Sentencing guidelines and statutory maximums in Florida: how best to respond to Apprendi.

• Jurisdiction: United States
• Date: 01 November 2000
• Author: Batey, Robert

The United States Supreme Court's "largely over looked" decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), announced on June 26, 2000, "could," according to one commentator, "jeopardize federal sentencing guidelines and similar state systems,"(1) including Florida's. While there is considerable dispute over how much of sentencing guidelines law Apprendi has rendered unconstitutional,(2) it is clear that the federal Supreme Court has effectively overruled the Florida Supreme Court's July 1998 decision in Mays v. State, 717 So. 2d 515 (Fla. 1998), holding that sentencing maximums contained in F.S. [sections] 775.082(3) do not limit the sentences under the guidelines. Further, Apprendi has drastically limited the impact of the statutory language construed in Mays,(3) as well as the similar provision in the now-applicable Criminal Punishment Code, providing "If the lowest permissible sentence under the code exceeds the statutory maximum sentence as provided in s. 775.082, the sentence required by the code must be imposed.(4) This column discusses these implications of Apprendi for sentencing law in Florida(5) and suggests the best way to respond to them: to repeal the quoted language.

Guideline Sentences and Statutory Maximums

Florida first implemented sentencing guidelines for noncapital felonies in 1983, through the rulemaking power of the state Supreme Court.(6) Following the model in every other jurisdiction that had adopted guidelines, the Florida Supreme Court ruled that no guideline sentence for a noncapital felony could exceed the maximum sentence authorized by statute for that crime.(7) In other words, the statutory maximums found in F.S. [sections] 775.082(3) were just that: maximums that a guidelines sentence could not lawfully exceed.

A decade later the Florida Legislature substituted its version of guidelines for those the judiciary had evolved.(8) Among the many changes wrought by the legislature in drafting what eventually became the Criminal Punishment Code was to allow guideline sentences to exceed the statutory maximum. Such a provision first became effective in 1994; the language quoted above, which carries forward the same policy, was adopted in 1998.

The Florida Supreme Court construed the predecessor provision in Mays v. State. Convicted of aggravated assault for pulling a knife on another while threatening to kill him, Albert Mays' guideline sentence was 67.8 months, while the statutory maximum for his crime was only 60 months. At trial and on appeal Mays objected to any sentence over 60 months, but the Florida Supreme Court unanimously rejected his argument, relying explicitly on the statutory language allowing a guideline sentence to exceed the statutory maximum.(9) Thus the primacy of the guideline sentence over the statutory maximum seemed firmly established in Florida--until the U. S. Supreme Court had its say.

Apprendi v. New Jersey

For his armed harassment of an African-American family, New Jersey prosecuted Charles Apprendi for possession of a firearm for an unlawful purpose, a crime punishable by a maximum of 10 years' imprisonment; however, under New Jersey's hate crime statute, the sentence was eligible for enhancement to 20 years, if the sentencing judge found by a preponderance of the evidence that Apprendi's purpose was to intimidate another because of his race. The judge made the necessary finding and sentenced Apprendi to 12 years.

In every court in which he appeared, Apprendi argued that this sentence violated his constitutional right to due process. He finally found a sympathetic ear in the U. S. Supreme Court, which held five-to-four that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."(10)

The Apprendi majority justified its constitutional rule with an extensive discussion of a number of previous decisions, highlighting United States v. Gaudin, 515 U.S. 506 (1995) (materiality element in federal crime is an issue for the jury, not the judge); Mullaney v. Wilbur, 421 U.S. 684 (1975) (shifting burden of persuasion to defendant on heat-of-passion mitigation of murder to manslaughter violates due process); and Jones v. United States, 526 U.S. 227 (1999) (any fact, other than a prior conviction, that increases a maximum sentence under federal law must be charged in an indictment) (5-4 decision); while distinguishing Patterson v. New York, 432 U.S. 197 (1977) (shifting burden of persuasion to defendant on extreme-emotional-disturbance mitigation of murder to manslaughter does not violate due process); McMillan v. Pennsylvania, 477 U.S. 79 (1986) (fact triggering a mandatory minimum sentence need not be found by a jury beyond a reasonable doubt); and Almendarez-Torres v. United States, 523 U.S. 224 (1998) (prior record need not be charged in an indictment for a federal crime, even when it...