Kelly v. State

964 So. 2d 135, 2007 WL 1836835
CourtSupreme Court of Florida
DecidedJune 28, 2007
DocketSC06-842
StatusPublished
Cited by2 cases

This text of 964 So. 2d 135 (Kelly v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly v. State, 964 So. 2d 135, 2007 WL 1836835 (Fla. 2007).

Opinion

964 So.2d 135 (2007)

Joseph KELLY, Petitioner,
v.
STATE of Florida, Respondent.

No. SC06-842.

Supreme Court of Florida.

June 28, 2007.
Rehearing Denied August 31, 2007.

*136 Fred Haddad, Fort Lauderdale, FL, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, FL, Celia A. Terenzio, Bureau Chief, and Diane F. Medley, Assistant Attorney General, West Palm Beach, FL, for Respondent.

PER CURIAM.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in Kelly v. State, 924 So.2d 69 (Fla. 4th DCA 2006). On motion for rehearing, the district court certified that its decision is in direct conflict with the decisions of the Second District Court of Appeal in Johnson v. State, 695 So.2d 861 (Fla. 2d DCA 1997), and Frazier v. State, 630 So.2d 1237 (Fla. 2d DCA 1994), and the First District Court of Appeal in Vickery v. State, 515 So.2d 396 (Fla. 1st DCA 1987). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because we conclude that the Legislature intended that the mandatory minimum sentences for the two crimes in question in this case could be imposed consecutively, we approve the decision of the district court below denying Kelly's motion under Florida Rule of Criminal Procedure 3.850.

FACTS AND PROCEDURAL HISTORY

Pursuant to a plea agreement, Kelly pled guilty to conspiracy to traffic in cocaine and trafficking in cocaine of more than 400 grams. Kelley [sic] v. State, 821 So.2d 1255, 1256 (Fla. 4th DCA 2002) (Kelly I). He then violated his plea agreement and was sentenced to twenty years in prison with a fifteen-year mandatory minimum provision, consisting of two concurrent fifteen-year mandatory minimum sentences. Id. In sentencing Kelly, the judge explained that she had no discretion to deviate below the statutorily mandated minimum sentence of fifteen years for the trafficking charge without the prosecutor's waiver. Id. Kelly filed a Motion to Correct Sentencing Error pursuant to Florida Rule of Criminal Procedure 3.800(b), arguing that the judge should have exercised discretion to sentence him to less than the mandatory minimum since he intended to purchase only an ounce of cocaine but ultimately purchased a kilogram due to police entrapment and inducement. Id. This motion was denied, and Kelly then appealed his sentence to the Fourth District, again arguing that the sentencing judge had the discretion to depart below the mandatory minimum sentence since Kelly was induced by the police into buying the larger amount of cocaine. Id. at 1256-57. The Fourth District affirmed Kelly's sentence. Id. at 1258.

Kelly then filed a rule 3.850 motion for postconviction relief, subject of the instant case, alleging that trial counsel was ineffective for advising him that he was potentially facing a thirty-year mandatory prison term, consisting of stacked fifteen-year mandatory minimum sentences, one each for the trafficking charge and for the conspiracy to traffic charge. Kelly, 924 So.2d at 69 (Kelly II). Kelly argued that since the mandatory minimums for these two crimes could only run concurrently under governing case law, he was actually only faced with a fifteen-year mandatory term. Id. at 70. Kelly alleged that but for this bad advice regarding a possible thirty-year mandatory term, he would not have taken the State's plea agreement. Id. The trial court summarily denied the 3.850 motion, and Kelly appealed this summary denial to the Fourth District, arguing that he set forth a legally sufficient claim of ineffective assistance of counsel. Id. at 69.

In affirming the trial court's denial of relief, the Fourth District concluded that *137 there was no misadvice, because the trial court could properly have imposed the mandatory minimum terms consecutively. Id. First, the court below looked to the exact language of the governing statute, section 893.135, Florida Statutes, which reads in pertinent part:

(1) Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s. 893.13:
. . . .
(b)1. Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine, as described in s. 893.03(2)(a)4., or of any mixture containing cocaine, but less than 150 kilograms of cocaine or any such mixture, commits a felony of the first degree, which felony shall be known as "trafficking in cocaine," punishable as provided in s. 775.082, s. 775.083, or s. 775.084. If the quantity involved:
. . . .
c. Is 400 grams or more, but less than 150 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and pay a fine of $250,000.
. . . .
(5) Any person who agrees, conspires, combines, or confederates with another person to commit any act prohibited by subsection (1) commits a felony of the first degree and is punishable as if he or she had actually committed such prohibited act. Nothing in this subsection shall be construed to prohibit separate convictions and sentences for a violation of this subsection and any violation of subsection (1).

Kelly II, 924 So.2d at 70 (quoting § 893.135(1), (5), Fla. Stat. (2005)). The lower court concluded that the statute clearly "authorizes convictions and sentences, with mandatory minimums for both the trafficking and conspiracy, even though they may arise out of the same transaction." Id. The Fourth District then turned to two opinions from this Court, Daniels v. State, 595 So.2d 952 (Fla.1992), and Hale v. State, 630 So.2d 521 (Fla. 1993), to determine whether the mandatory minimum terms could be imposed consecutively. Kelly II, 924 So.2d at 70-71. Utilizing to the "Daniels/Hale analysis," the court below held that trial counsel correctly advised Kelly that his sentences could be stacked because the statute specifically requires a mandatory minimum sentence for each separate crime. Id. at 71. "Paraphrasing Daniels, because the statute prescribing the penalty for [Kelly's] offenses does contain a provision for a minimum mandatory sentence, Kelly's minimum mandatory sentences imposed for the crimes he committed arising out of the same criminal episode may be imposed consecutively." Id.

The lower court acknowledged that its holding was in conflict with case law from other districts courts establishing that sentences for trafficking and conspiracy to traffic in the same cocaine on the same day cannot be stacked. Id. However, the Fourth District reasoned that Vickery, the primary case in conflict, was superseded by Daniels and Hale. Kelly II, 924 So.2d at 71. Thus, the Fourth District held that the trial court was correct in denying Kelly's motion for postconviction relief since he was not misadvised regarding the trial court's ability to order consecutive mandatory minimum sentences for his two crimes. Id. at 71-72.

ANALYSIS

Kelly argues on appeal that the Fourth District incorrectly concluded that the mandatory minimum prison terms for trafficking and conspiracy to traffic in the *138 same cocaine could be imposed consecutively. We disagree.

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Bluebook (online)
964 So. 2d 135, 2007 WL 1836835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-state-fla-2007.