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Gabriel v. State

Florida Court of Appeals, Fifth District

December 6, 2019

RIDGE GABRIEL, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Orange County, Marc L. Lubet, Judge.

          James S. Purdy, Public Defender, and Kevin R. Holtz and Scott G. Hubbard, Assistant Public Defenders, Daytona Beach, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.

          PER CURIAM.

         Ridge Gabriel appeals his new sentence entered after we reversed his initial sentence and remanded for further proceedings in Gabriel v. State, 248 So.3d 265 (Fla. 5th DCA 2018). Gabriel raises two issues on appeal. Only one merits discussion. As explained below, we reverse Gabriel's new sentence.

         Gabriel was convicted of attempted first-degree murder with a firearm of a law enforcement officer, resisting an officer with violence, attempted robbery with a firearm, and aggravated assault with a firearm. We reversed the attempted first-degree murder conviction because the trial court failed to instruct the jury on an essential element of the crime. See Gabriel, 248 So.3d at 267-68. We declined to address Gabriel's challenge to the sentences on his remaining convictions, noting that Gabriel's score would change if he was acquitted on the attempted first-degree murder charge. Id. at 268.

         On remand, Gabriel was re-sentenced for attempted robbery with a firearm, the primary offense, aggravated assault with a firearm, and resisting an officer with violence.[1]The statutory maximum for attempted robbery with a firearm is fifteen years, and the statutory maximum for both aggravated assault with a firearm and resisting an officer with violence is five years. The State, citing section 921.0024(2), Florida Statutes (2012), insisted that the trial court was required to sentence Gabriel to 107.25 months in prison, the lowest permissible sentence (LPS) for aggravated assault and resisting arrest with violence, because the LPS exceeded the statutory maximum for those offenses. The trial court agreed with the State and re-sentenced Gabriel to fifteen years, with a ten-year minimum mandatory, for attempted robbery with a firearm; 107.25 months, with a three-year minimum mandatory, for aggravated assault; and 107.25 months for resisting an officer with violence-all to run consecutively. As a result, Gabriel's total sentence was approximately thirty-three years.

         On appeal, Gabriel argues that his sentences for aggravated assault with a firearm and resisting an officer with violence are unlawful because they exceed the statutory maximum for those offenses. He further argues that because section 921.0024(2) is vague, the rule of lenity required the trial court to interpret the law in his favor.[2]

         Section 921.0024(2) provides that "[t]he permissible range for sentencing shall be the lowest permissible sentence up to and including the statutory maximum, as defined in s. 775.082, for the primary offense and any additional offenses before the court for sentencing." Applying this language in conjunction with language from the supreme court's opinion in Moore v. State, 882 So.2d 977 (Fla. 2004), we conclude that the sentencing range for Gabriel was 107.25 months, the LPS, to twenty-five years, the collective statutory maximum sentence.

         In Moore, the supreme court explained:

Under the prior guidelines, the individual offenses were considered interrelated because together they were used to establish the minimum and maximum sentence that could be imposed. To the contrary, however, under the CPC [Criminal Punishment Code (CPC)], together the individual offenses only establish the minimum sentence that may be imposed; a single maximum sentence is not established-each individual offense has its own maximum sentence, namely the statutory maximum for that offense. Under the CPC, multiple offenses are not interrelated as they were previously under the guidelines.

882 So.2d at 985.

         As interpreted by Judge Warner in her dissenting opinion in Dennard v. State, 157 So.3d 1055, 1057-61 (Fla. 4th DCA 2014), [3] the foregoing language from Moore stands for the proposition that "the LPS is the collective total minimum sentence for all offenses, but each has its own statutory maximum. The LPS is not the sentence which must be applied to each offense at sentencing." Dennard, 157 So.3d at 1060 (Warner, J., dissenting). In the same vein, when applying the provision of section 921.0024(2), which requires the trial court to impose the LPS if it exceeds the statutory ...


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