State v. Lopez-Ona

OPINION OF THE COURT BLOOM, J. The prime issue here is whether the trial court erred in not imposing a statutory thirty (30) days imprisonment upon a defendant convicted for his third DUI within five (5) years of the date of a prior such conviction. The State contends that Section 316.193(6)(c), Fla. Stat. mandates thirty (30) days imprisonment. That provision reads: “(c) the court shall order imprisonment for not less than 30 days.” [158] The same statutory scheme (Sec. 316.193 Fla. Stat.) provides a rational graduated scale of penalties for DUI convictions consisting of fines and imprisonment, and culminates with Section 316.193(6)(c) Fla. Stat. “regardless of any other applicable penalty imposed,” namely imprisonment for not less than thirty (30) days. The defendant contends that the word “imprisonment” means or includes “confinement,” “custody,” or “work release,” and that such an interpretation is proper since absence from custody or work release carries with it a separate charge for “escape.” Defendant cites § 951.01 and §921.187 Fla. Stat. as authorization for prisoner participation in discretionary release and public works projects as alternatives to incarceration. However, a review of those statutes appears to require that the inmate participate “while serving a sentence in a county jail,” or “in jail.” At oral argument of this cause, we were advised that sentences similar to that before us are customary in order to avoid jail overcrowding and other inmate maintenance expenses. That is a problem which should be addressed directly and not by sophistry. A work release program wherein a defendant does not spend even one night in jail (as is the case here), is hardly compliance with a mandatory minimum sentence of thirty' (30) days imprisonment; or of deterrence to a third time convicted criminal or to the community at large. In other words, to paraphrase Gertrude Stein, on a third DUI conviction within five years of a prior such conviction, the law calls for imprisonment, imprisonment, imprisonment and not for substitutes. We find no authority for a substitution being given, mean, or intended by the Legislature for imprisonment. Such interpretation as advanced by defendant distorts the plain meaning of “imprisonment” in a situation in which there clearly is no need for statutory construction. The instant statute was designed to emphasize, cure and deter an existing anti-public behavior, namely driving while intoxicated, and it should be given full effect by the courts. We reverse the trial court’s substitution of the meaning of “imprisonment” for that directed by the Legislature in clear and plain language, and we remand this case to the trial court for further proceedings as may be appropriate.* Footnotes [*] With respect to remand, we are not unmindful of Judge Salmon’s concurrence and Judge Goldman’s dissent insofar as the sentence is concerned. Since Defendant has served no time in prison or jail, he should be required to do so in accordance with the clear mandate of the Legislature.