          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-3466
                  _____________________________

ALBERT JAMES HAYES, II,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Bay County.
Brantley S. Clark, Jr., Judge.

                           May 13, 2019

B.L. THOMAS, C.J.

     Appellant was sentenced to more than 90 years in prison. He
argues that the trial court erred by declining to apply a downward-
departure sentence. He also argues that the court erred in
applying the adult-on-minor sex offense multiplier, which
effectively doubled his lowest permissible sentence.

                               Facts

     Following a jury trial, Appellant was found guilty of six counts
of lewd or lascivious battery on a person older than age 12 but
younger than age 16, with special findings of penetration as to each
count. See § 800.04(4)(a), Fla. Stat. (2015). At the sentencing
hearing, defense counsel asked for a downward-departure
sentence, asserting that the acts were entirely consensual, that
Appellant believed the victim was 17 years old, and that Appellant
had little to no criminal record.

     The State argued that there was no legal basis for a downward
departure, as consent would not be a defense even if the victim was
17 years old. The State produced a sentencing scoresheet that
applied a 2.0 multiplier for adult-on-minor sex offenses. See §
921.0024(1)(b), Fla. Stat. (2015).      Without the multiplier,
Appellant’s sentencing points resulted in a 44.45-year lowest
permissible sentence. 1     With the multiplier, the subtotal
sentencing points doubled. The trial court declined to depart from
the lowest permissible sentence, applied the multiplier, and
sentenced Appellant to an aggregate sentence of 90.59 years in
prison. Appellant filed a motion to correct sentencing error under
Florida Rule of Criminal Procedure 3.800(b)(2), which the trial
court denied.

                              Analysis

     If a defendant asserts a valid basis for a downward departure
and presents evidence to support that assertion, the trial court
must then decide “whether it should depart, i.e., whether
departure is indeed the best sentencing option for the defendant.”
Banks v. State, 732 So. 2d 1065, 1068 (Fla. 1999) (emphasis in
original). “This second aspect of the decision to depart is a
judgment call within the sound discretion of the court and will be
sustained on review absent an abuse of discretion.” Id. When
considering whether to apply a downward departure sentence, a
trial court may consider introduced evidence that directly relates
to the proposed basis for the downward departure. Barlow v. State,
238 So. 3d 416, 417 (Fla. 1st DCA 2018) (finding no error in the
trial court considering uncharged conduct that rebutted the
defendant’s assertion that he was at low risk to reoffend).

     Here, after considering defense counsel’s argument that the
acts were consensual, the trial court declared, “I’m not convinced

    1 Absent the multiplier, with 739.2 subtotal sentence points,
Appellant’s lowest permissible sentence would be calculated as
(739.2 - 28) × 0.75 = 533.4 months, or 44.45 years. See Fla. R. Crim.
P. 3.990.

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from the testimony that I’ve heard that . . . the victim was a willing
participant.” The 15-year-old victim did admit at trial to a
generally consensual relationship with Appellant, but competent
evidence was presented that the victim was not an entirely willing
participant to the initial sex acts. She testified that she felt
uncomfortable with the sexual activity and “wanted out.” The trial
court had the authority to rely on this evidence to reject
Appellant’s argument for a downward departure sentence.

     Appellant’s scoresheet included 74 points for the primary
offense (one of the lewd and lascivious batteries), plus 185 points
for the secondary offenses (the other five lewd and lascivious
batteries, at 37 points each). The scoresheet then added 480 victim
injury points (six sexual penetrations at 80 points each), plus 0.2
points for Appellant’s prior record. This resulted in 739.2 “subtotal
sentence points.” See Fla. R. Crim. P. 3.990. The 2.0 adult-on-
minor sex offense multiplier was then applied, doubling the 739.2
subtotal sentence points to 1,478.4 total sentence points, resulting
in a lowest permissible sentence of more than 90 years.

     Appellant argues that the limiting clause in the multiplier
statute prohibited the use of the multiplier in this case. He also
argues that the multiplier was not intended to enhance multiple
offenses, and that the legislature only contemplated less serious
crimes when creating the multiplier provision.

     As an initial matter, the State makes an invited error
argument, claiming that Appellant waived his challenges to the
2.0 multiplier. We hold that Appellant did not waive this issue for
appellate review. Unlike in Bolen v. State, 943 So. 2d 855, 856
(Fla. 1st DCA 2006), where defense counsel affirmatively
represented that the defendant had no objection to the facts
underlying a sentencing enhancement, Appellant’s counsel did not
agree that a 90.59-year sentence was proper, or that the adult-on-
minor sex offense multiplier should apply; counsel strongly argued
against the sentence and multiplier. Defense counsel merely
corrected the trial court’s misstatement that the total under the
scoresheet reflected a maximum sentence, when it actually
represented the lowest permissible sentence.

     We reject Appellant’s argument that the legislature intended
for the multiplier to apply only to less serious crimes. Appellant
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looks to the staff analysis for support, but the language of the
statute itself clearly states that the multiplier applies to sexual
batteries and other felony offenses. § 921.0024(1)(b), Fla. Stat.
(2015). If the multiplier only intended to enhance lesser crimes,
the legislature would not have written the statute to include far
more serious crimes.

     However, the multiplier provision contains a limiting clause,
stating: “If applying the multiplier results in the lowest
permissible sentence exceeding the statutory maximum sentence
for the primary offense under chapter 775, the court may not apply
the multiplier and must sentence the defendant to the statutory
maximum sentence.” § 921.0024(1)(b), Fla. Stat. (2015). Appellant
argues that because his 90-year sentence with the multiplier
applied exceeds the 15-year statutory maximum for his primary
offense of lewd and lascivious battery, the trial court was not
permitted to apply the multiplier and was instead required to
sentence Appellant to a total of 15 years in prison, despite the
recommended range of 44 to 90 years.

     We interpret the limiting clause to provide that when the total
result on the scoresheet, with the multiplier applied, exceeds the
statutory maximum sentence for the primary offense, the
sentencing court must not apply the multiplier and must impose
the maximum sentence for the defendant’s primary offense, here
Count One. The court must then look to the subtotal sentencing
points with all secondary offenses included, but without the
multiplier, to determine the lowest permissible aggregate
sentence. 2



    2 We reject the State’s argument that the “results in” language
in the multiplier limitation means “directly caused by applying the
multiplier.” This interpretation would require courts to parse
through scoresheet equations for the moment in the order of
operations where some factor such as victim-injury points causes
sentencing points to exceed the statutory threshold. Instead, we
read the “results in” language to mean that after applying the
multiplier, the court must look at the resulting lowest permissible
sentence and see if that result exceeds the statutory maximum.

                                 4
     Here, because the total resulting sentence with the multiplier
applied exceeded the statutory maximum sentence for Appellant’s
primary offense, the multiplier could not be applied, and the
statutory maximum had to be imposed on the primary offense. See
§ 921.0024(1)(b), Fla. Stat. (2015). Thus, with 739.2 subtotal
sentence points (without the inapplicable multiplier), Appellant
should have been sentenced to a total aggregate sentence of at
least 44.45 years in prison – the lowest permissible sentence
without the 2.0 multiplier – on Counts One through Six, inclusive,
and to 15 years in prison on his primary offense, Count One. 3

     Because the adult-on-minor sex offense multiplier should not
have been applied here, we reverse and remand with instructions
for the trial court to impose the maximum sentence of fifteen years
in prison on Count One, and to impose a total aggregate sentence
of no less than 44.45 years in prison, absent a downward-departure
sentence. See Jackson v. State, 64 So. 3d 90, 93 (Fla. 2011)
(“nothing within the CPC precludes the imposition of a downward
departure sentence on resentencing following remand.”).

     AFFIRMED in part, REVERSED in part, and REMANDED with
further instructions.

WETHERELL and WINSOR, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, Kathleen Stover, Assistant Public
Defender, Tallahassee, for Appellant.


    3 The trial court must impose a separate sentence on each
count. See Gibson v. Fla. Dep’t of Corr., 828 So. 2d 422, 428 (Fla.
1st DCA 2002) (“A general sentence for multiple offenses is
improper.”).

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Ashley Moody, Attorney General, Anne C. Conley, Assistant
Attorney General, Tallahassee, for Appellee.




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