State of Florida v. Ridge Gabriel

Supreme Court of Florida
____________

No. SC19-2155
____________

STATE OF FLORIDA,
Petitioner,

vs.

RIDGE GABRIEL,
Respondent.

April 8, 2021

POLSTON, J.

We review the Fifth District Court of Appeal’s decision in

Gabriel v. State, 44 Fla. L. Weekly D2913 (Fla. 5th DCA Dec. 6,

2019), in which the Fifth District certified the following question 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?
Id. at D2913. In its decision, the Fifth District also certified conflict

with the decision of the Second District Court of Appeal in

Champagne v. State, 269 So. 3d 629 (Fla. 2d DCA 2019). 1

For the reasons explained below, we answer the certified

question in the affirmative, quash the Fifth District’s decision in

Gabriel, and approve the Second District’s decision in Champagne

to the extent that it is consistent with this opinion.

I. BACKGROUND

Ridge Gabriel was convicted of attempted first-degree murder

with a firearm of a law enforcement officer, resisting an officer with

violence, attempted robbery with a firearm, and aggravated assault

with a firearm. Gabriel, 44 Fla. L. Weekly at D2913. The Fifth

District reversed the attempted first-degree murder conviction,

which was stayed pending the outcome of the appeal. Id. at D2914

n.1. On remand, Gabriel was resentenced for attempted robbery

with a firearm (primary offense), aggravated assault with a firearm

(additional offense), and resisting an officer with violence (additional

offense). Id. at D2913; see also Gabriel v. State, 248 So. 3d 265,

1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

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267 (Fla. 5th DCA 2018). The Criminal Punishment Code (CPC)

Scoresheet indicated the lowest permissible sentence (LPS) was

107.25 months, and the trial court agreed with the State that the

LPS is an individual minimum sentence that must be applied to

each offense before the sentencing court if the LPS exceeds each

individual statutory maximum sentence. Gabriel, 44 Fla. L. Weekly

at D2913. On his second-degree felony of attempted robbery with a

firearm, the trial court sentenced Gabriel to the statutory maximum

sentence of 15 years with a 10-year mandatory minimum because

the LPS of 107.25 months did not exceed the individual statutory

maximum sentence. Id. On his third-degree felony of aggravated

assault with a firearm, the trial court sentenced Gabriel to 107.25

months with a 3-year minimum mandatory because the LPS of

107.25 months exceeded the statutory maximum sentence of 5

years. Id. Similarly, on his third-degree felony of resisting an

officer with violence, the trial court sentenced Gabriel to 107.25

months because the LPS of 107.25 months exceeded the statutory

maximum sentence of 5 years. Id. Due to consecutive sentences,

Gabriel’s sentences totaled approximately 33 years. Id.

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“On appeal, Gabriel argue[d] that his sentences for aggravated

assault with a firearm and resisting an officer with violence are

unlawful because they exceed the statutory maximum for those

offenses.” Id. The Fifth District applied the language in section

921.0024(2), Florida Statutes (2012), which provides that “[t]he

permissible range for sentencing shall be the lowest permissible

sentence up to and including the statutory maximum, as defined in

s. 775.082, for the primary offense and any additional offenses

before the court for sentencing.” Id. The Fifth District also applied

this Court’s decision in Moore v. State, 882 So. 2d 977 (Fla. 2004),

and concluded “that the sentencing range for Gabriel was 107.25

months, the LPS, to twenty-five years, the collective statutory

maximum sentence.” Gabriel, 44 Fla. L. Weekly at D2913. The

Fifth District interpreted this Court’s decision in Moore as standing

for the proposition that “the LPS is the collective total minimum

sentence for all offenses, but each has its own statutory maximum,”

and “[t]he LPS is not the sentence which must be applied to each

offense at sentencing.” Id. (quoting Dennard v. State, 157 So. 3d

1055, 1060 (Fla. 4th DCA 2014) (Warner, J., dissenting)). The Fifth

District explained, “[W]hen applying the provision of section

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921.0024(2), which requires the trial court to impose the LPS if it

exceeds the statutory maximum sentence, the LPS must exceed the

collective statutory maximum, not each individual statutory

maximum, before such exception is triggered.” Id. The Fifth

District further explained:

In this case, the statutory maximum sentence is
twenty-five years–fifteen plus five plus five. Because the
LPS does not exceed twenty-five years, the trial court was
not required to impose the LPS, and the sentences
should have been capped by their individual statutory
maximum sentences. Consequently, Gabriel’s sentences
for aggravated assault with a firearm and resisting an
officer with violence are illegal because they exceed the
statutory maximum sentence in contravention of section
921.0024(2).

Id.

Ultimately, the Fifth District reversed the trial court and

certified that its decision conflicts with the Second District’s

decision in Champagne. In Champagne, the defendant “was

convicted of robbery with a firearm, a first-degree felony punishable

by life in prison, and false imprisonment, a third-degree felony.”

269 So. 3d at 630 (citation omitted). The LPS was 240.15 months,

and the trial court sentenced the defendant to a life sentence on the

robbery count and “to twenty years (240 months) in prison on the

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false imprisonment count,” an additional offense. Id. at 631. The

trial court ruled that the LPS is an individual minimum sentence

that applies to each offense even though the LPS did not exceed the

statutory maximum sentence for the primary offense, which was a

life sentence. See id.

On appeal, the defendant did not challenge the life sentence

imposed on his primary offense but argued that the 240-month

sentence imposed on his conviction for false imprisonment was

illegal because it exceeded the 5-year statutory maximum sentence

for that offense. Id. at 630. The Second District examined the

statutory language in section 921.0024(2) and existing precedent

and “conclude[d] that the LPS is an individual minimum sentence

which must be imposed when the LPS exceeds the statutory

maximum sentence for each offense and therefore [the defendant]’s

sentence is legal.” Id. at 630. Accordingly, the Second District

affirmed the trial court and certified the same question of great

public importance as the Fifth District’s decision in Gabriel.

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II. ANALYSIS

The State argues that, based on the plain language of section

921.0024(2), the LPS is an individual minimum sentence, and the

trial court properly sentenced Gabriel to 107.25 months (the LPS)

on both of his third-degree felony convictions because the LPS

exceeded the 5-year individual statutory maximum sentence for

each of his third-degree felony convictions. Gabriel counters that

the LPS is a collective minimum sentence, and section 921.0024(2)

is ambiguous with respect to the maximum permissible punishment

for additional offenses when the LPS exceeds their respective

statutory maximum sentences.2 We agree with the State and

answer the certified question in the affirmative, quash the Fifth

District’s decision in Gabriel, and approve the Second District’s

decision in Champagne to the extent it is consistent with this

opinion. Based on our analysis of the text of the statute, we

conclude that under section 921.0024(2), the LPS is an individual

2. The certified question is one of statutory interpretation,
which we review de novo. Richards v. State, 288 So. 3d 574, 575
(Fla. 2020).

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minimum sentence where there are multiple convictions subject to

sentencing on a single scoresheet.

A court’s determination of the meaning of a statute begins

with the language of the statute. See Lopez v. Hall, 233 So. 3d 451,

453 (Fla. 2018) (citing Holly v. Auld, 450 So. 2d 217, 219 (Fla.

1984)). If that language is clear, the statute is given its plain

meaning, and the court does “not look behind the statute’s plain

language for legislative intent or resort to rules of statutory

construction.” City of Parker v. State, 992 So. 2d 171, 176 (Fla.

2008) (quoting Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64

(Fla. 2005)).

A. Section 921.0024(2), Florida Statutes

Section 921.0024(2) provides:

(2) The lowest permissible sentence is the minimum
sentence that may be imposed by the trial court, absent a
valid reason for departure. The lowest permissible
sentence is any nonstate prison sanction in which the
total sentence points equals or is less than 44 points,
unless the court determines within its discretion that a
prison sentence, which may be up to the statutory
maximums for the offenses committed, is appropriate.
When the total sentence points exceeds 44 points, the
lowest permissible sentence in prison months shall be
calculated by subtracting 28 points from the total
sentence points and decreasing the remaining total by 25
percent. The total sentence points shall be calculated

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only as a means of determining the lowest permissible
sentence. The permissible range for sentencing shall be
the lowest permissible sentence up to and including the
statutory maximum, as defined in s. 775.082, for the
primary offense and any additional offenses before the
court for sentencing. The sentencing court may impose
such sentences concurrently or consecutively. However,
any sentence to state prison must exceed 1 year. If the
lowest permissible sentence under the code exceeds the
statutory maximum sentence as provided in s. 775.082,
the sentence required by the code must be imposed. If
the total sentence points are greater than or equal to
363, the court may sentence the offender to life
imprisonment. An offender sentenced to life
imprisonment under this section is not eligible for any
form of discretionary early release, except executive
clemency or conditional medical release under s.
947.149.

§ 921.0024(2), Fla. Stat. (2012).

The first sentence of the statute specifies that the LPS is a

minimum sentence that a trial court may impose, absent a basis for

departure. The second through the fourth sentences of the statute

dictate how the LPS is calculated or scored. This calculation is

done in a manner that considers the entirety of a defendant’s

criminal background and history. 3 The fifth sentence of the statute

3. According to Florida Rule of Criminal Procedure
3.704(d)(25), “total sentence points” are the subtotal sentence
points. Rule 3.704(d)(18) further defines “subtotal sentence points”
as “the sum of the primary offense points, the total additional
offense points, the total victim injury points, the total prior record

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then provides a permissible “range” for sentencing, stating that

“[t]he permissible range for sentencing shall be the lowest

permissible sentence up to and including the statutory maximum,

as defined in s. 775.082, for the primary offense and any additional

offenses before the court for sentencing.” Notably, this fifth

sentence of the statute references both the primary offense and

additional offenses. 4 The sixth sentence of the statute provides for

concurrent or consecutive sentences, and the seventh sentence

provides that any state prison sentence must exceed 1 year.

Importantly, the eighth sentence of the statute (the LPS exception)

provides, “[i]f the lowest permissible sentence under the code

points, any legal status points, community sanction points, prior
serious felony points, prior capital felony points, and points for
possession of a firearm or semiautomatic weapon.”

4. Section 921.0021(4), Florida Statutes (2012), defines
“primary offense” as “the offense at conviction pending before the
court for sentencing for which the total sentence points recommend
a sanction that is as severe as, or more severe than, the sanction
recommended for any other offense committed by the offender and
pending before the court at sentencing” and explains that “[o]nly
one count of one offense before the court for sentencing shall be
classified as the primary offense.” Section 921.0021(1) defines
“additional offense” as “any offense other than the primary offense
for which an offender is convicted and which is pending before the
court for sentencing at the time of the primary offense.”

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exceeds the statutory maximum sentence as provided in s. 775.082,

the sentence required by the code must be imposed.” The last two

sentences of the statute address a sentence for life imprisonment.

We reject Gabriel’s argument that section 921.0024(2) is

ambiguous with respect to the maximum permissible sentence for

additional offenses when the LPS exceeds their respective statutory

maximum sentences. First, section 921.0024(2) specifies that the

LPS is the minimum sentence that a trial court may impose, absent

a basis for departure, and it must be imposed where it exceeds the

statutory maximum sentence. While the fifth sentence of section

921.0024(2) outlining the permissible range for sentencing

expressly includes the language “for the primary offense and any

additional offenses before the court for sentencing,” language which

could contemplate a “collective” approach, the LPS exception does

not. Compare (“The permissible range for sentencing shall be the

lowest permissible sentence up to and including the statutory

maximum, as defined in s. 775.082, for the primary offense and any

additional offenses before the court for sentencing.”) with (“If the

lowest permissible sentence under the code exceeds the statutory

maximum sentence as provided in s. 775.082, the sentence

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required by the code must be imposed.”). In other words, the fifth

sentence of the statute addressing the sentencing range sets forth a

general sentencing standard. However, the LPS exception in the

eighth sentence is an exception to this sentencing range that

increases the maximum sentence and applies regardless of whether

the felony is the primary or an additional offense. Accordingly, the

absence of the terms “for the primary offense and any additional

offenses before the court for sentencing” is significant. See Leisure

Resorts, Inc. v. Frank J. Rooney, Inc., 654 So. 2d 911, 914 (Fla.

1995) (“When the legislature has used a term, as it has here, in one

section of the statute but omits it in another section of the same

statute, we will not imply it where it has been excluded.”).

Further, the second sentence of section 921.0024(2) includes

the language “up to the statutory maximums for the offenses

committed,” which the Legislature also could have included in the

eighth sentence addressing the LPS exception but did not. Compare

(“The lowest permissible sentence is any nonstate prison sanction

in which the total sentence points equals or is less than 44 points,

unless the court determines within its discretion that a prison

sentence, which may be up to the statutory maximums for the

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offenses committed, is appropriate.”) with (“If the lowest permissible

sentence under the code exceeds the statutory maximum sentence

as provided in s. 775.082, the sentence required by the code must

be imposed.”). This Court may not “rewrite the statute or ignore the

words chosen by the Legislature so as to expand its terms.”

Knowles v. Beverly Enters.-Fla., Inc., 898 So. 2d 1, 7 (Fla. 2004).

Contrary to the Fifth District’s decision in Gabriel, nothing in the

plain language of section 921.0024(2) limits the LPS to be imposed

only if it exceeds the statutory maximum sentence for the primary

offense or the collective statutory maximum sentences for all of the

offenses before the court for sentencing.

Additionally, the “statutory maximum” referenced in the

sentence addressing the permissible sentencing range and the

“statutory maximum sentence” referenced in the sentence

addressing the LPS exception both refer to section 775.082, Florida

Statutes (2012). Section 775.082 is titled “Penalties; applicability of

sentencing structures; mandatory minimum sentences for certain

reoffenders previously released from prison.” Section 775.082 sets

forth the statutory maximum sentences for the degrees of felonies.

Specific to Gabriel’s convictions in this case, section 775.082(3)(c)-

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(d) provide that “[a] person who has been convicted of any other

designated felony may be punished . . . [f]or a felony of the second

degree, by a term of imprisonment not exceeding 15 years . . . [and]

[f]or a felony of the third degree, by a term of imprisonment not

exceeding 5 years.” Nothing in the plain language of section

921.0024(2) or section 775.082 refers to a collective statutory

maximum. Pursuant to section 921.0024(2), the LPS exception

increases the maximum for sentencing purposes, and the

Legislature has determined in a very certain way that a sentence

must be increased above the statutory maximum sentence when

exceeded by the LPS. In fact, the plain language of the LPS

exception only requires the LPS to exceed the statutory maximum

sentence as provided in section 775.082, and section 775.082 sets

forth individual statutory maximum sentences for each degree of

felony. When read as a whole, if the LPS exceeds the statutory

maximum penalty in section 775.082, the LPS is both the minimum

sentence and the maximum penalty for that offense. See Forsythe

v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455

(Fla. 1992) (“[A]ll parts of a statute must be read together in order to

achieve a consistent whole.”).

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Further, the fifth sentence, providing that “[t]he permissible

range for sentencing shall be the lowest permissible sentence up to

and including the statutory maximum, as defined in s. 775.082, for

the primary offense and any additional offenses before the court for

sentencing,” is followed by the sixth sentence, providing that “[t]he

sentencing court may impose such sentences concurrently or

consecutively.” (Emphasis added.) When read together, the plain

language provides that a trial court may impose a sentence for each

individual offense before the court and may sentence an offender up

to the statutory maximum for any offense before the court for

sentencing. See also § 921.002(1)(g), Fla. Stat. (2012) (“The trial

court judge may impose a sentence up to and including the

statutory maximum for any offense, including an offense that is

before the court due to a violation of probation or community

control.”). Therefore, to determine whether to increase the

maximum sentence based on the application of the LPS exception,

the trial court must look to each individual offense before the court

for sentencing.

Accordingly, we answer the certified question in the affirmative

and conclude that, under section 921.0024(2), the LPS is an

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individual minimum sentence where there are multiple convictions

subject to sentencing on a single scoresheet.

B. This Court’s Precedent

In Butler v. State, 838 So. 2d 554, 555 (Fla. 2003), the

defendant was sentenced to 75.6 months in prison, the LPS, on his

possession of cocaine conviction and filed a postconviction motion

“alleging that his sentence of 75.6 months exceeded the statutory

maximum of five years for the third-degree felony of cocaine

possession.” The district court affirmed the trial court’s denial of

the defendant’s postconviction motion and agreed that the sentence

was legal but questioned a potential statutory conflict between

section 921.002(1)(g), Florida Statutes (Supp. 1998) (providing that

a court may sentence an offender up to the statutory maximum for

any offense) and section 921.0024(2), Florida Statutes (Supp. 1998)

(providing that a court must impose the LPS where it exceeds the

statutory maximum sentence). Id. We concluded that the

defendant’s sentence was legal and that sections 921.002(1)(g) and

921.0024(2) were not in conflict and could be harmonized. Id. at

555-56. Specifically, we explained that section 921.002(1)(g)

applied to general sentencing, while section 921.0024(2) is an

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exception to the general sentencing provisions. Id. at 556. In doing

so, we held that “when section 921.0024(2) applies so that the

statutory maximum sentence as provided in section 775.082,

Florida Statutes (2002), is exceeded by the [LPS] under the code,

the [LPS] becomes the maximum sentence which the trial judge can

impose.” Id.

Then, in Moore v. State, 882 So. 2d 977, 978, 980 (Fla. 2004),

this Court addressed whether Tripp 5 credit must be awarded to

probation violators sentenced under the CPC and concluded that

Tripp and its progeny do not apply to CPC sentences. In the

analysis comparing the prior sentencing guidelines with the CPC,

we explained:

Under the prior guidelines, the individual offenses
were considered interrelated because together they were
used to establish the minimum and maximum sentence
that could be imposed. To the contrary, however, under
the CPC, together the individual offenses only establish
the minimum sentence that may be imposed; a single
maximum sentence is not established—each individual
offense has its own maximum sentence, namely the
statutory maximum for that offense.

5. Tripp v. State, 622 So. 2d 941, 942 (Fla. 1993) (“[I]f a trial
court imposes a term of probation on one offense consecutive to a
sentence of incarceration on another offense, credit for time served
on the first offense must be awarded on the sentence imposed after
revocation of probation on the second offense.”).

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Moore, 882 So. 2d at 985.

Nothing in this Court’s decisions in Butler or Moore contradicts

the plain language of section 921.0024(2). Gabriel argues that this

Court’s statement in Moore that together the individual offenses

only establish the minimum sentence that may be imposed

supports his argument that the LPS is a collective minimum

sentence. However, this statement is consistent with the fourth

sentence in section 921.0024(2), which provides that “[t]he total

sentence points shall be calculated only as a means of determining

the lowest permissible sentence.” As previously explained,

pursuant to rule 3.704(d)(18), the LPS calculation takes the entirety

of the defendant’s criminal history into consideration, including

“the sum of the primary offense points, the total additional offense

points, the total victim injury points, the total prior record points,

any legal status points, community sanction points, prior serious

felony points, prior capital felony points, and points for possession

of a firearm or semiautomatic weapon.” Further, in Moore, we

explained that “[t]he maximum sentence for each offense is

determined solely by the statutory maximum for the individual

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offenses.” 882 So. 2d at 985 (emphasis added). We also explained

that multiple offenses are no longer interrelated and that, under the

CPC, there is not a single sentencing range because each offense

has its own statutory maximum sentence such that the range could

differ for each offense.

C. The Conflict Cases

In the Fifth District’s decision in Gabriel, based on its own

interpretation of section 921.0024(2) and this Court’s decision in

Moore, the Fifth District reached a conclusion contrary to the plain

language of the statute. See Gabriel, 44 Fla. L. Weekly at D2913.

In Gabriel, the Fifth District concluded that the LPS is a collective

minimum sentence that should only be applied if the LPS exceeds

the collective statutory maximum sentences for all of the offenses

before the court for sentencing. Id. For purposes of our analysis,

the following chart summarizes Gabriel’s sentencing as to each

conviction:

Statutory
Conviction Felony Maximum Trial Court
Sentence Sentence
Attempted Second 15 years 15 years with
robbery with degree 10-year
a firearm minimum
mandatory

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(primary
offense)
Aggravated Third degree 5 years 107.25
assault with months with
a firearm 3-year
(additional minimum
offense) mandatory
Resisting an Third degree 5 years 107.25
officer with months
violence
(additional
offense)
Statutory Maximum Sentence Total = 25 years
Total Sentence (consecutive) = approximately 33 years
Lowest Permissible Sentence = 107.25 months or 8.93 years

The Fifth District concluded that “the sentencing range for

Gabriel was 107.25 months, the LPS, to twenty-five years, the

collective statutory maximum sentence.” Id. The Fifth District

explained, “when applying the provision of section 921.0024(2),

which requires the trial court to impose the LPS if it exceeds the

statutory maximum sentence, the LPS must exceed the collective

statutory maximum, not each individual statutory maximum, before

such exception is triggered.” Id. The Fifth District further

explained:

In this case, the statutory maximum sentence is
twenty-five years—fifteen plus five plus five. Because the
LPS does not exceed twenty-five years, the trial court was
not required to impose the LPS, and the sentences

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should have been capped by their individual statutory
maximum sentences. Consequently, Gabriel’s sentences
for aggravated assault with a firearm and resisting an
officer with violence are illegal because they exceed the
statutory maximum sentence in contravention of section
921.0024(2).

Id. 6 Contrary to the Fifth District’s decision in Gabriel, the plain

language of section 921.0024(2) does not require the LPS to be

imposed only if it exceeds the statutory maximum sentence for the

primarily scored offense or the collective statutory maximum

sentences.

We conclude that the result reached in the Second District’s

decision in Champagne is supported by the text of section

6. In the present case, in the section titled “Sentence
Computation,” Gabriel’s CPC Scoresheet listed the “maximum
sentence in years” as 25 years, the collective statutory maximum
for the 3 offenses before the court for sentencing. Where there are
multiple convictions subject to sentencing on a single scoresheet,
this single space only allows for entry of the collective statutory
maximum sentence total and does not contemplate the trial court’s
individual consideration of each offense’s statutory maximum
sentence for purposes of determining whether it is exceeded by the
LPS. The single space also suggests a collective maximum sentence
and a sentencing range between the LPS and the collective statutory
maximum sentence when there are multiple convictions subject to
sentencing. In light of this opinion, we will refer reconsideration of
the referenced section of the CPC Scoresheet contained in Florida
Rule of Criminal Procedure 3.992 to the Supreme Court Criminal
Court Steering Committee.

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921.0024(2) and our decisions in Butler and Moore. In Champagne,

the Second District concluded “that the LPS is an individual

minimum sentence which must be imposed when the LPS exceeds

the statutory maximum sentence for each offense.” 269 So. 3d at

630. Specifically, the Second District explained:

Based on the language of section 921.0024(2) and
bounded by the language of Butler and Moore, we
conclude that the LPS is an individual minimum
sentence which applies to each felony at sentencing for
which the LPS exceeds that felony’s statutory maximum
sentence, regardless of whether the felony is the primary
or an additional offense. The alternative interpretation,
that the LPS is a collective minimum sentence, while
seemingly reasonable, is not premised on the statutory
language or clearly reconcilable with Butler and Moore.
....
. . . Moore clearly holds that under the CPC there is
not a single sentencing range; rather, each offense has its
own statutory maximum sentence such that the range
may differ for each offense. But where the LPS exceeds
the offense’s statutory maximum sentence, there is no
range; the LPS must be imposed.

Id. at 636-37 (footnote omitted) (citations omitted).

Accordingly, because the Second District’s decision in

Champagne is consistent with the plain language of section

921.0024(2), we quash the Fifth District’s decision in Gabriel and

approve the Second District’s decision in Champagne to the extent

it is consistent with this opinion.

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III. CONCLUSION

For the above reasons, we answer the certified question in the

affirmative, quash the Fifth District’s decision in Gabriel, and

approve the Second District’s decision in the conflict case of

Champagne to the extent it is consistent with this opinion. In doing

so, we conclude that under section 921.0024(2), the LPS is an

individual minimum sentence where there are multiple convictions

subject to sentencing on a single scoresheet.

It is so ordered.

CANADY, C.J., and LAWSON, MUÑIZ, COURIEL, and GROSSHANS,
JJ., concur.
LABARGA, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

LABARGA, J., dissenting.

Because I believe that the lowest permissible sentence (LPS) is

a collective minimum sentence that applies to the cumulative total

of all pending charges as opposed to each individual charge, I would

answer the certified question in the negative, and approve of the

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Fifth District Court of Appeal’s opinion in Gabriel 7 and disapprove

of the Second District Court of Appeal’s opinion in Champagne. 8

Under the Criminal Punishment Code, multiple charged

offenses are considered collectively to establish a minimum

sentence, but they are considered individually when determining

the maximum punishment for each offense. Moore v. State, 882 So.

2d 977, 985 (Fla. 2004). I agree with Judge Warner’s analysis: “As I

understand Moore, the LPS is the collective total minimum sentence

for all offenses, but each has its own statutory maximum. The LPS

is not the sentence which must be applied to each offense at

sentencing.” Dennard v. State, 157 So. 3d 1055, 1060 (Fla. 4th

DCA 2014) (Warner, J., dissenting).

As observed by Judge Warner, applying the collective LPS to

each individual offense would, in some instances, allow a judge to

run the offenses consecutively to result in a sentence that is above

the collective statutory maximum for the combined offenses, despite

the LPS being below the collective statutory maximum. Id. at 1061.

7. Gabriel v. State, 44 Fla. L. Weekly D2913 (Fla. 5th DCA
Dec. 6, 2019).

8. Champagne v. State, 269 So. 3d 629 (Fla. 2d DCA 2019).

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This concern is not merely hypothetical. Indeed, the Fifth

District recognized that Gabriel’s case presented the very scenario

about which Judge Warner was concerned. See Gabriel, 44 Fla. L.

Weekly at D2913. Because the LPS was applied to each individual

offense and the sentences were imposed to run consecutively,

Gabriel’s sentence exceeded the combined statutory maximum of

the offenses despite the fact that the LPS did not exceed the

combined statutory maximum sentence. I do not believe that the

Legislature intended this result. Respectfully, I dissent.

Application for Review of the Decision of the District Court of Appeal
– Certified Great Public Importance/Certified Direct Conflict of
Decisions

Fifth District - Case No. 5D18-3264

(Orange County)

Ashley Moody, Attorney General, Tallahassee, Florida, Wesley Heidt,
Bureau Chief, and Richard A. Pallas, Jr., Assistant Attorney
General, Daytona Beach, Florida,

for Petitioner

James S. Purdy, Public Defender, Kevin R. Holtz and Scott G.
Hubbard, Assistant Public Defenders, Seventh Judicial Circuit,
Daytona Beach, Florida,

for Respondent

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