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Sentencing Guidelines and Statutory Maximums in Florida: How Best to Respond to Apprendi

Criminal Law

The United States Supreme Court’s “largely over looked” decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), announced on June 26, 2000, “could,” according to one commentator, “jeopardize federal sentencing guidelines and similar state systems,”1 including Florida’s. While there is considerable dispute over how much of sentencing guidelines law Apprendi has rendered unconstitutional,2 it is clear that the federal Supreme Court has effectively overruled the Florida Supreme Court’s July 1998 decision in Mays v. State, 717 So. 2d 515 (Fla. 1998), holding that sentencing maximums contained in F.S. §775.082(3) do not limit the sentences under the guidelines. Further, Apprendi has drastically limited the impact of the statutory language construed in Mays,3 as well as the similar provision in the now-applicable Criminal Punishment Code, providing “If the lowest permissible sentence under the code exceeds the statutory maximum sentence as provided in s. 775.082, the sentence required by the code must be imposed.”4 This column discusses these implications of Apprendi for sentencing law in Florida5 and suggests the best way to respond to them: to repeal the quoted language.

Guideline Sentences and Statutory Maximums

Florida first implemented sentencing guidelines for noncapital felonies in 1983, through the rulemaking power of the state Supreme Court.6 Following the model in every other jurisdiction that had adopted guidelines, the Florida Supreme Court ruled that no guideline sentence for a noncapital felony could exceed the maximum sentence authorized by statute for that crime.7 In other words, the statutory maximums found in F.S. §775.082(3) were just that: maximums that a guidelines sentence could not lawfully exceed.

A decade later the Florida Legislature substituted its version of guidelines for those the judiciary had evolved.8 Among the many changes wrought by the legislature in drafting what eventually became the Criminal Punishment Code was to allow guideline sentences to exceed the statutory maximum. Such a provision first became effective in 1994; the language quoted above, which carries forward the same policy, was adopted in 1998.

The Florida Supreme Court construed the predecessor provision in Mays v. State. Convicted of aggravated assault for pulling a knife on another while threatening to kill him, Albert Mays’ guideline sentence was 67.8 months, while the statutory maximum for his crime was only 60 months. At trial and on appeal Mays objected to any sentence over 60 months, but the Florida Supreme Court unanimously rejected his argument, relying explicitly on the statutory language allowing a guideline sentence to exceed the statutory maximum.9 Thus the primacy of the guideline sentence over the statutory maximum seemed firmly established in Florida—until the U. S. Supreme Court had its say.

Apprendi v. New Jersey

For his armed harassment of an African-American family, New Jersey prosecuted Charles Apprendi for possession of a firearm for an unlawful purpose, a crime punishable by a maximum of 10 years’ imprisonment; however, under New Jersey’s hate crime statute, the sentence was eligible for enhancement to 20 years, if the sentencing judge found by a preponderance of the evidence that Apprendi’s purpose was to intimidate another because of his race. The judge made the necessary finding and sentenced Apprendi to 12 years.

In every court in which he appeared, Apprendi argued that this sentence violated his constitutional right to due process. He finally found a sympathetic ear in the U. S. Supreme Court, which held five-to-four that “[o]ther 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.”10

The Apprendi majority justified its constitutional rule with an extensive discussion of a number of previous decisions, highlighting United States v. Gaudin, 515 U.S. 506 (1995) (materiality element in federal crime is an issue for the jury, not the judge); Mullaney v. Wilbur, 421 U.S. 684 (1975) (shifting burden of persuasion to defendant on heat-of-passion mitigation of murder to manslaughter violates due process); and Jones v. United States, 526 U.S. 227 (1999) (any fact, other than a prior conviction, that increases a maximum sentence under federal law must be charged in an indictment) (5-4 decision); while distinguishing Patterson v. New York, 432 U.S. 197 (1977) (shifting burden of persuasion to defendant on extreme-emotional-disturbance mitigation of murder to manslaughter does not violate due process); McMillan v. Pennsylvania, 477 U.S. 79 (1986) (fact triggering a mandatory minimum sentence need not be found by a jury beyond a reasonable doubt); and Almendarez-Torres v. United States, 523 U.S. 224 (1998) (prior record need not be charged in an indictment for a federal crime, even when it increases the maximum sentence for the crime charged) (5-4 decision). Justice Thomas’ concurrence, joined by Justice Scalia, went further, indicating a willingness to overrule both McMillan and Almendarez-Torres, if not Patterson.11 Justice O’Connor’s dissent, joined by three others, was just as vocal as the majority in championing the questioned decisions and distinguishing those cases that undercut them.12

This column is not the place to consider who had the better side of the argument in Apprendi. It is enough for present purposes to count votes and to forecast what the prevailing side’s rule might signify for guideline sentencing law in Florida. The upshot appears to be the overruling of Mays and a severe restriction on the capacity of guideline sentences under Florida’s Criminal Punishment Code to exceed the statutory maximums enunciated in §775.082.

Sentences Exceeding Statutory Maximum

Because the Florida Legislature’s assertion that a guideline sentence may exceed the statutory maximum cannot override the due process right recognized in Apprendi, that decision has effectively overruled Mays v. State, which accepted the legislature’s assertion as controlling. Consequently, a Florida court considering a sentence exceeding the statutory maximum must evaluate that sentence in light of the rule enunciated by the Apprendi majority.

To satisfy that rule, any fact that raises the sentence above the statutory maximum (other than a previous conviction) must have been found by the jury beyond a reasonable doubt. This means that a number of relevant factors once determined by the judge at sentencing must now be submitted to a jury: the extent of victim injury, whether the defendant held any “legal status” (such as being incarcerated or in violation of a bond) or was on probation at the time of the crime, whether the defendant possessed a firearm during the crime, membership in “a criminal street gang,” and whether the defendant committed domestic violence in the presence of a child.

13 Because a few other sentencing factors rely entirely on previous convictions—such as prior record, a prior capital felony, and a history of auto theft14 & #x2014;they should not require a jury finding,15 but a jury determination will probably be necessary for sentencing factors relying only partially on prior record, such as having previously committed a serious felony and having been out of community control for less than three years when the current offense was committed.16

Two ways of satisfying Apprendi ’s requirements suggest themselves: the use of special verdicts regarding the factors mentioned above, which the jury would consider during its general deliberations, or holding a separate sentencing proceeding after the jury returns a verdict of guilty, so that the jury might then consider the relevant factors. Special verdicts might work for some sentencing factors, like victim injury, possession of a weapon, and presence of a child during domestic violence. But their use would encounter the traditional American hostility to special verdicts in criminal cases.17 Even were this hostility overcome, special verdicts would be inappropriate for other sentencing factors, such as legal status, membership in a street gang, or commission of the crime soon after release from a serious felony, because their resolution would require the introduction of evidence highly prejudicial to the defendant during the guilt phase of the trial. Adoption of a cumbersome “penalty phase” process, similar to that now applicable in capital cases,18 seems unavoidable.

Legislation or court rules will be necessary to implement these new procedures. Before such steps are taken, another option ought to be considered. Because relatively few Florida guideline sentences exceed the statutory maximum,19 the procedural rigmarole required to validate such sentences under Apprendi hardly seems worth the effort. This author’s guess is that even if new procedures are adopted, prosecutors in the vast majority of criminal cases will obviate the need for special verdicts and penalty phase proceedings by stipulating to a guideline sentence no higher than the statutory maximum. The author’s recommendation is that the Florida Legislature formalize this prosecutorial preference, and avoid the need for any new procedures, by enacting the rule applicable in every other guidelines system of which he is aware, that a guideline sentence may not exceed the statutory maximum.

The legislature could accomplish this step by deleting the language in §921.0024(2) quoted in the first paragraph of this column.20 This amendment would allow the guidelines system to function as it did before Apprendi, with the judge finding various sentencing factors after a jury determination of guilt. The only difference would be that regardless of the sentence suggested by the guidelines, the sentence imposed could not exceed the statutory maximum. Thus, the statutory maximums would function as the upper limits for all sentences under the guidelines. This amendment would preserve the procedural flexibility of the current guidelines system, while protecting the due process rights recognized in Apprendi, at an insignificant cost to the state in terms of punishment forgone.

Some die-hard partisan of Florida’s current guidelines regime may suggest that there is an even simpler way to deal with the problem created by Apprendi v. New Jersey : Why not raise the statutory maximums in §775.082(3)? This strategy is unwise for two reasons. First, the maximums contained in that section are already very high: life imprisonment for life felonies, life for some first degree felonies and 30 years for the others, 15 years for second degree felonies, and five years for third degree felonies.21 Second, and more importantly, the Apprendi Court strongly implied that it would view such legislative behavior (what some commentators have already begun to call “ Apprendi evasion”22 ) as constitutionally suspect. In response to a suggestion by the dissenters in Apprendi that the majority’s rule could be circumvented by a legislature’s “extending all statutory maximum sentences to, for example, 50 years,” the Court responded forebodingly, “[I]f such a[]. . . revision. . . were enacted for the purpose the dissent suggests,. . . we would be required to question whether the revision was constitutional under this Court’s prior decisions,” citing Patterson v. New York and Mullaney v. Wilbur.23

Florida must accept Apprendi v. New Jersey, rather than try to avoid it. The state must accept that Mays v. State is no longer good law, and that the impact of the language regarding statutory maximums in F.S. §921.0024(2) has been significantly curtailed. Rather than invent a cumbersome process of special verdicts and penalty phase proceedings in order to save that language from unconstitutionality, Florida should abandon the language, returning to the rule followed in Florida prior to 1994 and adopted in all other jurisdictions with sentencing guidelines, that a guideline sentence may not exceed the statutory maximum. q

1 Brooke A. Masters, High Court Ruling May Rewrite Sentencing, Washington Post, July 23, 2000, at A1. See also Robyn E. Blumner, Court Says Juries, Not Judges, Must Decide the Crime, St. Petersburg Times, Aug. 6, 2000, at 3D.
2 See generally Masters, supra note 1 (quoting judges, lawyers, and a law professor). For the first cases dealing with Apprendi ’s impact in federal court, see United States v. Aguayo-Delgado, 2000 WL 988128 (8th Cir. July 18, 2000); United States v. Sheppard, 2000 WL 988127 (8th Cir. July 18, 2000).
3 “If a recommended sentence under the guidelines exceeds the maximum sentence otherwise authorized by s. 775.082, the sentence under the guidelines must be imposed, absent a departure.” Fla. Stat. §921.001(5) (1999); see also Fla. Stat. §921.0014(2) (same language).
4 Fla. Stat. §921.0024(2).
5 While this column concerns Apprendi ’s impact on Florida’s sentencing guidelines, the opinion also casts doubt on other state sentencing provisions. Most obvious is Florida’s hate crime statute, Fla. Stat. §775.085 (1999), which bears similarities to the New Jersey statute applied in Apprendi . See supra note 10. Also arguably vulnerable are the habitual offender provisions in Fla. Stat. §775.084 (1999). See supra note 16.
6 See generally Robert Batey & Stephen M. Everhart, The Appeal Provision of Florida’s Criminal Punishment Code: Unwise and Unconstitutional , 11 U. Fla. J.L. & Pub. Pol’y 5, 9–13 (1999).
7 See Fla. R. Crim. P. 3.701(d)(10).
8 See generally Batey & Everhart, supra note 6, at 14–19.
9 See 717 So. 2d at 516 (quoting Fla. Stat. §921.001(5); see supra note 3); id . (Pariente, J., concurring in part and dissenting in part) (“I concur that the trial court had authority to exceed the statutory maximum of 60 months’ incarceration.”).
The dispute in Mays between the four-man majority and the three concurring and dissenting justices regarded how far over the statutory maximum the sentencing judge could go. The majority allowed deviation up to 25 percent above the guideline sentence pursuant to Fla. Stat. §921.0014(2) (1999), which establishes a recommended range between 75 percent and 125 percent of the guideline sentence (and thus approved Mays’ actual sentence of 70 months), while the concurring and dissenting judges would have limited the sentencing judge to the guideline sentence itself, because it already exceeded the statutory maximum. Compare 717 So. 2d at 515–16 with id. at 516–19 (Pariente, J., concurring in part and dissenting in part).
The currently applicable provision, in §921.0024(2), will probably rekindle this dispute, though in a somewhat altered form. If the lowest permissible sentence, which is defined as 75 percent of the guideline sentence, exceeds the statutory maximum, the provision states that “the sentence required by the code must be imposed.” This language may be read to allow the court to select a sentence anywhere between 75 percent and 100 percent of the guideline sentence (a holding similar to the Mays majority’s), or it may be construed to limit the court to the lowest permissible sentence (reasoning similar to that of the concurring and dissenting justices in Mays ).
10 120 S. Ct. at 2362-63. This holding renders Florida’s hate crime statute, Fla. Stat. §775.085 (1999), constitutionally suspect. See supra note 5.
11 See 120 S. Ct. at 2378-80 (Thomas, J., concurring). While casting doubt on McMillan and Almendarez-Torres , the Apprendi Court left their reconsideration to another day. See 120 S. Ct. at 2361 n.13, 2362 & n.15.
12 A further dissent by Justice Breyer questioned the majority’s rule as unwise policy, sparking a rejoinder from Justice Scalia in a brief concurring opinion of his own.
13 See Fla. Stat. §§921.0021(3),. 0024(1)(b) (1999).
14 See id . §921.0024(1)(b).
15 This conclusion assumes that the Supreme Court will not overrule Almendarez-Torres, 523 U.S. 224 (1998), a possibility the Apprendi majority raised and a result the Thomas concurrence advocated. See supra note 11 and accompanying text. If Almendarez-Torres is overruled, even these factors would require a jury finding beyond a reasonable doubt.
16 See Fla. Stat. §921.0024(1)(b) (1999).
17 See generally United States v. Spock , 416 F.2d 165 (1st Cir. 1969); 5 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure §24.10(a), at 611-15 (2d ed. 1999).
18 See Fla. Stat. §921.141 (1999).
19 A district court of appeal judge expressed this opinion to me in private conversation, confirming my own impression.
20 It would also be necessary to delete the similar language in Fla. Stat. §§921.001,. 0014(2) (1999), see supra note 3, because those provisions would still apply in prosecutions for acts committed prior to October 1, 1998, the effective date of §921.0024(2).
21 See id. §775.082(3) (1999).
22 This phrase popped up on the e-mail discussion list Crimprof, which is limited to teachers of criminal law and procedure, in the weeks after Apprendi was decided.
23 120 S. Ct. at 2363 n.16 (citing 432 U.S. at 210; 421 U.S. at 698–702).

Robert Batey holds a bachelor’s degree from Yale University and law degrees from the University of Virginia and the University of Illinois. He joined the faculty of Stetson University College of Law in 1977. Professor Batey has written extensively on criminal justice, law and literature, and related topics.

This column is submitted on behalf of the Criminal Law Section, Harvey J. Sepler, chair, and Randy E. Merrill, editor.

Criminal Law