author: LEWIS, J. CANADY, C.J., PARIENTE, J.,

text:
    Gerald PETION, Petitioner, v. STATE of Florida, Respondent.
    No. SC09-664.
    Supreme Court of Florida.
    Oct. 21, 2010.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Celia A. Terenzio, Bureau Chief, and Heidi L. Bettendorf, Assistant Attorneys General, West Palm Beach, FL, for Respondent.
   LEWIS, J.

Gerald Petion seeks review of the decision of the Fourth District Court of Appeal in Petion v. State, 4 So.3d 83 (Fla. 4th DCA 2009), asserting that it expressly and directly conflicts with the decision of the Third District Court of Appeal in J.D. v. State, 553 So.2d 1317 (Fla. 3d DCA 1989), with regard to the correct standard of review for an error in the admission of evidence during a non-jury trial. We exercise our jurisdiction to resolve this conflict, see art. V, § 3(b)(3), Fla. Const., and hold that during a non-jury trial, a judge is presumed to have disregarded inadmissible evidence, but that a trial court’s express and specific finding of admissibility on the record can rebut that presumption. Accordingly, we quash the decision below and remand for further proceedings consistent with this opinion. In addition, we disapprove the decisions discussed in this opinion to the extent that they hold a presumption of disregard applies when a trial court during a bench trial admits evidence over objection and does not expressly state on the record that this evidence did not contribute to the final judgment or determination. Lastly, we disapprove J.D. to the extent it holds that there is no presumption that a trial court disregards exposure to inadmissible or improper evidence during a bench trial.

FACTS AND PROCEDURAL HISTORY

The facts from the decision below establish that following a non-jury trial, Gerald Petion was convicted of possession of cocaine with intent to sell, possession of cannabis -with intent to sell, and unlawful use of a false name. During a suppression hearing, a law enforcement officer testified that he had obtained information from a local resident that a driver of a white Toyota Camry had asked the resident whether he was “straight or looking to party,” and handed the resident a piece of paper which contained a phone number and was inscribed with the initials “GP.” During the bench trial, two law enforcement officers testified that a few days after the tip, they conducted a traffic stop of a white Toyota Camry matching the description provided by the resident. The vehicle was driven by Gerald Petion and carried several passengers.

The officers requested identification from Petion, and Petion produced a driver’s license that was not his own. Petion was arrested for providing false identification to a law enforcement officer, and he was searched. During the search of Petion, the officers discovered crack cocaine and twenty-six bags of powder cocaine. A search of the vehicle revealed twelve bags of marijuana, a number of clear plastic bags, and slips of paper inscribed with the initials “GP” and a phone number.

In addressing these facts, one of the officers was allowed to testify over defense objection that it was common for street-level narcotics dealers to distribute drug-related contact references on slips of paper similar to those recovered from the vehicle. The testimony disclosed:

[STATE]: Okay. Did you at any point later see pieces of the paper with the initials “GP” on it?
[OFFICER]: Yes, ma’am.
[STATE]: Where did you see those pieces of paper?
[OFFICER]: I believe there was a cup in the center console of the vehicle that had quite a few of those pieces of paper in the vehicle.
[STATE]: What did the pieces of paper say on them?
[OFFICER]: They all said the same thing. They said the initials “GP” with a telephone number.
[STATE]: Okay. Have you ever seen— based on your training and experience, have you ever seen anything like this before?
[DEFENSE]: Objection. Now we’re being really speculative. Pieces of paper with initials and a telephone number, and now he’s going to speculate what they are used for?
THE COURT: Based on his training and experience? Overruled.
[OFFICER]: It’s common for street level narcotics dealers to hand out contact reference for potential buyers to contact them, and that’s consistent with that.

The trial court found Petion guilty of the lesser included offense of possession of cocaine with intent to sell, possession of cannabis with intent to sell, and unlawful use of a false name. Petion was sentenced to concurrent terms of forty-six months imprisonment on the first two convictions and to time served on-the last. On appeal to the Fourth District, Petion contended that the trial court abused its discretion by permitting a police officer to testify that it was common for drug dealers to provide contact information to potential buyers. See Petion, 4 So.3d at 85. Petion asserted that testimony from a police officer concerning generalized common practices among drug dealers is inadmissible as substantive proof of a particular defendant’s guilt. See id. at 87. The district court agreed that the testimony was inadmissible, but reasoned that any error by the trial court in admitting the testimony was harmless because the trial court was presumed to have disregarded any inadmissible evidence. The district court stated:

We find, however, that any error in admitting this testimony was harmless in this case, which was tried without a jury. When a trial judge, sitting as the trier of fact, erroneously admits evidence, the judge is 'presumed to have disregarded that evidence. See C.W. v. State, 793 So.2d 74 (Fla. 4th DCA 2001). Although this presumption is rebuttable, nothing in the record suggests that the trial judge relied upon this inadmissible evidence.

Id. (emphasis supplied). Accordingly, the Fourth District affirmed Petion’s conviction for possession of cocaine with intent to sell.

Thereafter, Petion sought discretionary review in this Court based on conflict with J.D. v. State, 558 So.2d 1317 (Fla. 3d DCA 1989). In J.D., two officers arrested the appellant, whom they believed to be the driver of a vehicle which they had been pursuing. See id. at 1318. During the bench trial, an officer testified that after J.D. was arrested and read his Miranda rights, he refused to respond to questions. See id. J.D. objected and moved for a mistrial, asserting that the officer’s statement was an impermissible comment on J.D.’s post-arrest silence. See id. The trial court denied the motion for mistrial but did not provide an express ruling on the objection. See id. The trial court adjudicated J.D. delinquent, and J.D. appealed the adjudication to the Third District. See id.

The Third District held that the trial court’s failure to respond to the objection implicitly overruled the objection and, therefore, the trial judge had considered the offending comment in reaching the judgment. See id. The district court applied a harmless error analysis but expressly declined to apply the presumption utilized in Petion. The court reasoned:

We understand the State’s position to be that, inasmuch as the trial which we review here was a non-jury trial, the trial judge certainly knew to disregard the comment and, accordingly, we can rest assured that he has done so. The standard which the State urges would, then, be nothing more than one which requires this court’s subjective interpretation of what the trial judge did or did not consider, inasmuch as the record presented for review is silent on this point. We respectfully decline the State’s invitation, and prefer, as indicated above, instead to hold to an objective interpretation of the evidence presented in the record on review. When the record is examined in this light, two facts are clear: first, the quoted comment was, in fact, made; and, second, this court cannot find beyond a reasonable doubt from the record, as [State v.] DiGuilio[, 491 So.2d 1129 (Fla.1986),] requires, that the error complained of did not contribute to the adjudication of delinquency.

Id. at 1319. The Third District reversed the adjudication and remanded for a new trial. See id.

Based on the conflicting standards of review expressed in these decisions, this Court accepted review to resolve the conflict between Petion and J.D.

ANALYSIS

The initial presumption that a trial court has disregarded inadmissible evidence during a non-jury trial is well established in Florida. In a non-jury trial, the factual findings of the judge are entitled to the weight of a jury verdict. See, e.g., Spataro v. State, 179 So.2d 873, 876 (Fla. 2d DCA 1965). However, unlike a jury, it is generally understood that a trial judge acting as both the trier of fact and arbiter of the law “is trained by learning and experience to segregate evidence” that is inadmissible and improperly prejudicial from evidence that is admissible, reliable, and relevant to the issue. M.A. v. State, 384 So.2d 740, 742 (Fla. 2d DCA 1980) (quoting United States ex rel. Placek v. Illinois, 546 F.2d 1298, 1304 (7th Cir.1976)). From that principle, the appellate courts of Florida have derived the rebutta-ble presumption that in non-jury cases, trial judges base their decisions upon admissible evidence and have disregarded inadmissible evidence. See id. (citing United States v. Masri, 547 F.2d 932 (5th Cir.1977) (applying Florida law); see also Jalbert v. State, 95 So.2d 589 (Fla.1957)). Accordingly, if a trial judge receives evidence as the finder of fact and hears inadmissible evidence, such as through a suppression hearing, a proffer, a motion in limine, or prior to sustaining an objection to the evidence, the judge is generally presumed to have disregarded the improper evidence. Therefore, any error in the trial judge’s exposure to this improper evidence is deemed harmless. In addition, a trial court may initially rule that evidence is admissible but later conclude that such evidence should not be considered. The presumption is therefore necessary given the dual nature of a trial court judge simultaneously functioning as an arbiter of the law and trier of fact, which causes the trial court at times to consider evidence that would be inadmissible before a jury. See United States v. Greathouse, 484 F.2d 805, 807 (7th Cir.1973). However, this presumption can be rebutted through a trial court’s express and specific finding of admissibility on the record or a statement on the record which discloses that the trial judge has actually relied upon the erroneous evidence to support the verdict or result. See Parks v. Zitnik, 453 So.2d 434, 437 (Fla. 2d DCA 1984).

To understand the application of this presumption, it is instructive to trace the evolution of the standard of review with regard to claims of evidentiary errors during a bench trial. This standard is derived from the deference given to the ability of a trial judge to segregate inadmissible evidence. In Harris v. Rivera, 454 U.S. 339, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981), the United States Supreme Court recognized that the presumption of judicial regularity is fundamental to bench trials. “In bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions.” Id. at 346, 102 S.Ct. 460 (emphasis supplied) (holding that apparent inconsistency in a trial judge’s verdict did not give rise to an inference of irregularity in his finding of guilt that was sufficiently strong to overcome the well-established presumption that the judge adhered to basic rules of procedure); see also Sinclair v. United States, 279 U.S. 749, 767, 49 S.Ct. 471, 73 L.Ed. 938 (1929) (“[Wjhere the court decides the fact and the law without the intervention of a jury, the admission of illegal testimony, even if material, is not of itself a ground for reversing the judgment.... If evidence appears to have been improperly admitted, the appellate court will reject it, and proceed to decide the case as if it was not in the record.” (quoting United States v. King, 48 U.S. 833, 854, 7 How. 833, 12 L.Ed. 934 (1849))). However, as this is principally a state law issue, it is necessary to analyze decisions from Florida courts.

Beginning with the precedent of this Court, the decision in Prince v. Aucilla River Naval Stores Co., 103 Fla. 605, 137 So. 886 (1931), established the deference an appellate court should afford a trial judge’s ability to segregate inadmissible evidence from consideration in the case. This Court stated:

Errors as to the admission and rejection of evidence have not been shown to have injuriously affected the rights of the complaining party, especially since the case was not tried before a jury, where irrelevant or immaterial testimony may sometimes be highly prejudicial to a fair consideration of the facts by untrained minds of jurors who might thereby be misled into rendering a verdict on testimony which should have little or no consideration as of evidentiary value.

Id. at 886 (emphasis supplied). The Prince decision recognized that trial court judges are deemed to have the training to disregard and not be improperly prejudiced by inadmissible evidence.

More than twenty years later, this Court again considered alleged errors in the admission of certain evidence and held that “in cases tried by the Judge without a jury the Judge is in a position to evaluate the testimony and discard that which is improper or which has little or no evidentiary value.” First Atlantic Nat’l Bank of Daytona Beach v. Cobbett, 82 So.2d 870, 871 (Fla.1955); see also Adan v. State, 453 So.2d 1195, 1197 n. 1 (Fla. 3d DCA 1984) (citing this principle to review whether a trial court erred in not granting a mistrial after a state witness testified that the defendant was in custody for an unrelated charge of burglary when he was questioned by an officer concerning a murder). This Court examined the record in First Atlantic and concluded that the trial judge properly evaluated the testimony and that the objectionable evidence did not “injuriously or harmfully affect[ ] appellant when considered and evaluated by an experienced trial Judge.” 82 So.2d at 872; see also Perez v. State, 452 So.2d 107, 107 (Fla. 3d DCA 1984) (applying First Atlantic to determine that technical error in admitting hearsay testimony was harmless).

Subsequently, in Jalbert v. State, 95 So.2d 589 (Fla.1957), this Court reviewed a trial court’s admission of an accomplice’s uncorroborated testimony and restated the principles established in Prince and First Atlantic as a rebuttable presumption: “This Court will ‘presume the trial judge properly considered the accomplice’s testimony with due caution, since the trial judge is presumed to have committed no error and that presumption has not been overcome by the defendant.” Id. at 591 (emphasis supplied). Thus, by 1957, the presumption utilized in Petion was expressly recognized and applied by this Court.

Two decades later, in Alford v. State, 355 So.2d 108 (Fla.1977), this Court identified and gave deference to a trial court’s ability to filter the evidence considered for a decision.

In considering the imposition of the sentence, the trial judge’s discretion is guided and channeled by statute and case law. He may be “aware” of other factors, but he does not “consider” these factors in the exercise of his discretion. For example, the judge may be “aware” of inadmissible evidence after a proffer has been made, but this evidence is never “considered” by the judge.

Id. at 109. More recently, in Guzman v. State, 868 So.2d 498 (Fla.2003), this Court relied on First Atlantic and the Third District’s decision in State v. Arroyo, 422 So.2d 50 (Fla. 3d DCA 1982), to hold that a claim of prosecutorial misconduct failed where the trial court excluded certain inadmissible evidence. The Court articulated the rule that in a non-jury trial, “the judge as finder of fact is presumed to have disregarded any inadmissible evidence or improper argument” and “[e]ven where a judge erroneously admits improper evidence, the judge as factfinder is presumed to disregard it.” Guzman, 868 So.2d at 510-11. The Guzman Court applied the presumption and held as follows:

Here, the judge did not err, but appropriately excluded inadmissible evidence. Given these evidentiary rulings, the judge a fortiori may be presumed to have disregarded the inadmissible evidence. Therefore, assuming arguendo that the prosecutor’s attempts to introduce the evidence were improper, the attempts were harmless.

Id. at 511 (emphasis supplied). Guzman is distinguishable from Petion in that the trial court excluded, rather than expressly admitted, inadmissible and improper evidence. It is logical to presume that the trial court’s exposure to evidence that the court recognized as inadmissible would not be considered by the court in rendering its determination. In contrast, under the circumstances in Petion, it is'illogical to presume the court disregarded evidence when the court has expressly ruled it admissible and properly before the court for consideration.

A review of district court decisions also demonstrates application of the presumption. A decade after Jalbert expressly recognized the presumption, the Third District echoed the principle stated in First Atlantic without referring to any decisions of this Court on the issue. In Adjmi v. State, 208 So.2d 859 (Fla. 3d DCA 1968), the district court held that the trial court did not commit error in failing to grant the defendant’s motion for a direct verdict because

[i]n a trial before a court, without a jury, as here, the law is well-settled; the credibility of witnesses and the weight of their testimony are questions for the determination of the judge, whose function it is to draw all reasonable deductions from the evidence. In such cases, the judge is in a position to evaluate the testimony and discard that which is improper or which has little or no evi-dentiary value.

Id. at 860 (emphasis supplied).

Several other decisions have emphasized that the standard of review is necessarily different when reviewing a judgment entered in a non-jury trial. In Brown v. State, 223 So.2d 337 (Fla. 3d DCA 1969), the Third District again expressed the principle espoused in Prince that the trial court is deemed to have the training and discipline to not be prejudiced by inadmissible evidence. Analyzing the impact of the United States Supreme Court decision in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Third District declined to reverse the trial court because the Bruton issue occurred during a bench trial. The district court based its holding on the divergent factors between a bench trial and a jury trial.

Fear has often been acknowledged that a lay jury is susceptible and amenable to ignoring established constitutional principles involving admissibility of confessions and exculpatory remarks. And it is a well established principle that a trial judge, sitting alone, and therefore in the capacity as trier of fact, will be less likely to be prejudicially influenced by this type of evidence than would be the untrained minds of the jurors. Finally, we take judicial notice of the fact that any confession or exculpatory statements, tendered by the state for admission into evidence, must be first reviewed, and then evaluated for admissibility by the trial judge. This necessarily involves the judge’s viewing every tendered piece of evidence before making an initial decision as to its constitutionality. When such evidence is rejected by a trial judge, he is deemed to have the training, experience, and discipline of faculties so as to avoid being influenced by any prejudicial effects therefrom.... To reverse this trial on the basis that the trial judge, in his capacity as trier of fact, was so prejudicially influenced by his encounter with the incriminating portions of the [co-defendants’] confessions] ..., would be to cast aspersions on the entire foundation of the judge’s role in any court proceeding.

Brown, 223 So.2d at 339 (emphasis supplied) (citations omitted); see also Leeb v. Read, 190 So.2d 830, 832-33 (Fla. 3d DCA 1966) (applying the Prince principle to hold that evidentiary errors made during a bench trial did not affect the substantial rights of the complaining party). Brown stands in opposition to the position of Petion that a uniform standard of review should be applied to preserved errors. As the Third District noted, it is necessary for a trial court judge, sitting as both the trier of fact and arbiter of law, to consider the evidence before ruling on its admissibility. Hence, the presumption defers to the trial court’s trained discretion to disregard prejudicial or improper evidence.

Thereafter, in Belcher Towing Co. v. Board of County Commissioners of Dade County, 233 So.2d 456 (Fla. 3d DCA 1970), the Third District reiterated the distinction between a jury trial and a bench trial:

We hold that under the circumstances of this case, where the cause was tried before the court without a jury and the court’s finding of fact and decision were in no way based upon the opinion in the prior case, that prejudicial error has not been shown. A more informal trial is permissible before a court than before a jury. The admission of the opinion which the court expressly ruled had no effect as res judicata or estoppel by judgment was not prejudicial error.

Id. at 457 (emphasis supplied) (citations omitted).

In the months following this Court’s decision in Alford, the Fourth District also acknowledged that the reviewing standard should be different for a judgment arising from a jury trial versus a non-jury trial. See In re M.E.G., 353 So.2d 594, 595 (Fla. 4th DCA 1977). In M.E.G., the Fourth District explained that

[a] judge is in a position to weigh testimony, assess credibility and resolve conflicts, just like a jury, when he sits as a trier of the facts.... He also decides what testimony is' to be excluded as being violative of some evidentiary rule. He sits in the unique position of admitting and excluding testimony and then weighing what he admits and disregarding what he excluded. In the recent case of Alford v. State, 355 So.2d 108 (Fla.1977), ... it was recognized that a trial judge may be made aware of facts bearing on sentencing issues but that he was capable of disregarding the known facts in reaching his decision. Therefore, extending Alford to this case, we feel the trial judge is able to disregard the improper testimony in making his decision, thereby rendering the “error” harmless.

353 So.2d at 595.

In these decisions, the district courts did not expressly state that they were a applying a “presumption,” despite the holding in Jalbert. However, it is clear that the courts were relying on the fundamental principles underlying the presumption (i.e., deference to the trial court’s training and discipline to segregate inadmissible evidence). A few years after the decision in M.E.G., the Second District Court of Appeal in M.A. v. State, 384 So.2d 740, 742 (Fla. 2d DCA 1980), expressly stated that “the courts of Florida presume that, in nonjury cases, trial judges base their verdicts on admissible evidence and disregard inadmissible evidence.”

This presumption is rebutted where the record demonstrates that the trial court relied upon or expressly admitted the erroneous evidence over objection. Specifically, the Third District in State v. Arroyo, 422 So.2d 50 (Fla. 3d DCA 1982), summarized the precedent concerning this issue, as follows:

Ordinarily, where a trial judge, sitting, as here, as the fact-finder, erroneously admits evidence, he is presumed to have disregarded the improperly admitted evidence, and the error of its admission is deemed harmless. Wythers v. State, 348 So.2d 390 (Fla. 3d DCA 1977); Capitoli v. State, 175 So.2d 210 (Fla. 2d DCA 1965). Where, however, the record discloses that the trial judge relied upon the erroneous evidence, this presumption is overcome.

Arroyo, 422 So.2d at 51 (emphasis supplied) (federal citations omitted). After articulating this standard of review, the Third District determined that the presumption was rebutted because it was “abundantly clear” that the inadmissible evidence “played a significant part in the trial judge’s ruling” on the motion to suppress. Id. Considering the trial court’s comments during the suppression hearing and the express statements in the written order granting the motion to suppress, the district court concluded that these comments indicated that while the results of the inadmissible experiment may not have been the “sine qua non of his decision,” the trial court’s “reliance on the experiment to impeach the officers’ testimony [was] inseparable from his various conclusions” in support of granting the motion to suppress. Id. at 52; see also C.W. v. State, 793 So.2d 74, 74-75 (Fla. 4th DCA 2001) (applying standard from Arroyo to hold that trial court was presumed to disregard hearsay statements in a probable cause affidavit where the record did not establish that the judge relied on the affidavit in any way and the trial judge stated that his decision would be based solely on the evidence presented). Thus, Arroyo is an example of how the presumption can be rebutted in that the district court examined the record to determine that the trial court relied on the improperly admitted evidence. See also S.N. v. State, 563 So.2d 202 (Fla. 3d DCA 1990) (granting a new adjudicatory hearing because the record revealed that the trial court expressly relied upon the juvenile’s post-arrest silence in disregarding the juvenile’s evidence and in determining that the juvenile was a delinquent).

However, we note that Arroyo frames the presumption in overly broad terms. The appellate court should not presume that the trial court disregarded all improperly admitted evidence where the record reflects that the evidence was admitted over objection. Hence, another method of rebutting the presumption is through a trial court’s express admission of the evidence over objection. In making the determination that the evidence is admissible, we would expect a trial court judge to believe that the evidence was properly before the trier of fact for consideration. It would be nonsensical to hold otherwise and insulting to the training and experience of the trial judge to presume that the evidence was disregarded when the court made a conscientious ruling that the evidence was admissible. In that circumstance, the trial court must make an express statement on the record that the erroneously admitted evidence did not contribute to the final determination. Otherwise, the appellate court cannot presume that the trial court disregarded evidence which was specifically admitted as proper.

The Second District correctly expressed the proper application of the presumption under circumstances where a trial court admits evidence over objection. In Parks v. Zitnik, 453 So.2d 434 (Fla. 2d DCA 1984), the district court stated that the trial court erred in allowing questioning with regard to the specifics of the appellant’s criminal history.

The appellee contends that any error committed by the trial court was harmless because the case was tried by the court rather than by a jury. Since the parties did not request a jury trial, the trial judge had to determine the credibility of the parties. Jalbert v. State, 95 So.2d 589 (Fla.1957). Due to the nature of this case, the credibility of the parties was crucial and therefore we cannot hold the error was harmless. Had the trial judge stated that he based his findings only upon certain evidence and that he disregarded the challenged evidence, the error, if any, in the admission of such evidence could have been determined harmless. Capitoli v. State, 175 So.2d 210 (Fla. 2d DCA 1965).
Where the proof of guilt is so convincing that a person would clearly have been found guilty even without collateral evidence introduced in violation of the evidence code, the violation of the code may be considered harmless. In the case sub judice, however, because of the importance of the credibility of the witnesses under the particular facts of this case, we cannot say the evidence in favor of the appellee was so clear and convincing that introduction of the challenged evidence was harmless. A trial judge is presumed to rest his judgment cm admissible evidence and to disregard inadmissible evidence, United States v. Masri, 547 F.2d 932 (5th Cir.1977), but in view of the specific findings of admissibility in this case, we cannot hold the trial court disregarded inadmissible evidence.

Parks, 453 So.2d at 437 (emphasis supplied). This decision demonstrates an example of the type of statement in the record that would rebut the presumption, in that the district court utilized the trial court’s specific finding of admissibility as a basis to rebut the presumption. This is analogous to the situation in Petion, where the trial court overruled the objection to the officer’s testimony. Here, the record establishes that the trial court determined the officer’s testimony with regard to the common practices of street-level narcotics dealers was admissible based on the officer’s “training and experience.” Thus, the record in Petion reflects that the trial court considered the evidence to be properly admitted. Therefore, the district court erroneously concluded that the presumption was not overcome.

It is logical and practical that the presumption must be overcome where a trial court judge admits evidence over objection, because the judge would understandably believe that the evidence is properly before the court for consideration. For instance, in Liebeman v. Department of Professional Regulation, 573 So.2d 849 (Fla. 5th DCA 1990), the district court disregarded the hearing officer’s express statement that she would not rely on the testimony concerning proffered lie detector results.

[Wjhile ultimately the hearing officer indicated she would not rely on the polygraph testimony, she first invited its introduction and then refused to strike it. These mixed signals on a cold record before us, together with what we perceive to be an innate inability of the human mind to obliterate what it has heard and the fact that the findings against the doctor were totally dependent upon the hearing officer’s assessment of the witnesses’ credibility, require us to conclude that the error was not harmless.

Id. at 352. A trial court judge certainly possesses innately human characteristics, similar to any juror, which may include the inability to “obliterate what it has heard.” Id. Moreover, if a trial court judge expressly admits evidence over objection, it is reasonable to assume that the judge considers this evidence admissible and available for consideration. Accordingly, we must quash the decision below and remand for reconsideration under the correct standard of review, as articulated in this decision and as applied in Parks.

Following Arroyo, the Third District decided the conflict case J.D., which declined to adopt the presumption and did not refer to Arroyo. Petion asserts that J.D. implicitly overruled Arroyo and the other prior decisions of the Third District on this issue. However, in Daniels v. State, 634 So.2d 187 (Fla. 3d DCA 1994), which was decided after J.D., the Third District again applied the presumption. In Daniels, the Court established that an express statement on the record from the trial court that the evidence was disregarded further supports a determination that the presumption was not rebutted.

The rule, as reiterated in State v. Arroyo, 422 So.2d 50, 51 (Fla. 3d DCA 1982),- is that where a trial judge sitting as a fact finder “erroneously admits evidence, he is presumed to have disregarded the [improperly admitted] evidence, and the error of its admission is deemed harmless.” This presumption is overcome only if the record discloses that the trial judge relied upon the erroneous evidence. Id.
In the instant case, the trial judge explained to the defendants that evidence of two of the four robberies referred to during opening statements was inadmissible under Williams v. State, 68 So.2d 583 (Fla.195[3]), and then she gave the defendants the option of moving for mistrial and having the case heard by a jury or proceeding with her sitting as the trier of fact. The defendants chose to rely on the judge’s ability to disregard the inadmissible evidence. Moreover, because the trial judge expressly stated that she was excluding evidence of the non-charged crimes and that the evidence of guilt in the charged crimes was overwhelming without the excluded evidence, the defendants have failed to overcome the presumption that the court’s verdict was based solely upon admissible evidence. See Arroyo, 422 So.2d at 51.

Id. at 190-91 (emphasis supplied); see also King v. State, 988 So.2d 111, 118 (Fla. 4th DCA 2008) (noting that “in a bench trial, there is a presumption that the trial court disregards any erroneously admitted evidence” and that the trial court “specifically stated that it was not considering testimony other than that directly related to the murder”); Schwarz v. State, 695 So.2d 452, 455-56 (Fla. 4th DCA 1997) (substantially similar); Wythers v. State, 348 So.2d 390 (Fla. 3d DCA 1977) (holding that trial court’s admission of improper comment on a defendant’s post -Miranda silence did not require reversal where the record expressly reflected that the trial court recognized and disregarded the improper evidence); Capitoli v. State, 175 So.2d 210, 212 (Fla. 2d DCA 1965) (holding error, if any, in admission of challenged evidence where the trial judge explicitly stated that he based his findings upon certain evidence and that he disregarded the challenged evidence was harmless). Therefore, the subsequent decisions of the Third District demonstrate that the court in J.D. did not implicitly overrule its decision in Arroyo, and instead has further refined its application of the standard of review for circumstances where an express statement on the record also supports a presumption that the improper matters were disregarded.

Accordingly, we must also disapprove the decision in J.D. to the extent it declined to apply the presumption on the basis that it would be “nothing more than one which requires this court’s subjective interpretation of what the trial judge did or did not consider, inasmuch as the record presented for review is silent on this point.” J.D., 553 So.2d at 1319; see also T.E. v. State, 643 So.2d 122, 122 (Fla. 3d DCA 1994) (relying on J.D. as authority for its holding that the trial court’s improper consideration of a comment on the juvenile’s right to remain silent was “reversible error unless the state proves beyond a reasonable doubt that this constitutional error did not contribute to the finding of guilt”). Instead, the district court in J.D. conducted an “objective interpretation of the evidence presented in the record on review” and reversed the adjudication and remanded for a new hearing. 553 So.2d at 1319. Although it may be generally preferred that an appellate court conduct an objective review of the record rather than a speculative inquiry into the mind of the trier of the fact, the application of the presumption and the underlying principles supporting the rationale for its function, belie the Third District’s determination that the presumption should not be initially considered in the absence of record evidence which rebuts the presumption. Thus, we disapprove J.D. to the extent it holds that there is no presumption that a trial court has disregarded exposure to inadmissible or improper evidence during a bench trial.

CONCLUSION

When an appellate court is reviewing a bench trial, it should presume that the trial court judge rested its judgment on admissible evidence and disregarded inadmissible evidence, unless the record demonstrates that the presumption is rebutted through a specific finding of admissibility or another statement that demonstrates the trial court relied on the inadmissible evidence. When improper evidence is admitted over objection in this context, the trial court must make an express statement on the record that the erroneously admitted evidence did not contribute to the final determination. Otherwise, the appellate court cannot presume the trial court disregarded evidence that was specifically admitted as proper. In addition, the appellate court still must conduct a harmless error analysis to determine whether there is a reasonable possibility that the challenged error affected the final judgment. This harmless error analysis is necessary to prevent reversals based on the admission of inconsequential or immaterial evidence, which can sometimes occur during a bench trial for the purposes of expediency and conservation of judicial resources.

Accordingly, we quash the decision below and remand for reconsideration in light of the standard of review articulated in this opinion and as applied in Parks. We disapprove the decisions discussed in this opinion to the extent that they hold a presumption of disregard applies when a trial court, during a bench trial, admits evidence over objection and does not expressly state on the record that this evidence did not contribute to the final judgment or determination. Lastly, we disapprove J.D. to the extent it holds that there is no presumption of disregard for a trial court’s exposure to inadmissible or improper evidence during a bench trial.

It is so ordered.

POLSTON, LABARGA, and PERRY, JJ, concur.

CANADY, C.J., concurs in result with an opinion.

PARIENTE, J., concurs in result with an opinion, in which QUINCE, J., concurs.

CANADY, C.J.,

concurring in result.

I would reject the broadly framed presumption that a trial court does not consider inadmissible evidence because it is a presumption fraught with the potential to mislead. In Petion v. State, 4 So.3d 83 (Fla. 4th DCA 2009), we see that potential realized in the holding that “[w]hen a trial judge, sitting as the trier of fact, erroneously admits evidence, the judge is presumed to have disregarded that evidence.” Id. at 87. In so holding, the appellate court imputed to the trial judge a legal understanding concerning the disputed evidence which the trial judge’s ruling of admissibility belies.

To presume that a trial judge disregards evidence which that judge has ruled to be admissible is to presume that the trial judge acts in a way that is inconsistent with her own understanding of the law. The legal ruling of admissibility constitutes a determination that the evidence should be considered by the trier of fact. A judge as trier of fact should be presumed to act in accord with the legal rulings made by the judge.

To determine whether a judge as trier of fact has considered evidence, the first question to ask is thus whether the judge ruled the evidence to be admissible or inadmissible. Our own decision in Groover v. State, 640 So.2d 1077 (Fla.1994), serves to illustrate this point. In Groover, the appellant argued that his death sentence was unreliable because the trial court in sentencing the defendant to death failed to consider nonstatutory mitigation. Id. at 1078. We rejected this contention, stating that “[w]hen a trial judge instructs a jury that it can consider nonstatutory mitigating evidence, ‘[w]e must presume that the judge followed his own instructions to the jury.’ ” Id. (quoting Johnson v. Dugger, 520 So.2d 565, 566 (Fla.1988)). Accordingly, when a trial judge rules evidence to be admissible, i.e., “relevant and ... of such a character ... that the court should receive it,” Black’s Law Dictionary 635 (9th ed.2009), it is nonsensical to presume that the trial court did not consider the evidence it had previously determined to be admissible.

Based on the sensible general presumption that a judge as trier of fact acts in accord with the legal rulings made by the judge, the following two presumptions arise: (1) the judge as trier of fact is presumed to consider evidence she has ruled admissible; and (2) the judge as trier of fact is presumed to not consider evidence she has ruled to be inadmissible. Either presumption may be rebutted by sufficient contrary statements or findings by the trial judge subsequent to the ruling on admissibility.

I agree with Justice Pariente that the decision of the Third District Court of Appeal in J.D. v. State, 553 So.2d 1317 (Fla. 3d DCA 1989), should not be disapproved. Based on its determination that the trial court “admitt[ed] the offending comment into evidence” — a determination on which I express no view — the Third District correctly rejected the State’s argument that “the trial judge certainly knew to disregard the comment and, accordingly, we can rest assured that he has done so.” Id. at 1318-19. The district court correctly recognized that a judge could not be presumed as trier of fact to have disregarded evidence which the judge had determined to be admissible.

In summary, I would quash the decision on review, reject the broadly framed presumption which has led to the Fourth District’s error in this case, and instead recognize the rebuttable presumption that a judge as trier of fact acts in accord with the legal rulings made by the judge.

PARIENTE, J.,

concurring in result.

I agree with the result reached by the majority. I do not, however, fully concur because the presumption that a trial judge will disregard inadmissible evidence was never intended to apply in non-jury cases where the evidence is actually admitted and the judge either overrules an objection or makes an express finding of admissibility. Where improper evidence is admitted at a non-jury trial, there is no basis for applying a presumption — even a rebuttable one — that the judge would have disregarded that evidence as improper. In such circumstances, I would not apply any presumption at all. Rather, if the record affirmatively shows that the trial judge did not rely on the inadmissible evidence, that fact would be directly relevant to whether or not reversible error occurred.

The presumption is logical, however, when the trial judge, sitting as both the trier of fact and the arbiter of law, is required to consider the evidence in order to rule on its admissibility (e.g., a suppression hearing, a motion in limine, or a proffer). See 45 So.3d at 730, 732. In such circumstances, if the judge determines that the evidence is inadmissible, we presume that the judge disregarded the improper evidence. As explained by the Third District, “[w]hen such evidence is rejected by a trial judge, he is deemed to have the training, experience, and discipline of faculties so as to avoid being influenced by any prejudicial effects therefrom.” Brown, 223 So.2d at 339.

I also would not disapprove the Third District’s decision in J.D., where the Third District did not apply the presumption to inadmissible evidence that the trial judge allowed into evidence. However, I agree that we should quash the Fourth District’s decision in Petion because it erroneously relied on a presumption that the trial judge disregarded evidence that the trial judge expressly held was admissible. I further agree that on remand, the Fourth District should perform a harmless error analysis.

QUINCE, J., concurs.

      . Although unrelated to the conflict issue presented, Petion also asserted that the trial court erred in denying his motion for judgment of acquittal because the State failed to prove that he possessed the marijuana found inside the jointly occupied vehicle. The Fourth District reversed the conviction and sentence for possession of cannabis with intent to sell because the evidence did not establish Petion’s constructive possession of the marijuana found inside the vehicle. See Petion, 4 So.3d at 84.

        . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Petion was released from incarceration on March 4, 2010. Notwithstanding Petion’s release, we exercise our discretion to retain jurisdiction in this case to address the conflict and resolve the uncertainty with regard to the presumption applied to bench trials. See State v. Matthews, 891 So.2d 479, 483 (Fla.2004). Mootness does not divest this Court of jurisdiction because conflict still exists in the decisions, and the issue presented is capable of repetition yet evading review. See id. (citing Holly v. Auld, 450 So.2d 217, 218 n. 1 (Fla.1984)). Accordingly, we elect to proceed with review of this issue to clarify the appropriate standard of review for bench trials regardless of Petion’s release from prison.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Erica Lynn COREY, Petitioner, v. Michael James COREY, Respondent.
    No. SC10-164.
    Supreme Court of Florida.
    Oct. 21, 2010.
    Roger J. Schindler and Anthony V. Fal-zon of Simon, Schindler and Sandberg, LLP, Miami, FL, for Petitioner.
    Kathy M. Klock, June G. Hoffman, and Greg A. Lewen of Fowler White Burnett, P.A., West Palm Beach, FL, for Respondent.
   PER CURIAM.

We initially accepted jurisdiction to review the decision of the Third District Court of Appeal in Corey v. Corey, 29 So.3d 315 (Fla. 3d DCA 2009), based on express and direct conflict with decisions of other district courts of appeal. The conflict issue under review is whether the Legislature’s enactment of section 61.121, Florida Statutes, abrogated the judicial presumption against rotating custody. After further consideration of the issue involved, and in light of the Legislature’s repeal of section 61.121 and substantial revision to section 61.13, Florida Statutes, effective October 1, 2008, we have determined that we should exercise our discretion and discharge jurisdiction. Accordingly, this review proceeding is dismissed.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . Section 61.121 was enacted on July 1, 1997, and provided that a court "may order rotating custody if the court finds that rotating custody will be in the best interest of the child.” See ch. 97-242, § 2, Laws of Fla.

      . See ch. 2008-61, §§ 6, 8, Laws of Fla. In 2009, the Legislature further revised section 61.13(2)(c)(l) to provide that there is "no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.” Ch. 2009-180, § 3, Laws of Fla.


author: PER CURIAM. PARIENTE, J.,

text:
    Charles MENDENHALL, Petitioner, v. STATE of Florida, Respondent.
    No. SC09-400.
    Supreme Court of Florida.
    Oct. 28, 2010.

      James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, Florida, Mary G. Jolley, Wesley Heidt and Jeffrey R. Casey, Assistant Attorneys General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

Mendenhall seeks review of the decision of the Fifth District Court of Appeal in Mendenhall v. State, 999 So.2d 665 (Fla. 5th DCA 2008), on the ground that it expressly and directly conflicts with the decisions of the Second District Court of Appeal in Sousa v. State, 976 So.2d 639 (Fla. 2d DCA 2008), and the First District Court of Appeal in Wilson v. State, 898 So.2d 191 (Fla. 1st DCA 2005).

This case concerns section 775.087, Florida Statutes (2004) — commonly known as the “10-20-Life” statute — specifically section 775.087(2)(a)(3), which provides that defendants who discharge a firearm during the commission of certain enumerated crimes, including murder and attempted murder, and inflict death or great bodily harm as the result of the discharge shall be sentenced to a “minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.” The issue before this Court is whether the mandatory minimum terms of twenty-five years to life provide the trial judge with discretion to impose a mandatory minimum of twenty-five years to life without regard to the statutory maximum for the crime contained in section 775.082, Florida Statutes (2004).

For the reasons explained below, we hold that the specific provisions of the 10-20-Life statute with regard to mandatory mínimums control over the general provisions of section 775.082 regarding statutory máximums. This reading of the statute avoids rendering part of the statute mere surplusage and effectuates the Legislature’s intent to punish those offenders who possess or use firearms to the fullest extent of the law. Thus, we conclude that the trial court has discretion under section 775.087(2)(a)(3) to impose a mandatory minimum of twenty-five years to life, even if that mandatory minimum exceeds the statutory maximum provided for in section 775.082.

Accordingly, we approve the Fifth District’s decision in Mendenhall v. State, 999 So.2d 665 (Fla. 5th DCA 2008), and disapprove the decisions of the Second District in Sousa v. State, 976 So.2d 639 (Fla. 2d DCA 2008), and the First District in Wilson v. State, 898 So.2d 191 (Fla. 1st DCA 2005). We also disapprove the decisions of the Fourth District Court of Appeal in Collazo v. State, 966 So.2d 429 (Fla. 4th DCA 2007), Thurston v. State, 984 So.2d 1290 (Fla. 4th DCA 2008), Leary v. State, 980 So.2d 622 (Fla. 4th DCA 2008), and Johnson v. State, 17 So.3d 847 (Fla. 4th DCA 2009), to the extent that those decisions hold that section 775.087(2)(a)(3) does not vest discretion in the trial judge to impose a mandatory minimum of twenty-five years to life without regard to the statutory maximum for the crime.

FACTS

Charles Mendenhall was charged with attempted first-degree murder with a firearm. At the conclusion of trial, the jury found Mendenhall guilty of the lesser included offense of attempted second-degree murder with a firearm, a second-degree felony. § 782.04(2), Fla. Stat. (2004); § 777.04(4)(e), Fla. Stat (2004). The jury also found that during the commission of the offense, Mendenhall was in possession of a firearm, discharged a firearm, and inflicted serious bodily injury.

On March 2, 2007, the trial court entered a judgment in accordance with the jury’s verdict and sentenced Mendenhall under Florida’s 10-20-Life statute, imposing a sentence of thirty-five years’ imprisonment, with a thirty-five-year mandatory minimum. Mendenhall then filed a motion to correct sentencing error, asserting, inter alia, that his sentence was illegal because under the plain language of the 10-20-Life statute, the maximum sentence he could receive was thirty years with a twenty-five-year mandatory minimum. The trial court granted Mendenhall’s motion in part, concluding that it was required to reduce Mendenhall’s sentence to a term of thirty years’ imprisonment, with a twenty-five-year mandatory minimum.

A brief overview of the statutory scheme is helpful to provide context for the facts of this case. Because Mendenhall used a firearm during the commission of the offense, his conviction was reclassified from a second-degree felony to a first-degree felony under section 775.087(1), Florida Statutes (2004). The maximum sentence for a second-degree felony is fifteen years, and the maximum sentence for a first-degree felony is thirty years. § 775.082(3)(b)-(c), Fla. Stat. (2004). The 10-20-Life statute provides for mandatory minimum sentences for certain enumerated offenses, including attempted murder, where a defendant possesses a firearm (minimum term of imprisonment of either three years or ten years, depending on the offense), discharges a firearm (minimum term of imprisonment of twenty years), or discharges a firearm and as the result of the discharge, inflicted death or great bodily harm (“minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison”). § 775.087(2)(a)(l)-(3), Fla. Stat. (2004). Section 775.082(3)(b) — which is not part of the 10-20-Life statute — provides that a person convicted of a first-degree felony must be punished by “a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment.” § 775.082(3)(b), Fla. Stat. (2004).

Mendenhall appealed to the Fifth District Court of Appeal, asserting that “the jury did not make a finding that ‘death or great bodily harm was inflicted on any person.’” Mendenhall, 999 So.2d at 666. The Fifth District rejected this argument because the jury’s use of the term “serious bodily injury” was synonymous with “great bodily harm.” Id. at 667. That issue is not before the Court in this case.

The State cross-appealed the reduction of the sentence, contending that the original sentence of thirty-five years’ imprisonment with a thirty-five-year mandatory minimum was legal and, accordingly, the trial court erred in granting the motion to correct sentence. Id. The Fifth District agreed with the State, holding that its “review of cases which have similar facts to those presented here [led it] to conclude that the trial court’s original sentence of 35 years’ imprisonment, with a 35-year mandatory minimum, was legal.” Id. at 667. The court outlined the pertinent parts of the 10-20-Life statute, emphasizing a portion of the first sentence of subsection (2)(c):

Pertinent parts of section 775.087 of the Florida Statutes provide as follows:
775.087. Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence
(2)(a) 1. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for: a. Murder;
3. Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)l.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall he sentenced to a minimum teim of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.
(c) If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed. If the mandatory minimum terms of imprisonment pursuant to this section are less than the sentences that could be imposed as authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section.

Id. at 667-68 (quoting §§ 775.087(2)(a)(l), (3), 775.087(2)(c), Fla. Stat. (2004)).

In arriving at its conclusion that the original thirty-five-year sentence and mandatory minimum were legal, the Fifth District noted that this Court affirmed a defendant’s life sentence under factual circumstances similar to those presented in the instant case in Sanders v. State, 944 So.2d 203 (Fla.2006). Mendenhall, 999 So.2d at 668. The Fifth District then stated:

Importantly, upon review, our Supreme Court affirmed the Second District’s opinion [in Sanders] regarding their analysis of the penalty for a lesser included offense and, in dicta, the Court made the following observation:
The maximum sentence for the core offense of attempted first-degree murder is thirty years, while the sentence for attempted second-degree murder without any enhancements is fifteen years. However, with the application of the ten-twenty-life statute, the resulting maximum sentence for both attempted first- and second-degree murder while discharging a firearm and inflicting great bodily harm is the same — life.

Id. (quoting Sanders, 944 So.2d at 205).

Finally, the Fifth District found additional support in its earlier decision in Brown v. State, 983 So.2d 706 (Fla. 5th DCA 2008), in which it had “recognized that the imposition of a mandatory minimum sentence in excess of the maximum penalty was indeed permissible based upon special findings such as those found in this case.” Mendenhall, 999 So.2d at 669. The Fifth District affirmed the judgment, but reversed the sentence and remanded for reimposition of the original sentence of thirty-five years’ imprisonment with a thirty-five-year mandatory minimum. Id.

The Fifth District’s decision conflicts with the Second District’s decision in Sousa v. State, 976 So.2d 639 (Fla. 2d DCA 2008), and the First District’s decision in Wilson v. State, 898 So.2d 191 (Fla. 1st DCA 2005), both of which involved defendants convicted of attempted second-degree murder reclassified as a first-degree felony under the 10-20-Life statute.

The Second District in Sousa held that section 775.087(2)(a)(3) does not override the language in section 775.082(3)(b) that provides for a thirty-year sentence. 976 So.2d at 640. The Second District reasoned as follows:

Mr. Sousa ... was subject to section 775.087(2)(a)(3) of the 10/20/life statute, which required that he be sentenced “to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.” It could be argued that the language of this statute overrides the language in section 775.082(3)(b) that provides for a thirty-year sentence. The case law, however, interprets these statutes in favor of the defendant, so that the maximum term of years is thirty. See Yasin v. State, 896 So.2d 875 (Fla. 5th DCA 2005); Badia v. State, 770 So.2d 300 (Fla. 3d DCA 2000); see also Sanders v. State, 912 So.2d 1286, 1292 (Fla. 2d DCA 2005) (describing maximum penalty in appendix to opinion).

Id. at 640 (footnote omitted).

The First District in Wilson also held that the mandatory minimum term provided for in section 775.087(2)(a)(3) does not override the statutory maximum of thirty years in 775.082(3)(b). The court reasoned that “[ajppellant is subject to a mandatory minimum sentence of 25 years pursuant to section 775.087(2)(a)3, Florida Statutes (2003).... Notwithstanding the minimum mandatory term, the maximum sentence the trial court properly may impose is a sentence of 30 years.” 898 So.2d at 192-93.

ANALYSIS

The conflict issue before this Court is whether, under the 10-20-Life statute, specifically section 775.087(2)(a)(3), a trial court can sentence a defendant to a mandatory minimum sentence that exceeds the statutory maximum sentence provided for in section 775.082. More specifically, the issue in this case is whether the mandated “minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in' prison” under section 775.087(2)(a)(3) gives the trial court the discretion to impose a sentence anywhere within the range of twenty-five years to life, even if that sentence exceeds the statutory maximum of thirty years provided for under section 775.082(2)(c).

Because the conflict issue involves the interpretation of the 10-20-Life statute, resolving this issue requires an analysis of the language of the statute to discern legislative intent. In analyzing this issue, we first set forth the applicable statutory provisions. We next analyze the language and stated purpose of the statute to determine whether the statute provides trial courts with the discretion to impose a mandatory minimum sentence anywhere in the range of twenty-five years to life under section 775.087(2)(a)(8), even if that sentence exceeds the statutory maximum provided for in section 775.082. We conclude that it does.

The 10-20-Life Statute

Section 775.087, Florida Statutes, commonly referred to as the 10-20-Life statute, provides for mandatory minimum sentences for offenders who possess or use a firearm in some manner during the commission of certain crimes. As explained by this Court, in enacting the 10-20-Life statute, the Legislature “has very clearly mandated that it is the policy of this State to deter the criminal use of firearms.” McDonald v. State, 957 So.2d 605, 611 (Fla.2007). “This mandate is underscored by the widespread promulgation of the 10-20-LIFE law beyond mere statutory notice, through television commercials, posters, and other forms of advertising.” Id.

To that end, the statute requires the imposition of a mandatory minimum sentence where a firearm is possessed or used during the commission of certain enumerated crimes, including murder and attempted murder. § 775.087(2)(a)(l)(a), Fla. Stat. (2004). The mandatory minimum sentences differ depending on whether the defendant possessed the firearm, discharged the firearm, or discharged the firearm and inflicted death or great bodily harm. If the defendant possessed a firearm during the commission of an enumerated offense, he or she “shall be sentenced to a minimum term of imprisonment of 10 years” unless the enumerated offense is aggravated assault, possession of a firearm by a felon, or burglary of a conveyance; if so, the defendant “shall be sentenced to a minimum term of imprisonment of 3 years.” § 775.087(2)(a)(l), Fla. Stat. If the defendant discharged a firearm during the commission of an enumerated offense, he or she “shall be sentenced to a minimum term of imprisonment of 20 years.” § 775.087(2)(a)(2), Fla. Stat. The statutory provision at issue in this case involves the situation where the defendant discharged a firearm that resulted in death or great bodily harm, and provides:

Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)l.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

§ 775.087(2)(a)(8), Fla. Stat. (emphasis added).

Subsection (2)(b) provides that the mandatory minimum sentences in subsections (2)(a)(l), (2)(a)(2), and (2)(a)(3) do not prevent a court from imposing a longer sentence as authorized by law in addition to the mandatory minimum sentence and that the defendant is not eligible for early release or gain time prior to serving the minimum sentence:

Subparagraph (a)l., subparagraph (a)2., or subparagraph (a)3. does not prevent a court from imposing a longer sentence of incarceration as authorized by law in addition to the minimum mandatory sentence, or from imposing a sentence of death pursuant to other applicable law. Subparagraph (a)l., subparagraph (a)2., or subparagraph (a)3. does not authorize a court to impose a lesser sentence than otherwise required by law.
Notwithstanding s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, and the defendant is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency, or conditional medical release under s. 947.149, prior to serving the minimum sentence.

§ 775.087(2)(b), Fla. Stat.

Subsection (2)(c) addresses the situation where the minimum terms of imprisonment mandated in subsection (2) either exceed or are less than the sentences that could be imposed under section 775.082, section 775.084, Florida Statutes (2004), or the Criminal Punishment Code in chapter 921, Florida Statutes (2004):

If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed. If the mandatory minimum terms of imprisonment pursuant to this section are less than the sentences that could be imposed as authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section.

§ 775.087(2)(c), Fla. Stat.

Subsection (2)(d) clearly states that it is the intent of the Legislature to punish those offenders who possess or use firearms to the fullest extent of the law:

It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.

§ 775.087(2)(d), Fla. Stat.

Interpretation of the 10-20-Life Statute

Questions of statutory interpretation are subject to de novo review. Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 194 (Fla.2007). “A court’s purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction.” Larimore v. State, 2 So.3d 101, 106 (Fla.2008). “As with any case of statutory construction, [the Court must begin] with the ‘actual language used in the statute.’ ” Heart of Adaptions, Inc., 963 So.2d at 198 (quoting Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006)). “This is because legislative intent is determined primarily from the statute’s text.” Id. This Court has explained:

[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning ... the statute must be given its plain and obvious meaning. Further, we are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power. A related principle is that when a court interprets a statute, it must give full effect to all statutory provisions. Courts should avoid readings that would render part of a statute meaningless.

Velez v. Miami-Dade Cnty. Police Dep’t, 934 So.2d 1162, 1164-65 (Fla.2006) (quotation marks and citations omitted).

Section 775.082(3)(b), which is in the general sentencing statute, provides the maximum sentence for a first-degree felony: “For a felony of the first degree, by a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment.” However, section 775.087(2)(a)(3) clearly states: “[T]he convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.” Section 775.087(2)(c) makes reference to section 775.082 and states that the mandatory minimum, when it exceeds the statutory maximum, must be imposed.

In resolving any perceived conflict between the statutory maximum in the general sentencing statute and the mandatory minimum range of twenty-five years to life, we conclude that the specific provisions of section 775.087(2)(a)(3) prevail over the general provisions of the 775.082 regarding statutory máximums. We have previously stated:

[I]t is a well settled rule of statutory construction ... that a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms. In this situation “the statute relating to the particular part of the general subject will operate as an exception to or qualification of the general terms of the more comprehensive statute to the extent only of the repugnancy, if any.”

McDonald, 957 So.2d at 610 (quoting Adams v. Culver, 111 So.2d 665, 667 (Fla.1959)). Under this principle of statutory construction, section 775.087(2)(a)(3), which specifically addresses a situation where a defendant, in the course of certain enumerated felonies, discharges a firearm and, as a result of the discharge, death or great bodily harm is inflicted upon any person, prevails over section 775.082(3)(b), which is a general sentencing statute and provides the sentences for all first-degree felonies. Section 775.082 covers sentencing for all crimes, including those involving the use of a firearm. The 10-20-Life statute, on the other hand, addresses the mandatory minimum sentences for enumerated crimes involving the use or possession of a firearm.

The application of this statutory construction principle here is analogous to our analysis in McDonald, 957 So.2d at 610-11, wherein we held that the specific provisions of the 10-20-Life statute control over the more general provisions of the Prison Releasee Reoffender (PRR) statute:

The PRR statute is part of the general sentencing provision of chapter 775. It provides the mandatory minimum sentence for anyone deemed a prior releas-ee reoffender within the general sen-fencing scheme. See § 775.082, Fla. Stat. (2000). In other words, the PRR statute covers sentencing for all crimes, including those involving the use of a firearm. On the other hand, the 10-20-LIFE statute addresses the mandatory minimum sentence for the use or possession of a firearm in some manner during the commission of a specified crime. See § 775.087(2)(c). Accordingly, the Fourth District properly concluded that the more specific provisions contained in the 10-20-LIFE statute should control over the more general provisions of the PRR statute....

Our reading of the statute is further supported by the application of the “elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage.” Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So.3d 1220, 1233 (Fla.2009) (quoting Gulfstream Park Racing Ass’n v. Tampa Bay Downs, Inc., 948 So.2d 599, 606 (Fla.2006)). To adopt Mendenhall’s interpretation of the statute would render the phrase “and not more than a term of imprisonment of life in prison” meaningless and mere surplusage. We reject this interpretation and adopt the reasoning of Judge Farmer’s dissent in Collazo v. State, 966 So.2d 429, 433 (Fla. 4th DCA 2007):

In subsection (a)3 the words not less than 25 years mean that more than 25 years is possible. But the majority limits the mandatory part to not more than 25 years, making the words not less than 25 years and not more than life superfluous.
The majority seem to read into the provision a punctuation mark after the words 25 years. There is no mark at that point; the clause presses on without any break. Then the words not less than 25 years are followed immediately by the conjunction and which is not preceded by a comma, semi-colon or period. If there had been some such punctuation, one might conceivably read the sentence as containing two separate thoughts: (1) a mandatory period of 25 years; (2) discretion to make the total sentence life. As actually written and punctuated, however, the plain meaning is to conjoin not less than 25 years with the words not more than a term of life into a single thought. As thus written, the mandatory period can be anything from life down to 25 years.

Finally, this reading of the statute not only recognizes that specific statutes control over general statutes and that words in a statute should not be rendered meaningless, but also effectuates the Legislature’s clearly stated and unambiguous intent to punish offenders who possess or use firearms “to the fullest extent of the law.” § 775.087(2)(d), Fla. Stat. (2004). The Legislature, in enacting the 10-20-Life statute, “very clearly mandated that it is the policy of this State to deter the criminal use of firearms.” McDonald, 957 So.2d at 611. This policy is underscored by the statement of legislative intent contained in the act enacting section 775.087(2)(a)(3):

WHEREAS, Florida ranks among the most violent states in the nation, and
WHEREAS, in 1975 the Florida Legislature enacted legislation requiring a minimum mandatory sentence of three years in prison for possessing a gun during the commission or attempted commission of a violent felony, and
WHEREAS, the Legislature enacted this mandatory penalty in order to protect citizens from criminals who are known to use guns during the commission of violent crimes, and
WHEREAS, the FBI reports that among persons identified in the felonious killings of law enforcement officers in 1997, 71% had prior criminal convictions, and one of every four were on probation or parole for other crimes when they killed the officers, and
WHEREAS, criminals who use guns during the commission of violent crimes pose an increased danger to the lives, health, and safety of Florida’s citizens and to Florida’s law enforcement officers who daily put their lives on the line to protect citizens from violent criminals, and
WHEREAS, the Legislature intends to hold criminals more accountable for their crimes, and intends for criminals who use guns to commit violent crimes to receive greater criminal penalties than they do today, and
WHEREAS, the Legislature intends that when law enforcement officers put themselves in harm’s way to apprehend and arrest these gun-wielding criminals who terrorize the streets and neighborhoods of Florida, that these criminals be sentenced to longer mandatory prison terms than provided in current law, so that these offenders cannot again endanger law enforcement officers and the public, and
WHEREAS, there is a critical need for effective criminal justice measures that will ensure that violent criminals are sentenced to prison terms that will effectively incapacitate the offender, prevent future crimes, and reduce violent crime rates, and
WHEREAS, it is the intent of the Legislature that criminals who use guns to commit violent crimes be vigorously prosecuted and that the state demand that minimum mandatory terms of imprisonment be imposed pursuant to this act, NOW, THEREFORE,
Be It Enacted by the Legislature of the State of Florida....

Ch. 99-12, at 537, Laws of Fla. Because the Legislature clearly intended that those “who use guns to commit violent crimes be vigorously prosecuted and that the state demand that minimum mandatory terms of imprisonment be imposed pursuant to this act,” id., we conclude that the Legislature intended for trial courts to have discretion to impose a mandatory minimum under section 775.087(2)(a)(3) in the range of “a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.” § 775.087(2)(a)(3), Fla. Stat. (2004).

Mendenhall contends that the statute is ambiguous and that this Court should apply the rule of lenity. There is certainly nothing ambiguous about the statute’s language that “the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.” § 775.087(2)(a)(3), Fla. Stat. Regardless, we have previously recognized “that the rule of lenity is a canon of last resort.” Kasischke v. State, 991 So.2d 803, 814 (Fla.2008).

We thus conclude that under section 775.087(2)(a)(3), the trial court has discretion to impose a mandatory minimum within the range of twenty-five years to life. Consequently, we conclude that Menden-hall was properly sentenced to thirty-five years with a thirty-five-year mandatory minimum, notwithstanding the statutory maximum of thirty years contained in section 775.082 for Mendenhall’s offense.

CONCLUSION

For the foregoing reasons, we approve the Fifth District’s decision in Mendenhall v. State, 999 So.2d 665 (Fla. 5th DCA 2008), and disapprove the decisions of the Second District in Sousa v. State, 976 So.2d 639 (Fla. 2d DCA 2008), and the First District in Wilson v. State, 898 So.2d 191 (Fla. 1st DCA 2005). We also disapprove the decisions of the Fourth District in Collazo v. State, 966 So.2d 429 (Fla. 4th DCA 2007), Thurston v. State, 984 So.2d 1290 (Fla. 4th DCA 2008), Leary v. State, 980 So.2d 622 (Fla. 4th DCA 2008), and Johnson v. State, 17 So.3d 847 (Fla. 4th DCA 2009), to the extent that those decisions hold that section 775.087(2)(a)(3) does not vest discretion in the trial judge to impose a mandatory minimum of twenty-five years to life without regard to the statutory maximum for the crime.

It is so ordered.

CANADY, C.J., and LEWIS, POLSTON, and LABARGA, JJ., concur.

PARIENTE, J., dissents with an opinion, in which QUINCE and PERRY, JJ., concur.

PARIENTE, J.,

dissenting.

I respectfully dissent to the majority’s conclusion that the sentences provided in section 775.087 always trump the statutory máximums in other statutes.

Although popularly known as the 10-20-Life statute, section 775.087 is actually entitled “Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.” (Emphasis added.) The very title indicates that the statute is not meant to impose new statutory máxi-mums for gun-related offenses, but rather the intent was to mandate significant statutory minimum sentences. The answer to the statutory construction question— whether section 775.087 always trumps the statutory máximums of 775.082 — cannot be resolved by a plain reading of 775.087(2)(a). The Legislature could have easily indicated that section 775.087(2)(a)(3) overrode all statutory máx-imums provided in 775.082. It did not.

Rather, reading 775.082 and 775.087 together, as the doctrine of in pari materia requires and as the Legislature indicates in section 775.087(2)(c), leads to the conclusion that the statutory minimum sentence for a crime in which a firearm is discharged is governed by section 775.087, but that the statutory máximums provided in 775.082 are not overridden unless the statutory máximums of 775.082 are less than the statutory mínimums of section 775.087. See § 775.087(2)(c), Fla. Stat. (2004). Simply put, section 775.087, when read together with section 775.082, does not specify overriding of the statutory máximums in all cases and does not provide that the range provided for in section 775.087(2)(a)(3) wholly nullifies any statutory maximum. Therefore, given this ambiguity, the rule of lenity should be applied, and the statute should be construed most favorably to Mendenhall.

ANALYSIS

“The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.” Fla. Dep’t of State v. Martin, 916 So.2d 763, 768 (Fla.2005). Similarly, “related statutory provisions must be read together to achieve a consistent whole, and ... ‘[wjhere possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.’ ” Larimore v. State, 2 So.3d 101, 106 (Fla.2008) (quoting Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 199 (Fla.2007)).

The issue in this case is one of statutory construction that involves the interplay between section 775.087(2), which authorizes mandatory minimum sentences for certain crimes, and section 775.082, which authorizes a maximum sentence of thirty years for the conviction of a first-degree felony. Section 775.087 is meant to be read together with other sentencing statutes such as section 775.082 and is not its own self-contained sentencing scheme. The statute clearly contemplates interplay between itself and other statutes. The Legislature even provided guidance as to how the statute should be read together with section 775.082. See § 775.087(2)(c), Fla. Stat. (2004) (explicitly addressing situations where the mandatory minimum is either more or less than the statutory máximums provided for elsewhere and specifically referencing section 775.082). Thus, we must read section 775.087(2)(a)(8) together with sections 775.087(2)(e) and 775.082.

The majority ignores the principle of reading the statutes together and instead utilizes the statutory construction principle that a specific statute controls over the general. However, the statutes address different things and are meant to be read together as indicated by section 775.087(2)(c) — section 775.087(2) specifies mandatory mínimums whereas section 775.082 specifies statutory máximums. Simply put, although section 775.087 is specific as to statutory mínimums, it is not specific as to statutory máximums.

Under section 775.087(2)(c), if the “minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed.” § 775.087(2)(c), Fla. Stat. (emphasis added). On the other hand, if the “mandatory minimum terms of imprisonment ... are less than the sentences that could be imposed as authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section.” Id. (emphasis added). Based on section 775.087(2)(c), the minimum sentence to be imposed under 775.087 does not trump the statutory maximum provided in 775.082 unless the minimum sentence exceeds the statutory maximum. It does not change the statutory maximum or negate it all together.

This section is in keeping with the title of the chapter, which addresses minimum sentences. The title of a chapter is properly considered in determining legislative intent. Horowitz v. Plantation Gen. Hosp. Ltd. P’ship, 959 So.2d 176, 182 (Fla.2007) (considering the title of the chapter as reflecting the Legislature’s intent); see also Larimore, 2 So.3d at 112 (“[T]he title of an act is properly considered in determining legislative intent.”). Here, the title of the chapter evinces a legislative intent to mandate significant statutory minimum sentences, not new statutory máximums irrespective of the statutory máximums provided for elsewhere.

This brings us to the interpretation of the statutory minimum terms provided in section 775.087(2)(a). The first two subsections, (2)(a)(l) and (2)(a)(2), are clear and unambiguous and provide for statutory minimum terms of a specific number of years. Subsection (2)(a)(l) provides that a defendant convicted of possession of a firearm by a felon “shall be sentenced to a minimum term of imprisonment of 10 years” and in certain other circumstances to a “minimum term of imprisonment of 3 years.” Subsection (2)(a)(2) provides that a person who is convicted of certain felonies or attempted felonies and uses the firearm during the course of the commission of the felony “shall be sentenced to a minimum term of imprisonment of 20 years.” Therefore, when subsections (2)(a)(l) and (2)(a)(2) are read in conjunction with subsection (2)(c) and section 775.082, it is easy to determine in what circumstances the minimum term specified is greater than the statutory maximum or when the mandatory minimum is less than the statutory maximum. It is also clear as to how many years should be imposed or included as the mandatory minimum.

The clash between the statutory máxi-mums of section 775.082 and the minimum sentences of 775.087 occurs when applying section 775.087(2)(a)(3), which is the only subsection to provide for a range. Subsection (2)(a)(3) provides that a person who discharges a firearm causing death or great bodily harm “shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.” While it is clear that a sentence of at least twenty-five years must be imposed as a minimum in all circumstances, it is not clear whether the trial court can impose a minimum term in excess of the statutory maximum of thirty years in this case.

An examination of the language of section 775.087(2)(c) reveals another ambiguity: the phrase “the mandatory minimum sentence” as used in subsection (2)(e) and as applied to subsection (2)(a)(3) is ambiguous because it is not clear whether it refers only to the absolute minimum sentence that must be imposed (twenty-five years) or to the entire range. Further, by explicitly stating that statutory máximums in other statutes are trumped by the section 775.087 statutory mínimums when the minimum sentence exceeds the statutory máximums, the Legislature failed to address what occurs where there is a range of sentencing options, as there is in section 775.087(2)(a)(3). In this case, the statutory maximum is thirty years, whereas the sentencing range is twenty-five to life. Whether the range is meant to be considered as exceeding the statutory maximum is unclear.

The majority concludes that the trial court has discretion to impose a mandatory minimum sentence of twenty-five years to life, irrespective of the maximum penalty on the underlying charge under section 775.082. This interpretation nullifies the statutory máximums of section 775.082, without any indication that the Legislature intended for this nullification to occur.

Because the statute is ambiguous as to legislative intent regarding statutory máxi-mums, I conclude that it must be construed most favorably to Mendenhall. As this Court has stated, the rule of lenity “is not just an interpretive tool, but a statutory directive. The rule requires that ‘[a]ny ambiguity or situations in which statutory language is susceptible to differing constructions must be resolved in favor of the person charged with an offense.’ ” Kasischke v. State, 991 So.2d 803, 814 (Fla.2008) (citation omitted) (quoting State v. Byars, 823 So.2d 740, 742 (Fla.2002)). If the Legislature intended to allow trial courts the discretion to impose a mandatory minimum sentence of life even if the statutory maximum is much less, it was incumbent upon the Legislature to make that intent clear.

In my view, this reading of the statute does not render the phrase “and not more than ... life” mere surplusage as the majority contends. Here, Mendenhall was convicted of a second-degree felony that was then enhanced to a first-degree felony, which carries a maximum sentence of thirty years. Thus, the phrase “and not more than ... life” would not apply to this case. However, the majority overlooks situations where the phrase would apply. For example, if a defendant is convicted of a first-degree felony that is enhanced by the 10-20-Life statute to a life felony, see § 775.087(l)(a), Fla. Stat., the maximum sentence would then be life imprisonment. See § 775.082(3)(a)(3), Fla. Stat. (2004). In that situation, sections 775.087(2)(a)(3) and (2)(c) would allow the trial court to impose a mandatory minimum sentence up to life. Accordingly, while the phrase “and not more than ... life” would not apply in this case, there are situations in which it would apply. Thus, this interpretation of the statute does not render the phrase meaningless.

Further, while section 775.087(2)(d) provides that the Legislature intends that offenders who possess and use firearms should be punished “to the fullest extent of the law,” that same section also expresses its intent that the “minimum terms of imprisonment shall be imposed.” (Emphasis added.) Once again, this evinces an intent for courts to impose the minimum terms of imprisonment provided for in section 775.087(2)(a), even those that might be in excess of a statutory maximum in another statute. But the statutory scheme does not evince an intent to set new statutory máximums to override all other statutory máximums.

We should err on the side of applying the rule of lenity when the alternative construction of an ambiguous statute would result in such harsh consequences. Mendenhall was convicted of a second-degree felony, which carries a maximum sentence of fifteen years. See § 775.082(3)(c), Fla. Stat. (2004). His conviction was enhanced by section 775.087(l)(b) to a first-degree felony, the maximum sentence for which is thirty years. See § 775.082(3)(b), Fla. Stat. Further application of section 775.087 requires an absolute minimum mandatory sentence of twenty-five years to be imposed, meaning that Mendenhall will serve at least twenty-five years because the 10-20-Life statute provides that a defendant is not eligible for gain-time or any other form of discretionary early release (other than pardon or executive clemency) prior to serving the minimum sentence.

Under my view of section 775.087(2)(a)(3), the sentence for Menden-hall’s offense after both enhancements increases from a maximum of fifteen years to a maximum sentence of thirty years with a mandatory minimum sentence between twenty-five and thirty years. This is already significantly harsher than his original, unenhanced sentence of fifteen years and is in keeping with the legislative intent expressed in subsection (2)(d) that offenders who possess and use firearms should be punished “to the fullest extent of the law.” To allow a trial judge unfettered discretion to impose a mandatory minimum sentence of life for an offense such as Mendenhall’s without express legislative authorization, but rather by judicial construction of the statute, works an injustice and is contrary to our doctrine of separation of powers.

CONCLUSION

The Legislature has not evinced a clear intent for section 775.087(2)(a)(3) to override all statutory máximums. Rather, the Legislature gave guidance as to how section 775.087(2)(a)(3) should be read together with section 775.082, which is a clear indication that statutory máximums were meant to play some role in sentencing under the statute. See § 775.087(2)(e), Fla. Stat. (2004). However, this guidance is simply unhelpful and ambiguous when applying subsection (2)(a)(3).

Applying the rule of lenity to this ambiguous statute requires us to interpret it most favorably to Mendenhall. If the Legislature intended to allow trial courts the discretion to impose a minimum mandatory sentence of life even if the statutory maximum is much less, it was incumbent upon the Legislature to make that intent clear.

For all of these reasons, I respectfully dissent.

QUINCE and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

      . The 2004 version of the 10-20-Life statute is identical to the current 2009 version of the statute.

      . The Fifth District certified conflict with Col-lazo, Johnson, Thurston, and Leary in a case concerning the same issue as this case, which is pending review in this Court. See Booth v. State, 18 So.3d 1142 (Fla. 5th DCA 2009) (pending currently in this Court as Case No. SC09-1832).

      . Section 775.087(2)(a)(3) was added to the statute in 1999, when the Legislature increased the minimum sentence from three years for all crimes where the defendant possessed a firearm to ten years for possession of a firearm, twenty years for discharging a firearm, and "not less than 25 years and not more than a term of imprisonment of life in prison” for crimes in which the defendant discharged a firearm and the discharge resulted in death or great bodily harm. See ch. 99-12, § 1, Laws of Fla. The Legislature also added the statement of intent contained in section 775.087(2)(d). See id.