CopyCited 80 times | Published | Supreme Court of Florida | 1998 WL 303859
...[10] See Yates v. United States,
354 U.S. 298,
77 S.Ct. 1064,
1 L.Ed.2d 1356 (1957) (reversing general guilty verdict for conspiracy where one of the possible bases for conviction was legally inadequate because of a statutory time bar). [11] As provided in section
775.0823(1), Florida Statutes (1991), the penalty for the first-degree murder of a law enforcement officer, which "arises out of or in the scope of the officer's duty as a law enforcement officer," is life imprisonment without eligibility for release, if the death sentence is not imposed....
...penalty phase issues (issues 8, 9, and 11-13). [14] As explained in footnote 11, supra, if the death sentence is not imposed, the penalty for first-degree murder of a law enforcement officer is life imprisonment without eligibility for release. See § 775.0823(1), Fla....
CopyCited 75 times | Published | Supreme Court of Florida | 17 Fla. L. Weekly Supp. 400, 1992 Fla. LEXIS 1220, 1992 WL 148230
...dant. Note to When the victim is a law enforcement officer, correctional Judge officer, state attorney, assistant state attorney, justice, or judge, "eligibility for release" should be inserted in place of "possibility of parole for 25 years." See F.S. 775.0823....
...ears. Note to When the victim is a law enforcement officer, correctional Judge officer, state attorney, assistant state attorney, justice, or judge, "eligibility for release" should be inserted in place of "possibility of parole for 25 years." See F.S. 775.0823....
...ears. Note to When the victim is a law enforcement officer, correctional Judge officer, state attorney, assistant state attorney, justice, or judge, "eligibility for release" should be inserted in place of "possibility of parole for 25 years." See F.S. 775.0823....
...When you have reached an advisory sentence in conformity with these instructions, that form of recommendation should be signed by your foremanperson and returned to the court. Explanation of amendment: This instruction begins on page 77 of the manual. The Note to Judge is added to bring F.S. 775.0823 to the court's attention in appropriate cases....
CopyCited 49 times | Published | Supreme Court of Florida | 1995 WL 555298
...death or life without parole Second-degree murder ........... imprisonment not exceeding 30 years, with a 25 year mandatory minimum term Third-degree murder ............ imprisonment not exceeding 15 years, with a 15 year mandatory minimum term See §§
775.082,
775.0823,
782.04, Fla....
...Statutes, as a rule, "will not be interpreted so as to yield an absurd result." Williams v. State,
492 So.2d 1051, 1054 (Fla. 1986). The legislature unquestionably intends to give law enforcement officers the greatest possible protection. See, e.g., Ch. 89-100, § 2(1), Laws of Fla. (enacting section
775.0823) ("[L]aw enforcement ......
CopyCited 44 times | Published | Supreme Court of Florida | 1999 WL 92234
...titutes cruel and unusual punishment under the United States or Florida constitutions. [6] If a death sentence is not imposed, the penalty for first-degree murder of a law enforcement officer is life imprisonment without eligibility for release. See § 775.0823(1), Fla....
CopyCited 38 times | Published | Supreme Court of Florida | 1997 WL 311858
...[3] Even if resort to extrinsic aids were required in order to interpret this subdivision, the majority fails to address the significance of the fact that in 1995, the legislature removed this subdivision from section
784.07(3), Florida Statutes (1993), and reenacted this statute as section
775.0823, Florida Statutes (1995). See ch. 95-184, § 17, Laws of Fla. Section
775.0823, Florida Statutes, provides: Any provision of law to the contrary notwithstanding, the Legislature does hereby provide for an increase and certainty of penalty for any person convicted of a violent offense against any law enforcement......
...When the legislature reenacted this statute just one year after the Fifth District issued its opinion in Grinage, it was aware of the then existing conflict in respect to the construction of the statute between Grinage and Carpentier. By reenacting this statute under *695 section
775.0823, the legislature resolved this conflict in favor of the interpretation given in Carpentier. The majority should honor the legislature's clear expression on this question. Furthermore, the majority should state whether its analysis is applicable to section
775.0823, Florida Statutes (1995), since its reasoning is dependent upon the knowledge element of section
784.07(2), Florida Statutes (1993)....
CopyCited 23 times | Published | Supreme Court of Florida | 1998 WL 306613
...Based on the single applicable aggravator and the considerable mitigation in this case, we find that death is disproportionate. We therefore affirm the judgment of guilt but reverse Hardy's death sentence and remand for the entry of a sentence of life imprisonment without eligibility for release pursuant to section 775.0823, Florida Statutes (1991)....
CopyCited 9 times | Published | Supreme Court of Florida | 1992 WL 246494
...The requisite findings of the court are set forth in a separate order or stated on the record in open court. Law Enforcement Protection Act ____ It is further ordered that the defendant shall serve a minimum of _______ years before release in accordance with section 775.0823, Florida Statutes....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 1996 WL 668423
...law enforcement officer, is applicable only to offenses committed on or after October 1, 1995, and appellant's offense was committed on March 27, 1995. See Fla. R.Crim.P. 3.703(d)(22) (1995) (providing for 1.5 enhancement multiplier for violation of section 775.0823(10), Florida Statutes, occurring after October 1, 1995which statute encompasses aggravated assault on law enforcement officer); cf. Fla.R.Crim.P. 3.702(d)(14) (1995) (which does not provide enhancement multiplier for violation of section 775.0823(10))....
CopyCited 8 times | Published | Supreme Court of Florida | 1996 WL 268004
...tted. Note to Judge When the victim is a law enforcement officer, correctional officer, state attorney, assistant state attorney, justice, or judge, "eligibility for release" should be inserted in place of "possibility of parole for 25 years." See F.S. 775.0823....
...ears. Note to Judge When the victim is a law enforcement officer, correctional officer, state attorney, assistant state attorney, justice, or judge, "eligibility for release" should be inserted in place of "possibility of parole for 25 years." See F.S. 775.0823....
...ears. Note to Judge When the victim is a law enforcement officer, correctional officer, state attorney, assistant state attorney, justice, or judge, "eligibility for release" should be inserted in place of "possibility of parole for 25 years." See F.S. 775.0823....
CopyCited 7 times | Published | Supreme Court of Florida | 34 Fla. L. Weekly Supp. 629, 2009 Fla. LEXIS 1948, 34 Fla. L. Weekly Fed. S 629
...The requisite findings of the court are set forth in a separate order or stated on the record in open court. Law Enforcement Protection Act ____ It is further ordered that the defendant shall serve a minimum of ____ years before release in accordance with section 775.0823, Florida Statutes....
CopyCited 7 times | Published | Supreme Court of Florida | 2013 WL 3214434
...This testimony was relevant and necessary to establish that the officers were lawfully performing their duties at the time the crime occurred, which is.a required element of aggravated battery on a law enforcement officer — a crime for which Wheeler was being tried. § 775.0823, Fla....
CopyCited 6 times | Published | District Court, S.D. Florida | 2003 U.S. Dist. LEXIS 4362, 2003 WL 1562197
...ole for a minimum mandatory twenty-five years". See Pet Ex. 1006(D) at 456, 462. This passing comment was incorrect, as under Florida law, there is no possibility of parole in a case involving the murder of a law-enforcement officer. See Fla. Stat., § 775.0823 (1990)....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1994 WL 380914
...The appellant was sentenced to thirty years, with a twenty-five year minimum mandatory term. By contrast, murder in the third degree of a law enforcement officer is punished much less severely. It carries a maximum and mandatory sentence of fifteen years' imprisonment. §§
782.04(4),
775.082(3)(c), and
775.0823(3), Fla....
...111, 582 P.2d 673, 675 (1978)). The Florida Legislature has expressed an intention to provide law enforcement officers with the greatest protection possible because of their exposure to great risk of violence. See Ch. 89-100, § 2, Laws of Fla. (creating § 775.0823, Fla....
...The trial court should then resentence the appellant on all offenses after the guidelines scoresheet is recalculated. Affirmed in part; reversed in part and remanded. SCHOONOVER, A.C.J., and FULMER, J., concur. NOTES [1] U.S. CONST. amend. XIV; FLA. CONST. art. I, § 2. [2] Section 775.0823(3), Florida Statutes (1991) provides for an increase in penalty for any person convicted of a violent offense against a law enforcement officer, to wit: "[f]or murder in the third degree as described in s....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2000 WL 24872
...provisions of section
775.084 upon remand. Fourth, Watson argues that his sentencing points were improperly enhanced by the law enforcement multiplier because the information did not charge him with a violation of the Law Enforcement Protection Act, section
775.0823, Florida Statutes (1997). When the information fails to charge the defendant with a violation of section
775.0823, the defendant cannot be sentenced pursuant to its provisions....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2000 WL 126074
...any felony that involves the use or threat of use of physical force or violence against an individual," so long as the person qualifies as a prison releasee. [1] We already have special penalties for violent crimes against correctional officers. See § 775.0823, Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2014 WL 1795535, 2014 Fla. App. LEXIS 6726
...Appellant Patrick Sweeney appeals a trial court order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), which did not correct an apparent scrivener’s error. The record demonstrated a scrivener’s error in the citation to section 775.0823, Florida Statutes (1991), in appellant’s written sentence, when the correct statute was section 775.0825....
CopyCited 5 times | Published | Supreme Court of Florida | 1997 WL 213991
...For the reasons expressed below, we affirm the first-degree murder conviction. However, we reverse the trial court's decision to override the jury's life recommendation and remand this case to the trial court for imposition of a life sentence without possibility of parole in accordance with section 775.0823(1), Florida Statutes (1991)....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2000 WL 627653
...Mathews, appeals his judgment and sentence for aggravated assault on a law enforcement officer. [1] Mr. Matthews argues that the trial court erred in applying the law enforcement multiplier to his sentence because the information filed against him did not allege a violation of section 775.0823, Florida Statutes (Supp.1998)....
...of the offense in that case. These rules have since been amended, and thus the outcome in Watson was not controlled by Thornton. Upon further consideration, we recede from Watson to the extent it required that an information recite a "violation" of section 775.0823 in order for the trial court to incorporate a law enforcement multiplier into a defendant's scoresheet....
...The State filed an information charging Mr. Matthews with three offenses, allegedly occurring on September 4, 1998. Count II alleged "aggravated assault on a law enforcement officer." It did not specifically allege a violation of the Law Enforcement Protection Act, codified in section
775.0823, Florida Statutes (Supp.1998), but it did specifically identify the offense as a violation of section
784.07....
...Thornton was charged with aggravated assault on a law enforcement officer. However, Thornton was sentenced according to the 1995 version of Florida Rule of Criminal Procedure 3.703(d)(14), the predecessor to rule 3.703(d)(22). At that time, the rule referred to only subsections (2) through (7) of section 775.0823, Florida Statutes (1995)....
...As a result, the Thornton court properly determined that the multiplier did not apply to the offense committed by Thornton. In so deciding, however, the Thornton court's holding merely stated, "Appellant was not charged with any violation under section
775.087 or
775.0823, nor was he charged under
893.135; therefore he could not have been sentenced using a law enforcement multiplier." In fact, the 1995 version of section
775.0823 did reference aggravated assault on a law enforcement officer, but the multiplier did not apply to this offense....
...In Watson, the defendant was charged with, among other offenses, aggravated assaults on law enforcement officers committed in 1997. By that time, the sentencing guidelines and rule 3.702 had been amended. Rule 3.703(d)(22) and section 921.0014(1)(b), Florida Statutes (1997), then referred to subsections (2) through (10) of section 775.0823....
...Matthews. Part of the confusion in the application of the law enforcement multiplier is a result of the statutory language which created this sentencing enhancement. Section 921.0014(1)(b) creates a multiplier if the primary offense "is a violation of section 775.0823. In fact, section 775.0823 does not set forth specific substantive crimes....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2001 WL 173298
...5th DCA 1999)), wherein the court held that "the crime of attempted second-degree murder does exist in Florida." See State v. Brady,
745 So.2d 954 (Fla.1999). Thus we affirm Kenon's conviction for attempted second-degree murder. Regarding the second issue, Kenon argues that pursuant to section
775.0823, Florida Statutes (1997), he must receive a guideline sentence for the offense of attempted first-degree murder of a law enforcement officer. He contends, therefore, that he could not be sentenced as a habitual violent felony offender for that offense. Section
775.0823 provides in pertinent part: *260 Any provision of law to the contrary notwithstanding, the Legislature does hereby provide for an increase and certainty of penalty for any person convicted of a violent offense against any law enforcement or correctional officer ......
...We disagree with Kenon and conclude that these statutory provisions do not prohibit imposition of an enhanced sentence as a habitual violent felony offender. Decisions of this court and others have upheld the imposition of a habitual sentence for violation of various provisions of section 775.0823 which provide for "a sentence pursuant to the guidelines." See Wiley v....
...unpreserved fundamental errors that allow us to consider these issues on direct appeal for the first time. [2] In Ward, the defendant was convicted of, among other offenses, attempted first-degree murder of a law enforcement officer in violation of section 775.0823(2)....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1997 WL 54824
...as a law enforcement officer at the time of the incident. Applying the reasoning in Evans v. State,
625 So.2d 915 (Fla. 1st DCA 1993), and Carpentier v. State,
587 So.2d 1355 (Fla. 1st DCA 1991), review denied,
599 So.2d 654 (Fla.1992), we hold that section
775.0823, Florida Statutes, does not require that the perpetrator know the victim's status as a law enforcement officer....
...g arose out of or in the scope of Evelyn Gort's duty as a law enforcement officer [ ] The killing did not arise out of or in the scope of Evelyn Gort's duty as a law enforcement officer [3] The court did not impose a minimum mandatory sentence under section 775.0823(4), Florida Statutes, for manslaughter of a law enforcement officer.
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2002 WL 463441
...Section
784.07(2)(c) reclassifies an aggravated assault from a third degree felony to a second degree felony when the assault is directed toward law enforcement officers and certain other officials. Similarly, section
921.0024(1)(b) creates a multiplier of 1.5 if the primary offense is a violation of section
775.0823(10), a statute proscribing an aggravated assault against a law enforcement officer or certain other officials....
...es a substantive offense. Much of the confusion in the application of the scoresheet multiplier is a result of the statutory language which created it. Section
921.0024(1)(b) [1] creates a multiplier of 1.5 if the primary offense "is a violation of" section
775.0823(9) or (10). [2] But, *682 section
775.0823 does not set forth specific substantive crimes....
...nd certainty of penalty" for crimes committed against law enforcement officers and other specified persons and prescribes a sentence pursuant to the Criminal Punishment Code for aggravated assault as described in section
784.021. See id.; Fla. Stat. §
775.0823(10). Furthermore, penalty enhancement statutes such as this are used to prepare the sentencing scoresheet to sentence the defendant; they are not used by the jury or finder of fact to determine guilt. The intent of section
775.0823 is to impose increased punishment by the use of a multiplier in an effort to protect all law enforcement officers and other government officials charged with enforcing, prosecuting, and judging criminal activity from violent offenses when they are acting in an official capacity....
...AFFIRMED; REMANDED for correction of scoresheet; CERTIFY CONFLICT. THOMPSON, C.J., and SAWAYA, J., concur. NOTES [1] Section
921.0024(1)(b) provides: Law enforcement protection: If the primary offense is a violation of the Law Enforcement Protection Act under s.
775.0823(2), the subtotal sentence points are multiplied by 2.5. If the primary offense is a violation of s.
775.0823(3), (4), (5), (6), (7), or (8), the subtotal sentence points are multiplied by 2.0. If the primary offense is a violation of s.
784.07(3) or s.
775.0875(1), or of the Law Enforcement Protection Act under s.
775.0823(9) or (10), the subtotal sentence points are multiplied by 1.5 (emphasis added). [2] Section
775.0823, entitled "Violent offenses committed against law enforcement officers, correctional officers, state attorneys, assistant state attorneys, justices, or judges", states in pertinent part: Any provision of law to the contrary notwithst...
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2002 WL 1072062
...ed thereon. On direct appeal, this court affirmed the defendant's convictions and sentence. See McKowen v. State,
792 So.2d 1251 (Fla. 5th DCA 2001). In his rule 3.800(a) motion, McKowen argued that his habitual offender sentence was illegal because section
775.0823 of the Florida Statutes (1999) required that he be sentenced pursuant to the Criminal Punishment Code....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2017 WL 1093191, 2017 Fla. App. LEXIS 3826
...Since possession of cocaine is not a violation of the Law Enforcement Protection Act, the scoresheet should not have included a multiplier for law enforcement protection. See Fla. R. Crim. P. 3.703(d)(22) (requiring imposition of a multiplier if the primary offense is a violation of the Law Enforcement Protection Act under section 775.0823, Florida Statutes)....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1993 WL 36288
...The sentence quoted above, however, would have been unnecessary if it had that meaning; and thus we could quite properly deduce that even a "minimum" period of imprisonment expresses mandatory incarceration. That is, it is mandatory unless the legislature meant something else. Section 775.0823 (involving crimes of violence against police and law enforcement officers, prosecutors and judges) provides for a "mandatory minimum sentence without possibility of early release " [e.s.] and goes on to add the following sentence: Notwithstanding the provisions of s....
...Another equally plausible reading, however, is that section
948.01 can be used by the trial judge to avoid the "minimum" or "mandatory minimum" imprisonment. This construction follows from the legislature's use of the additional text in, e.g., sections
775.0823 and
775.087(2)(a), specifying that notwithstanding section
948.01 the court may not withhold adjudication or imposition of sentence and confer probation or community control in place of the specified period of imprisonment....
CopyCited 1 times | Published | Supreme Court of Florida
...serious felony points, prior capital felony points, and points for possession of a
firearm or semiautomatic weapon.
(19) [No Changes]
(20) If the primary offense is a violation of the Law Enforcement
Protection Act under subsection
775.0823(2), (3), or (4), Florida Statutes, the
subtotal sentence points are multiplied by 2.5. If the primary offense is a violation
of subsection
775.0823(5), (6), (7), (8), or (9), Florida Statutes, the subtotal
- 39 -
sentence points are multiplied by 2.0. If the primary offense is a violation of
section
784.07(3) or
775.0875(1), Florida Statutes, or the Law Enforcement
Protection Act under subsection
775.0823(10) or (11), Florida Statutes, the subtotal
sentence points are multiplied by 1.5.
(21) If the primary offense is grand theft of the third degree of a
motor vehicle and the offender’s prior record includes three3 or...
...The requisite
findings of the court are set forth in a separate order or stated on the record in open court.
Law Enforcement Protection Act
It is further ordered that the defendant shall serve a minimum of years before release
in accordance with section 775.0823, Florida Statutes....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2007 WL 2935493
...No appearance required for appellee. PER CURIAM. George Esteves appeals the order summarily denying his rule 3.800(a) motion, challenging his habitual felony offender sentence imposed for aggravated battery on a law enforcement officer, committed in January 1995. He asserted that section 775.0823(9), Florida Statutes (1995), authorized the trial court to sentence him only pursuant to the sentencing guidelines....
...ns pursuant to section
784.07 to be so excluded"); Kenon v. State,
780 So.2d 258 (Fla. 5th DCA 2001); Staff of Fla. H.R. Comm. on Crime Prevention, Corrections & Safety, HB 375, Staff Analysis at 6 (March 27, 2001) (explaining that 2001 amendment to section
775.0823 was "intended to clarify that a defendant convicted of one of these offenses could be punished under the Criminal Punishment Code or could receive an enhanced sentence such as a habitual felony offender sentence") (emphasis added)....
CopyCited 1 times | Published | Supreme Court of Florida | 33 Fla. L. Weekly Supp. 915, 2008 Fla. LEXIS 2207, 2008 WL 4950074
...The requisite findings of the court are set forth in a separate order or stated on the record in open court. Law Enforcement Protection Act ____ It is further ordered that the defendant shall serve a minimum of ____ years before release in accordance with section 775.0823, Florida Statutes....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1991 WL 15557
...section
944.275 that gain time cannot apply to mandatory minimum sentences. Statutes explicitly barring the application of gain time (or in some cases provisional *1180 credits [2] ) to shorten service of certain mandatory minimum sentences include section
775.0823, Florida Statutes (1989), section
775.087(2), Florida Statutes (1989) and section
893.13, Florida Statutes (Supp....
CopyPublished | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 13194, 2015 WL 5165545
...The precise issue is whether section
782.065 requires the jury to find that Ramroop knew that the victim was a law enforcement officer before section
782.065 becomes operative. Section
782.065, Florida Statutes, provides as follows: Notwithstanding ss.
775.082,
775.0823,
782.04,
782.051, and chapter 921, a defendant shall be sentenced to life imprisonment without eligibility for release *592 upon findings by the trier of fact that, beyond a reasonable doubt: (1) The defendant committed murder in the first degree in violation of s....
...Moreover, “where criminal statutes are susceptible to differing constructions, they must be construed in favor of the accused.” Id. (citing Scales v. State,
603 So.2d 504, 505 (Fla.1992)). As noted by the dissent in Thompson , in 1995, the Legislature removed subsection (3) from section
784.07 and reenacted it in section
775.0823, the Law Enforcement Protection Act (“LEPA”). 5 Id. at 694 (Wells, J., dissenting). Section
775.0823, entitled “Violent offenses committed against law enforcement officers, correctional officers, state attorneys, assistant state attorneys, justices, or judges,” purportedly provided for “an increase and certainty of penalty for any person convicted of a violent offense against” those named officials where the offense arose out of or in the scope of the official’s duties. §
775.0823, Fla....
...elease.” Id. For all other pertinent offenses, the defendant was required to be sentenced “pursuant to the sentencing guidelines.” Id. In essence, then, the Legislature transplanted the subsection at issue in Thompson , section
784.07(3), into section
775.0823, and increased the penalty for its violation. With the exception of the addition of attempted felony murder and the replacement of the language “pursuant to the sentencing guidelines” with the language “pursuant to s.
775.082, s.
775.083, or s.
775.084,” section
775.0823 remains unchanged to date. 6 See §
775.0823, Fla....
...murder of law enforcement officers; creating
782.065, F.S.; providing a minimum mandatory sentence for certain offenses; providing an effective date.” Fla. HB 321 (2008). The intended effect of the proposed bill was to “supersede” penalties in section
775.0823, Florida Statutes, for all murder offenses listed in LEPA that were committed against law enforcement officers; however, the effect was not to supersede non-murder offenses committed against law enforcement officers or any other offe...
CopyPublished | Supreme Court of Florida | 40 Fla. L. Weekly Supp. 594, 2015 Fla. LEXIS 2949, 2015 WL 10490032
...The requisite findings of the court are set forth in a separate order
or stated on the record in open court.
Law Enforcement Protection Act
It is further ordered that the defendant shall serve a minimum of years before
release in accordance with section 775.0823, Florida Statutes....
CopyPublished | Supreme Court of Florida | 2000 Fla. LEXIS 2556, 2000 WL 1637548
...The requisite findings of the court are set forth in a separate order or stated on the record in open court. Law Enforcement Protection Act _It is further ordered that the defendant shall serve a minimum of — years before release in accordance with section 775.0823, Florida Statutes....
CopyPublished | Supreme Court of Florida | 17 Fla. L. Weekly Supp. 330, 1992 Fla. LEXIS 1039, 1992 WL 110901
...The requisite findings of the court are set forth in a separate order or stated on the record in open court. Law Enforcement Protection Act __ It is further ordered that the defendant shall serve a minimum of years before release in accordance with section 775.0823, Florida Statutes....
CopyPublished | Florida 5th District Court of Appeal
...error in the judgment
and sentence. It appears that the minimum mandatory should have been imposed based
upon Bodette’s possession of a firearm during the offense; however, the written sentence
imposed the ten-year minimum mandatory pursuant to section 775.0823, Florida Statutes
(2012), the Law Enforcement Protection Act....
CopyPublished | Florida 5th District Court of Appeal | 2016 WL 916809
...PALMER, ORFINGER and EVANDER, JJ., concur.
1
Section 775.0825 was repealed in 1995. See ch. 95-184, § 18, at 1708, Laws
of Fla. (eff. Oct. 1, 1995). This sentencing enhancement statute was subsumed into the
Law Enforcement Protection Act codified at section 775.0823....
CopyPublished | Supreme Court of Florida | 22 Fla. L. Weekly Supp. 98, 1997 Fla. LEXIS 169, 1997 WL 96302
...Note to Judge.” *1263 When the victim is a law enforcement officer, correctional officer, state attorney, assistant state attorney, justice, or judge, “eligibility for release” should be inserted in place of “possibility of parole.” See F.S. 775.0823....
...d. ■Note-to-judge When the victim is a law enforcement-officer^-correctional officer, state attorney-,-assistant-state attorney, justice, or-judge-“eligifoility for release” should be-inserted-in place of “possibility of-parole,” — See F.S. 775.0823....
...parole. Note to Judge When the victim is a law enforcement officer-, correctional officer, state attorney- assistant-state-attorney, justice, or judge, “eligibility for release-should-be inserted in plaee-of “possibility of parole.” — See F.S. 775.0823, F.S....
...parole. Note to Judge When the victim is-a law enforcement-officer, correctional officer, -state attorney, assistant state attorney, justice, or judge^eligibility for release” should-be inserted in place of-‘-possibiIity of parole.” — See F.S. 775.0823....
CopyPublished | Florida 3rd District Court of Appeal | 1998 WL 621355
...Defendant has appealed, claiming multiple sentencing errors. II. At sentencing, defendant objected to the use of the 2.0 law enforcement multiplier in calculating his guidelines score. The statute creating the law enforcement multiplier provides, in part, "If the primary offense is a violation of § 775.0823(3), (4), (5), (6), (7), or (8), the subtotal sentence points are multiplied by 2.0." § 921.0014, Fla. Stat. (1995). The defendant correctly points out that the information did not charge him with a violation of section 775.0823, Florida Statutes. Defendant argues that since section 775.0823 was not cited in the information, it follows that the law enforcement multiplier must be stricken....
...When the State filed the information in early 1996, section 775.0825 had recently been repealed. See ch. 95-184, § 18, at 1708, Laws of Fla. [2] The mandatory minimum sentence was eliminated, and a successor provision governing attempted murder of a law enforcement officer was amended into already-existing section 775.0823, Florida Statutes....
...the defendant to the defendant's prejudice." See also id. R. 3.140( o ). Here, the text of the information clearly advised the defendant that he was charged with attempted murder of a law enforcement officer. The statutory citation was in error, but section 775.0823 is the correct statutory successor provision....
...The case proceeded to the jury on proper instructions, and the jury returned an interrogatory verdict finding the defendant guilty of the lesser included offense of attempted second-degree murder of a law enforcement officer, with a firearm. [3] The violation of section 775.0823 was sufficiently shown....
...[4] The fact that there was a nonprejudicial error in the statutory citation, rather than an entire absence of an appropriate charge, distinguishes the present case from Thornton v. State,
679 So.2d 871 (Fla. 4th DCA 1996). III. Defendant argues alternatively that under section
775.0823, Florida Statutes, he is required to be sentenced within the guidelines. This argument must be rejected on the merits. For attempted second-degree murder of a law enforcement officer, the penalty is "a sentence pursuant to sentencing guidelines." §
775.0823(4), Fla....
...1 (Fla. 4th DCA 1998) (en banc); Harriel v. State,
710 So.2d 102, 104 (Fla. 4th DCA 1998) (en banc). Since defendant's argument amounts to a claim of fundamental error, we may entertain it. On the merits, however, defendant is not entitled to relief. Section
775.0823 mandates a sentence "pursuant to the sentencing guidelines," §
775.0823(4), Fla....
...Stat., not a sentence within the guidelines. The phrase "pursuant to the sentencing guidelines" is a generic reference to all of the provisions of the guidelineswhich allow upward departures where statutory or case law criteria are *751 met. See id. § 921.0016. Section 775.0823 does not preclude a departure sentence....
...on a law enforcement officer," (3) "with a firearm." [4] The foregoing analysis accepts the parties' assumption that in order to invoke the law enforcement multiplier, there must be a jury finding that a defendant's primary offense is a violation of section 775.0823. It could be argued, however, that the section 921.0014 factual determination (that the primary offense is a violation of section 775.0823) is for the court to decide as a sentencing issue, similar to the factual determinations the court makes in assessing, for example, victim inquiry points, see § 921.004(1), Fla....
CopyPublished | Florida 3rd District Court of Appeal
... After that recess, the State and defense continued to agree that the maximum
punishment for count 1 was 30 years.2 On the second page of the sentencing
scoresheet, the “maximum sentence in years” was entered in handwriting to
indicate “30 as HO.” Construing section 775.0823, Florida Statutes (2007), the
trial court again concluded that the maximum sentence on count 1 was life and
imposed that sentence.
In Graves’ appeal from the conviction and sentence,3 the Office of the
Public Defender did not raise the count 1 sentencing issue....
...In 2012 and 2014,
Graves filed pro se post-conviction motions in the trial court alleging that his count
1 sentence was illegal. In February 2013, the trial court denied the 2012 motion,
concluding that:
The trial court utilized Florida Statutes
782.04 and
775.0823 in
determining the range of punishment available to the defendant at
sentencing. The trial court further determined that in the instant case
the Attempted Second Degree Murder of a Law Enforcement
conviction was a first degree felony punishable by life when
interpreting Florida Statutes
775.0823 and
782.04 together....
...2010 sentencing hearing—the subject of a recess in that hearing to permit counsel
to consider the trial court’s analysis (which, as noted, counsel for both the State
and Graves were unwilling to endorse)—arises because of four separate statutes
and the history of section
775.0823.
First, section
782.04(2), Florida Statutes (2007),5 defines second degree
murder and provides that the completed offense “constitutes a felony of the first
degree, punishable for a term of years not exceeding life or as provided in s.
775.082, s....
...murder would be 30 years as an HFO. However, Graves was convicted of
attempted second-degree murder of a law enforcement officer, and the question
presented in this case is whether, and the extent to which, his maximum sentence is
impacted by section 775.0823, Florida Statutes (2007)....
...775.084.
Notwithstanding the provisions of s.
948.01, with respect to any
person who is found to have violated this section, adjudication of guilt
or imposition of sentence shall not be suspended, deferred, or
withheld.
Section
775.0823 purports to establish “an increase and certainty of penalty”
for any person convicted of a violent offense against law enforcement officers and
other defined categories of individuals in the judicial, law enforcement, and
corrections system. Section
775.0823(5) states “For attempted murder in the
second degree as described in s.
782.04(2) and (3), a sentence pursuant to s.
775.082, s.
775.083, or s.
775.084.”
7
Here is the problem. Although section
775.0823(5) addresses attempted
second degree murder, the modifier “as described in s.
782.04(2)” relates to the
completed crime of second degree murder, not an attempt. It appears from the
sentencing transcript that the trial court believed that section
775.0823(5) was, in
effect, a reclassification statute, requiring the trial court to treat defendant’s
conviction for attempted second-degree murder (a second-degree felony) as if it
was the completed crime of second-degree murder (a first degree felony
punishable by life). In doing so, the court concluded that the life sentence was
mandated by section
775.0823 and its preamble, “to provide for an increase and
certainty of penalty for any person convicted of a violent offense against any [law
enforcement officer].” However, upon our de novo review of the statutory
language, as well as the history of the legislative changes to that statute, we
conclude that section
775.0823(5) does not authorize the trial court to “reclassify”
the crime of attempted second-degree murder from a second-degree felony to a
first-degree felony punishable by life by treating attempted second-degree murder
as if it was a completed crime of second-degree murder.
In this particular case, we harmonize, to the extent we can, the apparent
inconsistency between sections
775.0823(5) and
777.04(4)(c), by reviewing the
original version of section
775.0823 and its subsequent amendments, and by
applying well-established rules of statutory construction....
...We also cannot ignore the anomalous
treatment of both an attempted second degree murder of a law enforcement officer
and a completed second degree murder of a law enforcement officer as equivalent
offenses for sentencing purposes under the interpretation applied by the trial court.
The trial court read section 775.0823 to mean that an “attempted second
degree murder” committed upon a law enforcement officer must be treated for
sentencing purposes as a “second degree murder” committed upon a law
enforcement officer....
...The trial court concluded this was the only way to give
proper meaning to that statute’s introductory language of intent: “The Legislature
does hereby provide for an increase and certainty of penalty for any person
convicted of a violent offense against any law enforcement or correctional officer .
. . .” § 775.0823 (emphasis provided).
However, we do not agree with the trial court’s statutory construction, and
we conclude that the confusion engendered by the above-quoted language of
statutory intent stems from the statutory amendments following its original
enactment.
B. Original Enactment of Section 775.0823
9
Section 775.0823 of the Florida Statutes was first enacted in 1989 as part of
the “Law Enforcement Protection Act.” See Ch. 89-100, § 1, Laws of Fla. Section
775.0823, as originally enacted, provided in pertinent part:
Any provision of law to the contrary notwithstanding, the Legislature
does hereby provide for an increase and certainty of penalty for any
person convicted of a violent offense against any law enforcement or
correctional officer....
...For
our purposes, however, the first pertinent amendment occurred in 1993, following
Florida’s adoption of sentencing guidelines. See Ch. 93-406, § 16, Laws of Fla.
Consistent with the adoption of sentencing guidelines, the Legislature amended
section 775.0823 in two important ways, by: (1) removing all mandatory minimum
sentences provided in the original 1989 version of the statute; and (2) requiring
that all sentences for violation of this section be imposed “pursuant to the
sentenc...
...This
multiplier significantly increased the number of sentencing points to be assessed
against a defendant convicted of a violent offense against a law enforcement
officer:
Law enforcement protection: If the primary offense is a violation of
the Law Enforcement Protection Act under s.
775.0823(2), (3), (4), or
(5), then the subtotal sentence points are multiplied by 2.0. If the
primary offense is a violation of s.
775.087(2)(a)2. or s.
775.0875(1),
or of the Law Enforcement Protection Act under s.
775.0823(6) or (7),
then the subtotal sentence points are multiplied by 1.5.
§ 921.0014 (emphasis provided).6
As a result of the implementation of sentencing guidelines and the creation
of the “Law Enforcement Multiplier,” mandatory minimum sentences were no
longer part of the framework of section
775.0823, and the Legislature therefore
removed that portion of the introductory language of the 1989 version of the
statute addressing mandatory minimum sentencing, but chose to retain the general
intent language. Below is the 1993 amended version of section
775.0823, with the
deleted language bracketed and underscored for ease of reference:
Any provision of law to the contrary notwithstanding, the Legislature
does hereby provide for an increase and certainty of penalty for any
6...
...948.01, with respect to any
person who is found to have violated this section, adjudication of guilt
13
or imposition of sentence shall not be suspended, deferred, or
withheld.
D. The 2001 Amendment
Section 775.0823 has been further amended over the years, to comport with
corresponding changes to the sentencing guidelines, and to add certain offenses
subject to sentencing under this statute....
...implement the 1989 version’s expressed legislative intent. In other words, and
notwithstanding its introductory language, the only “increase and certainty of
14
penalty” that exists for offenses under section 775.0823 is the “Law Enforcement
Multiplier” provided in section 921.0014 (2001) and Florida Rule of Criminal
Procedure 3.704(20).
E....
...degree may be punished as if it were a felony of the first degree.”). Similarly, see
§
775.087, Fla. Stat. (2018) (“Possession or use of weapon; aggravated battery;
felony reclassification; minimum sentence.”).
15
But section
775.0823 contains no equivalent language that could reasonably
be construed as reclassifying an attempted crime to a higher degree offense by
treating it as if it were a completed crime....
...ve it effect.’ ” Quarantello v. Leroy,
977
So. 2d 648, 652 (Fla. 5th DCA 2008) (citing Goode v. State,
39 So. 461, 463 (Fla.
1905)) (additional citations omitted).
7A review of the legislative history and staff analysis of the amendments to section
775.0823 provides no additional guidance or insight.
16
We cannot ignore the expression of legislative intent that has been carried
over from its original enactment in 1989 to the 2007 version applicable to the case
before us....
...17
degree murder and its constituent elements is set forth. Had the Legislature
intended that the crime of attempted second degree murder of a law enforcement
officer (or any other enumerated attempted offense under section 775.0823) be
treated for sentencing purposes as a completed offense, it surely would have said
so.8 The statute, which contains the same expression of legislative intent as that in
the original version enacted in 1989, no longer contains the accompanying
provisions that implemented such intent....
...and defense counsel, as well
as the trial judge, with this conflict in the criminal code provisions described in this
opinion, we direct the Clerk to forward a copy of this opinion to the Chief of
8 Adopting the trial court’s construction of section
775.0823 would lead to this
unreasonable result: a conviction for attempted first-degree murder of a law
enforcement officer under section
775.0823(2) would be treated as a conviction for
first-degree murder and reclassified to a capital felony punishable by death (see
sections
782.04(1);
775.082(1)(a)-(b))....
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 9511, 2015 WL 3875264
...adult. Following a jury trial, Mr. Lindsey was convicted as charged and sentenced to life imprisonment without the possibility of parole. This sentence was mandated by section
775.082(1), Florida Statutes (2010), applicable to capital felonies, and section
775.0823(1), applicable to the murder of a law enforcement officer, and was permissible under section
775.087(2), applicable to murder involving the discharge of a firearm....
...imprisonment without the possibility of parole” and further found that life in prison without the possibility of parole is a proportionate sentence in this case. The court found that Mr. Lindsey qualified for sentencing under sections
775.082(1),
775.0823(1), and
775.087(2), and sentenced Mr. Lindsey to life imprisonment without the possibility of parole under sections
775.082(1) and
775.0823(1) and to a minimum term of life under section
775.087(2). II. ANALYSIS A. Sentencing under Sections
775.082(1) and
775.0823(1) In Miller , the Supreme Court held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” 132 S.Ct....
...r “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at 2469 . In this case, Mr. Lindsey was originally sentenced pursuant to sections
775.082(1) and
775.0823(1), both of which effectively mandated life in prison without parole for a juvenile, with a minimum imprisonment term of life imposed pursuant to section
775.087(2)....
...they commit terrible crimes.” Id. at 2465. Accordingly, to the extent the trial court failed to acknowledge the differences between Mr. Lindsey and an adult offender, the trial court erred in its resentencing analysis under sections
775.082(1) and
775.0823(1)....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 6673, 1991 WL 120778
CONFESSION OF ERROR PER CURIAM. Based upon the State’s confession of error, and a review of the record which reflects the correctness of that confession, the sentence imposed, pursuant to Section 775.0823, Florida Statutes (1990 Supp.), in connection with the conviction of Aggravated Assault on a Law Enforcement Officer, is vacated with this cause being remanded to the trial court for re-sentencing in connection with that single offense....
CopyPublished | Florida 4th District Court of Appeal | 2000 Fla. App. LEXIS 9411, 2000 WL 1022382
...tion and/or substantial impairment at the time of his original offense. We disagree with appellant on this point but reverse the sentence for the reasons stated below. Appellant was not charged with a violation of the Law Enforcement Protection Act, section 775.0823, Florida Statutes (1995)....
CopyPublished | Supreme Court of Florida
...serious felony points, prior capital felony points, and points for possession of a
firearm or semiautomatic weapon.
(19) [No Changes]
(20) If the primary offense is a violation of the Law Enforcement
Protection Act under subsection
775.0823(2), (3), or (4), Florida Statutes, the
subtotal sentence points are multiplied by 2.5. If the primary offense is a violation
of subsection
775.0823(5), (6), (7), (8), or (9), Florida Statutes, the subtotal
sentence points are multiplied by 2.0. If the primary offense is a violation of
section
784.07(3) or
775.0875(1), Florida Statutes, or the Law Enforcement
- 38 -
Protection Act under subsection
775.0823(10) or (11), Florida Statutes, the subtotal
sentence points are multiplied by 1.5.
(21) If the primary offense is grand theft of the third degree of a
motor vehicle and the offender’s prior record includes three3 or...
...The requisite
findings of the court are set forth in a separate order or stated on the record in open court.
Law Enforcement Protection Act
It is further ordered that the defendant shall serve a minimum of years before release
in accordance with section 775.0823, Florida Statutes....
CopyPublished | Florida 4th District Court of Appeal | 2017 Fla. App. LEXIS 83
...to a police dog. §
843.19(2). Malicious touching, of a dog is categorized as a first degree misdemeanor. §
843.19(3), Fla. Stat. On the other hand, if those crimes are committed against a law enforcement officer, they have increased penalties. See §
775.0823, Fla....
CopyPublished | Supreme Court of Florida
...The requisite findings of the court are set forth in a separate order
or stated on the record in open court.
Law Enforcement Protection Act
. It is further ordered that the defendant shall serve a minimum of years before
release in accordance with section 775.0823, Florida Statutes....
CopyPublished | Florida 5th District Court of Appeal | 2016 Fla. App. LEXIS 501, 2016 WL 165373
PER CURIAM. AFFIRMED. On remand, the sentencing documents shall be corrected to reflect that the minimum mandatory sentence was imposed under section
775.087, Florida Statutes (2014), and not section
775.0823, Florida Statutes (2014)....
CopyPublished | Supreme Court of Florida
...The requisite findings of the court are set forth in a separate order
or stated on the record in open court.
Law Enforcement Protection Act
. It is further ordered that the defendant shall serve a minimum of years before
release in accordance with section 775.0823, Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal | 2004 Fla. App. LEXIS 19393, 2004 WL 2921795
...e cell or where the appellant could have received the same sentence without a departure). The state correctly argues in the motion for rehearing that the 1.5 law enforcement multiplier was available pursuant to § 921.0014(1), Fla. Stat. (1993). See § 775.0823(7), Fla....
...We also note that the amendments made by chapter 95-184, Laws of Florida, merely added offenses to the Law Enforcement Protection Act, thereby changing the subsection designation for the instant offense, aggravated assault on a law enforcement officer. See §§ 775.0823(10), 921.0014(1), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2012 Fla. App. LEXIS 21793, 2012 WL 6600362
...to one count of aggravated *254 assault on a law enforcement officer. She raises one issue on appeal, arguing that the trial court erred by imposing a three-year minimum mandatory sentence pursuant to the Law Enforcement Protection Act (“LEPA”), section 775.0823, Florida Statutes (2010)....
CopyPublished | Florida 2nd District Court of Appeal | 2000 WL 1055496
...[2] The court sentenced Wright to ten years' incarceration, including a five-year minimum mandatory term. At the hearing, the judge did not recite any statutory authority for the minimum mandatory portion of the sentence, but the written judgment states it was ordered pursuant to section 775.0823, Florida Statutes (1995)....
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 9158, 1992 WL 197777
...ound not guilty. The jury returned a verdict of guilty as charged. The trial judge withheld adjudication, and imposed eight months of community control followed by six months probation. The state filed a motion to correct sentence, pointing out that section 775.0823(6), *549 Florida Statutes, required the court to impose a minimum mandatory term of three years, and barred it from withholding adjudication....
CopyPublished | Florida 1st District Court of Appeal | 1995 Fla. App. LEXIS 3507, 1995 WL 147391
...State,
576 So.2d 923 (Fla. 1st DCA 1991); Gilbert v. State,
647 So.2d 853 (Fla. 2d DCA 1994) (on reh’g). The mandatory minimum applicable to aggravated assault on a law enforcement officer is one year, not three years as was imposed on appellant. See §
775.0823(7), Fla.Stat....
CopyPublished | Florida 1st District Court of Appeal | 2012 WL 1393477, 2012 Fla. App. LEXIS 6317
...Frederick Charles Dutton, Jr., presents a timely claim of ineffective assistance of appellate counsel. He asserts that his appellate counsel failed to properly argue that the trial court erred in imposing a three year minimum mandatory sentence under the Law Enforcement Protection Act (“LEPA”), section 775.0823, Florida Statutes....
