Sentence Mitigation: Acceptance of Responsibility

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

A common and longstanding practice in the trial courts of Florida is to reward defendants who accept responsibility for their actions with lighter sentences than those defendants might otherwise have received. Many prosecutors encourage this form of sentence mitigation and it is not unusual for prosecutors to agree to downward departure sentences for such defendants in appropriate circumstances, usually early in the case. Appellate courts have noted that acceptance of responsibility is an appropriate factor for the court to consider in mitigating a sentence.¹ As a practical matter, early acceptance of responsibility can show actual or potential rehabilitation,² and it furthers the important state interests in judicial efficiency and economy. There is, however, no consensus within the trial and appellate courts as to what “acceptance of responsibility” or “early acceptance of responsibility” is, and so it is an open question as to whether or not this is a valid stand-alone basis for departure below a presumptive minimum sentence.

Sentence Mitigation: Extraordinary Restitution

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

Ordinarily, the payment or promised payment of restitution is not a basis for downward departure outside of the provisions of sections 921.0026(2)(e) and 921.185, Florida Statutes. A further basis for downward departure may be extraordinary restitution, whether paid before or after a defendant enters a plea, where the defendant demonstrates acceptance of responsibility and makes exceptional efforts to fully remedy the harm caused by the offense. The sentencing laws of Florida do not prohibit downward sentencing departures in such situations and no Florida appellate court has taken up the issue. Nonetheless, such a departure is arguably permitted in appropriate circumstances by the provisions of subsections 921.002(1)(c)¹ and (3).²

Concurrent and Consecutive Sentencing Alternatives in Florida

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

The basic alternatives for concurrent and consecutive sentencing alternatives under Florida law are as follows:

Discretionary Consecutive Sentencing

Same Indictment, Information, or Affidavit: A defendant convicted of two or more offenses charged in the same indictment, information, or affidavit or in consolidated indictments, informations, or affidavits must serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively.¹ The court must affirmatively express its intention that such sentences are to run concurrently; otherwise, they will run consecutively.²

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

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

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

Early Termination of Probation of Community Control

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

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

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

Pursuant to section 948.05, Fla. Stat., a court may at any time cause a probationer or offender in community control to appear before it to be admonished or commended, and, when satisfied that its action will be for the best interests of justice and the welfare of society, it may discharge the probationer or offender in community control from further supervision.³  In the case of community control, the trial court also may grant “rollover” (conversion to probation) prior to the expiration of the term of community control, or termination of community control, if the court is satisfied that the defendant has met all conditions.⁴  Section 948.05 requires the court to respond to the facts and circumstances that develop during the term of supervision:  If the probationer or community controlee has fulfilled his or her obligations and has been a model for supervision, the interests of justice and the wise allocation of scarce resources may require that early termination of supervision be considered.⁵

Upward Departure Under the Criminal Punishment Code for Third Degree Felonies That Are Not Forcible Felonies

Hon. William H. Burgess, III

The general presumption under Florida’s Criminal Punishment Code (CPC) is that only those offenders scoring 44 or less points on the sentencing scoresheet may receive a non-state prison sanction, absent the sentencing court imposing a downward departure.  A further presumption is that, under the CPC, the sentencing judge can impose as a lawful sentence any amount of incarceration up to the statutory maximum for any offense before the court for sentencing under the CPC.  The CPC has, in almost every aspect, eliminated the “upward departure” of the former determinate guidelines sentencing schemes and replaced it with an indeterminate sentencing scheme in which the judge is free to sentence up to the statutory maximum without having to provide written reasons for doing so.

A statutory exception to indeterminate sentencing under the CPC is found in section 775.082(10), Fla. Stat.  Under that section, if a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third-degree felony but not a forcible felony as defined in section 776.08, and excluding any third-degree felony violation under chapter 810, and if the total sentence points pursuant to section 921.0024 are 22 points or fewer, the court must sentence the defendant to a nonstate prison sanction.  However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to section 775.082.¹

 The “danger” may, at least in some cases, encompass pecuniary or economic harm.²

Further Mitigation of a Youthful Offender Sentence Through Completion of a Basic Training “Boot Camp” Program

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

A way of further mitigation of a Youthful Offender (YO) sentence is through successful completion of a basic training, or “boot camp,” program run by the Department of Corrections (DOC), or a county of the state, authorized under section 958.04(4).¹

DOC is required to develop and implement a basic training program for youthful offenders sentenced or classified by the department as youthful offenders pursuant to chapter 958.  The period of time to be served at the basic training program must be no less than 120 days.²  The program is required to include marching drills, calisthenics, a rigid dress code, manual labor assignments, physical training with obstacle courses, training in decisionmaking and personal development, high school equivalency diploma and adult basic education courses, and drug counseling and other rehabilitation programs.³

Downward Departure Sentencing Where the Defendant Cooperated With the State to Resolve the Current Offense or Any Other Offense

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

The sentencing court can mitigate a presumptive prison sentence for which there is no applicable minimum mandatory non-minimum mandatory where the defendant cooperated with the State to resolve the current offense or any other offense.¹ In applying this basis to depart, the court must make a finding based on competent substantial evidence that a crime, or crimes, had been resolved as a result of the defendant’s cooperation.² A resolution implies that a decision or determination has been made, such as the filing of charges or the closing of a case.³ “Cooperation with the State” was originally intended for those situations when there are multiple codefendants and one makes a deal with the State Attorney to assist in the prosecution of the other codefendants, and was not for application to persons who simply cooperated with law enforcement.⁴ Cooperation with the State has since come to mean cooperation with law enforcement, and not just cooperation with the prosecutor.⁵

Downward Departure Sentencing Where the Need for Payment of Restitution to the Victim Outweighs the Need for a Prison Sentence

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

Consistent with the Fourteenth Amendment of the United States Constitution, when deciding what sentence to initially impose, a sentencing judge may consider the entire background of a defendant, including employment history, financial resources, and ability to make restitution. The Constitution does not preclude a judge from actively using the sentencing process to encourage payment of restitution to victims of crimes, nor does it prevent a judge from showing mercy by reducing the severity of a previously imposed legal sentence.¹

In weighing the need for restitution versus the need for imprisonment, a court must take into consideration all of the relevant factors, including the victim’s need for restitution and the defendant's ability to pay. Evidence in support of restitution includes findings such as the nature of the victim’s loss, the effectiveness of restitution, and the consequences of imprisonment.² The amount of restitution due must be substantial and not be minor.³ The victim must have a “pressing need” to recover the restitution amount specified.⁴

A Criminal Defendant's Right of Allocution at Sentencing

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

In Florida, a criminal defendant prior to sentencing has the opportunity to make an unsworn statement without restraint to the sentencing judge in allocution.  The opportunity of the defendant to allocute gives the defendant a chance to express to the sentencing judge any additional information that will aid the court in making a sound and reasoned judgment as to the appropriate sentence to be imposed on the convicted defendant.¹  Florida Rule of Criminal Procedure 3.720(b) specifically provides that the sentencing court “shall entertain submissions and evidence by the parties that are relevant to the sentence.”²  The language of the rule is mandatory,³ and under this rule, the defendant is entitled to make a statement and present argument to the court.⁴  The sentencing court cannot deny a defendant an opportunity to make such a statement before sentencing.⁵ The court cannot impose sentence without letting the defendant read his or her entire prepared statement at the sentencing hearing.⁶  Note that, while allocation is unsworn and cannot be compelled to be under oath outside the terms of a plea agreement, the court can require the defendant to be under oath if he or she offering testimony to a jury or to the judge on a sentencing departure issue.⁷

FOOTNOTES

¹Jean-Baptiste v. State, 155 So. 3d 1237 (Fla. 4th DCA 2015).

²Fla. R. Crim. P. Rule 3.720(b).

³Culbertson v. State, 306 So. 2d 142, 143 (Fla. 2d DCA 1975) (citing Mask v. State, 289 So. 2d 385, 387 (Fla.1973)).

⁴Davenport v. State, 787 So. 2d 32, 32 (Fla. 2d DCA 2001).

⁵Ventura v. State, 741 So.2d 1187 (Fla. 2d DCA 1999).

⁶Hodierne v. State, 141 So. 3d 1254 (Fla. 2d DCA 2014).

⁷Jean-Baptiste v. State, 155 So. 3d 1237 (Fla. 4th DCA 2015).

Comment: Florida's Prison Diversion Statute, Section 921.00241

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

Notwithstanding section 921.0024, Fla. Stat., and effective for offenses committed after July 1, 2009, a court may divert from the state correctional system a defendant who would otherwise be sentenced to a state facility by sentencing the defendant to a nonstate prison sanction as provided in section 921.00241(2).¹ A defendant may be sentenced to a nonstate prison sanction if the offender meets all of the following criteria:

Sentencing for Unlawful Filing of False Documents or Records Against Real or Personal Property

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

At the end of April, 2013, the Florida Legislature passed, and has sent on to the Governor for signature, Senate Bill 112, a tough new law aimed at fully criminalizing the filing of false documents or records against real or personal property, and revising penalties for criminal actions under color of law or through use of simulated legal process. The Governor is expected to sign the bill into law in due course.  If signed by the Governor, the law will take effect on October 1, 2013.

There is a perception among more than a few prosecutors and civil attorneys that fraud is widespread in the civil courts, especially in the area of property litigation and that there is little to be done about it. SB 112 is a response to such concerns and is directed at a variety of fraudulent practices being perpetrated in civil court. The bill is directed, in particular, at the practice of filing false financial statements and bogus liens against the property of public officials and employees.¹ While the bill is aimed primarily at non-lawyers and pro se litigants, the provisions of the proposed law are applicable to unscrupulous lawyers as well.

Lecture at the 2013 FACDL Board Certification Review Seminar

On Friday, April 12, 2013, I lectured on Florida sentencing law at the Florida Association of Crimnal Defense Lawyers annual Board Certification Review Seminar. This year's seminar was held at the Renaissance Orlando Airport Hotel, and the event was packed. The seminar is a two-day event and is the best review of federal and state criminal law held in Florida. It is also an excellent opportunity to CLE credits. In support of the lecture, I prepared for the attendees a 212-page summary of the basic law of sentencing in Florida, a copy of the latest Florida Department of Corrections Criminal Punishment Code Scoresheet Preparation Manual, and a copy of the PowerPoint slides I used. All three of these materials have been posted to Scribd at my Florida Sentencing account. The following is a video of the lecture, edited for a length of less than one hour.

The Criminal Punishment Code Scoresheet Explained

Prosecutors, defense attorneys, and judges in Florida's circuit courts rely heavily on scoresheets in the vast majority of their sentencing hearings.  Scoresheets are required by law in most felony sentencings.  A properly filled out, accurate and complete sentencing scoresheet helps to ensure just sentencing and is an important safeguard against sentencing error in circuit court.

Copyright 2013 Thomson Reuters and William H. Burgess, III. Further reproduction is prohibited.

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

  The State of Florida has, for the past 30 years and through a succession of sentencing schemes involving the vast majority of criminal sentencings in circuit court, used printed scoresheets to collect and report sentencing data, to quantify sentencing factors, and to document sentences imposed. Since October 1, 1998, the State has used the Rule 3.992(a) Criminal Punishment Code Scoresheet and the Rule 3.992(b) Criminal Punishment Code Supplemental Scoresheet, illustrated below.  This post presents a comprehensive explanation of the proper completion and utilization of the Criminal Punishment Code sentencing scoresheet.

Length of Sentence for Juveniles Prosecuted As Adults in Florida

Given Monday’s United States Supreme Court ruling in Miller v. Alabama declaring minimum mandatory life sentences for defendants whose crimes were committed when they were less than 18 years of age unconstitutional, I thought that this would be a good time to summarize the law of sentence length for juveniles prosecuted as adults in Florida.

First of all, how do children get into the adult criminal system in Florida?

Simply put, children come into the adult system either by indictment, information, or waiver or juvenile jurisdiction.

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

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]

What Is a "Reverse Split Sentence"?

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

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

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

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

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

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

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