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Marissa Alexander May See Sentence Triple to 60 Years

Marissa Alexander May See Sentence Triple to 60 Years

Since Alexander was last sentenced, Florida law seems to lean toward mandatory consecutive sentencing under “10-20-Life”

An interesting quirk of Florida sentencing procedures has reared its head in the Marissa Alexander case, and will almost certainly impact the sentencing of Michael Dunn on March 24, as well.  The issue:  can the multiple convictions under Florida’s infamous “10-20-Life” statute be sentenced concurrently–served in parallel with each other–or sentenced consecutively–so that they are cumulative.

In the case of Dunn, the difference would be between a sentence of as “little” as 20 years to one of 75 years (that’s not counting the sentence for his future conviction for the murder of Jordan Davis, which I fully expect will be coming down the pike).

In the case of Marissa Alexander, the difference would be between the 20 year sentence which was tossed out when she was granted a re-trial to a sentence of 60 years–effectively a life sentence.  By appealing here original conviction, then, Alexander has potentially placed herself at risk of tripling her already lengthy sentence.

To understand Florida law in this respect we must first look to the last time the Florida Supreme Court addressed the issue, back in 2005.  In that case, State v. Sousa, 903 So.2d 923 (FL Supreme Court 2005), the Court was hearing an appeal by Sousa from a decision of the Court of Appeals from the 2d Circuit.  Sousa had been at a greyhound track when he shot two victims in rapid succession in a single episode, then threatened a third victim with the gun a bit later.  He was convicted and sentenced to three consecutive sentences:  two consecutive sentences of 25 years mandatory minimum for the two 2nd degree murder convictions, and a three year mandatory minimum for the later aggravated assault charge, also to run consecutively.

On appeal the Second District Court of Appeal reversed the sentence, holding that Florida’s “10-20-Life” statute, 775.087, did not “provide the legislative authorization necessary to require consecutive sentencing” for the mandatory minimum terms of his sentencing.

Sousa’s offenses had occurred after the Florida legislature had amended 775.087 in 1999 to add the following language:

It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term or imprisonment imposed for any other felony offense.

The difficulty in this area of the law was that the 2d Circuit Court of Appeals had interpreted the language “any other felony,” to mean some felony that was not part of the same criminal act for which the “10-20-Life” mandatory minimum was being imposed.  To illustrate, if Joe Criminal had robbed a store, then while fleeing the scene had fired a shot at three policemen seeking to arrest him–resulting in three aggravated assault charges–the sentence for the robbery and the collective sentences for the assaults could be consecutive, but the assault sentences themselves must be concurrent–because the robbery and the assaults were distinct criminal acts, but the assaults all arose from a single criminal act. Thus, they set aside Sousa’s consecutive sentences and ruled that they be run concurrently, with the result that the State appealed to the Florida Supreme Court.

The Florida Supreme Court ruled that:

We disagree that section 775.087 as amended still does not permit consecutive sentences. [ . . . ] We do not agree [that the statute] means that the “any other” language only refers to crimes which took place at different times.  We find nothing in the statutory language which supports the construction of the statute. The statute’s plain language does not state that, nor do we find the language of the statute to be ambiguous.

As a result they found the trial court’s consecutive sentencing lawful, and reimposed it upon Sousa.

The question that answered, however, was merely whether the consecutive sentencing was permitted, not whether Florida’s “10-20-Life” law made consecutive sentencing mandatory.  And that is the issue facing both Alexander and Dunn.

Last year several of Florida’s Courts of Appeal took up the issue, with not entirely consistent results.

In Walton v. State, 106 So.3d 522 (FL Ct. App. 2013), decided February 12, 2013, the 1st District Court of Appeal ruled that mandatory minimums may permissibly be imposed concurrently even if arising from instances in which the gun was not fired.  In that case, the defendant, Walton, had been in the process of robbing two women at gunpoint when he was confronted by police.  A shoot-out resulted, with the defendant firing shots at the officers.  He was later convicted of two counts of attempted murder of a police officer with a firearm and two counts of armed robbery with a firearm.  The court sentenced him under “10-20-Life” to 20 years mandatory on the attempted murder charges ( in which the gun was fired) and 10 years mandatory minimum in the armed robber convictions (in which the gun was not fired, but was possessed), with all the sentences to run consecutively–totaling 60 years.

The defendant appealed, arguing that “stacking” of mandatory minimums under “10-20-Life” was impermissible where the crimes all occurred during a single episode.  Recall that in Sousa the stacking had been permitted, but there at least one of the offenses had been a second, separate event.

The appellate court here had no difficulty with the stacking of the charges involving the firing at the officers, but was uncertain whether it should be permitted to stack charges where the gun was threatened but not fired (the armed robbery part of the convictions).  Ultimately, they determined that “stacking” these armed robbery sentences was also permissible, and thus affirmed the sentencing court.

In Williams v. State, 125 So. 3d 879 (FL Ct. App. 2013), decided April 24, 2013, the 4th District Court of Appeal ruled that the trial court was required to impose consecutive sentences under “10-20-Life” when the sentences arise from one criminal episode.

In that case the defendant had pulled out a gun when arguing with four men outside their home, then fired multiple rounds into the air, causing the men to flee.  He was convicted of four counts of aggravated assault, and sentenced to four mandatory minimum 20-year sentences to run consecutively.  There the trial court stated that:

I believe that . . . it’s not a permissible stacking situation, it’s a mandatory stacking situation.

The defendant appealed, objecting to the consecutive sentencing.  In particular, he argued that the “other felony” language of “10-20-Life” meant that consecutive “stacking” of sentences could only be done with a second offense arising from a different criminal act, unlike the situation in his case.

The Court of Appeal decided that the stacking of the sentences in this case was certainly permissible, without deciding whether the stacking was mandatory.  They did, however, certify the following question to be of great public importance (thus putting it on the fast track for decision by the State Supreme Court:

Does section 775.087(2)d)’s statement that “The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense” require consecutive sentences when the sentences arise from one criminal episode?

Until the Florida Supreme Court decides that issue it remains uncertain whether either (or both) Marissa Alexander and Michael Dunn must, as a matter of law, be sentenced consecutively on their mandatory minimum crimes falling under “10-20-Life,” or whether the sentencing judge has the discretion to sentence them concurrently.

The argument for a concurrent sentence certainly seems stronger in the case of Alexander, who fired a single shot at three people–thus arriving at three counts of aggravated assault–contrasted with the case of Dunn, who fired 10 rounds at four people–thus arriving at three counts of attempted murder (and a hung jury on the murder of Jordan Davis, now to be decided at a later date). Certainly the firing of multiple shots is more akin to multiple discrete offenses that would seem to justify consecutively sentencing than does the firing of a single shot that reasonably placed three people in fear of death or grave bodily harm by way of shooting.

Either way, appeals seem certain.  If either Alexander or Dunn are sentenced consecutively, they will surely appeal, and if they are sentenced concurrently we can be certain the State shall appeal.

It’s never boring in Florida.

–-Andrew, @LawSelfDefense


Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.

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Comments

Henry Hawkins | March 4, 2014 at 7:49 pm

Concurrency is a euphemism. It means one penalty is essentially cancelled. Consecutive is meaningful. However, if any state were to eliminate concurrent sentencing, they’d need to make some amendments. I’d hate to see someone convicted on 375 separate check fraud counts and get one year for each, to be served consecutively, lol.

NC prison slang is to get ‘boxcar-ed’, that is, sentenced consecutively, like boxcars in a train.

    Gremlin1974 in reply to Henry Hawkins. | March 4, 2014 at 10:29 pm

    Yea, I kind of see concurrency as getting “two crimes for the price of one” myself.

    I agree with Andrew though in the Alexander case I can understand concurrent sentencing more so than I could in the Dunn case. Basically, one shot vs 3 distinct sets of shots.

    Why not ? Someone rips off 300 people 300 discrete times with bad checks – why should that sentence the same as once or 10 times ?

      Henry Hawkins in reply to pjm. | March 5, 2014 at 3:44 pm

      That’s my point. On the check fraud example, a cogent argument could be made for either choice, whether consecutive because there were so many victims, or concurrent because a life sentence seems too much for check fraud, based on – pulling this out of my ass, now – I dunno, maybe no single victim lost more than $100. If concurrent were eliminated, they might need some mechanism for separating grey zone cases.

I’ll be honest, and this is where I am often at arms with other conservatives, I am not a fan of charge stacking/piling.
to me it seems to be a cop out to allow sentencing for a lesser crime if the major crime cannot be proven.
I’ve personally had it used against me by a DA who wanted convictions more than truth, I was lucky and charges were dropped though.
I resisted this when an MP (Army MP did actual LEO stuff) and charging people and argued my case to do it, sometimes was over ridden by command decisions though.
was just never a fan, if we could not build a case then we could not build a case. although we usually were able to I never considered the ends to justify the means.
but times change I guess, hell I don’t know anymore.

Interesting. She should be convicted of attempted murder, definitely. You don’t fire “warning shots” at someone’s head.

She was, as I’ve maintained before, just a bad shot in her emotional state.

As for stacking vs concurrent, I’d be content in her case of concurrent.

But she doesn’t get a pass. Her actions during the incident show some premeditation, in my opinion.

Dunn, on the other hand, might have beat it if he’d stopped at three shots. It was his wildly shooting as he was driving off that got him convicted, from what I gather.

    Gremlin1974 in reply to profshadow. | March 4, 2014 at 10:26 pm

    “You don’t fire “warning shots” at someone’s head.”

    I would like to offer my opinion, which is, “You don’t fire warning shots, EVER!” as a person who carries for Self Defense. If you draw your gun it should be because you have a reasonable fear of death/great bodily harm, not because you are trying to scare someone off or get them to “give up”.

    Think about it for a moment, what do you do if they do “give up”? You aren’t a cop and have no right to detain someone, even someone who has “harmed” or threatened you. (One exception to this for me would be inside your home with like a burglar, if he survived my first double tap, I would hold him for police.) But can you imagine firing a warning shot and then holding someone at gunpoint until help arrived in a public place, they might charge you with impersonating a police officer.

      No, I could imagine firing a warning shot that convinces them ‘Hey, this asshole actually has a real live gun ! With bullets ! And he’s not afraid to use it ! Maybe I hear my mother calling …’.

      Which is, IMO, a very valid desirable result on the part of the one being threatened – self defense is NOT, never has been, about making an arrest !

      If they ‘give up’ and leave, my self defence goal has been achieved !

        Gremlin1974 in reply to pjm. | March 5, 2014 at 7:58 pm

        You realize that in many places your “warning shot” is considered “unlawful discharge of a weapon” and possibly “Brandishing a weapon”?

        I believe and have always been taught that you don’t pull it unless you intend to use it. In fact the police officers that taught my CWP course and every other one I have attended made it a point to tell us that. Just to be sure I got out the handouts from my first course and those things are listed in bullet points.

        1: Never draw your weapon and brandish it.
        2: Never fire a warning shot. It is dangerous and you don’t know where that bullet is going to go.
        3: Always keep your weapon concealed while in public unless your are drawing it for use in defense of yourself or others.

        I see firing “Warning Shots” as irresponsible. As much as I hope I never have to fire my weapon at another human being, I would not be able to live with the fact that I had injured someone because I fired a “warning shot” and the round bounced and hit someone else.

      tom swift in reply to Gremlin1974. | March 5, 2014 at 4:21 am

      or get them to “give up”.

      Your immediate goal in defense is to stop the attack. If your assailant “gives up”, it’s “mission accomplished”, and that should be good.

      Think about it for a moment, what do you do if they do “give up”?

      You don’t much care, as long as they don’t try to attack you again. They can leave, and the job then becomes one of apprehension – one for the police. Unless the would-be assailant returns to the attack, and the situation becomes self defense again.

      You aren’t a cop and have no right to detain someone, even someone who has “harmed” or threatened you.

      Again, the victim’s goal isn’t detention, it’s defense. Period. He has a right to defend himself, no matter what happens immediately afterward.

      they might charge you with impersonating a police officer.

      How so? Defense and impersonation seem to be radically different concepts.

      The little badges which look like generic police badges but say “concealed permit holder” are a bad idea, but I think everybody already knows that.

        Gremlin1974 in reply to tom swift. | March 5, 2014 at 7:59 pm

        Yea, I understand all of that, I was trying to figure out PJM’s statements and conjecturing as to his possible thinking.

        Gremlin1974 in reply to tom swift. | March 5, 2014 at 8:13 pm

        Exactly, you immediate goal is to end the imminent threat of death or great bodily harm. So why would you fire a “warning shot” and/or yell/say anything? As far as I am concerned if you pull a gun and fire a “warning shot” then you were not in fear of imminent death or great bodily harm, because if you were you would have shot your attacker, not fired off a bullet in a random direction where it could impact who knows what and/or screamed “Stop or I’ll shoot!”. That was my point, I might have gone a bit overboard with it, but oh well.

    tom swift in reply to profshadow. | March 5, 2014 at 12:46 pm

    She was . . . just a bad shot in her emotional state.

    She may be a lousy shot in any state.

    That’s probably testable. If she could demonstrate that she could hit a cockroach with the same gun at the same distance, then maybe the “warning shot” theory should be accorded more weight.

    I don’t believe it myself, but belief isn’t data or evidence.

You don’t fire “warning shots” at someone’s head.

Well, you can. For instance, two home intruders are in my kitchen. The bullets to the head of the first are the warning shots to the second. It’s his call after that.

defendant had pulled out a gun when arguing with four men outside their home, then fired multiple rounds into the air, causing the men to flee. He was convicted of four counts of aggravated assault, and sentenced to four mandatory minimum 20-year sentences to run consecutively.

So, for not firing bullets at four persons, defendant serves 80 years. Suppose there had been, say, two persons not fired at? Then he’d serve 40 years, for exactly the same shots.

This seems bizarre. The crimes of not firing at two persons and not firing at four persons, while distinguishable, are not different in any important way, since no actual damage was inflicted, nor, realistically, could have been.

Now if the defendant at fired at one person, hitting and killing him, then had fired at a second, hitting and killing him also, then we’d have two homicides, and the imposition of two consecutive sentences seems logical enough.

And if defendant had fired at one person, missed him cleanly and caused no injury, then had fired at a second, and missed him as well, then we’d have two assaults on two persons, and two consecutive sentences still seems logical.

But in these scenarios, we have a shooter and a victim or potential victim.

If the shooter didn’t shoot at anyone, we have no “serious” potential victims, but a large number of “unserious” potential victims. I’m using the finely-honed legalistic words “serious” and “unserious” to distinguish between people being fired at from people not being fired at.

So the sentences and sentencing structure for firing at “serious” and “unserious” potential victims are the same? The concept strikes me as, well, unserious.

The good news is that none of this would apply to the Alexander case, if indeed the “warning shot” theory is as bogus as it seems.

    “If the shooter didn’t shoot at anyone, we have no “serious” potential victims, but a large number of “unserious” potential victims. I’m using the finely-honed legalistic words “serious” and “unserious” to distinguish between people being fired at from people not being fired at.”

    You’re using bullshit.

    When the trigger gets pulled, that is F’ING SERIOUS ! PERIOD !

      tom swift in reply to pjm. | March 5, 2014 at 3:35 am

      Don’t be childish.

        pjm in reply to tom swift. | March 5, 2014 at 8:18 am

        Which part of taking out a gun and firing it in a hostile situation do you find to be ‘unserious’ ? Target selection ? Really ?

          tom swift in reply to pjm. | March 5, 2014 at 12:32 pm

          You can’t see the major difference between shooting at someone and not shooting at someone?

          Really?

          pjm in reply to pjm. | March 5, 2014 at 1:56 pm

          “You can’t see the major difference between shooting at someone and not shooting at someone? ”

          In a police scene report ? No.

          ‘A said ‘I wasn’t shooting at B. B accidently died anyway. Oops !’

          Immolate in reply to pjm. | March 5, 2014 at 3:49 pm

          Using common sense, and without any meaningful legal analysis, there is a world of difference between fire horizontally toward someone and firing vertically toward nobody in particular. That may not keep you out of jail, but you’d have to be intentionally obtuse not to recognize that.

          As to the dangers of airline passengers, random birds and raining bullets, they do exist obviously, but while they may qualify as negligent homicide if you hit something (or fowlicide), you’d have a hard case making be believe it was attempted murder.

MouseTheLuckyDog | March 5, 2014 at 1:16 am

If consecutive sentencing becomes the standard for 10-20-life, then this could cause 10-20-life to be ruled as cruel and unusual

There has already been hints of it in the Ronald Thompson case. This would just add more fuel to the fire.

In a way that’s a shame because I really would like to see Alexander get 60 years. But that’s just personal animus and not really dispassionate jurisprudence.

I have nothing against concurrent sentencing, but I am 100% against any sort of mandatory minimum sentencing. The mandated minimums for drug offenses is why our prisons are overcrowded and we are being required to release murderers, rapists, and armed robbers early because so much space is reserved for mandatory minimum inmates.

These sentencing laws were the result of a long drift towards lax sentences, it is true. But the problem wasn’t the law, it was and is the judges. Appointing better judges and removing bad judges is harder than changing the law, but it is the proper way to address the problem.

If people would stop foolishly voting for Democrats, a big part of the judge problem would solve itself over time.

TrooperJohnSmith | March 5, 2014 at 2:50 am

By this logic, shouldn’t Bernie Madoff be charged for EVERY count of fraud against every person he ripped off? He’d be serving, what, like 20,000 twenty year sentences on the low end.

Oh, wait. If you stick up someone, even with a note or the old finger in the jacket pocket, it’s still “armed robbery”. But of you use a financial instrument to steal billions, you end up in Club-Fed doing 20-30, max.

Didn’t Woody Guthrie warn us about this?

And just think, if she’d taken Ms Corey’s patently reasonable-sounding 3-year plea deal in the first place, this would be a non-story.

But no, someone wanted to make a cause célèbre out of this case, and so here we are.

DavidJackSmith | March 5, 2014 at 6:49 am

Is it really constitutional for the state to threaten the INCREASING of a sentence to deter citizens from exercising their constitutional right to appeal a sentence.

    Gremlin1974 in reply to DavidJackSmith. | March 5, 2014 at 8:05 pm

    She gets a “New Trial” which means completely new, including sentencing. I don’t think it is a stretch to understand that you have a chance of getting a longer sentence since you understand you have the chance of being acquitted or getting a shorter sentence.

    tom swift in reply to DavidJackSmith. | March 5, 2014 at 8:26 pm

    to deter citizens from exercising their constitutional right to appeal a sentence

    Where in the Constitution is this?

    Article III Section 2 requires jury trials, but that’s about it so far as I can see.

By the mid-90’s, FL citizens had had it with violent crime, so much so that the legislature flipped from Dem to Rep in 1995 for the first time since the Civil War. Out of this came the 85% law and later 10-20-Life. I think this is definitely one of the reasons that there has been a dramatic drop in violent crime in FL because a lot of the bad guys rot in prison. But now I think the legislature needed to re-visit 10-20-life and give judges more discretion. Not every case is a nail that needs a hammer.

I am sure her appeal will include incompetance of her attorney. But why did not the prosecutor in the Souza case not try for the death penalty? Three murders in one day. Sounds like an example of under charging.

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