Florida Sentencing Lecture Slides Handout, 2015 FACDL Board Certification Review Seminar

3/16/2015

1

FLORIDA SENTENCINGFLORIDA SENTENCINGFlorida Association ofFlorida Association of

Criminal Defense LawyersCriminal Defense LawyersTampa Marriott Westshore Hotel,

Tampa, Florida

Hon. William H. Burgess, III Email: [email protected]

Tampa, FloridaFriday, March 27, 2015

Hon. William H. Burgess, III, B.C.S.Author, FLORIDA SENTENCING (Thomson-Reuters 2015)

[email protected]

INTRODUCTIONINTRODUCTION


GOALS OF INSTRUCTION:GOALS OF INSTRUCTION:

Identify the main features of Florida state sentencing law and procedure


Become familiar with common sentencing terms

Spot important sentencing issues

3/16/2015

2

MATERIALS PROVIDED:MATERIALS PROVIDED:

DOC Criminal Punishment Code ScoresheetPreparation Manual

Advanced Sentencing Law Handout


Advanced Sentencing Law Handout

Copies of Lecture Slides

SENTENCE DEFINED:SENTENCE DEFINED:The punishment imposed by a judge in a

criminal court upon a defendant convicted in a criminal prosecution.


FLORIDA TRIAL COURT STATISTICS FOR JULY 2013 THROUGH JUNE 2014(Does not include Juvenile or Traffic)

County CriminalDefendants

Circuit CriminalDefendants

Circuit CriminalCounts

County CriminalCounts

Filed 355,981 176,768 375,956 NA

Disposed Before Trial 33,935 175,259 363,138 NA

(Plea) 198,113 135,377 255,596 NA

(Convicted) 882 53 110 NA

Disposed After JuryTrial

1,420 3,344 8,578 NA


Trial

(Plea) 101 246 503 NA

(Convicted) 669 2,246 5,565 NA

Probation Revocation Hearings: 70,930 Circuit Courts32,432 County Criminal

Traffic: 369,489 criminal offenses disposed, including 329,275 criminal cases and 40,214 DUIs

3/16/2015

3

PRIMARY STATUTES:PRIMARY STATUTES: 921.0017-.244 Sentence 775.01-.31 Definitions; General Penalties;

Registration of Criminals 777.04 Attempts, Solicitation, and Conspiracy 948.001-.90 Probation & Community Control


y 958.011-.19 Youthful Offenders 985.345, .35 Juvenile Justice; Adjudication 985.43-.494 Juvenile Justice; Disposition;

Postdisposition

PRIMARY RULES OF PRIMARY RULES OF PROCEDURE:PROCEDURE:

3.700-.801 Sentence

8.110 Adjudicatory Hearings

8.115 Disposition Hearings


8.115 Disposition Hearings

8.120 Post-Disposition Hearing

CLASSES OF CRIMINAL OFFENSESCLASSES OF CRIMINAL OFFENSESMISDEMEANORS:1st Degree Max 12M County Jail2nd Degree Max 60D County Jail

FELONIES:1st Degree Max 30Y Prison*


g2nd Degree Max 15Y Prison3rd Degree Max 5Y Prison

* Capital, Life, and PBL felonies are designated by statute

3/16/2015

4

LIFE FELONIESLIFE FELONIESA defendant who has been convicted of a life felony committed A defendant who has been convicted of a life felony committed prior to prior to October 1, 1983October 1, 1983 may be punished by a term of imprisonment for life or for a 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 term of years not less than 30; for a life felony committed on or after on or after October 1, 1983October 1, 1983 by a term of imprisonment not exceeding 40 years; for a by a term of imprisonment not exceeding 40 years; for a life felony committed life felony committed on or after July 1, 1995on or after July 1, 1995, except for one which was , except for one which was committed on or after September 1, 2005 which is a violation of section 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 800.04(5)(b), for a term of imprisonment for life or by imprisonment for a


( )( ), p y p( )( ), p y pterm of years not exceeding life imprisonment; and for a life felony term of years not exceeding life imprisonment; and for a life felony committed on or after committed on or after September 1, 2005 September 1, 2005 which is a violation of s. which is a violation of s. 800.04(5)(b), by a term of imprisonment for life, or a split sentence that is a 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 term of not less than 25 years imprisonment and not exceeding life imprisonment, followed by probation or community control for the remainder imprisonment, followed by probation or community control for the remainder of the persons natural life, as provided in section 948.012(4).of the persons natural life, as provided in section 948.012(4).

CAPITAL FELONIESCAPITAL FELONIES

Mandatory death sentence if convicted and court finds that the defendant shall be so punished

The only other alternative is life imprisonment


The only other alternative is life imprisonment

Not all capital felonies by name are punishable by death, e.g., capital sexual battery

COMMON LAW CRIMES:COMMON LAW CRIMES:

1. Elements defined by statute but offense not classified Contempt

2. Elements not defined but offense classified by


ystatute Cheating

3/16/2015

5

PRINCIPALPRINCIPAL


In for a penny, in for a pound.In for a penny, in for a pound.

ACCESSORY AFTER THE FACTACCESSORY AFTER THE FACT


ATTEMPTS, CONSPIRACIES, AND ATTEMPTS, CONSPIRACIES, AND SOLICITATIONSSOLICITATIONS


3/16/2015

6

Historical Florida Sentencing SchemesHistorical Florida Sentencing SchemesPrimary 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

Rule 3.991(a) Sentencing Guidelines Scoresheet

Rule 3.991(b) Supplemental

Rule 3.992(a) Criminal Punishment Code Scoresheet

Rule 3.992(b) Criminal Punishment Code Supplemental


Sentencing Guidelines Scoresheet

Sentencing Guidelines Scoresheet

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 ScoresheetPreparation Manual (Jan 1, 1995)

Florida Criminal Punishment Code ScoresheetPreparation Manual (Oct 1.2010)

ORIGINAL ORIGINAL GUIDELINESGUIDELINES


ORIGINAL ORIGINAL GUIDELINESGUIDELINES


3/16/2015

7

19941994GUIDELINESGUIDELINES






3/16/2015

8







3/16/2015

9





1998 1998 CRIMINAL CRIMINAL

PUNISHMENTPUNISHMENT


PUNISHMENT PUNISHMENT CODECODE

3/16/2015

10









COMMON CRIMINAL COMMON CRIMINAL PUNISHMENT CODE ISSUESPUNISHMENT CODE ISSUES

Victim Injury Points

Prior Record


Legal Status Points

Community Sanction Points

Uncharged crimes

3/16/2015

11

ALTERNATE SENTENCING SCHEMES ALTERNATE SENTENCING SCHEMES AND ALTERNATIVES TO THE AND ALTERNATIVES TO THE

CRIMINAL PUNISHMENT CODECRIMINAL PUNISHMENT CODE Juvenile Youthful Offender

H bit li d


Habitualized Capital Murder Non-Violent Offenders Diversion

Enhancement, Enhancement, Reclassification, Minimum Reclassification, Minimum

MandatoriesMandatories, Capital , Capital Felonies, Life Felonies, PRR, Felonies, Life Felonies, PRR,


HabitualizationHabitualization, and, and10/20/Life10/20/Life

ENHANCEMENT OF PENALTY AND ENHANCEMENT OF PENALTY AND RECLASSIFICATION OF OFFENSERECLASSIFICATION 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

3/16/2015

12

MINIMUM MANDATORY MINIMUM MANDATORY SENTENCINGSENTENCING

The court can sentence above the minimum mandatory, up to the statutory maximum

Does not implicate Apprendi considerations


p pp

If the lowest permissible CPC sentence is lower than the minimum mandatory, the minimum mandatory takes precedence

PRISON RELEASEE PRISON RELEASEE REOFFENDERREOFFENDER

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


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

10/20/LIFE10/20/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)


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

3/16/2015

13

HABITUAL FELONY OFFENDERHABITUAL 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 HABITUAL VIOLENT FELONY OFFENDEROFFENDER

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





Enhancement of upper sentence limit



THREETHREE--TIME VIOLENT FELONY TIME VIOLENT FELONY OFFENDEROFFENDER

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


Appears to be mandatory


Appears to be mandatory

Mandatory minimum sentences



3/16/2015

14

VIOLENT CAREER CRIMINALVIOLENT CAREER CRIMINAL

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



M d t i i t


Mandatory minimum sentences



REQUIRED NOTICE OF INTENT TO REQUIRED NOTICE OF INTENT TO SEEK ENHANCED PENALTIESSEEK ENHANCED PENALTIES

as HFO, HVFO, 3as HFO, HVFO, 3--Time Violent Felony Offender, or VCCTime 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 t f t hi h t b b d


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

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

Up to 10 years; not eligible for release for 5

Up to 30 years; not eligible for release for 10

Life imprisonment; not eligible for release for 15

Life imprisonment; not eligible for release for 15


Felony Offenders

release for 5 years

release for 10 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

3/16/2015

15

ScoresheetScoresheet Preparation Where Preparation Where Enhancements ApplyEnhancements Apply

Separate scoresheets 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

SENTENCING ALTERNATIVESSENTENCING ALTERNATIVES

Straight Confinement

Straight Probation or Community Control

True Split Sentence


True Split Sentence

Probationary Split Sentence

Split Probation

General Sentencing is Prohibited Concurrent and Consecutive Sentencing

Same Indictment or Information = Concurrent Sentencing Unless Court States OtherwiseDiff t I di t t I f ti P ibl

SENTENCING ALTERNATIVESSENTENCING ALTERNATIVES


Different Indictment or Information = Possible Consecutive Sentencing

PRRPA, 10-20-Life and Habitualized Offenses Arising From the Same Criminal Episode

3/16/2015

16

GENERAL, CONCURRENT, AND GENERAL, CONCURRENT, AND CONSECUTIVE SENTENCINGCONSECUTIVE SENTENCING

Stacking Habitualized, PRR and Minimum Mandatory Offenses


JUDICIAL DISCRETIONJUDICIAL DISCRETION

Limited by constitution, statute and binding court precedent

Scant inherent or equitable power


Ministerial role in cases involving minimum mandatories, mandatory fines, mandatory conditions, etc.

IMPACT OF IMPACT OF APPRENDIAPPRENDIAny 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.


3/16/2015

17

SENTENCE MITIGATIONSENTENCE MITIGATION Avoidance

Pre-emption of Felony Prosecution Pretrial Diversion

Containment Sentencing Back As a Juvenile Youthful Offender ( 948 04)


Youthful Offender ( 948.04) Downward Departure

Statutory ( 921.0026(2), 893.135(4), 921.185) Non-Statutory

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- to 270-year sentences, but the First District

WHAT ABOUT WHAT ABOUT GRAHAMGRAHAM??


approved 60 to 270 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.

NONSTATUTORY MITIGATORSNONSTATUTORY MITIGATORSSec. 921.0026(1), F.S.Sec. 921.0026(1), F.S.

Enticement Sentence entrapment/manipulation Lower sentence of an equally or more culpable co-defendant


Diminished mental capacity Extraordinary restitution Extraordinary susceptibility Totality of circumstances

3/16/2015

18

ETHICAL CONSIDERATIONS IN ETHICAL CONSIDERATIONS IN SENTENCINGSENTENCING


Applicability of Discovery to Applicability of Discovery to SentencingSentencing

Davis v. State, 73 So. 3d 304 (Fla. 1st DCA 2011)

Ell d St t 613 S 2d 434 (Fl 1983)


Elledge v. State, 613 So. 2d 434 (Fla. 1983)

State v. Clark, 644 So. 2d 556 (Fla. 2d DCA 1994)

Sexton v. State, 643 So. 2d 53 (Fla. 2d DCA 1994)

Booker v. State, 634 So. 2d 301 (Fla. 5th DCA 1994)

Sources of EthicsSources of EthicsLAWYERS: Florida Rules of Professional Conduct Florida case law Cases from other jurisdictions Formal advisory ethics opinions issued by the

Professional Ethics Committee of The Florida Bar


JUDGES: Florida Code of Judicial Conduct Opinions of the Judicial Ethics Advisory Committee Florida case law Cases from other jurisdictions Judicial Ethics Benchguide

3/16/2015

19

Ethical Issues Facing the Ethical Issues Facing the ProsecutorProsecutor

Discovery of exculpatory information Change in circumstances Suspending discovery during plea negotiations


Breach of plea agreement Scoresheet error not objected to by defense Changes to scoresheet on day of sentencing Relationship With the Media/interest groups

Ethical Issues Facing the Ethical Issues Facing the Defense AttorneyDefense Attorney

Is this my decision or my clients? Should I allow the client to speak to the PO? How much should I tell the PO or the Court? What if the PSR/scoresheet is wrong in my favor?


What if my client does not want me to object to an incorrect PSR/scoresheet that is wrong against my favor?

What if my client lies to the PO or the Court? What if my client is using a false or stolen identity?

Ethical Issues Facing the JudgeEthical Issues Facing the Judge

Unobjected-to factual and legal error Unreadable scoresheet Fact-pleading Defendant is barely competent


Defendant is barely competent Charitable contribution as a condition of sentence Judge becomes aware of possible criminal conduct

during sentencing

3/16/2015

20

What are your What are your questions?questions?


Documents

Florida Sentencing Lecture Slides Handout, 2015 FACDL Board Certification Review Seminar