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May 2, 2005

Florida Supreme Court declares Apprendi is not to apply retroactively

I have been so preoccupied of late with federal sentencing stories, I have not reported on some interesting recent state cases.  Perhaps the most notable of the bunch is the decision by the Supreme Court of Florida in Hughes v. Florida, No. SC02-2247 (Fla. Apr. 28, 2005) (available here), which declares, by a 5-2 vote, that "that Apprendi does not apply retroactively." 

Hughes is a thoughtful decision all around, with the dissenters making an interesting argument for retroactivity based on the particulars of Florida law.  But the majority is not convinced, and in the majority's opinion there is this particularly informative account of the state of Apprendi retroactivity nationwide:

We also find it persuasive that all but one of the federal courts of appeals have expressly considered the issue, albeit under a different retroactivity analysis, and not one has held Apprendi to apply retroactively. Several state courts also have considered the issue, and again not one has held Apprendi to apply retroactively.  Finally, the United States Supreme Court has held that Ring, which applied Apprendi in the death penalty context, does not apply retroactively.

UPDATE: Michael Ausbrook at INCourts has this extended post discussing Hughes and retroactivity and other related issues more generally.

May 2, 2005 at 08:31 PM | Permalink

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Comments

Hello,
My Son has been arrested in Polk County.
I would like to know what the sentencing guidelines are for these charges below.
So I will know what to do about this situation he has gotten hisself into.
Charge Number: 1
Statute: 893.13(6A) DRUGS-POSSESS-CNTRL SUB WO PRESCRIPTION
Charge on arrest docket: POSS OF ALPRAZOLAM
Bond Type: SBN Bond Number: AA05450216
Purge Number: Purge/Bond Amount: 1,000.00
Surety: 0.00 Cash: 0.00 Bond Exp.: SBN AA05-450216 FOR $1000.00
How Released: SBN
Upgrade/Reduction:

Charge Number: 2
Statute: 562.111 LIQUOR-POSSESS-BY PERSON UNDER 21 YOA 1ST OFF
Charge on arrest docket: POSS OF ALCO UNDER 21
Bond Type: SBN Bond Number: AA05450217
Purge Number: Purge/Bond Amount: 250.00
Surety: 0.00 Cash: 0.00 Bond Exp.: SBN AA05-450217 FOR $250.00
How Released: SBN
Upgrade/Reduction:

Posted by: Lisa Rice | Oct 5, 2005 1:34:05 PM

My father-in-law ( age 80) was arrested for exposure of sex organ, I would like to know what he is looking at getting? This is his first time getting in trouble.

Posted by: Michael Rash | Mar 5, 2007 8:35:47 PM

hi,
my husband just got arrested for a number of charges that happened in april, and for some reason they are just now arresting him for it. i would like to know if possible what is the min & max sentencing for these crimes?
Charge Number: 1
Statute: 893.13(6a) DRUGS-POSSESS-CNTRL SUB WO PRESCRIPTION
Charge on arrest docket: POSS METH INFO FILED

Charge Number: 2
Statute: 893.13(6b) MARIJUANA-POSSESS-NOT MORE THAN 20 GRAMS
Charge on arrest docket: POSS CANNABIS INFO FILED

Charge Number: 3
Statute: 893.147(1) NARCOTIC EQUIP-POSSESS-AND OR USE
Charge on arrest docket: POSS DRUG PARA INFO FILED

he is also most likely filed as a VOP as well because he is still on probation for polk county for a domestic battery (touch or strike misdemeanor that happened in April of this year.)


thank you for your time,

Sarah

Posted by: sarah | Jul 17, 2007 1:03:47 PM

Hi
my kids father was just arrested in florida.
could you please tell me what the sentencing is on statue 893.13-6b and on 893.147-14(1B)and Cap-Traffic. He has 10 charges all up,but these seem to be the most serious. I would be most gratful for any help you can give me. Thanks Daniela

Posted by: Daniela | Jul 30, 2007 5:51:05 AM

My son was arrested on July 3rd for an event that happened on April 13th, 2007. He was arrested for unlawful possesssion of 32.1 grams of Psilocyn, Florida State Statute Chapter 893.13 (6)(A)F and sale of 32.1 grams of Psilocyn, Statute 893.13 (1)(A)(1)F. He was 18 years old at the time, and is now 19, still has one semester of high school to complete. As a juvenile, he was caught skipping school with a small bag of stems and seeds of marijuana. What is the minimum and maximum penalty for the above charges, and what, if at all possible, could these charges to be dropped to taking into consideration that this was an isolated incident? I am his mother and I realize that he must suffer consequences but is it possible that these charges could be dropped to a misdemeanor?

Thanks so much for your time,
Cindy

Posted by: cindy | Sep 10, 2007 2:27:53 PM

Does anyone know about a new law that went into effect Oct. 1st,2007 reducing a sentence to 70% of time served?

Posted by: Berls | Oct 7, 2007 8:22:47 PM

Can you tell me what VOP means? How is it processed?

Thank you,

Cheryl

Posted by: Cheryl | Nov 14, 2007 10:02:23 AM

I am a parent, my son is in Florida was in drug court and is right now in county jail. I am in Oklahoma.

Posted by: Cheryl | Nov 14, 2007 10:15:11 AM

My 22 yr. old daughter was arrested June 2007
seven months after selling 4 Oxycodone pills
to undercover agents. She was charged with Possession of Oxy 893.13(6)(A)/F(3rd degree)
and sale and/or delivery of oxy 893.13(1)(A)
(1)/F (2nd degree). After the sale and before her arrest she went thru detox, medical brain
scans and intensive outpatient counseling. We hired an atty who told us that the state,
for first time offenders,usually reduces the charges to 3rd degree and withholds
adjudication making them eligible for drug court.Instead the state is asking for adjudication, 2 yrs probation and 2 yrs suspended DL with a permanent felony record.
Her atty claims that there was a change in
the statute after her arrest and the state
atty is following these new guidelines. I
cannot find a change in the statutes since
her arrest. Shouldn't she be grandfathered
in to the statute that was on the books when
she was arrested? How can I find out this
information? I'm wondering if her atty just
dropped the ball on submitting her paperwork
to the state atty and is now covering for
his mistake. Even the judge was surprised and
stated that he felt adjudication should be
withheld. She returns to court in January.
Thanks for any insight you can share. I'm
just a parent with a kid in trouble.

Posted by: Sydney | Nov 25, 2007 1:52:18 PM

Looking for help and advice. Brother just arrested for 28 grams of oxy. Any hope that he will not get the 25 years????

Posted by: Brianna | Apr 21, 2008 8:28:32 PM

my fiance was arrested in pensacola florida. the charges are battery-touch or strike and criminal mischeif $200. both are misdemeanors. could you please tell me what the min and max are for these charges? thank you so much for your time.
amber whitfield

Posted by: amber whitfield | May 9, 2008 9:32:37 PM

My ex-boyfriend is held on three counts in the Nassau County Jail of:Possession of crack coccaine. intent to distribute, and sale of crack coccaine. What is the maximum sentence he could get for those charges?and his bond is 25,002.00, if that was paid would he be able to not get any time for those charges?

Posted by: Anonymous | May 15, 2008 1:18:17 PM

I was charged with possesion of Heroin and possesion of paraphenalia I didn't have any drugs why did they insist on charging me with possesion when there is and was no physical Heroin. Can they do that will my charge get downgraded to a paraphenalia. I really didn't have any drugs.

Posted by: William Stewart | May 22, 2008 3:55:17 PM

My son is in Bay County, Florida jail for DUI, driving without a license, and felony evading. The prosecutor has offered 15 months in prison and five years probation. My son is only 18 as of January, 2008 and has no priors. My son says that he is being treated unfairly because he is from out of state. Does anyone have any precedents for first time offenders?

Thanks.

Posted by: Travis Torsak | Jul 9, 2008 10:16:08 PM

Hi could you plese tell me what the sentencing guidelines are for a 17 year old that caught with possesion was charged with statue 893.13.6b. He has never been in trouble before. I am trying to decide what to do but dont even know where to begin. Thank you. His first court date is in August.

Posted by: stacey | Jul 28, 2008 1:33:50 PM

Looking for insight into sentencing trends...DUI in Polk County, FL, 2nd offensive in MORE than 5 years...no property damage or any other charges incurred. Jail or no jail is the primary question? Thank you.

Posted by: Jerry | Aug 29, 2008 11:19:45 AM

I am a mother of a 3 year old (living in the state of Florida). My husband (soon to be ex) was sentenced probation about a year ago for a DUI (his first offense ever). Then just recently violated and was bonded out, but before he could even get back in court for that violation he was rearrested. He isn now being charged with 2 felony obtaining controlled substance fraud, 1 felony burglary structure unoccupied, 1 felony possession of oxycodone, and 1 misdemeanor VOP. My only concern in this is my daughter. He is fighting over the custody of her! I know the charges help my case, but if he stays behind bars (long enough to finally finish this divorce, 2 years later) that helps even more! What do you think the sentence on something like this would be?

Posted by: Concerned Mother | Oct 21, 2008 9:37:39 AM

my son was arrested in Ft. Lauderdale with a "roach" size amount of marijuana. I posted (via western union) $100 bail and he was released after 12 hrs in jail. But he was given no court date, etc. I don't know what he does next. He is starting a new job next week after no work for 2 months. I would like to find out if he needs a lawyer, or what, as we would like to only pay a fine and not deal with probation. He has never been arrested before. They did not even give him a court date.

Posted by: Peggy | Nov 26, 2008 7:19:45 PM

My step daughter is awaiting trial on the following charges fxxd8931351c1a.n traffacking oxyc 4g><14g. fxxxd94440 Escape. fxad893034a poss. of alprazoliam. mxxd893136b poss of cannabis/20 grams or less. mxxd8120143a petit theft.

in 2003 she was convicted if fxxd812132c robbery/no weapon

thank you.

Posted by: don andrew | Dec 1, 2008 2:09:09 PM

IT'S WEIRD HOW ALL THESE PEOPLE ARE POSTING THEIR PREDICAMENT AND ASKING FOR FREE ADVICE WHEN THEY SHOULD REALIZE THAT THE SYSTEM IS BIFURCATED IN TESTIMONIAL POSITIONS: THAT IS THEY DON'T FEEL THEY NEED TO HEAL THE PROBLEM, BECAUSE THE PROBLEM(RAMPANT ABUSE OF PHARMACEUTICALS) IS THE ONLY THING KEEPING THE SYSTEM AFLOAT. THE GOODWILL ON THE CORNER ISN'T JUST A THRIFT STORE ANYMORE, ITS' NOW A DRUG REHABILITATION PROGRAM BECAUSE THEY HAVE BEEN COOPTED BY THE SYSTEM. NOW IF ALL THE PHARMACEUTICALS WERE CONTROLLED OR THERE WAS A REGISTRY AND THE BLACK MARKET WAS SHUT DOWN, GOODWILL WOULD GO BANKRUPT BECAUSE THEY WOULDN'T HAVE OFFENDERS TO PAY THEIR FEES AND THE MORTGAGE ON THE 120 UNIT RESIDENTIAL FACILITY WOULDN'T BE MET.

Posted by: WEIRD | Jan 10, 2009 10:45:29 AM

My 18 year old son was charged with driving with no valid drivers lic and drug paraphernalia. Ten days later he was charged with Drug Paraphernalia Fl statue 893.147.1B and Poss Marajuana under 20 grams Fl statue 893.13.6B. He is a first timer offender. His court date is approaching soon for the second charges first. He lives in VA and was on his way to visit his dad (upon his 18th birthday) he has not seen in 16 years - when this happened. What sentencing might he get? What options does he have? Is there anything I can do for him? I have to pay a one way ticket for him to appear in court. Please help.

Posted by: Lynda | Jan 30, 2009 1:43:53 PM

My Fiance was arrested back in January for VOP and somehow caught a new charge for someone giving a statement that they found him in their home when they were not there. There were no charges pressed by the individuals, but the state of Florida is trying to pin him with burglary of an occupied dwelling. The statement giver only provided the information that marijuana was missing from the home, and I do not understand how he can be charged for someones missing drugs. My fiance did not steal their drugs, he has been clean and has passed every single UA assigned to him prior to, and after the incident occured. I'm wondering if he has a chance of defending himself in court, and if he can possibly beat these ridiculous charges, and how long he is possibly facing in prison if convicted?

Posted by: Rachel | Feb 3, 2009 2:50:45 PM

HEY MY B-FRIEND GOT ARRESTED BECAUSE A STATEMANT HIS EX- FRIEND SAID AND OF COURSE HIS BACKGROUNG!! THEIR IS NO EVIDENCE IN THE CASE AND THE EX-FRIEND HAS SINCE TOLD THE STATE IT WAS A LIE...THIS IS A ARMED ROBBERY CHARGE, THEY R TRYING TO TAKE THIS TO TRIAL...AND KEEP POSTPONING IT CUZ THEIR IS NO EVIDENCE...CAN THEY KEEP U LOCKED UP UNDER SUSPICION..CUZ THEY THINK HE IS GUILTY, AND DO U THINK IT IS WISE TO GO TO TRIAL???? PLEASE HELP ME IN ANY WAY!!

Posted by: BLIZZ | Feb 10, 2009 4:57:45 PM

I think this is a great blog and has provided interesting and useful information.Thanks

Posted by: immo oost vlaanderen | Mar 6, 2009 4:38:35 AM

help got a 893.13 for smoking pot while driving. the office put wrong date and never did DUI test? what will happen? fines? jail? community service?Thanks

Posted by: kris | May 16, 2010 11:12:55 AM

hi my brother got caught and charged with oessen cocain statute 893.13 6A what is the most and least time you can get they said his was an f 3the least.

Posted by: RENNE | May 31, 2011 3:38:59 PM

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