# Joint Appendix — Miller v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0969%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 1987 - **Citation:** 482 U.S. 423 ## Text 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 ‘> -~ 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. BEST AVAILABLE COPY APE2001Y 21916 sBper Bees) asc ve ) e8G2j jc) - —_—— -— fee \ INO 28" 291440 wod ’ - pvecod @w: aocanae ory | PS 7" , ’ ; &)u t eee) um esenepmr, = : = — — ho ; ft s* . mUEs PENA 2 bo vYigay x "ww . : ed ~*~ 418 6 DH ‘ . la ~ ‘ ’ ; ; “ 5 va VilA , 1 IN oF te AY TEN DAAO AYR Ue OC * 4 + co 7 : = F Se | se « "tia VE 2 a, cR 8O1}229 PES OOR Pee PG! saide S2SUsi() }eNZee 7 AsOBa\e') - 7 ~~ 4 ’ 4 - - ~~ 2 7 SENTEN( 14 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. -_— -* --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0969%3A4. Public record. Not legal advice.