          Supreme Court of Florida
                                    ____________

                                    No. SC12-1277
                                    ____________

                                   JOSUE COTTO,
                                      Petitioner,

                                           vs.

                               STATE OF FLORIDA,
                                   Respondent.

                                    [May 15, 2014]

LEWIS, J.

      Josue Cotto seeks review of the decision of the Third District Court of

Appeal in Cotto v. State, 89 So. 3d 1025 (Fla. 3d DCA 2012), on the basis that the

Third District certified that its decision is in conflict with the decision of the Fifth

District Court of Appeal in Williams v. State, 10 So. 3d 1116 (Fla. 5th DCA 2009).

We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

                                        FACTS

      This matter concerns the sentence imposed on Cotto for several crimes he

committed on December 1, 2002. On that date, Cotto approached a stranger on a

street in South Beach and told the stranger that he had just been “ripped off” during
an attempt to buy cocaine. Cotto proceeded to take out a gun, point it at the

stranger’s stomach, and ask the stranger if he wanted anybody to be killed. When

the stranger replied in the negative, Cotto put the gun in his pocket and walked

away. The stranger called the police, who arrived immediately and arrested Cotto.

Cotto was subsequently convicted of carrying a concealed firearm, aggravated

assault with a firearm, and possession of a firearm by a convicted felon. 1

      Cotto was sentenced as a prison releasee reoffender (PRR) for the conviction

of aggravated assault with a firearm and was sentenced to five years’ incarceration.

Cotto was sentenced to ten years’ incarceration as a habitual felony offender

(HFO) for the conviction of carrying a concealed firearm. He was also sentenced

to thirty years’ incarceration as an HFO for the conviction of possession of a

firearm by a convicted felon, with a ten-year minimum mandatory pursuant to the

ten/twenty/life statute. The HFO sentences were imposed to run concurrent to each

other, but consecutive to the five-year PRR sentence. Thus, Cotto was sentenced

to a total of thirty-five years’ incarceration.

      Cotto’s sentences were affirmed without opinion on appeal to the Third

District Court of Appeal. Cotto v. State, 990 So. 2d 1072 (Fla. 3d DCA 2008)


      1. Cotto was also convicted of improper exhibition of a weapon and
possession of a firearm with an altered ID number. However, these convictions
and the sentences imposed for them are not relevant to the issue presented by this
case.


                                           -2-
(table). Subsequently, Cotto filed a pro se rule 3.850 motion for postconviction

relief that alleged, among other things, that his thirty-five year sentence was illegal

under Hale v. State, 630 So. 2d 521, 525 (Fla. 1993), in which this Court held that

sentences enhanced under the habitual violent felony offender (HVFO) provision

of section 775.084, Florida Statutes, cannot run consecutively to other sentences

that arise from the same criminal episode. The trial court denied Cotto’s motion

for postconviction relief, and the Third District affirmed. Cotto, 89 So. 3d at 1034.

The Third District held that Hale prohibits the imposition of consecutive sentences

for crimes that arise out of a single criminal episode only where both sentences are

enhanced through a sentencing scheme that extends the permissible sentence

beyond that prescribed by section 775.082, Florida Statutes.2 However, the Third

District concluded that Hale does not prohibit the imposition of consecutive

sentences if the statute under which the defendant is sentenced does not extend the

maximum permissible sentence delineated by section 775.082. Id. at 1033-34.

Thus, the Third District concluded that because the PRR statute imposes a

mandatory minimum that is in accordance with, and not beyond, the statutory

maximum, a PRR sentence is not an enhanced sentence, and a trial court therefore

may impose an HFO sentence consecutive to a PRR sentence. Id. at 1034.



      2. Section 775.082 delineates the penalties for felonies and misdemeanors
unless another sentencing provision applies.

                                         -3-
      The Third District certified a conflict with the decision of the Fifth District

in Williams, 10 So. 3d 1116, in which the Fifth District held that although a PRR

sentence is not an enhanced sentence, because an HVFO sentence is an enhanced

sentence, Hale applies and consecutive sentencing for crimes that arise from a

single criminal episode is improper. Id. This review follows.

                                    ANALYSIS

                                Standard of Review

      This case presents a question of statutory construction. Questions of

statutory interpretation are reviewed de novo. Se. Floating Docks, Inc. v. Auto-

Owners Ins. Co., 82 So. 3d 73, 78 (Fla. 2012).

      Our purpose in construing a statutory provision is to give effect to legislative

intent, which is the polestar that guides a statutory construction analysis. Larimore

v. State, 2 So. 3d 101, 106 (Fla. 2008). All statutory provisions must be given their

full effect by the courts, and related statutory provisions must be construed in

harmony with one another. Id.; see also Heart of Adoptions, Inc. v. J.A., 693 So.

2d 189, 199 (Fla. 2007).

                      PRR and Habitual Offender Statutes

      The PRR statute is a mandatory minimum provision that creates a sentencing

floor. See State v. Cotton, 769 So. 2d 345, 354 (Fla. 2000). The PRR statute

provides:


                                         -4-
    (9)(a)1. “Prison releasee reoffender” means any defendant who
commits, or attempts to commit:

[Certain enumerated crimes]

within 3 years after being released from a state correctional facility . .
. or within 3 years after being released from a correctional institution
of another state . . . following incarceration for an offense for which
the sentence is punishable by more than 1 year in this state.
       ...
       3. If the state attorney determines that a defendant is a prison
releasee reoffender as defined in subparagraph 1., the state attorney
may seek to have the court sentence the defendant as a prison releasee
reoffender. Upon proof from the state attorney that establishes by a
preponderance of the evidence that a defendant is a prison releasee
reoffender as defined in this section, such defendant is not eligible for
sentencing under the sentencing guidelines and must be sentenced as
follows:

        a. For a felony punishable by life, by a term of imprisonment
for life;
        b. For a felony of the first degree, by a term of imprisonment
of 30 years;
        c. For a felony of the second degree, by a term of
imprisonment of 15 years; and
        d. For a felony of the third degree, by a term of imprisonment
of 5 years.

      (b) A person sentenced under paragraph (a) shall be released
only by expiration of sentence and shall not be eligible for parole,
control release, or any form of early release. Any person sentenced
under paragraph (a) must serve 100 percent of the court-imposed
sentence.

      (c) Nothing in this subsection shall prevent a court from
imposing a greater sentence of incarceration as authorized by law,
pursuant to s. 775.084 [the habitual offender statute] or any other
provision of law.




                                   -5-
             (d)1. It is the intent of the Legislature that offenders previously
      released from prison who meet the criteria in paragraph (a) be
      punished to the fullest extent of the law and as provided in this
      subsection, unless the state attorney determines that extenuating
      circumstances exist which preclude the just prosecution of the
      offender, including whether the victim recommends that the offender
      not be sentenced as provided in this subsection.

§ 775.082, Fla. Stat. (2002) (emphasis supplied). In contrast to the PRR statute,

the HFO provision allows courts to sentence a defendant who qualifies as an HFO

to an extended term of imprisonment. See § 775.084(1)(a), (4)(a), Fla. Stat.

(2002). The HFO provision provides:

             (1) As used in this act:

            (a) “Habitual felony offender” means a defendant for whom the
      court may impose an extended term of imprisonment, as provided in
      paragraph (4)(a), if it finds that:

            1. The defendant has previously been convicted of any
      combination of two or more felonies in this state or other qualified
      offenses.
            2. The felony for which the defendant is to be sentenced was
      committed:

             a. While the defendant was serving a prison sentence or other
      sentence, or court-ordered or lawfully imposed supervision that is
      imposed as a result of a prior conviction for a felony or other qualified
      offense; or
             b. Within 5 years of the date of the conviction of the
      defendant’s last prior felony or other qualified offense, or within 5
      years of the defendant’s release from a prison sentence, probation,
      community control, control release, conditional release, parole or
      court-ordered or lawfully imposed supervision or other sentence that
      is imposed as a result of a prior conviction for a felony or other
      qualified offense, whichever is later.



                                         -6-
             3. The felony for which the defendant is to be sentenced, and
      one of the two prior felony convictions, is not a violation of s. 893.13
      relating to the purchase or the possession of a controlled substance.

             4. The defendant has not received a pardon for any felony or
      other qualified offense that is necessary for the operation of this
      paragraph.

             5. A conviction of a felony or other qualified offense necessary
      to the operation of this paragraph has not been set aside in any
      postconviction proceeding.
             ....
             (4)(a) The court, in conformity with the procedure established
      in paragraph (3)(a), may sentence the habitual felony offender as
      follows:

              1. In the case of a life felony or a felony of the first degree, for
      life.
            2. In the case of a felony of the second degree, for a term of
      years not exceeding 30 [years’ imprisonment].
            3. In the case of a felony of the third degree, for a term of years
      not exceeding 10 [years’ imprisonment].

Id. The HVFO provision is a subdivision of the same statute and is substantially

the same as the HFO provision, except that the HVFO provision applies to

defendants who were previously convicted of certain enumerated violent felonies.

Both the HFO and HVFO provisions are enhancements to which Hale applies. See

State v. Hill, 660 So. 2d 1384, 1385 (Fla. 1995). Together, the HFO and HVFO

provisions are called the habitual offender statute. See, e.g., State v. Collins, 985

So. 2d 985, 991 (Fla. 2008). Although the habitual offender statute does not

contain an express statement of legislative intent, we have stated that the intent of

the statute is to incarcerate repeat felony offenders for longer periods of time by

                                          -7-
enlargement of the maximum sentence that can be imposed. See Hale, 630 So. 2d

at 524; see also Daniels v. State, 595 So. 2d 952, 954 (Fla. 1992).

                               Development of Hale

      This Court held in Hale that sentences imposed pursuant to the HVFO

statute for convictions that arise from a single criminal episode may not run

consecutively. 630 So. 2d at 524. The holding in Hale relied upon the precedent

of this Court with regard to consecutive and concurrent sentences in Palmer v.

State, 438 So. 2d 1 (Fla. 1983), State v. Enmund, 476 So. 2d 165 (Fla. 1985), and

Daniels.

      In Palmer, this Court held that a defendant could not be sentenced to

consecutive minimum mandatory sentences under section 775.087(2), Florida

Statutes (1981), if the separate sentences arose from a single criminal episode. 438

So. 2d at 3-4. The defendant in Palmer brandished a revolver while he robbed

mourners at a funeral and was convicted of thirteen counts of robbery. Id. at 2.

Section 775.087(2) mandated a three-year minimum sentence for any person who

possessed a firearm during the commission of certain enumerated felonies, one of

which was robbery. The trial court imposed the three-year minimum mandatory

sentence for each of thirteen robbery counts, with the sentences to run

consecutively, for a total minimum mandatory sentence of thirty-nine years. Id. at

2. However, this Court held that the consecutive sentencing was illegal because


                                        -8-
the language of section 775.087(2) authorized courts to deny defendants parole

eligibility for only three years, but with consecutive sentencing the defendant

would not become eligible for parole for thirty-nine years. Id. at 3. The Court

based this conclusion on the rule of construction that anything “not clearly and

intelligently described” in a penal statute and “manifestly intended by the

Legislature” will not be considered included within the terms of the statute. Id.

(quoting State v. Wershow, 343 So. 2d 605, 608 (Fla. 1977)). Thus, consecutive

sentencing was not allowed in Palmer because it was not permitted by the language

of the statute or clearly intended by the Legislature. 3

      Two years after Palmer, this Court addressed whether Palmer prevented a

trial court from imposing the minimum mandatory sentences for each of two

murder convictions consecutively. Enmund, 476 So. 2d at 168. This Court

explained that because the statute that prescribed the sentence for first-degree

murder included a mandatory minimum without any enhancement, the Legislature

intended for trial courts to have the discretion to impose such sentences either

concurrently or consecutively. Id. Thus, Palmer does not apply where the

Legislature intended to permit consecutive sentencing.



       3. The statute has since been amended to make parole unavailable to
defendants who have been convicted pursuant to section 775.087, and to mandate
that sentences imposed pursuant to the statute be imposed consecutively to any
other term of imprisonment. See § 775.087(2)(d), Fla. Stat. (2013).

                                          -9-
      Subsequently, this Court followed the rationale of Palmer in Daniels to hold

that mandatory minimum sentences imposed pursuant to the HVFO provision may

not be imposed consecutively for crimes that arise from a single criminal episode.

Daniels, 595 So. 2d at 954. In so doing, the Court likened the HVFO statute to the

enhancement for possession of a firearm in Palmer because the sentence for the

defendant’s underlying offense contained no minimum mandatory before the

HVFO enhancement. Id. at 953. As in Palmer, the Court looked to the language

of the statute to determine whether consecutive sentencing was permissible. The

Court concluded that the legislative intent to increase the period of incarceration

for repeat felony offenders was accomplished by the enlargement of the maximum

sentence that may be imposed, and the Legislature had not authorized courts to

impose consecutive minimum mandatory HVFO sentences where the crimes arise

from a single criminal episode. Id.

      The Court next relied on Daniels in Hale. The defendant in Hale was

charged with the possession and sale of the same cocaine and was sentenced for

each charge as an HVFO. 630 So. 2d at 522. The trial court imposed two

consecutive twenty-five-year sentences pursuant to the HVFO provision with a

ten-year minimum mandatory for each sentence. Id. at 523. As in Daniels, this

Court determined that the legislative intent to provide for longer periods of

incarceration for repeat offenders was satisfied when the trial court used the HVFO


                                        - 10 -
statute to increase the maximum sentence for each offense. Id. at 524. The Court

held:

        [T]he trial court is not authorized . . . to both enhance Hale’s sentence
        as a habitual offender and make each of the enhanced habitual
        offender sentences for the possession and the sale of the same
        identical piece of cocaine consecutive, without specific legislative
        authorization in the habitual offender statute.

Id. at 525. Therefore, Hale stands for the proposition that once multiple sentences

from a single criminal episode are enhanced through the habitual offender statute,

the total penalty cannot be further increased by consecutive sentencing absent

specific legislative authorization. Id. This holding was reaffirmed by the Court in

Hill, 660 So. 2d at 1386 (holding that unless the Legislature modifies the habitual

offender statute, trial courts may not sentence a defendant as a habitual offender

and order that the sentences be served consecutively).

        The underlying rationale of Hale has been applied to certain other enhanced

sentences. See Jackson v. State, 659 So. 2d 1060, 1062-63 (Fla. 1995) (“As we

noted in Daniels, possession of a gun, section 775.087, is an enhancement statute

applying to the punishment prescribed by statute for the underlying offense. Under

Daniels’ rationale, Jackson’s minimum mandatory sentence for possession of a

firearm must run concurrent with the habitual offender minimum mandatory

sentences, since both of these minimum mandatory sentences are enhancements.”

(citation omitted)). However, a PRR sentence is not an enhanced sentence within


                                          - 11 -
the meaning of Hale. See Reeves v. State, 920 So. 2d 724, 726 (Fla. 5th DCA

2006), app’d 957 So. 2d 625 (Fla. 2007) (“The rule established in Hale and Daniels

applies to sentences that have been enhanced beyond the statutory maximum. A

PRR sentence is not enhanced beyond the statutory maximum. Consequently, we

conclude that the rule established in Hale and Daniels has no application here.”).

The PRR statute does not increase the maximum period of incarceration to which a

person may be sentenced. Rather, under the PRR statute, only the maximum

allowable sentence may be imposed. We are unwilling to extend Hale to apply to

unenhanced sentences.

       Furthermore, this Court has never applied Hale to the PRR statute. The PRR

statute specifically states that the legislative intent is to punish those eligible for

PRR sentencing to the fullest extent of the law. See § 775.082(9)(d)1., Fla. Stat.

(2002). This express statement of intent demonstrates that the discretion of trial

courts to impose consecutive sentences is not in any way limited by the PRR

statute. The statutes at issue in Palmer, Daniels, and Hale did not include a similar

statement of legislative intent. Indeed, the legislative intent expressed with regard

to the habitual offender statute in Hale is different than that expressed in the PRR

statute. While the intent behind the habitual offender statute is to increase the

maximum allowable sentence, the intent behind the PRR provision is to provide for

maximum sentencing within the sentencing statute. Therefore, although the


                                          - 12 -
legislative intent in the habitual offender statute is satisfied upon the imposition of

an extended sentence beyond the otherwise applicable statutory maximum, the

PRR statute expressly authorizes trial courts to impose the maximum sentence,

which contemplates the use of consecutive sentencing. Based on this unambiguous

expression of legislative intent in the PRR statute, we conclude that Hale does not

prohibit a trial court from imposing a PRR sentence consecutive to a habitual

offender sentence.

                                   CONCLUSION

      Based on the foregoing, we hold that Hale does not prohibit a habitual

offender sentence from being imposed consecutively to a PRR sentence.

Accordingly, we approve the decision of the Third District in Cotto and disapprove

Williams.

      It is so ordered.

POLSTON, C.J., and PARIENTE, QUINCE, CANADY, LABARGA, and
PERRY, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions

      Third District – Case No. 3D10-3418

      (Miami-Dade County)




                                         - 13 -
Carlos J. Martinez, Public Defender, and Daniel Tibbett, Assistant Public
Defender, Miami, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Richard L. Polin, Bureau
Chief, Criminal Appeals, and Linda S. Katz, Assistant Attorney General, Miami,
Florida,

      for Respondent




                                      - 14 -
