Saturday, November 25, 2017

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

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

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

Pursuant to section 958.14, 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 he or she 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.3

The fact that an otherwise qualified defendant is not originally sentenced as a youthful offender does not disqualify the defendant from subsequent designation as a youthful offender. A defendant who qualifies can therefore be sentenced as a youthful offender by the trial court at the original sentencing, or be subsequently reclassified as such by the Department of Corrections pursuant to section 958.04.4 In addition, a defendant originally sentenced as an adult who violates probation or community control may, upon revocation of that probation or community control, be sentenced as a youthful offender in the discretion of the revocation sentencing court if the defendant meets the statutory criteria for designation as a youthful offender.5 This is because, pursuant to section 948.06(2)(b), upon revocation of supervision the court can impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control.6

Youthful offenders who commit technical violations of probation or community control retain the benefit of the sentencing cap; youthful offenders who commit a substantive violation may be sentenced to the maximum sentence for the offense for which he or she was found guilty. A defendant’s maximum exposure in a criminal case is controlled by the charging document under which the defendant entered a plea or was convicted by a jury. A defendant’s maximum sentence for his or her original offense necessarily includes any enhancements for which he or she qualifies.7

Upon revoking the probation or community control supervision of a youthful offender for a substantive violation, the trial court has two choices. First, if an incarcerative sentence is still available under the cap provisions of section 958.04(2), the court may continue to sentence under the cap provisions. Alternatively, the court may impose any sentence it could have imposed at the initial sentencing, regardless of the defendant’s youthful offender status. When the trial court chooses the second option, and the original sentence that could have been imposed was a minimum mandatory sentence, that sentence must be imposed upon revocation of probation.8

Once a youthful offender sentence is imposed at initial sentencing, a defendant retains certain benefits of the Youthful Offender Act, even after probation or community control has been revoked and incarceration above the six-year cap has been imposed. A defendant’s status as a youthful offender affects his or her classification within the prison system and his or eligibility for certain programs and facilities. Furthermore, the Department of Corrections may recommend early termination of a youthful offender’s prison sentence.9

The treatment of Youthful Offender status by the courts raises the question, if a defendant retains youthful offender status even after revocation in situations where the substantive violation results in a new felony criminal charge, as to what authority permits listing the youthful offender offense and new felony as primary or additional offenses on the same scoresheet. If youthful offender is a separate sentencing scheme, the sentencing court would be dealing with two distinct sentencing schemes in such a situation, and an argument could be made that the court should use two separate scoresheets, one for the youthful offender offense and the other for the new felony on which the youthful offender offense would be listed as prior record. While this would be consistent with the manner in which sentencing is conducted in other dual sentencing scheme situations, e.g., where the defendant violates supervision under the former guidelines for an offense that is scored under the present Criminal Punishment Code, the overwhelming practice in criminal courts around the state is to place the youthful offender and new felonies on the same scoresheet, and to have the benefit of an accurately prepared scoresheet in order to reach a fully informed sentencing decision even if the trial court expresses an intention to impose the maximum statutory sentence.10


1State v. Meeks, 789 So. 2d 982 (Fla. 2001).

2See, Flores v. State, 46 So. 3d 102 (Fla. 3d DCA 2010) (conviction on new case need not precede sentencing on probation violation so long as court determines the violation has sufficient evidence defendant committed new offense); Morency v. State, 955 So. 2d 67, 68 n.1 (Fla. 3d DCA 2007) (new criminal offense can constitute a probation violation even if nolle prossed by the state); State v. Jenkins, 762 So. 2d 535 (Fla. 4th DCA 2000); Swilley v. State, 781 So. 2d 458, 460 (Fla. 2d DCA 2001) (filing of a nolle prosequi does not mean the trial court cannot find that defendant substantively violated his community control by committing new offenses); Christian v. State, 84 So. 3d 437 (Fla. 5th DCA 2012), review denied, 134 So. 3d 446 (Fla. 2014).

3§ 958.14, Fla. Stat.

4§ 958.04, Fla. Stat.

5Hill v. State, 927 So. 2d 1047 (Fla. 2d DCA 2006); State v. Brown, 855 So. 2d 270 (Fla. 5th DCA 2003).

6§ 948.06(2)(b), Fla. Stat.

7Yegge v. State, 186 So. 3d 553 (Fla. 2d DCA 2015).

8Eustache v. State, 199 So. 3d 484 (Fla. 4th DCA 2016). A former exception to this was that for offenses committed prior to July 1, 2006 where the defendant had successfully completed a Department of Corrections boot camp program and had 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. See Adderly v. State, 958 So. 2d 997 (Fla. 5th DCA 2007) and cases cited therein; Lamore v. State, 86 So. 3d 546 (Fla. 2d DCA 2012).

9Blacker v. State, 49 So. 3d 785 (Fla. 4th DCA 2010).

10See, Cosme v. State, 111 So. 3d 280 (Fla. 4th DCA 2013).

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