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Bill seeks to avoid inadvertent “abatement” of criminal laws

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Concerned that a “technical” constitutional amendment approved by voters last November could unintentionally lead to the repeal of innumerable criminal statutes, a House subcommittee has passed a clarifying bill.

Amendment 11 was billed as a technical cleanup of the Florida Constitution by removing obsolete language and making minor changes. One was to Article X, Section 9, and specified that if the Legislature passed a bill lowering penalties for a crime, those lower sanctions would apply to cases pending but unresolved at the time the law was changed.

The House Criminal Justice Subcommittee on March 12 approved HB 7069 after hearing under common law and existing case law, it might be interpreted that lowering the penalty for a criminal infraction invalidates the entire law.

According to the staff analysis of the bill, the U.S. Supreme Court and other courts have held that an amendment to a “criminal statute without a constitutional or statutory savings clause results in abatement [or dismissal of the change] because it is an implied repeal. Statutory savings clauses prevent the doctrine of abatement from resulting in the dismissal of pending actions when a criminal statute is amended.”

The approved bill specifies for future amendments retroactivity applies only apply when a future law says a reduction in penalty or other change is retroactive.

“We spent a lot of time doing research on this. . . going all the way back to the common law of England,” said Richard Martin, representing the Attorney General’s Office, which supports the bill. “This bill makes clear than an amendment to a criminal statute doesn’t trigger a common law doctrine of abatement. It also permits the Legislature to adopt retroactive changes to criminal statutes if it’s expressly stated in the enacting law. That’s consistent with Amendment 11 and existing case law. It provides that if it’s not expressly stated that amendments to criminal statutes operate prospectively.”

Rep. Juan Fernandez-Barquin, R-Miami, who presented the bill, said Amendment 11 created a “hole in the wall” that could lead to inadvertent repeal of criminal laws.

However, Greg Newburn, a director of FAMM, a national sentencing reform organization, said while the organization has no position on the bill, it could allow automatic retroactivity of penalty reductions while still providing a savings protection for other changes that would avoid the abatement problem.

Rep. Jamie Grant, R-Tampa, the subcommittee chair, said he’s open to changes as the bill progresses in the House. He noted that before the amendment, the Legislature did not possess any authority to make retroactive penalty reductions and it will have that power under the bill.

The original Section 9 said, “Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.” As approved by voters, the amendment says: “Repeal of a criminal statute shall not affect prosecution for any crime committed before such repeal.”

A similar bill SB 1656 has been introduced by Sen. Tom Lee, R-Brandon, in the Senate and is supported by Attorney General Ashley Moody.

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