Revocation of Probation or Community Control—Failure to Pay Court-Ordered Costs or Restitution

 Hon. William H. Burgess, III, B.C.S.

Generally

Trial courts have the power to provide, as a condition of probation or community control, that the defendant pay reasonable sums for court costs¹ and other costs to the state (e.g., attorney’s fees for the services of a public defender),² costs of supervision,³ and restitution⁴ under the broad grant of authority contained in section 948.03, Fla. Stat.  The decision to place a defendant on supervision reflects a determination by the sentencing court that the State’s penological interests do not require imprisonment.⁵  In any event, a probationer’s or community controllee’s failure to make reasonable efforts to repay his or her debt to society may indicate that the original determination needs reevaluation, and imprisonment may now be required to satisfy the State’s interests,⁶ and so supervision can be revoked for failure to comply with such a condition.

This power is qualified by the Equal Protection Clause of the Fourteenth Amendment, which requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status.  The State therefor cannot imprison a defendant for nonvoluntary failure to pay a fine, court costs, or restitution without violating the equal protection clause.⁷  Likewise, the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.⁸  Sentencing a defendant to imprisonment solely because he or she could not pay a fine, court costs, or restitution, without considering the reasons for the inability to pay or the propriety of reducing the amount to be paid, extending the time for payments, or making alternative orders, is automatically converting monetary such obligations into imprisonment and is constitutionally impermissible.⁹  The requirement that a defendant may be found in willful violation of a supervisory condition to make money payments only if he or she is or could reasonably be financially in a position to do so is one of constitutional dimensions and cannot be waived by the defendant.¹⁰

Judicial Discretion In the Imposition of Sentence—Conditions of Confinement

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

A sentencing court lacks jurisdiction and authority to regulate the treatment and placement of sentenced prison inmates absent specific statutory authority, and cannot impose increased sanctions pertaining to confinement, such as loss of privileges.  This rule applies to county jails as well as to facilities run by the Department of Corrections.¹

Once a trial court has pronounced sentence and entered a judgment of conviction, it relinquishes jurisdiction over the matter to the executive branch, except for the appellate process and to the extent that regular procedures allow the matter to be reopened in a judicial forum for limited purposes that can be achieved only in court.  Just as the executive branch of government may not intrude on the judiciary’s duties in the sentencing process, so is the judicial branch limited in its role thereafter as the sentence is executed.²

Sharp Practices in the Legal Profession

Hon. William H. Burgess, III, B.C.S. 

"Pettifogger" 3-D sculpture by Daniel Midholt, based on a design by Stefan Andersson.  Image found at https://www.artstation.com/artwork/zND4d. No claim to copyright.

One of the more vexing aspects of the legal profession is having to deal with attorneys who engage in sharp practice.

“Sharp practice” is a pejorative expression for unscrupulous conduct, undertaken for the purpose of obtaining an unfair advantage over another, that may (or may not) be technically within the applicable law or rules and is considered immoral, unethical or improper. In business dealings, sharp practice often involves activities that come very close to breaking the law.¹ In the legal profession, the greater part of sharp practice occurs on a continuum just beyond the proper bounds of zealous advocacy,² honor,³ and ethics but just short of outright fraud. It is the sort of behavior that no self-respecting lawyer or judge should have to suffer and no properly functioning legal system should tolerate.

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

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).

New Year's Resolutions for Judges

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

In response to my recent post, "New Year's Resolutions for Young Lawyers," I have been asked to turn the focus around to the bench and suggest a set of resolutions for jurists.  Here are my suggestions:

#1.  Always bear in mind that you are a servant of the law and not a ruler over the people who appear before you.

#2.  Come to the bench on time and prepared to make rulings on all matters before you.

#3.  Do not let your ego become engaged in any matter.

#4.  Always be polite and listen carefully to those who appear before you.

#5.  Do not make gratuitous comments or statements.

#6.  Base all of your rulings on the law, and not on emotion.

#7.  Be patient and understanding with young attorneys, and encourage them to grow.

#8.  Be patient and understanding with older attorneys, and encourage them to be respectful toward the court and their fellow attorneys.

#9.  Teach the attorneys who come before you that they are counselors first, and litigators second.

#10.  Issue written orders without undue delay, and ensure that the parties receive copies.

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.