        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           STATE OF FLORIDA,
                               Appellant,

                                      v.

                          JEFFREY REININGER,
                               Appellee.

                              No. 4D17-3604

                            [September 5, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Lisa Porter, Judge; L.T. Case No. 13-000530-CF-10A.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah Koenig,
Assistant Attorney General, West Palm Beach, for appellant.

  Josh A. Howard of Law Office of Josh A. Howard, PLLC, Fort
Lauderdale, for appellee.

CONNER, J.

    This appeal involves the amendment of a sentencing statute between
the date of a criminal offense and the sentencing date, and which version
of the statute is the appropriate version to apply. The State appeals the
trial court’s interpretation of the sentencing statute here and its decision
to apply the version of the statute in effect at the time of sentencing rather
than the one in effect on the date of the offense. We agree with the State
that the trial court applied the incorrect version of the statute.

                 Background Information and Trial Procedure

   Reininger was charged with aggravated assault with a firearm,
stemming from an incident in January 2013, when Reininger pulled a gun
on a process servicer. A jury returned a verdict in June 2017 finding
Reininger guilty as charged.     Reininger was adjudicated guilty, a
presentence investigation report was ordered, and sentencing was
deferred.
    Prior to sentencing, Reininger filed a motion for an alternative sentence.
He argued that, although the 10-20-Life statute 1 in effect at the time the
crime was committed included aggravated assault as an enumerated
offense requiring a three-year minimum mandatory sentence, the statute
had subsequently been amended, and, as of the date set for sentencing,
no longer included aggravated assault as such an enumerated offense.
The State responded that the amendment to the statute was not
retroactive, and therefore, the court was required to sentence Reininger to
the three-year minimum mandatory.

    A sentencing hearing was held in October 2017. In determining which
version of section 775.087 to apply for sentencing, the trial court looked
to the language of the statute, which stated that “a person who is convicted
for aggravated assault . . . shall be sentenced to a minimum term of
imprisonment of 3 years if such person possessed a ‘firearm’ or ‘destructive
device’ during the commission of the offense.” § 775.087(2)(a)1., Fla. Stat.
(2013) (emphasis added). Focusing on the term “convicted” in the statute,
the trial court ruled:

         I understand the State’s position. It is my duty to follow the
         law, interpret the statute, and clearly there is a distinction
         between the word “conviction” and “commission.” If the
         Legislature intended for the minimum mandatory to apply
         based upon the commission date of the offense, they would
         have used the word “commission” and not the word
         “conviction.” Mr. Reininger’s conviction came after the law
         was changed, where the Legislature decided to remove the
         crime of aggravated assault as an enumerated offense for the
         purposes of the three-year minimum mandatory. . . . I am
         going to follow the letter of the law, which mandates a
         minimum mandatory based upon a conviction date, not a
         commission date.

   The trial court then sentenced Reininger to a three-year term of
probation, with certain conditions. The State gave notice of appeal.

                                   Appellate Analysis

   “The issue of whether [a statute] is applicable to cases pending at the
time of its enactment is a pure question of law,” and therefore, subject to
de novo review. Smiley v. State, 966 So. 2d 330, 333 (Fla. 2007). Likewise,


1   Section 775.087, Florida Statutes (2013).

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the interpretation of a sentencing statute is also reviewed de novo. See
Paul v. State, 129 So. 3d 1058, 1061 (Fla. 2013).

    There is no question that the version of section 775.087 in effect on the
date that Reininger committed the offense, January 2013, included
aggravated assault as an enumerated offense to which a three-year
minimum mandatory sentence was required. See § 775.087(2)(a), Fla.
Stat. (2013). There is also no question that by the time Reininger was
convicted (June 2017) and sentenced (October 2017) for the crime, 2 the
offense of aggravated assault was removed from the list of enumerated
offenses. § 775.087(2)(a), Fla. Stat. (2017). Therefore, the question posed
in this case, is simply which version of the statute applies.

   The trial court concluded that the statutory language “a person who is
convicted for aggravated assault” indicated that the legislature intended
that the statute in effect at the time of conviction was the proper statute to
apply for sentencing. The trial court’s interpretation was erroneous.

   Article X, section 9, of the Florida Constitution, is commonly known as
the “Savings Clause.” Horsley v. State, 160 So. 3d 393, 406 (Fla. 2015).
Our supreme court has expressly stated that “the purpose of the ‘Savings
Clause’ is to require the statute in effect at the time of the crime to govern
the sentence an offender receives for the commission of that crime.” Id.
(emphasis added).

    Article X, section 9 states that “[r]epeal or amendment of a criminal
statute shall not affect prosecution or punishment for any crime previously
committed.” Art. X, § 9, Fla. Const. A “criminal statute” has been defined
as:

      “[A]n act of the Legislature as an organized body relating to
      crime or its punishment . . . defining crime, treating of its
      nature, or providing for its punishment . . . [or] deal[ing] in any
      way with crime or its punishment.”




2 There were two other versions of section 775.087 that went into effect between
the date Reininger committed the offense and the date on which he was convicted.
Both versions also listed aggravated assault as an enumerated felony for the
three-year minimum mandatory, however, both gave the trial court the discretion
to not sentence a defendant to the three-year minimum mandatory if it found
certain factors. See §§ 775.087(6), Fla. Stat. (2014) (eff. June 20-30, 2014),
775.087(6), Fla. Stat. (2014) (eff. July 1, 2014-June 30, 2016).

                                       3
Smiley, 966 So. 2d at 337 (alterations in original) (emphasis added)
(quoting Washington v. Dowling, 109 So. 588, 591 (1926)). Therefore, a
sentencing statute prescribing the punishment for a crime, such as section
775.087, qualifies as a “criminal statute” for purposes of applying Article
X, section 9.

    Additionally, “Florida courts have repeatedly held that this prohibition
on retroactive application of statutes applies only to statutes that effect
substantive change in the law; it has no application to changes in the law
that are merely procedural or remedial.” Grice v. State, 967 So. 2d 957,
960 (Fla. 1st DCA 2007) (emphasis in original). Changes to statutes
affecting the sentencing for a criminal offense are substantive changes. Id.
(describing a change as procedural “rather than of substance” because “[i]t
does not relate to the elements of an offense or the punishment therefor”
(emphasis added)).

   Based on Article X, section 9, “Florida law provides that the
punishment in effect at the time of the crime controls the penalty at
sentencing. In fact, retroactive application of an amended or repealed
statute affecting prosecution or punishment is unconstitutional.” State v.
Pizarro, 383 So. 2d 762, 763 (Fla. 4th DCA 1980) (internal citation
omitted).    This is true, under Article X, section 9 of the Florida
Constitution, regardless of whether the amendment allows for a more
favorable result to the defendant. See Hayes v. State, 452 So. 2d 656, 657
(Fla. 2d DCA 1984) (“This provision [Article X, section 9] has been
interpreted to mean that a defendant is not entitled to the benefit of a
lesser sentence if the legislation reducing the statutory sentence is enacted
after defendant commits the crime.”). Therefore, it is well-settled that
retroactive application of a sentencing statute is unconstitutional.

   “Wherever possible, statutes should be construed in such a manner so
as to avoid an unconstitutional result.” State v. Jefferson, 758 So. 2d 661,
664 (Fla. 2000); see also Fla. Bar v. Sibley, 995 So. 2d 346, 350 (Fla. 2008)
(“To the extent possible, courts have a duty to construe a statute in such
a way as to avoid conflict with the Constitution.” (citing State v. Gale
Distribs., 349 So. 2d 150, 153 (Fla. 1977))). If we were to construe the
version of section 775.087 in effect at the time of conviction to apply to
sentencing, rather than the version in effect at the time the crime was
committed, such construction would violate Article X, section 9, and
therefore, be unconstitutional. Cf. Smiley, 966 So. 2d at 337 (“Therefore,
article X, section 9 of the Florida Constitution makes it constitutionally
impermissible for section 776.013 to receive retroactive application.”).



                                     4
   Judge Wolf’s concurring opinion in Wright v. State, 225 So. 3d 914 (Fla.
1st DCA 2017), is instructive, specifically as to the amendment and
application of section 775.087. There, he discussed the intermediate
amendment to section 775.087, where the minimum mandatory for
aggravated assault was made discretionary. Id. at 915 (Wolf, J.,
concurring). He explained that the fact that the defendant did not have
the benefit of the discretionary version of the statute was a matter of “bad
timing” for the defendant, since “the offense was committed prior to [the
amendment to section 775.087].” Id. (emphasis added). Although not
directly analyzing an argument of which version of the statute to apply,
the First District affirmed the sentence based on the version of the statute
in effect at the date of the offense. Id.

    Therefore, the version of section 775.087 under which Reininger should
be sentenced is the one in effect on the date that he committed the crime.
Since that version clearly included aggravated assault as an enumerated
offense carrying a three-year minimum mandatory sentence, the trial court
was required to impose the mandatory minimum sentence. See State v.
Calzada-Padron, 708 So. 2d 287, 287 (Fla. 2d DCA 1996) (“Since the
appellee in the instant case was convicted of one of the enumerated
felonies in the statute and had in his possession a firearm, the trial court
was required to sentence him to three years in state prison as the minimum
sentence” (emphasis added)). We reverse and remand with instructions
that the trial court sentence Reininger in accordance with this opinion.

   Reversed and remanded with instructions.

LEVINE and FORST, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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