Petitioners Brief — Miller v. Florida

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Supreme Court. U S.

FILED

jan 13 887

BOSEPH F. SPANIOL, JR,

“LERK

No. 86-5344

IN THE

Supreme Court of the Ginited States

OcToReER Term. 1986

On Writ Of Certiorari

lo The Supreme Court Of Florida

BRIEF FOR PETITIONER

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QUESTION PRESENTED

Whether the retroactive application of a statutory

amendment to the existing Florida sentencing guidelines

where the purpose and effect of the amendment was to

increase sentences for sexual offenses violates the Ex Post

Facto Clause?

TABLE OF CONTENTS

Page

QUESTION PRESENTED. . , , odes

TABLE OF AUTHORITIES. ili

Opinions BELow....... sann l

JURISDICTION....... ]

CONSTITUTIONAL AND STATUTORY Prov ISIONS

INVOLVED ...... ine | l

STATEMENT OF THE CASE

]

A. Course Of Prior Proceedings ]

B. Material Facts: Florida's Sentencing Guidelines 4

SUMMARY OF ARGUMENT..... cain -

ARGUMENT

THe RETROACTIVE APPLICATION TO Mr.

MILLER OF THE STATUTORY AMENDMENT TO

THE FLorips SENTENCING GUIDELINES

Law To INCREASE THE LENGTH oF INCAR-

CERATION For Sexvuat Orrenses, Vio-

LATES THE Ex Post Facto CLAUSE ....... 10

A. Introduction ...... dices seenecennann 10

B. Dobbert and Weaver .... 15

Cc sa Of The Ex Post Facto Cc louse To The

orida Sentencing Guidelines 26

D. Summary | 36

CONCLUSION 3

APPENDICES

A. Statutory and Rule Provisions Involved ....la-24a

B. Exemplary Florida Guideline Cases .. -23a-29a

TABLE OF AUTHORITIES

Page

Albritton v. State, 476 So.2d 158 (Fla. 1985). .......... 13

Beazell v. Ohio, 269 U.S. 167 . 1925)... .. . 6... ee 17

Bebe v. Phelps, 650 F.2d 774 (Sth Cir. 1981) ........... 24

Benyard v. Wainwright, 322 So.2d 473 (Fl. 1975)...... 5, 26

Boston v. State, 481 So.2d SGO.... 2... ccc cece cceeess 28

Brown v. State, 487 So.2d 392 (Fla. Ist DCA 1986)... .. 31

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798)..... 14, 22. 25, 36

Colbert v. State, 490 So.2d 942 (Fla. 1986) ............ 19

Dobdbert v. Florida, 432 U.S. 282 (1977). ........... passim

Dorminez v. State, 314 So.2d 134 (Fl. 1975) ........... 5

Foster v. Barbour, 462 F.Supp. 582 (W.D.N.C. 1975 ... 32

Furman v. Georgia, 408 U.S. 238 (1972) ...... ....... 16

Greenfield v. Scafati, 277 F.Supp. 644 (D. Mass 1967) aff'd,

Re 15

Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ....... 14

Harris v. Wainwright,376 So.2d 855 (Fla. 1979). ...-.. 22

Hayward v. United States Parole Commission, 659 F.2d

857 (8th Cir. 1981), cert. den. 456 U.S. 935 (1982).. 26

Hendriz v. State, 475 So.2d 1218 (Fla. 1985) .......... 27

Hopper v. State, 465 So.2d 1269 (Fla. 2d DCA 1985).... 30

Hopt v. Utah, 110 U.S. 574 (1884)... .. 2... 6 ee ee ee 18

In re Medley, 134 U.S. 160 (1890). .............. 14, 31, 36

In re Stanworth, 33 Cal.3d 176, 187 Cal.Rptr. 783 (1982) 34

Knuck v. Wainwright, 759 F.2d 856 (11 Cir. 1985)...... 24

Kring v. Missouri, 107 U.S. 221 (1883). ......... 14, 23, 32

Lindsey v. Washington, 301 U.S. 397 (1937)........ passim

Marshall v. Garrison, 659 F.2d 440 (4th Cir. 1981) ..... 32

Miller v. State, 468 So.2d 1018 (Fla. 4th DCA 1985).... l

Moore v. State, 469 So.2d 947 (Fla. 5th DCA 1985)... .. 30

Patterson v. State, 486 So.2d 74 (Fla. 4th DCA 1986) aff'd.

—— So.2d —__ 12 F.L. W. 63 (Fila. Jan. 5, 1987)... 28

People v. Clarke, 111 A.D.2d 11, 489 N.Y.S.2d 1(A.D. 1

iii eesekesceceecesecesoescecesece: 34

People v. Moon, 125 Mich. App. 773, 337 N.W.2d 293

EEE errr TTT TTT Teer ee 33

ne eeccceee eit - 33

Table of Authorities Continued

Page

Rooney v. North Dakota, 196 U.S. 319 (1905) ......... 36

Rusaw v. State, 451 So.2d 469 (Fla. 1984)............. 5

Shepard v. Taylor, 556 F.2d 648 (2d Cir. 1977) ......... 32

Scurry v. State, 489 So.2d 25 (Fla. 1986). ............. 27

State v. Jackson, 478 So.2d 1054 (Fla. 1985)........ passim

State v. Miller, 488 So.2d 820 (Fla. 1986). ............. l

State v. Mischler, 488 So.2d 523 (Fla. 1986).......... 7, 27

State v. Niccum, 293 N.C. 276, 238 S.E.2d 141 (1977). 32, 33

State v. Taylor, 487 So.2d 294 (Fla. 1986) ............. 18

Tanner v. State, 468 So.2d 505 (Fla. 2d DCA 1985)..... 28

Thompson v. Utah, 170 U.S. 343 (1898)... . 2... 6.6.66. 23

United States v. Countryman, 758 F.2d 574

PD Pi « cnnenuchudasadensssanceecesee cs 32

United States v. Henson, 486 F.2d 1292 (D.C. Cir. 1973) 23

United States v. Romero, 596 F.Supp. 446(D.N.M. 1984) 32

United States v. Wi/liams, 475 F.2d 355 (D.C. Cir.

I al ok tain Biba ch ania ek Oe i ae A 23, 35

Van Horn v. State, 485 So.2d 1380 (Fla. 3d DCA 1986),

___._ So. 2d —___. (Fla. 1986), 11 F.L. W. 623 (Fla. Dec.

RR ey TS Pe. 31

Walker v. State, 458 So.2d 396 (Fla. lst DCA 1981).... 30

Warden v. Marrero, 417 U.S. 653 (1974) .............. 15

Warner v. State, 265 Ind. 262, 354 N.E.2d 178 (1976)... 33

Weaver v. Graham, 450 U.S. 24 (1981). ............ passim

Weaver v. Wainwright, 376 So.2d 855 (Fla. 1979)....... 21

Wilkerson v. State, 494 So.2d 210 (Fla. 1986).......... 19

Wilkerson v. State, 480 So.2d 213 (Fla. lst DCA 1985).. 31

Vright v. State, 677 S.W.2d 425 (Mo.App. 1984)........ 34

STATUTES:

Florida Statutes (1975)

I a 21

Florida Statutes (1983)

a a a i ed ee 1,4

I i a . 5,26

Section 921.001(4 a)... .. cc ccc ccc ccc cece nce 4

Table of Authorities Continued

Page

Section GB1L.GOMEMD). .. 2. ccc cece ccccccccccess 5, 26, 34

I oo now een ceueeeceueees 7, 27

a el 6

Nee oc ie ee eee ened eee ek 28

ooo eee ease eunstecbes 6

Ene re 6

Laws Of Florida:

Chapter 83-13, Section 35... 0.0.0... cc cceccecceeces 6

er 8, 11, 26

STATUTES OF THE UNITED STATEs:

Title 18, United States Code, Section 5010 (1974) .. 32

RULEs:

Florida Rules of Criminal Procedure

a ee eee 1, 27

ee is oii i eae eens aie 5

EE tobe oe bed ate een eusdaddeansededi 27

i a 6

EE EN ne siete 6

ee ee 7

ie ee ei aki ... 7,27,29

Ee en eee mee ae l

BOOKS:

L. Davidson, Florida Criminal Sentencing Law (1986). 20

MISCELLANEOUS:

The Florida Bar: Amendment to Rules of Criminal Pro-

cedure (3.071, 3.988—Sentencing Guidelines), 451

So.2d 824 (Fla. 1984)............0cceeeeeees 8, 11, 34

The Florida Bar: Amendment to Rule of Criminal Pro-

cedure (3.701, 3.988—Sentencing Guidelines), 468

* — § ee rrr yrrT s

The F lorida Bar: Rules of Criminal Procedure, (Sentenc-

ing Guidelines, 3.701, 3.988), 482 So.2d 311 (Fla.

Pakeannesdedssédedaseesokecsseseonesecen: s

OPINIONS BELOW

The summary opinion of the Supreme Court of Florida

in this cause appears as State v. Miller, 488 So.2d 820

(Fla. 1986) and is set out in the Joint Appendix (JA) at

pages 18-19. The opinion of the District Court of Appeal,

Fourth District of Florida, is reported as Miller v. State,

468 So.2d 1018 (Fla. 4th DCA 1985) and is set out at JA

16-17.

JURISDICTION

The judgment of the Supreme Court of Florida was

rendered on May 8, 1986, and petitioner's motion for

rehearing was denied on June 24, 1986. The Petition for

Writ of Certiorari was filed on August 22, 1986 with

accompanying motion for leave to proceed in forma

pauperis. Certiorari was granted on November 17, 1986.

JA 20. Jurisdiction rests upon 28 U.S.C. § 1257(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

This case involves Article I, Section 10 of the Constitu-

tion of the United States which provides in pertinent part

that “No State shall. . . pass any. . . ex post facto Law.”

It also involves section 921.001, Florida Statutes (1983)

and Rules 3.701 and 3.988, Florida Rules of Criminal

Procedure, both in their original form and as amended.

Both versions of these provisions, because of their length,

are set out as Appendix A hereto. !

STATEMENT OF THE CASE

A. Course Of Prior Proceedings

On May 15, 1984, an information was filed in the Seven-

teenth Judicial Circuit of Florida charging Petitioner,

' References to the Appendix attached hereto are designated in the

brief by the symbol “App. ___.

James Ernest Miller, with sexual battery while armed

(Count I), burglary with an assault (Count II), and armed

robbery (Count III). JA 2-3. Mr. Miller was alleged to

have committed these offenses on April 25, 1984. He was

tried by jury and on August 30, 1984 Mr. Miller was

convicted of sexual battery with slight force, a lesser

included offense under Count I; burglary with assault;

and petty theft, a lesser included offense under Count III

of the information. JA 6, 12. Sentencing was scheduled for

October 2, 1984. Like all Florida criminal defendants

whose offenses occurred after October 1, 1983, state law

mandated that Mr. Miller was to be sentenced under the

provisions of Florida's sentencing guidelines. A question

arose at sentencing, however, because Florida had

enacted an amendment to those guidelines that had

become effective after the date of Mr. Miller's offense. The

effect of this amendment, as discussed infra, was to

increase the presumptive sentence for persons convicted

of sexual offenses.

During the sentencing hearing Mr. Miiier argued that

the guidelines in effect 2+ the time of the offense should be

applied to determine his sentence, not the leter-enacted

increased guidelines. JA 6-7. Mr. Miller's counsel argued

the original guidelines called for a presumptive sentence

range of three and one-half to four and one-half years

imprisonment. JA 7. The Assistant State Attorney

requested the trial judge to sentence Mr. Miller pursuant

to the amended guidelines which had not become effective

until July 1, 1984. JA 8-9.

The prosecutor also filed a motion to aggravate the

presumptive sentence, which contained his suggested

reasons for a departure from that presumptive sentence.

JA 8-10. Mr. Miller objected to those grounds and opposed

any departure sentence. JA 7-10. The prosecutor's motion

to depart was denied. JA 10.

However, over defense counsel’s objection, the trial

judge sentenced Mr. Miller under the recently amended

sentencing guidelines, which specified an increased range

of between 5% to 7 years in prison. JA 10, 12. The result-

ing sentence was for concurrent seven year terms in

prison (with credit for time served).? JA 13-15. The trial

judge made no finding there were ciear and convincing

reasons justifying a departure from the presumptive sen-

tence.

An appeal was taken to the district court of appeal, for

the Fourth District. That court, relying upon Weaver v.

Graham, 450 U.S. 24(1981), vacated Mr. Miller’s sentence

“because the trial court erroneously applied a stiffening of

the sentencing guidelines pertaining to sex offenders,

contained in the Florida Rules of Criminal Procedure,

that did not become effective until after Appellant com-

mitted the instant offense. A rule change that has a disad-

vantageous effect on an offender does not apply to crimes

committed before the effective date of the rule change.”

JA 16. It ordered “resentencing in accordance with the

sentencing guidelines in effect at the time the offense was

committed.” JA 16. The State’s motion for rehearing was

denied with opinion on June 5, 1985, JA 17, and it then

sought discretionary review in the Florida Supreme

Court.

2 Under Florida’s guidelines, only the “primary offense”—in this

case the sexual battery count—is scored to determine the sentence.

Other counts are factored into that “primary offense” score. The score

for the primary offense becomes the maximum sentence that can be

imposed for all counts. This process explains the concurrent seven

year sentences for the other counts of the information.

Meanwhile, the Florida Supreme Court in another

case, State v. Jackson, 478 So.2d 1054 (Fla. 1985), had

held that under Dobdbdert v. Florida, 432 U.S. 282 (1977),

retroactive application of the amendments to the senten.

ing guidelines did not violate the Ex Post Facto Clause.

Two justices dissented, relying on the Court's decision in

Weaver v. Graham, supra.

The Florida Supreme Court accepted jurisdiction of

this case and in a summary opinion citing its Jackson

decision quashed the decision of the district court: “the

trial court may sentence a defendant pursuant to the

guidelines in effect at the time of sentencing.” JA 18.

B. Material Facts: Florida's Sentencing Guidelines

Florida law bound the trial court to sentence Mr. Miller

in accord with the Florida sentencing guidelines statute

because his crimes occurred after the October 1, 1983 date

that law became effective.®

Florida’ move to guidelines sentencing is its response

to discontent with the wide disparity it found inherent in

unguided indeterminate sentencing. Its break with inde-

terminate sentencing, and the vast discretion it afforded,

was a clean one.

The Florida Legislature created the Florida Sentenc-

ing Guidel C ission (hereinafter “C ission”)

and made it responsible for the initial development of a

statewide system of sentencing guidelines. § 921.001,

Fla. Stat. (1983). There is no question the Legislature

The Legislature mandated that the sentencing guidelines be

applied to all non-capital felonies committed on or after October 1,

1983. Certain felons who committed their offense prior to this date

were given the right to affirmatively select the sentencing guidelines.

Section 921.00K4\a), Fla. Stat. (1983).

intended the guidelines would set real limits on sentenc-

ing discretion. In creating the Commission the Legis-

lature declared: “The provision of criminal penalties and

of limitations upon the application of such penalties is a

matter of predominately substantive law and, as such, is a

matter properly addressed by the Legislature.” Section

921.001(1), Fla. Stat. (1983) (emphasis added).

The Commission was mandated to present annual rec-

ommendations for changes in the sentencing guidelines.

Section 921.001(4\b), Fla. Stat. (1983). The Florida

Supreme Court was authorized by the Legislature to

revise the sentencing guidelines, but the Legislature

expressly reserved the right to approve any revisions:

“However, such revision shall become effective only upon

the subsequent adoption by the Legislature of legislation

implementing the guidelines as then revised.”

§921.001(4\(b), Fla. Stat. (1983).

The express purpose of the sentencing guidelines as

finally enacted was to reduce disparity in sentence length

and type. See Fla. R. Crim. P. 3.701(b) (“sentencing

*One reason for this declaration is that the Legislature is pro-

hibited by the state constitution from passing matters affecting court

procedures. Fla. Const. Art. V, § 2(a). See Benyard v. Wainwright,

322 So.2d 473, 475 (Fla. 1975) (“The responsibility to make substan-

tive law is in the legislature within the limits of the state and federal

constitutions. Procedural law concerns the means and method to

apply and enforce those duties and rights. Procedural rules con-

cerning the judicial branch are the responsibility of this Court, sub-

ject to repeal by the legislature in accordance with our constitutional

provisions’). Under Florida law, the power to prescribe the penalty to

be imposed for commission of a crime rests with the legislature, not

with the courts. See, ¢.g., Dorminez v. State. 314 So.2d 134, 136 (Fla.

1975). “It is well settled that the Legislature has the power to define

crimes and to set punishments.” Rusaw v. State, 451 So.2d 469, 470

(Fla. 1984); Art. II, Sec. 3; Fla. Const

guidelines are intended to eliminate unwarranted varia-

tion in the sentencing process by reducing . . . subjec-

tivity . . .”). Under the previous system of indeterminate

sentencing, a sentencing court was allowed the discretion

to impose any sentence between the minimum and max-

imum established by the Legislature and there was parole

eligibility, see Sections 947.002, 947.26, Fla. Stat. (1983).

Generally no appeal of the sentence was allowed.

There is no longer any eligibility for parole under a

guidelines sentence.® The defendant is to be released only

when the sentence expires, and th.t may be shortened

only by accumulated gain time or executive clemency. See

Section 921.001(8), Fla. Stat. (1984).

The guidelines establish an objective basis for sentenc-

ing. They are divided into nine separate “offense catego-

ries.” See Rule 3.701(c). Rule 3.701(d)(3)-(7) provides five

factors to which “points” are assigned in “scoring” a given

offense.®

After the five factors are scored, the numerical values

previously assigned to each factor by the Sentencing

Commission are added together to arrive at a total points

score. The total points for the primary offense category’

5In fact the parole commission was “sunsetted” (scheduled for

abolition) under a law enacted in tandem with the switch to guideline

sentencing. Laws of Florida, Ch. 83-13, §35.

® These five factors are as follows:

4. Legal status at time of offense, and

5. Victim injury.

7 As previously mentioned, only the primary offense is scored for

the guidelines sentence. The primary offense is “the most serious

offense at conviction.” Fla. R. Crim. P. 3.701(d\(3).

are compared to a chart for the offense category which

contains “cells” setting forth presumptive sentencing

ranges accor‘ling to the total point score. An example of

these charts is set out at App. ___. Each of the recom-

mended ranges allows so.ne discretion within that range,

and establishes a presumption that the recommended

sentence contained therein be employed. Rule

3.701(d\(8). Departures from the presumptive guideline

sentence range are thus discouraged, to be utilized only in

limited circumstances. Under Fla. R. Crim. P.

3.701(d)\(11): “Departures from the presumptive sentence

should be avoided unless there are clear and convincing

reasons to warrant aggravating or mitigating the sen-

tence. Any sentence outside of the guidelines must be

accompanied by a written statement delineating reasons

for the departure.” The judicial overlay of the statutory

requirements has evidenced an intent to ensure the vast

majority of sentences stay within the presumptive bounds

set by the guidelines ranges. The Florida Supreme Court

in State v. Mischler, 488 So.2d 523, 525 (Fla. 1986) held

“the ‘clear and convincing reasons required by the sen-

tencing statute must be ‘credible’ and proven beyond a

reasonable doubt. The reasons themselves must be of

such weight as to produce in the mind of the judge a firm

belief or conviction, without hesitancy, that departure is

warranted.” These requirements place a heavy burden on

the party advocating a departure both from a persuasive

and evidentiary standpoint. Under Section 921.001(5),

Fla. Stat. (1984), any departure from the presumptive

guidelines sentence range is reviewable on appeal.

The sexual battery offense for which Mr. Miller was

convicted fits in the “Sexual Offenses” guidelines cate-

gory. On May 8, 1984, the Florida Supreme Court

approved amendments to the sentencing guidelines that

were intended to and did increase the length of imprison-

ment for those convicted of sexual offenses. The Florida

Bar: Amendment to Rules of Criminal Procedure, 451

So.2d 824 (Fla. 1984). One of the principle purposes of the

amendments was to “increase[] rates and lengths of incar-

ceration for sexual offenders.” /d. at 824 n*. The Florida

Legislature approved these amendments which went into

effect cn July 1, 1984.% Ch. 84-328, Laws of Florida

(1984). App. 3a-4a. The amended guidelines increased the

points scored for Mr. Miller’s “primary offense” by

twenty-six points which translated into a two “cell” jump:

an additional two years minimum presumptive sentence,

and an additional two and one-half years imprisonment

authorized at the top of the range.

SUMMARY OF ARGUMENT

In Weaver v. Graham, 450 U.S. 24, 29 (1981) the Court

set forth a two prong test to assess an ex post facto

viola.'on: (1) does the law attach legal consequence to

crimes committed before the law took effect, and (2) does

the law affect pe:sons who committed those crimes in a

*In April of 1985 the Florida Supreme Court adopted further

changes proposed by the Sentencing Guideline Commission. The

Florida Bar: Rules of Criminal Procedure (Sentencing Guidelines

3.701, 3.988), 468 So.2d 226 (Fla. 1985). The 1985 Legislature, how-

ever, chose not to ratify those changes. Substantially the same

changes and additional ones were approved by the court in The

Florida Bar: Rules of Criminal Procedure (Sentencing Guidelines.

3.701, 3.988), 482 So.2d 311 (Fla. 1985). The 1986 Legislature

approved most of the changes effective October 1, 1986. Section

921.0015, Fla. Stat. (1986). Only the changes proposed to Form

3.988(e) were not approved by the Legislature. This indicates that the

Legislature has repeatedly exercised its authority pursuant to sec-

tion 921.001(4)\(b), Fla. Stat. (1983) to disprove proposed changes in

the sentencing guidelines.

disadvantageous fashion? If the answer to both questions

is yes, then the law constitutes an ex post facto law and is

void as applied to those persons.

Under the sitnation at bar, both prongs of the Weaver

test are met. First, retrospective application of this

amendment t» the Florida sentencing guidelines would

result in it being applied to persons who committed

offenses prior to its effective date. Second, these con-

sequences had a disadvantageous effect in that Mr. Mil-

ler’s sentence was enhanced. Just as the statutory

changes in gain-time at issue in Weaver disadvantaged Mr.

Weaver or altered the “quantum of punishment,” id. at 33,

so too at bar, changes in the sentencing guidelines which

result in a lengthier presumptive sentence disadvantaged

Mr. Miller or altered the “quantum of punishment.”

The test is not whether the Legislature retroactively

increased the statutory maximum possible penalty, as the

Florida Supreme Court holds. Rather the inquiry must

focus on whether the “later standard of punishment is

more onerous than the earlier.” Lindsey v. Washington,

301 U.S. 397, 400 (1937); Weaver v. Graham, supra.

In addition, this retrospective detriment or disadvan-

tageous effect upon Mr. Miller's sentence cannot be con-

sidered “merely procedural.” Imposition of a sentence

within the presumptive guidelines sentence range under

Florida law embodies a substantive and substantial right.

Hence the retroactive application to his detriment of this

statutory amendment to the Florida sentencing

guidelines law resulted in a prohibited ex post facto law.

ARGUMENT

THE RETROACTIVE APPLICATION TO MR. MILLER OF

THE STATUTORY AMENDMENT TO THE FLORIDA SEN-

TENCING GUIDELINES LAW TO INCREASE THE

LENGTH OF INCARCERATION FOR SEXUAL

OFFENSES, VIOLATES THE EX POST FACTO CLAUSE

A. Introduction

With the laudable goal of attaining consistency in sen-

tencing, Florida enacted “Sentencing Guidelines” that

became effective on October 1, 1983. By using objective

factors which are “scored” with points, summing these

points, and then comparing the point total to a standard

chart for the offense category, a “presumptive” range for

the sentence is determined. Though an upward or down-

ward “departure” from the presumptive sentence could

be allowed, such a departure is not discretionary and

could be imposed only on narrow grounds meeting a pre-

scribed standard of proof. In addition, parole is forever

abolished, and the state and defense are given the right to

appeal any “departures” from the guidelines. The points,

the method of summing, the offense categories and the

presumptive sentences were developed by the Sentencing

Guidelines Commission and approved by the Florida Leg-

islature and Supreme Court. There was no ex post facto

issue with regard to these original guidelines because for

an offense occurring before their effective date, sentenc-

ing under the guidelines was made optional with the

defendant.

Mr. Miller's offense occurred on April 24, 1984, thereby

making *t mandatory that he be sentenced under the

guidelines. He concomitantly lost the right to parole, but

gained the right to appeal if the judge were to err in

scoring or depart from the presumptive sentence. Under

the guidelines in effect in April, 1984, Mr. Miller's pre-

sumptive sentence would have been three and one-half to

four and one-half years incarceration. However, he was

given a seven year prison sentence. The reason for that

increased punishment is the issue now before the Court.

The Sentencing Guidelines Commission decided later

that it wanted to increase the punishment for sex offend-

ers. So, it recommended that point totals be increased in

the “Sexual Offense” category. The more points scored,

the higher the presumptive sentence will be. The Com-

mission’s recommendation to up the points for the sexual

offenses category was approved by the Florida Supreme

Court on May 8, 1984° and adopted by the legislature to be

effective on July 1, 1984.!° In approving that change the

Florida court explained the effect of the amendment to

the sexual offenses category as “increas{ing] the primary

offense points by 20%” resulting “in both increased rates

and length of incarceration for sexual offenders.” 451

So.2d at n.* (emphasis supplied). Simply put, more people

will go to prison for longer periods of time under the July,

1984 change. Here, over Mr. Miller's objections that his

April offense predated the July change in the guidelines,

the judge decided to follow the new guidelines. The effect,

as predicted, was to boost the points scored and thus the

presumptive sentence to a five and one-half to seven year

range. The judge chose seven years incarceration.

The Florida appellate court said no, applying the new

heftier guidelines to “stiffen[{]” the sentence violates the

Ex Post Facto Clause. The appellate court relied upon

Weaver v. Graham, 450 U.S. 24 (1981) for its holding,

finding that the guideline increase had “a disadvan-

* The Florida Bar: Amendment to Rules of Criminal Procedure,

451 So.2d 824 (Fla. 1984).

tageous effect” on Mr. Miller and thus could not be retro-

spectively applied. JA 16. But the Florida Supreme Court

said yes, the new sexual offenses category could be used

to increase Mr. Miller's presumptive sentence since the

guidelines were “procedural.”!! The court relied upon

Dobbert v. Florida, 432 U.S. 282 (1977) for its holding.

The question thus put for review is whether the retroac-

tive application of changes to sentencing guidelines with

the intended effect of “increas{ing] . . . length of incar-

ceration” for Mr. Miller violates the prohibition on ex post

facto laws.

Manifestly, it does. The sentencing guidelines cannot

be shunted aside as “procedural.” In fact the term

“guidelines” is misleading. The application of the

guidelines results in a “presumptive” sentence range

which defines both the type of punishment (probation,

non-state jail, or prison) and its length. The sentence

meted out must fall within this presumptive range. The

only way that a sentence outside the presumptive range

may be imposed is if the judge “departs” from that sen-

tence. Departure is not discretionary. To depart, a judge

must file (1) written reasons, (2) that are clear and con-

vincing, (3) upon facts proven beyond a reasonable doubt,

and (4) that are not already inherent in the offense or

otherwise scored. Even then, the departure is subject to

appellate review for the validity and propriety of the

stated grounds. If any one of the judge’s reasons is

improper, the sentence is reversed unless its considera-

tion is found harmless “beyond a reasonable doubt.”

'! Actually, the court's opinion in this case was summary in nature,

relying upon the court's prior opinion in State v. Jackson, supra. JA

18. It was in Jackson that the Florida Supreme Court's reasoning

appears.

Albritton v. State, 476 So.2d 158, 160 (Fla. 1985) (adopt-

ing the review test of Chapman v. California, 386 U.S. 18

(1967)).

The sentencing “procedure” never changed at the rele-

vant times of this case. The procedure for determining the

sentence—scoring points for certain objective factors and

summing the points to determine the sentence—stayed

the same, Only the point valwes changed—and a change in

point values means an increase in the sentence imposed.

Thus, in reality no procedural change was brought about

by the July guidelines; the only effect was substantive. !2

With this background, no one has disputed that Mr.

Miller ended up with a longer prison sentence because he

was sentenced under the stiffer July guidelines rather

than the original guidelines in effect at the time of his

offense. Such a result is precisely what the Ex Post Facto

Clause was intended to foreclose. In the earliest explica-

tion of the reach of the Clause, !3 Justice Chase set out four

situations falling within the ex post facto prohibition, the

second and third of which are:

2d. Every law that aggravates a crime, or makes it

greater than it was, when committed.

'2 Therefore, this case does not involve the question of a guidelines

sentence for a pre-guidelines offense. Whatever force an argument

that the guidelines procedures were ameliorative or otherwise

merely procedural might have in that situation, it is inapplicable here.

In this case, the guidelines were already in mandatory effect at the

time of Mr. Miller's offense, and the after-the-fact change only served

to raise his sentence under those guidelines.

'3 The Clause applies equally to the federal and state governments.

The Constitution prohibits both Congress, Art I, section 9, cl. 3 and

the states from enacting ex post facto laws. Article I, section 10, cl. 1.

——— a |

3d Every law that changes the punishment, and

inflicts a greater punishment, than the law annexed

to the crime, when committed.

Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (Chase, J.,

concurring). !4 Our understanding of the basis of the pro-

hibition against ex post facto laws has changed little since

that time.

The Court has consistently stricken retrospective legis-

lative tinkering with the quantum of punishment to which

a defendant is exposed ior a given offense: any law passed

after the commission of an offense which, “in relation to

the offense, or its consequences alters the sitvation of a

party to his disadvantage,” is an invalid « : p.. ‘acto law.

Kring v. Missouri, 107 U.S. 221, 235 (1853). *®

Thus, in Lindsey v. Washington, 301 U.S. 397 (1937),

the Court invalidated application of a law enacting a man-

datory minimum fifteen year sentence which replaced an

indeterminate six month to fifteen year provision in effect

at the time of the crime. Even though under the new

'4The question in Calder v. Bull, supra, did not concern the

application of the Ex Post Facto Clause in a criminal case; at issue

instead was whether the Clause extcnded to civil legislation. Modern

courts have applied the ex post facto prohibition solely to criminal

enactments. See Harisiades v. Shaughnessy, 342 U.S. 580, 594,

(1952).

‘5 Kring involved an intervening state constitutional amendment

that had the effect of exposing the defendant to a first degree, rather

than second degree, murder charge. The Court found the amend-

ment had changed the defendant's “punishment.” The prohibited

“disadvantage” also was heid to include not only exposure to greater

punishment, but changes in the conditions of confinement. See /n re

Medley, 134 U.S. 160 (1890) (new law mandating convicted murderer

be kept in solitary confinement until execution and that warden

should set date of execution without informing prisoner violated Ex

Post Facto Clause).

statute the defendant could be admitted to parole at a

time far short of the expiration of his mandatory sentence,

the Court observed that even on parole he would remain

“subject to the surveillance” of the parole board and that

his parole itself was subject to revocation. The Court held:

The Constitution forbids the application of any new

punitive measure to a crime already consummated,

to the detriment or material disadvantage of the

doer... . It is for this reason that an increase

in the possible penalty is ex post facto, ...

regardless of the length of the sentence actually

imposed, since the measure of punishment pre-

scribed by the later statute is more severe than that

of the earlier.

Removal of the possibilit ya sentence of less than

fifteen years, at the end of which petitioners would be

freed from further confinement and the tutelage of a

le revocab]. at will, operates to their detriment

in the sense that the standard of punishment adopted

» Fa new statute is more onerous than that of the

old.

Id. at 401-402 (emphasis added; citations omitted). '*

B. Dobbert and Weaver

It is this time-tested fabric of constitutional jurispru-

dence which compelled the Court to rule for the petitioner

‘6 See also Warden v. Marrero, 417 U.S. 653, 662-63, (1974) recog-

nizing that loss of eligibility for parole is part of the “punishment” for

purposes of the Ex Post Facto Clause); Greenfield v. Scafati, 277

F.Supp. 644 (D.Mass. 1967), affd without opinion, 390 U.S. 713

(1968) (striking a statute depriving parole violators of accumulated

good time upon their return to prison, as applied to a prisoner who

had been sentenced before the iaw went into eifect, since the possible

loss of good time for parole violation was in effect a potential length-

ening of the sentence

in Weaver v. Graham, 450 U.S. 24 (1981), and against him

in Dobbert v. Florida, 432 U.S. 282 (1977), and so must

guide the Court here. The change at issue here is a sub-

stantive, disadvantageous one (Weaver) not merely an

ameliorative alteration in the manner of imposing an

othewise unchanged quantum of punishment (Dodbert). A

comparison of the laws the Court considered in those two

Florida cases with the one before it here makes clear the

July 1984 guidelines amendments were substantive

changes in the amount of punishment, both by intent and

effect, and that their post facto application is barred by

the Constitution.

Dobbert defines those retrospectively-applied law

changes the Constitution will tolerate. Florida had

responded to Furman"? by enacting a new capital sen-

tencing statute!* changing in significant ways the method

by which the death penalty could be imposed from that

existing at the time Mr. Dobbert’s crimes were com-

mitted.'* The new statutory procedure was used to try

Mr. Dobbert, and he was sentenced to death. Because the

jury had recommened life, Dobbert argued the applica-

tion of the new statute disadvantaged iim because it

permitted the trial court to override such a recomme;:.da-

tion, when the same jury verdict would have been binding

under the procedure effective at the time of the crimes.

‘7 Furman v. Georgia, 408 U.S. 238 (1972).

18 §921.141, Fla. Stat. (1973).

'® The Court noted the changes included the bifurcated sentencing

“listing and weighing of anand aitentinnad ‘

stances, requirement of written findings, the non-binding jury rec-

ommendation, and the automatic review of a death sentence as sig-

nificant changes relevant to Mr. Dobbert’s claim. Dobbert, 432 U.S. at

292. See Proffitt v. Florida, 428 U.S. 242 (1976).

The Court rejected the ex post facto claim, finding the

changes both “ameliorative” and “procedural” which did

not work to Mr. Dobbert’s disadvantage, and significantly,

never altered his crimes’ potential punishment which

throughout the years had remained the death penalty.

The Court held:

(C}rucial protection(s} demonstrate[ | that the new

statute affords significantly more safeguards to the

defendant than did Ty old. Death is not automatic,

absent a j ; recommendation of mercy, as it was

under the old procedure. A jury recommendation of

life may be overridcen by the trial judge only under

the —~v~ standards of Tedder. . nder the new

statute, defendants have a second chance for life with

the trial judge and a third, if necessary, with the

Florida Suaseme Court. No such protection was

afforded by the old statute. Hence, viewing the total-

ity of the procedural changes wrought by the new

statute, we conclude that the new statute did not

~ - - onerot's application of an ex post facto change

in the law. . . .

Dobbert, 432 U.S. at 295-97. The Court also noted the

speculative nature of Dobbert’s claim that he would have

been sentenced to life under the old statute, and rejected

his reasoning the jury may have also voted for life under

the old procedure. /d. at 295 n.7.

Relying or. its earlier decision in Beazell v. Ohio, 269

U.S. 167 (1925), the Court observed that a change in the

law which is procedural is not ex post facto even though it

may work to the disadvantage of the defendant. 432 U.S.

at 292. More important in finding the change in Florida

law procedural, and not an ex post facto law, the Court

explained that the premise of its holding was an absence of

any change in the potential punishment from that existing

at the time of the crimes:

of punishment attached to the

crime. The ing la Hopt v. Utah,

supra, i with to the case at

“The crime for which the present defendant was

- the + — —— therefor, and

quantity or degree necessary to

establish his guilt, all rerrsined unaflected by the

subsequent statute.” 110 U.S., at 589-590.

Id. at 293-94.

The Supreme Court of Florida, relying entirely upon its

decision in State v. Jackson, supra, reversed the decision

of the Florida Fourth District Court of App~al which had

vacated Mr. Miller's sentence. JA 18-19. In Jackson, that

court said Dobbert controlled which sentencing guidelines

were to be used upon resentencing a probationer for his

revocation of probation. The majority”® held:

We agree with the state that the presumptive sen-

tence established by the guidelines does not change

2 Six justices of the Supreme Court of Florida participated in the

State v. Jackson, supra decision. The majority opinion, authored by

Justice Overton, was concurred in by Justice Boyd, Adkins, and

McDonald. Justice Enrlich files a dissenting opinion, with which

Justice Shaw concurred. Subsequent to Jackson, the newest justice

on the court, Justice Barkett, made known her agreement with

Justice Ehrlich’s dissent in State v. Jackson, supra. See State v.

Taylor, 478 So.2d 294, 195 (Fla. 1986) (Barkett, J. specially con-

curring). Thus it is accurate to represent that the majority opinion in

Jackson is sustained by a bare four to three vote of the Supreme

Court of Florida.

the statutory limits of the sentence imposed for a

particular offense. We conclude that a modification in

the sentencing guidelines procedure, which changes

how a probation violation should be counted in deter-

mining a presumptive sentence, is merely a pro-

cedural change, not requiring the application oft the

o Pe a doctrine. In Dobbert v. Florida, 423

U.S. (1977), the United States Supreme Court

upheld the imposition of a death sentence under a

procedure adopted after the defendant committed

the crime, reasoning that the procedure by which the

penalty was bein energy = not the penalty

itself, was c . We reject Jackson's contention

that Weaver v. Graham 450 U.S. 24 (1981), should

control in these circumstances.

Id. at 564 (emphasis supplied). The Florida Supreme

Court has applied this ruling to all amendments to the

sentencing guidelines and reversed the lower courts for

using the guidelines which were in effect at the time the

offenses were committed. See JA 18-19; Colbert v. State,

490 So.2d 942 (Fla. 1986); Wilkerson v. State, 494 So.2d

210 (FL. 1986)

Justice Ehrlich’s Jackson dissent succinctly explains

the flaw in the majority's reliance on Dobbdert v. Florida,

supra:

The majority relies on Dobbert . . . for the principle

that ocean in the procedure by which a penalty is

implemented does not change the “quantum of

punishment.” Just as the statutory change in gain

time in Weaver altered the “quantum of punishment,”

.. . 80 too, changes in the sentencing guidelines

which result in lengthier presumptive sentences

alter the “quantum of punishment.”

I fail to see the difference between a change in gain

time provisions which results in a lengthier time in

prison for an offender in Weaver, and a ciuinge in

sentencing guidelines which potentially lengthens

a pa

the time in prison for an offender found guilty of a

ap Caey Goeapenaes Wiese 99 eae ore

vincing reasons for departure exist. majority's

Es canadien tie al idelines merely

sentencing with a ve

eetence from which he scald deviate at bas — oe

discretion. The irement of clear and convincing

reasons for departure raises the right to be sentenced

stantial right, a right which te enforceable on appeal

,a which is ona

should the a liate tribunal determine there were

ny clear and convincing reasons to justify

departure.

Id. at 1057-58 (emphasis supplied).2'

Agair ‘ve issue here is not whether a defendant could

be sentenced under guidelines procedures for an offense

committed before the effective date of guidelines sentenc-

ing, nor is this a question of a procedural change in

21 A commentator on Florida sentencing law has criticized the

majority's opinion in State v. Jackson, supra, and lauded the dissent-

ing opinion of Jus.ce L»rlich:

Several [F' »rida} courts have held that in sentencing a defend-

ant, the guidelines whech were in effect at the time of the offense

is to be use”. as oppesed toa which has not taken effect

until after sue) ‘ime. However, in State v. Jackson, the Supreme

Ceurt of Florida held that since guideline changes are “pro-

cedural,” the ez t facto doctrine need not appiy. Con-

ewe Ye guidelines are amended subsequent to a

's having committed an offense, he will be sentenced

under the new ones notwithstanding the fact that he may be

receiving a The dissent in Jackson apt!y points

out the ‘tay majority decision.” (footnotes omitted)

(emphasis added)

L. Davidson, Florida Criminal Sentencing Law, 21 (1986). (footnotes

omitted; emphasis supplied).

2 Such a situation, were it involved here, might be more analogous

to that faced in Dobbert. That issue will never arise in Florida,

however, since the original guidelines were made optional for defend-

ants whose offenses occurred before the guidelines became effective.

See n.3, supra. Thus, the applicability of Dobbert to a guideline

sentence for a pre-guideline offense need not be addressed here.

guidelines. Florida did not change its procedures. It

increased the exposure of the length of sentence to be

imposed, as intended. The method by which the pre-

sumptive sentence is calculated remains the same. The

guidelines amendment sounds more like Weaver.

In Weaver, the defendant pled guilty to second degree

murder. The crime occurred on January 31, 1976. He was

sentenced to fifteen years in prison. The Florida statute,

Section 944.27(1), Fla. Stat. (1975) at that time provided a

formula for deducting gain-time credits from sentences.

According to the formula, the authorities “shall grant”

five, ten, and fifteen days per month off the prisoner's first

and second, third and fourth, and fifth and all following

years respectively. In 1978, the Florida Legislature

repealed Section 944.27(1), Fla. Stat. (1975) and enacted a

new formula for monthly gain-time deductions. The new

statute said the authorities “shall grant” three, six, and

nine days for the same corresponding in-prison years. Mr.

Weaver sought habeas corpus relief claiming that the new

statute which altered the method of prisoner gain-time

computation which was enacted subsequent to the crime

for which the prisoner was incarcerated affected him det-

rimentally and was therefore an ex post facto law. The

Florida Supreme Court in Weaver v. Wainwright, 376

So.2d 855 (Fla. 1979) summarily denied the petition on

the authority of a companion case, Harris v. Wainwright,

376 So.2d 855, 856 (Fla. 1979). The Court granted cer-

tiorari and reversed.

It held the 1979 Florida statute repealing the earlier

1975 statute and reducing the amount of “gain-time” for

good conduct deducted from a prisoner's sentence vio-

lated the ex post facto clause when applied to a prisoner

whose crime was committed before the new statute's

enactment. “By definition this reduction in gain-time

| pra ,

accumulation lengthens the period that someone in Peti-

tioner’s position must spend in prison.” 450 U.S. at 33.

The test for measuring penal legislation against the ex

post facto provision ensures “that legislative Acts give fair

warning of their effect and permit individuals to rely on

their meaning until explicitly changed” and “restricts gov-

ernmental power by restraining arbitrary and potentially

vindictive legislation.” Jd. at 29. Only “two critical ele-

ments must be present for a criminal or penal law to be ex

post facto: it must be retrospective, that is, it must apply

to events occurring before its enactment, and it must

disadvantage the offender affected by it.” /d. at 29 (citing

Lindsey v. Washington, 301 U.S. at 401, and Calder v.

Bull, 3 U.S. at 390).

The Court held that “a law need not impair a ‘vested

right’ to violate the ex post facto prohibition,” id. at 29,

explaining:

The presence or absence of an affirmative, enforcea-

ble t is not relevant, however, to the ex post facto

prohibition, which forbids the i imposition of punish-

ment more severe than the nt assigned by

law when the act to be occurred. Critical to

relief under the Ex Post Facto Clause is not an indi-

= dn pte to ess punishment, but the lack » Lars ir

mental restraint when the

— increases none puniahment beyond what was pre-

scribed when the crime was consumated. Thus, even

if a statute merely alters penal provisions accorded

by the grace of the legislature, it violates the Clause if

it is both retrospective and more onerous than the

law in effect on the date of the offense.

Id. at 30-31 (emphasis supplied). At the same time the

Court cautioned that although “no ex post facto violation

occurs if the change effected is merely procedural, and

does ‘not increase the punishment. . .’,” “{a]lteration of a

substantial right, . . . is not merely procedural, even if

the statute takes a seemingly procedural form.” /d. at 29

n.12. Instead, the actual effect of the change, rather than

its label, is the focus of ex post facto law.

In Weaver the Florida statutory change which man-

dated that prisoners receive fewer days of good time

lowered each prisoner's expectation of early release. Even

though a prisoner might be released just as early by

qualifying for extra days of good time, the Court did not

countenance such speculation. /d. at 34-35. The proda-

iility of early release was reduced; that sufficed to violate

the Ex Post Facto clause when applied retroactively. As

the Court explained, “the new provision constricts the

inmate's opportunity to earn early release, and thereby

makes more onerous the punishment for crimes com-

mitted before its enactment. This result runs afoul of the

Thus, the Clause has also been applied to some procedural

changes. See, e.g., Thompson v. Utah, 170 U.S. 343 (1898) (state law

reducing number of jurors from twelve to eight); Kring v. Missourn,

supra, (state law specifying that conviction for lesser included

offense is no longer deemed an acquittal of greater offense); ('nited

States v. Williams, 475 F.2d 355 (D.C. Cir. 1973) (a provision of the

D.C. Code which placed burden of affirmatively establishing an

insanity defense by a preponderance of the evidence upon the defend-

ant); United States v. Henson, 486 F.2d 1292 (D.C. Cir. 1973) (en

banc) (federal law eliminating discretion of trial judge to exclude

prior convictions to impeach credibility of witnesses).

Even assuming this amendment to the sentencing guidelines could

be properly characterized as “procedural,” the retroactive application

of this amendment to the guidelines remains a violation of the Ex Post

Facto Clause. Although a change might be called procedural, it wil!

still run afoul of the ex post facto prohibition if it deprives the

defendant of a substantive personal right. Aring v. Missouri, 107

U.S. at 232; Beazell v. Ohio, 269 U.S. at 171. The right secured by

Florida’s guidelines is substantial and a retroactive derogation of that

night has substantive effect.

prohibition against ex post facto laws.” Jd. at 35-36 (foot-

note omitted).24

As the principle of Lindsey persuaded the majority to

grant relief in Weaver, so it should here. There, a change

from a discretionary maximum sentence to a mandatory

sentence of the same length would change “expectations”

for the worse; under the earlier law each prisoner had

some positive expectation of receiving less than the max-

imum sentence, but under the later law he has no such

expectation. 301 U.S. at 401. Even though he might have

received the maximum sentence under the earlier Wash-

ington law, the change in expectation was clearly to his

disadvantage, and thus was ex post facto. Weaver v.

Graham, 450 U.S. at 32 n.17. (citing Lindsey v. Wash-

ington, supra).

The inquiry is not whether the sentence received is

within the maximum statutory limits set for the offense at

the time the crime was committed, but whether “the later

standard [of punishment] is more onerous than the ear-

24 Subsequent to the Court's decision in Weaver v. Graha..1, supra,

lower federal courts considering alterations in gain-time allocations

or calculations have found such changes to violate the Ex Post Facto

Clause if they are detrimental and applied retrospectively. The anal-

ogy is apt. See Knuck v. Wainwright, 759 F.2d 856 (11th Cir. 1985)

(retroactive rec: iculation of prisoner's gain time which reduced pris-

oner’s gain time credits violated Ex Post Facto Clause); Bebe v.

Pheips, 650 F.2d 774 (Sth Cir. 1981) (retroactive application of a

Louisiana statutory gain-time forfeiture provision by which prison

forfeited 180 days of gain time constituted an unconstitutional ez post

facto law); Piper v. Perrin, 560 F.Supp. 253, 255 (D.N.H. 1983)

(retroactive administrative change from lump sum to monthly award-

ing of gain time violated the Ex Post Facto Clause because it was

“more onerous” since it had the effect of adding nearly four months to

the sentence served).

lier.” Lindsey v. Washington, 301 U.S. at 400. The Weaver

Court explained the holdings in Lindsey and Dobbert:

Even when the sentence is at issue, a law may be

retrospective not only if it alters the length of the

sentence, but also if it changes the maximum sen-

tence from discretio to mandatory. Lindsey v.

Washington, 301 U.S. , 401 (1937). The critical

question, as Florida has often acknowledged, is

whether the new provision imposes greater punish-

ment after the commission of the offense, not merely

whether it increases a criminal sentence. Greene v.

State, 238 So.2d 296 (Fla. 1970); Higginbotham v.

State, 88 Fla. 26, 31, 101 So. 233, 235 (1924); Herberle

v. P.R.O. Liquidating Co., 186 So.2d 280, 282

(Fla. App. 1966). Thus in Dodbert v. Florida, 432 U.S.

282 (1977), we held there was no ex post facto viola-

tion because the challenged provisions changed the

role of jury and judge in sentencing but did not add to

the “quantum of punishment.” Id., at 293-294.

Id. at 32 n.17 (emphasis supplied). Hence, the test fash-

ioned in Weaver focuses on whether there is a retroactive

“detriment” or “disadvantge to the offender” not whether

the maximum possible sentence for the offense has been

retrospectively increased by the Legislature.*

Funuamental ex post facto jurisprudence requires a

court entertaining an ex post facto claim to focus on the

law in effect at the time of the offense for which a person is

being punished. See Calder v. Bull, 3 U.S. at 390; Weaver

25 Whether a retrospective state statute ameliorated or worsens

conditions imposed by its predecessor is a federal question. Weaver v.

Graham, 450 U.S. at 33; Lindsey v. Washington, 301 U.S. at 400. The

inquiry is directed to the challenged provision, and not to any special

circumstances that may mitigate its effect on the particular individ-

ual. Weaver v. Graham, 450 U.S. at 33; Dobbert v. Florida, 432 U.S.

at 300.

a cna

v. Graham, 450 U.S. at 30; Hayward v. United States

Parole Commission, 659 F.2d 857, 862 (8th Cir. 1981),

cert. denied, 456 U.S. 935 (1982). Since the prohibition

against ex post facto laws represents the vehicle by which

“the framers sought to assure that legislative acts give

fair warning of their effect and permit individuals to rely

on their meaning until explicitly changed,” Weaver v.

Graham, 450 U.S. at 28-29, the Clause can fulfill its

meaning and purpose only if a court looks to the law in

effect at the time the defendant committed the offense

now being punished. That law, if applied to Mr. Miller,

would have clearly resulted in substantially less prison

time.

C. Application Of The Ex Post Facto Clause To The Florida

Sentencing Guidelines

The Florida sentencing guidelines are not just rules of

court. Under the express terms of § 921.001(1), Fla. Stat.

(1983), the Florida Legislature declared: “The provision of

criminal penalties and of limitations upon the application

of such penalties is a matter of predominantly substantive

law and, as such, is a matter properly addressed by the

Legislature.” ‘emphasis supplied). See also Benyard v.

Wainwright, supra (proscribed punishment for criminal

offense constitutes substantive law). The intent of the

Legislature is express. The Florida sentencing guidelines

are substantive, not mere procedural rules, and have the

same force and effect as if they had been statutorily

enacted. Any amendments to the sentencing guidelines,

such as the one at bar, Ch. 84-328, Laws of Florida,

li ewise have that same force and effect. See § 921.001(4)

(b), Fla. Stat. (1983).

The Fla.R.Crim.P. 3.701 sentencing guidelines

provide the sentence scored under the guidelines is “pre-

sumptive.” Rule 3.701(b)(8). Any departure from the pre-

sumptive guideline sentence range is to be avoided. Rule

3.701(d)(11). To warrant an aggravation or mitigation of

the presumptive guidelines sentence there must be clear

and convincing reasons for departure stated in writing.

Rule 3.701(d)(11). The facts supporting these “clear and

convincing reasons” must be “credible and proven beyond

a reasonable doubt. The reasons themselves must be of

such weight as to produce in the mind of the judge a firm

belief or conviction, without hesitancy, that departure is

warranted.” State v. Mischler, 488 So.2d at 525. Accord

Scurry v. State, 489 So.2d 25, 28 (Fla. 1986). The Florida

Supreme Court has indicated that while Rule 3.701(d)(11)

“does not eliminate judicial discretion in sentencing, as

respondent argues, it does seek to discourage departure

from the guidelines.” Hendrix v. State, 475 So.2d 1218,

1220 (Fla. 1985).

The trial judge cannot under Rule 3.701(d)(11) deviate

at will from the presumptive guideline sentence. The

(d)(11) test is a tough test, based on articulated standards

which are seriously enforced by the Florida cuurts. The

requirement of written “clear and convincing reasons” for

departure which must be credible and proven beyond a

reasonable doubt, make the right to be sentenced within

the presumptive guideline range a substantive right

which is enforceable on appeal. See §921.001(5), Fla.

Stat. (1983).26

Any amendment to the guidelines which increases a

presumptive sentence, like the situation here, is undeni-

ably “disadvantageous” to a defendant because it imposes

26 Section 921.001(5), Fla. Stat. (1983) provides: “The failure of a

trial court te impose a sentence within the sentencing guidelines shall

be subject to appellate review pursuant to Chapter 924.”

a greater presumptive sentence. It also takes away the

requirement that the judge support what is then in effect

a departure sentence, with “clear and convincing rea-

sons.” Increasing the presumptive guidelines sentence

makes it much easier and more likely, therefore, to

impose a longer sentence, and harder and less likely that a

lesser sentence will be imposed since either upward or

downward departures must meet the exacting (d)(11)

standards. See Tanner v. State, 468 So.2d 505, 506 (Fla.

2d DCA 1985).

A defendant's substantive right to appeal a departure

would be abrogated if a trial court could depart from a

defendant's presumptive sentence through retrospective

application of more onerous guidelines than those in effect

when he committed the crime. A defendant's statutory

right to appeal would be rendered moot if enhanced

guidelines could retroactively be applied to him.27 Con-

versely, the State gains the right to appeal a sentence

imposed below the presumptive guidelines range which

was formerly within the presumptive guideline range.

The State would have the right to appeal this sentence on

the basis that it is a “downward departure.” See Section

924.07(9), Fla. Stat. (1983). This adverse affect on a

defendant's right to appeal coupled with the State's gain of

a right to appeal a lesser sentence are additional con-

sequences which are disadvantageous to the defendant.

27 The retroactive application of the guidelines has been used to

render a departure from a defendant's presumptive guideline sen-

tence as “harmless.” See Patterson v. State, 486 So.2d 74, 76 (Fla. 4th

DCA 1986), “The Appellant's ten-year sentence is not a departure,

—. So.2d — 12 FL. W.63 (Fla. Jan 5, 1987) sentence under the

present guidelines because the maximum sentence ... is fifteen

years”); Boston v. State, 481 So.2d 550 (Fl. 2d DCA 1986).

Under the guidelines, an offender may expect a certain

sentence range based on the guidelines, and has a legiti-

mate expectation of receiving a sentence within that

range unless clear and convincing reasons exist to permit

the judge to depart. The offender has the right to have

those clear and convincing reasons stated in writing.

Thus, the average offender who commits a crime under

circumstances where no clear and convincing reasons

exist for departure, as is the case here,** has an expecta-

tion of being sentenced within the range provided by the

sentencing guidelines. Absent clear and convincing rea-

sons, proven beyond a reasonable doubt, it is impermissi-

ble for the trial judge to depart from the guidelines, in

effect guaranteeing the offender committing an “average”

crime a sentence within the guideline range. There is thus

a substantial right to receive a sentence within that

range. Any alteration in the guidelines which permits a

lengthier sentence alters a substantive and substantial

right to his disadvantage.

Rule 3.701(d)(11) has been meticulously enforced by

both the Florida Supreme Court and the district courts of

appeal. The Courts’ strict application of the rigorous

“clear and convincing reasons test” has resulted in the

disapproval of in numerous cases numerous factors relied

on by trial judges to depart from the defendant's pre-

sumptive guideline sentence.29 The requirements of the

guidelines are not mere procedural wrinkles. Such treat-

28 The judge in this case specifically rejected any departure from

the guideline sentence and hence found no reasons to depart. JA 10.

2?In Appendix B, we have set out by way of example only, a

nonexhaustive list of more than sixty different reasons that have been

held by the Florida courts to be invalid or insufficient to justify

departures from the guideline sentence. App. 25a-29a.

ment by the Florida courts plainly indicates that the

presumptive guideline sentence under Florida law

embodies a substantive right.

Both prongs of the Weaver test are met. First, there is

no question the amended statute was retrospective. This

deprives Mr. Miller of fair notice. Second, the con-

sequences had a disadvantageous effect by boosting Mr.

Miller’s presumptive sentence. Just as the statutory

changes in gain time in Weaver v. Graham altered the

“quantum of punishment,” 450 U.S. at 33, so too the

enhancements in the sentencing guidelines result in a

lengthier presumptive guidelines sentence which alters

the “quantum of punishment.” The obvious applicability

of Weaver to changes increasing presumptive guidelines

sentences has not escaped notice of Florida judges, *° even

after the Florida Supreme Court's contrary opinion in

State v. Jackson, supra.*"

3° Three sitting Florida Supreme Court justices agree the change

is unconstitutionally ex post facto. See State v. Jackson, 478 So.2d at

1057-58 (Ehrlich, J., dissenting). Also all but one Florida appellate

court, consisting of judges who interpret guidelines cases on a daily

basis, held thai retroactive application of guideline changes was

prohibited by the Ex Post Facto Clause. Prior to the Jackson decision,

Florida’s First, Second, Fourth and Fifth District Courts of Appeal

were in agreement that application of the amended sentencing

guidelines which increased the presumptive guideline sentence for a

defendant violated the Ex Post Facto Clause. The Fourth District

Court of Appeal in the instant case vacated Petitioner's sentence on

the authority of Weaver v. Graham, supra. JA 16-17; See also Moore

v. State, 469 So.2d 947 (Fla. 5th DCA 1985); Walker v. State, 458

So.2d 396 (Fla. Ist DCA 1984); Hopper v. State, 465 So.2d 1296 (Fla.

2d DCA 1985).

31 Several Florida appellate judges expressed extreme discomfort

with the idea that a disadvantageous guidelines amendment may be

retrospectively applied. Chief Judge Schwartz of the Third District

The change in the presumptive guideline sentence

clearly changed expectations for the worse; under the law

at the time of his offense, Mr. Miller was guaranteed a

sentence within a presumptive guideline range less than

that imposed upon him. No doubt, the change in expecta-

tion is clearly to his disadvantage. As noted in Weaver, the

Court “has previously recognized that a prisoner's eligi-

bility for reduced imprisonment is a significant factor

entering into both the defendant's decision to plea bargain

and the judge's calculation of the sentence to be imposed.”

450 U.S. at 32. A penal statute mav be retrospective even

if it alters punitive conditions outside the sentence. See Jn

re Medley, supra. However, Mr. Miller's presumptive

guideline sentence is the sentence or the major compo-

nent of the sentence. It is a greater component of a

defendant's sentence than the gain time or parole changes

the Court has already held subject to the Ex Post Facto

Clause.

Court of Appeal filed the following dissent in Van Horn v. State, 485

So.2d 1380 (Fla. 3d DCA), affd, So.2d __., 11 F_L.W. 623

(Fla. Dec. 4, 1986):

I cannot find that a = in the guidelines rules which directly

results in more than doubiing the time the defendant must serve

in prison is a mere change in procedure which, consistent with

the United States Constitution, may be retroactive . applied.

I feel myself required in conscience to conclude that the length of

a prison sentence which is not subject to parole and which is

determined by the applicable guidelines is, in the most basic

sense, a substantive matter which, under the ex post facto

clause, may not be increased by an amendment adopted after the

crime.

485 So.2d 1381-83 (footnotes omitted; emphasis added). See also

Wilkerson v. State, 480 So.2d 213, 215-216 (Fla. Ist DCA 1985)

(Barfield, J. concurring); Brown v. State, 487 So.2d 392, 394 (Fla. Ist

DCA 1986) (Zehmer, J., concurring and dissenting).

In analogous areas many state and federal courts have

ruled that a disadvantageous retroactive change in the

penalty imposed runs afoul of ex post facto even though

the maximum statutory penalty for the offense remains

unchanged. For example, in Shepard v. Taylor, 556 F.2d

648 (2d Cir. 1977) the defendant sentenced to prison under

the Federal Youth Corrections Act, 18 U.S.C. Sec. 5010

was subsequently released on parole. After Shepard's

original conviction, Congress substantially revised parole

determination criteria for youthful offenders. The court

found an ex post facto violation because the “amendments

operated retroactively to Shepard’s serious detriment.”

Id. at 654. The court explained that: “This result follows

even if the maximum statutory penalty for the crime

remains unchanged.” /d. (citing Lindsey v. Washington,

supra). Accord Marshall v. Garrison, 659 F.2d 440 (4th

Cir. 1981); United States v. Countryman, 758 F.2d 574

(11th Cir. 1985) (failure to consider defendant for sentenc-

ing under Federal Youth Corrections Act for offense com-

mitted prior to repeal date was ex post facto violation),

United States v. Romero, 596 F.Supp. 446 (D.N.M. 1984)

(same).

In Foster v. Barbour, 462 F.Supp. 582 (W.D.N.C. 1978),

a state court decision (State v. Niccum, 293 N.C. 276, 238

S.E.2d 141 (1977)), was applied retroactively to bar the

defendant from being sentenced under that state's

youthful offender act. The District Court found sentenc-

ing under the act would be “clearly more advantageous to

petitioner than the standard life sentence.” /d. at 588. The

Court's reasoning is persuasive:

The ex post facto clause and its due process analogue

protect against legislative and ju acts which

make more burdensome the punishment for a crime

after its commission.” . . . Nor is the effect of Niccum

merely procedural. Dobbert, supra, at 293, 97 S.Ct.

2290. As noted above, the effect of Niccum was

clearly unfavorable since it removed the most favor-

able sentencing option available to the trial court.

Id. at 588-89 (emphasis supplied; citations omitted).

The Supreme Court of Indiana in Warner v. State, 265

Ind. 262, 354 N.E. 2d 178 (1976) discussed the ex post

facto impact of an amendment tothe Indiana sentencing

code after the offense which (Wcluded the defendant

from petitioning for treatment under the state's Criminal

Sexual Deviancy Act. The court noted as a preliminary

matter that “the State correctly does not argue that the

right to petition is a matter of mere procedure.” /d. at 182.

In reasoning applicable to Mr. Miller's situation, that

court said:

Clearly, the statute here does not simply make a

change in “housekeeping” rules. Appellant has lost

the night to be considered for rehabilitative treat-

ment, rather than imprisonment, on the rape convic-

tion. That possibility of receiving an alternative form

of punishment was a substantial personal right

Although there is no right to the benefit the Legis-

lature granted in the C.5.D. statute, there is a right

to be considered for that benefit in accordance with

the statutory procedure. And, although the ultimate

decision is extremely discretionary, Ind. Code

§ 35-11-3.1-17, still the Legislature may not with-

draw a benefit which provided a form of punishment

considered lesser or more desirable, if it was avail-

able at the time of the offense.

Id. at 184. Likewise, retroactive application of a statute

that authorized six additional months in jail as a condition

of probation was found to be ex post facto “even though the

punishment received was within the statute's outer lim-

its.” People v. Moon, 125 Mich. App. 780, 337 N. W.2d 293,

296 (1983). See also People v. Wells, 138 Mich. App. 450,

360 N.W.2d 219 (1984) (removing possibility of probation

violates ex post facto).32 In finding the retroactive applica-

tion of more rigorous statutory parole standards would

result in an ex post facto violation, the California Supreme

Court cited the Court's decisions in Weaver v. Graham,

supra, and Lindsey v. Washington, supra, and framed

the issue as follows:

The critical issue before us thus becomes not whether

a Sang in the actual date of release has been

effi , but whether the standards by which defend-

ant’s date of release is to be determined have been

altered to his detriment.

In re Stanworth, 33 Cal. 3d 176, 187 Cal. Rptr. 783, 786

(1982) (emphasis supplied).

The Florida Legislature in enacting the instant revision

to the sentencing guidelines, Ch. 84-328, Laws of Florida,

pursuant to Section 921.001(4)(b), Fla. Stat. (1983) specif-

ically intended to alter the situation of the accused to his

disadvantage. The Florida Supreme Court said so

explicitly: the purpose and effect of the change was to

“increase({ | rates and length of incarceration for sexual

offenders.” 451 So.2d at 824 (opinion adopting amend-

ments). A disadvantageous effect was not only ‘he effect

but the goal of the instant amendment. The argument

that this amendment to the guidelines represents “merely

a procedural change” is untenable. It wasn’t even

%2 A number of courts have held that imposition of even modest

additional fines for crimes committed prior to the effective date of the

amendment violates the ex post facto clause. See People v. Clarke, 111

A.D. 2d 11, 489 N. ¥.S.2d. 1(A.D. 1 Dept. 1985); Wright v. State, 677

S.W.2d 425, 425 (Mo. App. 1984) (A $26.00 fee assessed retroactively

under state's Crime Victim Compensation Act represents “a substan-

tive additional punishment by judgment. It may not be applied ex

post facto to crimes committed prior to its effective date.”)

intended to be so. The legislature's intent is relevant to

the ex post facto inquiry.

Such intent was a focus in L/nited States v. Williams,

475 F.2d 355 (D.C. Cir. 1973). The court of appeals found

retroactive application of an amendment to the District of

Columbia’s code which placed the burden of establishing

the insanity defense on the defense by a preponderance of

the evidence violated the Ex Post Facto Clause. Judge J

Skelly Wright stated:

“e

Certainly the court's charge, “‘in its relation to the

offence, or its consequences, alter{e | the situation of

the accused to his disadvantage. '" Thompson v

Utah, 170 U.S. 343, 351, 18 S.Ct. 620, 623, 42 L.Ed

1061 ee quoting United States v. Halil, 2 Wash

C.C, Moreover, Congress, in enacting Section

207(6), rt ~- intended ¢ ‘o alter the situation of

the accused to his disadvantage. Congress was con-

cerned that existing law “. . . permitt/ed] dangerous

criminals, particularly sychopaths, to win acquit-

tals of serious criminal charges on grounds of insanity

by raising a mere reasonable doubt as to their sanity

..” H.R. Rep. No. 91-907, 91st Cong., Ist Sess.,

(1970),

Id. at 357 (footnote omitted; emphasis supplied). Judge

Wright further explained the effect of this congressional

intent

In view of the express intent of Congress and the

obvious effect of the statute, the Government’ argu-

ment that § 207(6) provides for a mere procedural

change which, applied retroactively, does not signifi-

cantly alter the situation to appellant's disadvantage

may be dismissed as pure advocacy. Compare Kring

v. Missouri, supra, note 2, and Thompson v. Utah,

170 U.S. 343, 18 S.Ct. 620, 42 L. Ed. 1061 (1898) with

Beazell v. Ohio, 269 U.S. 167, 465.Ct. 68, 70 L.Ed

216 (1925).

Id. at 357 n.4.

Applying the Court's tests, the retroactive application

of the changed guidelines statute to Mr. Miller has sub-

jected him to “greater punishment,” Calder v. Bull, 3

U.S. at 380; “additional punishment,” Jn re Medley, 134

U.S. at 171; made more onerous the “standard of punish-

ment,” or “measure of punishment” Lindsey v. Wash-

ington, 301 U.S. at 401-402" or the “quantum of

punishment attached to the crime,” Dobdbdert v. Florida,

432 U.S. at 293; and imposed a “greater or more severe

punishment than was prescribed by the law at the time of

the. . . offense,” Rooney v. North Dakota, 196 U.S. 319,

325 (1905). This new provision undeniably “altered the

situation to petitioner's disadvantage” and made “more

onerous the punishment for crimes committed before its

enactment.” Weaver v. Graham, 450 U.S. at 36. It is ex

post facto.

D. Summary

Under Florida law, the imposition of a sentence within

the presumptive guidelines range represents a substan-

33 Justice Stone in Lindsey, writing for an unanimous court, stated

that an increase in the possible penalty regardless of the length of the

sentence actually imposed is ex post facto, “since the measure of

punishment prescribed by the later statute is more severe than that of

the earlier.” /d. at 401. The retroactive increase in Mr. Miller's pre-

sumptive guidelines »«ntence literally resulted in a more severe

“measure of punish ~ The mathematical values used in tallying

the Florida sentencing guidelines scoresheet makes this proposition

self-evident. The twenty-six points added to Mr. Miller's guidelines

scoresheet under “primary offense” through the use of the amended

statute results in an increase in the recommended range to 5 % - 7

years of incarceration. JA 12. Simple arithmetic demonstrates that

Mr. Miller has been subjectd to a more severe “measure of punish-

ment.” Measured by this yardstick, Mr. Miller's ex post facto claim

has been established with mathematical precision.

tial substantive right that is also enforceable on appeal

The retroactive amendment to the sentencing guidelines

which increased Mr. Miller's presumptive guidelines sen-

tence by definition and intent lengthens the period some-

one in Mr. Miller's position must spend in prison. The

detriment or disadvantageous effect upon him is man-

ifest. The retroactive application of this statutory amend-

ment to the sentencing guidelines make more onerous the

punishment for crimes committed before its enactment

This substantive substantial right is that of the accused

to receive a sentence within the presumptive guidelines

sentence range. What is or is not a procedural change

amounting to an ex post facto law depends on its effect

upon the accused, not on its label. The Florida sentencing

guidelines law vests Mr. Miller with substantial rights

which are nullified by the retroactive application of this

amendment to the sentencing guidelines. The retrospec-

tive revision of Mr. Miller's right is ex post facto

CONCLI SION

1 to be sentenced uncer tne f lorida

n effect on the date of his offense.

nt of the Supreme Court of Florida

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APPENDIX

APPENDIX A

STATUTORY AND RULE PROVISIONS

Florida Statutes

921.001 Sentencing Commission.—

(1) The provision of criminal penalties and of limitations

upon the application of such penalties is a matter of predomi-

nantly substantive law and, as such, is a matter properly

addressed by the Legislature. The Legislature, in the exercise of

its authority to establish sentencing criteria and to provide for the

imposition of criminal penalties, has determined that it is in the

best interest of the state to develop, implement, and revise a

uniform sentencing policy in cooperation with the Supreme

Court. In furtherance of this cooperative effort, there is created a

Sentencing Commission which shall be responsible for the ini-

tial development of a statewide system of sentencing guidelines.

After final development of a sentencing guidelines system by the

Supreme Court, the commission shall evaluate these guidelines

periodically and recommend such changes on a continuing basis

as are necessary to ensure certainty of punishment as well as

fairness to offenders and to citizens of the state.

(3) Following the initial development of statewide sentenc-

ing guidelines by the court, the commission shall meet annually

or at the call of the chairman to review sentencing practices and

recommend modifications to the guidelines. In establishing or

modifying the sentencing guidelines, the commission shall take

into consideration current sentencing and release practices and

correctional resources, including the capacities of local and state

correctional facilities, in addition to other relevant factors. For

this purpose, the commission is authorized to collect and evalu-

ate data on sentencing practices in the state from each of the

judicial circuits.

(4)(a) Upon recommendation of a plan by the commission,

the Supreme Court shall develop by September |, 1983, state-

wide sentencing guidelines to provide tnal court judges with

factors to consider and utilize in determining the presumptively

appropriate sentences in criminal cases. The statewide sentenc-

ing guidelines shal! be implemented by October |, 1983, unless

the Legislature affirmatively delays the implementation of such

guidelines prior to October 1, 1983. The guidelines shall be

applied to all felonies, except capital felonies, committed on or

after October | , 1983, and to all felonies, except capital felonies

and life felonies, committed prior to October |, 1983, for which

sentencing occurs after such date when the defendant affir-

matively selects to be sentenced pursuant to the provisions of this

act

(b) The commission shall, no later than 45 days before the

convening of the Legislature in regular session each year, make a

recommendation to the members of the Supreme Court, the

President of the Senate, and the Speaker of the House of Repre-

sentatives on the need for changes in the guidelines. Upon

receipt of such recommendation, the Supreme Court may within

60 days revise the statewide sentencing guidelines to conform

them with all or part of the c ssion recommendation. How-

ever, such revision shall become effective only upon the subse-

quent adoption by the Legislature of legislation implementing

the guidelines as then revised.

(5S) Sentences imposed by trial court judges must be in all

cases within any relevant minimum and maximum sentence

limitations provided by statute and must conform to all other

Statutory provisions. failure of a trial court to impose a

sentence within the sentencing guidelines shall be subject to

appellate review pursuant to chapter 924.

(6) The sentencing guidelines shall provide that any sen-

tences ae outside the range recommended by the

guidelines

explained in writing by the trial court judge.

CHAPTER 84-328

Committee Substitute for Committee Substitute

for Senate Bill No. 775

An act relating to sentencing; providing legislative adoption and

implementation of revisions to sentencing guidelines pro-

mulgated by the Florida Supreme Court in accordance with

s. 921.001, FS.; amending s. 921.001, F.S.; specifying

deadlines for submission of certain documents; providing an

effective date

WHEREAS. section 921.001, Florida Statutes, authonzed the

development of a uniform sentencing policy in the circuit courts, and

WHEREAS. the Florida Supreme Court developed sentencing

guidelines on September 8, 1983 for implementation on October |.

1983, following recommendations of the Sentencing Guidelines

Commission created for that purpose, and

WHEREAS, section 921.001, Florida Statutes, required subse

quent legislative adoption and implementation of any changes to the

guidelines. anc

WHEREAS, on May 8, 1984, the Flonda Supreme Court pro

posed revisions to the guide'ines recommended by the Sentencing

Guidelines Commission on May 4, 1984, NOW, THEREFORE.

Be It Enacted by the Legislature of the State of Florida

Section 1. Rule 3.701 and Rule 3.988, Flonda Rules of Cnmuinal

Procedure, as revised by the Florida Supreme Court on May 8, 1984

are hereby adopted and implemented in accordance with s. 921.001!

Flonda Statutes

Section 2. Subsections (4) and (7) of section 921.001, Flonda

Statutes, are amended to read

921.001 Sentencing Commission

(4)(a) Upon recommendation of a plan by the commission, the

Supreme Court shall develop by September |, 1985, statewide sen

tencing guidelines to provide tnal court judges with factors to con

sider and utilize in determining the presumptively appropriate

es |

sentences in crmina! casc. The statewide sentencing guidelines shall

be implemented by October |, 1983, unless the Legislature affir-

‘atively delays the umplementation of such guidelines prior to

October 1, 1983. The guidelines shall be applied to all felonies,

except capital felonies, committed on or after October | , 1983. and to

to October |, 1983, for which senten-ing occurs after such date when

the defendant affirmatively selects to be sentenced pursuant to the

provisions of this act.

(b) The commission shall, no later than October | of 45 deys

betore the com vente of tne fegistetire Hi Fegtitar sessten call ycur

make a recommendation to the members of the Supreme Court. the

President of the Senate, and the Speaker of the House of Represen-

tatives on the need for changes in the guidelines. Upon receipt of such

recommendation, the Supreme Court may within 60 days revise the

statewide sentencing guidelines to conform them with all or part of the

commission recommendation. However, such revision shall become

effective only upon the subsequent adoption by the Legislature of

se atetetion iensfomention the guidsiinss os then vovieed

(7) The Sentencing Commission and the office of the State Courts

Admunistrator shall conduct ongoing research on the impact of sen-

tencing guidelines adopted by the commission on sentencing prac-

uces, the use of umpnsonment and alternatives to impnsonment, and

plea bargaining. The commission, with the aid of the office of the

State Courts Administrator, the department, and the Parole and Proba-

tion Commission, shall! estimate the impact of any proposed sentenc-

ing guidelines on future rates of incarceration and levels of pnson

population. Such estimates shal! be based in part on histoncal data of

sentencing practices which have been accumulated by the office of the

State Courts Administrator and on department records reflecting

average time served for offenses covered by the proposed guidelines.

Projections of impact shall be reviewed by the commussion and made

available to other appropnate agencies of state government, including

the Legislature by December lS of cach year.

Section 3. This act shall take effect July |, 1984 or upon becming a

| \

Approved by the Governor lune 24. 1984

Filed in Office Secretary of State June 25, 1954

RULES OF CRIMINAL PROCEDURE

Rule 3.701. Sentencing Guidelines

a. This rule is to be used in conjunction with forms 3.988(a)-(1)

b. Statement of Purpose

The purpose of sentencing guidelines 1s to establish a uniform set of

standards to guide the sentencing judge in the sentence decision-

making process. The guidelines represent a synthesis of current sen-

Sentencing guidelines are intended to eliminate unwarranted vanation

in the sentencing process by reducing the subjectivity in interpreting

specific offense- and offender-related criteria ani in defining their

relative importance in the sentencing decision.

The sentencing guidelines embody the following principles.

1. Sentencing should be neutral with respect to race, gender, and

social and economic status.

2. The primary purpose of sentencing is to punish the offender.

Rehabilitation and other traditional considerations continue to be

desired goals of the criminal justice system but must assume a

subordinate role.

3. The penalty imposed should be commensurate with the sever-

ity of the convicted offense and the circumstances surrounding the

offense.

4. The severity of the sanction should increase with the length

and nature of the offender's criminal history.

5. The sentence imposed by the sentencing judge should reflect

the length of time to be served, shortened only by the application of

6. While the sentencing guidelines are designed to aid the judge

in the sentencing decision and are not intended to usurp judicial

discretion, departures from the presumptive sentences established in

the guidelines shall be articulated in wnting and made only for clear

and convincing reasons.

| \

7. Because the capacities of state and local correctional facilities

are finite, use of incarcerative sanctions should be limited to those

persons convicted of more serous offenses or those who have longer

cnminal histones. To ensure such usage of finite resources. sanctions

used in sentencing convicted felons should be the least restrictive

necessary to achieve the purposes of the sentence

c. Offense Categones

Offenses have been grouped into nine (9) offense categories

encompassing the following statutes

Category |: Murder, manslaughter: Chapter 782 (except sub

section 782.04(1)(a)) and subsection

316.1931(2)

Category 2: Sexual offenses: Chapters 794 and 800 and sec

tion 826.04

“ategory 3: Robbery: Section 812.13

Category 4: Violent personal crimes: Chapters 784 and 856

and section 843.0!

Category 5: Burglary: Chapter 810 and subsection 806. | 3(3)

Category 6: Thefts, forgery, fraud: Chapters 322, 409, 443.

$09, $12 (except section 812.13), 815, 817, 831

and 832

Category 7: Drugs: Chapter 895

Category 8: Weapons: chapter 790

Category 9: All other felony offenses

d. General Rules and Definitions

1. One guideline scoresheet shall be prepared for each defendant

covering all offenses pending before the court for sent rcing. The

state attorney's office will prepare the scoresheets and present them to

defense counsel for review as to accuracy in all cases unless the judge

directs otherwise. The sentencing judge shall approve all scoresheets.

2. “Conviction” means a determination of guilt resulting from

plea or trial, regardless of whether adjudication was withheld or

whether imposition of sentence was suspended.

3 Primary offense’ 1s defined as the most serious offense at

conviction In the case of multiple offenses, the primary offense 1s

determined on the basis of the following:

a) The offense with the highest statutory in the order

of life felony, first felony punishable by life, first-degree

second-degree, and felomes, and

b) In the event of two (2) or more offenses of the same

degree. by the lowest numerical offense category.

4 Additional offenses at conviction: All other offenses for which

the offender is convicted and which are pending before the court shall

be scored as additional offenses based upon their degree and the

number of counts of each.

5. a) “Prior record” refers to any past criminal conduct on the

part of the offender, resulting in conviction, disposed of prior to the

commission of the instant offense. Pnor record includes all pnor

Flonda, federal, out-of-state, military, and foreign convictions.

1) Entnes in cnminal histones which show no disposition,

disposition unknown, arrest only, or other nonconviction dis-

position shall not be scored.

2) When scoring federal, foreign, military, or out-of-state

convictions, assign the score for the analogous or parallel! Flor-

ida statute

3) When unable to determine whether an offense at convic-

1on 1s a felony or misdemeanor, the offense should be sc ured as a

misdemeanor Where the degree of the felony is ambiguous or

impossible to determine, score the offense as a third-degree

felony.

4) Prior record shall include criminal traffic offenses, which

shall be scored as misdemeanors.

5) Convictions which do not constitute violations of a paral-

lel or analogous state criminal statute shal! not be scored.

b) Adult record: An offender's prior record shall not be scored if

the offender has maintained a conviction-free record for a penod of

ten (10) consecutive years from the most recent date of release from

confinement, supervision or sanction, whichever is later, to the date of

the instant offense.

a |

c) Juvenile record: All prior juvenile dispositions which are the

equivalent of convictions as defined in section d(2), occurring within

three (3) years of the current conviction and which would have been

crmunal if committed by an adult, shal! be included in pnor record

6. Legal status at time of offense is defined as follows: Offenders

on parole, probation, or community control; in custody serving a

sentence, escapees, fugitives who have fled to avoid prosecution or

who have failed to appear for a judicial proceeding or who have

violated conditions of a supersedeas bond; and offenders in pretrial

intervention or diversion programs.

7. Victim injury shall not be scored if not a factor of an offense at

conviction.

8. Guidelines ranges: The presumptive sentences provided in the

guideline grids are assumed to be appropriate for the composite score

of the offender. However, a sentence range is provided in order to

permit some discretion without the requirement of a written explana-

tion for departing from the presumptive sentence.

9. Mandatory sentences: For those offenses having a mandatory

penalty, a scoresheet should be completed and the guideline sentence

calculated. If the recommended sentence is less than the mandatory

penalty, the mandatory sentence takes precedence. If the guideline

sentence exceeds the mandatory sentence, the guideline sentence

should be imposed.

10. Sentences exceeding statutory maximums: If the composite

score for a defendant charged with a single offense indicates a

guideline sentence that exceeds the maximum sentence provided by

statute for that offense, the statutory maximum sentence should be

imposed.

11. Departures from the guideline sentence: Departures from the

presumptive sentence should be avoided unless there are clear and

CONViNciNg reasons to warrant aggravating or mitigating the sentence

Any sentence outside of the guidelines must be accompanied by a

written statement delineating the reasons for the departure. Reasons

for deviating from the guidelines shal! not include factors relating to

10a

either instant offense or pnor arrests for which convictions have not

been obtained.

12. Sentencing for separate offenses: A sentence must be

imposed for each offense. However, the total sentence cannot exceed

the total guideline sentence unless a written reason is given.

13 Community control, a form of intensive supervised custody

in the community involving restnction of the freedom of the offender.

1s sanction which the court may impose upon a finding that probation

is an unsuitable disposition. When community control 1s imposed, it

shall not exceed the term provided by general law

Adopted Sept. 8, 1983 (____ So. 2d ___)

lla

Rule 3.988. Sentencing Guidelines

These forms are to be used in conjunction with Rule 3.701.

Category 2: Sexual offenses: Chapters 794 and 800 and section

826.04 [other forms omitted]

L Primary offense at conneuon Posts

Namber of Counts

1 = as ae

Life 28 2 6s 305

: Let 180 76 24 sz

ong 132 158 172 15

Pv) 1% Tae 174

12a

THE FLORIDA BAR: AMENDMENT TO RULES OF CRIMINAL

PROCEDURE (3.701, 3.988—SENTENCING GUIDELINES)

No. 65216.

Supreme Court of Florida.

May 8, 1984.

PER CURIAM.

Acting under the provisions of section 921.001(4)(b), Florida

Statutes( 1983), the Sentencing Guidelines Commission has presented

to this Court recommendations for changes in sentencing guidelines

which require modification of criminal rules of procedure 3.701 and

3.988. We have reviewed the recommendations and approve the

changes.* As with our original adoption of sentencing guidelines, /n

re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d

848 (Fla. 1983), the Committee Notes adopted herein are part of these

rules.

It is so ordered.

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

EHRLICH and SHAW, J.J., concur.

ADKINS, J., dissents.

RULE 3.701. SENTENCING GUIDELINES

a. This rule is to be used in conjunction with forms 3.988(a)-(1).

t. Statement of Purpose

The purpose of sentencing guidelines is to establish a uniform set of

standards to guide the sentencing judge in the sentence dec’ sion-

tencing theory and historic sentencing practices throughout the state.

Sentencing guidelines are intended to eliminate unwarranted variation

in the sentencing process by reducing the subjectivity in interpreting

specific offense-and offender-related criteria and in defining their

relative importance in the sentencing decision.

The sentencing guidelines embody the following principles:

1. Sentencing should be neutral with respect to race, gender,

and social and economic status.

l3a

2. The primary purpose of sentencing is to punish the

offender. Rehabilitation and other traditione! considera-

tions continue to be desired goals of the criminal justice

system but must assume a subordinate role.

3. The penalty imposed should be commensurate with the

severity of the convicted offense and the circumstances

surrounding the offense.

4. The severity of the sanction should increase with the

length and nature of the offerer’s criminal history.

5. The sentence mposed by the sentencing judge should

reflect the length of time to be served, shortened only by

the application of gain time.

6. While the sentencing guidelines are designed to aid the

judge in the sentencing decision and are not intended to

usurp judicial discretion, departures from the pre-

sumptive sentences established in the guidelines shall be

articulated in writing and made only for clear and con-

vincing reasons.

7. Because the capacities of state and local correctional

facilities are finite, use of incarcerative sanctions should

be limited to those persons convicted of more serious

offenses or those who have longer criminal histories. To

ensure such usage of finite resources, sanctions used in

sentencing convicted felons should be the least restrictive

necessary to achieve the purposes of the sentence.

c. Offense Categories

Offenses have been grouped into nine (9) offense categories

encompassing the following statutes:

Category |: Murder, manslaughter: Chapter 782 (except sub-

section 782.04(1)(a)) and subsection

316. 1931(2)

Category 2: Sexual offenses: Chapters 794 and 800 and sec-

tion 826.04

Category 3: Robbery: Section 812.13

Category 4: Violent personal crimes: Chapters 784 and 836

and section 843.01

l4a

Category 5: Burglary: Chapter 810 and subsection 806. 13(3)

Category 6: Thefts, forgery, fraud: rs 322, 409, 443,

509, 812 (except section 812.13), 815, 817, 831,

and 832

Category 7: Drugs: Chapter 893

Category 8: Weapons: chapter 790

Category 9: All other felony offenses

d. General Rules and Definitions

One guideline scoresheet shall be prepared for each

defendant covering all offenses pending before the court

for sentencing. The state attorney's office will prepare the

scoresheets and present them to defense counsel for

review as to accuracy in all cases unless the judge directs

otherwise. The sentencing judge shall approve all score-

“Conviction” means a determination of guilt resulting

from plea or trial, regardless of whether adjudication was

withheld or whether imposition of sentence was sus-

pended.

“Primary offense— +s defined as the most serous offense

at eenvietion in the ease of mittitpte offenses: the prt

mary offense +5 determined on the basts of the folowing:

a) Fhe offense with the highest statutory degree; tn the

order of life felony, first degree felony pucishable by

life, first degree; seeond degree; and third degree fe+

cate oteted

b) In the event of bwe (2) oF more offenses of the same

degree; ty the lowest numeral offense category

“Pri offense”’ is defined as the most serious offense at

conviction. case of mu the pri

1S in manner:

a)A idelines scoresheet shall be scor-

at conviction as “primary at

conviction” with the other offenses at conviction scored as

“additional offenses at conviction.”

1Sa

b) The guidelines scoresheet which recommends the most

severe sentence ran be the scoresheet to be utilized

Additional offenses at conviction: All other offenses for

which the offender is convicted and which are pending

before the court shall be scored as additional offenses based

upon their degree and the number of counts of each.

a) “Prior record”’ refers to any past criminal conduct on the

part of the offender, resulting in conviction, disposed of

prior to the commission of the +stent pri offense. Prior

record includes all prior Florida, , Out-of-state, mili-

tary, and foreign convictions.

1) Entries in criminal histories which show no disposition,

disposition unknown, arrest only, or other nonconviction

disposition shall not be scored.

2) When scoring federal, foreign, military, or out-of-state

convictions, assign the score for the analogous or paralle!

Florida statute.

3) When unable to determine whether an offense at convic-

tion is a felony or misdemeanor, the offense should be

scored as a misdemeanor. Where the degree of the felony is

ambiguous or | ible to determine, score the offense as

a third-degree sm

4) Prior record shall include criminal traffic iffenses, which

shall be scored as misdemeanors.

5) Convictions which do not constitute violations of a

parallel or analogous state criminal statute shall not be

scored.

b) Adult record: An offender's prior record shall not be

scored if the offender has maintained a conviction-free

record for a period of ten (10) consecutive years from the

most recent date of release from confinement, supervision

or sanction, whichever is later, to the date of the instant

offense.

c) Juvenile record: All prior juvenile dispositions which are

the equivalent of convictions as defined in section d(2),

occurring within three (3) years of the eurrent eenvietion

10.

16a

commission of the instant offense and which would have

been criminal if committed by an adult, shall be included in

prior record.

Legal status at time of offense is defined as follows:

Offenders on parole, probation, or control; in

custody serving a sentence, escapes who have fied

to avoid prosecution or who have to for a

criminal judicial ing or who have violated condi-

tions of a bond; and offenders in pretrial inter-

vention or diversion programs.

Vietin injury shall be seored f # #6 an element of any

HERES at CHR HE

Departures from the guideline sentence: from

the semtenee guideline should be

unless there are clear convincing reasons to

iia

not include factors relating to pnor arrests without convic-

tion. Reasons for deviating from the guidelines shall not

include factors relating to the instant offenses for which

convictions have not been obtained

Sentencing for separate offenses: A sentence must be

imposed for each offense. However, the total sentence

-annot exceed the total guideline sentences unless a wmit-

ten reason is given

Community control, a form of intensive supervised

custody in the community involving restriction of the

freedom of the offender. is sanction which the court may

impose upon a finding that probation is an unsuitable

disposition. When community control is imposed, it shal!

not exceed the term provided by general law.

Sentences imposed after revocation of prbation fom

Commo; must be wm accordance wat Oe idelines.

ines range) or may

(gu

be increased to the next hig cell (guidelines range)

without requiring a reason for

18a

Rule 3.701. Sentencing Guidelines

a= This rule is to be used in conjunction with forms 3.988(a)-(i).

b. Statement of Purpose

The purpose of sentencing guidelines is to establish a uniform set of

standards to guide the sentencing judge in the sentence decision-

The guidelines represent a synthesis of current sentencing theory and

historic sentencing practices throughout the state. Sentencing

guidelines are intended to eliminate unwarranted vanation in the

sentencing process by reducing the subjectivity in interpreting spe-

cific offense- and offender-related critena and in defining their relative

1. Sentencing should be neutral with respect to race, gender,

and social and economuc status.

2. The primary purpose of sentencing is to punish the

offender. cnabilinton and other traditional considerations

3. The penale; should be commensurate with the

severity of the convicted offense and the circumstances sur

rounding the offense

7. Because the capacities of state and local correctional

facilities are finite, use of imcarcerative sanctions should be

limited to those persons convicted of more serious offenses or

19a

those who have longer criminal histones. To ensure such usage

of finite resources, sanctions used in sentencing convicted felons

should be the least restrictive necessary to achieve the purposes

of the sentence.

c. Offense Categories

Offenses have been grouped into nine (9) offense categories

encompassing the following statutes

Category |: Murder, manslaughter: Chapter 782 (except sub-

section 782.04(1)(a)) and subsection

316. 1931(2)

Category 2: Sexual offenses: Chapters 794 and 800 and sec-

non 826.04

Category 3: Robbery: Section 812.13

Category 4: Violent personal crimes: Chapters 784 and 836

and section 843.0!

Category 5: Burglary: Chapter 810 and subsection 806. | 33)

Category 6: Thefts, forgery, fraud: Chapters 322, 409, 443,

509, 812 (except section 812.13), 815, 817, 831,

and $32

Category 7: Drugs: Chapter 893

Category 8: Weapons: Chapter 790

Category 9: All other felony offenses

d General Rules and Definitions

1. One guideline scoresheet shal! be prepared for each

defendant covering all offenses pending Hefore the court for

sentencing. The state attorney's office will prepare the score-

sheets and present them to defense counse! for review as to

accuracy in all cases unless the judge directs otherwise. The

sentencing judge shal! approve all scoresheets

2. “Conviction” means a determination of guilt resulting

from plea or trial, regardless of whether adjudication was with-

held or whether imposition of sentence was suspended.

3. “Primary offense” is defined as the most serious offense

at conviction. In the case of multiple offenses, the primary

offense is determined on the basis of the following

20a

a) The offense with the _— statutory degree, in the

order of life felony, first-de lony punishable by life, first-

degree, second-degree, third-degree felomes, and

b) In the event of two (2) or more offenses of the same

degree, by the lowest numerical offense category.

4. Additional offenses at conviction: All other offenses for

which the offender is convicted and which are pending before the

court shall be scored as additional offenses based upon their

degree and the number of counts of each.

5. a) “Prior record” refers to any past criminal conduct on

the part of the offender, resulting in conviction, disposed of pnor

to the commission of the instant offense. Prior record includes all

prior Florida, federal, out-of-state, military, and foreign convic-

tions.

1) Entries in criminal histories which show no disposi-

tion, disposition unknown, arrest only, or other nonconviction

disposition shall not be scored.

2) When scoring federal, foreign, military, or out-of-state

convictions, assign the score for the analogous or paralle!

Florida statute.

3) When unable to determine whether an offense at con-

viction is a felony or misdemeanor, the offense should be

scored as a misdemeanor. Where the degree of the felony is

ambiguous or impossible to determine, score the offense as a

third-degree felony.

4) Prior record shall include criminal traffic offenses,

which shall be scored as misdemeanors.

5) Convictions which do not constitute violations of a

parallel or analogous state criminal statute shall not be scored.

b) Adult record: An offender's pnor record shall not be

scored if the offender has maintained a conviction-free record for

a period of ten (10) consecutive years from the most recent date

release from confinement, supervision or sanction, whichever

is later, to the date of the instant offense.

c) Juvenile record: All prior juvenile dispositions which are

the equivalent of convictions as defined in section d(2), occur-

ring within three (3) years of the current conviction and which

2la

would have been criminal if committed by an adult, shall be

included in prior record.

6. Legal status at time of offense is defined as follows

Offenders on parole, probation, or community control; in

custody serving a sentence; escapees, fugitives who have fled to

avoid prosecution or who have failed to appear for a judicial

—r, or who have violated conditions of a supersedeas

; and offenders in pretrial intervention or diversion pro-

grams.

7. Victim injury shall not be scored if not a factor of an

offense at conviction.

8. Guidelines ranges: The presumptive sentences provided

in the guideline grids are assumed to be appropriate for the

composite score of the offender. However, a sentence range is

provided in order to permit some discretion without the require-

ment of a written explanation for departing from the presumptive

sentence.

9. Mandatory sentences: For those offenses having a man-

datory penalty, a scoresheet should be completed and the

guideline sentence calculated. If the recommended sentence is

less than the mandatory , the mandatory sentence takes

precedence. If the guideline sentence exceeds the mandatory

sentence, the guideline sentence should be imposed.

10. Sentences exceeding statutory maximums: If the com-

posite score for a defendant charged with a single offense indi-

cates a guideline sentence that exceeds the maximum sentence

provided by statute for that offense, the statutory maximum

sentence should be imposed.

11. Departures from the guideline sentence: Departures

from the presumptive sentence should be avoided unless there

are Clear and convincing reasons to warrant aggravating or miti-

gating the sentence. Any sentence outside of the guidelines must

accompanied by a written statement delineating the reasons

for the departure. Reasons for deviating from the guidelines shal!

not include factors relating to either instant offense or prior

arrests for which convictions have not been obtained.

12. Sentencing for separate offenses: A sentence must be

imposed for each offense. However, the total sentence cannot

exceed the total guideline sentence unless a written reason is

given.

22a

13. Community control, a form of intensive supervised

custody in the community involving restriction of the freedom of

the . iS sanction which the court may impose upon a

finding that probation is an unsuitable disposition. When com-

munity control is imposed, it shall not exceed the term provided

by general law

14. Sentences imposed after revocation of probation or com-

munity control must be in accordance with the guidelines. The

sentence imposed after revocation of probation may be included

within the original cell (guidelines range) or may be increased to

the next higher cell (guidelines range) without requiring a reason

for departure.

Added Sept. 8, 1983 (439 So.2d 848). Amended May 8, 1984 (45!

So.2d 824).

23a

Rule 3.988 (b) Category 2: Sexual offenses

i. Prleery offense ot coer ietica

Qumber ef Counts Above ¢

zs 26

siie«

sé

Ii. A@@itional effenses at coer ictice

Tit. Pier record

rv. Legel etetes ot time of offence

Gader se restrictions °

Gader legal cometre iat Je

¥. Wietie tejery (peyeical)

Bo contact e

Coetect bet se penetration 20

Penetration or slight iniery 46

Geeth or sericus ixjury ss

24a

Rule 3.988 Category 2: Sexual Offenses

"Fo ints "Te CGumended Mange )

124-169 | 3 : on]

) , :

rrr aa =the

208-229 iA-4 12) |

1230-250 4 1s a) |

251-278 (s 1 — }

279-312 (7-9)

eT ss

1935-422 413-17)

423-486 4

25a

APPENDIX B

EXEMPLARY FLORIDA GUIDELINE CASES

The following factors have been held insufficient to authorize a

departure from the presumptive guideline sentence:

1. Factors already taken into account in calculating the

guidelines scoresheet, State v. Mischler, 488 So.2d 523 (Fla

1986);

2. areason which is prohibited by the guidelines themselves,

State v. Mischler, supra;

3. am inherent component of the crime in question, State v

Mischler, supra;

4. use of alias, Higgs v. State, 455 So.2d 451 (Fla. Sth DCA

1984);

5. sporadic employment record, Higgs v. State, supra.

6. failure to appear for a sentencing hearing, Harms v. State,

454 So.2d 689 (Fla. Ist DCA 1984):

7. harsher sentence would deter others, Williams v. State, 462

So.2d 23 (Fla. 4th DCA 1984);

8. “criminal activity” which did not result in conviction, Scur-

ry v. State, 489 So.2d 25 (FL. 1986);

9. failure to make unordered restitution to victim, Carney v

State, 458 So.2d 13 (Fla. Ist DCA 1984);

10. a white collar crime, State v. Mischler, supra,

11. an employee betrayed trust to employer, State v. Misc/iler,

supra;

12. continuous course of bad conduct and violence, Frank v

State, 490 So.2d 190 (Fla. 2d DCA 1986):

13. defendant was found to be an habitual offender, pursuant to

section 775.084, Fla. Stat. (1984), Whitehead v. State,

So.2d —— 11 F.L.W. 553 (Fla. Oct. 30, 1986);

14. disregard for the law, Weir v. State, 490 So.2d 234 (Fla. Sth

DCA 1986);

26a

15. noevidence that the defendant “induced another” to com-

mit crime, Wyman v. State, 459 So.2d 1118 (Fla. Ist DCA

1984);

16. co-defendant received 15-year sentence, Thumas v. State,

461 So.2d 274 (Fla. Sth DCA 1985);

17. defendant's prior use of marijuana, Bowdoin v. State, 464

So.2d 596 (Fla. 4th DCA 1983);

18. speculation that defendant could have been convicted of

more counts, Lindsey v. State, 453 So.2d 485 (Fla. 2d DCA

1984);

19. lying under oath in claiming an alibi, Bowdoin v. State,

supra;

20. defendant's failure to cooperate with law enforcement

officers, Banzo v. State, 464 So.2d 620 (Fla. 2d DCA 1985);

21. lack of pretense of “moral or legal justification," Williams

v. State, 471 So.2d 630 (Fla. Ist DCA 1985);

22. other pending felonies, Young v. State, 455 So.2d 551 (Fla.

ist DCA 1984);

23. no evidence of premeditation since the jury convicted the

defendant of the lesser included offense of second degree

murder, Scurry v. State, supra; Scurry v. State, supra;

24. the trial court concluded that the defendant had lied or

committed perjury, Sloan v. State, 472 So.2d 488 (Fla. 2d DCA

1985);

25. uncorroborated hearsay evidence, contained in the pres-

entence investigation report, Scott v. State, 469 So.2d 865 (Fla.

Ist DCA 1985);

26. psychological trauma where it was not shown that the

victim sustained unusual or substantial psychological trauma,

Parson v. State, 491 So. 2d 1247 (Fla. 2d DCA 1986);

27. the defendant's co-perpetrator was a minor, Von Carter v.

State, 468 So.2d 276 (Fla. Ist DC 1985);

28. aco-defendant was sentenced to 5 years based on a negoti-

ated plea, Von Carter v. State, supra;

29. premeditation, Von Carter v. State, supra;

27a

30. prior record scored in guidelines, Hendrix v. State, 475

So.2d | (Fla. 1985);

31. defendant characterized as a ‘scofflaw,”’ Cummings v

State, 489 So.2d 121 (Fla. Ist DCA 1986);

32. defendant's failure to confess, Vance v. State, 475 So 2d

1362 (Fla. Sth DCA 1985):

33. defendant's drug problem, Vance v. State, supra;

34. the public perception of selling drugs in one county was

allegedly different than that in another, Santiago v. State, 478

So.2d 47 (Fla. 1985);

35. defendant's act “had a profound impact upon this small

community,’ Thompson v. State, 478 So.2d 462 (Fla. Ist DCA

1985);

36. due to the fact that the court had no control over gain time,

Thompson v. State, supra;

37. guidelines sentence would “denigrate” the police work,

Thompson v. State, supra;

38. a “crimebinge” which consisted only of alleged criminal

acts which were never proved, Thompson v. State, supra.

39. number of counts dismissed as part of plea agreement,

Cummings v. State, supra;

40. defendant engaged in prior criminal acts, McDowell v

State, 491 So.2d 594 (Fla. Sth DCA 1986);

41. the amount of money involved in a drug delivery, Dawkins

v. State, 479 So.2d 818 (Fla. 2d DCA 1981);

42. the severity of the crime in the case, Dawkins v. State,

supra;

43. defendant was a threat to society, Sabb v. State, 479 So.2d

845 (Fla. Ist DCA 1985);

44. defendant's chemical dependency, Young v. State, 480

So.2d 712 (Fla. Sth DCA 1986);

45. to break the defendant's chain of conduct, Montgomery v.

State, 489 So.2d 1225 (Fla. Sth DCA 1986);

28a

46. the rights of the state and of the people, Parker v. State,

481 So.2d 1560 (Fla. Sth DCA 1986);

47. defendant presented a ludicrous defense, Parker v. State,

supra;

48. youth of a rural county were unsophisticated and needed

protection from the defendant, Smith v. State, 482 So.2d 469

(Fla. Sth DCA 1986); |

49. economic hardship to victim, Hankey v. State, 485 So. 2d

827 (Fla. 1986);

50. “ongoing” violent criminal conduct, Hankey v. State,

supra;

51. committing offense in high crime area, Brown v. State, 487

So.2d 1158 (Fla. Sth DCA 1986);

52. victim’s family suffered in this case, Carter v. State, 485

So.2d 1292 (Fla. 4th DCA 1986);

53. killing in question was unnecessary, Carter v. State,

supra,

54. attempting to evade capture, Carter v. State, supra;

55. defendant had previously refused to undergo non-com-

pulsory psychological counseling for a _— defense, Martinez-

Diaz v. State, 484 So.2d 633 (Fla 2d DCA 1981);

56. lack of remorse, Weir v. State, supra;

57. recommendation of probation officer, Scurry v. State,

supra;

58. guidelines sentence was not sufficiently severe, Wilson v.

State, 490 So.2d 1360 (Fla. Sth DCA 1986);

59. defendant extremely violent, Frank v. State, 490 So.2d

190 (Fla. 2d DCA 1986);

60. defendant needed long term of supervision, McDowell v.

State, supra;

61. speculation about possible future crimes, Lindsey v. State,

supra;

62. defendant's prior arrests, Thrasher v. State, 477 So.2d

1083 (Fla. lst DCA 1985);

29a

63. fact guidelines are going to be amended in the future.

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

SOURCE

The above list was determined by a review of reported appellate

decisions concerning the application of Florida sentencing

guidelines. The report is not exhaustive, but merely exemplary

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.