Comment: The Extreme Duress or Domination Mitigator

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

It is a statutory mitigating factor under Florida's Criminal Punishment Code that the defendant acted under extreme duress or under the domination of another person when he or she committed the crime.¹ While listed together, it is quite arguable that domination of another person is a lesser species of, and a much less rigorous standard from, extreme duress.²

Concurrent and Consecutive Sentencing Alternatives in Florida

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

The basic alternatives for concurrent and consecutive sentencing alternatives under Florida law are as follows:

Discretionary Consecutive Sentencing

Same Indictment, Information, or Affidavit: A defendant convicted of two or more offenses charged in the same indictment, information, or affidavit or in consolidated indictments, informations, or affidavits must serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively.¹ The court must affirmatively express its intention that such sentences are to run concurrently; otherwise, they will run consecutively.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

Early Termination of Probation of Community Control

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

Trial courts have unbridled discretion under state law to decide whether or not to terminate a defendant’s probation or community control early.¹

Public policy strongly favors early termination of probation and community control where the goals of such supervision have been met,² and disfavors punitive conditions of probation or community control that would prohibit early termination.  Early termination of supervision is a tool used to encourage good behavior and faithful compliance with the terms of probation or community control.  A policy or practice of no early termination of supervision could result in the absurd situation of a rehabilitated defendant being prohibited from going into court for the opportunity to prove his or her rehabilitation and, if proven, permit the court to put an end to unnecessary expenditures of time, money, and other resources on continued probation that serves no purpose beyond harassment of the defendant or which would be better directed towards defendants who have not been rehabilitated. Such policies and practices do not enhance the image of the state courts in the eyes of the public and may in fact serve to publicly discredit the courts.

Pursuant to section 948.05, Fla. Stat., a court may at any time cause a probationer or offender in community control to appear before it to be admonished or commended, and, when satisfied that its action will be for the best interests of justice and the welfare of society, it may discharge the probationer or offender in community control from further supervision.³  In the case of community control, the trial court also may grant “rollover” (conversion to probation) prior to the expiration of the term of community control, or termination of community control, if the court is satisfied that the defendant has met all conditions.⁴  Section 948.05 requires the court to respond to the facts and circumstances that develop during the term of supervision:  If the probationer or community controlee has fulfilled his or her obligations and has been a model for supervision, the interests of justice and the wise allocation of scarce resources may require that early termination of supervision be considered.⁵

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