Booker v. StateBooker v. State
We have for our review Booker v. State, 482 So.2d 414 (Fla. 2d DCA 1985), wherein the district court certified the following question of great public importance:
WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT
RELIED UPON A REASON OR REASONS THAT ARE PERMISSIBLE UNDER FLORIDA RULE OF CRIMINAL PROCEDURE 3.701 IN MAKING ITS DECISION TO DEPART FROM THE SENTENCING GUIDELINES, WHAT CRITERIA SHOULD AN APPELLATE COURT ADOPT IN DETERMINING IF THE SENTENCING COURT ABUSED ITS DISCRETION IN ITS EXTENT OF DEVIATION?
Id. at 419-420. We have jurisdiction.
The petitioner‘s first issue here is that there were no valid reasons for departure in his case. A full recitation of the trial court‘s order departing from the presumptive guidelines sentence of twelve to thirty months and sentencing the petitioner to five consecutive five-year terms is contained in the opinion of the district court below, 482 So.2d at 416-418, n. 1, and no useful purpose would be served by reproducing it here. It is sufficient for our purposes to note the petitioner‘s argument which is that the sole reason for departure in this case was probation violations and that the trial court‘s departurе sentence above the one cell allowed by
The second reason for departure, petitioner‘s escalating pattern of criminal activity, is a valid reason for departure and is amply supported by the facts in this case. See Keys v. State, 500 So.2d 134, 135-136 (Fla. 1986) (escalating course of criminal cоnduct from crimes against property to violent crimes against person is a valid reasons for departure).
The question certified to us by the Second District Court of Appeal in this case was previously certified by that court in Ochoa v. State, 476 So.2d 1348 (Fla. 2d DCA 1985). In our decision in Ochoa (Ochoa v. State, 509 So.2d 1115 (Fla. 1987)), we did not address the certified question. After accepting jurisdiction in both Ochoa and the case sub judice, the legislature amended
In Albritton v. State, 476 So.2d 158 (Fla. 1985), we addressed the issue of what standard should be employed by a reviewing court when presented with a departure sentence. Both parties, although suggesting different approaches, agreed that the extent of departure was subject to appellate review. Id. at 160. The state agreed that the extent of departure should be subject to an abuse of discretion standard, and it was this standard we adopted. In doing so we rejected the district court‘s holding that the only limitation on departure sentence was the statutory maximum. Id.
It is true that courts of general jurisdiction hаve certain inherent or implied powers that stem from the constitutional or statutory provisions creating the court and clothing it with jurisdiction. In other words, regularly constituted courts have power to do anything that is reasonably necessary to administer justice within the scope of its jurisdiction, but not otherwise. Inherent power has to do with the incidents of litigation, control of the court‘s process and procedure, control of the conduct of its оfficers and the preservation of order and decorum with reference to its proceedings. Such is the scope of inherent power, unless the authority creating the court clothes it with more.
Id. at 647. Concerning the second issue, legislative restriction on the scope of rights to appeal, this Court in Austin v. Town of Oviedo, 92 So.2d 648 (Fla. 1957), observed:
In McJunkins v. Stevens, 88 Fla. 559, 102 So. 756, we announced a rule governing appellate practice which has been consistently followed by this Court. It was there held in substance that whilе the Constitution delineates the appellate jurisdiction of the Supreme Court and of the Circuit Courts, it does not prescribe the means or manner by which such appellate jurisdiction is acquired in particular cases. It remains the responsibility of the Legislature to prescribe the means and method by which appellate review may be obtained.
In Reed v. State, 94 Fla. 32, 113 So. 630, a capital case, this Court stated the rule to be that the right to appellate review of a case which has already been tried in a trial court is not a natural, absolute, or unqualified right but rather is a right created by law. To enjoy the right a party must first comply with the conditions precedent and regulatory required by law. In the absence of constitutional inhibitions it is within the power of the Legislature to impose conditions and restrictions on the privilege to seek appellate review.
Id. at 650. The discernible principle from Austin is that, absent a specific constitutional right to аppellate review on a particular issue, the scope of appellate review may be modified by the legislature. The question then becomes does a reviewing court have inherent power to review actions of lower tribunals absent a substantive grant of that right from the legislature?
The rule in Florida historically has been that a reviewing court is powerless to interfere with the length of a sentence imposed by the trial court so long as the sentence is within the limits allowed by the relevant statute. As we stated in Brown v. State, 152 Fla. 853, 13 So.2d 458 (1943):
If the statute is not in violation of the Constitution, then any punishment assessed by a court or jury within the limits fixed thereby cannot be adjudged excessive, for the reason that the power to declare what punishment may be assessed against those convicted of crime is not a judicial power, but a legislative power, controlled only by the provisions of the Constitution.
Id. at 858, 13 So.2d at 461 (quoting 15 Am.Jur. Criminal Law § 526 (1938). See also Stanford v. State, 110 So.2d 1 (Fla. 1959); Walker v. State, 44 So.2d 814 (Fla. 1950); Infante v. State, 197 So.2d 542 (Fla. 3d DCA 1967); Rohdin v. State, 105 So.2d 371 (Fla. 2d DCA 1958). This view is also consistent with the United States Supreme Court‘s treatment of this issue. In Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), the Court was confronted
In effect, we are asked to enter the domain of penology, and more particularly that tantalizing aspect of it, the proper apportionment of punishment. Whatever views may be entertained regarding severity оf punishment, whether one believes in its efficacy or its futility ... these are peculiarly questions of legislative policy. Equally so are the much mooted problems relating to the power of the judiciary to review sentences. First the English and then the Scottish Courts of Criminal Appeal were given power to revise sentences, the power to increase as well as the power to reduce them... . This Court has no such power.
Id. at 393 (citations omitted).
We find from our prior holdings thаt there is no inherent judicial power of appellate review over sentencing which would render chapter 86-273 violative of the separation of powers provisions of
We point out that our holding in Albritton on this issue was premised upon first, the state agreeing that a departure sentence, while within the statutory maximum, could still be reviewed for an abuse of discretion by the trial court. Second, it was our view that appellate review of the extеnt of departure under an abuse of discretion standard furthered the stated purpose of the guidelines — to promote uniformity of sentences — while still leaving discretion with the trial court to make an individualized sentencing decision. 476 So.2d at 160. It may well be that the legislature, by eliminating appellate review on the extent of departure has, in fact, undermined the fundamental purpose of the guidelines, uniformity in sentencing. This observation, however, goes to the wisdom оf the amendment and not to its constitutionality.
The second issue concerns the ex post facto clause found in both the
In Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), the Supreme Court reaffirmed that “two critical elements must be present for a criminal law to be ex post facto: it must be retrospective, thаt is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Id. at 29, 101 S.Ct. at 964 (footnotes omitted).
The state supreme court rejected the defendant‘s ex post facto claim, holding that the statute under which the defendant was sentenced did not change the punishment because the minimum and maximum punishment under both acts were the same. Id. at 400, 57 S.Ct. at 798. The Supreme Court rejected this reasoning and found that sentencing defendants under the new statute was unconstitutional.
It is true that petitioners might have been sentenced to fifteen years under the old statute. But thе ex post facto clause looks to the standard of punishment prescribed by a statute, rather than to the sentence actually imposed. The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer... . It is for this reason that an increase in the possible penalty is ex post facto... . regardless of the length of the sentence actually imposed, since the measurе of punishment prescribed by the later statute is more severe than that of the earlier... .
Removal of the possibility of a sentence of less than fifteen years, at the end of which petitioners would be freed from further confinement and the tutelage of a parole revocable at will operates to their detriment in the sense that the standard of punishment adopted by the new statute is more onerous than that of the old... . It is plainly to the substаntial disadvantage of petitioners to be deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the 15-year term.
Id. at 401-402, 57 S.Ct. at 799 (citations omitted).
Weaver dealt with the effect of a new Florida statute concerning accrual of statutory gain time for prisoners. The effect of the new statute on the prisoner, Weaver, was to theoretically extend his incarceration for over two years more than he would have served under the gain time statute in effect at the time Weaver committed his crime. 450 U.S. at 27, 101 S.Ct. at 963. The Court found, under its two-part analysis, that the new statute could not be applied to Weaver because, first, it applied retroactively. The Court rejected the state‘s argument that it was not retroactive because it applied only after its effective date, holding “it is the effect, not the form, of the law that determines whether it is ex post facto.” Id. at 31, 101 S.Ct. at 965 (citation omitted). The state also argued that the law was not retrospective because it was not part of the original sentence or punishment. The Court rejected this argument because it was one determinant of Weaver‘s prison term whether or not it was technically part of Weaver‘s sentence, and that a statute may be retrospective “even if it alters punitive conditions outside the sentence.” Id. at 32, 101 S.Ct. at 966. Second, the Court found that the new statute would operate to Weaver‘s detriment because it “constricts the inmate‘s opportunity to earn early release, and thereby makes more onerous the punishment for crimes committed before its enactment.” Id. at 35-36, 101 S.Ct. at 967-968.
It is clear, in light of Lindsey and Weaver, that chapter 86-273 may not be applied
Accordingly, chapter 86-273 cannot apply to petitioner as his crimes were committed prior to July 9, 1986. Therefore, we will address petitioner‘s claim that his twenty-five-year sentence was an abuse of discrеtion by the trial court. We agree with the district court below that although the sentence appears “somewhat harsh,” 482 So.2d at 419, the trial court did not abuse its discretion. We agree with the district court‘s observation:
In view of the written reasons for departure and the record in this case, we cannot say that it was unreasonable for the trial judge to sentence the defendant as he did in this case.
Id. The question certified by the district court essentially asked us to articulate criteria for determining what constitutes an abuse of discretion. In our view, the district court correctly analyzed this issue and also identified the relevant criteria. In Albritton, 476 So.2d at 160, we stated:
An appellate court reviewing a departure sentence should look to the guidelines sentence, the extent of the departure, the reasons given for the departure, and the record to determine if the departure is reasonable.
We also pointed out, id. at 160 n. 3, that our decision in Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), contained an extensive discussion of what constitutes an
Discretion, in this sense, is abused whеn the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.
Canakaris, 382 So.2d at 1203. While we appreciate the district court‘s desire for a more specific criteria оf what constitutes an abuse of discretion, developing a precise check list is neither possible nor desirable. Inquiring into whether the trial court abused its discretion necessarily turns on the specific facts presented in each case. If, based upon the entire set of circumstances presented, the reviewing court finds the sentence so excessive as to shock the judicial conscience, see Woosley v. United States, 478 F.2d 139 (8th Cir.1973), this will likely evidence an abuse of disсretion. Reviewing courts which have held that they possess the power to review a sentence on these grounds have articulated a variety of phrases which, in fact, comport to the abuse of discretion standard adopted by this Court in Canakaris. See, e.g., Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932) (abuse of discretion implies arbitrary and capricious actions); Woosley (greatly excessive under traditional concepts of justice or manifestly disproportionate to the crime or the criminal); State v. Johnson, 67 N.J.Suрer 414, 170 A.2d 830 (N.J. Super.Ct.App.Div. 1961) (manifestly excessive). In Woosley, 478 F.2d at 143, the court recognized that a particular judge who follows a predetermined policy or “mechanistic approach” for determining a sentence in a particular type of case has not, in fact, exercised his sound discretion “after consideration of all the circumstances surrounding the crime.” As we stated in Canakaris,
The trial courts’ discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner. Judges dealing with cases essentially alike should reach the same result. Different results reached from substantially the same facts comport with neither logic nor reasonableness.
382 So.2d at 1203. The inherent difficulty in determining whether cases are essentially alike is exacerbated in the sentencing guidelines context because of the numerous factors unique to the individual defendant which are calculated in arriving at a presumptive guidelines sentence. The abuse of discretion standard exists to ensure that sentences are not imposed arbitrarily or capriciously or at the whim of an individual judge whose personal feelings against a particular defendant, or a particular type of crime, may render the sentence imposed so offensive to traditional notions of justice that it does not meet the objective test оf reasonableness.
In conclusion, we hold that chapter 86-273 does not violate the separation of powers provision of
It is so ordered.
McDONALD, C.J., and OVERTON, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.
Notes
Appellate modification of a statutorily аuthorized sentence, however, is an entirely different matter than the careful scrutiny of the judicial process by which the particular punishment was determined. Rather than an unjustified incursion into the province of the sentencing judge, this latter responsibility is, on the contrary, a necessary incident of what has always been appropriate appellate review of criminal cases.
United States v. Hartford, 489 F.2d 652, 654 (5th Cir.1974). See also, Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974); Yates v. United States, 356 U.S. 363, 78 S.Ct. 766, 2 L.Ed.2d 837 (1958); Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); Woosley v. United States, 478 F.2d 139 (8th Cir.1973).