DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STATE OF FLORIDA,

Appellant,

v.

JEFFREY REININGER,

Appellee.

No. 4D17-3604

[September 5, 2018]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Lisa Porter, Judge; L.T. Case No. 13-000530-CF-10A.

Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah Koenig, 

Assistant Attorney General, West Palm Beach, for appellant.

Josh A. Howard of Law Office of Josh A. Howard, PLLC, Fort 

Lauderdale, for appellee.

CONNER, J.

This appeal involves the amendment of a sentencing statute between 

the date of a criminal offense and the sentencing date, and which version 

of the statute is the appropriate version to apply. The State appeals the 

trial court’s interpretation of the sentencing statute here and its decision

to apply the version of the statute in effect at the time of sentencing rather 

than the one in effect on the date of the offense. We agree with the State

that the trial court applied the incorrect version of the statute.

Background Information and Trial Procedure

Reininger was charged with aggravated assault with a firearm, 

stemming from an incident in January 2013, when Reininger pulled a gun 

on a process servicer. A jury returned a verdict in June 2017 finding 

Reininger guilty as charged. Reininger was adjudicated guilty, a 

presentence investigation report was ordered, and sentencing was 

deferred. 
2

Prior to sentencing, Reininger filed a motion for an alternative sentence.

He argued that, although the 10-20-Life statute1 in effect at the time the 

crime was committed included aggravated assault as an enumerated

offense requiring a three-year minimum mandatory sentence, the statute 

had subsequently been amended, and, as of the date set for sentencing,

no longer included aggravated assault as such an enumerated offense. 

The State responded that the amendment to the statute was not 

retroactive, and therefore, the court was required to sentence Reininger to 

the three-year minimum mandatory. 

A sentencing hearing was held in October 2017. In determining which 

version of section 775.087 to apply for sentencing, the trial court looked 

to the language of the statute, which stated that “a person who is convicted 

for aggravated assault . . . shall be sentenced to a minimum term of 

imprisonment of 3 years if such person possessed a ‘firearm’ or ‘destructive 

device’ during the commission of the offense.” § 775.087(2)(a)1., Fla. Stat. 

(2013) (emphasis added). Focusing on the term “convicted” in the statute, 

the trial court ruled:

I understand the State’s position. It is my duty to follow the 

law, interpret the statute, and clearly there is a distinction 

between the word “conviction” and “commission.” If the 

Legislature intended for the minimum mandatory to apply 

based upon the commission date of the offense, they would 

have used the word “commission” and not the word 

“conviction.” Mr. Reininger’s conviction came after the law 

was changed, where the Legislature decided to remove the 

crime of aggravated assault as an enumerated offense for the 

purposes of the three-year minimum mandatory. . . . I am 

going to follow the letter of the law, which mandates a 

minimum mandatory based upon a conviction date, not a 

commission date. 

The trial court then sentenced Reininger to a three-year term of 

probation, with certain conditions. The State gave notice of appeal.

Appellate Analysis

“The issue of whether [a statute] is applicable to cases pending at the 

time of its enactment is a pure question of law,” and therefore, subject to 

de novo review. Smiley v. State, 966 So. 2d 330, 333 (Fla. 2007). Likewise, 

1 Section 775.087, Florida Statutes (2013).
3

the interpretation of a sentencing statute is also reviewed de novo. See 

Paul v. State, 129 So. 3d 1058, 1061 (Fla. 2013). 

There is no question that the version of section 775.087 in effect on the 

date that Reininger committed the offense, January 2013, included 

aggravated assault as an enumerated offense to which a three-year 

minimum mandatory sentence was required. See § 775.087(2)(a), Fla. 

Stat. (2013). There is also no question that by the time Reininger was 

convicted (June 2017) and sentenced (October 2017) for the crime,2 the 

offense of aggravated assault was removed from the list of enumerated 

offenses. § 775.087(2)(a), Fla. Stat. (2017). Therefore, the question posed 

in this case, is simply which version of the statute applies. 

The trial court concluded that the statutory language “a person who is 

convicted for aggravated assault” indicated that the legislature intended 

that the statute in effect at the time of conviction was the proper statute to 

apply for sentencing. The trial court’s interpretation was erroneous. 

Article X, section 9, of the Florida Constitution, is commonly known as 

the “Savings Clause.” Horsley v. State, 160 So. 3d 393, 406 (Fla. 2015).

Our supreme court has expressly stated that “the purpose of the ‘Savings 

Clause’ is to require the statute in effect at the time of the crime to govern 

the sentence an offender receives for the commission of that crime.” Id.

(emphasis added). 

Article X, section 9 states that “[r]epeal or amendment of a criminal 

statute shall not affect prosecution or punishment for any crime previously 

committed.” Art. X, § 9, Fla. Const. A “criminal statute” has been defined 

as:

“[A]n act of the Legislature as an organized body relating to 

crime or its punishment . . . defining crime, treating of its 

nature, or providing for its punishment . . . [or] deal[ing] in any 

way with crime or its punishment.”

2 There were two other versions of section 775.087 that went into effect between 

the date Reininger committed the offense and the date on which he was convicted. 

Both versions also listed aggravated assault as an enumerated felony for the 

three-year minimum mandatory, however, both gave the trial court the discretion 

to not sentence a defendant to the three-year minimum mandatory if it found 

certain factors. See §§ 775.087(6), Fla. Stat. (2014) (eff. June 20-30, 2014), 

775.087(6), Fla. Stat. (2014) (eff. July 1, 2014-June 30, 2016).
4

Smiley, 966 So. 2d at 337 (alterations in original) (emphasis added)

(quoting Washington v. Dowling, 109 So. 588, 591 (1926)). Therefore, a 

sentencing statute prescribing the punishment for a crime, such as section 

775.087, qualifies as a “criminal statute” for purposes of applying Article 

X, section 9.

Additionally, “Florida courts have repeatedly held that this prohibition 

on retroactive application of statutes applies only to statutes that effect 

substantive change in the law; it has no application to changes in the law 

that are merely procedural or remedial.” Grice v. State, 967 So. 2d 957, 

960 (Fla. 1st DCA 2007) (emphasis in original). Changes to statutes 

affecting the sentencing for a criminal offense are substantive changes. Id.

(describing a change as procedural “rather than of substance” because “[i]t 

does not relate to the elements of an offense or the punishment therefor” 

(emphasis added)). 

Based on Article X, section 9, “Florida law provides that the 

punishment in effect at the time of the crime controls the penalty at 

sentencing. In fact, retroactive application of an amended or repealed 

statute affecting prosecution or punishment is unconstitutional.” State v. 

Pizarro, 383 So. 2d 762, 763 (Fla. 4th DCA 1980) (internal citation

omitted). This is true, under Article X, section 9 of the Florida 

Constitution, regardless of whether the amendment allows for a more 

favorable result to the defendant. See Hayes v. State, 452 So. 2d 656, 657 

(Fla. 2d DCA 1984) (“This provision [Article X, section 9] has been 

interpreted to mean that a defendant is not entitled to the benefit of a 

lesser sentence if the legislation reducing the statutory sentence is enacted 

after defendant commits the crime.”). Therefore, it is well-settled that 

retroactive application of a sentencing statute is unconstitutional. 

“Wherever possible, statutes should be construed in such a manner so 

as to avoid an unconstitutional result.” State v. Jefferson, 758 So. 2d 661, 

664 (Fla. 2000); see also Fla. Bar v. Sibley, 995 So. 2d 346, 350 (Fla. 2008) 

(“To the extent possible, courts have a duty to construe a statute in such 

a way as to avoid conflict with the Constitution.” (citing State v. Gale 

Distribs., 349 So. 2d 150, 153 (Fla. 1977))). If we were to construe the 

version of section 775.087 in effect at the time of conviction to apply to 

sentencing, rather than the version in effect at the time the crime was 

committed, such construction would violate Article X, section 9, and 

therefore, be unconstitutional. Cf. Smiley, 966 So. 2d at 337 (“Therefore, 

article X, section 9 of the Florida Constitution makes it constitutionally 

impermissible for section 776.013 to receive retroactive application.”). 
5

Judge Wolf’s concurring opinion in Wright v. State, 225 So. 3d 914 (Fla. 

1st DCA 2017), is instructive, specifically as to the amendment and 

application of section 775.087. There, he discussed the intermediate 

amendment to section 775.087, where the minimum mandatory for 

aggravated assault was made discretionary. Id. at 915 (Wolf, J., 

concurring). He explained that the fact that the defendant did not have 

the benefit of the discretionary version of the statute was a matter of “bad 

timing” for the defendant, since “the offense was committed prior to [the 

amendment to section 775.087].” Id. (emphasis added). Although not 

directly analyzing an argument of which version of the statute to apply, 

the First District affirmed the sentence based on the version of the statute 

in effect at the date of the offense. Id.

Therefore, the version of section 775.087 under which Reininger should 

be sentenced is the one in effect on the date that he committed the crime. 

Since that version clearly included aggravated assault as an enumerated 

offense carrying a three-year minimum mandatory sentence, the trial court 

was required to impose the mandatory minimum sentence. See State v. 

Calzada-Padron, 708 So. 2d 287, 287 (Fla. 2d DCA 1996) (“Since the 

appellee in the instant case was convicted of one of the enumerated

felonies in the statute and had in his possession a firearm, the trial court 

was required to sentence him to three years in state prison as the minimum 

sentence” (emphasis added)). We reverse and remand with instructions 

that the trial court sentence Reininger in accordance with this opinion.

Reversed and remanded with instructions.

LEVINE and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.