Opinion
No. 1D19-3100
04-29-2021
Roderick D. DAVENPORT, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
Winokur, J. Roderick D. Davenport appeals his judgment for the crimes of witness tampering, lewd or lascivious molestation, and lewd or lascivious exhibition, and his sentence as a prison releasee reoffender (PRR). We affirm his judgment without discussion but reverse and remand for resentencing.
Davenport was found guilty of lewd or lascivious molestation of a victim under 12 years of age by an adult in violation of section 800.04(5)(b), Florida Statutes. For that count, the trial court sentenced Davenport to life in prison as a PRR pursuant to section 775.082(9), Florida Statutes. Davenport claims that he is ineligible for sentencing as a PRR. We agree.
Davenport indisputably qualifies as a PRR, because he committed a felony violation of section 800.04 within three years after being released from a state correctional facility. § 775.082(9)(a) 1.r., Fla. Stat. Less clear is whether the applicable statutes allow him to be sentenced as a PRR, pursuant to section 775.082(9)(a) 3., Florida Statutes. An analysis of section 800.04(5)(b) is necessary resolve this question.
Prior to 2005, an offender at least eighteen years old who committed lewd or lascivious molestation upon a victim less than 12 years old was guilty of a first-degree felony, "punishable as provided in s. 775.082, s. 775.083, or s. 775.084." § 800.04(5)(b), Florida Statutes (2004). At that time, an offender guilty of this crime could be sentenced as a PRR because the PRR provisions are contained in section 775.082. But in 2005, the Legislature passed the Jessica Lunsford Act, which amended section 800.04(5)(b) to make that crime a life felony, "punishable as provided in s. 775.082(3)(a) 4." Ch. 2005-28, § 1, 5, Laws of Fla. The Jessica Lunsford Act also added section 775.082(3)(a) 4., which required the following:
4. For a life felony committed on or after September 1, 2005, which is a violation of s. 800.04(5)(b), by:
a. A term of imprisonment for life; or
b. 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).
Ch. 2005-28, § 4, Laws of Fla.
The statute as it existed at the time Davenport was sentenced contained the same provision, but was numbered differently because a new sub-subparagraph, not relevant here, was later added. See § 775.082(3)(a) 4.a., Fla. Stat. (2019).
Thus, section 800.04(5)(b) no longer permits sentencing under any of the provisions in 775.082, except under subparagraph (3)(a)4., including the PRR subsection. The deletion of other alternatives from the punishment authorized by subsection 800.04(5)(b), cannot be ignored. See Ridley v. State , 702 So. 2d 559, 559 (Fla. 2d DCA 1997) ("When the legislature amends a statute by omitting words, or, in this instance, reference to a statute, the general rule of construction is to presume that the legislature intended the statute to have a different meaning from that accorded it before the amendment.").
We acknowledge that an isolated reading of the PRR subsection suggests that he may be subject to that sentence enhancement. As noted above, one who commits a felony violation of section 800.04 within three years after release from prison is a PRR. However, the PRR provision was already part of Florida's sentencing law when the Legislature passed the Jessica Lunsford Act. We presume that the Legislature was aware of the PRR Act when it created a new subparagraph explicitly providing a particular sentence for violation of section 800.04(5)(b). See e.g. , McKendry v. State , 641 So. 2d 45, 46 (Fla. 1994) (noting that "when two statutes are in conflict, the later promulgated statute should prevail as the last expression of legislative intent"); Oldham v. Rooks , 361 So. 2d 140, 143 (Fla. 1978) (recognizing a "general presumption that later statutes are passed with knowledge of prior existing laws").
We are also aware that section 775.082(3)(a) 4., under which Davenport must be resentenced, permits a life sentence, which is what Davenport already received as a PRR. As such, it is possible that he receives no reduction in sentence as a result of this reversal. Nonetheless, a life sentence under section 775.082(3)(a) 4. is not mandatory, which it would be if sentenced as a PRR.
Accordingly Davenport's sentence for count three is vacated and the case is remanded to the trial court to impose sentence pursuant to section 775.082(3)(a) 4.a., Florida Statutes.
Judgment AFFIRMED ; sentence VACATED ; REMANDED for resentencing consistent with this opinion.
B.L. Thomas and Tanenbaum, JJ., concur.