          Supreme Court of Florida
                                    ____________

                                   No. SC12-1932
                                   ____________

                             KEMAR ROCHESTER,
                                 Petitioner,

                                          vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                    [June 5, 2014]

PER CURIAM.

      This case is before the Court for review of the Fourth District Court of

Appeal’s decision in Rochester v. State, 95 So. 3d 407 (Fla. 4th DCA 2012), which

the Fourth District certified is in direct conflict with the decision of the Second

District Court of Appeal in Montgomery v. State, 36 So. 3d 188 (Fla. 2d DCA

2010). 1 For the reasons explained below, we approve the Fourth District’s holding

that section 775.082(3)(a)4., Florida Statutes (2008), imposes a mandatory

minimum sentence of twenty-five years’ imprisonment for adults convicted of

lewd or lascivious molestation of a child under the age of twelve.

      1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
                               I. BACKGROUND

      Kemar Rochester was convicted of lewd or lascivious molestation of a child

under the age of twelve in violation of section 800.04(5)(b), Florida Statutes

(2008). Prior to sentencing, Rochester filed a motion seeking a downward

departure sentence pursuant to section 921.0026(2)(j), Florida Statutes (2008),

which provides for downward departures in sentencing if certain mitigating

circumstances are present.2 The trial court found that it had no discretion to

impose a downward departure sentence, even though it was inclined to do so,

because section 775.082(3)(a)4. imposed a mandatory minimum sentence of

twenty-five years’ imprisonment for violations of section 800.04(5)(b). Therefore,

the trial court denied Rochester’s motion and sentenced him to twenty-five years in

prison.

      The Fourth District affirmed the trial court, concluding that the legislature

intended to impose a mandatory minimum sentence of twenty-five years’

imprisonment in section 775.082(3)(a)4. Rochester, 95 So. 3d at 410. In so



      2. Section 921.0026, Florida Statutes (2008), “applies to any felony offense,
except any capital felony, committed on or after October 1, 1998,” and its
subsection (2) provides as follows: “Mitigating circumstances under which a
departure from the lowest permissible sentence is reasonably justified include, but
are not limited to: . . . . (j) The offense was committed in an unsophisticated
manner and was an isolated incident for which the defendant has shown remorse.”




                                        -2-
holding, the Fourth District certified conflict with the Second District’s decision in

Montgomery, which concluded that the legislature did not intend to impose a

mandatory minimum sentence in this section. Id. at 411.

                                  II. ANALYSIS

      Lewd or lascivious molestation of a child under twelve by an adult is “a life

felony, punishable as provided in s. 775.082(3)(a)4.” § 800.04(5)(b), Fla. Stat.

(2008). Section 775.082(3)(a)4. provides as follows:

      (3) A person who has been convicted of any other designated felony
      may be punished as follows:
             (a) . . . .
             ....
             4.a. Except as provided in sub-subparagraph b., for a life
      felony committed on or after September 1, 2005, which is a violation
      of s. 800.04(5)(b), by:
             (I) A term of imprisonment for life; or
             (II) A split sentence that is a term of not less than 25 years’
      imprisonment and not exceeding life imprisonment, followed by
      probation or community control for the remainder of the person’s
      natural life, as provided in s. 948.012(4).
             b. For a life felony committed on or after July 1, 2008, which is
      a person’s second or subsequent violation of s. 800.04(5)(b), by a term
      of imprisonment for life.

      The certified conflict issue in this case is whether the twenty-five year

sentence set forth in subsection (3)(a)4.a(II) above is a mandatory minimum

sentence.3 This involves an issue of statutory interpretation and is subject to de



     3. We do not reach the State’s argument that, while imposing a mandatory
minimum sentence of twenty-five years’ imprisonment, section 775.082(3)(a)4.

                                         -3-
novo review. See Johnson v. State, 78 So. 3d 1305, 1310 (Fla. 2012) (“Judicial

interpretations of statutes are pure questions of law subject to de novo review.”).

When construing a statute, we have stated that “ ‘[l]egislative intent guides

statutory analysis, and to discern that intent we must look first to the language of

the statute and its plain meaning.’ ” Tasker v. State, 48 So. 3d 798, 804 (Fla. 2010)

(quoting Fla. Dep’t of Child. & Fam. Servs. v. P.E., 14 So. 3d 228, 234 (Fla.

2009)).

      We find that, contrary to Rochester’s argument, the use of the term “may” in

section 775.082(3) does not give the trial court the broad discretion to impose a

downward departure sentence of less than twenty-five years’ imprisonment.

Rather, when section 775.082(3)(a)4. is read as a whole, it is clear that the phrase

“may be punished as follows” in subsection 775.082(3) is simply referring to the

trial court’s discretion to choose among the two sentencing alternatives listed in

section 775.082(3)(a)4.—life imprisonment or a sentence of not less than twenty-

five years followed by community control or probation for the rest of the

offender’s life. Furthermore, the use of the phrase “of not less than 25 years”

establishes that the twenty-five year sentence set forth in this section is a

mandatory minimum sentence. See Stoletz v. State, 875 So. 2d 572, 576 (Fla.



does not preclude the application of gain time. This issue was not addressed by the
Fourth District and is not properly before this Court.


                                          -4-
2004) (acknowledging that the phrase “for not less than 5 years” in section

322.28(2)(a)(2), Florida Statutes (1999), established a mandatory minimum period

for license revocation). Therefore, while the statute does give the trial court some

discretion in which sentence it chooses to impose for violations of section

800.04(5)(b), under the plain meaning of the statutory language the trial court does

not have the discretion to impose a sentence below the twenty-five year minimum

set forth in section 775.082(3)(a)4.a(II).

                                 III. CONCLUSION

      For the reasons explained above, we approve the decision of the Fourth

District in Rochester and disapprove the Second District’s decision in Montgomery

to the extent that it is inconsistent with this opinion.

      It is so ordered.

POLSTON, C.J., and LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ.,
concur.
PARIENTE, J., dissents with an opinion.

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

PARIENTE, J., dissenting.

      I dissent because the applicable statute does not preclude trial courts from

imposing a downward departure sentence. Specifically, unlike a “mandatory

minimum” statute that requires the defendant to serve a minimum sentence day-

for-day, section 775.082(3)(a)4., Florida Statutes (2008), does not contain any

                                          -5-
language indicating that the twenty-five-year sentencing minimum it sets forth is a

“mandatory minimum” sentence that must be served day-for-day, or that the

application of gain time or other early release schemes is prohibited.

      In my view, because there is no requirement that the defendant serve the

twenty-five-year minimum sentence provided in section 775.082(3)(a)4. day-for-

day, the Fourth District Court of Appeal erred in concluding that the trial court,

which considered the twenty-five-year sentence in this case to be “extremely

excessive,” was precluded from downwardly departing. Accordingly, Rochester—

who was initially offered a sentence of seven and a half years by the State—should

be resentenced.

      At the heart of this case rests a question of statutory construction regarding

whether the sentencing minimum provided by section 775.082(3)(a)4. is a

“mandatory minimum” sentence that must be served day-for-day. Contrary to the

majority’s construction of the statute, nothing within section 775.082(3)(a)4.

expressly precludes a trial court from imposing a downward departure sentence. In

addition, as even the State concedes in this proceeding, nothing within the statute

precludes the defendant from receiving gain time, as in other statutes that provide

for a “mandatory minimum” sentence that must be served day-for-day, and this

Court should at least make that point clear. Absent these express prohibitions

against a downward departure sentence and the application of gain time, the trial


                                         -6-
court was not prohibited from downwardly departing from the minimum twenty-

five-year sentencing option provided in the statute, as the majority erroneously

concludes, and the defendant’s sentence is subject to gain time and other possible

early release schemes.

      Although the majority’s statutory construction analysis focuses solely on the

impact of the word “may” in the statute, the specific question for this Court to

resolve is whether the Legislature has expressly precluded trial courts from

imposing a downward departure sentence of less than the twenty-five-year

sentencing minimum provided in the statute—assuming the statutory requirements

for a downward departure sentence are satisfied—and whether the defendant’s

sentence is subject to gain time. The Fourth District and this Court have

determined that the use of the word “may” within the statute is permissive in

allowing a trial court the choice of only the sentencing alternatives within section

775.082(3)(a)4. itself, which requires either a sentence of life imprisonment or a

sentence of not less than twenty-five years followed by probation or community

control for the remainder of the defendant’s natural life. See majority op. at 4;

Rochester v. State, 95 So. 3d 407, 410 (Fla. 4th DCA 2012). I disagree with this

construction that the two sentences provided in the statute are the only sentencing

options for a trial court to consider.




                                         -7-
      To the contrary, as is generally true with sentencing statutes unless

otherwise expressly stated, nothing within section 775.082(3)(a)4. precludes a trial

court from imposing a downward departure sentence if the statutory criteria of

sections 921.0026 and 921.00265, Florida Statutes, concerning the requirements

and mitigating circumstances for which a departure is reasonably justified, are met.

This is because, although the sentencing minimum mandated by section

775.082(3)(a)4. is twenty-five years, the sentence is not a “mandatory minimum”

sentence that must be served day-for-day such as those set forth in, for example,

sections 775.082(9)(b) or 893.135(3), Florida Statutes, which contain specific

language indicating that the sentence is a “mandatory minimum” or that the

defendant is not eligible for any form of early release. See § 775.082(9)(b), Fla.

Stat. (2008) (“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.”); § 893.135(3), Fla. Stat. (2008) (“A

person sentenced to a mandatory minimum term of imprisonment under this

section is not eligible for any form of discretionary early release, except pardon or

executive clemency or conditional medical release under s. 947.149, prior to

serving the mandatory minimum term of imprisonment.”).




                                         -8-
      While the majority acknowledges that the certified conflict issue in this case

concerns whether the twenty-five-year sentencing minimum set forth in section

775.082(3)(a)4. is a “mandatory minimum,” the majority nevertheless fails to

address the interrelated issue of whether the sentence is subject to gain time, as the

Second District Court of Appeal concluded in the certified conflict case by

determining that the statute does not provide for a “mandatory minimum” sentence

that must be served day-for-day. See Montgomery v. State, 36 So. 3d 188, 188-89

(Fla. 2d DCA 2010). I disagree with the majority’s decision not to reach this issue

despite the Fourth District in Rochester certifying conflict with the Second District

in Montgomery and the State actually conceding in this case that the defendant’s

sentence is subject to the application of gain time and other forms of discretionary

early release.

      Specifically, the State took the position both in its brief and at oral argument

that although the minimum term that a trial court is required by statute to impose

is, in the State’s view, a mandatory sentence of twenty-five years that cannot

include a downward departure, the sentence is not a “mandatory minimum”

sentence in the sense that it precludes the application of gain time. See Answer

Brief of Respondent at 12, Rochester v. State, No. SC12-1932 (Fla. June 3, 2013)

(“The plain language in section 775.082(3)(a)4, however, does not preclude the

application of gain time.”). This Court does not reach that question, stating that it


                                         -9-
was not addressed by the Fourth District even though the Fourth District in

Rochester certified conflict with the Second District’s decision in Montgomery that

concerned whether a defendant’s sentence under section 775.082(3)(a)4. was a

“mandatory minimum” sentence for purposes of gain time.

      I would at least reach the issue and explain the differences between a

“mandatory minimum” sentence that must be served day-for-day and a statutory

sentencing minimum that need not, especially since the Second District’s opinion,

with which the Fourth District certified conflict, held that the twenty-five-year

minimum sentence provided in section 775.082(3)(a)4. was not a “mandatory

minimum” precluding the application of gain time:

             The State concedes, and we agree, that Montgomery’s sentence
      is not a minimum mandatory sentence. If the legislature intended to
      impose a minimum mandatory sentence, the statute would have
      included specific language to that effect. See §§ 316.1935(6), Fla.
      Stat. (2008); 775.087(2) & (3); 784.07(3)(b), Fla. Stat. (2008);
      794.0115(7), Fla. Stat. (2008) (providing that a defendant “is not
      eligible for statutory gain-time under s. 944.275 or any form of
      discretionary early release, other than pardon or executive clemency
      or conditional medical release under s. 947.149,” prior to serving the
      minimum sentence). See also § 775.082(9)(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.”); § 893.135(3), Fla. Stat.
      (2008) (“A person sentenced to a mandatory minimum term of
      imprisonment under this section is not eligible for any form of
      discretionary early release, except pardon or executive clemency or
      conditional medical release under s. 947.149, prior to serving the
      mandatory minimum term of imprisonment.”).



                                        - 10 -
            Moreover, if there is any ambiguity in the language of section
      775.082(3)(a)(4)(a)(II), we must construe it in favor of the defendant.
      See § 775.021(1). Accordingly, we affirm Montgomery’s judgment
      and sentence but note that his sentence does not provide for a
      minimum mandatory term of imprisonment.

Montgomery, 36 So. 3d at 188-89. For the same reasons set forth by the Second

District, I would hold that section 775.082(3)(a)4. does not provide for a

“mandatory minimum” term of imprisonment that precludes the application of gain

time. Because the statute does not set forth a “mandatory minimum” sentence that

must be served day-for-day, the statute likewise does not preclude the imposition

of a downward departure sentence, which the trial court had the discretion to

impose in consideration of the facts of the crime pursuant to section

921.0026(2)(j).

      Although this Court and the Fourth District did not consider the facts of this

crime relevant, the facts do illustrate the excessiveness of the ultimate sentence

imposed and help to explain why the trial court would have been justified in

considering a downward departure. Before trial, Rochester was offered two plea

deals. Initially, the State proposed a reduced charge and offered him ten years in

prison followed by five years of probation. However, Rochester did not accept the

deal, and after further negotiation, the State made another plea offer for seven and

a half years in prison followed by seven and a half years of sex offender probation,

which Rochester also declined.


                                        - 11 -
      The evidence at trial established that Rochester was visiting the home of JC,

the victim, when he asked JC’s mother if he could go outside and look at the

swimming pool. JC, who was nine years old at the time, was in the backyard when

Rochester came outside to look at the swimming pool. JC testified that she was

alone with Rochester in the backyard when he asked her “if [she] could keep a

secret” and lifted her up, touched her on her clothed genitalia and clothed buttocks,

and asked her to not tell anyone.

      In a police recorded phone conversation with JC’s mother, Rochester

admitted that he touched JC’s clothed genitalia, but not her buttocks. Further, in a

videotaped confession to police, which was played for the jury at trial, Rochester

admitted that he touched JC’s clothed genitalia. He stated that he touched her for

“no more than ten seconds” and admitted that his fingers were moving “a little bit”

when he did it, but that he was not aroused by the touching and “wasn’t thinking

anything” when he touched her. The explanation Rochester gave for his behavior,

in his interview with police, was that “the devil got into [his] spirit or something

and made [him] do it,” and that his spirit had been attacked and he was weak. He

also stated that he had low self-esteem because he was overweight and that he had

apologized to JC’s mom and promised it would not happen again.

      Prior to sentencing, Rochester filed a motion for a downward departure

sentence, pursuant to section 921.0026(2)(j), which provides that “[m]itigating


                                        - 12 -
circumstances under which a departure from the lowest permissible sentence is

reasonably justified include, but are not limited to . . . [t]he offense was committed

in an unsophisticated manner and was an isolated incident for which the defendant

has shown remorse.” § 921.0026, Fla. Stat. Rochester claimed that he qualified

for this downward departure based on the fact that the crime met all three statutory

criteria: it was committed in an unsophisticated manner, it was an isolated incident,

and he had shown remorse.

      Rochester further argued that the trial court should not impose the statutory

sentence of twenty-five-years’ imprisonment because such a severe disposition for

a first-time offense was fundamentally unfair, contending that the trial court had

the discretion to impose a sentence of less than twenty-five years if it deemed it to

be just. The trial court determined that the twenty-five-year sentence, followed by

probation for the remainder of Rochester’s life, was required pursuant to section

775.082(3)(a)4., and denied Rochester’s motion for a downward departure

sentence. However, prior to orally pronouncing the sentence, the trial judge

offered the following commentary regarding the mitigating circumstances in this

case: “I think that 25 years is extremely excessive on a case like this. If I had any

authority whatsoever to go below, I would certainly go below. I don’t think I have

any discretion in this case.”




                                        - 13 -
      I disagree that the trial court did not have any discretion to downwardly

depart from the minimum twenty-five-year sentence provided in the statute.

Unlike other statutes that make a sentencing minimum a “mandatory minimum”

that must be served day-for-day, there is no language in section 775.082(3)(a)4.

indicating that the twenty-five-year sentencing minimum is a “mandatory

minimum” or that the application of gain time or other early release schemes is

prohibited. Accordingly, I would quash the Fourth District’s decision in

Rochester, approve the Second District’s decision in Montgomery, and remand this

case so that Rochester can be resentenced in a manner that more closely comports

with the trial court’s conclusion that twenty-five-years’ imprisonment “is

extremely excessive” in this case.


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

      Fourth District – Case No. 4D10-512

      (Broward County)

Carol Stafford Haughwout, Public Defender, and Ian Eric Seldin, Assistant Public
Defender, West Palm Beach, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Consiglia Terenzio,
Bureau Chief, and Richard Chambers Valuntas, Assistant Attorney General, West
Palm Beach, Florida,

      for Respondent

                                       - 14 -
