Justia.com Opinion Summary: Petitioner was convicted of several crimes, including the kidnapping of his eleven-year-old son. At issue was whether a parent could lawfully be convicted of kidnapping his own child under section 787.01, Florida Statutes. The court held that the plain language of section 787.01 did not preclude a parent from being held criminally liable for kidnapping his or her own child.
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Supreme Court of Florida
____________
No. SC09-2177
____________
RICARDO DAVILA,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[October 6, 2011]
LABARGA, J.
This case is before the Court for review of the decision of the Third District
Court of Appeal in Davila v. State, 26 So. 3d 5 (Fla. 3d DCA 2009). The district
court certified that its decision is in direct conflict with the decision of the Second
District Court of Appeal in Muniz v. State, 764 So. 2d 729 (Fla. 2d DCA 2000).
We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
The case under review concerns Petitioner Ricardo Davila (“Davila”), who
was convicted of several crimes, including the kidnapping of his eleven-year-old
son, which occurred between February 2000 and July 2000. The conflict issue
before us centers on whether a parent can lawfully be convicted of kidnapping his
own child under section 787.01, Florida Statutes (2000). For the reasons expressed
below, we approve the decision of the Third District in Davila to the extent that it
held that a parent can be criminally liable for kidnapping his own child pursuant to
section 787.01 under certain circumstances, but disapprove the reasoning and
analysis of the district court. We also disapprove the decision of the Second
District in Muniz. We begin our discussion with an overview of the facts and
procedural history.
FACTS AND PROCEDURAL HISTORY
Davila was charged by amended information with thirty-six counts of
aggravated child abuse, three counts of false imprisonment of a child under the age
of thirteen, one count of child neglect, one count of child abuse, one count of
attempted felony murder, and three counts of kidnapping a child under the age of
thirteen. With specific regard to the kidnapping charges, the State alleged that on
or between February 5, 2000, and July 7, 2000, Ricardo Davila did “forcibly,
secretly, or by threat, confine, abduct, or imprison another person under thirteen
(13) years of age, to wit: R.D. (A MINOR), against that person‟s will, with the
intent to inflict bodily harm upon or to terrorize the victim or any other person, and
in the course of committing said offense, the defendant committed aggravated
child abuse, as defined in s. 827.03, in violation of s. 787.01(3)(a) and s. 777.011
Florida Statutes.”
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Davila and his wife, Josefa Davila, were both tried before a jury for various
criminal offenses against their son, R.D. The evidence presented at trial
demonstrated that R.D. arrived from Nicaragua on February 5, 2000, and thereafter
resided with his parents and two siblings in Sweetwater, Florida. Shortly after his
arrival from Nicaragua, R.D. was struck by his parents several times for
misbehaving and lying. Additionally, R.D. testified that his parents placed him in
the storage room of their home for approximately two weeks and that, while he
was free to roam about the room, he was not allowed out of the room during the
two-week period.
R.D. also testified that he had been placed in one of the bathrooms of his
parents‟ home on two separate occasions—once in May for a period of three weeks
and once in July for about one week. One of those occasions occurred after his
mother complained that R.D. had not washed the dishes well and instructed Davila
to lock R.D. in the bathroom, which he did. Davila then blindfolded R.D. with
handkerchiefs, tied his hands and feet with rope, placed a bucket over his head and
a handkerchief in his mouth, and locked the bathroom door.
According to R.D., his father also hit him on his back, hands, and legs with a
broomstick after discovering that R.D. managed to free himself from the rope, and
kicked him once while R.D. was in the bathroom because he had removed the
handkerchiefs from around his eyes. As a result of his father‟s kick, R.D. hit a
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bathroom wall and broke a tile. R.D. testified that he was required to lie down in
the bathtub during his time in the bathroom, and if he did not do so, his father
would hit him. R.D. eventually managed to escape from the bathroom and flee to a
neighbor‟s home sometime in July 2000.
Davila‟s testimony conflicted to some extent with R.D.‟s testimony as to the
length of time and condition in which R.D. was kept in the bathroom. Davila
testified that the first time he put R.D. in the bathroom he only placed a bucket
over his head and left R.D. in the bathroom for one day, releasing him at night. He
further testified that he had placed his son in the bathroom one other time for about
four or five hours because R.D. had lied and hit both of his parents. Davila denied
that his son had been tied up for more than twenty-four hours, and then explained
that he had not really tied up his son when R.D. was placed in the bathroom, but
rather that he had “rolled” R.D.‟s hands a certain way.
The jury convicted Davila of twenty-nine counts of aggravated child abuse,
one count of child neglect, one count of child abuse, and three counts of
kidnapping.1 Subsequently, Davila was sentenced to thirty years in prison for the
convictions of aggravated child abuse, five years in prison for the convictions of
1. The trial court entered a judgment of acquittal on the counts for false
imprisonment of a child under the age of thirteen, and the jury was instructed that
false imprisonment of a child under the age of thirteen constituted a lesser included
offense of the kidnapping offenses.
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child abuse and child neglect, and life imprisonment for the convictions of
kidnapping. The trial court ordered 198 days‟ credit for time served, and further
ordered that the sentences run concurrently. Davila appealed his convictions to the
Third District, which affirmed in Davila v. State, 829 So. 2d 995, 996 (Fla. 3d
DCA 2002).
Davila then filed a motion for postconviction relief pursuant to Florida Rule
of Criminal Procedure 3.850. The trial court denied all of the claims and an appeal
to the Third District followed. See Davila, 26 So. 3d at 6-8. On appeal, Davila
argued that the three counts of kidnapping should be vacated because a parent
cannot be convicted of kidnapping his own child as a matter of law. Id. at 7.2 The
Third District noted that Davila was the father of the victim and that there was no
2. In his postconviction appeal to the district court, Davila argued
alternatively that it was improper to convict him of aggravated child abuse and
then use the same acts of aggravated child abuse to enhance the kidnapping charge
from a first-degree felony punishable by life imprisonment to a life felony. Davila,
26 So. 3d at 7. The district court concluded that the postconviction record before it
did not conclusively refute this claim, and consequently reversed this part of the
trial court‟s order and remanded for further proceedings. Id. Davila also raised on
appeal a double jeopardy violation involving the counts for kidnapping and false
imprisonment. The district court remanded this issue because the trial court had
not addressed this claim. Id. at 7-8. Further, the district court remanded the case
for an evidentiary hearing on the issue of whether trial counsel conceded Davila‟s
guilt on multiple counts at trial without the defendant‟s consent. Id. at 8. Lastly,
the Third District rejected Davila‟s contention that it was a double jeopardy
violation to charge the defendant with multiple acts of aggravated child abuse
occurring during a six-month period. Id. Davila does not raise any of these claims
before this Court.
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court order which deprived him of custody rights. Id. The district court observed
that, as a general rule, a parent cannot be convicted of kidnapping his or her own
child. Id. at 7 (citing Johnson v. State, 637 So. 2d 3, 4 (Fla. 3d DCA 1994)). The
court then noted: “We have recognized an exception, however, to the general rule
where the parent „does not simply exercise his rights to the child, but takes [the
child] for an ulterior and unlawful purpose which is specifically forbidden by the
kidnapping statute itself.‟ ” Id. (quoting Lafleur v. State, 661 So. 2d 346, 349 (Fla.
3d DCA 1995)). The Third District thus denied Davila relief on his claim that a
parent cannot be convicted of kidnapping his own child. The district court then
certified conflict with the Second District‟s decision in Muniz, noting that if the
case were before the Second District, Davila would be entitled to relief on the
kidnapping issue. Davila, 26 So. 3d at 7. We turn now to the Second District‟s
decision in the conflict case.
In Muniz, the Second District reversed the defendant‟s conviction for
kidnapping, holding that absent a court order depriving him of authority over his
child, Muniz could not be convicted of kidnapping his own child. See Muniz, 764
So. 2d at 729 (citing Johnson, 637 So. 2d at 4). Muniz had argued with and
battered the mother of his nonmarital five-week-old son, after which the mother
fled the home, leaving the baby behind. Id. at 729-30. The police were called and
when they arrived, they escorted the mother back to the home and knocked on the
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door. Id. at 730. Although Muniz did not respond to the officers‟ knock on the
door, the child‟s mother opened the door and the officers went inside. The officers
confronted Muniz as he held his child in his arms and demanded that Muniz hand
over the baby, but he refused. Id. When an officer approached him, Muniz picked
up a razor and threatened both the baby and himself with the razor. After spending
hours trying to persuade Muniz to release the child to them, the police seized
Muniz and safely removed the baby. Id.
Muniz subsequently was charged with domestic violence battery and armed
kidnapping, and a jury trial was held. Id. Muniz moved for a judgment of
acquittal at the conclusion of trial, asserting that he could not be convicted of
kidnapping his own child. The trial court denied the motion, reasoning that the
mother was the sole natural guardian of the nonmarital child pursuant to section
744.301(1), Florida Statutes (1997). Id. (citing § 744.301(1), Fla. Stat. (1997)
(“The mother of a child born out of wedlock is the natural guardian of the child
and is entitled to primary residential care and custody of the child unless a court of
competent jurisdiction enters an order stating otherwise.”)). On appeal, the Second
District concluded that even if the mother was the child‟s guardian, Muniz was the
legal father of the child and, thus, a parent of the alleged victim. Id. at 729-30.
The district court held that “[t]he kidnaping statute does not criminalize the
confinement of a child under the age of thirteen by „a parent or a legal guardian.‟ ”
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Id. at 729 (quoting § 787.01(1)(b), Fla. Stat. (1997)). The court ruled that while
the defendant‟s conduct was inappropriate, “section 787.01(1)(b) prevents
prosecution of Mr. Muniz for the first-degree felony offense of kidnaping his own
child.” Id. at 731.
ANALYSIS
The conflict issue in this case centers on whether section 787.01, Florida
Statutes (2000), provides a basis to convict a parent of kidnapping his or her own
child as the term “kidnapping” is defined in the statute. This question turns in
large part on the legal effect of subsection (1)(b) of that statute. “The
interpretation of a statute is a purely legal matter and therefore subject to the de
novo standard of review.” Kasischke v. State, 991 So. 2d 803, 807 (Fla. 2008)
(quoting Kephart v. Hadi, 932 So. 2d 1086, 1089 (Fla. 2006)). “A court‟s purpose
in construing a statute is to give effect to legislative intent, which is the polestar
that guides the court in statutory construction.” Larimore v. State, 2 So. 3d 101,
106 (Fla. 2008) (citing Bautista v. State, 863 So. 2d 1180, 1185 (Fla. 2003)). We
look primarily to the actual language used in the statute to discern legislative
intent. See id. “[W]hen the language of the statute is clear and unambiguous and
conveys a clear and definite meaning . . . the statute must be given its plain and
obvious meaning.” Velez v. Miami-Dade Cnty. Police Dep‟t, 934 So. 2d 1162,
1164 (Fla. 2006) (quoting Fla. Dep‟t of Revenue v. New Sea Escape Cruises, Ltd.,
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894 So. 2d 954, 960 (Fla. 2005)). “Further, we are „without power to construe an
unambiguous statute in a way which would extend, modify, or limit, its express
terms or its reasonable and obvious implications.‟ ” Id. at 1164-65 (quoting
McLaughlin v. State, 721 So. 2d 1170, 1172 (Fla. 1998)). We thus begin our
analysis with the language of section 787.01, Florida Statutes (2000).
The criminal offense of kidnapping, which is codified in section 787.01,
Florida Statutes (2000), is defined in relevant part as follows:
(1)(a) The term “kidnapping” means forcibly, secretly, or by
threat confining, abducting, or imprisoning another person against her
or his will and without lawful authority, with intent to:
1. Hold for ransom or reward or as a shield or hostage.
2. Commit or facilitate commission of any felony.
3. Inflict bodily harm upon or to terrorize the victim or another
person.
4. Interfere with the performance of any governmental or
political function.
§ 787.01(1)(a), Fla. Stat. (2000). Subsection (1)(b) further provides: “Confinement
of a child under the age of 13 is against her or his will within the meaning of this
subsection if such confinement is without the consent of her or his parent or legal
guardian.” § 787.01(1)(b), Fla. Stat. In this case, the jury was instructed in
relevant part that to convict Davila of kidnapping a child under the age of thirteen,
the State had to prove that the defendant “forcibly or by threat confined or
imprisoned R.D. against his will . . . with intent to inflict bodily harm upon or
terrorize R.D.” Davila contends that under section 787.01(1)(b), a parent of a child
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under the age of thirteen cannot be criminally liable for kidnapping that child
where there was no court order depriving the parent of custody and where the
alleged confinement of the child was with that parent‟s consent. We disagree.
The plain language of section 787.01(1)(a) requires the State to prove an
overt act on the part of the defendant; namely, a forceful, secretive, or threatening
act that confines, abducts, or imprisons another person against his will. Further, to
prove the offense of kidnapping, it must be established that the defendant
performed the overt act with one of the four specific intents delineated under
subsection (1)(a) of the kidnapping statute. The plain language of subsection
(1)(b) of the statute sets forth a method of proof which allows the State to establish
that the overt act on the part of the defendant was against a person‟s will when that
person is a child under the age of thirteen.
The unambiguous language of section 787.01, Florida Statutes (2000), does
not exempt a parent from criminal liability for kidnapping his or her own child.
Thus, by its own terms, section 787.01 permits Davila to be legally convicted of
kidnapping R.D.3 It is our view that if the Legislature intended to exempt a parent
from criminal liability for kidnapping his or her own child, it would have expressly
3. Our holding today does not suggest that a parent may never discipline his
or her own child. However, under our holding, section 787.01 does not exempt a
parent from criminal liability for committing a forceful, secretive, or threatening
act that confines, abducts, or imprisons a child when such an overt act is
committed with one of the four specific intents delineated under subsection (1)(a)
of the kidnapping statute.
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stated so. We trust that if the Legislature did not intend the result mandated by the
plain and unambiguous language of section 787.01, the Legislature itself will
amend the statute. Until such time, we hold that a parent is not exempt from
criminal liability for kidnapping his or her own child under section 787.01, Florida
Statutes (2000).
Having resolved the conflict issue presented before us, we decline to address
the parties‟ remaining assertions.
CONCLUSION
Based on the foregoing, we conclude that the plain language of section
787.01, Florida Statutes (2000), does not preclude a parent from being held
criminally liable for kidnapping his or her own child. We therefore approve the
result reached by the Third District of Appeal in Davila v. State, 26 So. 3d 5 (Fla.
3d DCA 2009), and disapprove the decision of the Second District Court of Appeal
in Muniz v. State, 764 So. 2d 729 (Fla. 2d DCA 2000).
It is so ordered.
LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur.
PARIENTE, J., concurs with an opinion.
CANADY, C.J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PARIENTE, J., concurring.
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The evidence presented at trial in this case detailed horrific abuse inflicted
by the defendant on the victim, who was under the age of thirteen, and instances of
the defendant locking the victim in a storage room and bathroom for extended
periods of time. The defendant was convicted of child neglect, child abuse,
kidnapping, and numerous counts of aggravated child abuse; he was sentenced to
thirty years in prison for the aggravated child abuse convictions, five years for the
child abuse and neglect convictions, and life imprisonment for the kidnapping
convictions. The issue in this case concerns whether the defendant can be
convicted of kidnapping. The defendant contends that he cannot because the
victim is his own son.
I agree with the majority‟s holding that under the kidnapping statute, a
parent or legal guardian can kidnap his or her own child. Subsection (1)(b) of the
statute operates as a method of proof that allows the State to prove that the act of
kidnapping is against the child‟s will when the child is under the age of thirteen
and is confined without the consent of his or her legal guardian. However, the
subsection was not intended to operate to preclude criminal liability for parents or
legal guardians who meet the elements of the statute.
Under the dissent‟s construction of the statute, the parent or legal guardian
could be convicted of kidnapping a child who is thirteen years of age or older, but
not a child under the age of thirteen. See dissenting op. at 16 (“[I]t is reasonable to
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understand the statute as establishing the absence of parental consent as a
necessary condition for a determination that the confinement is „against the will‟ of
the victim when the victim is a child under thirteen.” (emphasis added)). This
leads to the absurd result that children who are thirteen and older are afforded more
protection under the kidnapping statute than children who are under thirteen. This
flies in the face of logic—younger children are more vulnerable and in need of
greater protection.
The majority‟s reading of the statute is supported by an application of sound
statutory construction principles. A statute “must be construed in its entirety and
as a whole.” Koile v. State, 934 So. 2d 1226, 1233 (Fla. 2006) (quoting St. Mary‟s
Hosp., Inc. v. Phillipe, 769 So. 2d 961, 967 (Fla. 2000)). Subsection (1)(b) cannot
be read in isolation, but “must [be] read . . . within the context of the entire section
in order to ascertain legislative intent for the provision.” Fla. Dep‟t of Envtl. Prot.
v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1265 (Fla. 2008). Further,
“[s]tatutes, as a rule, „will not be interpreted so as to yield an absurd result.‟ ”
State v. Iacovone, 660 So. 2d 1371, 1373 (Fla. 1995) (quoting Williams v. State,
492 So. 2d 1051, 1054 (Fla. 1986)). When these principles of statutory
construction are applied, it is clear that the only reasonable interpretation of
subsection (1)(b) is that the provision creates a method of proof intended to operate
when the offender is not the parent or legal guardian and the child is under the age
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of thirteen. The dissent relies on the rule of lenity; however, we have
“recognize[d] that the rule of lenity is a canon of last resort.” Kasischke v. State,
991 So. 2d 803, 814 (Fla. 2008). It certainly should not be applied to produce an
absurd or unreasonable result. See Clines v. State, 912 So. 2d 550, 560 (Fla. 2005)
(“[T]he rule [of lenity] „is applicable to sentencing provisions‟ if they „create
ambiguity or generate differing reasonable constructions.‟ ” (emphasis added)).
The Legislature has defined kidnapping as “forcibly, secretly, or by threat
confining, abducting, or imprisoning another person against her or his will and
without lawful authority” with one of four specific intents. § 787.01(1)(a), Fla.
Stat. (2000). Subsection (1)(b) of the statute provides: “Confinement of a child
under the age of 13 is against her or his will within the meaning of this subsection
if such confinement is without the consent of her or his parent or legal guardian.”
§ 787.01(1)(b), Fla. Stat. Thus, when the defendant is not the child‟s parent or
legal guardian, the statute has provided that the element that the confinement is
against the victim‟s will is proven when (a) the victim is under the age of thirteen,
and (b) the confinement is without the consent of the victim‟s parent or legal
guardian. However, nothing within the statute implies that subsection (1)(b) is the
only method by which to prove that the kidnapping of a child under the age of
thirteen is against his or her will. Nor does the statute provide that the absence of
parental consent is an element of the crime when the child is under thirteen.
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The dissent reads the statute as if it stated, “Confinement of a child under the
age of thirteen is against her or his will within the meaning of this subsection only
if such confinement is without the consent of her or his legal guardian.” However,
when read in context of the statute as a whole, it becomes clear that subsection
(1)(b) is just one method by which the State can prove that the confinement was
against the victim‟s will for a child under the age of thirteen; it is not the exclusive
method. Nothing within the statute establishes the absence of parental consent as
an element of the crime or a necessary predicate to prove the crime of kidnapping.
CANADY, C.J., dissenting.
In interpreting statutory provisions defining criminal acts, we are bound by a
rule—codified in section 775.021(1), Florida Statutes (2000)—requiring that such
statutes “shall be strictly construed” and that “when the language is susceptible of
differing constructions, it shall be construed most favorably to the accused.” This
“rule of lenity” only comes into play when the statutory provisions at issue “create
an ambiguity or generate differing reasonable constructions.” Nettles v. State, 850
So. 2d 487, 494 (Fla. 2003).
The question presented by this case is whether a parent—with full custodial
rights—of a child under age thirteen can properly be convicted of kidnapping that
child. The appellant argues that such a conviction is precluded—at least under
circumstances like those presented here—by the requirement that an act of
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kidnapping be “against the will” of the victim. Appellant bases his argument on
the provision of the kidnapping statute which states: “Confinement of a child
under the age of 13 is against her or his will within the meaning of this subsection
if such confinement is without the consent of her or his parent or legal guardian.”
§ 787.01(1)(b), Fla. Stat. (2000) (emphasis added).
I conclude that the statutory interpretation urged by the appellant cannot be
rejected as an unreasonable reading of the text of the kidnapping statute. Given the
is/if structure of subsection (1)(b), it is reasonable to understand the statute as
establishing the absence of parental consent as a necessary condition for a
determination that the confinement is “against the will” of the victim when the
victim is a child under thirteen. By using the word “is” rather than language such
as “may be,” the statute explicitly defines “against [the] will” of a child under the
age of thirteen—for purposes of delineating the elements of kidnapping—as
“without the consent of her or his parent or legal guardian.”
The majority‟s alternative construction of section 787.01(1)(b) as setting
forth a nonexclusive “method of proof,” majority op. at 10, is supported by neither
the text of that subsection nor anything else in the text or structure of the
kidnapping statute. The majority‟s reading collides with the doctrine of inclusio
unius est exclusio alterius, which instructs that “when a law expressly describes the
particular situation in which something should apply, an inference must be drawn
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that what is not included by specific reference was intended to be omitted or
excluded.” Gay v. Singletary, 700 So. 2d 1220, 1221 (Fla. 1997). But even if it is
assumed that the majority‟s reading is reasonable, the rule of lenity requires the
rejection of that reading in favor of the alternative reasonable reading urged by the
appellant.
I reject the majority‟s suggestion that we should interpret the text of the
kidnapping statute based on the assumption “that if the Legislature intended to
exempt a parent from criminal liability for kidnapping his own child, it would have
expressly stated so.” Majority op. at 10-11. Such an assumption cannot be
reconciled with the express rule of construction established by the Legislature in
the rule of lenity. Nor can it be reconciled with general principles of statutory
interpretation, including the inclusio unius canon. In applying the statutes adopted
by the Legislature, we must pay careful attention to what the Legislature actually
said and not substitute our own view of what we think the Legislature must have
really meant to say or what it would have said if confronted with the egregious
circumstances of the case at issue.
I also reject the view, which is articulated in the concurrence, that the
absurdity doctrine should be applied here effectively to trump a reasonable reading
of the text of the kidnapping statute and the statutory rule of lenity. Based on a
policy view about appropriate punishment, the concurrence deploys the absurdity
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doctrine in the service of a “rule of severity.” The rationale for applying the
absurdity doctrine here is singularly unpersuasive. I cannot see why it is absurd for
the Legislature in effect to exempt custodial parents from criminal liability for
kidnapping their own children who are under thirteen. It is by no means obvious
that the kidnapping statute is aimed at protecting young children from their own
custodial parents.
I therefore dissent. I would disapprove the Third District‟s decision and
order remand for a new sentencing hearing. I agree with the State‟s argument that
the sentencing court should not be precluded from imposing consecutive sentences
for the remaining convictions.
Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions
Third District - Case No. 3D07-2103
(Dade County)
Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public
Defender, Eleventh Judicial Circuit, Miami, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Richard L. Polin, Bureau
Chief, and Ansley B. Peacock, Assistant Attorneys General, Miami, Florida,
for Respondent
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