CHIEF JUSTIC E: THE NEXT CASE ON THE COURT'S DO CKET IS STATE OF FLORIDA VER SUS A DAM SO USA . ARE THE ATTORNEYS READY? ALL RIGHT. YOU MAY PROCEED.

CH IEF JUSTICE PAR IENTE , JUSTICES OF THE COURT, GOOD MORNING.MY NAME IS SUZANNE BECHARD. I REPRESENT THE PETITIONER IN THIS CASE, THE STATE OF FLORIDA.I WOULD LIKE TO START WITH JUST A BRIEF FACT UAL SYNOPSIS OF THE BACKGROUND OF THIS CASE. THIS AR ISES FROM A SIT UATION THAT OC CURRED IN DECEMBER OF 1999, IN LEE COUNTY. THE RESPONDENT WENT TO THEFORT M YERS GREYHOUND TRACK , AND DURING THE COURSE OF THE EVENING , HE BECAME AN GRY AT SOME OF THE EMPLOYEES THERE. HE DID HAVE A LICENSE TO CARRY A CONCEALED WE APON , AND WHEN HE GAME ANGRY AT THE EMPLOYEES, HE PULLED THAT WEAPON , WHICH WAS A REVOLVER . HE POINTED IT FIRST AT THE HEAD OF MR . NAGLE. WHEN THE D I RECTOR OF SECURITY SOUGHT TO INTERVENE, THE RESPONDENT SHOT MR . BOCHELLI IN THE STOMACH , AND THEN WHEN MR . VIRCHECK CAME ON THE S CENE , HE SHOT HIM IN THE GROIN. HE WAS CON VICTED OF TWOCOUNTS OF FIRST-DEGREE M URDER AS TO THE TWOINDIVIDUALS THAT HE SHOT, AND HE WAS CONV ICTED AS CHARGED , OF AGGRAV ATED ASSAULT, AS TO PULLING THE GUN AND POINTING IT AT MR . NAGLE'S HEAD.

NOW, WAS THE MANDATORY MINIMUM GIVEN ON ALL THREE OF THESE OFFENSES , CORRECT?

THAT'S CORRECT, YOUR HONOR.

ALL OF THEM RAN CONSECUTIVELY?

THAT'S CORRECT , YOURHONOR.HE WAS SENTENCED TO 50 YEARSWITH A 25-YEAR MI NIMUM MANDATORY ON E ACH OF THE ATTEMPTED SECOND-DEGREE MURDER COUN TS , AND TO A FIVE Y EARS WITH THE THREE-YEAR MINIMUM MANDAT ORY ON THE AGGRAVATED AS CA UGHT COUNT.

IT SEEMS TO ME THAT PART OF YOUR ARGUMENT AT LE AST IS THAT, WHAT IS THE DISTINGUISHING FACT OR HERE , IS THE ACTUAL USE OF SHOOTING OF THE WEAP ON.

THAT'S CORRECT, YOURHON OR. THE DISCHARGE OF THE WEAPON , IS THE IMPORTANT

SO IF THAT IS THE CASE,THEN, IS IT PROPER TO GIVE HIM A CONSECUTIVE SENTENCE FOR THE AGGRAVATED ASSAULT?

WELL - -

AS OPPOSED TO THE TWO WHERE HE AC TUALLY DIS CHARGED THE WEAPON.

WELL , YOUR HONOR, I T IS THE STATE'S POSITION THAT , WITH THE REVISION OF 775.087, WHAT IS POPULARLY NOW CALLED 10-20-LIFE, THE DISPUTE IN THIS CASE ARISES AS TO THAT VERY LAST SENTENCE OF 775.0872-D, WHERE THE LEGISLATURE SAID THE COURT SHALL IMPOSE POSE ANY I MPOSE ANY TER M OF IMPRISONMENT PRO VIDED FOR IN THIS SECTION , CONSECUTIVELY TO ANY OTHER TE RM OF IMPRISONMENT FOR ANY OTHER FELONY OFFENSE, AND IT IS THE STATE'S POSITION HERE THAT, YES, NOT ONLY DO THE T WO COUNTS WHERE THE FIR EARM WAS DISC HARGED , THAT I , AS FAR AS THIS COURT'S RU LING IN CHRISTIAN , I DON'T REALLY SEE HOW THAT IS A QUESTION.

BUT CHRISTIAN WAS PRETHE AMENDMENT TO THE STATUTE - - PRE-THE AMENDMENT TO THESTATUTE?

THAT'S CORRECT , JUSTICE WELLS. HOWEVER , WIT H THE AMENDMENTTO THE STATUTE , WHAT YOUHAVE IS THE LEGISLATURE COMING OUT AND PUTTING A VERY BIG PRE MIUM O N THE DISCHARGE OF THE FIREARM. THERE IS NOT HING IN THIS REVISION OF THE STATUTE THAT WOULD INDICATE AT ALL , THAT WITH 10-20-LIFE , THE LEGISLATURE SOUGHT TO REPUDIATE THIS COURT'S R ULING IN CHRISTIAN. IT IS THE STATE'S POSITION THAT THAT DEFINITELY STILLSTANDS, THAT WHEN YOU HAVE THE DISCHARGE OF THE FIREARM AT MULTIPLE INDIVIDUALS , MULTIPLE VICTIMS, THAT THAT LANGUAGE IN CHRISTIAN , WHICHSAYS THAT , WHETHER THE DEFENDANT SHOOTS AT MUL TIPLE V ICTIMS , THE STA CKING OF FIREARM MINIMUM MANDATORIES IS APPROPRIATE AND PERMISSIBLE .

S O YOUR ARGUMENT, THEN , IS THAT THE STATUTE ACTUALLY CHANGES THE OTHER LANGUAGE IN CHRIST IAN , WHICH SAYS THAT YOU CAN'T STAC K THEM , IF THERE HAS BEEN NO ACTUAL DISCHARGE. BUT U NDER THIS LANGUAGE THAT YOU JUST QU OTED , YOU CAN NOW STACK , EVEN IF THERE IS NO DISCHARGE OF THE WEAPON. IS THAT YOUR ARGUME NT?

THAT WOULD BE THE RESULT THAT THE STATE WOULD HE LP TO WOULD HOPE TO A T TAIN HERE, THAT , WHEN YOU READ THAT LANG UAGE THERE , THAT THE SECOND DISTRICT COURT OF APPEAL G OT IT EA SY ESSENTIALLY WRONG , WHEN THEY DETERMINED THAT THAT MEANS THAT YOU CAN ONLY STACK A FIREARM MINI MUM MANDATORY WITH SOMETHING THAT DO ESN'T ARISE UNDER 775.087, AND IT IS THE STATE'S POSITION THAT THE LANGUAGE THERE OF ANY OTHER FELO NY , IS "ANY" OTHER FELONY, NOT OTHER FE LONIES THAT ARISE UNDER 1 34 OTHER STA TUTE UNDER SOME OTHER STATUTE BESI DES 10-20-LIFE.

SO IT IS YOUR POSITION THAT THE LEGISLATURE WAS ACTUALLY OVERRULING PALMER ? WITH THE STATUTE.

WELL , TO A CERTAIN DEGREE,YOUR HONOR , AS IT CONC ERNS THE 10- 20-LIFE STATUTE OR THE FIREARM MINIMUM MANDATORY. I KNOW THAT PAL MER HAS BEEN ANALYZED TO , AS FAR AS THESE , S UCH AS THE HA LE CASE , WITH THESE PROCEDURAL ENHANCEMENTS, AND IT IS NOT OUR POSITION THAT PALM ER HAS BEEN OVER RULED AS TO THAT ANALYSIS. HOWEVER , BUT , AS TO THE LANGUAGE THAT SAYS, WELL , I F YOU HAVE ONLY GOT ONEPOSSESSION, IF YOU HAVE GOT, IF YOU HAVE GOT THEPOSSESSION OF A FIREARM , AND IN THIS PARTICULAR SIT UATION , WHERE YOU HAVE GOT NOT ONLY THE POSSESSION OF THE FIREARM BUT, AL SO, THE DISCHARGE OF THE FIREARM, TO THAT E XTENT , I WOULD SUB MIT THAT THAT PART O F PALMER

HOW WOULD PALMER WO RK UNDER YOUR AN ALYSIS , APPLYING THE PRESENT STATUTE ? WHERE YOU HAVE A ROBBERY . YOU DON'T HAVE A DISCHA RGE. AND YOU HAVE 13 SEPARATE PEOPLE THAT ARE ROB BED IN ONE EP ISODE OF A ROBB ERY. HOW WOULD THAT WOR K? WOULD IT BE THE SAME RESULT ?

WELL , I WOULD SUBMIT , YOUR HONOR, THAT THELANGUAGE OF 775.0872-D , WOULD PERMIT THE TRIAL COURTTO HAVE DISCRETION TO STACK THOSE MINIMUM MANDAT ORIES , BECAUSE THE LANGUAGE OF THE STATUTE DOES SAY "ANY OTHER FELONY".

BUT THE LANGUAGE THAT YOU ARE QUOTING , ACTUALLY DOESN'T EVEN GIVE DISCRETION. IT SAYS THE COURT SHALL IMP OSE, SO IF WE ARE GOING TO RELY ON 775.08, THAT WHATYOU ARE RELYING ON, 775.8762-D?

THE FINAL

IT DOESN'T SAY THERE IS DISCRETION. IT SAYS THAT THEY SHALL. S O IF YOU READ IT TO MEAN THAT IT HAS TO BE IN A S INGLE PROSE CUTION, THEN , AS JUSTICE WELLS IS SAYING , THAT YOU K NOW, ROBBERY WITH O NE , HOLDING THE FIREARM , WOULD BE 13 CONSEC UTIVE SENTENCES?

WELL , I THINK IF YOU LOOK AT THE SE SSION LAW , THERE , THE LANGUA GE THAT THE LEGISLATURE U SED , WHEN IT WAS ENACTING THE 10-2 0-LIFE LAW , THE , AND THE LOWER , THE DISTRICT COURTS HAVE LOOKED TO THAT LANGUAGE.

BUT, AGAIN , WHAT YOU SAID WAS, THIS GIVES A COURT DISCRETION TO DO SO , AND WHAT I AM AS KING YOU , IF WE RELY ON THAT SENTENCE , THEREIS NOT EVEN DISCRETION. IT IS MANDATORY TO MAKE THESE SENTENCES CONSECUTIVE FOR SEPARATE CRIMES ARISINGOUT OF A SI NGLE FELONY , A SINGLE PROSEC UTION .

THAT IS WHAT THE LANGUAGE SAYS, YOUR HONOR , AND I WOULD ALSO SUBMIT THAT THE

THAT IS IF WE INTERPRET THAT LANGUAGE TO M EAN THAT IT INT ENDED TO OVERRULE CHRISTIAN IN PART, PALMER , AND ALL OF THIS COURT'S JURISPRUDENCE.

WELL , I THINK , I , HONESTLY, I DON'T BELI EVE THAT THE COURT , REALLY , EVEN NEEDS TO GET TO THE POINT OF DECIDING WHETHER PALMER IS SUPERSEDED AS TO THIS CASE , BECAUSE IN THIS CASE , WE DO HAVE THE MULT IPLE DISCHARGES OF THE FIREARMS , AND WE DO , WE HAVE A SITU ATION HERE, WHERE WE HAVE GOT A CASE OUT OF THE SECOND DISTRICT COURT OF APP EAL , THAT IS INTERPRETING THE LANGUAGE OF 775.0872-D, TO MEAN THAT YOU CAN'T STACK A FIREARM MINIMUM MANDATORY , W ITH ANOTHER FIREARM MINIMUM MANDATORY , UNDER ANY CIRCUMSTANCES.

YOU GO B ACK T O JUSTICE QUINCE'S QUESTION , WHICH , I DON'T HAVE A PRO BLEM WITH THE MULTIPLE DISCHARG ES OF THE FIREARM BEING CONSECUTIVE.

CORREC T.

BUT WHAT AB OUT, WHERE DOES THE AGGRAVATED AS SAULT COME IN?

I THINK, YOUR HONOR, IF YOU LO OK AT THE LANGUAGE OF THE STATUTE , AND IF YOU , ALSO , LOO K AT THE INTE NT OF THE LEGISLATURE

COULD YOU JUST, GOING BACK SGEN TO THE FAC TS OF GOING BACK AGAIN, TO THEFACTS OF THIS CASE, YOU MENTIONED THAT THE AGGRAVATED ASSAULT AROSE OUT OF,, WHICH ONE OF THE SAME CRIMES IN WHICH THE FIREARMWAS DISCHARGED ?

THIS IS ARGUABLY THE SAME CRIMINAL EP ISODE . WE DON'T HAVE A DISPUTE WITH THE FACT THAT THERE IS N O TEMPORAL OR GEOGRAPHICAL BREAK.

WHO I S THE AGGRAVATED ASSAULT AGAINST?

THERE WERE THREE DIFFERENT VE HICLE T IMSES , THREE DIFF ERENT DIF FERENT VICTIMS , HERE , SO YOU HAVE A DISCHARGE OF THE FIREARM , T WO DISCHARGES OF THE FIREARM AT VI CTIMS , AND YOU HAVE THE GUN POINTED AT A THIRD VICTIM, BUT THE THIRD VICTIM WAS NOT FIRE D AT , AND I WOULD SUBMIT THAT, UNDER THAT FACTUAL SCENARIO , EVEN UNDER CHRISTIAN , YOU WOULD HAVE, THE TRIAL COURT WOULD HAVE DISCRE TION TO STACK THOSE FIREARM MINIMUM MANDATORIES , BE CAUSE UNDER CHRISTIAN , THE FIREARM WAS DISCHARGED. NOW , ADMITTEDLY YOU DIDN'T HAVE AN AGGRAVATED ASSAULT SCENARIO THERE, BUT IF YOULOOK AT THE COURT'S DECISION, AND I THINK THAT EVEN UNDER A PRE, AGAIN, IT IS THE STATE'S POSITION THAT THE 10-20-LIFE HE ACTMENT DID NOT SE EK TO EN ACTMENT DID NOT SEEK TO REPUDIATE CHRISTIAN IN ANY WAY AND IN F ACT IT WAS, IF ANYTHING, AN ENDORSEMENT OF THE COURT'S

HOW CAN THAT BE T RUE , IF YOU SAY , CHRISTIAN SPECIFICALLY SAYS THAT YOUCOULD NOT STACK IT. IT IS IMPERMISSIBLE WHERE THE DEFENDANT DOES NOT FIRE THE WEAPON, SO IT SEEMS TO ME UNDER A C LEAR REA DING O F CHRISTIAN, THAT Y OU CAN ONLY STA CK THE TWO, WHERE HE ACTUALLY FIRED THE WEAPON .

AND IN THIS SITUATION, YOU DO HAVE THE WEAPON FIRED. YOU HAVE IT

FOR TWO OF THEM.

CORRECT.

BUT FOR THE THIR D ONE UNDER CHRISTIAN , YOU WOULD NOT B E ABLE TO STACK IT , SOYOU HAVE TO B E RELYING ON 775 , IN ORDER TO STACK THE AGGRAVATED ASSAULT.

YOUR HONOR , I THINK THAT I WOULD DISAGREE , RESPECTFULLY, WITH THE COURT 'S PHRASING THAT YOU WOULD N'T BE ABLE TO S TACK THAT MINIMUM MANDATORY FOR THE AGGRAVATED ASSAULT UNDER CHRISTIAN. I THINK THAT YOU WOULD BE ABLE TO . I THINK

WHAT DOES THAT LANGUAGE IN CHRISTIAN SAY, MEAN , WHICH SAYS IMPERMISSIBLE?

IT IS IMPERMISSIBLE , IF THE WEAPON I S NOT FIRED . B UT HERE AND IN CHRISTIAN , YOU DIDN'T HAVE A SITUAT ION, YOU HAD A SI TUATION WHERE IT WAS DISCHARGED TW ICE AND TWO PEOPLE WERE SHOT. YOU DIDN'T HAVE A THIRD VICTIM AS WE DO HERE , AGAINST WHOM THE GU N WAS APPOINTED. BUT IF YOU LOOK AT

S O THAT LANGUAGE DOESN'T INCLUDE THE NOTION THAT WE ARE TAL KING ABOUT THE FIRING OF THE WEAPON FOR THAT PARTICULAR CR IME . YOU ARE SAYING , IF YOU FIRE THE WEAPON IN , ANY TI ME IN THE CRIMI NAL EPI SODE , THAT THAT IS SUFFICIENT TO BE ABLE TO STACK MULTIPLE OFFENSES , EVEN THOUGH ON SOME OF THEM , IT DID NOT ACTUALLY INVO LVE THE DISCHARGE OF THE WEAPON.

YES, AND I THINK THAT,WHEN YOU LOOK AT SOME OF THELANGUAGE IN CHRISTIAN THAT TALKS ABOUT THE FACT , AND I BELIEVE THAT THERE IS A FOOTNOTE IN CHRISTIAN THAT TALKS ABOUT JUST HAVING THE WEAPON THERE AND FIRING THE WEAPON, CREATES A SUBSTANTIAL DANGER , AND I BELIEVE THAT THAT IS EXACTLY WHAT THE LEGISLATURE WAS GETTING AT , WITH THE 10-20-LIFE, AND, ALSO , OTHER CASES OUT OF THIS COURT THAT HAVE INTERPRETED CHRISTIAN SUBSEQUENT TO OR NOT INTERPRETED CHRISTIAN NECESSARILY BUT HAVE INTERPRETED PALMER , IF YOU LOOK AT THE DO WNS CASE , THAT CAME OUT OF THIS COURT IN 1993 , THAT WAS A MIXED CASE. YOU HAD A FIRST-DEGREE CAPITAL MU RDER , AND YOU , A LSO , HAD A SITUATION WHERETHE GUN WAS APPOINTED AT SOMEBODY. IT WAS FIRST-DEGREE MURDER OF ONE VICT IM AND AGGRAVATED ASSAULT OF A SEC VICTIM OF A SECOND VICTIM, SO YOU HAD THE GUN FIRED AND ONE VICTIM WAS KILLED B Y T THE N YOU HAD THE AGGRAVATED ASSAULT, AND THIS COURT RULED THAT DOWNS COMMITTED TWO DIST INCT AND SEPARATE CRIMES, AND THE TR IAL COURT IMPOSE ED DISTINCT AND SEPARATE PENALTIES, AND THAT WAS APPROPRIATE , UNDER DOWNS , A ND I WOULD SUBMIT TO THIS COURT THAT THE SAME AN ALYSIS APPLIES IN THIS SITUATION , BECAUSE YOU HAVE THE FIRING OF THE WEAPON AT TWO DIFFERENT INDIVIDUALS, ANDYOU HAVE THE GUN POINTED AT A THIRD INDIVIDUAL.

CAN I ASK YOU SOMETHING? UNDER YOUR READING OF THE STATUTE , WAS THE COURT REQUIRED TO STACK NOT ONLY AS AS TO THE TWO ATTEMPTEDMURDER CHARGES BUT ALSO ASTO THE AGGRAVATED ASSAULTCHARGE?

IT IS NOT OUR POSITION THAT THE COURT WAS REQUIRED TO.

DOESN'T THAT POSITION , T HEY BE , CONTRADICT THE PLAIN LANGUAGE OF THE STATUTE THAT SAYS THE COURTSHALL? ISN'T THIS AN OTHER FELONY , SO WOULDN'T HE BE REQUIRED TO STACK?

WELL , WH EN YOU LOOK AT THE, AND OBVIOUSLY THERE HAS BEEN SOME CONFUSION IN THE DISTRICT COURTS OF APPEAL ABOUT THE LANGUAGE OF THE STATUTE, AND THEY HAVE LOOKED AT THE LEGISL ATIVE INTENT IN THE SESSION LAWS , AND IF YOU LOOK AT THE SESSION LAW , THE LEGISLATURE SAID, RI GHT A FTER THEY BASICALLY REITERATED WHAT THEY SAID IN 775.0872-D IN THAT V ERY LAST SENTENCE, THEY SORT OF REITERATED THAT, AND THEN THEY SAID THE COURTIS REQU IRED, OR THEY SAID THIS PROVISION DOES NOT EXPLICITLY PROHIBIT A JUDGEFROM IMPOSING THE MINIMUM MANDATORY SENTENCES CONCURRENT TO EACH OTHER.

WHAT ARE YOU READING FROM?

THAT IS THE SESSION LAW .

WHAT CHAPTER IS THAT?

THAT IS WHAT BE CAME CHAPTER 99-12 , AND THAT I S THE 10-20-LIFE LAW , FOR WHAT BECAME THE 10-2 0-LIFE LAW . AND THAT HAS BEEN UTILIZED BY THE SO USA COURT AND, ALSO , BY MONDESIER , WHICH THE SOUSA COURT FOLLOWED.

DOES THAT SESSION LAW, THEN , CONTRADICT THESTATUTE?

I DON'T BELIEVE SO , YOURHONOR. I THINK , I DON'T SEE THAT THE LEGISLAT URE WOULD SAY ONE THING AND THEN DIRECTLY CONTRA DISTRICT CONTRADICT ITSE LF IN THE VERY NEXT SENTENCE.

I DON'T, EITHER, BUT ISN'T THAT WHAT THEY DID?

IT WOULD APPEAR SO.

SO IT DOES SEEM CONTRADICTORY.

IT DOES SEEM CONTRADICTORY, YES.

SO WHE N WE HAVE A CONFLICT WITH THE SESSIONLAW , WHICH ONE GOVERNS?

THE STAT UTE WOULD GOVERN.

SO UNDER THE PLAINLANGUAGE OF THE STATUTE , THE J UDGE WOULD HAVE TO STACK THE AGGRAVATED ASSAULTCHARGE AS WELL?

WITH A LITERAL READIN G OF THAT STATUTORY PROVISION, YES, THE COURT WOULD . YES, THE CO URT WOULD. I WOULD LIKE T O ADDRESS ONE OTHER OR ANOTHER ISSUE THAT WAS R AISED BY THE DEFENSE , AND I SEE THAT I AM IN MY REBUTTAL TIME. THE FULL SENTENCES ISSUE. THIS HAS NEVER BEEN RA ISED BEFORE. IT IS INAPPROPRIATE TO BRINGIT HERE NOW . THE DEFENSE I S CONTENDING THAT THE 50 YEARS AND THE FIVE YE ARS , SHOULD , THE FULL SENTENCES SHOULD NOT HAVE BEEN STACKED. HOWEVER , THIS GOES ALL THE WAY BACK TO 775.021, AND IT IS CLE ARLY APPROPRIATE TO STACK THOSE FULL SENTENCES . THE STATE WOULD ASK THAT THIS COURT QUASH THE ORIGINAL DISPOSITION AND REMAND FOR ORIGINAL SENTENCES.

CHIEF JUSTIC E: THANK YOU .

MAY IT PLEASE THE COURT . B RUNO DeZAYAS ON B E HALF OF THE RESPONDENT ADAM SOUSA IN THIS CASE.I WOULD LIKE TO START OFF BY GOING OVER STATE VE RSUS CHRISTIAN. I BELIEVE THAT THAT CASE IS DISTINGUISHABLE FROM THE CASE THAT WE ARE BE FORE THECOURT HERE R BT SOUSA CASE, THE REASON BEING I S , IN THE CHRISTIAN CASE, THERE WA S AN ACTUAL HOMICIDE. THERE WAS NO HOMICIDE IN THE SOUSA CASE.

DID THAT MAKE ANY DIFFERENT IN THE DIFFERENCE IN THE ANA LYSIS CHRISTIAN?

I BELIEVE IT DOES AND HERE IS WHY , THE REASON IBELIEVE IT IS THE ANALYSIS , IF YOU LOOK AT PALMER, IN THIS CASE WELL AWARE OF PALMER, BUT IN THE PALMER CASE BACK IN 1983 , THEREHAVE BEEN EXCEPTIONS CRAFTED THROUGH COURT CASES, INCLUDING DOWNS , THOMAS , EDMUNDS.IF YOU LOOK AT THE DOWNS , THOMAS AND EDMUNDS CASES, IN THOSE CASES SPECIFICALLY THERE WAS EXCEPTIONS TO THE PALMER RULE , WHEN YOU HAVE A HOMICIDE. THAT IS WHAT YOU HAVE INCHRISTIAN.A LSO IN THE THOMAS CASE

BUT CHRISTIAN DIDN'T TALK IN TER MS OF HOMI CIDE , DID IT? IT TALKED IN T ERMS OF SHOOTING AT SOMEBODY.

WHAT THEY DID WAS , MY UNDERSTANDING , THEY RELIEDON, IF YOU LO OK AT THE CASE , THEY RELIE D ON THE THOMAS , EDMUNDS AND DOWNS, AND IN MAKING, IN BASICALLY MAKING THE DECI SION THAT THEY MADEIN THAT CASE, TO STACK THEM R ATHER THAN TO MAKE THE SENTENCES CONCURRENT , AND MY , WHAT MY AR GUMENT WOULD BE , THAT IF YOU LOOK AT ED MUNDS AND YOU LOOK AT DOWNS, THOSE ARE AL READY EXCEPTIONS TOTHE PALMER RULE. THEREFORE , THIS FALLS IN LINE WITH THAT BECAUSE THIS WAS A HOMICIDE JUST LIKE IN THOSE CASES.

WHAT ABOUT THE STAT UTE?IS THERE ANYTHING IN THE STATUTE THAT DISTINGUISHES BETWEEN HOMICIDE AND A SHOOTING?

NO. IN 775.087, NO , THERE IS NOT THAT I CAN , THAT I SEE .

CHIEF JUSTICE: YOUR ARGUMENT IS, LET'S JUST G O TO THE ACTUAL DISCHARGE OF THE FIREAR MS. IS THAT, IF THERE HAD BEEN ONE VICTIM WAS KILLED AND THE SECOND VICTIM WAS WOUNDED , BY TWO SEPARATE DISCHARGES OF THE FIREARM , THAT THERE WOULD BE CONSECUTIVE SENTENCES APPROPRIATELY IMPOSE ED ?

YES. I BE LIEVE THAT THE REASON CHRISTIAN

YES. I JUST WANT AS TO THAT.

YES.

BUT IF THERE IS A DISCHARGE WHERE SOMEONE IS NOT SHOT, I MEAN , IS SHOT BUT NOT KILLED, AND ANOTHER DISCHARGE SHOT AND NOT KILLED , THAT IT WOULD BE , IT WOULD BE , HAVE TO BE CONCURRENT?

YES. PALMER

WHERE DOES THAT , I AM TRYING, WHERE DOES THAT COME FROM?

WELL, IF YOU LOOK AT THE EXCEPTION TO SAY PALMER ANDIF YOU LOOK AT THE CHRISTIANCASE, THERE WAS EXCE PTIONS TO PALMER THAT HAVE COME OUT A FTER PALMER OBVIOUSLY. THERE WAS DOWNS AND EDMUNDS , AND THEY SPECIFICALLY SAID IN THOSE CASES THAT , EVEN THOUGH YOU HAD A SI NGLE EPISODE OR ACT , THE FACT OF IT IS WHERE THERE IS A HOMICIDE, GIVEN THE FACTS O F THOSE CASES, IF YOU READ THROUGH THE CASES THERE, THAT IF FACT YOU CAN STACK THEM IN THAT CASE. THAT IS WHAT HAPPENED IN CHRISTIAN. CHRISTIAN IS AN EXCEPTION TO PALMER BECAUSE OF THAT.

BUT DOESN'T THE STATUTE CHANGE ALL OF THOSE CASES?

WELL , NOT NECESSARILY. I DON'T NECESSARILY AGREEWITH THAT. THE STATUTE, THEN , OBVIOUSLY CHANGED, IN THE PRE1999LANGUAGE OF 775.087 , THE REWAS NO MENTION AT AL L, OF ANY OTHER FELONY OFFENS OR ANY ME NTION O F ANY OTHER STACKING. WHEN THEY CHANGED THE AMENDMENT IN 1999 , THE AMENDMENT ADDED THIS LANGUAGE, THE COURT SHALL IMPOSE ANY TERM O F IMPRISONMENT PROVIDED FOR IN THIS SUB SECTION , CONSECUTIVE TO ANY OTHER TE RM OF IMPRISONMENT IMPOSED FOR ANY OTHER FELONY OFFENSE. THE OTHER FELONY OFFE NSE THAT THEY WERE TALK ABOUT IS LIKE IN THE MONDESIER CASE , WHERE YOU HAD A CASE THATWAS A VIOLATION OF PROBATIONAND THEN NEW CHARGES INVOLVING FIREARM CHAR GES.

H OW MANY OFFENSES WAS HE CONVICTED OF?

THREE FELONY OFFENSES.

SO WOULDN'T THIS CASE REQUIRE STACKING FOR EACH THE FELONY OFFENSES?

NO. I WOULD RESPECTFULLY DISAGREE WI TH THAT, THE REASONING THE REASON BEING I BELIEVE PALMER IS STILL IN PL ACE AND WHEN YOU HAVE A SINGL E EPISODE OR ACT , LIKE IN THIS CASE

THE STATUTE DOESN'T TALK ABOUT A SINGLE EPISODE. IT TALKS ABOUT ANY OTHER FELONY, SO WHY DOESN'T THAT SUPERSEDE PALMER AND ANYOTHER CASES YOU ARE TALKING ABOUT?

I BELIEVE YOU HAVE TO LOOK AT THE HISTORY AND THE COMMITTEE NOTES THAT WERE INT ENDED AND CITE D IN THE SOUSA CASE, AND MY ARGUMENT WOULD BE THAT, WHEN THEY LOOKED AT THAT IT WAS CLEARTHAT IT WAS INT ENDED FOR ANY OTHER FELONY.

TO LOOK AT THAT , YOU HAVETO FIND THAT THE STATUTE IS SOMEHOW AMBIGUOUS , AND IN THE STATUTE, ISN'T THE STATUTE CLEAR?I MEAN, THE STATUTE LANGUAGE S AYS "COURT SHALL" , AND SO I DON'T SEE HOW YOU GET TO THAT LANGUAGE.

WELL , I AGR EE WITH YOU THAT THE STATUTE TA KES PRECEDENCE OVER ANY LEGISLATIVE COMMITTEE NOTESOR THE INTE NT THERE , BUT INORDER TO MAKE THE DECISION THAT THEY MADE IN THE MONDESIER CASE, THE COURTHAD TO LOOK AT THAT INTENT AND BASICALLY WITH THEINTENT, THEY WENT THE NOTION THAT HAS BEEN FOLLOWED BY ALL OF THE DCA'S THEREAFTER , AND I BELIEVE IT IS THE STAFFORD CASE , THE EAGLE'S R CASE, THEY HAVE ALLCONCLUDED THAT THAT I S THE INTENTION.THE INTENTION WAS BASED O N THE DECISION IN MONDESIER THAT, IN FACT THAT THE FELONY OFFENSES , IN ORDER TO STACK THEM, YOU HAVE TO HAVE ANOTHER FELONY OFFENSE NOT INVOLVING IN THE SAME PROSECUTION.

LET ME AS K, GOING BACK TO YOUR ANALYSIS OF CHRISTIAN , ISN'T IT CORRECT THAT IN CHRISTIAN , WE SAID EXPRESSLY , THAT THE STACKING OF FIREARM MANDATORY MINIMUM TERMS , THUS, IS PER MIFERBL, WHERE THE DEFEND ANT SHOOTS AT MULTIPLE VICTIMS. NOW , I RECOGNIZE WE CI TE D TO THO MAS.

RIGH T.

BUT THEN WE APPROVED THE FOURTH DISTRICT'S CASE OF LIFERIT , CORRECT, AND THAT W AS NOT A DE ATH CASE.

I AGREE WITH YOU. IN THE THOMAS CASE , THE WAY I UNDERS TOOD CHRISTIAN WAS THAT THEY RELIED ON THE THOMAS CASE BECAUSE THEY TOOK THE GENERAL PROPOSITION THAT THOMAS STANDS FOR. WHEN YOU HAVE MULTIPLE VICTIMS IN SEP ARATE OFFENSES , THEN AS A MA TTER , THE RULE IS THEN THERE IS AN EXCEPTION TO THE PALMER CASE. THE PROBLEM IS, IF YOU ANALYZE THOMAS AND THEY ANALYZED IT V ERY CL OSELY IN THE GARDINER CASE. IN THE GARDINER CASE , THEY TALKED ABOUT WAIT A SECOND.IF YOU LOOK AT THE THOMAS CASE, THERE WAS A CUT IN TIME, A SEP ARATE, A CUT IN TIME. THE VICTIMS WERE SHOT IN SEPARATE PLACES , AND THEREFORE , BECAUS E OF THAT , THAT IS WHERE BASI CALLY , THEY CAME UP WITH THEIR R ULING , SO

CHIEF JUSTICE: I JUST,WELL, IT IS , YOU K NOW , FIRST OF ALL , I THINK YOU HAVE A HARD TIME GETTING AROUND THE ACTUAL LANGUAGE OF THE STATUTE.SECOND OF ALL , CHRISTIAN CLEARLY WAS REFERRING TO SEPARATE VICTIMS AND DID NOT, THE ISSUE OF A SEPARATE TIME IN PLACE , WAS NOT A FACTOR , AND I AM JUST HAVING A VE RY DIFFICULT TIME UNDERSTANDING HOW YOU COULD DISTINGUISH A HOMICIDE F RO M A DISCHARGE, WHERE SOME ONE IS SEVERELY WOUNDED.I MEAN, WHERE DOES THAT COME FROM ?

WELL , A G AIN , MY POSITION , MY ANSWER TO THAT WOULD BE JUST FROM LOOKING AT THE CASE LAW AND EXCEPTIONS THAT HAVE COME FROM PALMER UN TIL PRESENT DAY.

PALMER REALLY RELIES , IT WAS A ROBBERY.

YES.

AND SO YOU HAVE REALLY GOT , VER SUS AN ATTEMPTED MURDER , YOU HAVE GO T A DIFFERENT ACT THAT IS GOING ON, WHERE IT IS DI RECTED AT A SPEC IFIC VICTIM.

RIGHT. B UT IN THE , IN THIS THOMAS CASE, THERE WAS ALSO ASHOOTING IN THAT CASE, BUTIN THAT CASE, I BELIEVE IF I RECALL CORRECTLY , NO ON E WAS KILLED. THERE WAS NO HOMICIDE IN THAT CASE, BUT THE REASON THEY MADE AN EXCEPTION TO PALMER WAS BECAUSE THEY SAID THERE WAS DIFFERENT PLACES AND DIFFERENT TIMES. THERE WAS A B REAK, UNLIKE IN THIS CASE, WHERE THE STATE HAS ADMITTED THERE WAS NO BREAK , AND THAT IS HOW THEY BASICALLY , SO WHAT THE CHRISTIAN COURT DID OR WHAT THE COURT, I UNDERSTAND THIS COURT DID IN CHRISTIAN OR THE WAY I INTERPRETED IT, WOULD BE IF THEY JUST TO OKTHE GE NERAL PROPOSITION THAT IF YOU HAVE TWO VICTIMS, THEN YOU HAVE GOT TWO SEPARATE OFFENSES. THAT IN AND OF ITSELF IS AN EXCEPTION TO PALMER , AND I AM SAYING I DON'T AGREEWITH. THAT I AM SIGH SAYING THAT YOU REALLY HAVE TO I AM SAYING THAT YOU REALLY HAVE TO LOOK AT THE FACTS OF THOMAS, AND IN THOMAS THERE WAS A BREA K, SO THEREFORE THE COURT IN MY OPINION , JUST BROADLY INTERPRETED CHRISTIAN AND QUITE FRANKLY , I BELIEVE THAT , THAT PALMER IS BASICALLY THE RULE OF LAW IN THIS CASE.

DOES THE LEGISLATURE HAVE THE AUTHORITY TO MANDATE THAT THERE BE CONSECUTIVE OFFENSES , EXC USE ME , CONSECUTIVE MANDATORY MINIMUMS, FOR SEPARATE CRIMES ARISING OUT OF A SINGLE EPISO DE?

I BELIEVE THE LEGISLAT URE COULD PUT THAT IN THESTATUTE , YES.

AND I AM STILL, THEREFORE , HAVING TROUBLE WITH UNDERSTANDING HOW WE GET AROUND THE ACTUAL LANGUAGE THAT JUSTICE CANTERO REFERRED TO THAT I REFERRED TO EARL IER , WH ICH DOESN'T E VEN SEEM TO ALLOW FOR ANY DISCRETION IN IMPOSE ING OF A CONSECUTIVE TERM OF IMPRISONMENT.

I THINK IT IS A MATTER OF INTERPRETATION. I BELIEVE THAT THE COURT IN MONDESIER AND ALL OF THE COURTS THAT HAVE INTERP RETED MONDESIER THEREAFTER, HAVE INTERPRETED THAT THE LANGUAGE OF ANY OTHER FELONY OFFENSE WOULD BE ONE NOT ARISING FROM THE SAME SINGLE PROSECUTION . COULD IT

BUT TO ARRIVE AT STATUTORY INTERPRE TATION, IF THE LANGUAGE OF THE STATUTEIS CL EAR ON ITS FACE , WE D ON'T NEED TO RE SORT TO ANY KIND OF RULES OF INTERPRETATION, DO WE?

I AGREE , AND I THINK IT IS CLEAR ON ITS FACE .

ISN'T IT CLEA R THAT IT SAYS "SHALL IMPOSE "?

FOR ANY OTHER FELONY OFFENSE.

AND ANY OTHER FELONY OFFENSE WOULD BE THE AGGRAVATED ASSAULT , THE OTHER SHOOTING, THOSE ARE ALL OTHER FELONY OFFENSES,CORRECT?

WELL , IT COULD BE INTERPRETED THAT WAY. I WOULD IN TERPRET IT THE WAY THE M O NDESIER COURT INTERPRETED IT. IT MEAN S THAT ANY OTHER FELONY OFFENSE WOULD MEAN A FELONY OFFENSE THAT DID NOT OCCUR WITHIN THAT SINGLE PRO SECUTION, LI KE IN MONDESIER , W HERE THEY HAD A SINGLE PROSECUTIO N.

BUT AREN'T YOU AD DING SOMETHING TO THE STATUTE , WHEN YOU AD D ON THE LANGUAGE "ANY OTHER FELONY THAT IS NOT A PART OF THIS CRIMINAL EPISODE"? I MEAN, BASICALLY THAT IS WHAT YOU ARE SAYING, SO AREN'T YOU ADDING LANGUAGE TO THE STATUTE THAT ISN'T THERE?

I RESPECTFULLY DISAGO GREECHLT I AM JUST TAKING THE LANGUAGE THAT IS THEREAND INTERPRE TING IT. THERE IS JUST A MA TTER OF DIFFERENCE OF OP INION. THEY ARE INTERPRETING ONE WAY , THE STATE, AND I AM INTERPRETING IT AN OTHER WAY , AND I THINK IT CAN BE INTERPRETED EITHER WAY , QUITE FRAN KLY, BUT WHEN YOU INTERPRET THAT, YOU LOOK AT ALL OF THE CASES THAT HAVE LED UP TO THIS POINT , WHI CHWOULD BE THE PALMER CASE AND ALL OF THE EXCEPTIONS THAT HAVE FORWARD AND ALL OF THE CASE LAW THAT HAS DE RIVED FROM THAT , AND THEREFOREBASED ON THAT, I WOULD ASK THE , BASICALLY THE COURT TO FOLLOW THE RULING OF MONDESIER AND TO AFFIRM. ONE OTHER POINT I WOULD LIKE TO MAKE JUST BRIEFLY. I BELIEVE THAT THE INSTRUCTION TO SAY THE TRIAL COURT IN THIS CASE , THE ATTHE TIME OF SENTENCING, WERE THAT THE TR IAL COURT DID NOTHAVE A CHOICE BUT HAD TO MAKE IT MANDATORY STACKI NG. I WOULD REQUEST THAT , I N THE EVENT THAT THIS COURT FEELS THAT THE STATE'S POSITI ON IS CORRECT THAT, IN FACT , THAT YOU CAN STACK IN THIS CASE , THEN I WOULD REQUEST THAT IT AT LE AST BE REMA NDED BACK TO THE LO WER COURT, TO DETERMINE WHETHER OR NOTTHEY ACTUALLY HAD TO S TACK OR THAT THEY HAD THE DISCRETION NOT TO STACK , BECAUSE I FELT , IF YOU LOOK AT THE TRANSCRIPTS , FROM THECASE, T HE TRIAL COURT FELT THAT IT WAS MANDATOR Y FOR THEM TO STACK! I DON'T BELIEVE THAT WAS THE CASE.

IF WE H O LD THAT IT WAS MANDATORY FOR THEM TO STACK, WHY WOULD WE REM AND?

WELL , AGAIN, THAT IS A GOOD QUESTION, A GOOD POINT . YOU KNOW , I T IS BECAUSE I F IT WAS MANDATORY FOR THEM, IF IT IS HELD THAT I T IS MANDATORY, THEN THERE WOULD PROBABLY BE NO REASON TO REMAND. I WOULD AGREE WITH THAT, SO BASED ON IF THERE IS ANYMOREQUESTIONS.IF NOT, I WOULD ASK THECOURT TO AFFIRM THE LOWER COURT'S DECI SION. THANK YOU .

CHIEF JUSTICE: THANK YOU V ERY MU CH . REBUTTAL .

THANK YOU. A FEW POINTS VERY BRIEFLY. A S TO THE MANDATORY , THE ISSUE THAT M R . DeZA YAS JUST R AISED THAT THE ASSISTANT STATE ATTORNEY ARGUED THAT IT WAS MANDATORY, IF , I WOULD DIRECT THE COURT'S ATTENTION TO PA GES 77 AND 7 6 OF THE RE CORD OF THE SENTENCING H EARING, AND IF YOU READ THAT , YOU WILL SEE THAT WHAT THE ASSI STANT STATE ATTORNEY DID WAS READ 775.0872-D TO THE TRIAL JUDGE, AND THEN THEREAFTER , SHE SAID, IT IS APPROPRIATE THAT THIS COURT STACK THE SENTENCES , AND THE TRIAL COURT STACKED THE SENTENCES WITHOUT GI VING ANY INDICATION THAT IT FELT CONSTRAINED BY THE STATUTE, BUT IT SAID NOTHING ONE WAYOR THE OTHER. JUST STACKED THE SENTENCES.

ALL THREE SENTENCES?

THAT'S CORRECT, YOUR HONOR. THAT'S CORRECT. A COU PLE OF OTHER ISSUES ANDI KN OW I AM RUNNING OUT OF T IME. AS TO THE HOMICIDE IS SUE THAT WAS BROUGHT OUT, THEREIS NOTH ING IN E ITHER THE STATUTE OR THE CHRISTIAN OPINION THAT DIFFERENTIATES HOMICIDE. HOMICIDE IS NOT THE DECIDING FACTOR HE RE. IT IS THE INJURIES TO SEPARATE VICTIMS.

CHIEF JUSTICE: NOW, AGAIN , IF WE INTERPRET THE STATUTE LITERALLY , IF WHAT HAD HAPPENED WAS, FIRST , THEY, HE TOOK THE FIRST VICTIM, AND HE ROBBED H IM, AND THEN WITH THE SAME GUN , DISCHARGED THE FIREARM , THERE WOULD BE A RO BBERY AND AN ATTEMPTED MURDER. WHAT WE WOULD , ARE YOUASKING US TO STATE THAT THAT WOULD BE IN ACCORDANCE WITH THE PLAIN LANGUAGE OF THE STATUTE , THERE WOULD HAVE TO BE CON SECUTIVE SENTENCES AND CONSECUTIVE MANDATORY MINIMUMS?

CORRECT. CORRECT, YOUR HONOR , AND I THINK

I THOUGHT THAT YOU WERE , OKAY, BECAUSE EA RLIER ITHOUGHT THAT YOU WERE SAYING THAT WE DIDN'T NEED TO REACHTHAT BECAUSE THIS WAS A DIFFERENT SITUATION AND THAT IT WAS DISC RETION BUT NOWYOU ARE SAYING THAT THERE REALLY ISN'T DISCRETION SO WE WOULD HAVE TO OVERTURN MONDESIER , DISAPPROVE OF MONDESIER.

YOUR HONOR , AS TO, IGUESS MY POSITION IS, IF THE COURT FIND S THAT THELANGUAGE OF THE STATUTE IS UNCLEAR , THEN IT WOULD HAVE TO LOOK AT LEGISLATIVEINTENT, AND IF YOU DO LOOK AT LEGISLATIVE INTENT , YOU WOULD BE LOOK ING AT THAT SESSION LAW THAT SAY S, AND IT DOES SEEM TO CONTRADICT ITSELF, IN ONE SENTENCE IT SAYS IT IS MANDATORY. IN THE NE XT SENTENCE, IT SAYS THIS DOESN'T, WE DON'T INTEND TO RES TRICT THE TRIAL JUDGES ' DISCRETION TO SENTENCE CONSECUTIVELY.

IF YOU FIND IT IS UN CLEAR , WHY WOULDN'T THE RULE OF LIENITY APPLY ?

BECAUSE , YOUR HONOR , I THINK , I DON'T BELIEVE THAT THAT APPLY TO THIS SITUATIONBECAUSE YOU WOULD BE LOOKING AT THE LANGUAGE OF THESTATUTE THAT SAYS THAT , YOUKNOW, YOU CAN STACK THESE , AND FURTHERMORE, YOU GO ALL OF THE WAY BACK, AGAIN, TO THE CHRISTIAN ANALYSIS , THAT SAYS WHEN YOU HAVE GOT MULTIPLE DISCHARGES OF FIREARMS, YOU HAVE THE ABILITY TO STACK THESE MINIMUM MANDATOR IES, AND, AGAIN, THERE IS NOTHING IN THERE ABOUT HOMICIDE OR ANYTHING LIKE THAT. IT IS THE DISCHARGE OF THE FIREARM THAT TRIGGERS THAT ABILITY TO STACK THESE MIN IMUM MANDATORIES, IF YOU WILL, SO YOU H AVE GOT THE LANGUAGE THERE IN CHRISTIAN. THE STATE WOULD AS K THAT THE COURT QUASH THE DECISION BELOW AND REMAND IT TO THE T RIAL COURT FOR IMPOSITION OF THE ORIGINAL SENTENCES. THANK YOU.

CHIEF JUSTICE: THANK YOU VERY MUCH, TO BOTH SIDES. ALL RIGHT.