Reply Brief — Miller v. Florida

apr 17 wer

CLERK

No. 86-5544

LS

IN THE

Supreme Court of the Anited States

Wer rc ertiiora©nri

ihe Supreme ( ourt (Wf Florida

REPLY BRIEF FOR PETITIONER

PRESS OF RAM PRINTS HYATTSVILLE. Wi

TABLE OF CONTENTS

TABLE OF AUTHORITIES

_ases

?

R id ip V

Scu rry

State V

State \

State V

State v

State v

Table of Authorities Continued

United States, 555 F.2d 1331 (6th Cir. 197%

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

Correll. 148 Ariz. 468, 715 P.2d 721 (1986

Jackson. 478 So.2d 1054 Fla. 1985

Mischler. 488 So.2d 523 (Fla. 1986

Whitfield. 487 So.2d 1045 (Fla. 1986

Willis, 364 N.W.2d 498 (Minn. Ct. App. 1985

Stroud V [’ S Parole { ‘on i? SSior. Hb» F 2d 8455 >t n

1982

hompson v. Blackburn 776 F.2d 118 (5th Cir. 1985

T

lnited

l nited

3d

I nited

States v. Addonizio, 442 U.S. 1

States Paro e { Linii ss ; y t,e7rngo ry 145

8 (1979

States ex rel. Foreman v. McCall, 776 F.2d

Cir. 1985)

3&8 ( | GSD)

Wallace

Warren

Cir

Weaver

W (L2avre

Ya ran

v. Christensen. 802 F.2d 1539 (9th Cir. 1986

\ 7s Parole ¢ Hn m?8k810) 659 F.2d 12 r

198] . ce vr? dé nied 15d 1) * HHI) 1YRZ

vy Graham. 450 U.S. 24 (1981

ev State. 500 So.2d 501 (Fla. 1986

orn Vv iS Parole ‘ Timi e< ; (44 } 46

Sth Cir. 1986

“TA rT

F lomda :

secti

Sect l¢

Flonda

sect

TES

Statutes LYAS

yn 921.001(5

ym 921.001(5

Statutes (1984

yn 921.001(5

Laws of F londa

Chapter 84-528

nited States "ode

Title

» 5. Section 7UOl(avz2

18, Sections 4201-4215

> 18, Section 42U5(a

» 18. Section 4205(a ]

it 1s Section tA h

Lx Sectlor AUST

ble of Authorities Continued

Page

Title 18, Section 4203(b)\(2

Title 18, Section 4203(b\(3

Title 18, Section 4206(a)

Title 18, Section 4206(c

Title 18, Section 4218

Title 18, Section 421&8(d

RULES

Florida Rules of Criminal! Procedure

Rule 3 TOl(day 1]

Rule 3.701(d\(&

MISCELLANEOUS

Code of Federal Regulations (1983) \ im

§ 2. 20(b\(c)

The F onda Bar An endment f pi ies o7clrn

ed re, 451 So.2d 824 (Fla. 1984

ARGUMENT

THE RETROACTIVE APPLICATION TO MR. MILLER OF

THE STATUTORY AMENDMENT TO THE FLORIDA

SENTENCING GUIDELINES LAW TO INCREASE THE

LENGTH OF INCARCERATION FOR SEXUAL OFFENSES,

VIOLATES THE EX POST FACTO CLAUSE

The State has not disputed the two essential aspects of

the reach of the Ex Post Facto Clause in this case: (1) that

changes to the sentencing guidelines law were retrospec-

tively applied to Mr. Miller; and (2) that those changes

were disadvantageous to him by increasing his punish-

ment, and indeed were intended to do so by the Florida

Legislature.

Instead the State makes one argument: the sentencing

guidelines are procedural and so changing them and

retroactively applying those changes to a defendant's det-

riment cannot ever violate ex post facto proscriptions. The

State, of course, takes this position in order to argue that

the issue falls within the reasoning of Dobbert v. Florida,

432 U.S. 282 (1977). To come to that conclusion, the state

submits two propositions. First, it argues that the Flor-

ida sentencing guidelines are discretionary because “de-

partures” are allowed. Second, it proposes that since the

Legislature told its guidelines commission to annually

monitor the guidelines for amendments that might be

required, the enabling legislation gave “fair notice” that

there would be changes, thus rendering inapplicable any

ex post facto concerns. For this latter argument, the State

relies upon cases involving the federal parole guidelines.

The argument that the Florida guidelines law is discre-

tionary and therefore may be retrospectively changed at

will by the Legislature, has been adequately addressed in

Mr. Miller's initial brief. The amendment to that law at

issue here changed no procedures but rather changed

only the point totals for the sentencing calculations with

9

the effect (and intent) of boosting Mr. Miller's prison sen-

tence. Increasing the sentence beyond that permissible at

the time of the offense is not a procedural change and is

precisely the circumstance that the Er Post Facto Clause

is intended to preclude.

Florida's sentencing law is firm—a sentence outside the

guidelines is unlawful, i.e. beyond the authority of the

courts to impose. In a case where there are no “clear and

convincing” reasons, based upon record facts proven

beyond a reasonable doubt, and not already scored, the

calculated guidelines sentence is the sentence that must

be imposed. Any departure (upwa. or .ownward) from

that sentence is “illegal” and will be reversed on appeal—

“the absence of the statutorily mandated findings ren-

der{s} the sentences illegal because, in their absence.

there [is] no statutory authority for the sentences.” State

v. Whitfield, 487 So.2d 1045, 1046 (Fla. 1986).!

Quite apparently, the sentencing law is not “discretion-

ary.” The only discretion in the statute is within the

presumptive guidelines range provided by the sentencing

law.? If a judge departs from that range, the review

‘It is so fundamental a violation of Florida law that an improper

departure will be reversed on appeal even if there was no objection.

Departures from the guideline sentence are treated in the same

manner as any other excessive or illegal sentence. See State v. Whit

field, supra; cf. Williams v. State. 500 So.2d 501, 502-508 (Fla. 1986)

(“a defendant's acquiesence cannot confer jurisdiction on the court for

such a departure,” because “a defendant cannot. . . confer upon the

court the authority to impose an illegal sentence”).

* There is one other situation where it could be said that the judge

retains discretion. It results from the fact that a sentence within the

guideline sentence range is not reviewable on appeal. That is, a

defendant has no right to require a downward departure, nor can the

state force an upward departure from the guidelines sentence. So

standard is not “abuse of discretion,” but, significantly,

the appellate court reviews the sentence to determine its

legality under certain prescribed standards of proof and

within limited criteria. There is no discretion in the sen-

tencing law. The changes to that law resulting in an

increased prison sentence for Mr. Miller cannot thus be

termed “procedural” so as to avoid the ex post facto pros-

cription.*

With that discretion argument answered, we move to

the new argument put forth by respondent: the federal

parole guidelines. As will be seen, the analogy is not apt.

The Florida sentencing guidelines law shares only a com-

mon word with the federal parole “guidelines.” In sub-

stance they are .uifferent in every respect relevant to ex

post facto analysis.

The State’s point of departure for its federal parole

guidelines analogy is Hayward v. U.S. Parole Commis-

sion. 659 F.2d 857, 862 (Sth Cir. 1981), cert denied. 456

U.S. 935 (1982). The State says it is “pleased” by Mr.

long as the judge imposes a sentence within the guidelines range

that decision is legal and unreviewable. Thus, even if the legal stan

dards for a departure are met (i.e., clear and convincing reasons) the

judge retains the discretion to impose a sentence within the guide

lines range—for any or no reason. There is thus discretion to stay

within the guidelines. Outside that range, discretion ends

‘ See also State v. Correll, 148 Ariz. 468, 715 P.2d 721 (1986) (Citing

Weaver v. Graham, 450 U.S. 24 (1981), the court held that retroactive

application of one statutory aggravating circumstance w hich became

effective after the offense violated the Ex Post Facto Ciause),

Thompson v. Blackburn, 776 F.2d 118, 121 (5th Cir 1985) (Rejecting

lower court's finding that a state statute which eliminated the pos

sibility of parole, probation or suspension of sentence was “merel)

procedural”

J

Miller's citation to Hayward. RB 49.4 It shouldn't be.

That case is one of many explications of the fundamental

ex post facto principle that the law in effect at the time of

the offense is the established measuring point in assessing

any ex post facto claim. See also Calder v. Bull, 3 U.S. (2

Dall.) 386, 390 (1798); Weaver v. Graham, 450 U.S. 24. 30

(1981). The State, unmoved by this fundamental ex post

facto principle, urges a “compromise date” for when ex

post facto attaches: the law on the date of sentencing.

Apparently aware of the constitutional precedent, the

State alternatively suggests that “policy” considerations

favor use of the “sentencing date.” On the contrary, sen-

tencing based on the date of the offense is more certain.

efficient and fair. If the “sentencing date” controls guide-

line scoring, the sentencing procedure will be open to

unfairness, capriciousness, and manipulation. The sen-

tencing date can be inadvertently or intentionally

delayed, postponed or accelerated to reach some desired

result in the trial court. The sentencing date or future

resentencing date is too elastic a concept to gauge a uni-

form system of sentencing guidelines.> If a revision or

‘The citation symbol “RB” is used herein to refer to the Brief for

Respondent.

» The extent to which that “sentencing date” reasoning can lead, is

indicated by one case where amendments to the guidelines were

retroactively applied on appeal. Patterson v. State, 486 So.2d 74 (Fla.

ith DCA 1986), aff'd, 499 So.2d 831 (Fla. 1987), cert pending, No

86-6360. In that case the sentence had been imposed under the law at

the time of sentencing and was found illegal on appeal. On rehearing.

however, the court noted that the guidelines law had changed so as to

transform the sentence to a legal one. Thus. the court said that if the

case were sent back for resentencing, the new law would be applied

and the same sentence could be imposed. This was said to make the

illegality “harmless” and so the sentence was upheld on appeal by

retroactively applying an amendment to the guidelines law

amendment is proposed and approved by the legislature,

this will surely set in motion a wave of accelerations or

postponements by the parties. Calculating the guidelines

from the date of offenses brings the necessary uniformity

and certainty which is the goal of the sentencing guide-

lines. Regardless, the “sentencing date” would apply only

if there were no Ex Post Facto Clause in the Constitution.

But there is, and its protection is implicated here.

The other arguments the State makes in its analogy to

parole guideline cases fare no better. An examination of

the federal parole guidelines and interpretative decisions

reveals those guidelines do not come close to providing the

strict limitation imposed by the Florida sentencing guide-

lines.

Federal parole was initially administered by the United

States Board of Parole under a statutory charter granting

it virtually unlimited and unreviewable discretion in

parole decisions. In response to criticism of this system,

the Parole Board in 1973 instituted parole guidelines to be

followed in making all federal parole decisions. In 1°76,

Congress made the guideline system a legislative require-

ment.

In t'- Parole Commission and Reorganization Act, 18

U.S.C. $$ 4201-4218 (1976), Congress created the United

States Parole Commission (hereafter Parole Commis-

sion), an independent federal agency vested with power to

grant and deny parole to any eligible federal prisoner,

subject to certain limitations. The Parole Commission

was directed to “promulgate rules and regulations estab-

lishing guidelines” with respect to the exercise of its own

discretionary power to release federal prisoners on

parole, 18 U.S.C. §4203(a), and “such other rules and

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procedural guideposts without tne cnaracveristl

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mulgated after the offenses being used to determine their

parole eligibility. As noted by the State. nine circuits and

one Justice have concluded that retrospective application

of the federal parole guidelines does not offend the FE)

Post Facto Clause, although they have not always agreed

on the rationale. The majority of these courts have held

that the federal parole guidelines are not “laws” within the

meaning of the Ex Post Facto Clause.* Courts have also

found the guidelines merely rationalize the exercise of

statutory discretion and that retrospective application of

e guidelines thus does not violate ex post facto princi-

pies.” Some of these cases have held in the alternative that

the retrospective application of the guidelines does not

result in a more onerous punishment and thus does not

violate the Ex Post Facto Clause.

“See lnalese, 768 F 2d at 925.26 DiNapo Vortheast Req

Pay m, 764 F.2d 143, 146 (2d Ciy ert. denied

i's 106 5.Ct. 568 (1985): Dufresne Baer. 744 F.2d 1542

154! Lith ( 19x4 ert. denied U.S 106 S.Ct. 61

19R5 j nited States Parole Coammisesios 124 F.2d 836. 840

Sth Cir | j 2¢ ais0 | nited States, ’ Forma Wel a iat

F.2d 1156, 1168 (3d Cir 1985

‘See Portley v. Grossman, 444 U.S. 1311, 1

bers opinion of Rennqguist Circuit Justice Warren v JT’ & P

f LALLA LE, HAD Fd 1x3 195 1) ¢ (‘iy 1OR] The } fth Cin

mereiy neid without further « mporation that “itihere is rie M

f ation in the retroactive application of the yuidelines.” Str

J \ Paro pf IIRL. cS70p hy» I: Aa —4°3 x47 ith (‘ir 1GRY

See Dufresne 144 F.2d at 1549-50: Warre Hoo F.2d at 192: PR

United States Parole Commission, 586 F.2d at 698-99 These case

were cecided on the Dasis that it is ‘axuomat that for a law to he }

Post Facto it must be more onerous han the present |: * Dobh

132 U.S. at 294

rhe | url Nas twice expres leciined

A comparison of the federal parole guidelines and the

Florida sentencing guidelines law underscores the vast

distinction between the two mechanisms. The federal

parole guidelines are merely agency-promulgated guides

to assist the Parole Commission in formulating appropri-

ate parole release dates. A majority of the courts have

held that the Ex Post Facto Clause does not apply to the

federal parole guidelines because the agency regulations

are not “law.” In contrast, the Florida sentencing guide-

lines and the instant statutory amendment to the sentenc-

ing guidelines are clearly laws within the meaning of the

Ex Post Facto Clause. Rather than guidelines formulated

by the Parole Commission to guide its own discretionary

acts. the Florida sentencing guidelines are promulgated

by the legislative branch as substantive restraints upon

the judicial branch. Amendments to the guidelines law

are effective only upon becoming /aw—even if the Florida

court has approved them. The failure to adhere to the

guidelines is “illegal,” because there Is “no statutory

authority” for the courts to impose a sentence contrary to

that prescribed by the law. See State \ Whitheld. supra

The Parole Commission has inherent ability to exercis

its discretion in the decision-making process of parole and

in the use of the federal parole guidelines. The federal

parole guidelines are “merely guides.” See /nglese, 768

F.2d at 936. The Parole Commission may follow its parole

guidelines, disregard them, or change them. Parole

remains an act of discretion. See Dufresne, 744 F.2d at

1550. Even the Parole Commission’s decisions on parole

Geraghty, 445 U.S. 388, 390 n.1 (1980); United Stat Ada

142 U.S. 178. 184 (1979). In each of those cases, the Court found

innecessary to widre il part i ine ¢

lO

revocation are insulated from judicial review under the

APA. See Wallace v. Christensen. supra."

The nature of parole itself distinguishes it from the

Florida sentencing system. “[P Jarole is not part of a crimi-

nal prosecution.” Morrissey v. Brewer. 408 U.S. 471, 480

(1972). “Parole arises after the end of the criminal pros-

ecution, including imposition of sentence. __ land}

(supervision is not directly by the court but by an admin-

istrative agency.” /d. “Its purpose is to help individuals

reintegrate into society. ... The essence of parole is

release from prison, before completion of sentence.” /d. at

477. Of course, what is involved in this case is the initial

imposition of the sentence by the court. quite plainly a

part of the criminal prosecution.

[n stark contrast to federal parole, the Florida sentenc-

ing guidelines law while allowing some discretion with i»

each calculated guideline range, establishes a presump-

tron that the recommended sentence contained therein be

employed. Rule 3.701(d)(8), (d\(11). Any variance from

the calculated sentence is to be avoided and is illegal

unless the judge finds clear and convincing reasons to

justify a departure and puts those reasons in writ ing SO as

to permit appellate review. Rule 3.701(d)(11). The facts

supporting these “clear and convincing reasons” must be

“eredible 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, with

out hesitancy, that departure is warranted.” State \ Mis

chler. 488 S50. 2d 523 | Fla. 1986). Accord Se urry Vv. Stats

'' Likewise the state parole guidelines (Florida's included are

totall, discretionary agency guides. See Johnso v. Warnwright, 77?

F.2d & j (11th Cir. 1985): Heirens v. Mize 129 F.2d 449 (7th Cir

cert ed US 105 S.Ct. 147 (1984

1?

The State argues that even if the retroactive application

of this statutory amendment to the sentencing guidelines

is not “procedural” there would still be no violation of the

E'x Post Facto Clause because Mr. Miller had “fair notice”

of possible amendments to the sentencing guidelines. It

points to the fact that the sentencing guidelines under

Section 921.001(3), Fla. Stat. (1983) provide that: “Follow-

ing the initial development of statewide sentencing guide-

lines by the Court, the Commission shal] ... review

sentencing practices and recommend modification of the

guidelines.” Citing Weaver, the State states that the pur-

pose of the Ex Post Facto Clause is to insure “fair warn-

ing.” It follows according to the State that like all

offenders, Mr. Miller, whose offense occurred after the

effective date of the sentencing guidelines (October 1.

1983) “was on notice that the guidelines would be used in

calculating his recommended sentence. they were subject

to amendment and the recommended range could be

exceeded up to the statutory maximum penalties for the

crimes he committed, which remained unchanged.” RB

39. Thus, in the State's view Mr. Miller “had that fair

warning.” RB 40. Mr. Miller disagrees

Contrary to the State's suggestion, fair warning is not

the sole focus of ex post facto analysis. When subjecting a

law to ex post facto scrutiny, courts should bear in mind

the related aim of the Ex Post Facto Clause of preventing

vindictive criminal legislation. Weaver. 450 U.S. at

28-29.'2 “From the outset the ex post facto clauses

have been understood to have been principally aimed at

=“The ex p is tne separation of

powers Dy confining nal Gecisions with prospec

tive effect and the upplications of existing

0 implicated at bar

13

curtailing legislative abuses.” Warren v. U.S. Parole

Commission, 659 F.2d 183, 187 (D.C. Cir. 1981), cert.

denied. 455 U.S. 650 (1982). This aim of the Ex Post Facto

Clause is implicated here because one of the principle

purposes of the instant statutory amendment was to “in-

crease({] rates and lengths of incarceration for sexual

offenders.” The Florida Bar: Amendment to Rules of

Criminal Procedure, 451 So.2d 824 (Fla. 1984).

The fair warning aim of the Ex Post Facto Clause was

likewise violated by the retroactive application of this

statutory amendment. The Weaver Court expressly

stated that the Clause assures that penal statutes “give

fair warning of their effect and permit individuals to rely

on their meaning until explicitly changed.” Id. at 28-29

(emphasis supplied). In Dobbert, the Court explained “the

existence of the statute served as an ‘operative fact’ to

warn the petitioner of the penalty which Florida would

seek to impose on him if he were convicted of first degree

murder.” Jd. at 298.!* These cases indicate that fair warn-

ing in the ex post facto context must be equated with a

statutory pronouncement on the subject matter not toa

statutory provision that merely allows future changes

The State’s argument suggests that the Legislature ma)

avoid the constitutional prohibition against er post facto

laws merely by adding to the statute or rule that it Is

subject to revision. All laws are subject to revision and

modification, and merely because one is put on notice of

this obvious fact does not destroy a person's expectation of

‘3 In Kring v. Missour, 107 LS. 221 (1883), the Court endorsed

this “excellent observation”: “‘No one can be criminally punished in

this country. ercept according foa tau pre scT hed for his govern nie yi

hefore the supposed offense was committed and which ex sted as a

law at that time.’” Id. at 230-231 (quoting Hartung \ People, 22N.%

95, 104 (1860)) (emphasis In origina!

l4

having his or her conduct viewed under the law existing at

the time of the offense.

In Rodriguez v. U.S. Parole Commission. 594 F.2d 170

(7th Cir. 1979), cited with approval in Weaver, the Circuit

Court held that the Ex Post Facto Clause was violated by

the retroactive application of a Parole C ommission admin-

istrative regulation not in effect at the time of his offense

that denied a prisoner any meaningful consideration for

parole. The Parole Commission. citing Dobbert, 432 U.S.

at 297-98, argued that the Parole Commission and Reor-

ganization Act and the agency's own notice of the pro-

posed elimination of the one-third hearing are “operative

facts,” which gave Rodriguez notice that he would not be

entitled to such a hearing. The court rejected this argu-

ment because the Parole Act “itself does not require the

elimination of the one-third hearing, and therefore it gave

no notice of the elimination of the hearing.” Jd. at 176.

And more importantly

the ex pest facto clause looks to the punishment

annexed at the time the crime was committed. E....

Dobbert v. Florida, supra, 432 U.S. at 292. ...

Consequently, the “operative facts” relied on by the

commission, which did not come into existence until

after the offense was committed, cannot satisfy the

requirements of the ex post facto clause.

Id. at 176.14 Likewise at bar, the Statutory amendment,

which became effective after the offense was committed,

cannot satisfy the requirements of the Ex Post Facto

Clause.

The State’s next argument to justify retroactive

application of the stiffer guidelines amendment is a sug-

'* The court also rejected the Parole ¢ ‘ommission’s contention that

the change was merely “procedural” and therefore not within the

scope of the ex post facto clause

15

gestion that retroactive application would not have

affected the actual sentence imposed upon Mr. Miller. It

reasons that the trial judge may have “departed” pur-

suant to Rule 3.701(d)(11) from Mr. Miller's presumptive

guidelines sentence and then sentenced Mr. Miller to the

identical seven years in prison. RB 37. First, this argu-

ment only supports Mr. Miller's position that retroactive

application of the amendment to the guidelines was more

onerous and detrimental to Mr. Miller. Second, the State

ignores the admonition in Weaver, that it is irrelevant that

the same result might have been possible under another

provision.

In assessing whether a provision is disadvantageous,

courts must look to the challenged provision itself and

ignore any extrinsic circumstances that may mitigate its

effect on the particular individual. Weaver, 450 U.S. at 33;

Dobbert, 432 U.S. at 300. Ex post facto analysis “is con-

cerned solely with whether a statute assigns more disad-

vantageous criminal or penal consequences to an act than

did the law in place when the act occurred.” Weaver, 450

U.S. at 30 n.13.'5 Thus Weaver refutes the State's argu

15 This also answers the State's suggestion that a// of the statutor)

amendments to the guidelines contained in Laws of Fla., Ch. 84-328,

should be examined in toto to assess its impact on Mr. Miller. RB

63-64. The State has failed to identify even one statutory amendment

that could possibly ameliorate or benefit Mr. Miller In addition to the

statutory amendment which added points to Mr. Miller's “primary

offense” in the instant case, JA 16-17, see also Beggs v. State, 473

So 2d 9(Fla. Ist DCA 1985), rev'd, 487 So.2d 1070 (Fla. 1986); Moore

v. State, 469 So.2d 947 (Fla. 5th DCA 1985), rev'd, 489 So.2d 1130

(Fla. 1986). four other simultaneous statutory amendments were

held to be detrimental or more onerous prior to the decision in State v

Jackson. 478 So.2d 1054 (Fla. 1985). See Ennis v. State, 475 So.2d 713

(Fla. Ist DCA 1985) (redefine primary offense); Mott v. State, 469

So 2d 946 (Fla. 5th DCA 1985), rev'd, 488 So 9d 535 (Fla. 1986) (allow

16

ment. In any event such argument is pure speculation.

There is absolutely no indication that the trial judge

wanted to depart from Mr. Miller's presumptive guide-

lines sentence range. JA 7-10. In fact. the trial judge

specifically rejected the State’s motion to aggravate or

depart from the presumptive guidelines sentence. JA

8-10.

Another argument advanced by the State is that the

Florida sentencing guidelines in general are ameliorative.

RB 23, 38. However, as discussed in Mr Miller's intial

brief (pgs. 13), the Florida sentencing guidelines were

mandatory as to Mr. Miller and thus whatever force an

argument that the Florida sentencing guidelines are ame-

liorative vis-a-vis the prior indeterminate sentencing

scheme might have, such argument is totally irrelevant to

the issue at bar. !6

In sum the State fails to properly apply the Court's two

prong test established in Weaver to assess an er post facto

violation: (1) is the law retrospective, that is, does the law

attach legal consequences to crimes committed before the

the trial judge to score more than four prior felonies): Patterson \

State, 486 So.2d 74 (Fla. 4th DCA 19886), aff'd, 499 Su.2d 831 (Fla

1987) (total sanction incarceration and probation shali not exceed

statutory maximum as opposed to .aximum guideline range); Hop

per v. State, 465 So.2d 1269 (Fla.2d DCA). re: denied, 475 So.2d 696

Fla. 1985) (revised guidelines assesses separate points for first

legree felony punishable by life).

For its general policy argument the State notes that Minnesota

s sentencing guidelines system similar to Florida and it too has

@ended them. RB 26. The State failed. however, to examine how

Minnesota has administered its guidelines. Unlike in Florida. amend

the Minnesota guidelines have not been retroactively

ipphed. See State v. Willis, 364 N.W.2d 498, 500 (Minn. Ct. App

li

law took effect. and (2) does the law affect a person W ho

committed those crimes in a disadvantageous fashion? If

the answer to both questions is yes, then the law con-

stitutes an ex post facto law and is void as applied to those

persons. The answers are “yes” in this case and the State

has not said otherwise. There is no issue in this case as to

whether the penal law is retrospective. The State con-

eedes it. RB 4. 14. There is no real issue in this case as to

whether the amendment affected Mr. Miller in a disadvan-

tageous fashion. The State agrees that it resulted in an

increase in the presumptive guidelines sentence range for

Mr. Miller.

In Weaver. the Court looked ne further than the stat

ute. It need not go further in this case. The Ex Post Facto

Clause has been \ iolated

CONCLUSION

Mr. Miller is entitled to be sentenced under the Florida

sentencing guidelines in effect on

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