Joint Appendix — Miller v. Florida

Supreme Court. US

FILED

UEC to one

No. 86-5344

——

IN THE

Supreme Court of the United States

OcTOBER TERM. 1986

On Writ of Certiorari to the Supreme Court of Florida

JOINT APPENDIX

RicHARD L. JORANDBY iim SMITH

Publi Defender at ry { era

CRAIG BARNARD * loy B. SHEARER *

Chief Assistant Publi Defender! \ tant Attorne (,enerTra

i New ’ 1) ke | ig

ANTHONY _ALVELLO

Assistant Public Defender

GARY CALDWELI a . FL 8

' | , ry ; : >? ]

Assistant Public Defender . — :

wv.) Ss. (7

9th Floor Governmenta! Cente! )

4 for Re ponden

11 North Olive Avenue

Weat Palm Beach, FL. 33401

305) 820-2150

Counsel for Petitioner

* Counsel of Record

_ —_$ $$ _———

PETITION FOR CERTIORARI FILED AUGUST 22, 1986

CERTIORARI GRANTED NOVEMBER 17, 1986

RELEVANT DOCKET ENTRIES

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IN THE CIRCUIT COURT

OF THE SEVENTEENTH JUDICIAL CIRCUIT

IN AND FOR BROWARD COUNTY, FLORIDA

THE STATE OF FLORIDé

Ds.

JAMES ERNET MILLER

INFORMATION FOR

|. SEXUAL BATTERY (ARMED) (LF)

Il. BURGLARY W/ASSAULT (ARMED) (LF)

Ill. ARMED ROBBERY (LF)

IN THE NAME AND BY THE AUTHORITY OF THE

STATE OF FLORIDA:

MICHAEL J. SATZ, State Attorney of the Seventeeth

Judicial Circuit of Florida, as Prosecuting Attorney for

the State of Florida in the County of Broward, by and

through his undersigned Assistant State Attorney,

charges that JAMES ERNET MILLER on the 25th day

of April, A.D. 1984, in the County and State aforesaid,

did unlawfully commit a Sexual Battery upon CHERYL

THOMPSON, a person over the age of eleven (11) years,

without her consent by causing his penis to penetrate or

unite with the vagina of CHERYL THOMPSON and in

the process thereof JAMES ERNET MILLER used or

threatened to use a deadly weapon, to wit: a knife, con-

trary to F.S. 794.011(3) ; and

ve

ray COM ’ . oft |

fo t* -_ nmr y - ’ ’

Ba eT y ePTell ‘

1 Battery upon CHERYL THOM

:

PSON

4

IN THE CIRCUIT COURT,

SEVENTEENTH JUDICIAL CIRCUIT,

IN AND FOR BROWARD COUNTY, FLORIDA

84-307050

STATE OF FLORIDA

— I's—

JAMES ERNET MILLER

Defendant

JUDGMENT

The Defendant, JAMES ERNET MILLER, being per-

sonally before this Court represented by CAHTERINE

KEUTHAN, his attorney of record, and having:

2] Been tried and found guilty of the following

crime (s)

Offense Statute Degree

Count Crime Number (s) Of Crime

I. Sexual Battery 794.011 (5) Life Felony

Il. Burglary W/Assault 810.02 (1) Life Felony

III. Petit Theft 812.04 Misdemeanor

and no cause having been shown why the Defendant should

not be adjudicated guilty, IT IS ORDERED THAT the

Defendant is hereby ADJUDICATED GUILTY of the

above crime (s)

DONE AND ORDERED in Open Court at Broward

County, Florida this 30 day of August A.D., 1984. I

HEREBY CERTIFY that the above and foregoing finger-

prints are the fingerprints of the Defendant, James Ernet

Miller and that they were placed thereon by said Defend-

ant in my presence in Open Court this date.

s/ Russell E. Seay, Jr.

Judge

IN THE CIRCUIT COURT

OF THE 17TH JUDICIAL CIRCU!

BROWARD COUNTY, FLORIDA

SENTENCING HEARING

(Thereupon, the following proceedings were had :)

THE CLERK: James Ernest Miller.

MS. KEUTHAN: Good Morning, Judge.

THE COURT: Okay. This is James E. Miller, and

you were charged—actually you were charged with a

sexual battery, an armed sexual battery and a burglary

with an assault. You had a jury trial and the jury found

you guilty of sexual battery with slight force, which

reduced it to a second degree felony, and also you were

found guilty of a second degree burglary with an assault.

That’s a life felony.

MR. MALPAS: Yes, Judge, a first degree felony

punishable by life.

THE COURT: Okay. A first degree felony punish-

able by life, and also, you were found guilty of a petty

theft and sentenced to time served on that one.

MS. KEUTHAN: Right. Judge, that would bring it

up to 60, not a 100 as is siown on the Presentence

Investigation. It indicates—

THE COURT: Well, whatever it was, but the jury

returned a verdict and the Court adjudicated the defend-

ant guilty on those offenses at that time.

MR. MALPAS: That is correct, Judge.

THE COURT: So we are here today for sentencing.

Is there anything you want to say at this time as to

why sentence should not. be imposed?

MS. KEUTHAN: No legal cause, Judge, but I want

to make a few comments as far as the guidelines are

concerned.

The way they have scored him there is 4 points extra

that should not be in there. This burglary was a life

felony and doesn’t change the category. There is about

3 points left over and when I scored it | was not aware

the defendant had a second misdemeanor charge and that

added 5 points and that put him over into this other cate-

gory, but .. . I would be arguing that this probation

officer and the State Attorney are using the wrong guide-

lines to score this defendant. They are using the newer

8

the sexual battery did take place against the victim’s will,

but he used slight force and this burglary with an assault,

the same thing, Judge. They felt that he entered this

house without her permission and there was no weapon

and they agreed with the victim’s version, in that sense.

So, I don’t think that Number 1 and 2 is any reason-

able grounds to aggravate this sentence.

If you will look at Numbers 3 and 4, their reasons for

aggravating this sentence, basically it is the same thing.

They are saying this defendant didn’t show any remorse

and because of the defendant taking the stand that some-

how he has committed perjury and somehow the defend-

ant’s attack on Mrs. Thompson has done irreparable dam-

age to her relationship with her husband. That is not

relevant at all. These are ridiculous grounds to put into

a Motion to Aggravate and there is clearly no aggravat-

ing factors. This Court has nothing to do with their

divorce or nothing to do with their family matters and

the defendant here cannot be held responsible for any of

their marital problems.

In closing, Judge, I would argue that all of those should

not be considered and they are certainly no grounds to

aggravate this defendant’s sentence in this case. If you

look at his record there was only one or two prior mis-

demeanors and on both of them he was placed on proba-

tion and he completed that probation successfully. I

clearly think that three and a half to four and a half

years, something in that range is warranted by the jury’s

verdicts. They found it not to be as horrible a situation

as the State Attorney originally thought.

MR. MALPAS: Judge, I will let the Motion for

Aggravation speak for itself. You heard the defendant

testify and | think it is obvious that he committed per-

jury, but as for the sentencing guidelines, the first thing

I would do is cite to the Court the case of McGrath vs.

State which indicates, at least it is my opinion, it indicates

that any sentence after July Ist will be under the new

guidelines. That is the State’s position. Even if that was

10

guidelines. They are indicating that by taking the stand

the defendant has committed perjury, and they are indi-

cating to the Court that because the defendant chose to

exercise his constitutional right, that because of that they

are wanting you to hit him with more time and—

THE COURT: Well, the penalty is still the same.

It’s what the probation officer has chose to do with these

guidelines and you are looking to see when this offense

occurred and the State is making their recommendation

and they have elected to go under the new guidelines.

Why can’t they say when they are going to be in effect?

MS. KEUTHAN: They did, Judge. July Ist.

THE COURT: But as it applies to pending matters?

MS. KEUTHAN: Judge, it is law, and you cannot go

outside the guidelines—

THE COURT: It’s not a law.

MR. MALPAS: It’s still inside the statutory period

of incarceration. I cannot see her argument. I would

also like to make another comment.

I agree with defense counsel that he can take the stand,

but he cannot take the stand and perjure himself and—

THE COURT: Well, I will resolve this real quick.

I will say that every time the jury doesn’t totally

believe a witness, that is not perjury. We all know there

is always conflicts in the testimony, so I don’t think he

has committed perjury, the jury just didn’t believe all of

his testimony.

However, I do think the guidelines apply because it’s

a good chance that at the time of sentencing being im-

posed the statutory penalty is the same as the one that

may have been imposed before the guidelines, but anyway.

All right. Then, saying nothing is sufficient, the defend-

ant having been found guilty and having an opportunity

to state why his sentence should not be imposed, he has

been adjudicated guilty of sexual battery with slight

force and also adjudicated guilty of a burglary with

assault, | will say I will stay within the new guidelines.

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SENTEN(

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SENTENCE

(as to Count II)

The Defendant, being personally before this Court,

accompanied by his attorney, C. Keuthan, and having

been adjudicated guilty herein, and the Court having

given the Defendant an opportunity to be heard and to

offer matters in mitigation of sentence, and to show cause

why he should not be sentenced as provided by law, and

no cause being shown,

IT IS THE SENTENCE OF THE LAW that:

The Defendant is hereby committed to the custody of

the Department of Corrections

To be imprisoned

&) For a term of 7 years.

SPECIAL PROVISIONS

By appropriate notation, the following provisions apply

to the sentence imposed in this section:

Jail Credit

It is further ordered that the Defendant shall be

allowed a total of 160 days credit for such time

as he has been incarcerated prior to imposition

of this sentence. Such credit reflects the follow-

ing periods of incarceration (optional) :

It is further ordered that the sentence imposed

for this count shall run [ consecutive to ™ con-

current with (check one) the sentence set forth

in count I above.

In the event the above sentence is to the Department of

Corrections, the Sheriff of Broward County, Florida is

hereby ordered and directed to deliver the Defendant to

16

DISTRICT COURT OF APPEAL OF FLORIDA

FOURTH DISTRICT

No. 84-2188

TAMES ERNEST MILLER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

April 17, 1985

Rehearing Denied June 5, 1985

PER CURIAM.

We vacate the sentence because the trial court errone-

ously applied a stiffening of the sentencing guidelines per-

taining to sex offenders, contained in the Florida Rules

of Criminal Procedure, that did not become effective until

after the appellant committed the instant offense. A rule

change that has a disadvantageous effect on an offender

does not apply to crimes committed before the effective

date of the rule change. See Weaver v. Graham, 450 U.S.

24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); State v. Wil-

liams, 397 So.2d 663, 665 (Fla. 1981); Carter v. State,

452 So.2d 953 (Fla. 5th DCA 1984): Arnold v. State.

429 So.2d 819 (Fla. 2d DCA 1983).

We remand for resentencing in accordance with the

sentencing guidelines in effect at the time the offense was

committed. We observe that the same sentence is pos-

sible if clear and convincing reasons for departure from

the then applicable guidelines are stated in writing.

HERSEY, GLICKSTEIN and BARKETT, JJ., concur.

2

ON MOTION FOR REHEARING

PER CURIAM

We den) appellee's motion for rehearing In d

we would like to comment on two cases dealir

imendments to the sentencing guidelines

Hopper v. State, 465 So.2d 1269 (Fla. 3d DCA 1985

and Frazier v. State, 463 So.2d 458 (Fla. 2d DCA 1985

I ved situations where the trial court applied the

ime! he sentencing guidelines at a hearing

ok place before the effective date of the amend-

in reversing, the appellate court stated that the

le guidelines were not to be anplied retrvactivel)

eT) nded the case for resentencing in accordance

ne gu deline n effect it the time of defendant’s

riginal sentencing

These cases do not involve retroactive application

They involve application of the amendments to the guide

ines before their effective date Further. the court’s lan-

vuave re manding for resentencing i1n accordance with the

ruidelines in effect at the time of the original sentencing

not inconsistent with our holding here, as the court

vas referring to the original guidelines which correlat«

heir effective date to the date of a lefendant’s offense

HERSEY, GLICKSTEIN and BARKE’TT, JJ., conew

18

SUPREME COURT OF FLORIDA

No. 67276

STATE OF FLORIDA,

Petitioner,

Vv.

JAMES ERNEST MILLER,

Respondent.

May 8, 1986

Rehearing Denied June 24, 1986

Application for Review of the Decision of the District

of Appeal—Direct Conflict of Decisions. Fourth District

—Case No. 84-2188.

ADKINS, Justice.

In Miller v. State, 468 So.2d 1018 (Fla. 4th DCA

1985), the court vacated Miller’s sentence because he was

sentenced pursuant to the guidelines in effect at the time

of sentencing as opposed to the guidelines in effect at the

time the crime was committed. In State v. Jackson, 478

So.2d 1054 (Fla. 1985), we held that the trial court may

sentence a defendant pursuant to the guidelines in effect

at the time of sentencing.

Accordingly, the decision of the district court is

quashed.

It is so ordered.

BOYD, C.J., and OVERTON and McDONALD, JJ.,

concur.

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