FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Marc L. Lubet,
S. Purdy, Public Defender, and Kevin R. Holtz and Scott G.
Hubbard, Assistant Public Defenders, Daytona Beach, for
Moody, Attorney General, Tallahassee, and Rebecca Rock
McGuigan, Assistant Attorney General, Daytona Beach, for
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
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.
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.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
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.
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.
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.
interpreted by Judge Warner in her dissenting opinion in
Dennard v. State, 157 So.3d 1055, 1057-61 (Fla. 4th
DCA 2014),  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 ...