JESSIE MONTGOMERY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jessie Montgomery appeals his conviction for lewd or lascivious molestation and a 25-year sentence. The court affirms the judgment and sentence but clarifies that the applicable statute does not impose a minimum mandatory sentence, despite the trial court's conditional language.
Section 775.082(3)(a)(4)(a)(II) does not impose a minimum mandatory sentence. Montgomery's judgment and sentence are affirmed, but the court clarifies that his sentence does not provide for a minimum mandatory term of imprisonment. If any ambiguity exists in the statutory language, it must be construed in favor of the defendant.
[1] A sentence for a violation of section 800.04(5)(b), Florida Statutes, under section 775.082(3)(a)(4)(a)(II), Florida Statutes, does not mandate a minimum term of imprison…
[2] Statutes imposing minimum mandatory sentences typically contain explicit language indicating such a requirement and often restrict eligibility for early release.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The State concedes, and we agree, that Montgomery's sentence is not a minimum mandatory sentence. If the legislature intended to impose a minimum mandatory sentence, the statute would have included specific language to that effect.”
Establishes the core holding that the statute does not impose a minimum mandatory sentence despite the trial court's conditional language.
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Join FLexlaw to unlock all legal intelligenceMontgomery was convicted of lewd or lascivious molestation in violation of section 800.04(5)(b), Florida Statutes. The trial court sentenced him to tw…
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Jessie Montgomery appeals his judgment and sentence for lewd or lascivious molestation in violation of section 800.04(5)(b), Florida Statutes (2008). The trial court sentenced Montgomery to twenty-five years in prison, followed by sex offender probation for the remainder of his life. See § 775.082(3)(a)(4)(a)(II), Fla. Stat. (2008). Both the orally pronounced sentence and the written sentence provide that Montgomery’s sentence is a minimum mandatory sentence “if required” by statute. We affirm Montgomery’s judgment and sentence but write to clarify that section 775.082(3)(a)(4)(a)(II) does not require a minimum mandatory sentence.
Montgomery was sentenced pursuant to section 775.082(3)(a), which provides:
(3) A person who has been convicted of any other designated felony may be punished as follows:
4. a. Except as provided in sub-sub-paragraph b., for a life felony committed on or after September 1, 2005, which is a violation of s. 800.04(5)(b), by:
(I) A term of imprisonment for life; or
(II) A split sentence that is a term of not less than 25 years’ imprisonment and not exceeding life imprisonment, followed by probation or community control for the remainder of the person’s natural life, as provided in s. 948.012(4).
The State concedes, and we agree, that Montgomery’s sentence is not a minimum mandatory sentence. If the legislature intended to impose a minimum mandatory sentence, the statute would have included specific language to that effect. See *189§§ 316.1935(6), Fla. Stat. (2008); 775.087(2) & (3); 784.07(3)(b), Fla. Stat. (2008); 794.0115(7), Fla. Stat. (2008) (providing that a defendant “is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency or conditional medical release under s. 947.149,” prior to serving the minimum sentence). See also § 775.082(9)(b) (“A person sentenced under paragraph (a) shall be released only by expiration of sentence and shall not be eligible for parole, control release, or any form of early release. Any person sentenced under paragraph (a) must serve 100 percent of the court-imposed sentence.”); § 893.135(3), Fla. Stat. (2008) (“A person sentenced to a mandatory minimum term of imprisonment under this section is not eligible for any form of discretionary early release, except pardon or executive clemency or conditional medical release under s. 947.149, prior to serving the mandatory minimum term of imprisonment.”).
Moreover, if there is any ambiguity in the language of section 775.082(3)(a)(4)(a)(II), we must construe it in favor of the defendant. See § 775.021(1). Accordingly, we affirm Montgomery’s judgment and sentence but note that his sentence does not provide for a minimum mandatory term of imprisonment.
Affirmed.
CRENSHAW and MORRIS, JJ., Concur.
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Kemar Rochester v. State, 140 So. 3d 973 (Fla. 2014)…ce is subject to gain time, as the Second District Court of Appeal concluded in the certified conflict case by determining that the statute does not provide for a “mandatory minimum” sentence that must be served day-for-day. See Montgomery v. State, 36 So. 3d 188, 188-89 (Fla. 2d DCA 2010). I disagree with the majority’s decision not to reach this issue despite the Fourth District in Rochester certifying conflict with the Second District in Mont [*977] gomery and the State actually conceding in this case tha…1 / 2
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Kemar Rochester v. State, 95 So. 3d 407 (Fla. 4th DCA 2012)…he general mitigating circumstances for sentencing any felony (except a capital felony) contained in section 921.0026.2 See Scriber, 991 So. 2d at 970; McKendry, 641 So. 2d at 46-47. We recognize that our holding is contrary to Montgomery v. State, 36 So. 3d 188 (Fla. 2d DCA 2010). In Montgomery, the defendant appealed his judgment and sentence for lewd or lascivious molestation in [*411] violation of section, 800.04(5)(b), Florida Statutes (2008). The Second District affirmed his judgment and sentence and…