FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; James A. Yancey,
Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes,
Assistant Attorney General, Tampa, for Appellant.
Felman and Brandon K. Breslow of Kynes, Markman & Felman,
P.A., Tampa, for Appellee.
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
Second-Degree Perjury Charges and the Trial Court's
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.
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).
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.
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).
Legislature's Classification of Felony
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.
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
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 ...