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.

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]