State is Generally not Entitled to Judicial Review of Orders Terminating Probation

John Koeppel

On October 16, the Court issued a ruling in a controversial case involving a notorious former school teacher who was charged with two counts of lewd or lascivious battery under section 800.04(4)(a), Fla. Stat. (2003), for committing sexual battery on a fourteen-year-old middle school boy. The ruling reversed a decision by the Second District Court of Appeal in State v. LaFave, 113 So. 3d 31 (Fla. 2d DCA 2012), which reinstated the teacher’s probation after finding an abuse of discretion by the circuit court. (SC12-2232).

The central issue for review was whether, in the absence of a statutory right to appeal, the State may seek certiorari review of an order terminating probation if it can show that the circuit court departed from the essential requirements of the law by violating the plea agreement between the state and the defendant which called for no early termination. The Florida Supreme Court answered the question in the negative, quashing the decision of the Second District to reinstate her probation pursuant to her negotiated plea agreement.

At the hearing on LaFave’s Motion to Terminate Probation, LaFave argued that section 948.05, Fla. Stat. (2011), grants the trial court inherent jurisdiction to hear the motion and to reward defendants based on their successful completion, or substantial completion, of such strict probationary and community control terms, regardless of what the parties may have agreed to. The State argued that the trial court did not have jurisdiction to hear the motion, in light of the “no early termination” provision. The State further argued that even if the court had jurisdiction, the motion should be dismissed on the merits. The trial court granted LaFave’s motion, and the State petitioned for common law writ of certiorari with the Second District, which was granted.

The Second District acknowledged that the State had no right of appeal in this case, as section 924.07(1), Fla. Stat. (2011), and its procedural counterpart, Fla. R. App. P. 9.140(c), set forth the limited circumstances in which the State has such a right. LaFave, 113 So. 3d at 34. The Second District, however, observed that the trial court’s order “does not fall into the category of ‘final orders of dismissal’ that are not subject to certiorari review.” Id. at 36-37.

The Florida Supreme Court disagreed, and followed long-standing Florida jurisprudence supporting the conclusion that the State may only use a writ of certiorari to review a non-final order, or to review a final order of a circuit court acting in its review capacity. The Court found unpersuasive the Second District’s distinction between a “final” order and the order in this case, which it classified as a “rare, postsentencing order.” LaFave, 113 So. 3d at 37. The Court instead followed the general test of finality laid out in S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974), which is “whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected.”

Although expressly recognizing the perceived inequality that the Second District sought to remedy, the Florida Supreme Court found that the district court lacked jurisdiction to grant the State’s petition, and noted that although the Second District’s order terminating LaFave’s probation may be classified as a “rare, postsentencing order,” it was a final order nonetheless.

Written Findings Required for Upward Departure in Sentencing under the Criminal Punishment Code

John Koeppel

On October 9th, the Florida Supreme Court clarified whether a trial court may impose a sentence on remand that departs from the Criminal Punishment Code where the trial judge failed to comply with the requirements of section 775.082(10), Fla. Stat. mandating the filing of written findings, both at the original sentencing and in response to the defendant’s motion under rule 3.800, Fla. R. Crim. P. Bryant v. State (SC12-1507). This case presents the first time the Court has considered the propriety of upward departure sentences after a court’s failure to provide written rationale since the CPC was enacted.

Bryant, found guilty of petit theft and felony petit theft, argued that section 775.082(10), Fla. Stat. (2009), requires a judge to enter a written order finding that imposition of a non-prison sentence presents a danger to the public, and that failure to comply with the written finding requirement, even after a rule 3.800(b)(2) motion raising the issue, precludes the trial court from imposing an enhanced departure sentence on remand. The State argued that resentencing is an entirely new proceeding where the trial court may depart so long as it complies with the statute.

The Second District held that because the trial court did not file written reasons to support the departure sentence, none were deemed invalid. Bryant v. State, 93 So. 3d 381 (Fla. 2d DCA 2012). The Florida Supreme Court reversed the decision of the Second District, and followed its earlier decision in Pope v. State, 561 So.2d 554 (Fla.1990), which equated the failure to provide written reasons with the failure to provide a valid reason for such a departure.

Thus, the Florida Supreme Court quashed the decision of the Second District Court in Bryant and approved the decision of the Fifth District Court in Goldberg v. State, 76 So. 3d 1072 (Fla. 5th DCA 2011), and held that a trial court may not impose a sentence that departs from the CPC on remand where the trial judge failed to file the appropriate written findings required by section 775.082(10), Fla. Stat. even if evidence in the record might support findings of fact to justify an upward departure.

The Week in Review: Death Penalty Rulings Stand and Jurisdiction was Incorrectly Granted

Kristen Larson

In Davis v. State (SC13-6), the Florida Supreme Court denied the appellant’s arguments that his conviction and sentence of death should be overturned on the basis that: “(1) the trial court failed to remain neutral during the penalty-phase proceedings; (2) the trial court erred in rejecting the statutory mitigating circumstance that Davis committed the murder while under the influence of an extreme mental or emotional disturbance, and the trial court erred in weighing nonstatutory aggravating circumstances; (3) the trial court erred in finding the cold, calculated, and premeditated aggravating circumstance; (4) the trial court erred in finding the avoid arrest aggravating circumstance; (5) the trial court erred in giving the standard jury instruction defining the heinous, atrocious, and cruel aggravating circumstance; (6) the trial court erred in denying relief based on U.S. Supreme Court case Ring v. Arizona, 536 U.S. 584 (2002); and (7) the death penalty is not proportionate in this case.”

In Whitton v. State (SC11-2083 and SC12-2522), the Court denied the appellant’s arguments that his conviction and death sentence should be overturned on the basis that the prosecution was corrupt, that the trial counsel did not properly investigate mitigation for sentencing, that there were juror communication issues (specifically that he was denied the chance to interview the jury and that the bailiff and judge communicated with them outside his presence), and that he had ineffective counsel.

In Huggins v. State (SC11-219), the Court denied the appellant’s arguments that his conviction and death sentence should be overturned on the basis that the postconviction court erred in finding him competent, that he had ineffective assistance of counsel, and that there was prosecutorial misconduct.

In Smith v. Southland Suites of Ormond Beach (SC10-631), the Court dismissed the review proceeding based on a lack of jurisdiction. The appeal had centered on provisions of a power of attorney and on apparent authority. The Court had initially found that jurisdiction did exist because of a direct and express conflict, but on further review concluded that it was granted “improvidently”.

Can Citizens Property Insurance be Liable for Bad Faith?

Regina Keenan

On October 7, the Florida Supreme Court heard oral argument in Citizens Property Ins., Corp., Etc. v. Perdido Sun Condominium Assoc., Inc., Etc. (SC14-185), a civil action against Citizens for bad faith.

The trial court’s dismissal of the lawsuit on immunity grounds was reversed by the First District Court of Appeal, which held Citizens is not immune from a bad faith claim because Citizens’ statutory immunity has an exception for “willful torts.” Perdido Sun Condo. Ass’n v. Citizens Prop. Ins. Corp., 129 So. 3d 1210 (Fla. 1st DCA 2014); see section 627.351(6)(s)1., Fla. Stat. The First DCA certified the case to the Florida Supreme Court for both a direct conflict with Citizens Property Insurance Corp. v. Garfinkel, 25 So.3d 62 (Fla. 5th DCA 2009) and as presenting a question of great public importance.

The first question before the Court is whether the claim of bad faith constitutes a tort. A tort, as defined by the DCA below, is “[a] civil wrong, other than a breach of contract, for which a remedy may be obtained, usu[ally] in the form of damages[, or] a breach of duty that the law imposes on persons who stand in a particular relation to one another.” Perdido Sun Condo. Ass’n v. Citizens Prop. Ins. Corp., 129 So. at 1212. Justice Canady questioned the presence of a tort based on a lack of duty. He pointed out that, unlike the plainly worded good faith duty in s. 624.155(1)(b)1., Fla. Stat., Citizens’ duty of good faith in s. 627.351(6)(s)2., Fla. Stat., has ambiguous qualifying language. Citizens’ duty is limited to “manage its claim employees, independent adjusters, and others who handle claims to ensure they carry out [Citizens’] duty to its policyholders to handle claims carefully, timely, diligently, and in good faith, balanced against the corporation’s duty to the state to manage its assets responsibly to minimize its assessment potential.”

The second question before the Court is whether the claim constitutes a “willful tort.” See section 627.351(6)(s)1., Fla. Stat. The Court seemed to agree that there can be torts that might constitute willful torts, such as fraud, intentional interference with a contract, and intentional infliction of emotional distress. Justice Pariente stated that it made sense to compensate an insured if they do not have a roof over their head for two years due to actions by an insurer, but quickly qualified that this was a policy decision made by the Legislature. Justice Pariente asked if the complaint could be amended to show elements of willfulness and not mere negligence. Perdido stated that it could amend the complaint accordingly.

The final question is the extent of Citizens’ immunity. This is important because it impacts the standard of review. All parties and the Court seemed to agree that this question is subject to “strict scrutiny.” However, if Citizens has “sovereign immunity,” any ambiguity in the law would be resolved in its favor. Both Citizens and the State of Florida as amicus argue that Citizens has absolute sovereign immunity because, “Citizens Property Insurance Corporation, [is] a government entity that is an integral part of the state, and that [Citizens] is not a private insurance company.” s. 627.351(6)(a)1., Fla. Stat. Perdido argues that Citizens only has “statutory immunity” in order to exempt it from tax liability. Perdido Answer Brief.

Justice Pariente and Justice Lewis also alleged that under s. 624.155, Fla. Stat., a third party bad faith claim against an insurer can only be brought if the liability exceeds the policy coverage (absent a showing of punitive damages). However, the alternative of using Citizens’ good faith duty in s. 627.351(6)(s)2., Fla. Stat., may give a plaintiff in a third party willful bad faith case a chance recover damages even if the alleged damages do not exceed the policy coverage. This opens a public policy argument since it places a monetary liability on Citizens that is not borne by other insurers and that Citizens was specifically created to “…reduce or avoid the negative effects otherwise resulting to the public health, safety, and welfare, to the economy of the state, and to the revenues of the state and local governments which are needed to provide for the public welfare.” s. 627.351(6)(a)1., Fla. Stat. In addition to the public policy component of this argument, it may also circle back to Justice Canady’s point that Citizens’ duty of good faith must be “balanced against [Citizens’] duty to the state to manage its assets responsibly to minimize its assessment potential.” s. 627.351(6)(s)2., Fla. Stat.

With this analysis facing the Court, it may remand for Perdido to amend its complaint to allege “willfulness.” The Court may also reverse the 1st DCA because the immunity language is ambiguous under “strict scrutiny,” or the Court may broadly state that sovereign immunity entitles Citizens to have this ambiguity resolved in its favor.

Don’t Drink and Jury

Michael Maida

On October 7, the Florida Supreme Court heard arguments in Plank v. State (SC14-414), on appeal from the First District Court of Appeal, 130 So. 3d 289 (Fla. 1st DCA 2014), which certified conflict with Woods v. State, 987 So. 2d 669 (Fla. 2d DCA 2007), and Al-Hakim v. State, 53 So. 3d 1171 (Fla. 2d DCA 2011).

At circuit court, Plank was charged with direct criminal contempt, pursuant to Rule 3.830, Florida Rules of Criminal Procedure, for being drunk while appearing for jury selection. The trial court record reflects that Plank told Judge Dempsey during voire dire, in part, “I’m not even registered to vote. And I’m also, to tell you the truth, I’m a drunk.” He then slept through part of jury selection , smelled of alcohol, and ultimately failed a breathalyzer test.

Following a hearing held after the conclusion of jury selection, Plank was convicted and sentenced to thirty days in jail. He appealed his case to the First District, arguing the trial court erred by failing to appoint him counsel or give him an opportunity to seek counsel for the contempt proceeding. Plank v. State, 130 So. 3d at 290. In a brief per curiam decision, the First District affirmed prior decisions, holding the absence of counsel for Plank’s hearing violated neither the Sixth Amendment nor the Florida Rules of Criminal Procedure. Id.

The issue boils down to whether or not the trial court erred by not appointing counsel or providing petitioner with the opportunity to retain counsel. Put another way, this case invites the Florida Supreme Court to decide whether the failure of a court to assign counsel or provide the opportunity to retain counsel during a direct criminal contempt of court proceeding violates the Sixth Amendment of the United States Constitution or Florida Rules of Criminal Procedure.

Power Struggle: Does a School Have an Affirmative Duty to Use an AED When Necessary?

Kristen Larson

This week the Florida Supreme Court heard oral argument in Limones v. School District of Lee County. (SC13-932) The central issue in this case is whether a school district’s failure to use an AED (automated external defibrillator) was a breach of the School Board’s “common law duty to use appropriate post-injury efforts to protect [a student's] injury against aggravation.” Limones v. Sch. Dist. Of Lee Cnty, 111 So. 3d 901 (2d DCA 2013).

Abel Limones, Jr. collapsed during a high school soccer game. The soccer coach as well as a bystander performed CPR on him to no avail. Although an AED was located nearby, it was not used. Emergency personnel resuscitated him by using a semi-automated external defibrillator. An expert witness testified that Limones suffered severe and permanent brain damage and that this would not have occurred had an AED been used within one to two minutes of his collapse. Abel Limones, Sr. and Sanjuana Castillo, Abel Limone’s, Jr.’s parents, sued the School Board for negligence. The trial court granted summary judgment to the school district, holding that it did not have an affirmative duty to act to help Limones.

The Second District Court of Appeals upheld the Circuit Court’s summary judgment ruling, finding that although the School Board had a duty to protect Abel’s injury from aggravation, the court must define the scope and extent of the duty once a duty to use post-injury efforts has been established and that the School Board’s common law duty does not require them to maintain, or make available for use, an AED. The petitioners argued that this violates Florida law because once a duty has been ascertained (as the School Board’s duty to protect injury from aggravation has been) then a jury should decide the question of what constitutes a breach of that duty. Additionally, the petitioners argued that because statute requires schools to keep an AED and train employees to use it, the school had a statutory duty to actually use the defibrillator when necessary. See section 1006.165, Fla. Stat. The respondents argued that the appeals court correctly upheld the ruling because the determination of duty depends on the facts of the case and because there is no statutory duty regarding actually using AEDs. Respondents also argued that the ruling does not expressly and directly conflict precedent and that the Florida Supreme Court therefore does not have jurisdiction.

Video of the oral arguments is available here.

Court May Clarify What Constitutes an Antique Firearm

John Koeppel

The State of Florida recently petitioned the Florida Supreme Court to clarify what constitutes an antique firearm for purposes of section 790.23, Fla. Stat. (2012), which prohibits possession of a firearm by a felon. Weeks v. State (SC14-1856). Under chapter 790, Fla. Stat., a firearm is defined to exclude an “antique firearm,” which is in turn defined as “any firearm manufactured in or before 1918… or any replica thereof, whether actually manufactured before or after the year 1918…” Section 790.001(1), Fla. Stat. (2012).

In Weeks, the defendant was arrested for possession of a firearm by a convicted felon, a violation of section 790.23, Fla. Stat. The firearm in question was a black powder muzzleloader rifle with a percussion cap firing system. There was no dispute that the rifle had an “ancient vintage” firing system; rather, the dispute centered on whether the scope, an accessory considered nonexistent prior to 1918, rendered the firearm a “replica” for purposes of section 790.23, Fla. Stat. On appeal in the First District Court of Appeal, Weeks argued that given the multiple meanings which may be assigned to the term “replica,” a person of ordinary intelligence is not given fair notice of what conduct is forbidden by the statute. The State argued that anyone could plainly see that, due to the scope, Weeks’ firearm was not an exact copy of a weapon manufactured in or before 1918. 2014 WL 4197379.

In finding the statute unconstitutional for vagueness with respect to what constitutes a replica, the First District reversed Weeks’ conviction. The Court reasoned that given chapter 790’s definition of “antique firearm,” the firing mechanism is what determines whether a firearm is an antique or a replica thereof, regardless of the date of manufacture. The Court noted that “replica” is not defined in section 790.23, Fla. Stat., and that enforcement of the statute with respect to Weeks would result in arbitrary and discriminatory punishment.

Conversely, the Fifth District Court in Bostic v. State, finding it “clear that merely having an ignition system similar to that found on an antique firearm is not sufficient to render a firearm a ‘replica’ of a firearm manufactured in or before 1918,” could not conclude that the statute fails to give fair notice of the prohibited conduct. (Fla 5th DCA 2005) 902 So.2d 225, 228-29. The Fifth District reasoned that the defendant’s firearm, which had a fiber optic sight, was visibly different than an antique firearm. The Court held the term “replica” should be defined as “a reasonably exact reproduction of the object involved that, when viewed, causes the person to see substantially the same object as the original.” 902 So. 2d at 228.

The State filed its jurisdictional brief in Weeks on September 29, 2014, citing the certified conflict with Bostic.

Court May Consider Challenge to Sinkhole Neutral Evaluation

Jacek Stramski

A second challenge to the mandatory litigation stay provision in the state’s sinkhole neutral evaluation program was recently filed at the Florida Supreme Court. Bellas v. Citizens Property Ins. Corp. (SC14-1889). The Supreme Court has yet to rule on whether it will accept jurisdiction in this case, or its earlier filed companion, Hanos v. Citizens Property Ins. Corp. (SC14-1360).

Neutral evaluation, an alternative dispute mechanism under s. 627.7074, Fla. Stat., is mandatory if requested by either party (insured or insurer) to a sinkhole dispute. Following amendment to the statute in 2011, any court proceeding related to the subject matter of neutral evaluation “shall be stayed pending completion of the neutral evaluation” regardless of when the stay is noticed. Section 627.7074(10), Fla. Stat.

The facts in Bellas and Hanos are similar. Following a dispute between policyholders and the insurer as to the appropriate remediation for sinkhole damage, suit was filed against the insurer. Shortly before the scheduled trials, Citizens requested neutral evaluation. The trial courts held that the right to neutral evaluation was waived by Citizens because of the substantial pre-trial litigation it had engaged in. On petitions for a writ of certiorari and mandamus, the Second District Court of Appeal ruled that the language of the statute was clear and that a waiver of the statutory right to neutral evaluation could not be found merely because it was requested late into litigation, as set forth in its prior decision in Citizens Property Ins. Corp. v. Trapeo, 136 So.3d 670 (Fla. 2d DCA 2014).

Bellas and Hanos argue that interpreting the neutral evaluation statute as the Second District results in an unconstitutional violation of the separation of powers by allowing legislation (in this case the mandatory stay) to impermissibly impinge on court procedure, and therefore creates conflict jurisdiction with previous Court decisions to permit review of the decision below. Additionally, Bellas and Hanos take issue with the Second DCA’s statement in Trapeo that only the Department of Financial Services, and not the courts, have authority to determine whether the right to neutral evaluation has been waived. They argue that such an interpretation of s. 627.7074, Fla. Stat., would constitute an unlawful delegation of judicial authority to the department, an agency of the executive branch.

It remains to be seen whether the Supreme Court will agree to consider these cases.

Petition for Authority to Increase Membership Fee Cap by $100 Per Year for Legal Services to the Poor

Regina Keenan

Currently, Rule 1-7.3, Rules Regulating The Florida Bar, sets Florida Bar membership fees at $265 per year. On June 16, 2014, a Petition was filed with the Florida Supreme Court, Case SC14-1165, to amend Rule 1-7.3 to provide authority to The Florida Bar to increase the membership fee cap by $100 per year earmarked specifically for The Florida Bar Foundation, an entirely separate 501(c)(3) non-profit public charity. This Petition was filed by former Florida Supreme Court Justice, Raoul G. Cantero, on behalf of 522 Florida Bar members.

The Petition is based on the assertion that civil legal aid to the poor has dropped to unsustainable levels due, in part, to decreased revenue to The Florida Bar Foundation from interest on attorney trust accounts. The Petition cites a Florida Supreme Court opinion that stated that Florida attorneys are ethically bound to provide legal services to the poor. Amendments to Rule 4-6.1 of the Rules Regulating The Fla. Bar-Pro Bono Pub. Serv., 696 So. 2d 734, 735 (Fla. 1997). However, Rule 4-6.1, Rules Regulating the Florida Bar, which creates specific guidelines for that professional responsibility, is aspirational rather than mandatory.

On August 13, 2014, The Florida Bar filed Comments in opposition to the Petition. It objects to requiring attorneys to pay for a societal issue without addressing the global and state issue of how to provide and improve legal services to the poor. The Florida Bar is also not comfortable with mandating its members to make a non-voluntary contribution to a specific legal aid organization.

The Florida Bar further opposes the amendment because it does not recognize the members’ voluntary donation of time and services, does not provide a judicial or government attorney exemption, creates the need for a new petition should The Florida Bar need to increase funds for operating expenses, and places a new administrative cost to The Florida Bar’s current operational budget.

On August 25, 2014, Petitioners filed a Response stating that while Florida Bar members neither can solve a global crisis nor improve Florida’s delivery of legal services to the poor, they must take the lead. Voluntary time and monetary donations were recognized but are not sufficient. The Response states that it will not “break the banks of Florida attorneys” for a potential annual increase that is “roughly the price of a lunch” per month. Response at 8.

The Response states that annual dues are a non-voluntary contribution to The Florida Bar, which has, or should have, a priority of providing access to justice. However, the issue associated with a non-voluntary contribution to The Florida Bar Foundation is not addressed. The Petitioners state that the $100 increase can be structured by The Florida Bar to accommodate exemptions or even opt-outs. The Response also points out that a separate rule change to increase operating fees would be needed for any change in membership fees regardless of this Petition and that The Florida Bar processes voluntary contributions within its current operations.

On September 26, 2014, the Florida Supreme Court issued an Order scheduling this Petition for oral argument at 9:00 a.m. on December 2, 2014.

Court Addresses Availability of Provisional Credits to Inmates Sentenced as Habitual Offenders

John Koeppel

In Leftwich v. Department of Corrections (SC12-2669), the Florida Supreme Court held that section 944.277, Florida Statutes (1992), renders an inmate ineligible to receive provisional credits on any sentence after the inmate has received a habitual offender sentence, even where the habitual offender sentence is imposed subsequent to a sentence that is otherwise eligible for provisional credits.

In 1989, Leftwich committed a robbery and an aggravated battery with a weapon and was sentenced to twelve years of consecutive sentences, neither of which was imposed under the habitual offender statute. However, while incarcerated, Leftwich was convicted for possession of cannabis and was sentenced under the habitual offender statute in 1990. The Florida Department of Corrections determined that due to the habitual offender sentence, Leftwich was not eligible to receive further awards of provisional credits on the robbery or aggravated battery convictions.

Leftwich appealed to the First District, which held that after he was determined to be a habitual offender, he was not eligible to receive provisional credits on any sentence, even those imposed prior to the habitual offender sentence. Leftwich v. Dep’t of Corrections, 101 So.3d 404 (Fla. 1st DCA 2012). However, the district court certified conflict with Downs v. Crosby, where the Second District held that under the version of the provisional credit statute in effect from 1988 through 1992, inmates who were eligible to receive provisional credits on a prior sentence who were later sentenced as a habitual offender could continue to receive provisional credits on their earlier sentence. 874 So. 2d 648 at 650, 652, (Fla. 2d DCA 2004). The statute was amended in 1992 to exclude from eligibility any inmate who “is sentenced, or has previously been sentenced, or has been sentenced at any time in another jurisdiction…” Section 775.084, Fla. Stat.

Leftwich contended that he was entitled to receive provisional credits on the sentences imposed prior to the date he received the habitual offender status, and that the denial of provisional credits on these sentences based on the 1992 amendment violated the ex post facto clause, as held by the First District in Dugger v. Anderson, 593 So. 2d 1134 (Fla, 1st DCA 1992).

The Florida Supreme Court disagreed, finding that because the 1992 amendment was enacted in reaction to the interpretation expressed in Anderson, it was probative of the prior and continuing legislative intent with regard to the eligibility of inmates for provisional credits. Thus, “not only was Anderson a misreading of the plain language of the statute, the 1992 amendment demonstrates that it did not properly reflect legislative intent,” which was to reduce overcrowding in the state prison system. Further, the Court did not consider its ruling to constitute an unforeseeable enlargement of the statute, since “although subsequent legislation cannot be used to overturn prior court decisions with respect to a statute, the legislation can be used to clarify the intent behind the prior version of the statute.” Accordingly, the Court approved of the First District’s decision in Leftwich and disapproved Downs, and held that interpreting the 1992 amendment to make Leftwich ineligible for provisional credits would not violate the prohibition on ex post facto laws.

Justices Quince and Pariente dissented, finding that the language “[i]s sentenced, or has previously been sentenced” for inmates sentenced under the Florida habitual offender statute, compared to “or has been sentenced at any time in another jurisdiction” can be reasonably interpreted to create a narrow category of habitual offenders sentenced in Florida who may still earn provisional credits. Furthermore, because the language in the 1988 statute was “susceptible of differing constructions,” the dissent felt that the rule of lenity required the Court to construe the statute in favor of Leftwich.