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Board debates rule that would provide a resentencing option

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Rule booksBy a slim majority, the Board of Governors has voted to accept a Criminal Procedure Rules Committee proposal that would allow prosecutors to request a resentencing hearing at any time.

“There’s this systemic racism that is deeply imbedded in our criminal justice system…and there is no avenue in our criminal justice system to even address that,” CPRC Vice Chair Jude Faccidomo told the board.

At a January 29 virtual meeting, the board voted 24-22-2 to “accept” the committee’s proposed amendment to Rule 3.800. Under the Rules of Judicial Administration, board members could only vote to accept, reject, or amend the proposed amendment. It goes next to the Supreme Court for final consideration.

The amendment would add a subsection (d) that simply states, “Upon stipulation of the state attorney and the defendant, and after hearing with proper notice to the victim, or victim’s next of kin, should there be any, the trial court may modify or reduce a sentence at any time.”

Supporters say the change would allow prosecutors to correct overly harsh or unequal sentences that have contributed over the years to mass incarceration, and possibly give prosecutors another way to reward cooperating witnesses.

Opponents say it’s a substantive change that should be left to lawmakers, that it would usurp clemency powers reserved for the governor, and that it would rob crime victims of the “finality” of sentencing by subjecting them to the trauma of endless court proceedings.

The CPRC voted 34-3 last year to approve the proposed amendment. But the Board of Governors delayed consideration at a December meeting after concerns were raised, and the proposal went back to the committee. At a subsequent January 15 CPRC meeting, a motion to rescind the proposed amendment failed 14-19-1.

Jude Faccidomo

Jude Faccidomo

The board voted to accept the proposed amendment after a lengthy discussion, and after listening to formal presentations by committee members representing majority and minority positions. Presenting for the majority, Faccidomo argued that the proposal is not a substantive change, and that part of the rule that sets a 60-day deadline for requesting resentencing hearings is arbitrary.

“This is a procedural change that is already contemplated within the rule, that would right wrongs,” Faccidomo said.

Faccidomo also argued that the proposed amendment was overwhelmingly supported by a committee made up of judges, prosecutors, and defense attorneys “in equal parts.”

Thirteenth Judicial Circuit Judge Michelle Sisco, who serves in a division that handles post-conviction relief, said the committee did not spend enough time considering the ramifications.

“When this first came up, I instinctively knew that this potentially had some open-ended consequences,” she said.

Judge Sisco said the proposed rule amendment would “obliterate” the Constitution’s provisions for a “tripartite” system of government.

“It is the Legislature that determines what acts constitute crimes, and what those punishments should be,” she said.

The amendment would also give prosecutors, defense attorneys, and judges clemency power that the Constitution reserves for the governor, Judge Sisco said.

She said the proposed rule change doesn’t fulfill all of the requirements of “Marcy’s Law,” the voter-approved constitutional amendment designed to give crime victims the same rights as criminal defendants.

“It is constitutionally required that before there is any modification of a sentence, that a judge must consult with the victim,” Judge Cisco said.

Board member J. Carter Andersen, who represents the 13th Judicial Circuit and who serves as liaison to the Government Lawyers Section, echoed Judge Cisco’s concerns in a January letter to the CPRC.

The proposal “represents a significant, substantive change to the laws of Florida — and it cannot be accomplished through an amendment to a rule and it cannot be done in conflict with the Florida Constitution and Florida statutes,” Andersen wrote.

Andersen told the board that he stands by his letter, and that bills have already been filed for the 2021 legislative session that would have much the same effect as the rule change.

“There is a Senate bill pending this year, which covers this same topic, but in broad detail,” he said. “I think that shows this is a substantive issue that the Legislature is indeed considering.”

Rep. Mike Grieco, D-Miami and an attorney, filed HB 395 on January 22. The criminal justice reform measure contains language that mostly tracks the proposed rule change. The bill’s resentencing language is also similar to SB 662, which Senate Judiciary Committee Chair Jeff Brandes, R-St. Petersburg, filed January 14.

Both bills would allow prosecutors to request a resentencing hearing at any time, and both bills provide for victim statements or statements by a victim’s next of kin. Both bills would bar the court from imposing a sentence that is longer than the original.

Neither bill has yet to receive a committee hearing ahead of the 60-day session that convenes March 2.

Board member Michael Orr, who represents the Fourth Judicial Circuit, told his colleagues that he agrees with Andersen.

“In my view, we should have zero part in this proposed rule,” he said.

But board member Joshua Chilson, who represents the Sixth Judicial Circuit, sees a conflict in the opponents’ arguments.

“It seems to me the current rule does create this arbitrary 60 days, and all this does is end the cap,” he said. “I don’t understand the argument that this is unconstitutional, but therefore the Legislature can do it.”

Chilson said the board should defer to the legal experts who volunteer to serve on the rules committee.

“We have a learned, dedicated group of practitioners that know far more about this practice area than any of us,” he said.

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