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

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.

Sentence Mitigation: Acceptance of Responsibility

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

A common and longstanding practice in the trial courts of Florida is to reward defendants who accept responsibility for their actions with lighter sentences than those defendants might otherwise have received. Many prosecutors encourage this form of sentence mitigation and it is not unusual for prosecutors to agree to downward departure sentences for such defendants in appropriate circumstances, usually early in the case. Appellate courts have noted that acceptance of responsibility is an appropriate factor for the court to consider in mitigating a sentence.¹ As a practical matter, early acceptance of responsibility can show actual or potential rehabilitation,² and it furthers the important state interests in judicial efficiency and economy. There is, however, no consensus within the trial and appellate courts as to what “acceptance of responsibility” or “early acceptance of responsibility” is, and so it is an open question as to whether or not this is a valid stand-alone basis for departure below a presumptive minimum sentence.

Sentence Mitigation: Extraordinary Restitution

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

Ordinarily, the payment or promised payment of restitution is not a basis for downward departure outside of the provisions of sections 921.0026(2)(e) and 921.185, Florida Statutes. A further basis for downward departure may be extraordinary restitution, whether paid before or after a defendant enters a plea, where the defendant demonstrates acceptance of responsibility and makes exceptional efforts to fully remedy the harm caused by the offense. The sentencing laws of Florida do not prohibit downward sentencing departures in such situations and no Florida appellate court has taken up the issue. Nonetheless, such a departure is arguably permitted in appropriate circumstances by the provisions of subsections 921.002(1)(c)¹ and (3).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

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

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 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: 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:

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

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]