August 17, 2004
More interesting (if dated) news from Florida
Perhaps we should blame Hurricane Charley for keeping this decision from getting on-line sooner, but I just found the very interesting ruling in US v. Grant, 2004 WL 1803196 (M.D. Fla. Aug. 12, 2004), issued by US District Judge Timothy J. Corrigan last week. Here's how Judge Corrigan made sense of how Blakely impacts federal guidelines sentencing in Grant:
Although guidance from the Eleventh Circuit and the Supreme Court on Blakely's effect on the United States Sentencing Guidelines is forthcoming, the undersigned cannot further postpone sentencing hearings until my superiors decide this issue. Any court is loath to rule that an enactment of Congress is unconstitutional. This is especially true when the entire congressionally mandated federal sentencing scheme is at risk. Thus, I have searched diligently for a way to uphold the Guidelines in their entirety post-Blakely. However, I have come to a conclusion which I think is inescapable: The rule of constitutional law announced in Blakely does apply to the federal Sentencing Guidelines. I so hold.
There have been a slew of Blakely opinions from other courts, district and appellate, which I have read and carefully considered. There is no need to replicate those scholarly efforts here. Instead, what follows is a summary of my holdings and how I intend to proceed until I receive appellate guidance:
1. The Supreme Court's decision in Blakely applies to the United States Sentencing Guidelines.
2. If the Guidelines would require a judge to enhance a sentence by finding facts beyond those "reflected in the jury verdict," the Guidelines are unconstitutional as applied.
3. In a case involving a plea agreement that does not waive Blakely rights or contain sufficient factual admissions to support applicable Guidelines enhancement provisions, the Guidelines are unconstitutional as applied.
4. The Guidelines can be constitutionally applied when there is no judicial factfinding that increases the defendant's sentence beyond the range dictated by the facts found by the jury. Thus, if the judge does not enhance a sentence based on additional factual findings not made by the jury, either because the judge determines that no enhancements are applicable or a sought after enhancement is not proven, the Guidelines may be constitutionally applied.
5. The Guidelines can be constitutionally applied when a plea agreement waives Blakely rights and allows the judge to determine enhancements under the Guidelines, or a plea agreement contains factual admissions which allow the judge to enhance under the Guidelines.
6. In a case where the Guidelines are inapplicable because they are unconstitutional as applied under Blakely, the Court, pursuant to 18 U.S.C. § 3553(b)(1), will sentence the defendant pursuant to 18 U.S.C. § 3553(a). Under 18 U.S.C. § 3553(a), the Court's sentence is informed by the factors contained therein and by the Sentencing Guidelines, but is indeterminate so long as it does not exceed the statutory maximum or fall below the statutory minimum.
7. Including sentencing enhancements under the Sentencing Guidelines in the indictment and attempting to prove them to the jury at trial is unauthorized and therefore unavailable.
8. Empaneling a sentencing jury is not authorized by law and is therefore unavailable.
9. The Court will conduct all sentencings under the Guidelines as before Blakely so that all Guidelines issues are addressed. The Court will also consider all issues relevant under 18 U.S.C. § 3553(a). If the Court can constitutionally apply the Guidelines, it will. If the Court determines at the sentencing hearing that the Guidelines cannot constitutionally be applied (because the Court is required to apply an enhancement prohibited by Blakely), the Court will impose an indeterminate sentence pursuant to 18 U.S.C. § 3553(a), and will also impose an alternative Guidelines sentence in the event the Guidelines are found to be constitutional after appellate review.
10. The undersigned will apply these principles on a case-by-case basis until I either achieve greater wisdom which causes me to reconsider or my superiors on the Eleventh Circuit or Supreme Court give me guidance.
August 17, 2004 at 10:50 PM | Permalink
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I have a son in prison and i hope the Blakely case will go,because my son was wrongly charge
and sentenced for to long by the judge. The
guidelines are not good.
Posted by: LILLY ESAU | Aug 18, 2004 9:24:29 AM
I HAVE A BROTHER THATS DOING A 8 YEAR SENTENCE IN FEDERAL PRISON, I TRULY FEEL HIS SENTENCED WAS TOO LONG.
Posted by: ERNEST TODD III | Aug 31, 2004 11:53:48 PM
MY SON WAS JUST RECENTLY SENTENCED UNDER THE FLORIDA PRRO ACT HE HAD ONE FELONY PRIOR FOR ATTEMPT PURSE SNATCHING HE WENT INTO A MOBILE HOME WHILE THE ALARM HAD BEEN GOING OFF 10 MINUTES PRIOR BECAUSE HE THOUGHT THE LANDLORD WHERE HE WAS STAYING MIGHT BE IN MEDICAL NEED TURNS OUT THE MAN WASN'T HOME THE STATE ANNOUNCED MINUTES BEFORE JURY SELECTION THEY WOULD SEEK THE PRRO THE P D DID NOT OBJECT OR STOP AND CONSULT WITH MY SON HE ASK THREE TIMES AFTER I EXPLAINED WHAT I HEARD IN COURT BEFORE THE TRIAL STARTED FOR THE P D TO GO ASK FOR A PLEA SHE REFUSED SAYING IT WAS TO LATE AFTER STATING IT WAS A SCARE TACTIC TO GET A PLEA AND NOT GO TO TRIAL. NOW HE SITS WAITING TO BE SENT FOR A 15 YEAR NO PROBATION, NO PAROLE, NO GAIN TIME SENTENCE
CONFESSED 5 COUNT CHILD MOLESTORS, 2ND DEGREE MURDERS REPEATED OFFENDERS ARE GETTING AS LITTLE AS 8 MONTHS JAIL TIME IN FLORIDA SO WHY DOES MY SON GET THIS?? CORRUPTION ~ PLAIN AND SIMPLE
Posted by: ANN BURNETTE | Apr 26, 2005 7:18:50 PM
What is the maximum and minimum sentence for First degree felony for Sexual Assault on a Helpless person? Is it true that the sentence cannot exceed the statutory maximum or fall below the statutory minimum? If it does, does it make the sentencing illegal and what can be done?
Posted by: Patti | Jul 1, 2005 4:37:59 PM
My boyfriend has a sentancing hearing in a week and a half. He has been charged with hibitual traffic (driving while license suspended with knowledge). My question is this, as a child he was in and out of trouble and at the age of fifteen was tried as an adult. Apparently, when they were adding his points they included points from previous convictions. Is there a statute of limitions (for Florida) for the use of points from prior convictions? I am not condoning his actions but to recieve 18 1/2 months for DWLS/(X3) just seems alittle ridiculous to me. Jail time I would believe, but prison time?
Posted by: DENA | May 24, 2006 8:56:36 PM
I am the executive director of NDNPJO, one
of the program in our organization, is
prison watchdog for inmates so far from dade,
pinellas and hillsboguh countys. over sentencing
ing has always been a major problem in pinell
as county and is still strong.a lot of the inmates are treatend if they dont take this
sentence they will get life or higher sentences
if they don go for what the judge and state is
offering.how can blakely help
Posted by: stephanie brown | Oct 11, 2006 12:21:00 PM
I am a student at UCF. I have no criminal history at all. I had to serve 120 days seminole county jail for DWLS. But a kid did 70 days for selling crack to an undercover cop. How does the punishment fit the crime??
Posted by: Rob Lee | Nov 7, 2006 7:11:23 PM
Hi I was wondering if any one could tell me what they think the sentencing would be for the 18 yr old man who raped (4 counts second degree felony) my 13 yr old daughter Im sure they will try and plea bargain. What do you think his actual prison time will be for 4 offences. He is 18yrs old she is 13 yrs old he is charged with 2 counts sexual battery, 1 count lewd and lacivious conduct and 1 count lewd and lacivious molustation..thank you "a crying mother"
Posted by: Crying mother | Aug 22, 2007 7:43:05 PM
Posted by: Crying mother | Aug 22, 2007 7:44:18 PM
I'm a private citizen retired in Florida from New York. It's the twisted mentality of the leglislature and born and raised Florida residents who are responsible for the way the law is enforced and the way the courts treat offenders. Here in Florida, they'll lock you up for having an open can of beer or for smoking one marijuana cigarrette (in NY a cop would order you to just throw it away and go on your way). In Florida if you get convicted of a felony, you lose the right to vote and have to to submit paperwork and go through a lenghty process to get it back (in NY, inmates automatically regain their right to vote after they complete their sentences). There's no parole here in Florida (in NY there is) so why should anyone serving time be motivated to change? Florida is so backwards, it's disgusting. I truly feel like I'm living in a land of plantations and slaves.
Posted by: Topaz | Sep 21, 2007 12:49:14 PM
IF PEOPLE DONT WANNA DO THE TIME THEN THEY SHOULDNT DO THE CRIME! IF MORE STATES INACTIVE FLORIDAS TOUGHLOVE THEN MAYBE PEOPLE WOULD BE AFRAID TO COMMIT CRIMES.
Posted by: lIBERAL doUCH | Jan 8, 2008 5:50:00 PM