Early Termination of Probation or Community Control

This article summarizes the law of sentencing pertaining to early termination of probation  or community control in Florida state courts.

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

July 10, 2024

Early termination of supervision is a tool used to encourage good behavior and faithful compliance with the terms of probation or community control.  There is, however, no statutory or constitutional prohibition precluding a trial court from requiring a defendant to complete a full term of probation or community control.

Motion for Early Termination

When presented with a motion for early termination of probation or community control, the court is required to afford the movant procedural due process.  At a minimum, the court must consider the motion and exercise its discretion in granting or denying the motion.  In a case where the parties have entered into a plea agreement that sets forth a specific length of supervision, the court cannot avoid the issue by concluding that it lacks authority to consider the motion.¹

Sentence Mitigation: Any Degree of Restitution

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

Alongside section 921.0026(2)(e), Fla. Stat., is another, older and more general, restitution departure statute. Section 921.185, which has been the law since 1974,¹ provides that

In the imposition of a sentence for any felony or misdemeanor involving property, but not injury or opportunity for injury to persons, the court, in its discretion, shall consider any degree of restitution a mitigation of the severity of an otherwise appropriate sentence.²

While section 921.0026(2)(e) focuses on the need for restitution in all cases sentenced under the Criminal Punishment Code, section 921.185 is focused on the actual payment of restitution in essentially all felony or misdemeanor property crimes where there is no injury or opportunity to injure anyone. Each statute thus serves a different purpose and may be applied simultaneously where circumstances justify the application of both,

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

2018: A Brief Note on Florida Sentencing

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

“Sentence” is the judgment formally pronounced by the court or judge upon the defendant after conviction in a criminal prosecution, imposing the punishment to be inflicted.¹ The word comes to the modern language of the law, via Middle English and Old French, from the Latin word sententia, meaning a feeling or opinion communicated by someone to others. This etymology of “sentence” embodies the idea that sentencing is intended to be an expressive function of the courts, conveying to everyone involved and to observers the public’s reaction to the criminal offense. Public denunciation of the individual is an important part of the sentencing process: By censuring the offender, the court not only punishes the individual but also issues a statement of regarding what the community as a whole regards unacceptable behavior and reasserts the moral boundaries of the community.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

New Year's Resolutions for Young Lawyers

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

Some people believe in New Year's Resolutions; some do not.  I think that it can be a very good thing for one to regroup at year's end and make a fresh start, especially in the case of a young professional.  With this in mind, the following are my suggested New Year's resolutions for young lawyers:

#1. Commit yourself to your own professional and career development.

#2. Master the rules of evidence and procedure.

#3. Improve your writing skills.

#4. Strengthen your relationships with your clients and your fellow lawyers.

#5. Master a new legal skill and become the go-to person for that skill.

#6. Sharpen your time management skills.

#7. If in a small firm or partnership, make marketing a top priority.

#8. Get involved with your local community, as pro bono or volunteer.

#9. Make it a priority to take care of your health and well being.

#10. Always come to court on time, fully prepared, and be on your best behavior.

Comment: Miller, Graham, and Resentencing of Juveniles Sentenced Under Mandatory Sentencing Schemes

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

Miller v. Alabama¹ provides little guidance on how to proceed with resentencing juveniles convicted under mandatory sentencing schemes. Under Miller, while a sentence of life without parole remains constitutional in homicide cases, the sentencing court must be free to impose a lesser sentence when the defendant’s youth or the circumstances of the crime so indicate. Florida Statutes, however, do not currently provide for lesser sentences in first-degree murder cases. Miller has thus opened a breach in Florida’s sentencing statutes. The rule adopted by the First and Third Districts has been for the court to exercise restraint and for the parties to make their case before the trial court, where testimony may be taken, evidence presented, and argument made on all material issues to include the potential range of sentencing options.²

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.

Some Comparative Statistics on Florida Sentencing

Sentencing is the post-conviction phase of the criminal justice process in which the court imposes certain sanctions on the defendant. It is a critical step in the process and one that is both complex and susceptible to error.

Florida courts do a lot of sentencing. According to data kept by the Florida Supreme Court, in the period from January 1986 through June 2011 (the last month for which statistics have been published) the cases of 4,530,332 defendants involving 8,791,733 separate criminal counts were disposed of in the circuit courts of the state, the cases of 10,900,786 criminal defendants were disposed of in the county courts, and 10,962,695 criminal cases were disposed of in the traffic courts. In that time, there were 3,531,714 pleas before trial in the circuit courts and 6,779,757 pleas before trial in the county courts, while the cases of a total of 284,785 defendants were resolved upon conviction after trial in both courts.

Vacatur of Sentences Obtained by Fraud or Misrepresentation

Under the common law, any court of record had absolute control over its orders, decrees, etc., and could amend, vacate, modify or change them at any time during the term at which rendered. Control now is in the courts during the period allowed by the rules of court, terms (as used in common law) having been abandoned. This restriction does, however, not apply to such orders, judgments or decrees which are the product of fraud, collusion, deceit, mistake, etc. Such may be vacated, modified, opened or otherwise acted upon at any time. This is an inherent power of courts of record, and one essential to insure the true administration of justice and the orderly function of the judicial process. As between the parties any judgment or order procured from any court by the practice of fraud or deception may, in appropriate proceedings, be recalled and set aside at any time, whether entered in a civil case or a criminal case.¹

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]