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FLORIDA SENTENCINGPRACTICE

Florida Association of Criminal Defense Lawyers

Renaissance Orlando Airport Hotel,Orlando, Florida

Friday, April 12, 2013

Hon. William H. Burgess, IIIAuthor, FLORIDA SENTENCING (Thomson-West 2013)

Burgess.law.org@hotmail.com

SENTENCING EVIDENCE

COMMON ERRORS AND HOW TO AVOID THEM

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SENTENCING ERRORSTHE 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 ERRORSOTHER 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

Oct 1, 1993 – Dec 31, 1993

Jan 1, 1994 – May 24, 1997

May 25, 1997 – Sep 30, 1998

Oct 1, 1998 -present

Sentencing Scheme

Florida Sentencing Guidelines

1994 Guidelines 1995 Guidelines Criminal Punishment Code

Forms Used Rule 9.988 (j) Sentencing Guidelines Scoresheet

(Untitled Continuation Sheet)

Rule 3.990(a) Sentencing Guidelines Scoresheet

Rule 3.990(b) Supplemental Sentencing Guidelines Scoresheet

Rule 3.991(a) Sentencing Guidelines Scoresheet

Rule 3.991(b) Supplemental Sentencing Guidelines Scoresheet

Rule 3.992(a) Criminal Punishment Code Scoresheet

Rule 3.992(b) Criminal Punishment Code Supplemental Scoresheet

Florida Statutes s. 921.001 ss. 921.0001-.0016 ss. 921.0001-.0016 ss. 921.002-.0027

Rules Fla. R. Crim. P. 3.701 and 3.988

Fla. R. Crim. P. 3.702 and 3.990

Fla. R. Crim. P. 3.703 and 3.991

Fla. R. Crim. P. 3.704 and 3.992

DOC Reference Manual

Forms 3.988(a)-(i) (Worksheets 1-9)

Florida Sentencing Guidelines Scoresheet Preparation Manual (Jan 1, 1994)

Florida Sentencing Guidelines Scoresheet Preparation Manual (Jan 1, 1995)

Florida Criminal Punishment Code ScoresheetPreparation 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 INJURYSec. 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 victim’s 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 MITIGATORSSec. 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 MITIGATORSSec. 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 MITIGATORSSec. 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 MITIGATORSSec. 893.135(4), F.S.

Substantial assistance

The state attorney may move the sentencing court to reduce orsuspend the sentence of any person who is convicted of a violation ofthis section and who provides substantial assistance in theidentification, arrest, or conviction of any of that person'saccomplices, accessories, coconspirators, or principals or of anyother person engaged in trafficking in controlled substances. Thearresting agency shall be given an opportunity to be heard inaggravation or mitigation in reference to any such motion. Upon goodcause shown, the motion may be filed and heard in camera. Thejudge hearing the motion may reduce or suspend the sentence if thejudge finds that the defendant rendered such substantial assistance.

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NONSTATUTORY MITIGATORSSec. 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 Apprendiconsiderations

- 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 FELONIESA defendant who has been convicted of a life felony committedprior to October 1, 1983 may be punished by a term ofimprisonment for life or for a term of years not less than 30; for alife felony committed on or after October 1, 1983 by a term ofimprisonment not exceeding 40 years; for a life felony committedon or after July 1, 1995, except for one which was committed onor after September 1, 2005 which is a violation of section800.04(5)(b), for a term of imprisonment for life or byimprisonment for a term of years not exceeding life imprisonment;and for a life felony committed on or after September 1, 2005which is a violation of s. 800.04(5)(b), by a term of imprisonmentfor life, or a split sentence that is a term of not less than 25 years’imprisonment and not exceeding life imprisonment, followed byprobation or community control for the remainder of the person’snatural 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

2nd Degree Felonies

1st Degree Felonies

Life Felonies

Habitual Felony Offenders

Up to 10 years Up to 30 years Life imprisonment Life imprisonment

Habitual Violent Felony Offenders

Up to 10 years; not eligible for release for 5 years

Up to 30 years; not eligible for release for 10 years

Life imprisonment; not eligible for release for 15 years

Life imprisonment; not eligible for release for 15 years

Three-Time Violent Offenders

Mandatory Minimum of 5 years

Mandatory minimum of 15 years

Mandatory minimum of 30 years

Mandatory minimum of life imprisonment

Violent Career Criminals

Up to 15 years, with a mandatory minimum of 10 years

Up to 40 years, with a mandatory minimum of 30 years

Life imprisonment; no discretionary early release

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 Amendment’s 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 defendant’s life expectancy based upon statistical evidence presented at sentencing.

QUESTIONS & ANSWERS