                       DISTRICT COURT OF APPEAL, FIRST DISTRICT
                                    2000 Drayton Drive
                              Tallahassee, Florida 32399-0950
                               Telephone No. (850)488-6151

                                    December 28, 2015
                                                   CASE NO.: 1D14-3003, 1D14-3197
                                                   L.T. No.: 2013-CF-10527-AXXX


State of Florida                      v.          Ray Mon Wright

Appellant / Petitioner(s),                       Appellee / Respondent(s)

BY ORDER OF THE COURT:

       Ray Mon Wright’s motion for rehearing en banc and certification of a question of
great public importance, filed October 26, 2015, is denied.

LEWIS and WINOKUR, JJ., CONCUR. MAKAR, J., DISSENTS WITH OPINION

MAKAR, J., dissenting from the denial of certification.

       Our panel has been asked to certify a question of great public importance, the same

one proffered in my dissent in this case. The State has not opposed the motion of Ray

Mon Wright, but the panel has denied it, prompting this explanation of why certification

is appropriate to allow our supreme court to consider the matter. See Art. V, § 3(b)(4),

Fla. Const. (Florida Supreme Court “[m]ay review any decision of a district court of

appeal that passes upon a question certified by it to be of great public importance”).

       Cases involving certified questions of “great public importance” share

commonalities, most of which exist in this case. See generally Raoul G. Cantero III,

Certifying Questions to the Florida Supreme Court: What’s So Important?, 76 Fla. B.J.

40, 40 (May 2002) (summarizing and analyzing supreme court caselaw on the topic).
These factors include the importance of the issue; whether its resolution affects parties

statewide versus only the individual litigant; whether it is one of “first impression” or

arises regularly; whether caselaw is unclear; the significance of judicial and public policy

in its resolution; and the relevance of intervening legal developments. Id.; see also Harry

Lee Anstead et. al., The Operation and Jurisdiction of the Supreme Court of Florida, 29

Nova L. Rev. 431, 527 (2005) (discussing scope of certified questions). No single factor

compels the conclusion that certification is appropriate (of course, no one can force a

district court to grant certification), but where a quantum of these factors exists, the

balance shifts in favor of certification, particularly given the supreme court’s

discretionary jurisdiction in this category of cases. Notably, most certified questions

involve issues of criminal law, reflecting the importance of this body of law. What’s So

Important?, 76 Fla. B.J. 40, 40-44 (more than fifty percent of certifications are in the

“area of criminal procedure”). A certified question is warranted in this case for several

reasons.

      First, the certified question has statewide importance: sentencing under the Prison

Releasee Reoffender (PRR) Act occurs in every Florida circuit on a daily basis. Its

resolution affects more than just Wright—it affects all those across the state who are

similarly situated (i.e., those released from somewhere other than “a state correctional

facility operated by the Department of Corrections”). The exact number is indeterminate

but non-trivial; a number of these cases have passed through the district courts and others

are pending. Moreover, resolution of whether section 775.082(9)(a), Florida Statutes,
should be read as written or can be interpreted to apply to non-state facilities is an

independent legal question not involving unique or narrow facts.

      Second, the certified question is one of first impression that our supreme court may

wish to consider, particularly given the multiplicity of ways that judges have viewed its

resolution, resulting in unclear caselaw. Some apply the absurdity doctrine to uphold the

statute. See, e.g., Taylor v. State, 114 So. 3d 355 (Fla. 4th DCA 2013); Louzon v. State,

78 So. 3d 678 (Fla. 5th DCA 2012). Others claim the statute’s language allows for a

reasonable construction without applying the absurdity doctrine. See State v. Wright, 40

Fla. L. Weekly D2304a (Oct. 15, 2015) (Winokur, J., concurring). And at least one, id.

(Makar, J., dissenting), says the statute is clear and not absurd. Because judicial thinking

on the issue isn’t homogenous, our supreme court ought to have a chance to weigh in.

That one view or result has predominance, or that district courts aren’t in direct conflict,

doesn’t foreclose certification of a question of great public importance. Wright seeks a

certified question, not certified conflict.

      Third, the issue is no mere legal esoterica. It presents a fundamental question of

statutory interpretation with an important overlay of judicial and public policy. Strict

construction of statutes is a contemporary judicial mantra; we judges are to apply statutes

as they are written, even if we disagree with the ramifications or prefer a different result

(the absurdity doctrine providing a narrow safety net).

      This case presents a classic example. Wright’s eligibility for PRR status requires

him to have been “released from a state correctional facility operated by the Department
of Corrections,” which he was not. § 775.082(9)(a), Fla. Stat. Everyone agrees he was

released from a county jail. For a strict constructionist, the result is simple: apply the

statute as written, allowing the legislative branch to correct its own handiwork if it deems

it necessary (the simple legislative patch here is to add the phrase “county correctional

facility” to the list of release facilities in the statute). The deployment of novel legal

fictions (Wright was “constructively released” from a state facility or a Department

computer designated his detention facility as “Central Office”) serves only to highlight

that strict construction is not at work; these are judicial lifelines to a statute that doesn’t

need them. Applying the statute as written does no injustice to the Legislature; after all,

they’ve told us that Florida’s criminal code “shall be strictly construed; when the

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

the accused.” § 775.021(1), Fla. Stat. (2014); see Thompson v. State, 695 So. 2d 691, 693

(Fla. 1997). At least three differing constructions exist here.

      Fourth, judicial policy supports certification. Our supreme court recently said in a

PRR case that the “absurdity doctrine is not to be used as a freewheeling tool for courts to

second-guess and supplant the policy judgments made by the Legislature. It has long

been recognized that the absurdity doctrine ‘is to be applied to override the literal terms

of a statute only under rare and exceptional circumstances.’” State v. Hackley, 95 So. 3d

92, 95 (Fla. 2012) (citation omitted). The concurrence says the majority doesn’t rely on

the absurdity doctrine, yet the majority adopts and follows caselaw that applies the

doctrine, leaving readers to wonder. Putting aside how one might read our panel’s
divergent opinions, two district courts apply the absurdity doctrine, an approach that is at

odds with at least two of the three opinions in this case. From a judicial policy

perspective, only our supreme court can bring order to the jurisprudential confusion,

making certification appropriate.

      In addition, public policy forms a backdrop in this case, particularly as to whether

the Legislature could have meant that PRR status was based on “release[] from a state

correctional facility operated by the Department of Corrections.” As mentioned in my

dissent, a number of plausible rationales exist for why section 775.082(9)(a) is written

this way:

     A reasonable person could take the view that offenders released from DOC-
     operated state prisons are, on average, guilty of more serious crimes such that
     offenders released from a county facility would not trigger PRR sentencing; or
     perhaps the Legislature erred on the side of caution, limiting PRR status to
     releases from state prisons to avoid potential misclassifications of prisoners
     released from county facilities.

Wright, 40 Fla. L. Weekly D2304a (Makar. J., dissenting). Add to this list that inmates

like Wright, who are sentenced to time served in a county facility, are more likely—both

on average and at the margin—to be among those considered less dangerous and thereby

not subject to PRR sentencing. As a legislative policy matter, it isn’t farfetched to think

that PRR status requires actual release from the defined facility. Legislative line drawing

is a fact of life; and it is no more unreasonable to dismiss a lawsuit filed one day after a

statute of limitations has expired than to withhold PRR status for offenders who walk out

of county facilities.
      Given this case involves almost all of the factors supporting certification of a

question of great public importance, and that the State has not opposed doing so, I dissent

from the panel’s decision to preclude further judicial review of the matter. See The

Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. at 527 (“the

failure to certify a question eliminates this potential basis for the Supreme Court of

Florida’s jurisdiction.”).



      I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order.

Served:

Hon. Pamela Jo Bondi, A. G.      Hon. Nancy A. Daniels, P. D.     Meredith Charbula
Angela R. Hensel, A. A. G.       Leah A. Daza, A. S. A.           Kevin P. Steiger, A. P. D.

kr
