FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Michael E. Raiden,
Proulx of Kemp & Proulx, P.L., Longwood, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and David Campbell,
Assistant Attorney General, Tampa, for Appellee.
Butner appeals his judgment and sentences following a jury
trial. We affirm the judgment, but we reverse two of the
sentences and remand for resentencing.
Butner was charged in a three-count information. A jury
convicted Mr. Butner on count one, attempted second-degree
murder, section 782.04, Florida Statutes (2012); on count
two, aggravated assault with a firearm, section 784.021,
Florida Statutes (2012); and on count three, shooting within
a building, section 790.19, Florida Statutes (2012). The
trial court adjudged him to be guilty in accordance with the
jury's verdict and sentenced him to twenty-five
years' prison for count one; to twenty years' prison
for count two; and to fifteen years' prison for count
three. The sentences on counts one and two were imposed as
mandatory minimums. The trial court designated the sentences
for all three counts to run consecutively. All three offenses
arose out of an incident where Mr. Butner struggled with the
victim and the victim was shot in the head.
appeal, Mr. Butner raises three points. First, Mr. Butner
argues that the trial court erred by denying Mr. Butner's
motion for a judgment of acquittal on count three. Second, he
argues that the trial court erred in failing to read a
self-defense jury instruction. Third, he argues that the
trial court erred in designating the sentences on count one
and count two to run consecutively. Mr. Butner's first
and second arguments are without merit and do not warrant
further discussion. Mr. Butner's third point has merit.
Thus, we reverse the sentences on counts one and two and
remand to the trial court for resentencing.
Butner argues that the trial court erred in designating the
sentences on counts one and two to run consecutively because
the trial court erroneously believed that section
775.087(2)(d), Florida Statutes (2012), required that
result. We review this issue de novo. Williams
v. State, 186 So.3d 989, 991 (Fla. 2016) (quoting
Johnson v. State, 78 So.3d 1305, 1310 (Fla.
2012)). "When the language of the statute is clear and
unambiguous and conveys a clear and definite meaning, there
is no occasion for resorting to the rules of statutory
interpretation and construction; the statute must be given
its plain and obvious meaning." Bennett v. St.
Vincent's Med. Ctr., Inc., 71 So.3d 828, 838 (Fla.
2011) (quoting Fla. Birth-Related Neurological Injury
Comp. Ass'n v. Dep't of Admin.
Hearings, 29 So.3d 992, 997 (Fla. 2010)).
case, the language of section 775.087(2)(d) is clear. Both
offenses were qualified felonies under section
775.087(2)(a). The Florida Supreme Court explained in
As written, paragraph (2)(d) contemplates two distinct
imprisonment terms: a term imposed for a qualifying felony
pursuant to subsection (2), and a term imposed for a
nonqualifying felony. The last sentence of paragraph (2)(d) .
. . expressly mandates only that a qualifying felony
sentence run "consecutively to" any sentence
imposed for a nonqualifying felony. Nothing within
paragraph (2)(d)'s plain language also requires, as the
State posits, a qualifying felony sentence to run
consecutively to another qualifying felony sentence.
Furthermore, at no point since its inception in the past
sixteen years have we interpreted paragraph (2)(d) to mandate
the imposition of consecutive sentences for the qualifying
felonies. See [State v. Sousa, ...