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EVIDENCE IN FLORIDA SENTENCING

Handout for the 2013 Topics in Evidence Seminar

Code and Rules of Evidence Committee of The Florida Bar


March 15, 2013

William H. Burgess, III, Esq.


Burgess.law.org@hotmail.com

Copyright 2013, Thomson-Reuters-West and William H. Burgess, III. All rights reserved. Reproduction or further distribution in whole or in part is prohibited.

HON. WILLIAM H. BURGESS, III, is a circuit court judge in Floridas Sixth Judicial Circuit. Prior to taking the bench, he was a trial attorney and prosecutor for the State of Florida. Mr. Burgess has been a member of The Florida Bar since 1995 and has been Board Certified in Criminal Trial since 2001. He is a member of The Florida Bars Standing Committee on the Unlicensed Practice of Law and a past member of The Florida Bars Judicial Administration and Evaluation Committee, the Standing Committee on Professionalism, and the Judicial Administration, Selection and Tenure Committee. Mr. Burgess has also served as an adjunct professor at St. Petersburg College, lecturing on the law to future police officers. He lectures at the Criminal Law Certification Review for the Florida Association of Criminal Defense Lawyers, and has lectured on sentencing, evidence, professionalism, trial practice, and other criminal lawrelated topics for the Florida Prosecuting Attorneys Association, the Florida Public Defender Association, the Broward County Bar Association, the St. Petersburg Bar Association, the Pinellas County Association of Criminal Defense Lawyers, and the judges of the Sixth Judicial Circuit. He has also taught trial advocacy as an adjunct professor at Stetson Law School. Mr. Burgess received his J.D. from Washington College of Law, The American University; his M.P.A. from Clark University; and his B.A. in Political Science from the University of Massachusetts. He served in the U.S. Army from 1976 to 1995, in Infantry, Military Intelligence, and, for most of his career, Special Forces, including wartime command experience in the Persian Gulf. He resides in Seminole, Florida. He is the author of FLORIDA SENTENCING (Thomson-West 2006-2012). Mr. Burgess also has a blog, Florida Sentencing, which can be found at http://floridasentencing.blogspot.com/ and http://floridasentencing.wordpress.com/.

TABLE OF CONTENTS
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii I. OVERVIEW Pre-sentence Investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Discovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Confrontation and Due Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Sentencing Criteria. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Sentencing Factors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Costs, Assessments, Surcharges, and Fines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 II. CRIMINAL PUNISHMENT CODE Purpose and Construction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Apprendi and Blakely Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Victim Injury Points. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sexual Penetration and Sexual Contact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Severe, Moderate, and Slight Injury.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prior Record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Burden of Proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Federal, Out of State, Military, or Foreign Convictions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Departure Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Burden, Level and Sufficiency of Proof.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defense Obligations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedures to Be Followed by the Judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory Mitigating Circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Non-statutory Mitigating Circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing Entrapment and Sentence Manipulation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nexus to Offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limits on Sentence Mitigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. ENHANCEMENTS Proof of Prison Release Date for Enhancement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Habitual Felony Offender, Habitual Violent Felony Offender, Three-Time Violent Felony Offender, and Violent Career Criminal Determination Hearing and Presentence Investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Required Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fact of Prior Conviction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. CAPITAL SENTENCING Findings in Support of Sentence of Death. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Aggravating Circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Capital Felonies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Capital Drug Trafficking Felonies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 Mitigating Circumstances.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Matters That Are Not Mitigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Victim Impact Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 76 79 80 81 18 19 22 26 28 30 30 33 36 37 38 40 41 61 63 68 68

V. PROBATION AND COMMUNITY CONTROL Violent Felony Offender of Special Concern. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Revocation of Probation or Community Control. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Grounds for Revocation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proceedings When the Defendant Does Not Admit the Violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Revocation Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Specificity and Accuracy of the Allegation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prosecutors Burden of Proof and Persuasion in Revocation Proceedings. . . . . . . . . . . . . . . . . . . . . . . . Sufficiency of the Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Willful and Substantial Nature of the Violation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. RESTITUTION Criminal Restitution and Civil Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restitution Imposed After Evidentiary Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidentiary Burdens.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Causation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Determination of Amount of Restitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sufficiency of the Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII. JUVENILE SENTENCING Adjudicatory Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Predisposition Reports and Other Evaluations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dispositional Hearing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Violation of Probation or Conditional Release.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 155 156 160 137 138 139 140 143 147 109 113 113 123 124 126 128 129 133

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INTRODUCTION Sentencing is a critical and narrowly-focused part of the criminal justice process. Among the many complexities in sentencing that often presents a challenge for judges and lawyers concerns the rules applicable to the introduction and use of evidence. A fair assumption would be that the Florida Evidence Code (FEC) strictly and uniformly applies to all phases of criminal sentencing. That is, after all, what the Code seems to state.1 In fact, the scope and degree to which the FEC applies to the various aspects of sentencing varies from setting to setting, as noted by Professor Charles Ehrhardt:2 Judicial decisions, statutes, and rules of court have all spoken to different proceedings in which the strict rules of evidence, and therefore the Code, are inapplicable.3 Among these proceedings are . . . proceedings involving sentencing,4 revocation of probation,5 . . . habitual offender proceedings,6 [and]

1. 90.103. Scope; Applicability (1) Unless otherwise provided by statute, this code applies to the same proceedings that the general law of evidence applied to before the effective date of this code. (2) This act shall apply to criminal proceedings related to crimes committed after the effective date of this code and to civil actions and all other proceedings pending on or brought after October 1, 1981. (3) Nothing in this act shall operate to repeal or modify the parol evidence rule. 90.103, F.S. 2. Charles W. Ehrhardt, Florida Evidence, 103.01 (2012 Edition). (Footnotes in the original.) 3. Jennings v. Dade County, 589 So. 2d 1337 (Fla. 3d DCA 1991) (A quasi-judicial proceeding of the Dade County Commission was not controlled by strict rules of evidence and procedure.); see Barnebey Polk, Quasi-Judicial Land Use Hearings: Does Your Evidence Pass Muster, 69 Fla. B.J. 42 (March 1995). 4. It is not clear whether the hearsay rule and the confrontation clause apply in non-capital sentencing proceedings. Compare Eutsey v. State, 383 So. 2d 219 (Fla. 1980) and U.S. v. Luciano, 414 F.3d 174, 67 Fed. R. Evid. Serv. 839 (1st Cir. 2005) with Rodgers v. State, 948 So. 2d 655, 66364 (Fla. 2006). 5. See Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484, 499 (1972) (In a hearing to revoke parole the process should be flexible enough to consider evidence including letters, affidavits and other material that would not be admissible in an adversary criminal trial.); State v. Heath, 343 So. 2d 13 (Fla. 1977) (In accepting terms of probation, a probationer waives privilege against self-incrimination with regard to providing necessary information to supervisor regarding living and working conditions and activities.); Croteau v. State, 334 So. 2d 577 (Fla. 1976) (Evidence obtained in violation of Fourth Amendment may be admissible in revocation hearing even if it must be excluded from trial.); Cassamassima v. State, 657 So. 2d 906, 909 (Fla. 5th DCA 1995) (Polygraph results are inadmissible to prove a probation violation, but requiring the defendant to take periodic polygraph examinations as a condition of probation is valid for the purposes of deterrence and supervision of the probationer.); Davis v. State, 831 So. 2d 792 (Fla. 5th DCA 2002) (Probation could not be revoked solely on the basis of court taking judicial notice of

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hearings to determine whether capital punishment is imposed,7 . . . . In certain proceedings, the ability of the court to make a factual finding based solely upon hearsay is limited; for example, a finding in a restitution hearing8 . . . cannot be based solely upon hearsay. * * * * *

the contents of an affidavit contained in a court file in a different case. Judicial notice did not render the contents of the affidavit admissible hearsay.). - Probation may not be revoked solely on the basis of inadmissible hearsay. See Smith-Curles v. State, 24 So. 3d 702 (Fla. 1st DCA 2009); J.F. v. State, 889 So. 2d 130 (Fla. 4th DCA 2004). However, evidence which is admissible under an applicable hearsay exception may be considered and be a sufficient basis of revocation considered together with other hearsay evidence. Russell v. State, 982 So. 2d 642, 646 (Fla. 2008) ([P]robation can be revoked on the basis of hearsay inadmissible at a criminal trial in combination with evidence admissible as an exception to the hearsay rule.); Whitehead v. State, 22 So. 3d 846 (Fla. 4th DCA 2009) (Testimony of nurse concerning victim's hearsay statements which were admissible under 90.803(23) satisfies the requirement that hearsay must be supported by evidence otherwise admissible in a criminal proceeding .); Jones v. State, 423 So. 2d 513, 514 (Fla. 5th DCA 1982) (Defendant's out-of-court statements which were admissible as admissions under a hearsay exception were sufficient to revoke probation; [E]vidence which [is] admissible as an exception to the hearsay rule and which [is] valid substantive evidence, [is] always sufficient to sustain the revocation of a probation order). 6. Eutsey v. State, 383 So. 2d 219, 225 (Fla. 1980) (Permissible to use presentence investigative report in habitual offender proceeding; however, if the defendant disputes the truth of hearsay statements contained therein, the State is required to produce corroborating evidence.). 7. Perez v. State, 919 So. 2d 347, 368 (Fla. 2005), as revised on denial of reh'g, (Jan. 5, 2006) (hearsay may be admissible during the sentencing phase of a capital proceeding if there is an opportunity to rebut). West's F.S.A. 921.141(1). See Johnson v. State, 660 So. 2d 637, 645 (Fla. 1995) (The rules of evidence may be relaxed during the penalty phase of a capital trial, but they are emphatically not to be completely ignored.). 8. See Atkins v. State, 728 So. 2d 288, 289 (Fla. 2d DCA 1999) (In restitution hearing, error to determine amount solely upon supervisor's testimony concerning value based on information gathered by two subordinates which was hearsay.); Dreyer v. State, 46 So. 3d 613 (Fla. 2d DCA 2010) (Detective's testimony concerning amount defendant stole from victim was inadmissible hearsay in restitution hearing when detective relied on information received from employees of financial institution and financial statements from institution. There was no foundation introduced to admit financial statements under 90.803(6).); Simmons v. State, 697 So. 2d 985, 986 (Fla. 4th DCA 1997) (During restitution hearing, error to base restitution order on list of items stolen from Hawthorne Industries truck because it was hearsay and inadmissible under section 90.803(6) because the testimony of company president did not establish that the itemized list was kept in the course of Hawthorne's regularly conducted business activity, or that it was the regular practice of the business to keep such a list.); J.L. v. State, 684 So. 2d 883 (Fla. 3d DCA 1996) (Hearsay testimony concerning the value of property was inadmissible in a restitution hearing to support restitution order.). - On the other hand, in A.J. v. State, 677 So. 2d 935, 936 (Fla. 4th DCA 1996), the court determined that medical bills relating to the victim's injuries offered in a restitution hearing were not hearsay because the bills were not being offered to prove the truth of the contents of the bill but rather were words of a contract, often characterized as verbal acts, [which have] independent legal significancethe law attaches duties to their utterance.

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. . . . In juvenile delinquency proceedings, the rules of evidence used in criminal cases are applicable in adjudicatory hearings9 but are not applied in disposition hearings.10 These variances are subtle and not profound, however, and are easy to learn. This handout was prepared to aid practitioners and jurists in learning the more common nuances of evidence in sentencing situations, and so to improve their practices and avoid some common errors in sentencing.

Hon. William H. Burgess, III Circuit Court Judge

9. Wests F.S.A. 985.35(2). See A.E. v. State, 668 So. 2d 704, 706 (Fla. 5th DCA 1996) (In juvenile adjudication proceeding, error to admit statement under section 90.803(23) without a case-specific finding of reliability. While it is often permissible, and sometimes even preferable, for a trial court to reserve ruling on certain objections until a later point in the trial, rulings should be made as soon as it is practical to do so.). 10. Fla. Stat. 985.433(3); Fla. R.Juv.P. 8.115(a).

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I. OVERVIEW Pre-sentence Investigation Any circuit court of Florida, when the defendant in a criminal case has been found guilty or has entered a plea of nolo contendere or guilty, may refer the case to the Department of Corrections for investigation and recommendation.11 In all cases in which the court has discretion as to what sentence may be imposed, the court may refer the case to the Department of Corrections for investigation and recommendation. No sentence or sentences other than probation can be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first been made and the recommendations of the Department of Corrections received and considered by the sentencing judge.12 Should a defendant in a capital case choose not to challenge the death penalty and refuse to present mitigation evidence, the court must refer the case to the Department of Corrections for the preparation of a presentence report. The report must be comprehensive and should include information such as previous mental health problems (including hospitalizations), school records, and relevant family background.13 Upon request of the court, it will be the duty of the department to make either or both of the following reports in writing to the circuit court at a specified time prior to sentencing, depending upon the circumstances of the defendant and the offense.14 The full report is required to include: 1. A complete description of the situation surrounding the criminal activity with which the defendant has been charged, including a synopsis of the trial transcript, if one has been made; nature of the plea agreement including the number of counts waived, the pleas agreed upon, the sentence agreed upon, and additional terms of agreement; and, at the defendants discretion, his or her version and explanation of the act. 2. The defendants sentencing status, including whether the offender is a first offender, habitual offender, or youthful offender or is currently on probation. 3. The defendants prior record of arrests and convictions. 4. The defendants educational background.

11. Sec. 921.231(1), F.S. 12. Fla. R. Crim. P. 3.710(a). 13. Fla. R. Crim. P. 3.710(a). 14. Sec. 921.231(1), F.S.

5. The defendants employment background, including any military record, his or her present employment status, and his or her occupational capabilities. 6. The defendants financial status, including total monthly income and estimated total debts. 7. The social history of the defendant, including his or her family relationships, marital status, interests, and related activities. 8. The residence history of the defendant. 9. The defendants medical history and, as appropriate, a psychological or psychiatric evaluation. 10. Information about the environments to which the defendant might return or to which the defendant could be sent should a sentence of nonincarceration or community supervision be imposed by the court and consideration of the defendants plan concerning employment supervision and treatment. 11. Information about any resources available to assist the offender, such as: a. Treatment centers. b. Residential facilities. c. Vocational training programs. d. Special education programs. e. Services that may preclude or supplement commitment to the department. 12. The views of the person preparing the report as to the defendants motivations and ambitions and an assessment of the defendants explanations for his or her criminal activity. 13. An explanation of the defendants criminal record, if any, including his or her version and explanation of any previous offenses. 14. A statement regarding the extent of the victims loss or injury. 15. A recommendation as to disposition by the court. The department is required to make a written determination as to the reasons for its recommendation. The department must include an evaluation of the following factors:

a. The appropriateness or inappropriateness of community facilities, programs, or services for treatment or supervision. b. The ability or inability of the department to provide an adequate level of supervision for the defendant in the community and a statement of what constitutes an adequate level of supervision. c. The existence of other treatment modalities which the defendant could use but which do not exist at present in the community. If requested by the court, the department must also provide to the court a summary report designed to expeditiously give the court information critical to its approval of any plea. The summary report must include the information required by subsection 921.231(1)(a), (b), (c), (j), (m), (n), and (o).15 In those instances in which a presentence investigation report has been previously compiled, the department may elect to complete a short-form report updating the above information.16 All information in the presentence investigation report is supposed to be factually presented and verified if reasonably possible by the preparer of the report. On examination at the sentencing hearing, the preparer of the report, if challenged on the issue of verification, bears the burden of explaining why it was not possible to verify the challenged information.17 The nonconfidential portion of the presentence investigation will constitute the basic classification and evaluation document of the Department of Corrections and must contain a recommendation to the court on the treatment program most appropriate to the diagnosed needs of the defendant, based upon the defendants custody classification, rehabilitative requirements, and the utilization of treatment resources in proximity to the defendants home environment.18 A defendant has a Fifth Amendment right to remain silent during the pre-sentence investigation. The sentencing court may, however, consider the defendants silence or lack of cooperation in such an investigation as evidence of the defendants character, and a lack of mitigation when the defendant asks the court to mitigate a sentence. The fact that the defendant receives a harsher sentence than he or she might have received had the defendant cooperated or not exercised the right to remain silent does not implicate the right against self-incrimination where the defendant is not affirmatively punished for the act of remaining silent.19
15. Sec. 921.231(1), F.S. 16. Sec. 921.231(2), F.S. 17. Sec. 921.231(3), F.S. 18. Sec. 921.231(4), F.S. 19. German v. State, 27 So. 3d 130 (Fla. Dist. Ct. App. 4th Dist. 2010); State v. Spencer, 31 Kan. App. 2d 681, 70 P. 3d 1226 (Kan. App. 2003); Lee v. State, 36 P. 3d 1133 (Wyo. 2001); New Hampshire v. Burgess, 156 N.H. 746, 943 A. 2d 727, 739 (2008); Ohio v. Hoying, No. 04-CA-71, 2005 WL 678989 (Ohio Ct. App.2d Dist. 2005); Wisconsin v. Arrington, 317 Wis. 2d 730, 2009 WL 749561 (Wis. Ct. App. 2009).

Discovery It is appropriate for the trial court to conduct a sentencing hearing before imposing sentence, and each side is entitled to due process at such a hearing. In almost all cases, the State and the defendant have entered into reciprocal discovery prior to sentencing, yet an issue often overlooked at sentencing is discovery, especially at departure hearings. In fact, reciprocal discovery is a continuing obligation under Fla. R. Crim. P. Rule 3.220(j), and the rules of reciprocal discovery apply to sentencing.20 Rule 3.220 prohibits trial by ambush.21 As sentencing hearings normally involve substantive issues of law and fact, both the State and the defendant have the need, and the right, to review any evidence to be offered by the opposing party, including witness testimony, and to have sufficient notice to subpoena witnesses and documents to respond to the opposing party. Reciprocal discovery is, however, initiated by a demand by the defendant upon the State, and the defendant is free to decide to not demand discovery from the State and thus not participate in reciprocal discovery. This means that there will be no discovery between the parties, and the State cannot demand reciprocal discovery from the defendant or otherwise force the defendant to participate in reciprocal discovery.22 Confrontation and Due Process The defendant has the right to be present at all critical stages of his or her prosecution. Rule 3.180 provides that in all prosecutions for crime the defendant shall be present: (1) at first appearance;23 (2) when a plea is made, unless a written plea of not guilty shall be made in writing under the provisions of rule 3.170(a);24 (3) at any pretrial conference, unless waived by the defendant in writing;25 (4) at the beginning of the trial during the examination, challenging, impanelling, and swearing of the jury;26 (5) at all proceedings before the court when the jury is

20. Elledge v. State, 613 So. 2d 434 (Fla. 1993); State v. Clark, 644 So. 2d 556 (Fla. Dist. Ct. App. 2d Dist. 1994); Sexton v. State, 643 So. 2d 53 (Fla. Dist. Ct. App. 2d Dist. 1994); Booker v. State, 634 So. 2d 301 (Fla. Dist. Ct. App. 5th Dist. 1994). 21. See, Cuciak v. State, 410 So. 2d 916, 917 (Fla. 1982) (A basic philosophy underlying discovery is the prevention of surprise and the implementation of an improved fact finding process.). 22. Fla. R. Crim. P. 3.220(a). 23. Fla. R. Crim. P. 3.180(a)(1). 24. Fla. R. Crim. P. 3.180(a)(2). 25. Fla. R. Crim. P. 3.180(a)(3). 26. Fla. R. Crim. P. 3.180(a)(4).

present;27 (6) when evidence is addressed to the court out of the presence of the jury for the purpose of laying the foundation for the introduction of evidence before the jury;28 (7) at any view by the jury;29 (8) at the rendition of the verdict;30 and (9) at the pronouncement of judgment and the imposition of sentence.31 A defendant is present for purposes of this rule if the defendant is physically in attendance for the courtroom proceeding, and has a meaningful opportunity to be heard through counsel on the issues being discussed.32 If the defendant is present at the beginning of the trial and thereafter, during the progress of the trial or before the verdict of the jury has been returned into court, voluntarily absents himself or herself from the presence of the court without leave of court, or is removed from the presence of the court because of his or her disruptive conduct during the trial, the trial of the cause or the return of the verdict of the jury in the case shall not thereby be postponed or delayed, but the trial, the submission of the case to the jury for verdict, and the return of the verdict thereon shall proceed in all respects as though the defendant were present in court at all times.33 If the defendant is present at the beginning of the trial and thereafter absents himself or herself as described in (c)(1) of the Rule, or if the defendant enters a plea of guilty or no contest and thereafter absents himself or herself from sentencing, the sentencing may proceed in all respects as though the defendant were present at all times.34 Persons prosecuted for misdemeanors may, at their own request, by leave of court, be excused from attendance at any or all of the proceedings aforesaid.35 A corporation may appear by counsel at all times and for all purposes.36 The right of presence has been extended to probation or community control revocation proceedings.37 The right to be present, the right to confront the States witnesses and evidence, and due process also entitle a non-English speaking defendant to the services of an interpreter.38

27. Fla. R. Crim. P. 3.180(a)(5). 28. Fla. R. Crim. P. 3.180(a)(6). 29. Fla. R. Crim. P. 3.180(a)(7). 30. Fla. R. Crim. P. 3.180(a)(8). 31. Fla. R. Crim. P. 3.180(a)(9). 32. Fla. R. Crim. P. 3.180(b). 33. Fla. R. Crim. P. 3.180(c)(1). 34. Fla. R. Crim. P. 3.180(c)(2). 35. Fla. R. Crim. P. 3.180(d). 36. Fla. R. Crim. P. 3.180(e). 37. See, Summerall v. State, 588 So. 2d 31 (Fla. Dist. Ct. App. 3d Dist. 1991). 38. See, Benitez v. State, 57 So. 3d 939 (Fla. Dist. Ct. App. 3d Dist. 2011).

Sentencing proceedings are not subject to the same evidentiary restrictions as trial proceedings. Tribunals passing on the guilt of a defendant always have been hedged in by strict evidentiary procedural limitations. But both before and since the American colonies became a nation, however, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law. A sentencing judge, moreover, is not confined to the narrow issue of guilt. His or her task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevantif not essentialto his or her selection of an appropriate sentence is the possession of the fullest information possible concerning the defendants life and characteristics.39 Generally, because the right of confrontation is a trial right, it applies during the guilt or innocence phase of a prosecution, but not to sentencing, as sentencing is not conceived as part of the trial. The narrow exception to the rule is where the Confrontation Clause has been applied to capital cases.40 Hearsay is admitted at sentencing, so long as it is accompanied by some minimal indicia of reliability.41 An example would be the use of a presentence investigation report in a case involving a plea without a trial, where the sentencing court must make its own determination of credibility from the information provided in the report.42 Beyond that, there are only two statutory restrictions on the introduction of hearsay evidence at sentencing, in capital sentencing and in cases where the State is introducing victim impact evidence. In capital sentencing, for example, evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in section 921.141(5) and (6). Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements.43 This rule

39. Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949). 40. Box v. State, 993 So. 2d 135 (Fla. Dist. Ct. App. 5th Dist. 2008); see also, Rodgers v. State, 948 So. 2d 655 (Fla. 2006) (Cantero, J., concurring); State v. Harris, 2009 WL 1871919 (Ct. App. Tenn. 2009); State v. Rodriguez, 738 N.W. 2d 422 (Minn. Ct. App. 2007), affirmed, 754 N.W. 2d 672 (Minn. 2008); Way v. State, 760 So. 2d 903 (Fla. 2000), certiorari denied, 531 U.S. 1155, 121 S. Ct. 1104, 148 L. Ed. 2d 975 (2001); Tompkins v. State, 502 So. 2d 415 (Fla. 1986). 41. Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949). 42. See, for example, Mayes v. State, 604 A. 2d 839 (Del. 1992) and cases cited therein. 43. Sec. 921.141(1), F.S.

applies to the defendant as well as to the State.44 When a defendant challenges the admission of hearsay evidence during the penalty phase of a capital case, moreover, the reviewing court examines whether the defendant had the opportunity to rebut the hearsay, and the fact that the defendant did not or could not rebut this evidence does not make it inadmissible.45 In cases where the State is introducing victim impact evidence, statements of the victim of the crime for which the defendant is being sentenced, the victims parent or guardian if the victim is a minor, the lawful representative of the victim or of the victims parent or guardian if the victim is a minor, or the next of kin of the victim if the victim has died from causes related to the crime are required to be under oath.46 The confrontation clauses of the United States and Florida constitutions, which guarantee the right of an accused to confront and cross-examine witnesses against him or her, are expressly limited to criminal prosecutions, and so do not apply to civil commitment proceedings, including the involuntary commitment of sexually violent predators.47 The Florida courts have held to date that the confrontation clauses, and in particular the testimonial hearsay rule set forth in Crawford v. Washington,48 also do not apply to supervision revocation proceedings, as such proceedings are not the equivalent of a criminal proceeding.49 Sentencing Criteria Sentencing criteria may be divided into two categories: criteria for sentencing defendants whose offenses were committed before October 1, 1983, and criteria for sentencing defendants whose offenses were committed on or after October 1, 1983. The following criteria is used for sentencing all persons who committed crimes before October 1, 1983:

44. Blackwood v. State, 777 So. 2d 399 (Fla. 2000). 45. Bowles v. State, 804 So. 2d 1173, 1184 (Fla. 2001) 46. Sec. 921.143(1), F.S. 47. In re Commitment of Cartwright, 870 So. 2d 152 (Fla. Dist. Ct. App. 2d Dist. 2004). 48. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv. 1077 (2004). 49. Wilcher v. State, 946 So. 2d 114 (Fla. Dist. Ct. App. 5th Dist. 2007) (affirming revocation of defendants probation based upon business record evidence of positive urinalysis for cocaine); Jackson v. State, 931 So. 2d 1062, 1063 (Fla. Dist. Ct. App. 4th Dist. 2006) (probation revocation based on 911 recording); Russell v. State, 920 So. 2d 683 (Fla. Dist. Ct. App. 2d Dist. 2004) (revocation of probation based upon victims hearsay and officers testimony); Peters v. State, 919 So. 2d 624 (Fla. Dist. Ct. App. 1st Dist.), review granted, 924 So. 2d 809 (Fla. 2006) (affirming revocation of community control based upon business record evidence showing defendants positive drug test for amphetamines and methamphetamines).

1. A court can not impose a sentence of imprisonment unless, after considering the nature and circumstances of the crime and the prior criminal record, if any, of the defendant, the court finds that imprisonment is necessary for the protection of the public because a lesser sentence is not commensurate with the seriousness of the defendants crime, or there is a probability that during the period of a suspended sentence or probation the defendant will commit another crime.50 2. The following grounds, while not controlling the discretion of the court, must be accorded weight in favor of withholding a sentence of imprisonment: a. The defendants criminal conduct neither caused nor threatened serious harm.51 b. The defendant did not know and had no reason to know that her or his criminal conduct would cause or threaten serious harm.52 c. The defendant acted under a strong provocation.53 d. There were substantial grounds tending to excuse or justify the defendants criminal conduct, though failing to establish a defense.54 e. The defendant has compensated or will compensate the victim of her or his criminal conduct for the damage or injury that the victim sustained.55 f. The defendant has no history of prior delinquency or criminal activity or had led a law-abiding life for a substantial period of time before the commission of the present crime.56 g. The defendants criminal conduct was the result of circumstances unlikely to recur.57

50. Sec. 921.005(1)(a), F.S. 51. Sec. 921.005(1)(b)1., F.S. 52. Sec. 921.005(1)(b)2., F.S. 53. Sec. 921.005(1)(b)3., F.S. 54. Sec. 921.005(1)(b)4., F.S. 55. Sec. 921.005(1)(b)5., F.S. 56. Sec. 921.005(1)(b)6., F.S. 57. Sec. 921.005(1)(b)7., F.S.

h. The character and attitudes of the defendant indicate that she or he is unlikely to commit another crime.58 i. The defendant is particularly likely to respond affirmatively to noncustodial treatment.59 A court must sentence a defendant to pay a fine unless it finds that the defendant is unable or will be unable to pay the fine and the imposition of a fine will not prevent the defendant from being rehabilitated or from making restitution to the victim of her or his crime.60 A court must sentence a defendant to pay a fine whenever the imposition of a fine is sufficient to punish the defendant and protect the public.61 A court must sentence a defendant to pay a fine in addition to imprisonment or probation if, in the opinion of the court, the defendant has derived a pecuniary gain from her or his crime or the fine is specially adapted to deterrence of the particular crime or to the punishment and rehabilitation of the offender.62 With the rise of structured sentencing schemes, the legislature has promulgated a number of sentencing criteria and principles in the context of noncapital felonies. The present Criminal Punishment Code embodies the following sentencing principles, derived mainly from those of the former sentencing guidelines that went into effect on October 1, 1983: 1. Sentencing is neutral with respect to race, gender, and social and economic status.63 2. The primary purpose of sentencing is to punish the offender. Rehabilitation is a desired goal of the criminal justice system but is subordinate to the goal of punishment.64 3. The penalty imposed is commensurate with the severity of the primary offense and the circumstances surrounding the primary offense.65

58. Sec. 921.005(1)(b)8., F.S. 59. Sec. 921.005(1)(b)8., F.S. 60. Sec. 921.005(2)(a), F.S. 61. Sec. 921.005(2)(b), F.S. 62. Sec. 921.005(2)(c), F.S. 63. Sec. 921.002(1)(a), F.S.; Sec. 921.001(4)(a)1., F.S. 64. Sec. 921.002(1)(b), F.S.; Sec. 921.001(4)(a)2., F.S. 65. Sec. 921.002(1)(c), F.S.; Sec. 921.001(4)(a)3., F.S.

4. The severity of the sentence increases with the length and nature of the offenders prior record.66 5. The sentence imposed by the sentencing judge reflects the length of actual time to be served, shortened only by the application of incentive and meritorious gain-time as provided by law, and may not be shortened if the defendant would consequently serve less than 85 percent of his or her term of imprisonment as provided in section 944.275(4)(b)3. The provisions of chapter 947, relating to parole, shall not apply to persons sentenced under the Criminal Punishment Code.67 Note that, under the former Guidelines, defendants were not required to serve at least 85 percent of their sentences and were eligible for parole.68 6. Departures below the lowest permissible sentence established by the Criminal Punishment Code must be articulated in writing by the trial court judge and made only when circumstances or factors reasonably justify the mitigation of the sentence. The level of proof necessary to establish facts that support a departure from the lowest permissible sentence is a preponderance of the evidence.69 Note that, under the former guidelines, presumptive sentencing was within a range from which downward departures were allowed on the basis of mitigation and upward departures were allowed on the basis of aggravation.70 7. The trial court judge may impose a sentence up to and including the statutory maximum for any offense, including an offense that is before the court due to a violation of probation or community control.71 This was not a feature of the former Guidelines. 8. A sentence may be appealed on the basis that it departs from the Criminal Punishment Code only if the sentence is below the lowest permissible sentence or as enumerated in section 924.06(1).72

66. Sec. 921.002(1)(d), F.S.; Sec. 921.001(4)(a)4., F.S. 67. Sec. 921.002(1)(e), F.S. 68. Sec. 921.001(4)(a)5., F.S. 69. Sec. 921.002(1)(f), F.S. 70. Sec. 921.001(4)(a)6., F.S. 71. Sec. 921.002(1)(g), F.S. 72. Sec. 921.002(1)(h), F.S.

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9. Use of incarcerative sanctions is prioritized toward offenders convicted of serious offenses and certain offenders who have long prior records, in order to maximize the finite capacities of state and local correctional facilities.73 Additional principles of proportionality can be found in the upper limits placed on fines,74 the sentencing aggravators and mitigators,75 and alternative sentencing schemes such as those for juveniles, youthful offenders, and habitualized criminals. Sentencing Factors Considerable attention has been given to the distinction the law has drawn between the elements of a crime and factors that influence a criminal sentence. While elements require either an admission by the defendant or a jury finding beyond a reasonable doubt, sentencing factors may be found by the sentencing court alone. The facts used to calculate the maximum potential sentence to which a defendant is exposed must be based either on (1) findings made by the jury, (2) facts admitted by the defendant, or (3) the defendants prior convictions,76 and the term sentencing factor appropriately describes a circumstance that supports a specific sentence within this authorized range. When a judge inflicts punishment that the jurys verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment and the judge exceeds his or her proper authority.77 Sentencing factors may be generally grouped into aggravation and mitigation, with each of these categories subdivided into four subcategories: forbidden, encouraged, discouraged, or unaddressed. A forbidden factor is one which can never serve as mitigation or aggravation and never be the basis of a departure sentence, such as race or religion. Encouraged factors are often, but not always, taken into account by applicable sentencing rules and statutes. The statutory mitigators for the Criminal Punishment Code set forth in section 921.0026 are examples of encouraged factors that are taken into account. Courts may occasionally depart on the basis of a discouraged factor, but only if that factor is present to an extraordinary degree or in some way that makes the case different from the ordinary case where the factor is present. An example of a discouraged factor would be the use of extraordinary restitution as a basis for a downward departure sentence. An unaddressed factor is one which does not appear in statutory law or prior

73. Sec. 921.002(1)(i), F.S.; Sec. 921.001(4)(a)7., F.S. 74. Sec. 775.083(1), F.S. 75. See, Sec. 921.0016, F.S. (Guidelines); Sec. 921.0026, F.S. (Criminal Punishment Code). 76. Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Behl v. State, 898 So. 2d 217, 221 (Fla. Dist. Ct. App. 2d Dist. 2005). 77. Blakely v. Washington, 542 U.S. 296, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2004).

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court rulings, is unique to the circumstances of the defendant who is to be sentenced, and is a matter of first impression for the court. In passing sentence on a defendant, the sentencing court is not allowed to consider anything that does not bear a rational relationship to sentencing or does not further a legitimate government interest. Examples of such prohibited factors which cannot be considered include the following: Race, gender, social and economic status. Consistent with the provision of sections 921.001(4)(a)1. and 921.002(1)(a), it is unlawful to consider race, gender, or social and economic status in sentencing.78 Purposeful consideration of race in sentencing would also be in violation of the equal protection clauses of the state and federal constitutions.79 National origin. While reference to national origin during sentencing is permissible, it cannot be a basis for determining the sentence.80 Religion. Purposeful consideration of religion in sentencing would violate the free exercise and free speech clauses of the state and federal constitutions.81 Lifestyle. A defendants lifestyle is an impermissible consideration an increased sentence.82 Acquitted conduct. It is a violation of due process for the court to rely on conduct of which the defendant has actually been acquitted when imposing a sentence.83 Similarly,

78. Sec. 921.001(4)(a)1., F.S.; Sec. 921.002(1)(a), F.S. 79. See, McCleskey v. State, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987); Foster v. State, 614 So. 2d 455 (Fla. 1992). 80. Nawaz v. State, 28 So. 3d 122, 2010 WL 325915 (Fla. Dist. Ct. App. 1st Dist. 2010). 81. Santisteban v. State, 72 So. 3d 187 (Fla. Dist. Ct. App. 4th Dist. 2011) (judge relied upon religious consideration when determining the extent of downward sentence departure); see also, United States v. Bakker, 925 F. 2d 728, 740 (4th Cir. 1991) (holding that judge violated due process by stating at sentencing that those of us who do have a religion are ridiculed as being saps from money-grubbing preachers or priests); also Singleton v. State, 783 So. 2d 970, 979 (Fla.2001) (holding that biblical references should not be used at sentencing, but any error in the trial judges lone biblical reference in penalty phase of trial was harmless where jury was not exposed to the reference and the courts order stated that it did not consider any aggravators other than the two set forth in the order). 82. Williams v. State, 586 So. 2d 1081 (Fla. Dist. Ct. App. 1st Dist. 1991) (street person); Vega v. State, 498 So. 2d 1294 (Fla. Dist. Ct. App. 5th Dist. 1986) (style of life). 83. See, Townsend v. Burke, 334 U.S. 736, 740-41, 92 L.Ed. 1690, 68 S. Ct. 1252 (1948); Evans v. State, 816 So. 2d 742, 744 (Fla. Dist. Ct. App. 4th Dist. 2002); Pavlac v. State, 944 So. 2d 1064 (Fla. Dist. Ct. App. 4th Dist. 2006); Doty v. State, 884 So. 2d 547, 549 (Fla. Dist. Ct. App. 4th Dist. 2004); Epprecht v. State, 488 So. 2d 129, 131 (Fla. Dist. Ct.

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unsubstantiated allegations of misconduct may not be considered by a trial judge at a criminal sentencing hearing and to do so violates fundamental due process.84 Speculation that the defendant has committed other crimes. Speculation that the defendant probably committed other crimes that the court and others do not know about, is an impermissible sentencing consideration.85 Pending charges. A court may not consider pending charges not before the court for sentencing in imposing sentence for a charge, or charges, before the court.86 A trial court can, however, consider a defendants prior arrests not leading to convictions for purposes of sentencing so long as the court recognizes that these arrests are not convictions or findings of guilt, and the defendant is given an opportunity to explain or offer evidence on the issue of his or her prior arrests.87 Maintaining innocence. Generally speaking, a trial court may not hold a defendants protestation of innocence against that defendant in either the guilt or penalty phase of a trial or at sentencing.88 A criminal defendant has the right to maintain his or her innocence and have a trial
App. 3d Dist. 1986) (reversal because trial judge made several statements indicating he believed defendant had committed many other offenses and complimenting defense attorney on his skill in obtaining acquittal for defendant in another case in which judge believed defendant was guilty). 84. Reese v. State, 639 So. 2d 1067, 1068 (Fla. Dist. Ct. App. 4th Dist. 1994) (victims testimony regarding defendants violation of another domestic violence injunction obtained by a different woman was type of allegation that court should not have permitted in evidence); see also, Doty v. State, 884 So. 2d 547 (Fla. Dist. Ct. App. 4th Dist. 2004). 85. Epprecht v. State, 488 So. 2d 129 (Fla. Dist. Ct. App. 3d Dist. 1986); see, United States v. Cavazos, 530 F. 2d 4 (5th Cir.1976); United States v. Tobias, 662 F. 2d 381, 388 (5th Cir. 1981), cert. denied, 457 U.S. 1108, 102 S. Ct. 2908, 73 L. Ed. 2d 1317 (1982). 86. Seays v. State, 789 So. 2d 1209 (Fla. Dist. Ct. App. 4th Dist. 2001) (consideration of pending attempted murder charge violated defendants due process rights); Reese v. State, 639 So. 2d 1067 (Fla. Dist. Ct. App. 4th Dist. 1994) (consideration of unsubstantiated allegations of misconduct at sentencing violate fundamental due process); State v. Potts, 526 So. 2d 63 (Fla. 1988) (State through criminal process may not penalize someone merely for status of being indicted or otherwise accused of a crime); Epprecht v. State, 488 So. 2d 129 (Fla. Dist. Ct. App. 3d Dist. 1986) (due process prohibits court from considering charges of which accused has been acquitted in passing sentence), citing Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948). 87. Whitehead v. State, 21 So. 3d 157 (Fla. Dist. Ct. App. 4th Dist. 2009) (consideration of pending charge in another county for unlawful sex acts with a minor relevant to sentencing for conduct involving minors); Jansson v. State, 399 So. 2d 1061 (Fla. Dist. Ct. App. 4th Dist. 1981) (consideration of PSI report that included arrests for which no conviction resulted). 88. See, Hannum v. State, 13 So. 3d 132 (Fla. Dist. Ct. App. 2d Dist. 2009); Johnson v. State, 948 So. 2d 1014 (Fla. Dist. Ct. App. 3d Dist. 2007) (during sentencing trial court improperly considered defendants lack of remorse and/or culpability when defendant requested downward departure sentence as youthful offender); Soto v. State, 874 So. 2d 1215 (Fla. Dist. Ct. App. 3d Dist. 2004); K.N.M. v. State, 793 So. 2d 1195, 1198 (Fla. Dist. Ct. App. 5th Dist. 2001) (defendant has constitutional right not to penalized during sentencing for maintaining innocence); A.S. v. State, 667 So.

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by jury.89 The fact that a defendant has pled not guilty cannot be used against him or her during any stage of the proceedings because due process guarantees an individual the right to maintain innocence even when faced with evidence of overwhelming guilt. A trial court violates due process by using a protestation of innocence against a defendant. This applies to the penalty phase as well as to the guilt phase of a capital case under article I, section 9 of the Florida Constitution. Therefore, entering a plea of not guilty does not preclude consideration by the sentencer of matters relevant to mitigation.90 Juveniles also have a constitutional right not to be unfairly penalized for the assertion of innocence and demand for trial; this is so even if the juveniles desire to maintain his or her innocence was not the sole factor in the courts decision making process.91 Failure to confess. The protection provided by the fifth amendment to the United States Constitution guarantees an accused the right against self-incrimination. As with the prohibition of considering a defendants lack of remorse, a sentencing court may not consider a defendants failure to confess or otherwise admit guilt in determining the defendants sentence.92 This does not mean, however, that a defendant cannot be compelled to allocute the nature and extent of his or her involvement in a criminal offense as part of a plea agreement with the State. The sentencing court may also consider the defendants silence or lack of cooperation in such an investigation as evidence of the defendants character, and a lack of mitigation when the defendant asks the court to mitigate a sentence. The fact that the defendant receives a harsher sentence than he or she might have received had the defendant cooperated or not exercised the right to remain silent does not implicate the right against self-incrimination where the defendant is not affirmatively punished for the act of remaining silent.93 Lack of remorse. It is constitutionally impermissible for a sentencing court to consider the fact that a defendant fails to show remorse, exercised his or her right not to testify at trial, refused to recant his or her trial testimony, continues to maintain his or her innocence, or is

2d 994 (Fla. Dist Ct. App. 3d Dist. 1996). 89. Art. I, 22, Fla. Const.; see, A.S. v. State, 667 So. 2d 994, 996 (Fla. Dist. Ct. App. 3d Dist. 1996) (quoting Holton v. State, 573 So. 2d 284, 292 (Fla. 1990), cert. denied, 500 U.S. 960, 111 S. Ct. 2275, 114 L. Ed. 2d 726 (1991)). 90. Holton v. State, 573 So. 2d 284 (Fla. 1990). 91. T.R. v. State, 26 So. 3d 80 (Fla. Dist. Ct. App. 3d Dist. 2010). 92. Gilchrist v. State, 938 So. 2d 654 (Fla. Dist. Ct. App. 4th Dist. 2006); Soto v. State, 874 So. 2d 1215 (Fla. Dist. Ct. App. 3d Dist. 2004); K.N.M. v. State, 793 So. 2d 1195, 1198 (Fla. Dist. Ct. App. 5th Dist. 2001). 93. German v. State, 27 So. 3d 130 (Fla. Dist. Ct. App. 4th Dist. 2010); State v. Spencer, 31 Kan. App. 2d 681, 70 P. 3d 1226 (Kan. App. 2003); Lee v. State, 36 P. 3d 1133 (Wyo. 2001); New Hampshire v. Burgess, 156 N.H. 746, 943 A. 2d 727, 739 (2008); Ohio v. Hoying, No. 04-CA-71, 2005 WL 678989 (Ohio Ct. App.2d Dist. 2005); Wisconsin v. Arrington, 317 Wis. 2d 730, 2009 WL 749561 (Wis. Ct. App. 2009).

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unwilling to admit guilt.94 Although remorse and an admission of guilt may be grounds for mitigation of sentence, the opposite is not true.95 Reliance on these impermissible factors violates the defendants due process rights.96 A statutory exception exists in section 921.0026(2)(j), F.S., which allows a sentencing court to grant a downward departure sentence to a defendant on the grounds that the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.97 Stated otherwise, although remorse and an admission of guilt may be grounds for mitigation of sentence in such situations, the opposite is not true.98 Note that in capital cases where all aggravators permissible are set forth by statute, the use of lack of remorse as evidence in aggravation in the penalty phase is prohibited.99 The Florida Supreme Court has, however, permitted the introduction of lack of remorse to rebut proposed mitigation, such as remorse and rehabilitation.100 Introduction of evidence lack of remorse is also allowed when a defense mitigation witness opens the door to such a line of questioning.101 It is further permissible for a sentencing court in a non-capital case to directly consider the defendants lack of remorse as an aggravator in sentencing where the defendant admits the accusations against him or her and does not continue to maintain his or her innocence in the face of those accusations.102 Note in this regard, however, that there is a conflict between the First District, which holds that a defendants lack of contrition or remorse is a constitutionally impermissible consideration in imposing a sentence under all circumstances,103 and the Fourth and Fifth Districts, which hold that it is proper for a court to consider lack of

94. Ritter v. State, 885 So. 2d 413 (Fla. Dist. Ct. App. 1st Dist. 2004); see, e.g., Lyons v. State, 730 So. 2d 833 (Fla. Dist. Ct. App. 4th Dist. 1999); Peters v. State, 485 So. 2d 30 (Fla. Dist. Ct. App. 3d Dist. 1986); Hubler v. State, 458 So. 2d 350 (Fla. Dist. Ct. App. 1st Dist. 1984). 95. See, K.N.M. v. State, 793 So. 2d 1195 (Fla. Dist. Ct. App. 5th Dist. 2001). 96. See, Holton v. State, 573 So. 2d 284 (Fla. 1990); Soto v. State, 874 So. 2d 1215 (Fla. Dist. Ct. App. 3d Dist. 2004); K.N.M. v. State, 793 So. 2d 1195 (Fla. Dist. Ct. App. 5th Dist. 2001). 97. Sec. 921.0026(2)(j), F.S. 98. See, K.N.M. v. State, 793 So. 2d 1195 (Fla. Dist. Ct. App. 5th DCA 2001). 99. Tanzi v. State, 964 So. 2d 106 (Fla. 2007); Atwater v. State, 626 So. 2d 1325 (Fla. 1993); Pope v. State, 441 So. 2d 1073 (Fla. 1983). 100. Tanzi v. State, 964 So. 2d 106 (Fla. 2007); Singleton v. State, 783 So. 2d 970 (Fla. 2001); Derrick v. State, 581 So. 2d 31 (Fla. 1991). 101. Tanzi v. State, 964 So. 2d 106 (Fla. 2007). 102. Peake v. State, 490 So. 2d 1325 (Fla. Dist. Ct. App. 1st Dist. 1986). 103. Jackson v. State, 39 So. 3d 427 (Fla. Dist. Ct. App. 1st Dist. 2010); K.Y.L. v. State, 685 So. 2d 1380 (Fla. Dist. Ct. App. 1st Dist. 1997), disapproved on other grounds, State v. J.P.C., 731 So. 2d 1255 (Fla. 1999).

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contrition or remorse in cases where the defendants do not contest their commission of criminal acts but fail to exhibit remorse for them.104 Lying. A trial judges opinion as to whether a defendant testified falsely should not enter into a decision to impose a harsher sentence unless the court is determining the sentence after a separate perjury conviction.105 It is constitutionally impermissible as a denial of due process for a trial judge to consider and give weight to such impermissible factors and on that basis impose any sentence, not just a sentence that is more harsh than that sought by the State, even if the sentence imposed is within the range allowed by the applicable guidelines or the statutory maximum under the Criminal Punishment Code.106 A resentencing is required even if such was but one of several factors considered by the court in imposing sentence.107 The same rule applies to a courts rejection of a defendants request for a downward departure sentence, or sentencing under an alternative scheme such as that for youthful offenders.108 This rule also applies to juvenile proceedings.109 Costs, Assessments, Surcharges, and Fines The civil costs of prosecution incurred in establishing guilt, along with punitive fines, surcharges and other monetary and non-monetary assessments, are imposed during sentencing for charges that are proven or admitted to. They are not imposed for a charge that is disproved or withdrawn. Trial courts lack the authority to impose costs and fines in criminal cases unless such imposition is specifically authorized by statute and the statutory authority is cited in the defendants written disposition order.110

104. Lincoln v. State, 978 So. 2d 246 (Fla. Dist. Ct. App. 5th Dist. 2008); St. Val v. Florida, 958 So. 2d 1146 (Fla. Dist. Ct. App. 4th Dist. 2007). 105. Carswell v. State, 75 So. 3d 419 (Fla. Dist. Ct. App. 1st Dist. 2011); Robinson v. State, 637 So. 2d 998 (Fla. Dist. Ct. App. 1st Dist. 1994). 106. Ritter v. State, 885 So. 2d 413 (Fla. Dist. Ct. App. 1st Dist. 2004); Soto v. State, 874 So. 2d 1215 (Fla. Dist. Ct. App. 3d Dist. 2004); Lyons v. State, 730 So. 2d 833 (Fla. Dist. Ct. App. 4th Dist. 1999); Peters v. State, 485 So. 2d 30 (Fla. Dist. Ct. App. 3d Dist. 1986); Hubler v. State, 458 So. 2d 350 (Fla. Dist. Ct. App. 1st Dist. 1984); see also, Holton v. State, 573 So. 2d 284 (Fla. 1990). 107. Johnson v. State, 948 So. 2d 1014 (Fla. Dist. Ct. App. 3d Dist. 2007). 108. Johnson v. State, 948 So. 2d 1014 (Fla. Dist. Ct. App. 3d Dist. 2007). 109. K.N.M. v. State, 793 So. 2d 1195 (Fla. Dist. Ct. App. 5th Dist. 2001); A.S. v. State, 667 So. 2d 994 (Fla. Dist. Ct. App. 3d Dist. 1996). 110. V.D. v. State, 922 So. 2d 1037 (Fla. Dist. Ct. App. 5th Dist. 2006); Lawley v. State, 680 So. 2d 472 (Fla. Dist. Ct. App. 1st Dist. 1996).

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Note that, in the context of offenses involving construction contracts, the statute authorizing imposition of a fine based on pecuniary gain derived from the offense requires proof that there has been some profit. This does not require proof that the defendant personally received any gain, so long as there is proof that the defendant directed some gain to a third person or entity.111 Before a court can impose an order on costs, it must have competent evidence of those costs. The burden of demonstrating the amount of costs incurred is on the state attorney.112 In the course of sentencing, the trial court may assess costs against the defendant even if the defendant is indigent. As a general proposition, the State must, however, provide adequate notice of such assessment to the defendant with full opportunity to object to the assessment of those costs. In addition, any enforcement of the collection of those costs must occur only after a judicial finding that the indigent defendant has the ability to pay.113 A trial court is not, however, required to determine a convicted criminal defendants ability to pay statutorily mandated costs prior to assessing costs unless the applicable statute specifically requires such a determination. It is only when the state seeks to enforce the collection of costs that a court must determine if the defendant has the ability to pay.114 The need to pay costs cannot form the basis for a downward departure.115 The court may impose only those costs against the defendant as are statutorily authorized. A sentencing court may not, for example, impose the costs of competency evaluations.116

111. Quinn v. State, 662 So. 2d 947 (Fla. Dist. Ct. App. 5th Dist. 1995), clarified, rehearing denied. 112. See, Phillips v. State, 942 So. 2d 1042 (Fla. Dist. Ct. App. 2d Dist. 2006). 113. Jenkins v. State, 444 So. 2d 947 (Fla. 1984). 114. Cook v. State, 896 So. 2d 870 (Fla. Dist. Ct. App. 2d Dist. 2005); State v. Beasley, 580 So. 2d 139 (Fla. 1991); Stallworth v. State, 640 So. 2d 218 (Fla. Dist. Ct. App. 2d Dist. 1994). 115. State v. Tyrrell, 807 So. 2d 122 (Fla. Dist. Ct. App. 5th Dist. 2002). 116. Sec. 916.115, F.S.; see, Madison v. State, 58 So. 3d 384 (Fla. Dist. Ct. App. 5th Dist. 2011); W.Z. v. State, 35 So.3d 51 (Fla. Dist. Ct. App. 5th Dist. 2010).

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II. CRIMINAL PUNISHMENT CODE Purpose and Construction The Criminal Punishment Code is now Floridas primary sentencing policy. The purpose of the 1998 Criminal Punishment Code and the principles it embodies are as follows: 1. Sentencing is neutral with respect to race, gender, and social and economic status.117 2. The primary purpose of sentencing is to punish the offender. Rehabilitation is a desired goal of the criminal justice system but is subordinate to the goal of punishment.118 3. The penalty imposed is commensurate with the severity of the primary offense and the circumstances surrounding the primary offense.119 4. The severity of the sentence increases with the length and nature of the offenders prior record.120 5. The sentence imposed by the sentencing judge reflects the length of actual time to be served, shortened only by the application of incentive and meritorious gain-time as provided by law, and may not be shortened if the defendant would consequently serve less than 85 per cent of his or her term of punishment as provided in section 944.275(4)(b)3. The provisions of chapter 947, relating to parole, do not apply to persons sentenced under the Criminal Punishment Code.121 6. Departures below the lowest permissible sentence established by the Criminal Punishment Code must be articulated in writing by the trial court judge and made only when circumstances or factors reasonably justify the mitigation of the sentence. The level of proof necessary to establish facts that support a departure from the lowest permissible sentence is a preponderance of the evidence.122

117. Sec. 921.002(1)(a), F.S. 118. Sec. 921.002(1)(b), F.S. 119. Sec. 921.002(1)(c), F.S. 120. Sec. 921.002(1)(d), F.S. 121. Sec. 921.002(1)(e), F.S. 122. Sec. 921.002(1)(f), F.S.

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7. The trial court judge may impose a sentence up to and including the statutory maximum for any offense, including an offense that is before the court due to a violation of probation or community control.123 8. A sentence may be appealed on the basis that it departs from the Criminal Punishment Code only if the sentence is below the lowest permissible sentence or as enumerated in section 924.06(1).124 9. Use of incarcerative sanctions is prioritized toward offenders who have long prior records, in order to maximize the finite capabilities of state and local correctional facilities.125 The Apprendi and Blakely Cases On June 26, 2000, the United States Supreme Court in its review of the case of Charles C. Apprendi against the State of New Jersey ruled that, consistent with the Sixth Amendment, any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.126 In a subsequent review of the case of Ralph Howard Blakely against the State of Washington, the Court clarified Apprendi further by ruling that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant, that a defendant can waive his Apprendi rights, and that when a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial fact finding.127 In other words, the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he or she may impose without any additional findings. When a judge inflicts punishment that the jurys verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, and the judge exceeds his or her proper authority.128 The application of the principles of Apprendi to guidelines

123. Sec. 921.002(1)(g), F.S. 124. Sec. 921.002(1)(h), F.S. 125. Sec. 921.002(1)(i), F.S. 126. Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). 127. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). 128. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); see, Behl v. State, 898 So. 2d 217 (Fla. 2005).

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sentencing schemes was reaffirmed by the Court in United States v. Booker,129 which held that the imposition of a sentence under the federal sentencing guidelines based on additional facts that the sentencing judge found by a preponderance of the evidence violated the Sixth Amendment. Blakely and Booker thus hold that under a guidelines sentencing scheme which restricts judicial discretion in imposing sentences, the factors used to calculate the maximum guidelines sentence to which a defendant must be exposed must be based either on (1) findings made by the jury, (2) facts admitted by the defendant in a guilty plea, at sentencing130, or in a stipulation at trial,131 or judicial findings to which the defendant assented132 or (3) the defendants prior convictions. The effect of Apprendi and Blakely on sentencing in Florida is that upward departures beyond the presumptive range under the guidelines, and beyond the relevant statutory maximum under the Criminal Punishment Code, are impermissible unless the fact on which the departure is based is a prior conviction, was submitted to a jury and proven beyond a reasonable doubt, was stipulated to by the defendant, or was determined by judicial fact finding agreed to by the defendant. A defendants pre-trial confession to law enforcement officers cannot serve as such an admission,133 nor can the defendants testimony at trial.134 By waiving the right to a jury trial, and opting for a bench trial, a defendant waives the right to have those facts determined by a jury. These facts must be found by the judge in a bench trial, but the failure of the judge in a bench trial to make an express finding of such facts is harmless, however, where such a finding is inherent in the sentence imposed.135 Apprendi is, however, inapplicable to a number of situations. Apprendi does not apply to Floridas capital sentencing scheme,136 or retroactively to sentences that were final prior to its issuance because the State has an interest in the finality of convictions and the rule of Apprendi is not of sufficient magnitude as to require retroactive application that would disturb the law of the case as to sentencing where the jury has been discharged and it is now impossible to submit

129. United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). 130. See, United States v. Collier, 413 F. 3d 858, 860-61 (8th Cir. 2005). 131. See, United States v. Champion, 234 F. 3d 106, 110 (2d Cir. 2000). 132. See, Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005). 133. Galindez v. State, 955 So. 2d 517 (Fla. 2007). 134. Donohoe v. State, 979 So. 2d 1058 (Fla. Dist. Ct. App. 4th Dist. 2008). 135. Jacques v. State, 1 So. 3d 1172 (Fla. Dist. Ct. App. 4th Dist. 2009). 136. Spencer v. State, 842 So. 2d 52 (Fla. 2003).

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matters to the jury.137 A conviction is final after appellate proceedings have concluded and mandate issues.138 Regardless of whether a defendants conviction and sentence were final before Apprendi and Blakely issued, however, where a defendants resentencing is not final when Apprendi and Blakely issued, the rules established in these cases apply to that de novo proceeding.139 The sentencing enhancement scheme found in the Prison Releasee Reoffender (PRR) Punishment Act, section 775.082, F.S., is also unaffected by Apprendi.140 Consistent with Apprendis language excluding recidivism from its holding, Florida courts have uniformly held that an habitual offender sentence is not subject to an Apprendi challenge.141 There is nothing in Blakely that casts doubt on the numerous Florida decisions holding that Apprendi does not apply to a determination that a defendant has previous felony convictions that qualify him or her for a habitual offender sentence, and Blakely does not require that a jury make factual determinations concerning a defendants qualification for habitual offender sentencing.142 Consecutive

137. See, Hughes v. State, 901 So. 2d 837 (Fla. 2005); see also, Modest v. State, 892 So. 2d 566 (Fla. Dist. Ct. App. 3d Dist. 2005) (the decisions in Apprendi and Blakely are also not retroactive in those situations where they might otherwise apply). 138. See, Smith v. State, 598 So. 2d 1063 (Fla. 1992). 139. State v. Fleming, 61 So. 3d 399 (Fla. 2011). 140. See, Robinson v. State, 793 So. 2d 891, 893 (Fla. 2001) (holding that Floridas PRR statute is not invalidated by Apprendi: The [PRR] Act does not increase the maximum statutory penalty. Here the sentencing courts discretion in selecting a penalty within the statutory range is simply limited. Accordingly, proof to the jury of a defendants release which subjects a defendant to a sentence under the Act is not required.). 141. Gudinas v. Florida, 879 So. 2d 616 (Fla. 2004) (habitual violent felony offender sentences do not run afoul of Apprendi); Gordon v. State, 787 So. 2d 892 (Fla. Dist. Ct. App. 4th Dist. 2001); Walker v. State, 790 So. 2d 1200 (Fla. Dist. Ct. App. 5th Dist. 2001); Jacobs v. State, 785 So. 2d 713 (Fla. Dist. Ct. App. 4th Dist. 2001); Morant v. State, 785 So. 2d 665 (Fla. Dist. Ct. App. 3d Dist. 2001); Simmons v. State, 782 So. 2d 1000 (Fla. Dist. Ct. App. 4th Dist. 2001); Gray v. State, 780 So. 2d 1042 (Fla. Dist. Ct. App. 4th Dist. 2001); Wright v. State, 780 So. 2d 216 (Fla. Dist. Ct. App. 5th Dist. 2001); see also, Eutsey v. State, 383 So. 2d 219 (Fla. 1980) (rejecting the notion that a defendant was entitled to have a jury determine, beyond a reasonable doubt, the existence of the predicates necessary for imposition of a habitual felony offender sentence). 142. Tillman v. State, 900 So. 2d 633 (Fla. Dist. Ct. App. 2d Dist. 2005); Matthews v. State, 891 So. 2d 596 (Fla. Dist. Ct. App. 3d Dist. 2004); Frumenti v. State, 885 So. 2d 924 (Fla. Dist. Ct. App. 5th Dist. 2004); McBride v. State, 884 So. 2d 476 (Fla. Dist. Ct. App. 4th Dist. 2004); Fyler v. State, 852 So. 2d 442 (Fla. Dist. Ct. App. 5th Dist. 2003), review denied, 860 So. 2d 977 (Fla. 2003); Grant v. State, 815 So. 2d 667, 668 n. 3 (Fla. Dist. Ct. App. 2d Dist. 2002); Jones v. State, 791 So. 2d 580 (Fla. Dist. Ct. App. 1st Dist. 2001); Saldo v. State, 789 So. 2d 1150 (Fla. Dist. Ct. App. 3d Dist. 2001); Gordon v. State, 787 So. 2d 892 (Fla. Dist. Ct. App. 4th Dist. 2001).

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sentencing, in which each of the individual sentences are not above the relevant statutory maximums, does not give rise to an Apprendi claim.143 Victim Injury Points Victim injury means the physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which a defendant is convicted and which is pending before the court at the time of the primary offense.144 Victim injury is scored for physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing. Misdemeanor convictions are properly used as additional offenses in the same manner as any felony to score victim injury points.145 Victim injury points are assessed in the sound discretion of the trial court,146 and will withstand review if there is evidence in the record to support the courts finding in this regard.147 Victim injury points are added to a scoresheet to increase the sentencing minimums within a felony level. By adding victim injury points, a longer period of incarceration can be expected, because the lowest permissible sentence is elevated. To ensure that the seriousness of a crime is recognized, the legislature has required that victim injury points be added to the Criminal Punishment Code scoresheet of a defendant even where injury to or death of the victim is factored into the offense level, and even where injury or death is an element of the crime before the court for sentencing.148 All that is required is a causal nexus between the offense and the victims injury or death.149 Victim injury points may not be assessed where the charging instrument does not accuse the defendant of a crime against the victims person.150 Where the victim injury which is the basis for the assessment of sentencing points is not an element or the

143. Hall v. State, 823 So. 2d 757 (Fla. 2002), citing United States v. White, 240 F.3d 127, 135 (2nd Cir. 2001) (holding that the district courts use of section 5G1.2(d) [of the United States Sentencing Guidelines to sentence defendant consecutively] did not result in a sentence on any one count above the maximum available on that count . . . and so did not violate Apprendi); People v. Wagener, 196 Ill. 2d 269, 752 N.E.2d 430, 441, 256 Ill. Dec. 550 (Ill.), cert. denied, 534 U.S. 1011, 122 S. Ct. 498, 151 L. Ed. 2d 408 (2001) (holding Apprendi concerns are not implicated by consecutive sentencing). 144. Sec. 921.0021(7), F.S.; Fla. R. Crim. P. 3.704(d)(9). 145. Fudge v. State, 791 So. 2d 1186 (Fla. Dist. Ct. App. 5th Dist. 2001). 146. Kelly v. State, 701 So. 2d 1253 (Fla. Dist. Ct. App. 5th Dist. 1997). 147. Hall v. State, 598 So. 2d 230 (Fla. Dist. Ct. App. 2d Dist. 1992). 148. See, Sims v. State, 869 So. 2d 45 (Fla. Dist. Ct. App. 5th Dist. 2004). 149. See, Rodriguez v. State, 684 So. 2d 864 (Fla. Dist. Ct. App. 2d Dist. 1996). 150. See, Delgado v. State, 948 So. 2d 883 (Fla. Dist Ct. App. 3d Dist. 2007).

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functional equivalent of an element of the offense and thus not part of the essential facts constituting the offense charged, the victim injury need not be alleged in the information.151 Stated otherwise, victim injury does not have to be an element of one of the offenses for which the defendant is convicted for victim injury points to be assessed. There does, however, have to be a nexus between the commission of the offense and the injury of the victim for the points to be properly assessed. Victim injury points may not be assessed where the cause of the victims death preceded the underlying offense.152 Where, for example, the defendant strikes a pedestrian with his or her motor vehicle and then flees the scene, and the defendant is subsequently charged with misdemeanor reckless driving and felony leaving the scene of a crash with injury, victim injury points may be assessed for the reckless driving if that offense appears on the same scoresheet as the leaving the scene of a crash offense. Victim injury points may not be assessed if the only offense on the scoresheet is the leaving the scene of a crash offense and there is no causal nexus to victim injury. If, however, the defendant caused victim injury in the course of leaving the scene of the crash, e.g., by dragging the victim with or her motor vehicle or causing the victim to fall or be propelled onto the roadway where the victim is injured by another motor vehicle, victim injury points may be assessed.153 It is apparent that the term victim refers to a person other than the defendant when it comes to the assessment of victim injury points. Self-infliction of injury is not criminal in and of itself, and so the assessment of injury points against a defendant who injures only himself or herself in the perpetration of an offense, in the absence of a statutory provision providing otherwise, would appear to be without logical or legal foundation. It would also appear to be contrary to the basic notions of criminal punishment that victims are not punished for being injured and that a criminal defendant cannot be his or her own victim.154 An example of a situation of this kind in which victim injury points could not be assessed, causal nexus notwithstanding, would be where a convicted felon accidentally shoots himself or herself while
151. Rogers v. State, 963 So. 2d 328 (Fla. Dist. Ct. App. 2d Dist. 2007); but see Delgado v. State, 948 So. 2d 883, 884 (Fla. Dist. Ct. App. 3d Dist. 2007) (holding that assessment of victim injury points was improper because the information did not allege the factual basis for the victim injury points). 152. Sims v. State, 998 So. 2d 494 (Fla. 2008). 153. Sec. 921.0021(7)(e), F.S.; see, Sims v. State, 869 So. 2d 45 (Fla. Dist. Ct. App. 5th Dist. 2004) (victim dragged under defendants vehicle as defendant fled scene of crash); May v. State, 74 So. 2d 459 (Fla. Dist. Ct. App. 4th Dist. 1999) (while trying to dislodge body of pedestrian he had hit, defendant swerved from side to side, throwing victims body into middle of street where victim was struck by another car); Rodriguez v. State, 684 So. 2d 864 (Fla. Dist. Ct. App. 2d Dist. 1996) (no causal connection between leaving the scene and victim injury); Geary v. State, 675 So. 2d 625 (Fla. Dist. Ct. App. 2d Dist.), review denied, 680 So. 2d 422 (Fla. 1996) (same); Longshore v. State, 655 So. 2d 1139 (Fla. Dist. Ct. App. 5th Dist. 19950 (same). 154. See, Ashley v. State, 701 So. 2d 338 (Fla. 1997) (at common law, while third party could be held criminally liable for causing injury or death to fetus, pregnant woman could not be); see also, State v. Carey, 76 Conn. 342, 56 A. 632, 636 (Conn. 1904) (courts differentiate between those actions taken by a third party: ordinarily, a man may injure his own body by his own hand or the hand of an agent without himself violating the criminal law).

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physically taking possession of a firearm and is subsequently charged with felonious possession of a firearm. Victim injury must be scored for each victim physically injured and for each offense resulting in physical injury whether there are one or more victims.155 The trial court is required to assess victim injury points for each offense, even though the offense involves a single victim,156 or occurred during the same transaction or episode,157 but victim injury points may not be assessed for each offense for which the defendant is convicted where only one injury occurs.158 This does not mean that victim injury points may be assessed for each discreet injury inflicted by the defendant, regardless of the number of offenses before the court for sentencing, and so a defendant charged with aggravated battery with a firearm for shooting the victim multiple times cannot be assessed separate victim injury points for each of the gunshot wounds suffered by the victim.159 Where the defendant is charged as a principal, victim injury points may be assessed for multiple perpetrators.160 Multiple assessments of the same level of victim injury may be scored by multiplying the appropriate level of injury by the number of counts scoreable. The trial judge may not assess victim injury or death points for a crime the jury has acquitted the defendant of, in the absence of a necessary conclusion of the jury as to the extent of injury.161 Absent a necessary conclusion of the jury as to victim injury, victim injury points assessed by the judge may not be used to increase the defendants sentence beyond the relevant statutory maximum, unless the defendant waives his or her Apprendi rights and agrees to judicial fact finding.162 There is also

155. State v. Williams, 854 So. 2d 215 (Fla. Dist. Ct. App. 1st Dist. 2003) (victim injury points should be assessed for each injury, even though the offenses involve a single victim); Jupiter v. State, 833 So. 2d 169 (Fla. Dist. Ct. App. 1st Dist. 2002) (scoring for distinct injuries sustained by a single victim as the result of separate offenses). 156. See, Jupiter v. State, 833 So. 2d 169 (Fla. Dist. Ct. App. 1st Dist. 2002). 157. See, Lowe v. State, 742 So. 2d 350 (Fla. Dist. Ct. App. 5th Dist. 1999). 158. Sailor v. State, 877 So. 2d 738 (Fla. Dist. Ct. App. 1st Dist. 2004). 159. Cooper v. State, 919 So. 2d 516 (Fla. Dist. Ct. App. 1st Dist. 2005). 160. See, Newman v. State, 782 So. 2d 462 (Fla. Dist. Ct. App. 2d Dist. 2001). 161. Key v. State, 779 So. 2d 525 (Fla. Dist. Ct. App. 2d Dist. 2000), rev. den. 794 So. 2d 605 (Fla. 2001) (error to assess 120 victim injury points for childs death where defendant charged with first-degree murder and aggravated child abuse only convicted of misdemeanor battery and child abuse), after remand, Key v. State, 837 So. 2d 535 (Fla. Dist. Ct. App. 2d Dist. 2003) (jurys acquittal of aggravated child abuse and conviction for child abuse necessarily precludes finding of great bodily harm and defendant cannot be assessed 40 victim injury points for great bodily harm). 162. Arrowood v. State, 843 So. 2d 940, 941 (Fla. Dist. Ct. App. 1st Dist. 2003); Lopez v. State, 865 So. 2d 654 (Fla. Dist. Ct. App. 1st Dist. 2004).

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some support for the proposition that victim injury points may not be assessed, in any event, absent a jury finding or a waiver of Apprendi rights.163 Where alternative theories of the offense are presented to the jury, a general verdict is insufficient to support a finding that allows enhancement.164 A jurys conviction can, in certain situations, represent a sufficient jury finding to authorize a death/injury points sentence enhancement beyond the statutory maximum without that issue being explicitly submitted to the jury and found by the jury to have been proven beyond a reasonable doubt before the trial court can assess those points.165 The trial court may also impose such an enhancement beyond the statutory maximum where the defendant does not go to trial but enters a plea and admits the facts as presented to the court at the sentencing hearing, Apprendi notwithstanding.166 Note that there is currently a conflict between the First and Second District Courts of Appeal on the matter of whether or not a defendant can contest the inclusion of sentencing points, including victim injury points, on resentencing after a violation of probation or community control. The position of the Second District is that a defendant may challenge the inclusion of victim injury points at a revocation proceeding even when those points were not challenged at the original sentencing or on direct appeal, and that this is so even where the defendant pleads pursuant to a negotiated plea if he or she did not specifically agree to the inclusion of the points on the scoresheet.167 The First District, on the other hand, has taken the position that an appeal from resentencing following violation of probation is not the proper time to assert an error in the original scoresheet.168 A related issue that often comes up on appeal is whether victim injury points that were assessed by the original sentencing court absent a specific

163. See, Carter v. State, 920 So. 2d 735 (Fla. Dist. Ct. App. 5th Dist. 2006); Whalen v. State, 895 So. 2d 1222 (Fla. Dist. Ct. App. 2d Dist. 2005). 164. See, McCloud v. State, 803 So. 2d 821 (Fla. Dist. Ct. App. 5th Dist. 2001) (penetration is an alternative element of sexual battery and so a general verdict is insufficient to show that penetration occurred when jury could have convicted based on penetration or contact). 165. Knarich v. State, 866 So. 2d 165 (Fla. Dist. Ct. App. 2d Dist. 2004) (if jury properly instructed in case of handling and fondling a child under 16 years of age in a lewd and lascivious manner, then it necessarily had to find sexual contact to sustain guilty verdict, then verdict is sufficient basis for sexual contact points); Cameron v. State, 804 So. 2d 338 (Fla. Dist. Ct. App. 4th Dist. 2001) (jury conviction on UBAL manslaughter sufficient jury finding to authorize enhancement beyond statutory maximum based on death points); Tucker v. State, 726 So. 2d 768 (Fla. 1999) (jury verdict finding defendant guilty of attempted first-degree murder with a firearm sufficient to increase permissible sentencing range based on defendants use of firearm, even though verdict form not technically a special verdict form). 166. See, Hindenach v. State, 807 So. 2d 739 (Fla. Dist. Ct. App. 4th Dist. 2002). 167. Stubbs v. State, 951 So. 2d 910 (Fla. Dist. Ct. App. 2d Dist. 2007). 168. Fitzhugh v. State, 698 So. 2d 571 (Fla. Dist. Ct. App. 1st Dist. 1997).

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jury finding can be reassessed by the court on resentencing in light of Apprendi. The Second, Third, Fourth, and Fifth District Courts of Appeal hold that Apprendi and Blakely do not apply to cases when the conviction became final before Apprendi was decided, even though resentencing occurs post-Apprendi due to a sentencing error. Even if Apprendi does apply, the resentencing court must perform a harmless error analysis.169 Under a harmless error analysis, the court must determine if the record demonstrates beyond a reasonable doubt that a rational jury would have found victim injury.170 Sexual Penetration and Sexual Contact Except as otherwise provided by law,171 the sexual penetration and sexual contact points are scored as follows: Sexual penetration points (80) are scored if an offense pending before the court for sentencing involves sexual penetration. Sexual contact points (40) are scored if an offense pending before the court involves sexual contact, but no penetration.172 Statutory exceptions to the assessment of sexual penetration and sexual contact points contained in section 921.0021, F.S. are as follows: (1) The sentence points provided under section 921.0024 for sexual contact or sexual penetration may not be assessed for a violation of section 944.35(3)(b)2., involving sexual misconduct short of the crime of sexual battery on the part of a Department of Corrections employee with an inmate or an offender supervised by the Department of Corrections in the community.173 Note that an anomaly in the law is that there is no comparable ban on the assessment of sexual contact and sexual penetration points for violations of a comparable statute, section 951.221(1), F.S., pertaining to sexual misconduct short of sexual battery by employees of county or municipal detention facilities or private detention facilities under contract with a county commission, with an inmate or offender supervised by the facility.174

169. Galindez v. State, 955 So. 2d 517 (Fla. 2007). 170. Galindez v. State, 955 So. 2d 517, 523 (Fla. 2007); see also, Rouse v. State, 965 So. 2d 201 (Fla. Dist. Ct. App. 5th Dist. 2007). 171. Sec. 921.0021(7)(c) & (d), F.S. 172. Sec. 921.0021(7)(b), F.S.; Fla. R. Crim. P. 3.704(d)(9). 173. Sec. 921.0021(7)(c), F.S. 174. See, Lewis v. State, 898 So. 2d 1081 (Fla. Dist. Ct. App. 4th Dist. 2005).

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(2) If the conviction is for the offense described in section 872.06, pertaining to sexual abuse of a dead human body, the sentence points provided under section 921.0024 for sexual contact or sexual penetration may not be assessed.175 There is no statutory definition of sexual contact, but that term has been judicially interpreted in a variety of contexts: Sexual contact victim injury points are not limited to acts involving a union of the sexual organ of one person with the oral, anal or vaginal openings of another, but can include almost all manner of erotic touching including but not limited to penetration.176 A completed act of fellatio, however, is scored as sexual penetration and not sexual contact.177 Where a defendant has been charged with sexual battery and evidence of sexual contact is presented during the trial, sexual contact points may also be assessed upon a verdict of attempted sexual battery.178 If the victim of an offense involving sexual penetration or sexual contact without penetration suffers any physical injury as a direct result of an offense pending before the court for sentencing, that physical injury must be scored separately and in addition to any points scored for the sexual penetration or sexual contact. When charged as a principal, a defendant can be assessed sexual penetration points even though someone other than the defendant engaged in the penetration.179 Victim injury points for

175. Sec. 921.0021(7)(d), F.S. 176. See, e.g., Knarich v. State, 866 So. 2d 165 (Fla. Dist. Ct. App. 2d Dist. 2004) (conviction based on fondling a childs buttocks in a lewd and lascivious manner supports scoring of victim injury points for sexual contact); Altman v. State, 852 So. 2d 870 (Fla. Dist. Ct. App. 4th Dist. 2003) (defendant tongue-kissing victim and rubbing crotch against victims crotch and buttocks while both clothed) Fretwell v. State, 852 So. 2d 292 (Fla. Dist. Ct. App. 4th Dist. 2003) (touching clothed buttocks of child); Seagrave v. State, 802 So. 2d 281 (Fla. 2001) (rubbing the buttocks of victim and placing victims hand on defendants clothed penis); Fredette v. State, 786 So. 2d 27 (Fla. Dist. Ct. App. 5th Dist. 2001) (touching victims vaginal area); Kitts v. State, 766 So. 2d 1067 (Fla. Dist. Ct. App. 5th Dist. 2000) (fondling and kissing of breasts); Louis v. State, 764 So. 2d 930 (Fla. Dist. Ct. App. 4th Dist. 2000) (touching victims chest through shirt, abdomen, and genital area); Blackburn v. State, 762 So. 2d 989 (Fla. Dist. Ct. App. 5th Dist. 2000) (rubbing erect penis on victims clothed back); Vural v. State, 717 So. 2d 65 (Fla. Dist. Ct. App. 3d Dist. 1998) (forcing victim to handle and masturbate defendant); Mackey v. State, 516 So. 2d 330 (Fla. Dist. Ct. App. 1st Dist. 1987) (touching victim about the crotch); OBright v. State, 508 So. 2d 385 (Fla. Dist. Ct. App. 1st Dist. 1987) (defendant fondling victims genitals and having victim fondle defendants genitals); Beasley v. State, 503 So. 2d 1347 (Fla. Dist. Ct. App. 5th Dist. 1987) (opening victims legs and starting to pull down victims bathing suit and shorts). 177. Lowman v. State, 720 So. 2d 1105 (Fla. Dist. Ct. App. 2d Dist. 1998). 178. See, Bennett v. State, 971 So. 2d 196 (Fla. Dist. Ct. App. 1st Dist. 2007); Marcado v. State, 735 So. 2d 556 (Fla. Dist. Ct. App. 2d Dist. 1999); Vural v. State, 717 So. 2d 65 (Fla. Dist. Ct. App. 3d Dist. 1998). 179. Clifford v. State, 518 So. 2d 983 (Fla. Dist. Ct. App. 2d Dist. 1988) (principal to sexual battery).

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sexual penetration may not be assessed against a defendant who is not charged, or cannot be charged, as a principal and did not engage in the sexual penetration himself or herself.180 Note that, in the absence of an admission by the defendant, where the charging document alleges penetration or union, the verdict form must specify which alternative is the basis for any finding of guilt in order for points for either to be assessed where the assessment of those points increases the penalty beyond the prescribed statutory maximum.181 Severe, Moderate, and Slight Injury Sections 921.0021(7) and 921.0024, and Fla. R. Crim. P. 3.704(d)(9), provide for different amounts of victim injury points to be assessed depending on whether the injury is severe, moderate or slight. Forty points are assessed for severe injury, eighteen points for moderate injury, and four points for slight injury. None of these levels is defined in either the statutes or the rule, necessitating a case-by-case determination by the sentencing court. Courts have analogized severe injury it to great bodily harm.182 A conviction for driving under the influence with serious bodily injury under section 316.193(3)(c)2., or aggravated battery causing great bodily harm under section 784.045(1)(a)1. would, therefore, support an assessment of 40 points on the defendants scoresheet for severe injury.183 Great bodily harm in the context of aggravated battery defines itself and means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises as are likely to be inflicted in a simple assault and battery.184 Evidence that the victim received a broken nose, had one eye completely shut, a broken lip and who was taken to the hospital by ambulance for emergency room treatment is sufficient to satisfy the essential statutory elements of the offense of aggravated battery which are great bodily harm, permanent disability or permanent disfigurement.185 Whether aggravated battery is committed when the injury inflicted does not break the skin, does not injure the bones and does not leave disfigurement or permanent injury of any kind, is a question of fact to be determined by the judge or jury. Although it can be argued that all permanent injury constitutes great bodily harm, it does not follow that all great

180. McMillan v. State, 896 So. 2d 873 (Fla. Dist. Ct. App. 2d Dist. 2005) (promoting sexual performance by a child). 181. See, Chatman v. State, 943 So. 2d 327 (Fla. Dist. Ct. App. 4th Dist. 2006). 182. Coronado v. State, 654 So. 2d 1267 (Fla. Dist. Ct. App. 2d Dist. 1995). 183. See, Searles v. State, 816 So. 2d 793 (Fla. Dist. Ct. App. 2d Dist. 2002) (driving under the influence with serious bodily injury), quashed on other grounds, 885 So. 2d 338 (Fla. 2004); Key v. State, 837 So. 2d 535 (Fla. Dist. Ct. App. 2d Dist. 2003) (aggravated battery with serious bodily injury). 184. Owens v. State, 289 So. 2d 472, 474 (Fla. Dist. Ct. App. 2d Dist. 1974); see also, Anderson v. State, 291 N.E. 2d 579 (Ind. App. 1973). 185. Owens v. State, 289 So. 2d 472 (Fla. Dist. Ct. App. 2d Dist. 1974).

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bodily harm consists of permanent injury. Indeed, many serious bodily injuries leave no lasting effect on the health, strength, and comfort of the injured person, and so there is apparently no requirement that the harm result in permanent injury.186 It would logically follow, therefore, that a conviction for aggravated battery causing permanent disability or permanent disfigurement under section 784.045(1)(a)1. would also support the assessment of forty points for severe injury.187 Permanent disability is not defined by statute or rule, but has been defined elsewhere as incapacity forever from returning to work formerly performed before the accident, though this capacity may be either total or partial.188 Disfigurement is not defined in the statute or rule, but has been defined elsewhere as that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, misshapen or imperfect, or deforms in some manner.189 There must, therefore, be an outward observable scar or mutilation which tends to mar the appearance of a part of the body which is normally exposed.190 As such, an observable permanent scar may be sufficient for the assessment of points for severe injury, as determined by the trier of fact.191 As a general rule, gunshot injuries are scored as severe injury.192 Courts have historically been unable to draw a bright line between moderate injury and slight injury. An example of moderate injury would be where the injured victim has to be on light duty for three months, wear an ankle brace, and regularly attend physical therapy and doctors appointments.193 Minor cuts, bruises, and bumps would fall into this category. Slight

186. See, People v. Smith, 6 Ill. App. 3d 259, 285 N.E. 2d 460 (Ill. App. 1972); Keef v. State, 220 Ga. App. 134, 469 S.E. 2d 318 (1996). 187. Ely v. State, 719 So. 2d 11 (Fla. Dist. Ct. App. 2d Dist. 1998) (evidence of a broken nose, chipped teeth and bruises supports an assessment of 40 points for severe injury); see also, Fleming v. State, So. 2d , 2006 WL 1041164 (Fla. Dist. Ct. App. 1st Dist. 2006), review granted, 4 So. 3d 677 (Fla. 2009) and decision approved State v. Fleming, 61 So. 3d 399 (Fla. 2011) (unpublished opinion). 188. Blacks L. Dict. 462 (6th Ed. 1990). 189. Bethlehem-Sparrows Point Shipyard v. Damasiewicz, 187 Md. 474, 50 A. 2d 799 (Ct. App. Md. 1947). 190. Bethlehem-Sparrows Point Shipyard v. Damasiewicz, 187 Md. 474, 50 A. 2d 799 (Ct. App. Md. 1947). 191. See, Gillman v. Gillman, 319 So. 2d 165 (Fla. Ct. App. 1st Dist. 1975). 192. See, McDonald v. State, 520 So. 2d 668 (Fla. Dist. Ct. App. 1st Dist. 1988); Vandeneynden v. State, 478 So. 2d 429 (Fla. Dist. Ct. App. 5th Dist. 1985). 193. See, Tillman v. State, 819 So. 2d 913 (Fla. Dist. Ct. App. 3d Dist. 2002).

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injury occurs where, for example, the victim does not undergo medical treatment or lose income.194 Prior Record Prior record means a conviction for a crime committed by the defendant, as an adult or a juvenile, prior to the time of the primary offense and includes federal, out of state, military, or foreign courts and for violations of county or municipal ordinances that incorporate by reference a penalty under state law.195 A conviction is a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld.196 To be scored as prior record only the past conduct must occur before the commission of the primary offense; offenses occurring prior to the primary offense for which convictions are obtained between the commission of the primary offense and the sentencing for that offense are scored as part of the prior record.197 Scoring offenses which occur after the primary offense as prior record is improper, and it does not matter that the defendant is convicted and sentenced for such an offense before being sentenced on the primary offense.198 Burden of Proof Whenever the fact of a prior conviction is to be used, whether to be used as a prior conviction for a scoresheet or as a predicate offense for reclassification of charge or enhancement of penalty, the burden is on the State to connect the defendant to the underlying conviction.199 While in most cases the defendant will stipulate to the fact of a prior conviction, there are occasions when the State is held to its burden. In meeting this burden, the State must only prove that the defendant and the person so convicted are one and the same person by the preponderance of the evidence, and it may do so
194. See, Poole v. State, 753 So. 2d 698 (Fla. Dist. Ct. App. 4th Dist. 2000); Kingsley v. State, 682 So. 2d 641 (Fla. Dist. Ct. App. 5th Dist. 1996). 195. Sec. 921.0021(15), F.S.; Fla. R. Crim. P. 3.704(d)(14). 196. Sec. 921.0021(2), F.S.; Fla. R. Crim. P. 3.704(d)(6). The same definition is used with the former Guidelines. Sec. 921.0011(2), F.S.; Fla. R. Crim. P. 3.701(d)(2); Fla. R. Crim. P. Rule 3.702(d)(2); Fla. R. Crim. P. 3.703(d)(6). 197. Thorp v. State, 555 So. 2d 362 (Fla. 1990); see also, June v. State, 784 So. 2d 1257 (Fla. Dist. Ct. App. 5th Dist. 2001); Falzone v. State, 496 So. 2d 894 (Fla. Dist. Ct. App. 2d Dist. 1986). 198. Perkowski v. State, 920 So. 2d 836 (Fla. Dist. Ct. App. 4th Dist. 2006) (a sentencing court may not score as a prior conviction an offense which was committed after the primary offense); Laster v. State, 486 So. 2d 88 (Fla. Dist. Ct. App. 5th Dist. 1986). 199. Lyons v. State, 823 So. 2d 250 (Fla. Dist. Ct. App. 4th Dist. 2002); DeGeso v. State, 771 So. 2d 1264 (Fla. Dist. Ct. App. 2d Dist. 2000) (at sentencing, when the defendant challenges prior convictions and the accuracy of the scoresheet, the State has the burden of producing competent evidence of the disputed conviction).

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through any competent evidence. The defendant may then offer evidence to rebut the States proof. The State cannot compel, and the court cannot order, the defendant to reveal prior convictions.200 The most common procedure followed in those situations is to have the defendant printed in the courtroom, then have a qualified latent print examiner compare those prints with the prints that accompany the certified judgement and sentence for the prior conviction, and to have the print examiner testify under oath as to whether or not the prints taken from the defendant match those of the judgment and sentence. Certified judgments and sentences and expert fingerprint comparison testimony is not essential for proof of prior record at sentencing, unless the prior record is to be used for enhancement or reclassification. Absent a stipulation from the defendant, however, the evidence must be competent and sufficient. E.g., without the sworn testimony at the sentencing hearing by a fingerprint analyst, analyses of the fingerprints of a defendant are hearsay and inadmissible to prove the prior convictions are the defendants.201 An affidavit from a prison records custodian attesting that a person of the same name and birth date was released from incarceration for a certain case number out of a certain jurisdiction, in the absence of fingerprints or photographic evidence, does not constitute proof of the defendants conviction or release date.202 Appellate courts have approved identification for sentencing purposes based upon a photograph of the defendant, rather than fingerprints,203 but the courts have never approved a finding that evidence of the same name and birth date constitutes proof of the defendants conviction or release status. While Stabile v. State204 approved a prison records custodians affidavit attesting to the defendants prison release date as admissible under the business records exception to the hearsay rule, section 90.803(6), F.S., the State also connected the defendant to that conviction through testimony of a deputy sheriff who fingerprinted the defendant for the conviction on which the prison release information was provided. Sometimes, due to error, accident, inadequate record keeping or routine destruction of records, the judgment and sentence and/or fingerprints from the prior conviction cannot be obtained. In such unusual circumstances, it is permissible for the State to have the court take judicial notice of court records indicating that a certain named defendant was convicted on a certain date in a certain case for a certain offense and to summon any competent witness to the conviction, including the defendants counsel at conviction, to identify the defendant as the person who was so convicted on that certain date in that certain case. Use of former defense

200. Meehan v. State, 397 So. 2d 1214 (Fla. Dist. Ct. App. 2d Dist. 1981). 201. Chestnut v. State, 874 So. 2d 731 (Fla. Dist. Ct. App. 4th Dist. 2004). 202. Rivera v. State, 877 So. 2d 787 (Fla. Dist. Ct. App. 4th Dist. 2004). 203. See, Wencel v. State, 768 So. 2d 494, 495 (Fla. Dist. Ct. App. 4th Dist. 2000). 204. Stabile v. State, 790 So. 2d 1235, 1238 (Fla. Dist. Ct. App. 5th Dist. 2001).

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counsel is permissible because identity of a client is not privileged205 and a conviction on the record and in open court, either by plea or through jury verdict is not a confidential communication not intended to be disclosed to third parties.206 This is comparable to the States presentation, in the trial of the defendant for failure to appear, of testimony of the defendants former counsel regarding former counsels communication of trial dates to the defendant.207 Not all prior convictions can be scored, however. Absent waiver of counsel on the record at the time of the prior conviction, a timely written order from the judge who sentenced the defendant for that prior conviction that he or she would never be incarcerated as a result of that conviction, or a stipulation from the defense at the time of sentencing on the open charge or charges, the State may not use uncounselled prior convictions on the scoresheet.208 Presuming waiver of counsel from silent record is impermissible.209 The defendant bears the initial burden of showing entitlement to counsel because the key is that an uncounselled conviction may not be used for enhancement if the defendant in fact had a right to counsel in the prior proceedings.210 In order to meet this initial burden, the defendant must assert under oath: (1) that the offense involved was punishable by more than six months of imprisonment or that the defendant was actually subjected to a term of imprisonment; (2) that the defendant was indigent and, thus, entitled to court-appointed counsel; (3) counsel was not appointed; and (4) the right to counsel was not waived. If the defendant sets forth these facts under oath, then the burden shifts to the State to show either that counsel was provided or that the right to counsel was validly waived. A defendants statement under oath that he or she was neither provided nor offered counsel at the proceedings resulting in prior convictions is not sufficient to put the State to the

205. See, Suarez v. Hillcrest Development, 742 So. 2d 423 (Fla. Dist. Ct. App. 3d Dist. 1999); Greenberg v. Bolton, 706 So. 2d 97 (Fla. Dist. Ct. App. 3d Dist. 1998); Anderson v. State, 297 So. 2d 871 (Fla. Dist. Ct. App. 2d Dist. 1974). 206. Sec. 90.502, F.S.; Cunningham v. Appel, 831 So. 2d 214 (Fla. Dist. Ct. App. 5th Dist. 2002); Kilbourne & Sons v. Kilbourne, 677 So. 2d 855 (Fla. Dist. Ct. App. 1st Dist. 1995); see also, Neu v. Miami Herald Publishing Co., 462 So. 2d 821 (Fla. 1985) (communications at public meetings are not confidential and no attorney-client privilege can arise therefrom); Mobley v. State, 409 So. 2d 1031 (Fla. 1982) (whether a communication is confidential depends on whether the person invoking the privilege knew or should have known that the privileged conversation was being overheard). 207. Watkins v. State, 516 So. 2d 1043 (Fla. Dist. Ct. App. 1st Dist. 1987), rev. den. 523 So. 2d 579 (Fla. 1988) (former counsels communication of trial dates to defendant was not privileged communication). 208. See, Case v. State, 865 So. 2d 557 (Fla. Dist. Ct. App. 1st Dist. 2003) (a defendant who is charged with a misdemeanor punishable by possible imprisonment is entitled to counsel unless the judge timely issues a written order guaranteeing that the defendant will never be incarcerated as a result of the conviction); Russell v. State, 786 So. 2d 54 (Fla. Dist. Ct. App. 3d Dist. 2001). 209. Burgett v. Texas, 389 U.S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967). 210. Leffew v. State, 518 So. 2d 1376, 1378 (Fla. Dist. Ct. App. 2d Dist. 1988).

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burden of proving that such convictions were in fact counseled or that counsel was knowingly waived, and under such conditions the prior convictions may be scored.211 Regardless of when a prior record offense was committed or the date of conviction of that offense, the offense severity level of each such prior offense is scored at the level reflected for that offense on the current offense severity ranking chart for if it is a ranked offense, or at the current offense severity level of unranked offenses of the same degree if such prior offense is unranked. This is so even where, through the offense severity level of the prior offense as scored is higher than when the prior offense was committed, and such does not run afoul of ex post facto considerations.212 Note that this is so under Rule 3.704(d)(14) for the Criminal Punishment Code, and under Rules 3.703(d)(15) and 3.702(d)(8) for the 1994 and 1995 Sentencing Guidelines, because those rules address severity level in the present tense, but not under Rule 3.701(d)(5)(B) of the original Guidelines, which requires scoring at the level of the analogous or parallel Florida statute in existence at the time of the commission of the prior offense.213 Thus, while under the original Guidelines prior record offenses had to be scored at the same degree classification level as they were at the time of the convictions of these offenses, under the 1994 and 1995 Guidelines and the Criminal Punishment Code such prior offenses are classified at the levels current for the scoresheet used at sentencing, regardless of any legislative increase or decrease in classification level in the interim.214 Federal, Out of State, Military, or Foreign Convictions In order to score a prior conviction from a foreign jurisdiction as a prior record, the trial court must determine whether the conviction is analogous to conviction for a crime in Florida. Only the elements of an out-of-state crime, and not the underlying facts, should be considered in determining whether a conviction is analogous to a Florida statute for the purpose of calculating points for a sentencing guidelines or CPC score sheet.215 The trial court may consider the

211. State v. Rock, 605 So. 2d 456 (Fla. 1992); see also, State v. Beach, 592 So. 2d 237 (Fla. 1992). 212. Knarich v. State, 866 So. 2d 165 (Fla. Dist. Ct. App. 2d Dist. 2004); Contreras v. State, 749 So. 2d 524 (Fla. 2d Dist. Ct. App. 2d Dist. 1999); see also, Holybrice v. State, 753 So. 2d 621 (Fla. Dist. Ct. App. 4th Dist. 2000). 213. Knarich v. State, 866 So. 2d 165 (Fla. Dist. Ct. App. 2d Dist. 2004); Witherspoon v. State, 601 So. 2d 607 (Fla. Dist. Ct. App. 5th Dist. 1992). 214. See, Roberts v. State, 507 So. 2d 761 (Fla. Dist. Ct. App. 1st Dist. 1987); Johnson v. State, 476 So. 2d 786 (Fla. 1st Dist. 1985); Pugh v. State, 463 So. 2d 582 (Fla. Dist. Ct. App. 1st Dist. 1985). 215. Montoure v. State, 880 So. 2d 793 (Fla. Dist. Ct. App. 1st Dist. 2004); Clark v. State, 823 So. 2d 809, 812 (Fla. Dist. Ct. App. 1st Dist. 2002); Dautel v. State, 658 So. 2d 88 (Fla. 1988).

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charging document and the final disposition in determining the elements of the prior offense.216 The trial court is not allowed to consider facts from the trial to make a determination of whether the out-of-state crime has an equivalent in Florida.217 The phrase, underlying facts, has been interpreted to mean, for example, police reports, testimony, or other evidence in the case, how much was stolen (in a theft case), or the like.218 Federal, out of state, military or foreign prior convictions must also be compared with offenses that were prohibited under Florida law at the time those prior offenses were committed, and not with offenses prohibited under Florida law at the time of sentencing.219 Convictions for offenses that were not crimes in Florida at the times of their commissions can not be scored as prior record. A prior conviction under the Uniform Code of Military Justice for being Absent Without Leave (AWOL), for which there is no counterpart under Florida penal law, would be an example,220 except where the defendant was a member of the Florida National Guard at the time he or she committed the offense.221 Foreign convictions arising from legal systems that operate in a manner that is inconsistent with principles of fairness and due process prevalent in Florida and the rest of the United States may also present additional constitutional considerations in the determination of whether or not those convictions are truly analogous for purposes of being considered as prior record for sentencing, or for penalty enhancement or offense reclassification.222

216. See, Walsh v. State, 606 So. 2d 636 (Fla. Dist. Ct. App. 5th Dist. 1992) (federal indictment reviewed for allegation of use of dangerous weapon); Rager v. State, 720 So. 2d 1134 (Fla. Dist. Ct. App. 5th Dist. 1998) (use of Ohio indictment to determine subsection under which defendant convicted). 217. Snipes v. State, 793 So. 2d 1107, 1108 (Fla. Dist. Ct. App. 1st Dist. 2001). 218. Knarich v. State, 866 So. 2d 165 (Fla. Dist. Ct. App. 2d Dist. 2004); see also, Holybrice v. State, 753 So. 2d 621 (Fla. Dist. Ct. App. 4th Dist. 2000) (because certified copy of final disposition of Georgia court reflected conviction for theft by taking with felony sentence of seven years, trial court was correct in designating conviction as felony, but because there was nothing in record to show or indicate degree of felony or severity level, conviction had to be scored as Level 1 under Rule 3.703(d)(15)(E)). 219. Knarich v. State, 866 So. 2d 165 (Fla. Dist. Ct. App. 2d Dist. 2004); see also, Witherspoon v. State, 601 So. 2d 607 (Fla. Dist. Ct. App. 5th Dist. 1992). 220. Frazier v. State, 515 So. 2d 1061 (Fla. Dist. Ct. App. 5th Dist. 1987). 221. Sec. 250.351(1), F.S., provides in relevant part that Members of the Florida National Guard are subject to . . . the Uniform Code of Military Justice at all times during their enlistment or appointment, whether serving in this state or outside the state. 222. See, Small v. United States, 544 U.S. 385, 125 S. Ct. 1752, 161 L. Ed. 2d 651, 73 USLW 429818 Fla. L. Weekly Fed. S 245 (2005).

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An added complication of the use of foreign convictions arises in the authentication of documents used to prove the existence of the conviction and the identity of the defendant as the person so convicted. Section 90.902, F.S. recognizes that authentication of a foreign document can be complex.223 Therefore, it includes a provision that eliminates the need for extrinsic evidence of authenticity of an executed or attested official foreign document accompanied by a final certification. Executed is defined as [c]ompleted; carried into full effect; already done or performed.224 Attest is defined as to bear witness to a fact or to affirm to be true or genuine.225 None of these definitions nor section 90.902 appears to require a signature, which although usual is not necessary for validity unless required by statute. While section 90.902(3) calls for the document to be executed by a person, courts construe the word person to be interchangeable with government in the context of authenticating documents. As far as being under seal, in general, the purpose of a seal is to attest in a formal manner the execution of an instrument, but absence of formality does not vitiate a document if its authenticity is unchallenged.226 Furthermore, a court may order that a foreign document be treated as presumptively authentic without a final certification when a party receives a reasonable opportunity to investigate the authenticity and accuracy of the document.227 A reasonable opportunity to investigate the authenticity and accuracy of the foreign document may thus eliminate the need for a final certification.228 The elements of the subject crime, not the stated degree or the sentence received, control in determining whether there is a Florida statute analogous to an out-of-state crime, because the various jurisdictions may choose to punish the same acts differently, so the elements of a crime are the surest way to trace that crime.229 An out-of-state conviction related to an offense that has only similar but different elements and does not constitute a felony in that state does not amount to a felony in Florida as a matter of law.230 Any uncertainty should be resolved in favor of the defendant. Furthermore, when unable to determine whether the offense is a felony or misdemeanor, it must be scored as a misdemeanor.

223. See, C. Ehrhardt, Florida Evidence 902.4 (2005 Ed.). 224. Blacks L. Dict. 676 (4th Ed. 1968). 225. Blacks L. Dict. 163 (4th Ed. 1968). 226. See, e.g., King v. Guynes, 118 La. 344, 42 So. 959 (La. 1907). 227. Sec. 90.902(3)(b) 2., F.S. 228. Van Den Borre v. State, 596 So. 2d 687 (Fla. Dist. Ct. App. 4th Dist. 1992). 229. Forehand v. State, 537 So. 2d 103 (Fla. 1989). 230. See, Carpenter v. State, 785 So. 2d 1182 (Fla. 2001).

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Note that this is different from use of out-of-state prior convictions to determine qualification for reclassification as a recidivist habitual felony offender, habitual violent felony offender, three-time violent felony offender, or violent career criminal under section 775.084, F.S. To constitute a qualifying offense under this section, the out-of-state conviction must be substantially similar in elements and penalties to an offense in this state and must be punishable by imprisonment over one year.231 Thus, while only the elements of the out-of-state conviction may be considered for purposes of scoring prior out-of-state convictions, elements and penalty may be considered for purposes of qualification for reclassification. Departure Sentencing Any downward departure from the lowest permissible sentence, as calculated according to the total sentence points under section 921.0024, F.S., is prohibited unless there are circumstances or factors that reasonably justify the downward departure. Circumstances or factors that can be considered include, but are not limited to, those listed in section 921.0026(2), F.S.232 If a sentencing judge imposes a sentence that is below the lowest permissible sentence, it is a departure sentence and must be accompanies by a written statement by the sentencing court delineating the reasons for the departure, filed within seven days after the date of sentencing. A written transcription of orally stated reasons for departure articulated at the time sentence was imposed is sufficient if it is filed by the court within seven days after the date of sentencing. The sentencing judge may also list the written reasons for departure in the space provided on the Criminal Punishment Code scoresheet. The written statement delineating the reasons for departure must be made a part of the record. The written statement, if it is a separate document, must accompany the scoresheet provided to the Department of Corrections under section 921.0024(6), F.S.233

231. Sec. 775.084(1)(e), F.S.; see, Alix v. State, 799 So. 2d 359 (Fla. Dist. Ct. App. 3d Dist. 2001) (the Canadian crime of sexual assault is broader than Floridas offense of sexual battery because the Canadian offense encompasses less serious conduct that is not punishable under Floridas sexual battery statute and therefore cannot be used a a predicate offense to sentence defendant as a habitual violent felony offender). 232. Sec. 921.002(1)(f), F.S.; Fla. R. Crim. P. 3.704(d)(27). 233. Sec. 921.002(3), F.S.; Fla. R. Crim. P. 3.704(d)(27)(A) & (B).

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Burden, Level and Sufficiency of Proof The defendant has the burden of proving the basis for a departure sentence by a preponderance of the evidence, and the evidence must be competent and substantial.234 A preponderance of the evidence is evidence which as a whole shows that the fact sought to be proved is more probable than not.235 Substantial evidence is evidence which a reasoning mind would accept as sufficient to support a particular conclusion.236 Section 921.002(1)(f), F.S., provides that The level of proof necessary to establish facts that support a departure from the lowest permissible sentence [under the Criminal Punishment Code] is a preponderance of the evidence. Of course, where no evidence is submitted to support the departure sentence, the statutory standard is not met.237 Defense counsels unsworn statements of fact cannot serve as evidence to substantiate a downward departure sentence; if an attorney wishes to establish a fact, he or she must provide sworn testimony through competent witnesses other than himself or herself or a stipulation to which his or her opponent agrees.238 Where a defendant presents no evidence in support of a

234. See, State v. Bell, 854 So. 2d 686 (Fla. Dist. Ct. App. 5th Dist. 2003); State v. Silver, 723 So. 2d 381 (Fla. Dist. Ct. App. 4th Dist. 1998). Note that other states have a more stringent standard for departures. In Michigan, for example, a court may depart from the appropriate sentence range established under that states guidelines if the court has a substantial and compelling reason for that departure and states on the record the reasons for the departure. M.C.L. 769.34(3). A substantial and compelling reason has been interpreted by that states supreme court to mean an objective and verifiable reason that keenly or irresistibly grabs our attention; is of considerable worth in deciding the length of a sentence; and exists only in exceptional cases. People v. Babcock, 469 Mich. 247, 666 N.W.2d 231, 258 (Mich. 2003). 235. State v. Edwards, 536 So. 2d 288, 292 n.3 (Fla. Dist. Ct. App. 1st Dist. 1988). 236. State v. Morales, 460 So. 2d 410 (Fla. Dist. Ct. App. 2d Dist. 1984). 237. See, State v. Scott, 879 So. 2d 99 (Fla. Dist. Ct. App. 2d Dist. 2004) (where no evidence is presented to support downward departure based on restitution need on a worthless check case, the departure is reversed); State v. Amodeo, 750 So. 2d 664, 666 (Fla. Dist. Ct. App. 5th Dist. 1999) (holding that record utterly failed to support the reasons given for the departure sentence where no testimony was given under oath by anyone); State v. Bleckinger, 746 So. 2d 553, 556 (Fla. Dist. Ct. App. 5th Dist. 1999) (holding that since no evidence was adduced at the sentencing hearing the court could not find that cooperation by the defendant warranted a downward departure); see also, State v. Braley, 832 So. 2d 255, 256 (Fla. Dist. Ct. App. 2d Dist. 2002); State v. Petringelo, 762 So. 2d 965, 966 (Fla. Dist. Ct. App. 2d Dist. 2000); State v. Owens, 848 So. 2d 1199, 1202 (Fla. Dist. Ct. App. 1st Dist. 2003); State v. Quintanal, 791 So. 2d 23, 24 (Fla. Dist. Ct. App. 3d Dist. 2001); State v. Schillaci, 767 So. 2d 598, 600 (Fla. Dist. Ct. App. 4th Dist. 2000); State v. Silver, 723 So. 2d 381 (Fla. Dist. Ct. App. 4th Dist. 1998). 238. State v. Champion, 898 So. 2d 1111 (Fla. Dist. Ct. App. 2d Dist. 2005) (unsworn statements of counsel cannot support a downward departure sentence); State v. Bleckinger, 746 So. 2d 553, 555-56 (Fla. Dist. Ct. App. 5th Dist. 1999) (same).

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downward departure, he or she fails to carry his or her burden, notwithstanding any unsworn statements made by defense counsel.239 Defense Obligations First and foremost, a defense attorney has an obligation to investigate and present available mitigating evidence at sentencing.240 Where the defendant who has previously elected to participate in reciprocal discovery is seeking a departure, Rule 3.220(d)(1)(A) applies and obligates the defendant to provide the State on a timely basis with: (1) a written list of the names and addresses of all persons whom the defendant expects to call at any hearing on said motion for departure sentencing; (2) the statement of any witness whose name is furnished in compliance with the discovery rule, other than the defendant; (3) reports or statements of experts made in connection with or relevant to departure sentencing in the case for which departure is sought, including results of physical or mental examinations and of scientific tests, experiments, or comparisons which the defendant intends to use at the departure hearing; and (4) any tangible objects that the defendant intends to use in at the departure hearing.241 Consistent with the notion that a dispositive order entered without affording the State proper notice and opportunity to be heard, a necessary corollary to the discovery rule is that the defendant provide the State with some statement as to the particular ground or grounds of the departure sentence sought by the defendant, in that the contents of a motion must be sufficient to put the other party on notice as to the specific relief sought from the court.242 When the defense obtains appointment of an expert to evaluate the defendant in an attempt to obtain mental condition evidence going to a sentencing mitigator, the provisions of Florida Rule of Criminal Procedure 3.216(f) apply, even though the appointment and evaluation are obtained post-plea or post-sentencing. Pursuant to Rule 3.216(f), if the notice to rely on any mental health defense other than insanity indicates the defendant will rely on the testimony of an expert who has examined the defendant, the court must, upon motion of the state, order the defendant be examined by one qualified expert for the state as to the mental health defense raised by the defendant. Upon a showing of good cause, the court may order additional examinations upon motion by the state or the defendant. Attorneys for the state and defendant may be present at the examination. When the defendant relies on the testimony of an expert who has not examined the defendant, the state is not be entitled to a compulsory examination of the
239. State v. Arvinger, 751 So. 2d 74 (Fla. Dist. Ct. App. 5th Dist. 1999); State v. Silver, 723 So. 2d 381 (Fla. Dist. Ct. App. 4th Dist. 1998). 240. See, e.g., Rose v. State, 675 So. 2d 567 (Fla. 1996) (an attorney has a duty to conduct a reasonable investigation for possible mitigating evidence). 241. See, State v. Clark, 644 So. 2d 556 (Fla. Dist. Ct. App. 2d Dist. 1994) (defendants discovery obligations under Rule 3.220 apply to sentencing). 242. See, Metropolitan Dade County v. Curry, 632 So. 2d 667 (Fla. Dist. Ct. App. 3d Dist. 1994) (an order entered without notice or opportunity to be heard is a void order and may be attacked at any time).

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defendant.243 Thus, if the defendant intends to use expert testimony to obtain a sentence less than the Criminal Punishment Code minimum presumptive sentence, the defendant must give notice to the State and allow an opportunity for the State to depose the expert and obtain rebuttal evidence.244 When the defendant lists as a potential witness a person with whom the defendant has a privileged relationship (e.g., the defendants spouse, psychologist, physician, priest or spouse) or a relationship which is otherwise encompassed within the defendants attorney-client relationship, the State cannot ordinarily take pre-hearing discovery of that witness as to privileged matters absent a waiver of privilege. The mere relevance of the information is not sufficient grounds for the State to be allowed to override the privilege involved.245 Simply listing a witness or providing the State with a written report prepared by the witness is also not sufficient to waive the privilege, although the privilege is waived at the point where the defendant actually calls the witness to the stand to testify.246 When, however, the defendant asserts a claim based upon a matter ordinarily privileged, the proof of which will necessarily require that the privileged matter be offered into evidence, the defendant loses his or her right to insist, in pretrial discovery proceedings, that the matter is privileged.247 This is known as the sword and shield doctrine and means that, where the defendant so uses the shield of privilege as a sword to thwart the States right to discovery, the State may file an appropriate motion to exclude the testimony of such witnesses at any sentencing hearing on the basis of actual prejudice arising from surprise in fact or unfair advantage.248 A motion for departure should also be in writing. Fla. R. Crim. P. 3.060 requires that a copy of any written motion which may not be heard ex parte and a copy of the notice of the hearing thereof, shall be served on the adverse party a reasonable time before the time specified for the hearing. Reasonable notice is such notice or information of a fact as may fairly and properly be expected or required in the particular circumstances.249 While there are no hard and fast rules about how many days constitute a reasonable time, the party served with notice must have actual notice and time to analyze the arguments of the movant, prepare counterargument,

243. Fla. R. Crim. P. 3.216(f). 244. State v. Massingill, 77 So. 3d 677 (Fla. Dist. Ct. App. 3d Dist. 2011). 245. See, Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 715 So. 2d 1021 (Fla. Dist. Ct. App. 4th Dist. 1998). 246. See, Sagar v. State, 727 So. 2d 1118 (Fla. Dist. Ct. App. 5th Dist. 1999); Ursry v. State, 428 So. 2d 713 (Fla. Dist. Ct. App. 4th Dist. 1983). 247. See, Savino v. Luciano, 92 So. 2d 817 (Fla. 1957). 248. See, Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981). 249. Sterling Mfg. Co. v. Hough, 49 Neb. 618, 68 N.W. 1019 (1896); Mallory v. Leiby, 1 Kan. 97 (1862) at 102.

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and assemble necessary witnesses and evidence. Lack of reasonable notice is a denial of due process.250 The motion also has to be legally sufficient. Fla. R. Crim. P. 3.190(h)(3) states that, Before hearing evidence, the court shall determine if the motion is legally sufficient. If it is not, the motion shall be denied. Procedures to Be Followed by the Judge A trial courts decision whether to depart from the guidelines, or below the Criminal Punishment Code sentencing minimum, is a two-part process. First, it must determine whether a valid legal ground and factual support for that ground exist. Legal grounds are set forth in case law and statute, and facts supporting the ground must be proven at trial (or at a sentencing hearing based on a change of plea) by a preponderance of the evidence.251 If a sentencing judge imposes a sentence that is below the lowest permissible sentence under the Criminal Punishment Code, it is a departure sentence and must be accompanied by a written statement by the sentencing court delineating the reasons for the departure, filed within 7 days of the date of sentencing.252 A written transcription of orally stated reasons for departure articulated at the time sentence was imposed is sufficient if it is filed by the court within 7 days after the date of sentencing. The sentencing judge may also list the written reasons for departure in the space provided on the Criminal Punishment Code scoresheet.253 Similar provisions are found in the rules pertaining to the former guidelines.254 Note, however, that the sentence will be affirmed where the trial court orally pronounces a valid reason or reasons for departure at the time of sentencing but inadvertently fails to enter contemporaneous written reasons.255 A trial court is,

250. See, Harreld v. Harreld, 682 So. 2d 635 (Fla. Dist. Ct. App. 2d Dist. 1996) (two working days notice of contested final hearing in dissolution action is not notice reasonable time before the hearing where husband resides outside the state and is not represented by counsel); Russ v. State, 622 So. 2d 501 (Fla. Dist. Ct. App. 5th Dist. 1993) (scheduling of contempt hearing less than two days after service of order to show cause violated criminal procedural rule requiring that reasonable time be allowed for preparation of defense); see, Sklandis v. Walgreen Co., 832 So. 2d 942 (Fla. Dist. Ct. App. 3d Dist. 2002) (one days notice for a non-emergency dispositive motion was unreasonably short); Montgomery v. Cribb, 484 So. 2d 73 (Fla. Dist. Ct. App. 2d Dist. 1986) (two days notice for a hearing on a motion to strike a claim against an estate based upon a summary judgment was inadequate). 251. See, Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999). 252. See, Pierre v. State, 971 So. 2d 825 (Fla. Dist. Ct. App. 3d Dist. 2007). 253. Fla. R. Crim. P. 3.704(d)(27)(a). 254. See, Fla. R. Crim. P. 3.702(d)(18)(A) and 3.703(d)(30)(A). 255. Pease v. State, 712 So. 2d 374 (Fla. 1997); Gibson v. State, 661 So. 2d 288 (Fla. 1995).

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however, without jurisdiction to file written reasons for departure once a notice of appeal has been filed from a properly rendered judgment.256 The trial courts decision regarding the first step will be affirmed on appeal if the reason given by the trial judge is valid and supported by competent, substantial evidence.257 If the trial court finds that the initial requirements for a downward departure are satisfied, the second step requires the court to exercise discretion as to whether departure is truly the best sentencing option for the defendant in the pending case. When a trial court determines whether it should depart downward from the presumptive minimum sentence prescribed by the Criminal Punishment Code, it must weigh the totality of factors, including aggravating factors.258 With respect to the second step, the trial court is afforded considerable discretion in making its decision and will be reversed only if the appellate court finds the trial court abused its discretion.259 When an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the applicable guidelines or Criminal Punishment Code.260 The Florida Supreme Court promulgated this rule out of concern that sentencing judges on remand would search for reasons to justify a departure sentence when the judges initial reasons for departure had been reversed by an appellate court.261 This rule does not apply, however, where the sentencing court unknowingly imposes a departure sentence, hence not submitting written reasons to justify the departure, and in those cases the court may impose a departure sentence provided that proper written findings are made.262 Statutory Mitigating Circumstances Statutory mitigating circumstances sufficient to justify departure are as set forth in section 921.0026, F.S., which applies to any felony offense, except any capital felony, and are as follows:

256. Domberg v. State, 661 So. 2d 285 (Fla. 1995). 257. Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999); see also, State v. Clay, 780 So. 2d 269, 270 (Fla. Dist. Ct. App. 5th Dist. 2001). 258. See, Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999). 259. Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999). 260. Pope v. State, 561 So. 2d 554 (Fla. 1990). 261. See, Troutman v. State, 630 So. 2d 528, n. 6 (Fla. 1993). 262. See, Baker v. State, 852 So. 2d 441 (Fla. Dist. Ct. App. 5th Dist. 2003).

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The departure results from a legitimate, uncoerced plea bargain.263 A plea bargain for purposes of a departure sentence contemplates an agreement between the State and the defendant which is approved by the court, and not between the court and the defendant. When a plea agreement is between a defendant and the court without the States agreement, it is impermissible to then allow the court to use this statutory reason to justify a departure sentence.264 In Florida, entry of an open plea is not a valid reason for a departure sentence where there was no plea agreement entered into between the defendant and the State.265 Where the State makes an offer of a departure sentence but does not have an agreement with the defendant as to the length of sentence, the extent of the departure is within the sound discretion of the trial judge.266 The trial court does not have to follow through with the prosecutors recommendation as to the magnitude of the departure and may impose a more lenient sentence than recommended by the prosecutor.267 Once the decision as to the minimum sentence has been removed from the prosecutors sphere, continued control over the sentence would violate the Florida constitutions separation of powers. An example of the application of this rule is where the prosecutor files a motion pursuant to section 893.135(4), F.S., to reduce or suspend the sentence of a person convicted under that section and who provides substantial assistance in the identification, arrest, or conviction of any of that persons accomplices, accessories, coconspirators, or principals or of any other person engaged in trafficking in controlled substances: Once a motion for reduction of the minimum mandatory sentence has been filed under that section, the sentence is in the trial courts discretion.268 Where there is an agreement between the State and the defendant for a specific departure sentence, however, the

263. Sec. 921.0026(2)(a), F.S. 264. See, State v. Bell, 854 So. 2d 686 (Fla. Dist. Ct. App. 5th Dist. 2003), review denied, 866 So. 2d 1212 (Fla. 2004); State v. Beck, 763 So. 2d 506 (Fla. Dist. Ct. App. 4th Dist. 2000); State v. Sawyer, 753 So. 2d 737 (Fla. Dist. Ct. App. 2d Dist. 2000) (Although an uncoerced plea bargain is a valid reason to depart from the guidelines, the downward departure in this case cannot be upheld on this basis because the State did not join in the plea agreement.) (citing State v. Laperreri, 710 So. 2d 119 (Fla. Dist. Ct. App. 2d Dist. 1998) (Because the State did not join in the plea agreement, there is no possibility that the sentence is a valid downward departure based on uncoerced plea agreement.); State v. Kennedy, 698 So. 2d 349 (Fla. Dist. Ct. App. 4th Dist. 1997); State v. Smallwood, 664 So. 2d 309 (Fla. Dist. Ct. App. 5th Dist. 1998); State v. McCarthy, 502 So. 2d 955 (Fla. Dist. Ct. App. 2d Dist. 1987). 265. State v. Brannum, 876 So. 2d 724 (Fla. Dist. Ct. App. 5th Dist. 2004). 266. State v. Aguilar, 775 So. 2d 994 (Fla. Dist. Ct. App. 3d Dist. 2000) (where the State and the defendant agree that a departure from the sentencing guidelines is appropriate, the extent of the departure is within the sound discretion of the trial judge); see, State v. Nunez, 855 So. 2d 698 (Fla. Dist. Ct. App. 3d Dist. 2003); State v. Leggett, 792 So. 2d 646 (Fla. Dist. Ct. App. 3d Dist. 2001); State v. Andrews, 778 So. 2d 1100 (Fla. Dist. Ct. App. 3d Dist. 2001). 267. State v. Cure, 760 So. 2d 243 (Fla. Dist. Ct. App. 3d Dist. 2000); State v. Collins, 482 So. 2d 388 (Fla. Dist. Ct. App. 5th Dist. 1986). 268. Cherry v. State, 439 So. 2d 998 (Fla. Dist. Ct. App. 4th Dist. 1983) (where State Attorney agrees to less than the minimum mandatory sentence under section 893.135, the sentence is in trial courts discretion).

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sentencing court cannot impose a different departure sentence. A diversion from the agreement is not the result of a legitimate plea bargain and so cannot be supported by the record.269 The notion is that if the sentencing court unilaterally deviates from the agreement, there is no longer any agreement, and if there is no longer any agreement there is no longer a valid downward departure reason under section 921.0026(2)(a), F.S.270 Similarly, where an offer of a downward departure from the State has been unequivocally revoked prior to acceptance, the court cannot use that offer as a basis for a downward departure sentence.271 Trial courts are, in any event, free to plea bargain with defendants as to possible sentencing on the charges filed by the State within certain limits for purposes other than departure under section 921.0026(2)(a), F.S.272 A plea agreement cannot, however, frustrate sentencing consistent with the Criminal Punishment Code or applicable guidelines, as a defendant cannot by agreement confer on the court the authority to impose an illegal sentence. If a departure is not supported by clear and convincing reasons, the mere fact that a defendant agrees to it does not make it a legal sentence.273 Note, also, that a defendant is not entitled to negotiate a plea for a departure sentence, accept the benefit of it, and then ask the trial court, or the appellate court, to set aside the sentence and grant him or her a better deal than the one agreed to by the State on the basis that the court should not have departed; in challenging his or her conviction under such circumstances, the defendant is not entitled to any sentence that the State did not agree to in the negotiations.274 The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.275 The court may consider the defendants alleged personality trait of being more a follower than a leader, but this basis of departure is not available if the defendant was the principal perpetrator in the underlying crime.276

269. State v. Hale, 682 So. 2d 613 (Fla. Dist. Ct. App. 2d Dist. 1996). 270. See, Dozier v. State, 881 So. 2d 662 (Fla. Dist. Ct. App. 3d Dist. 2004) (Cope, J., concurring). 271. State v. Berry, 976 So. 2d 645 (Fla. 2008); State v. Watson, 971 So. 2d 946 (Fla. Dist. Ct. App. 3d Dist. 2007). 272. See, State v. Warner, 762 So. 2d 507 (Fla. 2000). 273. McCarthy, 502 So. 2d 955 (Fla. Dist. Ct. App. 2d Dist. 1987); see, Williams v. State, 500 So. 2d 501 (Fla. 1986); Henry v. State, 498 So. 2d 1006 (Fla. Dist. Ct. App. 2d Dist. 1986). 274. Scott v. State, 465 So. 2d 1359 (Fla. Dist. Ct. App. 5th Dist. 1985). 275. Sec. 921.0026(2)(b), F.S. 276. See, State v. Woodson, 745 So. 2d 570 (Fla. Dist. Ct. App. 5th Dist. 1999) (felon on probation when charged with burglary, grand theft and dealing in stolen property, and who admitted to being dealer in stolen property, is not minor participant; It was error to allow him to stay out of prison.); State v. Silver, 723 So. 2d 381 (Fla. Dist. Ct. App. 4th Dist. 1998) (defendant who was a closer in a telemarketing scheme with significant involvement in the scheme, was not minor participant); State v. Licea, 707 So. 2d 1155 (Fla. Dist. Ct. App. 2d Dist. 1998).

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The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired.277 Emotional immaturity coupled with chronological young age is a sufficient basis to allow a sentencing judge to depart downwards.278 A substantial impairment of a defendants capacity to appreciate the criminal nature of his or her conduct or to conform that conduct to the requirements of law, although not reaching the level of insanity, can be a sufficient enough mitigator to support a downward departure.279 Historically, impairment due to addiction to drugs could not be used to support this basis of departure, because the legislature had eliminated substance abuse or addiction, including intoxication at the time of the offense, as a mitigating factor at sentencing. In 2009, however, the Florida Legislature created an exception for non-violent felony offenders in paragraph (2)(m) of 921.0026.280 The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.281 In order to avail himself or herself of this basis of departure, the defendant must establish, and the trial court must find, (1) the existence of a mental disorder, or physical disability, (2) the need for specialized treatment, and (3) that the defendant is amenable to treatment.282 Over the years, some appellate courts have added a fourth requirement, namely that the mental disorder or physical disability requires treatment that is not available in the Department of Corrections,283 and requiring the defendant to establish by a preponderance of evidence that is both factual and reliable that the required treatment is not available from the Department of

277. Sec. 921.0026(2)(c), F.S. 278. See, State v. Gilson, 800 So. 2d 727 (Fla. Dist. Ct. App. 5th Dist. 2001). 279. State v. Chapman, 805 So. 2d 906 (Fla. Dist. Ct. App. 2d Dist. 2001) (court may not base a downward departure based upon the defendants intoxication at the time of the offense by finding he lacked the capacity to appreciate the criminal nature of the offense and that his conduct was substantially impaired); State v. Clark, 745 So. 2d 1116 (Fla. Dist. Ct. App. 4th Dist. 1999). 280. Sec. 921.0026(3), F.S.; see, State v. ODorle, 738 So. 2d 987 (Fla. Dist. Ct. App. 2d Dist. 1999); State v. Norris, 724 So. 2d 630 (Fla. Dist. Ct. App. 5th Dist. 1998); State v. Brown, 717 So. 2d 625 (Fla. Dist. Ct. App. 5th Dist. 1998). 281. Sec. 921.0026(2)(d), F.S. 282. Sec. 921.0026(2)(d), F.S. 283. State v. Mann, 866 So. 2d 179 (Fla. Dist. Ct. App. 5th Dist. 2004); see also, State v. Porche, 826 So. 2d 1062 (Fla. Dist. Ct. App. 2d Dist. 2002); State v. Tyrrell, 807 So. 2d 122 (Fla. Dist. Ct. App. 5th Dist. 2002); State v. White, 755 So. 2d 830 (Fla. Dist. Ct. App. 5th Dist. 2000); State v. Thompson, 754 So. 2d 126 (Fla. Dist. Ct. App. 5th Dist. 2000) (non-insulin diabetes, sciatica, and heart problems were not valid reasons to depart downward in the absence of evidence that defendant required specialized treatment that could not be provided by DOC); State v. Stewart, 749 So. 2d 555 (Fla. Dist. Ct. App. 2d Dist. 2000); State v. Abrams, 706 So. 2d 903 (Fla. Dist. Ct. App. 2d Dist. 1998).

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Corrections.284 In other words, the burden on the defendant is to show that the Department of Corrections cannot provide the required specialized treatment.285 In this regard, testimony from a treating physician regarding the defendants mental disabilities and his or her need for specialized treatment, without more, does not satisfy the defendants burden for a departure under section 921.0026(2)(d).286 The defendants burden as to this element is also not satisfied by inconclusive or equivocal statements by a treating physician as to whether or not the Department of Corrections can provide such treatment.287 Where there is no showing either that the defendant requires any treatment that cannot be provided by the Department of Corrections or that there is a reasonable possibility that the treatment would be successful, there is no factual predicate for a departure on this basis.288 The Fourth District Court of Appeals has, however, receded from the Department of Corrections treatment requirement, holding that the plain language of subsection 921.0026(2)(d) does not require the defendant to make such a showing.289 A finding that a defendant is amenable to treatment means there is a reasonable probability he or she will successfully overcome the mental disorder or physical disability through a treatment program, and this finding must be supported by some competent substantial evidence. Minimally, this requires proof of a reasonable possibility that the treatment will be successful.290 Something more than a defendants perfunctory statement that he or she is a fit subject to rehabilitation is needed.291 Dependency treatment as a mitigating factor is not a get out of jail free card to be used by a judge to entice a plea: There must be convincing evidence

284. State v. Scherber, 918 So. 2d 423 (Fla. Dist. Ct. App. 2d Dist. 2006) (testimony of psychologist that the Department of Corrections could provide any required medication but that she did not know if the Department could provide a formal plan to deal with coping skills, etc., did not provide by a preponderance of the evidence that Department could not provide the specialized treatment required); State v. Green, 890 So. 2d 1283 (Fla. Dist. Ct. App. 2d Dist. 2005) (testimony of psychologist, based on his observations from the Department of Corrections website, that he was unsure whether required treatment was available from the Department, did not meet burden of establishing that the Department could not provide the specialized treatment required). 285. State v. Ford, 48 So. 3d 948 (Fla. Dist. Ct. App. 3d Dist. 2010); State v. Gatto, 979 So. 2d 1232 (Fla. Dist. Ct. App. 4th Dist. 2008); State v. Scherber, 918 So. 2d 423 (Fla. Dist. Ct. App. 2d Dist. 2006). 286. State v. Ford, 48 So. 3d 948 (Fla. Dist. Ct. App. 3d Dist. 2010). 287. State v. Ford, 48 So. 3d 948 (Fla. Dist. Ct. App. 3d Dist. 2010); State v. Green, 890 So. 2d 1283 (Fla. Dist. Ct. App. 2d Dist. 2005); State v. Gatto, 979 So. 2d 1232 (Fla. Dist. Ct. App. 4th Dist. 2008). 288. State v. Wheeler, 891 So. 2d 614 (Fla. Dist. Ct. App. 2d Dist. 2005). 289. State v. Chubbuck, 83 So. 3d 918 (Fla. Dist. Ct. App. 4th Dist. 2012). 290. State v. Cummings, 748 So. 2d 388 (Fla. Dist. Ct. App. 5th Dist. 2000); State v. Parker, 733 So. 2d 1074 (Fla. Dist. Ct. App. 5th Dist. 1999); see also, State v. Hillhouse, 708 So. 2d 326 (Fla. Dist. Ct. App. 2d Dist. 1998). 291. State v. Bostick, 715 So. 2d 298 (Fla. Dist. Ct. App. 4th Dist. 1998); State v. Gordon, 645 So. 2d 140, 142 (Fla. Dist. Ct. App. 3d Dist. 1994) (a defendants word alone is insufficient to establish that he or she is a suitable candidate for drug rehabilitation).

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that the defendants future conduct will change because of treatment for defendants addiction.292 For example, the sua sponte determination of the trial court at an arraignment hearing that the defendant had an anger management problem, absent any evidence or testimony to support that contention, cannot be the basis of a downward departure.293 The need for payment of restitution to the victim outweighs the need for a prison sentence.294 In weighing the need for restitution versus the need for imprisonment, a court must take into consideration all of the relevant factors, including the victims need for restitution and the defendants ability to pay. Evidence in support of restitution includes findings such as the nature of the victims loss, the effectiveness of restitution, and the consequences of imprisonment.295 The amount of restitution due must be substantial and not be minor.296 The victim must have a pressing need to recover the restitution amount specified.297 Ordinarily, the defendants ability to pay restitution need only be considered at the time of enforcement of the restitution order. Sec. 775.089(6)(b), F.S. However, where the purpose of sentencing a defendant to a downward departure is based on the need to reimburse the victim for his or her loss, it necessarily presupposes that restitution can be paid, and there must be competent substantial evidence of the defendants ability to pay, if this reason for departure is not to be defeated.298 There must also be competent, substantial evidence showing that the victims need for restitution outweighs the need for a prison sentence.299 The test is the victims need, not the

292. State v. Clark, 724 So. 2d 653 (Fla. Dist. Ct. App. 5th Dist. 1999). 293. State v. Skidmore, 755 So. 2d 647 (Fla. Dist. Ct. App. 4th Dist. 1999) (We need not address whether an inability to control anger, taken alone, rather than as a symptom of a medically recognized mental disorder, can constitute a basis for departure under [this section]); see also, State v. Coleman, 780 So. 2d 1004 (Fla. Dist. Ct. App. 4th Dist. 2001) (departure for treatment of pedophilia upheld); State v. Osburne, 717 So. 2d 1110 (Fla. Dist. Ct. App. 5th Dist. 1998) (evidence of Avoidant Personality Disorder and Dysthymic Disorder). 294. Sec. 921.0026(2)(e), F.S.; see also, State v. White, 755 So. 2d 830 (Fla. Dist. Ct. App. 5th Dist. 2000). 295. State v. Petringelo, 762 So. 2d 965 (Fla. Dist. Ct. App. 2d Dist. 2000). 296. State v. ODorle, 738 So. 2d 987 (Fla. Dist. Ct. App. 2d Dist. 1999) (restitution amount of $112.62 will not support downward departure sentencing). 297. See, State v. Adkison, 56 So. 3d 880 (Fla. Dist. Ct. App. 1st Dist. 2011). 298. State v. Baker, 713 So. 2d 1027 (Fla. Dist. Ct. App. 2d Dist. 1998). 299. State v. Kasten, 775 So. 2d 992 (Fla. Dist. Ct. App. 3d Dist. 2000) (downward departure on ground that defendant could pay for therapy for child victim of sexual offenses if he were not incarcerated reversed because there was no record testimony as to cost of future counseling, and victim was presently receiving counseling at no cost, and there was no record supporting the need for restitution); State v. Zachary, 755 So. 2d 830 (Fla. Dist. Ct. App. 5th Dist. 2000); State v. Bleckinger, 746 So. 2d 553 (Fla. Dist. Ct. App. 5th Dist. 1999).

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victims desire or preference.300 The trial court needs non-hearsay evidence of the extent of loss suffered by the victim.301 In the absence of testimony or a showing of the need for restitution by the victims or evidence that the defendant would be able to provide restitution if spared a longer sentence, a downward departure based on the need for restitution is improper.302 Simply pleading guilty to the crimes committed, thereby saving the State the cost of prosecution will not support a downward departure sentence on this basis because there is a distinction between restitution and the taxation of the costs of investigation and prosecution.303 Restitution can be made a condition of post-incarceration probation, however. The victim was an initiator, willing participant, aggressor, or provoker of the incident.304 The term incident, for purposes of this statutory mitigator, means the circumstances immediately surrounding the offense with which the defendant has been convicted, and not the more remote circumstances out of which the offense arose.305 In determining whether this mitigator applies in sex crimes when the victim is a minor, the trial court must consider the victims age and maturity and the totality of the circumstances of the relationship between the defendant and the victim: the younger and less mature the victim, the less likelihood of a finding that even willing participation is sufficient for mitigating a defendants sentence on the basis of consent.306 The statute does not exempt children, and so a court may consider a downward departure sentence on this basis in sex cases where the child victim could not legally consent to the sexual activity if factually the victim had been an initiator and a willing participant in the illegal conduct.307 Consent in this regard means intelligent, knowing, and voluntary

300. Demoss v. State, 843 So. 2d 309 (Fla. Dist. Ct. App. 1st Dist. 2003); Banks v. State, 732 So. 2d 1065 (Fla. 1999) (victims wishes not dispositive, for it is the judge, not the victim, who must weigh societys competing needs); see also, State v. Quintanal, 791 So. 2d 23 (Fla. Dist. Ct. App. 3d Dist. 2001) (reversing downward departure sentence where victims lost approximately $200,000 and preferred restitution over incarceration, but no evidence was presented as to victims need for restitution). 301. State v. Shillaci, 767 So. 2d 598 (Fla. Dist. Ct. App. 4th Dist. 2000) (downward departure improper where there was no evidence that the victims had any particular need or desire for restitution nor any evidence regarding the amount of restitution). 302. State v. Amodeo, 750 So. 2d 664 (Fla. Dist. Ct. App. 5th Dist. 1999). 303. State v. Bleckinger, 746 So. 2d 553 (Fla. Dist. Ct. App. 5th Dist. 1999); State v. Collins, 482 So. 2d 388 (Fla. Dist. Ct. App. 5th Dist. 1985); see, State v. Tyrrell, 807 So. 2d 122 (Fla. Dist. Ct. App. 5th Dist. 2002). 304. Sec. 921.0026(2)(f), F.S. 305. See, State v. Morales, 718 So. 2d 272 (Fla. Dist. Ct. App. 5th Dist. 1998). 306. See, State v. Johns, 576 So. 2d 1332 (Fla. Dist. Ct. App. 5th Dist. 1991) (reversal of downward departure sentence where the victim was a fourteen-year old prostitute and the defendant was a police officer). 307. Holland v. State, 953 So. 2d 19 (Fla. Dist. Ct. 2d Dist. 2007).

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consent.308 In crimes of violence, the mere fact that the victim was armed is not, in and of itself, sufficient to justify a departure on this basis.309 There must be some provocation on the part of the victim, although the provocation does not have to be legally sufficient to warrant a finding that the defendant acted in self-defense.310 This mitigator is not available in cases involving the sale of illegal drugs.311 While in the civil context a passengers voluntary action of knowingly riding in an automobile with an intoxicated driver can implicate comparative negligence principles to reduce damage awards,312 these comparative negligence principles do not extend to the statutory sentence mitigator of willing participation by the victim in a criminal DUI manslaughter case313 absent a causal connection between the victims conduct and defendants reckless driving.314

308. State v. Rife, 789 So. 2d 288 (Fla. 2001) (downward departure allowed in statutory rape case where victim was a willing participant despite fact that consent is not a defense to the crime); see also, Knox v. State, 814 So. 2d 1185 (Fla. Dist. Ct. App. 2d Dist. 2002); see, however, State v. Johns, 576 So. 2d 1332 (Fla. Dist. Ct. App. 5th Dist. 1991) (fact that 14-year-old prostitute charged defendant for sex cannot be used as basis to mitigate sentence). 309. Fonte v. State, 913 So. 2d 670 (Fla. Dist. Ct. App. 3d Dist. 2005). 310. Hines v. State, 817 So. 2d 964 (Fla. Dist. Ct. App. 2d Dist. 2002) (downward departure sentence could be imposed even though jury rejected self-defense claim); State v. Mathis, 541 So. 2d 744, 745 (Fla. Dist. Ct. App. 3d Dist. 1989) (affirming downward departure sentence in aggravated battery case where victim provoked defendant); State v. Tai Van Le, 533 So. 2d 258, 259 (Fla. Dist. Ct. App. 2d Dist. 1989) (affirming downward departure sentence in murder case on basis that victim was aggressor despite fact that jury apparently rejected defendants claim of self-defense). 311. State v. Holmes, 909 So. 2d 526 (Fla. Dist. Ct. App. 1st Dist. 2005) (fact that undercover officer was initiator, willing participant, aggressor, or provoker with respect to the drug sale was not a mitigating circumstance under which departure from lowest permissible sentence under sentencing guidelines would be reasonably justified, at sentencing for felony convictions for sale of cocaine within 1,000 feet of place of worship and conspiracy to sell/deliver cocaine within 1,000 feet of place of worship); State v. Holsey, 908 So. 2d 1159 (Fla. Dist. Ct. App. 1st Dist. 2005) (fact that undercover officer was initiator, willing participant, aggressor, or provoker of incident leading to charges against defendant was not proper ground for downward departure in sentencing). 312. See, e.g., Gerena v. Carter, 496 So. 2d 1009 (Fla. Dist. Ct. App. 2d Dist.1986) (in a civil action a victims intoxication may preclude recovery if he or she was more than fifty percent at fault for his or her own harm); Florida East Coast Ry. Co. v. Keilen, 183 So. 2d 547, 549-50 (Fla. Dist. Ct. App. 3d Dist. 1966) (Florida imposes a duty upon the guest to make a reasonable attempt, suitable to the occasion, to rectify the conduct of the driver whom he knows or by the exercise of ordinary and reasonable care should know is not exercising that degree of care in the operation of the vehicle compatible with the guests safety). 313. State v. Torres, 60 So. 3d 560 (Fla. Dist. Ct. App. 2d Dist. 2011). 314. See, e.g., State v. Hinds, 85 Wash. App. 474, 936 P. 2d 1135 (Wash. App. Div. 1,1997) (willing participant mitigating factor may be applicable in sentencing for vehicular homicide where victim provided alcohol to eighteen-year-old and allowed him to drive her automobile and causal connection is found between victims conduct and defendants recklessness).

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The defendant acted under extreme duress or under the domination of another person.315 The mitigator of extreme duress presupposes that a harm or crime of greater magnitude is avoided when the subjected person succumbs to the duress.316 Duress as used in this sense does not mean internal pressure, but actually refers to external provocation such as imprisonment or the use of force or threats.317 The compulsion or coercion which will support a departure sentence is akin to the common law defense of duress used to excuse the commission of a criminal act: It must be present, imminent, and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done; it must be continuous, and there must be no reasonable opportunity to escape the compulsion without committing the crime. A threat of future injury is not enough, particularly after danger from the threat has passed. However, it is not necessary that the defendant show that he or she was absolutely driven and made to commit the act charged as a crime.318 Legal recognition of duress as a defense to crimes other than homicide necessarily assumes a working hypothesis that a harm or crime of greater magnitude is avoided when the subjected person succumbs to the duress.319 As to domination by another person, the domination must be substantial and evidence that the defendant was easily led is insufficient, in and of itself, to establish this mitigator.320 Evidence that the defendant played a substantial part in the planning and/or execution of the offense can be sufficient to rebut or deny this mitigator.321 Before the identity of the defendant was determined, the victim was substantially compensated.322 This provision has not been the subject of appellate litigation in this state, but the litigation of equivalent provisions323 in other states provides insights into the appropriate

315. Sec. 921.0026(2)(g), F.S. 316. See, Wright v. State, 402 So. 2d 493 (Fla. 1981). 317. Pooler v. State, 704 So. 2d 1375 (Fla. 1997) (fact that his former girlfriend had been seeing another man, even if it caused defendant to become distraught, simply does not qualify as external provocation for purposes of this statutory mitigator); Toole v. State, 479 So. 2d 731 (Fla. 1985). 318. See, Hall v. State, 136 Fla. 644, 187 So. 392 (Fla. 1939). 319. Wright v. State, 402 So. 2d 493 (Fla. 1981). 320. See, Lawrence v. State, 846 So. 2d 440 (Fla. 2003). 321. See, Philmore v. State, 820 So. 2d 919 (Fla. 2002); White v. State, 817 So. 2d 799 (Fla. 2002). 322. Sec. 921.0026(2)(h), F.S. 323. E.g., Tenn. Code Ann. 40-35-113(5) (2004) allows for sentence mitigation if Before detection, the defendant compensated or made a good faith attempt to compensate the victim of criminal conduct for the damage or injury the victim sustained; Rev. Code. Wash. 9.94A.535(1)(b) (2004) allows for departure downward from that states sentencing guidelines if Before detection, the defendant compensated, or made a good faith attempt to compensate, the victim of the criminal conduct for the damage or injury sustained.

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application in Florida of this basis for departure sentencing. This provision represents a legislative distinction between the objective manifestation of remorse as a reaction to the commission of the crime and subjective manifestations of remorse as a reaction to potential sentencing consequences: Efforts to compensate before and after the identity of the defendant is determined, (e.g., pre-detection provision of first aid, payment of medical bills, return of all property taken, etc.) comprise more reliable evidence of remorse than the often dubious expression of remorse made only after the defendant is called into account for his or her actions. This legislative determination thus allows inclusion of reliable pre-detection evidence of remorse in sentence determination.324 This departure is also based on the fact of compensation of the victim.325 A mere promise or willingness to pay restitution is not enough.326 The compensation must be substantial.327 The actions of the defendant also must occur before detection.328 The actions of the defendant must also demonstrate remorse, as opposed to actions undertaken by the defendant for other considerations.329 The defendant cooperated with the State to resolve the current offense or any other offense.330 The court must also make a finding based on competent substantial evidence that a crime, or crimes, had been resolved as a result of the defendants cooperation.331 A departure sentence cannot be based on cooperation where the assistance does not result in solving any

324. See, State v. McClarney, 107 Wn. App. 256, 26 P.3d 1013 (Wash. Ct. App. 2001). 325. State v. McClarney, 107 Wn. App. 256, 26 P.3d 1013 (Wash. Ct. App. 2001). 326. See, State v. Morris, C.C. A. No. 02C01-9710-CC-00397, 1998 WL 508053 (Tenn. Ct. App. 1998). 327. See, State v. Ramsey, 2003 WL 21658589 (Tenn. Ct. App. 2003) (in course of home-invasion robbery involving theft of firearm and computer CPU and monitor, after removing batteries from victims cellular telephone and taking cord from victims other telephone, giving victim $4 to replace telephone cord before leaving crime scene not sufficient compensation). 328. See, State v. Kinneman, 120 Wn. App. 327, 84 P.2d 882 (Wash. Ct. App. Div. 1 2003) (payment of restitution into court registry after apprehension); State v. Burns, 2000 WL 1858997 (Tenn. Ct. App. 2000) (payment of restitution before sentencing hearing but after defendant charged); State v. Wallace, 2000 WL 1782757 (Tenn. Ct. App. 2000) (payment to business for forged check before defendant charged but subsequent to police involvement); State v. Burgess, 1997 WL 154058 (Tenn. Ct. App. 1997) (defendant made no effort to compensate victim until day of sentencing hearing). 329. See, State v. Goltz, 111 S.W.3d 1 (Tenn. Ct. App. 2003) (return of stolen items not motivated by good faith, but rather, in an attempt to avoid detection); State v. Bruce, 2002 WL 31154602 (Tenn. Crim. App. 2002) (return of stolen items was not an attempt to compensate the victim but was rather a product of the abusive and controlling relationship by the [defendant] towards the victim); State v. Galindo, 2000 WL 378314 (Tenn. Ct. App. 2000) (offer or restitution when defendant knew she was about to get caught). 330. Sec. 921.0026(2)(i), F.S. 331. See, State v. Bell, 854 So. 2d 686 (Fla. Dist. Ct. App. 5th Dist. 2003), review denied, 866 So. 2d 1212 (Fla. 2004); State v. Beck, 763 So. 2d 506 (Fla. Dist. Ct. App. 4th Dist. 2000).

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crimes or the arrest of other persons.332 A defendants act of turning himself or herself in to the police does not constitute cooperation with authorities and cannot serve as the basis for a downward departure.333 A defendants action in not requiring police officers to get a search warrant to search his or her home and giving a statement to officers does not rise to the level of cooperation required in order to justify a downward departure sentence.334 Confessing to the crimes for which he or she is charged and allowing the police to search his or her room, where no contraband is found or crimes solved as a result and where it does not lead to the arrest of other persons, cannot serve as the basis for a downward departure.335 Merely pleading guilty is not sufficient cooperation for departure below the required sentence.336 Prior cooperation with the State that results in sentence mitigation cannot be used to mitigate sentencing for a new offense or a violation of probation or community control.337 A defendants cooperation can also be devalued for departure purposes where he or she commits additional offenses that undermine his or her credibility and value as a witness.338 Substantial assistance can also be a basis for post sentencing mitigation of a defendants sentence. Notwithstanding any other law, the state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of violating any felony offense or who provides substantial assistance in the identification, arrest, or conviction of any of that persons accomplices, accessories, coconspirators, or principals or of any other person engaged in criminal activity that would constitute a felony. The arresting aency must be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if the judge finds that the defendant rendered such substantial assistance.339 The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.340 Section 921.0026(2)(j), F.S. requires that the

332. State v. Ertel, 886 So. 2d 423 (Fla. Dist. Ct. App. 2d Dist. 2004). 333. State v. Laroe, 821 So. 2d 1199, (Fla. Dist. Ct. App. 5th Dist. 2002). 334. State v. Ertel, 886 So. 2d 423 (Fla. Dist. Ct. App. 2d Dist. 2004). 335. State v. White, 894 So. 2d 293 (Fla. Dist. Ct. App. 2d Dist. 2005). 336. State v. Collins, 482 So. 2d 388 (Fla. Dist. Ct. App. 5th Dist. 1985). 337. See, State v. Bell, 854 So. 2d 686 (Fla. Dist. Ct. App. 5th Dist. 2003), review denied, 866 So. 2d 1212 (Fla. 2004). 338. State v. Pita, 54 So. 3d 557 (Fla. Dist. Ct. App. 3d Dist. 2011). 339. Sec. 921.186, F.S. 340. Sec. 921.0026(2)(j), F.S.

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defendant prove three elements: (1) the offense was committed in an unsophisticated manner, (2) it was an isolated incident, and (3) the defendant has shown remorse.341 All three elements must be proven, not just one or two.342 For purposes of a departure sentence the word unsophisticated is generally defined as being the opposite of sophisticated; further, as having acquired worldly knowledge or refinement; lacking natural simplicity or naivete.343 While lack of sophistication is demonstrated by artlessness, simplicity, naivet, and unrefinement, sophistication sufficient to defeat this basis for downward departure can be found where the defendant has taken careful, distinctive, and deliberate steps to perpetrate the offense. Sophistication can be shown, for example, where a defendant makes a surgical strike and takes only a certain coveted item from the victim,344 a defendant throws an object at the windshield of the vehicle his or her victim is operating in order to get the victim to stop and be accessible to the defendant,345 where the defendant gains entry to the victims residence by deceit,346 or where the defendant makes a calculated decision not to flee after detection and to continue the offense or defeat the detection.347 Neither the legislature nor the courts has established a bright-line rule for determining whether an offense is an isolated incident. A trial court is not, however, precluded from giving a defendant a downward departure sentence just because the defendant has any prior criminal

341. State v. Jordan, 867 So. 2d 635 (Fla. Dist. Ct. App. 5th Dist. 2004); State v. Bell, 854 So. 2d 686 (Fla. Dist. Ct. App. 5th Dist. 2003), review denied, 866 So. 2d 1212 (Fla. 2004); State v. Bleckinger, 746 So. 2d 553 (Fla. Dist. Ct. App. 5th Dist. 1999). 342. State v. Deleon, 867 So. 2d 636 (Fla. Dist. Ct. App. 5th Dist. 2004); State v. Falocco, 730 So. 2d 765 (Fla. Dist. Ct. App. 5th Dist. 1999). 343. American Heritage Dictionary of the English Language (1981); Staffney v. State, 826 So. 2d 509 (Fla. Dist. Ct. App. 4th Dist. 2002) (sexual battery was not unsophisticated); State v. Fleming, 751 So. 2d 620 (Fla. Dist. Ct. App. 4th Dist. 1999) (purchase of marijuana was unsophisticated). 344. State v. Perez-Gonzalez, 884 So. 2d 1031 (Fla. Dist. Ct. App. 3d Dist. 2004). 345. State v. Chestnut, 718 So. 2d 312 (Fla. Dist. Ct. App. 5th Dist. 1998). 346. State v. Morales, 718 So. 2d 272 (Fla. Dist. Ct. App. 5th Dist. 1998). 347. State v. Salgado, 948 So. 2d 12 (Fla. Dist. Ct. App. 3d Dist. 2006).

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history.348 Isolated offenses do not include continuing offenses.349 A crime may not be considered an isolated incident for purposes of this basis of departure where the defendant has been convicted of other felonies and misdemeanors.350 A prior history of like crimes can render this basis for departure unavailable.351 A defendants extensive prior criminal record precludes a showing that an offense was an isolated incident.352 Note that it is proper for the sentencing court to consider the defendants prior juvenile record when determining whether or not an offense is isolated.353 Remorse is defined as a gnawing distress arising from a sense of guilt for past wrongs (as injuries done to others).354 The remorse expressed has to be for the offense before the court for sentencing, not for matters that gave rise to that offense.355 Guided statements elicited by the court or counsel, simply saying Im sorry at sentencing, or apologizing for pain the defendant caused the victims family is not enough to satisfy the requirements of this basis for departure.356

348. See, e.g., State v. Fontaine, 955 So. 2d 1248, 1251 (Fla. Dist. Ct. App. 4th Dist. 2007) (Warner, J., concurring) (the defendants current offense was an isolated incident where his criminal record included two misdemeanors that were committed ten years earlier); State v. Randall, 746 So. 2d 550, 552 (Fla. Dist. Ct. App. 5th Dist. 1999) (the defendants current offense was an isolated incident where he had only one prior criminal conviction). 349. State v. Hinson, 855 So. 2d 119 (Fla. Dist. Ct. App. 1st Dist. 2003) (fleeing after VOP sentencing is not an isolated incident, but rather a continuous violation of the law; living at liberty for six and one-half years, solely due to leaving the area and successfully avoiding arrest and living as a fugitive on an outstanding warrant, is not a valid ground on which to depart downward). 350. State v. Tice, 898 So. 2d 268 (Fla. Dist. Ct. App. 5th Dist. 2005) (departure sentence of defendant convicted of burglary and resisting an officer without violence vacated where defendant had been previously convicted of resisting an officer without violence, two violations of probation, aggravated battery with a deadly weapon, and fleeing or attempting to elude a police officer0: see also, State v. Jordan, 867 So. 2d 635 (Fla. Dist. Ct. App. 5th Dist. 2004). 351. State v. White, 894 So. 2d 293 (Fla. Dist. Ct. App. 2d Dist. 2005) (defendant sold cocaine during four-month period and was still consuming cocaine four months after arrest, as revealed by testing during supervised pretrial release); State v. Bell, 854 So. 2d 686 (Fla. Dist. Ct. App. 5th Dist. 2003), review denied, 866 So. 2d 1212 (Fla. 2004) (two prior convictions for driving on a suspended drivers license for person charged with driving getaway car on suspended license). 352. State v. Ayers, 901 So. 2d 942 (Fla. Dist. Ct. App. 2d Dist. 2005); State v. McGriff, 698 So. 2d 331 (Fla. Dist. Ct. App. 2d Dist. 1997). 353. Waterman v. State, 12 So. 3d 1265 (Fla. Dist. Ct. App. 4th Dist. 2009). 354. Beasley v. State, 774 So. 2d 649 (Fla. 2000). 355. State v. Michels, 59 So.3d 1163 (Fla. Dist. Ct. App. 4th Dist. 2011) (remorse for incident that gave rise to defendant being required to register as sexual offender does not meet statutory departure requirement where defendant is charged with failure to register). 356. State v. Tyrrell, 807 So. 2d 122 (Fla. Dist. Ct. App. 5th Dist. 2002); State v. Baker, 713 So. 2d 1027 (Fla. Dist. Ct. App. 2d Dist. 1998); State v. Whiting, 711 So. 2d 1212 (Fla. Dist. Ct. App. 2d Dist. 1998).

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It is impossible for a defendant who refuses to accept responsibility for an offense to show remorse for that offense.357 Sympathy is not the same as remorse, and a defendants expression of sorrow that a victim was injured or suffered some loss is not what the legislature contemplated in creating this basis for downward departure.358 Note that, ironically, this basis is available to support a downward departure from a sentence for a driving under the influence (DUI) conviction; there is in fact no prohibition on such use of any of the mitigators listed in section 921.0026(2), F.S., where the offense is intoxication, even though intoxication itself is not a valid reason for downward departure.359 This basis for departure has been sustained on appeal where a 25-year-old defendant convicted of committing a lewd and lascivious or indecent act on an almost 16-year-old sexually experienced minor and enticing a minor to commit a lewd, lascivious or indecent act where there was evidence that the three sex acts committed by the defendant were isolated because they were something the defendant had never engaged in before, that the acts took place in a relatively short span of time, that the defendant had no prior criminal history, that the sex acts were performed in an unsophisticated manner, and that the defendant truly was remorseful about his activities immediately after being accused.360 Where an adult defendant has committed lewd molestation on a child victim, however, it might be difficult, if not impossible, to prove that the defendant committed the offense in an unsophisticated manner.361 This basis for departure has also been sustained on appeal where the defendant was charged with sale and possession of cocaine arising out of four instances when the defendant sold a total of 1.8 gram of cocaine to the same confidential informant over a period of several days, netting the defendant $220, where the defendant had no prior history of drug charges, made a full confession to the police after his arrest, claimed the only reason he was selling drugs was to buy Christmas presents for his children, and appeared to be remorseful.362 At the time of the offense the defendant was too young to appreciate the consequences of the offense.363 The youthful age of an offender is not a valid reason for a departure sentence

357. State v. Ayers, 901 So. 2d 942 (Fla. Dist. Ct. App. 2d Dist. 2005). 358. State v. Chestnut, 718 So. 2d 312 (Fla. Dist. Ct. App. 5th Dist. 1998). 359. State v. VanBebber, 848 So. 2d 1046 (Fla. 2003). 360. State v. Merritt, 714 So. 2d 1153 (Fla. Dist. Ct. App. 5th Dist. 1998). 361. See, State v. Subido, 925 So. 2d 1052 (Fla. Dist. Ct. App. 5th Dist. 2006) (fifteen-year-old sleeping victim); State v. Munro, 903 So. 2d 381 (Fla. Dist. Ct. App. 2d Dist. 2005) (seven-year-old victim); State v. Bernard, 744 So. 2d 1134 (Fla. Dist. Ct. App. 2d Dist. 1999). 362. State v. Randall, 746 So. 2d 550 (Fla. Dist. Ct. App. 5th Dist. 1999). 363. Sec. 921.0026(2)(k), F.S.

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unless there are other factors present, such as emotional immaturity or lack of intelligence.364 In other words, a defendants youthful age alone will not justify a departure sentence. There must also be evidence that the defendant is emotionally immature or lacks ordinary intelligence.365 Section 921.0026(2)(k) specifically requires that the defendant be both youthful and unable to appreciate the consequences of the offense in order to be eligible for a downward departure sentence on this basis.366 In those cases where age has been considered as a basis of departure, it has generally been accompanied by a clean record, although some courts have required an even greater showing, such as the support of friends and family.367 In some cases youthful age of the defendant, coupled with some reasonable chance for the defendants rehabilitation, has been deemed a sufficient foundation for departure on this basis.368 The defendant is to be sentenced as a youthful offender.369 A Youthful offender (YO) is any person who is sentenced as such by the court or is classified as such by the Department of Corrections pursuant to section 958.04.370 There are two ways by which a defendant can become entitled to the benefits of the YO statute. Either the trial court can sentence the defendant as a YO, or the Department of Corrections can designate a defendant who was sentenced as an adult to be a YO.371 Pursuant to section 958.04, F.S., the court may sentence as a YO any person: (a) Who is at least 18 years of age or who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 985;
364. State v. Evans, 630 So. 2d 203 (Fla. Dist. Ct. App. 2d Dist. 1993); see also, State v. Williams, 963 So. 2d 281 (Fla. Dist. Ct. App. 4th Dist. 2007) (the age of twenty-two does not place a defendant in the category of being too young to appreciate the consequences of driving with a revoked license); State v. Gilson, 800 So. 2d 727 (Fla. Dist. Ct. App. 5th Dist. 2001) (age of 18 years is not, alone, a sufficient basis for departure but may be if coupled with competent substantial evidence of emotional immaturity); State v. Thompson, 754 So. 2d 126 (Fla. Dist. Ct. App. 5th Dist. 2000) (age is not a legitimate basis for departure when defendant is 48 years old at time of sentencing); State v. Collins, 482 So. 2d 388 (Fla. Dist. Ct. App. 5th Dist. 1985) (23 years of age is not considered young for a robber). 365. State v. Salgado, 948 So. 2d 12 (Fla. Dist. Ct. App. 3d Dist. 2006); State v. Gilson, 800 So. 2d 727, 730 (Fla. Dist. Ct. 5th Dist. 2001); State v. Licea, 707 So. 2d 1155, 1157 (Fla. 2d DCA 1998); State v. Ashley, 549 So. 2d 226 (Fla. Dist. Ct. App. 3d Dist. 1989). 366. State v. Salgado, 948 So. 2d 12 (Fla. Dist. Ct. App. 3d Dist. 2006). 367. See, State v. Licea, 707 So. 2d 1155 (Fla. Dist. Ct. App. 2d Dist. 1998); State v. Williams, 637 So. 2d 45 (Fla. Dist. Ct. App. 2d Dist. 1994). 368. State v. Whiddon, 554 So. 2d 651 (Fla. Dist. Ct. App. 1st Dist. 1989). 369. Sec. 921.0026(2)(l), F.S. 370. Sec. 958.03(5), F.S. 371. See, Smith v. State, 750 So. 2d 754 (Fla. Dist. Ct. App. 1st Dist. 2000).

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(b) Who is found guilty of or who has tendered, and the court has accepted, a plea of nolo contendere or guilty to a crime that is, under the laws of this state, a felony if the offender is younger than 21 years of age at the time sentence is imposed372; and (c) Who has not previously been classified as a youthful offender under the provisions of chapter 985; however, a person who has been found guilty of a capital or life felony may not be sentenced as a YO under the Youthful Offender Act. In lieu of other criminal penalties authorized by law and notwithstanding any imposition of consecutive sentences, the court is required to dispose of the criminal case as follows: (a) The court may place a YO under supervision on probation or in a community control program, with or without an adjudication of guilt, under such conditions as the court may lawfully impose for a period of not more than 6 years. Such period of supervision may not exceed the maximum sentence for the offense for which the YO was found guilty. (b) The court may impose a period of incarceration as a condition of probation or community control, which period of incarceration shall be served in a county facility, a Department of Corrections probation and restitution center, or a community residential facility that is owned and operated by any public or private entity providing such services. A YO may not be required to serve a period of incarceration in a community correctional center as defined in section 944.026, F.S. Admission to a Department of Corrections facility or center is contingent upon the availability of bed space, taking into account the purpose and function of such facility or center, and placement in such a facility or center may not exceed 364 days. (c) The court may impose a split sentence whereby the YO is to be placed on probation or community control upon completion of any specified period of incarceration; however, if the incarceration period is to be served in a Department of Corrections facility other than a probation and restitution center or community residential facility, such period must be for not less than 1 year or more than 4 years. The period of probation or community control must commence immediately upon the release of the YO from incarceration. The period of incarceration imposed or served and the period of probation or community control, when added together, may not not exceed 6 years. (d) The court may commit the YO to the custody of the Department of Corrections for a period of not more than 6 years, provided that any such commitment may not exceed the maximum sentence for the offense for which the YO has been convicted. Successful

372. On October 1, 2008, section 958.04(1)(b) was amended by Laws 2008, chapter 2008-250, section 7, in subsection (1) by substituting the offender is younger than 21 years of age at the time sentence is imposed for such crime was committed before the defendants 21st birthday following felony if in paragraph (b). This change has not been given retroactive effect, however, making defendants who were under 21 years of age at the time of their offenses but over the age of 21 at the time of sentencing eligible for youthful offender status after this change in the law went into effect. See, Urban v. State, 46 So. 3d 1113 (Fla. Dist. Ct. App. 5th Dist. 2010).

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participation in the YO program by an offender who is sentenced as a YO by the court pursuant to this section, or is classified as such by the Department of Corrections, may result in a recommendation to the court, by the Department of Corrections, for a modification or early termination of probation, community control, or the sentence at any time prior to the scheduled expiration of such term. When a modification of the sentence results in the reduction of a term of incarceration, the court may impose a term of probation or community control which, when added to the term of incarceration, shall not exceed the original sentence imposed. Consecutive YO sentences exceeding the applicable maximum of six years are illegal.373 A sentencing court can impose any YO sentence, so long as no matter how many sentences are imposed, the total does not exceed four years incarceration followed by two years probation or community control allowed by the applicable youthful offender statute.374 A violation or alleged violation of probation or the terms of a community control program subjects the youthful offender to the provisions of section 948.06. However, no youthful offender can be committed to the custody of the Department of Corrections for a substantive violation for a period longer than the maximum sentence for the offense for which the youthful offender was found guilty, with credit for time served while incarcerated, or for a technical or nonsubstantive violation for a period longer than six years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated.375 The legislature has not defined substantive violation or technical or nonsubstantive violation, but courts examining the Youthful Offender Act have defined substantive violation as a new separate criminal offense by a youthful offender,376 whether or not he or she is ever charged or convicted of that new criminal offense.377 In contrast, a technical violation is a violation of a rule of probation or community control.378 The provisions of the YO Act cannot be used to impose a greater sentence than the permissible sentence range as established by the Criminal Punishment Code pursuant to chapter 921 unless reasons are explained in writing by the trial court judge which reasonably justify

373. Schebel v. State, 721 So. 2d 1177 (Fla. Dist. Ct. App. 1st Dist. 1998), appeal dismissed, 723 So. 2d 830 (Fla. 1990). 374. Nguyen v. State, 566 So. 2d 368 (Fla. Dist. Ct. App. 5th Dist. 1990). 375. Sec. 958.14, F.S. 376. Swilley v. State, 781 So. 2d 458 (Fla. Dist. Ct. App. 2d Dist. 2001); Meeks v. State, 754 So. 2d 101, 103 (Fla. Dist. Ct. App. 1st Dist. 2000); Robinson v. State, 702 So. 2d 1346, 1347 (Fla. Dist. Ct. App. 5th Dist. 1977); Johnson v. State, 678 So. 2d 934 (Fla. Dist. Ct. App. 3d Dist. 1996). 377. See, Christian v. State, 84 So. 3d 437 (Fla. Dist. Ct. App. 5th Dist. 2012). 378. See, Swilley v. State, 781 So. 2d 458 (Fla. Dist. Ct. App. 2d Dist. 2001); Meeks v. State, 754 So. 2d 101, 103 (Fla. Dist. Ct. App. 1st Dist. 2000), approved by State v. Meeks, 789 So. 2d 982 (Fla. 2001).

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departure. A sentence imposed outside of the Criminal Punishment Code is subject to appeal pursuant to section 924.06 or section 924.07, F.S. No one who has been found guilty of a life felony can be sentenced as a YO.379 Otherwise, a trial court may exercise discretion and not impose a youthful offender sentence.380 Failure to sentence a defendant as a youthful offender does not result in an illegal sentence.381 A defendant may not be simultaneously sentenced as both a youthful offender and as an adult.382 The sentencing court may not impose a youthful offender sentence on one count, but not another, even if part of a plea agreement.383 As the intent of the Youthful Offender Act was to provide a sentencing alternative more stringent than the juvenile system but less harsh than the adult system, imposition of consecutive sentences as a youthful offender and as an adult would thwart the purpose of the Act.384 Imposition of sanctions other than those of the Youthful Offender Act is, in fact, prohibited once a court classifies a defendant as a YO. Minimum mandatory sentencing, in fact, is not applicable when a defendant is sentenced as a YO.385 A YO sentence may be imposed on a defendant in lieu of a mandatory sentence under the 10-20-Life scheme mandated by the firearm enhancement statute, section 775.087, F.S., because the firearm enhancement statute contains no language to supersede a YO sentence.386 Imposition of the statutorily mandated

379. Sec. 958.04(1)(c), F.S.; Beatrice v. State, 832 So. 2d 972 (Fla. Dist. Ct. App. 4th Dist. 2003) (conviction for first degree felony reclassified under 10/20/Life statute as life felony precludes sentencing as youthful offender). 380. Legette v. State, 694 So. 2d 826 (Fla. Dist. Ct. App. 2d Dist. 1997). 381. Edwards v. State, 830 So. 2d 141 (Fla. Dist. Ct. App. 5th Dist. 2002). 382. See, Johnson v. State, 596 So. 2d 495 (Fla. Dist. Ct. App. 5th Dist. 1992) (a defendant simultaneously sentenced to four years incarceration in two cases as a youthful offender, followed by ten years probation as an adult in two other cases, received an illegal sentence). 383. Goelz v. State, 937 So. 2d 1237 (Fla. Dist. Ct. App. 4th Dist. 2006). 384. Kelly v. State, 739 So. 2d 1164 (Fla. Dist. Ct. App. 5th Dist. 1999); see, Allen v. State, 526 So. 2d 69 (Fla. 1988). 385. See, State v. Oglester, 830 So. 2d 124 (Fla. Dist. Ct. App. 3d Dist. 2002); State v. Drury, 829 So. 2d 287 (Fla. Dist. Ct. App. 1st Dist. 2002); State v. Fernandez, 819 So. 2d 945 (Fla. Dist. Ct. App. 3d Dist. 2002); Darrow v. State, 789 So. 2d 552 (Fla. Dist. Ct. App. 5th Dist. 2001); State v. Bynes, 784 So. 2d 1145 (Fla. Dist. Ct. App. 2d Dist. 2001); Porter v. State, 702 So. 2d 257 (Fla. Dist. Ct. App. 4th Dist. 1997); Ellis v. State, 475 So. 2d 1021 (Fla. Dist. Ct. App. 2d Dist. 1985). 386. Bennett v. State, 24 So. 3d 693 (Fla. Dist. Ct. App. 1st Dist. 2009); Windham v. State, 14 So. 3d 255 (Fla. Dist. Ct. App. 5th Dist. 2009); State v. Wooten, 782 So. 2d 408 (Fla. Dist. Ct. App. 2d Dist. 2001) (minimum mandatory sentencing provisions of 10/20/Life statute applicable to enumerated felonies involving firearm do no supercede youthful offender sentence); Salazar v. State, 544 So. 2d 313 (Fla. Dist. Ct. App. 2d Dist. 1989) (3-year minimum mandatory for use of firearm does not apply to youthful offender); Patterson v. State, 408 So. 2d 785 (Fla. Dist. Ct. App. 2d Dist. 1982) (same).

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minimum mandatory prison sentence and fine under the drug trafficking statute, section 893.135, F.S., is also preempted by the YO statute.387 A defendant classified as a YO is not subject to the minimum mandatory provisions of the DUI manslaughter statute,388 and the trial court can withhold adjudication for DUI offenses notwithstanding the mandatory language of section 316.656(1), F.S.389 A defendant classified as a YO may, however, also be designated as a sexual offender or sexual predator.390 If designated a sexual offender or sexual predator, the defendant is subject to the mandatory conditions of probation set out in section 948.30, F.S., notwithstanding the defendants designation as a YO.391 An otherwise qualified defendant who was originally sentenced as an adult can be sentenced as a YO upon revocation of probation or community control.392 The defendant is a nonviolent felony offender. A departure from the lowest permissible sentence of imprisonment may be justified when the defendants offense is a nonviolent felony, the defendants Criminal Punishment Code scoresheet total sentence points under section 921.0024 are 60 points or fewer, and the court determines that the defendant is amenable to the services of a postadjudicatory treatment-based drug court program and is otherwise qualified to participate in the program as part of the sentence. For purposes of this paragraph, the term nonviolent felony has the same meaning as provided in section 948.08(6).393 The defendant was making a good faith effort to obtain or provide medical assistance for a drug-related overdose.394 Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified includes situations where the defendant was making

387. Inman v. State, 842 So. 2d 862 (Fla. Dist. Ct. App. 2d Dist. 2003) ($50,000 drug trafficking fine prohibited); Mendez v. State, 835 So. 2d 348 (Fla. Dist. Ct. App. 4th Dist. 2003) (3-year minimum mandatory and $50,000 fine for drug trafficking cannot be imposed on defendant sentenced as youthful offender); State v. Richardson, 766 So. 2d 1111 (Fla. Dist. Ct. App. 3d Dist. 2000) (mitigating 15-year minimum mandatory sentence as a youthful offender for 19-yearold defendant convicted of trafficking in excess of 400 grams of cocaine was within trial courts discretion); Jones v. State, 588 So. 2d 73 (Fla. Dist. Ct. App. 4th Dist. 1991) (mandatory 3 year sentence for conviction of selling drugs within 1,000 feet of school does not apply to defendant sentenced as youthful offender). 388. State v. Gibron, 478 So. 2d 475 (Fla. Dist. Ct. App. 2d Dist. 1985). 389. Sloan v. State, 884 So. 2d 378 (Fla. Dist. Ct. App. 2d Dist. 2004). 390. Dejesus v. State, 862 So. 2d 847 (Fla. Dist. Ct. App. 4th Dist. 2003). 391. State v. Miller, 888 So. 2d 76 (Fla. Dist. Ct. App. 5th Dist. 2004). 392. See, Hill v. State, 927 So. 2d 1047 (Fla. Dist. Ct. App. 2d Dist. 2006); Williams v. State, 889 So. 2d 969 (Fla. Dist. Ct. App. 4th Dist. 2004); Mearns v. State, 779 So. 2d 282 (Fla. Dist. Ct. App. 2d Dist. 1998). 393. Sec. 921.0026(2)(m), F.S. 394. Sec. 921.0026(2)(n), F.S.

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a good faith effort to obtain or provide medical assistance for an individual experiencing a drugrelated overdose.395 This statutory basis for downward departure sentencing was enacted by the Florida Legislature in the 2012 session as part of the 911 Good Samaritan Act, SB 278, that created section 893.21, F.S., which provides that a person who in good faith seeks medical assistance for an individual experiencing a drug-related overdose may not be charged, prosecuted, or penalized for possession of a controlled substance if the evidence for possession was obtained as a result of the persons seeking medical assistance. This law provides that a person who experiences a drug-related overdose and is in need of medical assistance may not be charged, prosecuted, or penalized for possession of a controlled substance if the evidence for possession was obtained as a result of the overdose and the need for medical assistance. The law also states that the abovedescribed protection from prosecution for possession offenses may not be grounds for suppression of evidence in other criminal prosecutions. Because there is no stated exclusion from being charged, prosecuted or penalized for a person who has committed any other offenses or who has an outstanding arrest warrant, such an exclusion should not be presumed. Persons who are in possession of trafficking amounts of controlled substances are not meant to benefit from the bills provisions. Likewise persons who possess a controlled substance with the intent to sell, deliver, manufacture or purchase would be eliminated from claiming the benefits of the law.396 Substantial assistance. Another statutory mitigator and basis for departure sentencing, applicable to drug traffickers, is the provision of substantial assistance to law enforcement. In enacting section 893.135, the legislature provided that the various crimes included therein mandatory minimum sentences should be imposed. However, as part of the legislative scheme to stem trafficking in drugs, the legislature authorized trial courts to mitigate a mandatory sentence upon motion by the state attorney if the convicted person provides substantial assistance in the identification, arrest, or conviction of any of that persons accomplices, accessories, coconspirators, or principals or of any other person engaged in trafficking in controlled substances. As part of this provision, the arresting agency must be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if the judge finds that the defendant rendered such substantial assistance.397 In the absence of such a motion and a finding of substantial assistance, the court does not have any authority to sentence a defendant convicted of drug trafficking below the minimum mandatory

395. Sec. 921.0026(2)(n), F.S. 396. See, SB 278, Bill Analysis and Fiscal Impact Statement, Professional Staff of the Criminal Justice Committee, January 10, 2012. 397. Sec. 893.135(4), F.S.; see also, State v. Taylor, 411 So. 2d 993 (Fla. Dist. Ct. App. 4th Dist. 1982).

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sentence.398 Note that, where the defendant enters into a plea agreement that he or she is able to provide substantial assistance in exchange for the possibility of a sentence below the statutory minimum mandatory and the State refuses to allow the defendant to provide this assistance, such constitutes good cause for the defendant to withdraw his or her plea prior to sentencing.399 Non-Statutory Mitigating Circumstances A court can properly enter a departure sentence for a factor that is not specifically enumerated in the sentencing statutes.400 The list of statutory grounds for both upward and downward departure for the former guidelines provided in section 921.0016(4), F.S., and for downward departure in section 921.0026(2), F.S., for the Criminal Punishment Code, which are statutes of inclusion and not exclusion, is, therefore, not exclusive of other valid legal grounds.401 This is consistent with the established practice of individualized sentences resting on public policy considerations. In evaluating a nonstatutory mitigating circumstance, however, the question the trial court should ask is whether the nonstatutory reasons for downward departure given meet the legislative policy for departing downward.402 Unlike statutory mitigation that has been clearly defined by the legislature, nonstatutory mitigation may consist of any factor that could reasonably bear on the sentence imposed. The parameters of nonstatutory mitigation are largely undefined, which is one of the reasons that the burden is placed on the defense to identify the specific nonstatutory mitigators relied on.403 Circumstances or factors that reasonably justify downward departure from the Criminal Punishment Code or guidelines minimum sentence may, in theory if not in actual fact, include virtually any justification that is reasonable under the circumstances. In the consideration of nonstatutory reasons for mitigation, there is also no distinction to be drawn between capital and noncapital sentence mitigators that may be considered by a sentencing court.404 Factors that fall short of a defense sufficient to avoid responsibility for a crime by negating an element of an offense

398. Sec. 893.135(3), F.S.; State v. Senich, 543 So. 2d 804 (Fla. Dist. Ct. App. 4th Dist. 1989); State v. Gallagher, 573 So. 2d 164 (Fla. Dist. Ct. App. 4th Dist. 1991); State v. Swider, 654 So. 2d 562 (Fla. Dist. Ct. App. 4th Dist. 1995). 399. Arzola v. State, 994 So. 2d 1209 (Fla. Dist. Ct. App. 5th Dist. 2008). 400. McCorvey v. State, 872 So. 2d 395 (Fla. Dist. Ct. App. 1st Dist. 2004). 401. Franquiz v. State, 682 So. 2d 536, 538 (Fla. 1996); State v. Randall, 746 So. 2d 550, 552 (Fla. Dist. Ct. App. 5th Dist. 1999). 402. State v. Chestnut, 718 So. 2d 312, 313 (Fla. Dist. Ct. App. 5th Dist. 1998). 403. Israel v. State, 837 So. 2d 381 (Fla. 2002). 404. See, e.g., Campbell v. State, 571 So. 2d 415 (Fla. 1990).

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may even provide a basis for mitigation at sentencing, in the totality of the circumstances. In such a situation, the courts departure is reviewed under the abuse of discretion standard.405 The defense is required to identify for the court specific nonstatutory mitigating circumstances it is attempting to establish as a basis for departure.406 Unlike statutory mitigation that has been clearly defined by the legislature, nonstatutory mitigation may consist of any factor that could reasonably bear on the sentence. A court may, therefore, impose a downward departure sentence for reasons not delineated in section 921.0026, so long as the reason given is supported by competent, substantial evidence and not otherwise prohibited.407 In seeking a downward departure for nonstatutory reasons (or for a combination of statutory reasons where the facts of the case and of mitigation do not by themselves warrant downward departure on the basis of any single statutory reason) the defense has to argue for, within the Criminal Punishment Codes framework, a downward departure from the presumptive minimum sentence on the ground that the defendants circumstances present an atypical case that falls outside the heartland to which the Legislature intends the provisions of the Criminal Punishment Code to apply. This is analogous to the heartland rule for downward departures from the federal sentencing guidelines announced by the United States Supreme Court in Rita v. United States.408 This approach argues that the presumption of reasonableness afforded a sentence that is within the authorization of the Criminal Punishment Code does not mean that a departure sentence carries a presumption of unreasonableness or that only extraordinary circumstances can justify a sentence below that authorized by the Code.409 Regardless, in evaluating a nonstatutory mitigating circumstance, a reviewing court must consider the reasons given in light of the stated legislative sentencing policy.410 Because the first purpose of

405. See, e.g., State v. Williams, 870 So. 2d 938 (Fla. Dist. Ct. App. 5th Dist. 2004) (departure on basis of diminished mental capacity); State v. Sachs, 526 So. 2d 48 (Fla. 1988) (downward departure may be based on finding that defendant poses no future threat to society and that his misconduct was isolated). 406. See, Lucas v. State, 568 So. 2d 18 (Fla. 1990). 407. State v. Stephenson, 973 So. 2d 1259 (Fla. Dist. Ct. App. 5th Dist. 2008); State v. Laroe, 821 So. 2d 1199 (Fla. Dist. Ct. App. 5th Dist. 2002); State v. Randall, 746 So. 2d 550, 552 (Fla. Dist. Ct. App. 5th Dist. 1999); State v. Turro, 724 So. 2d 1216, 1217 (Fla. Dist. Ct. App. 3d Dist. 1998).

408. Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456 (2007). 409. The United States Supreme Court has, for example, rejected an appellate rule that requires extraordinary circumstances to justify a sentence outside the federal Sentencing Guidelines range.) See, Gall v. United States, 552 U.S. 38, 128 S. Ct. 586 (2007). 410. State v. McKnight, 35 So. 3d 995 (Fla. Ct. App. 5th Dist. 2010); State v. Geoghagan, 27 So. 3d 111, 115 (Fla. Dist. Ct. App. 1st Dist. 2009); Rafferty v. State, 799 So. 2d 243, 248 (Fla. Dist. Ct. App. 2d Dist. 2001) (during sentencing, question trial court should ask is whether nonstatutory reasons given for downward departure meet legislative policy for departing downward in sentencing); State v. Chestnut, 718 So. 2d 312, 313 (Fla. Dist. Ct. App. 5th Dist. 1998).

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sentencing is to punish, a downward departure from the permissible sentence is discouraged and adequate justification is required.411 Sentencing Entrapment and Sentence Manipulation Doctrines of sentence entrapment and sentence manipulation have developed in response to perceived abuses of sentencing laws, particularly as to graduated mandatory minimum sentencing schemes. A finding of sentencing entrapment or sentence manipulation will reduce a defendants culpability and can be relied upon to mitigate that defendants sentence. Sentencing entrapment. Although the doctrine of sentencing entrapment may be relied upon to depart from the Federal Sentencing Guidelines,412 and it has so far not been formally recognized as a nonstatutory basis for downward departure sentencing in Florida, it is not inconsistent with present sentencing doctrine in this state. Sentencing entrapment occurs when outrageous official conduct overcomes the will of an individual predisposed only to commit a minor or lesser offense and the individual is entrapped into committing a greater offense subject to greater punishment.413 The focus of this mitigator is on the defendants predisposition to commit the crime. A possible situation of sentencing entrapment would be where the government, in a reverse-sting operation, sets a price substantially below the market price that leads a defendant to purchase significantly more drugs than the defendants resources would have allowed him or her to do, thereby driving up the defendants sentencing range.414 Another possible situation would be where the government provides necessary critical ingredients for the production or manufacture of illegal drugs not otherwise within the means or resources of the defendant to procure.415 Under the doctrine of sentencing entrapment, the defendant bears the burden of showing by a preponderance of the evidence that he or she was predisposed only to sell smaller amounts of drugs or that he or she had neither the intent nor the resources for selling the larger amount he or she was entrapped into selling.416 If the defendant proves by a preponderance of the evidence that law enforcement engaged in sentence entrapment, the sentencing court may reduce the defendants prescribed sentence either by (1) granting a downward departure from the

411. State v. Chestnut, 718 So. 2d 312, 313 (Fla. Dist. Ct. App. 5th Dist. 1998). 412. United States v. Stavig, 80 F. 3d 1241, 1245 (8th Cir. 1996). 413. See, United States v. Barth, 990 F. 2d 422, 424 (8th Cir. 1993); United States v. Rogers, 982 F. 2d 1241, 1245 (8th Cir. 1993). 414. See, United States v. Hulett, 22 F. 3d 779 (8th Cir. 1994). 415. See, United States v. Berg, 178 F. 3d 976 (8 th Cir. 1999). 416. United States v. Stavig, 80 F. 3d 1241, 1245 (8th Cir. 1996).

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presumptive sentencing minimum or (2) applying only the penalty provision for the lesser offense the defendant was predisposed to commit.417 Sentence manipulation. The doctrine of sentence manipulation, also known as sentencing factor manipulation, is a more recent development. Sentencing manipulation is outrageous government conduct aimed only at increasing a persons sentence. Whereas sentencing entrapment focuses on the predisposition of the defendant, the related concept of sentence manipulation is concerned with the conduct of government officials. Sentencing manipulation could occur, for example, where the government extends, prolongs, revives, or otherwise tailors an investigation merely to increase the defendants sentence.418 Sentence manipulation is most likely to occur in reverse-sting operations, where the government can easily manipulate the type, quantity, or sheer weight of drugs involved to purposely escalate a defendants potential prison sentence. Incremental minimum mandatory sentencing ranges based upon weight or type of drug sold, delivered or manufactured create the potential for sentencing abuse by government agents using their knowledge of incremental sentencing minimums to manipulate the quantity of drugs sold or manufactured in a reverse sting to increase a defendants sentence.419 Sentence manipulation by the police is a valid nonstatutory basis for downward departure sentencing in Florida. Although a defendant does not have a right to be arrested in order to be prevented from committing further crimes, a trial court has discretion to impose a downward departure sentence when law enforcement allows a defendant to continue criminal activities for no reason other than to enhance the defendants sentence. When considering sentence manipulation as a basis for downward departure, the trial courts inquiry should focus on law enforcement intent: Was the police operation continued only to enhance the defendants sentence or did legitimate law enforcement reasons exist to support the police conduct, such as to determine the extent of the criminal enterprise, to establish the defendants guilt beyond a reasonable doubt, or to uncover any co-conspirators? If legitimate law enforcement reasons exist, then a downward departure based on sentence manipulation is not warranted. If the sentencing court finds that the police did commit sentence manipulation, the departure sentence imposed should not go below what the defendant would have received in the absence of sentence

417. See, Ford v. State, 257 S.W.3d 560, 99 Ark.App. 119, 2007 WL 1490720 (Ark. App. 2007). 418. United States v. Shephard, 4 F. 3d 647, 649 (8th Cir. 1993), certiorari denied, 510 U.S. 1203, 114 S. Ct. 1322, 127 L.Ed. 2d 671 (1994). 419. See, United States v. Stavig, 80 F. 3d 1241, 1245 (8th Cir. 1996); also, United States v. Calva, 979 F. 2d 119 (8th Cir. 1992).

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manipulation.420 Most other state and federal courts reject sentence manipulation or sentencing entrapment, as articulated in the Steadman decision.421 Under the doctrine of sentence manipulation, the defendant seeking a downward departure bears the burden of showing sentence manipulation by a preponderance of the evidence.422 The defendant must do more than simply show that, as a result of the governments participation, the crime was prolonged beyond the first criminal act, or exceeded in degree or kind what the defendant had done before.423 Rather, the defendant must demonstrate that the governments activities were carried to such a degree that the governments conduct must be viewed as extraordinary misconduct424 or egregious . . . conduct that goes beyond legitimate police investigative purposes.425 Lower sentence of an equally or more culpable co-defendant. As a general principle, codefendants should not be treated differently on the same or similar facts.426 In an effort to provide equality of punishment for two or more persons who participated in committing the same crime, the sentencing court may consider the lower sentence of an equally or more culpable codefendant as a basis for a downward departure from the presumptive sentencing range for a defendant to achieve parity with a co-defendant or co-defendants. This means that, where an equally or more culpable co-defendant has been granted a downward departure, the sentencing court can grant a downward departure to a defendant to achieve sentencing parity, so long as the record contains competent and substantial evidence showing that the defendants culpability was less or not greater than the culpability of the co-defendant.427 Mere proportionality with a codefendants sentence does not, however, justify a downward departure.428 While upward departures under the former guidelines may not be justified solely in order to match the sentence

420. State v. Steadman, 827 So. 2d 1022 (Fla. Dist. Ct. App. 3d Dist. 2002), review denied 842 So. 2d 847 (Fla. 2003); but see, Kelley v. State, 821 So. 2d 1255 (Fla. Dist. Ct. App. 4th Dist. 2002) (mandatory minimum sentence in a drug trafficking case may not be avoided when there is evidence of police inducement or entrapment leading to quantity of contraband possessed or sold to be greater than defendant originally had disposition to possess or sell). 421. See, People v. Smith, 31 Cal. 4th 1207, 7 Cal. Rptr. 3d 559, 80 P. 3d 662 (Cal. 2003) for a survey of federal and state case law on this topic. 422. See, United States v. Gibbens, 25 F. 3d 28 (1st Cir. 1994). 423. See, United States v. Montoya, 62 F. 3d 1 (1st Cir. 1995). 424. See, United States v. Montoya, 62 F. 3d 1 (1st Cir. 1995). 425. See, State v. Soto, 562 N.W. 2d 299 (Minn. 1997). 426. Slater v. State, 316 So. 2d 539 (Fla. 1975). 427. Sanders v. State, 510 So. 2d 296 (Fla. 1987). 428. State v. Leverett, 44 So. 3d 634 (Fla. Dist. Ct. App. 5th Dist. 2010).

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of a co-defendant,429 a downward departure under the former guidelines or Criminal Punishment Code may be imposed for that reason.430 Diminished mental capacity. The Florida Supreme Court has held that evidence of abnormal mental condition not constituting legal insanity is inadmissible for purposes of negating specific intent or state of mind necessary to prove a criminal offense, that persons with less serious mental deficiencies should be held accountable for their crimes just as everyone else, but that if mitigation is appropriate, it may be accomplished through sentencing.431 This means that, under appropriate circumstances and with sufficient proof, a mental defect less than insanity can form the basis of a downward departure sentence. An example of such a downward departure is the case of Kevin C. Williams. Williams had a presumptive minimum sentence of 78 months imprisonment with the Department of Corrections, but the trial court granted a downward departure and imposed a sentence of 39 months imprisonment on the following facts, as summarized by the appellate court: There was ample evidence that the defendant suffers from diminished mental capacity as well as significant physical problems. The defendant scored 68 and 70 on his IQ tests. He has memory, concentration and attention problems. The defendant is morbidly obese with a pronounced difficulty in walking. He uses a cane and appears to have some long-standing orthopedic malformation of his legs and/or feet. The defendant lives with his mother and has received Social Security Supplemental Income for many years. There was evidence that the defendant receives treatment and therapy on his legs, back and spine. He is very reliant on his mother, who sometimes helps him dress and who prepares his meals. The defendant was deemed minimally competent to stand trial. Witnesses at the sentencing hearing testified that the defendant would not hold up well under incarceration, that from an emotional and physical standpoint, he could not handle prison.432 On appeal by the State of Florida, the Fifth District Court of Appeal found no abuse of discretion and upheld the departure sentence, finding that this was a case in which diminished

429. Von Carter v. State, 468 So. 2d 276 (Fla. Dist. Ct. App. 1st Dist.); remanded on other grounds, 478 So. 2d 1071 (Fla. 1985); Thomas v. State, 461 So. 2d 274 (Fla. Dist. Ct. App. 5th Dist.). 430. See, State v. Fernandez, 927 So. 2d 939 (Fla. Dist. Ct. App. 3d Dist. 2006); Marchetta v. State, 766 So. 2d 1126 (Fla. Dist. Ct. App. 2d Dist. 2000). 431. Chestnut v. State, 538 So. 2d 820, 825 (Fla. 1989). 432. State v. Williams, 870 So.2d 938 (Fla. Dist. Ct. App. 5th Dist. 2004).

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mental capacity constituted a valid legal ground for mitigation and downward departure at sentencing and was supported by sufficient evidence of record.433 Extraordinary restitution. In unusual cases extraordinary restitution, whether paid before or after a defendant enters a plea, can support a downward departure sentence. Ordinarily, payment of restitution is not a basis for a downward departure and departures that are based on the payment of restitution are discouraged for situations other than where the victims need for restitution outweighs the States need for incarceration. The situation is different, however, when the defendant makes extraordinary efforts to pay restitution, especially prior to entering a plea, that demonstrate acceptance of responsibility and exceptional efforts to fully remedy the harm cause by the offense. The sentencing laws of Florida do not prohibit downward sentencing departures in such situations and no Florida appellate court has taken up the issue. Nonetheless, extraordinary restitution is a valid basis for downward departure under federal sentencing guidelines, and federal law is instructive in this regard. While there is no bright-line rule for determining when particular payments of restitution are extraordinary enough to warrant downward departures, factors that a sentencing court can look to include the degree of voluntariness, the efforts to which the defendant went to to make restitution, the percentage of funds restored, the timing of the restitution, and whether the defendants motive demonstrates sincere remorse and acceptance of responsibility.434 Totality of circumstances. A downward departure sentence can be supported, in unusual cases, under a totality of circumstances analysis where no one statutory reason for departure is available. An example of a departure sentence granted on this basis is the case of Shawn Strawser. Strawser entered an open plea of nolo contendere to the crimes of sexual battery upon a child less than twelve years of age and lewd and lascivious molestation perpetrated by Strawser at age fifteen or sixteen on his younger sisters playmates. Strawser was charged as an adult and, under the applicable sentencing law, had a presumptive minimum sentencing range of 49 years in prison. Extensive testimony was taken at sentencing, including that of an expert in the field of sex offender treatment, Strawsers probation officer from his pretrial release program, persons with extensive experience in preparing pre-sentence investigation reports, Strawser, and adverse testimony from the States witnesses. The court sentenced Strawser to a downward departure sentence of fifteen months in prison, followed by seventy-five months of sex offender probation for each of the counts and declared him to be a sexual predator.435 The trial judge, in accordance with the requirements of a downward departure utilizing section 921.0026(2)(j), found that Strawser, who had previously admitted to all offenses as
433. State v. Williams, 870 So.2d 938 (Fla. Dist. Ct. App. 5th Dist. 2004). 434. See, United States v. Kim, 364 F. 3d 1235 (11th Cir. 2004). 435. State v. Strawser, 921 So. 2d 705 (Fla. Dist. Ct. App. 4th Dist. 2006).

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charged, was remorseful and that the conduct was done in an unsophisticated manner. The trial judge failed to explicitly articulate a finding on the isolated incident aspect of section 921.0026(2)(j); however, the court did comment on Strawsers lack of a criminal record and his age and immaturity at the time of the crimes. The trial court also noted that the recommendations of the arresting detective and the pretrial release officer were for a strictly probationary sentence. On appeal, the Fourth District upheld the departure on the basis that there was testimony in the record, accepted by the trial court, concerning Strawsers youth, remorse, and immaturity to support the courts finding that the abuse was committed in an unsophisticated manner and reflected immaturity, that there was also evidence of Strawsers lack of prior criminal history, and that, taken as a whole, the record reflected the required support for the downward departure.436 Nexus to Offense Generally, mitigating circumstances supporting a downward departure ameliorate the level of the defendants culpability.437 Many judges require a nexus between the proffered mitigation evidence and the offense, and such appears in some of the statutory mitigators. Florida law does not, however, require that a proffered mitigating circumstance have any significant nexus to a defendants actions for the mitigator to be given weight.438 The defense is required to identify for the court specific nonstatutory mitigating circumstances it is attempting to establish.439 Limits on Sentence Mitigation Mitigation is not, however, without limits. The purpose of the sentencing guidelines and the Criminal Punishment Code is to establish a uniform set of standards to guide the sentencing judge in the sentence decision-making process so as to eliminate unwarranted variation in sentencing. It is the stated policy of the courts of Florida that sentencing alternatives should not be used to thwart the sentencing guidelines or Criminal Punishment Code.440

436. State v. Strawser, 921 So. 2d 705 (Fla. Dist. Ct. App. 4th Dist. 2006). 437. Rafferty v. State, 799 So. 2d 243 (Fla. Dist. Ct. App. 2d Dist. 2001); State v. DAlexander, 496 So. 2d 1007, 1008 (Fla. Dist. Ct. App. 2d Dist. 1986). 438. See, Cox v. State, 819 So. 2d 705 (Fla. 2002) (penalty phase in a first degree murder case). 439. See, Lucas v. State, 568 So. 2d 18 (Fla. 1990). 440. See, Disbrow v. State, 642 So. 2d 740 (Fla. 1994) ([T]his Court has made it clear that sentencing alternatives should not be used to thwart the [sentencing] guidelines.); also, Jones v. State, 813 So. 2d 22 (Fla. 2002) (Wells, C.J., dissenting) (same); Kelly v. State, 739 So. 2d 1164 (Fla. Dist. Ct. App. 5th Dist. 1999); Louissaint v. State, 727 So. 2d 403 (Fla. Dist. Ct. App. 3d Dist. 1999); Tripp v. State, 622 So. 2d 941 (Fla. 1993); Johnson v. State, 596 So. 2d 495 (Fla. Dist. Ct. App. 5th Dist. 1992); Dimilta v. State, 590 So. 2d 1074 (Fla. Dist. Ct. App. 2d Dist. 1991); Herrin v. State, 568 So. 2d 920 (Fla. 1990); Poore v. State, 531 So. 2d 161 (Fla. 1988).

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These limits are particularly manifest where the defendant to be sentenced has a history of substance abuse and the sentencing court is inclined to avoid imposing a prison sentence otherwise mandated by the former guidelines or Criminal Punishment Code. In former times, substance abuse in and by itself was a sufficient reason to sentence below minimum levels otherwise mandated by the former guidelines or Criminal Punishment Code. In response, the Legislature rewrote Chapter 921 to provide that [t]he defendants substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor . . . and does not, under any circumstances, justify a downward departure from the permissible sentencing range.441 In 2009 the Legislature created a narrow exception to this prohibition for cases falling under section 921.0026(2)(m). As a result, a defendants substance abuse or seeming amenability to drug rehabilitation presently does not, under most circumstances, justify a downward departure from sentencing guidelines or the Criminal Punishment Code minimum sentence, and such a reason would contravene the plain language of the applicable statutory law.442 Given the legislative constraint on the use of substance abuse or addiction as a basis for departure in the past, some courts have tried to avoid such otherwise mandated prison sentences by suspending all or most of the incarcerative portion of the sentence. Absent other justification, however, it is an impermissible downward departure sentence when a defendant is subject to a minimum prison term under the former guidelines or Criminal Punishment Code and the trial court suspends the incarcerative portion of the defendants sentence and places the defendant on probation. If there is justification, however, such sentences will withstand appellate scrutiny and

441. Sec. 921.0026, F.S. 442. Secs. 921.0016(5), 921.0026(3), F.S.; see also, State v. Owens, 848 So. 2d 1199 (Fla. Dist. Ct. App. 1st Dist. 2003); State v. Paulk, 842 So. 2d 212 (Fla. Dist. Ct. App. 3d Dist. 2003); State v. Thompson, 844 So. 2d 814 (Fla. Dist. Ct. App. 5th Dist. 2003); State v. Lazo, 761 So. 2d 1244 (Fla. Dist. Ct. App. 2d Dist. 2000); State v. Ford, 739 So. 2d 629 (Fla. Dist. Ct. App. 3d Dist. 1999).

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if not they will be reversed.443 A trial court may not depart, in any event, from a minimum mandatory sentence unless the prosecutor recommends otherwise.444 A downward departure sentence that is the product of a negotiated plea agreement with the State can not be subsequently reduced or mitigated without the States consent. A defendant may not accept the benefit of the bargain without accepting its burden, and so a defendant cannot

443. State v. Grayson, 916 So. 2d 51 (Fla. Dist. Ct. App. 2d Dist. 2005) (when Criminal Punishment Code worksheet recommends minimum prison sentence and, instead, trial court suspends incarcerative portion of sentence and places defendant on probation, sentence constitutes downward departure); State v. Harvey, 909 So. 2d 989 (Fla. Dist. Ct. App. 5th Dist. 2005) (defendants suspended sentence conditioned on completion of inpatient treatment at drug rehabilitation facility was not functional equivalent of incarceration, in violation of statutes forbidding downward departure of a sentence due to a defendants substance addiction); State v. White, 842 So. 2d 257 (Fla. Dist. Ct. App. 1st Dist. 2003); State v. Brannum, 876 So. 2d 724 (Fla. Dist. Ct. App. 5th Dist. 2004); see, State v. VanBebber, 848 So. 2d 1046 (Fla. 2003) (downward departure sentence imposed when guidelines called for a prison sentence of 175.9 to 240 months and defendant sentenced to 200 months incarceration suspended upon completion of fifteen years of probation); State v. Tyrrell, 807 So. 2d 122 (Fla. Dist. Ct. App. 5th Dist. 2002) (Because the prison sentences were suspended, the sentences fall below the lowest permissible sentence and are treated as downward departure sentences.); State v. Gilson, 800 So. 2d 727 (Fla. Dist. Ct. App. 5th Dist. 2001) (when scoresheet permissible range was 50.7 months to 49 years incarceration and defendant sentenced to 50.7 months in prison suspended on condition of successful completion of two years on community control followed by three years on probation; sentence was downward departure requiring sufficient reasons for departure); State v. Clay, 780 So. 2d 269 (Fla. Dist. Ct. App. 5th Dist. 2001); Richie v. State, 777 So. 2d 977 (Fla. Dist. Ct. App. 2d Dist. 1999) (sentence within guideline range but with portion suspended constituted downward departure); State v. White, 755 So. 2d 830 (Fla. Dist. Ct. App. 5th Dist. 2000) (departure sentence had been imposed where recommended guidelines sentence was 30-50 months incarceration and trial court imposed sentence of 35 months incarceration suspended with credit for 517 days time served followed by five years drug offender probation); State v. Bray, 738 So. 2d 962, 963 (Fla. Dist. Ct. App. 2d Dist. 1999) (Suspending the incarcerative portion of a sentence, as the court did in the present case, is appropriate if a valid reason for a downward departure exists.); State v. Norris, 724 So. 2d 630 (Fla. Dist. Ct. App. 5th Dist. 1998) (when sentencing guidelines required sentence of 64-100 months in prison and defendant sentenced to 70 months in prison, suspended upon completion of probation and attendance at sixmonth residential drug program, trial judge was required to state sufficient reasons for downward departure sentence); State v. Whiting, 711 So. 2d 1212 (Fla. Dist. Ct. App. 2d Dist. 1998) (downward departure sentence imposed when guidelines sentencing range was 9-15 years in prison and defendant sentenced to 10 years incarceration suspended upon completion of probation); State v. Licea, 707 So. 2d 1155 (Fla. Dist. Ct. App. 2d Dist. 1998) (downward departure sentence imposed requiring sufficient reason for the departure when sentencing guidelines range was 36.75-61.25 months state prison and defendant received sentence of 3 years state prison, suspended, and 1 year jail followed by 2 years community control); State v. Powell, 703 So. 2d 444 (Fla. 1977) (as long as there exists a valid reason for a downward departure, a trial court may impose a true split sentence in which the entire period of incarceration is suspended); State v. Solomon, 667 So. 2d 937 (Fla. Dist. Ct. App. 2d Dist. 1996) (defendant received downward departure sentence when guidelines scoresheet reflected a range of 61.35-102.5 months and trial court sentenced him to 8 years in prison, suspended, and 2 years community control to be followed by 3 years probation); Salemi v. State, 636 So. 2d 824, 825 (Fla. Dist. Ct. App. 2d Dist. 1994) (suspended sentence was technically a one-cell upward departure from the guidelines, although suspension had the effect of providing a significant downward departure). 444. State v. Andrews, 875 So. 2d 686 (Fla. Dist. Ct. App. 4th Dist. 2004) (trial court may not depart below 3 year minimum mandatory sentence for aggravated assault on a law enforcement officer); Kelley v. State, 821 So. 2d 1255 (Fla. Dist. Ct. App. 4th Dist. 2002) (drug trafficking); State v. Cotton, 769 So. 2d 345 (Fla. 2000) (trial court has no discretion to depart below minimum mandatory PRR sentence when prosecutor seeks PRR sentencing of qualified defendant); State v. Randall, 627 So. 2d 571 (Fla. Dist. Ct. App. 2d Dist. 1993) (certain types of drug sales); Adderly v. State, 605 So. 2d 459 (Fla. 1992); Scates v. State, 603 So. 2d 504 (Fla. 1992).

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use a Rule 3.800(c) motion to evade any of the terms of a negotiated plea. A court cannot get around the terms of a negotiated plea through a modification of a defendants sentence at a later date, and such a change of the defendants sentence is reversible error.445 Interpretation of sentencing law by appellate courts has defined additional limits on departure sentencing, including but not limited to the following examples: Judicial determination that the State would not be able to meet its burden of proof. Such could only be made after a trial and an acquittal or after the granting of a motion made by the defendant pursuant to Fla. R. Crim. P. 3.190(c)(4).446 Disagreement on the part of the sentencing judge with the jurys verdict.447 The absence of a prior criminal record or criminal involvement for a period of time.448 Indeed, the complete absence of a prior record does not afford such a basis since the absence is already factored into the presumptive sentencing guidelines.449 Judicial determination that the recommended sentence does not reflect an appropriate sanction in light of the facts of the case. The Florida Supreme Court held in Scott v. State450 that a trial courts written finding that a recommended guidelines sentence is insufficient may never serve as a reason for departure unless there is at least one clear and convincing reason for departure in which case such a statement [i.e., that the guidelines sentence is inappropriate]

445. State v. Szempruch, 935 So. 2d 66 (Fla. Dist. Ct. App. 2d Dist. 2006). 446. State v. Perez, 802 So. 2d 1167 (Fla. Dist. Ct. App. 3d Dist. 2001) (reservations on the part of the trial court about whether the State could prove its case is not a valid reason for a downward departure); Cf. State v. Wright, 473 So. 2d 268, 271-72 (Fla. Dist. Ct. App. 1st Dist. 1985), review denied, 484 So. 2d 10 (Fla. 1986). 447. Byrd v. State, 531 So. 2d 1004 (Fla. Dist. Ct. App. 5th Dist. 1988); State v. Joiner, 498 So. 2d 1017 (Fla. Dist. Ct. App. 5th Dist. 1986) (a judges personal view of the lack of credibility of the testimony is not a clear and convincing reason for a downward departure where the jury has determined otherwise). 448. State v. Baker, 713 So. 2d 1027 (Fla. Dist. Ct. App. 2d Dist. 1998) (lack of criminal record); State v. Scaife, 676 So. 2d 1035 (Fla. Dist. Ct. App. 5th Dist. 1996); Byrd v. State, 531 So. 2d 1004 (Fla. Dist. Ct. App. 5th Dist. 1988); Sanders v. State, 510 So. 2d 296, 297 (Fla. 1987); State v. Green, 511 So. 2d 734 (Fla. Dist. Ct. App. 2d Dist. 1987); State v. Taylor, 482 So. 2d 578 (Fla. Dist. Ct. App. 5th Dist. 1986); State v. Caride, 473 So. 2d 1362 (Fla. Dist. Ct. App. 3d Dist. 1985). 449. State v. Hinson, 855 So. 2d 119 (Fla. Dist. Ct. App. 1st Dist. 2003) (living at liberty for six and one-half years, solely due to leaving the area and successfully avoiding arrest and living as a fugitive on an outstanding warrant, is not a valid ground on which to depart downward); State v. Green, 511 So. 2d 734 (Fla. Dist. Ct. App. 2d Dist. 1987); State v. Caride, 473 So. 2d 1362 (Fla. Dist. Ct. App. 3d Dist. 1985); see, State v. McMullen, 529 So. 2d 821 (Fla. Dist. Ct. App. 3d Dist. 1988). 450. Scott v. State, 508 So. 2d 335, 337 (Fla. 1987).

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should be considered the trial courts written conclusion that departure is necessary based on the valid reasons given . . . . The reason that the recommended sentence does not reflect an appropriate sanction in light of the facts of the case, is clearly an expression of judicial dissatisfaction with the recommended guidelines sentence and cannot be a basis for departure.451 More specifically, a trial court may not depart downward based on its belief that the lowest permissible sentence is too harsh in accounting for the defendants prior record because the Criminal Punishment Code has already taken the defendants prior record into account; a downward departure on this basis represents nothing more than the trial courts disagreement with the weight the Criminal Punishment Code has given to prior convictions.452 Similarly, a finding that the defendant has suffered enough for his or her crime because of related sentences is insufficient to support a downward departure.453 The presumptive minimum sentence exceeds the statutory maximum for the offense.454 In drug offenses, judicial determination that the quantity of drugs involved was minuscule.455 The recommendation of a law enforcement officer or probation officer.456 The desire of the sentencing judge to place the defendant under supervision so that the judge can exercise more control over the defendant.457

451. Scott v. State, 508 So. 2d 335, 337 (Fla. 1987); see, State v. Whiteside, 56 So. 3d 799 (Fla. Dist. Ct. App. 2d Dist. 2011); State v. McMullen, 529 So. 2d 821 (Fla. Dist. Ct. App. 3d Dist. 1988). 452. State v. Valdes, 842 So. 2d 859 (Fla. Dist. Ct. App. 2d Dist. 2003); see also, State v. Lerman, 624 So. 2d 849 (Fla. Dist. Ct. App. 2d Dist. 1993) (trial courts departure on basis that defendants case was old and, if he had been sentenced earlier, he would have been serving the sentence in this case concurrently with his federal prison sentence reflects the trial courts disagreement with the guidelines and is invalid); State v. Baker, 498 So. 2d 1031 (Fla. Dist. Ct. App. 1st Dist. 1989). 453. State v. Lacey, 553 So. 2d 778 (Fla. Dist. Ct. App. 4th Dist. 1989). 454. State v. Hall, 47 So. 3d 361 (Fla. Dist. Ct. App. 2d Dist 2010); Sec. 921.0024(2), F.S. 455. See, Atwaters v. State, 519 So. 2d 611 (Fla. 1988) (quantity of drugs involved in a crime may not be utilized as a proper reason to support departure from the sentencing guidelines). 456. See, Byrd v. State, 531 So. 2d 1004 (Fla. Dist. Ct. App. 5th Dist. 1988) (recommendation against prison by state troopers who investigated crime not a valid reason for departure); Montgomery v. State, 489 So. 2d 1225 (Fla. Dist. Ct. App. 5th Dist. 1986) (recommendation of a probation officer was not a valid reason for a departure sentence). 457. Byrd v. State, 531 So. 2d 1004 (Fla. Dist. Ct. App. 5th Dist. 1988); see also, Kendricks v. State, 508 So. 2d 532 (Fla. Dist. Ct. App. 2d Dist. 1987) (trial courts imposition of probation in order to have more control over defendant invalid reason for downward departure); State v. Daughtry, 505 So. 2d 537 (Fla. Dist. Ct. App. 4th Dist. 1987) (fact that departure sentence keeps defendant longer under judicial control would not be acceptable reason for departure).

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The fact that the defendant harmed no one and failed to commit additional crimes.458 The absence of violence or danger to others does not constitute a valid ground for departure, because that factor is already considered in arriving at the presumptive Criminal Punishment Code or guidelines sentence.459 The fact that the victims were family members or loved ones and that a prison sentence would increase the hardship on those victims. The legislature did not intend lesser punishments when the victims of offenses are family members or loved ones,460 or to punish those with families to support less than those without families.461 The fact that the offense was committed when the defendant was a young adult.462 The fact that the defendant suffers from a physical infirmity or defect.463 Note, however, that a departure may be granted if the defendant requires specialized treatment for a physical disability that is not available within the Department of Corrections, and the defendant is amenable to treatment.464 The fact that the defendant had never been sent to prison before.465 The defendants forthrightness with the court.466 An expressed or indicated willingness to accept punishment and pay the debt to society.467

458. State v. Stanard, 859 So. 2d 572 (Fla. Dist. Ct. App. 5th Dist. 2003). 459. State v. Green, 511 So. 2d 734 (Fla. Dist. Ct. App. 2d Dist. 1987); State v. Caride, 473 So. 2d 1362 (Fla. Dist. Ct. App. 3d Dist. 1985). 460. Rafferty v. State, 799 So. 2d 243 (Fla. Dist. Ct. App. 2d Dist. 2001). 461. Cf. State v. Bray, 738 So. 2d 962 (Fla. Dist. Ct. App. 2d Dist. 1999) (holding that the fact that a defendant had a child to support did not support a downward departure). 462. See, State v. McMullen, 529 So. 2d 821 (Fla. Dist. Ct. App. 3d Dist. 1988). 463. State v. Thomas, 516 So. 2d 1058 (Fla. Dist. Ct. App. 3d Dist. 1987) (defendants blindness in one eye). 464. Sec. 921.0026(2)(d). 465. State v. Collins, 482 So. 2d 328 (Fla. Dist. Ct. App. 5th Dist. 1985) (The fact that this robber had never been sentenced to prison before is a compelling reason to do so now.). 466. State v. Thomas, 516 So. 2d 1058 (Fla. Dist. Ct. App. 3d Dist. 1987). 467. State v. Collins, 482 So. 2d 328 (Fla. Dist. Ct. App. 5th Dist. 1985).

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The willingness of the defendant to accept responsibility by entering a plea in exchange for a downward departure sentence.468 Saving the taxpayers money.469 The fact that the defendant paid the court-ordered restitution for the cases in which he or she was serving probation at the time he or she committed new felony offenses.470 The fact (or assertion) that the defendants conviction has caused, or would cause, an adverse impact on the defendants professional career or make it difficult for the defendant to regain employment.471 Pregnancy on the part of the defendant or the defendants girlfriend or spouse.472 A defendants need to support a child outweighing the need for prison.473 Representations by defense counsel that a defendant has already received a downward departure in another county.474 Mutual mistake as to the minimum sentencing range.475

468. State v. Hall, 47 So. 3d 361 (Fla. Dist. Ct. App. 2d Dist 2010). 469. Byrd v. State, 531 So. 2d 1004 (Fla. Dist. Ct. App. 5th Dist. 1988); State v. Peters, 500 So. 2d 704 (Fla. Dist. Ct. App. 1st Dist. 1987) (concern for social cost of incarceration not valid reason for departure sentence). 470. State v. Pita, 54 So. 3d557 (Fla. Dist. Ct. App. 3d Dist. 2011), citing State v. Walters, 12 So. 3d 298 (Fla. Dist. Ct. App. 3d Dist. 2009) (holding that the law does not excuse the consequences of a theft based on a thiefs ability to make his victim monetarily whole). 471. State v. Johns, 576 So. 2d 1332 (Fla. Dist. Ct. App. 5th Dist. 1991) (law enforcement officer); see, State v. Lacey, 553 So. 2d 778 (Fla. Dist. Ct. App. 4th Dist. 1999) (All defendants suffer the consequences of a criminal conviction. The sentencing guidelines do not provide special treatment for the trained, educated, or licensed. To achieve equality in sentencing, trial judges must be blind to the color of a defendants collar.). 472. State v. Licea, 707 So. 2d 1155 (Fla. Dist. Ct. App. 2d Dist. 1998) (Defendants certainly would seek to impregnate girlfriends or spouses, or become impregnated, if they believed that it would have an impact on an impending sentence, which is an unconscionable scenario.). 473. State v. Chapman, 805 So. 2d 906 (Fla. Dist. Ct. App. 2d Dist. 2001). 474. See, State v. Barnes, 753 So. 2d 605 (Fla. Dist. Ct. App. 2d Dist. 2000). 475. State v. Fulks, 884 So. 2d 1083 (Fla. Dist. Ct. App. 2d Dist. 2004) (mutual mistake of law is not a valid basis for departure).

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Time served on a reversed conviction in an unrelated criminal case.476 Analogizing departure grounds found in the Federal Sentencing Guidelines that are not found in Florida statutory law.477 Note, however, that even if some of the courts stated reasons for departure are insufficient, only one valid reason is necessary to sustain a departure.478 If, however, the courts written specification of reasons for departure from the recommended guidelines sentence or Criminal Punishment Code presumptive minimum is permeated with impermissible considerations, and it is not clear beyond a reasonable doubt that the court would have imposed the same sentence in the absence of such invalid considerations, the sentence is subject to reversal on appeal.479 A trial court may not, in any event, enunciate new reasons for a departure sentence after the reasons given for the original departure sentence have been reversed by an appellate court.480

476. State v. Stanton, 781 So. 2d 1129 (Fla. Dist. Ct. App. 3d Dist. 2001). 477. State v. Hall, 47 So. 3d 361 (Fla. Dist. Ct. App. 2d Dist 2010). 478. State v. Randall, 746 So. 2d 550, 552 (Fla. Dist. Ct. App. 5th Dist. 1999). 479. State v. Peters, 500 So. 2d 704 (Fla. Dist. Ct. App. 1st Dist. 1987). 480. Shull v. Dugger, 515 So. 2d 748 (Fla. 1987).

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III. ENHANCEMENTS Proof of Prison Release Date for Enhancement The State has the burden of proving, by a preponderance of the evidence, a defendants prison release date for enhancement under section 775.082(9) as a Prison Releasee Reoffender (PRR) or under section 775.084 as a Habitual Felony Offender (HFO), Habitual Violent Felony Offender (HVFO), Three-Time Violent Felony Offender, or Violent Career Criminal (VCC). The State may meet this burden with any competent and sufficient evidence. Where, however, nothing more than inadmissible hearsay received over specific objection is adduced in order to prove a prison release date necessary for sentence enhancement, the enhanced sentence cannot withstand attack on direct appeal.481 A Department of Corrections website printout relating to the defendant with an entry showing when the defendant was out of custody, for example, is not self-authenticating, is not admissible under the public records exception to the hearsay rule, and so cannot be used to establish the date of the defendants release from prison.482 The two evidentiary rules most relevant to the determination of date of release are sections 90.803(8) and 90.902(4). Section 90.803(8), dealing with the public records exception to the hearsay rule, provides that the provision of section 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness: Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. This section goes on to provide that the criminal case exclusion shall not apply to an affidavit otherwise admissible under section 316.1934 or section 327.354.483 Section 90.902(4), pertaining to self-authentication, provides that a copy of an official public record, report, or entry, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification by certificate

481. Gray v. State, 910 So. 2d 867 (Fla. Dist. Ct. App. 1st Dist. 2005). 482. Campbell v. State, 949 So. 2d 1093 (Fla. Dist. Ct. App. 3d Dist. 2007). 483. Sec. 90.803(8), F.S.

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complying with subsection (1),484 subsection (2),485 or subsection (3)486 or complying with any act of the Legislature or rule adopted by the Supreme Court.487 This means that when a certified copy of a document is offered instead of the document itself, authentication is controlled by section 90.902(4). In order for a certified copy to be selfauthenticating under section 90.902(4), it must be certified by the custodian of the document (certified as correct by the custodian or other person authorized to make the certification) and that the copy is correct and that the person has custody of the original (actually recorded or filed in a public office).488 A Department of Corrections computer printout called a Crime and Time Report, which states when a defendant entered and left the Department of Corrections, is admissible under the business records exception to the hearsay rule, and is not testimonial hearsay under Craw ford v. Washington489 to establish the defendants prison release date for the purposes of enhanced sentencing, so long as the prosecutor establishes the state law predicate to admission.490 Computer printouts, like business records, are admissible if the records custodian or other qualified witness is available to testify as to manner of preparation, reliability and
484. A document bearing: (a) A seal purporting to be that of the United States or any state, district, commonwealth, territory, or insular possession thereof; the Panama Canal Zone; the Trust Territory of the Pacific Islands; or a court, political subdivision, department, officer, or agency of any of them; and (b) A signature by the custodian of the document attesting to the authenticity of the seal. Sec. 90.902(1), F.S. 485. A document not bearing a seal but purporting to bear a signature of an officer or employee of any entity listed in subsection (1), affixed in the officers or employees official capacity. Sec. 90.902(2), F.S. 486. An official foreign document, record, or entry that is: (a) Executed or attested to by a person in the persons official capacity authorized by the laws of a foreign country to make the execution or attestation; and (b) Accompanied by a final certification, as provided herein, of the genuineness of the signature and official position of: 1. The executing person; or 2. Any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. The final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States or a diplomatic or consular official of the foreign country assigned or accredited to the United States. When the parties receive reasonable opportunity to investigate the authenticity and accuracy of official foreign documents, the court may order that they be treated as presumptively authentic without final certification or permit them in evidence by an attested summary with or without final certification. Sec. 90.902(3), F.S. 487. Sec. 90.902(4), F.S. 488. See, Christie v. State, 951 So. 2d 1029 (Fla. Dist. Ct. App. 4th Dist. 2007); Sec. 90.902(4), F.S. 489. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). 490. Desue v. State, 908 So. 2d 1116 (Fla. Dist. Ct. App. 1st Dist. 2005).

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trustworthyness of the product.491 In appropriate circumstances, a printout may also be admissible as a properly certified copy of an official public record.492 A letter from the Department of Correction stating the date the defendant was released from prison is, by itself, not admissible under either the business- or public-records exceptions to the hearsay rule. There is, however, no applicable legal impediment to the State and the Department of Corrections using a signed release-date letter, written under seal, as a means of authenticating an attached Department of Corrections Crime and Time Report, which then renders the entire report admissible as a public record.493 A statement in a letter or affidavit from a correctional services administrator or records management analyst that specified that it was given under seal and stating that the defendant was last released on a specific qualifying offense, which was within the period for sentencing for enhancement, is admissible under the public records exception to the hearsay rule, in which the availability of the declarant is immaterial, and the letter or affidavit is sufficient to establish the criminal history predicate for a recidivist-enhanced sentence; it is not necessary to attach copies or identify such physical papers or electronic data from which the declarant derived the criminal history information contained in the statement.494 The use of an uncertified printout from the website of the Department of Corrections is neither selfauthenticating nor admissible under the public records exception to the hearsay rule, and so is insufficient by itself to establish a defendants release date from prison.495 The State may not, in any event, rely solely on hearsay to prove a defendants release from prison.496 Even where such records are deemed admissible to prove date of release, however, the State still has the burden of proving the identity of the person released. Unless such documents

491. Cofield v. State, 474 So. 2d 849, 851 (Fla. Dist. Ct. App. 1st Dist. 1985) (adopting rule as stated in Pickrell v. State, 301 So. 2d 473, 474 (Fla. Dist. Ct. App. 2d Dist. 1974)); see, Desue v. State, 908 So. 2d 1116 (Fla. Dist. Ct. App. 1st Dist. 2005). 492. See, Sec. 90.902(4), F.S.; Charles W. Ehrhardt, Florida Evidence 902.5, at 1096 (2012 ed.) (explaining that to be self-authenticating under Sec. 90.902(4), the custodian of the document, or other person authorized by statute to make a certification, must certify that the copy is correct and that the person has custody of the original . . . . The custodians signature must follow the statement). Compare, King v. State, 590 So. 2d 1032, 1033 (Fla. Dist. Ct. App. 1st Dist. 1991) (holding probation officers testimony regarding defendants release date, based on an unauthenticated Department of Corrections computer printout, was inadmissible hearsay, and that [w]ithout the improperly admitted hearsay, the evidence is legally insufficient to support the trial courts finding that appellant is an habitual felony offender). 493. Yisrael v. State, 993 So.2d 952 (Fla. 2008). 494. See, Ward v. State, 965 So. 2d 308 (Fla. Dist. Ct. App. 3d Dist. 2007); Cameron v. State, 943 So. 2d 938 (Fla. Dist. Ct. App. 4th Dist. 2006); Yisrael v. State, 938 So. 2d 546 (Fla. Dist. Ct. App. 4th Dist. 2006); Sec. 90.803(8), F.S. 495. Whitley v. State, 1 So. 3d 404 (Fla. Dist. Ct. App. 1st Dist. 2009). 496. Glover v. State, 871 So. 2d 1025 (Fla. Dist. Ct. App. 1st Dist. 2004).

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are accompanied by certified fingerprints, a photograph of the defendant, or some other competent evidence of identity, the State cannot meet its burden of proof.497 A party can stipulate to qualification for recidivist enhancement, where he or she in fact qualifies, and an in-court concession to this effect by counsel can satisfy the States burden.498 Once the State has met its burden, the burden shifts to the defendant to prove exceptional facts making the enhanced sentencing inapplicable.499 Habitual Felony Offender, Habitual Violent Felony Offender, Three-Time Violent Felony Offender, and Violent Career Criminal Determination Hearing and Presentence Investigation Section 775.084 requires that the sentencing court conduct a separate proceeding for the determination if the defendant is a habitual felony offender, habitual violent felony offender, or three-time violent felony offender.500 Note, however, that the trial courts failure to conduct a hearing or make written or oral findings on the defendants habitual felony offender status is not an appealable issue for the State.501 As a part of this proceeding the court is required to obtain and consider in such proceeding a presentence investigation prior to imposing sentence on a defendant as a habitual felony offender, habitual violent felony offender, or three-time violent felony offender.502 Unless waived, this presentence investigation is mandatory.503 There is no similar requirement for the imposition of sentence as a violent career criminal.

497. Bodie v. State, 983 So. 2d 1196 (Fla. Dist. Ct. App. 2d Dist. 2008); see, Johnson v. State, 936 So. 2d 672, 674 (Fla. Dist. Ct. App. 4th Dist. 2006) (finding that although the State did not prove by fingerprints that prior convictions were those of the defendant, the records submitted contained a photograph of the defendant, which was sufficient to prove identity); Keith v. State, 844 So. 2d 715, 716 (Fla. Dist. Ct. App. 2d Dist. 2003) (noting that a certified copy of a judgment and sentence were sufficient to prove identity for purposes of PRR sentencing).

498. Smith v. State, 935 So. 2d 1223 (Fla. Dist. Ct. App. 3d Dist. 2006); see, Greenlee v. State, 591 So. 2d 310 (Fla. Dist. Ct. App. 2d Dist. 1991); Jefferson v. State, 571 So. 2d 70 (Fla. Dist. Ct. App. 1st Dist. 1990). 499. Brown v. State, 789 So. 2d 366 (Fla. Dist. Ct. App. 2d Dist. 2001); Smith v. State, 753 So. 2d 703 (Fla. Dist. Ct. App. 5th Dist. 2000). 500. Sec. 775.084(3)(a) and (b), F.S. 501. State v. McMahon, 47 So. 3d 368 (Fla. Dist. Ct. App. 4th Dist. 2010); State v. Hewitt, 21 So. 3d 914 (Fla. Dist. Ct. App. 4th Dist. 2009). 502. Sec. 775.084(3)(a)1. and (b)1., F.S. 503. Ortiz v. State, 9 So. 3d 774 (Fla. Dist. Ct. App. 4th Dist. 2009) (defense counsel could waive PSI prior to imposition of sentence).

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Required Notice Section 775.084 requires that the State serve written notice on the defendant of the States intention that the court determine the defendant to be a HFO, HVFO, three-time violent felony offender, or VCC a sufficient time prior to the entry of a written plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant.504 The State needs only file one notice in a given case, and does not have to file a new notice when the case is on remand from an appellate court.505 Note that timely notice is not required for a prison releasee reoffender sentence. The PRRPA, section 775.082(9), does not increase a defendants penalty beyond the statutory maximum; rather, it puts limits on the trial courts discretion. There is no requirement within the PRRPA that a defendant be given notice of the States intent to seek enhanced penalties as a prison releasee reoffender.506 Before a defendant can be properly sentenced as a HFO, HVFO, 3-Time Violent Felony Offender, or VCC, written notice has to be served on the defendant and the defendants attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant.507 In order to impose a sentence as a HFO, HVFO, 3-Time Violent Felony Offender, or VCC following a plea, the trial court must confirm that the defendant is personally aware of the consequences of such a sentence when the plea is actually entered.508 The defendant may not receive a habitualized sentence when the notice is served after the defendants plea, even where the length of sentence is within the statutory maximum and is not affected by the filing.509 A statement made by the prosecutor to the trial judge in the presence of the defendant that the defendant could qualify for such a sentence does not constitute notice under the provisions of this law.510 While actual notice of intent to seek habitualization does not cure failure to file written notice of intent to seek habitualization where an open plea of guilty is entered, a written plea agreement acknowledging potential

504. Sec. 775.084(3)(a)2., (b)2., & (c)1., F.S. 505. Mackey v. State, 884 So. 2d 118 (Fla. Dist. Ct. App. 2d Dist. 2004). 506. Akers v. State, 890 So. 2d 1257 (Fla. Dist. Ct. App. 5th Dist. 2005). 507. Secs. 775.084(3)(a)2., (b)2., & (c)1. 508. Ashley v. State, 614 So. 2d 486 (Fla. 1983); Pitts v. State, 805 So. 2d 1087 (Fla. Dist. Ct. App. 5th Dist. 2003) (Pitts II); Pitts v. State, 766 So. 2d 1191 (Fla. Dist. Ct. App. 5th Dist. 2000) (Pitts I). 509. Baker v. State, 12 So. 3d 281 (Fla. Dist. Ct. App. 5th Dist. 2009). 510. Akers v. State, 890 So. 2d 1257 (Fla. Dist. Ct. App. 5th Dist. 2005) (filing a notice of intent to seek enhanced penalties as HFO shortly before sentencing hearing and actually serving defendant with notice at the hearing does not fulfill the notice requirement of section 775.084(3)(a)2. and is not harmless error).

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habitualization signed by the defendant cures a failure to file written notice.511 The notice to the defendant must inform him or her of the States intention to actually seek an enhanced sentence, and notice fails where it merely informs the defendant that he or she could be subject to enhanced sentencing.512 The State does not have to place the defendant on notice of the particular classification, and hence penalty, the defendant may be subject to on conviction: shotgun general notices encompassing all sentencing schemes under section 775.084 meet the requirements of notice in this regard. This is so because the notice of intent serves to provide the defendant with notice that his or her entire criminal record will be placed at issue and that he or she should prepare to refute any errors in that record (e.g., that he or she was not the person convicted, was not convicted of a certain offense, a certain conviction was vacated on appeal, and so on). When a shotgun notice informs a defendant that he or she is subject to all sentencing schemes under section 775.084, a defendant is given all the notice necessary to prepare for sentencing in his or her case. Note that a different situation would exist where, for example, the State issued a particularized notice of only the lowest enhancement of HFO and thereafter attempted to seek the highest enhancement of VCC, especially if different qualifying convictions are involved.513 If the state wholly fails to provide the defendant with a written notice of states intent to habitualize the defendant and the defendant is habitualized at sentencing, the only remedy in that situation is resentencing under the applicable Sentencing Guidelines or Criminal Punishment Code.514 Fact of Prior Conviction Before a trial court may impose an enhanced sentence based on recidivism, the State must also establish the fact of prior conviction by providing record evidence of the date of the current felony offense, the date of the conviction for the last prior felony, and the date the defendant was released from any prison term or supervision imposed for the last felony conviction.515 The State must present evidence of the prior convictions and cannot simply refer to evidence introduced at an earlier sentencing hearing.516 Charging informations, sentences, orders assessing fines and costs, affidavits of violation of probation, and the like are extraneous and irrelevant to proving
511. Ashe v. State, 951 So. 2d 1023 (Fla. Dist. Ct. App. 1st Dist. 2007). 512. Vann v. State, 970 So. 2d 878 (Fla. Dist. Ct. App. 2d Dist. 2007). 513. Kepner v. State, 911 So. 2d 1256 (Fla. Dist. Ct. App. 4th Dist. 2005); Anderson v. State, 901 So. 2d 213 (Fla. Dist. Ct. App. 4th Dist. 2005); Washington v. State, 895 So. 2d 1141 (Fla. Dist. Ct. App. 4th Dist. 2005). 514. Stanford v. State, 69 So. 3d 1039 (Fla.Dist. Ct. App. 1st Dist. 2011). 515. Boyd v. State, 776 So. 2d 317, 318 (Fla. Dist. Ct. App. 4th Dist. 2001) (habitual offender). 516. See, Rich v. State, 814 So. 2d 1207, 1208 (Fla. Dist. Ct. App. 4th Dist. 2002).

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the fact of a prior conviction, and their introduction by the State may be deemed unduly prejudicial.517 The trial court can rely upon certified copies of convictions and original court records in making the determination.518 The State meets its burden as to out-of-state priors when it provides a copy of the out-of-state judgment(s) with the defendants name and social security number. To constitute a qualifying or predicate offense under section 775.084, the out-of-state conviction must be substantially similar in elements and penalties to an offense in this state and must be punishable by death or imprisonment over one year.519 The burden then shifts to the defendant to show mistaken identity.520 For purposes of section 775.084, the term conviction is equivalent to adjudication.521 Not all prior convictions can be used for recidivist enhancement, however. Absent waiver of counsel on the record at the time of the prior conviction or a stipulation from the defense at the time of enhancement, the State may not use uncounselled prior convictions for enhancement purposes. Presuming waiver of counsel from silent record is impermissible.522 This issue arises most commonly when the State seeks to enhance misdemeanor crimes such as driving under the influence, driving while license suspended or revoked, and petit theft to felonies. The defendant bears the initial burden of showing entitlement to counsel because the key is that an uncounselled conviction may not be used for enhancement if the defendant in fact had a right to counsel in the prior proceedings.523 In order to meet this initial burden, the defendant must assert under oath: (1) that the offense involved was punishable by more than six months of imprisonment or that the defendant was actually subjected to a term of imprisonment; (2) that the defendant was indigent and, thus, entitled to court-appointed counsel; (3) counsel was

517. Johnson v. State, 42 So. 3d 899 (Fla. Dist. Ct. App. 2d Dist. 2010). 518. Slade v. State, 898 So. 2d 120 (Fla. Dist. Ct. App. 4th Dist. 2005). 519. Sec. 775.084(1)(e), F.S.; see, Clarke v. State, 941 So. 2d 593 (Fla. Dist. Ct. App. 4th Dist. 2006) (Bahamian crimes); Alix v. State, 799 So.2d 359 (Fla. Dist. Ct. App. 3d Dist. 2001) (The Canadian crime of sexual assault is broader than Floridas offense of sexual battery because the Canadian offense encompasses less serious conduct that is not punishable under Floridas sexual battery statute and therefore cannot be used as a predicate to sentence a defendant as a habitual violent felony offender). 520. Guion v. State, 753 So. 2d 628 (Fla. Dist. Ct. App. 5th Dist. 2000). 521. See, McCrae v. State, 395 So. 2d 1145 (Fla. 1980) (a defendant was convicted within the meaning of the statute if he had entered a guilty plea to a qualifying felony, but had not yet been sentenced); cf. Benton v. State, 829 So. 2d 388 (Fla. Dist. Ct. App. 3d Dist. 2002) (adjudication withheld and probation caused defendant to be further removed from the adjudication of guilt required for treatment as a habitual felony offender); Schneider v. State, 788 So. 2d 1073, 1074 (Fla. Dist. Ct. App. 2d Dist. 2001) (habitual violent offender sentence was proper where the defendant was on community control in a prior case when he committed the instant offenses because he had been adjudicated guilty in the prior case). 522. Burgett v. Texas, 389 U.S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967). 523. Leffew v. State, 518 So. 2d 1376, 1378 (Fla. Dist. Ct. App. 2d Dist. 1988).

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not appointed; and (4) the right to counsel was not waived. If the defendant sets forth these facts under oath, then the burden shifts to the State to show either that counsel was provided or that the right to counsel was validly waived. A defendants statement under oath that he or she was neither provided nor offered counsel at the proceedings resulting in prior convictions is not sufficient to put the State to the burden of proving that such convictions were in fact counseled or that counsel was knowingly waived.524 An uncounseled prior conviction, in which the defendant could have been incarcerated for more than six months, but was not incarcerated for any period, can be used to enhance a current charge from a misdemeanor to a felony. The State may not, however, use an uncounseled conviction to increase a defendants loss of liberty in the absence of a valid waiver of counsel. The loss of liberty is a penalty different in kind and severity from other penalties, such as fines and conditions of supervision. When, for example, the State prosecutes a repeat DUI offender, it may constitutionally seek applicable enhanced penalties and fines short of incarceration based upon prior uncounseled misdemeanor DUI offenses. The State may not use any of a defendants prior misdemeanor offenses to enhance his or her current offense unless it proves that the defendant was either represented by counsel or validly waived that right during those prior proceedings. In other words, any enhanced loss of liberty may only be based on the counseled offense(s) and the offense(s) for which the defendant validly waived his or her right to counsel. However, during its prosecution, the State may use each of the defendants prior uncounseled misdemeanor offenses to seek any enhanced penalties and fines short of incarceration that apply to the offense being prosecuted.525 In recidivist enhancement cases, before a prior conviction may be relied upon to enhance the punishment in a subsequent case, the conviction must be final. The date of sentencing for the offense for which a habitualized sentence is sought is the relevant time for determining the finality of any predicate conviction. A conviction for which the time for appeal has not run at the time of the commission of the qualifying offense can serve as a predicate offense if an appeal is not pending at the time of the commission of the qualifying offense.526 A conviction that is not final, because it is on appeal, cannot be relied upon for habitualization.527 If the defendant files an appeal from the judgment of guilty, finality occurs when an appellate court affirms the lower courts judgment.528 A previous felony conviction which was pending on direct appeal is not a predicate conviction for enhancement, even if ultimately affirmed, because it was not final at the time of sentencing. Upon resentencing, the court can use only convictions which were final at

524. State v. Rock, 605 So. 2d 456 (Fla. 1992); see also, State v. Beach, 592 So. 2d 237 (Fla. 1992). 525. State v. Kelly, 999 So. 2d 1029 (Fla. 2008). 526. Kiley v. State, 936 So. 2d 674 (Fla. Dist. Ct. App. 4th Dist. 2006). 527. See, Martin v. State, 592 So. 2d 1219 (Fla. Dist. Ct. App. 1st Dist. 1992). 528. State v. Peterson, 667 So. 2d 199 (Fla. 1996) (habitual offender).

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the time of the original sentencing.529 Note that this rule is different than the rule that permits the scoring on guidelines and Criminal Punishment Code scoresheets of convictions that are under appeal. Absent specific statutory authorization, a prior juvenile withhold of adjudication of delinquency, or an adjudication of delinquency, may not be used as a conviction to reclassify a misdemeanor to a felony, even in juvenile court.530 A defendant also retains his or her right against compelled self-incrimination and cannot be required to testify as to prior convictions where such could subject him or her to greater punishment, as to confirm prior convictions during recidivist sentencing proceedings.531

529. Breeze v. State, 641 So. 2d 450 (Fla. Dist. Ct. App. 1st Dist. 1994); Delquidice v. State, 554 So. 2d 35 (Fla. Dist. Ct. App. 4th Dist. 1990). 530. See, J.R.H. v. State, 932 So. 2d 430 (Fla. Dist. Ct. App. 4th Dist. 2006). 531. Meehan v. State, 397 So. 2d 1214 (Fla. Dist. Ct. App. 2d Dist. 1981) (habitual offender sentencing).

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IV. CAPITAL SENTENCING Findings in Support of Sentence of Death Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, must enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it must set forth in writing its findings upon which the sentence of death is based as to the facts: (a) That sufficient aggravating circumstances exist as enumerated in subsection 921.141(5),532 and (b) That there are insufficient mitigating circumstances to outweigh the aggravating circumstances.533 In each case in which the court imposes the death sentence, the determination of the court must be supported by specific written findings of fact based upon the circumstances in subsections 921.141(5) and (6), or subsections 921.142(6) and (7) if the defendant is convicted of capital drug trafficking, and upon the records of the trial and the sentencing proceedings. If the court does not make the findings requiring the death sentence within 30 days after the rendition of the judgment and sentence, the court must impose sentence of life imprisonment in accordance with section 775.082.534 A sentencing judge who chooses to override a jurys recommendation of a life sentence and impose a sentence of death should be aware that, to sustain a jury override, the Florida Supreme Court must conclude in its review of the sentence that the facts suggesting a sentence of death are so clear and convincing that virtually no reasonable person could differ.535 The subject of Floridas jury override provision has been the subject of considerable debate since the United States Supreme Court decision in Ring v. Arizona,536 which held that an Arizona statute pursuant to which, following a jury adjudication of a defendants guilt of firstdegree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty, violates the Sixth Amendment right to a jury trial in capital prosecutions. The Florida Supreme Court has

532. Sec. 921.141(3)(a), F.S. 533. Sec. 921.141(3)(b), F.S. 534. Sec. 921.141(3), F.S.; Sec. 921.142(4), F.S.; see also, Stewart v. State, 549 So. 2d 171 (Fla. 1989), certiorari denied, 497 U.S. 1031, 110 S. Ct. 3294, 111 L. Ed. 2d 802 (1990). 535. San Martin v. State, 717 So. 2d 462, 471 (Fla. 1998); Tedder v. State, 322 So. 2d 908, 910 (Fla.1975). 536. Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).

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held that Ring does not invalidate the jury override where the jury has found one of the aggravating circumstances or there exists other felony convictions.537 Aggravating Circumstances Aggravation is any circumstance attending the commission of an offense which increases its guilt or enormity or adds to its injurious consequences, but which is above and beyond the essential constituents of the offense itself.538 An aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of the same capital offense.539 All aggravators that may be considered in a capital case are set forth by statute, and no other aggravators may be considered in capital sentencing. Each aggravating circumstance must be proven beyond a reasonable doubt.540 There is no prohibition on the use of prior felonies committed when the defendant was a minor as an aggravating circumstance during the penalty phase.541 No statute, rule of procedure, or decision of the Florida Supreme Court or the United State Supreme Court compels a trial court to require advance notice of aggravating factors, and none prohibits it.542 A trial judge presiding over a case in which the death penalty is possible may, however, require the State to produce pretrial notice of the aggravators it intends to prove in the penalty phase. A judge should instruct a jury only on those aggravating circumstances for which credible, competent evidence has been presented, but it is not error to submit an aggravator to the jury where the trial court ultimately finds that the aggravator was not proven beyond a reasonable doubt and declines to find the existence of that aggravator.543 A judge cannot require that a majority of jurors agree that a particular aggravator applies, as such a requirement would impose a substantive burden on the State that is not contained in section 921.141(5) and not required by Ring v. Arizona.544 Doubling of aggravating circumstances is

537. Weaver v. State, 894 So. 2d 178 (Fla. 2004). 538. Blacks Law Dictionary 65 (6th ed. 1990); see, People v. Robinson, 92 Ill. App. 3d 972, 416 N.E. 2d 793 (Ill. App. Ct. 5th Dist. 1981). 539. Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983). 540. Alford v. State, 307 So. 2d 433 (Fla. 1975). 541. England v. State, 940 So. 2d 389 (Fla. 2006); Campbell v. State, 571 So. 2d 415 (Fla. 1990). 542. Lynch v. State, 841 So. 2d 362 (Fla. 2003) (defendant not entitled to notice of aggravators in indictment because aggravators are clearly listed in statutes). 543. Aguirre-Jarquin v. State, 9 So. 3d 593 (Fla. 2009); Floyd v. State, 850 So. 2d 383 (Fla. 2002); Hunter v. State, 660 So. 2d 244 (Fla. 1995). 544. State v. Steele, 921 So. 2d 538 (Fla. 2005), citing Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).

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improper when they refer to the same aspect of the crime or of the defendants character.545 The trial judge is not limited in sentencing to consideration of only the material put before the jury, and it is not error for a judge to consider and find an aggravator that was not presented to or found by the jury.546 Capital Felonies Aggravating circumstances for capital felonies other than capital drug trafficking are limited to the following: The capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or on felony probation.547 The phrase person under sentence of imprisonment includes (a) persons incarcerated under a sentence for a specific or indeterminate term of years, (b) persons incarcerated under an order of probation, (c) persons under either (a) or (b) who have escaped from incarceration, or (d) persons who are under sentence for a specific or indeterminate years and who have been placed on parole.548 The phrase also includes defendants who are on mandatory conditional release at the time of the murder.549 Persons who are under an order of probation and are not incarcerated at the time of the commission of the capital offense escapees from incarceration do not fall within the phrase person under sentence of imprisonment as set forth in section 921.141(5)(a).550 Confinement to a juvenile facility pursuant to an adjudication of delinquency is not a sentence of imprisonment as set forth in the statute.551 The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.552 An adjudication is not necessary and a contemporaneous conviction for a violent felony can serve as a basis for the prior violent felony aggravator.553 Where a defendant is convicted in multiple murders, arising from the same

545. See, Fla. Jur. Criminal Law 2328. 546. See, Williams v. State, 967 So. 2d 735 (Fla. 2007). 547. Sec. 921.141(5)(a), F.S. 548. Williams v. State, 707 So. 2d 683 (Fla. 1998). 549. Haliburton v. State, 561 So. 2d 248 (Fla. 1990). 550. Peek v. State, 395 So. 2d 492 (Fla. 1980). 551. Williams v. State, 707 So. 2d 683 (Fla. 1998). 552. Sec. 921.141(5)(b), F.S. 553. Buzia v. State, 926 So. 2d 1203 (Fla. 2006).

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criminal episode, the contemporaneous conviction as to one victim may support the finding of the prior violent felony aggravator as to the murder of another victim.554 A conviction for accessory after the fact to a crime of violence may not be used as a vehicle to implicate the defendant as a principal in the prior underlying crime of violence under section 921.141(5)(b).555 Note that the State is not obligated to accept a defendants stipulation to prior violent felony convictions in lieu of introducing evidence thereof at the penalty phase hearing.556 During a penalty phase proceeding, the trial court has the discretion to admit evidence with regard to the details of a defendants previous conviction for a felony involving the use or threat of violence.557 The State is not restricted to the bare admission of a conviction when presenting evidence in support of the prior violent felony aggravating circumstance.558 Rather, the State may adduce any testimony that the trial court deems relevant to the nature of the crime and the character of the defendant.559 Whether a crime constitutes a prior violent felony is determined by the surrounding facts and circumstances of the prior crime.560 This is so because the purpose for considering aggravating and mitigating circumstances is to engage in a character analysis of the defendant to ascertain whether the ultimate penalty is called for in his or her particular case, and propensity to commit violent crimes is necessarily a valid consideration for the jury and the judge.561 Even if a defendant has pled guilty to a lesser offense, the trial court may allow the State to present evidence that demonstrates a greater offense.562 The defendant knowingly created a great risk of death to many persons.563 When the legislature chose the words with which to establish this aggravating circumstance, it indicated clearly that more was contemplated than a showing of some degree of risk of bodily harm to a few persons. Great risk means not a mere possibility but a likelihood or high probability. The

554. Francis v. State, 808 So. 2d 110, 136 (Fla. 2001). 555. Donaldson v. State, 722 So. 2d 177 (Fla. 1998). 556. Franklin v. State, 965 So. 2d 79 (Fla. 2007); Cox v. State, 819 So. 2d 705 (Fla. 2002). 557. See, Rhodes v. State, 547 So. 2d 1201, 1204 (Fla.1989); Tompkins v. State, 502 So. 2d 415, 419 (Fla. 1986). 558. See, Rhodes v. State, 547 So. 2d 1201, 1204 (Fla. 1989); Delap v. State, 440 So. 2d 1242, 1255-56 (Fla. 1983); Elledge v. State, 346 So. 2d 998, 1001-02 (Fla. 1977). 559. See, Delap v. State, 440 So. 2d 1242, 1255 (Fla. 1983). 560. Anderson v. State, 841 So. 2d 390, 407 (Fla. 2003). 561. Elledge v. State, 346 So. 2d 998, 1001-02 (Fla. 1977). 562. See, Bevel v. State, 983 So. 2d 505, 518 (Fla. 2008); Delap v. State, 440 So. 2d 1242, 1255 (Fla. 1983); Morgan v. State, 415 So. 2d 6, 12 (Fla. 1982). 563. Sec. 921.141(5)(c), F.S.

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great risk of death created by the capital felons actions must be to many persons. By using the word many, the legislature indicated that a great risk of death to a small number of people would not establish this aggravating circumstance.564 Three persons plus the victim do not comprise many people for purposes of this aggravator.565 The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any: robbery; sexual battery; aggravated child abuse; abuse of an elderly person or disabled adult resulting in great bodily harm, permanent disability, or permanent disfigurement; arson; burglary; kidnapping; aircraft piracy; or unlawful throwing, placing, or discharging of a destructive device or bomb.566 Note that the list of qualifying offenses for the felony murder aggravator in section 921.141(5)(d) overlap with, but are different from the qualifying offenses of the felony-murder statute, section 782.04(1)(a)2., and so the aggravator does not unconstitutionally repeat an element of the underlying charge of felony-murder.567 The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.568 An arrest need not be imminent at the time of the murder to support this aggravator.569 Where the victim is not a police officer, the evidence supporting the avoid arrest aggravator must prove that the sole or dominant motive for the killing was to eliminate a witness, and mere speculation on the part of the State that witness elimination was the dominant motive behind a murder cannot support the avoid arrest aggravator.570 However, this factor may be proved by circumstantial evidence from which the motive for the murder may be inferred, without direct evidence of the offenders thought processes.571 In such cases, however, proof of the intent to avoid arrest must be very strong.572 Circumstantial evidence generally relied upon to prove this aggravator includes whether the victim knew and could identify the killer and whether the defendant used gloves, wore a mask, or made incriminating statements about witness elimination; whether the victims offered resistance; and

564. Kampff v. State, 371 So. 2d 1007 (Fla. 1979). 565. Bello v. State, 547 So. 2d 914 (Fla. 1989). 566. Sec. 921.141(5)(d), F.S. 567. See, Taylor v. State, 638 So. 2d 30 (Fla. 1994). 568. Sec. 921.141(5)(e), F.S. 569. Fotopoulos v. State, 608 So. 2d 784 (Fla. 1992). 570. Connor v. State, 803 So. 2d 598, 610 (Fla. 2001). 571. Parker v. State, 873 So. 2d 270 (Fla. 2004). 572. Riley v. State, 366 So. 2d 19, 22 (Fla. 1978).

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whether the victims were confined or were in a position to pose a threat to the defendant.573 A confession is direct evidence of motive, and a confession that witness elimination was the reason for the murder satisfies this aggravating circumstance.574 The avoid arrest aggravator is also proper where the victim is transported to another location and then killed.575 The capital felony was committed for pecuniary gain.576 In order to establish the aggravating factor that the murder was convicted for pecuniary gain, the State must prove beyond reasonable doubt that the murder was motivated, at least in part, by desire to obtain money, property, or other financial gain.577 This aggravating factor applies only where the murder is an integral step in obtaining some sought-after specific gain.578 Receiving money for participation in a murder is sufficient to trigger this aggravator.579 This aggravator does not apply where the theft of money or property has been completed long before the murder,580 or where the taking occurs as an afterthought and is not the motivation for the murder.581 The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.582 This aggravator is most commonly applied in witness elimination cases,583 informant retaliation cases,584 and law enforcement assassination cases.585 It has also been applied where a defendant murdered a law enforcement officer in order

573. Farina v. State, 801 So. 2d 44, 54 (Fla. 2001). 574. Walls v. State, 641 So. 2d 381, 390 (Fla. 1984). 575. Jones v. State, 748 So. 2d 1012, 1027 (Fla. 1999); Hall v. State, 614 So. 2d 473, 477 (Fla. 1993). 576. Sec. 921.141(5)(f), F.S. 577. Finney v. State, 660 So. 2d 674, 680 (Fla. 1995). 578. See, Hardwick v. State, 521 So. 2d 1071 (Fla. 1988); Rogers v. State, 511 So. 2d 526, 533 (Fla. 1987); Simmons v. State, 419 So. 2d 316 (Fla. 1982). 579. Antone v. State, 382 So. 2d 1205 (Fla. 1980). 580. Elam v. State, 636 So. 2d 1312 (Fla. 1994). 581. Bowles v. State, 804 So. 2d 1173 (Fla. 2001). 582. Sec. 921.141(5)(g), F.S. 583. See, Koon v. State, 513 So. 2d 1253 (Fla. 1987). 584. See, Francis v. State, 473 So. 2d 672 (Fla. 1985). 585. See, Phillips v. State, 894 So. 2d 28 (Fla. 2004).

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to disrupt police pursuit and investigation.586 Note that the application of both the factors of committed to avoid lawful arrest and committed to disrupt or hinder law enforcement constitutes impermissible doubling, i.e., finding two aggravating circumstances based on a single aspect of the offense. The Florida Supreme Court has repeatedly held that application of both of these aggravating factors is error where they are based on the same essential feature of the capital felony.587 The capital felony was especially heinous, atrocious, or cruel (HAC).588 The capital sentencing aggravator of heinous, atrocious, or cruel (HAC) applies only to those physically and mentally torturous murders which can be exemplified by the desire to inflict a high degree of pain or utter indifference to or enjoyment of the suffering of another.589 Heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others.590 To qualify for this aggravator, the crime must be both consciousless or pitiless and unnecessarily torturous to the victim.591 The heinous, atrocious, or cruel (HAC) aggravator focuses on the means and manner in which death is inflicted and the immediate circumstances surrounding the death.592 The intention of the killer to inflict pain is not a necessary element of this aggravator.593 In determining whether the HAC aggravator is present, the focus is upon the victims perceptions of the circumstances as opposed to those of the perpetrator.594 To support this aggravator, the evidence must demonstrate that victim was conscious and aware of impending death.595 Stated otherwise, the HAC aggravator is proper only in torturous murders those that evince extreme and outrageous depravity as exemplified either by the desire to inflict a high degree of pain or utter indifference to or enjoyment of the

586. See, Pietri v. State, 644 So. 2d 1347 (Fla. 1994). 587. See, e.g., Bello v. State, 547 So. 2d 914 (Fla. 1989); Jackson v. State, 498 So. 2d 406 (Fla.1986), cert. denied, 483 U.S. 1010, 107 S. Ct. 3241, 97 L. Ed. 2d 746 (1987); Thomas v. State, 456 So. 2d 454 (Fla. 1984). 588. Sec. 921.141(5)(h), F.S. 589. Barnhill v. State, 834 So. 2d 836, 849 (Fla. 2002). 590. Hutchinson v. State, 882 So. 2d 943 (Fla. 2004). 591. Hertz v. State, 803 So. 2d 629 (Fla. 2001). 592. Barnhill v. State, 834 So. 2d 836 (Fla. 2002). 593. Francis v. State, 808 So. 2d 110 (Fla. 2001). 594. Lynch v. State, 841 So. 2d 362 (Fla. 2003). 595. Douglas v. State, 878 So. 2d 1246 (Fla. 2004).

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suffering of another.596 The crime must be conscienceless or pitiless and unnecessarily torturous to the victim.597 The HAC aggravator generally does not apply to execution-style killings unless the State presents additional evidence that the defendant acted to physically or mentally torture the victim.598 However, fear, emotional strain, and terror of the victim during the events leading up to the murder may make an otherwise quick death especially heinous, atrocious, or cruel.599 This includes instances where the victim is acutely aware of his or her impending death.600 The capital felony was a homicide and was committed in a cold, calculated, and premeditated (CCP) manner without any pretense of moral or legal justification.601 To support the cold, calculated, and premeditated (CCP) aggravator, a jury must find that (1) the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage, (2) the defendant had a careful plan or prearranged design to commit murder before the fatal incident, (3) the defendant exhibited heightened premeditation, and (4) the defendant had no pretense of moral or legal justification.602 Note that the presence of mental illness does not automatically make a finding of CCP inapplicable where the facts otherwise establish that the murder was committed in a cold, calculated and premeditated manner without justification.603 The fact that the actual murder did not take place according to the defendants plan does not, in and of itself, negate the requirement that the defendants plan was the result of cool, calm reflection.604 Premeditation can be established by examining the circumstances of the killing and the conduct of the accused. The CCP aggravator can be indicated by circumstances showing such facts as advance procurement of a weapon, lack of resistance or provocation, and the appearance of a killing carried out as a matter of course.605

596. Guzman v. State, 721 So. 2d 1155, 1159 (Fla. 2002); see also Cheshire v. State, 568 So. 2d 908 (Fla. 1990). 597. Guzman v. State, 721 So. 2d 1155, 1159 (Fla. 2002), citing Richardson v. State, 604 So. 2d 1107 (Fla. 1992). 598. See, Victorino v. State, 23 So. 3d 87 (Fla. 2009); Rimmer v. State, 825 So. 2d 304 (Fla. 2002). 599. See, James v. State, 695 So. 2d 1229 (Fla. 1997). 600. Hudson v. State, 992 So. 2d 96 (Fla. 2008). 601. Sec. 921.141(5)(i), F.S. 602. Jackson v. State, 648 So. 2d 85 (Fla. 1994). 603. See, Gill v. State, 14 So. 3d 946 (Fla. 2009). 604. Kopsho v. State, 84 So. 3d 204 (Fla. 2012). 605. Franklin v. State, 965 So. 2d 79 (Fla. 2007).

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The victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties.606 There is no express requirement in the statute that the defendant know, or reasonably should know, that the victim is a law enforcement officer and the Supreme Court of Florida has not ruled on this issue, but a knowledge requirement is a fair inference if this is to be sustained as a true aggravator for capital sentencing. More significant, however, is that this aggravator will most likely merge with any avoiding arrest aggravator or hindering a law enforcement officer aggravator present in the circumstances of the case.607 The victim of the capital felony was an elected or appointed public official engaged in the performance of his or her official duties if the motive for the capital felony was related, in whole or in part, to the victims official capacity.608 The victim must have been involved in the performance of a legitimate government function at the time of the murder.609 There is no express requirement in the statute that the defendant know, or reasonably should know, that the victim is an elected or appointed public official and the Supreme Court of Florida has not ruled on this issue, but a knowledge requirement is a fair inference if this is to be sustained as a true aggravator for capital sentencing. The victim of the capital felony was a person less than 12 years of age.610 Note that it is improper doubling to find this aggravating circumstance and the aggravating circumstance that the defendant was engaged in aggravated child abuse of the same victim at the time of the murder.611 The victim of the capital felony was particularly vulnerable due to advanced age or disability, or because the defendant stood in a position of familial or custodial authority over the victim.612 Particularly means to an unusual degree; vulnerable means open to attack or damage; advanced means far on in time or course; and age means the length of an existence extending from the beginning to any given time.613

606. Sec. 921.141(5)(j), F.S. 607. See, Weaver v. State, 894 So. 2d 178 (Fla. 2004). 608. Sec. 921.141(5)(k), F.S. 609. Phillips v. State, 705 So. 2d 1320 (Fla. 1997). 610. Sec. 921.141(5)(l), F.S. 611. Lukehart v. State, 776 So. 2d 906 (Fla. 2001). 612. Sec. 921.141(5)(m), F.S. 613. Francis v. State, 808 So. 2d 110 (Fla. 2002).

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The capital felony was committed by a criminal gang member, as defined in section 874.03.614 Although the issue has not been litigated in Florida courts to date, it appears that application of this aggravator will not be constitutional unless there is some causally significant nexus between the defendants membership in the gang at issue and the murder.615 See the explanation of the terms criminal gang and criminal gang activity in Chapter 6, supra. The capital felony was committed by a person designated as a sexual predator pursuant to section 775.21 or a person previously designated as a sexual predator who had the sexual predator designation removed.616 While the application of this aggravator is probably constitutionally permissible in the case of a murder perpetrated by a defendant who was on sexual predator status, its application to a defendant who was no longer a sexual predator at the time of the murder is problematic, particularly where the status was removed because its original application was by factual or legal error. See the explanation of sexual predator status in Chapter 6, supra. The capital felony was committed by a person subject to an injunction issued pursuant to section 741.30 or section 784.046, or a foreign protection order accorded full faith and credit pursuant to section 741.315, and was committed against the petitioner who obtained the injunction or protection order or any spouse, child, sibling, or parent of the petitioner.617 An aggravating circumstance added in 2010 is that the capital felony was committed by a person subject to an injunction for protection against domestic violence, repeat violence, sexual violence, dating violence, or a foreign protection order and was committed against the petitioner who obtained the injunction or protection order or any spouse, child, sibling, or parent of the petitioner.618 This aggravator does not apply to capital drug trafficking felonies. Capital Drug Trafficking Felonies Capital drug trafficking felonies are described in section 893.135(1), subsections (b)2., (b)3., (c)2., (c)3., (d)2., (e)2., (f)2., (g)2., (h)2., (i)2., (j)2., (k)3., and (l)2. Aggravating circumstances for capital drug trafficking felonies are limited to the following:

614. Sec. 921.141(5)(n), F.S. 615. See, Dawson v. Delaware, 503 U.S. 159, 112 S. Ct. 1093, 117 L.Ed. 2d 309 (1992) (admission of evidence in murder trial of defendants membership in the Aryan Brotherhood gang). 616. Sec. 921.141(5)(o), F.S. 617. Sec. 921.141(5)(p), F.S. 618. Chapter 2010-120, Laws of Florida.

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The capital felony was committed by a person under a sentence of imprisonment.619 This aggravator requires only that the defendant be under a sentence of imprisonment at the time of the murder. The phrase person under sentence of imprisonment includes (a) persons incarcerated under a sentence for a specific or indeterminate term of years, (b) persons incarcerated under an order of probation, (c) persons under either (a) or (b) who have escaped from incarceration, or (d) persons who are under sentence for a specific or indeterminate years and who have been placed on parole.620 The phrase also includes defendants who are on mandatory conditional release at the time of the murder.621 Persons who are under an order of probation and are not incarcerated at the time of the commission of the capital offense or escapees from incarceration do not fall within the phrase person under sentence of imprisonment as set forth in section 921.142(6)(a).622 Confinement to a juvenile facility pursuant to an adjudication of delinquency is not a sentence of imprisonment as set forth in the statute.623 The defendant was previously convicted of another capital felony or of a state or federal offense involving the distribution of a controlled substance that is punishable by a sentence of at least one year of imprisonment.624 This aggravator requires (1) a prior conviction, (2) of a capital felony other than the one for which the defendant is to be sentenced or of a drug distribution offense that is (3) punishable by at least a year in prison. Pursuant to the drug laws of Florida, controlled substance means any substance named or described in Schedules I-V of section 893.03;625 deliver or delivery means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship;626 dispense means the transfer of possession of one or more doses of a medicinal drug by a pharmacist or other licensed practitioner to the ultimate consumer thereof or to one who represents that it is his or her intention not to consume or use the same but to transfer the same to the ultimate consumer or user for consumption by the ultimate consumer or user;627 and distribute means to deliver, other than by administering or dispensing, a controlled

619. Sec. 921.142(6)(a), F.S. 620. See, Williams v. State, 707 So. 2d 683 (Fla. 1998). 621. See, Haliburton v. State, 561 So. 2d 248 (Fla. 1990). 622. See, Peek v. State, 395 So. 2d 492 (Fla. 1980). 623. See, Williams v. State, 707 So. 2d 683 (Fla. 1998). 624. Sec. 921.142(6)(b), F.S. 625. Sec. 893.02(4), F.S. 626. Sec. 893.02(5), F.S. 627. Sec. 893.02(6), F.S.

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substance.628 This means any conviction merely for the unlawful sale, administration, or dispensing of a controlled substance cannot serve as the predicate for this aggravator. The defendant knowingly created grave risk of death to one or more persons such that participation in the offense constituted reckless indifference or disregard for human life.629 This aggravator requires (1) knowledge and (2) a causal nexus between the defendants recklessness and the death of the victim that is not improbable, remote or speculative. The reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.630 A hypothetical situation in which this aggravator could be applied would be where the defendant had major responsibility for the distribution of toxic GHB631 to elementary or middle school children, knowing that there was a significant possibility, or even likelihood, that a child would die as a result. This aggravator cannot be supported in situations where death to many people is merely a possibility. Instead, there must be a likelihood or high probability of death to many people. Further, the word many must be read plainly. The application of this aggravating circumstance has been upheld in scenarios in which four or more persons other than the victim were threatened with a great risk of death.632 This aggravator has also been upheld in a situation where the defendant engaged in indiscriminate shooting in the direction of at least four persons other than the intended victim who were not only put in an immediate and present risk of death, but were also in the line of fire.633 The defendant used a firearm or knowingly directed, advised, authorized, or assisted another to use a firearm to threaten, intimidate, assault, or injure a person in committing the offense or in furtherance of the offense.634 A hypothetical example of the application of this aggravator would be where the defendant engages in a violent turf war with a rival drug trafficker and either directly uses a firearm to intimidate, wound, or kill one of his competitors or directs others to do so.

628. Sec. 893.02(7), F.S. 629. Sec. 921.142(6)(c), F.S. 630. See, Lebron v. State, 799 So. 2d 997 (Fla. 2001). 631. GHB is the common abbreviation for gammahydroxybutyrate or gammahydroxybutyric acid, a potentially lethal intoxicant often used at rave parties. 632. Johnson v. State, 696 So. 2d 317 (Fla. 1997). 633. Silvia v. State, 60 So. 3d 959 (Fla. 2011). 634. Sec. 921.142(6)(d), F.S.

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The offense involved the distribution of controlled substances to persons under the age of 18 years, the distribution of controlled substances within school zones, or the use or employment of persons under the age of 18 years in aid of distribution of controlled substances.635 A hypothetical example of the application of this aggravator would be where the defendant is engaged in the distribution of trafficking amounts of controlled substances to high school or middle school students and, in the course of the distribution, the defendant deliberately shoots and kills another person to protect either his or her business assets or his or her market share. The offense involved distribution of controlled substances known to contain a potentially lethal adulterant.636 A potentially lethal adulterant is not defined in the statute, but may be fairly construed to be any poisonous or deleterious substance which may be fatal to any person who ingests or comes in contact with that adulterant.637 A hypothetical example of the application of this aggravator would be where the defendant distributes a controlled substance that the defendant knows or should know contains a cutting agent that could be fatal to any person who consumed those drugs. The defendant either: intentionally killed the victim; intentionally inflicted serious bodily injury which resulted in the death of the victim; or intentionally engaged in conduct intending that the victim be killed or that lethal force be employed against the victim, which resulted in the death of the victim.638 A hypothetical example of the application of this aggravator would be where a drug trafficker eliminates a police informant who is a witness to his or her drug distribution activities, or directs that that witness be eliminated. The defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value.639 A hypothetical example of the application of this aggravator would be where the defendant was hired by a drug trafficker to kill another person. The murder, however would have to have some significant connection to the distribution of a trafficking amount of controlled substances.

635. Sec. 921.142(6)(e), F.S. 636. Sec. 921.142(6)(f), F.S. 637. The Federal Food, Drug, and Cosmetic Act of 1938, 21 U.S.C. 342(a) (1938), Section 342(a)(1) declares adulterated any food that bears or contains any poisonous or deleterious substance which may render it injurious to health. However, food which does not contain any added substance is not considered adulterated if the quantity of the poisonous or deleterious substance does not ordinarily render it injurious to health. Burke Pest Control, Inc. v. Joseph Schlitz Brewing Co., 438 So. 2d 95 (Fla. Dist. Ct. App. 2d Dist. 1983). See also, Coston v. State, 144 Fla. 676, 198 So. 467 (Fla. 1941) (potassium cyanide in bottle of whiskey). 638. Sec. 921.142(6)(g), F.S. 639. Sec. 921.142(6)(h), F.S.

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The defendant committed the offense after planning and premeditation.640 A hypothetical example of the application of this aggravator would be where a drug trafficker implements and directs a hostile takeover of sourcing or marketing resources that includes a particularly brutal form of downsizing. The defendant committed the offense in a heinous, cruel, or depraved manner in that the offense involved torture or serious physical abuse to the victim.641 Heinous means extremely wicked or shockingly evil; and cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others.642 An act is one imminently dangerous to another and evincing a depraved mind regardless of human life if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and (2) is done from ill will, hatred, spite or an evil intent, and (3) is of such a nature that the act itself indicates an indifference to human life.643 Mitigating Circumstances An important imperative in the process is that a defense attorney has a duty to conduct a reasonable investigation for possible mitigating evidence to be used in the penalty phase of a capital proceeding.644 Counsels decision not to present mitigation evidence may be a tactical decision properly within counsels discretion, but such a decision does not come without risk of ineffectiveness for failing to investigate or present mitigating evidence. A defendant may, if done knowingly, voluntarily and intelligently, waive participation in the penalty phase.645 When a defendant, against counsels advice, refuses to permit presentation of mitigating evidence in the penalty phase, counsel must inform the court on the record of defendants decision and indicate whether, based on his or her investigation, he or she reasonably believes there to be mitigating evidence that could be presented and what that evidence would be; the court should then require the defendant to confirm on the record that his or her counsel has discussed these matters with him

640. Sec. 921.142(6)(i), F.S. 641. Sec. 921.142(6)(j), F.S. 642. See, Hutchinson v. State, 882 So. 2d 943 (Fla. 2004). 643. See, Sec. 782.04(2), F.S.; Fla. Std. Jur. Instr. 7.4; Duckett v. State, 686 So. 2d 662 (Fla. Dist. Ct. App. 2d Dist. 1996). 644. Jones v. State, 855 So. 2d 611, 618 (Fla. 2003). 645. E.g., Deaton v. Dugger, 635 So.2d 4, 8 (Fla.1993) (citing Henry v. State, 613 So. 2d 429 (Fla. 1992)), Clark v. State, 613 So. 2d 412 at 413 (Fla. 1992) (citing Durocher v. State, 604 So.2d 810 (Fla.1992); Pettit v. State, 591 So. 2d 618 (Fla. 1992); Anderson v. State, 574 So. 2d 87 (Fla.1991), cert. denied, 502 U.S. 834, 112 S. Ct. 114, 116 L. Ed. 2d 83 (1991); Hamblen v. State, 527 So. 2d 800 (Fla. 1988).

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or her, and despite counsels recommendation, he or she wishes to waive presentation of penalty phase evidence.646 When a defendant does waive the right to present mitigation evidence, the trial court must order the preparation of a pre-sentence investigation report (PSI) and, in its discretion, may call witnesses to present mitigation evidence to the extent that the PSI alerts the court to the existence of significant mitigation.647 Once the comprehensive PSI is complete, the trial court must determine whether it suggests the existence of mitigation.648 Mitigation is not the same thing as sympathy, however. It is no doubt constitutionally permissible, if not constitutionally required, for the State to insist that the individualized assessment of the appropriateness of the death penalty be a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence.649 Mitigating circumstances are such as do not constitute a justification or excuse for an offense, but which in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability of the offender.650 A mitigating circumstance for purposes of sentencing in capital cases is any aspect of a defendants character or record and any of the circumstances of the offense that reasonably may serve as a basis for imposing a sentence less than death.651 There are circumstances, however, where a mitigating circumstance may be found to be supported by the record, but given no weight.652 Deciding the weight to be given a mitigating circumstance is within the trial courts discretion, and the trial courts decision will not be reversed except for an abuse of discretion.653 Sections 921.141(6) and 921.142(6) each set seven specific mitigators for capital felonies and capital drug trafficking felonies. The two sets of statutory mitigators differ in some respects but are virtually identical in most aspects, and each has an eighth all other provision for what were formerly nonstatutory mitigators. The trial court, in considering mitigating evidence, must determine whether the facts alleged in mitigation are supported by the evidence.654 A trial court is obligated to find and
646. Koon v. Dugger, 619 So. 2d 246 (Fla. 1993). 647. Muhammad v. State, 782 So. 2d 343 (Fla. 2001). 648. Russ v. State, 73 So. 3d 178 (Fla. 2011). 649. Saffle v. Parks, 494 U.S. 484, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990). 650. Blacks L. Dict. 1002 (6th Ed. 1990); see, People v. Morrin, 31 Mich. App. 301, 187 N.W. 2d 434 (Mich. Ct. App. 1971). 651. Campbell v. State, 571 So. 2d 415 (Fla. 1990). 652. Trease v. State, 768 So. 2d 1050, 1055 (Fla. 2000). 653. Kearse v. State, 770 So. 2d 1119 (Fla. 2000). 654. See, Bonifay v. State, 680 So. 2d 413, 416 (Fla. 1996).

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weigh all valid mitigating evidence available in the record at the conclusion of the penalty phase.655 Evidence is mitigating if, in fairness or in the totality of the defendants life or character, it may be considered as extenuating or reducing the degree of moral culpability for the crime committed.656 A sentencing court must expressly evaluate in its written order each mitigating circumstance proposed by the defendant to determine whether it is supported by the evidence and whether, in the case of nonstatutory factors, it is truly of a mitigating nature.657 Determining whether a mitigating circumstance exists and the weight to be given to existing mitigating circumstances are matters within the discretion of the sentencing court.658 While the trial court can determine the weight to be given to a particular mitigator, the trial court must find as a mitigating circumstance any proposed factor that is both reasonably established by the greater weight of the evidence and mitigating in nature. A mitigating circumstance need not be proved beyond a reasonable doubt by the defendant. A trial court must find as a mitigating circumstance each proposed factor that has been established by the greater weight of the evidence and that is truly mitigating in nature. However, a court may reject a proposed mitigator if the mitigator is not proven or if there is competent, substantial evidence to support its rejection. Even expert opinion evidence may be rejected if that evidence cannot be reconciled with the other evidence in the case. Even where a mitigating circumstance is found a trial court may give it no weight when that circumstance is not mitigating based in the unique facts of the case.659 Mitigating circumstances for capital felonies and capital drug trafficking felonies include the following: The defendant has no significant history of prior criminal activity.660 The no significant history of prior criminal activity mitigator focuses on the defendants behavior prior to the murder when deciding whether the defense has proven this mitigating factor. When the defendant relies on this mitigator, the State is permitted to put on rebuttal evidence of any kind of criminal activity occurring prior to the murder, and not solely convictions.661 This can include, for example, fistfights at school, threatening a teacher, and the like. Prior means prior to the transaction in the which the instant murder occurred, not prior to sentencing for the murder, and

655. See, Cheshire v. State, 568 So. 2d 908, 911 (Fla. 1990). 656. See, Wickham v. State, 593 So. 2d 191, 194 (Fla. 1991). 657. Campbell v. State, 571 So. 2d 415 (Fla. 1990). 658. Campbell v. State, 571 So. 2d 415 (Fla. 1990). 659. Coday v. State, 946 So. 2d 988 (Fla. 2006). 660. Sec. 921.141(6)(a), F.S.; Sec. 921.142(7)(a), F.S. 661. See, e.g., Walton v. State, 547 So. 2d 622 (Fla. 1989), cert. denied, 493 U.S. 1036, 110 S. Ct. 759, 107 L. Ed. 2d 775 (1990); Washington v. State, 362 So. 2d 658 (Fla. 1978), cert. denied, 441 U.S. 937, 99 S. Ct. 2063, 60 L. Ed. 2d 666 (1979).

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so a finding of a history of prior criminal activity to rebut the existence, or diminish the weight, of this mitigator cannot be based upon contemporaneous crimes or criminal activity occurring subsequent to the murder.662 The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.663 The mental condition of the defendant must be less than insanity but more than the emotions of an average person and interfere with, but not obviate, his or her knowledge of right and wrong. This aggravator rests upon the principle that a defendant may be legally answerable for his or her actions and legally sane, and even though he or she may be capable of assisting his counsel at trial, he or she may still deserve some mitigation of sentence because of his or her mental state.664 The victim was a participant in the defendants conduct or consented to the act.665 This mitigator is specifically identified for capital felonies, but not for capital drug trafficking felonies. Consent in this regard means intelligent, knowing, and voluntary consent.666 In crimes of violence, the mere fact that the victim was armed is not, in and of itself, sufficient to justify mitigation on this basis.667 This mitigator applies to situations of mutual combat or consensual physical abuse,668 but is not the same as assumption of the risk.669 This mitigator does not apply to assisted suicide, which by statute is deemed manslaughter.670 The defendant was an accomplice in the capital felony committed by another person and his or her participation was relatively minor.671 This mitigator is identical to the Criminal

662. Davis v. State, 2 So. 3d 952 (Fla. 2008). 663. Sec. 921.141(6)(b), F.S.; Sec. 921.142(7)(b), F.S. 664. Perri v. State, 441 So. 2d 606 (Fla. 1983). 665. Sec. 921.141(6)(c), F.S. 666. State v. Rife, 789 So. 2d 288 (Fla. 2001) (downward departure allowed in statutory rape case where victim was a willing participant despite fact that consent is not a defense to the crime); see also, Knox v. State, 814 So. 2d 1185 (Fla. Dist. Ct. App. 2d Dist. 2002); see, however, State v. Johns, 576 So. 2d 1332 (Fla. Dist. Ct. App. 5th Dist. 1991) (fact that 14-year-old prostitute charged defendant for sex cannot be used as basis to mitigate sentence). 667. Fonte v. State, 913 So. 2d 670 (Fla. Dist. Ct. App. 3d Dist. 2005). 668. See, Chambers v. State, 339 So. 2d 204 (Fla. 1976) (sadomasochism). 669. Wuornos v. State, 676 So. 2d 972 (Fla. 1996) (prostitute murder of john does not invoke this mitigator). 670. Sec. 782.08, F.S. 671. Sec. 921.141(6)(d), F.S.; Sec. 921.142(7)(c), F.S.

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Punishment Code mitigator authorized under section 921.0026(2)(b).672 The court may consider the defendants alleged personality trait of being more a follower than a leader, but this mitigator is not available if the defendant was the principal perpetrator in the underlying crime.673 This mitigator was found not to exist where the defendant fully participated in the subduing and intimidation of the victims, in ransacking the house looking for valuables and stood by while the victims were shot one by one and where it was his motel room which was used as a place to plan the crimes and to divide the loot after the crimes were completed.674 This mitigator has also been found not to apply where the murder was the defendants idea and the defendant mutilated the victim.675 This mitigator also does not apply where the defendant is not present for the murder but is the mastermind of a contract killing, and who supplies the gun, pays money from his pocket, and pressures an accomplice to complete the task.676 The defendant acted under extreme duress or under the substantial domination of another person.677 This mitigator is virtually identical to the Criminal Punishment Code mitigator authorized under section 921.0026(2)(g).678 The mitigator of extreme duress presupposes that a harm or crime of greater magnitude is avoided when the subjected person succumbs to the duress.679 Duress as used in this sense does not mean internal pressure, but actually refers to external provocation such as imprisonment or the use of force or threats.680 The compulsion or coercion which will support this mitigator is akin to the common law defense of duress used to excuse the commission of a criminal act: It must be present, imminent, and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done; it must be continuous, and there must be no reasonable opportunity to escape the

672. Sec. 921.0026(2)(b), F.S. 673. See, State v. Woodson, 745 So. 2d 570 (Fla. Dist. Ct. App. 5th Dist. 1999) (felon on probation when charged with burglary, grand theft and dealing in stolen property, and who admitted to being dealer in stolen property, is not minor participant; It was error to allow him to stay out of prison.); State v. Silver, 723 So. 2d 381 (Fla. Dist. Ct. App. 4th Dist. 1998) (defendant who was a closer in a telemarketing scheme with significant involvement in the scheme, was not minor participant); State v. Licea, 707 So. 2d 1155 (Fla. Dist. Ct. App. 2d Dist. 1998). 674. White v. State, 403 So. 2d 331 (Fla. 1981). 675. Stevens v. State, 419 So. 2d 1058 (Fla. 1982). 676. Antone v. State, 382 So. 2d 1205 (Fla. 1980). 677. Sec. 921.141(6)(e), F.S.; Sec. 921.142(7)(d), F.S. 678. Sec. 921.0026(2)(g), F.S. 679. See, Wright v. State, 402 So. 2d 493 (Fla. 1981). 680. Pooler v. State, 704 So. 2d 1375 (Fla. 1997) (fact that his former girlfriend had been seeing another man, even if it caused defendant to become distraught, simply does not qualify as external provocation for purposes of this statutory mitigator); Toole v. State, 479 So. 2d 731 (Fla. 1985).

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compulsion without committing the crime. A threat of future injury is not enough, particularly after danger from the threat has passed. However, it is not necessary that the defendant show that he or she was absolutely driven and made to commit the act charged as a crime.681 As to domination by another person, the domination must be substantial and evidence that the defendant was easily led is insufficient, in and of itself, to establish this mitigator.682 Evidence that the defendant played a substantial part in the planning and/or execution of the offense can be sufficient to rebut or deny this mitigator.683 The capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired.684 This mitigator is identical to the Criminal Punishment Code mitigator authorized under section 921.0026(2)(c), F.S.685 Emotional immaturity coupled with chronological young age is a sufficient basis for this mitigator.686 A substantial impairment of a defendants capacity to appreciate the criminal nature of his or her conduct or to conform that conduct to the requirements of law, although not reaching the level of insanity, can be a sufficient enough to support this mitigator.687 Impairment due to addiction to drugs cannot be used to support this basis of departure, because the legislature has eliminated substance abuse or addiction, including intoxication at the time of the offense, as a mitigating factor at sentencing.688 The age of the defendant at the time of the crime.689 Where the defendant is not a minor and hence ineligible for imposition of the death penalty,690 no per se rule exists which pinpoints a

681. See, Hall v. State, 136 Fla. 644, 187 So. 392 (Fla. 1939). 682. See, Lawrence v. State, 846 So. 2d 440 (Fla. 2003). 683. See, Philmore v. State, 820 So. 2d 919 (Fla. 2002); White v. State, 817 So. 2d 799 (Fla. 2002). 684. Sec. 921.141(6)(f), F.S.; Sec. 921.142(7)(e), F.S. 685. Sec. 921.0026(2)(c), F.S. 686. See, State v. Gilson, 800 So. 2d 727 (Fla. Dist. Ct. App. 5th Dist. 2001). 687. See, State v. Chapman, 805 So. 2d 906 (Fla. Dist. Ct. App. 2d Dist. 2001) (court may not base a downward departure based upon the defendants intoxication at the time of the offense by finding he lacked the capacity to appreciate the criminal nature of the offense and that his conduct was substantially impaired); State v. Clark, 745 So. 2d 1116 (Fla. Dist. Ct. App. 4th Dist. 1999). 688. Sec. 921.0016(5), F.S.; see, State v. ODorle, 738 So. 2d 987 (Fla. Dist. Ct. App. 2d Dist. 1999); State v. Norris, 724 So. 2d 630 (Fla. Dist. Ct. App. 5th Dist. 1998); State v. Brown, 717 So. 2d 625 (Fla. Dist. Ct. App. 5th Dist. 1998). 689. Sec. 921.141(6)(g), F.S.; Sec. 921.142(7)(f), F.S. 690. See, Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005); see also, Brennan v. State, 754 So. 2d 1 (Fla. 1999).

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particular age as an automatic factor in mitigation.691 The Florida Supreme Court has found, for example, that age twenty years, in and of itself, does not require a finding of the age mitigator.692 In other words, the youthful age of an offender is not a valid reason for mitigation unless there are other factors present, such as emotional immaturity or lack of intelligence.693 In those cases where age has been considered as a basis of mitigation, it has generally been accompanied by a clean record, although some courts have required an even greater showing, such as the support of friends and family.694 In some noncapital cases youthful age of the defendant, coupled with some reasonable chance for the defendants rehabilitation, has been deemed a lawful basis for application of this mitigator.695 The court may reject this mitigator where there is ample evidence that the defendant functioned as a mature adult.696 The defendant could not have reasonably foreseen that her or his conduct in the course of the commission of the offense would cause or would create a grave risk of death to one or more persons.697 This mitigator is specifically identified for capital drug trafficking felonies, but not for capital felonies, and is the obverse of the aggravator that the defendant knowingly created grave risk of death to one or more persons such that participation in the offense constituted reckless indifference or disregard for human life.698 The existence of any other factors in the defendants background that would mitigate against imposition of the death penalty.699 Sections 921.141(6)(h) and 921.142(7)(h) permit the introduction of evidence of any other factors in the defendants background that would mitigate against the imposition of the death penalty in a capital case. The test the court has to apply is whether (1) the mitigator has been established to exist, and (2) it is truly mitigating in the

691. Shellito v. State, 701 So. 2d 837, 843 (Fla. 1997). 692. Garcia v. State, 492 So. 2d 360, 367 (Fla. 1986). 693. State v. Evans, 630 So. 2d 203 (Fla. Dist. Ct. App. 2d Dist. 1993); see also, State v. Gilson, 800 So. 2d 727 (Fla. Dist. Ct. App. 5th Dist. 2001) (age of 18 years is not, alone, a sufficient basis for departure but may be if coupled with competent substantial evidence of emotional immaturity); State v. Thompson, 754 So. 2d 126 (Fla. Dist. Ct. App. 5th Dist. 2000) (age is not a legitimate basis for departure when defendant is 48 years old at time of sentencing); State v. Collins, 482 So. 2d 388 (Fla. Dist. Ct. App. 5th Dist. 1985) (23 years of age is not considered young for a robber). 694. See, State v. Licea, 707 So. 2d 1155 (Fla. Dist. Ct. App. 2d Dist. 1998); State v. Williams, 637 So. 2d 45 (Fla. Dist. Ct. App. 2d Dist. 1994). 695. State v. Whiddon, 554 So. 2d 651 (Fla. Dist. Ct. App. 1st Dist. 1989). 696. Nelson v. State, 850 So. 2d 514 (Fla. 2003). 697. Sec. 921.142(7)(g), F.S. 698. Sec. 921.142(6)(c), F.S. 699. Sec. 921.141(6)(h), F.S.; Sec. 921.142(7)(h), F.S.

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circumstances of the case.700 Many, if not the greater part, of these mitigators overlap with or are broad variants or extensions of the specific statutory mitigators, while others have no counterparts in noncapital sentencing, all of which underscores the relatively higher importance mitigation has in capital sentencing than in non-capital sentencing. The range of such nonstatutory mitigators is, therefore, almost open-ended, and may be broadly grouped into the following overlapping categories: Defendants personal history. One of the greatest source of potential mitigation comes from the defendants personal history and the history of his or her family. This can include: a dysfunctional family background; a history of physical or sexual abuse; addiction to alcohol or drugs; difficulty in adjusting to life after being released from prison for a prior offense; the existence of other family members for whom the defendant cares or who care for the defendant; past success in military service, employment, and friendships; and other such matters.701 Note that neither the United States Supreme Court nor the Florida Supreme Court has recognized mental illness as a per se bar to execution. Instead, mental illness can be considered as either a statutory mental mitigating circumstance if it meets that definition, i.e., the crime was committed while the defendant was under the influence of extreme mental or emotional disturbance,702 or a nonstatutory mitigating circumstance.703 Defendants character. A defendants own character may provide potential mitigation in terms of positive personal characteristics and actions. This can include the defendants expressions of remorse, cooperation with law enforcement, willingness to plead guilty or

700. See, Johnson v. State, 608 So. 2d 4 (Fla. 1992). 701. See, e.g., Hoskins v. State, 965 So.2d 1 (Fla. 2007) (defendant formed and maintained loving relationships with his family; defendant was a father figure to his siblings; defendant protected his mother from his fathers abuse; low IQ; low mental functional ability; some abnormalities in the brain which may cause some impairment; an impoverished and abusive background; mental age equivalent (between fifteen and twenty-five); defendant helped support his family financially; defendant had and cared for many pets; no disciplinary problems in school; defendant suffered from poor academic performance and left school at age sixteen to work to help his family; defendant was not malingering; defendant expressed remorse; potential for rehabilitation and lack of future dangerousness; and good jail conduct, including death row behavior); Mordenti v. State, 894 So. 2d 161 (Fla. 2004) (defendant was a thoughtful friend and employer and was fair in business dealings); Boyett v. State, 688 So. 2d 308 (Fla. 1996) (age of 18 years at the time of the incident; past history of sexual abuse; ongoing, significant emotional and psychological problems; traumatic family life; history of drug abuse; past relationship with the victim; remorse; and cooperation with law enforcement officials made judges override of the jurys recommendation improper); Parker v. State, 643 So. 2d 1032 (Fla. 1994) (jury override improper where none of the defendants accomplices received death sentence for the murder, defendant was under influence of large amounts of alcohol and other drugs during murders, there was no evidence that defendant personally shot any of victims, and there was evidence that defendant had difficult childhood, positive adult relationship with his two children, and good relationship with his neighbors); Smalley v. State, 546 So. 2d 720 (Fla. 1989) (defendant was an abused child, he had a good work record and his coworkers held him in high esteem, and he was genuinely remorseful). 702. Sec. 921.141(6)(b), F.S.; Sec. 921.142(7)(b), F.S. 703. Diaz v. State, 945 So. 2d 1136 (Fla. 2006).

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otherwise accept responsibility, past good deeds for others,704 good behavior in jail or prison awaiting trial or in the courtroom,705 ability to adjust to prison life if given a life sentence, lack of potential harm to prison personnel or other inmates, and the like.706 Defendants potential. Mitigation can also be found in the future potential of the defendant to help others and make positive contributions to society if the defendant is sentenced to life imprisonment.707 Matters That Are Not Mitigation Sentencing in a capital case traditionally concerns how, and not whether, a defendant committed a crime. The penalty phase of a capital case is not, therefore a second trial on guilt, but is instead a proceeding to determine the appropriate punishment, death or life in prison without parole, for someone who has already been adjudicated guilty. The penalty phase is for counsel to both rebut the States claims of aggravation and put forth an effective claim of mitigation. Evidence offered in mitigation which attacks a previously determined matter, such as the defendants guilt, in a proceeding at which such matter is not, in principle, at issue, is a type of collateral attack which the law discourages. Therefore, as broad as mitigation in capital sentencing is, it is not without limitation. Examples of impermissible mitigators include, but are not limited to, the following: Emotion. Mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling are not proper mitigating factors for purposes of capital sentencing.708 Likewise, it is not proper for the defense to describe an execution to the jury and ague that imposition of the death penalty is equivalent to murder.709 Victims or victims family members opposition to the death penalty. Opposition of the victim or a member of the victims family to imposition of the death penalty is not a proper mitigator in penalty phase proceedings.710

704. See, Troy v. State, 948 So. 2d 635 (Fla. 2006) (mitigator of protecting law enforcement officer during disturbance). 705. Skipper v. South Carolina, U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986) (exclusion from the sentencing hearing of testimony of jailers and a regular visitor regarding defendants good behavior during the seven months he spent in jail awaiting trial deprived defendant of his right to place before the sentencer relevant evidence in mitigation of punishment). 706. See, e.g., Hoskins v. State, 965 So.2d 1, 2007 WL 1147291, 32 Fla. L. Weekly S159 (Fla. 2007). 707. See, e.g., Maxwell v. State, 603 So. 2d 490 (Fla. 1992); Ocha v. State, 826 So. 2d 956 (Fla. 2002) (artistic ability). 708. California v. Brown, 479 U.S. 538, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987). 709. See, Johnson v. Thigpen, 806 F. 2d 1243 (5th Cir. 1986). 710. Campbell v. State, 679 So. 2d 720 (Fla. 1996); Floyd v. State, 569 So. 2d 1225 (Fla. 1990).

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Opposition to the death penalty by religious groups. Opposition to the death penalty by religious groups on moral grounds is properly excluded from penalty phase proceedings as being irrelevant to sentencing.711 Such generalized evidence should be excluded because it is not designed to help the sentencer focus on the unique characteristics of a particular capital defendant or crime. Rather, such evidence is designed to persuade the sentencer that the legislature erred, in whole or in part, when it enacted a death penalty statute.712 This sort of evidence might commend itself to a legislative body considering adoption or retention of the death penalty, but it has no bearing on the question whether a particular defendant . . . should receive death or some lesser authorized penalty.713 Ineffectiveness or impracticality of the death penalty. Evidence that seeks to establish the ineffectiveness, impracticality or excessive cost of the death penalty is properly excluded from penalty phase proceedings as irrelevant.714 Accidental death. Defense counsel may not assert accidental death as a mitigator in penalty phase proceedings.715 Actual innocence. Once a jury has determined that a defendant is guilty, then the issue of guilt or innocence is over, and such issue cannot be the appropriate focus of a death penalty proceeding.716 Residual doubt. Residual, or lingering, doubt is not legally appropriate as a mitigating circumstance, because such arguments do not illuminate how the murder was committed and

711. See, e.g., Glass v. Butler, 820 F. 2d 112, 115-16 (5th Cir. 1987) (concluding exclusion of testimony related to religious opposition to death penalty did not constitute error); Kordenbrock v. Scroggy, 680 F. Supp. 867, 888-90 (E.D. Ky. 1988) (upholding exclusion of testimony on, inter alia, historical evolution of moral thought regarding capital punishment and on ethical and religious objections to capital punishment), reversed on other grounds by 919 F. 2d 1091 (6th Cir. 1990); Evans v. Thigpen, 631 F. Supp. 274, 285-86 (S.D. Miss. 1986) (upholding exclusion of ministers proffered testimony on various churches opposition to capital punishment and biblical teachings in that regard), affirmed by 809 F. 2d 239 (5th Cir. 1987). 712. Martin v. Wainwright, 770 F. 2d 918, 936 (11th Cir. 1985) (footnote omitted), modified in part on other grounds on rehearing by 781 F. 2d 185 (11th Cir. 1986). 713. Stokes v. Armontrout, 851 F. 2d 1085, 1096 (8th Cir. 1988). 714. Hitchcock v. State, 578 So. 2d 685 (Fla.,1990). 715. See, Rose v. State, 675 So. 2d 567 (Fla. 1996). 716. See, Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003); Hannon v. State, 941 So. 2d 1109 (Fla. 2006) (Anstead, J., dissenting).

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such arguments are inconsistent with the conviction of the defendant.717 It is, therefore, not error for the trial court to deny an instruction that would allow a jury to consider lingering doubt or for the court to exclude evidence of lingering doubt during the penalty phase.718 Victim Impact Evidence Once the prosecution has provided evidence of the existence of one or more aggravating circumstances as described in subsection 921.141(5), or subsection 921.142(6) if the defendant is convicted of capital drug trafficking, the prosecution may introduce, and subsequently argue, victim impact evidence to the jury. Such evidence must be designed to demonstrate the victims uniqueness as an individual human being and the resultant loss to the communitys members by the victims death. Characterizations and opinions about the crime, the defendant, and the appropriate sentence are not permitted as a part of victim impact evidence.719

717. Darling v. State, 808 So. 2d 145, 142 (Fla. 2002); Oregon v. Guzek, 546 U.S. 517, 126 S. Ct. 1226 (2006) (neither the Eighth nor the Fourteenth Amendment granted capital murder defendant a right to present additional alibi evidence at resentencing that was inconsistent with his prior conviction). 718. Hannon v. State, 941 So. 2d 1109 (Fla. 2006). 719. Sec. 921.141(7), F.S.; Sec. 921.142(8), F.S.

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V. PROBATION AND COMMUNITY CONTROL Violent Felony Offender of Special Concern On March 8, 2007, the Florida legislature passed the Anti-Murder Act, which was signed into law by the Governor on March 12, 2007 as Chapter 2007-2, Laws of Florida. The Act amended section 948.06(4), F.S., to create six classes of violent felony offender of special concern (VFOSC). For purposes of sections 903.0351 (bail), 948.064 (notification), and 921.0024 (scoresheet), the term violent felony offender of special concern means a person who is on: 1. Felony probation or community control related to the commission of a qualifying offense committed on or after March 12, 2007.720 2. Felony probation or community control for any offense committed on or after March 12, 2007, and has previously been convicted of a qualifying offense.721 Convicted in this regard means a determination of guilt which is the result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is imposed or withheld.722 3. Felony probation or community control for any offense committed on or after March 12, 2007, and is found to have violated that probation or community control by committing a qualifying offense.723 Note that only a finding, and not a conviction, is required. 4. Felony probation or community control and has previously been found by a court to be a habitual violent felony offender as defined in section 775.084(1)(b), and has committed a qualifying offense on or after March 12, 2007.724 5. Felony probation or community control and has previously been found by a court to be a three-time violent felony offender as defined in section 775.084(1)(c), and has committed a qualifying offense on or after March 12, 2007.725

720. Sec. 948.06(8)(b)(1), F.S. 721. Sec. 948.06(8)(b)(2), F.S. 722. Sec. 948.06(8)(a), F.S. 723. Sec. 948.06(8)(b)(3), F.S. 724. Sec. 948.06(8)(b)(4), F.S. 725. Sec. 948.06(8)(b)(5), F.S.

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6. Felony probation or community control and has previously been found by a court to be a sexual predator under section 775.21, and has committed a qualifying offense on or after March 12, 2007.726 For purposes of section 948.06, the term qualifying offense means any of the following:727 1. Kidnapping or attempted kidnapping under section 787.01, false imprisonment of a child under the age of 13 under section 787.02(3), or luring or enticing a child under section 787.025(2)(b) or (c). 2. Murder or attempted murder under section 782.04, attempted felony murder under section 782.051, or manslaughter under section 782.07. 3. Aggravated battery or attempted aggravated battery under section 784.045. 4. Sexual battery or attempted sexual battery under section 794.011(2), (3), (4), or (8)(b) or (c). 5. Lewd or lascivious battery or attempted lewd or lascivious battery under section 800.04(4), lewd or lascivious molestation under section 800.04(5)(b) or (c)2., lewd or lascivious conduct under section 800.04(6)(b), lewd or lascivious exhibition under section 800.04(7)(b), or lewd or lascivious exhibition on computer under section 847.0135(5)(b). 6. Robbery or attempted robbery under section 812.13, carjacking or attempted carjacking under section 812.133, or home invasion robbery or attempted home invasion robbery under section 812.135. 7. Lewd or lascivious offense upon or in the presence of an elderly or disabled person or attempted lewd or lascivious offense upon or in the presence of an elderly or disabled person under section 825.1025. 8. Sexual performance by a child or attempted sexual performance by a child under section 827.071. 9. Computer pornography under section 847.0135(2) or (3), transmission of child pornography under section 847.0137, or selling or buying of minors under section 847.0145. 10. Poisoning food or water under section 859.01.

726. Sec. 948.06(8)(b)(6), F.S. 727. Sec. 948.06(8)(c)1.-19., F.S.

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11. Abuse of a dead human body under section 872.06. 12. Any burglary offense or attempted burglary offense that is either a first-degree felony or second-degree felony under section 810.02(2) or (3). 13. Arson or attempted arson under section 806.01(1). 14. Aggravated assault under section 784.021. 15. Aggravated stalking under section 784.048(3), (4), (5), or (7). 16. Aircraft piracy under section 860.16. 17. Unlawful throwing, placing, or discharging of a destructive device or bomb under section 790.161(2), (3), or (4). 18. Treason under section 876.32. 19. Any offense committed in another jurisdiction which would be an offense listed in this paragraph if that offense had been committed in this state. When a defendant disputes a prior VFOSC-qualifying offense, the sentencing court must either require the State to produce corroborating evidence of the offense or not consider the offense. The degree of proof is the same as for any occasion where the defendant challenges a prior conviction. Normally, the burden of proof is satisfied by introduction of a certified copy of the judgment and sentence with fingerprints or photographs for the offense, sufficient to establish that the offense was committed and the defendant is the person who was convicted of committing it.728 In the case of an alleged violation of probation or community control other than a failure to pay costs, fines, or restitution, the act provides that the following individuals shall not be released and shall not be admitted bail, but shall be brought before the court that granted the probation or community control and remain in custody pending the resolution of the probation or community control violation: 1. A VFOSC, as defined in section 948.06(8), F.S.;729

728. See, Alcantara v. State, 39 So. 3d 535 (Fla. Dist. Ct. App. 5th Dist. 2010). 729. Sec. 903.0351(1)(a), F.S.; Sec. 948.06(4)(a), F.S.; Sec. 948.06(8)(d)1., F.S.

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2. A person who is on felony probation or community control for any offense committed on or after the effective date of this act and who is arrested for a VFOSC qualifying offense;730 or 3. A person who is on felony probation or community control and has previously been found by a court to be a habitual violent felony offender as defined in section 775.084(1)(b), a three-time violent felony offender as defined in section 775.084(1)(c), or a sexual predator under section 775.21, and who is arrested for committing a VFOSC qualifying offense on or after the effective date of this act.731 This means that a defendant described in paragraphs 1-3, supra, cannot be given bail under any circumstances until the VOP or VOCC is resolved, notwithstanding any other provision in the law. More specifically, while section 948.06(4) provides that if the probationer or offender is under supervision for any criminal offense proscribed in chapter 794, section 800.04(4), (5), (6), section 827.071, or section 847.0145, or is a registered sexual predator or a registered sexual offender, or is under supervision for a criminal offense for which he or she would meet the registration criteria in section 775.21, section 943.0435, or section 944.607 but for the effective date of those sections, the court is required to conduct a dangerousness hearing and has the discretion to release such an offender with or without bail to await further hearing, such an offender who is also a VFOSC or is VFOSC-qualified cannot be released or be granted bail under any circumstances. The act provides that the court shall not dismiss the probation or community control violation warrant pending against an offender enumerated in paragraphs 1-3, supra, without holding a recorded violation-of-probation hearing at which both the state and the offender are represented.732 If the court, after conducting the required hearing, determines that a VFOSC has committed a violation of probation or community control other than a failure to pay costs, fines, or restitution, the court must: 1. Make written findings as to whether or not the violent felony offender of special concern poses a danger to the community. In determining the danger to the community posed by the offenders release, the court must base its findings on one or more of the following:733 a. The nature and circumstances of the violation and any new offenses charged. b. The offenders present conduct, including criminal convictions. c. The offenders amenability to nonincarcerative sanctions based on his or her history and conduct during the probation or community control supervision from which the

730. Sec. 903.0351(1)(b), F.S.; Sec. 948.06(4)(b), F.S.; Sec. 948.06(8)(d)2., F.S. 731. Sec. 903.0351(1)(c), F.S.; Sec. 948.06(4)(c), F.S.; Sec. 948.06(8)(d)3., F.S. 732. Sec. 948.06(8)(d), F.S. 733. Sec. 948.06(8)(e)1., F.S.

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violation hearing arises and any other previous supervisions, including disciplinary records of previous incarcerations. d. The weight of the evidence against the offender. e. Any other facts the court considers relevant. 2. Decide whether to revoke the probation or community control.734 If the court has found that a VFOSC poses a danger to the community, the court must revoke probation and shall sentence the offender up to the statutory maximum, or longer if permitted by law. If the court has found that a VFOSC does not pose a danger to the community, the court may revoke, modify, or continue the probation or community control or may place the probationer into community control. This means that a court cannot summarily dismiss a VOP or VOCC of a VFOSC or VFOSC-qualifying defendant. Presently, community sanction violation points are assessed when a community sanction violation is before the court for sentencing. Six sentence points are assessed for each community sanction violation, and each successive community sanction violation, unless the community sanction violation includes a new felony conviction before the sentencing court, in which case twelve community sanction violation points are assessed for the such violation, and for each successive community sanction violation involving a new felony conviction. The act changes this for VFOSC defendants: If the community sanction violation is committed by a VFOSC as defined in section 948.06, twelve community sanction violation points are assessed for the violation and for each successive violation of felony probation or community control where the violation does not include a new felony conviction, and the community sanction violation is not based solely on the probationer or offenders failure to pay costs or fines or make restitution payments, and twenty-four community sanction violation points are assessed for the violation and for each successive violation of felony probation or community control where the violation includes a new felony conviction.735 Revocation of Probation or Community Control Grounds for Revocation A probationer or community controllee may be violated for any material failure to abide by the courts order of probation or community control. Note, however, that before a court can revoke a defendants probation or community control for failure to pay court-ordered costs, costs

734. Sec. 948.06(8)(e)2., F.S. 735. Sec. 921.0024(1)(b)2., F.S.

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of supervision, or restitution payments, the court must find either orally or in its written order that the defendant had the ability to pay.736 Prospective revocation. The power to revoke probation or community control is an inherent power of the trial court. A trial court may equitably revoke a probationary or community control sentence at any time prior to the commencement or execution of that sentence. Probation or community control is an act of grace and sound public policy requires that trial courts be empowered to revoke unexecuted probationary or community control sentences when the defendants record demonstrates that an earlier evaluation at sentencing was inaccurate. The trial court does not have to wait until a probationary or community control period starts, but is free to revoke probation or community control at any time for misconduct that demonstrates the probationers unfitness for probation as a sentencing alternative, such as a violation of the law committed subsequent to the order of probation but prior to the commencement of the probationary or community control term.737 Where, for example, a defendant is sentenced to prison followed by probation and ,while serving the prison portion of his or her sentence, violates a condition of the follow-on probation, the trial court has the authority to revoke probation on the basis of such violation.738 Thus, it is permissible to revoke consecutive terms of probation which have not yet commenced.739 Revocation after commencement of probation or community control. Most revocations arise from violations of the courts order of probation or community control occurring during the probationary or community control period. Examples of common violations include the following: Failure to provide verified residence. The failure of a probationer or community controllee to provide his or her address to his or her probation or community control officer, or changing his or her residence without the knowledge or consent of the probation or community control officer, leaving his or her whereabouts unknown, will support a finding that the
736. See, Smith v. State, 892 So. 2d 513 (Fla. Dist. Ct. App. 1st Dist. 2004). 737. Stafford v. State, 455 So. 2d 385, 386 (Fla. 1984); see also, Cason v. State, 604 So. 2d 928, 929 (Fla. Dist. Ct. App. 3d Dist. 1992); Martin v. State, 243 So. 2d 189, 190-91 (Fla. Dist. Ct. App. 4th Dist. 1971); Williamson v. State, 388 So. 2d 1345, 1347-48 (Fla. Dist. Ct. App. 3d Dist. 1980). Other jurisdictions have similar rules. See, e.g., Harris v. State, 822 A. 2d 396 (Del. 2003); Kopkey v. State, 743 N.E. 2d 331 (Ct. App. Ind. 2001); Crump v. State, 740 So. 2d 564 (Ct. App. Ind. 2001); Gwalthney v. State, 964 P. 2d 1285 (Ct. App. Alaska 1998); Webb v. Alasa Dept. of Corr., 963 P. 2d 1074 (Ct. App. Alaska 1998) ; Gardner v. State, 678 N.E. 2d 398 (Ct. App. Ind. 1997); Williams v. State, 560 A. 2d 1012 (Del. 1989) (trial court could revoke unexecuted probation); United States v. Derewal, 66 F. 3d 52 (3d Cir. 1995) (district court properly exercised its jurisdiction in revoking defendants probation for pre-probation conduct occurring during the period of parole); United States v. Taylor, 931 F. 2d 842 (11th Cir. 1991) (same); but see, United States v. Wright, 744 F. 2d 1127 (5th Cir. 1984). 738. Cason v. State, 604 So. 2d 928 (Fla. Dist. Ct. App. 3d Dist. 1992) (prison inmate sending letters to victim in violation of no contact term of probation that was to follow prison). 739. Seitz v. State, 867 So. 2d 421 (Fla. Dist. Ct. App. 3d Dist. 2004).

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probationer willfully violated probation or community control.740 Note, however, that evidence that the defendant was not at home on one occasion when the probation or community control officer checked the defendants residence and that the defendant did not return one telephone message will not support revocation on this basis; the supervising officer must do more to confirm his or her suspicion that the defendant has absconded.741 Similarly, absent notice to the defendant, changing rooms within the same hotel will not support revocation on this basis.742 Challenges to revocation can also arise where the defendant is, or alleges that he or she is, homeless or claims to be a secret trespasser, as where the defendant claims to be sleeping at or near a homeless shelter without authorization or knowledge of the shelters owner or staff. In such situations, there presently appear to be judicially-created burdens on property owners and their representatives to know who is residing on or near their property at all hours and upon the State to disprove defendants claims of such trespassory residence.743 Similarly, the State has been unable to prove a willful and substantial violation of supervision for changing residence without notifying the probation officer in cases where the defendant was suddenly evicted from his or her residence and was living on the street,744 and where the defendant was living under a bridge and moved after the State posted no trespassing signs there.745 Failure to pay court-ordered costs or restitution. Trial courts have the power to provide as a condition of probation or community control that the defendant pay reasonable sums for costs to the state (e.g., attorneys fees for the services of a public defender),746 costs of supervision,747 and restitution748 under the broad grant of authority contained in section 948.03. Supervision can be revoked for failure to comply with such a condition. The court may revoke supervision if the defendant fails to comply with the order to pay these costs or restitution. Before a person on probation can be imprisoned for failure to pay, there must be a determination that the defendant has, or has had, the ability to pay but has willfully
740. Mitchell v. State, 871 So. 2d 1040 (Fla. Dist. Ct. App. 2d Dist. 2004); Vondervor v. State, 847 So. 2d 610 (Fla. Dist. Ct. App. 5th Dist. 2003); Van Wagner v. State, 677 So. 2d 314 (Fla. Dist. Ct. App. 1st Dist. 1996). 741. Singleton v. State, 891 So. 2d 1226 (Fla. Dist. Ct. App. 2d Dist. 2005). 742. See, Martoral v. State, 946 So. 2d 1240 (Fla. Dist. Ct. App. 4th Dist. 2007). 743. See, e.g., Robinson v. State, 6 So. 3d 677 (Fla. Dist. Ct. App. 1st Dist. 2009). 744. Williams v. State, 896 So. 2d 805 (Fla. Dist. Ct. App. 4th Dist. 2005). 745. Boyd v. State, 31 So. 3d 267 (Fla. Dist. Ct. App. 4th Dist. 2010). 746. See, Sec. 948.03(1), F.S. 747. Sec. 948.09, F.S. 748. Sec. 775.089, F.S.

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refused to do so.749 An assessment of ability to pay includes an assessment of ability to work.750 It is not sufficient for the State to merely provide evidence of the amount the defendant is in arrears.751 In determining whether to revoke supervision, the court is required to consider the defendants employment status, earning ability, and financial resources; the willfulness of the defendants failure to pay; and any other special circumstances that may have a bearing on the defendant's ability to pay.752 The State must present sufficient evidence of willfulness, including that the probationer has, or has had, the ability to pay, in order to support the trial courts finding that the violation was willful. Once the State has done so, it is constitutional to then shift the burden to the probationer to prove inability to pay to essentially rebut the States evidence of willfulness. However, while it is constitutional to place the burden on the probationer to prove inability to pay, the aspect of section 948.06(5) that requires the probationer to prove inability to pay by the heightened standard of clear and convincing evidence has been held by the Florida Supreme Court to be unconstitutional.753 If the defendant cannot pay restitution or the cost of supervision despite sufficient bona fide efforts, the court is required to consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the States interests in punishment and deterrence may the court imprison a probationer or offender in community control who has demonstrated sufficient bona fide efforts to pay restitution or costs754 Probation or community control can be revoked for failure to make restitution payments where the evidence shows that during the probationary or community control period the defendant possessed adequate money to pay the sum ordered as restitution and did not pay as ordered; whether or not the defendants use of his or her money for matters other than payment of

749. Knight v. State, 801 So. 2d 160 (Fla. Dist. Ct. App. 2d Dist. 2001) (costs of supervision); Robinson v. State, 773 So. 2d 566 (Fla. Dist. Ct. App. 2d Dist. 2000); Stephens v. State, 630 So. 2d 1090 (Fla. 1994) (restitution); Robbins v. State, 318 So. 2d 472 (Fla. Dist. Ct. App. 4th Dist. 1975) (costs of supervision and restitution). 750. See, Cherry v. State, 718 So. 2d 294 (Fla. Dist. Ct. App. 2d Dist. 1998) (State failed to present any direct evidence that defendant had ability to work or pay restitution from the beginning of probationary period up to time of revocation hearing); Bianco v. State, 638 So. 2d 1005 (Fla. Dist. Ct. App. 4th Dist. 1994) (State presented no evidence at revocation hearing of defendants ability to work). 751. Reed v. State, 865 So. 2d 644 (Fla. Dist. Ct. App. 2d Dist. 2003); Glasier v. State, 849 So. 2d 444, 445 (Fla. Dist. Ct. App. 2d Dist. 2003); Robinson v. State, 773 So. 2d 566, 567 (Fla. Dist. Ct. App. 2d Dist. 2000). 752. Sec. 948.032, F.S. 753. Del Valle v. State, 80 So. 3d 999 (Fla. 2011). 754. Sec. 948.06(5), F.S.; see also, Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).

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restitution is to be considered justified or excusable is up to the discretion of the trial judge.755 A defendants probation or community control can be revoked for failure to pay restitution where the court determines that the defendant did not have the ability to pay the full amount ordered but could have paid more than he or she did toward his or her restitution obligation.756 The burden is on the defendant who has the resources to make payments, and neither a court nor the Department of Corrections is required to blueprint the means by which a defendant can legally acquire funds to pay a financial obligation, and a defendants violation of the obligation to pay may not be deemed non-willful on the basis of the defendants claimed confusion regarding how to fulfill this obligation.757 A defendants probation or community control may not be revoked for the failure to pay restitution where the State fails to prove that the defendant had the financial ability to pay, but instead attempts to prove that the defendant had not actively pursued potential employment.758 There is at present conflict between the Second and Fifth Districts and the Third District on the matter of whether or not the defendant has the burden of showing inability to pay, as opposed to the State having the burden to show the defendants ability to pay. The view of the Third District is that, relying on the plain meaning of section 948.06(5), once the State has made an initial showing at the revocation hearing that the defendant failed to pay, the burden shifts to the defendant to demonstrate by clear and convincing evidence that he or she did not have ability to pay.759 This has also been the historical view of the First District,760 which has elaborated this position by holding that, where a defendant is intermittently employed during the term of probation or community control but makes no payments during his or her periods of employment, the defendant who asserts inability to pay must demonstrate that he or she did not have the requisite resources during the periods of his or her employment.761 The view of the Second District is that in a proceeding for revocation of probation, [t]he State carries the burden of proving by the greater weight of the evidence that a probationer has willfully and substantially

755. Harris v. State, 453 So. 2d 228 (Fla. Dist. Ct. App. 5th Dist. 1984) (When justice requires that a poor person make restitution of ill-gotten gains, the sentencing judge has a tough job. He needs, and should have, authority and discretion as broad as his responsibility.). 756. Taylor v. State, 949 So. 2d 345 (Fla. Dist. Ct. App. 4th Dist. 2007) (defendants $200 monthly payment for a cellular telephone was excessive and unnecessary and a willful violation in itself); see also, Osta v. State, 880 So. 2d 804 (Fla. Dist. Ct. App. 5th Dist. 2004); Spruill v. State, 643 So. 2d 1191 (Fla. Dist. Ct. App. 5th Dist. 1994). 757. Edwards v. State, 892 So. 2d 1192 (Fla. Dist. Ct. App. 5th Dist. 2005). 758. Winfield v. State, 406 So. 2d 50 (Fla. Dist. Ct. App. 1st Dist. 1981). 759. Gonzales v. State, 909 So. 2d 960 (Fla. Dist. Ct. App. 3d Dist. 2005); Guardado v. State, 562 So. 2d 696 (Fla. Dist. Ct. App. 3d Dist. 1990); Word v. State, 533 So. 2d 893 (Fla. Dist. Ct. App. 3d Dist. 1988). 760. See, McQuitter v. State, 622 So. 2d 590 (Fla. Dist. Ct. App. 1st Dist. 1993); Green v. State, 620 So. 2d 1126 (Fla. Dist. Ct. App. 1st Dist. 1993). 761. Bass v. State, 473 So. 2d 1367 (Fla. Dist. Ct. App. 1st Dist. 1985).

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violated probation,762 and that Stephens v. State763 requires the State to present present evidence of the defendants ability to pay to demonstrate the willfulness of the violation, section 948.06(5) notwithstanding, and the State does not have to raise the issue to shift the burden to the State.764 This interpretation of section 948.06(5) is also shared by the Fourth and Fifth Districts.765 Note that, in any event, a defendant can legally enter into a plea bargain agreement with the State that he or she receive probation rather than be imprisoned on conditions that he or she make restitution within a set period of time and that he or she waive his or her right not to be imprisoned for failure to pay a debt if he or she fails to make restitution as he or she has agreed, whether or not the State can prove his or her financial ability to make restitution. Such an agreement is not void as against public policy and is enforceable where it is the defendant, and not the State or the court, who proposes his or her own imprisonment for failure to pay.766 In the greater circumstances, however, such an arrangement is not favored by courts.767 It is also not entirely uncommon for an adult defendant otherwise unable to pay restitution himself or herself to negotiate a probationary or community control sentence in which it is implied, if not expressed, that a third party (e.g., the defendants mother) will pay the restitution owed by the defendant, and that court is free to impose any lawful sentence upon revocation for the failure of that third party to pay the restitution. The net effect of such negotiated pleas upon revocation can be that, as opposed to the need for restitution being the basis of a downward departure, nonpayment of restitution by a party not otherwise legally liable to pay restitution can be used as a basis for an increase in the sentence absent any suggestion of willful nonpayment by the third party. At least one court, in dicta, has condemned such plea agreements as being morally repugnant in that they permit longer prison terms for poor people whose relatives have

762. Hines v. State, 789 So. 2d 1085, 1086 (Fla. Dist. Ct. App. 2d Dist. 2001). 763. 630 So. 2d 1090 (Fla. 1994). 764. Blackwelder v. State, 902 So. 2d 905 (Fla. Dist. Ct. App. 2d Dist. 2005) ([S]ection 948.06(5), despite its plain language, cannot relieve the State of its burden to prove that the violation was willful by proving the probationers ability to pay.). 765. Shepard v. State, 939 So. 2d 311 (Fla. Dist. Ct. App. 4th Dist. 2006) (despite the language of section 948.06(5), where the violation alleged is a failure to pay costs or restitution, there must be evidence and a finding that the probationer had the ability to pay); Osta v. State, 880 So. 2d 804 (Fla. Dist. Ct. App. 5th Dist. 2004) (Although a plain reading of the statute appears to place the burden of proving ability to pay restitution on the probationer, our courts have held that in order to revoke probation for failure to pay restitution the burden is on the State to prove the willfulness of the violation, and in order to prove willfulness the State must provide evidence that the probationer has the ability to pay restitution but willfully refuses to do so.). 766. Brushingham v. State, 460 So. 2d 523, 524 (Fla. Dist. Ct. App. 4th Dist. 1984); Doherty v. State, 448 So. 2d 624 (Fla. Dist. Ct. App. 4th Dist.), review denied, 458 So. 2d 272 (Fla. 1984). 767. See, Stephens v. State, 630 So. 2d 1090, 1091 (Fla. 1994).

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failed to raise the money needed to buy their freedom.768 As such, it is legally questionable for a trial court to revoke probation or community control for nonpayment of restitution in such circumstances, making such conditions of probation practically unenforceable. Failure to file reports. The failure to file monthly reports is a sufficient basis to revoke probation or community control. Indeed, the failure to file even a single monthly report may, in certain circumstances, justify revocation if such failure is willful and substantial and supported by the greater weight of the evidence.769 The reason is that supervision reports are not merely technical niceties and the failure to report is a serious violation of the privilege of supervision.770 The Florida Supreme Court has rejected any per se rule that the failure to file a single report may never justify revocation.771 The Court reasoned that [P]robation reports are not merely technical niceties and the failure to report is a serious violation of the privilege of probation. . . . Failure to enforce the reporting requirements undermines the system and the practical consequence is no control, no supervision, and no probation.772 A sufficient basis for revocation on this ground is not established, for example, where the probationer or community controlee files two late reports to his or her probation or community control officer, one of which is five days late and the other one day late and both of which are accepted.773 Failure to file truthful reports. Most standard probation or community control orders require that the defendant make a full and truthful report to the probation or community control officer each month. Revocation of supervision is justified where there is any direct or circumstantial evidence proving that the probationer or community controlee affirmatively and meaningfully lied to his or her probation or community control officer. Full and truthful does not, however, mean technically and absolutely accurate, and so, absent evidence of an attempt to mislead the probation or community control officer or evade supervision, mere administrative, technical errors do not warrant imprisonment of those probationers or community controlees who are otherwise performing satisfactorily.774 Thus, for example, a single misstatement of fact by an

768. Smith v. State, 933 So. 2d 723 (Fla. Dist. Ct. App. 2d Dist. 2006). 769. Robinson v. State, 940 So. 2d 516 (Fla. Dist. Ct. App. 1st Dist. 2006); State v. Carter, 835 So. 2d 259, 261 (Fla. 2002) (citing Hightower v. State, 529 So. 2d 726 (Fla. 2d DCA 1988)). 770. Oates v. State, 872 So. 2d 351 (Fla. Dist. Ct. App. 2d Dist. 2004). 771. State v. Carter, 835 So. 2d 259 (Fla. 2002). 772. State v. Carter, 835 So. 2d 259 (Fla. 2002). 773. Monroe v. State, 679 So. 2d 50 (Fla. Dist. Ct. App. 1st Dist. 1996). 774. Marzendorfer v. State, 976 So. 2d 596 (Fla. Dist. Ct. App. 1st Dist. 2007).

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otherwise compliant probationer or community controllee is not sufficient to demonstrate unfitness for such supervision.775 Engagement in other criminal activity. Given the fundamental obligation of all citizens to obey the law, engagement in other criminal activity is a sufficient basis to revoke probation or community control. Where a defendant had violated his or her supervision by committing a sufficiently egregious offense, and, if the proof of the violation is sufficiently supported by the record, proof of the defendants conviction of the subsequent offense is not required.776 Mere suspicion that the probationer or community controlee has engaged in criminal activity will not, however, suffice to support a violation.777 Supervision also may not be revoked merely because the probationer or community controlee has been arrested for another offense.778 The Florida Statutes do not authorize, and the state constitution does not permit, a permanent revocation based solely upon an arrest during the supervisory period.779 The proper standard for finding a new law violation is whether a preponderance of the evidence establishes that the probationer or community controlee committed the charged offense or offenses.780 Proof sufficient to support a criminal conviction is not required to support a judges discretionary order revoking probation or community control.781 A conviction entered upon a nolo contendere plea, standing alone, can constitute a sufficient basis for revoking supervision.782 A defendant who is convicted pursuant to a plea of nolo contendere may nevertheless contest his or her guilt at the revocation proceeding.783

775. See, Ortiz v. State, 54 So. 3d 1020 (Fla. Dist. Ct. App. 2d Dist. 2011). 776. See, Dewberry v. State, 537 So. 2d 669 (Fla. Dist. Ct. App. 1st Dist. 1999). 777. Moser v. State, 523 So. 2d 783 (Fla. Dist. Ct. App. 5th Dist. 1988). 778. Robinson v. State, 907 So. 2d 1284 (Fla. Dist. Ct. App. 2d Dist. 2005) (it is improper to revoke probation solely on proof that the probationer has been arrested); Ontiveros v. State, 746 So. 2d 1174 (Fla. Dist. Ct. App. 2d Dist. 1999); Manigault v. State, 534 So. 2d 856 (Fla. Dist. Ct. App. 1st Dist. 1988). 779. Sharpston v. State, 895 So. 2d 1225 (Fla. Dist. Ct. App. 2d Dist. 2005) (reversal required because defendant admitted being arrested but never admitted committing the crime). 780. See, Reyes v. State, 711 So. 2d 1378 (Fla. Dist. Ct. App. 2d Dist. 1998); Amador v. State, 713 So. 2d 1121 (Fla. Dist. Ct. App. 3d Dist. 1998). 781. Robinson v. State, 609 So. 2d 89 (Fla. Dist. Ct. App. 1st Dist. 1992). 782. Maselli v. State, 446 So. 2d 1979 (Fla. 1984). 783. Hodges v. State, 920 So. 2d 158 (Fla. Dist. Ct. App. 2d Dist. 2006) (probationer who enters a plea of nolo contendere to a new law violation is entitled to an opportunity in a probation revocation proceeding to be heard on whether he or she is guilty of the charge to which he or she pled nolo contendere); Grizzard v. State, 881 So. 2d 673 (Fla. Dist. Ct. App. 5th Dist. 2004).

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An uncounselled plea to a criminal offense for which there is no waiver of counsel will not support revocation.784 Association with persons engaged in criminal activity. A single incident of associating with persons engaged in criminal activity is enough to amount to a willful and substantial violation.785 Refusal to admit guilt for purposes of treatment. A defendants refusal to admit his guilt for purposes of completing a court-ordered treatment program is a willful violation of probation or community control.786 Note that, if the defendant claims that he was not told that he would have to admit guilt as part of sex offender treatment, he has the option of moving for a withdrawal of his plea or to vacate his judgment or sentence; if he does not make such a motion, his refusal to admit guilt is a willful and substantial violation of supervision.787 Failure to participate in court-ordered sex offender treatment. In cases involving sex offender probation or community control, the trial court must impose certain legislatively mandated conditions; the statute does not allow for judicial discretion and does not require oral pronouncement of these conditions at sentencing.788 If the trial court does not announce time parameters for compliance with sex offender conditions of supervision at sentencing, the defendant is not at liberty to pick the time of compliance within the supervisory period. Rather, the defendant must undertake compliance with each condition as soon as he or she is placed on supervision. Consequently, willful failure to actively participate in or complete sex offender treatment, or provide HIV test results to the victim, does not necessarily preclude revocation simply because the number of attempts at compliance were not specified or because the defendant is willing to undertake another attempt at compliance within the supervisory period. If immediate

784. State v. Rock, 605 So. 2d 456 (Fla. 1992). 785. Bland v. State, 896 So. 2d 937 (Fla. Dist. Ct. App. 1st Dist. 2005) (police search of hotel room rented by defendant and occupied by him and three other persons revealed rolling papers, marijuana, a container with cocaine residue, a scale with cocaine residue, and a crack pipe). 786. Arias v. State, 751 So. 2d 184 (Fla. Dist. Ct. App. 3d Dist. 2000) (defendant willfully and substantially violated probation where he was unable to successfully complete court-ordered mentally disordered sex offender program due to his refusal to accept responsibility); but see, Bennett v. State, 684 So. 2d 242 (Fla. Dist. Ct. App. 2d Dist. 1996) (court concluded that there was no probation violation where defendant, who had pled guilty to charge of sexual conduct with a child and was ordered to complete sex offender treatment, had not been told he would have to admit guilt for underlying offenses). 787. Mills v. State, 840 So. 2d 464 (Fla. Dist. Ct. App. 4th Dist. 2003); Archer v. State, 604 So. 2d 561 (Fla. Dist. Ct. App. 1st Dist. 1992). 788. Sec. 948.30, F.S.

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initial attempts are unsuccessful and the defendant expresses a willingness to try again, other chances at compliance are a matter that should be left to the sound discretion of the trial court.789 Unexcused absences from therapeutic programs. The courts generally agree that unexcused absences from treatment programs are a valid basis for finding a willful and substantial violation of probation or community control.790 An exception to this can occur under exceptional circumstances. Where, for example, a defendant with limited economic means is given permission to change programs, pays for and enters the new program, is then told to return to his or her original program, returns to the original program but does not get credit for attendance because he or she does not have the money to pay for the dues of that program and so stops reporting, the State may be unable to prove a willful and substantial violation.791 Failure to complete therapeutic programs. A trial court has discretion to find a defendant in willful and substantial violation of probation for being discharged from a court-ordered therapeutic program for nonattendance, even if the sentencing court fails to specify the number of chances the defendant would have to complete the program or impose a time period for compliance. Although trial courts are encouraged to be detailed and specific in probation and community control orders in order to ensure that a defendant is clearly put on notice of what conduct is both required and prohibited, a bright line rule in the context of therapeutic programs would undermine the trial courts ability to assess the unique and distinct factual circumstances of the individual probationers or community controlees case.792 Failure to follow routine supervisory instructions. The failure to follow routine supervisory instructions given by a probation officer is a proper ground for a violation of probation or community control.793 One common violation of this type is being out of residence without the permission of the probation or community control officer. A defendants home is a substitute for incarceration where the defendant is on community control or on probation with

789. Woodson v. State, 864 So. 2d 512 (Fla. Dist. Ct. App. 5th Dist. 2003). 790. Rawlins v. State, 711 So. 2d 137 (Fla. Dist. Ct. App. 5th Dist. 1998) (We conclude that a judge may find that two unexcused absences from a treatment program may indeed amount to a material violation.); see also, Mills v. State, 840 So. 2d 464 (Fla. Dist. Ct. 4th Dist. 2003); Marcano v. State, 814 So.2d 1174, 1176 (Fla. Dist. Ct. App. 4th Dist. 2002) (Generally, unexcused absences from required therapeutic programs constitute willful violations of probation.) (citing Boyd v. State, 756 So. 2d 1114, 1115 (Fla. Dist. Ct. App. 1st Dist. 2000); Santiago v. State, 722 So. 2d 950 (Fla. Dist. Ct. App. 4th Dist. 1998)). 791. See, Myers v. State, 931 So.2d 1069 (Fla. Dist. Ct. App. 4th Dist. 2006). 792. Adams v. State, 979 So.2d 921 (Fla. 2008) (sex offender treatment); Lawson v. State, 969 So. 2d 222 (Fla. 2007) (drug treatment program). 793. See, Roff v. State, 644 So. 2d 166, 167 (Fla. Dist. Ct. App. 4th Dist. 1994).

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home restrictions and a defendants failure to obtain the necessary permission before leaving an approved residence can be a sufficient basis for revoking supervision.794 Failure to perform required community service hours. Failure of the defendant to perform required community service hours in equal monthly installments is a valid reason for revocation of probation or community control.795 The failure to perform community service hours will not be deemed willful and substantial, however, if the performance parameters have not been spelled out and sufficient time remains in the probationary or community control period for the probationer or community controlee to complete the requirement.796 Proceedings when the defendant admits the violation. The court, upon the defendant being brought before it, is required to advise him or her of such charge of violation and, if such charge is admitted to be true, may forthwith revoke, modify, or continue the probation or community control or place the defendant who was on probation into a community control program.797 If probation or community control is revoked, the court is required to adjudge the probationer or community controllee guilty of the offense charged and proven or admitted for which the defendant is on probation or community control, unless he or she has previously been adjudged guilty of the offense, and impose any sentence which it might have originally imposed before placing the defendant on probation or into community control.798 Proceedings When the Defendant Does Not Admit the Violation If such violation of probation or community control is not admitted by the defendant, the court may commit him or her or release him or her with or without bail to await further hearing, or it may dismiss the charge of probation or community control violation.799 If such charge is not at that time admitted by the defendant and if it is not dismissed, the court, as soon as may be practicable, is required to give the probationer or offender an opportunity to be fully heard on his or her behalf in person or by counsel.800 After such hearing, the court may revoke, modify, or continue the probation or community control or place the probationer into

794. See, Herring v. State, 35 So. 3d 966 (Fla. Dist. Ct. App. 5th Dist. 2010); Davis v. State, 704 So. 2d 681, 683 (Fla. Dist. Ct. App. 1st Dist. 1997). 795. Stevens v. State, 823 So. 2d 319 (Fla. Dist. Ct. App. 2d Dist. 2002). 796. See, Matthews v. State, 943 So. 2d 984 (Fla. Dist. Ct. App. 2d Dist. 2006). 797. Sec. 948.06(2)(a), F.S. 798. Sec. 948.06(2)(b), F.S. 799. Sec. 948.06(2)(c), F.S. 800. Sec. 948.06(2)(d), F.S.

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community control. If such probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted for which the defendant is on probation or community control, unless he or she has previously been adjudged guilty of the offense, and impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control.801 Revocation Hearing A probation or community control revocation hearing is a sentencing function, not a trial.802 A revocation proceeding concerns conduct which violates the terms of probation or community control for an already-established criminal offense. As such many of the features attendant to a criminal trial are not present in revocation proceedings. The trial judge has certain broad discretionary power to revoke probation, but this discretionary power must be exercised in accordance with due process requirements. Revocation proceedings must include minimal due process of: (1) written notice of the claimed violation(s); (2) disclosure to the defendant of the evidence against him or her; (3) opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and crossexamine witnesses, unless the hearing officer finds good cause for not allowing confrontation; (5) a neutral and detached hearing body; and (6) a written statement by the factfinder as to the evidence relied on and reasons for revoking probation or community control.803 Section 948.06 implements these rights and requires that a court conduct a probation revocation hearing if the probationer disputes the charges.804 Before probation or community control may be revoked, the evidence must be sufficient to satisfy the conscience of the court that a condition of probation or community control has been violated.805 A revocation hearing is not required to meet the standards of a full scale criminal trial by having a separate hearing for an arraignment. The right of confrontation found in the United

801. Sec. 948.06(2)(e), F.S. 802. Brill v. State, 159 Fla. 632, 32 So. 2d 607 (Fla. 1947); Young v. State, 305 So. 2d 307 (Fla. Dist. Ct. App. 3d Dist. 1974), cert. denied 317 So. 2d 762 (Fla. 1975); McNeely v. State, 186 So. 2d 520 (Fla. Dist. Ct. App. 2d Dist. 1966). 803. See, Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); Bernhardt v. State, 288 So. 2d 490 (Fla. 1974). 804. Staley v. State, 851 So. 2d 805 (Fla. Dist. Ct. App. 2d Dist. 2003). 805. Bernhardt v. State, 288 So. 2d 490 (Fla. 1974); Brill v. State, 159 Fla. 632, 32 So. 2d 607 (Fla. 1947); Roberts v. State, 154 So. 2d 695 (Fla. 1963); Martin v. State, 243 So. 2d 189 (Fla. Dist. Ct. App. 4th Dist. 1971); see also, Patrick v. State, 336 So. 2d 1253 (Fla. Dist. Ct. App. 1st Dist. 1976) (trial court did not have authority under section 948.03 without notice to appellant and without a hearing, to find defendant in violation of his probation and to extend his probation period by one year).

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States and Florida constitutions does not apply to revocation proceedings.806 The speedy trial rule also does not apply to revocation proceedings because revocation is a sentencing function rather than a trial.807 The inquiry may be on an informal basis; the trial judge has broad judicial discretion to determine whether conditions of probation or community control have been violated, and the trial court does not have to observe the strict rules of evidence. This means that, if a defendant charged with a violation shows up at arraignment with counsel and witnesses to speak on the defendants behalf, the defendant and his counsel have an opportunity to speak, and the other minimal requirements of due process are met, the trial judge may treat the arraignment as a revocation proceeding.808 The defendant can, in any event, waive the procedural due process requirements of section 948.06, if such waiver is knowing, voluntary, and intelligent, although the court must make sufficient inquiry of any testimony and evidence presented to satisfy its conscience that the defendant is in fact in violation of one or more of the terms of his or her supervision. This means that a judge with proper jurisdiction can proceed to a revocation hearing when a defendant appears before the court and testifies under oath that he or she is in violation, or is about to be in violation, of the terms of his or her supervision and there is some credible evidence other than the defendants own testimony that this is so. An example of such a situation would be where a defendant goes before the court prior to being violated by his or her probation officer or community control officer and asks that supervision be extended to permit more time to pay restitution, fines, fees, and so on because he or she is behind on these payments, and this fact can be verified through other means at the courts disposal. In such a situation, the court can accept a waiver by the defendant and proceed to a revocation hearing. Note, however, that if a defendant undertakes this process and shortly thereafter is violated on the basis of an accusation that was not dealt with when the defendant appeared earlier, the court must proceed on the new accusation. Note, also, that if the defendant in his or her earlier appearance before the court engaged in any material misrepresentation or omission of the facts or circumstances (e.g. failing to inform the court that he or she was in violation for committing a new criminal offense), the court can vacate any disposition that was based upon such misrepresentation. The trial of a criminal case should not be construed as a probation or community control revocation hearing in the absence of stipulation or consent on the part of the defendant.809
806. Peters v. State, 984 So. 2d 1227 (Fla. 2008) (the testimonial hearsay rule set forth in Crawford v. Washington, 541 U.S. 36 (2004) does not apply in community control or probation revocation proceedings); Russell v. State, 982 So. 2d 642 (Fla. 2008) (Crawford does not apply to revocation of probation proceedings); see also, Wilcher v. State, 946 So. 2d 114 (Fla. Dist. Ct. App. 5th Dist. 2007); Peters v. State, 919 So. 2d 624 (Fla. Dist. Ct. App. 1st Dist. 2006) (Crawford does not apply in community supervision revocation proceedings); Russell v. State, 920 So. 2d 683 (Fla. Dist. Ct. App. 5th Dist. 2006). 807. See, Hall v. State, 512 So. 2d 303 (Fla. Dist. Ct. App. 1st Dist. 1987). 808. See, McNeely v. State, 186 So. 2d 520 (Fla. Dist. Ct. App. 2d Dist. 1966). 809. State v. Spratling, 336 So. 2d 361 (Fla. 1976).

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Affirmative agreement is not required; acquiescence where the trial court advises the defendant that it would consider evidence in connection with the pending probation or community control violation charge, without the defendant voicing any objection, is sufficient.810 Specificity and Accuracy of the Allegation As a fundamental principle of due process, a revocation of probation or community control may be based only on a violation alleged and presented. Failure on the part of the court to advise the defendant of the alleged violation is, in the absence of a knowing and intelligent waiver of such notice by the defendant, reversible error in revocation proceedings.811 It is also error for a trial court to revoke probation or community control even for a conceded violation when the defendant has been charged with a different violation altogether.812 It is fundamental error to revoke probation or community control in a case when the State fails to allege a violation of supervision for that particular case.813 Only the trial court may set the conditions upon which probation or community control may be revoked, and probation or community control may be revoked only for the violation of a condition set by the trial court.814 A violation of a condition imposed by the defendants probation officer, rather than imposed by the trial court as an express condition, cannot serve as a basis for revocation.815 An allegation of violation of probation need not be set forth with the same specificity required for an indictment or information.816 The primary goal is notice comporting with minimal due process rights. If a probationer needs additional information in order to properly prepare a defense to the charges, the various methods of discovery under our rules are available to him or her.817 Mere deficiencies in the VOP charge are not per se reversible error, so long as the VOP charge gives the probationer fair notice as to the actual criminal act sought to be used as the basis

810. Maddox v. State, 827 So. 2d 380 (Fla. Dist. Ct. App. 3d Dist. 2002). 811. Balsinger v. State, 974 So. 2d 592 (Fla. Dist. Ct. App. 2d Dist. 2008). 812. See, Davis v. State, 891 So. 2d 1186 (Fla. Dist. Ct. App. 4th Dist. 2005). 813. Nelson v. State, 16 So. 3d 165 (Fla. Dist. Ct. App. 2d Dist. 2009). 814. See, Barber v. State, 344 So. 2d 913 (Fla. Dist. Ct. App. 3d Dist. 1977). 815. Kiess v. State, 642 So. 2d 1141 (Fla. Dist. Ct. App. 4th Dist. 1994). 816. See, Costanz v. State, 740 So. 2d 71, 72 (Fla. Dist. Ct. App. 4th Dist. 1999); Burton v. State, 651 So. 2d 793, 794 (Fla. Dist. Ct. App. 1st Dist. 1995). 817. Hines v. State, 358 So. 2d 183 (Fla. 1978).

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for the revocation.818 A discrepancy in dates in an allegation of violation of probation does not preclude the finding of a violation of probation where the discrepancy does not hamper the probationer in his or her defense.819 A defendants probation or community control can not be revoked for conduct that is not prohibited or required by the order of probation or community control.820 A trial court is not permitted to revoke probation or community control on the basis of conduct not charged in the affidavit of violation,821 but can consider such uncharged aggravating circumstance when imposing a sentence within the range permitted by law based upon charged conduct that violates a condition of supervision.822 Although actual notice of the precise offense that forms the basis of the violation may cure an otherwise defective affidavit, the ability to present a defense is not necessarily the equivalent of having received proper notice so as to satisfy due process and notice,

818. Langbaum v. State, 799 So. 2d 391 (Fla. Dist. Ct. App. 4th Dist. 2001) (VOP affidavit alleging arrest for DUI, but not specifying the elements of that offense or state that defendant was subsequently convicted, was legally sufficient to put defendant on notice). 819. Hollingshead v. State, 846 So. 2d 627 (Fla. Dist. Ct. App. 4th Dist. 2003). 820. Shelton v. State, 851 So. 2d 912 (Fla. Dist. Ct. App. 4th Dist. 2003) (probation cannot be revoked for failing to remain at approved employment site when order required probationer to be at his residence with some limited exceptions); Meade v. State, 799 So. 2d 430 (Fla. Dist. Ct. App. 1st Dist. 2001) (probation could not be revoked for defendants failure to pay for polygraph test that was not condition of probation); Lane v. State, 762 So. 2d 560 (Fla. Dist. Ct. App. 5th Dist. 2000) (defendants probation could not be revoked for refusal to comply with new requirement pursuant to enactment of statute providing for annual polygraph tests for sex offenders on probation because defendants original probation order did not require submission to such testing, and therefore refusal to take the tests could not be a basis for revocation); Wright v. State, 687 So. 2d 291 (Fla. Dist. Ct. App. 5th Dist. 1997) (probation could not be revoked for defendants failure to undergo DNA testing where probation order did not require such testing); Nichols v. State, 672 So. 2d 825 (Fla. Dist. Ct. App. 2d Dist. 1995) (court may not revoke probationers probation for failure to pay fine imposed by trial court where trial court never orally pronounced that payment of fine was condition of probation and probation order did not list payment of fine as condition of probation). 821. Howard v. State, 883 So. 2d 879 (Fla. Dist. Ct. App. 4th Dist. 2004); Ray v. State, 855 So. 2d 1260 (Fla. Dist. Ct. App. 4th Dist. 2003); Parminter v. State, 762 So. 2d 966, 967 (Fla. Dist. Ct. App. 2d Dist. 2000) (trial court erred in finding that defendant violated probation for possessing cocaine as affidavit failed to allege such a violation); see also, N.L. v. State, 825 So. 2d 509, 510 (Fla. Dist. Ct. App. 1st Dist. 2002) (reversing trial courts finding that defendant violated probation as it did not find that violations that were alleged were proven, and as it ordered revocation on ground never alleged); Grimsley v. State, 830 So. 2d 118, 119 (Fla. Dist. Ct. App. 2d Dist. 2002) (noting that, while trial court found that defendant violated probation for failing to report to her probation officer, the officers affidavit neither mentioned the reporting requirements nor alleged that defendant had neglected to report); Nagel v. State, 758 So. 2d 1206, 1208 (Fla. Dist. Ct. App. 4th Dist. 2000) (reversing and remanding trial courts finding that defendant violated probation as neither the violation of probation affidavit nor the violation report specifically alleged that defendant violated condition five of his probation when he broke a stockade rule by testing positive for alcohol); Harrington v. State, 570 So. 2d 1140, 1142 (Fla. Dist. Ct. App. 4th Dist. 1990) (reversing and remanding trial courts finding that defendant violated probation for smoking marijuana as affidavit specified that the intoxicant used was cocaine). 822. Garcia v. State, 73 So. 3d 823 (Fla. Dist. Ct. App. 5th Dist. 2011)

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in any event, must be sufficiently early to satisfy due process considerations.823 It is not error, however, when the affidavit of violation alleges the commission of a new criminal offense, but the defendant is actually convicted of a lesser included offense.824 This does not mean that there can be no mention of, or reference to, violations of the law not included in the affidavit, just that such violations cannot serve as the basis for revocation.825 As addressed, supra, probation or community control may not be revoked simply for the fact of an arrest.826 Allegations of an affidavit of violation are timely if the affidavit is filed before the expiration of the probation or community control at issue or if the allegations in an affidavit filed after the expiration of the supervisory period have also been alleged in an earlier affidavit timely filed before the expiration of the supervisory period. However, a timely affidavit of violation cannot be amended after the expiration of the probationary period to add charges not contained in an earlier, timely, affidavit.827 Prosecutors Burden of Proof and Persuasion in Revocation Proceedings In a probation revocation hearing, the prosecutor must prove (1) there was an order of probation and (2) the defendant violated the order. To establish a violation of probation, the prosecution must prove by the greater weight of, or a preponderance of, the evidence that the probationer willfully violated a substantial condition of probation.828 The weight of the evidence is the balance or preponderance of evidence.829 It is a determination of the trier of fact that a greater amount of credible evidence supports one side

823. Johnson v. State, 899 So. 2d 436 (Fla. Dist. Ct. App. 4th Dist. 2005). 824. Thomas v. State, 634 So. 2d 276 (Fla. Dist. Ct. App. 4th Dist. 1994) (holding that an affidavit of violation alleging that the probationer resisted arrest with violence, when he was actually convicted of resisting arrest without violence, did not preclude a finding that he was guilty of violating his probation). 825. McDonald v. State, 892 So. 2d 1228 (Fla. Dist. Ct. App. 1st Dist. 2005). 826. Robinson v. State, 907 So. 2d 1284 (Fla. Dist. Ct. App. 2d Dist. 2005) (it is improper to revoke probation solely on proof that the probationer has been arrested); Ontiveros v. State, 746 So. 2d 1174 (Fla. Dist. Ct. App. 2d Dist. 1999); Manigault v. State, 534 So. 2d 856 (Fla. Dist. Ct. App. 1st Dist. 1988); Palmer v. State, 603 So. 2d 535 (Fla. Dist. Ct. App. 4th Dist. 1992). 827. See, Sepulveda v. State, 909 So. 2d 568 (Fla. Dist. Ct. App. 2d Dist. 2005). 828. Stevens v. State, 823 So. 2d 319, 321 (Fla. Dist. Ct. App. 2d Dist. 2002); Salzano v. State, 664 So. 2d 23 (Fla. Dist. Ct. App. 2d Dist. 1995); Griffin v. State, 603 So. 2d 48 (Fla. Dist. Ct. App. 1st Dist. 1992); Rock v. State, 584 So. 2d 1110 (Fla. Dist. Ct. App. 1st Dist. 1991); Ferris v. State, 489 So. 2d 174 (Fla. Dist. Ct. App. 5th Dist. 1986). 829. Blacks L. Dict. 1429 (5th Ed. 1979).

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of an issue or cause than the other.830 Proof sufficient to support a criminal conviction is not required to support a judges discretionary order revoking probation, because the ultimate facts necessary to convict for a criminal offense and the ultimate facts necessary to establish a violation of probation or community control are not the same. It is analogous to the decision of the United States Supreme Court in One Lot Stones v. United States,831 which held that an acquittal in a criminal case does not collaterally estop the same issue from being tried in a civil case because the burden of proof as well as the elements that must be established differ.832 Sufficiency of the Evidence In a hearing to revoke parole the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversarial proceeding.833 The Florida courts have held to date that the confrontation clauses, and in particular the testimonial hearsay rule set forth in Crawford v. Washington,834 also do not apply to supervision revocation proceedings, as such proceedings are not the equivalent of a criminal proceeding.835 The Florida Evidence Code is applicable to proceedings involving the granting or revoking of probation.836 The trial court in a revocation hearing is entitled to judicially notice the defendants probationary status.837

830. Tibbs v. State, 397 So. 2d 1120 (Fla. 1981). 831. One Lot Stones v. United States, 409 U.S. 232, 93 S. Ct. 489, 34 L. Ed. 2d 438 (1972). 832. Russ v. State, 313 So. 2d 758 (Fla. 1975), cert. den., Russ v. Florida, 423 U.S. 924, 96 S. Ct. 267, 46 L. Ed. 2d 250 (1975). 833. Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). 834. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv. 1077 (2004). 835. Peters v. State, 984 So. 2d 1227 (Fla. 2008) (the testimonial hearsay rule set forth in Crawford v. Washington, 541 U.S. 36 (2004) does not apply in community control or probation revocation proceedings); Russell v. State, 982 So. 2d 642 (Fla. 2008) (Crawford does not apply to revocation of probation proceedings);; Massery v. State, 953 So. 2d 568 (Fla. Dist. Ct. App. 1st Dist. 2007) (because defendants prosecution was completed once trial court imposed true split sentence following his conviction, right to confrontation did not apply to probation revocation proceeding); Wilcher v. State, 946 So. 2d 114 (Fla. Dist. Ct. App. 5th Dist. 2007) (affirming revocation of defendants probation based upon business record evidence of positive urinalysis for cocaine); Jackson v. State, 931 So. 2d 1062, 1063 (Fla. Dist. Ct. App. 4th Dist. 2006) (probation revocation based on 911 recording); Russell v. State, 920 So. 2d 683 (Fla. Dist. Ct. App. 2d Dist. 2004) (revocation of probation based upon victims hearsay and officers testimony); Peters v. State, 919 So. 2d 624 (Fla. Dist. Ct. App. 1st Dist.), review granted, 924 So. 2d 809 (Fla. 2006) (affirming revocation of community control based upon business record evidence showing defendants positive drug test for amphetamines and methamphetamines). 836. Ehrhardt, Florida Evidence, 103.1 (2012 Ed.). 837. Sec. 90.202, F.S.; Young v. State, 519 So. 2d 719 (Fla. Dist. Ct. App. 5th Dist. 1988).

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The issue of whether a violation was willful may be proven by circumstantial evidence.838 It is error to include in an order of probation revocation violations for which no evidence was adduced at the revocation hearing.839 Self-Incrimination. A probation revocation hearing is not a criminal proceeding and, therefore, the defendant has no rights under the Fifth Amendment.840 The court may use the defendants silence as confirmation of the violation.841 As long as the answers will not be used in a criminal proceeding, the State can insist on answers to incriminating questions about the defendant's probationary status.842 The court may take judicial notice of the plea to the offense which forms the basis of the violation.843 Evidence Obtained in Violation of the Fifth Amendment. Evidence obtained in violation of the Fourth Amendment may be admissible in a revocation hearing even if it must be excluded from trial.844 Polygraph results are inadmissible to prove a probation violation, but requiring the defendant to take periodic polygraph examinations as a condition of probation is valid for the purposes of deterrence and supervision of the probationer.845 Evidence Obtained in Violation of the Fourth Amendment. Evidence seized in violation of a probationers Fourth Amendment rights is not admissible in a probation revocation hearing.846 Mere Allegations. Allegations that a defendant violated his or her probation by being in possession of marijuana, failing to tell his probation officer he had been in possession of marijuana, receiving a traffic citation for fleeing and attempting to elude, and failing to work

838. See, Walton v. State, 780 So. 2d 1043, 1044 (Fla. Dist. Ct. App. 4th Dist. 2001). 839. McMahill v. State, 826 So. 2d 520 (Fla. Dist. Ct. App. 5th Dist. 2002). 840. Minnesota v. Murphy, 465 U.S. 420, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984). 841. Manigault v. State, 534 So. 2d 856 (Fla. Dist. Ct. App. 1st Dist. 1988). 842. Minnesota v. Murphy, 465 U.S. 420, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984); Johnson v. State, 509 So. 2d 373 (Fla. Dist. Ct. App. 4th Dist. 1987). 843. Gilmore v. State, 523 So. 2d 1244 (Fla. Dist. Ct. App. 2d Dist. 1988). 844. Croteau v. State, 334 So. 2d 577 (Fla. 1976). 845. Cassamassima v. State, 657 So. 2d 906, 909 (Fla. Dist. Ct. App. 4th Dist. 1995). 846. State v. Scarlet, 800 So. 2d 220 (Fla. 2001) (exclusionary rule applies in probation revocation hearings); State v. Cross, 487 So. 2d 1056, 1057-58 (Fla. 1986) (same).

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diligently or seek employment can not be used to support a finding of probation violation, absent supporting evidence.847 Probation Records. Probation records are admissible into evidence under the business record exception after the proper predicate has been laid, and can be the sole basis of revocation.848 The court can consider affidavits and other relevant documents even though they may be inadmissible in a criminal trial.849 In the same vein, just as a trial judge considers a past criminal record in determining an appropriate sentence, so too may a trial judge consider a probationers or community controlees past record of supervision, including prior violations and sanctions imposed, in determining whether to revoke for supervision the violation or impose some lesser sanction.850 Laboratory Reports. Laboratory reports are admissible under the business records exception to the hearsay rule after a proper predicate has been laid, provided that no lack of trustworthiness is shown by the laboratory technician.851 A report from an outside laboratory which establishes the probationers or community controllees positive drug test is admissible hearsay in a revocation hearing where the probation/community control officer testifies that he or she performed a positive in-office test on the defendant and the outside laboratory report is not the sole evidence of the defendants drug use.852 A probation/community control officers testimony, standing alone, that the probationer or community controlee had failed a drug urinalysis performed by a drug treatment facility does not support a finding of violation, however, where the document indicating the test result is not admitted into evidence.853 Admissions. The defendants own admissions are sufficient to revoke probation.854 The confession of a codefendant does not come within the hearsay exception for statements against

847. McLain v. State, 651 So. 2d 1292 (Fla. Dist. Ct. App. 2d Dist. 1995). 848. Brown v. State, 546 So. 2d 1156 (Fla. Dist. Ct. App. 5th Dist. 1989); Adams v. State, 521 So. 2d 337 (Fla. Dist. Ct. App. 4th Dist. 1988). 849. McCarrick v. State, 553 So. 2d 1373 (Fla. Dist. Ct. App. 2d Dist. 1989); but see, Hudson v. State, 489 So. 2d 808 (Fla. Dist. Ct. App. 4th Dist. 1986) (probation officer with no personal knowledge concerning probationer, who bases his or her entire testimony on information contained in probationer departments file is not admissible under the business records exception to hearsay rule where records are not introduced into evidence). 850. Kaduk v. State, 959 So. 2d 817 (Fla. Dist. Ct. App. 4th Dist. 2007). 851. Peters v. State, 919 So. 2d 624 (Fla. Dist. Ct. App. 1st Dist. 2006); Davis v. State, 562 So. 2d 431 (Fla. Dist. Ct. App. 1st Dist. 1990); Williams v. State, 553 So. 2d 365 (Fla. Dist. Ct. App. 5th Dist. 1989). 852. Monroe v. State, 679 So. 2d 50 (Fla. Dist. Ct. App. 1st Dist. 1996). 853. Player v. State, 949 So. 2d 306 (Fla. Dist. Ct. App. 1st Dist. 2007). 854. Jackson v. State, 546 So. 2d 745 (Fla. Dist. Ct. App. 2d Dist. 1989).

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interest where it implicated the codefendant and defendant, and so cannot be used to support an order revoking probation.855 Hearsay. Hearsay evidence is admissible in violation of probation or community control hearings, but a violation cannot be sustained and probation or community control revoked solely on the basis of hearsay evidence.856 Revocation may, however, be based solely upon hearsay evidence that falls within an exception to the hearsay rule.857 Similarly, the mere testimony of a police officer that the defendant was arrested for a charge that was an underlying basis of the violation is insufficient to support a finding of violation.858 The basic rule is that, in support of a revocation of probation, the State may rely on a mix of inadmissible hearsay evidence together with evidence which is admissible at a criminal trial.859 When, however, the State seeks to revoke probation or community control based on the commission of a new offense, it must present direct, nonhearsay evidence linking the defendant to the commission of the offense at issue.860 If the State fails to do so, revocation is improper.861 An example of how the rule is applied is the situation where the defendant, while on supervision, batters his or her domestic partner, causing visible injury, but flees before the police arrive, and the only way the State can connect the defendant to the crime is through the statements of the victim, but the victim is uncooperative or unavailable to testify at the revocation evidentiary hearing: The hearsay statements of the battery victim, coupled with a police officers observation of injury, are sufficient to prove a violation of supervision.862 The non-hearsay evidence does not have to independently establish the probation or community control violation; it need only support
855. Walker v. State, 426 So. 2d 1180 (Fla. Dist. Ct. App. 5th Dist. 1983). 856. Tobias v. State, 828 So. 2d 1066 (Fla. Dist. Ct. App. 4th Dist. 2002); Gonzalez v. State, 814 So. 2d 1210 (Fla. Dist. Ct. App. 4th Dist. 2002); Wilcox v. State, 770 So. 2d 733, 735 (Fla. Dist. Ct. App. 4th Dist. 2000); Morris v. State, 727 So. 2d 975 (Fla. Dist. Ct. App. 5th Dist. 1999); Render v. State, 755 So. 2d 653, 654 (Fla. Dist. Ct. App. 4th Dist. 1998); Crume v. State, 703 So. 2d 1216 (Fla. Dist. Ct. App. 5th Dist. 1997); Beecham v. State, 652 So. 2d 1275 (Fla. Dist. Ct. App. 3d Dist. 1995); Kiess v. State, 642 So. 2d 1141 (Fla. Dist. Ct. App. 4th Dist. 1994); Colina v. State, 629 So. 2d 274 (Fla. Dist. Ct. App. 2d Dist. 1993); Jones v. State, 423 So. 2d 513 (Fla. Dist. Ct. App. 5th Dist. 1982); Clemons v. State, 388 So. 2d 639 (Fla. Dist. Ct. App. 2d Dist. 1980). 857. Ruise v. State, 43 So. 3d 885 (Fla. Dist. Ct. App. 1st Dist. 2010). 858. Mitchell v. State, 607 So. 2d 486 (Fla. Dist. Ct. App. 3d Dist. 1992); Griffin v. State, 603 So. 2d 48 (Fla. Dist. Ct. App. 1st Dist. 1992). 859. Seays v. State, 963 So. 2d 890 (Fla. Dist. Ct. App. 4th Dist. 2007); Thomas v. State, 711 So. 2d 96 (Fla. Dist. Ct. App. 4th Dist. 1998). 860. See, Blair v. State, 805 So. 2d 873 (Fla. Dist. Ct. App. 2d Dist. 2001); J.F. v. State, 889 So. 2d 130 (Fla. Dist. Ct. App. 4th Dist. 2004). 861. See, Johnson v. State, 962 So. 2d 394 (Fla. Dist. Ct. App. 2d Dist. 2007). 862. Russell v. State, 982 So. 2d 642 (Fla. 2008).

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the hearsay evidence.863 Note also that Florida law does not require that every witness, or even the victim of the underlying crime that is the alleged probation or community control violation, be available for cross-examination at a probation revocation hearing.864 Sheer Conjecture. Trial courts cannot find a violation of probation or community control where no evidence is presented and the defendant does not admit to the alleged violation.865 Sheer conjecture is not competent and substantial evidence and is not sufficient to support a revocation of probation or community control.866 Willful and Substantial Nature of the Violation In order to support the revocation of probation or community control, the State must prove that the defendants violations were willful and substantial.867 The trial court must determine whether the violations were willful and substantial and supported by the greater weight of the evidence or, stated differently, whether the defendant made reasonable efforts to comply with the terms and conditions of community control.868 Without a finding that a defendants violation of supervision is willful and substantial, the court is without authority to revoke that supervision or to adjudicate him or her guilty.869 The defendants failure to comply does not, in every instance, establish a willful and substantial violation justifying revocation as there may be circumstances where revocation is patently unfair.870 The trial court has broad discretion to determine whether there has been a willful and substantial violation, and appellate review of the trial courts determination is for abuse of discretion.871

863. Kalbach v. State, 988 So. 2d 1279 (Fla. Dist. Ct. App. 5th Dist. 2008). 864. Thompson v. State, 994 So. 2d 468 (Fla. Dist. Ct. App. 3d Dist. 2008). 865. Shiflett v. State, 779 So. 2d 461 (Fla. Dist. Ct. App. 2d Dist. 2000). 866. Galego v. State, 27 So. 3d 152 (Fla. Dist. Ct. App. 3d Dist. 2010). 867. Brown v. State, 813 So. 2d 202, 203 (Fla. Dist. Ct. App. 2d Dist. 2002). 868. See, State v. Carter, 835 So. 2d 259, 261 (Fla. 2002); McCoy v. State, 730 So. 2d 803, 804 (Fla. Dist. Ct. App. 2d Dist. 1999). 869. Lindsay v. State, 54 So. 3d 638 (Fla. Dist. Ct. App. 1st Dist. 2011). 870. State v. Carter, 835 So. 2d 259, 262 (Fla. 2002). 871. Anthony v. State, 854 So. 2d 744, 747 (Fla. Dist. Ct. App. 2d Dist. 2003).

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Illness, including mental illness, can render a technical violation of probation not substantial or willful because a mental or physical illness can be debilitating to the point that a probationer cannot comply with the terms of probation or community control.872 A de minimis deviation from a condition of probation or community control does not constitute a willful and substantial violation.873 A violation of probation may also be deemed not to be willful where the probationer or community controlee has a good-faith reasonable belief that he or she is not on supervision.874 Effect of Acquittal/Dismissal/Nolle Prosequi/Reversal and Collateral Estoppel Nolle Prosequi. A nolle prosequi only means that the State is not prepared to go forward with the prosecution of the criminal charge. At most, it conveys that the State did not have sufficient evidence to meet its burden of proving guilt beyond a reasonable doubt.875 Nolle prosequi, if entered before jeopardy attaches, neither operates as an acquittal nor prevents further prosecution of the offense.876 The filing of a nolle prosequi does not mean that the trial court cannot find that the defendant substantively violated his or her probation or community control by committing a new offense or offenses.877 Acquittal. Because differing standards are applicable, acquittal on the substantive offense is not a collateral estoppel bar to revocation of probation on the same offense.878 An acquittal in

872. Copeland v. State, 864 So. 2d 1197 (Fla. Dist. Ct. App. 1st Dist. 2004). 873. Boatwright v. State, 847 So. 2d 1141 (Fla. Dist. Ct. App. 3d Dist. 2003) (defendant on community control who had permission to attend church services on a Sunday between 8:00 AM and 12:00 PM did not commit willful and substantial violation by going to bishops house for group counseling after church services until returned home at 5:30 PM by same church bus that had picked him up in the morning); Williams v. State, 896 So. 2d 805 (Fla. Dist. Ct. App. 4th Dist. 2005) (failure to file one monthly report, having reported prior to and subsequently to that date, does not constitute a willful and substantial violation of the terms of probation). 874. See, Jenkins v. State, 963 So. 2d 311 (Fla. Dist. Ct. App. 4th Dist. 2007). 875. Jenkins v. State, 762 So. 2d 535 (Fla. Dist. Ct. App. 4th Dist. 2000). 876. Bucolo v. Adkins, 424 U.S. 641, 96 S. Ct. 1086, 47 L. Ed. 2d 301 (1976). 877. Swilley v. State, 781 So. 2d 458 (Fla. Dist. Ct. App. 2d Dist. 2001); c.f., State v. Tuthill, 545 So. 2d 850 (Fla. 1989) (new criminal offense can constitute substantive violation of probation for purposes of imposing guidelines departure sentence even if State files nolle prosequi); State v. Jenkins, 762 So. 2d 535 (Fla. Dist. Ct. App. 4th Dist. 2000) (new criminal offense can constitute probation violation even if nolle prossed by State). 878. Bones v. State, 764 So. 2d 888 (Fla. Dist. Ct. App. 4th Dist. 2000), citing Russ v. State, 313 So. 2d 758 (Fla.), cert. denied, 423 U.S. 924, 96 S. Ct. 267, 46 L. Ed. 2d 250 (1975); White v. State, 332 So. 2d 350 (Fla. Dist. Ct. App. 4th Dist. 1976).

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a criminal case does not preclude the judge from determining that a parole or probation violation has occurred based on the same conduct.879 This is because a criminal case must be proven beyond a reasonable doubt and a probation violation need only be proven by a preponderance of the evidence.880 Dismissal. The bar of neither res judicata nor collateral estoppel precludes one court from proceeding with the affidavit of probation violation after the another court had dismissed the underlying charge, which was the basis for the revocation action.881 Reversal. Where the underlying guilty verdict is reversed, the general rule requires a probation revocation based solely on that verdict and conviction is reversed.882 Though it is true that the ultimate facts necessary to convict for a criminal offense and the ultimate facts necessary to establish a violation of probation are not the same,883 logic and justice combine . . . to mandate a reversal of the revocation of [defendants] probation under such circumstances.884 Where, however, the trial court has determined that the violation of probation has been otherwise proven by a preponderance of the evidence, without regard to the jurys verdict, the revocation order can be sustained on the same facts notwithstanding reversal by the appellate court.885

879. Morris v. State, 727 So. 2d 975 (Fla. Dist. Ct. App. 5th Dist. 1999); Russ v. State, 313 So. 2d 758 (Fla.), cert. denied, 423 U.S. 924, 96 S. Ct. 267, 46 L. Ed. 2d 250 (1975); State v. Green, 667 So. 2d 959 (Fla. Dist. Ct. App. 2d Dist. 1996); Cavalcante v. Florida Parole and Probation Commission, 414 So. 2d 658 (Fla. Dist. Ct. App. 1st Dist. 1982). 880. Adickes v. State, 712 So. 2d 815 (Fla. Dist. Ct. App. 5th Dist. 1998); Crume v. State, 703 So. 2d 1216 (Fla. Dist. Ct. App. 5th Dist. 1997). 881. State v. Roesele, 799 So. 2d 447 (Fla. Dist. Ct. App. 1st Dist. 2001); see, Green v. State, 463 So. 2d 1139 (Fla. 1985); Russ v. State, 313 So. 2d 758 (Fla.), certiorari denied, 423 U.S. 924, 96 S. Ct. 267, 46 L. Ed. 2d 250 (1975); State v. Jones, 425 So. 2d 178 (Fla. Dist. Ct. App. 1st Dist. 1983); Bones v. State, 764 So. 2d 888 (Fla. Dist. Ct. App. 5th Dist. 1999); Jolly v. State, 756 So. 2d 142 (Fla. Dist. Ct. App. 4th Dist. 2000) (on rehearing) (fact that misdemeanor charge of possession of cannabis was dismissed by county court is of no consequence because order of probation states that defendant shall not violate any law of any city, county, state, or the United States (a conviction in a court of law is not necessary for you to be found in violation)); but c.f. Pendergrass v. State, 601 So. 2d 1250 (Fla. Dist. Ct. App. 2d Dist. 1992) (revocation improper if based on commission of new charges dismissed due to suppressed evidence); Graddy v. State, 517 So. 2d 772 (Fla. Dist. Ct. App. 2d Dist. 1988) (revocation improper if based on commission of new charges that are subsequently dismissed). 882. Griffis v. State, 848 So. 2d 422 (Fla. Dist. Ct. App. 1st Dist. 2003); Farley v. State, 740 So. 2d 5 (Fla. Dist. Ct. App. 1st Dist. 1999); Stevens v. State, 409 So. 2d 1051 (Fla. 1982); see also, Plummer v. State, 365 So. 2d 1102 (Fla. Dist. Ct. App. 1st Dist. 1979); Brown v. State, 312 So. 2d 528 (Fla. Dist. Ct. App. 1st Dist. 1975). 883. Russ v. State, 313 So. 2d 758 (Fla.), certiorari denied, 423 U.S. 924, 96 S. Ct. 267, 46 L. Ed. 2d 250 (1975). 884. Judd v. State, 402 So. 2d 1279 (Fla. Dist. Ct. App. 4th Dist. 1991). 885. Humbert v. State, 933 So. 2d 726 (Fla. Dist. Ct. App. 2d Dist. 2006).

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Collateral Estoppel on the Underlying New Criminal Offense. When, in a probation or community control revocation proceeding, a trial judge finds that the evidence is insufficient to prove the criminal offense asserted as the ground for revocation, the State is not collaterally estopped from trying the defendant for the same criminal offense.886 The probation violation hearing does not put the defendant in jeopardy for the criminal conduct asserted as the basis for revocation.887 In an analogous situation, a prosecution may be instituted even though there is a finding of no probable cause at a preliminary hearing.888 Since a defendant is not placed in jeopardy in a probation revocation hearing, he or she is not entitled to rely on the doctrine of collateral estoppel in the subsequent criminal prosecution.889

886. Green v. State, 463 So. 2d 1139 (Fla. 1985). 887. Green v. State, 463 So. 2d 1139 (Fla. 1985). 888. State v. Hernandez, 217 So. 2d 109 (Fla. 1968). 889. State v. Jones, 425 So. 2d 178 (Fla. Dist. Ct. App. 1st Dist. 1983).

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VI. RESTITUTION Criminal Restitution and Civil Damages Restitution, as encompassed in the restitution statutes of Florida and other states, is a blend of civil and criminal law concepts, but is clearly not intended to be the equivalent of a civil award. For example, it does not necessarily fully compensate the victim. There are no general or punitive damages. Unlike civil recovery, a defendant cannot be required to pay damages beyond his or her ability to pay. A restitution order does not impair a persons right to bring a civil action against the defendant, although there is a credit for amounts paid as restitution and some collateral estoppel effect under the restitution statute. The language and legislative history of the restitution statute make it clear that restitution must be understood as an aspect of criminal law, not as a quasi-civil recovery device.890 Criminal restitution is not the equivalent of civil damages. The criminal sanction of restitution and the civil remedy of damages further distinct societal goals. Unlike civil damages, restitution is a criminal sanction.891 In contrast, a civil claim for damages is a method for the orderly resolution of a dispute between the defendant and the victim. Unlike a civil claim for damages, the purpose of restitution in a criminal case is twofold: (1) to compensate the victim and (2) to serve the rehabilitative, deterrent, and retributive goals of the criminal justice system.892 The restitution order has complications and effects which the ordinary civil money judgment lacks. It necessarily holds incarceration over the head of the defendant like a sword of Damocles to enforce payment in a way that civil judgments cannot.893 Another distinction is that a broader scope of compensation is available to a victim in a criminal court for restitution for lost items of personal property than in a civil action for conversion, where damages are limited to the fair market value of the property at the time of the conversion plus legal interest to the date of the verdict.894 A restitution award in a criminal case may take into consideration that the timing of repayment may cause the victim to suffer additional loss. A final judgment in a civil case speaks instantly; it fixes the amount due and compensates a plaintiff for a delay in payment by including
890. See, State v. Dillon, 292 Or. 172, 637 P.2d 602 (Or. 1981). 891. See, Spivey v. State, 531 So. 2d 965, 967 (Fla. 1988). 892. Kirby v. State, 863 So. 2d 238 (Fla. 2003); see, Glaubius v. State, 688 So. 2d 913, 915 (Fla. 1997); Spivey v. State, 531 So. 2d 965, 967 (Fla. 1988). 893. Helfant v. State, 630 So. 2d 672 (Fla. Dist. Ct. App. 4th Dist. 1994). 894. J.K. v. State, 695 So. 2d 868 (Fla. Dist. Ct. App. 4th Dist. 1997) n3, citing Florida Farm Bureau Cas. Ins. Co. v. Patterson, 611 So. 2d 558, 559-60 (Fla. Dist. Ct. App. 1st Dist. 1992); Cutler v. Pelletier, 507 So. 2d 676 (Fla. Dist. Ct. App. 4th Dist. 1987).

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an award of post-judgment interest. Although a restitution order may be enforced in the same manner as a civil judgment, recovery in this manner is unusual; restitution is more likely to occur when it is made a condition of a criminal sentence.895 Thus, the award of restitution can include installment payments enforceable as a condition of probation a remedy not available in a civil lawsuit.896 Another difference between restitution and civil damages is that the State is a party to the case and, consistent with the twofold purpose of restitution, while the victims wishes concerning restitution are relevant, they are not dispositive it is the judge, not the victim, who must weigh societys competing needs and make the determination of whether or not restitution will be imposed and, if so, to what extent.897 It is for this reason that a defendant cannot foreclose restitution in a criminal case through execution of a release of liability or satisfaction of payment by the victim. Criminal restitution is rehabilitative because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty affects the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine.898 Restitution is also retributive, particularly in cases of theft or fraudulent conduct, in that it seeks to take ill-gotten gains from the defendant. It is not permissible to deny restitution because the victim intends to file, or has actually filed, a civil lawsuit for the same loss.899 It is similarly impermissible to deny restitution after a jury trial resulting in conviction because the sentencing court thinks that the victim gambled in a speculative investment.900

895. J.K. v. State, 695 So. 2d 868, 869 (Fla. Dist. Ct. App. 4th Dist. 1997). 896. See, State v. Hitchmon, 678 So. 2d 460, 462 (Fla. Dist. Ct. App. 3d Dist. 1996). 897. Banks v. State, 732 So. 2d 1065, 1069 (Fla. 1999). 898. See, People v. Bernal, 101 Cal. App. 4th 155, 123 Cal. Rptr. 2d 622 (Cal. Ct. App. 2002), as cited in Kirby v. State, 863 So. 2d 238 (Fla. 2003). 899. State v. Hitchmon, 678 So. 2d 460 (Fla. Dist. Ct. App. 3d Dist. 1996). 900. State v. Cohn, 51 So. 3d 610 (Fla. Dist. Ct. App. 3d Dist. 2011).

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Restitution Imposed After Evidentiary Hearing If a defendant objects to he amount of restitution requested by the State, that defendant is entitled to receive a hearing to establish the amount by competent evidence.901 This is so even when the defendant initially agreed to the amount of restitution.902 Restitution is an integral part of sentencing: A defendant has a constitutional right to be present at any hearing to determine if and to what extent he or she will be ordered to pay restitution to a victim, although the defendant may be deemed to have waived this right when he or she voluntarily absents himself or herself from the proceedings without leave of court.903 In order for a defendant to voluntarily absent himself or herself from a hearing, the defendant must have had notice of the hearing and intentionally avoided it or left the court during the proceeding.904 Any finding of waiver or absence by the defendant must, however, be supported by competent, substantial evidence.905 Even when the Crimes Compensation Trust Fund seeks restitution, a defendant is entitled to an evidentiary hearing if he or she objects. Section 960.17, F.S., provides that any payment of benefits to a victim under chapter 960 shall create an obligation of restitution in accordance with section 775.089. In turn, section 775.089(1)(a) provides that Payment of an award by the Crimes Compensation Trust Fund shall create an order of restitution to the Crimes Compensation Trust Fund, unless specifically waived in accordance with subparagraph (b)1. However, section 775.089(7) states that Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. Thus, section 775.089(7) contemplates an evidentiary hearing when there is a dispute as to restitution.906 This is so even in cases where the defendant is sentenced to incarceration and restitution is imposed as a lien.907 Evidentiary Burdens Any dispute as to the proper amount or type of restitution must be resolved by the court by the preponderance of the evidence. The burden of demonstrating both causation and the amount

901. See, Vanlieu v. State, 630 So. 2d 1218 (Fla. Dist. Ct. App. 5th Dist. 1994); Maples v. State, 397 So. 2d 1146 (Fla. Dist. Ct. App. 5th Dist. 1981) (restitution to victim as condition of probation could not be properly imposed without first giving defendant a hearing and opportunity to be heard). 902. Molter v. State, 892 So. 2d 1115 (Fla. Dist. Ct. App. 2d Dist. 2004). 903. Papageorge v. State, 710 So. 2d 53 (Fla. Dist. Ct. App. 4th Dist. 1998). 904. Baker v. State, 979 So. 2d 453 (Fla. Dist. Ct. App. 2d Dist. 2008). 905. See, e.g., Thar v. State, 8 So. 3d 1204 (Fla. Dist. Ct. App. 2d Dist. 2009); M.W.G. v. State, 945 So. 2d 597 (Fla. Dist. Ct. App. 2d Dist. 2006). 906. Strickland v. State, 746 So. 2d 1189, 1190 (Fla. Dist. Ct. App. 2d Dist. 1999). 907. Harris v. State, 911 So. 2d 869 (Fla. Dist. Ct. App. 2d Dist. 2005).

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of the loss sustained by a victim as a result of the offense is on the state attorney, and the State must establish both by a preponderance of the evidence. The burden of demonstrating the present financial resources and the absence of potential future financial resources of the defendant and the financial needs of the defendant and his or her dependents is on the defendant. The burden of demonstrating such other matters as the court deems appropriate is upon the party designated by the court as justice requires.908 The restitution statute, section 775.089, is also subject to the rule of lenity of section 775.021(1).909 The amount of restitution must be based on more than speculation; it requires competent, substantial evidence.910 It is not enough, for example, to show merely that a business suffered losses contemporaneously with employee theft and to extrapolate from that the restitution amount owing.911 That is why convicted cattle rustlers were not required to make restitution for all of a victim's missing cattle, absent proof they had taken them all.912 The State also may not make offensive use of collateral estoppel to prove the amount of restitution owed with a civil judgment as that doctrine is unavailable in Florida altogether.913 Causation Section 775.089(1)(a) authorizes restitution to the victim of a crime for (1) damage or loss caused directly or indirectly by the defendants offense, and (2) damage or loss related to the defendants criminal episode. This means that, to order restitution under section 775.089, the court must find that the loss or damage is causally connected to the offense and bears a significant relationship to the offense. Further, under the statute, the State must establish those factors by a preponderance of the evidence.914 The causation that must be shown in order for the court to find restitution owing and issue an order of restitution consists of two distinct subelements. Before a defendant can be assessed

908. Sec. 775.089(7), F.S.; Schuette v. State, 822 So. 2d 1275, 1278-79 (Fla. 2002). 909. Helfant v. State, 630 So. 2d 672 (Fla. Dist. Ct. App. 4th Dist. 1994). 910. See Glaubius v. State, 688 So. 2d 913, 916 (Fla. 1997); State v. Childers, 979 So. 2d 412, 414 (Fla. Dist. Ct. App. 1st Dist. 2008). 911. See, Strickland v. State, 685 So. 2d 1365, 1366 (Fla. Dist. Ct. App. 2d Dist. 1996). 912. See, Crosby v. State, 637 So. 2d 341, 343 (Fla. Dist. Ct. App. 2d Dist. 1994); also, Morel v. State, 547 So. 2d 341, 342 (Fla. Dist. Ct. App. 2d Dist. 1989) (holding that the evidence established that some, but not all, shortages were the result of the defendants theft and limiting restitution accordingly). 913. Ritch v. State, 14 So. 3d 1104 (Fla. Dist. Ct. App. 1st Dist. 2009). 914. Glaubius v. State, 688 So. 2d 913 (Fla. 1997); see Osteen v. State, 616 So. 2d 1215 (Fla. Dist. Ct. App. 5th Dist. 1993).

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restitution upon conviction of a crime that includes an element of causation, the State must prove that the defendants conduct was (1) the cause in fact and (2) the legal cause (often called proximate cause) of the relevant harm. In order to establish that a defendants conduct was the cause in fact of a particular harm, the State usually must demonstrate that but for the defendants conduct, the harm would not have occurred. A defendant can rebut this showing by demonstrating that the harm would have occurred in any event, regardless of the defendants conduct. In addition to establishing cause-in-fact causation, the State must also demonstrate that the defendants conduct was the proximate cause of the particular harm. Florida courts have considered two basic questions in determining proximate cause: (1) whether the prohibited result of the defendants conduct is beyond the scope of any fair assessment of the danger created by the defendants conduct, and (2) whether it would be otherwise unjust, based on fairness and policy considerations, to hold the defendant criminally responsible for the prohibited result.915 Stated otherwise, the damage for which a trial court orders restitution need not be directly encompassed within the legal elements of an offense, but it must bear a significant relationship to the convicted offense. In the context of restitution, the significant relationship test works in conjunction with the causal relationship test set forth in section 775.089(1)(a). The significant relationship test is similar, if not identical, to the proximate causation required in tort between a tortious act and the resulting damage and equates to the requirement of proximate causation between the criminal act and the resulting damages. In other words, the foreseeability of a cost without more, however, is insufficient to make an item of loss compensable as restitution under the restitution statute; there must be a more immediate connection of a loss to the charged criminal conduct for the significant relationship test to be met.916 Thus, the victim should be entitled to recover damages through criminal restitution if the causal connection between the criminal offense and the damage is comparable to that proximate causation which would allow the victim to relate comparable damages to a wrongful act in tort.917 The application of the tests of causation may be illustrated in cases of driving on a suspended license and leaving the scene of an accident: The trial court is not required to order restitution for damages arising out of an automobile accident based on the underlying offense of driving with a suspended license where the State does not present any evidence of a causal relationship between the act of driving without a license and the accident that resulted in damages
915. See, Schuette v. State, 822 So. 2d 1275 (Fla. 2002); see also, J.S.H. v. State, 472 So. 2d 737 (Fla. 1985); Moton v. State, 554 So. 2d 657 (Fla. Dist. Ct. App. 1st Dist. 1989); Denson v. State, 556 So. 2d 823 (Fla. Dist. Ct. App. 1st Dist. 1990). 916. J.S. v. State, 717 So. 2d 175 (Fla. Dist. Ct. App. 4th Dist. 1998). 917. Arling v. State, 559 So. 2d 1274 (Fla. Dist. Ct. App. 2d Dist. 1990); Schuette v. State, 822 So. 2d 1275 (Fla. 2002); see, e.g., Lawson v. State, 498 So. 2d 541 (Fla. Dist. Ct. App. 1st Dist. 1987), review denied, 506 So. 2d 1042 (Fla. 1987) (pursuant to 948.03(1)(e), the trial court properly ordered defendant to pay $150.00 restitution to defendants victim, where defendant pled nolo contendere to burglary and sexual battery in exchange for the States agreement to nolle prosse a grand theft charge involving the $150.00 that defendant took from victims purse during the burglary incident, and the $150.00 bore a significant relationship to the burglary to which defendant pled nolo contendere).

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or loss.918 A person whose only criminal offense is leaving the scene of an accident involving injury or property damage may not be assessed restitution for the preceding collision where the injury or damage was not caused by the defendants leaving the scene, because the criminal episode does not commence until the defendant elects an affirmative course of action in violation of the criminal laws of the State of Florida (leaving the scene) after the defendant becomes aware that personal injury or property damage has occurred in the collision.919 The legislature has changed this rule, however, as to cases of leaving the scene of a crash where injury or death resulted: Notwithstanding section 775.089(1)(a), if the driver of a vehicle involved in a crash occurring on public or private property that results in injury or the death of any person leaves the scene of the crash before he or she fulfills the requirements of section 316.062, the sentencing court is required to order the driver to make restitution to the victim for any damage or loss unless the court finds clear and compelling reasons not to order restitution.920 Another example is the case of the prosecution of a passenger in a stolen car: Where a defendant who was caught while a passenger in a stolen car is convicted of trespass to a conveyance, and there is no evidence presented that the defendant was responsible for theft of, or damage to, the vehicle or its contents or that the defendant otherwise directly or indirectly caused the damage or loss, the defendant may not be required to pay restitution for such loss or damage.921 Similarly, a defendant may not be required to pay restitution to the victim of one crime as a condition of probation or community control of another where there is no significant relationship between the two crimes.922 A defendant may also not be required to pay restitution for damages or loss unrelated to the crime for which he or she is being sentenced upon revocation of his or her probation or community control, but instead related to a crime that was one of the bases of the revocation.923

918. Schuette v. State, 822 So. 2d 1275 (Fla. 2002). 919. Fresneda v. State, 347 So. 2d 1021 (Fla. 1977); Triplett v. State, 709 So. 2d 107 (Fla. Dist. Ct. App. 5th Dist. 1998); State v. Williams, 520 So. 2d 276 (Fla. 1988). 920. Sec. 316.027(1)(c), F.S. 921. See, S.M. v. State, 881 So. 2d 78 (Fla. Dist. Ct. App. 5th Dist. 2004); S.E.G. v. State, 618 So. 2d 345 (Fla. Dist. Ct. App. 2d Dist. 1993). 922. Small v. State, 587 So. 2d 597 (Fla. Dist. Ct. App. 5th Dist. 1991) (error to require payment of restitution in past worthless check cases as condition of probation in current worthless check case); OSteen v. State, 547 So. 2d 235 (Fla. Dist. Ct. App. 1st Dist. 1989) (error to order restitution to victim in count one as condition of probation in count two, involving a different victim). 923. McMonagle v. State, 696 So. 2d 830 (Fla. Dist. Ct. App. 2d Dist. 1997) (error to order defendant on probation for unlawful use of credit cards to pay restitution for grand theft which formed one of the bases for revocation of probation).

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The rules of causation in matters of criminal restitution do not countenance insuring against poor judgment or ineptitude. Where, for example, a county elected official is convicted bribery and unlawful compensation or reward for official behavior in regard to a scheme in which the county purchased certain property which was later sold at a loss due to the countys poor business judgment, the loss is not caused by the defendants offenses and the county is therefore not entitled to restitution for the loss as a victim of the officials criminal acts.924 Determination of Amount of Restitution The trial court is statutorily responsible for determining the amount of restitution. Determination of the amount of restitution cannot be delegated to the Department of Corrections, the defendants probation officer, or to anyone else.925 Determination of the restitution payment schedule also cannot be so delegated.926 In setting a monetary amount for restitution, a court is not limited to the damage calculation that would be recoverable in a civil action, but may exercise its discretion as required to further the purposes of restitution.927 The restitution statute was adopted for the benefit of crime victims, and is intended to provide an additional alternative to reimburse a crime victim, over and above traditional remedies like a civil lawsuit.928 In any event, recovery of costs may not exceed the damages directly caused by the criminal conduct.929 Dollar Value of Crime. Restitution is not limited by the dollar value of the crime of conviction. The court may assess an amount of restitution equal to the actual loss suffered by the victim or aggrieved party, even if in an amount greater than the dollar limit of the charged offense for which a defendant is adjudicated guilty, unless there is a plea agreement to the contrary.930 A

924. State v. Childers, 979 So. 2d 412 (Fla. Dist. Ct. App. 1st Dist. 2008). 925. Gilbert v. State, 600 So. 2d 557 (Fla. Dist. Ct. App. 5th Dist. 1992); Shaddix v. State, 599 So. 2d 269 (Fla. Dist. Ct. App. 1st Dist. 1992); Reynolds v. State, 598 So. 2d 188 (Fla. Dist. Ct. App. 1st Dist. 1992); Snyder v. State, 597 So. 2d 384 (Fla. Dist. Ct. App. 2d Dist. 1992); Mendanos v. State, 589 So. 2d 386 (Fla. Dist. Ct. App. 1st Dist. 1991); Weckerle v. State, 579 So. 2d 742 (Fla. Dist. Ct. App. 4th Dist. 1991); Williams v. State, 553 So. 2d 797 (Fla. Dist. Ct. App. 5th Dist. 1989); Perry v. State, 513 So. 2d 254 Fla. Dist. Ct. App. 2d Dist. 1987); Shipley v. State, 512 So. 2d 1135 (Fla. Dist. Ct. App. 2d Dist. 1987). 926. Guinn v. State, 652 So. 2d 902 (Fla. Dist. Ct. App. 2d Dist. 1995). 927. J.K. v. State, 695 So. 2d 868 (Fla. Dist. Ct. App. 4th Dist. 1997). 928. State v. Hitchman, 678 So. 2d 460 (Fla. Dist. Ct. App. 3d Dist. 1996). 929. See, Boulais v. State, 706 So. 2d 365, 366 (Fla. Dist. Ct. App. 1st Dist. 1998). 930. Hebert v. State, 614 So. 2d 493 (Fla. 1993) (defendant ordered to pay $2,530 restitution even though pleading to petit theft), effectively overruling Perralta v. State, 596 So. 2d 1220, 1992 (Fla. Dist. Ct. App. 5th Dist. 1992); J.O.S. v. State, 689 So. 2d 1061 (Fla. 1997).

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contrary finding would in effect require restitution amounts to be proven beyond a reasonable doubt at the criminal proceedings where the defendants alleged offense is defined by reference to a dollar amount. Such a position would conflict with section 775.089(7), F.S., which states that the burden of proof in establishing the amount of restitution is by a preponderance of the evidence.931 Insurance Deductible. Restitution is not limited to the victims insurance deductible.932 Fair Market Value. Fair market value, rather than replacement value, is the appropriate measure of compensation in calculating restitution in criminal cases absent special circumstances showing that fair market value would not adequately compensate the victim or otherwise serve the purposes of restitution.933 In cases of theft of property, fair market value at the time of the theft is a well established measure for restitution.934 Fair market value is generally defined as the amount at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell.935 Where, for example, restitution is for a 3-4 year old computer that was inoperable when returned to the owner, and the owner replaced it by purchasing a new computer, the correct measure of restitution would be the fair market value of the stolen computer, not the cost of replacing it.936 Where restitution for commodities such as machinery, as where the manufacturer makes the commodities for the victim who sells the them at wholesale and retail prices and the loss is due to theft from the manufacturer, the trial court can consider three markets the market in which the victim purchased the commodities, the market in which the victim sold at wholesale, and the market at which the victim sold at retail.937 In considering the retail price, the court can also consider the discount market if there is evidence that customers had offered to purchase the commodities from the victim at discounted prices at or near the time of the loss.938 Once it is determined that the victims loss is equal to the fair market value, and that restitution in such amount will adequately compensate the victim and promote the purpose of restitution, the amount of restitution should then be established through direct

931. Sec. 775.089(7), F.S. 932. M.E.I. v. State, 525 So. 2d 467 (Fla. Dist. Ct. App. 1st Dist. 1988). 933. I.M. v. State, 917 So. 2d 927 (Fla. Dist. Ct. App. 1st Dist. 2005). 934. Garrison v. State, 553 So. 2d 1377 (Fla. Dist. Ct. App. 2d Dist. 1989); Abbott v. State, 543 So. 2d 411 (Fla. Dist. Ct. App. 1st Dist. 1989); Norman v. State, 468 So. 2d 1063 (Fla. Dist. Ct. App. 1st Dist.), review denied, 479 So. 2d 118 (Fla. 1985). 935. Blacks L. Dict. 537 (5th Ed. 1979). 936. J.F.H. v. State, 849 So. 2d 1151 (Fla. Dist. Ct. App. 5th Dist. 2003). 937. Garrison v. State, 553 So. 2d 1377 (Fla. Dist. Ct. App. 2d Dist. 1989) (stolen trenching machines). 938. J.C. v. State, 3 So. 3d 346 (Fla. Dist. Ct. App. 2d Dist. 2008).

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testimony on the fair market value of the item at the time of the offense, or through evidence of (1) the original cost, (2) the manner in which the item was used, (3) the general condition and quality of the item at the time of loss or damage, and (4) the percentage of depreciation.939 Purchase Price and Replacement Cost. Unlike civil damages, restitution is a criminal sanction. The purpose of restitution is not only to compensate the victim, but also to serve the rehabilitative, deterrent, and retributive goals of the criminal justice system. A trial court is best able to determine how imposing restitution may best serve these goals in each case, and the court is free to reject fair market value and pursue any other measure of loss to the victim that will accomplish the purposes of restitution.940 In cases of theft of inventory, for example, a victim, through the State, should be given the opportunity to prove that the stolen inventory had a greater value than merely its fair market value replacement cost.941 In setting the amount of restitution, the trial court may use the fair market value of the property or, if that is difficult to determine or would not otherwise adequately compensate the victim, it may, in arriving at a fair amount, take into account any appropriate factor which would adequately compensate the victim for his or her loss and further the purposes of restitution.942 While it is true that in cases dealing with the determination of value as an element of a crime, fair market value at the time of the offense is the appropriate standard, the same rigidities of proof do not exist in cases dealing with the determination of value for purposes of restitution. There are instances when the market value of property would not adequately reflect the victims loss, particularly the loss of a family heirloom.943 Note, also, that where the insurer provides coverage based on replacement cost, the victim for purposes of restitution is the insurer, except for the applicable deductible, and it is not an abuse of discretion to base an order of restitution on replacement cost.944

939. Hagan v. State, 746 So. 2d 1241 (Fla. Dist. Ct. App. 1st Dist. 1999); Domaceti v. State, 616 So. 2d 1148 (Fla. Dist. Ct. App. 4th Dist. 1993) (restitution for stolen computer limited to replacement cost in light of victims testimony that replacement cost of stolen computer was now less than half original cost, given technological advancements in new computers); Mansingh v. State, 588 So. 2d 636, 638 (Fla. Dist. Ct. App. 1st Dist. 1991) (on rehearing). 940. Dickens v. State, 556 So. 2d 782 (Fla. Dist. Ct. App. 2d Dist. 1990) (no abuse of discretion in ordering restitution to the victim of grand theft motor vehicle in the amount of the $1,000 purchase price of the car, plus the amount of $600 the victim had paid for repairs and improvements prior to the theft, and $300 cost of removing car from bottom of bay). 941. Garrison v. State, 553 So. 2d 1377 (Fla. Dist. Ct. App. 2d Dist. 1989) (trial court could reasonably conclude that defendant effectively stole 13 retail sales from victim and that victim was entitled to be reimbursed for those 13 sales at fair market value established by retail price). 942. State v. Hawthorne, 573 So. 2d 330 (Fla. 1991). 943. A.G. v. State, 718 So. 2d 854 (Fla. Dist. Ct. App. 1st Dist. 1998). 944. Dixon v. State, 601 So. 2d 606 (Fla. Dist. Ct. App. 5th Dist. 1992) (award of restitution for replacement cost of two-year-old stereo equipment).

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Property in Pawn. Where restitution is owed for property stolen, and the victim has not obtained the pawned items and the items are still being held by the pawn shop, then the cost of getting the items out of pawn should be imposed as restitution. If the pawn shop did not hold the items and the victim never recovered them, then either fair market value or purchase price and replacement cost should be the measure of restitution.945 Set-Offs and Other Factors That Reduce the Amount Owed. The legislative goal of restitution is to make the victim whole again, but the amount of restitution must be proper in the circumstances. The court must make a finding of the sum actually due with appropriate allowances made for set offs and other factors which could rightly reduce the total amount. For example, depreciation of the property stolen or damaged is a factor that the trial court can consider in establishing the amount of restitution, although there must be sufficient evidence in the record to support application of a depreciation rate.946 The amount of restitution should be reduced by the value of the property returned.947 In order to prevent a windfall to the victim, section 775.089(8) provides that, while an order of restitution will not bar any subsequent civil remedy or recovery, the amount of such restitution must be set off against any subsequent independent civil recovery.948 A criminal restitution judgment can be offset against a civil judgement award so long as the restitution is owed to the same person or corporation against whom the criminal defendant obtained the civil judgment.949 It is not error, however, to order restitution to a victim even if the victim has recovered from an insurer.950 There is also no legal impediment to the courts reducing the amount of restitution owed to reflect the relative culpability or proportionate fault of the victim, as is the practice in other jurisdictions.951

945. Maurer v. State, 939 So. 2d 234 (Fla. Dist. Ct. App. 5th Dist. 2006). 946. Kiefer v. State, 909 So. 2d 572 (Fla. Dist. Ct. App. 5th Dist. 2005) (trial court could not arbitrarily and without supporting evidence apply 15% depreciation rate in determining fair market value of stolen property). 947. Bowman v. State, 698 So. 2d 615 (Fla. Dist. Ct. App. 2d Dist. 1997); M.E.I. v. State, 525 So. 2d 467 (Fla. Dist. Ct. App. 1st Dist. 1988). 948. Sec. 775.089(8), F.S.; Weinstein v. State, 745 So. 2d 1085, 1086 (Fla. Dist. Ct. App. 4th Dist. 1999) (the purpose of the statute is clear, to prevent the victim from forcing the defendant to pay twice); Branker v. State, 650 So. 2d 195 (Fla. Dist. Ct. App. 4th Dist. 1995) (in determining amount of the award of restitution to victim, the court should take into account any sum received by victim from his or her insurer; the amount of restitution awarded to victim should be reduced by that amount to prevent windfall profit to victim at defendants expense); see also, Malone v. State, 632 So. 2d 1140 (Fla. Dist. Ct. App. 4th Dist. 1994) (trial court erred when, in addition to the amount of the victims insurance deductible, it ordered appellant to pay victim original cost of video camera less the amount of replacement proceeds received from insurer; since amount paid by the insurer equaled fair market value of videocamera at time of theft, trial court should have awarded victim a sum equal to his insurance deductible). 949. Schummer v. State, 46 So. 3d 1229 (Fla. Ct. App. 1st Dist. 2010). 950. Jarawdi v. State, 521 So. 2d 261 (Fla. Dist. Ct. App. 2d Dist. 1988). 951. See, People v. Crossley, 134 Misc. 2d 742, 512 N.Y.S. 2d 756 (Dist. Ct. New York 1987).

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Sufficiency of the Evidence The issue in determining the amount of restitution is not the measure of benefit received by the defendant, but the loss sustained by the victim.952 There is no rigid standard of proof for restitution cases. The trial court has broad discretion to take into account any factor in arriving at a fair amount that will compensate the victim for his or her loss and further the purposes of restitution.953 The degree of proof normally introduced in a restitution hearing will not be as extensive as in a civil trial. A requirement to do so would convert a restitution hearing into a full-blown civil trial for damages and require the victim to do what section 775.089 seeks to avoid in part, i.e., forcing the victims to file civil actions against those who victimize them.954 Section 775.089(7) requires that the State demonstrate the amount of loss sustained by a victim by a preponderance of the evidence. Such evidence must be established through more than mere speculation; it must be based on competent evidence.955 The State can meet its burden by presenting testimony of a witness with knowledge of the amount of loss or damage and repairs, or by presenting uncontested documentary evidence.956 While the owner of the property is sought is generally determined to be competent to testify as to the value of the lost property,957 basic fairness dictates that the owner should be required, at a minimum, to identify what property has

952. Garrison v. State, 553 So.2d 1377 (Fla. Dist. Ct. App. 2d Dist. 1989). 953. Hawthorne v. State, 573 So. 2d 330 (Fla. Dist. Ct. App. 2d Dist. 1989); Hercule v. State, 655 So. 2d 1256 (Fla. Dist. Ct. App. 3d Dist. 1995). 954. Montalvo v. State, 705 So. 2d 984 (Fla. Dist. Ct. App. 3d Dist. 1998) (proof of sale of cruise tickets but for felonious conduct not required for restitution). 955. See, e.g., Williams v. State, 645 So. 2d 594 (Fla. Dist. Ct. App. 2d Dist. 1994) (State has not met its burden of demonstrating loss by preponderance of evidence where victims testimony is sole basis for determination and no documentary evidence is presented); Glaubius v. State, 688 So. 2d 913 (Fla. 1997). 956. See, Gonzalez v. State, 948 So. 2d 892 (Fla. Dist. Ct. App. 5th Dist. 2007) (testimony of victim as to the identity and value of items stolen sufficient to establish restitution amount); Aboyoun v. State, 842 So. 2d 238, 240 (Fla. Dist. Ct. App. 2d Dist. 2003) (fair market value of stolen goods established by victims testimony as to purchase price of two gold rings and a pair of sneakers, and his opinion as to value of a stereo and two gold bracelets, the latter of which was based on his experience shopping for and purchasing gold jewelry); Bakos v. State, 698 So. 2d 943 (Fla. Dist. Ct. App. 4th Dist. 1997) (victims testimony that her stolen property included a gold herringbone bracelet and two necklaces that were purchased ten years prior to burglary for $100 apiece and a pair of heart-shaped earrings had been purchased by her husband for $180 was sufficient for value purposes to sustain restitution award); Williams v. State, 850 So. 2d 627 (Fla. Dist. Ct. App. 2d Dist. 2003). 957. State v. Hawthorne, 573 So. 2d 330, 332 (Fla. 1991).

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been lost so that the trier of fact may reasonably determine the value of the specific items for which restitution is sought.958 Hearsay. The State burden of proving the amount of restitution cannot be met, in the face of objection, by assertions of the state attorney.959 Hearsay evidence may be used to determine the amount of restitution if defense counsel fails to properly object to the evidence.960 Crimes Compensation Trust Fund Payment. Restitution cannot be based solely on a report and payment record from the Crimes Compensation Trust Fund showing payment to the victim for undescribed medical and mental health treatment, because this, standing alone, does not constitute competent evidence that the victims loss is causally connected to and has a significant relationship to the defendants offense.961 Estimates. A repair shop estimate is sufficient to support an amount of restitution ordered by the trial court if it is a fair valuation of the damage caused by the defendant and is authenticated by a competent witness.962 Written opinions or estimates may qualify as a business record exception to the hearsay rule under section 90.803(6) if production of estimates is a regularly conducted business activity of the preparer. To lay a proper foundation for the business record exception, the proponent has to call a witness who can show that each of the foundation requirements set out in the statute is present. Alternatively, section 90.803(6)(c) provides that the proponent can also establish the foundation by certification or declaration.963 In some cases, where the passage of time and other occurrences have resulted in the inability to produce documentation of actual costs, the amount of restitution may be established

958. See, Gonzalez v. State, 948 So. 2d 892 (Fla. Dist. Ct. App. 5th Dist. 2007) (victim unable to adequately identify and value stolen items and could not remember everything that was stolen). 959. C.S. v. State, 617 So. 2d 863 (Fla. Dist. Ct. App. 1st Dist. 1993). 960. Williams v. State, 850 So. 2d 627 (Fla. Dist. Ct. App. 2d Dist. 2003); Branker v. State, 650 So. 2d 195 (Fla. Dist. Ct. App. 4th Dist. 1995) (experience in home speculation cannot substitute for lack of personal knowledge of property and does not place him in position to testify as to items condition and value at time of theft; testimony as to value entirely from estimates received from others and not from personal knowledge is hearsay); Strickland v. State, 610 So. 2d 705 (Fla. Dist. Ct. App. 4th Dist. 1992) (trial court may not rely on unsworn evidence); see also, Langston v. State, 616 So. 2d 597 (Fla. Dist. Ct. App. 4th Dist.) (trial court has affirmative duty to conduct restitution hearing to determine credibility of witnesses and may not rely upon written statements from witnesses in lieu of hearing), review denied, 626 So. 2d 206 (Fla. 1993); Thomas v. State, 581 So. 2d 992 (Fla. Dist. Ct. App. 2d Dist. 1991). 961. Payne v. State, 873 So. 2d 621 (Fla. Dist. Ct. App. 2d Dist. 2004). 962. Quigley v. State, 620 So. 2d 1010 (Fla. Dist. Ct. App. 3d Dist. 1992) (repair shop estimate is fair valuation of damage to airboat caused by defendants theft of airboat); J.S.H. v. State, 472 So. 2d 737 (Fla. 1985) (repair shop estimate of cost to restore boat damaged by juvenile accepted as proof of damage to boat). 963. See, Butler v. State, 970 So. 2d 919 (Fla. Dist. Ct. App. 1st Dist. 2007).

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through estimates. An example of such a situation is the case of Martin J. Smith. In 1999, Smith was charged by indictment with the first-degree murder of Stephen Burke after Smith cut Burkes throat with a knife. Six years later, on April 25, 2005, Smith pled guilty to the lesser charge of second-degree murder and was sentenced to forty years in prison. In the intervening six years, the victims body had been sent to his native England for burial, his mother had died, and the survivors of the victim could not locate expense receipts for the shipment of the body and for the funeral. The States use of an affidavit from the victims brother as the sole basis to prove these expenses was overturned by the appellate court on the basis that the affidavit did not indicate personal knowledge and so was hearsay. The appellate court, however, remanded the case for a new restitution hearing and, in consideration of the time that had elapsed since the death of the victim and the time of sentencing, permitted the State to introduce affidavits from an airline and a funeral home establishing the estimated costs for transportation and funeral services in 1999, also ruling that the State need not provide documentation or receipts showing actual costs.964 Expert Testimony. It is not necessary for the State or the victim to provide expert appraisal testimony to determine the value of personal property that is lost or damaged.965 It may, for example, be necessary to put on expert testimony to prove necessity and cost of repair or replacement in cases of restitution arising from substandard work. Whenever expert testimony is used, however, it is imperative that courts distinguish between a witness merely stating what someone else has said the damages might be and an individual who is qualified to provide an expert opinion of the fair market value of the cost of the repairs to the damaged property, or the replacement value if the property cannot be repaired.966 Insurance Claims. The State may satisfy its burden through the testimony of a claims adjuster for an insurance company who was responsible for processing the victims claim for the loss at issue and has personal knowledge of the claim and its payment, in place of the victims testimony as to his or her own loss.967 Medical Bills. Testimony linking medical bills to the victims injuries is sufficient to show the loss related to the defendants offense.968 While medical bills may be introduced without producing the records custodian to testify,969 explanation of medical benefits (EOMB)

964. Smith v. State, 941 So. 2d 479 (Fla. Ct. App. 3d Dist. 2006). 965. Hercule v. State, 655 So. 2d 1256, 1257 (Fla. Dist. Ct. App. 3d Dist. 1995). 966. See, T.J.N. v. State, 977 So. 2d 770 (Fla. Dist. Ct. App. 2d Dist. 2008). 967. Cyrus v. State, 712 So. 2d 811 (Fla. Dist. Ct. App. 4th Dist. 1998). 968. A.J. v. State, 677 So. 2d 935, 938 (Fla. Dist. Ct. App. 4th Dist. 1996). 969. A.J. v. State, 677 So. 2d 935, 938 (Fla. Dist. Ct. App. 4th Dist. 1996).

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forms, which are not bills, are hearsay and are inadmissible at a restitution hearing as evidence of the victims medical costs without production of the records custodian to testify.970 Opinions. Mere opinions of victims as to the value of their loss is usually insufficient to establish value.971 An exception to this rule applies to cases where a property owner has personal knowledge of the property damaged by the defendants criminal conduct: An owner of property is generally considered to be qualified to testify as to the value of his or her property at the time of loss or damage.972 The apparent rationale for this rule is that an owner necessarily knows something about the quality, cost, and condition of the property. Mere ownership, however, is insufficient, and the witness must have personal knowledge of the property,973 and have a sufficient predicate upon which to base his or her opinion on the value of items stolen.974 Catalog prices alone are insufficient to establish a sufficient predicate.975 The witness must also be competent to address the Hawthorne factors of determining value at the time of the offense of (1) original market cost; (2) the manner in which the item was used; (3) the general condition and quality of the item; and (4) the percentage of depreciation.976 Presentence Investigation Report. To establish the proper amount for an award of lost wages, a presentencing investigation report (PSI) may suffice, unless the defendant objects to the amount set forth in the report or otherwise raises a bona fide challenge to the PSI.977

970. M.J.T. v. State, 927 So. 2d 1077 (Fla. Dist. Ct. App. 2d Dist. 2006). 971. Crowley v. State, 710 So. 2d 750 (Fla. Dist. Ct. App. 4th Dist. 1998) (where the only evidence of medical expenses is the testimony of the victim that he or she had incurred expenses and would incur expenses in the future, and the victim does not submit copies of his or her bills, the evidence is insufficient proof to support an award of restitution; if the victim does submit copies of such bills, the testimony of the victim is sufficient); Peters v. State, 555 So. 2d 450 (Fla. Dist. Ct. App. 4th Dist. 1990); Abbott v. State, 543 So. 2d 411 (Fla. Dist. Ct. App. 1st Dist. 1989). 972. State v. Hawthorne, 573 So. 2d 330, 333 (Fla. Dist. Ct. App. 2d Dist. 1989), n. 6; see also, Vickers v. State, 303 So. 2d 700 (Fla. Dist. Ct. App. 1st Dist. 1974), cert. denied, 315 So. 2d 187 (Fla. 1975). 973. See, Gilbert v. State, 817 So. 2d 980 (Fla. Dist. Ct. App. 4th Dist. 2002) (determination of market value of stolen property to withstand a motion for judgment of acquittal). 974. Peters v. State, 555 So. 2d 450 (Fla. Dist. Ct. App. 4th Dist. 1990). 975. Fitzgerald v. State, 952 So. 2d 1250, 1251 (Fla. Dist. Ct. App. 4th Dist. 2007). 976. State v. Hawthorne, 573 So. 2d 330 (Fla. 1991). 977. Vanlieu v. State, 630 So. 2d 1218 (Fla. Dist. Ct. App. 5th Dist. 1994); Loos v. State, 585 So. 2d 1181 (Fla. Dist. Ct. App. 5th Dist. 1981); Fleming v. State, 547 So. 2d 668 (Fla. Dist. Ct. App. 1st Dist. 1989): Flanagan v. State, 536 So. 2d 275 (Fla. Dist. Ct. App. 2d Dist. 1988).

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Repair Bills. The State may meet its burden of proving restitution through the introduction through a custodian of records of repair bills kept in the regular course of business.978 Sale Price. Market value may be equated with retail price where restitution arises from theft from a retail business and salability at the retail price is established.979 Ability to Pay. Just as the determination of the amount of restitution is a nondelegable judicial responsibility, so is the determination of the defendants ability to pay.980 While sentencing courts are encouraged to establish that there is a realistic expectation that the defendant will be able to pay before imposing restitution at sentencing, they are not required by law to do so.981 In 1995, the Legislature amended the restitution statute to require consideration of a defendants financial resources only at the time of enforcement, not imposition.982 The law now provides that the criminal court, at the time of enforcement of the restitution order, shall consider the financial resources of the defendant, the present and potential future financial needs and earning ability of the defendant and his or her dependents, and such other factors which it deems appropriate.983 Although sentencing courts are not required to make findings as to ability to pay before imposing restitution, the failure to do so can lead to difficulty in subsequent attempts to enforce the courts restitution order against a defendant who had no realistic ability to pay to begin with. Ability to pay means the overall capability of the defendant to reimburse the victim for loss or damage caused by the defendants criminal conduct. The ability of a defendant to pay restitution is, essentially, a measure of the defendants wealth, earning capacity, income and other financial and material resources from the present to the end of the supervision period. In determining ability to pay, the court must consider the financial resources of the defendant, the present and potential future financial needs and earning ability of the defendant and his or her dependents, and such other factors which it deems appropriate when determining the amount of restitution.984 The amount and manner of restitution imposed must be reasonable in light of the defendants ability to pay. Judges are given wide latitude in determining what is reasonable

978. Davis v. State, 707 So. 2d 842 (Fla. Dist. Ct. App. 2d Dist. 1998). 979. Broecker v. State, 696 So. 2d 869 (Fla. Dist. Ct. App. 2d Dist. 1997) (sales price of $21,000 set on a motor home was sufficient to prove value of loss sustained for purposes of restitution); see, Emshwiller v. State, 462 So. 2d 457 (Fla. 1985); Negron v. State, 306 So. 2d 104, 108-09 (Fla.1975). 980. Ballance v. State, 447 So. 2d 974 (Fla. Dist. Ct. App. 1st Dist. 1984). 981. State v. Shields, 31 So. 3d 281 (Fla. Dist. Ct. App. 2d Dist. 2010). 982. Ch. 95-160, 1, at 1288, Laws of Fla. 983. Sec. 775.089(6)(b), F.S. 984. Pettway v. State, 502 So. 2d 1366 (Fla. Dist. Ct. App. 2d Dist. 1987); see, 15A Fla.Jur. 2d Criminal Law 2636.

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given the defendants financial means. The court may require him or her to make financial sacrifices or even to temporarily change his or her lifestyle or standard of living, if necessary, to make restitution payments, and may consider the defendants intelligence, creativity, communicative abilities, special technical skills, business acumen, education, future licensing difficulties, future difficulty obtaining employment due to criminal convictions, employment history and other factors in reaching its determination of ability to pay. The fact that a defendant will have some difficulty in making restitution payments does not preclude a finding that the defendant has the ability to pay restitution.985 A sentencing court cannot, however, base its determination of ability to pay on a premise that a defendant will continue to engage in unlawful conduct and that the proceeds of that conduct can be applied toward satisfying the restitution obligation.986 Future restitution can be ordered despite a defendants present indigency, so long as there is some evidence that the defendant may be able to pay the amount fixed when required to do so, although the mere possibility of an unforeseen windfall will not be enough.987 Unless the court finds unusual circumstances, a defendant sentenced to state prison, however, should be determined not to have a reasonably discernible future financial ability to reimburse the victim and any restitution ordered would be imposed as a lien. Where the defendant fails to object, or fails to argue inability to pay or present evidence regarding inability to pay, the defendant waives the right to challenge the imposition of a restitution order based on ability to pay.988 As a practical matter, however, the ability to pay restitution is a matter for consideration at the time of the enforcement of the restitution order, not at the time when the court is weighing the need for restitution versus the need for imprisonment.989 If a defendant is placed on probation, any restitution ordered under section 775.089 must be a condition of the probation. The court may revoke probation if the defendant fails to comply with the order. In determining whether to revoke probation, the court must consider the defendants employment status, earning ability, and financial resources; the willfulness of the defendants failure to pay; and any other special circumstances that may have a bearing on the defendants ability to pay.990 The defendants uncontroverted testimony of his or her inability to pay, however,

985. See, United States v. Peterson, 98 F. 3d 502 (9th Cir. 1996); United States v. Sarno, 73 F. 3d 1470 (9th Cir. 1995); United States v. Ramilo, 986 F. 2d 333 (9th Cir. 1993). 986. See, State v. Pacheco, 42 P. 3d 351 (Ct. App. Oregon 2002) (undocumented alien working illegally in the United States convicted of unlawfully obtaining public assistance, welfare provider fraud, theft and forgery). 987. See, United States v. Ramilo, 986 F. 2d 333 (9th Cir. 1993). 988. Dickens v. State, 556 So. 2d 782 (Fla. Dist. Ct. App. 2d Dist. 1990); Williams v. State, 565 So. 2d 849 (Fla. Dist. Ct. App. 1st Dist. 1990). 989. Banks v. State, 732 So. 2d 1065 (Fla. 1999). 990. Sec. 948.032, F.S.

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cannot be summarily rejected,991 even where the court finds the defendants testimony not credible,992 when the State presents no evidence showing ability to pay. The rule is slightly different in juvenile cases. The court may order the child to make restitution in money, through a promissory note cosigned by the childs parent or guardian, or in kind for any damage or loss caused by the childs offense in a reasonable amount or manner to be determined by the court. When restitution is ordered by the court, the amount of restitution may not exceed an amount the child and the parent or guardian could reasonably be expected to pay or make.993 However, a finding by the court, after a hearing, that the parent or guardian has made diligent and good faith efforts to prevent the child from engaging in delinquent acts absolves the parent or guardian of liability for restitution under section 985.437.994 These statutes do not require that the trial court find that the child has the present ability to pay restitution.995 Instead, the court must determine what the child may reasonably be expected to earn upon finding suitable employment and must base the restitution amount on those expected earnings.996 While there is no requirement that a child be employed before a restitution order can be entered against him or her, there must be some testimony or other evidence to support the finding that the juvenile can reasonably pay the ordered amount.997 When no evidence of what the child could reasonably be expected to earn is presented at the restitution hearing, the trial court cannot make a finding on this issue.998 In the absence of such a finding, an appellate court must reverse the restitution order and remand for a hearing on the childs ability to earn and ability to pay.999

991. Philemon v. State, 82 So. 3d 200 (Fla. Dist. Ct. App. 4th Dist. 2012). 992. Brooks v. State, So. 3d , 2012 WL 874547 (Fla. Dist. Ct. App. 5th Dist. 2012). 993. Sec. 985.437(2), F.S. 994. Sec. 985.437(2), F.S. 995. See, e.g., R.S.M. v. State, 910 So. 2d 361, 362 (Fla. Dist. Ct. App. 2d Dist. 2005); R.D.S. v. State, 844 So. 2d 720, 720-21 (Fla. Dist. Ct. App. 2d Dist. 2003); A.J. v. State, 677 So. 2d 935, 938 (Fla. Dist. Ct. App. 4th Dist. 1996). 996. R.D.S. v. State, 844 So. 2d 720, 721 (Fla. Dist. Ct. App. 2d Dist. 2003); A.J. v. State, 677 So. 2d 935, 938 (Fla. Dist. Ct. App. 4th Dist. 1996); J.A.M. v. State, 601 So. 2d 278 (Fla. Dist. Ct. App. 1st Dist. 1992). 997. E.J. v. State, 1 So.32d 251 (Fla. Dist. Ct. App. 3d Dist. 2008). 998. See, A.J. v. State, 677 So. 2d 935, 938 (Fla. Dist. Ct. App. 4th Dist. 1996); see also, N.C. v. State, 774 So. 2d 867, 868 (Fla. Dist. Ct. App. 2d Dist. 2000); In Interest of C.D.D., 684 So. 2d 866, 867 (Fla. Dist. Ct. App. 2d Dist. 1996). 999. See, K.T.M. v. State, 969 So. 2d 542 (Fla. Dist. Ct. App. 2d Dist. 2007); M.W.G. v. State, 945 So. 2d 597, 601 (Fla. Dist. Ct. App. 2d Dist. 2006); A.J. v. State, 677 So. 2d 935, 938 (Fla. Dist. Ct. App. 4th Dist. 1996).

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VII. JUVENILE SENTENCING Adjudicatory Hearing The defendant does not have the right to trial by jury in juvenile court; the presiding judge decides all matters of law and fact at a bench trial called an adjudicatory hearing, which is a hearing for the court to determine whether or not the facts support the allegations stated in the petition, as is provided for under section 985.35 in delinquency cases.1000 The adjudicatory hearing must be held as soon as practicable after the petition alleging that a child has committed a delinquent act or violation of law is filed and in accordance with the Florida Rules of Juvenile Procedure; but reasonable delay for the purpose of investigation, discovery, or procuring counsel or witnesses must be granted. If the child is being detained, the time limitations provided for in section 985.26(2) and (3) apply.1001 Adjudicatory hearings must be conducted without a jury by the court, applying in delinquency cases the rules of evidence in use in criminal cases; adjourning the hearings from time to time as necessary; and conducting a fundamentally fair hearing in language understandable, to the fullest extent practicable, to the child before the court.1002 In a hearing on a petition alleging that a child has committed a delinquent act or violation of law, the evidence must establish the findings beyond a reasonable doubt.1003 The child is entitled to the opportunity to introduce evidence and otherwise be heard in the childs own behalf and to crossexamine witnesses.1004 A child charged with a delinquent act or violation of law must be afforded all rights against self-incrimination. Evidence illegally seized or obtained may not be received to establish the allegations against the child.1005 If the court finds that the child named in a petition has not committed a delinquent act or violation of law, it must enter an order so finding and dismissing the case.1006 If the Court finds that the child has committed a delinquent act or violation of law, a dispositional (sentencing) hearing is held. Child who has been found to have committed a delinquent act means a child who, under chapter 985, is found by a court to have committed a violation of law or to be in direct or indirect contempt of court, except that this definition does not include an act constituting

1000. Sec. 985.03(2), F.S. 1001. Sec. 985.35(1), F.S. 1002. Sec. 985.35(2), F.S. 1003. Sec. 985.35(2)(a), F.S. 1004. Sec. 985.35(2)(b), F.S. 1005. Sec. 985.35(2)(c), F.S. 1006. Sec. 985.35(3), F.S.

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contempt of court arising out of a dependency proceeding or a proceeding pursuant to the disposition of juvenile delinquency cases under chapter 985.1007 Predisposition Reports and Other Evaluations Upon a finding that the child has committed a delinquent act, the court may order a predisposition report (PDR) regarding the eligibility of the child for disposition other than by adjudication and commitment to the department or for disposition of adjudication, commitment to the department, and, if appropriate, assignment of a residential commitment level. The predisposition report must be the result of the multidisciplinary assessment, when such assessment is needed, and of the classification and placement process, and it must indicate and report the childs priority needs, recommendations as to a classification of risk for the child in the context of his or her program and supervision needs, and a plan for treatment that recommends the most appropriate placement setting to meet the childs needs with the minimum program security that reasonably ensures public safety. A predisposition report must be ordered for any child for whom a residential commitment disposition is anticipated or recommended by an officer of the court or by the department. A comprehensive evaluation for physical health, mental health, substance abuse, academic, educational, or vocational problems must be ordered for any child for whom a residential commitment disposition is anticipated or recommended by an officer of the court or by the department. If a comprehensive evaluation is ordered, the predisposition report must include a summary of the comprehensive evaluation.1008 The court must consider the childs entire assessment and predisposition report and must review the records of earlier judicial proceedings prior to making a final disposition of the case. The court may, by order, require additional evaluations and studies to be performed by the department, by the county school system, or by any social, psychological, or psychiatric agencies of the state. The court must order the educational needs assessment completed under section 985.224(2) to be included in the assessment and predisposition report.1009 The predisposition report, together with all other reports and evaluations used by the department in preparing the predisposition report, must be made available to the child, the childs parents or legal guardian, the childs legal counsel, and the state attorney upon completion of the report and at a reasonable time prior to the disposition hearing. The predisposition report must be submitted to the court upon completion of the report but no later than 48 hours prior to the disposition hearing. The predisposition report must not be reviewed by the court without the

1007. Sec. 985.03(8). F.S. 1008. Sec. 985.43(1), F.S. 1009. Sec. 985.43(2), F.S.

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consent of the child and his or her legal counsel until the child has been found to have committed a delinquent act.1010 Dispositional Hearing Sentencing in juvenile court occurs at the disposition hearing. When a child has been found to have committed a delinquent act, the following mandatory procedures are applicable to the disposition of the case: Before the court determines and announces the disposition to be imposed, it must: (a) state clearly, using common terminology, the purpose of the hearing and the right of persons present as parties to comment at the appropriate time on the issues before the court;1011 (b) discuss with the child his or her compliance with any home release plan or other plan imposed since the date of the offense;1012 (c) discuss with the child his or her feelings about the offense committed, the harm caused to the victim or others, and what penalty he or she should be required to pay for such transgression;1013 and (d) give all parties, as well as the victim or a representative of the victim, representatives of the school system, and the law enforcement officers involved in the case who are present at the hearing an opportunity to comment on the issue of disposition and any proposed rehabilitative plan.1014 Parties to the case include the parents, legal custodians, or guardians of the child; the childs counsel; the state attorney; and representatives of the department.1015 If the child is attending or is eligible to attend public school and the court finds that the victim or a sibling of the victim in the case is attending or may attend the same school as the child, the court must, on its own motion or upon the request of any party or any parent or legal guardian of the victim, determine whether it is appropriate to enter a no contact order in favor of the victim or a sibling of the victim. If appropriate and acceptable to the victim and the victims parent or parents or legal guardian, the court may reflect in the written disposition order that the victim or the victims parent stated in writing or in open court that he or she did not object to the offender being permitted to attend the same school or ride on the same school bus as the victim or a sibling of the victim. If applicable, the court placement or commitment order must include a finding under

1010. Sec. 985.43(3), F.S. 1011. Sec. 985.433(4)(a), F.S. 1012. Sec. 985.433(4)(b), F.S. 1013. Sec. 985.433(4)(c), F.S. 1014. Sec. 985.433(4)(d), F.S. 1015. Sec. 985.433(4)(d), F.S.

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section 985.455(2).1016 At the time of disposition, the court may make recommendations to the department as to specific treatment approaches to be employed.1017 The first determination to be made by the court is a determination of the suitability or nonsuitability for adjudication and commitment of the child to the department. This determination must include consideration of the recommendations of the department, which may include a predisposition report. The predisposition report must include, whether as part of the childs multidisciplinary assessment, classification, and placement process components or separately, evaluation of the following criteria: (a) The seriousness of the offense to the community. If the court determines under chapter 874 that the child was a member of a criminal gang at the time of the commission of the offense, the seriousness of the offense to the community shall be given great weight.1018 (b) Whether the protection of the community requires adjudication and commitment to the department.1019 (c) Whether the offense was committed in an aggressive, violent, premeditated, or willful manner.1020 (d) Whether the offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted.1021 (e) The sophistication and maturity of the child.1022 (f) The record and previous criminal history of the child, including without limitations:

1016. Sec. 985.455(2), F.S. 1017. Sec. 985.433(5), F.S. 1018. Sec. 985.433(6)(a), F.S. As provided by section 874.04, at least two of the eight statutory criteria must be established to find the child to be a criminal street gang member. See, R.C. v. State, 948 So. 2d 48 (Fla. Dist. Ct. App. 1st Dist. 2007). 1019. Sec. 985.433(6)(b), F.S. 1020. Sec. 985.433(6)(c), F.S. 1021. Sec. 985.433(6)(d), F.S. 1022. Sec. 985.433(6)(e), F.S.

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1. Previous contacts with the department, the former Department of Health and Rehabilitative Services, the Department of Children and Family Services, the Department of Corrections, other law enforcement agencies, and courts; 2. Prior periods of probation; 3. Prior adjudications of delinquency; 4. Prior commitments to institutions.1023 (g) The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child if committed to a community services program or facility.1024 (h) The childs educational status, including, but not limited to, the childs strengths, abilities, and unmet and special educational needs. The report shall identify appropriate educational and vocational goals for the child. Examples of appropriate goals include: 1. Attainment of a high school diploma or its equivalent. 2. Successful completion of literacy course(s). 3. Successful completion of vocational course(s). 4. Successful attendance and completion of the childs current grade if enrolled in school. 5. Enrollment in an apprenticeship or a similar program.1025 Note that these criteria are general guidelines to be followed at the discretion of the court and not mandatory requirements of procedure. Failure of the court to follow these guidelines does not provide a basis for appeal of the disposition made under section 985.23.1026 The court may receive and consider any other relevant and material evidence, including other written or oral reports or statements, in its effort to determine the appropriate disposition to be made with regard to the child. The court may rely upon such evidence to the extent of its probative value, even though such evidence may not be technically competent in an adjudicatory

1023. Sec. 985.433(6)(f), F.S. 1024. Sec. 985.433(6)(g), F.S. 1025. Sec. 985.433(6)(h), F.S. 1026. Sec. 985.433(6), F.S.

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hearing.1027 In this regard, the childs parents should be heard from if they are present and so desire, for a trial courts failure to allow a childs parents to testify at a disposition hearing constitutes reversible error.1028 The court must commit the child to the department at the restrictiveness level identified by the department or may order placement at a different restrictiveness level. The court must state for the record the reasons that establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department.1029 A trial judge may not deviate from DJJs recommendation at a juvenile delinquency disposition hearing simply because the judge disagrees with the recommendation,1030 or because the prosecutor asserts, without producing evidence to support the assertion, that the recommendation is inappropriate.1031 In order to deviate, a trial court must identify adequate reasons, grounded in the evidence, for disregarding the recommendation.1032 A judge may reweigh the same factors the Department considered and come to a different conclusion, but, when the court does so, the court must set forth its reasons in the context of the needs of the child.1033 The judges findings must have reference to the characteristics of the restrictiveness level vis-avis the needs of the child.1034 The judge must explain why the judge came to a different conclusion than DJJ did, and explain why the new restrictiveness level is indicated.1035 The trial

1027. Sec. 985.433(3), F.S. 1028. See, B.R. v. State, 902 So. 2d 333 (Fla. Dist. Ct. App. 5th Dist. 2005); K.R. v. State, 584 So. 2d 1132 (Fla. Dist. Ct. App. 5th Dist. 1991); T.H. v. State, 573 So. 2d 1090, 1091 (Fla. Dist. Ct. App. 5th Dist. 1991); see also, A.P. v. State, 666 So. 2d 211 (Fla. Dist. Ct. App. 2d Dist. 1995). 1029. Sec. 985.433(7)(b), F.S.; see, e.g., X.W. v. State, 903 So.2d 318 (Fla. Dist. Ct. App. 2d Dist. 2005); J.L.K. v. State, 894 So. 2d 984 (Fla. Dist. Ct. App. 1st Dist. 2004) (competent substantial evidence supported trial courts decision to commit minor, who was adjudicated delinquent for falsely reporting bomb, to low risk residential facility, thereby deviating from recommended disposition of Department of Juvenile Justice which recommended juvenile probation; previous bomb threats at minors school, and fact minor had opportunity to witness serious consequences of false bomb reports, made offense more serious, and minor more culpable, in trial courts mind). 1030. See, K.M. v. State, 891 So. 2d 619, 620 (Fla. Dist. Ct. App. 3d Dist. 2005). 1031. J.A.R. v. State, 923 So. 2d 604 (Fla. Dist. Ct. App. 2d Dist. 2006). 1032. See, C.T. v. State, 819 So. 2d 869 (Fla. Dist. Ct. App. 4th Dist. 2002) (trial judge is free to disagree with DJJ recommendation so long as the judge does not simply ignore it); A.C.N. v. State, 727 So. 2d 368, 370 (Fla. Dist. Ct. App. 1st Dist. 1999). 1033. E.S.B. v. State, 822 So. 2d 579, 581 (Fla. Dist. Ct. App. 1st Dist. 2002). 1034. E.S.B. v. State, 822 So. 2d 579, 581 (Fla. Dist. Ct. App. 1st Dist. 2002). 1035. See, J.W.M. v. State, 911 So. 2d 1289 (Fla. Dist. Ct. App. 1st Dist. 2005) (imposition of harsher sentence than recommended by DJJ on basis that offense occurred at school inappropriate where DJJ knew when it made recommendation that offense had occurred at school and trial judge did not explain why this fact led judge to different

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court is not, however, required under section 985.433(7)(b) to specifically identify the characteristics of the restrictiveness level imposed vis--vis the needs of the juvenile when the trial court sentences the juvenile to a different restrictiveness level than that recommended by DJJ.1036 The trial court is, however, restricted from using procedural devices to avoid the the DJJ recommendation without stated reasons, such as by issuing a disposition order that complies with the DJJ recommendation and then immediately entering an order modifying the childs sentence.1037 Any party may appeal the courts findings resulting in a modified level of restrictiveness under section 985.433.1038 Failure to strictly comply with the mandatory provisions of section 985.433 for dispositional hearings results in reversible error.1039 Violation of Probation or Conditional Release If the conditions of the probation program or the postcommitment probation program are violated, the department or the state attorney may bring the child before the court on a petition alleging a violation of the program.1040 With regard to juveniles, any proceeding alleging a violation of probation is initiated by the filing of a sworn affidavit of the material facts supporting the allegations.1041 Among the minimal requirements of due process in a revocation proceeding is written notice of the alleged violation or violations, executed by the childs juvenile probation officer or other person having

conclusion); N.B. v. State, 911 So. 2d 833 (Fla. 1st DCA 2005) (trial judges failure to identify valid basis for deviating from DJJ recommendation of probation for shoplifting when it sentenced 16-year-old to low-risk residential facility warranted reversal; only reason judge assigned for placing juvenile in residential facility, rather than adhering to DJJs recommendation for probation, was that she had previously committed similar theft, but trial judge offered no reason, however, why this would require placement and services in residential setting); D.R.B. v. State, 876 So. 2d 700 (Fla. Dist. Ct. App. 1st Dist. 2004); E.S.B. v. State, 822 So. 2d 579 (Fla. Dist. Ct. App. 1st Dist. 2002); Q.L.J. v. State, 714 So. 2d 628 (Fla. Dist. Ct. App. 1st Dist. 1998) (departure appropriate where trial judge found that childs actions established that he was danger to society and that, therefore, he should be placed in secure environment for protection of the public); Sec. 985.433(7)(b), F.S. 1036. E.A.R. v. State, 975 So. 2d 610 (Fla. Dist. Ct. App. 4th Dist. 2008). 1037. State v. A.C., 44 So. 3d 1240 (Fla. Dist. Ct. App. 5th Dist. 2010). 1038. Sec. 985.433(7)(b), F.S. 1039. See, K.D. v. State, 911 So. 2d 885 (Fla. Dist. Ct. App. 1st Dist. 2005) (trial court could not proceed to disposition in the absence of the comprehensive evaluation); B.A.B. v. State, 853 So. 2d 554 (Fla. Dist. Ct. App. 1st Dist. 2003); J.E.W. v. State, 672 So. 2d 72 (Fla. Dist. Ct. App. 1st Dist. 1996). 1040. Sec. 985.439(1)(b), F.S. 1041. Fla. R. Juv. P. 8.120(a)(2).

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actual knowledge of the facts.1042 The petition for revocation of juvenile probation must substantially comply with the approved form provided by Fla. R. Juv. P. 8.948, and does not have to state the specific offense for which the child was placed on probation or other matters not addressed in that form.1043 The same due process requirements apply to a proceeding alleging a violation of community control. Further, the fact that a suspended sentence had been imposed does not obviate the due process requirements.1044 Any child who violates the conditions of probation or postcommitment probation must be brought before the court if sanctions are sought.1045 A child taken into custody under section 985.101 for violating the conditions of probation or postcommitment probation must be held in a consequence unit if such a unit is available. The child must be afforded a hearing within 24 hours after being taken into custody to determine the existence of probable cause that the child violated the conditions of probation or postcommitment probation. A consequence unit is a secure facility specifically designated by the department for children who are taken into custody under section 985.101 for violating probation or postcommitment probation, or who have been found by the court to have violated the conditions of probation or postcommitment probation. If the violation involves a new charge of delinquency, the child may be detained under part V of chapter 985 in a facility other than a consequence unit. If the child is not eligible for detention for the new charge of delinquency, the child may be held in the consequence unit pending a hearing and is subject to the time limitations specified in part V. If the child denies violating the conditions of probation or postcommitment probation, the court must appoint counsel to represent the child at the childs request.1046 Upon the childs admission, or if the court finds after a hearing that the child has violated the conditions of probation or postcommitment probation, the court shall enter an order revoking, modifying, or continuing probation or postcommitment probation. In each such case, the court is requires to enter a new disposition order and, in addition to the sanctions set forth in section 985.439, may impose any sanction the court could have imposed at the original disposition hearing.1047 If the child is found to have violated the conditions of probation or postcommitment probation, the court may:

1042. See, Burton v. State, 651 So. 2d 793 (Fla. Dist. Ct. App. 1st Dist. 1995). 1043. State v. N.F., 924 So. 2d 912 (Fla. Dist. Ct. App. 5th Dist. 2006). 1044. B.S. v. State, 886 So. 2d 1062 (Fla. Dist. Ct. App. 4th Dist. 2004); see also, Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973) (a probationer under a suspended sentence is entitled to the minimum requirements of due process, which included written notice of the claimed violations, before his probation could be revoked). 1045. Sec. 985.439(1)(b), F.S. 1046. Sec. 985.439(3), F.S. 1047. Sec. 985.439(4), F.S.

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1. Place the child in a consequence unit in that judicial circuit, if available, for up to 5 days for a first violation, and up to 15 days for a second or subsequent violation.1048 2. Place the child on home detention with electronic monitoring. However, this sanction may be used only if a residential consequence unit is not available.1049 3. Modify or continue the childs probation program or postcommitment probation program.1050 4. Revoke probation or postcommitment probation and commit the child to the department.1051 Notwithstanding section 743.07 and section 985.455(3), and except as provided in section 985.47, the term of any order placing a child in a probation program other than for a second degree misdemeanor or its equivalent must be until the childs 19th birthday unless he or she is released by the court, on the motion of an interested party or on its own motion.1052 The State may call a juvenile defendant as a State witness and both the State and the presiding judge may question the defendant about the conditions of probation. A juveniles admission of a violation of probation may be accepted as evidence, even over defense counsel objection based upon the juveniles Fifth Amendment right against self-incrimination.1053 This is because a probationer, who accepts the terms of his or her probation agreement, waives his or her Fifth Amendment privilege regarding the terms of the probation. Generally, the Fifth Amendment of the United States Constitution protects a defendant from being compelled to testify. However, a probationer may not refuse to answer a question, just because the answer would disclose a violation of probation. His or her agreement to accept the terms of probation effectively waives a Fifth Amendment privilege with regard to this information. The privilege is applicable to conduct and circumstances concerning a separate criminal offense.1054 The trial court properly overrules

1048. Sec. 985.439(4)(a), F.S. 1049. Sec. 985.439(4)(b), F.S. 1050. Sec. 985.439(4)(c), F.S. 1051. Sec. 985.439(4)(d), F.S. 1052. Sec. 985.0301(5)(b), F.S. 1053. E.P. v. State, 901 So. 2d 193 (Fla. Dist. Ct. App. 4th Dist. 2005). 1054. Perry v. State, 778 So. 2d 1072 (Fla. Dist. Ct. App. 5th Dist. 2001) (citing Minnesota v. Murphy, 465 U.S. 420 (1984)); State v. Heath, 343 So. 2d 13 (Fla. 1977); Cassamassina v. State, 657 So. 2d 906 (Fla. Dist. Ct. App. 5th Dist. 1995); Dearing v. State, 388 So. 2d 296 (Fla. Dist. Ct. App. 3d Dist. 1980); Watson v. State, 388 So. 2d 15 (Fla. Dist. Ct. App. 4th Dist. 1980).

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defense counsels Fifth Amendment objection when the questions asked relate to conditions of the defendants probation.1055

1055. See, Perry v. State, 778 So. 2d 1072 (Fla. Dist. Ct. App. 5th Dist. 2001); Watson v. State, 388 So. 2d 15 (Fla. Dist. Ct. App. 4th Dist. 1980).

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