The Supreme Court issued the opinion in Erlinger v. US this week. It is an opinion we have been waiting for for a long time as Florida courts have consistently refused to apply the decision in Apprendi and its progeny to Florida's oppressive sentencing statutes. Now comes the first crack in the wall.
And who better to explain the implications of the Big E decision than our own appellate superstar Dan Tibbett:
Having spent a little time digesting Erlinger v. US, the US Supreme Court's decision means that Florida's system of sentencing enhancements, definitely including Habitual Violent Offender, Violent Career Criminal, and Prison Release Reoffender, and probably including Habitual Offender, is unconstitutional.
Erlinger says, like Apprendi said 24 years ago, that any fact that increases the range of punishments a defendant faces, meaning either a minimum mandatory that would not otherwise apply or an increase in the maximum sentence, must be found by a jury. Facially, it would sound like this obviously applies to HO, HVO, VCC, and PRR sentencing, but the State's argument, almost universally accepted by Florida judges so far, has always been that it does not because these enhancements depend on prior convictions, and prior convictions are an exception that can be determined by a judge, relying on Almendarez-Torres. The Erlinger majority ( this part of the opinion is agreed on by 6 justices) basically says that Almendarez-Torres is probably wrong but nobody asked them to overrule it and they don't need to overrule it in this case so they won't at this time. This language means it would be wise to preserve argument that it is unconstitutional to consider prior convictions not found by a jury at all, as probably Almendarez-Torres will get explicitly overruled in next few years. However, Erlinger says that even if the prior convictions exception to Apprendi exists it applies ONLY to the judge determining "what crime, with what elements, the defendant was convicted of" in the prior case. EVERYTHING else must be determined by a jury to be considered at sentencing. Documents about the prior convictions can only be consulted for the "limited function of determining the fact of the prior conviction and the then-existing elements of that offense". In other words, the only reason a judge can find the date of a prior conviction is to figure out what the elements of the crime were on that date (this matters more for federal ACCA sentencing, which is what Erlinger was specifically about).
All of the Florida sentencing enhancements depend not just on the fact of the prior conviction but on a date that is used not to determine what the elements were but the actual fact of when the defendant committed the crime, was convicted of the crime, or was released from prison/probation for the crime. You aren't an HO just for having 3 priors, you have to have been convicted of one of them or been released for one of them within 5 years of the current crime. You aren't a HVO/VCC unless you were convicted/released on the enumerated felony within 5 years. PRR obviously depends specifically on the prison release date. None of these dates are the fact that a defendant was convicted of a certain crime, or elements of the prior conviction. And none of them are determined by a jury in Florida. The judge looks at a document and says yes this guy was convicted/released on x date.
The reason I said HO is probably unconstitutional and the others definitely are is that the others all impose a minimum mandatory. HO does not have a min man but does increase the maximum, so it is slightly different, but certainly if the defendant is sentenced above the statutory max for that degree of felony this argument would apply.
In my view anyone with a sentencing for a client where the State is seeking any of these enhancements should become familiar enough with Erlinger to argue and preserve this issue. Florida said that Apprendi was not retroactive and that would certainly be the State's argument with Erlinger also. Also I can see no reason anybody should be stipulating to dates of priors when they were not determined by a jury.
Er Linger by Anonymous PbHV4H on Scribd
12 comments:
Why is the SAO an unpleasant place to work?
Just another example of the the typical 6-3 radical right opinions of this court.
What?
Oh.
Wait.
Jackson dissents. Gorsuch writes for the majority. Barrett AND Kagan/Sotomayor join.
Hmm. Maybe the simplistic narrative about SCOTUS isn't so simple after all?
Lemme guess. Today -- but just today -- Rumpole and the left think the Court is legitimate. Until the next ruling they don't like, when the cry will go up again.
It was issued about a month ago to deafening silence on your part. The majority is written by Justice Gorsuch. Justice Jackson—your beloved Biden nominee—dissented and said Apprendi was wrongly decided. Still silence on your part. “It is an opinion we have been waiting for for a long time”. Right.
So, how about if we try to organize a systematic attack on these enhancements, picking judges who will spend the time to analyze the issues, knowing full well that we will have to be willing to appeal to the Third DCA but then recognizing that we should try to go directly to the Supremes
Issued this week? Try last month on for size instead, I think.
Substitute Rumpy must be on duty for summer vacation. Either that, or we finally have proof that Phil Reisenstein is Rumpole.
just imagine the time and money wasted on making florida and federal sentencing so complicated. I once observed a federal sentencing where the ausa, defense atty, and probation all had the wrong calculation but the judge did, how much of his and his clerk's time wasted. things like these are money that could go to teacher salaries, housing construction. appeals, crowded dockets, but plenty of time and money to deal with the federal sentencing laws which are as complicated as astrogeophysics. pathetic. oh and the former potus was just the viction of the 325th mass shooting this year.
Erlinger doesn’t apply to Florida’s recidivist sentencing scheme. Obviously, a trial court, will decide, and it will go up on appeal.
To the extent Erlinger applies at all an interrogatory solves it.
If you actually read it and think it doesn’t apply to FL enhancements that depend on date of prior offense you shouldn’t have been granted a JD. Yes a jury finding solves it, that’s the point.
The point is Federal ACCA is different from Florida’s scheme and precedents so try not to be rude when discussing a legal issue.
It applies. Saying Florida is not a federal court and Florida enhancements are not the ACCA is just stating the facts. Doing legal analysis requires one to read the majority opinion and apply the law announced therein to different facts than the ones in the opinion. The Supreme Court doesn't accept and reverse on a criminal case to let one guy out. And frankly you are supposed to learn the above in law school, so though it may indeed be rude to point it out, you should not be practicing (or worse, judging) in a criminal courtroom if you think a system that requires a judge to find the date of conviction or release to support the enhancement is still constitutional after Erlinger. It literally says the only thing a judge can consider dates of charge for is what were elements of crime on that date.
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