Saturday, November 25, 2017

Sentencing Alernatives for Violations of Probation or Community Control by Youthful Offenders

In all cases, a violation of probation of community control must be willful and substantial to produce a revocation. “Willful and substantial” refers to the quality of the violation, whereas the terms “substantive” or “technical” refer to the type of violation—a nuance only present in the Youthful Offender sentencing scheme. Accordingly, a “technical” violation is a violation of a rule of probation or community control which is a byproduct of the original offense, while the term “substantive violation” in section 958.14 requires more than a mere breach of a condition of probation or community control. A substantive offense is one which is complete of itself and not dependent on another, and so a separate act that constitutes a violation of probation or community control becomes a substantive one when it involves the commission of a separate criminal offense.1 A substantive violation does not require that the defendant be charged with a new criminal offense, or convicted of a new criminal offense prior to a finding of violation, or at all, and such a finding can be made when the new offense has been nolle prossed or dismissed.2

Monday, August 3, 2015

Early Termination of Probation of Community Control

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

Trial courts have unbridled discretion under state law to decide whether or not to terminate a defendant’s probation or community control early.1

Public policy strongly favors early termination of probation and community control where the goals of such supervision have been met,2 and disfavors punitive conditions of probation or community control that would prohibit early termination.  Early termination of supervision is a tool used to encourage good behavior and faithful compliance with the terms of probation or community control.  A policy or practice of no early termination of supervision could result in the absurd situation of a rehabilitated defendant being prohibited from going into court for the opportunity to prove his or her rehabilitation and, if proven, permit the court to put an end to unnecessary expenditures of time, money, and other resources on continued probation that serves no purpose beyond harassment of the defendant or which would be better directed towards defendants who have not been rehabilitated. Such policies and practices do not enhance the image of the state courts in the eyes of the public and may in fact serve to publicly discredit the courts.

Pursuant to section 948.05, Fla. Stat., 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.3  In the case of community control, the trial court also 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.4  Section 948.05 requires the court to respond to the facts and circumstances that develop during the term of supervision:  If the probationer or community controlee has fulfilled his or her obligations and has been a model for supervision, the interests of justice and the wise allocation of scarce resources may require that early termination of supervision be considered.5

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

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