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FLORIDA SENTENCING
Florida Association of
Criminal Defense Lawyers
Tampa Marriott Westshore Hotel,
Tampa, Florida
Friday, March 27, 2015
Hon. William H. Burgess, III, B.C.S.
Author, FLORIDA SENTENCING (Thomson-Reuters 2015)
Burgess.law.org@hotmail.com
INTRODUCTION
GOALS OF INSTRUCTION:
Identify the main features of Florida state
sentencing law and procedure
Become familiar with common sentencing terms
Spot important sentencing issues
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MATERIALS PROVIDED:
DOC Criminal Punishment Code Scoresheet
Preparation Manual
Advanced Sentencing Law Handout
Copies of Lecture Slides
SENTENCE DEFINED:
The punishment imposed by a judge in a
criminal court upon a defendant convicted in a
criminal prosecution.
FLORIDA TRIAL COURT STATISTICS FOR JULY 2013 THROUGH JUNE 2014
(Does not include Juvenile or Traffic)
Filed
County Criminal
Defendants
Circuit Criminal
Defendants
Circuit Criminal
Counts
355,981
176,768
375,956
County Criminal
Counts
NA
33,935
175,259
363,138
NA
(Plea)
198,113
135,377
255,596
NA
NA
(Convicted)
882
53
110
1,420
3,344
8,578
NA
(Plea)
101
246
503
NA
(Convicted)
669
2,246
5,565
NA
Circuit Courts
County Criminal
Traffic: 369,489 criminal offenses disposed, including 329,275 criminal cases and 40,214 DUIs
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PRIMARY STATUTES:
921.0017-.244 Sentence
775.01-.31 Definitions; General Penalties;
Registration of Criminals
777.04 Attempts, Solicitation, and Conspiracy
y Control
948.001-.90 Probation & Community
958.011-.19 Youthful Offenders
985.345, .35 Juvenile Justice; Adjudication
985.43-.494 Juvenile Justice; Disposition;
Postdisposition
PRIMARY RULES OF
PROCEDURE:
3.700-.801 Sentence
8.110 Adjudicatory Hearings
8.115 Disposition Hearings
8.120 Post-Disposition Hearing
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LIFE FELONIES
A defendant who has been convicted of a life felony committed prior to
October 1, 1983 may be punished by a term of imprisonment for life or for a
term of years not less than 30; for a life felony committed on or after
October 1, 1983 by a term of imprisonment not exceeding 40 years; for a
life felony committed on or after July 1, 1995,
1995, except for one which was
committed on or after September 1, 2005 which is a violation of section
for life or byy imprisonment
for a
800.04(5)(b),
( )( ), for a term of imprisonment
p
p
term of years not exceeding life imprisonment; and for a life felony
committed on or after September 1, 2005 which is a violation of s.
800.04(5)(b), by a term of imprisonment for life, or a split sentence that is a
term of not less than 25 years imprisonment and not exceeding life
imprisonment, followed by probation or community control for the remainder
of the persons natural life, as provided in section 948.012(4).
CAPITAL FELONIES
Mandatory death sentence if convicted and
court finds that the defendant shall be so
punished
The only other alternative is life imprisonment
Not all capital felonies by name are punishable
by death, e.g., capital sexual battery
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PRINCIPAL
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Sentencing
Scheme
Florida Sentencing
Guidelines
1994 Guidelines
1995 Guidelines
Criminal Punishment
Code
Forms Used
Rule 3.990(a)
Sentencing
Guidelines
Scoresheet
Rule 3.991(a)
Sentencing
Guidelines
Scoresheet
Rule 3.992(a)
Criminal Punishment
Code Scoresheet
(Untitled Continuation
Sheet)
Rule 3.990(b)
Supplemental
Sentencing
Guidelines
Scoresheet
Rule 3.991(b)
Supplemental
Sentencing
Guidelines
Scoresheet
Rule 3.992(b)
Criminal Punishment
Code Supplemental
Scoresheet
Florida Statutes
s. 921.001
ss. 921.0001-.0016
ss. 921.0001-.0016
ss. 921.002-.0027
Rules
DOC Reference
Manual
Forms 3.988(a)-(i)
(Worksheets 1-9)
Florida Sentencing
Guidelines
Scoresheet
Preparation Manual
(Jan 1, 1994)
Florida Sentencing
Guidelines
Scoresheet
Preparation Manual
(Jan 1, 1995)
Florida Criminal
Punishment Code
Scoresheet
Preparation Manual
(Oct 1.2010)
ORIGINAL
GUIDELINES
ORIGINAL
GUIDELINES
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1994
GUIDELINES
1994
GUIDELINES
1994
GUIDELINES
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1994
GUIDELINES
1995
GUIDELINES
1995
GUIDELINES
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1995
GUIDELINES
1995
GUIDELINES
1998
CRIMINAL
PUNISHMENT
CODE
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1998
CRIMINAL
PUNISHMENT
CODE
1998
CRIMINAL
PUNISHMENT
CODE
COMMON CRIMINAL
PUNISHMENT CODE ISSUES
Victim Injury Points
Prior Record
Legal Status Points
Community Sanction Points
Uncharged crimes
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Juvenile
Youthful Offender
H
Habitualized
bit li d
Capital Murder
Non-Violent Offenders
Diversion
Enhancement,
Reclassification, Minimum
Mandatories,, Capital
Mandatories
Felonies, Life Felonies, PRR,
Habitualization,, and
Habitualization
10/20/Life
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MINIMUM MANDATORY
SENTENCING
The court can sentence above the minimum
mandatory, up to the statutory maximum
p
Apprendi
pp
considerations
Does not implicate
If the lowest permissible CPC sentence is lower
than the minimum mandatory, the minimum
mandatory takes precedence
PRISON RELEASEE
REOFFENDER
Sec. 775.082(9)(a)1., F.S.
Enumerated felonies or felony involving use or threat
of physical force or violence against an individual
within 3 years of being released from a designated
correctional facility
facility, or while serving a prison sentence
or on escape status from a designated correctional
facility
State proves qualification by preponderance of
evidence = no discretion on part of sentencing judge
Day for day
10/20/LIFE
Sec. 775.087, F.S
Reclassification and progressive mandatory minimum
sentences
Inapplicable where use of weapon is essential element
Actual possession = 10 (15 if semiautomatic or
machine gun)
Defendant discharges = 20
Result of death or great bodily harm inflicted upon any
person = 25 minimum up to life
Does not limit imposition of longer sentence
authorized by law
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2nd Degree
Felonies
1st Degree
Felonies
Life Felonies
Habitual
Felony
Offenders
Up to 10 years
Up to 30 years
Life imprisonment
Life imprisonment
Habitual
Violent
Felony
Offenders
Up to 10 years;
not eligible for
release for 5
years
Up to 30 years;
not eligible for
release for 10
years
Life imprisonment;
not eligible for
release for 15
years
Life imprisonment;
not eligible for
release for 15
years
Three-Time
Violent
Offenders
Mandatory
Minimum of 5
years
Mandatory
minimum of 15
years
Mandatory
minimum of 30
years
Mandatory
minimum of life
imprisonment
Violent
Career
Criminals
Up to 15 years,
with a mandatory
minimum of 10
years
Up to 40 years,
with a mandatory
minimum of 30
years
Life imprisonment;
no discretionary
early release
Life imprisonment;
no discretionary
early release
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SENTENCING ALTERNATIVES
Straight Confinement
Straight Probation or Community Control
True Split Sentence
Probationary Split Sentence
Split Probation
SENTENCING ALTERNATIVES
General Sentencing is Prohibited
Concurrent and Consecutive Sentencing
Same Indictment or Information = Concurrent
Sentencing Unless Court States Otherwise
Different
Diff
t IIndictment
di t
t or IInformation
f
ti
=P
Possible
ibl
Consecutive Sentencing
PRRPA, 10-20-Life and Habitualized Offenses
Arising From the Same Criminal Episode
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JUDICIAL DISCRETION
Limited by constitution, statute and binding court
precedent
Scant inherent or equitable power
Ministerial role in cases involving minimum
mandatories, mandatory fines, mandatory
conditions, etc.
IMPACT OF APPRENDI
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, unless admitted.
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SENTENCE MITIGATION
Avoidance
Pre-emption of Felony Prosecution
Pretrial Diversion
Containment
Sentencing Back As a Juvenile
Youthful Offender ( 948
04)
948.04)
Downward Departure
Statutory ( 921.0026(2), 893.135(4), 921.185)
Non-Statutory
NONSTATUTORY MITIGATORS
Sec. 921.0026(1), F.S.
Enticement
Sentence entrapment/manipulation
Lower sentence of an equally or more culpable codefendant
Diminished mental capacity
Extraordinary restitution
Extraordinary susceptibility
Totality of circumstances
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ETHICAL CONSIDERATIONS IN
SENTENCING
Applicability of Discovery to
Sentencing
Davis v. State, 73 So. 3d 304 (Fla. 1st DCA 2011)
Ell d v. State,
St t 613 So.
S 2d 434 (Fla.
(Fl 1983)
Elledge
State v. Clark, 644 So. 2d 556 (Fla. 2d DCA 1994)
Sexton v. State, 643 So. 2d 53 (Fla. 2d DCA 1994)
Booker v. State, 634 So. 2d 301 (Fla. 5th DCA 1994)
Sources of Ethics
LAWYERS:
Florida Rules of Professional Conduct
Florida case law
Cases from other jurisdictions
Formal advisory ethics opinions issued by the
Professional Ethics Committee of The Florida Bar
JUDGES:
Florida Code of Judicial Conduct
Opinions of the Judicial Ethics Advisory Committee
Florida case law
Cases from other jurisdictions
Judicial Ethics Benchguide
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