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State v. Kwitowski

Florida Court of Appeals, Second District

June 20, 2018

STATE OF FLORIDA, Appellant,
v.
CHESTER RALPH KWITOWSKI, JR., Appellee.

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

          Appeal from the Circuit Court for Polk County; James A. Yancey, Judge.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellant.

          James Felman and Brandon K. Breslow of Kynes, Markman & Felman, P.A., Tampa, for Appellee.

          SALARIO, Judge.

         The State appeals from an order granting Chester Kwitowski's motion to dismiss three counts of perjury in violation of section 837.02(2), Florida Statutes (2016). That statute makes perjury in "an official proceeding related to the prosecution of a capital felony" a second-degree felony. Id. Mr. Kwitowski is alleged to have committed perjury in a prosecution for capital sexual battery. The legislature has by statute classified capital sexual battery as a "capital felony." § 794.011(2)(a), Fla. Stat. (2016). The trial court nonetheless dismissed the second-degree perjury charges because it believed that capital sexual battery cannot be a capital felony because the Eighth Amendment prohibits imposition of the death penalty for that offense. As we shall explain, the statutory term "capital felony" unambiguously refers to an offense that the legislature has by statute classified as a capital felony without regard to whether the death penalty may constitutionally be imposed for an offense so classified. The trial court's contrary interpretation was incorrect, and we reverse.

         The Second-Degree Perjury Charges and the Trial Court's Order

         The second-degree perjury offenses the State charged in this case arise from sworn testimony Mr. Kwitowski gave in the prosecution of Jason Daniels. The State Attorney in Polk County charged Mr. Daniels with nine counts of sexual battery on a child under twelve-capital sexual battery, see § 794.011(2)(a)-and certain other offenses.

         Mr. Kwitowski was hired as a defense expert on computers. According to the State, Mr. Kwitowski told lies about his qualifications as a computer expert during a deposition, a pretrial hearing, and the trial in Mr. Daniels's case. He is alleged to have falsely stated that he had degrees, certifications, security clearances, and experience that he did not in fact have. The State charged Mr. Kwitowski with, among other things, three counts of second-degree perjury in violation of section 837.02(2).

         Mr. Kwitowski responded with a motion to dismiss filed under Florida Rule of Criminal Procedure 3.190(c)(4) in which he argued that capital sexual battery is not a capital felony within the meaning of the second-degree perjury statute. After a hearing, the trial court granted the motion and dismissed the second-degree perjury charges. Relying on the supreme court's decision in Mills v. Moore, 786 So.2d 532, 538 (Fla. 2001), the trial court reasoned that a capital felony is one that is punishable by death. It explained that in Buford v. State, 403 So.2d 943, 951 (Fla. 1981), our supreme court held that the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution prohibits the imposition of the death penalty for sexual battery offenses. See also Kennedy v. Louisiana, 554 U.S. 407, 413 (2008) (holding that the Eighth Amendment forbids imposition of the death penalty for the rape of a child where the crime did not and was not intended to result in the death of the victim). Because the death penalty can no longer constitutionally be imposed for capital sexual battery, the trial court concluded that capital sexual battery is not a capital felony within the meaning of the second-degree perjury statute. The trial court further concluded that any ambiguity in the statute is required under the rule of lenity to be resolved in Mr. Kwitowski's favor.

         The State timely appealed the trial court's order. It raises the single issue of whether capital sexual battery is a "capital felony" as that term is used in the second-degree perjury statute. This is evidently a question of first impression. Because it involves a matter of statutory interpretation, we review the trial court's decision de novo. See State v. Burris, 875 So.2d 408, 410 (Fla. 2004).

         The Legislature's Classification of Felony Offenses

         Getting to the bottom of the statutory issue this case presents requires a little background on how the legislature classifies felony crimes-including capital felonies-and what those classifications mean. In 1971, the legislature adopted section 775.081, titled "[c]lassifications of felonies and misdemeanors." § 775.081, Fla. Stat. (1971). The statute remains in materially identical form today. In it, the legislature has expressly "classified" felonies into five distinct categories "for the purpose of sentence and for any other purpose specifically provided by statute." § 775.081(1), Fla. Stat. (2016). Those categories are "capital felony, " "life felony, " and felonies of the first, second, and third degrees. Id. "A capital felony and a life felony must be so designated by statute." Id. All other felonies bear the classification expressly given to them by an applicable statute and, if none is given, are deemed to be third-degree felonies. Id.

         By its terms, then, the statutory scheme presumes that when the legislature defines a felony offense, it will also classify that offense as a capital felony, a life felony, or a felony of the first, second, or third degree. And that is in fact what the legislature does. Thus, for example, when the legislature criminalized the use of the internet to solicit a child, it simultaneously and in the same statute classified that offense as a third-degree felony or, if the defendant misrepresents his or her age in the process, a second-degree felony. § 847.0135(3), Fla. Stat. (2016). Similarly, the same statute that defines the offense of aggravated assault also classifies that offense as a third-degree felony. § 784.021, Fla. Stat. (2016). And the statute that defines first-degree murder also classifies that crime as a capital felony. § 782.04(1)(a), Fla. Stat. (2016). The Florida Criminal Code is chock-full of statutes that work in precisely this way-they create an offense and simultaneously categorize it using the classification system in section 775.081(1).

         The most immediate consequence of the classification of a felony offense is to set the scope of any potential sentence. Life felonies, as the name implies, are punishable by a sentence of life in prison or a lengthy term of years, depending on the nature of the offense and when it was committed. § 775.082(3)(a). First-degree felonies are generally punishable by a term of imprisonment not to exceed thirty years. § 775.082(3)(b)(1). Second-degree felonies are generally punishable by a term not to exceed fifteen years. § 775.082(3)(d). And third-degree felonies are generally punishable by a term not to exceed five years. § 775.082(3)(e). The natural ...


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