Sometimes “seeing the sausage get made” is just no fun at all.
This past week the Florida Supreme Court heard oral arguments in a case that hinges on whether sentences under 10-20-Life must be served consecutively, or whether sentencing judges have the discretion to order these served concurrently.
With a backdrop of often ambiguous precedent decisions by both lower appellate courts and the state Supreme Court itself, as well as a sense that in some cases these mandatory sentences are resulting in disproportionate punishment, at the end of the day the entire argument appears to hinge on a single word: “other.”
In 2010 Ronald Williams, then 26, became angry when four gay men outside a house across the street began making sexual remarks towards him. Williams’ response was to point a .357 Magnum pistol at them, then fire five shots into the air. None of the four men were injured by the shots. The police were called, Williams fled but was caught and arrested. He was charged with four counts of aggravated assault with a firearm, as well as resisting arrest with violence. The jury found him guilty on all four charges.
In addition, the jury returned a specific finding that Williams had actually possessed and discharged a firearm on all four aggravated assault counts, thereby triggering the sentencing requirements of Florida’s so-called “10-20-Life” law, §775.087–and in particular sub-section (2)(a)(2) that mandates a 20-year sentence for the discharge of a firearm in the course of committing certain crimes.
At sentencing the state argued for consecutive sentences, and indeed argued that consecutive sentencing was mandatory under “10-20-Life” as a matter of law. The defense naturally argued for concurrent sentences, arguing that although consecutive sentencing was permissible under the law, it was not mandatory.
In support of its position, the defense cited State v. Christian, a 1997 Florida Supreme Court case in which it was ruled that “As a general rule, for offenses arising from a single episode, stacking is permissible where the violations of the mandatory minimum statutes cause injury to multiple victims, or multiple injuries to one victim.” The use of the term “permissible” rather than “mandatory,” argued the defense, indicates that the sentencing judge is to have discretion in the matter.
In 1999, however, two years after Christian, the Florida legislature amended 775.087 by adding section (2)(d), and the state argued that this change imposed a mandate to sentence consecutively. This added section reads:
(d) 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 imposed 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 of imprisonment imposed for any other felony offense. (emphasis added)
The trial judge agreed with the state’s position, and found that under the facts and law of Williams’ trial there existed “not a permissible stacking situation, it’s a mandatory stacking situation. Pre-amendment, it would appear that it would have been merely permissible. But again, in this amendment to the statute . . . it appears to be mandatory.”
Williams appealed his sentencing to the 4th DCA, and in April 2013 the appeals court ruled that the trial court was, indeed, required to impose consecutive sentences as a matter of law under 775.087. In doing so, the court reviewed the admittedly ambiguous precedents on the issue. (Court’s decision embedded below.)
The 4th DCA began its analysis by first looking at Mondesir v. State, a 2002 3rd DCA case in which the defendant appealed his consecutive sentences for several crimes that took place during a single “transaction.” He argued that consecutive sentences under 775.087 were permissible only where “any other” felony had occurred in a second, separate “transaction.” Mondesir agreed, finding that the “any other” language of 775.087(2)(d) referred only to “another separate crime, rather than those involved in a single prosecution.” (emphasis added)
Thus, under Mondesir consecutive mandatory sentences under 775.087 applied only where there existed transactional distinction between the various felonies being considered, and that indeed absent such facts the use of consecutive sentencing was precluded.
The 4th DCA next looked at Sousa v. State (“Sousa I), a 2003 2nd DCA case in which the trial judge apparently believed he was mandated to sentence the guilty defendant to consecutive sentences for several violations of 775.087. The 2nd DCA relied on its understanding of Mondesir to reverse, ruling that the last sentence of 775.087(2)(d) requiring consecutive sentences should be read to mean that “sentences received pursuant to section 775.087(2)(d) can only be consecutive to other felony sentences not subject to section 775.087(2)(d).” (emphasis added)
Thus, under Sousa I, consecutive mandatory sentences under 775.087 were permitted only where there existed “an other” felony outside of the scope of 775.087 itself. Absent such “an other” felony the sentencing judge was prohibited from sentencing consecutively.
Under these rulings, then, a judge sentencing for multiple violations of 775.087 was not permitted to sentence consecutively if all the 775.087 violations fell within a single transaction, nor unless at least one violation occurred outside the scope of 775.087.
The 4th DCA next looked at the Florida Supreme Court hearing of an appeal of State v. Sousa. This Supreme Court case, commonly referred to as “Sousa II” quashed Sousa I and disapproved Mondesir.
With respect to Mondesir the state Supreme Court held that “we do not agree with the reasoning of the third District in Mondesir to the extent it construes the statute to mean that the “any other” language only refers to crimes which took place at different times.” With respect to Sousa I, which relied on Mondesir, the state Supreme Court held that when the 2nd DCA in Sousa I “construed [775.087(2)(d)] to hold that a trial court is precluded from imposing consecutive mandatory minimum sentences unless the other felony offense occurred during a different criminal episode.
Thus, Sousa II dispatched the key issue in Mondesir, that of another felony occurring in a separate transaction. No second transaction was required to permit consecutive sentencing under 775.087.
What of the issue raised in Sousa I, however, regarding that “any other” felony be one outside the scope of 775.087?
Here the 4th District Court’s analysis seems to go sideways, in that they conclude — apparently mistakenly — that Sousa II addressed that “scope” issue by finding that consecutive sentences for violations all falling within the scope of 775.087 were not prohibited, but were permissible. In their Williams v. State decision the 4th DCA writes:
Sousa II thus answered the question of whether consecutive mandatory minimum sentences are permissible under section 775.087(2)9d), even if the “other felony offense[s] fall under section 775.087’s mandatory minimum provisions.
In fact, Sousa II does NOT address this second issue of “scope” at all, but merely the same issue of “multiple transactions” as was covered in Mondesir. As one might expect, this apparent error in analysis leads to considerable confusion downstream.
Having made this arguably erroneous conclusion, however, the 4th DCA found itself left with an open question — having concluded that following Sousa II Florida law permits consecutive sentences for multiple offenses all falling within the scope of 775.087, they now had to answer whether Florida law mandates consecutive sentences under these circumstances.
This they answered in the affirmative, writing that “we conclude that the trial court was required to impose consecutive sentences. Thus, we affirm.”
But they continue:
“However, because this issue likely will recur statewide, and because our supreme court has not addressed whether consecutive sentences are required under 775.087(2)(d), we certify the following question to be of great public importance:
‘Does section 775.087(d)(2)’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.’ “
The reader will recognize, I trust, that this “certified question” actually fails to address the key issue of “scope”, but instead speaks in the language of “transaction” or “episode” language of Mondesir, which the supreme court had already explicitly reversed in Sousa II.
With the 4th DCA’s “certified question” providing appropriate jurisdiction, Williams’ case moved on up to the Florida Supreme Court. As is the norm, the parties submitted briefs prior to oral arguments.
The first of these was naturally the appellant’s initial brief, filed on October 17, 2013 (embedded below). The first substantive argument made was that the language of 775.087(d)(2) was sufficiently ambiguous to justify the supreme court looking to legislative intent in order to discern it’s true meaning. This argument of “ambiguity” is important because the appellant believes the various documents that might be considered in determining legislative intent will support their argument, in particular a legislative analysis of the bill that would go on to become 775.087(2)(d). This supposed legislative intent, however, is itself ambiguous. First, it notes that:
[T]he court is required to impose the minimum mandatory sentences required by the bill consecutive to any other term of imprisonment imposed for any other felony offense.
Seems clearly enough an argument favoring the state. But then the next sentence seems to state the opposite:
This provision does not explicitly prohibit a judge from imposing the minimum mandatory sentences concurrent to each other.
Somewhat surprisingly, it is not until two-thirds of the way through their brief that the appellant actually states the issue in question accurately:
Appellant has argued that the language “any other felony offense” means any felony offense other than a section 775.087(2)(Dd) enumerated offense. The focus here is on the phrase “any other.” Appellant argues that a better reading of the statute is “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” not included in this subsection. This would then allow a court discretion to sentence consecutively on the mandatory minimum offenses and no discretion on other offenses that fall outside section 775.087(2)(d).
The appellant noted that in Mondesir the 3rd DCA held that section 775.087(2)(d)’s last clause meant that “sentences received pursuant to section 775.087(2)(d) must only be consecutive to other felony sentences not subject to section 775.087(2)(d)–so, outside the “scope” of 775.087(2)(d). Although the appellant acknowledged that the supreme court had overruled Mondesir, they had done so on the issue of requiring separate transactions, and not on the issue of “scope.” Accordingly, the appellant urged the supreme court to hold that 775.087(2)(d) “does not require or mandate consecutive sentences on offenses . . . falling under section 775.087(2)(d).”
Importantly, the appellant is not arguing that consecutive sentences under these circumstances are not permitted–they explicitly accept that they are permitted–but simply that they are not mandatory, and that whether to sentence consecutively remains in the sentencing judge’s discretion. In seeking support for this position the appellant cites numerous cases and legislative documents in which the issue of consecutive sentencing is referred to which such phrases as “not explicitly prohibited,” “stacking is approved,” “stacking is allowed,” “consecutive is authorized,” and so forth, noting that these phrases merely communicate that such consecutive sentences are permitted, but not mandatory.
The appellant’s brief concludes by arguing that re-sentencing of Williams is required by a judge who is not under a mandate of consecutive sentencing but rather has the explicit discretion to sentence either concurrently, consecutively, or some hybrid of the two.
In part because of the imprecision with which the legal issue had been previously defined and in part because it provided them with a stronger narrative, the state’s answering brief is only poorly aligned with the appellants argument (embedded below)
First, the state argues that the supreme court should refuse to hear the case at all because of jurisdictional defects. They do so by arguing that the “certified question” was improvidently granted by the 4th DCA because in fact the statutory language of 775.087(2)(d) is not ambiguous. Here the state largely ignores the phrase “any other” in the last sentence of 775.087(2)(d)–which is the very key of the issue of scope at the heart of the dispute–and instead focuses on the word “shall.”
The court shall impose any term of imprisonment provided for in this subjection consecutively to any other term of imprisonment imposed for any other felony offense.”
The state then cites Florida state law making clear that “shall” is an unambiguous term, an issue not actually in dispute.
Because the statute is not ambiguous, the state continues, the legislative analysis language put forward by the appellant ought not be considered by the supreme court.
Of course, the issue is not whether or not 775.087(2)(d) is permissive or mandatory in requiring consecutive sentencing within the proper scope of its application–the question is it’s proper scope of application.
The true question to be addressed is whether multiple violations of 775.087(2)(d) must be run consecutively to each other, or whether the requirement of consecutiveness applies only to any additional violations other than those that fall within 775.087(2)(d).
In response to the state’s response brief the appellant a three page reply (embedded below). In the first paragraph the appellant proper sets out the question as whether
the Florida courts have construed the statutory language to mean only one thing–that a trial court has no discretion but to impose consecutive sentences to a defendant charged with multiple counts under section 775.087(2)(d).
The appellant agreed that Sousa II ruling held that the “any other” language of 775.087(2)(d) applied even to crimes occurring in a single episode. It did not, however, mean that 775.087(2)(d) mandated consecutive sentences for offenses that all fell within the scope of 775.087(2)(d).
Rather, the appellant urged, the “any other felony offense” language should be read as meaning “some other felony, outside of those covered by 775.087(2)(d).”
Before getting into the meat of the oral arguments, I feel compelled to note an unsettling observation as I observed the supreme court justices and the attorneys engage with each other–there was a distinct impression that several, if not all, of the justices had never bothered to give even the slightest thought to this case until the moment the oral argument began. At least one referred to the actual briefs submitted, and discussed above, but she also expressed considerable confusion around what the key issue in the case was.
First up was Jonathan Kaplan, attorney for the petitioner. He correctly sets out the certified question before the court–whether mandatory sentences must be consecutive when they arise from one criminal episode–which, as previously discussed, is actually not the true question that needs to be resolved–whether the mandate for consecutive sentences applies only to offenses outside the scope of 775.087(2)(d) or whether the consecutive mandate also applies to multiple offenses within the scope of 775.087(2)(d).
Kaplan was first engaged by Justice Barbara Pariente, who started off with the rather interesting observation that the appellant, Williams, had been given the opportunity prior to trial to plead to five years, and had been warned at the time that if he did not take the plea he was potentially facing 80 years in prison. Echoes of the Marissa Alexander case, anyone? Kaplan and Pariente then spend several minutes bumbling around the shall issue before getting to the meat of the matter:
Kaplan: “I think you have to read [775.087(2)(d)] in its entirety, and I think when you read it in its entirety, the “any other felony offenses” means those offenses that are not in the subsection 775.087(2)(d).
Pariente also suggests, in passing, that there may be 8th Amendment (cruel and unusual punishment) grounds on which to attack the state’s desired application of 775.087(2)(d), but notes that the appellant had not raised those in this case.
Pariente gets on track at that point, albeit she several times expresses confusion about whether Kaplan’s argument had appeared in his brief, as she didn’t recall seeing it there. It was almost as if she’d read the brief at speed only moments before the oral arguments began, although perhaps the real problem was that the appellant’s initial brief had pretty successfully “buried the lead” two-thirds of the way into the brief.
Shortly thereafter there was an exchange between Kaplan and Justice Peggy Quince that mostly revealed that Justice Quince had almost no functional understanding of the “10-20-Life” statute at all. Justice Pariente does, however, finally get to the heart of the matter by focusing in on “other.”
Justice Charles Canady then introduced into the discussion the lead-in language of the “10-20-Life” statute that clearly sets forth the legislature’s intent that “offenders shall be punished to the fullest extent of the law.”
Mitchell Egberg, Assistant Attorney General, appeared to represent the state. He gave a brief recount of the facts, in which he placed considerable emphasis on the fact that the four victims of Williams aggravated assaults were homosexual:
These four individuals were gay. [Williams] basically shot at them because he thought they might be flirting with him.
But the justices didn’t take the bait.
There followed some confusing discussion in which the justices struggled at understanding whether it was Williams’ pointing of the gun or discharge of the gun that constituted the underlying aggravated assault, and an instance in which Justice Jorge Labarga misunderstood what had been repeatedly referred to as a .357 Magnum to be an UZI machine gun. There followed more discussion making clearly that the justices had only a weak understanding of “10-20-Life.”
Justice Pariente then seems to have recovered from her earlier confusion, and succinctly states the question before the court:
Originally when I looked at [775.087(2)(d)] I thought that it meant other felony offenses, like if there had been a break-in.
AAG Egberg spends considerable time citing the precedent cases, but as discussed above those cases really answer related issues not at the heart of this particular case. He tries to shoe horn them into the matter before the court, but the justices plainly resist as the fit is poor.
Then Justice Pariente goes into a bit of a monologue about what the “common understanding” of “10-20-Life” was to the public when the law was passed. She argues that it’s reasonable to expect that anyone would have known that discharging a gun in a crime would get you a 20 year mandatory minimum, and maybe that it would even be run consecutive to some other felony. She doubted, however, that anyone could reasonably have expected that they might fire a single shot into the air, while facing four victims, and end up with an 80 year sentence.
The state rested, and Kaplan came back with a brief rebuttal that meandered among many of the not-quite-on-point precedent cases. Little value was added here.
Immediately thereafter the court recessed, ending the oral arguments in Williams v. State.
What can I say. It’ll be interesting to see what comes out of this cluster-Florida of legal argument and analysis.
Below are the key documents cited above:
–-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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