Monday, August 3, 2015

Early Termination of Probation of Community Control

Hon. William H. Burgess, III

A court may at any time cause a probationer or offender in community control to appear before it to be admonished or commended, and, when satisfied that its action will be for the best interests of justice and the welfare of society, it may discharge the probationer or offender in community control from further supervision.1 If the probationer has performed satisfactorily, has not been found in violation of any terms or conditions of supervision, and has met all financial sanctions imposed by the court, including, but not limited to, fines, court costs, and restitution, the Department of Corrections may recommend early termination of probation to the court at any time before the scheduled termination date.2 In the case of community control, the trial court may grant “rollover” (conversion to probation) prior to the expiration of the term of community control or termination of community control if the court is satisfied that the defendant has met all conditions.3 The authority conferred upon the trial court to terminate probation or community control is a matter of grace.4 Thus, the court’s decision to grant or deny a motion for early termination is not appealable.5 The State, in particular, has no right under section 924.07(1)6 or its procedural counterpart Rule 9.140(c)7 to appeal an order granting early termination of probation, regardless of what the parties had agreed to in the initial plea, thus rendering “no early termination” agreements utterly unenforceable as a matter of law.8 In this regard, that a trial court is also not authorized to impose a special condition of supervision that purports to divest the Department of Corrections of its statutory authority to recommend early termination of probation or community control.9 Note, however, that the filing of a notice of appeal divests the court of jurisdiction to terminate probation or community control.10


1§ 948.05, Fla. Stat.

2§ 948.04(3), Fla. Stat.

3§ 948.05, Fla. Stat.

4State v. M.R.T., 848 So. 2d 467 (Fla. 5th DCA 2003).

5Burgos v. State, 765 So. 2d 967 (Fla. 4th DCA 2000); see also Thompson v. State, 840 So. 2d 352 (Fla. 5th DCA 2003).

6§ 924.07(1), Fla. Stat.

7Fla. R. App. P. 9.140(c).

8LaFave v. State, 149 So. 3d 662 (Fla. 2014).

9§ 948.04(3), Fla. Stat.; Hopps v. State, — So. 3d —, 2015 WL 493182 (Fla. 2d DCA 2015); Murphy v. State, 976 So. 2d 1242, 1243 (Fla. 2d DCA 2008).

10 6 State v. M.R.T., 848 So. 2d 467 (Fla. 5th DCA 2003); Britt v. State, 687 So. 2d 930 (Fla. 5th DCA 1997); Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991).

Upward Departure Under the Criminal Punishment Code for Third Degree Felonies That Are Not Forcible Felonies

Hon. William H. Burgess, III

The general presumption under Florida’s Criminal Punishment Code (CPC) is that only those offenders scoring 44 or less points on the sentencing scoresheet may receive a non-state prison sanction, absent the sentencing court imposing a downward departure.  A further presumption is that, under the CPC, the sentencing judge can impose as a lawful sentence any amount of incarceration up to the statutory maximum for any offense before the court for sentencing under the CPC.  The CPC has, in almost every aspect, eliminated the “upward departure” of the former determinate guidelines sentencing schemes and replaced it with an indeterminate sentencing scheme in which the judge is free to sentence up to the statutory maximum without having to provide written reasons for doing so.

A statutory exception to indeterminate sentencing under the CPC is found in section 775.082(10), Fla. Stat.  Under that section, if a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third-degree felony but not a forcible felony as defined in section 776.08, and excluding any third-degree felony violation under chapter 810, and if the total sentence points pursuant to section 921.0024 are 22 points or fewer, the court must sentence the defendant to a nonstate prison sanction.  However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to section 775.082.1

 The “danger” may, at least in some cases, encompass pecuniary or economic harm.2

Further Mitigation of a Youthful Offender Sentence Through Completion of a Basic Training “Boot Camp” Program

Hon. William H. Burgess, III, B.C.S.

A way of further mitigation of a Youthful Offender (YO) sentence is through successful completion of a basic training, or “boot camp,” program run by the Department of Corrections (DOC), or a county of the state, authorized under section 958.04(4).1

DOC is required to develop and implement a basic training program for youthful offenders sentenced or classified by the department as youthful offenders pursuant to chapter 958.  The period of time to be served at the basic training program must be no less than 120 days.2  The program is required to include marching drills, calisthenics, a rigid dress code, manual labor assignments, physical training with obstacle courses, training in decisionmaking and personal development, high school equivalency diploma and adult basic education courses, and drug counseling and other rehabilitation programs.3

Sunday, August 2, 2015

Downward Departure Sentencing Where the Defendant Cooperated With the State to Resolve the Current Offense or Any Other Offense

Hon. William H. Burgess, III, B.C.S.

The sentencing court can mitigate a presumptive prison sentence for which there is no applicable minimum mandatory non-minimum mandatory where the defendant cooperated with the State to resolve the current offense or any other offense.1 In applying this basis to depart, the court must make a finding based on competent substantial evidence that a crime, or crimes, had been resolved as a result of the defendant’s cooperation.2 A resolution implies that a decision or determination has been made, such as the filing of charges or the closing of a case.3 “Cooperation with the State” was originally intended for those situations when there are multiple codefendants and one makes a deal with the State Attorney to assist in the prosecution of the other codefendants, and was not for application to persons who simply cooperated with law enforcement.4 Cooperation with the State has since come to mean cooperation with law enforcement, and not just cooperation with the prosecutor.5

Downward Departure Sentencing Where the Need for Payment of Restitution to the Victim Outweighs the Need for a Prison Sentence

Hon. William H. Burgess, III, C.B.E.

Consistent with the Fourteenth Amendment of the United States Constitution, when deciding what sentence to initially impose, a sentencing judge may consider the entire background of a defendant, including employment history, financial resources, and ability to make restitution. The Constitution does not preclude a judge from actively using the sentencing process to encourage payment of restitution to victims of crimes, nor does it prevent a judge from showing mercy by reducing the severity of a previously imposed legal sentence.1

In weighing the need for restitution versus the need for imprisonment, a court must take into consideration all of the relevant factors, including the victim’s need for restitution and the defendant's ability to pay. Evidence in support of restitution includes findings such as the nature of the victim’s loss, the effectiveness of restitution, and the consequences of imprisonment.2 The amount of restitution due must be substantial and not be minor.3 The victim must have a “pressing need” to recover the restitution amount specified.4

Saturday, August 1, 2015

Transfer From a County for Plea, Sentence, or Participation in a Problem-Solving Court

Hon. William H. Burgess, III, B.C.S.

A defendant arrested or held in a county other than that in which an indictment or information is pending against him or her may state in writing that he or she wishes to plead guilty or nolo contendere, to waive trial in the county in which the indictment or information is pending, and to consent to disposition of the case in the county in which the defendant was arrested or is held, subject to the approval of the prosecuting attorney of the court in which the indictment or information is pending.  Upon receipt of the defendant’s statement and the written approval of the prosecuting attorney, the clerk of the court in which the indictment or information is pending must transmit the papers in the proceeding, or certified copies thereof, to the clerk of the court of competent jurisdiction for the county in which the defendant is held, and the prosecution must continue in that county upon the information or indictment originally filed.  In the event a fine is imposed upon the defendant in that county, two-thirds thereof must be returned to the county in which the indictment or information was originally filed.1

A Criminal Defendant's Right of Allocution at Sentencing

Hon. William H. Burgess, III, B.C.S.

In Florida, a criminal defendant prior to sentencing has the opportunity to make an unsworn statement without restraint to the sentencing judge in allocution.  The opportunity of the defendant to allocute gives the defendant a chance to express to the sentencing judge any additional information that will aid the court in making a sound and reasoned judgment as to the appropriate sentence to be imposed on the convicted defendant.1  Florida Rule of Criminal Procedure 3.720(b) specifically provides that the sentencing court “shall entertain submissions and evidence by the parties that are relevant to the sentence.”2  The language of the rule is mandatory,3 and under this rule, the defendant is entitled to make a statement and present argument to the court.4  The sentencing court cannot deny a defendant an opportunity to make such a statement before sentencing.5 The court cannot impose sentence without letting the defendant read his or her entire prepared statement at the sentencing hearing.6  Note that, while allocation is unsworn and cannot be compelled to be under oath outside the terms of a plea agreement, the court can require the defendant to be under oath if he or she offering testimony to a jury or to the judge on a sentencing departure issue.7


1Jean-Baptiste v. State, 155 So. 3d 1237 (Fla. 4th DCA 2015).

2Fla. R. Crim. P. Rule 3.720(b).

3Culbertson v. State, 306 So. 2d 142, 143 (Fla. 2d DCA 1975) (citing Mask v. State, 289 So. 2d 385, 387 (Fla.1973)).

4Davenport v. State, 787 So. 2d 32, 32 (Fla. 2d DCA 2001).

5Ventura v. State, 741 So.2d 1187 (Fla. 2d DCA 1999).

6Hodierne v. State, 141 So. 3d 1254 (Fla. 2d DCA 2014).

7Jean-Baptiste v. State, 155 So. 3d 1237 (Fla. 4th DCA 2015).