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James L. Brooks v. State of Florida
SC06-1266
THE NEXT
CASE ON THE DOCKET THIS
MORNING FINAL CASE IS BROOKS
VERSUS STATE OF FLORIDA
RUIZ MAY IT PLEASE THE COURT I'M
ISAAC RUIZ-CARUS I REPRESENT
THE PITCHER MR. BROOKS THIS
CASE PRESENTS A SINGLE ISSUE
WHAT IS THE HARMLESS ERROR
STANDARD UNDER 3.8001 OF THE
FLORIDA RULES OF CRIMINAL
PROCEDURE IN OUR SYSTEM --
SYSTEM, A CRIMINAL DEFENDANT
IS PRESUMEDN'T IN UNTIL THE
STATE PROVES BEYOND A
REASONABLE DOUBT, THAT THE
HAVE COMMITTED APPEAR OFFENSE,
IN OUR SYSTEM, IN REVIEWING A
VERDICT ONCE A DEFENDANT HAVE
A SHOWN AN ERROR, THE STATE
MUST PROVE BEYOND A REASONABLE
DOUBT, THAT THE ERROR DID NOT
AFFECT THE OUTCOME.
ON POST CONVICTION RELIEF,
ONCE THE DEFENDANT, HAS SHOWN
AN ERROR, THE BURDEN IS ON THE
STATE, TO PROVE BEYOND A
REASONABLE DOUBT, THAT THE
ERROR DID NOT AFFECT THE OUT!!$$!!!!
OUTCOME, HERE, TOO, UNDER RULE
3.8005 A MOTION TO CORRECT AN
ILLEGAL SENTENCE, THE BURDEN
UNDER THE FIRST DISTRICT, THE
SECOND DISTRICT, THE FIFTH
DISTRICT AND UNTIL VERY
RECENTLY THE THIRD AND FOURTH
DISTRICTS IS ON THE STATE TO
PROVE BEYOND A REASONABLE
DOUBT, THAT THE ERROR DID NOT
AFFECT THE OUTCOME.
THAT IS THE WOULD HAVE BEEN
IMPOSED TEST.
>> IS IT WOULD HAVE BEEN
IMPOSED TEST THAT CONTAINED
SOME ELEMENT OF
SUBJEBBINGTIVITY!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
SUBJEBBINGTIVITY, IN OTHER
WORDS!!$$!!!!!!!!
WORDS, IT ASKS WHETHER IN THE
TRIAL COURT, WOULD HAVE
IMPOSED THAT SAME SENTENCE, IF
THE IF IT HAD USED THE CORRECT
MEASURE OF THE GUIDELINES?
IS THAT RIGHT?
>> WELL JUSTICE I WOULD
DISAGREE WITH THE STATEMENT
THAT IT ENTERS ALL SUBJECT!!$$!!!!!!!!!!!!
SUBJECTIVITY INTO THE ISSUE.
>> USUALLY THIS HAPPENS WHERE
THERE IS A GUIDELINE AND LET'S
SAY IT IS -- THE MINIMUM
SENTENCED IS 66 MONTHS, AND
THE COURT, IMPOSES 66 MONTHS,
CLEARLY, ATTEMPTING TO
SENTENCE AT THE LOECHT RANGE
OF THE GUIDELINES -- BUT TURNS
OUT THAT THE REAL GUIDELINE
SENTENCE WAS 30 MONTHS, AND
SO, AND 3850 WE SAY THE
STAIRNSD WHERE THE COURT HAVE
IMPOSED THE SAME SENTENCE, IF
THE CORRECT GUIDELINES HAD
BEEN USED, MEANING IF THE
TRIAL COURT INTENDED TO THE
TRIAL COURT INTEND TO SENTENCE
FOR 66 MONTHS -- WHATEVER THE
GUIDELINES!!$$!!!!!!!!!!!!!!!!!!
GUIDELINES, OR DID THE TRIAL
COURT REALLY INTEND TO
SENTENCE AT THE LOWEST
POSSIBLE AT THE MINIMUM
SENTENCE?
>> THAT SEEMS TO ME WHAT WOULD
HAVE BEEN IMPOSED, MEANS.
>> WITH DUE RESPECT IF WE LOOK
AT THE LANGUAGE OF THE WOULD
HAVE BEEN IMPOSED TEST, IT IS
AS SCORE SHEET ERROR REQUIRES
RESENTENCING UNLESS THE
RECORD, CONCLUSIVELY SHOWS
THAT THE DEFENDANT OR THAT THE
SAME SENTENCE WOULD HAVE BEEN
IMPOSED UNDER A CORRECTED
SCORE SHEET SO IT IS.
>> LANGUAGE -- WE ARE REALLY
LOOKING UNDER THREE # 00, AND
I KNOW THAT -- 3800 I KNOW
SOME GROUPS ARE WORKING ON
MAYBE AMENDING THIS -- THIS
PARTICULAR RULE, ERRORS, THAT
BECAUSE OF THEIR NATURE SHOULD
BE CORRECTED AT ANY TIME AND
THE O'ER THE OTHER ISSUE IS
WITHOUT AN EVIDENTIARY
HEARING, FOR ME, THE PROBLEM I
SEE IN LET ME TAKE JUST THIS
CASE AS I'M UNDERSTANDING IT
THEY AGREE THAT THE INCORRECT
SCORE SHEET WAS USED BUT THE
MOST THAT WOULD HAPPEN, WAS
THAT IT LOWERED THE LOWEST
PERMISSIBLE SENTENCE FROM 63
MONTHS, FIVE YEARS, TO 39
MONTHS, TO BE A LITTLE OVER
THREE YEARS, THE JUDGE
SENTENCED TO TEN YEARS.
NOW THE ISSUE WOULD BE YOU
CAN'T THERE IS NO EVIDENTIARY
HEARING ON UNDER 3800, SO THE
STATE WHO IS GOING TO -- AND
THERE IS NOTHING IN THE RECORD
EITHER WAY, I WOULD ARGUE THAT
IT LOOKS TO ME LIKE EVEN UNDER
THE WOULD HAVE, IT WOULD HAVE
BEEN TEN YEARS, IS YOU KNOW
SINCE THE JUDGE WAS SENTENCE$$!!!!ING
SO FAR OVER THE LOWEST
MINIMUM, MAKES NO DIFFERENCE,
YOU WOULD ARGUE DIFFERENTLY,
SO HOW WOULD YOU HOW WOULD THE
STATE BE ABLE TO SHOW IT THAT
IT WOULD HAVE BEEN IMPOSED ON
IF WE WERE TO USE THIS, SINCE
THERE IS NO EVIDENTIARY
HEARING UNDER 800 ESSENTIALLY
THEN YOU ARE SAYING THEY CAN'T
I DON'T THINK WE O COULD HAVE
POSSIBLY INTENDED THAT, FOR
SENTENCES THAT SHOULD BE
CORRECTED AT ANY TIME.
>> JUSTICE SINCE THE COURT IS
CLEARLY CONCERNED WITH THE
RULE AND UTSING THE RULE IN
OTHER CASES NOT JUST IN THIS
CERTAIN FACTS CERTAIN RECORDS
MIGHT PRESENT COMMENTS BY THE
JUDGE ABOUT WHEN OR NOT, THIS
PARTICULAR OFFENDER WOULD HAVE
BEEN SCORED AT THE MAXIMUM
WHATEVER THE MAXIMUM WOULD BE
OR MINIMUM WHATEVER THE
MINIMUM WOULD BE.
YOU KNOW THOSE RECORDS EXIST.
AND SO UNDER THAT TYPE OF AN
INSTANCE THE STATE COULD MEET
ETS BURDEN UNDER THE WOULD
HAVE BEEN IMPOSED TEST COULD
IT MEET THE BURDEN THAT BASED
ON THE RECORD ONLY THE RECORD,
NOT ON THE RECOLLECTION OF THE
TRIAL JUDGE, WHICH MAY FADE
THE TRIAL JUDGE MY DIE THOSE
ARE THE CONCERNS JUSTICE
CANTERA YOU RAISED.
>> YOU AGREE THIS IS NOT A
SITUATION THAT ILLEGAL
SENTENCE.
>> THIS IS NOT A SITUATION --
>> AND IT INVOLVES, THEREFORE,
A RULE INTERPRETATION OF THIS
COURT THIS IS -- THIS $$COURT'S
RULE IN LIKE -- LOOKING AT THE
KINDS OF ERRORS THAT OCCUR,
THAT THE DEMAND CORRECTION
REARE SENTENCING, WHATEVER,!!$$!!!!!!!!!!!!!!!!
WHATEVER,99WITHOUT REGARD TO
WHETHER IT OCCURS FIVE YEARS,
TONE YEARS, 15, FROM THEREFORE!!$$!!!!!!!!!!!!!!!!
THEREFORE, SINCE WE DON'T IT
IS NOT CLEAR, EITHER WAY, MY
CONCERN, IS THAT BECAUSE THERE
IS NOT AN EVIDENTIARY HEARING,
AND, BECAUSE THERE ISN'T IN
MANY CASES, A RECORD ANY MORE,
YOU DON'T EVEN YOU KNOW YOUR
VIEW WOULD BE THERE SHOULD BE
WHAT WOULD BE THE REMEDY,
RESENTENCING?
.
>> RESENTENCING.
>> AND WITH USING A CORRECTED
SCORE SHEET.
>> USING THE CORRECTED SHORE
SHEET PERHAPS THERE IS
EVIDENCE, AS I THINK THERE IS
IN THIS CASE NOT ON THIS
SUMMARY RECORD ON APPEAL HERE,
BUT THAT THE STATE REFERENCE
THAT THERE IS A NEGOTIATED
PLEA THINGS THAT MIGHT AFFECT
AT A RESENTENCING MAYBE SAME
SENTENCE WOULD BE IMPOSED BY
THE TRIAL COURT ON
RESENTENCING BUT I THINK THE
PROPER REMEDY, IS STILL
RESENTENCING!!$$!!!!!!!!!!!!!!!!!!!!!!
RESENTENCING, OTHERWISE WE ARE
SHIFTING THE BURDEN, AWAY FROM
THE STATE.
WE ARE TAKING AWAY THE BENEFIT
OF THE DOUBT THAT IS GIVEN TO
THE CRIMINAL --
>> BUT ONLY IN THOSE CASES,
SINCE WE HAVE ALREADY HAD,
ANDERSON!!$$!!!!!!!!!!!!!!
ANDERSON, THAT ARE BEYOND THE
TWO YEAR BASIS WOULD YOU AGREE
THIS COURT CONSTITUTIONALLY
COULD TAKE SCORE SHEET ERRORS
OUT OF 3800 ALTOGETHER.
>> ABSOLUTELY.
>> THAT IS WHY I'M SAYING I
THINK THERE IS SOME POLICY
INTERPRETATION, ABOUT IT, THAT
JUST CANTERO, ALLUDED TO, IN I
THINK ANDERSON AND THE
ANDERSON OPINION, ABOUT WHEN!!$$!!!!!!
WHEN -- WHY STANDARD WOULD BE
DIFFERENT, FOR 3800, AND I
DON'T -- HOW O DO YOU.
>> IF WE FOLLOW THAT LOGIC,
THEN 3800 IS STRIPPED OF THE
ABILITY TO CORRECT INCORRECT
SCORE SHEET ERRORS, THAT DON'T
EXCEED THE MAX.
>> -- MAXIMUM.
>> PROBABLY, FRANKLY BECAUSE
AT THE TIME THE RULE WAS
INITIATED SCORE SHEET ERRORS
WERE PROBABLY A RELATE BIG
THING ABOUT MINIMUNS AND
MAXIMUMS!!$$!!!!!!!!!!!!!!
MAXIMUMS, BECAUSE SENTENCING
IS SO DIFFERENT NOW, FRANKLY
IT LOOKS LIKE SCORE SHEET
ERRORS, HAVE ESPECIALLY
BECAUSE THEY ONLY LOOK AT THE
MINIMUM YOU DON'T LOOK AT THE
MAXIMUM, PARTICIPANT OF THE
SAME CONCERNS ARE NOT TLECH
WOULD YOU AGREE WITH THAT.
>> UH-HUH.
>> YOU DO?
>> CERTAINLY WITH THE NEW
AMENDED 1998 STENZING
GUIDELINES WE ARE NOW LOOKING
AT THE MINIMUM PERMISSIBLE
SENTENCE AS OPPOSED TO MAXIMUM
AND THAT BILL IN DISCRETION
BUT I STILL THINK THAT WE
SHOULD NOT LIGHTLY RECEDE FROM
THE BENEFIT OF THE DOUBT THAT
IS GIVEN TO THE CRIMINAL
DEFENDANT, IN EVERY OTHER
ASPECT OF OUR JURISPRUDENCE,
SIMPLY BECAUSE, IN THIS
SITUATION, WE WOULD RATHER
THERE BE THE ABILITY TO HAVE
AN EVIDENTIARY HEARING TO GET
A FULLER PICTURE WE ARE GIVING
TOO MUCH THEN OF THAT BENEFIT
BACK TO THE STATE.
>> YOU AGREE, WE CURRENTLY
HAVE RULE 3800B.
>> AND THAT VERY MUCH
ENCOURAGES A DEFENDANT TO
RAISE THIS KIND OF ERROR,P
BEFORE AN APPEAL, DURING THE
PENDENCY OF APPEAL THIS
PROBABLY THE ONLY PLACE IN THE
RULES THAT SEEMS TO ALLOW, THE
DEFENDANT OR ANY PARTY TO FILE
A MOTION AFTER AN APPEAL HAS
BEEN FILED, GO AHEAD AND FILE
THE MOTION THE TRIAL COURT, TO
MAKE INSURE THAT THE THIS
SENTENCING ERROR IS TAKEN CARE
OF, ON DIRECT APPEAL.
SO IT WILL SEEMS LIKE IF WE
ARE EMPHASIZING THAT MUCH, AND
3800B, THAT THESE KINDS OF
ERRORS SHOULD BE RAISED, AND
DETERMINED, ON DIRECT APPEAL,
IT WOULD SEEM INGRUNGOUS TO ME
ON THE OTHER HAND WE ALLOW
ISSUES TO BE RAISED AT ANY
TIME EVEN 20, 30 YEARS AFTER
THE SENTENCE.
>> IF WE LOOK AT THE FACTS,
LET'S LOOK AT THE FACTS IN
THIS CASE THAT WAY CAN PLAY IT
OUT SEE WHAT IF RELIEF WERE
GRANTED WHAT IT WOULD DO WERE
A POLICY RATIONALES WOULD BE
HERE WE HAVE ON THE INITIALLY
SCORE SHEET 1999 CARJACKING
LEVEL SEVEN OFFENSE, IN 2001,
MR. BOOKS PICKS UP A NEW
CHARGE VIOLATES PROBATION ON
THE FIRST CHARGE, THE SECOND
SHORE SHEET PREPARED HAS ARMED
CARJACKING RATHER THAN CARJACK
INITIAL OFFENSE SCORE AT LEVEL
-- THE DIFFERENCE IS 36 POINTS!!$$!!!!!!!!!!
POINTS, NOT A DE MINIMIS
DIFFERENCE, NEARLY THREE YEARS
AS JUSTICE PARIENTE POINTED
OUT.
>> HE WAS AWARE THAT IF ANY
TIME FOR DIRECT APPEAL, HE WAS
COULD HAVE BEEN AWARE OF THAT
DURING THE TWO YEARS FOR
3.580; CORRECT?
>> AS THIS COURT POINTEDED OUT
IN WOODFIELD VERSUS STATE THE
PROSECUTION HAS EQUAL
PROFESSIONAL RESPONSIBILITY IN
PREPARING THE SCORE SHEET, AND
UP THE PREPARED A SCORE SHEET
THAT HAD THE ERROR, THIS AND
THIS INSTANCE WE HAVE, TWO
SETS OF PROSECUTORS.
>> MY POINT IS WE HAVE THE YOU
KNOW THIS BENEFIT OF THE
DOUBT, AND, GIVING THE
DEFENDANT THE BENEFIT OR YOU
KNOW, THE A-- APPEAL TIME TWO
YEARS AFTER THE SENTENCE SO HE
AS JUSTICE CANTERO WAS SAYING,
I THINK, IF WE ACCEPT YOUR
ARGUMENT, THEN THERE IS NO
TIME LIMIT.
>> THERE SHOULDN'T BE, FOR AN
ERROR SUCH AS THIS, EVER.
>> I DON'T BELIEVE THERE IS --
>> NO STINT -- NO INTEREST IN
STATE IN FINALITY.
>> NOT UNLESS THERE IS A
REQUISITE EVIDENTIARY HEARING,
ERROR SUCH AS THIS IS CLEAR
FROM THE SCORE SLOOETS IF YOU
LOOK AT SCORESHEET ONE YOU SEE
CARJACKING LEVEL SEVEN YOU
LOOK AT SCORE SHEET TWO, ARMED
CARJACKING LEVEL NINE THERE IS
AN ERROR, THAT ERROR.
>> BUT IT DIDN'T RESULT IN AN
ILLEGAL SENTENCE.
AND I AGREE WITH YOU RESULTED
IN ILLEGAL SENTENCED -- BUT WE
ARE NOT TALKING HERE ABOUT AN
ILLEGAL SENTENCE WE ARE
TALKING ABOUT DISCRETIONARY
SENTENCING OF THE TRIAL JUDGE
AND THIS SENTENCE WAS WITHIN
THAT DISCRETIONARY RANGE.
>> I AGREE JUSTICE BELL BUT IF
WITHIN THE DISCRETIONARY RANGE
OF YOU ALREADY CONCEDED IT IS
NOT ILLEGAL SENTENCE THAT YOU
CAN NEVER CHALIF THAT IS THE
FACTS IF THE FACTS AS YOU LAID
THEM OUT YOU CAN NEVER CHALA
SENTENCE$$!!!!ING ERROR NO MATTER HOW
GREAT SO LONG AS IT IS WITHIN
THE CHANGE, I THINK, 3.8008 --
>> YOU CAN NEVER CHALLENGE I'M
SAYING YOU HAVE THREE OTHER
OPPORTUNITIES, UNDER THE WOULD
HAVE.
P.
>> YOU CAN'T CHALLENGE AT ANY
TIME --
>> I THINK THE RULE IS
CURRENTLY WRITTEN IS FINE I
THINK IT, FOR ONE IT MEETS, IT
-- IT COVERS THE FACTS OF THIS
CASE.
I DON'T THIP IT RUNS INTO THE
PROBLEMS OF FINALITY THAT THE
STATE WILL RAISE.
>> -- TI THERE IS ANY A HAPPY
MEDIUM IN TERMS OF THIS
SITUATION -- IN THIS CASE, THE
MAXIMUM SENTENCE 30IS YEARS.
>> UM-HMM.
>> THE SCORE SHEET ERROR THE
LOWEST PER MISS SO I BELIEVE
THE JUDGE IMPOSED A MAXIMUM OF
30 YEARS.
IS THAT DIFFERENT THAN
SAYING,99IN THIS CASE, AND I
WOULD ASK THIS QUESTION TO THE
STATE, THE JUDGE, IMPOSED THE
MINIMUM, AND IMPOSED THE 63.3
MONTHS, MINIMUM, SO -- SHOULD
THERE BE TO SAY, IF IT IS A
SCORE SHEET ERROR IT AFFECTS
THE MINIMUM PERMISSIBLE, AND
THE JUDGE NONL THOSE CASES,
WHERE THE JUDGE, SENTENCED AT
THE MINIMUM -- THAT THOSE
CASES!!$$!!!!!!!!
CASES, WOULD BE EVEN THOUGH
COULD HAVE DONE THE HIGHER ONE
IT IS PRETTY OBJECT VEEUS FROM
THE KNAVES RECORD, THAT THE
JUDGE WAS SENTENCING AT THE
MINIMUM, AND THOSE WOULD
DEMAND RESENSE -- RESENTENCING
NOT TO SAY EVERY CASE AGAIN I
GAVE YOU THE 30 YEARS, THAT IS
THAT WOULD BE A THAT IS A USE!!$$!!!!
USEFUL -- USELESS ACTED --
DOES ANY -- I MEAN YOU DO SEE
THAT AS AN I DON'T KNOW.
>> AS THIS COURT REVISITS,
RULE 3.800A, I THINK THAT IS A
HAPPY MEDIUM OF COURSE BECAUSE
THEN IT IS COURSE OR IT IS
CLEARER THAN A CASE SUCH AS
THIS, WHERE IT IS SOMEWHERE
WITHIN THE REASONING AS
OPPOSED TO EITHER THE TOP OR
THE BOTTOM OF THE HE RANGE
THAT SOME ERROR HAS OCCURRED
YOU CAN SEE THAT FROM THE
RECORD
>> I DON'T KNOW WHY EVEN UNDER
CURRENT RULES, SINCE IT IS YOU
ARE I DON'T KNOW WHY, THAT IS
DISTYPE$$!!!!ION CAN'T BE MADE UNDER
THE CURRENT RULE DISTINCTION.
>> SOME COURTS HAVE ATTEMPTED
TO BUT THE ONLY.
>> BASICALLY THE WOULD HAVE
BEEN IMPOSED STASHED?
>> THAT IS THE WOULD HAVE BEEN
IMPOSED STANDARD IT SEEMS TO
ME.
>> WELL, SO I THINK SORT OF.
YOUR HONOR, IT IS -- THERE
WERE LIMITING THE --
>> GETTING BACK TO JUSTICE
PARIENTE!!$$!!!!!!!!!!!!!!
PARIENTE'S ORIGINAL QUESTION
ASSUME FOR THE MOMENT THE
WOULD HAVE BEEN IMPOSED
STANDARD APPLIES HOW YOU DO
MEET IT IN THIS CASE.
>> HOW DO I MEET THE WOULD
HAVE BEEN IMPOSED.
>> CORRECT.
>> IN THIS CASE FROM THE
RECORD ITSELF, WE SEE A SCORE
SHEET ERROR.
A DIFFERENT -- A DIFFERENCE OF
36 POINTS --
>> THERE WAS A TEN YEARS.
>> YES.
>> RIGHT?
>> THE ORIGINAL SENTENCE WAS
FIVE YEARS, THE MINIMUM, WAS
FIVE YEARS, AND THE MINIMUM
UNDER THE CORRECTED SCORE
SHEET WOULD BOE 3 1/2 YEARS.
>> UM-HMM.
>> SO HOW DO HOW IS THE RECORD
CONCLUSIVELY SHOW THAT THE
COURT HAVE BEEN WOULD HAVE
IMPOSED THE SAME HOW DOES IT
NOT EXCLUSIVELY SMO THE COURT
WOULD HAVE IMPOSED SAME
SENTENCE.
>> THE RECORD DOES NOT OLE
FIRST OF ALL THE STATE HAS
CONCEDED THAT, IN THEIR ANSWER
BRIEF, THEY HAVE THEY SAID
THAT THE RECORD DOES NOT
CONCLUSIVELY SHOW, THAT THE
SAME SENTENCE WOULD HAVE BEEN
IMPOSED!!$$!!!!!!!!!!!!
IMPOSED.
WITH THE CORRECTED SHORE SHEET
THAT IS ALREADY A CONCESSION
SO IT IS NOT --
>> WAS THERE WAS THERE A FIND!!$$!!!!!!
FINDING ON THE RECORD, THAT
THE TRIAL COURT SAID I'M GOING
TO I'M GOING SENTENCE YOU TO
FIVE YEARS, GREATER THAN THE
MINIMUM SENTENCE?
>> IF IT WAS IT IS NOT PART OF
THE SUMMARY RECORD THAT IS
BEFORE THIS COURT.
>> YOUR HONOR SO I WOULDN'T
KNOW I DIDN'T HANDLE THE
APPEAL.
>> SEEMS LIKE THAT IS THAT IS
THE WAY YOU WOULDN'T MEET THE
WOULD IMPOSE IF THERE IS SOME
EVIDENCE THAT THE COURT
DECIDED I'M GOING TO USE THE
MINIMUM AS SOME KIND OF GUIDE
EITHER BY IMPOSING THE MINIMUM
SENTENCE, OR BY SENTENCING
FROM ABOVE NOT GOING DOWN FROM
THE MAXIMUM BUT GOING UP FROM
THE MINIMUM.
>> I THINK THAT IS STILL SHIFT!!$$!!!!!!!!
SHIFTING THE BURDEN AWAY, THIS
COURT SAID THAT THE WOULD HAVE
BEEN IMPOSED TEST IS THE SAME
AS THE BEYOND A REASONABLE
DOUBT TEST.
>> BUT THAT IS POECHL -- I
MEAN THE COURT COULD DECIDE
THAT IN THESE CASES, THAT IT
WOULD BE, IT EVEN IF WE
APPLIED THE WOULD HAVE BEEN
IMPOSED!!$$!!!!!!!!!!!!
IMPOSED, THAT BECAUSE OF WHEN
IT IS OCCURRING, WOULD IT BE
INCUMBENT THEN ON THE
DEFENDANT FROM THE FACE OF THE
RECORD TO SHOW A DIFFERENT
SENTENCE WOULD HAVE BEEN
IMPOSED!!$$!!!!!!!!!!!!
IMPOSED.
THAT STILL WOULD GIVE THE
RELIEF TO A VERY SMALL PERHAPS
A VERY MAUL PERHAPS A CASES
WHERE THE RECORD SHOWS, THAT
THE JUDGE SAID, I AM
SENTENCING AT THE MINIMUM, AND
YOU WOULD BE ABLE TO PREVAIL
IN, THAT AND SO, I KNOW NO ONE
IS SUGGESTED THAT ALTERNATIVE,
BUT, SORT OF APPEALS TO ME.
AS A WAY THAT IN THAT ONE RARE
CASE WHERE IT REALLY IS CLEAR
THAT IT COULD HAVE BEEN
IMPOSED BUT THEY REALLY WERE
JUST GIVING THE LOWEST
POSSIBLE THEY WOULD AT LEAST
BE RELIEF IN THAT CASE.
>> UNDER THAT ITERATION OF THE
WOULD HAVE BEEN IMPOSED TEST
WHICH ENT IS NOT THE KURNT ONE
UTILIZED IN OTHER AREAS YES, I
DON'T THINK CRIMINAL DEFENDANT
HERE WOULD BE ENTITLED TO
RELIEF BUT UNDER CURRENT WOULD
HAVE BEEN TEST I DON'T THINK
RUNS INTO FINALITY PROBLEMS
HOPEFULLY ON REBUTTAL I CAN
ADDRESS THAT.
>> SPEAKING OF REBUTTAL YOU
ARE INTO REBUTTAL TIME IF YOU
WOULD LIKE TO SAVE.
>> I WOULD LIKE TO SAVE.
>> MAY IT FLEES COURT MY IS IN
A IS LAURA FISHER ZIBURA I
REPRESENTATIVE -- REPRESENT
THE STATE OF FLORIDA ON THIS
CASE.
>> WE ADVOCATE FOR THE COULD
HAVE BEENING IMPOSED TEST
UNDER 3800A AS A DEFENDANT IS
GIVEN, AMPLE OPPORTUNITY TO
FIX THESE TYPES OF SCORE SHEET
ERRORS FOR DIRECT APPEAL, IS
GIVEN OPPORTUNITY AT THE TRIAL
LEVEL, DURING SENTENCING, TO
REVIEW!!$$!!!!!!!!!!
REVIEW, THE GUIDELINES AND
CORRECT THEM, AND ALSO, 3800B
IS -- AND THEN 3850.
>> JUST AND I BASICALLY AGREE
WITH THAT BUT JUST TAKE, THIS
-- WITH THE SCENARIO WHERE IN
THIS CASE, THE JUDGE SENTENCED
AT THE LOWEST PERMISSIBLE
SENTENCE, 63 MONTHS, FOR FIVE
YEARS, AND RECORD IS CLEAR,
THAT THAT IS WHAT THE JUDGE
WAS DOING, UNDER YOUR -- IN
THE FOURTH DISTRICT COULD HAVE
BEEN IMPOSED THAT WOULD NOT
MATTER I JUST WONDERED IF THE
STATE HAD THOUGHT ABOUT THE
IDEA THAT EVEN IF YOU USE THE
WHOFB IMPOSED, BUT IT WOULD
HAVE TO BE CLEAR FROM THE FACE
OF THE RECORD, THE DEFENDANT
COULD ESTABLISH, THAT THE
ANOTHER SENTENCE WOULD HAVE
BEEN IMPOSED IN THOSE NARROW
CASES, THERE COULD BE
RESENTENCING BUT NO OTHERS.
YOU DO SEE THAT AS BEING A
POSSIBILITY.
>> YES, THAT IS DEFINITELY
SOMETHING THAT SHOULD BE
CONSIDERED, AND THE CONTEXT OF
-- DETERMINING WHAT 3800A
REALLY IS MEANT TO BE, IS IT
MEANT TO BEP SOMETHING THAT IS
OUT THERE IN THE FUTURE FOR
THESE TYPES OF CASES WHERE IT
IS APPARENT ON THE FACE OF THE
RECORD?
THAT THE LOWEST PERMISSIBLE
SENTENCE IS WERE A THE JUDGE
WANTED TO DO?
>> I GUESS THE PROBLEM, IN MY
EXPERIENCE, THAT YOU ARE
ALWAYS PRESENTED WITH, WITH
THAT IS WHAT IS THE LANGUAGE
THAT YOU ARE GOING TO USE TO
JUDGE THOSE WHAT IT IS ON THE
FACE OF THE RECORD.
IS IT SOME MAGIC WORDS THAT
HAVE TO BE ON THE FACE OF THE
RECORD.
>> RIGHT THEY THERE$$!!!!INLIZE THE
DIFFICULTY THAT IS PART OF THE
REASON IT WOULD HAVE IMPOSED
TESTS SORT OF, BUT UNDER THE
COULD HAVE BEEN THE PERSON
THAT GOT LET'S JUST SAY THIS
WAS A HORRIBLE SCORE SHEET
ERROR, HORRIBLE IN THAT IT WAS
THE LOWEST PERMISSIBLE WAS TEN
YEARS, AND IT REALLY SHOULD
HAVE BEEN TWO YEARS.
AND THE JUDGE SAYS IN THE FACE
OF THE RECORD, I'M I WOULD
THIS IS -- A MITIGATED CRIME
BUT I CAN'T GO BELOW THE
LOWEST PERMISSIBLE TEN YEARS
BUT YET AS WE KNOW, THE
MAXIMUM IS THE SKY, YOU KNOW
NOW.
SO THAT IS THE ONE I'M
CONCERNED ABOUT.
THEY MAY NOT AND I HAVE THE
THAT CASE, BUT I THINK IF WE
APPLIED THE COULD HAVE BEEN,
THEN THAT DEFENDANT, AND --
IMPACT -- CLEAR ON JUST IS OUT
OF LUCK NOT LUCK US -- IS OUT
>> SHE HAS THE OPPORTUNITY TO
ADDRESS THIS WITH THAT HIGHER
STANDARD DURING THE DURING
SENTENCING!!$$!!!!!!!!!!!!!!!!!!
SENTENCING, DURING DIRECT
APPEAL DURING 3850.
THAT GIVES SEVERAL YEARS TO
FIND THAT TYPE OF ERROR, AND
--
>> WHAT INTEREST DOES THE
STATE HAVE IF THAT IS THE --
YOU KNOW, THERE WAS THIS
ERROR, AND, AGAIN, IT IS NOT
THE DEFENDANT, THAT CAUSED THE
ERROR, IT IS THE STATE, THAT
CAUSED THE ERROR, AND THEN,
REQUIRING I MEAN WE'VE GOT
MOST OF DEFENDANTS, SERVING IN
A HUGE LONG SENTENCES IN THAT
THOSE CASES, HAVING THAT BE IF
IT IS ON THE FACE OF THE
RECORD, WHICH JUST WELLS MAY
BE CORRECT IF YOU CAN'T
ADEQUATELY DEFINE IT IT WOULD
HAVE TO BE CONCLUSIVELY SHOWN
ON THE FACE OF THE RECORD, AND
THAT MAY NEVER EXIST.!!$$!!!!!!!!!!!!!!!!!!!!!!!!.
>> THE STATE HAS AN INTEREST
IN FINALITY AS AN IN ALL RULES
PROCEDURAL RULES THAT BAR
EVERY CLAIM THERE HAS TO BE A
POINT IN TIME WHERE IT BECOMES
MORE AND MORE DIFFICULT, TO
GIVE THE KIND OF RELIEF THAT
IS NECESSARY, AS TIME PEACE --
PASSES!!$$!!!!!!!!!!
PASSES, AND THIS CASE, BECAUSE
OF THE GUIDELINES, AND BECAUSE
OF THEIR THE SUBJECTIVITY OF
ALL -- DEFENDANT REALLY DOES
GET QUITE A BIT OF OPPORTUNITY
TO FIND THIS TYPE OF ERROR,
AND HAVING A TIME LIMIT ON IT,
PUTS -- THE TIME TO TELL YOU
SENTENCING!!$$!!!!!!!!!!!!!!!!!!
SENTENCING, THIS TYPE OF ERROR
IS FOUND THE MORE SPARE
RESENTENCING HEARING WILL BE,
BECAUSE -- THEIR WITNESSES
WOULD BE AVAILABLE, AND --
EVERYTHING IS FRESH IN $$
EVERYONE'S MIND IF THERE IS
ANY OTHER ISSUES NEED TO BE
ADDRESSED THEY HAVE THE
OPPORTUNITY TO HAVE A FULL
EVIDENTIARY HEARING, AS TIME
PASSES ON THAT EVEN IF YOU
GRANTED THE EVIDENTIARY
HEARING, IF YOU HAVE CASESES
GOING BACK 10, 15 YEARS,$$!!.
>> I'M NOT SUGGESTING
EVIDENTIARY HEARING.
>> OR RESENTENCE$$!!!!ING OR THE
WHOLE THING IS DONE, IT IS
JUST A BURDEN ON THE STATE,
THAT -- IN LIGHT OF THE
OPPORTUNITIES THAT THEY HAVE,
IN THE FIRST FEW YEARS AFTER
THEIR CONVICTION, THERE HAS TO
BE A TIME, WHERE THIS HAS TO
END.
EXCEPT FOR ARE THE EGREGIOUS
CASES WHERE IT GOES OUT TYPE
OF GLOOIPZ OR APPARENT FROM
THE FACE OF THE RECORD, THAT
THE ERROR, AND ALSO, HOW THE
ERROR CAN BE FIXED.
>> AGAIN, ALSO, ARE YOU
AGREEING, HAVE THAT IN THOSE
CASES WHERE IT IS CLEAR ON THE
FACE OF THE RECORD THAT THE
JUDGE WAS INTENDING TO
SENTENCE LOWEST PERMISSIBLE
SENTENCE, THAT THE DEFENDANT
CAN SHOW THAT, THAT YOU RELIEF
SHOULD BE GRANTED IN THOSE.
>> A MATTER OF RESENTENCING
BASED ON WHAT THE LOWEST WOULD
BE --
>> BUT IF WE, PUT A COULD HAVE
BEEN ACROSS THE BOARD, YOU
WOULDN'T HAVE RESENTENCING IN
THOSE CASES?
.
>> RIGHT.
>> YOU AGREE THAT WOULD BE.
>> YES, THAT WOULD BE A GOOD,
COMPROMISE ON THIS?
>> YES.
>> SAY THAT LOUD -- YOU DON'T
WANT TO --
>> [LAUGHTER]
>> -- LET THE RECORD REFLECT
THE WITNESSES IS NODDING HER
HEAD WILL THE CLERK PLEASE
SWEAR THE WITNESS.
>> PLEASE GO HEAD WE DIDN'T
MEAN TO THROW YOU OFF.!!$$!!!!!!RESPOND.
>> AGAIN, REALLY, THE ISSUE
HERE IS THE FACT THAT 3800A
CAN BE RAISED AT ANY TIME
THERE, HAS TO BE A CUTTING OFF
POINT, FOR THE STATE BE ABLE
TO ADMINISTER JUSTICE THE TYPE
OF ERROR WAY SENTENCING
GUIDELINES ARE MISTAKES ARE
GOING TO HAPPEN.
>> LET ME ASK YOU ABOUT THESE
TESTS, AND THIS MAY BE ANOTHER
QUESTION OUT OF LEFT FIELD,
BUT, THESE TESTS THAT WE HAVE,
WOULD HAVE BEEN IMPOSE COD
HAVE BEEN IMPOSED, IT SEEMS
LIKE THEY WERE DESIGNED, FOR
SENTENCING GUIDELINES, WHERE
THERE WAS A RANGE OF POSSIBLE
STENZ!!$$!!!!!!!!
STENZES, COULD UNDERSTAND HAVE
BEEN IMPOSED TEST SAYS WELL
YOU KNOW THE RANGE WAS, 11 TO
22 MONTHS, SO AS LONG AS IT
FALLS WITHIN THAT RANGE, WE
ARE GOING TO SAY, THAT IT WAS
HARMLESS ERROR, STILL WITHIN
THE RANGE, THE PROBLEM WE HAVE
NOW, WITH THE CRIMINAL
PUNISHMENT CODE IS THAT THE
RANGE IS NOT A RANGE, IT IS
YOU KNOW, THREE YEARS, TO
LIFE, SO, IT IS A MUCH BROADER
KIND OF RANGE, IS THE IS THAT
WOULD HAVE BEEN, COULD HAVE
BEEN IMPOSED DISTINCTION
APPROPRIATE FOR CRIMINAL
PUNISHMENT CODE CASE --
>> IT NAY NOT BE APPROPRIATE,
NOW THAT THE SENTENCING
GUIDELINES SO ARE OPEN ENDED,
WHEN THIS WAS ADDED TO 3800A,
I BELIEVE AS YOU WERE SAYING
JUSTICE CANTERO THERE WERE 20
TO 25 POINTS -- THAT THEY
CALLED THEM CELLS, AND IF YOU
WERE WITHIN THAT, IF BUT IT IS
20 IT IS AROUND 20 POINTS, AND
THEN YOU CAN SAY IT IS
HARMLESS BECAUSE YOU KNOW IT
20IS POINTS, HERE IT CAN BE,
ANYTHING, A LOT OF THE CASES I
READ FROM DIFFERENT DISTRICTS
SOMETIMES WERE TALKING ABOUT
1.2 POINTS, 1.9 POINT THEY
USED THE TERM HARMLESS ERROR,
AS IT GETS MORE AND MORE AND
MORE AS IN THIS CASE, YOU
REALLY SAY YOU REALLY USE THAT
TYPE OF TERMINOLOGY?
UNDER THESE SITUATIONS BUT
AGAIN WE DO HAVE TO CONSIDER
THE FACT THAT THIS IS WAY OUT
IN TIME, THIS CAN BE TEN
YEARS, 15 YEARS --
>> WE REALLY NEED TO ME AMEND
THIS PARTICULAR PART OF THE
THE RULE AGAIN -- ERROR, DOES
NOT -- MEANT FOR THE MODERN
SENTENCING!!$$!!!!!!!!!!!!!!!!!!
SENTENCING, I THINK, AND THAT
MAY BE WHY WE ARE STRUGGLE IN
THIS CASE, I HADN'T THOUGHT OF
WHAT JUSTICE CANTERO SAID
ABOUT COULD HAVE BEEN I GUESS
THAT IS WHY I WAS CONCERNED
ABOUT THE LOWEST PERMISSIBLE
BECAUSE IT IS ALWAYS THE
COPING IS GOING TO BE YOU
KNOW, THE STATUTORY MAXIMUM.
AND NOT A SOMETHING LESS THAN
THE STATUTORY MAXIMUM.
>> AND AS FAR AS REMEDY HOW
CAN DROOIM THAT TEN OR 15
YEARS OUT WOULD YOU -- IT IS A
RANGE, YOU COULD HAVE OH, YOU
WOULD HAVE TO FIND ORIGINAL
TRIAL JUDGE.
>> I THOUGHT YOU SAID, AGAIN,
IN THOSE CASES WHERE IT IS
CLAIRE THAT IT IS SENTENCING
AT THE LOWEST END, THAT --
>> BUT IF A MATTER OF THREE
YEAR -- THREE YEARS'
DIFFERENCE I WOULD IMAGINE THE
DEFENDANT WOULD WANT TO GO
BACK AND HAVE THAT REVEALATED,
TO SEE IF THAT WOULD HAVE
CHANGES AND THAT IS ANOTHER
ISSUE, DEPEND ON WHATTING THE
RECORD SAYS WHETHER A
NEGOTIATED PLEA GUIDELINES
REALLY PLAYED THAT MUCH A PART
IN IT THAT IS SOMETHING O NOT
GOING TO BE APPARENT FROM THE
FACE OF THE RECORD PROBABLYING
IN MOST CASES
>> IF YOU AGREE WITH JUSTICE
CANTERO -- SUGGESTION, THAT
THE WOULD HAVE BEEN COULD HAVE
BEEN DICHOTOMY, ISN'T TRULY
APPLICABLE IN THE CRIMINAL
PUNISHMENT CODE ERA, DO YOU
HAVE ANY SUGGESTION AS TO HOW
THESE SHOULD BE LOOKED AT
THEN?
>> #.
>> I THINK THAT IS THAT
GUIDELINES ERRORS, THERE HAS
TO BE A POSSIBILITY A
DIFFERENT RILE APPLIED TO THEM
BUT ALSO, TIME LIMIT HAS TO BE
PLACED ON IT.
>> THAT IS A PROBLEM WE HAVE
HAD SCORE SHEET ERRORS BEING
THE -- BEING A SPECIFIC
CATEGORY, OTHER THAN A LEGAL
SENTENCE!!$$!!!!!!!!!!!!!!
SENTENCES, AND, IF WE IMPOSE,
USE THE COULD HAVE BEEN, WE
ESSENTIAL ARE WRITING OUT, IS
A -- THE BECAUSE, COULD HAVE
BEEN WILL BE, ALMOST 100% OF
THE TIME OR ELSE IT WILL BE AN
ILLEGAL SENTENCE IF IT IS OVER
THE STATUTORY MAXIMUM SO WE
ARE REALLY SIGNIFICANTLY
SAYING WE SHOULD WRITE IT OUT
OF THE RULES SO WE DON'T GIVE
A DEFENDANT, THOUGHT, WHICH IS
MIGHT BE OKAY, I MEAN THAT MAY
BE ASLUGS.
>> ONE MIGHT BE ALONG WITH
3850 THAT HAS TIME LIMIT, THAT
SCORE SHEET CALCULATION ERRORS
HAVE A CERTAIN AMOUNT OF FIVE
YEARS OR SOMETHING.
>> WHATEVER YOU KNOW, DID
DEEMDZ -- DEEMS TO BE
REASONABLE AMOUNT OF TIME THAT
MIGHT BE SOLUTION TO THIS.
>> SO WE WOULD THEN 3.850,
REALLY JUST FO TRULY ILLEGAL
STENZ!!$$!!!!!!!!
STENZES.
>> THAT IS POSSIBLY BE THE
ANSWER --
>> WHAT WOULD HAPPEN IF THE
CASE THE SCORE SHEET WAS BASED
UPON AN OFFENSE THAT BEYOND
THE TWO-YEAR PERIOD, AS -- HAS
SINCE BEEN OVERTURNED, SO THE
SCORE SHEET ERROR IS SOMETHING
THAT IS DOES NOT BECOME YOU
DON'T PUT THEM AWARE OF IT
UNTIL YOU ARE BEYOND THE
TWO-YEAR PERIOD.
>> RATE.
>> WHAT WOULD YOU DO IN THAT.
>> THERE ARE PROVISIONS FOR
THAT IN THE LAWS THAT EXTEND,
TIME LIMITS, BECAUSE,
SOMETHING HAS JUST BECOME
APARENT THAT WASN'T KNOWN
BEFORE THOSE SAME TYPE OF
RULES WOULD APPLY TO SITUATION
LIKE THAT.!!$$!!!!!!!!I JUST WANTED TO MENTION
IN THIS PARTICULAR CASE THAT
THIS WAS A NEGOTIATED PLEA FOR
TEN YEARS AND THAT IS ON THE
TRANSCRIPT.
>> THIS IS TOTALLY --
>> SO IN THIS PARTICULAR CASE
IF YOU WERE GOING TO APPLY THE
WOULD HAVE IMPOSED TEST I
THINK THERE IS AN ARGUMENT TO
BE THAT I HAD MA IS EXACTLY
WHAT THE JUDGE WOULD HAVE DONE
IN THIS.
.
>> THERE ARE ANY OTHER
QUESTIONS?
>> THANK YOU.
>> THANK YOU VERY MUCH THERE
IS NO RULE THAT SAYS YOU HAVE
TO USE UP EVERY MINUTE OF YOUR
TIME EVERY SECOND.
SO REBUTTAL?
>> JUST VERY BRIEFLY, THAT THE
LAST ISSUE ABOUT THAT BEING ON
THE RECORD, NOT PART OF THE
SUMMARY RECORD THAT IS BEFORE
THIS COURT, SO, PROPERLY LIKE
IN WILSON VERSUS STATE THE
BECAUSE IT WASN'T PART OF
THE RECORD THE PROPER RELIEF
WAS STILL REMAND FOR
RESENTENCING.
>> IN THESE PROCEEDINGS, YOU
CAN'T USE, THE PREVIOUS
RECORD AS PART OF THE
RECORD.
I MEAN, YOU HAVE TO SO IT'S
NOT PART OF THE SUMMARY
RECORD UNDER 3.800 BEFORE
THIS COURT.
>> LAWYERS WAS DEFENDANT
THAT FINAL DISCOVERED IT.
>> HE FOUND THIS OUT.
>> LET ASK YOU THE SAME
QUESTION I ASKED THE STATE
ATTORNEY.
>> YOU HAD MORE TIME.
>> I ASSUME THAT, YOUR
ANSWER WOULD BE, THAT, NO,
THE WOULD HAVE BEEN, COULD
HAVE BEEN IMPOSED DICHOTOMY
IS NOT APPROPRIATE FOR
CRIMINAL PUNISHMENT CODE
CASES?
>> I AGREE THAT THE COULD
HAVE BEEN IMPOSED TEST IS
UNTENABLE.
SHOULDN'T BE USED ANYWAY.
I AGREE WITH JUSTICE WELLS
ROWLY DRAFTING THESE RULES
IS EXTREMELY DIFFICULT.
RIGHT NOW YOU COULD HAVE A
DE MINUTE MUST PROVISION,
WHERE THE ERROR IS SO
DEMINIMUS.
ONE MONTH ERROR ON.
30-YEAR SENTENCE.
THAT DOESN'T AFFECT THE
OUTCOME.
WE HAVE NEARLY THREE-YEAR
ERROR ON 10-YEAR SENTENCE,
NEARLY A THIRD.
SO THAT'S QUITE A LARGE
AREA.
THAT WOULD NOT FALL OUT ON D
E-MINI MUST TEST.
IT LEAVES BURDEN ON STATE.
GIVES US.
BENEFIT OF THE DESON THE
DOUBT ON DEFENDANT.
IT WOULD BE THREE YEARS TO
LIFE WE SHOULD GIVE THAT
BENEFIT OF THE DOUBT,
CONTINUE TO GIVE BENEFIT OF
THE DOUBT AS THIS COURT
REWORKS THIS RULE AS IT
CLEARLY WANTS TO DO.
PLEASE --
>> YOUR ARGUMENT WE SHOULD
USE WOULD HAVE BEEN IMPOSED
TEST IN CRIMINAL PUNISHMENT
CODE CASES?
>> I THINK THAT CONTINUES
THAT WOULD STILL COVER THE
CASE THAT JUSTICE PARIENTE
POINTED OUT.
IT WOULD COVER THOSE TYPES
OF ERRORS, THE ERRORS,
JUSTICE BELL POINTED OUT.
>> ASSUMING REGARDLESS WHAT
THE RECORD SHOWS HERE IN A
NEGOTIATED PLEA SITUATION,
THE COURT WOULD HAVE IMPOSED
THE SAME SENTENCE, SO, NO
NEW TRIAL WOULD BE REQUIRED
IN THOSE SITUATIONS.
>> NO RESENTENCING WOULD
BE --
>> NO RESENTENCING.
>> HERE, THE WORST-CASE
SCENARIO IS THAT, THE,
WHATEVER COURT IS SITTING IN
AN APPELLATE CAPACITY JUST
REMANDS FOR A RESENTENCING
AND THE JUDGE IMPOSES THE
SAME SENTENCE.
THERE IS NO NEED TO SPEND
THE MACHINATIONS AND HAVING
ANOTHER EVIDENTIARY HEARING
AND WITNESSES MAY HAVE
FORGOTTEN.
WE HAVE THE DOCUMENTS THAT
IS ALL THIS COURT NEEDS TO
LOOK AT, ANY APPELLATE COURT
NEEDS TO LOOK AT.
>> SINCE THE DEFENDANT WAS
PRO SE ARE YOU APPOINTED AS
PRIVATE COUNSEL OR --
>> I WAS APPOINTED BY THIS
COURT, THIS IS A PRO BONO
CASE.
>> THANK YOU VERY MUCH FOR
YOUR ADVOCACY.
>> THANK YOU VERY MUCH.
WITH THAT WE CONCLUDE OUR
FINAL CASE.
WE'LL TAKE THE CASE UNDER
ADVISEMENT.
THE COURT WILL STAND IN
RECESS UNTIL TOMORROW
MORNING.
PLEASE RISE.
>> COURT IS NOW ADJOURNED.