Adaway v. State

902 So.2d 746

Darrick Terrell ADAWAY, Petitioner, v. STATE of Florida, Respondent.

No. SC04-239.

Supreme Court of Florida.

March 17, 2005.

Rehearing Denied May 10, 2005.

Bennett H. Brummer, Public Defender and Roy A. Heimlich, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, FL, Richard Polin, Bureau Chief, Criminal Appeals and Paulette R. Taylor, Assistant Attorney General, Miami, FL, for Appellee.

CANTERO, J.

We review Adaway v. State, 864 So.2d 36 (Fla. 3d DCA 2003), which expressly declared valid a state statute mandating life imprisonment without the possibility of parole for persons convicted of capital sexual battery. We have discretionary jurisdiction and granted review. See art. V, § 3(b)(3), Fla. Const.; Adaway v. State, 871 So.2d 871 (Fla.2004) (order granting review).¹ The sole issue is whether a sentence of life imprisonment without the possibility of parole for oral union with the vagina of a girl under the age of twelve constitutes either cruel and unusual punishment (in violation of the Eighth Amendment to the United States Constitution) or cruel or unusual punishment (in violation of the former version of article I, section 17 of the Florida Constitution).² In a case involving the identical crime, we held that a sentence of life imprisonment with the possibility of parole after twenty-five years complies with both constitutional provisions. See Banks v. State, 342 So.2d 469 (Fla.1976). We reach the same conclusion now, notwithstanding the Legislature's elimination of the possibility of parole.

I. FACTS

The defendant, Darrick Terrell Adaway, sexually assaulted an eleven-year-old girl while she slept in the bedroom she shared with her siblings. Adaway, who was thirty-six years old at the time, entered the bedroom, woke the victim, and told her to pull down her underwear. He then touched her vagina with his tongue. The State charged Adaway with sexual battery on a child under twelve in violation of section 794.011(2), Florida Statutes (1999), and with lewd or lascivious molestation of a child under twelve in violation of section 800.04(5)(b), Florida Statutes (1999). A jury convicted Adaway of both charges. The trial court sentenced him to life imprisonment without the possibility of parole on the sexual battery charge, which was a mandatory sentence under section 775.082(1), Florida Statutes (1999). The court also sentenced him to thirty years' imprisonment on the lewd or lascivious molestation charge.

On appeal, Adaway argued that a sentence of life imprisonment without parole was grossly disproportionate to his crime and therefore violated both the Cruel and Unusual Punishments Clause of the United States Constitution and the former Cruel or Unusual Punishment Clause of the Florida Constitution. See Adaway, 864 So.2d at 37. The Third District disagreed and upheld Adaway's sentence. Id. at 37-38. The court noted, however, that a concurring opinion from this Court had cautioned that "the constitutionality of a mandatory punishment of life imprisonment for the specific crime of sexual battery without penile/vaginal union is a significant concern." Id. at 38 (quoting Welsh v. State, 850 So.2d 467, 474 n. 8 (Fla.2003) (Pariente, J., concurring)). We granted review to resolve the issue. Adaway, 871 So.2d at 871.

II. ANALYSIS

The statute defines sexual battery as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object." § 794.011(1)(h), Fla. Stat. (1999). When a person at least eighteen years old commits sexual battery on a person under twelve, the statute deems it "a capital felony, punishable as provided in ss. 775.082 and 921.141." § 794.011(2)(a), Fla. Stat. (1999). As written, the cross-referenced section provides that capital sexual battery is punishable by death. § 775.082(1), Fla. Stat. (1999). In Buford v. State, 403 So.2d 943 (Fla.1981), however, we held that a sentence of death for capital sexual battery violates the Eighth Amendment.

Following Buford, the maximum sentence for capital sexual battery became life imprisonment with the possibility of parole after twenty-five years. See Rusaw v. State, 451 So.2d 469, 470 (Fla.1984) ("Death is no longer permissible for the sexual battery described in subsection 794.011(2), but life imprisonment with a twenty-five-year minimum is."). We have upheld such a sentence as applied to the crime of oral union with the genitals of a child under twelve. See Banks, 342 So.2d at 470.

In 1995, the Legislature eliminated the possibility of parole for convictions of capital sexual battery. See Ch. 95-294, § 4, at 2718, Laws of Fla. Thus, section 775.082 now provides that a person convicted of capital sexual battery "shall be punished by life imprisonment and shall be ineligible for parole." § 775.082(1), Fla. Stat. (1999). Adaway, who received such a sentence, contends it is grossly disproportionate to his crime and therefore violates both the United States and the Florida Constitutions.

Like the United States Supreme Court, we have been reluctant to declare a sentence cruel or unusual simply because of its length. See Rummel v. Estelle, 445 U.S. 263, 274, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (expressing a "reluctance to review legislatively mandated terms of imprisonment"). As we have stated more than once, "the length of the sentence actually imposed is generally said to be a matter of legislative prerogative." Hall v. State, 823 So.2d 757, 760 (Fla.2002) (quoting Hale v. State, 630 So.2d 521, 526 (Fla.1993)). We noted in Hall that both "[t]he Eighth Amendment to the United States Constitution and [the former] article I, section 17 of the Florida Constitution have historically provided protection relative to the mode and method of punishment, not the length of incarceration." 823 So.2d at 760; see also id. ("Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.") (quoting Rummel, 445 U.S. at 272, 100 S.Ct. 1133). We reiterate the soundness of this approach. Accordingly, we analyze Adaway's claims with "substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes." Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

We first discuss Adaway's challenge to his sentence under the Cruel and Unusual Punishments Clause of the Eighth Amendment to the United States Constitution. We then address his claim that the sentence violates the former version of article I, section 17 of the Florida Constitution.

A. Eighth Amendment

The United States Supreme Court has not reached a majority consensus on the standard for determining the constitutionality of long prison sentences. See Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (plurality opinion); Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (plurality opinion). The Court has acknowledged that "in determining whether a particular sentence for a term of years can violate the Eighth Amendment, we have not established a clear or consistent path for courts to follow." Lockyer v. Andrade, 538 U.S. 63, 72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). A majority of the Court recently agreed, however, that "[t]hrough this thicket of Eighth Amendment jurisprudence, one governing legal principle emerges as `clearly established'" — namely, that a "gross disproportionality principle is applicable to sentences for terms of years." Id. (quoting 28 U.S.C. § 2254(d)(1)). In other words, to violate the Cruel and Unusual Punishments Clause, a prison sentence must, at least, be grossly disproportionate to the crime.

The first and only case in which the Supreme Court has invalidated a prison sentence because of its length was Solem v. Helm, 463 U.S. at 290, 103 S.Ct. 3001. See Erwin Chemerinsky, The Constitution and Punishment, 56 Stan. L.Rev. 1049, 1058 (2004) (noting that "Solem v. Helm remains the only case in which the Supreme Court has found a prison sentence to be grossly disproportionate"). The defendant in Solem had been sentenced to life imprisonment without parole for writing a "no account" check for $100. 436 U.S. at 281, 98 S.Ct. 1795. The defendant previously had been convicted of six nonviolent felonies, including third-degree burglary (three times), obtaining money under false pretenses, grand larceny, and third-offense driving while intoxicated. Id. at 279-80, 98 S.Ct. 1795. The Court concluded that the sentence of life imprisonment without parole was "significantly disproportionate to [the] crime, and ... therefore prohibited by the Eighth Amendment." Id. at 303, 98 S.Ct. 1795.

In Solem, the Court's proportionality analysis was "guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Id. at 292, 103 S.Ct. 3001. While characterizing the first of the three factors as one that "a court must consider," in discussing the other factors the Court stated only that "it may be helpful" to apply the second and that "courts may find it useful" to apply the third. Id. at 291, 103 S.Ct. 3001.

Solem remains the only case in which the United States Supreme Court declared a sentence unconstitutional based on its length. Since then, it has twice upheld such sentences, but without agreement on a rationale. Eight years after Solem, the Supreme Court decided Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). In Harmelin, the defendant was convicted of possessing 672 grams of cocaine. He received life imprisonment without parole. Id. at 961, 111 S.Ct. 2680. The Court upheld the...