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.
Tuesday, April 22, 2008
Friday, February 1, 2008
What "Before the Court for Sentencing" Means
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)
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)
Tuesday, January 29, 2008
Pre-Plea Downward Departure Sentencing Hearings
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.
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.
Thursday, January 24, 2008
Violent Felony Offenders of Special Concern (VFOSC)
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:
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:
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