Florida Sentencing

Casey Anthony's Sentence: The Talking Heads Don't Know What They're Talking About

2011-07-09T09:27:00.000-07:00

Casey Anthony booking photograph (Credit: Orange County Jail)

On July 5, 2011, a jury acquitted Casey Anthony of the murder of her infant daughter Caylee, but convicted Anthony of four misdemeanor counts of making false statements to law enforcement. Anthony had been held in jail since 2008 awaiting trial. Circuit Judge Belvin Perry, who presided over the trial, imposed the maximum sentence he could, four consecutive one-year sentences in the Orange County Jail, with credit for time served, and estimated that her release date would be in late July or early August. Judge Perry also imposed the maximum fine of $1,000 per count, for a total of $4,000.

Some defense lawyer talking heads took the position that Anthony had already fulfilled more than her maximum sentence and should be released immediately. Timothy Fitzgerald, a defense lawyer in Tampa, Florida solemnly explained to WFLA reporter Natalie Shepherd that “Each day you’re in you get a day of credit for each of the charges.” Tampa defense attorney Jeff Brown went even farther, making outrageous assertions to 970 WFLA’s Matt McClain in a 30 minute interview (since pulled from that station) on July 7th that Casey Anthony is currently out of jail and is a free woman, saying Florida law doesn’t allow for her to continue to be held, that he’s checked with legal experts and even law enforcement members, and that they all believe the judge is protecting Anthony’s safety with a fake release date.

Screenshot of Newsradio 970 WFLA Facebook page announcing and
summarizing the interview with defense attorney Jeff Brown

Respectfully, both Fitzgerald and Brown are completely wrong on the law. The correct rule is that if convicted of multiple offenses, the defendant must be given credit only on the first of consecutive sentences: When consecutive sentences are imposed, the defendant is not entitled to have his or her jail time pyramided by being given credit on each sentence for the full time he or she spends in jail awaiting disposition.¹ In other words, jail time need not be applied to all consecutive sentences,² and a defendant does not earn concurrent jail credit against consecutive sentences.

In computing Anthony’s jail sentence, the officials in the Inmate Records Section of the Orange County Jail will take the total sentence imposed (365 X 4 = 1,460 days), and then subtract the number of days Anthony has actually been held in custody on the misdemeanor charges, the number of days credit she has earned in that time, and any other applicable discount (e.g., for overcrowding at the jail). The end result will be that Casey Anthony will be required to serve considerably less than four calendar years in jail.

NOTES:

¹ Daniels v. State, 491 So. 2d 543 (Fla. 1986).

² See, Bell v. State, 573 So. 2d 10 (Fla. Dist. Ct. App. 5th Dist. 1990); Gillespie v. State, 910 So. 2d 322 (Fla. Dist. Ct. App. 5th Dist. 2005).

Consequences of a Defendant's Failure to Abide by a Plea Agreement

2010-08-31T18:49:00.000-07:00

The legal consequences of a defendant’s failure to abide by a plea agreement are profound and well-defined under Florida law.

Defendants who freely and voluntarily enter into a plea agreement with the State are required to abide by the terms of that agreement; if they do not, the State can move under Rule 3.170(g) to have the court vacate the plea and corresponding sentence.[1] Once a defendant reneges on the plea agreement, the State has the option of withdrawing from the agreement, and either going to trial or seeking a new agreement.[2] If a criminal defendant does not feel so bound by the terms of a plea agreement that he or she will comply with it, then the State is likewise not bound.[3]

In McCoy v. State,[4] the Florida Supreme Court prescribed the procedure to be used when a defendant fails to abide by his plea agreement after the imposition of sentence. This procedure was then adopted as Fla. R. Crim. P. 3.170(g), titled “Vacation of Plea and Sentence Due to Defendant’s Noncompliance.”[5]

The provisions of Rule 3.170(g) are as follows: Whenever a plea agreement requires the defendant to comply with some specific terms, those terms shall be expressly made a part of the plea entered into in open court.[6] Specific clarifications of a plea agreement made during the course of a plea colloquy become part of the agreement for purposes of its enforcement.[7] Unless otherwise stated at the time the plea is entered:

– The State may move to vacate a plea and sentence within 60 days of the defendant’s noncompliance with the specific terms of a plea agreement.[8] The 60-day time limit for filing a motion to vacate a plea and judgment is not jurisdictional, however, because the rule permits the time for filing to be altered: a jurisdictional rule cannot be altered by the court or agreement of the parties. This means that failure on the part of the defendant to raise any objection to the timeliness of such a motion, where the time for filing has not previously been altered, constitutes waiver of such an objection.[9] Where the State moves after 60 days to vacate the plea and the defense objects to the motion as being untimely, the defense has the burden of showing that vacating the plea is banned by the doctrine of laches.

The equitable defense of laches exists where there has been an unexplainable delay of such duration or character as to render the enforcement of an asserted right inequitable and is appropriate when a party is aware of his or her rights but fails to act.[10] For laches to apply, the party asserting the right must have knowledge, or the means of knowledge of his or her right, or the facts which created his or her cause of action, but nonetheless fail to timely assert it. So long as there is no knowledge of the wrong committed and no refusal to embrace an opportunity to ascertain the facts, there can be no laches. Laches thus cannot be imputed to one who has been justifiably ignorant of the facts creating his or her cause of action, and who has therefore failed to assert it. After the facts have become known to a party, he or she must use reasonable diligence to enforce his or her right. Actual knowledge is generally a prerequisite to applying the doctrine of laches.[11] Where one has only constructive notice, laches must be predicated on an intentional neglect to make inquiry, rather than mere carelessness to do so.[12]

A finding of laches in a criminal case requires a showing of both lack of due diligence on the part of the person bringing the claim and prejudice to the person against whom the claim is being made.[13] Delay, standing alone, is not enough.[14] The true test to apply laches is whether or not the delay has resulted in injury, embarrassment, or disadvantage to any person and particularly to the person against whom relief is sought.[15] The delay required to render the doctrine of laches available must have been such as practically to preclude the court from arriving at a safe conclusion as to the truth of the matters in controversy, and thus make the doing of equity either doubtful or impossible, as through loss or obscuration of evidence of the transaction in issue; or where there must have occurred in the meantime a change in conditions that would render it inequitable to enforce the right asserted.[16] Application of the doctrine of laches depends on the circumstances of each case and often involves factual issues that are not properly resolved without an evidentiary hearing.[17]

– When a motion is filed pursuant to Rule 3.170(g)(2)(A), the court is required to hold an evidentiary hearing on the issue unless the defendant admits noncompliance with the specific terms of the plea agreement.[18] This evidentiary hearing is called a Rule 3.170(g) non-compliance hearing.

– No plea or sentence shall be vacated unless the court finds that there has been substantial noncompliance with the express plea agreement.[19] This means that, in the absence of an admission or stipulation by the defendant, the evidentiary hearing conducted by the court must address the matter of willfulness on the part of the defendant, as where timely appearance for sentencing is made a condition of the plea agreement and the defendant fails to appear for sentencing.[20]

– When a plea and sentence is vacated pursuant to Rule 3.170(g), the cause has to be set for trial within 90 days of the order vacating the plea and sentence.[21]

Defendants who seek to avail themselves of the salutary upside of a substantial plea agreement do not have the right to make unilateral modifications to the agreement.[22] The double jeopardy clause does not protect a defendant from reprosecution or resentencing if the defendant willfully refuses to perform a condition of a plea bargain.[23] When a court finds non-compliance, the only option for the court is to vacate the plea and sentence. A court may not unilaterally increase a defendant’s sentence for non-compliance with the plea agreement.[24]

Where, however, the State does not reach a clear understanding with the defendant on what it would receive and fails to take routine steps necessary to protect its interests, a lawful sentence imposed on the defendant may not be vacated or increased.[25] Note that, in any event, the State has the burden of putting on evidence and proving noncompliance with a specific term of a plea agreement before the court can void it.[26]

----------

[1] Brenner v. State, 337 So. 2d 1007 (Fla. Dist. Ct. App. 3d Dist. 1976), cert. denied, 348 So. 2d 944 (Fla. 1977) (attempt to renege on agreement to pay proportional share of costs of investigation as part of negotiated plea).

[2] Forsythe v. State, 840 So. 2d 440 (Fla. Dist. Ct. App. 4th Dist. 2003); cf., Latiif v. State, 787 So. 2d 834 (Fla. 2001); Gray v. State, 774 So. 2d 809 (Fla. Dist. Ct. App. 5th Dist. 2000); Parker v. State, 767 So. 2d 532 (Fla. Dist. Ct. App. 5th Dist. 2000); see also, Capio v. State, 765 So. 2d 853 (Fla. Dist. Ct. App. 5th Dist. 2000).

[3] See, Jolly v. State, 392 So. 2d 54 (Fla. Dist. Ct. App. 5th Dist. 1981).

[4] McCoy v. State, 599 So. 2d 645 (Fla. 1992).

[5] See, Amendments to Florida Rules of Criminal Procedure 3.170 and 3.700, 633 So. 2d 1056 (Fla. 1994).

[6] Fla. R. Crim. P. 3.170(g)(1).

[7] Metellus v. State, 817 So. 2d 1009 (Fla. Dist. Ct. App. 5th Dist. 2002) (failure to testify in an associate’s trial), approved 900 So. 2d 491 (Fla. 2005); Deramus v. State, 652 So. 2d 1245 (Fla. Dist. Ct. App. 5th Dist. 1995).

[8] Fla. R. Crim. P. 3.170(g)(2)(A).

[9] Metellus v. State, 900 So. 2d 491 (Fla. 2005).

[10] Ticktin v. Kearin, 807 So. 2d 659 (Fla. Dist. Ct. App. 3d Dist. 2002) (laches is an omission to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party).

[11] 30A C.J.S. Equity § 158.

[12] Anderson v. Northrop, 30 Fla. 612, 12 So. 318 (Fla. 1892).

[13] See, State v. Lindo, 863 So. 2d 1237 (Fla. Dist. Ct. App. 4th Dist. 2003) (defendant’s notion to vacate plea brought within 2 years of time he had or should have had knowledge of the threat of deportation based on plea was timely).

[14] Baker v. Baker, 920 So. 2d 689 (Fla. Dist. Ct. App. 2d Dist. 2006).

[15] Baker v. Baker, 920 So. 2d 689 (Fla. Dist. Ct. App. 2d Dist. 2006); Stephenson v. Stephenson, 52 So. 2d 684, 686 (Fla. 1951); Lightsey v. Lightsey, 150 Fla. 664, 8 So. 2d 399, 400 (Fla. 1942).

[16] Stephenson v. Stephenson, 52 So. 2d 684, 686 (Fla. 1951).

[17] See, Bain v. State, 9 So. 3d 723 (Fla. Dist. Ct. App. 2d Dist. 2009).

[18] Fla. R. Crim. P. 3.170(g)(2)(B).

[19] Fla. R. Crim. P. 3.170(g)(2)(C).

[20] See, Breland v. State, 951 So. 2d 74 (Fla. Dist. Ct. App. 1st Dist. 2007).

[21] Rule 3.170(g)(2)(D).

[22] McFord v. State, 877 So. 2d 874 (Fla. Dist. Ct. App. 3d Dist. 2004); see, Frazier v. State, 697 So. 2d 944 (Fla. Dist. Ct. App. 3d Dist. 1997) (a party who reaps the benefits of the agreement must be held to its detriments).

[23] Metellus v. State, 900 So. 2d 491 (Fla. 2005).

[24] Spain v. State, 849 So. 2d 340 (Fla. Dist. Ct. App. 2d Dist. 2003) (trial court’s increase of defendant’s sentence after defendant violated terms of cooperation agreement with State reversed for lack of jurisdiction).

[25] See, State v. Acosta, 506 So. 2d 387 (Fla. 1987) (defendant charged with trafficking in cocaine and conspiracy to traffic in cocaine and facing two 15-year minimum mandatory sentences entered into agreement with State under which he agreed to provide substantial assistance in the form of a statement about the drugs; after the State dropped one charge and agreed to a reduced sentence of seven years on the other, the defendant told prosecutors that he had found the drugs on the street).

[26] Neeld v. State, 977 So. 2d 740 (Fla. Dist. Ct. App. 2d Dist. 2008) (defendant picked up new arrest prior to sentencing).

Misdemeanors, Felonies and Common Law Crimes in Florida

2010-07-06T19:34:00.000-07:00

Those who do not practice criminal law in the courts of Florida are often confused as to the differences in severity between misdemeanors and felonies, and between differing severity classes within those categories. Very few people understand what a common law crime under Florida law is. 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, almost all criminal offenses are divided by severity into the two broad categories of misdemeanors and felonies. A third, very small, category is that of common law crimes which have attributes of each of the other two categories. County courts have original jurisdiction in all misdemeanor cases not cognizable by the circuit courts.[1] 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.[2] 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.[3] Juvenile cases are, however, processed separately from adult cases.[4] 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.[5]

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.

As it can with almost all felonies, a court may also impose probationary sentences for misdemeanors up to the statutory maximum for the offense. Punishment for a second-degree misdemeanor thus can include up to six months probation, while for a first-degree probation it can be up to a year of probation. The court can also combine incarceration with probation. Examples of lawful combinations include a twelve-month straight probationary sentence with 364 days incarceration as a condition of probation for a first degree misdemeanor and six months straight probation with 60 days of incarceration as a condition of probation for a second-degree misdemeanor;[6] a true split sentence of incarceration followed by a period of probation totaling up to one year for a first degree misdemeanor and up to six months for a second-degree misdemeanor; and a reverse split sentence of probation followed by incarceration within the same respective totals as for true split sentences. Formerly, the practice in many jurisdictions (if not the rule) was that, upon revocation of probation, the defendant was eligible for credit for time spent on probation towards time spent incarcerated, so that the combined total of probation and incarceration did not exceed the relevant statutory maximums.[7] That is not the case today. Thus, it is now possible for a judge to revoke probation in a first-degree misdemeanor case and impose the full incarcerative penalty (one year for a first-degree misdemeanor and 60 days for a second-degree misdemeanor), with credit for any time served, upon revocation of probation, notwithstanding how long the defendant has been on probation.

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.[8]

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,[9] driving while license suspended or revoked,[10] battery,[11] culpable negligence,[12] petit theft,[13] and possession of marijuana.[14]

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.[15]

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.[16]

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.[17] 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.[18]

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).[19] Note that the provision for not less than 25 years’ imprisonment is not a minimum mandatory sentence in the ordinary sense.[20] 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.[21]

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.[22]

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.[23]

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.[24]

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.[25]

First degree felony punishable by life. There is no separate classification for first degree felonies punishable by life imprisonment.[26] 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.[27] 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.[28] The distinction that the former is a separate classification scheme and the latter is a penalty provision within a different classification scheme remains, however.[29]

A capital crime may be charged only by indictment, but any other felony may be charged by either information or indictment.[30] An indictment may be amended only to correct a defect, error, or omission in a caption or to eliminate surplusage.[31] Otherwise, a trial court has no authority to issue an order amending an indictment.[32] Further, once an indictment has been returned, a grand jury cannot charge a new or different crime through an amendment to the indictment.[33] However, the grand jury and state attorney have concurrent authority to charge noncapital crimes.[34] Even when the grand jury has declined to charge an offense by indictment, the state attorney may charge the same offense by information.[35]

Common Law Crimes

A third category of crimes in Florida comprises crimes at common law. Common law crimes are the vestiges of the time before the rise of criminal codification, when the inherited common law of England was in force in the state. Generally,

The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.[36]

As to crimes, the common law of England in relation to crimes, except so far as the same relates to the modes and degrees of punishment, is of full force in Florida where there is no existing provision by statute on the subject.[37] Those crimes which have not been separately reclassified by statute as either a felony or a misdemeanor therefore retain their status as common law crimes.[38]

There are two types of common law crimes in Florida (1) those for which the elements are defined by statute but which are not classified, and (2) those for which the elements are not defined but which are classified by statute. Punishment at common law has been effectively abolished by Florida statutory law, which now defines the range of punishments for each of the statutory crimes, also provides that “When there exists no such provision by statute, the court shall proceed to punish such offense by fine or imprisonment, but the fine shall not exceed $500, nor the imprisonment 12 months.”[39]

Contempt is a common law crime in Florida,[40] which, although recognized by statute,[41] is not specifically classified by statute as either a felony or a misdemeanor.[42] Criminal contempt is a common law crime which can carry a maximum term of imprisonment for twelve months and which case law regards as the functional equivalent of a misdemeanor for purposes of the right to court-appointed counsel during contempt proceedings.[43] Cheating is another common law crime, the elements of which are not set out by statute, although it has been classified as a felony.[44]

An unresolved issue is whether or not contempt convictions can be scored as prior record on a scoresheet used at sentencing. Common practice is to list contempt convictions under the defendant’s prior record as misdemeanors, but Fla. R. Crim. P. 3.702-3.704 and the statutory guidelines and Criminal Punishment Code address only felonies and misdemeanors and do not address common law crimes.

Footnotes

1 Sec. 34.01(a), F.S.

2 Sec. 26.012(2)(d), F.S.

3 Secs. 26.012(2)(c) and 985.0301(1), F.S.

4 See, ch. 985, F.S.

5 Sec. 775.08(2), F.S.

6 See, Smith v. State, 484 So. 2d 581 (Fla. 1986: Sloan v. State, — So. 3d —, 2009 WL 1212257 (Fla. Dist. Ct. App. 2d Dist. 2009).

7 See, Baldwin v. State, 558 So. 2d 173 (Fla. Dist. Ct. App. 5th Dist. 1990), subsequently modified by Grissinger v. State, 905 So. 2d 982 (Fla. Dist. Ct. App. 4th Dist. 2005).

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

9 Sec. 316.193, F.S.

10 Sec. 322.34, F.S.

11 Sec. 784.03, F.S.

12 Sec. 784.05, F.S.

13 Sec. 812.014, F.S.

14 Sec. 893.13, F.S.

15 Sec. 775.0837, F.S.

16 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).

17 Sec. 775.08(1), F.S.

18 Sec. 775.08(1)(a), F.S.; Sec. 775.082(1) & (2), F.S.

19 Sec. 775.081(b), F.S.; Sec. 775.082(3)(a), F.S.

20 Montgomery v. State, — So. 3d —, 2010 WL 2330419 (Fla. Dist. Ct. App. 2d Dist. 2010).

21 Sec. 775.082(3)(a)4.b., F.S.

22 Sec. 775.081(c), F.S.; Sec. 775.082(3)(b), F.S.

23 Sec. 775.081(1)(d), F.S.; Sec. 775.082(3)(c), F.S.

24 Sec. 775.081(1)(e), F.S.; Sec. 775.082(3)(d), F.S.

25 Sec. 775.081(1), F.S.

26 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.”).

27 Burdick v. State, 594 So. 2d 267 (Fla. 1992).

28 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).

29 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).

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

31 Fla. R. Crim. P. 3.140(c)(1), (i)-(j).

32 Snipes v. State, 733 So. 2d 1000, 1004 (Fla. 1999).

33 Smith v. State, 424 So. 2d 726, 729 (Fla. 1982).

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

35 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).

36 Sec. 2.01, F.S.

37 Sec. 775.01, F.S.

38 Giordano v. State, 32 So. 3d 96 (Fla. Dist. Ct. App. 2d Dist. 2009).

39 Sec. 775.02, F.S.

40 Kramer v. State, 800 So. 2d 319 (Fla. Dist. Ct. App. 2d Dist. 2001).

41 Sec. 38.23, F.S.

42 Sec. 38.22, F.S.; see, Ducksworth v. Boyer, 125 So. 2d 844, (Fla. 1960) (contempt is neither a felony nor a misdemeanor).

43 Giordano v. State, 32 So. 3d 96 (Fla. Dist. Ct. App. 2d Dist. 2009).

44 “Whoever is convicted of any gross fraud or cheat at common law shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.” Sec. 817.29, F.S.

What Is a "Reverse Split Sentence"?

2009-02-21T07:05:00.000-08:00

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).

Alternative Sentencing: Youthful Offender Downward Departures

2008-09-06T21:13:00.000-07:00

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.

Chemical Castration for Rapists

2008-08-03T09:18:00.000-07:00

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).

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

2008-08-02T10:23:00.000-07:00

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.

No Death Penalty for Child Rapists

2008-06-25T11:54:00.000-07:00

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.
__________

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).

The Apprendi and Blakely Cases

2008-05-29T18:30:00.000-07:00

On June 26, 2000, the United States Supreme Court in its review of the case of Charles C. Apprendi against the State of New Jersey ruled that, consistent with the Sixth Amendment, any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.(1) In a subsequent review of the case of Ralph Howard Blakely against the State of Washington, the Court clarified Apprendi further by ruling that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant, that a defendant can waive his Apprendi rights, and that when a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial fact finding.(2) In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he or she may impose without any additional findings.

When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, and the judge exceeds his or her proper authority.(3) The application of the principles of Apprendi to guidelines sentencing schemes was reaffirmed by the Court in United States v. Booker,(4) which held that the imposition of a sentence under the federal sentencing guidelines based on additional facts that the sentencing judge found by a preponderance of the evidence violated the Sixth Amendment.

Blakely and Booker thus hold that under a guidelines sentencing scheme which restricts judicial discretion in imposing sentences, the factors used to calculate the maximum guidelines sentence to which a defendant must be exposed must be based either on findings made by the jury, facts admitted by the defendant in a guilty plea, at sentencing,(5) or in a stipulation at trial,(6) or judicial findings to which the defendant assented(7) or the defendant’s prior convictions. The effect of Apprendi and Blakely on sentencing in Florida is that upward departures beyond the presumptive range under the guidelines, and beyond the relevant statutory maximum under the Criminal Punishment Code, are impermissible unless the fact on which the departure is based is a prior conviction, was submitted to a jury and proven beyond a reasonable doubt, was stipulated to by the defendant, or was determined by judicial fact finding agreed to by the defendant. A defendant’s pre-trial confession to law enforcement officers cannot serve as such an admission,(8) nor can the defendant’s testimony at trial.(9)

Apprendi is, however, inapplicable to a number of situations. Apprendi does not apply to Florida’s capital sentencing scheme,(10) or retroactively to sentences that were final prior to its issuance because the State has an interest in the finality of convictions and the rule of Apprendi is not of sufficient magnitude as to require retroactive application that would disturb the law of the case as to sentencing where the jury has been discharged and it is now impossible to submit matters to the jury.(11) A conviction is final after appellate proceedings have concluded and mandate issues.(12)

There is presently, however, a conflict between the First District Court of Appeal and the Second, Third, Fourth, and Fifth Districts on the matter of Apprendi as explained by Blakely to resentencings. The First District has taken the view that reliance on the law of the case doctrine would be manifestly unfair because the United States Supreme Court has made it clear that upward departures that are based on facts, other than prior convictions, that were not submitted to a jury violate a defendant’s Sixth Amendment rights.(13) The position of the First District is that Apprendi and Blakely apply not only to those cases where the defendant is resentenced after those cases were decided, but also to cases where Apprendi and Blakely were not decided before the defendant’s resentencing became final.(14) The Second, Third, Fourth, and Fifth Districts, on the other hand, have held that Apprendi and Blakely do not apply to convictions that became final before the issuance of the opinion in Apprendi, even though resentencing occurs after its issuance.(15) The Florida Supreme Court has partially addressed this conflict by approving the result, but not the reasoning of the Third District and has suggested, moreover, that in the absence of legislative action to remedy the constitutional problem of applying Apprendi and Blakely to resentencings of defendants who were originally sentenced in noncapital cases before the issuance of those decisions would be for the Court to create a new rule that would allow the empaneling of a jury at the resentencing to make findings of any sentence-enhancing facts previously found by the original sentencing judge.(16) Although the matter has not yet been decided in Florida, at least one Florida trial court has attempted to remedy the Apprendi/Blakely resentencing problem by impaneling a new jury to consider aggravating sentencing factors,(17) courts in some states have rejected the taking of this approach in the absence of rules or statutes authorizing this sort of procedure,(18) while courts in other jurisdictions have held that impaneling a new jury to remedy an Apprendi/Blakely error is permissible.(19)

The sentencing enhancement scheme found in the Prison Releasee Reoffender (PRR) Punishment Act, section 775.082, F.S., is also unaffected by Apprendi.(20) Consistent with Apprendi’s language excluding recidivism from its holding, Florida courts have uniformly held that an habitual offender sentence is not subject to an Apprendi challenge.(21) There is nothing in Blakely that casts doubt on the numerous Florida decisions holding that Apprendi does not apply to a determination that a defendant has previous felony convictions that qualify him or her for a habitual offender sentence, and Blakely does not require that a jury make factual determinations concerning a defendant’s qualification for habitual offender sentencing.(22) Consecutive sentencing, in which each of the individual sentences are not above the relevant statutory maximums, does not give rise to an Apprendi claim.(23)

1. Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

2. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

3. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); see, Behl v. State, 898 So. 2d 217 (Fla. 2005).

4. United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).

5. See, United States v. Collier, 413 F. 3d 858, 860-61 (8th Cir. 2005).

6. See, United States v. Champion, 234 F. 3d 106, 110 (2d Cir. 2000).

7. See, Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005).

8. Galindez v. State, 955 So. 2d 517 (Fla. 2007).

9. Donohoe v. State, — So. 2d —, 2008 WL 782555 (Fla. Dist. Ct. App. 4th Dist. 2008).

10. Spencer v. State, 842 So. 2d 52 (Fla. 2003).

11. See, Hughes v. State, 901 So. 2d 837 (Fla. 2005); see also, Modest v. State, 892 So. 2d 566 (Fla. Dist. Ct. App. 3d Dist. 2005) (the decisions in Apprendi and Blakely are also not retroactive in those situations where they might otherwise apply).

12. See, Smith v. State, 598 So. 2d 1063 (Fla. 1992).

13. Barron v. State, 931 So. 2d 929 (Fla. Dist. Ct. App. 2d Dist. 2006); Langford v. State, 929 So. 2d 598 (Fla. Dist. Ct. App. 5th Dist. 2006); Isaac v. State, 911 So. 2d 813 (Fla. Dist Cit App. 1st Dist. 2005).

14. McGriff v. State, — So. 2d —, 32 Fla. L. Weekly D520, 2007 WL 516148 (Fla. Dist. Ct. App. 1st Dist. 2007); Isaac v. State, 911 So. 2d 813 (Fla. Dist. Ct. App. 1st Dist. 2005).

15. Barron v. State, 931 So. 2d 929 (Fla. Dist. Ct. App. 2d Dist. 2006); Langford v. State, 929 So. 2d 598 (Fla. Dist. Ct. App. 5th Dist. 2006); Thomas v. State, 914 So. 2d 27 (Fla. Dist. Ct. App. 4th Dist. 2005); Galindez v. State, 910 So. 2d 284 (Fla. Dist. Ct. App. 3d Dist. 2005).

16. See, Galindez v. State, 955 So. 2d 517 (Fla. 2007).

17. Ayala v. State, — So. 2d —, 2008 WL 268699 (Fla. Dist. Ct. App. 5th Dist. 2008).

18. See, e.g., State v. Shattuck, 704 N.W. 2d 131 (Minn. 2005); State v. Hughes, 154 Wash. 2d 118, 110 P. 3d 192 (2005); State ex rel. Mason v. Griffin, 104 Ohio St. 3d 279, 819 N.E. 2d 644 (2004); State v. Kessler, 276 Kan. 202, 73 P.3d 761 (2003) (holding that court could not improvise sentencing jury proceeding to respond to Apprendi).

19. See, e.g., U.S. v. Henry, 282 F. 3d 242 (3d Cir. 2002) (holding that jury can be convened for sole purpose of deciding facts that will determine sentence following Apprendi error at trial); State v. Schofield, 895 A.2d 927 (Me. 2005) (holding that court had “inherent judicial power” to impanel sentencing jury in response to Blakely); Smylie v. State, 823 N.E.2d 679, 684-85 (Ind. 2005) (holding that to meet Blakely requirements, jury may be convened to consider sentencing factors), cert. denied, 546 U.S. 976, 126 S. Ct. 545 (2005); Aragon v. Wilkinson, 209 Ariz. 61, 97 P.3d 886, 891 (2004) (stating that “although the statutory sentencing scheme does not currently provide for convening a jury trial during the sentencing phase of a non-capital case, nothing in our rules or statutes prohibits the court from doing so” and that on remand to resolve any Apprendi or Blakely problem, the trial court “may utilize its inherent authority to convene a jury trial on the existence of facts that may support imposition of an aggravated sentence”).

20. See, Robinson v. State, 793 So. 2d 891, 893 (Fla. 2001) (holding that Florida’s PRR statute is not invalidated by Apprendi: “The [PRR] Act does not increase the maximum statutory penalty. Here the sentencing court’s discretion in selecting a penalty within the statutory range is simply limited. Accordingly, proof to the jury of a defendant’s release which subjects a defendant to a sentence under the Act is not required.”).

21. Gudinas v. Florida, 879 So. 2d 616 (Fla. 2004) (habitual violent felony offender sentences do not run afoul of Apprendi); Gordon v. State, 787 So. 2d 892 (Fla. Dist. Ct. App. 4th Dist. 2001); Walker v. State, 790 So. 2d 1200 (Fla. Dist. Ct. App. 5th Dist. 2001); Jacobs v. State, 785 So. 2d 713 (Fla. Dist. Ct. App. 4th Dist. 2001); Morant v. State, 785 So. 2d 665 (Fla. Dist. Ct. App. 3d Dist. 2001); Simmons v. State, 782 So. 2d 1000 (Fla. Dist. Ct. App. 4th Dist. 2001); Gray v. State, 780 So. 2d 1042 (Fla. Dist. Ct. App. 4th Dist. 2001); Wright v. State, 780 So. 2d 216 (Fla. Dist. Ct. App. 5th Dist. 2001); see also, Eutsey v. State, 383 So. 2d 219 (Fla. 1980) (rejecting the notion that a defendant was entitled to have a jury determine, beyond a reasonable doubt, the existence of the predicates necessary for imposition of a habitual felony offender sentence).

22. Tillman v. State, 900 So. 2d 633 (Fla. Dist. Ct. App. 2d Dist. 2005); Matthews v. State, 891 So. 2d 596 (Fla. Dist. Ct. App. 3d Dist. 2004); Frumenti v. State, 885 So. 2d 924 (Fla. Dist. Ct. App. 5th Dist. 2004); McBride v. State, 884 So. 2d 476 (Fla. Dist. Ct. App. 4th Dist. 2004); Fyler v. State, 852 So. 2d 442 (Fla. Dist. Ct. App. 5th Dist. 2003), review denied, 860 So. 2d 977 (Fla. 2003); Grant v. State, 815 So. 2d 667, 668 n. 3 (Fla. Dist. Ct. App. 2d Dist. 2002); Jones v. State, 791 So. 2d 580 (Fla. Dist. Ct. App. 1st Dist. 2001); Saldo v. State, 789 So. 2d 1150 (Fla. Dist. Ct. App. 3d Dist. 2001); Gordon v. State, 787 So. 2d 892 (Fla. Dist. Ct. App. 4th Dist. 2001).

23. Hall v. State, 823 So. 2d 757 (Fla. 2002), citing United States v. White, 240 F.3d 127, 135 (2nd Cir. 2001) (holding that the district court’s use of section 5G1.2(d) [of the United States Sentencing Guidelines to sentence defendant consecutively] did not result in a sentence on any one count above the maximum available on that count . . . and so did not violate Apprendi); People v. Wagener, 196 Ill. 2d 269, 752 N.E.2d 430, 441, 256 Ill. Dec. 550 (Ill.), cert. denied, 534 U.S. 1011, 122 S. Ct. 498, 151 L. Ed. 2d 408 (2001) (holding Apprendi concerns are not implicated by consecutive sentencing).

Sample Questions for Judicial Candidates

2008-05-28T17:14:00.000-07:00

What would you ask a judicial candidate if you had the opportunity to question him or her?

The quality of our judiciary has a direct correlation to the quality of what goes on in our courts of law, including our sentencings in criminal court. Although slightly off-topic for a sentencing blog, the following is a complilation of sample questions to ask those who would be our judges:

I. Knowledge.

1. Do you believe the composition of juries adequately and fairly reflects society at large? Why or why not? If not, what can we do to change this? What are the pros and cons of using drivers license registration as a source of jurors?

2. What have been the most effective methods for improving court procedures and efficiency over the past five years? What other methods would you suggest?

3. How could the costs of judicial administration be reduced? Can you give us a specific example of how you have reduced costs in your law practice?

4. To what extent have you practiced in the area of criminal law? Family law? Complex civil litigation?

5. Under what circumstances can the courts seal court files or close court proceedings?

6. What do you perceive as the greatest obstacles to justice, if any?

7. Do you believe that all citizens have adequate access to legal help and the legal system? If not, what can be done to provide wider and better access?

8. If you became aware of unethical conduct on the part of a trial advocate in a case in which you were presiding, how would you handle it? Do you believe judges should be required to report attorney misconduct?

9. What is your understanding of the distinctions between provisions of the U.S. and Florida Constitutions in the area of search and seizure?

10. Do you believe there is such a thing as a “victimless crime?” If so, what offenses would you place in this category?

11. What do you believe are the causes of the high rates of minority incarceration?

12. In the area of hate crimes, what are some of the issues in balancing free speech rights against the need to control offensive activity?

13. What factors are considered in granting and setting bail amounts for defendants? What do you believe is the primary consideration?

14. What are the issues regarding alternative sentences for non-violent offenders?

15. In felony cases, what criteria would you use for deciding whether to impose a downward departure from the presumptive minimum length of imprisonment?

16. What do you think about the growing prison population? What response should society have to prison overcrowding?

17. Violent crime, particularly youth violence, is perceived to be at a crisis level by many experts today. What, if any, do you believe is the appropriate role for the judiciary in addressing this perceived crisis?

18. What issues are involved in deciding whether or not to admit evidence of battered spouse syndrome or battered child syndrome?

19. What do you believe to be the root causes for the high numbers of juvenile offenders? What changes can the court system make to reduce these numbers?

20. Do you feel the war on drugs has been effective or ineffective?

21. Do you believe there is under-representation of women or people of color in the court system? If so, how would you work to correct the problem?

22. What are the major issues involved in the debate regarding gun control?

II. Character.

1. Do you ever wake up in the middle of the night, thinking about a case, wishing you had handled something differently? If so, please describe one situation.

2. Describe your most difficult case.

3. Have you ever withdrawn from a case because you disagreed with your client? If so, please explain.

4. Please describe one instance in which you faced an ethical dilemma and how you resolved it.

5. Are there any specific types of cases in which you know now that you will find it necessary to disqualify yourself? What types of cases, and why?

6. What kind of jobs, interests, or volunteer activities did you pursue during school and law school?

7. Do you believe that voluntary professional and community service is a necessary commitment for persons holding public office? What forms of voluntary professional and community service have you been involved with in the past? Currently?

8. What are the pros and cons of going to the bench as compared to practicing law?

9. As a prospective judge, what do you consider your greatest strengths? Weaknesses?

10. What has been your greatest accomplishment in your legal career? In your personal life?

11. What has been your bigest disappointment in your life, and not just in your legal career?

12. What qualities, other than obvious fairness and impartiality, will you bring to the bench that would make you a good judge?

13. If elected or re-elected to the position you seek, what is the minimum number of years you intend to serve before seeking a judicial post at a higher level? What is your commitment to serving out the full term?

14. What are the major influences in your life? Why?

15. What injustices have you witnessed in or outside the courtroom and what was your response to those events?

16. Do you believe the current system for disciplining lawyers and judges is effective? Why or why not?

17. Have you ever been disciplined by The Florida Bar? When, for what reason, and what was the discipline you received?

18. Have you ever been found guilty of a crime, including juvenile offenses for which you were adjudicated delinquent or for which adjudication was withheld, and adult offenses for which you were adjudicated guilty or for which adjudication was withheld? What crime or crimes? When and where were you found guilty and what was the sentence in each case?

19. Who are your judicial role models? Why?

20. What well-known U.S. or Florida Supreme Court judge (living or dead) do you most admire and why?

21. How do you define success?

III. Effectiveness.

1. Please describe your first- hand experiences, if any, dealing with people who are different from you socially, economically, or politically.

2. What are your views on whether the courts in Pinellas County, as a whole, deal effectively with racial and gender bias?

3. How do you deal with difficult people, including peers, lawyers, clients or litigants?

4. Please describe a situation in which you took a controversial position that angered or offended people and explain how you handled it.

5. How would you deal with a pro se party appearing in your court?

6. If you observed a party in your courtroom being poorly represented by an unprepared or ineffective lawyer, how would you handle the situation?

7. How would you prepare yourself to handle cases involving unfamiliar areas of the law?

8. Are you an experienced trial lawyer? If not, how will you be able to understand the practical problems and everyday pressures of the lawyers who appear before you in trial (such as uncooperative witnesses or unsophisticated clients)? If so, what qualities of a trial judge have given you the most problems, and how would you ensure that you won’t treat lawyers the same way, given the administrative pressures of your calendar and budgetary limitations?

9. Please describe your administrative experience. What are your primary strengths as a supervisor? As an administrator?

10. Do you believe you would encounter any problems moving from your role as an advocate to a new role as a judge?

11. While serving on the bench, do you believe you have a role in bringing important legal or judicial issues before the public or the legislature? Why or why not? What should your role be?

12. Is it appropriate to impose more restrictions on what cases go to trial? Is there a need for more mandatory mediation and settlement efforts? What specifically do you propose to do about this, if elected?

13. How do you feel about changing court rules to transfer more of the routine and less serious matters to court commissioners and private arbitrators?

14. What should be the role of private judging companies in the judicial system?

15. What is your general judicial philosophy?

16. What is your vision for the future of our judicial system? What changes would you advocate and why?

17. Do judges have an obligation to improve public understanding of the courts? If so, how should they carry out that obligation?

18. What are your views on whether the court, as a whole, deals effectively with racial and gender bias?

19. Would you favor or oppose a system in which all sentencing decisions were routinely reported in local newspapers, indexed by the name of the judge?

20. Would you be willing to act as a settlement judge? What are the pros and cons of alternative dispute resolution?

21. Do you think the court system is working or do you believe the civil or criminal justice system is breaking down?

22. What types of clients have you represented while you have been an attorney?

23. What are your views on the need for more diversity on the bench and the manner in which the court treats members of different races?

24. Why should voters support you rather than your opponent?

25. What were the most important cases you had as a lawyer and why did you take the position you did in those cases?

26. Why do you believe you received the ratings you received from the organizations which rated you for the position of judge? Why do you believe you received the evaluations you received from the organizations which rated you for your position on the bench? (incumbents only)

27. Do you possess any expertise in a field other than law?

28. To what extent do you believe that a judge should or should not defer to actions of a legislature?

29. What is your most significant contribution to thr legal profession?

30. The California Supreme Court has recently ruled on the constitutionality of a state law that banned same sex marriage in California. As a judge, how would you go about determining how to rule on this issue if it appeared before you in your courtroom?

31. Do you agree with the following statement? “The Florida Constitution recognizes a right to same sex marriage.”

32. In re: TW, 551 So. 2d 1186 (Fla. 1989), held that a Florida law requiring parental consent before a minor child can undergo an abortion surgery was unconstitutional under Art. I, Sec. 23 of the Florida Constitution. The Florida Supreme Court held that the challenged statute fails because it intrudes upon the privacy of the pregnant minor from conception to birth. The TW court also ruled that where parental rights over a minor child are concerned, neither the state’s interest in protecting a minor child nor the preservation of the family unit is sufficiently compelling under Florida law to override Florida’s privacy amendment. Do you agree with the Court’s ruling in In re: TW?

33. In Krischer v. McIver, 697 So. 2d 97 (Fla. 1997), the Florida Supreme Court held that a statute prohibiting assisted suicide did not violate Art. I, Sec. 23 (the Privacy Clause) of the Florida Constitution, because any asserted privacy interest in assisted suicide was outweighed by state’s compelling interests in preserving life, preventing suicide, and maintaining integrity of the medical profession. Do you agree with the court’s decision in Krischer?

34. Lofton v. Kearney, 157 F. Supp. 2d 1372 (Fla. 2001), held that a Florida law prohibiting homosexual adoption does not violate the Equal Protection Clause of the U.S. Constitution. Do you agree with this holding?

35. Bush v. Holmes, 919 So. 2d 392 (Fla. 2006), held that Florida’s educational voucher program (the “Florida Opportunity Scholarship Program”) violated the Florida Constitution because it “diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Florida Constitution for the state to provide for the education of Florida’s children.” Do you agree with the reasoning of Bush v. Holmes?

36. In Delgado v. State, 776 So. 2d 233 (Fla. 2000), the Florida Supreme Court relied upon legal precedent in New York and other states and added the new element of “surreptitiously” to Florida’s statutory definition of burglary. At the time of the opinion, the text of the Florida’s Statute on burglary, Sec. 810.02(1), F.S., (1989), did not contain the term “surreptitiously” in its definition: Entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain. Subsequently, the Legislature had to specifically nullify this Supreme Court opinion. Do you agree with the court’s addition of the required element of “surreptitiously” to Florida’s burglary statute in this case?

37. What steps would you, as an elected judge, take to maintain your independence from campaign contributors and special interest groups? Do you impose any limits beyond those required by law on contributions?

38. Florida currently has a mixed system of selecting judges. Most are elected by voters, and some are appointed to fill vacancies. Is this the best way to select judges and to ensure the highest quality judiciary? Are there specific reforms in the judicial selection process that you would like to see? What are the pros and cons of merit selection of judges versus election? Should sitting judges run for re-election rather than retention?

39. What would you say to a frustrated voter faced with a ballot with dozens of judicial candidates, almost all of whom are unknown to the voter, about how to cast an informed ballot?

40. Has the recent Supreme Court decision on the First Amendment rights of judicial candidates altered your views on and/or approach to “campaigning” for judicial office?

41. In close cases, judges (particularly appellate judges) often have choices to make as to the direction in which they believe the law should go. In those circumstances, some of the greatest judges have been activists, others have practiced restraint, and others have followed no particular philosophy about the place of the judiciary in our system of separate branches sharing power. Which of these approaches/philosophies best captures your views of the proper role of judges in society?

42. It is often said that because the judiciary neither commands the sword nor the purse, its power and legitimacy rest on the persuasiveness of its opinions. Yet a large number of cases -- even cases worth large sums of money and presenting significant and/or novel legal issues -- are resolved in the Circuit Courts of Florida through the issuance of one line orders that fail to give even an inkling of the Court’s reasoning. Do you see this as a problem for the judiciary? If so, do you have any ideas on how to remedy the problem? How should orders – particularly those subject to appeal – be written? As a prospective circuit/county judge, do you believe the parties are entitled to the basis of your ruling including the findings of fact and your application of the law to those findings of fact? Please offer your thoughts.

43. Recently proponents of “Sunshine in Litigation” have gotten the Florida Legislature to pass a law, Sec. 69.081, F.S., to eliminate or severely restrict the judicial entry of protective orders in litigation between private parties involving products that may be considered dangerous to the public. Opponents of these efforts argue that protective orders are necessary to ensure privacy, protect trade secrets and foster settlements. What is your view of the role which protective orders serve in the efficient resolution of private litigation? Do you agree that judges should have broad discretion to enter such orders when appropriate? How would you respond to each side of the debate?

44. Are there civil litigation reforms that you would like to see enacted to remedy particular problems that you have detected, either as a practicing lawyer or as a sitting judge? Are there reforms that would benefit the civil justice system? What needs to be changed? Should the enactment of any such changes be the province of the legislature, the Supreme Court or by Constitutional amendment?

45. Do you feel that our judicial system adequately deters and penalizes frivolous litigation? If not, what reforms would you like to see?

46. Do you believe the Florida Constitution precludes legislative establishment of limitations on civil damages? Are there or should there be distinctions among economic, non-economic and punitive damages?

References:

Republican Party of Minnesota v. White, 536 U.S. 765 (2002)
American Civil Liberties Union v. The Florida Bar, 999 F.2d 1486 (11th Cir. 1993)
In re Kinsey, 842 So. 2d 77 (Fla. 2003)
In re Alley, 699 So. 2d 1369 (Fla. 1997)
In re Code of Judicial Conduct, 643 So. 2d 1037 (Fla. 1994)
Florida Code of Judicial Conduct, Canons 3B(9), 4B and 7A(3)(d)(i)
Florida Judicial Ethics Advisory Opinions, 94-34, 94-35, 02-13, 02-16 and 06-18

Vindictive Sentencing

2008-05-27T22:38:00.000-07:00

The issue of vindictive sentencing can arise at original sentencing or at resentencing. A vindictive sentence is imposed where the defendant is punished for exercising his or her appellate rights or where any judicially imposed penalty needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial, and such a sentence is patently unconstitutional.(1) Vindictiveness in sentencing does not mean that the trial judge affirmatively intends to punish the defendant for rejecting a plea. “Vindictive” in this context is a term of art which expresses the legal effect of a given course of action, and does not imply any personal or subjective animosity between the court and the defendant.(2)

In a narrow range of cases where there is no actual vindictiveness, but instead there is an apprehension on the part of the defendant to exercise his or her legal rights due to fear of retaliation from the court, vindictiveness may be presumed. The “Pearce presumption” of vindictiveness arose out of the cases of Clifton A. Pearce and William S. Rice. Pearce was convicted in a North Carolina court of assault with intent to rape and sentenced to serve 12 to 15 years in prison; Rice pleaded guilty to four charges of burglary and was sentenced in an Alabama court to serve a total of 10 years. After having served several years, Pearce was granted a new trial because a confession used against him was held to have been obtained in violation of his constitutional right not to be compelled to be a witness against himself; Rice’s conviction was set aside because, although he was indigent, he had not been provided with a court-appointed lawyer at the time he made his guilty plea. Both respondents were retried and again convicted. Rice’s sentence was increased to 25 years, and no credit was given for time he had previously served; Pearce was sentenced to 8 years which, when added to the time he had already served, amounted to a longer sentence than originally imposed. In neither case did the record contain any justification for the increased sentence, and so the United States Supreme Court reversed the sentences as being unconstitutionally vindictive.(3)

The presumption has been narrowed considerably since its initial pronouncement, but the law remains that due process of law requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he or she receives after a new trial. Since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his or her first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. In order to assure the absence of such a motivation, whenever a judge imposes a more severe sentence upon a defendant after the grant of collateral relief or a new trial than that judge originally imposed upon the defendant, the reasons for his doing so must affirmatively appear in the record. In order to rebut the presumption of vindictiveness, those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring before or after(4) the time of the original sentencing proceeding, and the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.(5) Those factors must also be stated with particularity and specificity.(6) A trial judge is thus not constitutionally precluded from imposing a new sentence, whether greater or less than the original sentence, in the light of events that may have thrown new light upon the defendant’s life, health, habits, conduct, and mental and moral propensities.(7) Such information may come to the judge’s attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant’s prison record, or possibly from other sources.(8)

When a defendant rejects an offer of a lesser sentence, the defendant assumes the risk of receiving a harsher sentence, but when the judge has been involved in the plea negotiation and then later imposes a harsher sentence, the sentence is presumed to be vindictive. This presumption may be overcome only if the record affirmatively demonstrates that the defendant’s insistence on a trial was given no consideration in the sentencing.(9)

As the United States Supreme Court explained in Texas v. McCullough,(10) however, the evil the Pearce Court sought to prevent was not the imposition of enlarged sentences after a new trial but vindictiveness of a sentencing judge. The presumption does not apply, in any event, unless there is a realistic likelihood of vindictiveness, or, in other words, the opportunities for vindictiveness must impel the conclusion that due process of law requires a rule analogous to that of the Pearce case.(11) A mere opportunity for vindictiveness is insufficient to justify the imposition of this prophylactic rule.(12) Accordingly, not every increase in sentence justifies the imposition of the rule announced in Pearce.(13)

The possibility of vindictiveness does not present itself in situations where the sentencing judge has no personal stake in the prior sentence and no motivation to engage in self-vindication.(14) The possibility of vindictiveness is not inherent in situations where the defendant is resentenced by a different judge or a different court, and the sentencing is conducted de novo,(15) where it is the original sentencing judge who grants the defendant’s motion for new trial or other collateral relief pertaining to sentencing,(16) or where a different judge imposes the second sentence and provides an on-the-record, wholly logical, nonvindictive reason for the sentence.(17) No presumption applies where the first sentence was imposed as a result of a guilty plea and the second sentence was imposed after trial because the defendant rejected an offer made by the prosecutor with no judicial participation in the plea discussions.(18) There is no basis for a presumption of vindictiveness where a second sentence imposed after trial is heavier than a first sentence imposed after a guilty plea.(19) Pearce does not per se prohibit imposing consecutive sentences after concurrent sentences are reversed on appeal.(20)

Where the presumption applies, the sentencing authority or the prosecutor must rebut the presumption that an increased sentence or charge resulted from vindictiveness; but in all cases where the presumption does not apply, the defendant has the burden of proving actual vindictiveness.(21) Absent a demonstration by the defendant of judicial vindictiveness or punitive action where the presumption of vindictiveness is not present, a defendant may not complain simply because he or she received a sentence after trial that was more severe than the pretrial offer of the State or the sentencing judge. There is, of course, no need to apply a presumption of vindictiveness if the record contains proof of actual vindictiveness.(22)

Where vindictive sentencing has been established, the remedy is resentencing before a different judge.(23) The successor judge is to conduct a de novo sentencing hearing at which no deference is to be granted to any of the sentencing proceedings which took place before the predecessor judge. The fact that the prior sentence was reversed as vindictive places no limit on the successor judge, who can impose a greater, lesser, or equal sentence as that judge sees fit and the law permits. The successor judge who imposes a greater sentence is not required to justify the sentence imposed on the basis of facts and circumstances unknown to the predecessor judge. This is because resentencing places the defendant in the same position he or she would have been in if the prior sentence had never occurred – before a neutral arbiter to receive a lawful sentence.(24)

1. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); City of Daytona Beach v. Del Percio, 476 So. 2d 197, 205 (Fla. 1985) (quoting Gillman v. State, 373 So. 2d 935, 938 (Fla. Dist. Ct. App. 2d Dist. 1979)).

2. Longley v. State, 902 So. 2d 925 (Fla. Dist. Ct. App. 5th Dist. 2005) n 5; see also, Cambridge v. State, 884 So. 2d 535 (Fla. Dist. Ct. App. 2d Dist. 2004); Harris v. State, 845 So. 2d 329 (Fla. Dist. Ct. App. 2d Dist. 2003); Charles v. State, 816 So. 2d 731 (Fla. Dist. Ct. App. 3d Dist. 2002).

3. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

4. The Pearce Court did not intend to confine the sentencing authority’s consideration to “conduct” occurring subsequent to the first sentencing proceeding. See, Wasman v. United States, 468 U.S. 559, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984).

5. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

6. Kramer v. State, 868 So. 2d 1246 (Fla. Dist. Ct. App. 4th Dist. 2004); North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

7. Williams v. New York, 337 U.S. 241, 245, 69 S. Ct. 1079, 1082, 93 L. Ed. 1337 (1949).

8. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

9. McDonald v. State, 751 So. 2d 56 (Fla. Dist. Ct. App. 2d Dist. 1999).

10. Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L. Ed. 2d 104 (1986).

11. Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 40 L. Ed. 2d 628 (1974).

12. United States v. Goodwin, 457 U.S. 368 at 384, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982).

13. See, Blackledge v. Perry, 417 U.S. 21, 26, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974).

14. Chafin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973).

15. Colten v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972) (sentencing before different court); see also, Chafin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973) (jury sentencing); Texas v. McCullough, 475 U.S. 134, 138, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986); Fitts v. Commonwealth, 2005 WL 2674991 (Ky. 2005) (jury sentencing); State v. Parmelee, 121 Wash. App. 707, 90 P. 3d 1092 (Ct. App. Wash. 2004) (different judge); State v. Starr, 998 S.W. 2d 61 (Ct. App. Mo. 1999) (different judge); State v. Percy, 156 Vt. 468, 595 A. 2d 248 (Vt. 1990) (different sentencers); State v. Hilton, 291 S.C. 276, 353 S.E. 2d. 282, cert. denied, 484 U.S. 832, 108 S. Ct. 106, 98 L. Ed. 2d 66 (1987) (different judge).

16. Texas v. McCullough, 475 U.S. 134, 138, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986).

17. Texas v. McCullough, 475 U.S. 134, 138, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986); see also, Macomber v. Hannigan, 15 F. 3d 155 (10th Cir. 1994).

18. Wilson v. State, 845 So. 2d 142 (Fla. 2003).

19. Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989).

20. Netherly v. State, 873 So. 2d 407 (Fla. Dist. Ct. App. 2d Dist. 2004).

21. Wasman v. United States, 468 U.S. 559, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984); see also, Kopko v. State, 709 So. 2d 159 (Fla. Dist. Ct. App. 5th Dist. 1998).

22. Texas v. McCullough, 475 U.S. 134, 138, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986); Wasman v. United States, 468 U.S. 559, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984); United States v. Goodwin, 457 U.S. 368, 380-81, 103 S. Ct. 2485, 73 L. Ed. 2d 74 (1982).

23. Wilson v. State, 845 So. 2d 142, 158-59 (Fla. 2003).

24. Wilson v. State, 845 So. 2d 142 (Fla. 2003); Dominguez v. State, 924 So. 2d 58 (Fla. Dist. Ct. App. 3d Dist. 2006).
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COMMENTS

The following is a sample of some of the questions this post has generated.

K.K. writes on September 18, 2008:

“I was doing a websearch on vindictive sentences. I found you and hope that you can help. My husband is serving 30 months for driving with suspended licenses. He's done a year so far. He says there is a guy there that can help him if his sentence is vindictive. i dont want my husband to have to do longer for trying this and i dont want him getting his hopes up either. But i would like him home if possible. He was on probation for his license and was given a suspended sentence. However he did not score enough points to go to prison. The state and the public defender both agreed that the sentence was harsh. He violated by failing his drug test. Can you help us or give us some kind of information, please. Thank you in advance.”

ANSWER: Harsh is not the same as vindictive, and length of sentence is not per se evidence of vindictiveness. Where a defendant is placed on probation with a suspended sentence of incarceration and subsequently violates the terms of supervision, the sentencing court can impose any lawful sentence that could have originally been imposed, even in excess of the suspended period of incarceration that was part of the original sentencing and even if the length of the suspended sentence was part of a plea bargain.(1) For felony offenses, the defendant can be sentenced to prison for up to the statutory maximum, even where the defendant does not have enough points on his or her Criminal Punishment Code scoresheet to mandate a prison sentence. One consideration that any defendant should make when attempting to overturn a sentence that is less than the statutory maximum is that he or she can and receive an increased sentence upon resentencing.
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(1) State v. Seguerra, 388 So. 2d 1017 (Fla. 1980).

Increased Punishment Upon Resentencing

2008-04-22T16:20:00.000-07:00

The constitutions of Florida and the United States impose no limitations whatever upon the power to retry a defendant who has succeeded in getting his or her first conviction set aside.(1) A corollary of the power to retry a defendant is the power, upon the defendant’s reconviction, to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction.(2) That a defendant’s conviction is overturned on collateral rather than direct attack is irrelevant for these purposes.(3) A defendant who has previously been sentenced may thus be resentenced upon remand from an appellate court, upon the trial court’s granting of a motion to correct a sentencing error pursuant to Fla. R. Crim. P. 3.800, or upon vacatur of the sentence for fraud or misrepresentation, without running afoul of due process, equal protection, or double jeopardy considerations. These constitutional guarantees also impose no restrictions upon the length of a sentence imposed upon resentencing.

The controlling constitutional principle in the double jeopardy guarantee is a prohibition against multiple trials, and even this protection is not absolute.(4) The double jeopardy guarantee does not confer immunity from punishment because of a defect sufficient to constitute reversible error in previous proceedings.(5) The double jeopardy clause is not an absolute bar to the imposition of an increased sentence on remand from appellate review of an issue of law concerning the original sentence.(6) This is because sentences do not have the constitutional quality of finality that attends an acquittal.(7)

For example, a defendant who was erroneously sentenced as a habitual offender on the basis of offenses that did not qualify him for such status (e.g., use of a misdemeanor prior conviction mistaken for a felony), and the defendant successfully has the sentence overturned as illegal, on remand the State is free to introduce any other convictions which qualify the defendant as a habitual offender and the court may so sentence the defendant.(8) Similarly, upon remand for resentencing of a defendant after reversal of the sentence, if the trial court lawfully could have imposed a multiplier at the time of the original sentencing, double jeopardy principles are not violated where the trial court imposes the multiplier at sentencing after remand.(9) Where, however, the trial court expressly elects not to sentence as a habitual offender, such an election constitutes a determination that cannot be revisited without violating double jeopardy, and so the court which has made such an election is precluded from imposing a habitual offender sentence on remand.(10)

The rationale for this part of our constitutional jurisprudence rests ultimately upon the premise that the original sentence has, at the defendant’s behest or as a result of the defendant’s fraud or misrepresentation, been wholly nullified and the slate wiped clean. As to whatever punishment has actually been suffered under the first sentence, that premise is a fiction, but, so far as that part of the sentence that has not yet been served, it will never be served.(11) This also supports the policy considerations that sanctions imposed are always proportionate to the seriousness of the offense of conviction and the defendant’s criminal history, and that offenders with similar offenses will receive similar sanctions.

1. See, e.g., Stroud v. United States, 251 U.S. 15, 40 S. Ct. 50, 64 L. Ed. 103 (1919); Bryan v. United States, 338 U.S. 552, 70 S. Ct. 317, 94 L. Ed. 335 (1950); Forman v. United States, 361 U.S. 416, 80 S. Ct. 481, 4 L. Ed. 2d 412 (1960); United States v. Tateo, 377 U.S. 463, 84 S. Ct. 1587, 12 L. Ed. 2d 448 (1964).

2. In Stroud v. United States, 251 U.S. 15, 40 S. Ct. 50, 64 L. Ed. 103 (1919), the defendant was convicted of first-degree murder and sentenced to life imprisonment. After reversal of this conviction, the defendant was retried, reconvicted of the same offense, and sentenced to death. The United States Supreme Court upheld the conviction against the defendant’s claim that his constitutional right not to be twice put in jeopardy had been violated. See also, Murphy v. Massachusetts, 177 U.S. 155, 20 S. Ct. 639, 44 L. Ed. 711 (1900).

3. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

4. See, United States v. DiFrancesco, 449 U.S. 117, 132, 66 L. Ed. 2d 328, 101 S. Ct. 426 (1980).

5. See, United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980).

6. See, Harris v. State, 645 So. 2d 386 (Fla. 1994).

7. See, United States v. DiFrancesco, 449 U.S. 117 at 130, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980); see also, Goene v. State, 577 So. 2d 1306 (Fla. 1991).

8. See, Singleton v. State, — So. 2d —, 2007 WL 2712037 (Fla. Dist. Ct. App. 4th Dist. 2007); Margiotti v. State, 844 So. 2d 829 (Fla. Dist. Ct. App. 3d Dist. 2003); Plute v. State, 835 So. 2d 368 (Fla. Dist. Ct. App. 2d Dist. 2003); Gordon v. Moore, 832 So. 2d 880, 887 (Fla. Dist. Ct. App. 3d Dist. 2002); Deleveux v. State, 762 So. 2d 1062 (Fla. Dist. Ct. App. 3d Dist. 2000).

9. Trotter v. State, 825 So. 2d 362 (Fla. 2002) (imposition of drug trafficking multiplier at sentencing after remand).

10. Spencer v. State, 739 So. 2d 1247 (Fla. Dist. Ct. App. 1st Dist. 1999) (Habitual Violent Felony Offender); Grimes v. State, 616 So. 2d 996 (Fla. Dist. Ct. App. 1st Dist. 1992) (Habitual Offender).

11. See, North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

What "Before the Court for Sentencing" Means

2008-02-01T05:23:00.000-08:00

A court may not impose sentence for an offense unless the offense is before the court for sentencing. The matter of whether an offense is, or is not, pending before the court for sentencing often leads to considerable debate. As a general rule, an offense should not be considered as "pending" before the trial court for sentencing unless a verdict of guilt or a plea of guilty or nolo contendere has been obtained; offenses for which the defendant has entered a not guilty plea or denial, and is awaiting trial or a final hearing, are not considered pending for sentencing purposes.(1) One scoresheet must be used for every pending case that meets this definition.(2) As a corollary, a presumption then arises that sentencing should not be delayed merely because other cases that fail to meet this definition are pending against the same defendant in the same court.(3) In other words, a judge does not have to wait for disposition of a pending case before imposing sentence in a case that has been resolved by plea or trial.(4)

A broad exception to this rule is that defendants are allowed to move a trial court to delay sentencing so that a single scoresheet can be used in two or more cases pending against the same defendant in the same court at the same time, regardless of whether a plea of guilty or nolo contendere or a conviction has been obtained. The trial court must grant the motion when the defendant can show that the use of a single scoresheet would not result in an unreasonable delay in sentencing. For each sentence that would not be unreasonably delayed, the trial court must order simultaneous sentencing.(5) There is, however, no requirement that a trial court delay sentencing on a completed case while awaiting the outcome of future trials where it is only speculative that those other cases might be ready for disposition soon and where those cases in fact might not be ready for disposition for many months or years.(6)

In combined proceedings, such as where the defendant has a new offense that is also the basis of a violation of probation, the discretion of the court is quite limited. A judge must, when he or she knows that both the offense underlying the probation and the new charge which forms the basis for the violation of probation would be pending (or would be pending shortly) before the court for sentencing, impose sentence on the basis of a single scoresheet that includes the violation of probation and the new open offense and may not split the two and sentence them using separate scoresheets.(7) This also means that a trial court may not engage in sentence manipulation through the use of separate scoresheets to impose an illegal departure or alternative sentence in derogation of the sentencing guidelines or the Criminal Punishment Code(8) for, as the Florida Supreme Court has often made clear, only when the legislature expressly authorizes sentencing outside the guidelines or Criminal Punishment Code may a court do so(9) and sentencing alternatives should not be used to thwart sentencing guidelines or the Criminal Punishment Code.(10)

The burden falls on the defendant to request simultaneous sentencing when one or more of the offenses do not meet the "pending for sentencing" definition. Otherwise, it is the trial court’s burden to assure that all of a defendant’s cases pending for sentencing in a particular county at the time of the defendant’s first sentencing hearing are disposed of using one scoresheet.(11) The defendant has the burden to move a trial court to delay sentencing so that a single scoresheet can be used in two or more cases pending against the same defendant in the same court at the same time, regardless of whether a plea of guilty or nolo contendere or a conviction has been obtained, although the State normally seeks consolidated sentencing of all pending charges. The trial court must grant the motion and order simultaneous sentencing when the defendant can show that the use of a single scoresheet would not result in an unreasonable delay in sentencing.(12) An example would be where the defendant enters an admission to a violation of probation (VOP) and asks that the court not sentence him or her until a verdict is obtained in an upcoming trial on an unrelated charge.(13) Failure of the defense to seek consolidated sentencing where the defendant’s total overall sentence would be shorter will result in reversal of the sentence for ineffective assistance of counsel.(14)

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1. Clark v. State, 572 So. 2d 1387 (Fla. 1991); see, Nelson v. State, 498 So. 2d 553 (Fla. Dist. Ct. App. 4th Dist. 1986).

2. Fla. R. Crim. P. 3.704(d)(2).

3. Fla. R. Crim. P. 3.720.

4. Jacobs v. State, 533 So. 2d 911 (Fla. Dist. Ct. App. 2d Dist. 1988); Parrish v. State, 527 So. 2d 926 (Fla. Dist. Ct. App. 2d Dist. 1988).

5. Clark v. State, 572 So. 2d 1387 (Fla. 1991).

6. Clark v. State, 572 So. 2d 1387 (Fla. 1991); Parrish v. State, 527 So. 2d 926 (Fla. Dist. Ct. App. 2d Dist. 1988).

7. Gonzalez v. State, 821 So. 2d 1194 (Fla. Dist. Ct. App. 3d Dist. 2002); Joyce v. State, 586 So. 2d 456 (Fla. Dist. Ct. App. 2d Dist. 1991); Bembow v. State, 520 So. 2d 312 (Fla. Dist. Ct. App. 2d Dist. 1988); Render v. State, 516 So. 2d 1085 (Fla. Dist. Ct. App. 2d Dist. 1987) ("[T]he spirit of [Rule 3.701(d)(1)] would be defeated by allowing separate sentencing based on separate scoresheets where . . . the sentences are imposed in the same day in combined proceedings"), approved by, Clark v. State, 572 So. 2d 1387 (Fla. 1991).

8. See, Vileta v. State, 454 So. 2d 792 (Fla. Dist. Ct. App. 2d Dist. 1984).

9. See, Disbrow v. State, 642 So. 2d 740, 741 (Fla. 1994) at 741.

10. See, Jones v. State, 813 So. 2d 22 (Fla. 2002); Disbrow v. State, 642 So. 2d 740, 741 (Fla. 1994); Poore v. State, 531 So. 2d 161, 165 (Fla. 1988); see also King v. State, 648 So. 2d 183, 190 (Fla. Dist. Ct. App. 1st Dist. 1994), quashed on other grounds, 681 So. 2d 1136 (Fla. 1996).

11. Snouffer v. State, 684 So. 2d 247 (Fla. Dist. Ct. App. 2d Dist. 1996).

12. Clark v. State, 572 So. 2d 1387 (Fla. 1981); see also, Foster v. State, 576 So. 2d 937 (Fla. Dist. Ct. App. 5th Dist. 1991), wherein it was observed:

"The Clark court has, by permitting the defendant (at his option) to require a continuance so that multiple offenses charged in different informations eventually come before a sentencing court at or about the same time, converted the language of the rule to merely mean "pending before the court" and has eliminated the limiting language "for sentencing." The original wording of the rule at least encouraged the defendant to consolidate his charges for simultaneous disposition in order to get the benefit of a single scoresheet: the "new" rule eliminates this incentive. Further, any rule that gives the defendant a free ride after his initial conviction for all additional crimes in the hopper makes crimes, like donuts, cheaper by the dozen. While this is a good marketing device to increase the sales of donuts, its value in discouraging multiple crimes is suspect." (Harris, J., concurring specially).

13. See, Gallagher v. State, 476 So. 2d 754 (Fla. Dist. Ct. App. 5th Dist. 1985).

14. Gonzalez v. State, 821 So. 2d 1194 (Fla. Dist. Ct. App. 3d Dist. 2002); State v. Williams, 624 So. 2d 407 (Fla. Dist. Ct. App. 2d Dist. 1993).

Pre-Plea Downward Departure Sentencing Hearings

2008-01-29T06:17:00.000-08:00

One of the most practiced ways to mitigate a defendant’s sentence, where no other alternatives are available, is through a downward departure from the Criminal Punishment Code sentencing "floor." It is, in fact the practice of some defense counsel to seek a "departure hearing" before a defendant enters a plea to test the court for leniency, although some courts will not entertain such a hearing until the defendant has pled.

Pre-plea "departure hearings" comprise an unauthorized blending of plea discussion and agreement with the conduct of a sentencing hearing, and the creation of a legal fiction that an offense is not "before the court for sentencing," so as to evade requirements of the Florida Rules of Criminal Procedure and statutory law. Such hearings are a means for the defendant to get a commitment from the presiding judge as to whether and how much of a downward departure sentence he or she will impose if and when the defendant decides to plea without making any commitment in return. Typically, these hearings are used by the defendant to put on evidence in mitigation without the defendant accepting any responsibility for having committed any wrongful act, which is a contradiction the Rules of Criminal Procedure are designed to prevent. This technique also places a legally unrecognizable burden on the prosecutor and any victim or victims involved to overcome such mitigation and persuade the judge not to depart downward in the event that the defendant does decide to enter a plea. Under the former guidelines, where upward departure was a possibility, the prosecutor would often try to blunt the defense request for downward departure by putting on evidence in aggravation and requesting an upward departure during the same hearing. Additionally, the conduct of a pre-plea departure hearing tends to invert and short-circuit the trial process by substituting the defendant’s case for leniency for the prosecutor’s presentation of all relevant evidence of guilt before a jury in a trial. Such a procedure is also contrary to principles of judicial economy and entails the potential for otherwise unnecessary and avoidable recusal consequences.

The jurisdiction of circuit courts is defined by section 26.012, F.S.; that of the county courts by section 34.01, F.S. Plea discussion and agreement is governed by Fla. R. Crim. P. 3.171; the conduct of a sentencing hearing is governed by Fla. R. Crim. P. 3.720 and is predicated upon a finding of guilt after plea or jury verdict. While the trial court may participate in plea discussions upon request of a party and once involved, the court may actively discuss potential sentences and comment on proposed plea agreements, so long as the court acts to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter,(1) nothing in the plain language of the applicable statutes or rules authorizes either the prosecution or the defense to request, or the presiding judge to issue, non-binding advisory opinions as are sought in such pre-plea departure sentencing hearings. A trial judge does not, therefore, have discretion to conduct a sentencing departure hearing prior to the entry of a plea or a conviction by jury.

Regardless, absent explicit statutory authority, downward departure from statutorily-imposed non-guidelines or non-Criminal Punishment Code minimum mandatory sentencing is prohibited.(2)
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1. Wilson v. State, 845 So. 2d 142 (Fla. 2003).

2. See, State v. Crews, 884 So. 2d 1139 (Fla. Dist. Ct. App. 2d Dist. 2004) (delivery of cocaine within 1,000 feet of a school); State v. Andrews, 875 So. 2d 686 (Fla. Dist. Ct. App. 4th Dist. 2004) (aggravated assault on a law enforcement officer); Kelley v. State, 821 So. 2d 1255 (trafficking in cocaine).

Violent Felony Offenders of Special Concern (VFOSC)

2008-01-24T07:29:00.000-08:00

In response to questions about Florida's "Anti-Murder Act" and the creation of the designation "Violent Felony Offender of Special Concern," or VFOSC, I am posting the following summary:

On March 8, 2007, the Florida legislature passed the "Anti-Murder Act," which was signed into law by the Governor on March 12, 2007 as Chapter 2007-2, Laws of Florida. The Act amended section 948.06(4), F.S., to create six classes of "violent felony offender of special concern" (VFOSC). For purposes of sections 903.0351 (bail), 948.064 (notification), and 921.0024 (scoresheet), the term "violent felony offender of special concern" means a person who is on:

1. Felony probation or community control related to the commission of a qualifying offense committed on or after March 12, 2007.

2. Felony probation or community control for any offense committed on or after March 12, 2007, and has previously been convicted of a qualifying offense. "Convicted" in this regard means a determination of guilt which is the result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is imposed or withheld.

3. Felony probation or community control for any offense committed on or after March 12, 2007, and is found to have violated that probation or community control by committing a qualifying offense. Note that only a "finding," and not a conviction, is required.

4. Felony probation or community control and has previously been found by a court to be a habitual violent felony offender as defined in section 775.084(1)(b), and has committed a qualifying offense on or after March 12, 2007.

5. Felony probation or community control and has previously been found by a court to be a three-time violent felony offender as defined in section 775.084(1)(c), and has committed a qualifying offense on or after March 12, 2007.

6. Felony probation or community control and has previously been found by a court to be a sexual predator under section 775.21, and has committed a qualifying offense on or after March 12, 2007.

For purposes of section 948.06, the term "qualifying offense" means any of the following:

1. Kidnapping or attempted kidnapping under section 787.01, false imprisonment of a child under the age of 13 under section 787.02(3), or luring or enticing a child under section 787.025(2)(b) or (c).

2. Murder or attempted murder under section 782.04, attempted felony murder under section 782.051, or manslaughter under section 782.07.

3. Aggravated battery or attempted aggravated battery under section 784.045.

4. Sexual battery or attempted sexual battery under section 794.011(2), (3), (4), or (8)(b) or (c).

5. Lewd or lascivious battery or attempted lewd or lascivious battery under section 800.04(4), lewd or lascivious molestation under section 800.04(5)(b) or (c)2., lewd or lascivious conduct under section 800.04(6)(b), or lewd or lascivious exhibition under section 800.04(7)(c).

6. Robbery or attempted robbery under section 812.13, carjacking or attempted carjacking under section 812.133, or home invasion robbery or attempted home invasion robbery under section 812.135.

7. Lewd or lascivious offense upon or in the presence of an elderly or disabled person or attempted lewd or lascivious offense upon or in the presence of an elderly or disabled person under section 825.1025.

8. Sexual performance by a child or attempted sexual performance by a child under section 827.071.

9. Computer pornography under section 847.0135(2) or (3), transmission of child pornography under section 847.0137, or selling or buying of minors under section 847.0145.

10. Poisoning food or water under section 859.01.

11. Abuse of a dead human body under section 872.06.

12. Any burglary offense or attempted burglary offense that is either a first-degree felony or second-degree felony under section 810.02(2) or (3).

13. Arson or attempted arson under section 806.01(1).

14. Aggravated assault under section 784.021.

15. Aggravated stalking under section 784.048(3), (4), (5), or (7).

16. Aircraft piracy under section 860.16.

17. Unlawful throwing, placing, or discharging of a destructive device or bomb under section 790.161(2), (3), or (4).

18. Treason under section 876.32.

19. Any offense committed in another jurisdiction which would be an offense listed in this paragraph if that offense had been committed in this state.

In the case of an alleged violation of probation or community control other than a failure to pay costs, fines, or restitution, the act provides that the following individuals shall not be released and shall not be admitted bail, but shall be brought before the court that granted the probation or community control and remain in custody pending the resolution of the probation or community control violation:

1. A VFOSC, as defined in section 948.06(8), F.S.;

2. A person who is on felony probation or community control for any offense committed on or after the effective date of this act and who is arrested for a VFOSC qualifying offense; or

3. A person who is on felony probation or community control and has previously been found by a court to be a habitual violent felony offender as defined in section 775.084(1)(b), a three-time violent felony offender as defined in section 775.084(1)(c), or a sexual predator under section 775.21, and who is arrested for committing a VFOSC qualifying offense on or after the effective date of this act.

This means that a defendant described in paragraphs 1-3, supra, cannot be given bail under any circumstances until the VOP or VOCC is resolved, notwithstanding any other provision in the law. More specifically, while section 948.06(4) provides that if the probationer or offender is under supervision for any criminal offense proscribed in chapter 794, section 800.04(4), (5), (6), section 827.071, or section 847.0145, or is a registered sexual predator or a registered sexual offender, or is under supervision for a criminal offense for which he or she would meet the registration criteria in section 775.21, section 943.0435, or section 944.607 but for the effective date of those sections, the court is required to conduct a "dangerousness" hearing and has the discretion to release such an offender "with or without bail to await further hearing," such an offender who is also a VFOSC or is VFOSC-qualified cannot be released or be granted bail under any circumstances.

The act provides that the court shall not dismiss the probation or community control violation warrant pending against an offender enumerated in paragraphs 1-3, supra, without holding a recorded violation-of-probation hearing at which both the state and the offender are represented. If the court, after conducting the required hearing, determines that a VFOSC has committed a violation of probation or community control other than a failure to pay costs, fines, or restitution, the court must:

1. Make written findings as to whether or not the violent felony offender of special concern poses a danger to the community. In determining the danger to the community posed by the offender's release, the court must base its findings on one or more of the following:

a. The nature and circumstances of the violation and any new offenses charged.

b. The offender's present conduct, including criminal convictions.

c. The offender's amenability to nonincarcerative sanctions based on his or her history and conduct during the probation or community control supervision from which the violation hearing arises and any other previous supervisions, including disciplinary records of previous incarcerations.

d. The weight of the evidence against the offender.

e. Any other facts the court considers relevant.

2. Decide whether to revoke the probation or community control.

If the court has found that a VFOSC concern poses a danger to the community, the court must revoke probation and "shall" sentence the offender up to the statutory maximum, or longer if permitted by law. If the court has found that a VFOSC does not pose a danger to the community, the court may revoke, modify, or continue the probation or community control or may place the probationer into community control.

This means that a court cannot summarily dismiss a VOP or VOCC of a VFOSC or VFOSC-qualifying defendant.

Presently, community sanction violation points are assessed when a community sanction violation is before the court for sentencing. Six sentence points are assessed for each community sanction violation, and each successive community sanction violation, unless the community sanction violation includes a new felony conviction before the sentencing court, in which case twelve community sanction violation points are assessed for the such violation, and for each successive community sanction violation involving a new felony conviction.

The act changes this for VFOSC defendants: If the community sanction violation is committed by a VFOSC as defined in section 948.06, twelve community sanction violation points are assessed for the violation and for each successive violation of felony probation or community control where the violation does not include a new felony conviction, and the community sanction violation is not based solely on the probationer or offender's failure to pay costs or fines or make restitution payments, and twenty-four community sanction violation points are assessed for the violation and for each successive violation of felony probation or community control where the violation includes a new felony conviction.