       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                              LENIST KEY,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D19-1233

                           [February 12, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin S. Fein, Judge; L.T. Case No. 11002654CF10A.

   Antony P. Ryan, Regional Counsel, Paul O’Neil, Assistant General
Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth
District, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Melynda L. Melear,
Assistant Attorney General, West Palm Beach, for appellee.

KLINGENSMITH, J.

    Lenist Key was tried and convicted for armed sexual battery and
armed kidnapping. Key appealed his judgments and sentences in May
2013. This Court affirmed. See Key v. State, 179 So. 3d 513 (Fla. 4th
DCA 2015). He then filed a petition alleging that he received ineffective
assistance of appellate counsel. In his petition, Key alleged that his
appellate counsel was ineffective in not challenging his habitual offender
designations on direct appeal, because at the time of his offenses, life
felonies were not subject to enhanced punishment as a habitual offender.
We agreed and remanded the case to the trial court for resentencing. See
Key v. State, 254 So. 3d 1000 (Fla. 4th DCA 2018).

    On remand, the trial court reviewed Key’s case file, including the trial
transcript, and held a hearing for resentencing. At that hearing, the
State requested an upward departure from the sentencing guidelines,
which provided for a maximum guidelines sentence of 225 months. The
trial court agreed, departed from the guidelines, and sentenced Key to
concurrent thirty-year sentences for each count. Key now challenges his
latest sentencing order, and for the reasons set forth below, we reverse
for new resentencing.

    “[T]he interpretation of a sentencing statute is . . . reviewed de novo.”
State v. Reininger, 254 So. 3d 996, 998 (Fla. 4th DCA 2018). Section
921.0016(3)(r), Florida Statutes (1995), permits an upward departure
from the sentencing guidelines when the “primary offense is scored at
offense level 7 or higher and the defendant has been convicted of one
more offense that scored, or would have scored, at an offense level 8 or
higher.” (emphasis added). “Only one count of one offense before the
court for sentencing shall be classified as the primary offense.” §
921.0011(4), Fla. Stat. (1995). “[A]ny offense other than the primary
offense for which an offender is convicted and that is pending before the
court for sentencing at the time of the primary offense” is deemed an
“additional offense.” § 921.0011(1), Fla. Stat. (1995).

   The trial court made an upward departure from the guidelines by
finding the existence of an aggravating circumstance, specifically, that
Key was convicted of a level seven offense or higher and had also been
convicted of a level eight or higher offense. See § 921.0016(3)(r), Fla.
Stat. The court found that both armed sexual battery and armed
kidnapping were level ten offenses.

   “As we have long held, ‘[w]hen the language of the statute is clear and
unambiguous and conveys a clear and definite meaning, there is no
occasion for resorting to the rules of statutory interpretation and
construction; the statute must be given its plain and obvious meaning.’”
Maddox v. State, 923 So. 2d 442, 449 (Fla. 2006) (quoting Holly v. Auld,
450 So. 2d 217, 219 (Fla. 1984)). However, “[w]here legislative intent is
unclear from the plain language of the statute, we look to canons of
statutory construction.” Kasischke v. State, 991 So. 2d 803, 811 (Fla.
2008).

   Whether the statute was intended to apply only to a prior level eight or
higher offense, or could be applied to additional offenses, is unclear from
the language of the statute. It is unclear whether the legislature meant
to include additional offenses pending in front of the trial court when it
referred to offenses the defendant “has been convicted of.” See id.; §
921.0016(3)(r), Fla. Stat.    Here, the trial court interpreted section
921.0016(3)(r) to include an additional offense, and because both
pending offenses were level ten felonies, the trial court found there was
an aggravating circumstance and exceeded the maximum recommended
sentence.


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    Our goal in construing statutes is to ascertain and carry out the
legislative purpose of the statute by applying clear statutory language as
written, and not to seek out or construct an interpretation that
necessarily favors one party or the other. When a court must construe
an equivocal criminal statute, or when the statute is open to more than
one interpretation and the court is otherwise unable to determine which
interpretation was intended by the Legislature, it may invoke a concept
known as the “rule of lenity.” See Kasischke, 991 So. 2d at 814. Instead
of the court arbitrarily choosing one of the competing interpretations, the
rule provides that a court should apply the interpretation that treats the
defendant more leniently. See id. (quoting State v. Byars, 823 So. 2d
740, 742 (Fla. 2002) (“The rule requires that ‘[a]ny ambiguity or
situations in which statutory language is susceptible to differing
constructions must be resolved in favor of the person charged with an
offense.’”)). For a court construing a statute, the rule of lenity is not a
means for determining—or defeating—legislative intent. It is not unlike
the old baseball axiom that “the tie goes to the runner.” Although there
is no such rule in the baseball rulebook, this axiom is frequently used by
umpires to resolve close disputes as to whether a runner has been
thrown out at first base. See MAJOR LEAGUE BASEBALL, OFFICIAL BASEBALL
RULES r. 5.09(a)(10), at 42 (Tom Lepperd ed., 2018) (stating that the
defense must clearly put the runner out at first base by tagging him or
the base before the runner touches the base).

    Just like the axiom above, the rule of lenity is not so much a rule in
the usual sense, but an aid for dealing with ambiguity in a criminal
statute. See Kasischke, 991 So. 2d at 814. It is a means of last resort,
a default device to be rarely deployed and applied to decide which
interpretation prevails when traditional principles of statutory
construction fail. See id. As indicated above, there is no need to apply
the rule of lenity unless there is an unresolvable ambiguity in the statute
in question. See id. Having reviewed section 921.0016(3)(r), we find that
the phrase “has been convicted,” as used in the statute, is ambiguous.
Because the ambiguity cannot be resolved with other methods, we must
resort to applying the rule. See id. The punitive nature of this
sentencing statute renders it particularly amenable to the rule of lenity,
see Gross v. State, 820 So. 2d 1043, 1045 (Fla. 4th DCA 2002), especially
in light of the fact that no Florida appellate court has expressly ruled on
the issue of whether section 921.0016(3)(r) allows for an additional
offense to be used in considering an upward departure.

   Nonetheless, we are guided by how district courts have dealt with
issues involving the application of section 921.0016(3)(r) in other cases.
We found that those courts, including ours, have uniformly interpreted

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its language to apply to prior offenses of level eight or higher. See Poole
v. State, 968 So. 2d 82, 83 (Fla. 5th DCA 2007) (stating that the statute
“authoriz[ed] an upward departure where the primary offense scored at
offense level seven or higher and the defendant had previously been
convicted of one or more offenses that scored at an offense level eight or
higher.” (emphasis added)); Elmer v. State, 732 So. 2d 21, 22 (Fla. 1st
DCA 1999) (“The trial judge also designated the sentences as departure
sentences, pursuant to section 921.0016(3)(r), Florida Statutes (1995), in
that robbery with a firearm is a level 9 offense, and one of Elmer’s
previous offenses was a level 8 or higher offense.” (emphasis added));
Wilson v. State, 696 So. 2d 528, 529 (Fla. 4th DCA 1997) (“We agree with
appellant that a juvenile adjudication cannot constitute a prior ‘level 8 or
higher’ conviction under section 921.0016(3)(r).” (emphasis added)).

   We agree with Key’s contention that section 921.0016(3)(r)’s language
refers to prior offenses. See Wilson, 696 So. 2d at 529; accord Poole, 968
So. 2d at 83; Elmer, 732 So. 2d at 22. Additional offenses are not
included in section 921.0016(3)(r)’s definition of “has been convicted,”
and the trial court inappropriately exceeded the maximum guidelines
when sentencing Key. See § 921.0016(2), Fla. Stat. (1995). We reverse
Key’s resentencing and remand for the trial court to resentence him
without the using the aggravating circumstance found in section
921.0016(3)(r).

   Reversed and remanded for resentencing.

GROSS and DAMOORGIAN, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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