FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-3466

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ALBERT JAMES HAYES, II,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Bay County.

Brantley S. Clark, Jr., Judge.

May 13, 2019

B.L. THOMAS, C.J.

Appellant was sentenced to more than 90 years in prison. He 

argues that the trial court erred by declining to apply a downwarddeparture sentence. He also argues that the court erred in 

applying the adult-on-minor sex offense multiplier, which 

effectively doubled his lowest permissible sentence. 

Facts

Following a jury trial, Appellant was found guilty of six counts 

of lewd or lascivious battery on a person older than age 12 but 

younger than age 16, with special findings of penetration as to each 

count. See § 800.04(4)(a), Fla. Stat. (2015). At the sentencing 

hearing, defense counsel asked for a downward-departure

sentence, asserting that the acts were entirely consensual, that 
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Appellant believed the victim was 17 years old, and that Appellant 

had little to no criminal record. 

The State argued that there was no legal basis for a downward 

departure, as consent would not be a defense even if the victim was

17 years old. The State produced a sentencing scoresheet that

applied a 2.0 multiplier for adult-on-minor sex offenses. See §

921.0024(1)(b), Fla. Stat. (2015). Without the multiplier,

Appellant’s sentencing points resulted in a 44.45-year lowest 

permissible sentence.1 With the multiplier, the subtotal 

sentencing points doubled. The trial court declined to depart from 

the lowest permissible sentence, applied the multiplier, and

sentenced Appellant to an aggregate sentence of 90.59 years in 

prison. Appellant filed a motion to correct sentencing error under 

Florida Rule of Criminal Procedure 3.800(b)(2), which the trial 

court denied.

Analysis

If a defendant asserts a valid basis for a downward departure 

and presents evidence to support that assertion, the trial court 

must then decide “whether it should depart, i.e., whether 

departure is indeed the best sentencing option for the defendant.” 

Banks v. State, 732 So. 2d 1065, 1068 (Fla. 1999) (emphasis in 

original). “This second aspect of the decision to depart is a 

judgment call within the sound discretion of the court and will be 

sustained on review absent an abuse of discretion.” Id. When 

considering whether to apply a downward departure sentence, a

trial court may consider introduced evidence that directly relates 

to the proposed basis for the downward departure. Barlow v. State, 

238 So. 3d 416, 417 (Fla. 1st DCA 2018) (finding no error in the 

trial court considering uncharged conduct that rebutted the 

defendant’s assertion that he was at low risk to reoffend).

Here, after considering defense counsel’s argument that the 

acts were consensual, the trial court declared, “I’m not convinced 

 1 Absent the multiplier, with 739.2 subtotal sentence points,

Appellant’s lowest permissible sentence would be calculated as

(739.2 - 28) × 0.75 = 533.4 months, or 44.45 years. See Fla. R. Crim. 

P. 3.990.
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from the testimony that I’ve heard that . . . the victim was a willing 

participant.” The 15-year-old victim did admit at trial to a 

generally consensual relationship with Appellant, but competent 

evidence was presented that the victim was not an entirely willing 

participant to the initial sex acts. She testified that she felt 

uncomfortable with the sexual activity and “wanted out.” The trial 

court had the authority to rely on this evidence to reject 

Appellant’s argument for a downward departure sentence.

Appellant’s scoresheet included 74 points for the primary 

offense (one of the lewd and lascivious batteries), plus 185 points 

for the secondary offenses (the other five lewd and lascivious 

batteries, at 37 points each). The scoresheet then added 480 victim 

injury points (six sexual penetrations at 80 points each), plus 0.2 

points for Appellant’s prior record. This resulted in 739.2 “subtotal 

sentence points.” See Fla. R. Crim. P. 3.990. The 2.0 adult-onminor sex offense multiplier was then applied, doubling the 739.2 

subtotal sentence points to 1,478.4 total sentence points, resulting

in a lowest permissible sentence of more than 90 years.

Appellant argues that the limiting clause in the multiplier 

statute prohibited the use of the multiplier in this case. He also 

argues that the multiplier was not intended to enhance multiple 

offenses, and that the legislature only contemplated less serious

crimes when creating the multiplier provision.

As an initial matter, the State makes an invited error 

argument, claiming that Appellant waived his challenges to the 

2.0 multiplier. We hold that Appellant did not waive this issue for 

appellate review. Unlike in Bolen v. State, 943 So. 2d 855, 856 

(Fla. 1st DCA 2006), where defense counsel affirmatively 

represented that the defendant had no objection to the facts 

underlying a sentencing enhancement, Appellant’s counsel did not 

agree that a 90.59-year sentence was proper, or that the adult-onminor sex offense multiplier should apply; counsel strongly argued 

against the sentence and multiplier. Defense counsel merely 

corrected the trial court’s misstatement that the total under the

scoresheet reflected a maximum sentence, when it actually 

represented the lowest permissible sentence.

We reject Appellant’s argument that the legislature intended 

for the multiplier to apply only to less serious crimes. Appellant 
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looks to the staff analysis for support, but the language of the 

statute itself clearly states that the multiplier applies to sexual 

batteries and other felony offenses. § 921.0024(1)(b), Fla. Stat.

(2015). If the multiplier only intended to enhance lesser crimes, 

the legislature would not have written the statute to include far 

more serious crimes.

However, the multiplier provision contains a limiting clause, 

stating: “If applying the multiplier results in the lowest 

permissible sentence exceeding the statutory maximum sentence 

for the primary offense under chapter 775, the court may not apply 

the multiplier and must sentence the defendant to the statutory 

maximum sentence.” § 921.0024(1)(b), Fla. Stat. (2015). Appellant 

argues that because his 90-year sentence with the multiplier 

applied exceeds the 15-year statutory maximum for his primary 

offense of lewd and lascivious battery, the trial court was not 

permitted to apply the multiplier and was instead required to 

sentence Appellant to a total of 15 years in prison, despite the 

recommended range of 44 to 90 years.

We interpret the limiting clause to provide that when the total 

result on the scoresheet, with the multiplier applied, exceeds the 

statutory maximum sentence for the primary offense, the 

sentencing court must not apply the multiplier and must impose 

the maximum sentence for the defendant’s primary offense, here 

Count One. The court must then look to the subtotal sentencing

points with all secondary offenses included, but without the 

multiplier, to determine the lowest permissible aggregate

sentence.2 

 2 We reject the State’s argument that the “results in” language 

in the multiplier limitation means “directly caused by applying the 

multiplier.” This interpretation would require courts to parse 

through scoresheet equations for the moment in the order of 

operations where some factor such as victim-injury points causes 

sentencing points to exceed the statutory threshold. Instead, we 

read the “results in” language to mean that after applying the 

multiplier, the court must look at the resulting lowest permissible 

sentence and see if that result exceeds the statutory maximum.
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Here, because the total resulting sentence with the multiplier

applied exceeded the statutory maximum sentence for Appellant’s

primary offense, the multiplier could not be applied, and the 

statutory maximum had to be imposed on the primary offense. See

§ 921.0024(1)(b), Fla. Stat. (2015). Thus, with 739.2 subtotal 

sentence points (without the inapplicable multiplier), Appellant 

should have been sentenced to a total aggregate sentence of at 

least 44.45 years in prison – the lowest permissible sentence 

without the 2.0 multiplier – on Counts One through Six, inclusive, 

and to 15 years in prison on his primary offense, Count One.3

Because the adult-on-minor sex offense multiplier should not 

have been applied here, we reverse and remand with instructions 

for the trial court to impose the maximum sentence of fifteen years 

in prison on Count One, and to impose a total aggregate sentence 

of no less than 44.45 years in prison, absent a downward-departure 

sentence. See Jackson v. State, 64 So. 3d 90, 93 (Fla. 2011) 

(“nothing within the CPC precludes the imposition of a downward 

departure sentence on resentencing following remand.”).

AFFIRMED in part, REVERSED in part, and REMANDED with

further instructions.

WETHERELL and WINSOR, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Andy Thomas, Public Defender, Kathleen Stover, Assistant Public 

Defender, Tallahassee, for Appellant.

 3 The trial court must impose a separate sentence on each 

count. See Gibson v. Fla. Dep’t of Corr., 828 So. 2d 422, 428 (Fla. 

1st DCA 2002) (“A general sentence for multiple offenses is 

improper.”).
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Ashley Moody, Attorney General, Anne C. Conley, Assistant 

Attorney General, Tallahassee, for Appellee.