# Reply Brief — Miller v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0969%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1987 - **Citation:** 482 U.S. 423 ## Text 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 _ ~ . ~ . *")" " YUlaAL! : il ect il if i ifia lai Dal a . "* i ’ TY e ’ ry) vy ’ ’ ° ’ i | ] ’ isSsiGQ} ~ npowe rec abl aeat . : p . | | pulde Daroie reiease decisions id >. | ‘ L‘At} hy nei rrant ‘flor 7 ; s+ mF), Gti VW ET ali raeny Daroie it Spite oF ne yulde i . > Ff > »¢ YY) . 7 ™ : > ’ ines U it determines there is good cause for x0 Going it. 7 " S.C. $42 Pursuant to t thorit LUD irsuan née aULNOrTIty vested in it! ' nor rr ' } P< ryvi ry ~ ; rr 7. “4 - c LISS10 Vromuigated parole guide ; | > ’ 4h nNe< mf } . , f T : . - r . \ = LV : 5 if ‘i / wte . 7 P _ 4 =~ ’ ; tf. o> ("7 1 “ ; . ‘fF j +6 d ne r aA 5 ¥a (Ul ' | : Je rie ; ~? > y Appeals concluded _ 7 “2 , . , F ; ’ ¥ + ; . a At . Val Vit re Vuia j ns : 1 Ure : > > ' > > - sLatements niained tnherell i@al ind repeats . bi ; hig eT J ii 4 aur is , y , y . 4 : : ar’ , ; : ~ . . Wal : : i an eligible r eT : Ibstantiai oserve ‘ Ne n< ’ it ¥ ’ " =f if annie ay Nas ee) : , iT "ese ry ry ’ j : ie Trat 7 rs 17 . hai far ‘ ’ ay ffoyr . ar ; ’ : : ne y ner eterming na rv pe ane ‘ ry iis : : . . . . ry rs : - 7 ; . ya Nat rv iP ase j ; “AT ‘ ‘ ; . 6 . "sé _ - \ : . ; " ‘ : if lan vu ‘ rye romuigate [ Lhe nl r 7 ’ ¥ 4) . : la ‘ *< : ’ ner Na ~ Trelea 4 tate ner : ue era rs 4 rf 4 7 4 4 - me aT . > + > > : , ’ — _ ‘ _ + rT : + rs rp is ‘ | ’ . i - Ter ; ’ : ’ ’ 4 : | ’ “ ; : : ‘ neg ‘ ri ‘ ‘ ‘ rs Wi ‘ ‘ mokivig DrUucess yf DaTUte ee " ; ‘ : hs : , ' sy elines. While a heightened standard 0! review checks this discretion, the commissions : . _y ’ ’ * *F _ . mherent ability to exercise discretion is no nerebDy rhe ts it aitered Paro rs + peri s\ Uc)? 794 } 20 1295 | tM) “tT { ir LUSH . a } OF ( { lat ‘ey ' Parole f Qwmmi2z2i0) shy) } rae Hy. Oe MTT ‘ lT tijai \ ai : . =) - . . ** " . vis the Parole (Commission guidelines were mere > . » , ~ 7 procedural guideposts without tne cnaracveristl , ad —& -<4- , > ’ > ‘ laws Ruip v. United States 55 F.2d 1351, 1465 (ot! , — ‘ Py weil ot t} er sions Irom 101Cclai review Se ( OT) 12] A ol iit \ ). - ’ nrovides that the decisior ef the Parole { mmission ‘ : ivf ’ , ry 7 ’ ’ . rs ’ eTantin 4 1e@T Ving ondl onl = {Al = As 'S ) ; ’ ; ’ ryi ry ’ “lf parole under sectiol $ZU5( DUI bs »), are mitved } . ; the discretion of the Parole Commission and are = / .” ° ea, " ’ ‘ emanvie inde! , | ~ { . iO] ANZ pr ¥ MTZ Miividi . y +ywnt " dy st " : ~ tury review under the Administrative Procedure A ectl ’ ~- " . ; . , 2 < " : or Zim : tnerevDy . Xe mp all Parole ‘ TT I i- - — £ v , y relating to parole revocation [ron jadicliai review unde yr tT 1 77 gi: "Tr. 1 Ons) ting \ >A ] ithe Vi yna.627F.2 i ih { ’ } ’ : : 7 | ; , ; (pe > ‘ jms if Wa (it-¢ if Ayrste) ‘ oA - Le heoe? , | i ne irt explained y . ; ; h these nrovisions [ ners : rye : r¢ j ‘ ‘ = tisye ty ’ ; - ‘ ' yryir eda tne pres Mp nu ret CWa _ y , ; " ns supstantive decisivol VT a i¢ ’ f tee tnere Tore hie ; if J ; ; ; - eS Ff 4 7 Adee yf ’ pT j , | it ryiryr ry ‘ | ; rie) : i} a Ai/} : \ numpe ' federal pr ner 7 ‘ . : ‘ ore ’ ’ r"< ner ] Té =) | : ‘ ‘ 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 ‘ne contrary judgment of the Supreme | | —s ve Vacated rrije?r DiS Respectfully l5th J udicia! the date of his offense ourt of Florida submitted io11¢ De fende? Ulrcuit of Flon a BARNARI ’ ? f Linn. tf Reco) ; . r) , f 4 ef Ass stant } sf i Jt ré ’ ANTH N ‘ " , sistant Pui De ly ' ; ; ; ‘ ; iss i i Me ly err? . ’ ‘7 \ ’ 01 North O ‘ “ : --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0969%3A7. Public record. Not legal advice.