Luke Oliver Davis v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________

No. 1D2024-2407
_____________________________

LUKE OLIVER DAVIS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.
_____________________________

On appeal from the Circuit Court for Bay County.
Timothy Register, Judge.

June 17, 2026

BILBREY, J.

Appellant challenges his 150-month prison sentence following
his no contest plea to one count of lewd and lascivious battery in
violation of section 800.04(4), Florida Statutes (2020). We affirm
as explained below.

The victim was thirteen years old and Appellant twenty at the
time of the offense. In exchange for the plea, the State dismissed
two other counts of the same charge and dismissed a single count
of interfering with the custody of a minor. The plea agreement
provided that sentencing would be at the sole discretion of the
court. After conducting a colloquy, the sentencing court accepted
the plea and set a sentencing hearing.
Appellant sought a downward departure sentence under
section 921.0026, Florida Statutes (2020); that Appellant be
sentenced as a youthful offender under section 958.04; and that
the adult-on-minor sentencing multiplier in section 921.0024(1)(b)
not be imposed. In a sentencing memorandum and exhibits,
Appellant provided various bases to support his requests including
that his neurocognitive developmental disability meant that he
functioned at younger age socially and emotionally.

At the sentencing hearing, the court determined that there
was no statutory basis to override the adult-on-minor multiplier in
section 921.0024(1)(b). The court then heard testimony including
expert testimony about Appellant’s disability and that his capacity
to appreciate the nature of his criminal conduct was substantially
impaired. See § 921.026(2)(k), Fla. Stat. After hearing argument
from counsel, the sentencing court denied a downward departure
sentence or youthful offender sentencing. The court then imposed
a 150-month prison sentence, which was the lowest permissible
sentence on Appellant’s criminal punishment code scoresheet.

Following sentencing, Appellant moved to disqualify the
sentencing judge. Because the motion to disqualify did not toll the
time to file an appeal, Appellant thereafter filed his notice of
appeal. Appellant then filed a motion to have a new judge assigned
to his case because the sentencing judge did not rule on the motion
to disqualify within 30 days. See Fla. R. Gen. Prac. & Jud. Admin.
2.330(l).

After the successor judge was assigned, Appellant moved for
reconsideration on certain rulings by the sentencing judge. The
successor judge determined that he had no jurisdiction to consider
the motion because of the notice of appeal.

Appellant then filed a motion to correct sentencing error
under rule 3.800(b), Florida Rules of Criminal Procedure, claiming
the sentencing judge failed to permit Appellant his right of
allocution at sentencing. The successor judge denied the motion
finding that it was sufficient for the sentencing court to ask
defense counsel “if the defense had anything else it wanted to
address.”

2
Appellant filed a second rule 3.800(b) motion arguing error by
the sentencing court in applying the adult-on-minor scoresheet
multiplier. The successor judge denied that motion, and this
appeal followed.

Here, Appellant first argues that it was error when the
sentencing judge did not announce any reasons for denying the
requested downward departure sentence or youthful offender
sentence. Questions of law arising from sentencing are subject to
de novo review. Sanders v. State, 35 So. 3d 864, 868 (Fla. 2010).

Until very recently, whether Appellant’s claim is one of
sentencing error or an error in the sentencing process would
determine whether he is permitted to raise this issue on appeal.
See Emerson v. State, 412 So. 3d 917, 918–19 (Fla. 1st DCA 2025)
(holding that under the previous version of Rule of Appellate
Procedure, appeals claiming error in the sentencing process were
not permitted after a guilty or no contest plea). Following a rule
amendment effective as of June 1, 2026, after a defendant enters
a guilty or no contest plea, that defendant may appeal both a
“sentencing error, if preserved” and “an error in the sentencing
process, if preserved.” Fla. R. App. P. 9.140(2)(A)(ii)d.–e.; In re
Admin. to Fla. Rule App. P. 9.140, 428 So. 3d 85, 87 (Fla. 2026).
At sentencing, Appellant did not argue that a sentencing judge
must announce reasons for declining to impose a departure or
youthful offender sentence. Accordingly, regardless of whether
this claim is sentencing error or an error in the sentencing process,
those issues were not preserved, so we cannot consider them.

Even if preserved, failing to announce the reasons for
declining to impose a departure sentence or youthful offender
sentence would not be error. Section 921.002(1)(f), Florida
Statues, permits a court to impose a sentence below the guidelines.
But section 921.002(3) then states, “Any sentence imposed below
the lowest permissible sentence must be explained in writing by
the trial court judge.” Likewise, rule 3.703(d)(30)(A), Florida Rules
of Criminal Procedure, provides, “If a sentencing judge imposes a
sentence that departs from the recommended guidelines sentence,
the reasons for departure shall be orally articulated at the time
sentence is imposed.” The youthful offender statute also requires

3
a written explanation by the sentencing judge when a youthful
offender sentence is imposed. § 958.04(3), Fla. Stat.

But no rule or statute requires a sentencing court to set forth
its reasons for refusing to impose a departure or youthful offender
sentence. Barring some exceptions that do not apply here, a
sentencing court is allowed to “impose a sentence up to and
including the statutory maximum” with no requirement for
providing any explanation for such sentence. § 921.002(1)(g), Fla.
Stat.

“Had the trial court refused even to consider a departure
because of an erroneous conclusion about its authority to do so, the
refusal would have been an infringement of a statutory right, one
we then would have the authority to remedy.” Gazoombi v. State,
406 So. 3d 371, 379 (Fla. 1st DCA 2025) (en banc). The same is
true when a sentencing court has a “misapprehension of its
sentencing authority” under the youthful offender statute.
Stewart v. State, 201 So. 3d 1258, 1260 (Fla. 1st DCA 2016). But
we will not impose on the circuit courts a requirement in
pronouncing sentence beyond what the constitution, statutes, or
Rules of Criminal Procedure require.

Appellant next argues that it was error when the sentencing
court imposed the adult-on-minor multiplier, doubling the
sentence points on his scoresheet. Appellant’s second rule 3.800(b)
motion preserved this issue for our consideration. 1 This issue we
also review de novo. See State v. Hardley, 344 So. 3d 638, 640 (Fla.
1st DCA 2022) (“[W]here the issue presented is a pure question of
law involving statutory interpretation, the standard of review is de
novo.”).

Section 921.0024(1)(b), which contains the adult-on-minor
multiplier, is not a model of clarity. It provides in part:

Adult-on-minor sex offense: If the offender was 18
years of age or older and the victim was younger than 18

1 In Jackson v. State, 983 So. 2d 562, 572 (Fla. 2008),
scoresheet error was held to be sentencing error that could be
preserved with a motion under rule 3.800(b).

4
years of age at the time the offender committed the
primary offense, and if the primary offense was an offense
committed on or after October 1, 2014, and is a violation
of s. 787.01(2) or s. 787.02(2), if the violation involved a
victim who was a minor and, in the course of committing
that violation, the defendant committed a sexual battery
under chapter 794 or a lewd act under s. 800.04 or
s. 847.0135(5) against the minor; s. 787.01(3)(a)2. or 3.;
s. 787.02(3)(a)2. or 3.; s. 794.011, excluding
s. 794.011(10); s. 800.04; or s. 847.0135(5), the subtotal
sentence points are multiplied by 2.0. 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. (emphasis added).

Appellant relies on the italicized portion above to argue that
the multiplier only applies to cases in which a defendant sexually
abused a minor during a kidnapping or false imprisonment. He
argues that Ellison v. State, 268 So. 3d 1007 (Fla. 1st DCA 2019),
entitles him to relief.

In Ellison, we held that Ellison’s counsel was ineffective for
not objecting when the trial court applied the adult-on-minor
multiplier to Ellison’s conviction under Section 794.05, Florida
Statutes. 2 We held that “[t]he ‘adult-on-minor sex offense’
multiplier in section 921.0024(1)(b), Florida Statutes, applies only
to certain offenses listed in the statute” and that “sexual activity
under section 794.05, Florida Statutes, is not a listed offense.”
Ellison, 268 So. 3d at 1008. But in Ellison, we did not adopt the
argument that Appellant makes here that there must be a
kidnapping or false imprisonment for the multiplier to apply.

2 Section 794.05 makes it a second degree felony when “[a]

person 24 years of age or older . . . engages in sexual activity with
a person 16 or 17 years of age.”

5
In Millien v. State, 336 So. 3d 354, 355 (Fla. 4th DCA 2022),
the court rejected the argument Appellant makes here. Like
Appellant, Millien was convicted of lewd or lascivious battery on a
child as prohibited by section 800.04(4), Florida Statutes. In
Millien, the argument was that “the adult-on-minor multiplier was
not applicable to Millien’s sentencing because the multiplier
applies only when there has been a violation of either section
787.01(2) or section 787.02(2), Florida Statutes, and a violation of
one of the various sexual offenses listed.” 336 So. 3d at 357. The
Millien court disagreed, holding that “[t]he statute’s use of the
semi-colons and the final ‘or’ indicates that each portion between
the semi-colons is a separate category.” Id.

The Millien court also noted that Florida Rule of Criminal
Procedure 3.704(d)(24) lists the offenses that qualify for the adult-
on-minor multiplier separately, “making it clear that Millien’s
offenses qualify for the adult-on-minor multiplier.” Id. As the
Millien court noted, rule 3.704(d)(24) presents the crimes
mentioned in section 921.0024(1)(b) as a list. The format of this
list makes clear that the adult-on-minor applies to every offense
mentioned in 921.0024(1)(b), including lewd or lascivious battery
in violation of section 800.04. The rule states in part:

(24)(A) Adult on minor sex offense. The subtotal
sentence points are multiplied by 2.0 if:

(i) the offender was 18 years of age or older and the
victim was younger than 18 years of age at the time the
offender committed the primary offense; and

(ii) the primary offense . . . is a violation of:

....

e. section 800.04, Florida Statutes, (lewd or
lascivious offenses) . . .

Fla. R. Crim. P. 3.704(d)(24)(ii)a.–e.

We agree with Millien that the adult-on-minor multiplier
applies to a violation of section 800.04(4). This holding is
consistent with our opinion in Hayes v. State, 272 So. 3d 815, 818

6
(Fla. 1st DCA 2019), where we held the adult-on-minor multiplier
would have applied to a lewd and lascivious battery conviction but
for the fact that application of the multiplier would have exceeded
the statutory maximum, contrary to the last sentence of section
921.0024(1)(b). 3

Turning to Appellant’s final two claims of error, the claim that
he was denied the right to allocute in mitigation of sentence was
not preserved by the first rule 3.800(b) motion. Rule 3.800(b)
allows correction of “any sentencing error,” but Appellant’s claim
is a sentencing process error. See Emerson, 412 So. 3d at 920.
“[U]npreserved sentencing-process errors ‘may be considered on
appeal only if the error is fundamental.’” Id. (quoting Jackson, 983
So. 2d at 574). Here, there was no error, much less fundamental
error, since Appellant and his attorneys were allowed to provide
“submissions and evidence by the parties that are relevant to the
sentence.” Fla. R. Crim. P. 3.720(b); see also Jones v. State, 407
So. 3d 458, 460 (Fla. 4th DCA 2025).

Finally, the successor judge correctly determined that the
notice of appeal divested him of jurisdiction to consider Appellant’s
motion to reconsider his sentence. See Fla. R. App. P. 9.600(d);
Hester v. State, 312 So. 3d 173, 175 (Fla. 1st DCA 2021).

For the reasons above, Appellant’s sentence is therefore
AFFIRMED.

OSTERHAUS, C.J., and LEWIS, J., concur.

3 Millien disagreed with Hayes in its application of the
“exceeds the statutory maximum sentence” language in section
921.0024(1)(b) when applying the adult-on-minor multiplier in a
case where multiple counts were present. Millien, 336 So. 3d at
361. This disagreement on the meaning of “statutory maximum”
had been resolved after our decision in Hayes in State v. Gabriel,
314 So. 3d 1243, 1246 (Fla. 2021). However, since only a single
count is involved here, this distinction between Millien and Hayes
is immaterial.

7
_____________________________

Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________

William Mallory Kent of Kent & McFarland, Jacksonville, for
Appellant.

James Uthmeier, Attorney General, and Robert Charlie Lee,
Assistant Attorney General, Tallahassee, for Appellee.

8