Antony Deshawn Melvin v. State of Florida

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
ANTONY DESHAWN MELVIN, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-0387
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed October 8, 2015.
An appeal from the Circuit Court for Santa Rosa County.
John F. Simon, Jr., Judge.
Nancy A. Daniels, Public Defender, and Zachary Lawton, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney
General, Tallahassee, for Appellee.
MARSTILLER, J.
Under a plea agreement with the State, Appellant Antony Melvin pled nolo
contendere to three counts of lewd and lascivious molestation of a child under 12
years of age by an adult. The crime is “a life felony, punishable as provided in s.
775.082(3)(a)4.” § 800.04(5)(b), Fla. Stat. (2012). Section 775.082(3)(a)4. provides
that a person who commits this crime on or after September 1, 2005, may be
punished either with a life sentence or with “[a] split sentence that is a term of not
less than 25 years’ imprisonment and not exceeding life imprisonment, followed by
probation or community control for the remainder of the person’s natural life[.]” §
775.082(3)(a)4.a., Fla. Stat. (2012). The negotiated plea agreement called for 25-
year sentences with subsequent sex offender probation. In keeping with the statute
and the terms of the plea agreement, the trial court sentenced Melvin to concurrent
25-year sentences, “Minimum 25.00 year(s) Maximum 25.00 year(s),” followed by
lifetime sex offender probation. Although apparently not reduced to writing, the
court announced at the plea and sentencing hearing that the prison terms are to be
served “day-for-day,” meaning gain-time cannot be applied to shorten the time
Melvin spends incarcerated.
On appeal, Melvin argues the trial court erred in concluding that it could not
impose a sentence of less than 25 years because section 775.082(3)(a)4. does not
create a 25-year mandatory minimum sentence. He further argues the statute does
not preclude application of gain-time.
Melvin’s first argument is unpreserved for he failed to raise the same issue
below. See Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985) (“In order to be preserved
for further review by a higher court, an issue must be presented to the lower court
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and the specific legal argument or ground to be argued on appeal or review must be
part of that presentation if it is to be considered preserved.”). Indeed, Melvin’s
negotiated plea agreement called for 25-year sentences, and at the hearing, he agreed
that if this court were to reverse on his second issue concerning gain time—the only
issue he said he would appeal—he would remain subject to the concurrent 25-year
sentences. The possibility of a downward departure sentence was not discussed at
sentencing. In any event, the Florida Supreme Court has held the phrase “of not less
than 25 years” in section 775.082(3)(a)4. “establishes that the twenty-five year
sentence . . . is a mandatory minimum sentence,” and “the trial court does not have
the discretion to impose a sentence below the twenty-five year minimum[.]”
Rochester v. State, 140 So. 3d 973, 975 (Fla. 2014) (“Rochester II”).
The question not reached in Rochester II, and Melvin’s second argument on
appeal, is whether the mandatory minimum provision precludes application of gain-
time. See § 944.275, Fla. Stat. The trial court, in ruling that Melvin must serve the
concurrent 25-year mandatory minimum sentences day-for-day, relied on the Fourth
District’s decision in Rochester v. State, 95 So. 3d 407 (Fla. 4th DCA 2012)
(“Rochester I”). But the district court did not address the gain-time question in that
case. The supreme court noted this in Rochester II and declined to consider the
State’s argument that gain-time may apply to the mandatory minimum. Rochester
II, 140 So. 2d at 974 n.3. Rochester I held only that section 775.082(3)(a)4. imposes
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a mandatory minimum 25-year sentence on adults convicted of lewd or lascivious
molestation of a child under 12. The trial court here evidently interpreted
“mandatory minimum” to mean gain-time cannot be applied. Rochester II, however,
establishes that gain-time applicability is a separate and distinct issue from the
mandatory-minimum issue.
Melvin contends that, absent specific statutory language to that effect, gain-
time may be applied so as to allow him ultimately to spend less than 25 years in
prison. The State agrees. As do we. In Mastay v. McDonough, 928 So. 2d 512, 514
(Fla. 1st DCA 2006), we said that “when the legislature intends to prohibit
individuals from being eligible for gain-time during the service of a mandatory-
minimum term of imprisonment, it uses explicit language to that effect.” For
example, section 316.1935, which imposes a three-year mandatory minimum prison
term for high-speed or aggravated fleeing and eluding of a law enforcement officer,
states: “A person convicted and sentenced to a mandatory minimum term of
incarceration under paragraph (3)(b) or paragraph (4)(b) is not eligible for statutory
gain-time under s. 944.275 or any form of discretionary early release, other than
pardon or executive clemency or conditional medical release under s. 947.149, prior
to serving the mandatory minimum sentence.” § 316.1935(6), Fla. Stat. (2012).
Similarly, section 775.087(2)(a), Florida Statutes, Florida’s 10-20-Life law, imposes
specified mandatory minimum sentences for certain felonies committed while
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carrying, using or discharging a firearm. It specifically states that a person sentenced
to a mandatory minimum sentence under the statute “is not eligible for statutory
gain-time under s. 944.275 or any form of discretionary early release, other than
pardon or executive clemency, or conditional medical release under s. 947.149, prior
to serving the minimum sentence.” § 775.087(2)(a)3.(b), Fla. Stat. (2012). The
same language appears in section 784.07, which establishes an eight-year mandatory
minimum sentence for battery on a law enforcement officer or other specified public
safety personnel while possessing a semi-automatic firearm: “[T]he defendant is not
eligible for statutory gain-time under s. 944.275 or any form of discretionary early
release, other than pardon or executive clemency, or conditional medical release
under s. 947.149, prior to serving the minimum sentence.” § 784.07(3), Fla. Stat.
(2012). The statute Melvin was sentenced under, section 775.082(3)(a)4., contains
no such or similar limiting language. We therefore conclude application of gain-
time to Melvin’s mandatory minimum sentence has not been prohibited by the
Legislature. See Mastay.
Accordingly, we STRIKE from the record the “day-for-day” provision orally
imposed by the trial court, and AFFIRM Melvin’s sentences as modified.
LEWIS and OSTERHAUS, JJ., CONCUR.
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