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June 21, 2005

A great prior conviction test case

I am very glad to see Michael Ausbrook, who does a great job covering state Blakely stories, back in action at INCourts.  And, in addition to this strong post on the California Supreme Court decision in Black, Michael highlights in this recent post a big Blakely case to be argued in the Indiana Supreme Court on Tuesday, Ryle v. State, which concerns the scope of the prior conviction exception.

I have spotlighted Ryle before in posts here and here because it seems like an especially good test case for the scope of the "prior conviction" exception.  Ryle raises two issues which have divided lower courts: whether (1) juvenile adjudications and (2) being on probation at the time a crime is committed fit within the prior conviction exception.  Michael's post provides considerable background on the juvenile adjudications issue, and also provides links to the parties' supplemental briefs.  In addition, thanks to Michael, I can provide this link as the place to find on-line a webcast of the Ryle oral argument taking place on Tuesday morning in the Indiana Supreme Court.

June 21, 2005 at 01:20 AM | Permalink

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Argument.
Appellant respectfully submits that his LIFE mandatory PRR sentences for Counts I-III plus Count V violates his Sixth Amendment right to (1) notice in the charging document; (2) proof beyond reasonable doubt and (3) a jury trial in light of the Supreme Court’s decisions in Blakley v. Washington, 124 S.Ct. 2531 (2004), United States v. Booker, 125 S.Ct. 738 (2005), and now Shepard v. United States, 125 S.Ct. 1254, 1264 (2005). It violates all three (3) distinct constitutional rights not merely one.
The United States Supreme Court in Blakely, addressed a provision of Washington State's determinate sentencing law that allowed a sentencing judge to impose a sentence above the standard statutory sentencing range if the sentencing judge found, by a preponderance of the evidence, that certain offense aggravating factors existed that justified a sentence in excess of the guidelines “standard range." Blakely, 124 S.Ct. at 2535.
In Blakely, the trial judge utilized this authority to impose a ninety(90)month prison sentence, even though the standard range for Mr. Blakely's offense, second-degree kidnaping, was 49 to 53 months in prison. Id. In striking down Blakely's enhanced sentence, the Supreme Court explained "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."Id. at 2537. The Court rejected the State’s contention that the “statutory maximum” for the criminal offense was the ten year statutory maximum. Thus, because the jury in Blakely’s case did not determine the factual basis for the enhanced sentence, and Mr. Blakely did not admit the facts, his enhanced sentence could not survive a Sixth Amendment challenge.
On January 12, 2005, the U.S. Supreme Court issued its opinion in United States v. Booker, 125 S.Ct. 738 (2005), finding certain provisions of the Federal Sentencing Guidelines, promulgated pursuant to the Sentencing Reform Act of 1984, unconstitutional. The Supreme Court initially held that the Federal Guidelines violated the defendant's Sixth Amendment right to a jury trial because they require judges to find facts which in turn increase a defendant's sentence beyond what could be imposed based solely on the jury's verdict. One of the Court's holdings is straight-forward: The U.S. Sentencing Guidelines violate the Sixth Amendment to the extent that they allow judicial -- rather than jury fact finding to form the basis for sentencing. The other holding is far from straight-forward and not relevant to State sentencing. 18 U.S.C. § 3553(b)(1) 18 U.S.C. § 3742(e)
In light of Booker and Blakely, the relevant “statutory maximum” is now the maximum a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Under Florida law, this is the Florida Criminal Punishment Code.
The Criminal Punishment Code guidelines are the presumptive sentence under Florida law. Fla. R. Crim. P. 3.704(a), (d)(1); Section 921.002, Fla. Stat. (2003) (“The Criminal Punishment Code shall apply to all felony offenses, except capital felonies, committed on or after October 1, 1998.”). The PRR statute is nothing more than a mandatory departure from the Criminal Code without a jury finding beyond a reasonable doubt condemned in both Blakely and Booker. It is an enhanced punishment beyond that allowed by the verdict alone i.e., the Criminal Punishment Code sentence with its judicial discretion and gain time. The PRR statute is not a recidivist statute that distinction belongs to the four (4) habitual felony offender statutes devised by our Legislature The PRR statute is a departure from the Criminal Code guidelines. The Sixth Amendment problem with the PRR statute is that it requires a sentencing judge as opposed to a jury to make findings of fact (and to do so under the wrong standard of proof).
Appellant acknowledges that the Florida Supreme Court previously rejected an Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), challenge to the PRR statute in McGregor v. State, 789 So. 2d 976 (Fla. 2001). See also Robinson v. State, 793 So. 2d 891, 893 (Fla. 2001); Kijewski v. State, 773 So. 2d 124 (Fla. 4th DCA 2000). However, Blakely and Booker are much broader in scope and application than Apprendi which directly affects the Florida PRR statute. “While Blakely certainly states that it is merely an application of “the rule we expressed in Apprendi v. New Jersey,” --- U.S. at ---, 124 S.Ct. at 2536, it is clear that Blakely went beyond Apprendi by defining the term “statutory maximum.” As the Seventh Circuit recently said, it “alters courts’ understanding of ‘statutory maximum’” and therefore runs contrary to the decisions of “every federal court of appeals [that had previously] held that Apprendi did not apply to guideline calculations made within the statutory maximum.” Simpson v. United States, 376 F.3d 679, 681 (7th Cir. 2004) (collecting cases). Because Blakely radically reshaped our understanding of a critical element of criminal procedure, and ran contrary to established precedent, we conclude that it represents a new rule of criminal procedure.” Smylie v. State, 823 N.E. 2d 679, 687 (Ind. 2005).
Under Florida law, a PRR prison sentence constitutes a mandatory minimum or maximum prison sentence based on context. State v. Cotton, 769 So. 2d 345, 354 (Fla. 2000); Grant v. State, 770 So. 2d 655, 658 (Fla. 2000) (“It is no different to impose, on a qualifying defendant, a PRR mandatory sentence concurrently with a longer HFO sentence than to impose a mandatory minimum sentence for use of a firearm concurrently with a longer HFO sentence.”)
The Florida Legislature has delineated not one but three (3) different ways in which a defendant can qualify as a PRR. Section 775.082(9)(a) requires the conviction of an enumerated offense and more importantly that the enumerated offense be committed (1) while in prison, (2) on escape from a prison, (3) or within three (3) years of release from a Florida or other prison serving a sentence for an offense punishable by more than one year in prison in Florida. Section 775.082(9)(a)1 & 2 Appellant submits that a statute that eliminates a Criminal code guidelines sentence Section 775.082(9)(a)2 (2004) from judicial consideration and requires imposition of the statutory maximum as a mandatory sentence that must be served day for day is a clear increase in the penalty beyond what the verdict alone allows. Blakely; Booker. Since the sentence imposed pursuant to the PRR Act, is greater then what the verdict alone allows, the defendant’s escape, prison status or release date must be alleged in the charging document, found by a jury, and proven beyond a reasonable doubt to allow the enhanced PRR mandatory maximum sentence be imposed rather than the applicable Criminal Punishment Code guidelines sentence.
PRIOR CONVICTION EXCEPTION
Appellant readily acknowledges that in Apprendi, Blakely, and Booker, the
Supreme Court carved out a “prior conviction” exception as follows: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Blakely, 124 S.Ct. at 2536. But see Justice Marshall’s concurring opinion in Shepard v. United States, 125 S.Ct. at 1264 that “prior conviction” exception should be abolished.
The Apprendi/Blakely “prior conviction” exception is not an elastic “recidivism exception.” The “prior conviction” exception in Booker and Blakely means exactly that and must be strictly construed to a “prior conviction” where the defendant had a full jury trial or plea to establish the facts therein. The Apprendi court emphasized that the “prior conviction” exception is a “narrow exception” to the general rule that all facts essential to the maximum punishment must be found by the jury. Apprendi, 530 U.S. at 491, 120 S. Ct. at 2362. This exception is justified in part by “the certainty [of] procedural safeguards attached to any ‘fact’ of prior conviction.” Id. at 488, 120 S.Ct. at 2362 [Emphasis Added].
For example, in State v. Mitchell, 687 N.W. 2d 393 (Minn. App. 2004) review granted, Dec. 22, 2004, the Minnesota State “career-offender statute” was challenged on Blakely grounds. The Minnesota career-offender statute provides that, when a judge is imposing an executed sentence, and execution is the presumptive disposition that a sentencing judge may impose a departure sentence if there is a finding of five or more prior felony convictions and a “pattern of criminal conduct.” See Minn. Stat. § 609.902, subd. 6(3)(i) (1994). The Mitchell Court explained that: “Determining whether a conviction is part of a ‘pattern of criminal conduct’ involves a comparison of different criminal acts, weighing the degree to which those acts are sufficiently similar with respect to any of the characteristics listed in Gorman. This determination goes beyond a mere determination as to the fact, or number, of the offender’s prior convictions, which judges are permitted to make without violating the Sixth Amendment jury-trial right.” Id. The Mitchell Court concluded :

The Apprendi court emphasized that the “prior conviction” recidivism factor is a “narrow exception” to the general rule that all facts essential to the maximum punishment must be found by the jury. 530 U.S. at 491, 120 S. Ct. at 2362. This exception is justified in part by “the certainty [of] procedural safeguards attached to any ‘fact’ of prior conviction.” Id. at 488, 120 S.Ct. at 2362. The bare fact of a prior conviction, however, does not establish the motive behind the crime, its purpose, results, participants, or victims. As to those aspects of the prior conviction, so essential to the determination of a “pattern of criminal conduct” under Gorman, the earlier criminal prosecution has provided no “procedural safeguards.” We, therefore, conclude that the career -offender statute’s finding of “pattern of criminal conduct” is beyond the scope of the recidivism exception recognized in Apprendi.

Id. [Emphasis added].

In State v. Perez, 196 Or.App. 364, 102 P.3d 705 (Or. App. 2004), the Trial Judge’s findings that the defendant convicted of possession and delivery of narcotics had (1) persistent involvement in similar offenses, (2) that the defendant was on supervision at time instant offenses occurred, and that (3) previous supervision had failed to deter him from engaging in further criminal conduct, which findings were based in part on a Presentence Investigation report (PSI) characterizing defendant as "psychopath," exceeded the scope of fact of the “prior conviction exception” to the Blakely rule that facts used to enhance a prison sentence be submitted to jury and proven beyond reasonable doubt.
Appellant respectfully submits , therefore, that his mandatory LIFE Prison Releasee Reoffender sentences (hereinafter “PRR”) violates his Sixth Amendment right to (1) notice in the charging document; (2) proof beyond reasonable doubt and (3) a jury trial in light of the Supreme Court decisions in Blakley v. Washington, 124 S.Ct. 2531 (2004), United States v. Booker, 125 S.Ct. 738 (2005), and now Shepard v. United States, 125 S.Ct. 1254, 1264 (2005). It violates all three (3) distinct constitutional rights not merely one.
This issue has NOT been decided against Appellant. Appellant acknowledges that the Florida Supreme Court previously rejected an Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), challenge to the PRR statute. So what? This is not another Apprendi case.
The Florida Criminal Punishment Code guidelines are the presumptive sentence under Florida law. Fla. R. Crim.P. 3.704(a), (d)(1); Section 921.002, Fla. Stat. (2003). The PRR statute is nothing more than a mandatory departure from the Criminal Code without a jury finding beyond a reasonable doubt condemned in both Blakely and Booker. It is an enhanced punishment beyond that allowed by the verdict alone i.e., the Criminal Punishment Code sentence with its judicial discretion (sentence up to statutory maximum) and gain time. When a sentencing judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment.’” Blakely, 542 U.S. at ---, 124 S.Ct. at 2537 (quoting 1 J. Bishop, Criminal Procedure § 87 (2d ed. 1872)).
The “prior conviction” exception in Booker and Blakely means exactly that and must be strictly construed to a “prior conviction” where the defendant had a full jury trial or plea to establish the facts therein. The Apprendi court emphasized that the “prior conviction” exception is a “narrow exception” to the general rule that all facts essential to the maximum punishment must be found by the jury. Apprendi, 530 U.S. at 491, 120 S. Ct. at 2362. This exception is justified in part by “the certainty [of] procedural safeguards attached to any ‘fact’ of prior conviction.” Apprendi,530 U.S. at 488, 120 S.Ct. at 2362 [Emphasis Added].
Likewise, the PRR findings as to “prison status” or “release date” or committing “an enumerated offense within three years” are certainly beyond the scope of the NARROW “prior conviction” exception contained in Apprendi, Blakely and Booker. The PRR is something altogether different. It is a prison enhancement sentence a mandatory maximum sentence without judicial discretion devised by the Florida Legislature who did not have the benefit of Blakely, or Booker in passing the PRR statute back in 1998. There has been a total revolution in Sixth Amendment jurisprudence since the passage of the PRR Act by the Florida Legislature. See Booker; Justice Marshall’s concurring opinion in Shepard.
Judges may not find facts by a preponderance of the evidence if those facts increase the severity of the punishment to which a defendant is exposed. Blakely; Booker. This is exactly what the trial judge did in the instant case. The Trial Court here found a fact (committing an enumerated offense within 3 years from release from prison) instead of the jury, with the wrong standard of proof (preponderance) without notice in the charging document as required by the Sixth Amendment. The only valid Notice under the Sixth Amendment is in the information. The Blakely Court disapproved of an ambush sentencing system that allows a judge to rely on a probation officer's report to increase a defendant's maximum potential sentence dramatically without warning the defendant either at the time of the indictment or the plea. Blakely, 542 U.S. at ---, 124 S.Ct. at 2542. The fifteen (15) year PRR prison sentence imposed violates the Sixth Amendment under Blakely, Booker, Shepard, Mitchell, and Perez and it should be vacated on remand.
The PRR statute as applied to Appellant is unconstitutional under Blakely, Booker, Shepard, Mitchell, and Perez. Hence, Appellant’s LIFE mandatory PRR prison sentences for Counts I -III and Count V must be vacated and these counts remanded to the lower court for a Florida Criminal Code guidelines sentence.
POINT IV

THE PRR STATUTE IS UNCONSTITUTIONAL ON ITS FACE DUE TO A LACK OF STATUTORY NOTICE PROVISION.

PRESERVATION. This issue was preserved by the filing of a Fla. R. Crim. P. 3.800(b)(2) motion to correct sentence in the lower court on this basis. Appendix 1. Even if this issue was not raised in the lower court, the facial constitutionality of a statute may be raised for the first time on appeal. Trushin v. State, 425 So. 2d 1126 (Fla. 1982); Taccariello v. State, 664 So. 2d 1118, 1120 (Fla. 4th DCA 1995).
STANDARD OF REVIEW. Issues involving constitutional challenges to, or construction of, statutes are pure questions of law subject to de novo review. Russ v. State, 832 So. 2d 901 (Fla. 1st DCA 2002). “All statutes are presumed to be constitutional, and the party challenging the constitutionality of a statute bears the burden of demonstrating that it is invalid.” Hudson v. State, 825 So. 2d 460, 465(Fla. 1st DCA 2002).
The Florida PRR statute, Section 775.083(9)(a), on its face, with its total lacks of any statutory written notice to the defendant is in violation of the Sixth Amendment Notice requirement articulated by Booker and Blakely. Blakely, 124 S.Ct. at 2536; Apprendi, 120 S.Ct. at 2354: “We noted in [Jones v. United States, 526 U.S. 227(1999)] that ‘under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.’”
The High Court in Jones made clear that: “The constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment; these are the safeguards going to the formality of notice, the identity of the factfinder, and the burden of proof.” Jones, 526 U.S. at 243, n.6 [e.s.]. The Florida Legislature did not have the benefit of Blakely and Booker when it drafted the PRR statute back in 1998.
The Sixth and Fourteenth Amendment commands the same answer in this case involving a state statute that fails to provide any notice mechanism of an increased mandatory penalty to the defendant. See Section 775.082(9)(a)3, Florida Statutes (2004) (“3. If the state attorney determines that a defendant is a prison releasee reoffender as defined in subparagraph 1, the state attorney may seek to have the court sentence the defendant as a prison releasee reoffender. Upon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffender as defined in this section, such defendant is not eligible for sentencing under the sentencing guidelines and must be sentenced as follows ....”
This Court in Rollinson v. State, 743 So. 2d 585, 589-590 (Fla. 4th DCA 1999), approved, 778 So. 2d 971 (Fla. 2001), indicated: “Procedural due process requires that an accused have notice and an opportunity to be heard.” See State ex rel. Gore v. Chillingworth, 126 Fla. 645, 171 So. 649 (1936). The Florida Supreme Court has stated that “publication in the Laws of Florida or the Florida Statutes gives all citizens constructive notice of the consequences of their actions.” State v. Beasley, 580 So. 2d 139, 142 (Fla. 1991); see W.J. v. State, 688 So. 2d 954, 956 (Fla. 4th DCA 1997). Section 775.082(8)(a)2 of the Act also requires the state attorney to prove that a defendant is a prison releasee reoffender by a preponderance of the evidence. The Rules of Criminal Procedure require notice and an opportunity to be heard on such an issue. See Fla.R.Crim.P. 3.030, 3.720. At a hearing on the applicability of a prison releasee reoffender sentence, a defendant may offer evidence in opposition to the state's proof. The Act meets procedural due process rights.”
This so called “penal code” Notice is totally inadequate under the new expanded Sixth Amendment rights delineated by the United States Supreme Court in Blakely, Booker, and Shepard. There has been a revolution in sentencing procedure since 1999. Constructive notice is out and actual Notice is in.
The PRR statute utterly fails to provide actual Notice to the defendant through a charge in the information or even minimally through separate notice provision as found in the Florida habitual felony offender statute. None. No Notice! Ambush sentencing authorized by the PRR is unconstitutional under the Sixth Amendment. The lack of meaningful notice to a defendant facing a mandatory statutory maximum sentence (with no gain time) renders it unconstitutional on its face. On this separate basis, this Honorable Court should declare the PRR statute unconstitutional on its face and vacate Appellant’s LIFE PRR prison sentences for Counts I -III and Count V and remand these counts for Criminal Code guidelines sentences.

Posted by: defense attorney | Jun 22, 2005 9:48:50 AM

Client sentenced in 1991 to life in prison, in Florida. F.S. 810.02(1)& 2 Burgulary of a Dwelling with a Firearm. Sentence: Natural Life, with credit for time served. Does he get gain time, since this was a guidelines sentence? It would seem so, but he also was sentenced to Life without parole for 25 years, for Murder in the First Degree. F.S. 784.04(1)a Capital Felony. The client has 15 years to serve on the Capital Felony, but, is that sentence merged in the Life Sentence? He should earn enough gain time in 25 years to be released on the Life Felony, if he is released on the Capital felony. His record does not show that he is receiving any gain time.
My research begins. When I saw your website I thought I might get some answers. Please let me know what you think about less time to be served for Capital Murder than for armed burglary. He was also sentenced to Aggravated battery with a firearm, a second degree felony. It appears that all sentences are concurrent.

Posted by: Robert R. Hagaman | May 16, 2006 3:28:44 PM

If a person is accused a aggravated assult But, the plannitiff do not appear in court(three times)what typically happens.

Posted by: khadijah muhammad | May 24, 2008 12:20:00 PM

Once you have been convicted as an habitual felon, and have done your time completely, then you get into trouble again, can they use the same prior convictions(used the 1st time) to sentence you as an habitual felon again?

Posted by: j l wilson | Aug 19, 2008 8:35:01 PM

dell latitude ls 400 battery

Posted by: | Oct 14, 2008 11:00:17 AM

If a convicted inmate escapes from a CWR facility in Florida, and turns himself in. What is the minimum sentencing for that charge?

Posted by: m hayton | Dec 29, 2008 2:54:29 PM

im just a mother in law trying to find answers..do you know of any cases that were reversed and remanded for re sentencing out of the 1st DCA

Posted by: terri | Jun 19, 2009 4:02:13 AM

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