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Thursday, June 09, 2016

SENTENCING - SENDING A MESSAGE TO THE COMMUNITY .....


THE CAPTAIN REPORTS:

UPDATE: Vice President Joe Biden wrote an open letter to the victim in the Stanford rape case that is a must read.  Please check the comments section or you can read the entire letter by going here.

SENTENCING ISSUES PART DEUX ........

QUERY:  How many trial court judges have you encountered that launched your client at sentencing with their intent being  sending a message to the community?

While our humble Blog author is hot on the subject of sentencing, let's examine what a recent 4th DCA decision said about sentencing in criminal cases.

The case is Futo Charles v. State of Florida found at No. 4D11-3314 decided on May 31, 2016. In a 2-1 decision authored by Judge Stevenson, the court affirmed the convictions of the defendant on several gang related crimes. 

"After a two-week trial, the jury found Charles guilty of racketeering, conspiracy to commit racketeering, possession of Ecstacy/MDMA, and possession of marijuana. He was also convicted of twelve predicate offenses, but was found not guilty of all of the predicate offenses that involved gun violence."

Charles' low end of the guidelines scored him at 79.8 months.  At sentencing, the ASA argued to the court that it should impose the maximum sentence based on Charles' long criminal record.  The Assistant State Attorney said to the court that it should "send a clear message to everyone who decides to participate in a violent criminal organization" that "a life in crime does not pay."

Trial Court Judge Karen Miller sentenced Charles to nearly 66 years FSP.

Here's where it gets interesting.  In the Opinion, the court stated that "when a trial court relies on impermissible factors in sentencing a defendant, the court violates the defendant’s due process rights".

What, pray tell, were the impermissible factors that Judge Miller used here?

Well first, the appellate court reminds us of what factors the trial court judge can consider, including: the "defendant’s criminal history, employment status, family obligations, and over-all reputation in the community."

It was at that point that Judge Stevenson wrote that "the CPC does not list sending a message to the community or deterring persons other than the individual defendant being sentenced as sentencing factors properly considered by trial courts."

"Trial judges should not consider general deterrence when imposing individual sentences for several reasons. First, the goal of general deterrence is already addressed by the sentencing scheme put in place by the Legislature. Second, the CPC does not include general deterrence in its "unambiguous" list of factors a trial court may consider in sentencing an individual defendant. § 921.231(1). If the Legislature had intended to include general deterrence as a permissible sentencing factor, "it would have done so." Norvil, 41 Fla. L. Weekly at S191. Third, we find it fundamentally unfair to single out one defendant for especially harsh treatment in order to serve the utilitarian purpose of sending a message to the community. "

The 4th therefore held that "where a trial court imposes a sentence on an individual defendant with the intent to "send a message" to the community, the sentence rests on an impermissible sentencing consideration."  The sentence was reversed and the case sent back for sentencing before a different trial court judge.

CAPTAIN OUT .....
Captain4Justice@gmail.com




16 comments:

No Longer JAFI said...

I seem to recall studying a similar case, the prosecutor told the jury in closing to "send a message to 'those people'" or something like that and the conviction was overturned. Or am I still suffering from 1L PTSD?

Anonymous said...

Somebody has been reading their slip opinions. Thanks Cap for this case. It will actually help me with a client I am currently representing who could get slammed.

Anonymous said...

Our Judge Miller, David Miller, was guilty of this more times than I care to remember.

Anonymous said...

Seems like Judge Persky in the Stanford rape case was sending a message to the community that if you are white, privileged, and a scholar athlete with a promising future that it's ok to stick your penis inside an unconscious female who has no ability to consent.

Anonymous said...

9:48 per your inquiry. see Solivan v. United States, 937 F.2d 1146 (6th Cir. 1991)

CAPTAIN JUSTICE said...


THE CAPTAIN REPORTS:

POWER TO THE PEOPLE .....

Kudos to State Senator Paula Dockery, a Republican, who spoke out strongly today against the practice of judges resigning a few days before the end of their term so as to create an open seat, and thus permit Governor Scott to appoint the replacement instead of the decision being left to the voters.

If you have been following the story, then you know about Palm Beach attorney Gregg Lerman and his victory before the 4th DCA in his quest to run for Judge. The seat was vacated by County Judge Laura Johnson when she decided to run for an open seat in Circuit Court. She sent in her letter of resignation to Scott, but made it effective on the last day of her term. That way, the newly elected Judge would succeed her with no open days in between.

When Lerman attempted to file papers last month during the qualifying period, Scott, and his Secretary of State, told the Elections Supervisor in Palm beach County not to accept his paperwork because Scott was going to name the replacement. Oh, not so fast slick Rick said the 4th DCA in permitting Lerman to run.

While that was happening, three other judges around the state filed their letters of resignation with Scott. They, however, indicated that they all intended to serve through nearly the end of their term, but would leave office a few days before the actual end of the term. Because there would now be an "opening" of the seat, even if only for a few days, Scott pounced on this opportunity to name their replacements rather than leave it to the voters.

Dockery, (full disclosure), whom I have worked with in the past on legislation in Tallahassee, wrote a scathing Op Ed in the Orlando Sentinel that can be read here:

http://www.orlandosentinel.com/opinion/os-ed-scott-appoint-judges-paula-dockery-060916-20160608-story.html

Cap Out .....

CAPTAIN JUSTICE said...


THE CAPTAIN REPORTS:

VP JOE BIDEN SPEAKS .... LOUD AND CLEAR .....

A simply incredible and amazing open letter written by the Vice President to the victim in the Stanford Rape case. Biden, long a very vocal supporter of the issue of protecting women on college campuses, wrote a passionate letter to the victim.

'Biden's "It's On Us" campaign has called specifically for solidarity against sexual assault on college campuses, and asked students to take a pledge to intervene instead of being bystanders, to recognize that it is a crime when consent isn't or can't be given, and to do everything they can to create an environment which stands against sexual assault and for survivors.' (Bustle.com).

Here is part of what Biden wrote:

I do not know your name — but your words are forever seared on my soul. Words that should be required reading for men and women of all ages.

Words that I wish with all of my heart you never had to write.

I am in awe of your courage for speaking out — for so clearly naming the wrongs that were done to you and so passionately asserting your equal claim to human dignity.

And I am filled with furious anger — both that this happened to you and that our culture is still so broken that you were ever put in the position of defending your own worth.

It must have been wrenching — to relive what he did to you all over again. But you did it anyway, in the hope that your strength might prevent this crime from happening to someone else. Your bravery is breathtaking.

You are a warrior — with a solid steel spine.

Read the entire letter here:

http://www.bustle.com/articles/165919-joe-biden-wrote-an-open-letter-to-the-survivor-brock-turner-sexually-assaulted-it-is

Cap Out .....




Real Fake Former Judge said...

Read David Ovalle's twitter. It's all about a significant civil case in Miami about lettuce and parsley. Parsley should not be a topping. It was never meant to be a topping. The US Dept of agriculture estimates over 1.2 billion dollars is sent and wasted annually for purchases of parsley that is never eaten and just used as a garnish. ONE POINT TWO BILLION DOLLARS. Thousands of acres of valuable farmland and hundreds of millions of gallons of water- hundreds of millions of gallons of water is WASTED growing a useless crop. This madness must end. IT MUST END NOW.

Join the fight. Sign the petition. BOYCOTT PARSLEY AND BOYCOTT ALL RESTAURANTS THAT SERVE PARSLEY.

Thank you.

Fake Teddy Mastos said...

Gordie Howe, Mr. Hockey dead at 88. I think under the circumstances that clearly necessitates a state continuance for all matters next week.

Anonymous said...

3:07, Stanford kid was convicted of sticking his fingers in. Both sides agree both parties were drunk and were previously making out.

Seems the jury said she passed out first, which indeed makes sticking your fingers anywhere, drunk or not, a crime.

But the crucifixion of this kid because he's white and likely wealthy is disgusting. I wish more judges had and used discretion, realizing that locking someone who would likely never re-offend in a cage for years is stupid.

And everyone hyperventilating on facebook about this kid, or trying to recall the judge, are stupider. You idiots are the reason politicians gave us Min Mans.

Anonymous said...

I used to think that Judge David Miller really wanted to send messages to the defense Bar, not the community, to not dare waste his time with a trial. He was horrible.

Anonymous said...

4:09
If your facts are correct then I agree with you.

Anonymous said...

If you do the crime, do the time.

Anonymous said...

Brock Turner may be worse off in county jail than in state prison. Think about it:

1) Had he been sent to state prison, CDOC would have likely assigned him to a Level 2 classification, which is minimum security, due to his lack of prior record, age, and background. He would have been housed with non-violent inmates - drug offenders, parole violators, etc. He also could have been placed in protective custody.

2) In the Santa Clara County Jail, Brock will be warehoused with everybody from guys pending trial for murder to gang injunction violators (it's a California thing). Blond-haired, blue-eyed Stanford student Brock Turner from a lily-white Ohio suburb would likely be sharing a dorm with very dangerous people.

3) Given the pittance of a sentence, Turner is now known nationwide. Jail inmates have access to television and will likely know who he is when he comes in. Nobody how badass some career con is, most of them despise rapists and child molesters. Many of them have daughters. Also, you will have inmates of color who are serving greater sentences for lesser offenses - meth possession, car thefts, coke sales - than this rapist (inserting your fingers inside an unconscious woman is still rape). Brock Turner will not be well-received on his looks and privileged upbringing alone. Now factor in his crime and sentence...oh boy.

4) Brock Turner is a skinny, blond-haired, smooth-faced white boy. He will undoubtedly be a target for jailhouse rapists. I hope he learns to sleep on his back.

I just re-watched season 1 of OZ and I think of Tobias Beecher (the white lawyer who went to Oz for DUI manslaughter and got turned out by Aryan leader Vernon Schillinger).

Anonymous said...

Days since an Islamic terrorist kills innocent Americans: 0. The religion of peace.

Anonymous said...

We need to get rid of these crazy guns and these crazy fucking Islamic fanatics. Seriously people.... This shit could get trump elected.
Democrats better escalate their speech on this issue rather then blame gun control as we witnessed Obama did today. Why won't he call out Muslims. Mohammed Ali did before his death. More Muslim need to get vocal before a small number in their religion destroy it.