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Butner v. State

Florida Court of Appeals, Second District

April 28, 2017

METRO BUTNER, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Polk County; Michael E. Raiden, Judge.

          Kevin Proulx of Kemp & Proulx, P.L., Longwood, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.

          WALLACE, Judge.

         Metro 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.

         I. BACKGROUND

         Mr. 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.

         II. DISCUSSION

         On 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.

         Mr. 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.[1] 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)).

         In this case, the language of section 775.087(2)(d) is clear. Both offenses were qualified felonies under section 775.087(2)(a).[2] The Florida Supreme Court explained in Williams:

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, ...

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