DANIEL W. FRUEHWIRTH
v.
STATE OF FLORIDA
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The lowest permissible sentence under Florida Statutes § 921.0024(2) should be imposed only if it exceeds the collective statutory maximum for all convictions on a single scoresheet, not each individual offense's statutory maximum.
[1] Under Florida Statutes § 921.0024(2), the lowest permissible sentence is an individual minimum sentence applicable to each offense, not a collective minimum sentence acro…
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Join FLexlaw to unlock all legal intelligence“pursuant to criminal punishment code, LPS should be imposed only if it exceeds collective statutory maximum, not each individual statutory maximum”
Court's statement of the holding in Gabriel v. State
Fruehwirth was convicted of burglary with assault or battery, felony battery, and false imprisonment. The trial court imposed the lowest permissible s…
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DANIEL W. FRUEHWIRTH,
Appellant,
v. Case No. 5D19-297
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed April 9, 2020
Appeal from the Circuit Court for Volusia County, Matthew M. Foxman, Judge.
James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Kaylee
D.
Tatman, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Appellant, Daniel William Fruehwirth, appeals his sentences for burglary with assault or battery therein, felony battery, and false imprisonment. Appellant argues the trial court erred when it imposed the lowest permissible sentence (LPS) for his felony
2 battery (Count II) and false imprisonment (Count III) convictions because the LPS exceeds the statutory maximum for those offenses. This Court recently addressed the precise issue raised by Appellant in Gabriel v. State, 44 Fla. L. Weekly D2913 (Fla. 5th DCA Dec. 6, 2019) (holding that pursuant to criminal punishment code, LPS should be imposed only if it exceeds collective statutory maximum, not each individual statutory maximum). Because we are bound by this Court’s prior panel decisions, we reverse the sentences imposed on Counts II and III and remand for resentencing consistent with Gabriel. In addition, as this Court did in Gabriel, we certify conflict with Champagne v. State, 269 So. 3d 629 (Fla. 2d DCA 2019), and certify the following question as one of great public importance:
IS THE LOWEST PERMISSIBLE SENTENCE AS DEFINED BY AND
APPLIED
IN SECTION
921.0024(2),
FLORIDA
STATUTES, AN
INDIVIDUAL MINIMUM SENTENCE AND NOT A COLLECTIVE MINIMUM
SENTENCE WHERE THERE ARE MULTIPLE CONVICTIONS SUBJECT
TO SENTENCING ON A SINGLE SCORESHEET?
AFFIRMED in part; REVERSED in part; REMANDED; CONFLICT CERTIFIED and
QUESTION CERTIFIED.
EDWARDS, SASSO and TRAVER, JJ., concur.