Misdemeanor Credit, Sentencing Myths, and My Mea Culpa

The common jurisprudence surrounding criminal sentencing in Florida, as in other jurisdictions, is infested with a number of misunderstandings or misapprehensions of the law that persist even when they are counter-intuitive, illogical, or even nonsensical. Some of these have taken the form of "sentencing myths," embedded in local custom or practice and given credibility due to prolonged application by lawyers and judges who believe in them but do not subject them to critical analysis when they should. Even the experts get it wrong on occasion, and when they do it can be embarrassing. I know this because it has happened to me.

While giving a four-hour on a wide variety of state sentencing law topics to a county bar association, in making an off-the-cuff comment about sentencing credit, I stated that, in misdemeanor cases, credit for time spent on probation could be applied against any subsequent period of incarceration imposed after a violation of probation. While I was correctly stating what had been a local practice of great duration in a county court in which I had practiced law many years prior to giving the lecture, and which had been reflected in a number of local memoranda of law and circuit court disposition orders I had been exposed to, it was not a correct statement of the law in 2009 when the lecture was given.

Once I realized that I had it wrong, and that others I knew had this same misapprehension, I decided to find out how I got it wrong and put it on the public record to set matters straight.

The rule that I was referring to arose in the case of Kenneth Leon Baldwin, who was convicted of battery, a first-degree misdemeanor, after the trial judge placed him on probation for 1 year but refused to allow Baldwin credit for 198 days served in the county jail. Sec. 775.082(4)(a) & (b), F.S., limits punishment for a first degree misdemeanor to not more than 1 year in a county correctional facility and for a second degree misdemeanor to not more than 60 days in a county correctional facility. Subsection (3)(d) of that same statute as it existed at the time provided that the term of probation given a defendant could exceed the maximum penalty provided by law. Baldwin argued that this meant that he should be given credit for his jail time against his probation time and the trial court rejected this argument. Baldwin appealed.

In Baldwin v. State[1] the Fifth District Court of Appeal interpreted these two provisions to mean that the total penalty of probation and incarceration cannot exceed the statutory maximum, without any qualification of this rule. Baldwin still appears to be good law when you check it; a Westlaw search indicates that it has not been overruled or modified. The apparent logic of this rule was extended to probation revocation cases by the First District in Bragg v. State,[2] which held that:

"In imposing a sentence following a revocation of probation, the combination of sanctions imposed must not exceed the statutory maximum for the underlying offense. If the trial court includes probation as part of a sentence upon revocation of probation, the trial court must give credit for any time previously served on probation if the new period of probation together with other sanctions (including jail and prison credit) and the time previously served on probation total more than the statutory maximum for the underlying offense."

Bragg, however, dealt with a probationary split sentence.

In any event, the rule of Baldwin was modified fifteen years later by the Fourth District in Grissinger v. State,[3]. In that case, Stephen A. Grissinger proceeded on a writ of habeas corpus to the appellate court with a claim that he was being held illegally because the Palm Beach County circuit court entered an order which did credit against his probation the jail time served prior to trial and prior to the revocation of his probation. The Fourth District agreed and granted the writ, finding that Grissinger was entitled to immediate release.

The Court in Grissinger ruled that a defendant is not always entitled to credit for time served awaiting trial when he or she is subsequently ordered to probation as a sanction for the offense, and that the trial court is only required to credit the jail time against the term of probation if the time already served in jail combined with the ordered probationary period would exceed the statutory maximum. The Court gave as an example the situation where a defendant is sentenced to three months probation for a first degree misdemeanor and the defendant has spent three months in jail awaiting trial, holding that the trial court need not credit the defendant with time served in jail against his or her probation since the combination of the time spent in jail and the time ordered on probation would not exceed the one-year statutory maximum.

The rule in Grissinger makes perfect sense, especially since Sec. 948.06(2)(e), F.S., provides that, upon a revocation of probation, the court may impose any sentence it could have originally imposed prior to placing the defendant on probation or into community control -- including incarceration. Also, it is obvious that the restrictiveness of probation or community control on the defendant is not the equvalent of the restictiveness of the defendant being in jail or prison, both in physical and constitutional terms. (Duh!)

My gaffe was the product of what a lot of us do in dynamic situations when we speak extemporaneously: Pulling up from our memories old knowledge that reflects old practice, without stopping to really think about it. It's the sort of mistake that politicians are famous for, but which should not have happened in a prepared lecture. That's my mea culpa.

Unfortunately, this is not the only misapprehension of sentencing law that has worked its way into the common jurisprudence, and I am not the only person who has been taken in by it. Perhaps a future post will explore some of the other myths that practitioners and jurists occasionally have to contend with.

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[1] Baldwin v. State, 558 So. 2d 173 (Fla. Dist. Ct. App. 5th Dist. 1990).

[2] Bragg v. State,644 So. 2d 586 (Fla. Dist. Ct. App. 1st Dist. 1994).

[2] Grissinger v. State, 905 So. 2d 982 (Fla. Dist. Ct. App. 4th Dist. 2005).

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What Is a "Reverse Split Sentence"?

Last week, while giving a group of judges a class on sentencing law, it came to my attention that few of the judges present had ever heard of "reverse split sentencing," which is one of the statutory sentencing options available to Florida judges. Upon further inquiry, I discovered that few prosecutors or defense attorneys had heard of it either. This is unfortunate, because this sentencing option can be very appropriate -- especially in a case where the defendant has little criminal history, restitution owed the victim or victims is substantial, and the court needs a real hammer to get the defendant to comply with the terms of supervision.

A “reverse split sentence” is one whereby the defendant is sentenced to a term of probation which may be followed by a period of incarceration or, with respect to a felony, into community control, as follows:

- If the defendant meets the terms and conditions of probation or community control, any term of incarceration may be modified by court order to eliminate the term of incarceration.[1] A defendant upon whom a reverse split sentence is imposed may petition the sentencing court at any time prior to the start of the incarcerative portion of the sentence with a request to eliminate or reduce that portion of the sentence, but the court is under no obligation to grant such a request.

- If the defendant does not meet the terms and conditions of probation or community control, the court may revoke, modify, or continue the probation or community control as provided in section 948.06. If the probation or community control is revoked, the court may impose any sentence that it could have imposed at the time the defendant was placed on probation or community control. The court may not provide credit for time served for any portion of a probation or community control term toward a subsequent term of probation or community control. However, the court may not impose a subsequent term of probation or community control which, when combined with any amount of time served on preceding terms of probation or community control for offenses pending before the court for sentencing, would exceed the maximum penalty allowable as provided in section 775.082. Such term of incarceration must be served under applicable law or county ordinance governing service of sentences in state or county jurisdiction. This does not prohibit the court from imposing any other sanction provided by law.[2]

The obvious expectation of the legislature in enacting provision for a reverse split sentence is that the court will eliminate the term of incarceration if the defendant complies with the terms of probation.[3]

A reverse split sentence cannot be used to thwart the applicable sentencing guidelines or Criminal Punishment Code (CPC). Where the presumptive minimum sentence calls for imprisonment, the possibility of no incarceration is enough to constitute a downward departure, which requires contemporaneous written reasons under the guidelines or CPC.[4] Note that a reverse split sentence is not imposed when the incarcerative portion of a sentence is suspended and the elimination of the incarcerative portion is conditioned upon successful completion of the supervisory portion of the sentence: Such a sentence would properly be termed a conditional suspended sentence.
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[1] Sec. 948.012(2)(a), F.S.

[2] Sec. 948.012(2)(b), F.S.

[3] State v. Powell, 703 So. 2d 444 (Fla. 1997).

[4] Disbrow v. State, 642 So. 2d 740 (Fla. 1994).

[5] See, Bell v. State, 651 So. 2d 237 (Fla. Dist. Ct. App. 5th Dist. 1995).

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Classes of Criminal Offenses

A good number of people who read this blog have told me that they do not fully understand the various classes of criminal offenses and how they differ, e.g., the difference in potential punishment between a third degree felony and a first degree felony. This post is meant to serve as a primer on the classes of offenses under Florida law.

In Florida, criminal offenses are divided by severity into the two broad categories of misdemeanors and felonies. County courts have original jurisdiction in all misdemeanor cases not cognizable by the circuit courts.[FN1] Circuit courts have jurisdiction, inter alia, of all felonies and of all misdemeanors arising out of the same circumstances as a felony which is also charged.[FN2] The circuit court also has original jurisdiction in all cases relating to juveniles except traffic offenses as provided in chapters 316 (State Uniform Traffic Control) and 985 (Delinquency), Florida Statutes, and exclusive original jurisdiction of proceedings in which a child is alleged to have committed a delinquent act or violation of law.[FN3] Juvenile cases are, however, processed separately from adult cases.[FN4] The Florida Rules of Criminal Procedure and Rules of Evidence apply uniformly to both classes of offenses.

Misdemeanors

The term “misdemeanor” means any criminal offense that is punishable under the laws of the State of Florida, or that would be punishable if committed in Florida, by a term of imprisonment in a county correctional facility, except an extended term, not in excess of one year. The term “misdemeanor” does not mean a conviction for any noncriminal traffic violation of any provision of chapter 316, F.S., or any municipal or county ordinance.[FN5]

Misdemeanors are less severe than felonies and are further divided by degree. Misdemeanors of the second degree may be punished by a statutory maximum of up to 60 days in county jail; first degree misdemeanors may be punished by up to a year in county jail.

There is no statutory authority for incarcerating misdemeanants in state prison, although a defendant charged with both a felony and a misdemeanor can be sentenced to prison for the felony with the misdemeanor sentence to run concurrently. Likewise, neither the sentencing guidelines nor the Criminal Punishment Code apply to misdemeanors.[FN6]

Some misdemeanors are subject to reclassification of the offense to a higher degree of misdemeanor or to a felony and/or enhancement of the penalty (sometimes including minimum mandatory provisions) based on recidivism and/or statutory aggravating factors. Common examples include driving under the influence,[FN7] driving while license suspended or revoked,[FN8] battery,[FN9] culpable negligence,[FN10] petit theft,[FN11] and possession of marijuana.[FN12]

The trend in Florida is toward more structured sentencing and less judicial discretion in misdemeanors, as has been the case with felonies. A longstanding example is in driving under the influence cases where, upon conviction, the trial court cannot withhold adjudication and is legislatively mandated to impose certain additional sanctions.

A more recent example is the creation of section 775.0837, F.S., the Habitual Misdemeanor Offenders Law. A habitual misdemeanor offender is defined as a person who is before the court for sentencing for any misdemeanor offense described in chapters 741, 784, 790, 796, 800, 806, 810, 812, 817, 831, 832, 843, 856, 893, or 901, F.S. and who has previously been convicted, as an adult, of four or more misdemeanor offenses described in these chapters that were not part of the same criminal transaction or episode and were committed within one year of the date of the commission of the misdemeanor that is before the court for sentencing. If the court finds that the defendant qualifies as a habitual misdemeanor offender, the court is required, unless it makes a finding that an alternative disposition is in the best interests of the community and the defendant, to sentence the defendant as a habitual misdemeanor offender and impose one of the following sentences:

(1) Incarceration in a county jail operated by the county or a private vendor for a term of not less than six months, but not to exceed one year;

(2) Commitment to a residential treatment program or other community-based treatment program or a combination of residential and community-based program for not less than six months, but not to exceed 364 days; or

(3) Detention for not less than six months, but not to exceed 364 days, to a designated residence.

A court may not sentence a defendant under section 775.0837, however, if the misdemeanor before the court for sentencing has been reclassified as a felony as a result of any prior qualifying misdemeanor.[FN13]

Note that the common law offense of criminal contempt and local ordinances punishable by incarceration are the legal equivalent to misdemeanors for purposes of sentencing.[FN14]

Felonies

The term “felony” means any criminal offense that is punishable under the laws of Florida, or that would be punishable if committed in Florida, by death or imprisonment in the state penitentiary. “State penitentiary” includes state correctional facilities. A person must be imprisoned in the state penitentiary for each sentence which, except for an extended term, exceeds one year.[FN15] All felonies are punishable by incarceration in state prison. The legislature has created five categories of felonies, which are classified, for purposes of sentencing and for any other purpose provided by statute, as follows:

Capital felony. A defendant who has been convicted of a capital felony must be punished by death if the proceeding held to determine sentence in accordance with the provisions of section 921.141 results in findings by the court that such person shall be punished by death, otherwise such person must be punished by life imprisonment and will be ineligible for parole. In the event that the death penalty is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, the court having jurisdiction over a defendant previously sentenced to death for a capital felony is required to cause that defendant to be brought before the court and to sentence that defendant to life imprisonment without possibility of parole. No sentence of death can be reduced as a result of a determination that a method of execution is held unconstitutional under the state constitution or the constitution of the United States.[FN16]

Life felony. A defendant who has been convicted of a life felony committed prior to October 1, 1983 may be punished by a term of imprisonment for life or for a term of years not less than 30; for a life felony committed on or after October 1, 1983 by a term of imprisonment not exceeding 40 years; for a life felony committed on or after July 1, 1995 , except for one which was committed on or after September 1, 2005 which is a violation of section 800.04(5)(b), for a term of imprisonment for life or by imprisonment for a term of years not exceeding life imprisonment; and for a life felony committed on or after September 1, 2005 which is a violation of s. 800.04(5)(b), by a term of imprisonment for life, or a split sentence that is a term of not less than 25 years’ imprisonment and not exceeding life imprisonment, followed by probation or community control for the remainder of the person’s natural life, as provided in section 948.012(4).[FN17] A defendant who has committed a life felony on or after July 1, 2008, which is that defendant’s second or subsequent violation of section 800.04(5)(b) may be punished by a term of imprisonment for life.[FN18]

Felony of the first degree. A defendant who has been convicted of a felony of the first degree may be punished by a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment.[FN19]

Felony of the second degree. A defendant who has been convicted of a felony of the second degree may be punished by a term of imprisonment not exceeding 15 years.[FN20]

Felony of the third degree. A defendant who has been convicted of a felony of the third degree may be punished by a term of imprisonment not exceeding 5 years.[FN21]

A capital felony and a life felony must be so designated by statute. Other felonies are of the particular degree designated by statute. Any crime declared by statute to be a felony without specification of degree is a felony of the third degree, except that this provision does not affect felonies punishable by life imprisonment for the first offense.[FN22]

First degree felony punishable by life. There is no separate classification for first degree felonies punishable by life imprisonment.[FN23] Thus, a first degree felony, regardless of the sentence imposed by the substantive law prohibiting the conduct, is still a first degree felony under the statutory classification.[FN24] Some confusion in distinguishing a life felony from a first degree felony punishable by life can arise because of the statutory language that permits each, in certain circumstances, to be punished by a term of years not exceeding life imprisonment, and the lack of a definition of what such a term of years is.[FN25] The distinction that the former is a separate classification scheme and the latter is a penalty provision within a different classification scheme remains, however.[FN26]

A capital crime may be charged only by indictment, but any other felony may be charged by either information or indictment.[FN27] An indictment may be amended only to correct a defect, error, or omission in a caption or to eliminate surplusage.[FN28] Otherwise, a trial court has no authority to issue an order amending an indictment.[FN29] Further, once an indictment has been returned, a grand jury cannot charge a new or different crime through an amendment to the indictment.[FN30] However, the grand jury and state attorney have concurrent authority to charge noncapital crimes.[FN31] Even when the grand jury has declined to charge an offense by indictment, the state attorney may charge the same offense by information.[FN32]
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[FN1] Sec. 34.01(a), F.S.

[FN2] Sec. 26.012(2)(d), F.S.

[FN3] Secs. 26.012(2)(c) and 985.0301(1), F.S.

[FN4] See, ch. 985, F.S.

[FN5] Sec. 775.08(2), F.S.

[FN6] Singleton v. State, 554 So. 2d 1162 (Fla. 1990) at 1164 n.2.

[FN7] Sec. 316.193, F.S.

[FN8] Sec. 322.34, F.S.

[FN9] Sec. 784.03, F.S.

[FN10] Sec. 784.05, F.S.

[FN11] Sec. 812.014, F.S.

[FN12] Sec. 893.13, F.S.

[FN13] Sec. 775.0837, F.S.

[FN14] See, Saridakis v. State, 936 So. 2d 33 (Fla. Dist. Ct. App. 4th Dist. 2006) (criminal contempt); City of Ft. Lauderdale v. Mattlin, 566 So. 2d 1330 (Fla. Dist. Ct. App. 4th Dist. 1990) (municipal ordinance); Moorman v. Bentley, 490 So. 2d 186 (Fla. Dist. Ct. App. 2d 1986) (criminal contempt).

[FN15] Sec. 775.08(1), F.S.

[FN16] Sec. 775.08(1)(a), F.S.; Sec. 775.082(1) & (2), F.S.

[FN17] Sec. 775.081(b), F.S.; Sec. 775.082(3)(a), F.S.

[FN18] Sec. 775.082(3)(a)4.b., F.S.

[FN19] Sec. 775.081(c), F.S.; Sec. 775.082(3)(b), F.S.

[FN20] Sec. 775.081(1)(d), F.S.; Sec. 775.082(3)(c), F.S.

[FN21] Sec. 775.081(1)(e), F.S.; Sec. 775.082(3)(d), F.S.

[FN22] Sec. 775.081(1), F.S.

[FN23] See, Jones v. State, 546 So. 2d 1134, 1135 (Fla. Dist. Ct. App. 1st Dist. 1989) (“It is clear that there is no distinct felony classification of ‘first degree felony punishable by life,’ but only a first degree felony which may be punished in one of two ways.”).

[FN24] Burdick v. State, 594 So. 2d 267 (Fla. 1992).

[FN25] See, Powlowski v. State , 467 So. 2d 334 (Fla. Dist. Ct. App. 5th Dist. 1985) (a sentence of 300 years is a term of imprisonment less than life); Greenhalgh v. State, 582 So. 2d 107 (Fla. Dist. Ct. App. 2d Dist. 1991) (99-year sentence would be lawful for felony punishable by life).

[FN26] See, Brown v. State, 412 So. 2d 58 (Fla. Dist. Ct. App. 4th Dist. 1982); Trent v. State, 403 So. 2d 1131 (Fla. Dist. Ct. App. 4th Dist. 1981).

[FN27] Art. I, § 15, Fla. Const.; Fla. R.Crim. P. 3.140(a).

[FN28] Fla. R. Crim. P. 3.140(c)(1), (i)-(j).

[FN29] Snipes v. State, 733 So. 2d 1000, 1004 (Fla. 1999).

[FN30] Smith v. State, 424 So. 2d 726, 729 (Fla. 1982).

[FN31] State ex rel. Hardy v. Blount, 261 So. 2d 172, 174 (Fla. 1972).

[FN32] State ex rel. Hardy v. Blount, 261 So. 2d 172, 174 (Fla. 1972); State ex rel. Latour v. Stone, 135 Fla. 816, 185 So. 729, 730 (Fla. 1939).

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Alternative Sentencing: Youthful Offender Downward Departures

A “youthful offender” (YO) is any person who is sentenced as such by the court or is classified as such by the Department of Corrections pursuant to section 958.04.[FN1] There are two ways by which a defendant can become entitled to the benefits of the YO statute. Either the trial court can sentence the defendant as a YO, or the Department of Corrections can designate a defendant who was sentenced as an adult to be a YO.[FN2]

Qualification

Pursuant to section 958.04, F.S., the court may sentence as a YO any person:

(a) Who is at least 18 years of age or who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 985;

(b) Who is found guilty of or who has tendered, and the court has accepted, a plea of nolo contendere or guilty to a crime that is, under the laws of this state, a felony if the offender is younger than 21 years of age at the time sentence is imposed; and

(c) Who has not previously been classified as a youthful offender under the provisions of chapter 985; however, a person who has been found guilty of a capital or life felony may not be sentenced as a YO under the Youthful Offender Act.

Sentencing Options

In lieu of other criminal penalties authorized by law and notwithstanding any imposition of consecutive sentences, the court is required to dispose of the criminal case as follows:

(a) The court may place a YO under supervision on probation or in a community control program, with or without an adjudication of guilt, under such conditions as the court may lawfully impose for a period of not more than 6 years. Such period of supervision may not exceed the maximum sentence for the offense for which the YO was found guilty.

(b) The court may impose a period of incarceration as a condition of probation or community control, which period of incarceration shall be served in a county facility, a Department of Corrections probation and restitution center, or a community residential facility that is owned and operated by any public or private entity providing such services. A YO may not be required to serve a period of incarceration in a community correctional center as defined in section 944.026, F.S. Admission to a Department of Corrections facility or center is contingent upon the availability of bed space, taking into account the purpose and function of such facility or center, and placement in such a facility or center may not exceed 364 days.

(c) The court may impose a split sentence whereby the YO is to be placed on probation or community control upon completion of any specified period of incarceration; however, if the incarceration period is to be served in a Department of Corrections facility other than a probation and restitution center or community residential facility, such period must be for not less than 1 year or more than 4 years. The period of probation or community control must commence immediately upon the release of the YO from incarceration. The period of incarceration imposed or served and the period of probation or community control, when added together, may not not exceed 6 years.

(d) The court may commit the YO to the custody of the Department of Corrections for a period of not more than 6 years, provided that any such commitment may not exceed the maximum sentence for the offense for which the YO has been convicted. Successful participation in the YO program by an offender who is sentenced as a YO by the court pursuant to this section, or is classified as such by the Department of Corrections, may result in a recommendation to the court, by the Department of Corrections, for a modification or early termination of probation, community control, or the sentence at any time prior to the scheduled expiration of such term. When a modification of the sentence results in the reduction of a term of incarceration, the court may impose a term of probation or community control which, when added to the term of incarceration, shall not exceed the original sentence imposed.

Consecutive Sentencing

Consecutive YO sentences exceeding the applicable maximum of six years are illegal.[FN3] A sentencing court can impose any YO sentence, so long as no matter how many sentences are imposed, the total does not exceed four years incarceration followed by two years probation or community control allowed by the applicable youthful offender statute.[FN4]

Violation of Probation or Community Control

A violation or alleged violation of probation or the terms of a community control program subjects the youthful offender to the provisions of section 948.06. However, no youthful offender can be committed to the custody of the Department of Corrections for a substantive violation for a period longer than the maximum sentence for the offense for which the youthful offender was found guilty, with credit for time served while incarcerated, or for a technical or nonsubstantive violation for a period longer than six years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated.[FN5] The legislature has not defined “substantive violation” or “technical or nonsubstantive violation,” but courts examining the Youthful Offender Act have defined “substantive violation” as a new separate criminal offense by a youthful offender.[FN6] In contrast, a technical violation is a violation of a rule of probation or community control.[FN7]

Upward Departure

The provisions of the YO Act cannot be used to impose a greater sentence than the permissible sentence range as established by the Criminal Punishment Code pursuant to chapter 921 unless reasons are explained in writing by the trial court judge which reasonably justify departure. A sentence imposed outside of the Criminal Punishment Code is subject to appeal pursuant to section 924.06 or section 924.07, F.S.

Limits on Judicial Discretion

No one who has been found guilty of a life felony can be sentenced as a YO.[FN8] Otherwise, a trial court may exercise discretion and not impose a youthful offender sentence.[FN9] Failure to sentence a defendant as a youthful offender does not result in an illegal sentence.[FN10] A defendant may not be simultaneously sentenced as both a youthful offender and as an adult.[FN11] The sentencing court may not impose a youthful offender sentence on one count, but not another, even if part of a plea agreement.[FN12] As the intent of the Youthful Offender Act was to provide a sentencing alternative more stringent than the juvenile system but less harsh than the adult system, imposition of consecutive sentences as a youthful offender and as an adult would thwart the purpose of the Act.[FN13]

Imposition of sanctions other than those of the Youthful Offender Act is, in fact, prohibited once a court classifies a defendant as a YO. Minimum mandatory sentencing, in fact, is not applicable when a defendant is sentenced as a YO.[FN14] A YO sentence may be imposed on a defendant in lieu of a mandatory sentence under the “10-20-Life” scheme mandated by the firearm enhancement statute, section 775.087, F.S., because the firearm enhancement statute contains no language to supersede a YO sentence.[FN15] Imposition of the statutorily mandated minimum mandatory prison sentence and fine under the drug trafficking statute, section 893.135, F.S., is also preempted by the YO statute.[FN16] A defendant classified as a YO is not subject to the minimum mandatory provisions of the DUI manslaughter statute,[FN17] and the trial court can withhold adjudication for DUI offenses notwithstanding the mandatory language of section 316.656(1), F.S.[FN18] A defendant classified as a YO may, however, also be designated as a sexual offender or sexual predator.[FN19] If designated a sexual offender or sexual predator, the defendant is subject to the mandatory conditions of probation set out in section 948.30, F.S., notwithstanding the defendant’s designation as a YO.[FN20] An otherwise qualified defendant who was originally sentenced as an adult can be sentenced as a YO upon revocation of probation or community control.[FN21]

Mitigation of a Youthful Offender Sentence Through Boot Camp

One of the ways of further mitigating a YO sentence of is through successful completion of a basic training program run by the Department of Corrections. Section 958.04(2)(b), F.S., which governs the disposition of youthful offenders generally, states:

The court may impose a period of incarceration as a condition of probation or community control, which period of incarceration shall be served in either a county facility, a department probation and restitution center, or a community residential facility which is owned and operated by any public or private entity providing such services. . . . Placement in such a facility or center shall not exceed 364 days.

Section 958.045, F.S., governs the Department of Corrections’s youthful offender basic training program, commonly referred to as “boot camp.” Subsection (5)(c) currently provides in part:

Upon the offender’s completion of the basic training program, the department shall submit a report to the court that describes the offender’s performance. If the offender’s performance has been satisfactory, the court shall issue an order modifying the sentence imposed and placing the offender on probation. . . . If the offender violates the conditions of probation, the court may revoke probation and impose any sentence that it might have originally imposed. [emphasis added]

Up until section 958.045, F.S. was amended, effective July 1, 2006 to add the language permitting the court to sentence a violator to any sentence it might have originally imposed, when a defendant who had been sentenced as a YO successfully completed boot camp, the trial court was constrained to reduce the defendant’s remaining term of incarceration to a period of probation, and if a YO who has successfully completed boot camp subsequently violated the probation that followed, the trial court could impose a period of incarceration not to exceed 364 days in a specified facility for the violation.[FN22] Any sentence exceeding the 364 days permitted by the statute was illegal.[FN23] The defendant was also entitled to credit against these 364 days for all time previously served on that sentence.[FN24] This is still the rule for all youthful offenders whose offenses were committed prior to July 1, 2006.[FN25]

Presently, for violations of supervision involving offenses committed after July 1, 2006, the sentencing court is not constrained to sentence a youthful offender who has completed a boot camp program to not more than 364 days in the county jail per the Bloodworth decision, and can terminate the defendant’s youthful offender status and sentence the defendant under the Criminal Code for up to the statutory maximum for any offense before the court for sentencing.

The boot camp mitigator does not apply to all YO boot camp programs. Unlike the detailed provisions of the statute pertaining to the Department of Correction’s boot camp programs, section 946.046, F.S., the statute concerning county-run programs merely states:

In counties where there are county-operated youthful offender boot camp programs, other than boot camps described in section 958.04 or sheriff’s training and respect programs in section 985.4891, the court may sentence a youthful offender to such a boot camp. In county-operated youthful offender boot camp programs, juvenile offenders shall not be commingled with youthful offenders.[FN26]

There are no provisions in the Youthful Offender Act requiring application of rules governing Department of Corrections boot camp facilities to the county-run programs. Moreover, the statute contains no specific provision comparable to section 958.045(5)(c) limiting sentences for youthful offenders who complete a county boot camp. Consequently, the trial court’s sentencing authority in such cases is not limited by section 958.045(5)(c).[FN27]
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[FN1] Sec. 958.03(5), F.S.

[FN2] See, Smith v. State, 750 So. 2d 754 (Fla. Dist. Ct. App. 1st Dist. 2000).

[FN3] Schebel v. State, 721 So. 2d 1177 (Fla. Dist. Ct. App. 1st Dist. 1998), appeal dismissed, 723 So. 2d 830 (Fla. 1990).

[FN4] Nguyen v. State, 566 So. 2d 368 (Fla. Dist. Ct. App. 5th Dist. 1990).

[FN5] Sec. 958.14, F.S.

[FN6] Swilley v. State, 781 So. 2d 458 (Fla. Dist. Ct. App. 2d Dist. 2001); Meeks v. State, 754 So. 2d 101, 103 (Fla. Dist. Ct. App. 1st Dist. 2000); Robinson v. State, 702 So. 2d 1346, 1347 (Fla. Dist. Ct. App. 5th Dist. 1977); Johnson v. State, 678 So. 2d 934 (Fla. Dist. Ct. App. 3d Dist. 1996).

[FN7] See, Swilley v. State, 781 So. 2d 458 (Fla. Dist. Ct. App. 2d Dist. 2001); Meeks v. State, 754 So. 2d 101, 103 (Fla. Dist. Ct. App. 1st Dist. 2000), approved by State v. Meeks, 789 So. 2d 982 (Fla. 2001).

[FN8] Sec. 958.04(1)(c), F.S.; Beatrice v. State, 832 So. 2d 972 (Fla. Dist. Ct. App. 4th Dist. 2003) (conviction for first degree felony reclassified under 10/20/Life statute as life felony precludes sentencing as youthful offender).

[FN9] Legette v. State, 694 So. 2d 826 (Fla. Dist. Ct. App. 2d Dist. 1997).

[FN10] Edwards v. State, 830 So. 2d 141 (Fla. Dist. Ct. App. 5th Dist. 2002).

[FN11] See, Johnson v. State, 596 So. 2d 495 (Fla. Dist. Ct. App. 5th Dist. 1992) (a defendant simultaneously sentenced to four years incarceration in two cases as a youthful offender, followed by ten years probation as an adult in two other cases, received an illegal sentence).

[FN12] Goelz v. State, 937 So. 2d 1237 (Fla. Dist. Ct. App. 4th Dist. 2006).

[FN13] Kelly v. State, 739 So. 2d 1164 (Fla. Dist. Ct. App. 5th Dist. 1999); see, Allen v. State, 526 So. 2d 69 (Fla. 1988).

[FN14] See, State v. Oglester, 830 So. 2d 124 (Fla. Dist. Ct. App. 3d Dist. 2002); State v. Drury, 829 So. 2d 287 (Fla. Dist. Ct. App. 1st Dist. 2002); State v. Fernandez, 819 So. 2d 945 (Fla. Dist. Ct. App. 3d Dist. 2002); Darrow v. State, 789 So. 2d 552 (Fla. Dist. Ct. App. 5th Dist. 2001); State v. Bynes, 784 So. 2d 1145 (Fla. Dist. Ct. App. 2d Dist. 2001); Porter v. State, 702 So. 2d 257 (Fla. Dist. Ct. App. 4th Dist. 1997); Ellis v. State, 475 So. 2d 1021 (Fla. Dist. Ct. App. 2d Dist. 1985).

[FN15] State v. Wooten, 782 So. 2d 408 (Fla. Dist. Ct. App. 2d Dist. 2001) (minimum mandatory sentencing provisions of 10/20/Life statute applicable to enumerated felonies involving firearm do no supercede youthful offender sentence); Salazar v. State, 544 So. 2d 313 (Fla. Dist. Ct. App. 2d Dist. 1989) (3-year minimum mandatory for use of firearm does not apply to youthful offender); Patterson v. State, 408 So. 2d 785 (Fla. Dist. Ct. App. 2d Dist. 1982) (same).

[FN16] Inman v. State, 842 So. 2d 862 (Fla. Dist. Ct. App. 2d Dist. 2003) ($50,000 drug trafficking fine prohibited); Mendez v. State, 835 So. 2d 348 (Fla. Dist. Ct. App. 4th Dist. 2003) (3-year minimum mandatory and $50,000 fine for drug trafficking cannot be imposed on defendant sentenced as youthful offender); State v. Richardson, 766 So. 2d 1111 (Fla. Dist. Ct. App. 3d Dist. 2000) (mitigating 15-year minimum mandatory sentence as a youthful offender for 19-year-old defendant convicted of trafficking in excess of 400 grams of cocaine was within trial court’s discretion); Jones v. State, 588 So. 2d 73 (Fla. Dist. Ct. App. 4th Dist. 1991) (mandatory 3 year sentence for conviction of selling drugs within 1,000 feet of school does not apply to defendant sentenced as youthful offender).

[FN17] State v. Gibron, 478 So. 2d 475 (Fla. Dist. Ct. App. 2d Dist. 1985).

[FN18] Sloan v. State, 884 So. 2d 378 (Fla. Dist. Ct. App. 2d Dist. 2004).

[FN19] Dejesus v. State, 862 So. 2d 847 (Fla. Dist. Ct. App. 4th Dist. 2003).

[FN20] State v. Miller, 888 So. 2d 76 (Fla. Dist. Ct. App. 5th Dist. 2004).

[FN21] See, Hill v. State, 927 So. 2d 1047 (Fla. Dist. Ct. App. 2d Dist. 2006); Williams v. State, 889 So. 2d 969 (Fla. Dist. Ct. App. 4th Dist. 2004); Mearns v. State, 779 So. 2d 282 (Fla. Dist. Ct. App. 2d Dist. 1998).

[FN22] See, Bloodworth v. State, 769 So. 2d 1117 (Fla. Dist. Ct. App. 2d Dist. 2000); Mims v. State, 871 So. 2d 1003 (Fla. Dist. Ct. App. 1st Dist. 2004); Blaxton v. State, 868 So. 2d 620 (Fla. Dist. Ct. App. 2d Dist. 2004); Williams v. State, 841 So. 2d 685 (Fla. Dist. Ct. App. 5th Dist. 2003); Thomas v. State, 825 So. 2d 1032 (Fla. Dist. Ct. App. 1st Dist. 2002).

[FN23] See, Mason v. State, 864 So. 2d 1225 (Fla. Dist. Ct. App. 1st Dist. 2004); Lawson v. State, 845 So. 2d 986 (Fla. Dist. Ct. App. 1st Dist. 2003).

[FN24] Fettler v. State, 885 So. 2d 411 (Fla. Dist. Ct. App. 1st Dist. 2004).

[FN25] Morrison v. State, — So. 2d —, 2008 WL 1734513 (Fla. Dist. Ct. App. 4th Dist. 2008).

[FN26] Sec. 958.046, F.S.

[FN27] Holmes v. State, 899 So. 2d 432 (Fla. Dist. Ct. App. 3d Dist. 2005); Lee v. State, 884 So. 2d 460 (Fla. Dist. Ct. App. 4th Dist. 2004) (Since there was no 365 day incarceration restriction read into ch. 958.046 for juveniles incarcerated in county operated boot camp programs, a juvenile defendant was properly sentenced to 36 months in prison after he violated his community control while on release after successfully completing boot camp; the 365 day restriction was only read into section 958.045(5)(c), which governed Department of Corrections operated boot camp programs).
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COMMENTS

An example of questions generated by this post is the following:

H.M. writes on September 18, 2008:

Hello my name is [name omitted]. I saw your blog while researching options on youthful offender status. I was sentenced as a youthful offender in 1995 and I still don't know what it means. Do I have a right not to state a conviction on employment applications? A friend of mine said that it was legal to do so. I have been a community activist for the past 10 years and just want to know what my options are.

ANSWER: To be sentenced as a Youthful Offender, or YO for short, is to be sentenced as an adult under a distinct sentencing that scheme that is harsher than juvenile sentencing but not as harsh as the standard adult sentencing scheme. Juveniles found to have committed a crime are either adjudicated delinquent or adjudication of delinquency is withheld by the court, but in either case they are not "convicted." In adult sentencing schemes, adults found to have committed a crime are either adjudicated guilty or adjudication of guilt is withheld by the court. This means that, for defendants sentenced as YOs, it is not the status of being a YO that determines whether or not the defendant has been "convicted," but whether the sentencing court imposed or withheld adjudication. A YO can receive an adjudication of guilt, and all adult adjudications of guilt are convictions. In a given case, the question of whether or not an adult has previously been convicted of a crime may be resolved through an examination of the Judgment and Sentence (J&S) found in the court file for that case. Such convictions are a matter of public record and a person does not have a privacy interest in concealing thos convictions, unless the record has been sealed or expunged.

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Chemical Castration for Rapists

Chemical castration is the use of hormonal medication used to suppress the sexual drive. It is used mainly by countries as a preventive measure or punishment on people who violate their laws on sexual behavior. The term “chemical castration” is a misnomer: It should be more appropriately called “hormonal androgen depletion” or “anti-hormone treatment.” Its effects are completely reversible. Medroxyprogesterone acetate (MPA), the drug mandated by the Florida Legislature for use in chemical castrations, is more commonly known as Depo-Provera. In men, the drug reduces the production of the hormone testosterone in the testes and the adrenal glands, and, therefore, reduces the level of testosterone circulating through the bloodstream. As testosterone levels drop, so does the putative sex drive in most men. The physiological effects of Depo-Provera thus include temporary diminution of erections and ejaculations and a reduction in sperm count.

II. The Law.

When a defendant has been convicted of sexual battery as described in section 794.011(FN1) the sentencing court may in its discretion sentence the defendant to be treated with MPA, more commonly known as “chemical castration,” according to a schedule of administration monitored by the Department of Corrections.(FN2) When the defendant has been convicted of sexual battery as described in section 794.011 and has a prior conviction of sexual battery under section 794.011, the sentencing court must sentence the defendant to such treatment with MPA.(FN3) A “prior conviction” in this sense means a conviction for which sentence was imposed separately prior to the imposition of the sentence for the current offense and which was sentenced separately from any other conviction that is to be counted as a prior conviction under section 794.0235.(FN4)

If the court sentences a defendant to be treated with MPA, the penalty may not be imposed in lieu of, or reduce, any other penalty prescribed under section 794.011. However, in lieu of treatment with MPA, the court may order the defendant to undergo physical castration upon written motion by the defendant providing the defendant’s intelligent, knowing, and voluntary consent to physical castration as an alternative penalty.(FN5) An order of the court sentencing a defendant to MPA treatment under section 794.0235(1) “shall” be contingent upon a determination by a court-appointed medical expert that the defendant is an appropriate candidate for treatment. There is a mandatory requirement that such determination be made not later than 60 days from the imposition of sentence.(FN6)

Notwithstanding the statutory maximum periods of incarceration as provided in section 775.082, an order of the court sentencing a defendant to MPA treatment must specify the duration of treatment for a specific term of years, or in the discretion of the court, up to the life of the defendant.(FN7) In all cases involving defendants sentenced to a period of incarceration, the administration of treatment with MPA is required to commence not later than one week prior to the defendant’s release from prison or other institution.(FN8) The Department of Corrections is required to provide the services necessary to administer MPA treatment, but section 794.0235 does not require the continued administration of MPA treatment when it is not medically appropriate.(FN9) If a defendant whom the court has sentenced to be treated with MPA fails or refuses to either appear as required by the Department of Corrections for purposes of administering the MPA or allow the administration of MPA, the defendant is guilty of a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.(FN10)

Generally, the trial court is obligated to impose the requirement of chemical castration and set the duration of MPA treatment at sentencing, and may not reserve on that issue after imposition of sentence.

Where chemical castration is mandatory pursuant to section 794.0235(1)(b) because the defendant has a prior conviction for sexual battery, the failure to impose chemical castration would render the sentence incomplete, rather than illegal, and the sentencing court would be able to correct the sentence within 60 days of the original sentencing pursuant to Fla. R. Crim. P. 3.800(c) to include this requirement. Such a correction is permissible because, where a trial court fails to impose a mandatory penalty at the original sentence, double jeopardy principles are not offended where the trial court subsequently corrects the sentence by imposing the omitted mandatory sanction.

Where the imposition of chemical castration pursuant to section 794.0235(1)(a) is discretionary because the defendant does not have a prior conviction for sexual battery, however, the failure to impose it would not render the sentence illegal or incomplete, and the subsequent addition of this sanction would be an illegal increase in punishment.(FN11)

An example of the limits of judicial discretion in this matter where the defendant does not have a prior conviction for sexual battery is the case of Phu Tran, in which the trial court ordered MPA treatment at sentencing, reserved ruling on the duration of treatment pending an evaluation from a court-appointed expert. Approximately four months later, the court held a hearing at which a psychiatrist testified that Tran was a candidate for MPA injections. The doctor testified that she believed Tran should be given MPA indefinitely. After listening to the testimony, hearing argument, and consulting materials provided both by the state and the defense, the trial court ordered that MPA be administered for five years after Tran’s release from prison. Tran appealed.(FN12)

The Fourth District Court of Appeal held that, as a matter of statutory construction, a sentence to administration of MPA under Sec. 794.0235 after imposition of sentence is not remedial treatment but does constitute punishment; the trial court could not “reserve ruling” on that issue pending the outcome of the psychiatrist’s determination of whether Tran was an “appropriate candidate” for treatment. By failing to specify a duration of treatment, the trial court’s imposition of MPA treatment at sentencing did not satisfy the mandatory requirements of the MPA statute and was not a valid portion of Tran’s sentence. Once Tran began serving his sentence, the trial court’s subsequent order of MPA injections for a period of five years violated double jeopardy principles because it amounted to a more onerous punishment.(FN13)

Although the trial court in Tran wanted to hear from the expert regarding the defendant’s being a candidate for receiving MPA, the statute does not require expert evidence as to the duration of MPA. Under the statute the duration appears to be within the trial court’s discretion. The duration must be ordered at sentencing, apparently unguided by the presentation of any expert evidence on the appropriateness of MPA for the particular defendant. However, whatever duration is chosen, the sixty-day period for determination that the defendant is an appropriate candidate for MPA coincides with the sixty days in which a trial court has discretion to mitigate a sentence under Fla. R. Crim. P. 3.800(c). Thus, should the court determine either that the defendant is not an appropriate candidate or conclude that the original term ordered is excessive, the court has the opportunity to adjust the sentence during that period. The rule of Tran is therefore, that the trial court may not reserve on the issue of duration, and that the subsequent imposition of a requirement for MPA injections for a set duration after the imposition of sentence is an illegal increase in the defendant’s sentence and constitutes a violation of the constitutional prohibition against double jeopardy.(FN14)

III. Recommended Procedures Where Chemical Castration Is Sought.

A significant part of the problems surrounding attempts to impose chemical castration on sexual batterers arise from the failure on the part of prosecutors to understand the requirements of section 794.0235, or anticipate its application in a given case. Prosecutors (and courts) also generally lack a set of procedures to be followed when dealing with this issue.

The appropriate procedure for prosecutors where the State is considering chemical castration of a defendant convicted of sexual battery would be to set off sentencing until the defendant can be evaluated by a court-appointed expert and then, based on the expert’s evaluation and other sentencing factors, make the appropriate sentencing recommendation to the court. The law does not appear to require either pre-trial notice to the defendant or pre-trial evaluation, but it does require that chemical castration, if it is to be imposed, be imposed at the time of sentencing.

Where the defendant qualifies pursuant to statute for chemical castration, the two remaining questions are whether (1) this is an appropriate case for the State to seek it, and (2) a court-appointed medical expert will determine that the defendant is an appropriate candidate for MPA treatment. An evidentiary hearing on the matter of chemical castration is therefore a necessary component of any sentencing hearing unless the defendant knowingly and voluntarily waives any objection to the State’s proposed punishment.

If the nature and extent of the defendant’s depravity demonstrates the type of aggressive sexual appetite that requires suppression for the safety of others, or the conduct of the defendant displays sophisticated and determined planning, preparation, and execution of a plan with the use of guile, deception, threats, intimidation, or even audaciousness that clearly put the victim and others at risk, there is a considerable chance that such a punishment will be deemed appropriate by the court-appointed expert. Even where the defendant will be serving a life sentence, one should not assume that the defendant will be forever confined to prison, nor should one overlook the fact that the defendant could pose a risk to other persons he encounters in prison in making a recommendation to the court.

It should be assumed in most cases that where the court-appointed expert has determined that the defendant is a suitable candidate for chemical castration and recommends such treatment, the defense will seek an evaluation by their own expert, just as is the process with sentencing issues touching upon the mental or physical health of the defendant, and neither the prosecutor nor the sentencing court should assume that the process will be quick.
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1. “Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose. Sec. 794.011(1)(h), F.S.

2. Sec. 794.0235(1)(a), F.S.

3. Sec. 794.0235(1)(b), F.S.

4. Sec. 794.0235(4), F.S.

5. Sec. 794.0235(1), F.S.

6. Jackson v. State, 907 So. 2d 696 (Fla. Dist. Ct. App. 4th Dist. 2005) (statutory directive that defendant receive medical examination within 60 days of imposition of his sentence for sexual offenses in order to determine his suitability for chemical castration, as prerequisite to imposition of sentence of MPA treatment, is mandatory rather than discretionary); Sec. 794.0235(2)(a), F.S.

7. Sec. 794.0235(2)(a), F.S.; see, Houston v. State, 852 So. 2d 425, 428 (Fla. Dist. Ct. App. 5th Dist. 2003) (requirements that trial court appoint a medical expert to opine on whether defendant is an appropriate candidate for chemical castration treatment, and that trial court specify in the sentence the duration of treatment, are mandatory, as to a sentence containing a chemical castration requirement).

8. Sec. 794.0235(2)(b), F.S.

9. Sec. 794.0235(3), F.S.

10. Sec. 794.0235(5), F.S.

11. See, Kittelson v. State, 980 So. 2d 533 (Fla. Dist. Ct. App. 5th Dist. 2008) (failure at initial sentence to impose restitution as part of sentence resulted in incomplete sentence that was subject to timely modification within 60 days of sentencing); Fields v. State, 968 So. 2d 1032 (Fla. Dist. Ct. App. 5th Dist. 2007 (trial court’s order subjecting defendant to electronic monitoring 40 days after court initially modified probation did not violate double jeopardy because electronic monitoring was mandatory for designated sex offenders whose probation was modified or revoked); State v. Sanderson, 625 So. 2d 471 (Fla. 1993) (restitution is mandated by statute and failure to impose restitution renders a sentence incomplete and subject to modification within 60 days); House v. State, 127 Fla. 145, 172 So. 734 (Fla. 1937) (judgment and sentence that defendant be imprisoned with no adjudication of his guilt was incomplete, and jurisdiction to render a completed judgment and sentence in the cause continued until the function was performed).

12. Tran v. State, 965 So. 2d 226 (Fla. Dist. Ct. App. 4th Dist. 2007).

13. Tran v. State, 965 So. 2d 226 (Fla. Dist. Ct. App. 4th Dist. 2007).

14. Tran v. State, 965 So. 2d 226 (Fla. Dist. Ct. App. 4th Dist. 2007).

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Sentencing Multipliers Under the Criminal Punishment Code: Use of Juvenile Priors for the Grand Theft Motor Vehicle Multiplier

There is a lot of misunderstanding about sentencing multipliers under Florida's Criminal Punishment Code, particularly when it comes to the Grand Theft Motor Vehicle multiplier and the use of juvenile priors as predicate offenses.

The Grand Theft Motor Vehicle multiplier is applicable where the primary offense charged is grand theft of a motor vehicle and the defendant's prior record includes three more grand thefts of a motor vehicle. The confusion is usually over whether juvenile priors can be used as predicate offenses, and if so, whether or not there has to have been an adjudication of delinquency. Typical is the following question I received a few days ago from an Assistant State Attorney in the 15th Circuit, reproduced verbatim:

"I have a defendant who has 3 prior Grand Theft (motor vehicles) and in my opinion hits the multiplier because of it. However, 2 of the Grand Theft (MV) are adult convictions but 1 is a juvenile conviction from 2004 but within the 5 year period to score a juvenile conviction. The issue is: Can a juvenile convictions [sic] be used as an enhancement on the scoresheet?"

My answer is this: If the primary offense is third degree felony grand theft motor vehicle and the juvenile prior grand theft motor vehicle was committed within five years of the date of commission of the primary offense, the juvenile prior can be used as a predicate offense for the multiplier, whether or not the defendant was adjudicated delinquent or adjudication was withheld.

Sec. 921.0024(1)(b), F.S., provides: “If the primary offense is grand theft of the third degree involving a motor vehicle and in the offender's prior record, there are three or more grand thefts of the third degree involving a motor vehicle, the subtotal sentence points are multiplied by 1.5.” Fla. R. Crim. P. 3.704(d)(21) provides: “If the primary offense is grand theft of the third degree of a motor vehicle and the offender’s prior record includes three or more grand thefts of the third degree of a motor vehicle, the subtotal sentence points are multiplied by 1.5.”

Neither the rule nor the statute distinguish between adult or juvenile offenses, or between withholds of adjudication or imposition of delinquency or guilt, and the clear meaning of both is that any third degree felony grand theft of a motor vehicle that qualifies as “prior record” can be used as a sentencing multiplier.

By the way, juveniles are not “convicted.” In juvenile court a finding of delinquency is the condition precedent to either adjudication or withholding of delinquency in juvenile cases.

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No Death Penalty for Child Rapists

The United States Supreme Court today in a 5-4 opinion in the case of Kennedy v. Louisiana,(1) authored by Justice Kennedy and joined in by Justices Stevens, Souter, Ginsburg and Breyer, ruled that the Eighth Amendment's cruel and unusual punishment clause prohibits states from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the child's death. The Court also ruled that the application of this law to the states under the Fourteenth Amendment renders the Louisiana statute under which petitioner Patrick Kennedy was sentenced to death for the brutal rape of his eight-year-old stepdaughter unconstitutional. As for the death penalty in Florida, however, it will be business as usual.

The facts of Kennedy were compelling: Patrick Kennedy brutally raped his eight-year-old stepdaughter on March 2, 1998 and coached her to lie about it to the police. That morning, the victim was transported by ambulance to Children’s Hospital where she was examined in the emergency room. The victim’s predominate injury was vaginal with profuse bleeding. Her entire perineum was torn and her rectum protruded into her vagina. A pediatric surgeon was called in to repair the damage, which was repaired successfully. However, as a result of pain, the victim had to be fed gallons of stool softener through a tube to permit her to begin defecating again. At trial, the defendant was convicted of aggravated rape and a unanimous jury recommended that Kennedy receive the death penalty, which the sentencing court imposed. He appealed his conviction and sentence and the Louisiana Supreme Court affirmed both, reasoning that the death penalty was proportionate in the circumstances because

[I]t can be said for child rapists as a class of offenders that, unlike the young or mentally retarded, they share no common characteristic tending to mitigate the moral culpability of their crimes. Contrary to the mentally retarded and juvenile offenders, execution of child rapists will serve the goals of deterrence and retribution just as well as execution of first-degree murderers would. Our state legislature, and this Court, have determined this category of aggravated rapist to be among those deserving of the death penalty, and, short of first-degree murder, we can think of no other non-homicide crime more deserving.(2)

Louisiana was one in only six states that authorized the death penalty for rape of a child; 44 states have not made child rape a capital offense, and these statistics appear to have some impact on the Court's reasoning that there was a national social consensus against imposition of the death penalty for child rape and that the imposition of the death penalty for child rape is inconsistent with the evolving standards of decency that mark the progress of a maturing society.

The Louisiana law was based on an interpretation of the plurality opinion in Coker v. Georgia,(3)in which ruled that a sentence of death for the crime of rape of an adult woman where the victim survives is grossly disproportionate and excessive punishment forbidden by Eighth Amendment, that the opinion did not prohibit, and thereby authorized, the imposition of the death penalty for rapists of children under eleven years of age. In the Kennedy opinion, the Court ruled that this is a misinterpretation of Coker, and that Coker merely left the question open because the question of the death penalty for child rapists was not before the Court in that case.

The Kennedy opinion appears to stand for the proposition that the death penalty cannot be used to punish crimes against individual persons where the victim did not die or the defendant had no intent that the victim die. The Court was careful, however, to point out that it was not addressing "crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State."

The dissent, authored by Justice Alito and joined in by Chief Justice Roberts, and Justices Scalia and Thomas, was vigorous, disputing the existence of any national consensus against imposition of the death penalty for rape of a child and pointing out that an interpretation that Coker dicta outlawed the death penalty for all forms of rape has stunted legislative initiatives that would make the rape of a child a capital offense. The dissent also argued that the Kennedy majority was in fact willing to use its power to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape in favor of its own judgment regarding the acceptability of the death penalty.

The decision in Kennedy means that death penalty law in Florida will remain status quo: The death penalty will continue to be applicable to aggravated first-degree murder and capital drug trafficking. Although capital sexual battery of a victim under twelve years of age remains on the books as a crime punishable by death under certain aggravated circumstances, the statute(4) has long been, and remains, a dead letter: The Florida Supreme Court in Buford v. State(5) long ago ruled that a sentence of death is grossly disproportionate and excessive punishment for the crime of sexual assault, even when the victim is only seven years of age, and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment, effectively banning imposition of the death penalty in Florida for any form of rape.
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1. Kennedy v. Louisiana, -- U.S. --, -- S. Ct. --, 2008 WL 2511282 (2008).

2. State v. Kennedy, 957 So. 2d 757 (La. 2007).

3. Coker v. Georgia, 443 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977).

4. Sec. 794.011(2)(a), F.S.

5. Buford v. State, 403 So. 2d 943 (Fla. 1981).

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