be the same sentence
imposed for the primary offense (count 1). That is because the LPS for the
primary offense in this case exceeds the maximum sentence for the offense
under section 775.082. Again, the statutes’ plain language and the Gabriel
opinion guide the analysis.
Section 921.0021, Florida Statutes (2015), of the Florida Criminal
Punishment Code provides the definition of “primary offense” and
“additional offense” as used on the scoresheet to calculate the LPS:
(1) “Additional offense” means 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.
....
(4) “Primary offense” means 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. Only one count of one offense before the court for
sentencing shall be classified as the primary offense.
§ 921.0021(1), (4), Fla. Stat. (2015) (emphasis added). Because (1) the
primary offense’s total sentence points, by definition, must be “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,” §
921.0021(4), Fla. Stat. (2015); (2) the Criminal Punishment Code’s
required sentence must be imposed if the LPS under the code exceeds the
statutory maximum sentence as provided in section 775.082, §
921.0024(2), Fla. Stat. (2015); and (3) the LPS is both the minimum and
the maximum penalty for the offense if the LPS exceeds the statutory
maximum penalty in section 775.082, Gabriel, 314 So. 3d at 1248-49, the
sentence imposed for count 2 in this case had to be the same as the
sentence imposed for count 1. Thus, the sentence imposed by the trial
court for count 2 in this case was also the correct sentence.
9
Conclusion
Although the trial court did not consider the adult-on-minor multiplier
at sentencing, the trial court imposed the proper sentence for both counts.
Thus, we affirm. See Robertson v. State,
829 So. 2d 901, 906 (Fla. 2002)
(“[T]he tipsy coachman doctrine[] allows an appellate court to affirm a trial
court that reaches the right result, but for the wrong reasons so long as
there is any basis which would support the judgment in the record.”
(citation and internal quotation marks omitted)).
We also note the First District interpreted the adult-on-minor multiplier
in Hayes v. State,
272 So. 3d 815 (Fla. 1st DCA 2019). There, the
defendant was convicted of six counts of lewd or lascivious battery on a
person older than age 12 but younger than age 16. Id. at 817. Without
application of the adult-on-minor multiplier, the defendant’s LPS was
44.45 years. Id. The trial court applied the multiplier and sentenced the
defendant to an aggregate sentence of 90.59 years in prison. Id. Hayes
argued that the limiting clause in the adult-on-minor multiplier prohibited
the use of the multiplier to any of his offenses. Id. at 818. He also argued
that the multiplier was not intended to enhance multiple offenses. Id. The
First District interpreted the limiting clause to provide that when the total
result on the scoresheet, with the multiplier applied, exceeds the statutory
maximum sentence for the primary offense, the sentencing court must not
apply the multiplier and must impose the maximum sentence under
section 775.082 for the defendant’s primary offense. Id. As to all six
counts of lewd and lascivious battery on a minor, the First District opined
that Hayes should have been sentenced to a total aggregate sentence of at
least 44.45 years in prison (the lowest permissible sentence without the
multiplier), including a sentence of 15 years in prison on the primary
offense. Id. at 819.
Based on Gabriel, we assume that Hayes’s interpretation of the adult-
on-minor multiplier included in section 921.0024(1)(b) is no longer viable.
However, the First District has not receded from Hayes, so we certify
conflict with Hayes v. State,
272 So. 3d 815 (Fla. 1st DCA 2019).
Affirmed.
KUNTZ, J., concurs.
WARNER, J., concurs specially with opinion.
WARNER, J., concurring specially.
10
Although I concur with the result of the majority, I disagree with the
majority’s interpretation of the adult-on-minor multiplier that “the
statutory maximum sentence” means something different than “the
statutory maximum sentence for the primary offense under chapter 775”
in section 921.0024(1)(b), Florida Statutes (2015). That section provides:
“If applying the multiplier results in the lowest permissible sentence
exceeding the statutory maximum sentence for the primary offense under
chapter 775, the court may not apply the multiplier and must sentence the
defendant to the statutory maximum sentence.”
Id. (emphasis added). The
presumption of consistent usage holds that “[a] word or phrase is
presumed to bear the same meaning throughout a text[.]” See Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
170 (2012). The two references to “the statutory maximum” require the
application of the same meaning.
It seems to me to be a distortion of the common understanding to
construe “statutory maximum sentence” as something other than what is
set forth in a phrase immediately preceding it in the same sentence. It is
similar to abbreviating the “Criminal Punishment Code” to the “Code.” For
instance, section 921.002(1)(f), Florida Statutes (2015), provides:
“Departures below the lowest permissible sentence established by the code
must be articulated in writing by the trial court judge and made only when
circumstances or factors reasonably justify the mitigation of the sentence.”
One could not conclude that the “code” identified in that provision is
anything other than the “Criminal Punishment Code.” Likewise, the
“statutory maximum sentence” should not be construed as anything other
than the “statutory maximum sentence under chapter 775.”
The “statutory maximum sentence” has an established meaning
throughout the sentencing statutes, and in section 921.0024, it is clearly
something different than the “lowest permissible sentence.” That section
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 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 one year. If the lowest permissible
sentence under the code exceeds the statutory maximum
11
sentence as provided in s. 775.082, the sentence required by
the code must be imposed.
Section 921.0024(2), Fla. Stat. (2015) (emphasis added). If the lowest
permissible sentence (“LPS”) was also a statutory maximum sentence, then
the foregoing language in the statute differentiating the two would not be
necessary.
I conclude, however, that the trial court did not incorrectly sentence
appellant on Count 1, because the adult-on-minor multiplier was not
applied, and thus its application did not result in the LPS exceeding the
statutory maximum. The LPS was exceeded without application of the
multiplier. Since Millien’s LPS already exceeded the statutory maximum,
pursuant to section 921.0024(2), the trial court was required to sentence
him to the LPS.
In this regard, I disagree with Hayes v. State,
272 So. 3d 815, 817 n.2
(Fla. 1st DCA 2019). The First District interpreted the statutory language
“to mean that after applying the multiplier, the court must look at the
resulting lowest permissible sentence and see if that result exceeds the
statutory maximum.” The First District did so because it thought that trial
courts would have a difficult time parsing through the scoresheet
computations to ascertain whether the LPS was exceeded prior to
application of the multiplier.
Id. But a review of the scoresheet
computation does not reveal any such difficulty. The scoresheet is
calculated with a subtotal of sentencing points prior to the application of
any multiplier. It is a simple calculation to determine whether that
subtotal would result in a LPS greater than the statutory maximum prior
to the application of the multiplier. In this case, the multiplier was not
applicable, because sentencing points resulted in an LPS in excess of the
statutory maximum without it.
This interpretation harmonizes the LPS with the adult-on-minor
multiplier. Where the LPS exceeds the statutory maximum based upon
the sentencing points subtotal, the adult-on-minor multiplier is not
applied, and the defendant is sentenced in accordance with section
921.0024(2) to the LPS. Where the LPS does not exceed the statutory
maximum prior to the application of the multiplier, the multiplier is then
applied. If it results in a sentence in excess of the statutory maximum,
then the sentence is limited to the statutory maximum. The Criminal
Punishment Code is thus consistently interpreted without changing the
meaning of “statutory maximum sentence.”
12
Finally, I agree with the majority that based upon State v. Gabriel,
314
So. 3d 1243 (Fla. 2021), the additional offense must be sentenced to the
LPS. Thus, as to both counts, the trial court’s sentence was correct and
must be affirmed.
* * *
Not final until disposition of timely filed motion for rehearing.
13
