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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