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

Transfer From a County for Plea, Sentence, or Participation in a Problem-Solving Court

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

A defendant arrested or held in a county other than that in which an indictment or information is pending against him or her may state in writing that he or she wishes to plead guilty or nolo contendere, to waive trial in the county in which the indictment or information is pending, and to consent to disposition of the case in the county in which the defendant was arrested or is held, subject to the approval of the prosecuting attorney of the court in which the indictment or information is pending.  Upon receipt of the defendant’s statement and the written approval of the prosecuting attorney, the clerk of the court in which the indictment or information is pending must transmit the papers in the proceeding, or certified copies thereof, to the clerk of the court of competent jurisdiction for the county in which the defendant is held, and the prosecution must continue in that county upon the information or indictment originally filed.  In the event a fine is imposed upon the defendant in that county, two-thirds thereof must be returned to the county in which the indictment or information was originally filed.¹

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).

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.

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

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

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

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]

Misdemeanors, Felonies and Common Law Crimes in Florida

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.

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]

Alternative Sentencing: Youthful Offender Downward Departures

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.

Chemical Castration for Rapists

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.

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:

No Death Penalty for Child Rapists

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

The Apprendi and Blakely Cases

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.

Sample Questions for Judicial Candidates

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?

Vindictive Sentencing

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)