       Third District Court of Appeal
                               State of Florida

                          Opinion filed February 3, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                          Nos. 3D15-30 & 3D15-46
                         Lower Tribunal No. 11-19067
                             ________________


                            The State of Florida,
                           Appellant/Cross-Appellee,

                                        vs.

                             Francique Revenel,
                           Appellee/Cross-Appellant.


    Appeals from the Circuit Court for Miami-Dade County, Jorge Rodriguez-
Chomat, Judge.

     Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney
General, for appellant/cross-appellee.

     Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for appellee/cross-appellant.


Before FERNANDEZ, LOGUE and SCALES, JJ.

      SCALES, J.
      The State of Florida (the “State”) appeals the trial court's sentencing of

Francique Revenel (“Revenel”) to a term of forty years, while Revenel appeals his

underlying criminal conviction. This Court consolidated the two appeals on July

27, 2015. We affirm Revenel’s conviction, but reverse the trial court’s sentencing

order and remand for a new hearing to be conducted in accordance with the

sentencing guidelines set forth in section 812.13(2)(a) of the Florida Statutes.



      I. Facts

      The State charged Revenel by information with armed robbery and armed

burglary. The theory of defense at trial was that Revenel had been misidentified as

the culprit. After the presentation of the State's initial case, Revenel decided not to

present any witnesses and exercised his right not to testify. The trial court

instructed the jury that Revenel had exercised his constitutional right to remain

silent and that the jury could not construe this decision as an admission of guilt.

During closing arguments and without objection from Revenel, the State

mentioned several times that nothing contradicted the testimony or credibility of

the State's witnesses. Ultimately, Revenel was found guilty on both counts. In his

appeal, Revenel argues that the State committed fundamental error during its

closing argument.




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      At the sentencing hearing, the parties stipulated to the entry of Revenel's

prior convictions so the trial court could consider whether Revenel should be

classified as a “three-time violent felony offender.” Section 775.084 of the Florida

Statutes provides, inter alia, for the enhancement of the penalties set forth in the

robbery statute (section 812.13) if a defendant is adjudicated a three-time violent

offender.    The trial court found that the State met its burden of proving by a

preponderance of the evidence that Revenel was a three-time violent felony

offender, but nevertheless, stated that, given the language of section 812.13, the

trial court had the discretion to sentence Revenel either to the minimum mandatory

term of thirty years (as provided in section 812.13) or the minimum mandatory

term of life (as provided in section 775.084 (4)(c)). The trial court sentenced

Revenel to a term of forty years. In its appeal, the State argues that pursuant to

section 775.084 of the Florida Statutes, the trial court was required to sentence

Revenel to a term of life.



      II. Standard of Review

      In reviewing the unpreserved issue of improper comments during closing

argument, we review the challenged comments for fundamental error. Bell v. State,

108 So. 3d 639, 650 (Fla. 2013). Whether the trial court, in determining Revenel’s




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sentence, correctly applied a sentencing statute is reviewed de novo. Kephart v.

Hadi, 932 So. 2d 1086, 1089 (Fla. 2006).



      III. Analysis

      A. Alleged Improper Remarks

      The State notes, and Revenel admits, that the State's alleged improper

remarks during closing argument were not objected to contemporaneously and

were not properly preserved for appeal. “In order to preserve an allegedly improper

prosecutorial comment for review, a defendant must object to the comment and

move for a mistrial.” Gutierrez v. State, 731 So. 2d 94, 95 (Fla. 4th DCA 1999).

See also Allen v. State, 662 So. 2d 323, 328 (Fla. 1995). Without such

contemporaneous objection, relief may be granted only on a finding of

fundamental error; that is, a guilty verdict could not have been obtained but for the

influence of the alleged error. Wade v. State, 41 So. 3d 857, 868 (Fla. 2010).

      During the State's closing argument, the State argued several times that the

testimony of its witnesses went uncontradicted. Revenel alleges that because

Revenel was the only person who could have contradicted the witnesses'

testimony, the State's remarks constituted a de facto violation of Revenel's right to

remain silent and improperly shifted the burden of proof to Revenel. We disagree.




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      As the Florida Supreme Court has noted, “[w]here the evidence is

uncontradicted on a point that witnesses other than the defendant can contradict, a

comment on the failure to contradict the evidence is not an impermissible comment

on the failure of the defendant to testify.” Bell v. State, 108 So. 3d 639, 648 (Fla.

2013). In the instant case, Revenel was not the only person who could have

contradicted the witness testimony adduced by the State. For example, Revenel

could have (i) called a witness to examine further any inculpating security camera

footage, (ii) examined other witnesses, or (iii) impeached the credibility of the

State's witnesses and evidence through cross-examination.

      Plainly, testimony by Revenel was not the only means to contradict the

State’s evidence. Thus, the State’s remarks during closing argument did not create

the implication that Revenel was guilty because he chose not to take the stand or

present his own evidence. Furthermore, even assuming that the remarks were

improper, the remarks certainly did not rise to the level of fundamental error such

that a guilty verdict could not have been found without them. See Wade, 41 So. 3d

at 868.

      The State's remarks during closing argument did not have the effect of

shifting the burden of proof to Revenel. The State specifically mentioned in

closing argument that the State had “the burden of proving every element of every

crime to you, beyond and to the exclusion of every reasonable doubt.” Rather than



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shifting the burden, the State invited the jury to consider the strength of the

evidence. See Evans v. State, 838 So.2d 1090, 1094 (Fla. 2002); Bell, 108 So. 3d

at 648.

      B. Sentencing

      Revenel was convicted of armed robbery with a deadly weapon or firearm, a

first-degree felony pursuant to section 812.13(2)(a). This section provides for

“imprisonment for a term of years not exceeding life imprisonment or as provided

in . . . s.775.084.” § 812.13(2)(a), Fla. Stat. (2014).

      Once the trial court determines that a defendant is a three-time violent

felony offender, as defined by section 775.084(1)(c), “[t]he court, in conformity

with the procedure established in paragraph (3)(b), must sentence the three-time

violent felony offender to a mandatory minimum term of imprisonment, as

follows: . . . In the case of a felony punishable by life, to a term of imprisonment

for life . . .” § 775.084 (4)(c)1., Fla. Stat. (2014) (emphasis supplied).

      In other words, once the trial court determined that Revenel met the

requirements of three-time violent felony offender status, the trial court had no

choice but to impose a sentence at or above the enhanced mandatory minimum

provided in section 775.084(4)(c). For a three-time violent felony offender like

Revenel, convicted of a felony punishable by life (such as armed robbery with a

deadly weapon or firearm), the mandatory minimum sentence is a term of life.



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Hence, the trial court reversibly erred by sentencing Revenel to a forty-year prison

term.

        IV. Conclusion

        We affirm Revenel’s conviction, but vacate the trial court’s sentencing

order and remand the case for a new sentencing hearing. We decline the State's

invitation to direct the trial court on how to conduct the new sentencing hearing,

other than to say that the hearing must be consistent with the requirements set forth

in section 812.13(2)(a) and, if applicable, chapter 775 of the Florida Statutes.

        Affirmed in part, reversed and remanded in part.




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