Respondents Brief — Miller v. Florida

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QUESTION PRESENTED

WHETHER THE FLORIDA SENTENCING

GUIDELINES, WHEREIN THE

LEGISLATURE HAS AUTHORIZED

CONTINUED JUDICIAL DISCRE-

TION IN DEPARTING FROM THE

RECOMMENDED GUIDELINES RANGE

AND CONTINUING REVIEW AND

REVISION OF THE GUIDELINES,

ARE PROCEDURAL IN NATURE SO

THE APPLICATION OF AMENDED

GUIDELINES TO FELONY

OFFENDERS WHO COMMITTED

CRIMES PRIOR TO BUT WERE

SENTENCED AFTER THEIR

EFFECTIVE DATE IS NOT A

VIOLATION OF THE EX POST

FACTO CLAUSE?

TABLE OF CONTENTS

Page

Question Presented i

Table of Authorities iii-xvii

Opinions Below l

Jurisdiction l

Constitutional and Statutory

Provisions Involved 2

Statement of the Case 3-8

Summary of the Argument 9-13

Argument

THE FLORIDA SENTENCING GUIDE-

LINES, WHEREIN THE LEGISLATURE

HAS AUTHORIZED CONTINUED

JUDICIAL DISCRETION IN DEPART-

ING FROM THE RECOMMENDED

GUIDELINES RANGE AND CONTINUING

REVIEW AND REVISION OF THE

GUIDELINES, ARE PROCEDURAL

IN NATURE; THUS THE APPLICA-

TION OF AMENDED GUIDELINES

TO FELONY OFFENDERS WHO COMMITTED

CRIMES PRIOR TO BUT WERE

SENTENCED AFTER THEIR EFFECTIVE

DATE IS NOT A VIOLATION OF THE

EX POST FACTO CLAUSE. 14-69

Conclusion 70

iii

TABLE OF AUTHORITIES

Cases Page

Atwaters v. State,

495 So.2d 1219

(Fla. lst DCA 1986) 45

Bailey v. State,

485 So.2d 482

(Fla. 3rd DCA 1986) 43

Bass v. State,

496 So.2d 880

(Fla. 2nd DCA 1986) 42

Beazell v. Ohio,

269 U.S. 167 (1925) 32, 68

Brooks v. State,

487 So.2d 68

(Fla. lst DCA 1986) 46

Burke v. State,

456 So.2d 1245

(Fla. 5th DCA 1984) 42

Chatman v. Marquez,

754 F.2d 1531

(9th Cir.), cert.

denied, 106 S.Ct. 124

(1985) 63

Cortez v. State,

488 So.2d 163

(Fla. lst DCA 1986) 4/7

TABLE OF AUTHORITIES - CONTINUED

Cases Page

Cortez v. State,

497 So.2d 671

(Fla. 2nd DCA 1986) 43

Damiano v. Florida Parole

and Probation Commission,

785 F.2d 929

(llth Cir. 1986) 56

Davis v. State,

489 So.2d 754

(Fla. lst DCA 1986) 46

DeGroat v. State,

489 So.2d 1163

(Fla. 5th DCA 1986) 42

DiNapoli v. Northeast

Regional Parole Commission,

764 F.2d 143 (2nd Cir.),

cert. denied, U.S. ,

106 S.Ct. 568 (1985) 54

Dobbert v. Florida,

432 U.S. 282 (1977) ane Bee Ge

30, 32, 34,

35, 38, 48,

63, 67

Dufresne v. Baer,

744 F.2d 1543

(llth Cir. 1984),

cert. denied, U.S. ,

106 S.Ct. 61 (1985) 52, 53

TABLE OF AUTHORITIES - CONT*NUED

Cases Page

Fernandez v. State,

482 So.2d 541

(Fla. 3rd DCA 1986) 46

Foster v. Barbour,

462 F.Supp. 582

(W.D. N.C. 1978) 61

Fry v. State,

497 So.2d 964

(Fla. lst DCA 1986) 45

Furman v. Georgia,

408 J.S. 238 (1972) 34

Gitman v. State,

482 So.2d 36/7

(Fla. 4th DCA 1985) 47

Grant v. State,

12 FLW 236

(Fla. 4th DCA Jan. /7,

1987) 43

Green v. State,

491 So.2d 1279

(Fla. 2nd DCA 1976) 43

Hadley v. State,

488 So.2d 162

(Fla. lst DCA 1986) 43

Hankey v. State,

485 So.2d 827

(Fla. 1986) 4G

ases

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TABLE OF AUTHORITIES CONT LNUED

Cases Page

jonas v. Wainwright,

179 F.2d 15/76

(lith Cir L976 >¢

Ke VS V state,

lZ FLW 56

(Fla De < : ‘ s5C :

Lawson v State,

49/ So.Zd 288

(Fla. ist DCA lL9se ‘

Lerma v -tate,

49/7 So.ZzZd /3¢€

Fla. 1986) ei. ‘4

Lindsey v. Washington,

101 U.S. 397 (1936) 8

alilett v North Carolina.

i8i U.S 589 (1901 64

ai shail V VAarrison,

659 F.2d &6&6U

(4th Cir. 198] ;

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People v. Welis,

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hele

TABLE OF AUTHORITIES - CONTINUED

Cases Page

Portley v. Grossman,

444 U.S. 1311

(Rehnquist, Circuit

Justice, 1980) 49. 50

Pugh v. State,

12 FLW 138

(Fla. lst DCA,

Dec. 23, 1986) 45

Raimondo v. Belletire,

789 F.2d 492

(7th Cir. 1986) 63

Richards v. Crawford,

43/7 F.Supp. 453

(D. Conn. 1977) 6)

Rifai v. U.S. Parole

Commission,

586 F.2d 695

(9th Cir. 1978) 53. 54

Rousseau v. State,

496 So.2d 830

(Fla. lst DCA 1986) 4s

Shepard v. Taylor,

556 F.2d 648

(2nd Cir. 1977) 57. 58. 61

State v. Baker,

483 So.2d 3

(Fla. 1986) 44, 45

TABLE OF AUTHORITIES - CONTINUED

Cases Page

State v. Jackson,

478 So.2d 1054

(Fla. 1985) 8, 10, 29,

30, 32

State v. Pentatude,

12 FLW 29

(Fla. Jan. 5, 1987) 47

Steiner v. State,

469 So.2d 1/79

(Fla. 3rd DCA),

rev. denied,

479 So.2d 1181

(Fla. 1985) 44

Stewart v. State,

489 So.2d 1/76

(Fla. lst DCA 1986) 43

Swain v. State,

455 So.2d 533

(Fla. lst DCA 1984) 42

The Florida Bar: Amendment

to Rules of Criminal

Procedure (3./0l1,

3.988--Sentencing

Guidelines),

451 So.2d 824

(Fla. 1984)

TABLE OF AUTHORITIES - CONTINUED

Cases Page

The Florida Bar Re:

Rules of Criminal

Procedure

(Sentencing Guidelines,

3.701, 3.988),

482 So.2d 3l1l

(Fla. 1985) 25

Thompson v. Missouri,

171 U.S. 380 (1898) 32

United States v. Countryman,

758 F.2d 574

(llth Cir. 1985) 59

United States v. McCahill,

765 F.2d 849

(9th Cir. 1985) 67

United States v. Molt,

758 So.2d 1198

(7th Cir. 1985) 68

United States v. Romero,

596 F.Supp. 446

D.N.M. 1984) 59

U.S. Sentencing Commission

Guidelines Preliminary

Draft,

40 Cr.L. 3001 (1986) 27

xii

TABLE OF AUTHORITIES - CONTINUED

Cases

United States v. Williams,

475 F.2d 355

(D.C. Cir. 1973)

Van Horn v. State,

ll FLW 623

(Fla. Dec. 4, 1986)

Vanover v. State,

ll FLW 614

(Fla. Nov. 26, 1986)

Walker v. State,

496 So.2d 220

(Fla. 3rd DCA 1986)

Wallace v. Christensen,

802 F.2d 1539

(9th Cir. 1986)

(en banc)

Warner v. State,

354 N.E.2d 178

(Ind. 1976)

Weaver v. Graham,

450 U.S. 24 (1981)

Webster v. State,

12 FLW 107

(Fla. lst DCA,

Dec. 23, 1986)

Page

AiV

TABLE OF AUTHORITIES

CONTINUED

Statutes and Rules Page

Fla. R. Crim. P. 3./0Q]1 L5

Fla. R. Crim. P ; U1(b)

(1983) 19

Fla. R. Crim. P. 3./01(¢b) (6)

1983) )

Fla. R. Crim. P. 3./701(d)(3

(1983) and (1984) 6, 36

Fla. R. Crim. P. 701d) 16

Fla. R. Crim. P +. 701d) (3) (a

(1983) 16

Fla. R. Crim. P +. JULCd) CLI

(1983)

§ /94.011¢5 Fla Stat

(1983 ;

§ 810.021 Fla Stat

(1983

> 6S } I tat

§ ‘ _ r ; it

TABLE OF AUTHORITIES - CONTINUED

tatutes and Rules Page

§ 921.001(1), Fla. Stat

1983 L4

xvi

TABLE OF AUTHORITIES - CONTINUED

Other Page

Frankel and Orland,

Sentencing Commissions

and Guidelines,

73 Georgetown Law Journal

225, 231-232 (1984) 21, 27

Holton,

What is to be Done

with Sentencing

Guidelines?,

LXI Florida Bar Journal 19

(Feb. 1987) 65

Knapp, Johnson, Falvey and

Tomljanovich,

Minnesota Sentencing

Guidelines,

4 Law and Inequality

51, 56 (1986) 26

Martin,

Interests and Politics

in Sentencing Reform:

The Development of

Sentencing Guidelines

in Minnesota and

Pennsylvania,

29 Villanova Law Review

21, 26-27 (1983-1984) 20

xvii

TABLE OF AUTHORITIES- CONTINUED

Page

An Examination of

Issues in the Florida

Sentencing Guidelines,

8 Nova Law Journal (1984) 19

Sundberg, Plante and Palmer,

A Proposal for

Sentencing Reform in

Florida,

8 Florida State Univ.

Law Review 1 (1980) 2, 56

Symposium Issue:

Criminal Sentencing

in Transition,

68 Judicature (1984) 20

NO. 86-5344

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

JAMES ERNEST MILLER,

Petitioner,

STATE OF FLORIDA,

Respondent.

OPINIONS BELOW

The Respondent accepts the

Petitioner's citations.

JURISDICTION

The Respondent accepts the

Petitioner's statement.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Respondent accepts the

Petitioner's statement.

STATEMENT OF THE CASE

The Petitioner was charged by

an information filed in the Circuit

Court of the Seventeenth Judicial

Circuit, in and for Broward County,

Florida, with the felony offenses of

armed sexual battery, burglary with

an assault, and armed robbery

(JA 2-3). These crimes were allegedly

committed on April 25, 1984. A jury

convicted him of the following

offenses: (1) sexual battery using

slight force, a second degree felony,

punishable by up to fifteen years’

imr cisonment, § 794.011(5), Fla. Stat.

(1903); (2) burglary with an assault,

a felony punishable by life imprison-

ment, § 810.02(1), (2)(a), Fla. Stat.

(1983); amd (3) petit theft, a

misdemeanor, § 812.014(2)(c), Fla.

Stat. (1983).

The Petitioner came before the

court for sentencing on October 2,

1984. Because the crimes were

committed after October 1, 1983, the

effective date of Florida's sentencing

guidelines, § 921.001(4)(a), Fla.

Stat. (1983), there was no question

that the guidelines were applicable

to the Petitioner. However, the

guidelines had been amended effective

July 1, 1984, and at sentencing, the

question arose as to whether the

applicable guidelines were those in

effect at the time of the commission

of the crimes or the amended guide-

lines which were in effect at the

time of sentencing.

A guidelines scoresheet had been

under the 1983 guidelines burglary

would have been scored as the primary

offense because the amendments changed

the definition of the “primary”

offense from the highest statutory

degree of the crime to the offense

in the category with the severest

punishment (JA 8-9, compare, Fla. R.

Crim. P. 3.701(d)(3) (1983) and (1984),

Appendix A, 71). The prosecutor

further argued that if the court

decived to apply the 1983 guidelines,

the cowrt should depart upward from

the recommended sentence? and give

the Petitioner seven years (JA 9

The trial court ruled the 1984

guidelines were applicable because

Lhich would have placed the

Petitioner in the three and one-half

to four and one-half range under

burglary.

the statutory maximum pe

criminal offenses had not

changed. The court

new guidelines, and gave

Petitioner concurrent

sentences for the sexual

burglary counts (JA 10-11,

seven-year

‘

of time he

the amount

had recommended,

whether there sh

msider

stayed within

seveti-

bat

sentence

nalties for

been

the

year

tery and

prosecut I

dia 1 t

the same sentence is possible if clear

aid convincing reasons for departure

from the then applicable guidelines

are stated in writing.” (JA 16-17).

The State invoked the Florida

Supreme Court's discretionary juris-

diction to review the intermediate

appellate court's decision. The

state Supreme Court, relying on its

decision in State v. Jackson,

478 So.2d 1054 (Fla. 1985), quashed

the district court's decision and

held the use of the guidelines in

effect at the time of sentencing

was proper (JA 18-19).

This Court granted the

Petitioner's petition for certiorari

on November 17, 1986 (JA 20).

SUMMARY OF THE ARGUMENT

modifications. Offenders who

cormitted crimes prior to the guide-

lines’ effective date, October 1,

1983, were sentenced pursuant to the

guidelines only if they made an

affirmative election. All offenders

who committed crimes after October l,

1983, have been sentenced pursuant

to the guidelines in effect on their

sentencing date. In State v. Jackson,

478 So.2d 1054 (Fla. 1985), the

Florida Supreme Court held that

amendments to the sentencing guide-

lines are procedural so their applica-

tion to persons who are sentenced

after their effective date is not

violative of the ex post facto

doctrine.

The Florida Supreme Court cited

as controlling authority in Jackson

this Court's decision in Dobbert v.

Florida, 432 U.S. 282 (1977). In

Dobbert, the court held that procedural

changes in the law which are on the

whole, ameliorative, are not ex post

facto. The amendments to the guide-

lines fit within this framework

because trial judges retain juris-

diction to exceed the guidelines,

and many reasons given for departure

have been upheld on appeal. Weaver v.

Graham, 450 U.S. 24 (1981), involved

the entirely different issue of the

reduction of statutory gain time with-

out notice, which had been awarded

on a non-discretionary basis. Here,

the sentence remains discretionary

and the authorizing legislation

specifically notifies potential

offenders that the guidelines are

subject to modification.

In numerous federal appellate

decisions, it has been held that the

application of new and amended parole

guidelines to offenders who committed

crimes before their effective date

is not a violation of the ex post

facto clause. The reasoning employed

in these cases is equally applicable

to the present situation. In both

instances the parole decision/

sentencing determination is discre-

tionary and the legislation providing

for amendment of the guidelines

notifies offenders that the

recommended ranges are subject to

change.

Thus the Florida Supreme Court's

reliance on Dobbert v. Florida, supra,

was legally correct. The need for

the guidelines to remain flexible and

capable of modification likewise

presents a sound policy reason for

affirmance of the Florida Supreme

Court's decision. The application

of the amendments to the Petitioner

was not an ex post facto violat n.

ARGUMENT

THE FLORIDA SENTENCING

GUIDELINES, WHEREIN THE

LEGISLATURE HAS AUTHORIZED

CONTINUED JUDICIAL DIS-

CRETION IN DEPARTING FROM

THE RECOMMENDED GUIDELINES

RANGE AND CONTINUING

REVIEW AND REVISION OF

THE GUIDELINES, ARE PRO-

CEDURAL IN NATURE; THUS

THE APPLICATiON OF AMENDED

GUIDELINES TO FELONY

OFFENDERS WHO COMMITTED

CRIMES PRIOR TO BUT WERE

SENTENCED AFTER THEIR

EFFECTIVE DATE IS NOT

A VIOLATION OF THE EX POST

FACTO CLAUSE.

In 1983, the Florida legislature

established a commission which was

charged with developi-¢ a system of

sentencing guidelines. § 921.001(1),

Fla. Stat. (1983). The commission

made its recommendations to the

Supreme Court of Florida, which

adopted guidelines that became effec-

tive October 1, 1983. In re: Rules

of Criminal Procedure (Sentencing

Guidelines), “39 So.2d 848 (Fla. 19%3).

The guidelines are applicable to all

felonies except capital crimes

committed after their effective date.

As to all felonies committed prior

to October 1, 1983, but for which

sentencing occurred afterwards, the

detendants were given an opportunity

to affirmatively elect guidelines

sentencing. § 921.001(4)(a), Fla.

Stat. (1983).

The rules of criminal procedure

which pertain to sentencing guide-

lines, Fla. R. Crim. P. 3.701 and

3.988, set forth a series of nine

categories which classify felony

offenses by type. A point system

for scoring and a recommended

sentencing range are contained within

each category. The categories range

from the specific, e.g., criminal

homicide (category 1), and sexual

offenses (category 2), to the general;

category 9 is all other felony

offenses. A single scoresheet is

prepared for all offenses pending

for sentencing. The category

selected for scoring is determined

by the primary offense, which is the

most severe at conviction.

Fla. R. Crim. P. 3.701(d)(1-3). 7

Once a category has been

selected, the offender is scored

points based upon the primary

offense at conviction, any additional

offenses at conviction, his prior

criminal record, his legal status

at the time of the offense, and

victim injury. The points are

tallied to arrive at a recommended

sentencing range. If the trial judge

determines the offender should be

sentenced outside the range--either

above it up to the statutory maximum

penalty or below--the reasons for

departure must be set forth in

writing. Fla. R. Crim. P. 3.701(d)(11)

(1983); § 921.001(5) and (6) (1983).

A departure sentence may be appealed.

In the enabling legislation

which authorized the development of

sentencing guidelines, as well as the

rules of procedure establish > »g then,

there are three salient factors which

are material to the Petitioner's

ex post facto claim. First, offenders

whose crimes were committed prior tc

the guidelines’ October 1, 1983,

effective date were given the option

to elect guidelines sentencing.

Thereby, the legislature recognized

that since persons sentenced under

the guidelines were ineligible for

parole § 921.001(8), Fla. Stat.

(1983), in compliance with Weaver v.

Graham, 450 U.S. 24 (1981), an elec-

tion by defendants who committed

crimes when parole was still possible

was required. The Petitioner does

not fall within this group because

his crimes were committed in 1984.

second, the Florida sentencing

guidelines state clearly their purpose

is to guide, not eliminate, judicial

discretion in sentencing. The state-

ment of purpose which prefaces the

guidelines states: "The purpose of

designed

sentencing guidelines

miform

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ser,

sentencing

ing process

(1983

judge in

’

standards

the

re-evaluate the sentencing process

and replace indeterminate sentencing.

(See, generally, Symposium Issue:

Criminal Sentencing in Transition,

68 Judicature (1984)). The unifying

concern in the efforts to bring about

change was the belief that sentencing

reform based upon more explicit

standards would structure the discretion

of officials and reduce disparity.

Martin, Interests and Politics in

Sentencing Reform: The Development

of Sentencing Guidelines in Minnesota

and Pennsylvania, 29 Villanova Law

Review 21, 26-27 (1983-1984). In

response to criticism that guidelines

amount to "fixed" sentencing,

advocates have promised, "The guide-

lines criteria or rules are no more

designed to erase individual judgment

than are rules or criteria for awarding

damages or costs in particular cases.

The point is simply to have the

individual case decided on legal

grounds of general application.”

Frankel and Orland, Sentencing

Commissions and Guidelines, /3 George-

town Law Journal 225, 231-232 (1984).

Florida's former state Supreme

Court Chief Justice, a leading

proponent of guidelines, commented

in 1980:

Use of sentencing guide-

lines by trial judges would

be mandatory to the extent

that the sentencing norm

for a particular type of

defendant, convicted of

a particular offense,

would be consulted to

decide the sentence to

be imposed. Since the

purpose of guidelines,

however, is to lend some

structure to the sentencing

decision while retaining

judicial discretion the

trial judges may at times

impose sentences other

than those recommended by

4 the guidelines.

Sentencing guidelines are

not intended to address

all cases brought before

the bench. It is virtually

impossible to develop a

system of guidelines that

would take into account

the myriad aggravating

or mitigating factors that

could appropriately be

considered. Judicial

discretion is indispensable

for cases where the need

exists to sentence outside

of the recommended range.

Sundberg, Plante and Palmer, A

Proposal for Sentencing Reform in

Florida, 8 Florida State Univ. Law

Rev w, 1, ll, 17 (1980).

In light of the fact that the

guidelines are discretionary while

the maximum statutory penalties for

that the commission shall, no later

than October 1 of each year, make such

recommendations. § 921.001(4)(b),

Fla. Stat. (Supp. 1986). Any

recommended changes are submitted to

the Florida Supreme Court, and upon

its approval, become effective after

adoption by the legislature.

§ 921.001(4)(b), Fla. Stat. (1983).

Changes to the guidelines have

been adopted by the Florida Supreme

Court and approved by the legislature

twice, and a proposal for further

changes is pending in the Florida

Supreme Court at this time. The

first series of amendments, The

Florida Bar: Amendment to Rules of

Criminal Procedure (3.701, 3.988--

Sentencing Guidelines), 451 So.2d 824

(Fla. 1984), was approved by the

rho

legislature and became effective

1984. Ch. 84-328 § l,

—

-—

“<

—

Laws of Florida. It is these guide-

lines that were used at the Petitioner

October 2, 1984, sentencing. [In its

pinion adopting the 1984 amendments,

the Florida Supreme Court summarized

the changes and reasons therefor.

This summary is attached as Respondent

Appendix A.] A second set of guide-

lines amendments, The Florida Bar Ke

Rules of Criminal Procedure (Sentencing

Guidelines, 3./01, 3.988), 482 So.zd

311 (Fla. 1985), was approved by the

legislature and became effective

. ‘

. . '

- +)’ >

’

. As

nTe adaead r

y ‘ ‘ +

them to be subject to continuing

review and revision. For example,

in Minnesota, the sentencing guide-

lines have been modified seven times

for the purposes of incorporating new

crimes that the legislature creates,

clarifying language as cases arise

that the guidelines do not cover,

and increasing the recommended

sentences. Knapp, Johnson, Falvey

and Tomlijanovich, Minnesota Sentencing

Guidelines, 4 Law and Inequality

51, 56 (1986). Discussing Minnesota's

experience with the guidelines,

commentators have stated,

A signal virtue of the

commission device is that

it is designed to live

steadily with its subject,

to learn from experience,

to seek improvements, to

adapt to changing conditions

Through the commission

»7]

device the whole gamut

of sentencing practices,

in the context of the

entire criminal process,

has become the subject of

continuous, thoughtful,

coherent attention.

Frankel and Orland, Sentencing

Commissions and Guidelines,

73 Georgetown Law Journal 225 (1984).

In this regard, the proposed

federal sentencing guidelines which

are presently under consideration

likewise contemplate that they will

subject to periodic revision.

Sentencing Commission Guidelines

Preliminary Draft, 40 Cr.L. 3001 (1986).

The facts that there is general

agreement that guidelines should be

periodically revised and that the

Florida statute which created the

guidelines commission on 1t:

recommendation of changes to the guide-

lines therefore served as fair warn-

ing to individuals committing crimes

after October 1, 1983, that they would

be sentenced pursuant to the guide-

lines in effect on their sentencing

date.

Nevertheless, the Petitioner

contends the use of the 1984 amended

guidelines at his sentencing violated

the ex post facto clause of the United

States Constitution. He asserts that

because his crimes were committed on

April 25, 1984, prior to the July l,

1984, effective date of the amendments,

the original 1983 guidelines should

have been used to calculate his

recommended sentence on the day of

sentencing, October 2, 1984.

The State maintains the

Petitioner's claim is without merit.

The sentencing guidelines are

procedural rules designed to guide

trial courts’ sentencing discretion.

The guidelines operate only to provide

a framework for the exercise of

discretion, and as a whole, they are

ameliorative because they reduce

sentence disparity. Departures from

the recommended range are permitted,

provided that clear and convincing

reasons are articulated by the trial

judge in writing. The changes do not

deprive defendants, who are on notice

that amendments are likely to occu!

- } | , yh 7 7

any pre-existing iega: rignt not

mhor ly ‘11 . mr ; ~,

enhance the punishment imposed, wh

é i the statuto!1 naxi et

; ,

’ rhe rreé € the les af ‘

478 So.2d 1054, 1056 (Fla. 1985). the

Florida Supreme Court, relying on

Dobbert v. Florida, 432 U.S. 282

(1977), concluded that amendments to

the sentencing guidelines are

procedural and thus, their application

Co persons who are sentenced after

their effective date is not violative

of the ex post facto doctrine. Since

Jackson was decided, the court has

In recent

cr?

consistently applied

Opinions, the court has held that all

sentencing guidelines amendments are

procedural in nature so the guidelines

as most recently amended are to be

applied at the time of sentencing

without regard to the ex post facto

Jackson was the case relied on

by the state Supreme Court in its

decision in the instant case (JA 18-19

doctrine. Wilkerson v. State,

494 So.2d 210 (Fla. 1986); Van Horn v.

State, 11 FLW 623 (Fla. Dec. 4, 1986);

Patterson v. State, 12 FLW 63

(Fla. Jan. 5, 1987).”

The Florida Supreme Court's

rejection of the Petitioner's ex post

facto claim is in accord with the

precedent of this Court. in a number

of cases, this Court has held that

the ex post facto clause is not

applicable to procedural changes in

criminal laws which do not affect

substantial rights, even though they

might in some way operate to a person s

disadvantage. In Hopt v. People of

TT } re c7 12 - —_

Utah L10 U.S. 2 “~ (1564 . Lt was

4 . — .*

These cited cases--wiikerson,

Van Horn and Patterson--were decided

by a unanimous court.

>» +

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murder, the determination of whether

the sentence for that offense would be

death or life imprisonment was left to

the absolute discretion of the jury.

At the time he was tried, the issue

was decided based upon certain objec-

tive criteria (aggravati’« end mitiga-

ting circumstances), that were

subsequently promulgated by the

legislature. Moreover, the jury,

inecead of authoritatively deciding

the sentence as had previously been

the case, returned a recommendation

to the trial judge and the latter

actually imposed the sentence.

Dobbert appealed his death sentence,

contending it was a violation of the

ex post facto clause, particularly

since his jury had recommended life

imprisonment. This Court, after

pointing out that the ex post facto

clause " . Was intended to secure

substantial personal rights against

arbitrary and oppressive legislation

.citation omitted] and not to limit

the legislative control of remedies

and modes of procedure which do not

affect matters of substance

Id., 432 U.S. at 293. held the change

in the capital sentencing statute did

not result in an ex post facto change

in the law. The court reviewed the

changes and concluded they were

procedural and on the whole ameliora

tive, because they were designed t:

provide more safeguards to the

defendant, as required by Furman \v

Georgia, SUS U.S. 238 L9/2). Dobbert

statute reviewed in Dobbert, the

guidelines at issue here merely guide

and channel discretion. The amend-

ments are procedural refinements, the

need for which was expressed in the

initial legislation. § 921.001(3),

Fla. Stat. (1983). Under both the

original 1983 guidelines and the 1984

amendments, the trial judge retained

discretion to sentence the Petitioner

up to the statutory maximum penalty

for his offenses. The Petitioner can

only speculate that he may have re-

ceived a lesser sentence had he been

sentenced pursuant to the 1983 guide-

lines. The seven-year concurrent

sentences the Petitioner received

were within the recommended range as

calculated under the 1984 amendments

(JA 12).

————————————————

The 1984 amendments, inter alia

altered the method of deciding, in

the case of multiple offenses, which

one is the “primary” offense, which

in turn determines the appropriate

category for preparation of the guide-

lines scoresheet. Initially, the

primary offense was the one with the

highest statutory degree. Fla. R.

Crim. P. 3.701(d)(3)(a) (1983).

Pursuant to the 1984 amendments, the

primary offense became the one which,

when scored on the guidelines score-

sheet, results in the most severe

sentence range. Fla. R. Crim. P.

3.701(d)(3) (1984). The amendment

was made in order to avoid manipula-

tion among the categories.

(Respondent's Appendix A, 4 1).

Thus, using the 1984 amendments

3/7

resulted in the second degree felony,

sexual battery, being scored as the

primary offense rather than the felony

punishable by life, burglary with

an assault.

It is entirely possible, and

even likely, that had the trial judge

decided to apply the 1983 guidelines,

he would have granted the prosecutor's

request to “aggravate” the sentence

by departing and imposing seven

years (JA 9).?

The trial court simply

did not reach the departure issue

because once it ruled the 1984 guide-

lines were applicable, the recommended

sentence was seven years imprisonment.

Pat least one of the reasons

suggested by the State as a ground for

departure (R 22-23), have been upheld

as valid: hardship to the victim's

family. Moreira v. State, 12 FLW 192

(Fla. 3rd DCA Jan. 6, 1987).

Moreover, Dobbert requires that the

guidelines be viewed as a whole, and

not as to their effect on a particular

offender. The legislation was

remedial and therefore, not ex post

facto, because it was designed to

reduce arbitrary and capricious

sentencing by guiding discretion.

Weaver v. Graham, 450 U.S. 24

(1981), the case on which the

Petitioner chiefly relies, involved

an entirel; different issue: the

reduction of statutory gain time

which had the effect of extending

the inmate's date of release. The

statutory gain time at issue in

Weaver was non-discretionary and

awarded so long as the inmate did not

violate any rules or regulations while

incarcerated. Id., 450 U.S. at 35.

This Court determined the statutory

change attached legal consequences

to a crime committed before the law

took effect and therefore was ex post

facto because it changed the “quantum

of punishment" to the prisoner's

detriment.

In the instant case, the

Petitioner, like all other defendants

who committed felony offenses after

October 1, 1983, the guidelines’

original effective date, was on

notice that the guidelines would be

used in calculating his recommended

sentence, they were subject to amend-

ment, and the recommended range could

be exceeded up to the statutory

maximum penalties for the crimes he

committed, which remained unchanged.

The purpose of the ex post facto

clause is to ensure that legislative

acts give fair warning of their effect

and permit individuals to rely on

their meaning until explicitly changed.

Weaver at 450 U.S. 28-29. The

Petitioner had that fair warning.

The Petitioner cannot avoid the

fact that the guidelines are discre-

tionary and departures from the

recommended guidelines sentences are

permitted. See, e.g., the Committee

Note to Rule 3.701(d)1l1, at 451 So.2d

828: "Other factors, consistent and

not in conflict with the statement

of purpose, may be considered and

utilized by the sentencing judge.”

Therefore, the amendments did not

alter the quantum of punishment and

were not disadvantageous. In

Appendix B of his brief, the

neem

appellate de< Llsions which have dis-

ipproved certain reasons given by

trial judges. However, the Florida

Supreme Court has made it clear that

there are valid reasons which will

support departures, and the reviewing

court's function is to determine if

the trial court abused its discretion.

Lerma v. State, 497 So.2d /36

(Fla. 1986).

For example, the courts have

approved as valid grounds for

departure such varying reasons as:

(1) an highly extraordinary and

extreme incident of aggravated

battery, Vanover v. State, Ll FLW 614

(Fla. Nov. 26, 1986);

)

(2?) a defendant's record as a

juvenile which was not scored due to

its remoteness in time, Weems v. State,

469 So.2d 128 (Fla. 1985);

(3) premeditation, where not an

inherent component of the crime,

Lerma v. State, supra;

(4) a defendant's pattern of

committing new crimes shortly after

release from incarceration, Swain v.

State, 455 So.2d 533 (Fla. list DCA

1984); Bass v. State, 496 So.2d 880

(Fla. 2nd DCA 1986); White v. State,

481 So.2d 993 (Fla. 5th DCA 1986);

(5) an escalating course of

criminal conduct, Keys v. State,

12 FLW 56 (Fla. Dec. 24, 1986);

Pittman v. State, 492 So.2d 741

(Fla. lst DCA 1986); DeGroat v. State,

489 So.2d 1163 (Fla. 5th DCA 1986);

Burke v. State, 456 So.2d 1245

(Fla. 5th DCA 1984);

a |

(6) psychological trauma to the

victim (where not a component of the

crime), Green v. State, 491 So.2d 1279

(Fla. 2nd DCA 1976); Cortez v. State,

497 So.2d 671 (Fla. 2nd DCA 1986);

Grant v. State, 12 FLW 236 (Fla. 4th

DCA Jan. 7, 1987);

(7) victim particularly vulner-

able, Stewart v. State, 489 So.2d 176

(Fla. lst DCA 1986); Grant v. State,

supra; Hadley v. State, 488 So.2d 162

(Fla. lst DCA 1986);

(8) great risk to the safety of

others during the commission of the

crime, Webster v. State, 12 FLW 107

(Fla. lst DCA, Dec. 23, 1986);

Bailey v. State, 485 So.2d 482

(Fla. 3rd DCA 1986);

(9) severe trauma to the family

of the victim, Moreira v. State,

12 FLW 192 (Fla. 3rd DCA Jan. 6,

(10) an attempt by the defendant

to blame the victim for his acts

a lewd assault on a child), Peake v

State, 490 So.2d 1325 (Fla. lst DCA

1986) ;

(11) a breach of the trust placed

in the defendant by the victim,

Hankey v. State, 485 So.2d 827 (Fla.

1986); Steiner v. State, 469 So.2d 179

(Fla. 3rd DCA), rev. denied, 479 So.2d

1181 (Fla. 1985);

(12) a “crime binge,” i.e., a

series of crimes committed within a

short time period, Rousseau v. State,

496 So.2d 830 (Fla. lst DCA i986);

Mathis v. State, 11 FLW 2602 (Fla.

lst DCA Dec. 10, 1986);

(13) the victim was a uniformed

police officer, State v. Baker,

483 So.2d 423 (Fla. 1986); Williams v.

State, 492 So.2d 1171 (Fla. 5th DCA

1986) ;

(14) the defendant had an

additional conviction which was not

scored because it occurred after the

commission of the primary offense,

Pugh v. State, 12 FLW 138 (Fla. list

DCA, Dec. 23, 1986); Wright v. State,

491 So.2d 283 (Fla. 2nd DCA 1986);

(15) the defendant expressed

contempt for the judicial system,

Fry v. State, 497 So.2d 964

(Fla. lst DCA 1986);

(16) a large quantity of drugs,

greater than the minimal amount

necessary to commit a narcotics

offense, Atwaters v. State,

495 So.2d 1219 (Fla. lst DCA 1986);

Mullen v. State, 483 So.2d 754

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guidelines be used to guide, not

abrogate, judicial discretion (as

outlined earlier in this brief ante,

at pages 18-23), is indeed a reality.

Consequently, Weaver v. Graham, supra,

which involved a non-discretionary

entitlement as a matter of law, as

well as this Court's previous

decision in Lindsey v. Washington,

301 U.S. 39/7 (1936), wherein a

maximum potential sentence became

mandatory and was held to be ex post

facto, are inapplicable to the present

case. The Florida Supreme Court

correctly relied on Dobbert v.

Florida, supra.

Counsel for Petitioner have

cited the decision in Hayward v.

United States Parole Commission,

659 F.2d 857, 862 (8th Cir. 198]

cert. denied, 456 U.S. 935 198.

We are pleased counsel has recognized

the federal decisions involving the

application of parole guidelines are

an appropriate analogous area. Like

sentencing guidelines, the federal

parole guidelines have been

specifically designed to remove

arbitrariness and capriciousness

from the decision-making process.

Nine Circuit Courts of Appeal and one

Supreme Court Justice have held that

retrospective application of the

federal parole guidelines does not

ffend the ex post facto clause.

See, cases collected in Yamamoto

v. U.S. Parole Commission, 194 F.2d

1295, 1297 f£.n. 3 (8th Cir. 1950).

In Portley v. Grossman,

644 U.S. 1311 (Rehnquist, Circuit

Justice, 1980), it was stated that the

parole guidelines were not ex post

facto because they merely provide a

framework for the commission's

exercise of its statutory discretion;

thus, the defendant is not deprived

of a pre-existing right nor is the

punishment imposed enhanced.

In Yamamoto v. U.S. Parole

Commission, 794 F.2d 1295 (8th Cir.

1986), the court held the application

of the 1983 amended parole guidelines

to decide a prisoner's release date,

which resulted in a determination

that he should serve eighty-four

months rather than the forty to

fifty-two months that would have been

set under the 1979 guidelines in

effect at the time he committed his

crime, was not ex post facto. The

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which his parole release date would

be determined would be Ssud)ect ft

change.” Inglese at /68 F.2d 936

The Eleventh Circuit. in Dufresne \v

Baer, /44 F.2d 1543 lith Cir 1984).

cert denied, U.S , 106 § t

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Petitioner's claim that the

commission could not amend

the guidelines retrospective-

ly if the amendment would

produce a longer term of

incarceration implies that

he was not on notice, when

he committed his crime,

that such an amendment could

occur. In truth, petitioner

was on notice that such an

amendment might well occur.

The commission had a

statutory duty to monitor

and periodically update

its guidelines and to

apply current guidelines

to crimes previously

committed.

Dufresne at 744 F.2d 1548.

The facts that the United States

Parole Commission may continue to

exercise its discretion in setting

release dates, and that the parole

guidelines are simply guidelines,

have also convinced the federal

courts that they are not ex post

facto. Rifai v. U.S. Parole

Commission, 586 F.2d 695 (9th Cir.

[— 5

1978); DiNapoli v. Northeast Regional

Parole Commission, /64 F.2d 143

(2nd Cir.), cert. denied, U.S. ,

106 S.Ct. 568 (1985). Thus, even

though the parole guidelines are

followed 85 percent of the time,

since the commission has a congressio-

nal mandate expressed in the statute

to continue to exercise discretion,

ow often it is exercised is

immaterial. Inglese v. U.S. Parole

Commission, /68 F.2d 932, 937 (7th

Cir. 1985); Wallace v. Christensen,

802 F.2d 1539, 1553-1554 (9th Cir.

1986) (en banc).

The conclusion that application

of new or amended guidelines is not

ex post facto, has also been reached

by federal courts reviewing state

parole guidelines systems. In

Paschal v. Wainwright, 738 F.2d 11/3

(llth Cir. 1984), the court found the

Florida parole guidelines clarified

the manner in which commission discre-

was exercised, by reference to

ertailt biective criteria, but did not

ilter the fact that the parole decision

involved the use of discretion. The

court distinguished Weaver v. Graham,

450 U.S. 24 (1981), because in Weaver

the prisoner had a mandatory statutory

entitlement to a certain amount of

automatically calculated gain time,

and no discretion was involved in

awarding the gain time. The

continuing existence of discretion

in the parole system thus permits

application of parole guidelines as

of their effective date, regardless

of the date the offense was committed.

Paschal v. Wainwright, supra;

Johnson v. Wainwright, 772 F.2d 826

(llth Cir. 1985); Damiano v. Florida

Parole and Probation Commission,

785 F.2d 929 (llth Cir. 1986); Jonas

v. Wainwright, 779 F.2d 1576 (llth

Cir. 1976); see also, Heirens v.

Mizell, 729 F.2d 449, 458-459 (7th

Cir.), cert. denied, 105 S.Ct. 147

(1984).

The federal parole guidelines

decisions cited above are strongly

persuasive in the instant case. The

Florida sentencing guidelines concept

had its genesis in the federal parole

guidelines system. Sundberg, Plante

and Palmer, A Proposal for Sentencing

Reform in Florida, 8 Florida State

Univ. Law Review 1 (1980). The two

factors found by the federal courts

in the parole cases es the basis for

holding there was no ex post facto

violation, fair notice to potential

offenders that the guidelines were

subject to revision and the continued

existence of commission discretion,

are present in the Florida sentencing

guidelines scheme (ante, pages 18-28).

The decision in Shepard v. Taylor,

556 F.2d 648 (2nd Cir. 1977), cited

by the Petitioner as supporting his

position, is clearly distinguishable.

In Shepard, the parole commission's

guidelines incorporated facts that

were barred from consideration by the

Federal Youth Corrections Act under

which the Petitioner was sentenced.

It was this unique circumstance that

resulted in a finding the guidelines

were ex post facto to the petitioner

in that case. Indeed, in Shepard,

the court was careful to state:

We should like to

emphasize the narrow

scope of our holding

the guidelines

do not constitute imper-

missible ex post facto

laws when applied to

an adult offender

since, in such an instance,

they merely clarify the

exercise of administrative

discretion without

altering any existing

considerations for

parole release

The constitutional

violation we find in the

instant case results

from the application

to a person... of

new and onerous condi-

tions that were forbidden

when he was originally

sentenced in 19/2.

Shepard, at 556 U.S. 654. Shepard,

and the other cases cited by the

Petitioner on this subie

ry?

decisions grounded in the special

cr?

}

considerations of the You

Act. The federal parole guicelines

opinions involving adult offenders,

cited by the Respondent, present the

more apt analogy in this case. The

alterations in the Youth Corrections

Act found to be ex post f-*cto are

more like the change from the

indeterminate sentence with parole

system to guidelines sentencing

without parole which occurred in

Florida on October 1, 1983. Florida

‘Marshall v. Garrison, 659 F.2d

440 (4th Cir. 1981); United States v.

Countryman, 758 F.2d 5/4 (lith Cir.

1985); United States v. Romero,

596 F.Supp. 446 (D.N.M. 1984).

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Shepard. ° See, Richards v. Crawford,

437 F.Supp. 453, 456 (D. Conn. 1977).

The amendments to the Florida

sentencing guidelines were not, as

was the case in United States v.

Williams, 475 F.2d 355 (D.C. Cir. 19/73),

specifically intended to alter the

situation of an accused to his

Sthis distinguishes the cases

cited by the Petitioner where ex post

facto violations were found because

favorable sentencing options had been

removed. Foster v. Barbour, 462 F.

Supp. 582 (W.D. W.C. 1978) (Youthful

Offender Act held inapplicable to

persons convicted of murder]; Warner v.

State, 354 N.E.2d 178 (Ind. 19/76)

[statute amended so persons convicted

of forcible rape were ineligible for

sexual deviant treatment]; People v.

Wells, 360 N.W.2d 219 (Mich. App.

) {persons convicted of first

degree criminal sexual conduct

declared ineligible for probation];

People v. Moon, 125 Mich. App. 7/3,

337 N.W.2d 2793 (1983) (jail time to

be spent as a condition of probation

increased from six months to one

year).

disadvantage. ” In ex post facto

analysis, the new and old statutes

must be examined in toto to determine

if the new law may be fairly

characterized as more onerous than

the old. The inquiry looks to the

7 In Williams, the law was amended

to place the burden on a criminal

defendant claiming insanity to

establish it by a preponderance of

the evidence; whereas previously once

the defense raised a claim of in-

sanity, the government was required to

prove sanity beyond a reasonable

doubt. Also, in Williams the court

found no evidence of legislative

intent to apply the change to those

whose offenses were committed

previously. By contrast, the statute

authorizing the sentencing guidelines

System specifically directs the

commission, when modifying the guide-

lines, to consider the capacities of

correctional institutions.

§ 921.001(3), Fla. Stat. (1983). This

demonstrates a legislative intent that

the guidelines amendments be applicable

to all offenders sentenced after their

effective date, since one of the

concerns is to control the prison

population.

challenged provisions and not to the

specific circumstances of the

individual. Raimondo v. Belletire,

789 F.2d 492 (7th Cir. 1986); Chatman

v. Marquez, /54 F.2d 1531 (9th Cir.),

cert. denied, 106 S.Ct. 124 (1985);

Dobbert v. lorida, 432 U.S. 282, 294

(1977); Weaver v. Graham, 450 U.S. 24,

at 38 (Rehnquist, J., concurring)

(1981). <A review of the Florida

Supreme Court's discussion of the

amendments and the reasons therefor

(see Respondent's Appendix A) clearly

demonstrate that they are procedural

in nature. They are refinements in

the guidelines, an attempt to better

guide judicial discretion, and their

overall effect is ameliorative in

accomplishing that goal. Thus, the

guidelines as amended do not meet any

of the standard criteria of an ex post

facto law: they do not make criminal

an act innocent when done, increase

the punishment, alter the rules of

evidence, or deprive the Petitioner

of a substantial right he had at the

time of the commission of the offense.

Mallett v. North Carolina, 181 U.S. 589

(1901); Nilson Van and Storage v.

Marsh, 755 F.2d 362 (4th Cir. 1984),

cert. denied, U.S. , 106 S.Ct.

65 (1985).

Aside from the fact that the

Florida Supreme Court's decision

permitting application of the amended

sentencing guidelines as of their

effective date stands on firm legal

ground, there are sound policy

considerations favoring affirmance.

The sentencing guidelines embody an

inrovative and substantial change from

the previous system of indeterminate

sentencing with parole. As with any

new system, there has been and will

continue to be a perceived need to

modify the guidelines so as to benefit

from the State's experience with then.

The guidelines were designed with that

in mind. Holton, What is to be Done

with Sentencing Guidelines?, LXI

Florida Bar Journal 19 (Feb. 198/).

As the guidelines are revised

from year to year, trial judges

should be able to utilize the guide-

lines in effect on the day they

sentence offenders. The alternative

sought by the Petitioner would

require judges to determine which

one of various sets of guidelines

was applicable on the date of the

commission of the offenses. This

would render sentencing dispositions

confusing and increasingly more

burdensome. Its ultimate effect,

clearly not intended by the legis-

lature, would be to discourage

modification of the guidelines

because of the resultant administrative

difficulties.

These administrative concerns

are appropriately addressed in ex

post facto analysis. Two federal

circuit courts of appeal have so

recognized in holding that application

of the federal Bail Reform Act of

1984, which tightens the standard

for granting bail pending appeal, is

not ex post facto when applied io

persons who committed crimes before

the Act's effective date.

The Ninth Circuit, in United

States v. McCahill, 765 F.2d 849, 850

(9th Cir. 1985), stated:

We conclude the change in

the standard for bail pend-

ing appeal does not violate

the ex post facto prohibi-

tion of the Constitution.

Even if a retroactive

change in the law is a

disadvantage to the criminal

defendant, it does not

violate the ex post facto

clause if the change is

procedural rather than

substantive. Dobbert |[ -

Though the distinction

between substance and

procedure in the context

of the ex post facto clause

may not be easy to discern

in every case, it is an

analytic form essential to

the resolution of ex post

facto cases. Dobbert,

432 U.S. at 292 [ ).

The dichotomy, we think,

is an attempt to reconcile

the necessity for continuous

legislative refinements of

the criminal adjudication

and corrections process

with the constitutional

requirement that substantial

rights of a criminal defendant

remain static from the time

of the alleged criminal act.

See Beazell v. Ohio,

269 U.S. 167, 170-71 [

(1925).

(Emphasis supplied).

Molt,

Similarly, in United States v.

758 So.2d 1198, 1200 (/th Cir.

1985), the court commented:

It would be odd to think

that by committing a crime,

a person acquired an

indefeasible right to be

tried for it in a

particular way, or that

in deciding whether to

commit a crime the

prospective criminal

will have regard to the

particulars of the

procedures for the trial

and appeal of criminal

cases. And it would

be odd and confusing to

make courts use two sets

of procedures at the

same time in criminal

cases, depending on the

date when the crime was

committed.

Therefore, it is the State's

position that the Florida Supreme

Court correctly held that the use of

the 1984 amended guidelines to

sentence the Petitioner was not

violative of the ex post facto

clause.

CONCLUSION

Wherefore, based on the fore-

going reasons and authorities, the

Respondent, the State of Florida,

respectfully requests that the

decision of the Supreme Court of

Florida be affirmed.

Respectfully submitted,

ROBERT A. BUTTERWORTH

Attorney General

Tallahassee, FL 32399-1050

JOY B. SHEARER

Assistant Attorney General

lll Georgia Avenue, Room

West Palm Beach, FL 33401

(305) 837-5062

Counsel for Respondent

A-1

APPENDIX A

The Florida Supreme Court's explana-

tion of the 1984 amendments to the

guidelines, reported at 451 So.2d 824.

The essential changes and reasons

therefor are:

1) Redefine “primary offense”

(3.701(d)(3)). The existing defini-

tion has been criticized because it

allows manipulation among the guide-

line categories. Because the proposed

redefinition selects the category

with the most severe punishment, it

is anticipated that manipulation will

be avoided.

2) Revise 3./01(d)(5)(a) to

result in greater precision when

determining prior record. The date

of commission of the "primary offense

A-

(defined at 3.701(d)(3)) will now be

controlling.

3) Alter the time period for

the calculation of juvenile prior

record (3./01(d)(5)(c)). The existing

provision makes juvenile record

difficult to determine and hinges

upon the date for the new conviction.

The revision facilitates prior record

determination by stopping the time

period at the commission of the new

offense. The revision includes a

technical amendment to the Committee

Note.

4) Redefine “victim injury”

d)(7)). This change makes

at victim injury points are

be included when physical injury

element f an offense at

A-3

>) Two revisions are made to

3.701(d)(11). The first change is

technical in nature and better

expresses the sentencing discretion

of the court. The end of this para-

graph has been revamped to replace

the cumbersome language in the current

rule. A change in the Committee Note

is included to further express the

intent of the Commission.

6) A new paragraph regarding

violation of probation and community

control is added to the rule

(3.701(d)(14)).

7) Revisions have been made to

the guidelines scoresheets (3.988(a)-

(i)). Each form has been revised to

permit scoring offenses and prior

convictions in excess of four counts.

Additionally, tables for first-degree

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.