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