STATE OF FLORIDA, PETITIONER,
v.
FELIPE PEREZ, RESPONDENT
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The Florida Supreme Court held that mandatory minimum sentencing provisions applicable to firearm felonies do not apply when a defendant is convicted of a lesser misdemeanor offense. The court reversed prior conflicting precedent and held that the legislature intended mandatory minimums only for felony convictions, not misdemeanors.
The mandatory minimum sentence provisions of section 775.087(2) apply only to felony convictions, not to misdemeanor convictions. When a defendant is convicted of a misdemeanor lesser-included offense, the one-year maximum sentence for first-degree misdemeanors applies, not the mandatory felony minimum.
[1] A statute mandating a minimum sentence for certain felonies does not apply to attempts of those felonies unless explicitly stated.
[2] The legislature's intent in enacting a mandatory minimum sentencing statute is a key factor in its interpretation.
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Join FLexlaw to unlock all legal intelligence“the legislature had intended the mandatory minimum sentence provisions to apply only to felonies, not misdemeanors”
States the core holding that mandatory minimums do not apply to misdemeanor convictions
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Join FLexlaw to unlock all legal intelligencePerez was charged by information with aggravated assault with a deadly weapon (a firearm), which carried a mandatory three-year minimum sentence under…
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McDonald, justice.
We have for review Perez v. State, 431 So. 2d 274 (Fla. 5th DCA 1983), which the district court certified as being in direct conflict with Gillman v. State, 346 So. 2d 586 (Fla. 1st DCA 1977). We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution, approve the decision under review, and disapprove Gill-man.
The state charged Perez by information with aggravated assault with a deadly weapon, a firearm, in violation of section 784.021, Florida Statutes (1981). Perez also faced a minimum mandatory sentence of three years’ imprisonment under subsection 775.087(2), Florida Statutes (1981) if convicted as charged. A jury found Perez guilty of attempted aggravated assault, resulting in a first-degree misdemeanor conviction instead of the third-degree felony charged. See § 777.04(d), Fla.Stat. (1981). Relying on Gillman, the trial court sentenced Perez to the three-year mandatory minimum term of imprisonment required by subsection 775.087(2), notwithstanding the one-year sentence cap on a first-degree misdemeanor conviction found in subsection 775.082(4)(a), Florida Statutes (1981). On appeal the fifth district directed the trial court to resentenee Perez without applying the mandatory minimum sentence provisions of subsection 775.087(2). The fifth district reasoned that the legislature had intended the mandatory minimum sentence provisions to apply only to felonies, not misdemeanors. We agree.
Subsection 775.087(2) can logically be interpreted to sustain the trial judge and the first district in Gillman, but we prefer the analysis used by the fifth district in this case. As the decision under review points out, the legislative enactments creating and amending subsection 775.087(2) all refer to minimum sentences for felony convictions. The statute was enacted to assure that anyone convicted of a felony involving the use of a firearm or destructive device would serve a minimum of three years’ incarceration. It was a limitation on the trial judges’ discretion when such weapons were used in committing a felony; it prohibited the parole commission from granting parole prior to the running of three years for those convicted of such crimes. We do not believe that it was the legislative intent and purpose of subsection 775.087(2) to impose the mandatory minimum sentence on a defendant convicted of the misdemeanor offense of attempted aggravated assault.
Accordingly, we choose to follow and approve the decision under review and disapprove Gillman insofar as it conflicts with our decision in this case.
It is so ordered.
ADKINS, BOYD, OVERTON, EHRLICH and SHAW, JJ., concur. ALDERMAN, C.J., dissents with an opinion.
ALDERMAN, Chief Justice,
dissenting.
I would approve the decision of the First District in Gillman v. State, 346 So. 2d 586 (Fla. 1st DCA 1977).
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Williams v. State, 517 So. 2d 681 (Fla. 1988)…. See State v. Smith, 470 So. 2d 764 (Fla. 5th DCA 1985), approved, 485 So. 2d 1284 (Fla.1986); Haywood v. State, 466 So. 2d 424 (Fla. 4th DCA 1985), approved, 482 So. 2d 1377 (Fla.1986); Perez v. State, 431 So. 2d 274 (Fla. 5th DCA 1983), approved, 449 So. 2d 818 (Fla.1984). As the Perez court observed, sentence enhancement by reclassification of the crime to a higher degree increases the punishment by authorizing a greater maximum penalty whereas imposition of a three-year mandatory minimum sentence merely…
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State v. Smith, 470 So. 2d 764 (Fla. 5th DCA 1985)…both. The same issue was before the court in Brown v. State, 460 So. 2d 546 (Fla. 1st DCA 1984), and there the court reached the opposite result. Citing to cases such as Perez v. State, 431 So. 2d 274 (Fla. 5th DCA 1983), approved, State v. Perez, 449 So. 2d 818 (Fla.1984), and Blanton v. State, 388 [*766] So. 2d 1271 (Fla. 4th DCA 1980), rev. denied, 399 So. 2d 1140 (Fla. 1981), the Brown court concluded that subsections (1) and (2) of section 775.087 each serve a different purpose. Subsection (1) provides…
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Bryant v. State, 546 So. 2d 762 (Fla. 5th DCA 1989)…gravated assault with a deadly weapon (a firearm) from third degree to second degree felonies pursuant to section 775.-087(1), Florida Statutes (1987). The state concedes error based upon Perez v. State, 431 So. 2d 274 (Fla. 5th DCA 1983), approved, 449 So. 2d 818 (Fla.1984) and other cases. The appellant also asserts that court costs of $225.00 were imposed upon him without notice and an opportunity to be heard contrary to Harriel v. State, 520 So. 2d 271 (Fla.1988) and Mays v. State, 519 So. 2d 618 (Fla.1…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gillman v. State, 346 So. 2d 586 (Fla. 1st DCA 1977)
- Perez v. State, 431 So. 2d 274 (Fla. 5th DCA 1983)