Filed: Jun. 06, 2018
Latest Update: Mar. 03, 2020
Summary: Third District Court of Appeal State of Florida Opinion filed June 6, 2018. Not final until disposition of timely filed motion for rehearing. _ No. 3D17-2146 Lower Tribunal No. 07-43499 _ Elton Graves, Appellant, vs. The State of Florida, Appellee. An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Ellen Sue Venzer, Judge. Elton Graves, in proper person. Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for
Summary: Third District Court of Appeal State of Florida Opinion filed June 6, 2018. Not final until disposition of timely filed motion for rehearing. _ No. 3D17-2146 Lower Tribunal No. 07-43499 _ Elton Graves, Appellant, vs. The State of Florida, Appellee. An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Ellen Sue Venzer, Judge. Elton Graves, in proper person. Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for a..
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Third District Court of Appeal
State of Florida
Opinion filed June 6, 2018.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D17-2146
Lower Tribunal No. 07-43499
________________
Elton Graves,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Ellen Sue Venzer, Judge.
Elton Graves, in proper person.
Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney
General, for appellee.
Before SALTER, EMAS and LOGUE, JJ.
PER CURIAM.
Elton Graves appeals the denial of his motion under Florida Rule of
Criminal Procedure 3.800 for the correction of a life sentence of imprisonment he
contends is illegal. Finding his position well taken, we reverse and remand the
case for resentencing.
I. Procedural History and Life Sentence on Count 1
In an amended information filed in February 2010, Graves was charged with
four counts: (1) attempted second degree murder of a law enforcement officer
engaged in the lawful performance of his duty; (2) resisting a law enforcement
officer with violence; (3) attempting to deprive a law enforcement officer of the
officer’s weapon; and (4) assault on a law enforcement officer. The alleged crime
date was December 12, 2007. Before trial, the State dismissed count 4.
Following a jury trial, Graves was convicted of counts 1 and 2 and acquitted
as to count 3. Graves was adjudicated a habitual felony offender (“HFO”). He
was sentenced to life imprisonment on count 1 and ten years on count 2. At the
sentencing hearing, the State and defense both represented to the trial court1 that
the maximum sentence on count 1 as an HFO was thirty years, with a ten year
concurrent sentence as an HFO on count 2. The trial court recessed the sentencing
hearing to allow the State and defense to consider the trial court’s reading of the
applicable statutes and conclusion that the maximum sentence on count 1 was life.
1 The Judge who heard the 2017 motion under rule 3.800 was a successor to the
Judge who tried the case and sentenced Graves.
2
After that recess, the State and defense continued to agree that the maximum
punishment for count 1 was 30 years.2 On the second page of the sentencing
scoresheet, the “maximum sentence in years” was entered in handwriting to
indicate “30 as HO.” Construing section 775.0823, Florida Statutes (2007), the
trial court again concluded that the maximum sentence on count 1 was life and
imposed that sentence.
In Graves’ appeal from the conviction and sentence,3 the Office of the
Public Defender did not raise the count 1 sentencing issue. In 2012 and 2014,
Graves filed pro se post-conviction motions in the trial court alleging that his count
1 sentence was illegal. In February 2013, the trial court denied the 2012 motion,
concluding that:
The trial court utilized Florida Statutes 782.04 and 775.0823 in
determining the range of punishment available to the defendant at
sentencing. The trial court further determined that in the instant case
the Attempted Second Degree Murder of a Law Enforcement
conviction was a first degree felony punishable by life when
interpreting Florida Statutes 775.0823 and 782.04 together. As such,
the defendant’s enhancement as a Habitual Offender lawfully made
his possible sentencing range up to Life Imprisonment. As such, the
trial court’s imposition of a Life Sentence in State Prison as a Habitual
Offender of count One of the Information was not in error and was
permissible.
2 The State advised the trial court after the recess that there was a “loophole in the
statute.”
3 Graves v. State, 77 So. 3d 1269 (Fla. 3d DCA 2011) (per curiam affirmed).
3
The defendant did not appeal the trial court’s denial of his 2012 motion. In
2014, Graves filed a second motion under rule 3.800(a) that conceded the motion
was successive, but contended that the manifest injustice of the illegal life sentence
merited relief. The trial court adopted the State’s response that the motion was
successive and, because the first order had not been appealed, it was barred as a
matter of collateral estoppel. Graves’ appeal to this Court was unsuccessful.4
The motion under rule 3.800 at issue in the present case was filed in 2017.
It raised again the alleged illegality of the life sentence imposed as to count 1. The
trial court denied the motion on three grounds: (1) collateral estoppel, based on the
consideration and denial of his prior motions; (2) Graves’ was properly adjudicated
and sentenced as an HFO; and (3) Graves was given proper notice of the State’s
intention to seek HFO sentencing. This appeal followed.
II. Analysis
We affirm without additional comment the trial court’s rulings on the
propriety of notice and adjudication regarding Graves’ status as an HFO. The first
issue is more complex. We are not precluded from review of the legality of
Graves’ life sentence on count 1 despite his prior unsuccessful motions on that
issue. State v. Akins, 69 So. 3d 261, 268 (Fla. 2011) (“Under Florida law,
appellate courts have ‘the power to reconsider and correct erroneous rulings [made
4 Graves v. State,
150 So. 3d 1154 (Fla. 3d DCA 2014) (per curiam affirmed).
4
in earlier appeals] in exceptional circumstances and where reliance on the previous
decision would result in manifest injustice’” (quoting Muehleman v. State, 3 So.
3d 1149, 1165 (Fla. 2009) (alteration in original)). See also Parker v. State,
873
So. 2d 270, 278 (Fla. 2004).
A. The Pertinent Statutes as of 2007
The statutory issue confronted by counsel for the State and for Graves at the
2010 sentencing hearing—the subject of a recess in that hearing to permit counsel
to consider the trial court’s analysis (which, as noted, counsel for both the State
and Graves were unwilling to endorse)—arises because of four separate statutes
and the history of section 775.0823.
First, section 782.04(2), Florida Statutes (2007),5 defines second degree
murder and provides that the completed offense “constitutes a felony of the first
degree, punishable for a term of years not exceeding life or as provided in s.
775.082, s. 775.083, or 775.084.” Second, section 777.04(4)(c) applies to an
attempted second degree murder, classifying the offense(one degree lower than the
completed offense) as “a felony of the second degree, punishable as provided in s.
775.082, 775.083, or s. 775.084.”
Third, section 775.084 addresses, among other things, the procedure for, and
consequences of, adjudication of a defendant as an HFO. Subparagraph (4)(a)2 of
5 Each of the statutory sections cited in this portion of the opinion is as in effect at
the time of the offense, December 2007.
5
that statute provides that a court may sentence an HFO, in the case of a felony of
the second degree, “for a term of years not exceeding 30.” Thus, under these three
provisions, it is clear that Graves’ maximum sentence for attempted second-degree
murder would be 30 years as an HFO. However, Graves was convicted of
attempted second-degree murder of a law enforcement officer, and the question
presented in this case is whether, and the extent to which, his maximum sentence is
impacted by section 775.0823, Florida Statutes (2007). The version of that statute
applicable to Graves’ 2007 crime provides in full as follows:
The Legislature does hereby provide for an increase and certainty of
penalty for any person convicted of a violent offense against any law
enforcement or correctional officer, as defined in s. 943.10(1), (2), (3),
(6), (7), (8), or (9); against any state attorney elected pursuant to s.
27.01 or assistant state attorney appointed under s. 27.181; or against
any justice or judge of a court described in Art. V of the State
Constitution, which offense arises out of or in the scope of the
officer's duty as a law enforcement or correctional officer, the state
attorney's or assistant state attorney's duty as a prosecutor or
investigator, or the justice's or judge's duty as a judicial officer, as
follows:
(1) For murder in the first degree as described in s. 782.04(1), if
the death sentence is not imposed, a sentence of imprisonment for life
without eligibility for release.
(2) For attempted murder in the first degree as described in s.
782.04(1), a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(3) For attempted felony murder as described in s. 782.051, a
sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(4) For murder in the second degree as described in s. 782.04(2)
and (3), a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
6
(5) For attempted murder in the second degree as described in s.
782.04(2) and (3), a sentence pursuant to s. 775.082, s. 775.083, or s.
775.084.
(6) For murder in the third degree as described in s. 782.04(4), a
sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(7) For attempted murder in the third degree as described in s.
782.04(4), a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(8) For manslaughter as described in s. 782.07 during the
commission of a crime, a sentence pursuant to s. 775.082, s. 775.083,
or s. 775.084.
(9) For kidnapping as described in s. 787.01, a sentence
pursuant to s. 775.082, s. 775.083, or s. 775.084.
(10) For aggravated battery as described in s. 784.045, a
sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(11) For aggravated assault as described in s. 784.021, a
sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
Notwithstanding the provisions of s. 948.01, with respect to any
person who is found to have violated this section, adjudication of guilt
or imposition of sentence shall not be suspended, deferred, or
withheld.
Section 775.0823 purports to establish “an increase and certainty of penalty”
for any person convicted of a violent offense against law enforcement officers and
other defined categories of individuals in the judicial, law enforcement, and
corrections system. Section 775.0823(5) states “For attempted murder in the
second degree as described in s. 782.04(2) and (3), a sentence pursuant to s.
775.082, s. 775.083, or s. 775.084.”
7
Here is the problem. Although section 775.0823(5) addresses attempted
second degree murder, the modifier “as described in s. 782.04(2)” relates to the
completed crime of second degree murder, not an attempt. It appears from the
sentencing transcript that the trial court believed that section 775.0823(5) was, in
effect, a reclassification statute, requiring the trial court to treat defendant’s
conviction for attempted second-degree murder (a second-degree felony) as if it
was the completed crime of second-degree murder (a first degree felony
punishable by life). In doing so, the court concluded that the life sentence was
mandated by section 775.0823 and its preamble, “to provide for an increase and
certainty of penalty for any person convicted of a violent offense against any [law
enforcement officer].” However, upon our de novo review of the statutory
language, as well as the history of the legislative changes to that statute, we
conclude that section 775.0823(5) does not authorize the trial court to “reclassify”
the crime of attempted second-degree murder from a second-degree felony to a
first-degree felony punishable by life by treating attempted second-degree murder
as if it was a completed crime of second-degree murder.
In this particular case, we harmonize, to the extent we can, the apparent
inconsistency between sections 775.0823(5) and 777.04(4)(c), by reviewing the
original version of section 775.0823 and its subsequent amendments, and by
applying well-established rules of statutory construction. As a result, we conclude
8
that we cannot ignore the command of section 777.04(4)(c), which reduces
Graves’ base offense (second degree murder) from a felony of the first degree
punishable by life to a felony of the second degree when the crime charged is
merely attempted but not completed. We also cannot ignore the anomalous
treatment of both an attempted second degree murder of a law enforcement officer
and a completed second degree murder of a law enforcement officer as equivalent
offenses for sentencing purposes under the interpretation applied by the trial court.
The trial court read section 775.0823 to mean that an “attempted second
degree murder” committed upon a law enforcement officer must be treated for
sentencing purposes as a “second degree murder” committed upon a law
enforcement officer. The trial court concluded this was the only way to give
proper meaning to that statute’s introductory language of intent: “The Legislature
does hereby provide for an increase and certainty of penalty for any person
convicted of a violent offense against any law enforcement or correctional officer .
. . .” § 775.0823 (emphasis provided).
However, we do not agree with the trial court’s statutory construction, and
we conclude that the confusion engendered by the above-quoted language of
statutory intent stems from the statutory amendments following its original
enactment.
B. Original Enactment of Section 775.0823
9
Section 775.0823 of the Florida Statutes was first enacted in 1989 as part of
the “Law Enforcement Protection Act.” See Ch. 89-100, § 1, Laws of Fla. Section
775.0823, as originally enacted, provided in pertinent part:
Any provision of law to the contrary notwithstanding, the Legislature
does hereby provide for an increase and certainty of penalty for any
person convicted of a violent offense against any law enforcement or
correctional officer. . . . by imposing a mandatory minimum sentence
without possibility of early release through any gain-time, provisional
release credits, conditional release supervision, supervised community
release, transition assistance program, or parole during the mandatory
minimum portion of the sentence, as follows:
(1) For murder in the first degree as described in s. 782.04(1), if
the death sentence is not imposed, a sentence of imprisonment for life
without eligibility for release shall be imposed.
(2) For murder in the second degree as described in s. 782.04(2)
and (3), a sentence of imprisonment for 25 years before eligibility for
release shall be imposed.
(3) For murder in the third degree as described in s. 782.04(4), a
sentence of imprisonment for 15 years before eligibility for release
shall be imposed.
(4) For manslaughter as described in s. 782.07 during the
commission of a crime, a sentence of imprisonment for 10 years
before eligibility for release shall be imposed.
(5) For kidnapping as described in s. 787.01, a sentence of
imprisonment for 15 years before eligibility for release shall be
imposed.
(6) For aggravated battery as described in 784.045, a sentence
of imprisonment for 3 years before eligibility for release shall be
imposed.
10
(7) For aggravated assault as described in s. 784.021, a sentence
of imprisonment for 1 year before eligibility for release shall be
imposed.
Any person convicted of an offense under this section is ineligible to
receive provisional release credits during any portion of his sentence.
Notwithstanding the provisions of s. 948.01, with respect to any
person who is found to have violated this section, adjudication of guilt
or imposition of sentence shall not be suspended, deferred, or
withheld.
(Emphasis provided.)
As even a cursory reading reveals, the statute as originally enacted did
indeed “provide for an increase and certainty of penalty” for certain offenses
committed against law enforcement officers, by (1) establishing mandatory
minimum penalties and (2) eliminating eligibility for provisional release credits for
any person convicted and sentenced under this section.
C. The 1993 Amendment
This statute was amended on several occasions in the intervening years. For
our purposes, however, the first pertinent amendment occurred in 1993, following
Florida’s adoption of sentencing guidelines. See Ch. 93-406, § 16, Laws of Fla.
Consistent with the adoption of sentencing guidelines, the Legislature amended
section 775.0823 in two important ways, by: (1) removing all mandatory minimum
sentences provided in the original 1989 version of the statute; and (2) requiring
that all sentences for violation of this section be imposed “pursuant to the
sentencing guidelines.” Additionally and importantly, the Legislature in 1993 also
11
amended the sentencing guidelines provisions (section 921.0014) and created a
sentencing guidelines worksheet. In doing so, the Legislature added a so-called
“Law Enforcement Multiplier.” See Ch. 93-406, § 12, Laws of Fla. This
multiplier significantly increased the number of sentencing points to be assessed
against a defendant convicted of a violent offense against a law enforcement
officer:
Law enforcement protection: If the primary offense is a violation of
the Law Enforcement Protection Act under s. 775.0823(2), (3), (4), or
(5), then the subtotal sentence points are multiplied by 2.0. If the
primary offense is a violation of s. 775.087(2)(a)2. or s. 775.0875(1),
or of the Law Enforcement Protection Act under s. 775.0823(6) or (7),
then the subtotal sentence points are multiplied by 1.5.
§ 921.0014 (emphasis provided).6
As a result of the implementation of sentencing guidelines and the creation
of the “Law Enforcement Multiplier,” mandatory minimum sentences were no
longer part of the framework of section 775.0823, and the Legislature therefore
removed that portion of the introductory language of the 1989 version of the
statute addressing mandatory minimum sentencing, but chose to retain the general
intent language. Below is the 1993 amended version of section 775.0823, with the
deleted language bracketed and underscored for ease of reference:
Any provision of law to the contrary notwithstanding, the Legislature
does hereby provide for an increase and certainty of penalty for any
6 Again, a multiplier of 2.0 was used on Graves’ sentencing scoresheet in the
present case.
12
person convicted of a violent offense against any law enforcement or
correctional officer . . . [by imposing a mandatory minimum sentence
without possibility of early release through any gain time, provisional
release credits, conditional release supervision, supervised community
release, transition assistance program, or parole during the mandatory
minimum portion of the sentence,] as follows:
(1) For murder in the first degree as described in s. 782.04(1), if the
death sentence is not imposed, a sentence of imprisonment for life
without eligibility for release [shall be imposed].
(2) For murder in the second degree as described in s. 782.04(2) and
(3), a sentence pursuant to the sentencing guidelines [of imprisonment
for 25 years before eligibility for release shall be imposed].
(3) For murder in the third degree as described in s. 782.04(4), a
sentence pursuant to the sentencing guidelines [of imprisonment for
15 years before eligibility for release shall be imposed].
(4) For manslaughter as described in s. 782.07 during the commission
of a crime, a sentence pursuant to the sentencing guidelines [of
imprisonment for 10 years before eligibility for release shall be
imposed].
(5) For kidnapping as described in s. 787.01, a sentence pursuant to
the sentencing guidelines [of imprisonment for 15 years before
eligibility for release shall be imposed].
(6) For aggravated battery as described in s. 784.045, a sentence
pursuant to the sentencing guidelines [of imprisonment for 3 years
before eligibility for release shall be imposed].
(7) For aggravated assault as described in s. 784.021, a sentence
pursuant to the sentencing guidelines [of imprisonment for 1 year
before eligibility for release shall be imposed].
[Any person convicted of an offense under this section is ineligible to
receive provisional release credits during any portion of his sentence.]
Notwithstanding the provisions of s. 948.01, with respect to any
person who is found to have violated this section, adjudication of guilt
13
or imposition of sentence shall not be suspended, deferred, or
withheld.
D. The 2001 Amendment
Section 775.0823 has been further amended over the years, to comport with
corresponding changes to the sentencing guidelines, and to add certain offenses
subject to sentencing under this statute. In 2001, however, the Legislature
eliminated reference to the sentencing guidelines (and the later-enacted Criminal
Punishment Code) and simply declared that (other than first-degree murder) all
sentences for a violation of this section shall be imposed “pursuant to s. 775.082, s.
775.083, or s. 775.084” of the Florida Statutes. The 2001 version (the version
applicable on December 12, 2007, the date of Graves’ crime) reads in full as
shown in section II.A. of this opinion, with this introductory phrase:
The Legislature does hereby provide for an increase and certainty
of penalty for any person convicted of a violent offense against
any law enforcement or correctional officer. . . .
We highlighted and underscored that introduction, as it was contained in the
original 1989 version of the statute and has somehow survived all of the
subsequent amendments. However, it can best be characterized as vestigial, given
that the statute no longer contains the mandatory minimum provisions or
prohibition against early release or provisional release credits, which served to
implement the 1989 version’s expressed legislative intent. In other words, and
notwithstanding its introductory language, the only “increase and certainty of
14
penalty” that exists for offenses under section 775.0823 is the “Law Enforcement
Multiplier” provided in section 921.0014 (2001) and Florida Rule of Criminal
Procedure 3.704(20).
E. This Case
The trial court in the present case, in an understandable effort to give
meaning to the statutory language “increase and certainty of penalty,” construed
the statutory language as requiring the trial court to treat attempted second-degree
murder of a law enforcement officer (a second degree felony punishable by up to
15 years in prison (up to 30 years in the case of an HFO)) as if it was a completed
second-degree murder (a first degree felony punishable by up to life). This was
error. The statute did not, in any of its iterations, expressly or implicitly reclassify
an attempted second-degree murder in this fashion.
The Legislature certainly knows what language to use in reclassifying an
offense to a higher degree. See, e.g., § 874.04, Fla. Stat. (2018) (“Upon a finding
by the factfinder that the defendant committed the charged offense for the purpose
of benefiting, promoting, or furthering the interests of a criminal gang,” the penalty
may be enhanced; section 2(b) of that statute specifies that “A felony of the second
degree may be punished as if it were a felony of the first degree.”). Similarly, see
§ 775.087, Fla. Stat. (2018) (“Possession or use of weapon; aggravated battery;
felony reclassification; minimum sentence.”).
15
But section 775.0823 contains no equivalent language that could reasonably
be construed as reclassifying an attempted crime to a higher degree offense by
treating it as if it were a completed crime. The “increase and certainty of penalty”
language is a holdover from the originally-enacted version of the statute, and the
only rational conclusion, based on the statute’s history as described herein, is that
the continued presence appears to be an oversight in the legislative amendatory
process.7
It is of course “well settled that legislative intent is the polestar that guides a
court’s statutory construction analysis[,]” Knowles v. Beverly Enters.-Fla., Inc.,
898 So. 2d 1, 5 (Fla. 2004), and our starting point is the actual language used by
the legislature.
We also recognize it is “the general rule, construing statutes, ‘that
construction is favored which gives effect to every clause and every part of the
statute, thus producing a consistent and harmonious whole. A construction which
would leave without effect any part of the language used should be rejected, if an
interpretation can be found which will give it effect.’ ” Quarantello v. Leroy, 977
So. 2d 648, 652 (Fla. 5th DCA 2008) (citing Goode v. State,
39 So. 461, 463 (Fla.
1905)) (additional citations omitted).
7A review of the legislative history and staff analysis of the amendments to section
775.0823 provides no additional guidance or insight.
16
We cannot ignore the expression of legislative intent that has been carried
over from its original enactment in 1989 to the 2007 version applicable to the case
before us. However, neither can we ignore the very obvious fact that the
intervening amendments removed those provisions which fulfilled and
implemented that intent to create an “increase and certainty of penalty.” Stated
simply, the 2007 version, while still containing that language of intent, no longer
contains any provision to effectuate that intent. Even if we were to find that the
language relied upon by the trial court was ambiguous and susceptible to differing
reasonable interpretations, we would apply, as a canon of last resort, the rule of
lenity provided in section 775.021(1): “The provisions of this code and offenses
defined by other statutes shall be strictly construed; when the language is
susceptible of differing constructions, it shall be construed most favorably to the
accused.”
We conclude that the trial court’s construction of the statute, equating
attempted second-degree murder or a law enforcement officer to the completed
crime of second-degree murder, is an unreasonable construction not supported by a
plain reading of the statutory language. Instead, the only reasonable construction,
consistent with the plain language and the statute’s amendatory history, is that the
reference to “attempted murder in the second degree as described in s.782.04(2)” is
merely a reference to the only statutory provision where the offense of second
17
degree murder and its constituent elements is set forth. Had the Legislature
intended that the crime of attempted second degree murder of a law enforcement
officer (or any other enumerated attempted offense under section 775.0823) be
treated for sentencing purposes as a completed offense, it surely would have said
so.8 The statute, which contains the same expression of legislative intent as that in
the original version enacted in 1989, no longer contains the accompanying
provisions that implemented such intent. In the absence of any statutory language
which actually provides for an increase or certainty in penalty, we find that Graves
was convicted of a second degree felony and, as an HFO, was subject to a
maximum sentence of 30 years in prison. The sentence of life in prison as an HFO
was therefore illegal.
Noting the difficulty encountered by the State and defense counsel, as well
as the trial judge, with this conflict in the criminal code provisions described in this
opinion, we direct the Clerk to forward a copy of this opinion to the Chief of
8 Adopting the trial court’s construction of section 775.0823 would lead to this
unreasonable result: a conviction for attempted first-degree murder of a law
enforcement officer under section 775.0823(2) would be treated as a conviction for
first-degree murder and reclassified to a capital felony punishable by death (see
sections 782.04(1); 775.082(1)(a)-(b)). However, a statute that subjects a
defendant convicted of a nonhomicide to the death penalty has been held
unconstitutional. See Kennedy v. Louisiana, 554 U.S. 407 (2008) (holding the
Eighth Amendment prohibits imposition of the death penalty for the rape of a child
where the crime did not result, and was not intended to result, in the death of the
victim).
18
Legislative Affairs, Office of the State Courts Administrator, to be considered in
the annual statutory clarification process.
Based on the foregoing, we reverse the order denying Graves’ motion and
remand for a resentencing, at which Graves is entitled to be present, consistent
with this opinion.
19
