Saturday, September 6, 2008

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.

11 comments:

transition said...

Is there a limitation on the conviction in regards to public info. I have attempted to apply for a pardon to no avail. I believe this system is made for rehabilitated individuals to fail. How is it possible for a person to be sentenced to a correctional and rehabilitation facility and continue to fight for the rest of there lives to show atonement. What options are there to limit employment barriers with YO status

William H. Burgess, III said...

Convictions in the public record remain forever, at least in theory. The traditional ways to remove them from the public record or to minimize their effects are (1) expunction, (2) sealing, and (3) executive clemency. As time passes from the date of conviction or end of sentence and the convicted person builds a record of being a law-abiding, responsible, and productive member of the citizenry, the stain of a prior conviction can be minimized and sometimes employers, institutes of higher education, and individuals will be willing to give that person a chance to move on and get past the stigma. The best thing for a person with a prior conviction to do is to live a righteous life every single day of their existence and do as well as they can for others.

tonytiger3003 said...

I was sentenced as a youthful offender and sentenced to 4 years DOC and 2 years community control which ends March 15 2009. If i am violated for non-payment of 1 month in feb, will they have to let me go march15 or can they legally give me more time? Can you please email me at ampped101@hotmail.com

demetriasanchez said...

Ok right now i am trying to see how my fiance can get a YO sentence.The state was offering him 8 yrs but now r set to give him another plea bargain. My question is can he get a YO sentence to substitute for prison time instead.And if so how would he go by negotiating that deal with the state through his sorry public defender? He is 19 in we resign in florida. Please email me at demetriawoody@yahoo.com.

demetriasanchez said...

o yeah by the way, i'm not sure how accurate this is but i heard that the judge sometimes makes decisions based on the offenders background like family,residency? I really would want my fiance to get YO boot camp due to us having 2 small children.I would want him home soon. He has been in jail for now 6 months. They kp pushing his court date back. Please email me with your insight. demetriawoody@yahoo.com.

Junior said...

I need help on the matter as well. At 16 years old,I was sentenced as a youthful offender for burglary of a dwelling and served 9 months in DOC. I’m trying to find a job but to no luck. I've tried everything. What's the best thing I can do in this situation?

please email me your suggestions at junebee33x@yahoo.com

Junior said...

I need help on the matter as well. At 16 years old,I was sentenced as a youthful offender for burglary of a dwelling and served 9 months in DOC. I’m trying to find a job but to no luck. I've tried everything. What's the best thing I can do in this situation?

please email me your suggestions at juniorjean54@gmail.com

msmo said...

My son is 20yrs old. He has 3 seperate felony charges all no violent. We have ask his PD to put an offer of time credit (10mths) 1yr rehab center, probation and education. Does my son fall under the YO?
Please email me at msmorissa@yahoo.com

the_battle said...

My son accepted a plea deal to a violent crime and was sentenced to 8yr. The DOC classified him as YO and he is now serving his time at a YO facility.

1. Would he be eligible for a boot camp program since he was sentenced to more than 6yr
2. If he is eligible for boot camp is the judge the only one that can approve him entering the program. Please email me at the_battle@att.net. Thanks for your help.

Dano said...

Looking for some help!
My son was arrested 2 yrs ago for Aggravated Battery/Robbery. As many claim,they are innocent, and a victim of the system. In this case, however it is a nightmare come true. My son is guity of going to an aquantance's house to buy marijuana with 3 of his friends, during the episode, a new individual was called as the aquantance did not have any product. The new unknown party shows up and is observed to have a gun in his waistband. His directions indicated that my son and his friends were going to be Robbed. My son took the chance to rush the dealer, and a struggle ensued over the gun, during the struggle, a discharge was fired, only later to learn that it struck the dealer, but luckly was aflesh wound. They ran from the location, not knowing what happened, as if anyone was struck by the discharge. The dealer shoes up at a hospital 3 hrs after the incident, and the police are called. The dealer, the person my son new (who's apartment it was)and a girlfriend were all witneses to the situation. The police investigation was limited to taking a statement from the above three, who had 3 hours to fabricate this story. the police did not polygraph them, conduct any gunshot residue tests and so on. No gun was ever recovered, and their story was that my son had a gun and just pulled it out, and shot the dealer without any comment or altercation. what sense did it make for him to convict himself as the witnesses knew him, however if the three testified truthfully, they would have been charged as acting in concert. After a long legal battle, it was determined the risk of going to trial in florida, mandatory 20- life, it was better to pleas as a youthfull offender, and limit the max term to 6 yrs. Our attorney felt that if his approach was that my son did have the gun, and the discharge was accidental, the prosecutor would consider a Y.O. sentence. If we pushed things with the truth, and made the police and State Attorney looked bad, they would definately not accept a plea, so we did. It has been a horrible 2 years, for a good kid, who was in college, and was a non violent, clean record kid, that just got eaten by the system. It is amazing that the State Atorney of Palm Beach, could not figure this scenerio out, just a rush to judgement, and arrest someone as quick as possible.
With the system as it is he will have to do a minimum of 5 years, just a shame of poor police work, and a prosecutors office who can just seeknumbers, and over look the obvious. The whole situation defies logic, if someone who is innocent is shot, they call 911, and the police, and go to the hospital. Not 3 hours later, and for the police to merely take their statements ase gospel, without any other coroboration, is reckless and untrained.
Without a Parole system, what if anything can be done. according to my attorney, we were lucky to get the Y.O. plea, and have to accept the way it all went down. Well I don't, and seek justice more and more each day. Why would he shoot someone (unknown) for no reason, without even a comment. Why would he do it in fron tof people who could I.D. him, it make no sense, but why would the police and state Atty, buy the bullshit package they were given.....HELP

In Need of Info said...

I am inquiring about more information on the youthful offenders boot camps. My boyfriend is currently incarcirated at a youthful offenders prison, Lancaster Correctional Institute. He is serving a 24 month sentence and has completed 5 months of it. He was recommended by the judge to be sent to a boot camp but instead was sent to Lancaster. Once he got there he was told by his classification officer all the boot camps were closed down. However, inmates were recently shipped out of Lancaster to a boot camp. I can't find any information on the names of the boot camps or if they're still open. If you know any more information about this please email me at snkfwiley@gmail.com at your earliest convenience.

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