Collazo v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2007
JOSE A. COLLAZO,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D06-4762
[ September 5, 2007 ]
EN BANC
PER CURIAM.
Appellant, Jose Collazo, appeals from the sentence imposed upon resentencing by the trial court as directed by this court in Collazo v. State,
936 So.2d 782 (Fla. 4th DCA 2006) (Collazo I). We reverse for resentencing.
Appellant was convicted of third-degree murder with a firearm and the
trial court imposed a thirty-year mandatory sentence for a first-degree
felony under section 775.087(2), Florida Statutes (2004). In Collazo I,
this court determined that the trial court erroneously reclassified
appellant’s offense as a first-degree felony under section 775.087(1) and
remanded for the trial court to properly classify the conviction as a
second-degree felony and to re-sentence appellant based on section
775.087(2)(a)3. This court held:
Notwithstanding that the trial court in this case imposed the
thirty year sentence based on the erroneous reclassification
of the conviction to a first-degree felony, we recognize that
this sentence would have also been appropriate under
section 775.087(2)(a)3., as a permissible discretionary
sentence between twenty-five years to life. Therefore, on
remand, the trial court is not restricted from re-imposing a
thirty year sentence.
Id. at 784.
Upon re-sentencing, the trial court properly reclassified appellant’s
conviction as a second-degree felony and sentenced appellant to thirty
years with a mandatory minimum of thirty years. At the hearing,
appellant’s counsel objected to this mandatory minimum for a seconddegree felony under section 775.087, arguing that it could not exceed
twenty-five years because the sentence already exceeded the statutory
maximum of fifteen years for a second-degree felony. We agree and
hereby recede from the above quoted language of this court’s opinion in
Collazo I.
Section 775.087, Florida Statutes (2004), provides in pertinent part:
(2)(a)1. Any person who is convicted of a felony or an
attempt to commit a felony, regardless of whether the use of
a weapon is an element of the felony, and the conviction was
for:
a. Murder;
...
3. Any person who is convicted of a felony or an attempt to
commit a felony listed in sub-subparagraphs (a)1.a.-q.,
regardless of whether the use of a weapon is an element of
the felony, and during the course of the commission of the
felony such person discharged a “firearm” or “destructive
device” as defined in s. 790.001 and, as the result of the
discharge, death or great bodily harm was inflicted upon any
person, the convicted person shall be sentenced to a
minimum term of imprisonment of not less than 25 years
and not more than a term of imprisonment of life in prison.
(b)
Subparagraph
(a)1.,
subparagraph
(a)2.,
or
subparagraph (a)3. does not prevent a court from imposing a
longer sentence of incarceration as authorized by law in
addition to the minimum mandatory sentence, or from
imposing a sentence of death pursuant to other applicable
law.
Subparagraph (a)1., subparagraph (a)2., or
subparagraph (a)3. does not authorize a court to impose a
lesser sentence than otherwise required by law.
...
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(c)
If the minimum mandatory terms of imprisonment
imposed pursuant to this section exceed the maximum
sentences authorized by s. 775.082, s. 775.084, then the
mandatory minimum sentence must be imposed. If the
mandatory minimum terms of imprisonment pursuant to
this section are less than the sentences that could be
imposed as authorized by s. 775.082, s. 775.084, or the
Criminal Punishment Code under chapter 921, then the
sentence imposed by the court must include the mandatory
minimum term of imprisonment as required in this section.
This court explained the application of section 775.087 in Inmon v.
State, 932 So.2d 518 (Fla. 4th DCA 2006), as follows:
Section 775.087 is a comprehensive sentencing enactment
on the subject of weapons involved in the commission of
felonies and certain resulting enhancements depending on
the specific role of the firearm in the offense. The first
subdivision addresses the “presence” of a firearm in all
felonies. § 775.087(1), Fla. Stat. (2005). It applies to the
possession, use, display, threat to use and actual use of a
firearm in any felony. Id. If a firearm is present in the
commission of any felony, the offense is stepped up a single
grade (e.g., a first degree felony becomes a life felony, and so
on). Id.
Section 775.087(2), the second subdivision of this statute
(the one involved in this case), addresses distinctly different
applications of a firearm but only in the commission of
several enumerated violent or serious felonies. Subsection
(2) has several parts, each subdivided from the others for
ease of reference. One of them makes the actual possession
of a firearm subject to a minimum mandatory enhancement
period of 10 years. § 775.087(2)(a)1, Fla. Stat. (2005).
Another makes the actual discharge of the firearm subject to
a minimum mandatory enhancement period of 20 years. §
775.087(2)(a)2, Fla. Stat. (2005). Still another makes the
actual discharge of a firearm resulting in death or great
bodily harm subject to a minimum mandatory enhancement
period of not less than 25 years up to a maximum of life in
prison. § 775.087(2)(a)3, Fla. Stat. (2005).
In addition to the specified enhancements, section
775.087(2) makes clear that the imposition of the minimum
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mandatory provisions does not prevent even longer
sentences within the statutory maximums. § 775.087(2)(b),
Fla. Stat. (2005). In fact it provides that if the minimum
mandatory exceeds the statutory maximum, then the
maximum is thereby increased and the court must impose
the minimum mandatory.
Id. at 519-20.
Appellant’s conviction was based upon his discharge of a firearm
which resulted in the victim’s death. He was convicted of a seconddegree felony and under section 775.082(3)(c), the statutory maximum
sentence is fifteen years. Section 775.087(2)(a)3, which is applicable to
appellant, subjects him to a minimum mandatory enhancement of
twenty-five years to life. However, because the statutory maximum
applicable to appellant is less than the minimum mandatory of twentyfive years, the court may only impose that minimum mandatory. §
775.087(2)(c), Fla. Stat. (2004).
We reverse and remand for re-sentencing. We recede from that
language in Collazo v. State, 936 So.2d 782, 784 (Fla. 4th DCA 2006),
which held that the trial court had the discretion to sentence appellant to
more than twenty-five years.
Reversed and Remanded for Re-sentencing.
SHAHOOD, C.J., STONE, WARNER, KLEIN, STEVENSON, TAYLOR and HAZOURI,
JJ., concur.
MAY, J., concurs specially with opinion, in which GROSS, J., concurs.
FARMER, J., dissents with opinion, in which GUNTHER and POLEN, JJ.,
concur.
MAY, J., concurring specially.
I concur in the en banc decision. I write simply to call attention to
what I perceive is an ambiguous provision within section 775.087,
Florida Statutes (2006).
The statute provides 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.” § 775.087(2)(d) (emphasis added). To that end, subsection (2)(b)
provides that subparagraphs (a)1., (a)2. and (a)3. do “not prevent a court
from imposing a longer sentence of incarceration as authorized by law in
addition to the minimum mandatory sentence, or from imposing a
sentence of death pursuant to other applicable law.” § 775.087(2)(b)
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(emphasis added). I take from these two provisions that the Legislature
intended to allow a court to sentence an offender to the harshest
sentence possible when the offender is convicted of an enumerated crime
and uses a firearm.
In this case, the defendant was convicted of third degree murder, a
second degree felony offense, carrying a maximum penalty of 15 years. §
775.082(3)(c), Fla. Stat. (2006). The jury found that the defendant
discharged a firearm in the commission of the offense.
Section
775.087(2)(a)3. provides for enhancement of that 15-year maximum
sentence “to a minimum term of imprisonment of not less than 25 years
and not more than a term of imprisonment of life in prison.” Subsection
(2)(c) then provides that “[i]f the minimum mandatory terms of
imprisonment imposed pursuant to this section exceed the maximum
sentences authorized by s. 775.082, s. 775.084, or the Criminal
Punishment Code under chapter 921, then the mandatory minimum
sentence must be imposed.” § 775.087(2)(c) (emphasis added).
Does that mean that only the mandatory minimum sentence of 25
years can be imposed or does it mean that any sentence from 25 years to
life can be imposed as long as the court imposes the mandatory
minimum of 25 years? Was subsection (c) really meant to limit a court to
imposing only the lowest mandatory minimum of 25 years rather than
imposing a longer sentence (25 years to life) authorized by subsection
2(b)?
I think a reasonable reading of the provisions would allow a
sentencing court to sentence the defendant anywhere from 25 years to
life as long as the mandatory minimum of 25 years is imposed. In short,
I find subsection (2)(c) susceptible of more than one meaning, especially
in light of the express intent of the legislature.
Here, section 775.087(2)(a)3. authorized a sentence of 25 years to life,
thereby exceeding the maximum sentence of 15 years under the Criminal
Punishment Code. This required the court to impose the mandatory
minimum sentence of 25 years. I’m not sure it meant to prevent the
sentencing court from imposing a sentence greater than 25 years as long
as the court imposed the mandatory minimum of 25 years.
The majority reads the sentence literally and thereby limits the
enhancement to the lowest of its terms, 25 years. But, I question
whether this reading effectuates the stated intent of the legislature to
punish the offender to the “fullest extent of the law.” The problem is that
either there is no ambiguity and the majority is right or there is an
ambiguity and the rule of lenity would require the court to impose the
“most lenient version” of the sentence. See § 775.021, Fla. Stat. (2006);
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see also Glynn v. State, 868 So. 2d 1280 (Fla. 4th DCA 2004); Cairl v.
State, 833 So. 2d 312 (Fla. 2d DCA 2003) (en banc). Either way, the
defendant wins. For this reason, I concur.
GROSS, J., concurs.
FARMER, J., dissenting.
This sentencing statute1 is not ambiguous. Its plain text supports the
trial court’s imposition of a 30-year mandatory sentence. Nothing in
section 775.087(2) or Inmon v. State, 932 So. 2d 518 (Fla. 4th DCA
2006), suggests otherwise.
The jury made a finding that defendant discharged a firearm and
killed the victim during a robbery. The ordinary penalty for this seconddegree felony is 15 years. See § 775.082(3)(c), Fla. Stat. (2005). As the
majority opinion indicates, the propriety of the trial court’s mandatory
30-year sentence for a killing by gunshot during a felony turns on the
text of two subsections from section 775.087(2). Saving all non-critical
verbiage, the pertinent statutory words are:
[(a)3] the convicted person shall be sentenced to a minimum
term of imprisonment of not less than 25 years and not more
than a term of imprisonment of life in prison.
…
[(c)] If the minimum mandatory terms of imprisonment
imposed pursuant to this section exceed the maximum
sentences authorized by s. 775.082, s. 775.084 … then the
mandatory minimum sentence must be imposed. [e.s.]
§ 775.087, Fla. Stat. (2006). In subsection (a)3 the words not less than
25 years mean that more than 25 years is possible. But the majority
limits the mandatory part to not more than 25 years, making the words
not less than 25 years and not more than life superfluous.
The majority seem to read into the provision a punctuation mark after
the words 25 years. There is no mark at that point; the clause presses
on without any break. Then the words not less than 25 years are
followed immediately by the conjunction and which is not preceded by a
comma, semi-colon or period. If there had been some such punctuation,
one might conceivably read the sentence as containing two separate
thoughts: (1) a mandatory period of 25 years; (2) discretion to make the
1
§ 775.087(2), Fla. Stat. (2006).
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total sentence life. As actually written and punctuated, however,
plain meaning is to conjoin not less than 25 years with the words
more than a term of life into a single thought. As thus written,
mandatory period can be anything from life down to 25 years. I
nothing unclear about this—nothing ambiguous—on which to invoke
rule of lenity.
the
not
the
see
the
We should not lose sight of the obvious policy behind this provision.
The use and discharge of firearms to commit crimes is the most grievous
of all sins against the peace of civil society. In fact, civil society was
created to protect its members from such violence. While all killing is
bad, there is a sinister facet about killing with guns.
Without guns, killing would require a good deal more direct physical
effort and close-in involvement.
Take just a moment to imagine
personally choking, knifing or beating someone to death. The killer must
directly confront the victim while fending off his efforts to defend himself.
The killer must actually lay hands on the victim and not stop or let go
until life is gone.
Now think of shooting someone. Many guns can be fired from a great
distance—in fact some from so far away the shooter is not even able to
make out the features on his victim’s face. With guns killing is possible
from a great remove and in secret, eliminating any attempt at selfdefense. Guns make killing immensely easier. Guns make killing far
less direct and personal. Because most humans are incapable of
choking, knifing or beating anyone to death, guns significantly increase
the universe of possible killers. Guns make more killings more likely.
As Clint Eastwood said in THE UNFORGIVEN, killing is a terrible thing.
It takes away from the victims everything they had, everything they
would ever have. That distinguishes killing from all other crimes, no
matter how appalling another crime may be. There is reason to make
killing by gun during a felony qualify for even the most severe penalty.
To borrow from still another movie, the statute’s message is “leave the
gun take the cannoli” on your way to the crime.
All would-be criminals are now on notice if they choose to bring a gun
to their crime and someone dies by its bullet they can expect a terrible
fate. They will die a long slow death in prison. Perhaps therein lies
deterrence; surely there is punishment. If this defendant ends up with a
mandatory period less than life for his crime-related killing by gun, he
owes it to the leniency of the sentencing judge.
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I would affirm the sentence imposed.
GUNTHER and POLEN, JJ., concur.
*
*
*
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Richard I. Wennet, Judge; L.T. Case No. 04-4489 CFA02.
Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant
Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer,
Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing
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