GREGORY JAMES PAPPAS

v.

STATE OF FLORIDA

In 2007, Appellant fired a flare gun at a vehicle occupied by a woman and her daughter. The State charged him with shooting at, into, or within an occupied vehicle and aggravated assault with actual possession and discharge of a firearm. A jury convicted him as charged and made specific findings that he possessed a firearm and discharged it during the course of the offense.

The trial court imposed a twenty-year minimum mandatory sentence as an enhanced penalty under section 775.087(2), Florida Statutes (2007), the 10-20-Life statute, for discharging a firearm during the aggravated assault.

On February¹, 2021, Appellant filed the instant postconviction motion claiming the twenty-year mandatory minimum sentence for aggravated assault was illegal because aggravated assault was not an enumerated offense that qualified for enhanced penalties for discharging a firearm under section 775.087(2).1 Without the enhancement for discharging a firearm, the maximum sentence Appellant could have lawfully received for aggravated assault was five years’ imprisonment. Appellant’s arguments rely on amendments to the 10-20-Life statute and the “Savings Clause” under article X, section 9 of the Florida Constitution. In 2016, the Legislature amended the 10-20-Life statute to remove aggravated assault from the list of enumerated offenses.

Appellant claimed that the amendment applied retroactively to his sentence. In 2018, the “Savings Clause”

was amended to allow the Legislature to apply amendments to criminal statutes retroactively.

Appellant argued that he timely raised the claim in the instant motion on February¹, 2021. The fundamental constitutional right asserted was not established within the two-year period generally applicable to motions for postconviction relief under rule 3.850. See Fla. R. Crim. P. 3.850(b)(2). The fundamental constitutional right became retroactive on May 9, 2018, when the Legislature amended the Savings Clause. Art. X, § 9, Fla. Const. Appellant did not file within the two years following this amendment due to excusable neglect. Appellant had until May 9, 2020, to timely bring his motion but was prevented from doing so by exigencies caused by COVID-19. The postconviction court summarily denied relief finding the motion did not meet rule 3.850’s pleading requirements and that Appellant’s sentence was not illegal.

On appeal, Appellant reiterates his argument that his sentence is illegal, and he argues that he has shown that the amendment to section 775.087(2) satisfied all the requirements for retroactive application.

Moreover, he argues that the magnitude of the change—removal of aggravated assault from the list of felonies that may be enhanced—mandates retroactive application as a matter of law, notwithstanding legislative intent to the contrary as expressed in section 775.022(4).

He also argues that his sentence, and the sentences of all similarly situated defendants, are disproportionate to the sentences of those sentenced for aggravated assault after the 2016 amendment. Appellant is not entitled to relief. The 2016 amendment to the 10-20-Life statute is not retroactive. See Sheaffers v. State, 243 So. 3d 518, 519–20 (Fla. 1st DCA 2018) (rejecting argument that 2016 amendment to section 775.087(2) applied to resentencing where offenses occurred before effective date of amendment); see also Stapleton v. State, 286 So. 3d 837, 839 (Fla. 5th DCA 2019) (“[T]he Legislature did not attempt to apply section 775.087 retroactively.”); State v. Reininger, 254 So. 3d 996, 999 (Fla. 4th DCA 2018) (reversing sentence where trial court improperly applied amended section 775.087(2) and noting “it is well-settled that retroactive application of a sentencing statute is unconstitutional”); Wright v. State, 225 So. 3d 914, 915–16 (Fla. 1st DCA 2017) (Wolf, J., concurring) (“Based upon appellant’s bad timing, the only relief that may be accorded to him from this inappropriate sentence is through the Governor and Cabinet.”).

Appellant also concedes that the Savings Clause precluded the Legislature from retroactively applying the 2016 amendment to section 775.087(2).

Furthermore, the 2018 amendment to the Savings Clause does not require retroactive application of the 2016 amendment to the 10-20-Life statute to Appellant and similarly situated defendants. “[U]nder the rules of statutory construction, there must be a clear expression of intended retrospective application.” Orme v. State, 25 So. 3d 536, 547 (Fla. 2009). The Legislature has not made the 2016 amended section 775.087(2) retroactive.² As Appellant correctly pointed out, the Savings Clause as amended and effective January 8, 2019, repealed the constitutional prohibition against applying a substantively amended criminal statute retroactively. Jimenez v. Jones, 261 So. 3d 502, 504 (Fla. 2018).

However, that repeal did not “mandate[] affirmative application of the action previously prohibited,” id. at 503, and “the Legislature did not attempt to apply section 775.087 retroactively.” Stapleton, 286 So. 3d at 839. Rather, section 775.022, enacted on June 7, 2019, provides: (3) Except as expressly provided in an act of the Legislature or as provided in subsections (4) and (5), the reenactment or amendment of a criminal statute

operates prospectively and does not affect or abate any of the following: (a) The prior operation of the statute or a prosecution or enforcement thereunder. (b) A violation of the statute based on any act or omission occurring before the effective date of the act. (c) A prior penalty, prior forfeiture, or prior punishment incurred or imposed under the statute. § 775.022(3), Fla. Stat. (2019). Subsections (4) and (5) provide exceptions for retroactive application where the penalty, forfeiture, or punishment has not yet been imposed, and where a judgment and sentence has not yet become final. See Dean v. State, 303 So. 3d 257, 259 (Fla. 5th DCA 2020) (distinguishing Stapleton).

In light of section 775.022(3)’s expression of legislative intent, Appellant’s argument for retroactive application of section 775.087(2) fails. Appellant’s remaining arguments, that the firearm enhancement is unconstitutionally disproportionate as applied and that such application violates equal protection, are meritless. The claims are untimely if treated as filed under rule 3.850 as Appellant did not raise them within two years of his convictions and sentences becoming final, within two years of the sentence-reducing amendment, or within two years of the effective date of the constitutional amendment, and they are not based on a fundamental constitutional right that has been held to apply retroactively. See Fla. R. Crim. P. 3.850(b)(2); cf. Charlemagne v. State, 168 So. 3d 245, 245 (Fla. 5th DCA 2015) (rejecting unpreserved as applied constitutional challenge to 10-20-Life statute without prejudice to seeking postconviction relief).

A rule 3.800(a) motion to correct an illegal sentence is intended to address cases in which the sentence imposed involves a penalty not authorized by law. Bover v. State, 797 So. 2d 1246, 1249 (Fla. 2001) (citing Judge v. State, 596 So. 2d 73, 77 (Fla. 2d DCA 1991)).

Appellant’s claim that his sentence is disproportionate to other defendants’ sentences imposed for the same offense is not cognizable in a rule 3.800(a) motion. Shivers v. State, 96 So. 3d 1039, 1040 (Fla. 4th DCA 2012) (“Whether a defendant’s sentence is disproportionate as compared to his co-defendant’s sentence is not cognizable in a rule 3.800(a) motion.”).

Appellant’s claim that his sentence violates equal protection is not cognizable in a 3.800(a) motion because it challenges the enhancement statute rather than his sentence and is thus not a proper claim in a motion to correct an illegal sentence. See State v. Arrington, 95 So. 3d 324, 326 (Fla. 4th DCA 2012) (“The test to determine if a statute satisfies the Equal Protection Clause is ‘whether it rests on some difference bearing a reasonable relation to the object of the legislation.’”); Delancy v. Tucker, 88 So. 3d 1036, 1037 (Fla. 1st DCA 2012) (“A direct appeal is the proper avenue for a facial constitutional challenge to a criminal statute.”).

Appellant’s arguments regarding proportionality and equal protection would apply any time the Legislature reduces the maximum punishment for an offense and declines to apply the amendment retroactively; as such, these arguments merely seek to have the 2016 amended statute applied retroactively. On the merits, “in order for a prison sentence to constitute cruel and unusual punishment solely because of its length, the sentence must be grossly disproportionate to the crime.” Andrews v. State, 82 So. 3d 979, 984 (Fla. 1st DCA 2011) (citing Adaway v. State, 902 So. 2d 746, 750 (Fla. 2005)).

Sentences imposed under the 10-20-Life statute are not grossly disproportionate. See Wiley v. State, 125 So. 3d 235, 240 (Fla. 4th DCA 2013) (upholding mandatory life sentence for accidental discharge of firearm during commission of third-degree murder).

Where this threshold requirement is not met, any kind of comparative analysis is unnecessary. See Adaway, 902 So. 2d at 749–50. MAKAR and NORDBY, JJ., concur. _____________________________