# Petitioners Brief — Miller v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0969%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1987 - **Citation:** 482 U.S. 423 ## Text 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 fA tant | ’ , * , {, f \ Pul ) ') {. r) f OI N . \ West Palm B } 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? U 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 iv 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 Vv 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. ___. 2 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 3 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. 4 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). 5 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 6 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). 7 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 8 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. 9 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. 10 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- ll 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). © Laws of Florida, Ch. 84-328. | 12 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. 13 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 | 14 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). 15 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 16 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). 17 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. 19 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 20 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. 21 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 , 22 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 23 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. 24 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). 25 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 26 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- 27 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.” 28 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). 29 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. i, 30 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 31 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). 32 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 33 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, ne 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.”) 35 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. 37 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 at. specti li ' ~] lee ae : . ° | | ‘ HARI i PORAN } Ls { if A %.. ender! T? | *} ' a ’ @, "4 AVAiV iki iT / ia > AIG S. BARNAI . . : mef Assistant ful Lt nder ANTHONY CALVE : x Assistant Public Vefendcer rARY WAI Wt 7 Ass _ ant Publix LM Te rT ‘ / YT: \ + very Tne] a : ‘ : ‘ ’ : »A ’ yes } The, Re a\ \ ' ’ ati : yh ~ ’ : APPENDIX la 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 2a 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. 3a 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 | ta 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 | \ 5a Approved by the Governor lune 24. 1984 Filed in Office Secretary of State June 25, 1954 6a 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. | \ 7a 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. Sa 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 | 9a 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- making process. The guidelines represent a synthesis © current sen- 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 l. 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 13 14 ;= 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 a 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 el 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; a 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0969%3A5. Public record. Not legal advice.