NOT
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal
from the Circuit Court for Orange County, A. James Craner,
Judge.
James
S. Purdy, Public Defender, and M. Alexander Williams,
Assistant Public Defender, Daytona Beach, for Appellant.
Ashley
Moody, Attorney General, Tallahassee, and Kellie A. Nielan,
Assistant Attorney General, Daytona Beach, for Appellee.
HARRIS, J.
Lester
Stapleton appeals the judgment and sentence imposed by the
court following his trial. The sole issue that he raises on
appeal is that the trial court erred in denying his Florida
Rule of Criminal Procedure 3.800(b)(2) motion to correct
sentencing error pending appeal. Stapleton argues that the
recent revision to article X, section 9, of the Florida
Constitution, commonly known as the "Savings
Clause," removed the previous bar on retroactive
application of an amended sentencing statute. Stapleton
argues that the revised Savings Clause requires him to be
sentenced under the current version of section 775.087(2),
Florida Statutes (2019), also referred to as the
"10-20-Life" statute, because the appeal of his
conviction was pending when both the revised Savings Clause
and amended sentencing statute went into effect. Because the
date of the commission of the crime dictates which punishment
statute applies, the trial court did not err in denying
Stapleton's motion and we affirm.
The
State charged Stapleton with attempted first-degree murder
with a firearm and aggravated assault with a firearm,
stemming from an incident on February 23, 2016, when
Stapleton pointed and discharged a gun towards the victim.
The following day, Florida's Governor approved a bill
which amended section 775.087, removing aggravated assault
from the list of convictions carrying a minimum mandatory for
use of a firearm. See ch. 2016-7, § 1, Laws of
Fla. The amended statute took effect on July 1, 2016.
Following
his trial, Stapleton's jury returned a verdict on October
10, 2018, finding him guilty of assault, a lesser-included
offense, and aggravated assault with a firearm with a special
finding that he discharged a firearm. At his sentencing
hearing, Stapleton's counsel advised the court that at
the time of the offense, section 775.087(2), Florida Statutes
(2016), included aggravated assault with a firearm as an
enumerated offense, requiring a twenty-year mandatory
sentence. The trial court adjudicated Stapleton guilty of
aggravated assault with a firearm and sentenced him to twenty
years in prison as a mandatory minimum
sanction.[1] Stapleton appealed his judgment and
sentence on October 18, 2018.
During
the pendency of Stapleton's direct appeal, Florida voters
approved Amendment 11 to the Florida Constitution, which
amended the Savings Clause. The pre-amended Savings Clause
stated, "[r]epeal of a criminal statute shall not affect
prosecution for any crime previously committed." Art. X,
§ 9, Fla. Const. The amended Savings Clause states,
"[r]epeal of a criminal statute shall not affect
prosecution for any crime committed before such repeal."
Art. X, § 9, Fla. Const. The new provision became
effective on January 8, 2019. See Jimenez v. Jones,
261 So.3d 502, 504 (Fla. 2018).
In
February 2019, Stapleton filed a motion to correct sentencing
error, arguing that because his direct appeal was pending
when the Savings Clause was amended, he was entitled to
receive the benefit of that amendment, as the Florida
Constitution supersedes Florida Statutes. Specifically,
Stapleton argued that by removing the words
"amendment," "punishment," and
"previously," and adding "before such
repeal," the Savings Clause no longer contains the
authority to prohibit retroactive application of amendments
to sentencing statutes. Stapleton essentially argued that the
amendment requires trial courts to apply an amended
criminal statute retroactively to cases with pending appeals.
The
trial court denied the motion without a hearing, finding that
the version of the statute under which Stapleton was to be
sentenced was the version in effect on the day he committed
the crime. The court concluded that Stapleton was not
entitled to retroactive application of the amendment because
his offense was committed prior to the date the amendment to
section 775.087(2) became effective.
Whether
section 775.087, Florida Statutes (2016), applies to
Stapleton's sentence is a question of law this Court
reviews de novo. See Smiley v. State, 966 So.2d 330,
333 (Fla. 2007). Prior to its recent amendment, the Savings
Clause prohibited the Legislature not only from making the
repeal of a statute retroactive, but also from making an
amendment to a criminal statute applicable to pending
prosecutions or sentences. Jimenez, 261 So.3d at
503-04. The recent amendment removed that prohibition,
meaning that there is no longer any provision in the Florida
Constitution that would prohibit the Legislature from
applying an amended criminal statute retroactively to pending
prosecutions or sentences. Id. However, nothing in
the Florida Constitution requires the Legislature to
do so, and the repeal of the prohibition does not require
that it do so. Id.
Moreover,
the Legislature did not attempt to apply section 775.087
retroactively. Effective June 7, 2019, section 775.022,
...