4/11/2013

FLORIDA SENTENCING PRACTICE

Florida Association of Criminal Defense Lawyers
Renaissance Orlando Airport Hotel, Orlando, Florida Friday, April 12, 2013 Hon. William H. Burgess, III
Author, FLORIDA SENTENCING (Thomson-West 2013)

Burgess.law.org@hotmail.com

SENTENCING EVIDENCE

COMMON ERRORS AND HOW TO AVOID THEM

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SENTENCING ERRORS
THE FLORIDA SUPREME COURT HAS RECOGNIZED THE FOLLOWING AS RECURRING SENTENCING ERRORS: Inaccurate or incomplete scoresheets Improper habitualization, enhancement and/or reclassification Sentences that exceed the statutory maximums Improperly imposed departure sentences Written order deviations from oral pronouncements Improper assessments of costs Improper sentencings of simultaneous incarceration and probation Failure to award credit for time served Failure to address in writing decisions to impose adult sanctions Illegal sentencing considerations

SENTENCING ERRORS
OTHER COMMON SENTENCING ERRORS INCLUDE: Overreaching in plea negotiations Omitting or ad libbing plea colloquy Clouding the record with gratuitous comments Not advising the defendant of mandatory minimums during the plea Not making required findings before imposition of sentence Not imposing mandatory incarceration, fines, or conditions Not articulating discretionary costs Punishing indirect contempt as direct contempt and vice versa Trying to increase a sentence after it has been imposed Ignorance of the true sentencing options available to the court

SENTENCING ALTERNATIVES
Straight Confinement Straight Probation or Community Control True Split Sentence Probationary Split Sentence Villery Sentence Reverse Split Sentence Split Probation

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SENTENCING ALTERNATIVES
General Sentencing is Prohibited Concurrent and Consecutive Sentencing
Same Indictment or Information = Concurrent Sentencing Unless Court States Otherwise Different Indictment or Information = Possible Consecutive Sentencing PRRPA, 10-20-Life and Habitualized Offenses Arising From the Same Criminal Episode

Sentencing Scheme and Scoresheet Chart

Primary Offense Date Sentencing Scheme Forms Used
Oct 1, 1993 Dec 31, 1993 Florida Sentencing Guidelines Rule 9.988 (j) Sentencing Guidelines Scoresheet (Untitled Continuation Sheet) Jan 1, 1994 May 24, 1997 1994 Guidelines May 25, 1997 Sep 30, 1998 1995 Guidelines Oct 1, 1998 present Criminal Punishment Code Rule 3.992(a) Criminal Punishment Code Scoresheet Rule 3.992(b) Criminal Punishment Code Supplemental Scoresheet

Rule 3.990(a) Sentencing Guidelines Scoresheet Rule 3.990(b) Supplemental Sentencing Guidelines Scoresheet ss. 921.0001-.0016 Fla. R. Crim. P. 3.702 and 3.990 Florida Sentencing Guidelines Scoresheet Preparation Manual (Jan 1, 1994)

Rule 3.991(a) Sentencing Guidelines Scoresheet Rule 3.991(b) Supplemental Sentencing Guidelines Scoresheet ss. 921.0001-.0016 Fla. R. Crim. P. 3.703 and 3.991 Florida Sentencing Guidelines Scoresheet Preparation Manual (Jan 1, 1995)

Florida Statutes Rules DOC Reference Manual

s. 921.001 Fla. R. Crim. P. 3.701 and 3.988 Forms 3.988(a)-(i) (Worksheets 1-9)

ss. 921.002-.0027 Fla. R. Crim. P. 3.704 and 3.992 Florida Criminal Punishment Code Scoresheet Preparation Manual (Sep 2010)

IMPACT OF APPRENDI
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, unless admitted.

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IMPACT OF APPRENDI
Apprendi Does Not Affect:
Sentences Final Prior to Its Issuance Capital Sentencing Enhancement/Reclassification Schemes (PRR, HFO, HVFO, VCC, 10/20/Life, Etc.)

Apprendi Does Affect:

Any Fact Other Than Prior Conviction That Increases the Sentence Beyond the Relevant Statutory Maximum (Points for Victim Injury, Legal Status, Community Sanction, Prior Serious Felony, Scoresheet Multipliers, Fines, Etc.)

Defendant Can Waive Apprendi Rights

VICTIM INJURY
Sec. 921.0021(7)/Rule 3.704(d)(9)

Scored for each victim injured Multiple assessments for separate injuries inflicted in same criminal episode When charged as principal, points may be assessed for multiple perpetrators Cannot be assessed for crimes the jury has acquitted the defendant of May be assessed even when death or injury of the victim has been factored into the offense level or is an element of the crime All that is needed is a causal nexus between the offense and the victims injury or death

COMMON SENTENCING ISSUES

Prior Record Sec. 921.0021(15)/Rule 3.704 (d)(14) Conviction for a crime committed by the defendant, as an adult or juvenile, prior to the commission of the primary offense Does not include pending charges not before the court for sentencing Burden is on the State to connect the defendant to the underlying conviction

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COMMON SENTENCING ISSUES

Prior Record Final Convictions Convictions On Appeal Convictions Over 10 Years Old Juvenile Dispositions Juvenile Sex Offenses Federal, Out-of-State, Military or Foreign Convictions

COMMON SENTENCING ISSUES

Prior Record Entries Showing No Disposition Sealed or Expunged Records Uncertainty or Ambiguity In the Record

COMMON SENTENCING ISSUES

Legal Status Violation
Sec. 921.0021(3)/Rule 3.704(d)(15) Status + Offense Before the Court for Sentencing Status =
Escapes from incarceration Flees to avoid prosecution Fails to appear for a criminal proceeding Is incarcerated Is under any form of pretrial intervention or diversion program Is under any form of court-imposed or post-prison release community supervision

Status Does Not Include

Pretrial release on bond Having a pending, unserved warrant

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COMMON SENTENCING ISSUES

Community Sanction Before the Court for Sentencing Sec. 921.0021(6)/Rule 3.704(d)(16)
6 Points for Violation or 12 Points for New Felony (12 and 24 for VFOSC) Assessed Once Per Violation, Even If Several Conditions Are Violated, But Are Cumulative from Violation to Violation Violation Can Also Serve As Basis For Assessment of Legal Status Points

SENTENCE MITIGATION
- Pre-Emption

of Felony Prosecution - Pretrial Diversion - Sentencing Back As Juvenile - Youthful Offender Sec. 948.04 - Downward Departure - Statutory Basis Secs. 921.0026, 893.135 - Non-Statutory Bases

STATUTORY MITIGATORS
Sec. 921.0026(2), F.S
(a) The departure results from a legitimate, uncoerced plea bargain (b) The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct (c) The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired (d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment* (e) The need for payment of restitution to the victim outweighs the need for a prison sentence (f) The victim was an initiator, willing participant, aggressor, or provoker of the incident

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STATUTORY MITIGATORS
Sec. 921.0026(2), F.S.
(g) The defendant acted under extreme duress or under the domination of another person (h) Before the identity of the defendant was determined, the victim was substantially compensated (i) The defendant cooperated with the State to resolve the current offense or any other offense (j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse (k) At the time of the offense the defendant was too young to appreciate the consequences of the offense (l) The defendant is to be sentenced as a youthful offender

STATUTORY MITIGATORS
Sec. 921.0026(2), F.S.
(m) The defendant is a nonviolent felony offender scoring 60 points or fewer on the CPC scoresheet and is amenable to, and qualified to participate in, a post-adjudicatory treatment-based drug court program. (n) The defendant was making a good faith effort to obtain or provide medical assistance for a drug-related overdose.

STATUTORY MITIGATORS
Sec. 893.135(4), F.S. Substantial assistance
The state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of that person's accomplices, accessories, coconspirators, or principals or of any other person engaged in trafficking in controlled substances. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if the judge finds that the defendant rendered such substantial assistance.

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NONSTATUTORY MITIGATORS
Sec. 921.0026(1), F.S.

- Sentence manipulation - Lower sentence of an equally or more culpable co-defendant - Diminished mental capacity - Extraordinary restitution - Totality of circumstances

ENHANCEMENT, RECLASSIFICATION, MINIMUM MANDATORIES, HABITUALIZATION AND 10/20/LIFE

ENHANCEMENT OF PENALTY AND RECLASSIFICATION OF OFFENSE

- Enhancement is commonly associated with the province of the judge in sentencing - Reclassification speaks to the degree of the crime charged and appears to attach at the time the indictment or information is filed and not at the time a conviction is obtained - Reclassifications and enhancements operate independently of one another and are not alternatives to one another

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RECLASSIFICATIONS
- 10/20/Life - Assault or Battery of LEOs, Firefighters, Etc. - Recidivist Crimes (Battery, DUI, DWLSR, Refusal to Submit to Testing, Petit Theft, Etc.) NOTE: Apprendi Considerations

MINIMUM MANDATORY SENTENCING

- The court can sentence above the minimum mandatory, up to the statutory maximum - Does not implicate Apprendi considerations - If the lowest permissible CPC sentence is lower than the minimum mandatory, the minimum mandatory takes precedence

CAPITAL FELONIES
- Mandatory death sentence if convicted and court finds that the defendant shall be so punished - The only other alternative is life imprisonment - Not all capital felonies by name are punishable by death, e.g., capital sexual battery

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LIFE FELONIES
A defendant who has been convicted of a life felony committed prior to October 1, 1983 may be punished by a term of imprisonment for life or for a term of years not less than 30; for a life felony committed on or after October 1, 1983 by a term of imprisonment not exceeding 40 years; for a life felony committed on or after July 1, 1995, except for one which was committed on or after September 1, 2005 which is a violation of section 800.04(5)(b), for a term of imprisonment for life or by imprisonment for a term of years not exceeding life imprisonment; and for a life felony committed on or after September 1, 2005 which is a violation of s. 800.04(5)(b), by a term of imprisonment for life, or a split sentence that is a term of not less than 25 years imprisonment and not exceeding life imprisonment, followed by probation or community control for the remainder of the persons natural life, as provided in section 948.012(4).

PRISON RELEASEE REOFFENDER

- Sec. 775.082(9)(a)1., F.S.

- Enumerated felonies or felony involving use or threat of physical force or violence against an individual within 3 years of being released from a designated correctional facility, or while serving a prison sentence or on escape status from a designated correctional facility - State proves qualification by preponderance of evidence = no discretion on part of sentencing judge - Day for day

REQUIRED NOTICE OF INTENT TO SEEK ENHANCED PENALTIES

as HFO, HVFO, 3-Time Violent Felony Offender, or VCC -Shotgun general notice permissible - Court must elect one enhancement scheme at sentencing - Defendant must be personally aware of consequences of such sentence before sentence imposed and have fair opportunity to refute any errors upon which sentence may be based - Statement made by prosecutor to judge in presence of defendant and formal notice filed shortly before sentencing hearing and handed to defendant during hearing do not meet the requirements of the law - Not required for PRR

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Summary of Punishments Authorized by Sec. 775.084, F.S.

3rd Degree Felonies Habitual Felony Offenders Habitual Violent Felony Offenders Three-Time Violent Offenders Violent Career Criminals
Up to 10 years

2nd Degree Felonies

Up to 30 years

1st Degree Felonies

Life imprisonment

Life Felonies

Life imprisonment

Up to 10 years; not eligible for release for 5 years Mandatory Minimum of 5 years Up to 15 years, with a mandatory minimum of 10 years

Up to 30 years; not eligible for release for 10 years Mandatory minimum of 15 years Up to 40 years, with a mandatory minimum of 30 years

Life imprisonment; not eligible for release for 15 years Mandatory minimum of 30 years Life imprisonment; no discretionary early release

Life imprisonment; not eligible for release for 15 years Mandatory minimum of life imprisonment Life imprisonment; no discretionary early release

HABITUAL FELONY OFFENDER

- Sec. 775.084(1)(a), F.S.

- Requires judicial findings - Discretionary if not necessary for protection of public - Enhancement of upper sentence limit - Cannot be used as primary offense or additional offense on scoresheet

HABITUAL VIOLENT FELONY OFFENDER

- Sec. 775.084(1)(b), F.S.

- Requires judicial findings - Discretionary if not necessary for protection of public - Enhancement of upper sentence limit - Cannot be used as primary offense or additional offense on scoresheet

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THREE-TIME VIOLENT FELONY OFFENDER

- Sec. 775.084(1)(c), F.S.

- Requires judicial findings - Appears to be mandatory - Mandatory minimum sentences - Cannot be used as primary offense or additional offense on scoresheet

VIOLENT CAREER CRIMINAL

- Sec. 775.084(1)(d), F.S.

- Requires judicial findings - Discretionary if not necessary for protection of public - Mandatory minimum sentences - Cannot be used as primary offense or additional offense on scoresheet

10/20/LIFE
- Sec. 775.087, F.S. - Reclassification and progressive mandatory minimum sentences - Inapplicable where use of weapon is essential element - Actual possession = 10 (15 if semiautomatic or machine gun) - Defendant discharges = 20 - Result of death or great bodily harm inflicted upon any person = 25 minimum up to life - Does not limit imposition of longer sentence authorized by law

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STACKING
- Consecutive PRRPA sentences for offenses arising out of the same criminal episode are not allowed. (1st, 2nd, 3rd,
and 4th DCAs)

- A PRRPA sentence followed consecutively by a Criminal Punishment Code sentence not otherwise enhanced beyond the statutory maximum is a legal sentence even if the crimes arose from a single criminal episode. Reeves v. State, 957 So. 2d 625 (Fla. 2007), cert. denied, 552
U.S. 1012, 128 S. Ct. 537, 169 L. Ed. 2d 377 (U.S. 2007).

STACKING
- A mandatory minimum sentence imposed pursuant to the 10/20/Life statute must be imposed concurrently with any PRRPA sentence for offenses arising out of the same criminal episode, even when the 10/20/Life sentence is the lesser sentence. McDonald v. State, 957 So. 2d
605 (Fla. 2007).

- Minimum mandatory sentences for separate crimes, one under the PRRPA and the other under the 10/20/Life statute can be imposed consecutively. Mobley v. State, 983
So. 2d 630 (Fla. Dist. Ct. App. 5th Dist. 2008).

STACKING
- Where consecutive sentences can be imposed, the PRRPA sentence must be served first. Powell v. State, 881 so.
2d 1180 (Fla. Dist. Ct. App. 5th Dist. 2004); Dubose v. State, 834 So. 2d 423 (Fla. Dist. Ct. App. 2d Dist. 2003).

- When the defendant qualifies for sentencing under the PRRPA, a trial court may not sentence a defendant to a habitualized sentence that is less than or equal to the PRRPA sentence, even when a true split sentence has been imposed. Johnson v. State, 927 So. 2d 251 (Fla. Dist. Ct. App.
2d Dist. 2006).

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STACKING
- When the defendant qualifies for sentencing under the PRRPA and under the habitual felony offender statute, only where the habitual felony offender sentence is greater than the PRRPA sentence may it be imposed.
Morris v. State, 910 So. 2d 306 (Fla. Dist. Ct. App. 1st Dist. 2005).

- The PRRPA does not preclude imposition of a habitual offender sentence and a PRRPA sentence on different offenses even if those sentences are imposed during the same sentencing hearing. Williams v. State, 870 So. 2d 166 (Fla.
Dist. Ct. App. 2d Dist. 2004); Bright v. State, 760 So. 2d 287 (Fla. Dist. Ct. App. 5th Dist. 2000); Tolbert v. State, 827 So. 2d 278 (Fla. Dist. Ct. App. 2d Dist. 2002).

COMMON SENTENCING ISSUES

Scoresheet Preparation Where Enhancements Apply
Scoresheet prepared Enhanceables (HFO, HVFO, 3-Time VFO, VCC, etc.) scored separately from CPC offenses, just as capital offenses are Prevention of enhanceables from bootstrapping non-enhanceable offenses

WHAT ABOUT GRAHAM?

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WHAT ABOUT GRAHAM?

Graham v. Florida, 130 S. Ct. 2011 (2010) held that the Eighth Amendments ban on cruel and unusual punishments prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. Florida appellate courts have since approved 60-, 65-, 90-, 100- and 150-year sentences, but the First District has ruled that Graham applies to life-without parole sentences and sentences that amount to de facto life sentences. A de facto life sentence is one that exceeds the defendants life expectancy based upon statistical evidence presented at sentencing.

QUESTIONS & ANSWERS

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