IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT IN AND FOR PASCO COUNTY, FLORIDA

 

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF THE

APPLICATION OF JULY 1, 2016 AMENDMENTS TO FLORIDA STATUTES SECTION 775.087

 

Defendant, J.J. Daiak, hereby submits this memorandum of law in support of his claim that any conviction occurring on or after July 1, 2016 for an aggravated assault will not be subject to the enhanced sentences of 10-20-Life, regardless of whether the alleged aggravated assault was committed prior to July 1, 2016.

The recently enacted 2016 bill HB-135/SB-228 completely deletes the crime of aggravated assault from the list of crimes subject to the enhanced penalties of section 775.087 (10-20-Life).  The plain text of section 775.087, moreover, states that the enhanced penalties provided for under the statute come into play upon a

“conviction.”  To illustrate, subsection 775.087(2)(a)2 provides “[a]ny person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 shall be sentenced to a minimum term of imprisonment of 20 years.” FLA. STAT. § 775.087(2)(a)1 (emphasis added).[1]   The Legislature could have easily written the statute to read that any person who commits or attempts to commita felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharge[s] a “firearm” or “destructive device” as defined in s. 790.001 shall be sentenced to a minimum term of imprisonment of 20 years.”  The Legislature’s choice of text clearly indicates its intent that the conviction, rather than the commission of the offense, be the triggering event that kicks in the 10-20-Life provisions.  

While at first glance the so-called Savings Clause of the Florida Constitution (Article X, section 9) which states “[r]epeal or amendment of a criminal statute shall not affect prosecution or punishment for a crime previously committed” may suggest that the recent amendment to section 775.087 would not apply to offenses committed prior to July 1, 2016, the prevailing case law that has applied the Savings Clause since its enactment in 1885 indicates just the opposite.  That result arises from the fact that the 2016 amendment to section 775.087 is not to the substantive criminal statute defining and creating the crime of an aggravated assault, s. 784.021, but rather, is only an amendment to a separate sentencing enhancement statute.  As discussed in greater detail below, amendments to other separate sentencing statutes in Florida have long been applied to crimes committed prior to the amendment date with no Savings Clause problems.  Just the same, the newly amended 10-20-Life statute (which no longer applies to any aggravated assault "conviction" on/after July 1, 2016) should apply in the instant case as of July 1, 2016.  Because this is a question of first impression, it is discussed in some length and detail below:

A.                     AGGRAVATED ASSAULT IS NO LONGER INCLUDED IN 10-20-LIFE

In the 2016 Legislative Session, the House and the Senate both unanimously passed HB-135/SB-228.  The Governor signed the Bill into law on February 24, 2016 with an effective date of July 1, 2016.  The Bill itself is silent as to any legislative intent as to how the new 10-20-Life law is to be applied to alleged aggravated assaults that were committed prior to July 1, 2016, but are still “pending” after that date; that is, where there has been no conviction before July 1, 2016. The Legislature could have, but did not, include in the new version of s. 775.087, something along the line of “This act shall take effect July 1, 2016, and shall apply to offenses committed after that date,” as the Legislature chose to do for previous amendments made to s. 775.087 as in 2005 (Laws 2005, c.2005-128, 25), and in

1995 (Laws 1995, c. 95-195, 23 (inserting/adding “aggravated stalking” to the list of crimes subject to s. 775.087)).

While HB-135/SB-228 is itself silent as to the legislative intent behind it, the actual legislative intent can be seen in media reports as the Bill was widely reported in the media before it was passed. For example, see the Tampa Bay Times, February 4, 2016, feature story on HB-135 and on Orville Lee Wollard, who like the nationally publicized case of Marissa Alexander before him, received a 20-year mandatory minimum sentence because of 10-20-Life for a conviction of an aggravated assault after firing a warning shot in self-defense. In that Times article, Representative Neil Combee, the prime co-sponsor of this bill, was quoted as saying “[w]e're sending people to prison for twenty years for aggravated assault. Something's wrong here.”  http://www.tampabay.com/news/politics/stateroundup/a-warning-shot-sent-a-manto-prison-for-20-years-and-shockwaves-to-the/2264128.  The Bill’s other prime cosponsor, Representative Katie Edwards, is quoted in that same article as stating, “We should have done this years ago. It's a consequence of 10 20-Life.” Id.  The clear intent evidenced in those legislators’ statements is to immediately stop imposing the penalties of 10-20-Life for any aggravated assault charge in Florida (while still allowing a prison sentence of up to five years), especially for offenses involving a mere warning shot fired in self-defense. That legislative intent shows that the new law is intended to be applied to any aggravated assault where the conviction is after July 1, 2016, regardless of the date of the offense.

 

Section 775.087 itself was amended by HB-135/SB-228 to simply delete any mention of aggravated assault from it, by deleting the words “aggravated assault” from the list of enumerated felonies subject to its sentencing provisions, and then renumbering (or rather re-lettering) the list so that, as of July 1, 2016, there will be no indication in the statute that aggravated assault was ever included in that list of crimes subject to section 775.087.  After July 1, 2016, any sentencing court that looks to the current version of section 775.087 after July 1, 2016, will see nothing to show that the conviction for an aggravated assault is subject to any provision in section 775.087.  Without locating and reviewing the pre-2016 versions of 10-20Life, a reader of the statute would not know or have reason to know that aggravated assault used to be among the enumerated felonies.  

Given the plain language of the new version of section 775.087 that is effective on and after July 1, 2016, any "conviction" for an aggravated assault after July 1, 2016 will not be subject to the s. 775.087, regardless of the date of the commission of the alleged aggravated assault.

B. THE AGGRAVATED ASSAULT STATUTE ITSELF HAS NOT BEEN AMENDED

 

HB-135/SB-228 does not amend the aggravated assault statute, section 784.021, in any way whatsoever.   Section 784.021 defines the elements of the crime of aggravated assault and references the general punishment statutes:

(1) An 'aggravated assault' is an assault: (a) With a deadly weapon without intent to kill. (2) Whoever commits an aggravated assault shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

 FLA. STAT. § 784.021.  Note that the statute makes no reference to section 775.087, the 10-20-Life statute and otherwise contains nothing to inform a defendant that he is or may be subject to the enhanced penalties of 10-20-Life if convicted of an aggravated assault.  Likewise, in the instant case, the information made no reference whatsoever to 10-20-Life or s. 775.087.  Instead, after reciting the elements of the aggravated assault charge, the information only concluded with “contrary to Chapter 784.021/784.07(2)(c), Florida Statutes.” (Section 784.07 includes aggravated assault on a law enforcement officer and adds elements to the aggravated assault statute, making it a second-degree felony, and specifically including a three-year mandatory minimum sentence within the text of s. 784.07 itself.)

 The failure to make reference in the information, either directly or indirectly, to the 10-20-Life statute (s. 775.087), raises Due Process concerns that Mr. Daiak was not duly informed that he would be subject to the enhanced penalties of 10-20Life.  All the State had to do was, as it usually does in similar cases, is to just include a specific reference to s. 775.087 in the information (unless in fact this was an indication that the State Attorney's Office had chosen to use its discretion to not seek the 10-20-Life penalties in this case.) See Bryant v. State, 386 So. 2d 237 (Fla. 1980) (addressing a similar claim where s. 775.087 was not referred to in the information, but analyzing the issue only as a separation of powers claim and not as a Due Process claim because in 1980 when Bryant was decided, s. 775.087 only included a three year mandatory minimum sentence, and so could never exceed the statutory maximum of any felony (as can occur under 10-20-Life, which amended s.775.087 in 1999.))

C. THE SAVINGS CLAUSE

The Savings Clause was enacted in 1885 at a time when each criminal statute defining the elements of a specific crime also contained within itself the punishment/penalty for that specific crime (such as “punishable by imprisonment for up to ten years”).  It was not until 1971 that the penalties for each specific crime were removed from the text of that statute and the criminal statute amended to such as “. . . shall be guilty of a third degree felony, punishable as provided in sections 775.082, 775.083, and 775.084” [the General Punishment Statutes].  Therefore, since the 1971 change to each criminal statute (defining a crime) now having the punishment spelled out in a separate general punishment statute, a current analysis of the wording and purpose of the Savings Clause is different than it was in 1885.

The original “purpose of the Savings Clause [was] to prevent a defendant from evading punishment”{C}{C}{C}{C}{C}[2]{C}{C}{C}{C}{C} or from allowing a defendant to “go free”{C}{C}{C}{C}{C}[3]{C}{C}{C}{C}{C} when a criminal statute was repealed.  But since 1971 and the removal of the specific punishment of each specifically defined crime to the General Punishment statutes, no defendant can realistically “evade punishment” or “go free” when a sentencing statute is amended, the harm at which the Savings Clause was directed.

For example, in Raines v. State, 28 So. 57 (Fla. 1900), an early and still leading case to address the meaning of the Savings Clause, the Court stated: “The crime of which the defendant was convicted in this case was committed prior to the taking effect of said chapter 4728, and such crime, therefore, stood for prosecution and punishment under the terms of the law that it violated at the time of its commission, notwithstanding the subsequent repeal or amendment of such law.” Id. at 58 (emphasis added).  Today, in contrast, a charge of aggravated assault only “violates” the aggravated assault statute, s. 784.021; it cannot be said that it violates a separate sentencing statute such as s.775.087 or s. 775.082.

  Pells v. State, 9 So. 833 (Fla. 1891), another still leading case on the meaning and purpose of the Savings Clause, in an opinion published just after the 1885 enactment of the Clause held:

The origin of the constitutional provision cited is to be found in the effect of the repeal of statutes creating criminal offenses, when such repealing acts have not made, either expressly or by implication, a saving provision as to offenses committed prior to the repealing act.

 

Id. at 834 (emphasis added).  The Court explicitly referenced the repeal of statutes

“creating” criminal offenses -- such as s. 784.021, which “creates” the criminal offense of an aggravated assault by defining its elements.  Pells goes on to discuss the legislative act at issue in the case, where a new and separate statute was enacted after the defendant’s conviction and which limited the time the defendant could be kept in prison for not paying a fine:

The statutes defined or created by the former act, and the punishment demanded against any of them by it, are in no way changed or affected by the [new] act.

 

Id.  Similar to this quote from Pells, in the instant case, the text of the substantive criminal statute defining or creating the criminal offense of aggravated assault and the punishment demanded by it (“it” being the aggravated assault statute itself) is in no way changed by the new 2016 amendment to 10-20-Life.  As a result, the Savings Clause should not apply here.

In Castle v. State, 330 So. 2d 10 (Fla. 1976), the Florida Supreme Court held that the Savings Clause prohibited an amendment to the penalty contained within the arson statute itself, s. 806.05, from being applied to an arson previously committed. However, a closer look at Castle shows that the amendment at issue in that case was actually an amendment to the text of the substantive criminal statute of arson itself.  The amendment at issue in Castle changed the statutory text which previously provided for a penalty of “imprisonment in the state prison for not more than 10 years” to the amended text providing for a penalty of “a felony of the third degree, punishable as provided in s 775.082, 775.083, or 775.084.” See Session Laws 1971-136 for these changes.  Unlike the amendment at issue in Castle, the 2016 amendment to the separate sentencing statute of 10-20-Life did not amend the substantive criminal statute of aggravated assault, s. 784.021.  The reasoning of Castle is, therefore, inapplicable in the instant case.  See also McKendry v. State, 641 So. 2d 45, 49 (Fla. 1994) (Shaw, J., dissenting):

Further, the Savings Clause by its own terms applies only to changes in a criminal statute that affect “punishment,” and Florida's statutory “punishments”—spelled out in sections 775.082, 775.083, and 775.084, Florida Statutes(1989)—would not be affected by retrospective application. See generally Castle v. State, 330 So.2d 10 (Fla.1976) (Savings Clause applies to statutorily authorized penalties); Turner v. State, 87 Fla. 155, 99 So. 334 (1924) (same).

 

Mandatory minimum provisions are nowhere in Florida Statutes defined as “punishments,” but rather are guides for judges which, like the sentencing guidelines themselves, channel trial judges' discretion in imposing the “punishments” spelled out in sections 775.082,775.083, and 775.084. Because they do not affect the underlying statutory “punishments,” changes in mandatory minimum provisions may be applied retrospectively just as changes in the sentencing guidelines have been.

 

Id.; Barnum v. State, 921 So. 2d 513, 517 (Fla. 2005) (noting that the Florida Supreme Court has previously recognized that “[s]ection 784.07 [the aggravated assault on a law enforcement officer statute] is an enhancement statute, rather than a statute creating and defining any criminal offense.

The above authorities tie in with the claim that the Savings Clause of 1885 implicitly referred only to “substantive criminal statutes,” which in 1885 both defined the crime and provided for the punishment within the statute itself; unlike the situation post-1971 where the substantive statute defines the crime, but the applicable penalty is set forth in a separate section, s. 775.082, the General Penalties section.  The enhancement statute of 10-20-Life is even one more step removed from the substantive aggravated assault statute since the substantive statue has no reference in its text to 10-20-Life at all.  Applying the above principles from the above cited cases demonstrates that the 10-20-Life statute is merely an enhancement statute and not a substantive statute (the statute defining aggravated assault has not changed).  Pursuant to the case law discussed above, only the repeal or amendment of substantive statutes are subject to the Savings Clause.  As a result, the Savings

Clause will not bar the use of HB-135 in cases pending as of July 1, 2016 

To the extent any question remains as to the potential applicability of the Savings Clause, in construing any language in the Savings Clause of the Florida Constitution that is susceptible to differing constructions, the Florida Supreme Court has long held that the “[Savings Clause] of the Constitution, being in derogation of the rights of one accused of crime, is to be strictly construed.” Robertson v. Circuit Court of Highlands County, 164 So. 525 (Fla. 1935) (an early version of the current Rule of Lenity, s. 775.025 (1) in construing statutes, "when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.")  Therefore any differing constructions of the Savings Clause from what is argued here as to whether the 2016 amendment to 10-20-Life is subject to the Savings Clause as to applying it to a previously committed offense of aggravated assault, should now be strictly construed in the favor of this defendant.

D. OTHER SIMILAR SENTENCING STATUTE AMENDMENTS HAVE APPLIED RETROACTIVELY

 

   An example of a similar sentencing statute that has applied to cases pending at the time of the statute’s enactment is section 775.011, which enacted the Florida Criminal Code.  Section 775.011, titled “Applicability to Antecedent Offenses,” states in relevant part: “Except as provided in subsection (3), the [Florida Criminal] code does not apply to offenses committed prior to October 1, 1975, and prosecutions for such offenses shall be governed by the prior law.” FLA. STAT. § 775.011(2) (emphasis added).  Subsection 775.011(3) then states: “In any case pending on or after October 1, 1975, involving an offense committed prior to such date, the provisions of the code involving any quasi-procedural matter shall govern, insofar as they are justly applicable, and the provisions of the code according a defense or mitigation or establishing a penalty shall apply only with the consent of the defendant. FLA. STAT. § 775.011(3) (emphasis added).  Thus, at the time of its enactment, this sentencing statute specifically allowed a defendant to choose to, to consent to, be sentenced under a sentencing statute that was enacted after the date of the offense of the crime.  The statute, furthermore, specifically provided that the “prosecution” of the crime would still be governed by the prior law, i.e., the statute defining the elements of the offense, while the “penalty” for that crime could be governed by a sentencing statute enacted after the commission of the crime.  So, in that instance, Chapter 775 expressly recognizes the separation of the penalty/punishment from the criminal statute defining the crime -- a very different situation from the period from when the Savings Clause was enacted in 1885 until the establishment of the General Penalties in Chapter 775 beginning in 1971. 

As to what is a “pending” case under s. 775.011(3), Pizarro v. State, 330 So. 2d 789, 790 (Fla. 1st DCA 1976) held that: “‘Pending,’ as used in this statute, refers to trial and not to appeal,” allowing the application of a new sentencing statute for a crime previously committed if the defendant’s conviction date was after the new sentencing statute’s effective date, but not if the defendant’s appeal occurred after that date.  Pizarro also noted “that the legislature did not mean for a defendant to escape punishment for a crime for which he was convicted because the criminal code overlooked providing a penalty.” Id.  This statement echoes the basic purpose of and for the Savings Clause when, as in the facts given in the Pizarro case, the statute defining the crime was repealed (with no replacement) after the date of the offense.  But unlike the situation at bar in Pizarro, no defendant would “escape punishment” for an aggravated assault committed prior to July 1, 2016, but for which the conviction occurs after that effective date of the new version of s. 775.087.  Under the present scenario, a convicted defendant is still to be punished as provided in the aggravated assault statute itself, s, 784.021, as a third degree felony -- hardly “escaping punishment” and so not running afoul of the purpose of the Savings Clause.

 A second sentencing statute that has applied retroactively, without any known Savings Clause problems, is section 775.082(8)(a): “The sentencing guidelines that were effective October 1, 1983, and any revisions thereof, apply to all felonies . . . committed before October 1, 1983, when the defendant affirmatively selects to be sentenced pursuant to such provisions.”

Another example of an amendment to a sentencing statute being applied, without any Savings Clause problems, to a crime previously committed before the effective date of that amendment is seen in the 1973 amendment to s. 921.161(1), which required that a defendant be given credit for all time served in jail awaiting trial.  In Hamilton v. State, 306 So. 2d 600, 601 (Fla. 2d DCA 1975), the Second District held this amendment to a sentencing statute to apply to a crime not only committed prior to the effective date of the amendment, but also to offenses for which defendants had been convicted and sentenced prior to the effective date. In deciding Hamilton, the court reasoned that “the applicable Florida law dictates that this court apply the law applicable at the time the appeal was decided.” See also Gallagher v. State, 300 So. 2d 299 (Fla. 4th DCA 1974) (holding the same as to the amendment to s. 961.161(1) being applicable to cases pending on appeal even though the crimes at issue were committed prior to the effective date of the amendment). 

While the text of the amendment to section 775.087, 10-20-Life, is silent as to whether it is to apply to an aggravated assault committed prior to July 1, 2016, but which results in a conviction after that date, sections 775.011(3) and 775.082(8)(a), indicate that the Savings Clause is not violated when a new “sentencing” statute or an amendment to a sentencing statute is applied to a crime previously committed.  From there, because the plain text of section 775.087, 1020-Life, indicates that the triggering event for application of the mandatory minimum penalties of set forth in the statute is only an actual “conviction,” as opposed to the commission of the offense, the version of the statute in effect at the time of the conviction is the version that is to apply at sentencing.   Consequently, any aggravated assault conviction occurring after July 1, 2016’s effective date of the amended s. 775.087 sentencing statute should not be subject to the 10-20-Life enhanced penalties, regardless of the date of the offense.

 

{END OF MEMORANDUM}


{C}{C}{C}{C}{C}[1]{C}{C}{C}{C}{C} The corresponding subsections of the statute likewise call for the application of the statute upon conviction for the enumerated offense. See FLA. STAT. § 775.087(2)(a)1, 3.

[2]{C}{C}{C}{C}{C} Provenzano v. Moore, 744 So. 2d 413, 440 n.53 (Fla. 1999) (Shaw, Anstead, JJ., dissenting) citing State v. Watts, 558 So. 2d 994 (Fla. 1990).

{C}{C}{C}{C}{C}[3]{C}{C}{C}{C}{C} McKendry v. State, 641 So. 2d 45, 49 (Fla. 1994) (Shaw, J., dissenting) (“This provision [the Savings Clause] was enacted in 1885 to negate a recent court ruling that let an attempted murderer go free after repeal of the assault statute.”)