       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             WYLIE BILLUPS,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-3623

                              [Jun 27, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No. 50-2008-CF-
011478-AXXX-MB.

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

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

   This case is the story of what can happen when words in a case become
detached from a legal principle, to float freely in the ether of Westlaw or
Lexis like free radicals ready to trigger mutations in the law. Here we
return such free floating words to their original meaning and affirm the
sentences under review.

    After a trial, appellant was convicted of four felonies: (1) Robbery with
a firearm; (2) robbery with a firearm; (3) aggravated assault with a firearm;
and (4) felon in possession of a firearm.

   His original sentences were:

      Count I: robbery with a firearm, 30 years in prison, 10 year
      mandatory minimum;
         Count II: robbery with a firearm, 30 years in prison, 10 year
         mandatory minimum;

         Count III: aggravated assault with a firearm, 5 years in prison, 3
         year mandatory minimum, and

         Count IV: felon in possession of a firearm, 15 years in prison, 3 year
         mandatory minimum.

Counts I, II, and IV were imposed consecutively, including the mandatory
minimum provisions. Count III was imposed concurrently to Count I.

   These sentences were the subject of our decision in Billups v. State, 219
So. 3d 900 (Fla. 4th DCA 2017). Based on the Supreme Court’s decision
in Williams v. State, 186 So. 3d 989 (Fla. 2016) 1, we held that the
imposition of consecutive mandatory minimum sentences under section
775.087(2)(d), Florida Statutes (2008), was improper, because appellant’s
convictions arose from the same criminal episode and did not involve the
discharge of a firearm. Billups, 219 So. 3d at 900; see also Walton v. State,
208 So. 3d 60, 64 (Fla. 2016). We reversed the sentences and remanded
the case to the circuit court for resentencing.

   At the resentencing hearing, appellant argued that the four sentences,
in their entirety, had to be run concurrently, not just the mandatory
minimum portions of the sentences.

   The circuit judge commented that, from his review of the original
sentencing hearing, it was “clear” that the sentencing judge (since retired)
intended that appellant serve 75 years in prison. In response to
appellant’s argument that all sentences had to run concurrently, the judge
observed that Florida’s policy is not that crimes are “cheaper by the dozen”
and that “when you have separate victims the court should be able to
impose consecutive sentences.”


1   Williams stated this general rule applicable to this case:

         Generally, consecutive sentencing of mandatory minimum
         imprisonment terms [under the 10-20-Life statute] for multiple
         firearm offenses is impermissible if the offenses arose from the same
         criminal episode and a firearm was merely possessed but not
         discharged.

186 So. 3d at 993. We applied this general rule in ordering resentencing in this
case. Billups, 219 So. 3d at 900.

                                          -2-
   The judge resentenced appellant as follows, nunc pro tunc to September
17, 2010:

      Count I: 30 years in prison, with a 10 year mandatory minimum;

      Count II: 30 years in prison, with a 10 year mandatory minimum,
      consecutive to Count I;

      Count III: 5 years in prison, with a 3 year mandatory minimum,
      concurrent to Count I;

      Count IV: 15 years in prison, with a 3 year mandatory minimum,
      consecutive to Count II.

Pursuant to this court’s mandate, the court ran all the mandatory
minimum portions of the sentences concurrently.

   This sentencing scheme creates two theoretical sentencing gaps in
Counts II and IV. For Count II, the 20 year portion of the sentence in
excess of the mandatory minimum does not begin to run until the sentence
in Count I has been completed. For Count IV, the 12 year portion of the
sentence in excess of the mandatory minimum does not begin to run until
the 20 year portion of the Count II sentence has been completed. The
chart below provides a pictorial representation of the sentences:

Count 1   10 min man       20 years
Count 2   10 min man       - Break in sentence -   20 years
Count 3   3 min
                 5 years
Served    man
Count 4   3 min
                                 - Break in sentence -           12 years
          man

   Needless to say, appellant would continuously serve his prison
sentence until the end of the sentence in Count IV, so the gaps are
theoretical only. Appellant would experience the sentence as one long
continuous period of incarceration.

   Appellant’s challenge here is to these theoretical sentencing gaps,
arguing that the Florida Supreme Court has held, “a prisoner is entitled to
pay his debt to society in one stretch, not in bits and pieces.” Segal v.
Wainwright, 304 So. 2d 446, 448 (Fla. 1974).

   In construing a sentencing statute, a court must “give effect to
legislative intent.” Mendenhall v. State, 48 So. 3d 740, 747 (Fla. 2010).

                                     -3-
   The legislature has been crystal clear in stating the intent behind
section 775.087—“that offenders who actually possess, carry, display, use,
threaten to use, or attempt to use firearms or destructive devices be
punished to the fullest extent of the law.” § 775.087(2)(d), Fla. Stat.
(2017) (emphasis supplied). The Supreme Court has expounded on this
legislative policy:

      [T]he Legislature has very clearly mandated that it is the policy
      of this State to deter the criminal use of firearms. This
      mandate is underscored by the widespread promulgation of
      the 10–20–LIFE law beyond mere statutory notice, through
      television commercials, posters, and other forms of
      advertising.    This policy is further underscored by the
      statement of legislative intent in section 775.087, which was
      added in 1999, see ch. 99–12, § 1, at 538–42, Laws of Fla.,
      and the accompanying increase to the mandatory minimum
      sentence under section 775.087 from three years for all crimes
      to ten years for all crimes except aggravated assault,
      possession of a firearm, or burglary. Id.

McDonald v. State, 957 So. 2d 605, 611 (Fla. 2007). As the Court noted in
McDonald, in promulgating the 10-20-Life statute, the Legislature set forth
the reasons that violations of the statute be punished to the “fullest extent
of the law:”

      WHEREAS, Florida ranks among the most violent states in the
      nation, and

      WHEREAS, in 1975 the Florida Legislature enacted legislation
      requiring a minimum mandatory sentence of three years in
      prison for possessing a gun during the commission or
      attempted commission of a violent felony, and

      WHEREAS, the Legislature enacted this mandatory penalty in
      order to protect citizens from criminals who are known to use
      guns during the commission of violent crimes, and

      WHEREAS, the FBI reports that among persons identified in
      the felonious killings of law enforcement officers in 1997, 71%
      had prior criminal convictions, and one of every four were on
      probation or parole for other crimes when they killed the
      officers, and



                                    -4-
      WHEREAS, criminals who use guns during the commission of
      violent crimes pose an increased danger to the lives, health,
      and safety of Florida’s citizens and to Florida’s law
      enforcement officers who daily put their lives on the line to
      protect citizens from violent criminals, and

      WHEREAS, the Legislature intends to hold criminals more
      accountable for their crimes, and intends for criminals who use
      guns to commit violent crimes to receive greater criminal
      penalties than they do today, and

      WHEREAS, the Legislature intends that when law
      enforcement officers put themselves in harm’s way to
      apprehend and arrest these gun-wielding criminals who
      terrorize the streets and neighborhoods of Florida, that these
      criminals be sentenced to longer mandatory prison terms than
      provided in current law, so that these offenders cannot again
      endanger law enforcement officers and the public, and

      WHEREAS, there is a critical need for effective criminal justice
      measures that will ensure that violent criminals are sentenced
      to prison terms that will effectively incapacitate the offender,
      prevent future crimes, and reduce violent crime rates, and

      WHEREAS, it is the intent of the Legislature that criminals
      who use guns to commit violent crimes be vigorously
      prosecuted and that the state demand that minimum
      mandatory terms of imprisonment be imposed pursuant to
      this act . . .

Id. at 611-12, quoting Ch. 99-12, Laws of Fla., at 537-38 (Emphasis
added).

   Against this mass of legislative intent emphasizing punishment,
appellant relies on language plucked from Segal v. Wainwright, that “a
prisoner is entitled to pay his debt to society in one stretch, not in bits and
pieces.” 304 So. 2d at 448. That is a far narrower principle than appellant
contends. The legal principle derives from situations where a defendant
has been released from incarceration, whether on parole or otherwise.
This is not the situation presented here, where appellant will continuously
serve the sentence imposed by the circuit judge.

   Segal involved a situation where a defendant was convicted of
attempted robbery, sentenced to “not more than 5 years” and paroled. He

                                     -5-
then committed two crimes, for which he was convicted and sentenced to
one year and for which his parole was revoked. He completed his sentence
for the two crimes (apparently in a county jail) and was returned to the
state custody “for completion of his initial robbery sentence.” Id. at 447.
He was paroled, arrested for robbery, convicted, sentenced to 9 years, and
for which his parole was revoked. Id.

    The Division of Corrections took the position that the defendant would
not complete service of his initial 5 year sentence until after he served the
subsequently imposed 9 year sentence. The Supreme Court rejected that
approach in a situation where the defendant had been paroled on the
initial 5 year sentence, was sentenced subsequently for later committed
crimes, and was entitled to some credit on the 5 year sentence for time
served on the one year sentence. Id. at 448.

    As authority for the statement that a defendant “is entitled to pay his
debt to society in one stretch, not in bits and pieces,” Segal relied on State
v. Coleman, 5 So. 2d 60 (Fla. 1941), a case which also involves a situation
where a defendant was released from custody. The Coleman defendant
was “committed to the county jail” to serve a six month sentence. Id. at
29. Five days later, without her consent, she was released from custody.
Id. After she was free for “more than six months,” the Dade County Sheriff
took her into custody to serve the remainder of the six month sentence.
Id. As the Supreme Court framed it, the question it had to “decide is
whether the State can stay the running of a jail sentence prior to
expiration, once it begins, without the convict’s consent.” Id. at 30.

   The Supreme Court held that the Coleman defendant was entitled to
release by way of habeas corpus, that the State could not split up the jail
sentence without the defendant’s consent, and commented that a “convict
has a right to pay his debt to society by one continuous period of
imprisonment.” Id.

   Both Segal and Coleman rest on the notion that a sentence of
incarceration cannot be split by periods of freedom. That is not the
situation in this case, where appellant will serve the mandatory minimums
concurrently pursuant to Williams, but will serve the remainder of the
sentences consecutively in one continuous period of incarceration. Unlike
the situation in Segal, the crimes for which appellant was sentenced were
part of the same criminal episode and he was sentenced for all crimes at
the same time. Appellant’s sentencing contention would require an absurd
result—that a crime with multiple victims had to be punished the same as
a crime with a single victim. Such a result is contrary to the expressed
intent of the legislature in enacting the 10-20-Life statute.

                                     -6-
   We distinguish Smith v. State, 43 Fla. L. Weekly D771a (Fla. 4th DCA
April 11, 2018). That case involved the sentencing of a defendant as a
prison release reoffender, not a sentencing under the 10-20-Life statute,
where only mandatory minimum sentences were required to be
concurrent.

   We acknowledge that other district courts of appeal have applied
Segal’s “bits and pieces” language beyond the fact situations present in
Coleman and Segal to sentences involving continuous periods of
incarceration. See Stroman v. State, 837 So. 2d 1070 (Fla. 2d DCA 2003);
Preyer v. State, 575 So. 2d 748 (Fla. 5th DCA 1991); Rozmestor v. State,
381 So. 2d 324 (Fla. 5th DCA 1980). None of these cases concerned
sentences where a defendant was released from incarceration as in Segal
and Coleman. None of these cases involve the 10-20-Life statute with its
express legislative directive that offenders be punished “to the fullest
extent of the law.” § 775.087(2)(d), Fla. Stat. (2017). In cases with multiple
victims, to allow the requirement of concurrent mandatory minimum
sentences to handcuff a judge’s sentencing options is to nullify the express
legislative intent.

   We agree with appellant’s contention that the sentence calculates to 62
years, as set forth above.

   Affirmed.

GERBER, C.J., concurs.
CONNER, J., dissents with opinion.

CONNER, J., dissenting.

   Although the conclusion reached by the majority is very attractive, my
understanding of the law constrains me to dissent. I contend this case is
not a story of what can happen when words in a case become detached
from a legal principle, but instead, this case raises the question of whether
a statute has altered a common law rule of Florida. I also contend that
the common law rule of Florida, relevant to this case, is that once a
sentence begins, it is to be served continuously and without interruption.
I do not agree with the majority that section 775.087, Florida Statutes,
altered the common law. I disagree with the majority contention that the
resentences for counts 2 and 4 impose “theoretical sentencing gaps”;
instead, the sentence gaps are palpable ones, as concretely demonstrated
in the majority’s graphic. Finally, I contend our supreme court’s opinion
in Williams v. State, 186 So. 3d 989 (Fla. 2016), as well as other supreme
court case law and a substantial body of case law from this District and

                                     -7-
others, compels us to reverse the resentences imposed by the trial court
for counts 2 and 4 after our last remand, and again remand the case for
resentencing on those counts.

   The premise of the majority’s opinion is that the language that a
“convict has a right to pay his debt to society by one continuous period of
imprisonment,” State ex rel. Libtz v. Coleman, 5 So. 2d 60, 61 (Fla. 1941),
and “a prisoner is entitled to pay his debt to society in one stretch, not in
bits and pieces,” Segal v. Wainwright, 304 So. 2d 446, 448 (Fla. 1974),
announces “a far narrower principle than appellant contends.” More
specifically, the majority contends that “[b]oth Segal and Coleman rest on
the notion that a sentence of incarceration cannot be split by periods of
freedom,” which is not the factual situation presented in this case.

   Part of my problem with this premise is that it ignores what I consider
to be additional key language in Coleman. The majority correctly points
out that the supreme court framed the question presented in Coleman as
“whether the State can stay the running of a jail sentence prior to
expiration, once it begins, without the convict’s consent,” but the court
also said, “It is alleged and not denied that the sentence was interrupted
without petitioner’s consent.” Coleman, 5 So. 2d at 61 (emphases added).
The majority seemingly ignores the use of the word “stay” with regards to
sentencing. It is difficult for me to conclude the language in Coleman is
limited to situations in which a prisoner was improperly given release from
a sentence. To me, the terms “stay” and “interruption,” particularly in the
context of what the State can do, connotes something more than the
precise fact patterns discussed in Coleman and Segal.

    It is also significant the manner in which our supreme court expressed
itself regarding a criminal’s “right to pay his debt to society by one
continuous period of imprisonment.” The court has said:

      We recognize the general rule that a sentence to jail is
      executed only when the convict has actually suffered the
      imprisonment unless relieved by some competent authority.
      15 Am.Jur. Criminal Law, Section 512.

      A limitation to this general rule is sustained by logic and good
      authority. This limitation is to the effect that the convict has a
      right to pay his debt to society by one continuous period of
      imprisonment.




                                     -8-
Coleman, 5 So. 2d at 61 (emphasis added). It appears to me the court was
clearly stating a Florida common law rule: once an incarceration sentence
begins, it is to be served continuously and without interruption.

  Additionally, I am concerned that the majority has overlooked some
important language in its partial quote from Segal. The full quote is:

      The most striking feature of this case, as reflected above, is
      respondent’s apparent disregard of our oft-repeated holdings
      that a prisoner is entitled to pay his debt to society in one
      stretch, not in bits and pieces.

Segal, 304 So. 2d at 448 (emphasis added). Again, it strikes me that the
court is referring to a common law rule that once a prison sentence begins,
it is to be continuous and uninterrupted.

   As the majority correctly acknowledges, “other district courts of appeal
have applied Segal’s ‘bits and pieces’ language beyond the fact situations
present in Coleman and Segal to sentences involving continuous periods
of incarceration.” What the majority fails to acknowledge, is that this
District has also relied upon the “bits and pieces” language to resolve
factual situations beyond those presented in Coleman and Segal, and even
ones similar to the facts of the instant case. In Regisma v. State, 120 So.
3d 144 (Fla. 4th DCA 2013), we recently upheld a sentence after stating,
“Generally, Florida courts are without authority to impose ‘piecemeal’
sentences that are interrupted and, thus, divided without the defendant’s
consent.” Id. at 146 (quoting Goodwin v. State, 752 So. 2d 689, 691 (Fla.
1st DCA 2000)); see also Francisco-Augustin v. State, 695 So. 2d 1299,
1300 (Fla. 4th DCA 1997) (reversing on concession of error a sentence for
count 2 in which a portion of the sentence ran consecutively to count 1
and the remainder ran concurrently with count 1, relying on Rozmestor v.
State, 381 So. 2d 324 (Fla. 5th DCA 1980)); cf. Gordon v. State, 960 So. 2d
31, 40 (Fla. 4th DCA 2007) (noting that serving time spent in jail on the
weekends as a condition of probation was not a sentence that violates the
rule that a defendant must serve his sentence in one stretch rather than
in bits and pieces).

   In addition to my concern that the majority is ignoring Florida common
law, it appears the majority ignores what I understand to be a correct
principle of law as pointed out by the Fifth District,

      Unless there is specific statutory authority to impose a
      sentence, it cannot stand. And the language susceptible of
      differing constructions shall be construed most favorably to
      the accused. . . . [Section 921.16, Florida Statutes (1979)]

                                   -9-
      provides for concurrent sentences or consecutive sentences,
      but not a combination. Divided or non-consecutive sentences
      have been uniformly disapproved in this state.

Rozmestor, 381 So. 2d at 326 (emphasis added) (internal citations
omitted). I respectfully submit that the majority is taking the statutory
words “that offenders who actually possess, carry, display, use, threaten
to use, or attempt to use firearms or destructive devices be punished to
the fullest extent of the law,” § 775.087(2)(d), Fla. Stat., and stretching
those words to now authorize something that neither section 775.087 nor
section 921.16 expressly provides for: incarceration sentences being
divided and interrupted into portions so that they can be stacked
consecutively and concurrently in various combinations. In other words,
the majority is solving an alleged impropriety (detaching words from the
moorings of a legal principle) with another impropriety (stretching words
beyond their meaning to embrace a new legal rule). Other than the “fullest
extent of the law” language quoted above, the majority can point to no
other statutory language that allows sentences imposing a fixed period of
incarceration to be divided into portions.

   As early as 1855, our supreme court wrote:

      It is an admitted canan [sic], applicable to the construction of
      statutes, that where a statute contravenes or alters a principle
      of the common law it must always be strictly construed.

Sealey v. Thomas, 6 Fla. 25, 33 (Fla. 1855). In 1912, the court said:

      A statute will not be construed as taking away a common-law
      right existing at the date of its enactment, unless that result
      is imperatively required—that is to say, unless it be found that
      the pre-existing right is so repugnant to the statute that the
      survival of such right would in effect deprive the subsequent
      statute of its efficacy; in other words, render its provisions
      nugatory.

Cullen v. Seaboard Air Line R. Co., 58 So. 182, 183 (Fla. 1912) (quoting
Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 437 (1907)).
Seventy years ago, the court said:

      Statutes in derogation of the common law and penal statutes
      should be strictly construed, and if there is any doubt as to
      their meaning, the courts should resolve such doubt in favor
      of the citizen.


                                   - 10 -
State ex rel. Williams v. Coleman, 180 So. 357, 359 (Fla. 1938).

  Simply put, I agree with the logic and analysis of the Fifth District in
Rozmestor:

      In Segal v. Wainwright, 304 So. 2d 446 (Fla. 1974), the Florida
      Supreme Court rejected the state’s argument that the
      defendant should serve a five year robbery sentence with a
      one year sentence and a nine year sentence sandwiched
      between parts of the five year sentence. The court noted its
      “oft-repeated holdings that a prisoner is entitled to pay his
      debt to society in one stretch, not in bits and pieces.” Id. at
      448. The sandwiching of parts of one sentence between
      another was rejected in that case. Whether consecutive or
      concurrent the prisoner must be allowed to serve his sentence
      seriatim and in one stretch rather than in bits and pieces.

Rozmestor, 381 So. 2d at 326.

   The case law demonstrates that the concept of serving an incarceration
sentence continuously and without interruption is not a “free radical,” but
one grounded in a common law rule relied upon not only by our sister
courts, but this Court as well. Although the majority focuses on the
language from Segal regarding “bits and pieces,” both this Court, as well
as the Second District have expressly condemned a part consecutive and
part concurrent sentencing scheme. The Second District, using the strong
language that “imposing a prison sentence that is part concurrent with
and part consecutive to another prison sentence is a punishment that no
judge under the entire body of sentencing statutes could possibly inflict
under any set of factual circumstances.” Stroman v. State, 837 So. 2d 1070,
1071 (Fla. 2d DCA 2003) (emphasis added).

    Shortly before oral argument in this case, this Court used similar
(although not as strong) language, in Smith v. State, 4D17-1787, 2018 WL
1747825 (Fla. 4th DCA Apr. 11, 2018). In Smith, we said, “Imposing a
sentence that is partly concurrent and partly consecutive to another
sentence violates a defendant’s right to ‘pay his debt to society in one
stretch, not in bits and pieces.’” Id. at *1 (emphasis added) (quoting Segal,
304 So. 2d at 448). In Smith, we demonstrated the grounding of the
concept, anchoring the “bits and pieces” language to the impropriety of a
part concurrent and part consecutive sentence. The majority’s bid to
distinguish Smith relies on a distinction without a difference, particularly
where the majority relies on the intent of the 10-20-Life statute to reach
its conclusion. Notably, in one of the cases it cites for that very purpose,


                                    - 11 -
our supreme court discussed how this Court found the intent for the
Prisoner Reoffender Releasee statute to be the same as that of the 10-20-
Life statute. See McDonald v. State, 957 So. 2d 605, 609 (Fla. 2007) (“The
Fourth District further concluded that the legislative intent expressed in
section 775.087(2)(d) [the 10-20-Life statute], that violators be ‘punished
to the fullest extent of the law,’ is the same clear intent expressed in section
775.082(9)(d)(1) [the Prisoner Reoffender Releasee statute] that was noted
by this Court in Grant[ v. State, 770 So. 2d 655 (Fla. 2000)].” (emphasis
added)).

    I completely agree with the majority and share the frustration of the
trial court that if my position is correct, the common law and current
status of the applicable statutes significantly “handcuffs” the trial court
from trying to achieve the total length of time the trial court justifiably
imposed at the original sentencing: 75 years of incarceration. However, I
disagree that the common law and current status of the applicable statutes
nullify the express legislative intent to punish “to the fullest extent of the
law.” In this case, because the sentence imposed for count 2 is illegal, on
resentencing, the trial court has the option of imposing a more severe
sentence for that count. See Harris v. State, 645 So. 2d 386, 388 (Fla.
1994) (determining that a trial court can impose a habitual offender
sentence on remand after the court has pronounced a non-habitual
sentence in the original proceedings without violating the Double Jeopardy
Clause because there was no expectation of finality when the defendant
attacked the legality of the sentence); State v. Swider, 799 So. 2d 388, 391
(Fla. 4th DCA 2001) (“A trial court may vacate an illegal sentence and
impose a harsher sentence without violating the defendant’s double
jeopardy rights.”). I do not see the pre-existing common law rule that a
defendant is to serve an incarceration sentence continuously and without
interruption as so repugnant to any statutory provision that the survival
of such right would in effect deprive the subsequent statute of its efficacy
or render its provisions nugatory.

     With regard to the ability to stack mandatory minimum sentences, I
contend that the problem must be fixed by the legislature, rather than a
judicial declaration that words in a case have become “detached” and “float
. . . like free radicals ready to trigger mutations of the law.” Agreeing that
a substantial body of prior case law is correct, I respectfully dissent.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                     - 12 -
