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

Confrontation, Due process, and the Use of Hearsay: The Florida Evidence Code Was Not Meant to Apply to Sentencing

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

Accuracy and integrity of fact-finding in criminal sentencing is determined by the burden of proof, the reliability of the underlying evidence, and the opportunity for review and response. The balance of these factors promotes fairness in the individual case and in the overall pattern of sentences over time. Such accuracy is not an absolute in every type of case, however, but is measured against the requirements of the law applicable in the circumstances. Generally, the more severe the potential sanction, the higher the degree of accuracy and reliability of the evidence required to impose the sanction.

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:

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

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

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.

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)

Increased Punishment Upon Resentencing

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.