       Third District Court of Appeal
                               State of Florida

                            Opinion filed June 6, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-2146
                         Lower Tribunal No. 07-43499
                             ________________


                                Elton Graves,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Ellen Sue Venzer, Judge.

      Elton Graves, in proper person.

     Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney
General, for appellee.


Before SALTER, EMAS and LOGUE, JJ.

      PER CURIAM.
      Elton Graves appeals the denial of his motion under Florida Rule of

Criminal Procedure 3.800 for the correction of a life sentence of imprisonment he

contends is illegal. Finding his position well taken, we reverse and remand the

case for resentencing.

      I.     Procedural History and Life Sentence on Count 1

      In an amended information filed in February 2010, Graves was charged with

four counts: (1) attempted second degree murder of a law enforcement officer

engaged in the lawful performance of his duty; (2) resisting a law enforcement

officer with violence; (3) attempting to deprive a law enforcement officer of the

officer’s weapon; and (4) assault on a law enforcement officer. The alleged crime

date was December 12, 2007. Before trial, the State dismissed count 4.

      Following a jury trial, Graves was convicted of counts 1 and 2 and acquitted

as to count 3. Graves was adjudicated a habitual felony offender (“HFO”). He

was sentenced to life imprisonment on count 1 and ten years on count 2. At the

sentencing hearing, the State and defense both represented to the trial court1 that

the maximum sentence on count 1 as an HFO was thirty years, with a ten year

concurrent sentence as an HFO on count 2. The trial court recessed the sentencing

hearing to allow the State and defense to consider the trial court’s reading of the

applicable statutes and conclusion that the maximum sentence on count 1 was life.

1 The Judge who heard the 2017 motion under rule 3.800 was a successor to the
Judge who tried the case and sentenced Graves.

                                        2
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. As such,
        the defendant’s enhancement as a Habitual Offender lawfully made
        his possible sentencing range up to Life Imprisonment. As such, the
        trial court’s imposition of a Life Sentence in State Prison as a Habitual
        Offender of count One of the Information was not in error and was
        permissible.



2 The State advised the trial court after the recess that there was a “loophole in the
statute.”
3   Graves v. State, 77 So. 3d 1269 (Fla. 3d DCA 2011) (per curiam affirmed).

                                           3
         The defendant did not appeal the trial court’s denial of his 2012 motion. In

2014, Graves filed a second motion under rule 3.800(a) that conceded the motion

was successive, but contended that the manifest injustice of the illegal life sentence

merited relief. The trial court adopted the State’s response that the motion was

successive and, because the first order had not been appealed, it was barred as a

matter of collateral estoppel. Graves’ appeal to this Court was unsuccessful.4

         The motion under rule 3.800 at issue in the present case was filed in 2017.

It raised again the alleged illegality of the life sentence imposed as to count 1. The

trial court denied the motion on three grounds: (1) collateral estoppel, based on the

consideration and denial of his prior motions; (2) Graves’ was properly adjudicated

and sentenced as an HFO; and (3) Graves was given proper notice of the State’s

intention to seek HFO sentencing. This appeal followed.

         II.   Analysis

         We affirm without additional comment the trial court’s rulings on the

propriety of notice and adjudication regarding Graves’ status as an HFO. The first

issue is more complex. We are not precluded from review of the legality of

Graves’ life sentence on count 1 despite his prior unsuccessful motions on that

issue.     State v. Akins, 69 So. 3d 261, 268 (Fla. 2011) (“Under Florida law,

appellate courts have ‘the power to reconsider and correct erroneous rulings [made


4   Graves v. State, 150 So. 3d 1154 (Fla. 3d DCA 2014) (per curiam affirmed).

                                           4
in earlier appeals] in exceptional circumstances and where reliance on the previous

decision would result in manifest injustice’” (quoting Muehleman v. State, 3 So.

3d 1149, 1165 (Fla. 2009) (alteration in original)). See also Parker v. State, 873

So. 2d 270, 278 (Fla. 2004).

             A.     The Pertinent Statutes as of 2007

      The statutory issue confronted by counsel for the State and for Graves at the

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. 775.083, or 775.084.” Second, section 777.04(4)(c) applies to an

attempted second degree murder, classifying the offense(one degree lower than the

completed offense) as “a felony of the second degree, punishable as provided in s.

775.082, 775.083, or s. 775.084.”

      Third, section 775.084 addresses, among other things, the procedure for, and

consequences of, adjudication of a defendant as an HFO. Subparagraph (4)(a)2 of

5 Each of the statutory sections cited in this portion of the opinion is as in effect at
the time of the offense, December 2007.

                                           5
that statute provides that a court may sentence an HFO, in the case of a felony of

the second degree, “for a term of years not exceeding 30.” Thus, under these three

provisions, it is clear that Graves’ maximum sentence for attempted second-degree

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). The version of that statute

applicable to Graves’ 2007 crime provides in full as follows:

      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, as defined in s. 943.10(1), (2), (3),
      (6), (7), (8), or (9); against any state attorney elected pursuant to s.
      27.01 or assistant state attorney appointed under s. 27.181; or against
      any justice or judge of a court described in Art. V of the State
      Constitution, which offense arises out of or in the scope of the
      officer's duty as a law enforcement or correctional officer, the state
      attorney's or assistant state attorney's duty as a prosecutor or
      investigator, or the justice's or judge's duty as a judicial officer, as
      follows:

            (1) For murder in the first degree as described in s. 782.04(1), if
      the death sentence is not imposed, a sentence of imprisonment for life
      without eligibility for release.

            (2) For attempted murder in the first degree as described in s.
      782.04(1), a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.

            (3) For attempted felony murder as described in s. 782.051, a
      sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.

            (4) For 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.


                                          6
            (5) 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.

            (6) For murder in the third degree as described in s. 782.04(4), a
      sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.

            (7) For attempted murder in the third degree as described in s.
      782.04(4), a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.

             (8) For manslaughter as described in s. 782.07 during the
      commission of a crime, a sentence pursuant to s. 775.082, s. 775.083,
      or s. 775.084.

            (9) For kidnapping as described in s. 787.01, a sentence
      pursuant to s. 775.082, s. 775.083, or s. 775.084.

            (10) For aggravated battery as described in s. 784.045, a
      sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.

            (11) For aggravated assault as described in s. 784.021, a
      sentence pursuant to s. 775.082, s. 775.083, or s. 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. As a result, we conclude



                                         8
that we cannot ignore the command of section 777.04(4)(c), which reduces

Graves’ base offense (second degree murder) from a felony of the first degree

punishable by life to a felony of the second degree when the crime charged is

merely attempted but not completed. 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. . . . by imposing a mandatory minimum sentence
      without possibility of early release through any gain-time, provisional
      release credits, conditional release supervision, supervised community
      release, transition assistance program, or parole during the mandatory
      minimum portion of the sentence, as follows:

            (1) For murder in the first degree as described in s. 782.04(1), if
      the death sentence is not imposed, a sentence of imprisonment for life
      without eligibility for release shall be imposed.

             (2) For murder in the second degree as described in s. 782.04(2)
      and (3), a sentence of imprisonment for 25 years before eligibility for
      release shall be imposed.

             (3) For murder in the third degree as described in s. 782.04(4), a
      sentence of imprisonment for 15 years before eligibility for release
      shall be imposed.

            (4) For manslaughter as described in s. 782.07 during the
      commission of a crime, a sentence of imprisonment for 10 years
      before eligibility for release shall be imposed.

            (5) For kidnapping as described in s. 787.01, a sentence of
      imprisonment for 15 years before eligibility for release shall be
      imposed.

           (6) For aggravated battery as described in 784.045, a sentence
      of imprisonment for 3 years before eligibility for release shall be
      imposed.




                                         10
           (7) For aggravated assault as described in s. 784.021, a sentence
      of imprisonment for 1 year before eligibility for release shall be
      imposed.

      Any person convicted of an offense under this section is ineligible to
      receive provisional release credits during any portion of his sentence.
      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.

(Emphasis provided.)

      As even a cursory reading reveals, the statute as originally enacted did

indeed “provide for an increase and certainty of penalty” for certain offenses

committed against law enforcement officers, by (1) establishing mandatory

minimum penalties and (2) eliminating eligibility for provisional release credits for

any person convicted and sentenced under this section.

             C.    The 1993 Amendment

      This statute was amended on several occasions in the intervening years. 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

sentencing guidelines.” Additionally and importantly, the Legislature in 1993 also


                                         11
amended the sentencing guidelines provisions (section 921.0014) and created a

sentencing guidelines worksheet. In doing so, the Legislature added a so-called

“Law Enforcement Multiplier.”      See Ch. 93-406, § 12, Laws of Fla.           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  Again, a multiplier of 2.0 was used on Graves’ sentencing scoresheet in the
present case.

                                        12
person convicted of a violent offense against any law enforcement or
correctional officer . . . [by imposing a mandatory minimum sentence
without possibility of early release through any gain time, provisional
release credits, conditional release supervision, supervised community
release, transition assistance program, or parole during the mandatory
minimum portion of the sentence,] as follows:

(1) For murder in the first degree as described in s. 782.04(1), if the
death sentence is not imposed, a sentence of imprisonment for life
without eligibility for release [shall be imposed].

(2) For murder in the second degree as described in s. 782.04(2) and
(3), a sentence pursuant to the sentencing guidelines [of imprisonment
for 25 years before eligibility for release shall be imposed].
(3) For murder in the third degree as described in s. 782.04(4), a
sentence pursuant to the sentencing guidelines [of imprisonment for
15 years before eligibility for release shall be imposed].

(4) For manslaughter as described in s. 782.07 during the commission
of a crime, a sentence pursuant to the sentencing guidelines [of
imprisonment for 10 years before eligibility for release shall be
imposed].

(5) For kidnapping as described in s. 787.01, a sentence pursuant to
the sentencing guidelines [of imprisonment for 15 years before
eligibility for release shall be imposed].

(6) For aggravated battery as described in s. 784.045, a sentence
pursuant to the sentencing guidelines [of imprisonment for 3 years
before eligibility for release shall be imposed].

(7) For aggravated assault as described in s. 784.021, a sentence
pursuant to the sentencing guidelines [of imprisonment for 1 year
before eligibility for release shall be imposed].

[Any person convicted of an offense under this section is ineligible to
receive provisional release credits during any portion of his sentence.]
Notwithstanding the provisions of s. 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.      In 2001, however, the Legislature

eliminated reference to the sentencing guidelines (and the later-enacted Criminal

Punishment Code) and simply declared that (other than first-degree murder) all

sentences for a violation of this section shall be imposed “pursuant to s. 775.082, s.

775.083, or s. 775.084” of the Florida Statutes. The 2001 version (the version

applicable on December 12, 2007, the date of Graves’ crime) reads in full as

shown in section II.A. of this opinion, with this introductory phrase:

      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 highlighted and underscored that introduction, as it was contained in the

original 1989 version of the statute and has somehow survived all of the

subsequent amendments. However, it can best be characterized as vestigial, given

that the statute no longer contains the mandatory minimum provisions or

prohibition against early release or provisional release credits, which served to

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.     This Case

      The trial court in the present case, in an understandable effort to give

meaning to the statutory language “increase and certainty of penalty,” construed

the statutory language as requiring the trial court to treat attempted second-degree

murder of a law enforcement officer (a second degree felony punishable by up to

15 years in prison (up to 30 years in the case of an HFO)) as if it was a completed

second-degree murder (a first degree felony punishable by up to life). This was

error. The statute did not, in any of its iterations, expressly or implicitly reclassify

an attempted second-degree murder in this fashion.

      The Legislature certainly knows what language to use in reclassifying an

offense to a higher degree. See, e.g., § 874.04, Fla. Stat. (2018) (“Upon a finding

by the factfinder that the defendant committed the charged offense for the purpose

of benefiting, promoting, or furthering the interests of a criminal gang,” the penalty

may be enhanced; section 2(b) of that statute specifies that “A felony of the second

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. The “increase and certainty of penalty”

language is a holdover from the originally-enacted version of the statute, and the

only rational conclusion, based on the statute’s history as described herein, is that

the continued presence appears to be an oversight in the legislative amendatory

process.7

      It is of course “well settled that legislative intent is the polestar that guides a

court’s statutory construction analysis[,]” Knowles v. Beverly Enters.-Fla., Inc.,

898 So. 2d 1, 5 (Fla. 2004), and our starting point is the actual language used by

the legislature.

      We also recognize it is “the general rule, construing statutes, ‘that

construction is favored which gives effect to every clause and every part of the

statute, thus producing a consistent and harmonious whole. A construction which

would leave without effect any part of the language used should be rejected, if an

interpretation can be found which will give 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.   However, neither can we ignore the very obvious fact that the

intervening amendments removed those provisions which fulfilled and

implemented that intent to create an “increase and certainty of penalty.” Stated

simply, the 2007 version, while still containing that language of intent, no longer

contains any provision to effectuate that intent. Even if we were to find that the

language relied upon by the trial court was ambiguous and susceptible to differing

reasonable interpretations, we would apply, as a canon of last resort, the rule of

lenity provided in section 775.021(1): “The provisions of this code and offenses

defined by other statutes shall be strictly construed; when the language is

susceptible of differing constructions, it shall be construed most favorably to the

accused.”

      We conclude that the trial court’s construction of the statute, equating

attempted second-degree murder or a law enforcement officer to the completed

crime of second-degree murder, is an unreasonable construction not supported by a

plain reading of the statutory language. Instead, the only reasonable construction,

consistent with the plain language and the statute’s amendatory history, is that the

reference to “attempted murder in the second degree as described in s.782.04(2)” is

merely a reference to the only statutory provision where the offense of second



                                        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. In the absence of any statutory language

which actually provides for an increase or certainty in penalty, we find that Graves

was convicted of a second degree felony and, as an HFO, was subject to a

maximum sentence of 30 years in prison. The sentence of life in prison as an HFO

was therefore illegal.

      Noting the difficulty encountered by the State 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)). However, a statute that subjects a
defendant convicted of a nonhomicide to the death penalty has been held
unconstitutional. See Kennedy v. Louisiana, 554 U.S. 407 (2008) (holding the
Eighth Amendment prohibits imposition of the death penalty for the rape of a child
where the crime did not result, and was not intended to result, in the death of the
victim).

                                          18
Legislative Affairs, Office of the State Courts Administrator, to be considered in

the annual statutory clarification process.

      Based on the foregoing, we reverse the order denying Graves’ motion and

remand for a resentencing, at which Graves is entitled to be present, consistent

with this opinion.




                                          19
