Summary
receding from State v. Moran, 561 So.2d 685 (Fla. 4th DCA 1990)
Summary of this case from Allen v. StateOpinion
No. 92-0306.
November 24, 1993.
Appeal from the Circuit Court, Broward County, Richard D. Eade, J.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Don M. Rogers, Asst. Atty. Gen., West Palm Beach, for appellant.
Ian S. Seitel of Ian S. Seitel, P.A., Fort Lauderdale, for appellee.
EN BANC
Appellee was sentenced for delivery of, and possession with intent to sell, cocaine within one thousand feet of a school, in violation of section 893.13(1)(e)1, Florida Statutes (1989). That statute imposes a three year minimum sentence. The trial court sentenced Appellee to three and one-half years in prison, but did not designate that the statutorily required minimum three-year sentence was applied. The state appeals, arguing that the box on the printed sentence form used by the court must be checked, indicating that a statutory minimum sentence is imposed in conjunction with a sentence exceeding the statutory minimum. We agree and reverse. See State v. McKenzie, 574 So.2d 1176 (Fla. 5th DCA 1991) (en banc), receding from State v. Hall, 538 So.2d 468 (Fla. 5th DCA), rev. denied, 547 So.2d 1211 (Fla. 1989).
The trial court relied on State v. Moran, 561 So.2d 685 (Fla. 4th DCA 1990) in concluding that it was not required to address the mandatory minimum term in its sentence. We recede from any inference which may be drawn from a reading of Moran to the extent that it conflicts with this opinion. In Moran, this court cited Hall. However, the Fifth District, as indicated above, receded from Hall in McKenzie.
We resolve the issue en banc in order to clarify the obligation of the sentencing judge to check off applicable provisions on the sentencing form in order to avoid confusion. We recognize that nothing of ultimate significance may occur, regardless of whether the court checks or fails to check the statutory minimum box provided on the sentencing form. The sentence imposed exceeds the mandatory minimum. Any impact of the minimum sentence provisions of the statute on the length of sentence actually served is provided by law and does not result from an exercise of court discretion. The judgment and sentence advise the Department of Corrections as to which statute was violated and the length of sentence imposed. The department takes it from there. No statute mandates that the trial court redundantly specify that the violated statute provides for a minimum sentence, nor do we disagree with those statements in Judge Cowart's dissent in McKenzie which recognize that this is the case. Therefore, in receding, we do not declare that this court erred in Moran. Nevertheless, in accord with Judge Griffin's concurring opinion in McKenzie, we conclude that it is patently confusing to provide specific applicable language in the sentence form, with a box to check, when imposing a sentence pursuant to this statute, and to leave the box blank. Although we cannot be certain as to how such an omission will modify the actual time served on Appellee's sentence, the state's concern that the omission may result in the Department of Corrections' ignoring the minimum sentence provision and its impact is valid and should be addressed.
We have also considered Scates v. State, 603 So.2d 504 (Fla. 1992), recognizing that section 893.13(1)(e)1 does not use the term "mandatory" and authorizing application of the rehabilitation provisions of section 397.12, Florida Statutes, to a sentence under this statute. We deem Scates inapposite in resolving the issue before us. However, we note that Scates presents additional reason for the trial court to be specific with respect to the mandatory minimum.
We do, however, note that the McKenzie sentence was for violating the trafficking statute and not the statute violated here.
We note that rule 3.986, Florida Rules of Criminal Procedure, providing a uniform sentence form, implicitly recognizes that sentencing courts should indicate that the sentence includes the imposition of a statutory minimum by checking off a space provided, although the rule does permit variations from the provided form. That form now includes a section for indicating that the three-year minimum penalty of section 893.13(1)(e)1 was imposed. Fla.R.Crim.P. 3.986(d). Here, the sentence form used by the trial court includes a box provided for the purpose of indicating whether the minimum sentence provisions of section 893.13(1)(e)1 were applied or are applicable.
Therefore, the sentence is reversed with instructions to modify the sentence on remand in accordance with this opinion.
DELL, C.J., and ANSTEAD, HERSEY, GLICKSTEIN, GUNTHER, STONE, WARNER, POLEN and KLEIN, JJ., concur.
FARMER, J., dissents with opinion.
PARIENTE, J., dissents with opinion, with which FARMER, J., concurs.
Today this court elevates microanalysis of sentencing judgments to truly rarefied levels by insisting, as our decision today undoubtedly does, that it is not enough for the sentencing judge to do everything the statutes require and to refrain from doing what they prohibit. We now effectually hold, in addition, that the trial judge must indicate on the sentencing form just how much of the sentence the defendant must actually serve.
The court announces that it is prompted in its decision by the opinion of the Fifth District en banc in State v. McKenzie, 574 So.2d 1176 (Fla. 5th DCA 1991). I, however, agree with the views and conclusions reached by Judges Sharp and Cowart in their dissenting opinions in McKenzie. They demonstrate that statutes requiring mandatory minimum sentences go no farther than to impose an obligation on a sentencing judge: (a) to incarcerate rather than impose some lesser penalty, and (b) impose a period of incarceration not less than some prescribed minimum duration. Once these things have been accomplished in the sentence imposed, the command of the mandatory sentencing provision has been fully satisfied.
To be sure, I do not necessarily agree that all mandatory minimum sentencing statutes absolutely require imprisonment as opposed to probation or community control. See State v. Robertson, 614 So.2d 1155 (Fla. 4th DCA 1993) (Farmer, J., concurring).
The court's apparent concern is whether the defendant actually serves the entire mandatory minimum period. The only purpose served by requiring sentencing judges to check a mandatory minimum box — or, I suppose, otherwise indicate in a sentence prepared without the use of the optional form — is to affect how the prison authorities execute the sentence. In other words, the purpose is to influence the executive branch, prison authorities on how they carry out their separate duties in making parole decisions or, as Judges Sharp and Cowart show, in allocating gain time or provisional credits to the person sentenced.
My colleagues worry that, if the sentencing order does not say in so many words that the imposition of a 4 1/2 year sentence includes a 3 year mandatory minimum period, the prison authorities might not know that fact. But the sentencing order identifies the statute under which the sentence was imposed, here section 893.13(1)(e). The statute under which the sentence was imposed will tell them whether a mandatory minimum period is involved and whether it is less than a larger guidelines period. In the circumstances, there is no logical reason not to suppose that the greater period imposed subsumes the lesser required period.
If they err in calculating how much of the sentence must actually be served, there are other remedies not quite so anticipatory and less intrusive into the responsibilities of a coordinate branch of government. Indeed the executive branch has a specific form of remedy under chapter 120, as to which the judiciary's role is at the end of the administrative proceedings, and not long before they are ever begun. See § 947.16(1)(g), Fla. Stat. (1991).
For my taste, there is something unseemly about judges worrying over whether executive branch officials might release a prisoner before the expiration of some statutory punishment time. Trial judges are empowered merely to impose the sentence, and appellate judges are empowered merely to review that imposition to insure that the trial judge has correctly applied the law. Carrying out the sentence then becomes the sole responsibility of the executive branch of government. In reviewing a trial judge's imposition of sentence, we have no writ to intrude into the performance of its duties by a separate branch of government. We have no license to ensure that those who run our prisons wring every last moment of time out of every sentence.
I not only fail to see the need for today's decision but find it unusually indifferent to the role of the judiciary in the scheme of things. I dissent.
The trial court's 3 1/2 year sentence imposed in this case exceeded the 3 year minimum sentence of section 893.13(1)(e). Unlike in McKenzie, the trial court in this case was not under the misapprehension that it was precluded from checking the box on the sentencing form. The trial court elected not to check off the box specifying that the 3 year minimum imprisonment provisions of section 893.13(1)(e)(1) were ordered. The majority here does not suggest that the trial court's sentence is either invalid or void for failure to check off a box. Florida Rule of Criminal Procedure 3.986 specifically provides that no sentence shall be void for failure to follow an authorized form of judgment and sentence.
Further, although the majority refers to the mandatory minimum requirements of section 893.13(1)(e), the Supreme Court in Scates v. State, 603 So.2d 504 (Fla. 1992) compared the language of sections 893.13(1)(e) with sections 893.135 and 893.20. It noted that the word "mandatory" is not used in section 893.13(1)(e). The Supreme Court found the omission of the word "mandatory" implied the legislature intended greater discretion in sentencing decisions under section 893.13(1)(e), than under sections 893.135 and 893.20, which expressly referred to the sentences contained therein as "mandatory."
Since the sentence imposed by the trial court is legal and in compliance with both the statute and the sentencing guidelines, I believe it is beyond our purview to mandate that a box be checked off by the trial court. I agree with the reasoning contained in Judge Sharp's dissent in McKenzie.
I respectfully dissent.