MR. MINERVA? ARE YOU GOING TO PROCEED?

MAY IT PLEASE THE COURT. I AM MICHAEL MINERVA. PAULA SAUNDERS AND I REPRESENT MR. WOODS IN THIS CASE. WE ARE HERE, CHALLENGING THE CONSTITUTIONALITY OF THE PRISON RELEASE' REOFFENDER ACT. THE ACT WAS ORIGINALLY AN ACT THAT WAS ENACTED IN 1997. IT HAS UNDERGONE ONE AMENDMENT. THE BASIS OF THE CHALLENGE IS THAT THE ACT UNLAWFUL DEL GAYS -- UNLAWFULLY DELEGATES THE SENTENCES DISCRETION TO THE STATE ATTORNEY AND DEPRIVES THE COURT OF ANY SENTENCING DISCRETION. IT IS NOT OUR POSITION THAT THE COURT MUST HAVE SENTENCING DISCRETION IN ALL CASES. IT IS OUR POSITION, HOWEVER, THAT ONCE THE LEGISLATURE AUTHORIZES DISCRETION AS TO PENALTY, THE COURT MUST HAVE SOME OF THAT DISCRETION AND CANNOT BE, AS WAS DONE IN THIS CASE, DEPRIVED OF ANY DISCRETION IN FAVOR OF THE STATE ATTORNEY.

CAN I ASK YOU, SO, IF THE LEGISLATURE HAD NOT INCLUDED THIS D-1, A THROUGH D, WHICH ARE THE EXCEPTIONS, IF THAT WAS OUT OF THE STATUTE, WOULD THIS STATUTE, THEN, UNDER YOUR, IT WOULD BE CONSTITUTIONAL?

YES. IT WOULD, THEN, FALL WITHIN THAT CATEGORY OF A MANDATORY SENTENCING STATUTE.

SO HOW DOES YOUR ARGUMENT, THEN, RELATE TO THE REVISION TO THE STATUTE, WHERE IT SEEMS THAT THESE ENUMERATED THINGS HAVE BEEN TAKEN OUT AND MADE JUST PRETTY MUCH ONE SENTENCE THAT SAYS THE STATE ATTORNEY HAS TO CONSIDER THESE?

WELL, IT IS STILL THE SAME. IN FACT, IT MAY BE WORSE, IN THE SENSE OF BROADENING THE DISCRETION OF THE STATE ATTORNEY, AS TO THE SENTENCING FACTORS, MAKING IT EVEN VAGUER THAN IT WAS BEFORE.

LET ME ASK YOU THIS, BEFORE YOU CONTINUE WITH THAT. UNDER THE ORIGINAL D-1, IS IT YOUR CONTENTION THAT THE SECOND DISTRICT, FIRST DISTRICT, WAS CORRECT, IN SAYING THAT DISCRETION WAS GIVEN TO THE STATE ATTORNEY, OR WAS THE FOURTH AND THE SECOND CORRECT, SAYING THAT THAT DISCRETION WAS WITH THE COURT?

THE SECOND AND THE FOURTH, IN OUR REVIEW, WAS CORRECT, BECAUSE THERE WAS SUFFICIENT AMBIGUITY IN THAT STATUTE. IT JUST SAID, IF IT IS DETERMINED. THE ORIGINAL LANGUAGE WAS THE PERSON SHALL BE PUNISHED ACCORDING TO THIS SUBSECTION, UNLESS ANY OF THE FOLLOWING CIRCUMSTANCES EXIST. SO IT DIDN'T SPECIFICALLY PLACE THAT ON EITHER THE COURT OR THE STATE ATTORNEY. IT COULD BE INTERPRETED AS DISCRETION AS SHARED DISCRETION. THE AMENDMENT, HOWEVER, SAYS, NOW --

JUST UNDER THAT INTERPRETATION, THE STATUTE WOULD HAVE BEEN CONSTITUTIONAL.

WOULD HAVE BEEN CONSTITUTIONAL, BECAUSE THE RATIONALE OF THE SECOND AND THE FOURTH WAS THAT THESE KINDS OF DECISIONS, ESPECIALLY THE WISHES OF THE VICTIM AND THE EX-TEN WAITING CIRCUMSTANCES, REQUIRED THE KIND OF FACT FINDING THAT IS INHERENT IN JUDICIAL SENTENCING, AND THAT YOU COULD NOT, OR THE LEGISLATURE HAD NOT DIVESTED THE COURTS OF THAT AUTHORITY. NOW, HOWEVER, AND DOES THAT ANSWER YOUR QUESTION?

YES.

NOW, HOWEVER, COTTON AND BAIN ARE LESS PERSUASIVE ON THAT POINT, BECAUSE THE STATUTE NOW SAYS, UNLESS THE STATE ATTORNEY DETERMINES, AND THEN IT HAS TAKEN THOSE FOUR SPECIFIC CRITERIA AND MERGED THEM INTO ONE, CALLED EX-TEN WAITING -- EXTENUATING CIRCUMSTANCES, WHICH INCLUDE THE JUST PROSECUTION OF THE OFFENDER, INCLUDING WHETHER THE VICTIM RECOMMENDS.

UNDER THIS NEW STATUTE, DOES THE STATE ATTORNEY MAKE THIS DETERMINATION ABOUT THESE EXTENUATING CIRCUMSTANCES, PRIOR TO EVEN FILING THE CASE OR AT WHAT POINT?

AS THE STATUTE DOESN'T SAY, AND AS, IN PRACTICE, I THINK IT IS DONE DIFFERENTLY. SOME -- SOMETIMES IT COULD BE DONE BEFORE THE TRIAL OR THE GUILT DETERMINATION.

I GUESS WHAT I AM GETTING AT, HERE, IS THAT, NOW, A PART OF THE STATE ATTORNEY'S DISCRETION IN HOW TO FILE CHARGES, OR DOES THIS OCCUR LATER ON IN THE PROCESS?

I DON'T KNOW. I DON'T KNOW WHEN THE STATE HAS TO FILE IT. AND WHICH LEADS TO A -- ANOTHER INFIRMITY IN THE STATUTE, WHICH IS THE BLURRING OF THE LINE BETWEEN THE CHARGING DISCRETION WHICH NO ONE DISPUTES IS IN HEREENT AND VESTS IN THE STATE ATTORNEY, THE POWER TO SELECT CHARGES, AS OPPOSED TO THE POWER TO DETERMINE SENTENCE, AND WHERE THE STATUTE GIVES THE STATE ATTORNEY THE AUTHORITY TO DETERMINE EXTENUATING CIRCUMSTANCES, IT SEEMS TO LIMIT THE OPPORTUNITY FOR INPUT TO THE STATE ATTORNEY TO THE VICTIM. IF THIS WERE UP TO THE COURT, THEN, CERTAINLY, THE DEFENDANT WOULD HAVE AN OPPORTUNITY TO PRESENT EXTENUATING CIRCUMSTANCES, BUT THIS STATUTE SEEMS TO SHUT OUT THE DEFENDANT OR AT LEAST NOT MAKE ANY AVENUE FOR THE DEFENDANT TO MAKE KNOWN TO THE DECISION-MAKER IF IT IS THE STATE ATTORNEY, THERE IS NO AVENUE FOR THE DEFENDANT TO MAKE A CASE FOR EXTENUATING CIRCUMSTANCES.

WHY WOULD THIS BE ANY DIFFERENT THAN THE TRADITIONAL PLEA BARGAINING THAT GOES ON BUT ENDS UP WITH A STATE ATTORNEY HAVING ABSOLUTE DISCRETION? THEY MAY HAVE A POLICY, FOR INSTANCE, THAT, UNLESS THE VICTIM SIGNS OFF, THAT WE ARE NOT GOING TO GO FORWARD WITH A PARTICULAR AGREEMENT, OR UNLESS THE POLICE OFFICER SIGNS OFF OR UNLESS THE HEAD OF THE OFFICE SIGNS OFF OR THE HEAD OF THE DIVISION SIGNS OFF. ALL KINDS OF THINGS LIKE THAT THAT MAY INFORM THE DISCRETION OF A PROSECUTOR TO AGREE TO REDUCE A CHARGE, TO ANOTHER CHARGE, FOR INSTANCE, IF YOU HAVE A CASE THAT IS FILED THAT HAS A MANDATORY SENTENCE ATTACHED TO IT, A DRUG CASE OR A WEAPON CASE OR SOMETHING, IF THE PROSECUTOR MAY, IN A PLEA BARGAIN, REDUCE THAT TO SOMETHING THAT DOESN'T INVOLVE A MANDATORY SENTENCE? AND ACTS WITH DISCRETION IN DOING THAT. HOW IS THIS SCHEME ANY DIFFERENT THAN THAT KIND OF WIDE-RANGING DISCRETION THAT IS EXERCISED BY A PROSECUTOR, TRADITIONALLY?

SEVERAL THINGS, YOUR HONOR. NUMBER ONE, IN A PLEA BARGAIN SITUATION, IT IS STILL UP TO THE TRIAL JUDGE WHETHER TO ACCEPT THE PLEA AGREEMENT OR NOT, SO YOU HAVE NOT REPOSED, IN THE PROSECUTOR, THE FINAL DISCRETION. JUDGES DO NOT HAVE TO, OBVIOUSLY, ACCEPT WHATEVER BARGAIN HAS BEEN REACHED, ESPECIALLY AS TO SENTENCE.

THE PROSECUTOR CAN DROP THE CHARGE, YOU KNOW, TO A LESSER LEVEL, TO A NONMANDATORY, YOU KNOW, PROVISION. THAT CAN BE A PLEA BARGAIN BETWEEN THE PARTIES, WITHOUT THE JUDGE BEING INVOLVED IN IT AT ALL. CAN IT NOT?

THAT IS THE DIFFERENCE, YOUR HONOR, BETWEEN A BARGAIN ON THE CHARGE AND A BARGAIN ON THE SENTENCE. AND THIS IS A SENTENCING STATUTE. AND THE COURT CANNOT BE SHUT OUT OF DISCRETION IN SENTENCING. THE COURT CAN BE SHUT OUT INDISCRETION IN CHARGES. AND THAT IS THE DISTINCTION BETWEEN THE MANDATORY SENTENCES AND THIS STATUTE.

BUT ISN'T THE COURT, IN ESSENCE, BEING SHUT OUT, IF A PROSECUTOR AGREES TO DROP A CHARGE, FROM, AND LET'S SAY IT IS A WEAPONS CASE, AND THEY HAVE SOME EVIDENCE THAT THERE WAS A WEAPON INVOLVED, AND COULD MAKE A CASE OUT THAT THIS IS A WEAPONS CASE AND COULD, THEN, INVOKE A MANDATORY SENTENCE. BUT THEY AGREE, AND AS I SAY WITHOUT THE COURT, TO DROP THE CHARGE DOWN TO A CASE THAT DOESN'T INVOLVE THE POSSESSION OF THE WEAPON, SO THAT IT IS NO LONGER MANDATORY. THEY HAVE ABSOLUTE DISCRETION TO DO THAT. DO THEY NOT?

CERTAINLY.

AND THAT, OBVIOUSLY, AFFECTS SENTENCE.

CERTAINLY.

BUT THEN YOU HAVE THE SENTENCE BEING DETERMINED ON A DIFFERENT CHARGE. HERE THE CHARGE REMAINS THE SAME. THERE IS NOT A REDUCTION OF THE CHARGE. THAT IS ANOTHER DISTINGUISHING FEATURE FROM A MANDATORY SENTENCE. IN A MANDATORY SENTENCE, IF YOU ARE CONVICTED, SAY, OF CAPITAL SEXUAL BATTERY, THE PROSECUTOR DOES NOT REDUCE THE CHARGE. THAT COMES TO THE COURT, AND THE SENTENCE IS AS THE LEGISLATURE ESTABLISHED FOR THAT CHARGE. UNDER THIS STATUTE, IF YOU ARE CHARGED, SAY, WITH AGGRAVATED BATTERY, THE CHARGE DOES NOT CHANGE. YOU, STILL, GO TO THE COURT WITH THE CRIME OF AGGRAVATED BATTERY, BUT THE SENTENCE IS DETERMINED BY WHETHER THE PROSECUTOR HAS FILED A NOTICE. SO THERE IS A BIG DIFFERENCE IN THE CHARGE DISCRETION THAT LIMITS THE COURT AND THE DISCRETION UNDER THIS STATUTE, BY WHICH THE STATE ATTORNEY CAN TAKE TWO IDENTICAL CRIMES AND HAVE ONE COME BEFORE THE COURT, WITH A GUIDELINE SENTENCE, AND DISCRETION AND ANOTHER COME BEFORE THE COURT, WITH NO DISCRETION AND THE ONLY DIFFERENCE IS THAT THE STATE ATTORNEY HAS MADE THE DETERMINATION OF THE PUNISHMENT.

IN EFFECT, ISN'T THAT WHAT HAPPENS? WHEN THE STATE ATTORNEY DECIDES, WELL, IN THIS CASE, THIS PERSON, PERHAPS, MAY HAVE A RECORD OF WEAPONS VIOLATIONS OR WHATEVER. AND EVEN THOUGH NO DAMAGE WAS DONE IN A CASE INVOLVING THE POSSESSION OF A WEAPON, BECAUSE OF THE RECORD OF THE DEFENDANT, I AM GOING TO BRING THE HIGHEST CHARGE THAT I THINK I CAN PROVE, WHICH IS THE ONE THAT INVOLVES A WEAPON, AND THAT IS GOING TO RESULT IN A MANDATORY SENTENCE, IF THERE IS A CONVICTION, BUT IN ANOTHER CASE OVER HERE, IT IS A HOMEOWNER THAT, ALSO, HAD POSSESSION OF A WEAPON, AND THEORETICALLY COULD BE SUBJECT TO THAT MANDATORY SENTENCE, BUT BECAUSE JOHN Q CITIZEN DOESN'T HAVE AN EXTENSIVE RECORD, THE PROSECUTOR DECIDES, NO, I COULD DO IT, AND INVOKE THAT MANDATORY SENTENCE, BUT I AM NOT. I AM GOING TO EXERCISE MY MY DISCRETION AND ONLY BRING THAT CHARGE AS A CHARGE NOT INVOLVING THE POSSESSION AFTER WEAPON. WHAT --

NO. I UNDERSTAND, AND THAT, I THINK, IS WHAT HAS CAUSED THIS STATUTE TO BE SO CONTROVERSIAL, IS THE ANALOGY, JUST EXACTLY AS YOU ARE MAKING. I WOULD GO BACK TO MY ORIGINAL STATEMENT, JUST BRIEFLY, AS TO A CHARGE OF IF YOU TOOK OUT THE ENHANCEMENT OF A POSSESSION OF A FIREARM, YOU WOULD HAVE THE SITUATION WOULD BE THE SAME OFFENSE, AND IN THE CAPITAL SEXUAL BATTERY CONTEXT, IF THE STATE REDUCED THE CHARGE, SAY, TO ATTEMPTED CAPITAL SEXUAL BATTERY, THEN THAT WOULD ALTER THE RANGE OF PUN IRMENT, AND -- OF PUNISHMENTS, AND CERTAINLY THE STATE COULD ELIMINATE THE MANDATORY FEATURE OF THAT STATUTE. IN THE EXAMPLE OF A FIREARM POSSESSION, YOU ARE ABSOLUTELY RIGHT, YOUR HONOR. THAT THIS IS THE CHARGING DISCRETION THAT THE PROSECUTOR HAS. THERE ARE MANY STATUTES OF A MANDATORY NATURE LIKE THAT. BUT THIS IS A DIRECTION FROM THE LEGISLATURE, IN A PUNISH PUNISHMENT STATUTE. THIS IS NOT A CRIME STATUTE. THIS IS A PUNISHMENT STATUTE, AND THE LEGISLATURE HAS SPECIFIED THE CRITERIA THAT THE STATE ATTORNEY MUST USE, IN ORDER TO ALLOW THE ESCAPE FROM THAT MANDATORY STATUTE. THERE IS NO OTHER STATUTE THAT DOES THAT.

BUT LET'S THINK ABOUT THE HABITUAL OFFENDER TYPE OF SITUATION.

YES, YOUR HONOR.

ARE THESE CRITERIA THAT THE STATE ATTORNEY HAS TO CONSIDER, IN DETERMINING WHETHER OR NOT TO HAVE A PERSON UNDER THIS REOFFENDER'S STATUTE, THIS CRITERIA THAT WE ARE TALKING ABOUT, ISN'T IT THE KIND OF THING THAT THE STATE ATTORNEY, OR ISN'T IT THE SAME KINDS OF THINGS THAT A STATE ATTORNEY WOULD CONSIDER, WHEN DETERMINING WHETHER OR NOT TO FILE THE HABITUAL OFFENDER NOTIFICATION?

THEY ARE SIMILAR, AND THERE WOULD BE NO PROBLEM WITH THIS STATUTE, IF, AS ORIGINALLY WRITTEN, AS INTERPRETED BY COTTON, THAT IT WAS SHARED DISCRETION. THIS IS WHAT THIS COURT SAID, HOWEVER, IN SEABROOK, ABOUT THE HABITUAL OFFENDER DISCRETION AND SEPARATION OF POWERS. THIS COURT HAS PREVIOUSLY HELD THAT THE STATUTE DOES NOT VIOLATE DUE PROCESS OR EQUAL PROTECTION. IN ANOTHER CASE, IN McKNIGHT, WE ADOPTED THE RATIONALE OF KING AND HELD THAT A TRIAL JUDGE HAS DISCRETION NOT TO SENTENCE A DEFENDANT AS A HABITUAL OFFENDER. THEREFORE PETITIONERS' CONTENTION THAT THE STATUTE VIOLATED SEPARATION OF POWERS, BECAUSE IT DEPRIVED TRIAL JUDGES OF SUCH DISCRETION NECESSARILY FAILS. FROM THAT, THE CONVERSE MUST BE TRUE THAT HAD THE STATUTE HABITUAL OFFENDER, IN FACT, VESTED ALL SENTENCING DISCRETION IN THE PROSECUTOR, EXCLUDING THE JUDGE FROM ANY DISCRETION IT WOULD HAVE VIOLATED SEPARATION OF POWERS. THAT IS THE PRINCIPLE. THAT IS WHAT CAME FROM THIS COURT.

LET ME ASK YOU, YOU ARE TALKING ABOUT SEPARATION OF POWERS AND, OF COURSE, IT IS A VERY IMPORTANT CONSTITUTIONAL PRINCIPLE. IN SENTENCING, IF WE HAD TO GO AND LOOK AT A CONTINUUM, IT USED TO BE, APPARENTLY, THAT THE LEGISLATURE WOULD SET THE MAXIMUM PENALTY, AND THEN THE JUDGE WOULD HAVE DISCRETION A GREAT DEAL OF DISCRETION UP UNTIL -- UP UNTO THE MAXIMUM SENTENCE. CORRECT?

CORRECT.

THEN WE WENT THROUGH A PERIOD OF TIME, A LONG PERIOD OF TIME, WHERE THAT DISCRETION THE DISCRETION WAS SIGNIFICANTLY LIMITED BY THE LEGISLATURE.

CORRECT.

AND --

I ASSUME YOU --

GUIDELINES AND ALL.

YES.

AND THEN WE HAVE A SERIES OF STATUTES THAT TOTALLY ELIMINATES THE DISCRETION BECAUSE THERE IS MANDATORY SENTENCES. IS THAT CORRECT?

CORRECT.

WHAT WE HAVE, HERE, FOR THE FIRST TIME, AND I AM SEEING THAT THIS IS WHERE YOUR CONCERN IS, IS WE HAVE GOT A SITUATION WHERE THE LEGISLATURE SETS THE PENALTY. THE DISCRETION AS TO THE SENTENCE LIES WITHIN THE EXECUTIVE, AND THE JUDICIARY HAS NO SAY WHATSOEVER.

THAT IS PRECISELY OUR ARGUMENT.

AND THAT IS THE TOTAL SECLUSION FROM SOMETHING THAT WAS, REALLY, TRADITIONALLY A LIRCRETIOE SITUATION FOR THE JUDICIARY, AND THE INCLUSION OF TWO OTHER BRANCHES OF GOVERNMENT THAT HAS YOU CONCERNED TODAY.

THAT IS CORRECT, YOUR HONOR. WE DO NOT QAUR HE WILL WITH THE POWER OF THE LEGISLATURE TO SAY EVERYONE WHO GETS CONVICTED OF A CERTAIN CRIME MUST GET THIS SENTENCE, AND SHUT OUT BOTH THE EXECUTIVE AND THE JUDICIARY. THAT IS FINE. BUT WHERE THE LEGISLATURE PURPORTS TO ENACT WHAT IS A MANDATORY SENTENCE, AND THEN PUTS AN ESCAPE HATCH IN THERE, AND ALLOWS ONLY THE PROSECUTOR TO DETERMINE IN THE SENTENCING WHO WILL GET THE BENEFIT OF THE ESCAPE HATCH, THAT GOES TOO FAR, AND THAT IS WHAT DISTINGUISHS THIS STATUTE FROM EVERY OTHER. THE INHERENT CHARGING FUNCTION OF THE PROSECUTOR IS NOT IMPLICATED, SHOULD NOT BE IMPLICATED IN SENTENCING. IN YOUNG, INHABITULE OFFENDER, THIS COURT SAID THAT JUDGES CANNOT FILE A HABITUAL OFFENDER NOTICE, BECAUSE THERE IS A CLEAR LINE BETWEEN THE CHARGING FUNCTION AND THE SENTENCING FUNCTION, AND JUDGES CANNOT EXERCISE A CHARGING FUNCTION, AND BY LIKE TOKEN, THE PROSECUTOR CANNOT EXERCISE THE SOLE SENTENCING DISCRETION AND THE ANALOGOUS STATUTE IS THE MANDATORY MINIMUM FOR THE DRUG TRAFFICKING, IN WHICH THE PROSECUTOR AND THE COURT SHARE DISCRETION. THE PROSECUTOR HAS THE DISCRETION TO ASK THE COURT FOR LENIENCY, BASED ON COOPERATION. THIS COURT UPHELD IT, ON A SEPARATION OF POWERS CHALLENGE, BECAUSE THE COURT RETAINED THE FINAL SENTENCING AUTHORITY. UNDER THIS STATUTE, NOW BEFORE THE COURT, THE PROSECUTOR RETAINS THE FINAL SENTENCING AUTHORITY, AND THAT VIOLATES WHAT THIS COURT HAS SAID BEFORE ABOUT SEPARATION OF POWERS. WHATEVER TIME I HAVE, I WOULD LIKE TO RESERVE, IF THERE ARE NO OTHER QUESTIONS.

THANK YOU. COUNSEL FOR THE STATE.

MAY IT PLEASE THE COURT. MY NAME IS CHARMAINE MILLSAPS, APPEARING ON BEHALF OF THE STATE. IN WOODS, THE FIRST DCA HELD THAT THE PRISON RELEASE REOFFENDER STATUTE DID NOT VIOLATE SEPARATION OF POWERS BUT CERTIFIED THE QUESTION OF WHETHER IT DID VIOLATE FLORIDA'S CONSTITUTIONAL SEPARATION OF POWERS PROVISION. THE REASON THEY HELD THAT IT DID NOT VIOLATE THE SEPARATION OF POWERS IS MUCH ABOUT THE SAME RATIONALE THAT JUSTICE ANSTEAD USED, BASICALLY THAT THIS IS VERY ANALOGOUS TO THEIR TRADITIONAL CHARGING DISCRETION. THAT IS, ALSO, BASICALLY WHAT McKNIGHT HELD, WHEN THEY SAID THEIR REASON FOR, ALSO, HOLDING THIS DOES NOT VIOLATE THE SEPARATION OF POWERS. THAT IS THE REASONING OF THE THREE FEDERAL CIRCUITS THAT HAVE ADDRESSED THE FEDERAL THREE STRIKES LAW THAT, ALSO, HAVE THE PROSECUTOR HAVING AN ESCAPE VALVE FROM THE RIGORS OF THE THREE STRIKES LAW. THAT IS JUSTICE TRAIN OR OF THE CALIFORNIA -- THAT IS JUSTICE TRAYNOR, OF THE CALIFORNIA SUPREME COURT'S POSITION, THAT THIS IS VERY ANALOGOUS TO THE SUPREME COURT COURT'S DISCRETION. THAT IN CHARGING HERE, WHAT THEY ARE DOING IS WHAT THEY ARE DIRECTLY DOING THROUGH THEIR CHARGING DECISIONS.

COULD THE STATUTE BE ENACTED THAT TOOK AWAY ALL OF THE DISCRETION FROM THE JUDICIARY AND, REALLY, SAID THAT HERE IS -- THEY ARE GOING TO GIVE THE ASSISTANT STATE ATTORNEY THE RANGE OF PENALTIES, AND THEN IT IS UP TO THE ASSISTANT STATE ATTORNEY NOT ONLY TO DECIDE THE CHARGE BUT, THEN, TO TELL THE COURT AND THE DEFENDANT WHAT THE SENTENCE WILL BE?

IN OTHER WORDS THIS IS ONE WHERE IT IS JUST EITHER THEY -- YOU GET THE MANDATORY OR YOU DON'T, BUT WHERE THEY JUST SAID YOU, REALLY, THAT THE EXECUTIVE GETS TO SELECT THE SENTENCE, AS WELL AS THE CHARGE. WOULD THERE, UNDER -- WHERE WOULD THE LINE BE DRAWN, AND IF THIS IS OKAY, WHY ISN'T THAT OKAY? IN OTHER WORDS LET'S LEAVE THE JUDICIARY OUT. MAYBE THERE WOULD BE A LOT OF JUDGES THAT WOULD BE VERY HAPPY WITH THAT DECISION. JUST LEAVE THE JUDICIARY OUT OF SENTENCING. MAYBE WE COULD REDUCE OUR NUMBER OF JUDGES.

FIRST, DISTINGUISHING THIS STATUTE FROM THAT HYPO, IN FACT, WHEN THE PROSECUTOR MOVES, HE IS NOT THE ONE FINALLY FILLING OUT THE JUDGMENT AND SENTENCE. THE PROSECUTOR, WHEN HE MOVES, NOT TO HAVE THE PRISON RELEASE REOFFENDER STATUTE, HE THEN DOES NOT DETERMINE THE SENTENCE. HE JUST DETERMINES THAT IT WILL NOT BE THE PRISON RELEASE REOFFENDER. THE JUDGE IS GOING TO STEP IN AND DETERMINE THE SENTENCE AT THAT POINT. OKAY. SO --

BUT BY NOT EXERCISING THE DISCRETION THE JUDGES, IT IS A MINISTERIAL ACT AT THAT POINT, AS FAR AS WHAT THE SENTENCE IS. IF THE CHARGE IS BROUGHT AND THE SENTENCE IS SOUGHT, PURSUANT TO THE --

IF IT IS SOUGHT, YES, THEN IT DOES BECOME, IN EFFECT, MINISTERIAL, BUT IF IT IS NOT SOUGHT, WHICH IS WHAT THE DISCRETION HERE IS. IT IS THE DISCRETION TO BE LENIENT. WE ARE GIVING THE POWER TO THE PROSECUTOR TO GO BELOW THE MINIMUM MANDATORY.

SO WOULD THERE BE, IN MY HYPOTHETICAL, WHERE THE PROSECUTOR GOT TO CHOOSE, YOU KNOW, BY GUIDELINES, WELL, IF THE VICTIM SAYS THIS, IT IS, YOU KNOW, THAT THEY HAVE THE DISCRETION TO ASK FOR THIS SENTENCE, AND IT COULDN'T BE REVIEWED. WOULD THERE BE ANY PROBLEM WITH GIVING THEM ALL THAT DISCRETION IN SENTENCING?

THE FINAL DISCRETION IN SENTENCING? THAT WOULD PROBABLY BE MORE PROBLEMATIC.

I GUESS WHAT I AM -- WHERE IS THE LINE THEN? I MEAN WHERE -- YOU SAY THIS IS SORT OF LIKE WHAT REALLY HAPPENS IN REAL, THE REAL WORLD, ANYWAY, AND, OF COURSE, THERE IS A LOT OF ARTICLES WRITTEN ABOUT THE WHOLE QUESTION OF PLEA BARGAINING AND WHETHER PEOPLE PHILOSOPHICALLY THINK IT IS A GOOD THING OR NOT, BUT WE ALL KNOW IT IS THERE, BUT WHERE IS -- WHERE DOES THAT -- MAYBE IT IS A GOOD -- MAYBE THE JUDICIARY SHOULDN'T BE INVOLVED IN SENTENCING. MAYBE THAT IS A GOOD IDEA.

HISTORICALLY, FOR INSTANCE, PAR ROLE BOARDS DID VERY MUCH -- PAROLE BOARDS DID VERY MUCH WHAT YOUR HYPOTHETICAL IS LIKE. WE HAD PEOPLE GETTING OUT OF PRISON, YES, THE LEGISLATURE SET A WIDE STATUTORY MAXIMUM, AND THE TRIAL COURT, THE JUDGE, SENTENCED YOU TO A RANGE, BUT WHO ACTUALLY DETERMINED WHEN YOU GOT OUT OF PRISON WAS, IN FACT, AN EXECUTIVE BRANCH OFFICIAL, THE PAROLE BOARD. IN EFFECT, THE SENTENCING GAD LINES WERE CREATED BY COMMISSION. THAT WAS -- GUIDELINES WERE CREATED BY THE COMMISSION. THAT WAS, ALSO, IN MOST OF THE GUIDELINES.

WOULD YOU SEE ANY PROBLEM, THEN, WITH TAKING ALL DISCRETION AWAY FROM JUDGES AND SENTENCING AND GIVING IT TO THE EXECUTIVE BRANCH?

NO, I DO NOT. HERE IS YPT. HISTORICALLY, I WOULD LIKE TO GO A LITTLE FURTHER BACK. YES, IN THIS CENTURY TRIAL COURTS HAVE HAD BROAD DISCRETION BUT HISTORICALLY, TRIAL COURTS HAVE HAD NO DISCRETION. SENTENCING WAS DETERMINED, YOU IN COMMITTED A CRIME X, YOU GOT PENALTY Y. WE, THEN, DECIDED, THIS CENTURY, TO MOVE TO MORE INDIVIDUALIZED.

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

I THINK IT WOULD, BECAUSE IT IS VERY ANALOGOUS TO WHAT THE LEGISLATURE ACTUALLY DID WITH TRIAL COURTS. THEY ACTUALLY GAVE THEM DISCRETION. THEY, HISTORICALLY, THEY HAVE THE FINAL DISCRETION. THIS CENTURY, THEY GAVE THE DISCRETION. WE ARE USED TO BROAD DISCRETION WITH TRIAL COURTS, BUT THAT IS BECAUSE THE LEGISLATURE GAVE IT TO THEM. IF THEY CAN GIVE IT TO ONE BRANCH OF GOVERNMENT, WHY CAN THEY NOT GIVE IT TO THE OTHER?

BUT AREN'T WE, THEN, IN TERMS OF FUNDAMENTALLY DEFINING THE FUNCTIONS OF ONE BRANCH OVER THE OTHER, NOW, CHANGING SOMETHING THAT AT LEAST HAS BECOME PART OF OUR TRADITION AND CULTURE, AND THAT IS THAT THE TRIAL COURT EXERCISES THIS FUNCTION, IF THE LEGISLATURE DOESN'T, YOU KNOW, SPECIFICALLY MANDATE WHAT THE PUNISHMENT IS. THAT IS WE HAVE ACCEPTED THE LEGISLATURE CAN SAY THE PUNISHMENT FOR THIS CRIME, ONCE CONVICTED, IS X NUMBER OF YEARS OR IS DEATH OR WHATEVER. BUT IF THE LEGISLATURE DOESN'T PRESCRIBE THAT, WE HAVE NEVER, I DON'T BELIEVE, SEEN A SCHEME WHERE EXPLICITLY IN SENTENCING, WE HAVE SAID THE PROSECUTOR SHALL DETERMINE, WITHIN THE LIMITS SAID BY THE LEGISLATURE, WHAT THE SENTENCE SHALL BE.

NO. IT IS NO FOR THE PROSECUTOR, BUT IN EFFECT THAT IS WHAT PAROLE BOARDS DID.

PAROLE BOARDS DID IT, YOU SEE, WITHIN THE FRAMEWORK THAT A TRIAL COURT, A TRIAL COURT COULD GIVE A 20-YEAR SENTENCE IN THAT CASE OR THE TRIAL COURT COULD GIVE A TEN-YEAR SENTENCE OR A FIVE-YEAR SENTENCE, AND THE PAROLE BOARD COULDN'T DO ANYTHING ABOUT THAT. THEY COULD RELEASE THE PRISONER SOONER.

YES. BUT THEY COULD RELEASE HIM THE NEXT DAY.

THEY COULDN'T KEEP HIM LONGER.

NO. THAT IS TRUE. THEY COULDN'T KEEP HIM LONGER, BUT YOU COULDN'T KEEP ANYBODY LONGER THAN THE STATUTORY MAX, UNDER THIS.

YOU COULDN'T KEEP THEM ANY LONGER THAN THE JUDGE, YOU KNOW, SET THEM, BUT WOULDN'T WE BE, IN TERMS OF IDENTIFYING SOME OF THE FUNDAMENTAL ELEMENTS OF WHAT THE JUDICIARY DOES AND WHAT THE PROSECUTOR DOES, WOULDN'T WE BE CROSSING A LINE IF WE ALLOWED THAT FULL, OBVIOUSLY, YOU ARE NOT AGREEING THAT IS WHAT THE CASE IS HERE.

NO. I AM NOT. THIS STATUTE DOES NOT DO THAT.

I AM CONCERNED ABOUT YOUR WILLINGNESS TO SAY, YEAH, THE LEGISLATURE COULD DO THAT, TOO. AND PROSECUTORS FROM NOW ON WILL PICK THE PENALTIES.

OKAY. BUT, NOW, THERE WOULD BE SOME LIMITS TO THE PROSECUTOR, EVEN UNDER THAT KIND OF SCENARIO. NUMBER ONE, THE LEGISLATURE WOULD HAVE TO SET THE PENALTY. NUMBER TWO, COURTS WOULD REVIEW, FOR ANY DUE PROCESS, EQUAL FROM TEXAS. YOU WOULD HAVE IT -- -- EQUAL PROTECTION. YOU WOULD STILL HAVE CONSTITUTIONAL REVIEW, TO MAKE SURE THAT PROSECUTORS ARE NOT USING THAT IN A WAY THAT IS RACIALLY DISCRIMINATORY OR ANY OTHER. YOU WOULD STILL HAVE THAT KIND OF JUDICIAL REVIEW, EVEN UNDER THIS MOST EXTREME OF SENTENCINGS THAT IS A HYPO. THE TRIAL COURT, IN FACT, WHEN, UNDER THIS STATUTE, WHEN THE PROSECUTOR MOVES, PLEAS, WHEN HE MOVES FOR LENIENCY, THAT IS WHAT WE HAVE HERE. WE HAVE A MINIMUM MANDATORY, VERY MUCH LIKE THE TRAFFICKING STATUTE. MINIMUM MANDATORY, WHERE THE PROSECUTOR IS MOVING FOR LENIENCY. WE ARE TRYING TO PROVIDE AN ESCAPE VALVE FROM THE RIGORS OF THIS STATUTE. HE HAS -- HE DOESN'T REALLY HAVE DISCRETION. HE HAS POWER OF LENIENCY. HE CAN GO DOWN, AND ONCE HE ASKS THE TRIAL COURT TO GO DOWN, HOW FAR THEY GO DOWN IS, IN FACT, STILL IN THE TRIAL COURT'S DISCRETION.

SO IS IT YOUR ARGUMENT, THEN, THAT THESE EXCEPTIONS THAT WE HAVE BEEN TALKING ABOUT ARE TO BE EXERCISED AT SENTENCING AND IS NOT A PART OF THE DECISION, WHETHER OR NOT TO SEEK REOFFENDER STAT NEWS IS.

AS A PRACTICAL MATTER, YOUR HONOR, THE OVERWHELMING MAJORITY OF THIS IS GOING TO HAPPEN AT THE PLEA BARGAINING STAGET, AND THE PROSECUTOR IS GOING TO -- STAGE, AND THE PROSECUTOR IS GOING TO FILL OUT.

ARE YOU SAYING THAT IT COULD HAPPEN IN SENTENCING?

THAT IS WHEN IT HAPPENS IN FACT, IN THE TRAFFICKING STATUTE. OKAY. IN THE TRAFFICKING STATUTE, THEY GO AHEAD. THE CHARGE REMAINS THE SAME. THEY CHARGE THAT AMOUNT. BUT THEN THEY ASK THE TRIAL COURT TO MAKE A MOTION, TO ASK THE TRIAL COURT TO GO BELOW THE MINIMUM MANDATORY. THE PROSECUTOR ASKS FOR LENIENCY, BASED ON THE SUBSTANTIAL ASSISTANCE OF THE DEFENDANT.

AND THEN THE TRIAL JUDGE HAS THE DISCRETION TO DO IT OR NOT DO IT.

AND MORE IMPORTANTLY, HE HAS THE DISCRETION WITHIN, BY SHOWING LENIENCY, ALSO, THE AMOUNT OF LENIENCY. IN OTHER WORDS HE DETERMINES THE FINAL SENTENCE.

IF --

ONCE YOU MOVE FROM THE MINIMUM MANDATORY, HE DETERMINES THE FINAL SENTENCE, THE TRIAL COURT DOES.

WHAT SHOULD HAPPEN IS THE VICTIM ASKING FOR THE SENTENCE NOT TO BE THE HARSH SENTENCE THAT IS IN THIS STATUTE. NOW, LET'S GET THE SENTENCING STAGE, AND THE VICTIM IS THERE WITH A LETTER, SAYING THAT HE OR SHE DOES NOT WANT THE DEFENDANT TO RECEIVE THE MAXIMUM SENTENCE. THE PROSECUTOR IS THERE. UP TO THAT TIME, AGAIN, THE JUDGE SAYS THERE IS NOTHING I CAN DO ABOUT IT. YOU ARE GOING TO HAVE TO TALK TO THAT MAN OR WOMAN OVER THERE. THE VICTIM GOES OVER. THE LETTER IS THERE. EVEN THOUGH, IN 19 OTHER CIRCUITS, IF THE VICTIM SAYS THEY DON'T WANT THE HARSHES SENTENCE, THE SENTENCE GETS BACK TO THE JUDGE, AND THIS CIRCUIT, HYPOTHETICALLY, THE POLICY OF THE STATE ATTORNEY, NO, NO VICTIMS. IT DOESN'T MATTER. WE ARE NOT GOING TO ALLOW THIS REDUCED SENTENCE. IS THERE -- IS THAT REVIEWABLE?

NO. THAT IS NOT REVIEWABLE. THAT IS THE PROSECUTOR'S DISCRETION. AND THEY HAVE MADE THAT CLEAR, IN THE AMENDMENTS. TO THIS STATUTE. THE CRIME AND PUNISHMENT, THE HOUSE BILL, SAID, AND I WOULD LIKE TO QUOTE WHAT THEY SAID EXACTLY, THEY MEANT TO CLARIFY IN THE WAKE OF COTTON. THOSE ARE THE EXACT -- THOSE ARE THE APPROXIMATE FACTS OF THE COTTON CASE. THIS CHANGES CLARIFIES THE ORIGINAL INTENT THAT THE PRISON RELEASE REOFFENDER MINIMUM MANDATORY CAN ONLY BE WAIVED BY THE PROSECUTOR. OKAY. SO THEY MADE IT CLEAR THAT EXCEPTION DISCRETION IS THE PROSECUTOR'S AND NOT THE TRIAL COURT'S. COTTON HAS BEEN SUPERSEDED PIE STATUTE. THEY HAVE MADE THAT VERY CLEAR, THAT THAT WAS BOTH WHAT THEY WANT THIS STATUTE TO BE INTERPRETED AS AND THEIR ORIGINAL INTENT.

AND THEN THE REVIEW OF THE DISCRETION TAKES PLACE BY THE PROSECUTING ATTORNEYS ASSOCIATION. THAT IS WHAT THIS SCHEME HAS -- WHAT -- DO YOU -- WAS THERE ANY STATEMENT AS TO WHAT THAT PURPOSE WAS, FOR THIS TEN-YEAR FILING INFORMATION, TO WHAT WAS SUPPOSED TO HAPPEN WITH THAT ASPECT OF IT?

WELL, I THINK THAT WAS VERY MUCH, YES, THEY TALKED A LITTLE BIT ABOUT THAT WAS VERY MUCH LIKE THE HO.

ISN'T THE REAL FEAR HERE, AND ANOTHER FEAR THAT WE CAN PREVENT CONSTITUTIONALLY OR NOT, THAT, JUST LIKE BEFORE THE SENTENCING GUIDELINES, YOU HAD CERTAIN PARTS OF THE STATE WHERE THE HARSHEST SENTENCES WERE ALWAYS GIVEN AND OTHER PARTS, BECAUSE OF THE PRESS OF THEIR CASELOADS, THAT THERE WASN'T. THAT HERE YOU COULD HAVE A POLICY IN ONE PART OF THE STATE, WHERE, WHAT THE VICTIM HAD TO SAY WAS NEVER GOING TO BE A REASON TO GIVE LENIENCY, AND IN ANOTHER CIRCUIT, THAT WAS ALWAYS GOING TO BE THE POLICY, AND AS LONG AS IT WAS EXERCISED UNIFORMLY WITHIN THE CIRCUIT, THAT THERE IS REALLY NOT GOING TO AND PROBLEM WITH THAT. DO YOU SEE THAT AS A CONCERN, CONSTITUTIONALLY OR OTHERWISE, IN THE FAIR ADMINISTRATION OF THE LAWS OF THIS STATE?

WELL, OKAY, NOW, THE STATE ATTORNEYS, ONE OF THE REASONS WHY THEY HAVE THAT, IS STATE ATTORNEYS ARE ELECTED OFFICIALS, AND ONE OF THE THINGS THAT FILING THESE SCENTSING MEMORANDUMS, IN THE PROSECUTORS -- SENTENCING MEMORANDUMS, IN THE PROSECUTORS ASSOCIATION, IS GOING TO GIVE EVERYBODY ACCESS TO THEM. WE ARE GOING TO FEIGNED OUT WHETHER THAT IS GOING TO HAPPEN OR NOT, AND WE ARE GOING TO FIND OUT RATHER QUICKLY, FROM THESE SCENTSING MEMORANDUMS, AND IN FACT, WE ARE -- FROM THESE SCENTSING MEMORANDUMS, AND IN FACT WE ARE GOING TO FIND A WAY FOR THE JUDICIARY TO REVIEW. YOU WILL, IN FACT, HAVE A DATA BASE TO DETERMINE WHAT IS HAPPENING, IN TERMS OF ANY DISCRETION GOING ON OR ANY SORT OF IMPROPER USE OF THIS EXCEPTION DISCRETION. ALSO THE PEOPLE OF THIS STATE WILL KNOW THAT, AND IF THE LOCAL PROSECUTOR, THE LOCAL STATE ATTORNEY IS NOT DOING THAT IN A WAY IN WHICH THE PEOPLE OF HIS JURISDICTION WANT HIM TO HANDLE IT, THEY WILL VOTE HIM OUT OF OFFICE. WE HAVE -- THERE WILL BE SIGNIFICANT POLITICAL REVIEW, BOTH BY THE SHE GOT LEGISLATURE AND BY THE DEM -- BOTH BY THE LEGISLATURE AND BY THE DEMOCRATIC PROCESS, OF THE STATE ATTORNEYS EXERCISING THIS EXCEPTION.

DETERMINE FOR ME, WITH THE AMENDMENTS IN PLACE, WHAT ROLE THE VICTIM PLAYS AND HOW MUCH AUTHORITY, I USE THAT WORD LOOSELY, A VICTIM OF A CRIME MAY HAVE IN THE SENTENCING DECISIONS.

IT IS THE PROSECUTOR'S. IT IS NOT THE VICTIM'S. THE VICTIM --

THE VICTIM HAS NO --

NO. WHAT THE LEGISLATURE WANTED FROM THIS WAS THAT WAS ONE OF THE REASONS THAT WOULD GO INTO A SENTENCING MEMORANDUM, THAT THEY WOULD ACCEPT AS PERFECTLY VALID. THAT IS HOW I READ THIS, THAT ONE OF THE REASONS THAT WAS AN EXAMPLE OF ONE OF THE THINGS THAT THE LEGISLATURE THOUGHT WAS A REASONABLE EXERCISE OF THEIR DISCRETION. OKAY. THAT THE VICTIM DIDN'T WANT IT. BUT IT IS THE PROSECUTOR'S FINAL DECISION. AND, IN FACT, A LOT OF PROSECUTORS DO, INDEED, HAVE A POLICY THAT, BECAUSE THE VICTIMS THAT USUALLY DO NOT WANT HARSH SENTENCING TEND TO HAVE A RELATIONSHIP WITH THE PERPETRATOR THAT THEY WILL, IN FACT, NOT. THEY WILL PROSECUTE THE CASE, AND THEY WILL NOT GO BELOW THE MINIMUM MANDATORY OR SEEK ANY UNIQUE SENTENCING, BASED ON THE VICTIM'S WISHES.

IF, TALKING ABOUT HYPOTHETICALS, IF THE STATUTE GAVE A VETO TO A VICTIM ABOUT THE SENTENCING, WOULD YOU AGREE THAT WOULD CROSS A CONSTITUTIONAL LINE, AS FAR AS NOW WE WOULD SEEM TO BE EXERCISING OR DELEGATING THE EXECUTIVE AUTHORITY OR JUDICIAL AUTHORITY INTO ANOTHER PERSON? I MEAN OUTSIDE THOSE BRANCHES?

WELL, THAT IS HOW ONE COURT, THE FIRST DCA, THEY SAID THEY DIDN'T HAVE THE VETO POWER, AND THAT WAS ONE OF THE REASONS WHY, THAT, YOU KNOW, THAT IS NOT A BRANCH OF GOVERNMENT.

DO YOU AGREE THAT WOULD BE A PROBLEM?

I -- FROM -- I WOULD THINK THAT A VICTIM, BEING ABLE TO HAVE FINAL SENTENCING, WOULD BE MORE OF A PROBLEM. IT IS A PRACTICAL MATTER. THAT, MAY, IN FACT, HAPPEN A LOT, BUT IF IT WERE ACTUALLY PART OF THE STATUTE, WHERE THEY HAD ABSOLUTE VETO POWER? ONE OF THE COURTS SAID THAT IT CREATE ADD SUBSTANTIVE DUE PROCESS PROBLEM, IN ONE OF THE FOOTNOTES. THEY THOUGHT THAT WHAT THAT WOULD, ALSO, ENCOURAGE IS HARASSMENT OF THE VICTIM TO GET THE LETTER.

BUT YOU ARE, IN ESSENCE, DELEGATE AGO GOVERNMENTAL FUNCTION, ARE YOU NOT, OR -- DELEGATING A GOVERNMENTAL FUNCTION, ARE YOU NOT, WHERE YOU SEE THAT FUNCTION PROPERLY AS WITHIN THE JUDICIARY OR IN THE LEGISLATURE OR IN THE EXECUTIVE, IF YOU PLACE IT IN THE HANDS OF A PERSON LIKE THE VICTIM TO THE CRIME.

THAT -- I DON'T THINK THAT IS A PROPER -- I THINK IT NEEDS TO SAY WITHIN ONE OF THE THREE BRANCHES OF GOVERNMENT. YES. WE SHOULD NOT HAVE INDIVIDUAL PEOPLE --

THERE IS -- THAT NOT IN THIS SCHEME HERE.

THAT IS NOT IN THIS SCHEME. NO.

THE PROSECUTOR IS THE ONE.

THE PROSECUTOR IS THE ONE.

WHO EXERCISES THE DISCRETION.

WHO EXERCISES DISCRETION. YES. AND OKAY. THIS DISCRETION THOUGH, IS A LOT LIKE IT IS NOT JUST LIKE THEIR CHARGING DECISIONS, BUT WE, ALREADY, HAVE TWO SENTENCESING STATUTES, BOTH THE H. O. AND THE SENTENCING STATUTE, THAT THE PROSECUTOR HAS DISCRETION SPECIFICALLY AS TO SENTENCING NOT JUST AS TO CHARGING.

YOU DO AGREE, AND WHETHER IT IS AN IMPORTANT DISTINCTION, IS, I GUESS, THE DISTINCTION THAT, I GUESS, THIS COURT HAS MADE WITH A HABITUAL OFF ENDER THAT THE COURT HAS SHARED DISCRETION. ISN'T THAT --

YES. IN HOOP. YOU HAVE HELD THAT. YES.

AND SOMEHOW WE HAVE GOT TO SEE IF THIS IS THE AREA THAT MR. MINERVA SAYS MAKES IT CROSS THE LINE INTO AN UNCONSTITUTIONAL DELEGATION, BECAUSE THERE IS NO SHARED DISCRETION NOR IS THERE SOLELY MANDATORY SENTENCING. AND THAT THERE IS NOT BEEN -- WHEN WE -- IF WE WERE TO APPROVE THIS STATUTE, THIS WOULD BE THE FIRST TIME THAT A STATUTE OF THIS NATURE, AGAIN, WHICH GIVES NO DISCRETION TO THE JUDICIARY BUT GIVES THE SOLE DISCRETION TO THE PROSECUTION AND SENTENCING WOULD BE UPHELD.

WELL, I DON'T SEE THIS AS AN UNIQUE STATUTE, AND ONCE THE PROSECUTOR DOES MAKE THAT MOTION, THE TRIAL COURT DOES HAVE DISCRETION TO SENTENCE. ONCE HE SAYS, ONCE THE PROSECUTOR SAYS PLEASE DO NOT -- WELL, NOT PLEASE. DO NOT PRISON RELEASE REOFFENDER HIM, THEN THE TRIAL COURT GOES BACK TO HIS NORMAL DISCRETION AS TO SENTENCING. OKAY. SO I DO THINK IT IS NOT REALLY AN EVEN ACCURATE DESCRIPTION OF HOW THIS STATUTE OPERATES, THAT IT AUTOMATICALLY JUST DIVESTS THEM OF ALL DISCRETION. IT IS CONDITIONAL. THE TRIAL COURT'S DISCRETION EXISTENCE IS, ITS EXISTENCE IS CONDITIONAL ON THE PROSECUTOR MAKING A MOTION.

SO YOU SAY THE DEFENDANT IS ACTUALLY BETTER OFF IN THIS STATUTE, IF THEY SAID IT WAS A MANDATORY ONE, THEN THERE WOULD BE NO EXCEPTIONS. THIS WAY AT LEAST SOME PEOPLE GET TO GET A MORE LENIENT SENTENCE.

THAT IS THE BASIC POSITION. THEY ARE BETTER OFF. THE -- WHAT THIS ESCAPE VALVE IS DESIGNED TO DO IS TO PREVENT THE CASE OF THE VITAMINS. YOU STEAL VITAMINS AND YOU GET A LIFE SENTENCE. OKAY. THIS IS THE POWER OF LENIENCY. OKAY. IT IS MUCH BETTER FOR A DEFENDANT TO HAVE ONE ACT, MUCH LESS REQUIRING THE TRIAL COURT TO GO ALONG WITH HIM. YOU ONLY HAVE TO GET ONE ACTOR TO SAY, YES, LET'S BE LENIENT HERE, FOR THE LEN YANCY TO KICK IN, SO HE IS -- FOR THE LIEN YANCY TO KICK IN, SO HE IS BETTER OFF HAVING SOME LENIENCY, NO MATTER WHERE THE SOURCE ORIGINATES, THAN BEING IN THE CHARGE OF ONE ACTOR, WHETHER IT IS A MINIMUM MANDATORY.

THANK YOU.

MR. MIGHT NOT EFERB A HOW MANY MINUTES DOES HE HAVE? HALF A MINUTE. USE IT WISELY.

THANK YOU, YOUR HONORS. THE QUESTION IS WHETHER THERE IS GOING TO BE A LINE, AND IF THIS STATUTE STANDS, THEN THERE IS NO -- IT WILL -- IT WIPES OUT ANY LINE, BECAUSE THIS DOES GIVE THE PROSECUTOR THE DISCRETION TO ELIMINATE THE JUDGE'S DISCRETION. THE LEGISLATURE CAN ELIMINATE THE JUDGE'S DISCRETION. THE PROSECUTOR CANNOT. WHAT THIS COURT SAID, AS TO IN YOUNG, IS THAT, UNDER OUR ADVERSARY SYSTEM, VERY CLEAR AND DISTINCT LINES HAVE BEAN DRAWN BETWEEN THE COURT AND THE PARTIES, TO PROMOTE A COURT TO INITIATE PROCEEDINGS FOR ENHANCED PUNISHMENT, WOULD BLUR THE LINES. IF THIS STATUTE IS UPHELD, THERE WOULD BE NO LINE. THANK YOU.

THANK YOU, MR. MINERVA. WE WILL BE IN RECESS OF 15 MINUTES. BAILIFF: PLEAS RISE.