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.

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

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:

Sentencing for Unlawful Filing of False Documents or Records Against Real or Personal Property

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

At the end of April, 2013, the Florida Legislature passed, and has sent on to the Governor for signature, Senate Bill 112, a tough new law aimed at fully criminalizing the filing of false documents or records against real or personal property, and revising penalties for criminal actions under color of law or through use of simulated legal process. The Governor is expected to sign the bill into law in due course.  If signed by the Governor, the law will take effect on October 1, 2013.

There is a perception among more than a few prosecutors and civil attorneys that fraud is widespread in the civil courts, especially in the area of property litigation and that there is little to be done about it. SB 112 is a response to such concerns and is directed at a variety of fraudulent practices being perpetrated in civil court. The bill is directed, in particular, at the practice of filing false financial statements and bogus liens against the property of public officials and employees.¹ While the bill is aimed primarily at non-lawyers and pro se litigants, the provisions of the proposed law are applicable to unscrupulous lawyers as well.

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.