Josue Cotto v. State of Florida , 39 Fla. L. Weekly Supp. 327 ( 2014 )

Supreme Court of Florida
____________
No. SC12-1277
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JOSUE COTTO,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[May 15, 2014]
LEWIS, J.
Josue Cotto seeks review of the decision of the Third District Court of
Appeal in Cotto v. State, 89 So. 3d 1025 (Fla. 3d DCA 2012), on the basis that the
Third District certified that its decision is in conflict with the decision of the Fifth
District Court of Appeal in Williams v. State, 10 So. 3d 1116 (Fla. 5th DCA 2009).
We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
FACTS
This matter concerns the sentence imposed on Cotto for several crimes he
committed on December 1, 2002. On that date, Cotto approached a stranger on a
street in South Beach and told the stranger that he had just been “ripped off” during
an attempt to buy cocaine. Cotto proceeded to take out a gun, point it at the
stranger’s stomach, and ask the stranger if he wanted anybody to be killed. When
the stranger replied in the negative, Cotto put the gun in his pocket and walked
away. The stranger called the police, who arrived immediately and arrested Cotto.
Cotto was subsequently convicted of carrying a concealed firearm, aggravated
assault with a firearm, and possession of a firearm by a convicted felon. 1
Cotto was sentenced as a prison releasee reoffender (PRR) for the conviction
of aggravated assault with a firearm and was sentenced to five years’ incarceration.
Cotto was sentenced to ten years’ incarceration as a habitual felony offender
(HFO) for the conviction of carrying a concealed firearm. He was also sentenced
to thirty years’ incarceration as an HFO for the conviction of possession of a
firearm by a convicted felon, with a ten-year minimum mandatory pursuant to the
ten/twenty/life statute. The HFO sentences were imposed to run concurrent to each
other, but consecutive to the five-year PRR sentence. Thus, Cotto was sentenced
to a total of thirty-five years’ incarceration.
Cotto’s sentences were affirmed without opinion on appeal to the Third
District Court of Appeal. Cotto v. State, 990 So. 2d 1072 (Fla. 3d DCA 2008)
1. Cotto was also convicted of improper exhibition of a weapon and
possession of a firearm with an altered ID number. However, these convictions
and the sentences imposed for them are not relevant to the issue presented by this
case.
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(table). Subsequently, Cotto filed a pro se rule 3.850 motion for postconviction
relief that alleged, among other things, that his thirty-five year sentence was illegal
under Hale v. State, 630 So. 2d 521, 525 (Fla. 1993), in which this Court held that
sentences enhanced under the habitual violent felony offender (HVFO) provision
of section 775.084, Florida Statutes, cannot run consecutively to other sentences
that arise from the same criminal episode. The trial court denied Cotto’s motion
for postconviction relief, and the Third District affirmed. Cotto, 89 So. 3d at 1034.
The Third District held that Hale prohibits the imposition of consecutive sentences
for crimes that arise out of a single criminal episode only where both sentences are
enhanced through a sentencing scheme that extends the permissible sentence
beyond that prescribed by section 775.082, Florida Statutes.2 However, the Third
District concluded that Hale does not prohibit the imposition of consecutive
sentences if the statute under which the defendant is sentenced does not extend the
maximum permissible sentence delineated by section 775.082. Id. at 1033-34.
Thus, the Third District concluded that because the PRR statute imposes a
mandatory minimum that is in accordance with, and not beyond, the statutory
maximum, a PRR sentence is not an enhanced sentence, and a trial court therefore
may impose an HFO sentence consecutive to a PRR sentence. Id. at 1034.
2. Section 775.082 delineates the penalties for felonies and misdemeanors
unless another sentencing provision applies.
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The Third District certified a conflict with the decision of the Fifth District
in Williams, 10 So. 3d 1116, in which the Fifth District held that although a PRR
sentence is not an enhanced sentence, because an HVFO sentence is an enhanced
sentence, Hale applies and consecutive sentencing for crimes that arise from a
single criminal episode is improper. Id. This review follows.
ANALYSIS
Standard of Review
This case presents a question of statutory construction. Questions of
statutory interpretation are reviewed de novo. Se. Floating Docks, Inc. v. Auto-
Owners Ins. Co., 82 So. 3d 73, 78 (Fla. 2012).
Our purpose in construing a statutory provision is to give effect to legislative
intent, which is the polestar that guides a statutory construction analysis. Larimore
v. State, 2 So. 3d 101, 106 (Fla. 2008). All statutory provisions must be given their
full effect by the courts, and related statutory provisions must be construed in
harmony with one another. Id.; see also Heart of Adoptions, Inc. v. J.A., 693 So.
2d 189, 199 (Fla. 2007).
PRR and Habitual Offender Statutes
The PRR statute is a mandatory minimum provision that creates a sentencing
floor. See State v. Cotton, 769 So. 2d 345, 354 (Fla. 2000). The PRR statute
provides:
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(9)(a)1. “Prison releasee reoffender” means any defendant who
commits, or attempts to commit:
[Certain enumerated crimes]
within 3 years after being released from a state correctional facility . .
. or within 3 years after being released from a correctional institution
of another state . . . following incarceration for an offense for which
the sentence is punishable by more than 1 year in this state.
...
3. If the state attorney determines that a defendant is a prison
releasee reoffender as defined in subparagraph 1., the state attorney
may seek to have the court sentence the defendant as a prison releasee
reoffender. Upon proof from the state attorney that establishes by a
preponderance of the evidence that a defendant is a prison releasee
reoffender as defined in this section, such defendant is not eligible for
sentencing under the sentencing guidelines and must be sentenced as
follows:
a. For a felony punishable by life, by a term of imprisonment
for life;
b. For a felony of the first degree, by a term of imprisonment
of 30 years;
c. For a felony of the second degree, by a term of
imprisonment of 15 years; and
d. For a felony of the third degree, by a term of imprisonment
of 5 years.
(b) A person sentenced under paragraph (a) shall be released
only by expiration of sentence and shall not be eligible for parole,
control release, or any form of early release. Any person sentenced
under paragraph (a) must serve 100 percent of the court-imposed
sentence.
(c) Nothing in this subsection shall prevent a court from
imposing a greater sentence of incarceration as authorized by law,
pursuant to s. 775.084 [the habitual offender statute] or any other
provision of law.
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(d)1. It is the intent of the Legislature that offenders previously
released from prison who meet the criteria in paragraph (a) be
punished to the fullest extent of the law and as provided in this
subsection, unless the state attorney determines that extenuating
circumstances exist which preclude the just prosecution of the
offender, including whether the victim recommends that the offender
not be sentenced as provided in this subsection.
§ 775.082, Fla. Stat. (2002) (emphasis supplied). In contrast to the PRR statute,
the HFO provision allows courts to sentence a defendant who qualifies as an HFO
to an extended term of imprisonment. See § 775.084(1)(a), (4)(a), Fla. Stat.
(2002). The HFO provision provides:
(1) As used in this act:
(a) “Habitual felony offender” means a defendant for whom the
court may impose an extended term of imprisonment, as provided in
paragraph (4)(a), if it finds that:
1. The defendant has previously been convicted of any
combination of two or more felonies in this state or other qualified
offenses.
2. The felony for which the defendant is to be sentenced was
committed:
a. While the defendant was serving a prison sentence or other
sentence, or court-ordered or lawfully imposed supervision that is
imposed as a result of a prior conviction for a felony or other qualified
offense; or
b. Within 5 years of the date of the conviction of the
defendant’s last prior felony or other qualified offense, or within 5
years of the defendant’s release from a prison sentence, probation,
community control, control release, conditional release, parole or
court-ordered or lawfully imposed supervision or other sentence that
is imposed as a result of a prior conviction for a felony or other
qualified offense, whichever is later.
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3. The felony for which the defendant is to be sentenced, and
one of the two prior felony convictions, is not a violation of s. 893.13
relating to the purchase or the possession of a controlled substance.
4. The defendant has not received a pardon for any felony or
other qualified offense that is necessary for the operation of this
paragraph.
5. A conviction of a felony or other qualified offense necessary
to the operation of this paragraph has not been set aside in any
postconviction proceeding.
....
(4)(a) The court, in conformity with the procedure established
in paragraph (3)(a), may sentence the habitual felony offender as
follows:
1. In the case of a life felony or a felony of the first degree, for
life.
2. In the case of a felony of the second degree, for a term of
years not exceeding 30 [years’ imprisonment].
3. In the case of a felony of the third degree, for a term of years
not exceeding 10 [years’ imprisonment].
Id. The HVFO provision is a subdivision of the same statute and is substantially
the same as the HFO provision, except that the HVFO provision applies to
defendants who were previously convicted of certain enumerated violent felonies.
Both the HFO and HVFO provisions are enhancements to which Hale applies. See
State v. Hill, 660 So. 2d 1384, 1385 (Fla. 1995). Together, the HFO and HVFO
provisions are called the habitual offender statute. See, e.g., State v. Collins, 985
So. 2d 985, 991 (Fla. 2008). Although the habitual offender statute does not
contain an express statement of legislative intent, we have stated that the intent of
the statute is to incarcerate repeat felony offenders for longer periods of time by
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enlargement of the maximum sentence that can be imposed. See Hale, 630 So. 2d
at 524; see also Daniels v. State, 595 So. 2d 952, 954 (Fla. 1992).
Development of Hale
This Court held in Hale that sentences imposed pursuant to the HVFO
statute for convictions that arise from a single criminal episode may not run
consecutively. 630 So. 2d at 524. The holding in Hale relied upon the precedent
of this Court with regard to consecutive and concurrent sentences in Palmer v.
State, 438 So. 2d 1 (Fla. 1983), State v. Enmund, 476 So. 2d 165 (Fla. 1985), and
Daniels.
In Palmer, this Court held that a defendant could not be sentenced to
consecutive minimum mandatory sentences under section 775.087(2), Florida
Statutes (1981), if the separate sentences arose from a single criminal episode. 438
So. 2d at 3-4. The defendant in Palmer brandished a revolver while he robbed
mourners at a funeral and was convicted of thirteen counts of robbery. Id. at 2.
Section 775.087(2) mandated a three-year minimum sentence for any person who
possessed a firearm during the commission of certain enumerated felonies, one of
which was robbery. The trial court imposed the three-year minimum mandatory
sentence for each of thirteen robbery counts, with the sentences to run
consecutively, for a total minimum mandatory sentence of thirty-nine years. Id. at
2. However, this Court held that the consecutive sentencing was illegal because
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the language of section 775.087(2) authorized courts to deny defendants parole
eligibility for only three years, but with consecutive sentencing the defendant
would not become eligible for parole for thirty-nine years. Id. at 3. The Court
based this conclusion on the rule of construction that anything “not clearly and
intelligently described” in a penal statute and “manifestly intended by the
Legislature” will not be considered included within the terms of the statute. Id.(quoting State v. Wershow, 343 So. 2d 605, 608 (Fla. 1977)). Thus, consecutive
sentencing was not allowed in Palmer because it was not permitted by the language
of the statute or clearly intended by the Legislature. 3
Two years after Palmer, this Court addressed whether Palmer prevented a
trial court from imposing the minimum mandatory sentences for each of two
murder convictions consecutively. Enmund, 476 So. 2d at 168. This Court
explained that because the statute that prescribed the sentence for first-degree
murder included a mandatory minimum without any enhancement, the Legislature
intended for trial courts to have the discretion to impose such sentences either
concurrently or consecutively. Id. Thus, Palmer does not apply where the
Legislature intended to permit consecutive sentencing.
3. The statute has since been amended to make parole unavailable to
defendants who have been convicted pursuant to section 775.087, and to mandate
that sentences imposed pursuant to the statute be imposed consecutively to any
other term of imprisonment. See § 775.087(2)(d), Fla. Stat. (2013).
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Subsequently, this Court followed the rationale of Palmer in Daniels to hold
that mandatory minimum sentences imposed pursuant to the HVFO provision may
not be imposed consecutively for crimes that arise from a single criminal episode.
Daniels, 595 So. 2d at 954. In so doing, the Court likened the HVFO statute to the
enhancement for possession of a firearm in Palmer because the sentence for the
defendant’s underlying offense contained no minimum mandatory before the
HVFO enhancement. Id. at 953. As in Palmer, the Court looked to the language
of the statute to determine whether consecutive sentencing was permissible. The
Court concluded that the legislative intent to increase the period of incarceration
for repeat felony offenders was accomplished by the enlargement of the maximum
sentence that may be imposed, and the Legislature had not authorized courts to
impose consecutive minimum mandatory HVFO sentences where the crimes arise
from a single criminal episode. Id.The Court next relied on Daniels in Hale. The defendant in Hale was
charged with the possession and sale of the same cocaine and was sentenced for
each charge as an HVFO. 630 So. 2d at 522. The trial court imposed two
consecutive twenty-five-year sentences pursuant to the HVFO provision with a
ten-year minimum mandatory for each sentence. Id. at 523. As in Daniels, this
Court determined that the legislative intent to provide for longer periods of
incarceration for repeat offenders was satisfied when the trial court used the HVFO
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statute to increase the maximum sentence for each offense. Id. at 524. The Court
held:
[T]he trial court is not authorized . . . to both enhance Hale’s sentence
as a habitual offender and make each of the enhanced habitual
offender sentences for the possession and the sale of the same
identical piece of cocaine consecutive, without specific legislative
authorization in the habitual offender statute.
Id. at 525. Therefore, Hale stands for the proposition that once multiple sentences
from a single criminal episode are enhanced through the habitual offender statute,
the total penalty cannot be further increased by consecutive sentencing absent
specific legislative authorization. Id. This holding was reaffirmed by the Court in
Hill, 660 So. 2d at 1386 (holding that unless the Legislature modifies the habitual
offender statute, trial courts may not sentence a defendant as a habitual offender
and order that the sentences be served consecutively).
The underlying rationale of Hale has been applied to certain other enhanced
sentences. See Jackson v. State, 659 So. 2d 1060, 1062-63 (Fla. 1995) (“As we
noted in Daniels, possession of a gun, section 775.087, is an enhancement statute
applying to the punishment prescribed by statute for the underlying offense. Under
Daniels’ rationale, Jackson’s minimum mandatory sentence for possession of a
firearm must run concurrent with the habitual offender minimum mandatory
sentences, since both of these minimum mandatory sentences are enhancements.”
(citation omitted)). However, a PRR sentence is not an enhanced sentence within
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the meaning of Hale. See Reeves v. State, 920 So. 2d 724, 726 (Fla. 5th DCA
2006), app’d 957 So. 2d 625 (Fla. 2007) (“The rule established in Hale and Daniels
applies to sentences that have been enhanced beyond the statutory maximum. A
PRR sentence is not enhanced beyond the statutory maximum. Consequently, we
conclude that the rule established in Hale and Daniels has no application here.”).
The PRR statute does not increase the maximum period of incarceration to which a
person may be sentenced. Rather, under the PRR statute, only the maximum
allowable sentence may be imposed. We are unwilling to extend Hale to apply to
unenhanced sentences.
Furthermore, this Court has never applied Hale to the PRR statute. The PRR
statute specifically states that the legislative intent is to punish those eligible for
PRR sentencing to the fullest extent of the law. See § 775.082(9)(d)1., Fla. Stat.
(2002). This express statement of intent demonstrates that the discretion of trial
courts to impose consecutive sentences is not in any way limited by the PRR
statute. The statutes at issue in Palmer, Daniels, and Hale did not include a similar
statement of legislative intent. Indeed, the legislative intent expressed with regard
to the habitual offender statute in Hale is different than that expressed in the PRR
statute. While the intent behind the habitual offender statute is to increase the
maximum allowable sentence, the intent behind the PRR provision is to provide for
maximum sentencing within the sentencing statute. Therefore, although the
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legislative intent in the habitual offender statute is satisfied upon the imposition of
an extended sentence beyond the otherwise applicable statutory maximum, the
PRR statute expressly authorizes trial courts to impose the maximum sentence,
which contemplates the use of consecutive sentencing. Based on this unambiguous
expression of legislative intent in the PRR statute, we conclude that Hale does not
prohibit a trial court from imposing a PRR sentence consecutive to a habitual
offender sentence.
CONCLUSION
Based on the foregoing, we hold that Hale does not prohibit a habitual
offender sentence from being imposed consecutively to a PRR sentence.
Accordingly, we approve the decision of the Third District in Cotto and disapprove
Williams.
It is so ordered.
POLSTON, C.J., and PARIENTE, QUINCE, CANADY, LABARGA, and
PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions
Third District – Case No. 3D10-3418
(Miami-Dade County)
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Carlos J. Martinez, Public Defender, and Daniel Tibbett, Assistant Public
Defender, Miami, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Richard L. Polin, Bureau
Chief, Criminal Appeals, and Linda S. Katz, Assistant Attorney General, Miami,
Florida,
for Respondent
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