Juvenile Sentencing Hearings and Legislative Responses: Legal Overview
Litigation & Motion Practice for
Litigation & Motion Practice for
§§ 921.1401 & 921.1402
§§ 921.1401 & 921.1402
Hearings
Hearings
Roseanne Eckert
Roseanne Eckert
FIU College of Law Webinar
FIU College of Law Webinar
1
Roper v. Simmons
Roper v. Simmons
(2005)
(2005)
Death Penalty
Death Penalty
Immaturity and Impetuosity
Lack of Choice in Environment
Capacity for Change
2
Graham v. Florida
Graham v. Florida
(2010)
(2010)
Non-Homicide
Non-Homicide
Incorrigibility is inconsistent with
youth.
State must provide meaningful
opportunity for release.
Your client can still get life for non-
homicide, but with opportunity for
judicial review.
3
Miller v. Alabama
Miller v. Alabama
(2012)
(2012)
Homicide
Homicide
The Court recognized that the distinctive
traits of children are not crime specific.
“The State’s most severe penalties on
juvenile offenders cannot proceed as
though they were not children.”
4
LEGISLATIVE RESPONSE
LEGISLATIVE RESPONSE
TO MILLER
TO MILLER
Chap. 2014-220, Laws of Florida,
Chap. 2014-220, Laws of Florida,
codified at §§ 941.1401, 941.1402,
codified at §§ 941.1401, 941.1402,
and 775.082 (2014).
and 775.082 (2014).
5
LEGISLATIVE RESPONSE TO MILLER
LEGISLATIVE RESPONSE TO MILLER
New and different penalties for
juveniles convicted as adults.
Factors to be considered at
individualized
sentencing hearings
when child convicted of a capital, life,
or first-degree felony.
Provides for subsequent judicial
review of the sentence in
most
cases.
6
Individualized Hearings
Individualized Hearings
§ 921.1401
§ 921.1401
7
§ 921.1401(1)
Individualized sentencing
hearings.
Crimes on or after July 1,
2014.
The court “
may
”
conduct a
separate sentencing
hearing to determine if a
term of imprisonment for
life or a term of years
equal to life imprisonment
is appropriate.
Individualized
Hearings
Sentencing
Factors
8
§ 921.1401(2)
•
Circumstances
of the offense;
•
The
effect
on
the victim's
family &
community;
•
The extent of
the child's
participation;
Individualized
Hearings
Sentencing
Factors
9
§ 921.1401(2)
•
Child's
background;
•
The effect of
family pressure or
peer pressure on
the child;
•
prior criminal
history;
Individualized
Hearings/Sent
encing Factors
10
§ 921.1401(2)
•
Age, maturity, IQ,
mental health at the
time of the offense;
•
Effects of immaturity
& impetuosity, etc.,
on the child's
participation in the
offense;
•
The effect of
characteristics of
youth on the child's
judgment;
Individualized
Hearings
Sentencing
Factors
11
§ 921.1401(2)
•
The possibility of
rehabilitating the
child.
Individualized
Hearings
Sentencing
Factors
12
Fla. R. Crim. P.
3.781
Requires examination of
“any” presentence
reports.
Requires
written order
when imposing a life
sentence or a term of
years equal to life.
Requires
written
finding as to judicial
review.
Governs
proceedings
for juvenile
sentencing
hearings.
13
Sentencing Options
Sentencing Options
§ 775.082
§ 775.082
14
Sentencing &
Judicial Review
Eligibility
Juvenile who
actually
killed, intended to kill,
or attempted to kill the
victim
shall
be
sentenced to life, if
appropriate.
Sentence must be at
least
40 years.
Judicial review in 25.
§775.082(1)(b)(1)
- capital or
reclassified as
capital felony
15
Sentencing &
Judicial Review
Eligibility
If the juvenile did
not
actually kill, intend to kill,
or attempt to kill the victim,
he or she
may
be sentenced
to
life
or by a term of years
equal to life if appropriate.
Judicial review in 15
years.
§ 775.082(1)(b)(2) –
capital or reclassified
as capital;
But, convicted of
felony murder.
16
Sentencing &
Judicial Review
Eligibility
A juvenile . . .
may
be
sentenced to life or a
term of years equal to
life if appropriate.
Whether the juvenile is
entitled to judicial
review in 25 years or 15
years is dependent upon
finding as to actually,
intended, or attempted
to kill the victim.
§775.082(3)(a)(5) -
convicted under
§782.04 of offense
reclassified as a life
felony (2
nd
Degree
Murder)
17
Sentencing &
Judicial Review
Eligibility
A juvenile convicted under § 782.04
of a
first degree felony punishable
by life or an offense reclassified
as a first degree felony
punishable by life
may
be
sentenced to a term of years equal
to life if the court finds it is an
appropriate sentence.
Again, whether the juvenile
convicted of murder is entitled to
judicial review in 25 years or 15
years is dependent finding on
whether he actually, intended, or
attempted to kill the victim.
§ 775.082(3)(b) 2
1
st
Degree PBL Felony
(or reclassified as
such)
18
Sentencing &
Judicial Review
Eligibility
Juvenile
may
be
sentenced to life
or
a term of years equal
to life, if appropriate.
Judicial review in
20 years with
subsequent review
in 10 years.
§ 775.082(3)c
non-homicide
Graham
cases:
Offenses PBL or
reclassified as
such.
19
Judicial Review
Judicial Review
§ 921.1402
§ 921.1402
20
Judicial Review
Judicial Review
Onus on inmate to file
“application.”
DOC must notify the juvenile of
eligibility 18 months beforehand.
Right to counsel.
21
Fla. R. Crim. P.
3.802
•
May not apply until
eligible.
•
Include copy of J&S or
statement with date of
sentence, offense, and
sentence imposed;
•
Nature of relief sought;
•
History on prior
applications;
•
Statement of facts in
support of modification.
Governs
procedures for
Judicial Review
22
Judicial Review
Factors
•
Was juvenile a
relatively minor
participant or under
extreme duress;
•
Whether juvenile’s
age, maturity or
psychological
development affected
behavior;
§ 921.1402(6)
23
Judicial Review
Factors
•
Whether the juvenile
was a victim of
sexual, physical or
emotional abuse
before the offense;
•
Results of
any
mental
heath assessment,
risk assessment, or
evaluation as to
rehabilitation;
§ 921.1402(6)
24
Judicial Review
Factors
•
Whether the juvenile
has shown “sincere”
& “sustained”
remorse;
•
Whether the juvenile
has obtained GED or
completed other
available programs;
§ 921.1402(6)
25
Judicial Review
Factors
•
Whether juvenile
remains at the same
level of risk as he or she
did at initial
sentencing;
•
Whether the juvenile
demonstrates maturity
and rehabilitation;
and
•
The
opinion
of the
victim or the victim’s
next of kin.
§ 921.1402(6)
26
Judicial Review
If the court finds the
juvenile is
rehabilitated &
reasonably fit to
renter society
, the
court
shall
modify the
sentence & impose a
term of probation of at
least 5 years.
§ 921.1402(7)
27
Judicial Review
If the court finds the
juvenile is not
rehabilitated or fit to
reenter society, the
court shall issue a
written order
stating
why the sentence is not
being modified.
§ 921.1402(7)
28
Judicial Review
Juvenile who
actually
killed, intended to kill,
or attempted to kill
who is convicted of a
capital felony
(or an
offense that was
reclassified as a capital
felony
) is not entitled to
judicial review if he or
she has been “previously
convicted” of certain
enumerated felony
offenses.
§ 921.1402(2)(a)
Prior Enumerated
Felony Exclusion
29
Judicial Review
Murder;
Manslaughter;
Sexual battery;
Armed burglary;
Armed robbery;
Armed carjacking;
Home-invasion robbery;
Human trafficking for
commercial sexual activity with
a child under 18 years of age;
False imprisonment under s.
787.02(3)(a);
or Kidnapping.
§ 921.1402(2)(a)
Prior Enumerated
Felony Exclusion
30
Judicial Review
In a pre-2014 resentencing, the appellate court
remanded the case to the circuit court to include
the right to judicial review.
Matias v. State
, No.
2D16-971, *2 (Fla. 2d DCA Oct. 11, 2017).
The Criminal Rules Committee is considering a
rule requiring a written finding on judicial review
at the time of sentencing or resentencing.
31
Judicial Review
Your client must apply for judicial review; there is
nothing in the statute that would allow the court to
force the defendant to have the review hearing and
resentencing at the same time.
Your client is not required to seek judicial review
immediately upon becoming eligible.
On a resentencing, you should ask the court to imposed
the new sentence and the judicial review period
nunc
pro tunc
to the original sentencing date, and include
any credit for time served prior to the initial
sentencing.
32
Case Law &
Pending Issues
33
Retroactivity
Postconviction
34
Retroactivity
Retroactivity
Horsley v. State,
160 So. 3d 393 (Fla. 2015)
•
Pipeline Case
•
Resentencing
pursuant to §
921.1401.
Falcon v. State
,
162 So. 3d 954 (Fla. 2015)
•
Retroactive under
Witt
(FL) and
Teague
(Fed.)
•
Relief for over 250
juveniles serving
LWOP
35
Rule 3.850 Motion
Rule 3.850 Motion
Florida Rule of Criminal Procedure 3.850 is
the appropriate vehicle to obtain relief.
The 3.850 motion must be
verified
by the
client.
The motion must be brought within two
years of when the
new
case law became
final;
within one year to preserve federal
remedies.
36
Rule 3.800 Motion
Rule 3.800 Motion
You may file a motion to correct an illegal sentence
pursuant to rule 3.800 if time is an issue or if you are
unable to get the motion verified.
A 3.800 motion is appropriate where the illegality and
unconstitutional nature of the sentence may be
deduced from the face of the record without the need
for an evidentiary hearing.
Landy v. State,
205 So. 3d
801 (Fla 2d DCA 2016).
37
Montgomery v. Louisiana
Montgomery v. Louisiana
USSC
USSC
Miller’s
prohibition against
mandatory life without parole
sentences for juveniles is a
substantive
rule and therefore,
retroactive under federal law. 136
S.Ct. 718 (2016).
38
Atwell
Atwell
and
and
Landrum
Landrum
The “spirit” of Miller
The “spirit” of Miller
39
Landrum v. State
Landrum v. State
2
2
nd
nd
Degree Murder
Degree Murder
Laisha Landrum & her boyfriend beat
another girl with a hammer, then left
her close to death in a trash bin.
Miller
is about how children are
different and not about the mandatory
nature of the sentence imposed.
192 So. 3d 459 (Fla. 2016)
40
Landrum v. State
Why should she “receive such an
uncommon
and
exceedingly rare life
sentence
, rather than a 22.3 year guideline
sentence, or. . . one that
departed
downward
. . .
[?]”
Landrum.
41
Atwell v. State
Atwell v. State
Life With Parole
Life With Parole
Eligible for resentencing on life
with
Parole for murder before May 25,
1994. 197 So. 3d 1040 (Fla. 2016).
FSC followed the “spirit” of
Miller.
Parole system & FCOR do not
consider characteristics of youth.
42
Atwell
Atwell
Applies to
Applies to
Graham
Graham
cases
cases
Burney v. State,
211 So. 3d 1106 (Fla. 2d DCA
2017) -
Juvenile sentence to life with parole
for burglary gets new sentencing.
Marshall v. State,
214 So. 3d 776
(Fla. 2d DCA
2017) 99 year concurrent sentences for non-
homicide crimes unconstitutional.
Parole abolished for non-homicide crimes on
October 1, 1983.
43
Atwell
Atwell
: Presumptive Parole
: Presumptive Parole
Release Date (PPRD)
Release Date (PPRD)
The Fifth remanded a case for a hearing to determine
PPRD & whether he is entitled to a resentencing.
Stallings v. State
, 204 So. 3d 101 (Fla. 5th DCA 2016
The Fourth Florida’s parole system does not provide
the individualized sentencing consideration required
by
Miller. Michel v. State
, 204 So. 3d 101 (Fla. 4th DCA
2016).
Certified Conflict Pending – SC16-2187
44
Atwell
Atwell
: Sentenced to Death for a 1960
: Sentenced to Death for a 1960
Felony Murder – Calvin Thomas
Felony Murder – Calvin Thomas
45
Atwell
Atwell
: Prior Parole Violations
: Prior Parole Violations
Calvin Thomas
Calvin Thomas
46
Atwell
Atwell
: Prior Parole Violations
: Prior Parole Violations
2017 Cases
2017 Cases
Currie v. State
, 219 So. 3d
960 (Fla. 1st DCA 2017)
Rogers v. State,
223 So. 3d
281 (Fla. 4th DCA 2017)
Rooks v. State
, 224 So. 3d
272 (Fla. 3rd DCA 2017):
Jurisdictional brief
pending in SC17-1342.
No resentencing where the
child has previously been
paroled and re-
incarcerated on parole
violation.
47
Lengthy Prison
Lengthy Prison
Sentences
Sentences
De Facto Life or Meaningful
De Facto Life or Meaningful
Opportunity for Release?
Opportunity for Release?
48
De Facto Life Sentences
De Facto Life Sentences
in
in
Graham
Graham
Cases
Cases
Henry v. State,
175 So. 3d
675 (2015).
•
Aggregate
sentence
of 90 years is
unconstitutional.
•
Resentencing
pursuant to §
921.1401.
Gridine v. State,
175 So. 3d
672 (Fla. 2015).
•
70 years is
unconstitutional.
•
Resentencing
pursuant to §
921.1401.
49
Peterson
Peterson
– Certified Questions
– Certified Questions
Is
Henry
retroactive?
Does
Henry
only apply to de facto life
sentences?
When is a term-of-years sentence de facto
life?
Should
gender, race, SES, & gain time
be
considered?
50
Must Have Meaningful
Must Have Meaningful
Opportunity for Release
Opportunity for Release
Kelsey v. State,
206 So. 3d 5 (Fla. 2016)
involved Graham resentencing that took
place before 2014.
Kelsey is entitled to resentencing and
judicial review under 921.1401.
But: The State may seek the imposition
of a life sentence.
51
No more argument over
No more argument over
“De Facto Life” sentences
“De Facto Life” sentences
FSC declines jurisdiction in
Peterson
, citing to
Kelsey.
But, remember a 17-year-old
sentenced to 40 years in prison,
will be 57-years-old upon release.
52
De Facto Life & Life Expectancy
De Facto Life & Life Expectancy
Federal “life sentence” is 470 months (39
years) based on the average life
expectancy of a federal criminal offender.
(U.S. Sentencing Commission)
Average life expectancy for African-
American adults sentenced to natural life
in prison is 56 years. (Michigan study)
53
Kleppinger - Kelsey
Kleppinger - Kelsey
•
Jireh Kleppinger had been serving a life
sentence on 4 non-homicide convictions. He
was resentenced to an aggregate sentence of
51 years followed by life-time probation in
2014.
•
Because the court was required to sentence
him under the 1994 guidelines, the court
could only exceed the maximum guideline
sentence if there were ground for a upward
departure.
54
Kelsey Considerations
Kelsey Considerations
•
Court required to impose probation
under §921.1401.
•
Court may resentence juvenile to
life.
•
Gain time and guidelines.
55
“M
“M
ISCALCULATION
ISCALCULATION
S
S
ENDS
ENDS
N
N
EWLY
EWLY
R
R
ELEASED
ELEASED
O
O
RANGE
RANGE
C
C
OUNTY
OUNTY
M
M
AN
AN
B
B
ACK
ACK
T
T
O
O
P
P
RISON
RISON
For
For
S
S
IX
IX
Y
Y
EARS
EARS
”
”
GAIN TIME
Kenneth Purdy was released after
resentencing only to be rearrested.
DOC will not award any gain time for
capital crimes committed between
1/1/94
through 9/30/95.
56
Gain Time - FSC
Gain Time - FSC
Clyde Johnson
Clyde Johnson
Serving 100 years on non-homicide.
Gain time is not opportunity for release: not
based on maturity & rehabilitation.
Disciplinary history does not defeat right to
resentencing.
Johnson v. State
, 215 So. 3d 1237
(Fla. 2017).
57
Contact DOC for Gain Time
Contact DOC for Gain Time
Calculations
Calculations
Lee Adams
lee.adams@fdc.myflorida.com
850-
717-3087
Michelle Palmer,
michelle.palmer@fdc.myflorida.com
850-717-
3097
Angela Fryar
angela.fryar@fdc.myflorida.com
850-717-3140
Tammy Budd
Tammy.Budd@fdc.myflorida.com
850-717-3086
58
Violation of Probation
Violation of Probation
59
Facts - Terrence Graham
Facts - Terrence Graham
•
Age 16 – charged as an adult with armed burglary with
assault, a PBL felony.
•
Plea – withhold adjudication, 1 year in jail with CTS f/b
3 years on probation.
•
Age 17 – Crime spree: home invasion robbery,
attempted robbery involving a shooting, and a high
speed police chase ending in a crash.
•
Resentenced from LWOP to 25 years in prison pursuant
to
Graham v. Florida
, 560 U.S. 48 (2010).
60
Facts - Chauncey Davis
Facts - Chauncey Davis
•
Age 17 – Charges included Attempted Robbery w/
Deadly weapon & Agg. Battery on a LEO.
•
Plea – Youthful Offender: 1 year comm. control f/b
probation.
•
Age 18 – charged with violating comm. control with
Armed Carjacking.
•
Court imposed an aggregate sentence of 45 years
and no judicial review.
Davis v. State
, 223 So. 3d 1106
(Fla. 5
th
DCA 2017).
61
Davis v. State
•
The Fifth relied on Justice Pariente’s concurring
opinion
Guzman
where the FSC declined to accept
jurisdiction on
Henry.
•
“She cogently explained that the dispositive
reason that jurisdiction was discharged and
Guzman was not entitled to be resentenced . .
..
after
he had become an adult.
”
62
Davis
Davis
in Conflict with other DCAs
in Conflict with other DCAs
•
Guzman
–
(4th) he actually
was resentenced
from LWOP to 60 years.
•
Lavrickk
– (3rd) – LWOP for VOP as adult for
crime committed as juvenile.
Graham
relief.
•
Smith
– (1st) –
Graham
relief.
•
§ 948.06(2)(e) - A court may “impose any
sentence which it
might have originally
imposed
before placing the probationer or
offender on probation.”
63
Stacked, Consecutive, &
Stacked, Consecutive, &
Aggregate Sentences
Aggregate Sentences
DISCRETION
DISCRETION
64
Sentence Modification
Sentence Modification
§ 921.1402(7)
§ 921.1402(7)
If the court finds that the child has
been
rehabilitated
& is reasonably
believed to be
fit to reenter society,
the court
shall
modify the sentence
and impose a term of probation of at
least 5 years.
65
The
The
Purdy
Purdy
Case
Case
Consecutive Sentencing
Consecutive Sentencing
•
Must a court review the aggregate
sentence in determining whether to
modify the sentence based on maturity
and rehabilitation?
•
Is a sentence requiring more prison
time after juvenile is rehabilitated
proportional?
•
Pending in the FSC.
66
Minimum Mandatories
Minimum Mandatories
FSC declined to review 25 year minimum
mandatory that was upheld by the 1st DCA.
Abrakata.
Stacking of sentence under 10-20-Life conflicts
with judicial review.
Florida v. Ellington – F11-
20364A, Miami-Dade County Cir. Ct. (Oct. 13, 2015).
25 year min man unconstitutional because it
deprived juvenile of individualized sentence.
Florida v. Bucknor – 99-22454CF10A, Broward
County Cir. Ct. (July 6, 2017).
67
Minimum Mandatories
Minimum Mandatories
If the nonhomicide juvenile offender, in the course of committing
certain enumerated felonies, discharged a firearm and as the result of
the discharge, inflicted death or great bodily harm, the juvenile must
be sentenced to a twenty-five-year mandatory minimum. §
775.087(2), Fla. Stat. (2012).
Nonetheless, he or she would still be entitled to a twenty-year
statutory review of his or her sentence under section 921.1402(2)(d)
with the possibility of early release.
Montgomery v. State,
No. 5D14-3615, 2017 WL 5180744, at *6 (Fla. 5
th
DCA Nov. 9, 2017)
68
Minimum Mandatories
Minimum Mandatories
•
Criminal Punishment Code does not apply based on the
rules of statutory construction.
•
Chapter 2014-220 supersedes the minimum
mandatory sentence under § 775.087(2).
•
Min mans & consecutive sentences conflict with
statutory review periods.
•
Min mans are unconstitutional because juveniles are
entitled to an individualized sentencing hearing.
69
Minimum Mandatory
Minimum Mandatory
Washington v. Houston- Sconiers
Washington v. Houston- Sconiers
•
Washington statute similar to Florida.
•
Case dealt with firearm enhancements
that increased minimum sentence.
•
8
th
Amendment requires trial court to
exercise discretion at sentencing
regardless of opportunity for release
later. 188 Wash. 2d 1 (Wash. 2017).
70
Minimum Mandatories
Minimum Mandatories
•
Iowa Constitution forbids min mans for
juveniles because it deprives the court
of discretion to consider characteristics
of youth.
Iowa v. Lyle,
854 NW 2d 378
(IA 2014).
•
Iowa case relied on in
Burton
(13
th
cir.)
where court held 40 year minimum for
capital murder is unconstitutional.
71
Jury Fact Finding
Jury Fact Finding
Apprendi
Apprendi
Motions
Motions
72
Jury Fact Finding
Jury Fact Finding
In
Apprendi v. New Jersey,
the USSC held that any
fact that increases the statutory maximum
sentence must be pled and proven beyond a
reasonable doubt. 120 S. Ct. 2348 (2000).
In
Allyene
v. U.S.,
the USSC held that facts
–
such as
brandishing a firearm - that increase mandatory
minimum sentences must be submitted to the
jury. 133 S. Ct. 2151 (2013).
73
Jury Fact Finding
Jury Fact Finding
•
Section 921.1401 lists the factors identified in
Miller
that
shall be considered at sentencing.
•
If the child is found to have “actually killed, intended to kill, or
attempted to kill the victim” he or she shall be sentenced to
life, if life is appropriate. If life is not appropriate, the child
must be sentenced to at least 40 years.
•
Because the statutes require that additional facts not
inherent in the jury verdict must be found before a child can
be sentenced to life imprisonment, the Sixth Amendment, as
interpreted by
Apprendi v. New Jersey
530 U.S. 466 (2000)
and its progeny, requires that those facts must be determined
by a jury.
74
Williams
Williams
–
–
Pending in FSC
Pending in FSC
DOES
ALLEYNE V. UNITED STATES
, REQUIRE THE
JURY AND NOT THE TRIAL COURT TO MAKE THE
FACTUAL FINDING UNDER SECTION
775.082(1)(b), FLORIDA STATUTES (2016), AS TO
WHETHER A JUVENILE OFFENDER ACTUALLY
KILLED, INTENDED TO KILL, OR ATTEMPTED TO
KILL THE VICTIM?
Certified Question.
Williams v. State,
211 So. 3d
1070 (Fla. 5th DCA 2017).
75
Watch the Oral Argument
in Williams
http://wfsu.org/gavel2gavel/viewcase.
php?eid=2463
76
Other Challenges
Other Challenges
•
Prior Enumerated Felony Exclusion
(Baker & Copeland)
•
“Intended to kill” is vague.
•
“Shall” sentence juvenile to life is
unconstitutional.
•
Ex post facto
77
The Sentencing Hearing
The Sentencing Hearing
78
Standard of Representation
Standard of Representation
CFSY
Trial Defense Guidelines:
Representing a Child Facing a
Possible Life Sentence
(2015)
Two lawyers, a fact investigator, and a
mitigation specialist.
79
Initial Investigation
Initial Investigation
Resentencing
Resentencing
Visit client in prison
Releases signed
Assemble team
Review trial transcripts, clerk’s file,
appellate opinions, & any news
reports
80
Initial Investigation
Initial Investigation
–
–
Trial
Trial
Visit client early & often
Signed releases
Determine influences
Gain trust of family
Get mitigation specialist
81
Mitigation Specialist Can Assist in
Mitigation Specialist Can Assist in
Guilt Phase
Guilt Phase
•
Develop rapport with client & family
or significant others;
•
Identify mental health issues or
cognitive impairments that are
relevant to competency or
Miranda
;
82
Mitigation Specialist Can Assist in
Mitigation Specialist Can Assist in
Guilt Phase
Guilt Phase
•
Forming the theory of the case as it
relates to intent & relative culpability;
•
Choosing appropriate experts; &
•
Assisting the client in
understanding & evaluating any
reasonable plea offers
.
83
JAC POLICY RE: §921.1401
JAC POLICY RE: §921.1401
Forensic social workers or similar
experts get $75.00 an hour.
Investigative work paid $40.00 an
hour.
Inform Court that you will be back
with funding request for expert in 4-
6 months.
84
Requesting Funding for Experts
Requesting Funding for Experts
•
File
ex parte
motion for experts under seal &
pursuant to Fla. R. Jud. Ad. 2.420 with
service on the JAC and notice to the State.
•
Support the request with specific
information.
•
The Criminal Rules Committee has proposed
a rule explicitly allowing
ex parte
funding
motions.
85
Preserving the Record on
Preserving the Record on
Requests for Funding
Requests for Funding
•
Ake v. Oklahoma
•
Fifth, Sixth, Eighth & Fourteenth
Amendments.
•
Proffer what your expert would
say if you were given funding.
86
Preserving the Record Requests
Preserving the Record Requests
to Continue
to Continue
Set up reasonable expectations from the start;
Don’t procrastinate;
Explain why you need a continuance in detail;
Obtain
affidavits
in support of motions to
continue;
Make your record.
87
Plea Negotiations & Judicial
Plea Negotiations & Judicial
Review
Review
•
Client’s age, maturity, & psychological
development at the time of the offense;
•
Whether client as the victim of abuse
as a child;
•
The results of any mental health
assessment, risk assessment, or
evaluation.
88
Special concerns re: Plea
Special concerns re: Plea
negotiations
negotiations
•
You must conduct a constitutionally
adequate social history before client
enters a plea.
•
By the time of judicial review,
witnesses will be dead, records will be
destroyed, and you will be retired.
•
How will evidence be preserved?
89
Discovery
Discovery
Should you file a demand?
Make demands for public records
under Chapter 119 for records not
otherwise discoverable.
90
Discovery
Discovery
Brady
Brady
Brady
was a penalty phase case: state failed to
disclose evidence that
Brady’s
co-defendant was
the actual killer.
The State must turn over any mitigating
evidence, including evidence that would reduce
culpability.
Review the State’s entire file!
91
Guilt Phase Issues
Guilt Phase Issues
Confessions: Can you argue that it was given
under questionable circumstances?
Did the trial lawyer fail to convey (or fail to
explain) a reasonable plea offer?
Was your client the most culpable co-
defendant?
Is there
Brady
or Newly Discovered Evidence?
92
Discovery
Discovery
State Mental Health Evaluations
State Mental Health Evaluations
State evaluation limited to examination of the
mitigating factors.
Beckman v. State,
147 So.
3d 584 (Fla. 3
rd
DCA 2014)(JLWOP case).
Burton
(CC)
-
Denied motion for State
evaluation where no new dx by defense.
Kleppinger
(CC)
-
no State evaluation on 2nd
resentencing.
93
Discovery
Discovery
State mental health evaluations
State mental health evaluations
Be present & have evaluation
videotaped.
Maraman v. State
,
980 So. 2d 1096.
Find out what tests State expert
plans to administer beforehand.
94
Reentry Plan
Reentry Plan
•
Miller/Graham cases are similar to capital
penalty hearings,
except
that you are seeking
eventual release into the community.
•
You want to show that with the proper tools
such as education, training or medicine, your
client can function in the community.
•
Your mitigation specialist can help you form a
reentry plan.
95
The Sentencing Hearing
The Sentencing Hearing
Your Client
Your Client
•
File a motion to have your client wear
appropriate court attire.
•
Prepare your client for seeing the victims and
surviving family members in the courtroom.
•
Have someone in court to assist your client with
any needs during the hearing.
•
Ask if your client may have a hand free to take
notes.
96
The Sentencing Hearing
The Sentencing Hearing
EVIDENCE
EVIDENCE
•
File motions for judicial notice if necessary
(e.g. notice of the criminal court files of the
older co-defendant).
•
Get as many documents certified as you can
or get stipulations from the state.
•
Corroborate as much of your mitigating
evidence as possible!
97
The Sentencing Hearing
The Sentencing Hearing
Hearsay
Hearsay
STATE EVIDENCE:
Crawford v. Washington:
Hearsay and
Sixth Amendment Confrontation (case law all over the
place)
DEFENSE EVIDENCE
: The due process clause allows
the defense to introduce reliable hearsay for the
purpose of sentencing:
Green v. Georgia
–
Due process trumps hearsay rules.
Sears v. Upton
- reliable hearsay evidence that is
relevant to a capital defendant's mitigation defense
should not be excluded by rote application of a state
hearsay rule.
98
State’s Burden to Prove
State’s Burden to Prove
Incorrigibility
Incorrigibility
There must be a presumption against LWOP
To rebut the presumption, the State must bear
the burden of proving beyond a reasonable
doubt that the juvenile is incapable of
rehabilitation.
Commonwealth v. Batts
, 163 A 3d 401 (PA 2017).
99
The State’s Burden
The State’s Burden
The State must meet its burden to establish that the
defendant is that “rare juvenile whose crime reflects
‘irreparable corruption,’” before life may be
imposed.
Landrum v. State
,
citing Miller v. Alabama
The harshest possible sentence that a juvenile who
has been convicted of capital murder may receive is
life in prison with the opportunity of judicial review
in 25 years with certain exceptions.
100
The State’s Burden
“From the foregoing, the court finds that the defendant is
clearly not rehabilitated at this time. The possibility for the
defendant's future rehabilitation remains just that, a
possibility. However, this court also concurs with Dr. Prichard
who has also opined in this matter that the defendant's crime
does not reflect irreparable corruption. Consequently, from
the totality of the circumstances in this matter this court
concludes that the defendant does not fit within the limited
category of defendants who are either irreparably corrupt or
irretrievably depraved. As such, the defendant is entitled to
receive a prison sentence for a term of years.” Order in
McGill
v. State,
95-CF111 (Bay Cty. Cir. Ct. June 16, 2017)
101
The Sentencing Memorandum
•
Set forth the story and how it relates to the factors set
forth in the juvenile sentencing statute.
•
Don’t forget the “legal competence” factor.
•
Address the State’s arguments in aggravation; object to
the application of death penalty aggravators.
•
Cite to the literature and research relied upon by the
USSC.
•
There is no requirement to show a nexus between the
mitigation and the crime – BUT IT HELPS!
102
Follow up after the hearing
•
Check on your client after the sentencing.
•
Once the client is transported to DOC, make sure that he is receiving
medical care and medication.
•
Contact the classification officer formally and request that your
client be allowed to participate in rehabilitation programs.
•
Advise your client to appeal the denial of any request to participate
in a program.
•
File the necessary appellate pleadings.
•
Preserve any mitigation evidence that was not put into the record
for the purpose of
judicial review.
103
F
F
LORIDA
LORIDA
J
J
UVENILE
UVENILE
R
R
ESENTENCING
ESENTENCING
AND
AND
R
R
EVIEW
EVIEW
P
P
ROJECT
ROJECT
https://law.fiu.edu/academics/learning/fccr/fjrrp/
https://law.fiu.edu/academics/learning/fccr/fjrrp/
Contact Roseanne Eckert at the FIU College
Contact Roseanne Eckert at the FIU College
of Law for sample pleadings, expert
of Law for sample pleadings, expert
recommendations, and case consultation.
recommendations, and case consultation.
reckert@fiu.edu
reckert@fiu.edu
104
Explore key cases like Roper v. Simmons, Graham v. Florida, and Miller v. Alabama that shaped juvenile sentencing laws. Delve into legislative responses like Chap. 2014-220, Laws of Florida, focusing on individualized hearings and factors considered in sentencing. Discover the impact on juvenile offenders' futures post-conviction.
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Presentation Transcript
Litigation & Motion Practice for 921.1401 & 921.1402 Hearings Roseanne Eckert FIU College of Law Webinar 1
Roper v. Simmons (2005) Death Penalty Immaturity and Impetuosity Lack of Choice in Environment Capacity for Change 2
Graham v. Florida (2010) Non-Homicide Incorrigibility is inconsistent with youth. State must provide meaningful opportunity for release. Your client can still get life for non- homicide, but with opportunity for judicial review. 3
Miller v. Alabama (2012) Homicide The Court recognized that the distinctive traits of children are not crime specific. The State s most severe penalties on juvenile offenders cannot proceed as though they were not children. 4
LEGISLATIVE RESPONSE TO MILLER Chap. 2014-220, Laws of Florida, codified at 941.1401, 941.1402, and 775.082 (2014). 5
LEGISLATIVE RESPONSE TO MILLER New and different penalties for juveniles convicted as adults. Factors to be considered at individualized sentencing hearings when child convicted of a capital, life, or first-degree felony. Provides for subsequent judicial review of the sentence in most cases. 6
Individualized Hearings 921.1401 7
Individualized sentencing hearings. Crimes on or after July 1, 2014. The court may conduct a separate sentencing hearing to determine if a term of imprisonment for life or a term of years equal to life imprisonment is appropriate. 921.1401(1) Individualized Hearings Sentencing Factors 8
Circumstances of the offense; The effect on the victim's family & community; The extent of the child's participation; 921.1401(2) Individualized Hearings Sentencing Factors 9
Child's background; The effect of family pressure or peer pressure on the child; prior criminal history; 921.1401(2) Individualized Hearings/Sent encing Factors 10
Age, maturity, IQ, mental health at the time of the offense; Effects of immaturity & impetuosity, etc., on the child's participation in the offense; 921.1401(2) Individualized Hearings Sentencing Factors The effect of characteristics of youth on the child's judgment; 11
921.1401(2) The possibility of rehabilitating the child. Individualized Hearings Sentencing Factors 12
Requires examination of any presentence reports. Requires written order when imposing a life sentence or a term of years equal to life. Requires written finding as to judicial review. Fla. R. Crim. P. 3.781 Governs proceedings for juvenile sentencing hearings. 13
Sentencing Options 775.082 14
Juvenile who actually killed, intended to kill, or attempted to kill the victim shall be sentenced to life, if appropriate. Sentence must be at least 40 years. Judicial review in 25. Sentencing & Judicial Review Eligibility 775.082(1)(b)(1) - capital or reclassified as capital felony 15
Sentencing & Judicial Review Eligibility If the juvenile did not actually kill, intend to kill, or attempt to kill the victim, he or she may be sentenced to life or by a term of years equal to life if appropriate. 775.082(1)(b)(2) capital or reclassified as capital; Judicial review in 15 years. But, convicted of felony murder. 16
A juvenile . . .may be sentenced to life or a term of years equal to life if appropriate. Whether the juvenile is entitled to judicial review in 25 years or 15 years is dependent upon finding as to actually, intended, or attempted to kill the victim. Sentencing & Judicial Review Eligibility 775.082(3)(a)(5) - convicted under 782.04 of offense reclassified as a life felony (2nd Degree Murder) 17
Sentencing & Judicial Review Eligibility A juvenile convicted under 782.04 of a first degree felony punishable by life or an offense reclassified as a first degree felony punishable by life may be sentenced to a term of years equal to life if the court finds it is an appropriate sentence. 775.082(3)(b) 2 1st Degree PBL Felony (or reclassified as such) Again, whether the juvenile convicted of murder is entitled to judicial review in 25 years or 15 years is dependent finding on whether he actually, intended, or attempted to kill the victim. 18
Juvenile may be sentenced to life or a term of years equal to life, if appropriate. Judicial review in 20 years with subsequent review in 10 years. Sentencing & Judicial Review Eligibility 775.082(3)c non-homicide Graham cases: Offenses PBL or reclassified as such. 19
Judicial Review 921.1402 20
Judicial Review Onus on inmate to file application. DOC must notify the juvenile of eligibility 18 months beforehand. Right to counsel. 21
May not apply until eligible. Include copy of J&S or statement with date of sentence, offense, and sentence imposed; Nature of relief sought; History on prior applications; Statement of facts in support of modification. Fla. R. Crim. P. 3.802 Governs procedures for Judicial Review 22
Was juvenile a relatively minor participant or under extreme duress; Judicial Review Factors 921.1402(6) Whether juvenile s age, maturity or psychological development affected behavior; 23
Whether the juvenile was a victim of sexual, physical or emotional abuse before the offense; Results of any mental heath assessment, risk assessment, or evaluation as to rehabilitation; Judicial Review Factors 921.1402(6) 24
Whether the juvenile has shown sincere & sustained remorse; Judicial Review Factors 921.1402(6) Whether the juvenile has obtained GED or completed other available programs; 25
Whether juvenile remains at the same level of risk as he or she did at initial sentencing; Whether the juvenile demonstrates maturity and rehabilitation; and The opinion of the victim or the victim s next of kin. Judicial Review Factors 921.1402(6) 26
If the court finds the juvenile is rehabilitated & reasonably fit to renter society, the court shall modify the sentence & impose a term of probation of at least 5 years. Judicial Review 921.1402(7) 27
If the court finds the juvenile is not rehabilitated or fit to reenter society, the court shall issue a written order stating why the sentence is not being modified. Judicial Review 921.1402(7) 28
Juvenile who actually killed, intended to kill, or attempted to kill who is convicted of a capital felony (or an offense that was reclassified as a capital felony) is not entitled to judicial review if he or she has been previously convicted of certain enumerated felony offenses. Judicial Review 921.1402(2)(a) Prior Enumerated Felony Exclusion 29
Murder; Manslaughter; Sexual battery; Armed burglary; Armed robbery; Armed carjacking; Home-invasion robbery; Human trafficking for commercial sexual activity with a child under 18 years of age; False imprisonment under s. 787.02(3)(a); or Kidnapping. Judicial Review 921.1402(2)(a) Prior Enumerated Felony Exclusion 30
Judicial Review In a pre-2014 resentencing, the appellate court remanded the case to the circuit court to include the right to judicial review. Matias v. State, No. 2D16-971, *2 (Fla. 2d DCA Oct. 11, 2017). The Criminal Rules Committee is considering a rule requiring a written finding on judicial review at the time of sentencing or resentencing. 31
Judicial Review Your client must apply for judicial review; there is nothing in the statute that would allow the court to force the defendant to have the review hearing and resentencing at the same time. Your client is not required to seek judicial review immediately upon becoming eligible. On a resentencing, you should ask the court to imposed the new sentence and the judicial review period nunc pro tunc to the original sentencing date, and include any credit for time served prior to the initial sentencing. 32
Case Law & Pending Issues 33
Retroactivity Postconviction 34
Retroactivity Horsley v. State, Falcon v. State, 160 So. 3d 393 (Fla. 2015) 162 So. 3d 954 (Fla. 2015) Retroactive under Witt (FL) and Teague (Fed.) Relief for over 250 juveniles serving LWOP Pipeline Case Resentencing pursuant to 921.1401. 35
Rule 3.850 Motion Florida Rule of Criminal Procedure 3.850 is the appropriate vehicle to obtain relief. The 3.850 motion must be verified by the client. The motion must be brought within two years of when the new case law became final; within one year to preserve federal remedies. 36
Rule 3.800 Motion You may file a motion to correct an illegal sentence pursuant to rule 3.800 if time is an issue or if you are unable to get the motion verified. A 3.800 motion is appropriate where the illegality and unconstitutional nature of the sentence may be deduced from the face of the record without the need for an evidentiary hearing. Landy v. State, 205 So. 3d 801 (Fla 2d DCA 2016). 37
Montgomery v. Louisiana USSC Miller s prohibition against mandatory life without parole sentences for juveniles is a substantive rule and therefore, retroactive under federal law. 136 S.Ct. 718 (2016). 38
Atwell and Landrum The spirit of Miller 39
Landrum v. State 2nd Degree Murder Laisha Landrum & her boyfriend beat another girl with a hammer, then left her close to death in a trash bin. Miller is about how children are different and not about the mandatory nature of the sentence imposed. 192 So. 3d 459 (Fla. 2016) 40
Landrum v. State Why should she receive such an uncommon and exceedingly rare life sentence, rather than a 22.3 year guideline sentence, or. . . one that departed downward. . . [?] Landrum. 41
Atwell v. State Life With Parole Eligible for resentencing on life with Parole for murder before May 25, 1994. 197 So. 3d 1040 (Fla. 2016). FSC followed the spirit of Miller. Parole system & FCOR do not consider characteristics of youth. 42
Atwell Applies to Graham cases Burney v. State, 211 So. 3d 1106 (Fla. 2d DCA 2017) -Juvenile sentence to life with parole for burglary gets new sentencing. Marshall v. State, 214 So. 3d 776(Fla. 2d DCA 2017) 99 year concurrent sentences for non- homicide crimes unconstitutional. Parole abolished for non-homicide crimes on October 1, 1983. 43
Atwell: Presumptive Parole Release Date (PPRD) The Fifth remanded a case for a hearing to determine PPRD & whether he is entitled to a resentencing. Stallings v. State, 204 So. 3d 101 (Fla. 5th DCA 2016 The Fourth Florida s parole system does not provide the individualized sentencing consideration required by Miller. Michel v. State, 204 So. 3d 101 (Fla. 4th DCA 2016). Certified Conflict Pending SC16-2187 44
Atwell: Sentenced to Death for a 1960 Felony Murder Calvin Thomas 45
Atwell: Prior Parole Violations Calvin Thomas 46
Atwell: Prior Parole Violations 2017 Cases No resentencing where the child has previously been paroled and re- incarcerated on parole violation. Currie v. State, 219 So. 3d 960 (Fla. 1st DCA 2017) Rogers v. State, 223 So. 3d 281 (Fla. 4th DCA 2017) Rooks v. State, 224 So. 3d 272 (Fla. 3rd DCA 2017): Jurisdictional brief pending in SC17-1342. 47
Lengthy Prison Sentences De Facto Life or Meaningful Opportunity for Release? 48
De Facto Life Sentences in Graham Cases Henry v. State, 175 So. 3d 675 (2015). Aggregate sentence of 90 years is unconstitutional. Resentencing pursuant to 921.1401. Gridine v. State, 175 So. 3d 672 (Fla. 2015). 70 years is unconstitutional. Resentencing pursuant to 921.1401. 49
Peterson Certified Questions Is Henry retroactive? Does Henry only apply to de facto life sentences? When is a term-of-years sentence de facto life? Should gender, race, SES, & gain time be considered? 50
