MILLER v. FLORIDA

Transcript: 

Argument of Anthony Calvello

Chief Justice Rehnquist: We will hear arguments next in James Miller against Florida, No. 86-5344.

Mr. Calvello, you may proceed whenever you're ready.

Mr. Calvello: Mr. Chief Justice, and may it please the Court:

Mr. Miller is before you today because he received a longer sentence than was authorized by the law effect at the time of his offense.

The reason for the longer sentence was that Florida changes its sentencing guidelines law to boost the sentences, and applied that change retrospectively to Mr. Miller.

The state says that increasing his sentence retroactively does not matter, because the guidelines are discretionary, or proecedural.

The serious flaw in that argument, as demonstrated in the briefs, is that departure from the guidelines is not discretionary and is not treated as such under Florida law.

This retroactive increase in the punishment imposed upon Mr. Miller is invalid under the ex post facto clause.

Unknown Speaker: Mr. Calvello, as a preliminary matter, would you explain something to me about the effect of the concurrent sentences we see by Mr. Miller?

He received a sentence on the burglary and theft counts as well?

Mr. Calvello: Yes, Your Honor.

Unknown Speaker: And did he receive a concurrent sentence of seven years on the burglary county?

Mr. Calvello: Yes, Your Honor.

Unknown Speaker: And the guidelines were not changed as to the burglary?

Mr. Calvello: Well, Your Honor, as far as the amended guidelines are concerned.

Unknown Speaker: So what effect would a decision in your favor on the sex offense have?

Presumably the seven years would still stand on the burglary count?

Mr. Calvello: Oh, no, no.

Let me explain that point.

Under Florida law, the way the guidelines work is that there is a primary offense, which is the most serious offense at the time of the offense... at the time, under the amended guidelines which we say shouldn't apply, but anyway, under the amended guidelines the sexual offense would be the primary offense.

The burglary would be an additional offense, and it's scored and calculated as part of the total picture.

Unknown Speaker: Well, but if the amendment did not affect the burglary offense, and the guideline was not changed for that, then even if you are correct, would you not look back to the law at the time he was sentenced for burglary, and would that become the primary offense?

Mr. Calvello: Under the original guidelines?

Unknown Speaker: Yes.

Mr. Calvello: That's a possibility, Your Honor.

Unknown Speaker: And if that were the case, then the sentence wouldn't change?

Mr. Calvello: Oh, yes, the sentence would be changed dramatically, because, see, the primary offense would be the most serious offense at the time.

And therefore the burglary would become--

Unknown Speaker: So even if you're right, the burglary would then be the most important offense?

Mr. Calvello: --But the sentence would go down to 3-1/2 to 4-1/2 years; the 7 years would be gone.

Unknown Speaker: So it's your position that it will have an effect on the burglary sentence as well?

Mr. Calvello: An enormous effect.

An enormous effect, Your Honor.

Unknown Speaker: So the guideline was changed for burglary as well?

Mr. Calvello: No, Your Honor the only--

Unknown Speaker: Burglary was 4-1/2 before and is 4-1/2 now?

Mr. Calvello: --No, the... we're talking about under the guidelines in effect at the time of the offense, at the time of the sexual offense, if you would score the sexual offense, and the burglary as an additional offense, it would be 3-1/2 to 4-1/2 years.

If you score the burglary as the most serious offense, it's still 3-1/2 to 4-1/2 years.

But what happens here is that they changed the guidelines, and then sexual offense became the primary offense, and they changed the points for sexual offenders, they added 26 points for that.

There's where the 7 years came in.

So it wouldn't matter whether it was sex or burglary under the old laws, he'd still get 3-1/2 to 4-1/2.

But under the new guidelines, he had... the sex became the primary offense, and he got the increased sentence of 7 years.

Basically, under the guidelines, the Florida sentencing guidelines which came in effect in 1983 abolished parole.

And the Florida criminal code was divided into nine categories, one of which was sexual offenses.

Now, people are given points, as I pointed out, based on the severity of the offense.

They're added together and totalled, and you get a range.

And your sentence would fit into that range, as I mentioned earlier.

And the judge's only discretion would be within that range, that 3-1/2 to 4-1/2, 5-1/2 to 7.

And this sentence is presumptive under Florida law.

And it is assumed to be correct for the offender.

The operation of the Florida guideline system demonstrates that there are meant to be precise and narrow punishments.

The guidelines do not guide discretion; rather, they operate like a computer.

You put in the offender characteristics, you put in the offense, et cetera, and you add it up and you come out with a narrow, mechanically determined, presumptive guideline range.

And the sentence must fall within that range, this presumptive range.

Moreover, th law adopted in conjunction with the guidelines, and the practice of the courts, the Florida Supreme Court and the lower court, as detailed in the brief, make clear that a trial judge's authority to go outside these... this presumptive guideline sentence is meant to be, and is, extremely limited.

Now, there is a departure.

But a departure up or down, even to go below that, is not discretionary.

And that is one of the main points I want to make today.

It is not discretionary.

Unknown Speaker: Well, Mr. Calvello, what if under the law a judge could go outside the guidelines, for good cause, for example.

Some looser standard.

Would that then become a procedural sort of a change?

Mr. Calvello: Your Honor, I would have to say no.

Because once you implement these guidelines, and if you make like Florida, if you make it presumptive, an enforceable right, like here, because you can appeal if there's a departure.

There'd have to be clear and convincing reasons--

Unknown Speaker: Even if the standard for departure is something different that Florida would have?

Mr. Calvello: --I would have--

Unknown Speaker: Than Florida has now?

Just a good cause, say.

Mr. Calvello: --If it's very, very low, then there's a possibility that might be something that might not implicate the ex post facto law.

Whether procedural or not, I'm not certain, because I'd hate to get into that label when we're dealing with people's sentences.

Because you get into what I would consider to be the most substantive matter there could be.

Unknown Speaker: What about the Federal guidelines?

Mr. Calvello: The Federal parole... the Federal sentencing?

Unknown Speaker: Or parole.

Mr. Calvello: The Federal parole guidelines.

That is an example where you have total discretion--

Unknown Speaker: It's not total discretion.

There's some guidelines, but they can change it for good cause.

Mr. Calvello: --They can change the guidelines--

Unknown Speaker: The sentence, the parole guide.

Mr. Calvello: --The parole commissioners can.

Unknown Speaker: Right.

Mr. Calvello: But here the judge right.

Unknown Speaker: Well, is that procedural under the Federal?

Mr. Calvello: The parole guidelines?

Unknown Speaker: Yes.

Mr. Calvello: The courts have held that there is no... Ninth Circuit and Justice Rehnquist has held that there's no ex post facto implication with the parole guidelines.

Unknown Speaker: Right.

And for the most part because they treat it as a procedural matter.

Mr. Calvello: Well, what they say is, they're discretionary.

They're not laws.

There's no right to an appeal.

It doesn't have any of those--

Unknown Speaker: Do you agree with that?

Mr. Calvello: --I don't disagree with that, with the... and I don't think that--

Unknown Speaker: Well, you agree with it, then?

Mr. Calvello: --I can understand the rationale of the circuit courts.

But again, that only points out how different we are in Florida.

We have something that, to depart, you have to have a written reason that's clear and convincing, based on facts that are proven beyond a reasonable doubt, and that... and these factors can't... are not inherent or otherwise scored under the guidelines.

There's an extremely heavy burden under Florida law for departure from a persuasive and an evidentiary point of view.

And even if there is a departure--

Unknown Speaker: So does our decision turn on just how strict the standard is?

Is that what's going to determine whether it's ex post facto or not?

Mr. Calvello: --It's--

Unknown Speaker: Just the degree, the difference in degree, as to how strict the standard is?

Mr. Calvello: --I don't think so, Your Honor.

Unknown Speaker: Well, it sounds like that's what we're getting to.

Mr. Calvello: No, because what we have here with these guidelines is what would be an affirmative, enforceable right to receive these guidelines.

And it is the punishment, it is the quantum of punishment for this crime.

And once there's a change in this quantum of punishment, then you have an ex post facto violation.

It's retroactive.

The state doesn't dispute that.

And it's disadvantageous.

The sentence went up 2-1/2 years, and there was no departure in this particular case, that he was disadvantaged.

So applying the two prong Weaver test, we have an ex post facto violation in this case.

Not only is it difficult to depart, but very important, under Florida law, there is a right to an appeal, an appellate review of this departure, for the validity and proprietary of the stated grounds.

And if one of the judge's reasons... say he gives two good ones, and a number of incorrect or invalid reasons... the court would still reverse, applying a harmless error test.

These guidelines and departures have been reversed under numerous grounds, as I indicated in my brief.

Over 60 grounds have been found to be invalid, just to point out to this Court that they are not discretionary, that a judge could deviate from them at will.

Now under the guidelines in effect in April of '84, Mr. Miller's presumptive sentence would have been the 3-1/2 to 4-1/2 years, but he received a 7 year sentence.

And the reason for that, which I wanted to get to, was that the Florida legislature wanted to increase the punishment for sex offenders by increasing the point total for the sexual offense category.

The more points scored, the higher the presumptive sentence, or the quantum of punishment for this crime.

The quantum of punishment was increased.

And in approving this amendment, the Florida Supreme Court explained that this amendment to the sexual offense categories will, quote, increase the primary offense points by 20 percent, resulting in both increased rates and length of incarceration for sexual offenders.

Thus, not only the effect but the intent was substantive; to increase punishment, to increase the quantum of punishment.

Simply put, more people will go to jail under the amended guidelines than under the original guidelines which were in effect; ex post facto violation.

And this switch was substantial for Mr. Miller.

Because since these guidelines points correspond to a predetermined sentencing range, the base sentence for sexual offenses was effectively increased.

The effect, as predicted, was to boost the point score.

And he received a sentence of 7 years.

There was absolutely no departure.

This was disadvantageous.

It materially altered the situation.

And it meets every test of this Court as articulated since 1798 in Calder v. Bull.

It was additional punishment for the offense.

And it was precisely what the ex post facto clause was intended to prevent.

The claim has been made by the state that these guidelines are procedural, but they are not under Florida law.

Because the legislature, in creating the guidelines, recognized that developing sentencing criteria was primarily a matter of substantive law.

In Section 921.001 the court... the Florida legislature declared, criminal penalties and limitations on the applications of such penalties is a matter of predominantly substantive law, and as such, is a matter properly addressed by the legislature.

In this context, under the Florida constitution, the legislature has the sole responsibility for substantive law, and the court for procedures.

So here the legislature has declared that these guidelines, the whole guidelines law, is a matter of substantive law.

Unknown Speaker: Before the guidelines were amended, and before your client committed this crime, could he have been sure that he would get no more than 4-1/2 years?

Mr. Calvello: Yes, Your Honor, because the only way--

Unknown Speaker: It depends on whether there were any aggravating circumstances which a trial judge would say justifies kicking it over to the maximum, 7, wouldn't it?

Mr. Calvello: --Well, not really.

Because if there were these factors, then he would have a right to an appeal.

That's lost by this retroactive increase.

Unknown Speaker: Well, that's--

Mr. Calvello: That's what... see, that's the disadvantage to him, that if... say he would have got 4-1/2 under the original guidelines.

And the judge says, well, maybe... again, this is speculation, because there wasn't any in this particular case... but if there were grounds to depart, that he would have a right to appeal.

He'd have the right to get written reasons from the trial judge that are clear and convincing, that are based on facts that are beyond a reasonable doubt.

Unknown Speaker: --Well, that may well be.

But the fact is, he knew, in committing this crime, that he was exposed to seven years' worth of liability.

Now, to be sure, that exposure depended to some extent on whether... depended, if you will, entirely on whether a trial judge could find one of those aggravating factors.

But could the aggravating factor have included lack of remorse, lack of repentance?

Mr. Calvello: No, Your Honor.

No.

Unknown Speaker: Persistence in believing that what he did was okay, and he'd do it again?

Mr. Calvello: No, none of... all of those grounds have been found to be invalid under Florida law.

Unknown Speaker: What kind of grounds are there that are valid?

Mr. Calvello: There are extreme psychological trauma to the victim is one, in certain cases, if it's not an element of a crime, can possible be a ground to depart, if the facts are proven beyond a reasonable doubt.

What Mr. Miller lost, going back--

Unknown Speaker: You know, it seems to me the ex post facto protection is meant to prevent somebody from being surprised, thinking he'd committed a minor offense, and it's suddenly an aggravated offense.

And it seems to me that the books here said seven years.

I doubt whether anybody goes ahead and commits it saying, well, there won't be any aggravating circumstance?

Mr. Calvello: --See... well... the... fair warning is one element of the ex post facto clause.

But so is... and since the main one, I would think, is to prevent arbitrary and potentially vindictive legislation.

And here, at the time, you have a sentence, at the time he committed the offense, where it would be 3-1/2 to 4-1/2 years.

And then after he commits the offense, you're increasing his sentence.

Because the presumptive guideline sentence is the sentence under Florida law.

It is not the 7 years.

It's not the max.

They changed the quantum of punishment.

For example, it would be like if they took away parole, or took away gain time from somebody, you are effectively changing the sentence.

And I think that's what's happening here.

You are effectively changing the sentence.

And it had a substantial, a material impact, on Mr. Miller.

Unknown Speaker: Well, what if after the crime was committed, there were a series of new judges appointed, and all of them were... they were known as hanging judges, they always gave the maximum.

Would that be ex post facto?

Would he have a right to be sentenced by a judge as lenient as the judge would have been at the time of the crime?

Mr. Calvello: Oh, well as far as the composition of the bench, no, because we're not dealing with laws.

Here you are dealing with a particular law.

See, the Florida guidelines stepped in to take away the discretion of judges, if I may add.

So the hanging judges, quote unquote, hanging judges are in theory, are supposed to be eliminated.

But we have these guidelines, and you're supposed to sentence in these guidelines.

That was the whole idea of these guidelines, was to channel the discretion and get away from this concept of one judge giving the max to everybody, and the judge next door, who's more lenient.

You have a law that clarifies this and has uniformity.

But what happens here is that once you have this range, you have an enforceable right to this range.

Unknown Speaker: So you were... what your really claim is... claim is, is that you were deprived of leniency?

Mr. Calvello: No.

No, leniency could have come into play, Your Honor, if... if Mr. Miller wanted probation, or one or two years in jail.

His presumptive guideline sentence was 3-1/2 to 4-1/2 years in prison for the offense, which the Florida legislature and under the guidelines all said is appropriate for this offender.

It's not like he came in and said, give me 4-1/2 years.

They said that was appropriate, and they put it in the law through this guideline system.

Unknown Speaker: It's still not like the ordinary ex post facto case where the individual at the the time he commits the crime does not think there's a chance of his getting any more than 4-1/2 years.

Here the statute said, on the books, he could get 7 years.

Now, to be sure, the state, in trying to be equitable, out of equal protection concerns, tried to channel the discretion of the judges.

But on the books, he knew he was committing a possible seven year offense.

It's not the kind of unfairness that exists in most of our ex post facto cases?

Mr. Calvello: I think it's exactly the type of unfairness.

It fits right in, just like with Weaver, where they change... where they change, after they go to prison.

What did Mr. Weaver do when he committed his murder?

He got 15 years, and then they changed the gain time.

You've got to look at what's happening.

Here you're changing the sentence.

Just like in the main decision is Greenfield v. Scafati.

In that particular case, people go to prison, Your Honor.

They got released.

And after they got released, there was this provision that said if you violate parole, you would lose gain time.

And Scafati knew about it when he walked about the door.

He violates his parole, and he comes back in, and they take away six months of his gain time from his Oentence.

And the Court held, this Court held, that that was ex post factor, because it effectively increased his sentence.

Unknown Speaker: Well, did the Court... did our Court hold anything in that case?

Wasn't it a summary affirmance?

Mr. Calvello: Yes, it was, Your Honor.

Unknown Speaker: Did we write an opinion?

Mr. Calvello: It was a summary affirmance, Your Honor.

But in Weaver, the Court relies heavily on Greenfield v. Scafati.

And so do we.

Unknown Speaker: Well, what I asked you was whether our Court held anything in Greenfield?

Mr. Calvello: It was a summary affirmance?

Unknown Speaker: Without opinion?

Mr. Calvello: Yes, Your Honor.

The state hasn't really disputed that there was not a... retroactivity is not a question.

And there wasn't a real dispute as to quantum of punishment.

The quantum of punishment changed.

Under Florida law, the presumptive guideline sentence is the sentence.

And when you change that sentence, you are changing the punishment, and this is an ex post facto violation.

I just want to quote one thing from Weaver which may crystallize our position.

In there, the state argued that the gain time that Mr. Weaver complained about wasn't part of the sentence.

They seemed to indicate that that wasn't part of the sentence.

And this Court held, and I briefly quote, we need not determine whether the prospect of gain time was in some technical sense part of the sentence to conclude that it, in fact, is one determinate of petitioner's prison term, and that his effective sentence once this determinate is changed.

And I think that's what we have here.

If it's not the sentence, it's a determinate.

It has bee changed.

And it would materially alter the situation to th accused, an resulted in an ex post facto violation.

The length of a prison sentence, which is not subject to parole in this particular case, and which is determined by the applicable guidelines, is in the most basic and fundamental sense, a substantive matter, which under the ex post facto clause, cannot be retroactively increased.

If theren't any further questions from the Court, I have some time for rebuttal which I'd like to reserve.

Thank you.

Argument of Joy B. Shearer

Chief Justice Rehnquist: Thank you, Mr. Calvello.

Ms. Shearer, we'll hear now from you.

Mr. Shearer: Mr. Chief Justice, and may it please the Court:

The Florida Supreme Court correctly held, in reliance on this Court's decision in Dobbert v. Floria, that the application of the amended sentencing guidelines to all persons sentenced after their effective date was not an ex post facto violation.

There are three reasons which support the ruling below.

First, the guidelines are procedural and ameliorative when viewed as a whole.

Second, that there is continued judicial discretion so the defendant cannot show he was disadvantaged.

And thirdly, that the legislature has given offenders fair warning that the guidelines are subject to change.

Going first to the ameliorative purpose of the guidelines, the guidelines were drafted in order to guide judicial discretion and reduce disparity in sentencing, and to prevent arbitrariness.

However, the punishment for offenses remains the statutory maximum for the crime.

The statutory maximum sentences have not been abolished or altered in any way.

The effect on the particular--

Unknown Speaker: But you can't give them?

Mr. Shearer: --They can... the--

Unknown Speaker: You can't give them unless you have some special factor, right?

Mr. Shearer: --The trial judge may depart up to the statutory maximum if there are clear and convincing reasons for doing so, which must be set forth in writing.

Unknown Speaker: So in fact you can't get seven years?

Mr. Shearer: Well, in--

Unknown Speaker: Any trial judge can't give you seven years just because he wants to give you seven years.

Mr. Shearer: --Actually, it's 15 years for sexual battery.

But the trial judge can give 15 years, provided there are reasons for doing so.

And therefore--

Unknown Speaker: Clear and convincing reasons that are reviewable by other courts.

Mr. Shearer: --That are reviewable.

Unknown Speaker: What are those reasons?

What are some examples of them?

Mr. Shearer: Well, the court... in my brief, I've listed about 25 reasons.

They include careful planning of the crime, if that's not a particular element of the offense; premeditation; traumatic effect on the victim; traumatic effect on the victim's family; an escalating course of criminal conduct by the defendant, in other words, going from crimes against property to crimes against persons.

Unknown Speaker: I'm trying to figure out how many of those are foreseeable by the defendant.

Traumatic effect on the victim's family probably isn't.

Mr. Shearer: No.

And I suppose, careful planning, maybe not.

An escalating... a crime binge behavior, like robbing six 7-11s in two days, that sort of thing.

They've also upheld... I've actually set forth in my brief about 25 reasons that have been approved.

Unknown Speaker: Reading a list--

Mr. Shearer: Threats to the victims and the witnesses.

Presence of drugs in a house where children live.

Violating probation.

Excessive brutality.

Using employees... I mean they're really--

Unknown Speaker: --It's only the effects on the victim's family that I recall that is something that I would say is not clearly predictable by the criminal.

So that for all the rest you could say he carefully planned the crime so that he'd only get the lesser sentence, right.

But here, Ms. Shearer, the effect of the change of guidelines on this particular individual, as I understand it, was, at the time he committed the crime, the guidelines then in effect said 3-1/2 to 4-1/2 years, and when he was sentenced, it said 5-1/2 to 7 years.

So there's no overlap there, is there?

Mr. Shearer: --No, that's true.

The effect of it on this individual was that the judge could give him seven years without having reasons to depart, whereas under the original version of the guidelines, the judge could have give him seven years, but would have had to set out some reasons for doing so.

In fact, the prosecutor at the sentencing, this issue came up, and the defense attorney argued that the original guidelines were in effect.

And the prosecutor said, well, if, Judge, you decide to use the original guidelines, then you should consider departing, because there are aggravating circumstances here, and this man deserves seven years.

However, I think the '84 guidelines apply.

The judge said, well, I agree, because the statutory is sustained.

I'm going to use the '84 guidelines.

Therefore, the seven years is an authorized sentence, and I don't have to consider the departure question any further.

The appellate court, the intermediate court, the Fourth District Court of Appeal in Florida, did reverse, and felt that it was ex post facto, but specifically noted in its opinion that the very same sentence could be imposed on this defendant if the judge had clear and convincing reasons, and set them out in writing.

Unknown Speaker: And if this Court were to reverse the Supreme Court of Florida, I suppose a seven year sentence could be imposed under the later guidelines, with the finding of reasons on the appellate review.

Mr. Shearer: That's exactly correct.

And that's why we're relying so strongly on Dobbert v. Florida.

Because in Dobbert, this Court specifically held that when you can only speculate that you've been disadvantaged, but you cannot show an ex post facto violation.

Mr. Miller can only speculate that he would have received a lower sentence.

He cannot show that his sentence would have in fact been lower, because the Court had continued discretion to depart.

Now, Mr. Dobbert, as you recall, had a jury recommend life for him.

And under the prior death penalty statute, the life recommendation would have bound the trial court.

Under the new statute, it didn't bind the court, and the court could override the recommendation and did so.

However, this Court said that Mr. Dobbert had in no way established that in fact the jury would have recommended life under the old statute, and speculation was not enough to show that this had disadvantageous effect on the defendant.

We submit here that it's clear that the defendant was not subject to more onerous treatment because he certainly could have gotten the same sentence.

The prosecutor urged the court to do it.

The Fourth District Court intermediate specifically told the judge, if you want to, you can go ahead and sentence him to seven years again, but just state your reasons; that this clearly shows that there was not a disadvantage, and does not show ex post facto violation.

Unknown Speaker: It would be difference in the next case, if indeed, the prosecutor hadn't said, I have aggravating circumstances here?

Mr. Shearer: Well, I think--

Unknown Speaker: I mean, is that what you're relying on, the fact that the prosecutor here said there were aggravating circumstances, so that he might have gotten the longer sentence anyway?

Mr. Shearer: --Well, in any case, that there's aggravating circumstances, whether the prosecutor says it or whether the judge finds it to be so.

It's clear that in order to depart, there has to be some... a finding of some clear and convincing reasons.

But--

Unknown Speaker: Why didn't the judge just do that, and avoid this whole... just use the old guidelines and find the aggravated circumstances?

Mr. Shearer: --Because the judge accepted the prosecutor's argument which we're arguing today, that these were procedural changes, and because the statutory maximum was unaltered, that you could simply use the guidelines in effect on the date of sentencing.

I think it's--

Unknown Speaker: Do you think... I mean, just for purposes of deciding the case, should we assume there are aggravating circumstances or not?

Don't we have to assume there are none, because he didn't rely on them?

The legal question is whether he needs them.

Mr. Shearer: --I don't think we can assume there are none, because the prosecutor urged that there were.

The judge said, well, I don't have to get to that, because I'm using the new guidelines.

Unknown Speaker: But the legal question is whether the seven year sentence is adequate on the assumption that he might have found no aggravating circumstances.

Mr. Shearer: But I think we never have really decided ex post facto cases based on what might have been or speculation.

He... Mr. Miller cannot show definitively that he would have gotten a lesser sentence.

This case is clearly distinguished was Weaver v. Graham, because that involved a mandatory entitlement to gain time that was reduced.

Mr. Weaver, when he went to prison, all he had to do was sit there and behave himself and we was going to get 5, 10, 15 formula gain time.

Thie legislature then altered it and reduced it to 3, 6 and 9.

So the mandatory entitlement having been reduced changed the quantum of punishment.

However, here Florida complied with Weaver.

Because when the initial guidelines were adopted October 1st of '83, everybody sentenced after that date who committed offenses beforehand, elected the guidelines or went under the old system, because Florida was recognizing it was abolished parole, and therefore offenders who committed their crimes when parole was available were entitled to not lose that, that that would have been ex post facto.

But this situation, this defendant was aware of continued judicial discretion--

Unknown Speaker: Why is that?

Couldn't you have said the same thing about parole?

They couldn't be sure that they'd get parole?

Mr. Shearer: --Well, they had it for the whole system.

And he was entitled to--

Unknown Speaker: Well, you gave that away needlessly in that case.

They had a parole system, but he couldn't be sure he'd be the beneficiary of it.

Mr. Shearer: --Well, this defendant committed the defense after.

Unknown Speaker: No, I understand.

But your description of why Florida gave people the option to come into the new system or not--

Mr. Shearer: Right.

Unknown Speaker: --was based on the fact that, after all, Florida was abolishing parole and it felt that the ex post facto laws required... guarantee required that this adjustment be made.

Mr. Shearer: That's correct.

Unknown Speaker: But you could say the same thing about parole that you've told us for this new sentencing system.

Parole was available, but he couldn't prove that he would gotten it.

So really--

Mr. Shearer: But he was entitled to be considered for parole.

I mean, defendants under the old system were entitled to be eligible.

But in this case--

Unknown Speaker: --Well, you could say here, he was entitled to be considered for the lesser sentence instead of the seven years, that he would have entitled to be considered--

Mr. Shearer: --Well, the trial judge could have departed under.

He could have said there was not enough reason to go to the sentence.

Unknown Speaker: --Mr. Shearer, Lindsey against Washington, the case from the '30s in this Court, which was certainly relied on in Dobbert and I think mentioned in Grant, there the Washington State legislature changed max-mix sentence where the max is 15 years, to mandatory 15 years.

And the Court said, this Court said, that was a violation of the ex post facto clause.

And the fact that Lindsey there couldn't show that he might not have gotten 15 years under the old statute didn't mean that it wasn't a claim.

Because he had to get it under the new statute, and that was a disadvantage in sentencing.

Mr. Shearer: I think that the distinction between Lindsey and this case is that in Lindsey all discretion in sentencing was removed completely, because only the 15 year sentence could be given.

But in this case discretion existed under the original guideline to depart up or down, and it continues to exist to depart up or down.

So it's continuing discretion.

Now it may be that the discretion if reviewable or subject to certain constraints, but it still exists, and it's not the same mandatory sentence which removed all discretion that happened in Lindsey.

I think it's clear in the rule itself that governs the guidelines, 3.701, the statement of purpose is that the guidelines are to guide and not eliminate judicial discretion.

Section (b)(6) states that the sentencing guidelines are designed to aid the judge in the sentencing decision, and not to usurp judicial discretion.

And Section (b)(11) permits departures for set up a guidelines commission by statute.

And this commission is sitting, it exists, it is told specifically it has to meet every single year.

It has to recommend changes to the guidelines.

And it's supposed to take into consideration the availability of correctional resources.

Unknown Speaker: It was especially set up to get around the ex post facto?

Mr. Shearer: No, it was--

Unknown Speaker: Is that what you're saying?

Mr. Shearer: --I'm saying it gives fair warning to offenders that the statute specifically sets up a commission to review and continually revise and amend the guidelines.

Unknown Speaker: To get around the ex post facto part?

Mr. Shearer: No, the purpose is to benefit from our experience with the guidelines and adjust them and fine tune them to deal with problems that come up, because this is a whole new system.

Unknown Speaker: Suppose the basic statute says, the penalty for sexual assault is 15 years, provided however that this penalty may be changed at any time.

Merely announcing that you're going to change it ex post facto, does that immunize the state from ex post facto restrictions?

Mr. Shearer: Well, I think here, though, the guidelines, where the statutory maximum stays the same.

And that hasn't been altered.

Unknown Speaker: No, but that's back to your other argument that this is not, after all, the statutory sentence or guidelines.

It doesn't seem to me that your argument is improved any by saying, moreover, we warned you that we were going to violate the Constitution.

Mr. Shearer: Well, we're not doing it to violate the Constitution. We're--

Unknown Speaker: Well, you didn't put it that way.

But if indeed, it's an ex post facto violation, I don't see how it's eliminated by simply announcing in advance that you're going to do it?

Mr. Shearer: --Well, but fair warning to offenders that the guidelines are subject to change is one of the crucial factors in the parole cases that--

Unknown Speaker: So you think that statute would be okay, then.

Fair warning: It's 15 years this year, but we may change it anytime after you commit the offense?

Mr. Shearer: --No, because that's the maximum sentence for the offense.

And that... you know, the defender is entitled to have fair notice of the consequences of his acts.

But in this case, Mr. Miller had fair notice that he would get 15 years maximum.

That he would receive guideline sentencing; that the court could depart up or down depending on the existence of aggravating or mitigating factors; and that the guidelines were subject to annual revision.

There have been two sets of amendments already approved by the legislature, and there's a third one pending in the legislature now.

In the parole cases areas, several of the circuit courts of appeals found that where revisions were authorized by statute, that that did give offenders fair warning that there could be revisions in the guidelines.

Unknown Speaker: xxx some what differently if the prison authorities had said... or the legislature or someone said... here is gain time, but we may change it, may reduce it, may reduce it.

And then they do reduce it, so Weaver would have come out differently?

Mr. Shearer: It may have, if there was some commission that was supposed to annually study the problem and make some determination?

Unknown Speaker: So your answer is yet, if there had been adequate notice?

Mr. Shearer: Yes, because that was something important in Weaver, that there was no notice to this man that when he went to prison... or actually, when he committed his offense, that his gain time would be altered.

But here there is clearly warning to Mr. Miller and other people that the guidelines are going to be annually reviewed.

The parole guidelines cases were... actually, the parole guidelines were one of the bases for this state to develop sentencing guidelines.

On page 56 of my brief I've quoted former Chief Justice Sundberg's article discussing the guidelines before they were enacted, and he said they came from the parole guidelines.

For that reason, I think the cases in that area, the Ninth Circuit Court of Appeals and Justice Rehnquist's decision, which hold that application of amended guidelines is not ex post facto because discretion is still available and because of the fair warning, are clearly on point with this case.

In the parole guidelines area, departures also are reviewable.

It's administrative review, but the standard is good cause.

We submit that's fairly analogous to clear and convincing reasons.

And again, in the parole cases the guidelines are followed 85 percent of the time.

But the courts have held that the fact that they're followed that often doesn't mean that the departures become substantive... a matter of substantive law.

We submit that the defendant's cases are distinguishable.

As I mentioned, Weaver was a mandatory entitlement, whereas this is discretionary.

The Rodriguez case, cited in the reply brief, involved the elimination of parole hearings, which was not the case here.

We submit that the amendments simply further reduce arbitrariness and guide discretion.

The defendant was not deprived of a substantial right that was available at the time of his offense, because the maximum punishment remained the same.

The amendments do not remove sentencing options, nor do they permit consideration of matters previously barred.

Finally, there are policy reasons why the legislature should be able to amend the guidelines and courts apply the amendments that are in effect on the sentencing date.

The guidelines really represent an innovative change from the past manner of indeterminate sentencing, with the parole commission making the decision for relief.

Now the guidelines effectively the truth in sentencing.

The parole has been eliminated.

And we need to benefit from our experience with the guidelines, and to modify them as necessary.

Procedurally, it would be difficult for trial courts to be faced with using several different sets of guidelines and having to apply... figuring out which ones apply to which defendant.

And if it ends up becoming too complicated, it will discourage modification, because it will result in administrative difficulty.

Unknown Speaker: xxx that these guidelines only apply to cases that were tried after the guidelines were passed?

Would that wreck the whole system?

Mr. Shearer: I'm sorry, what?

Unknown Speaker: If we said that these guidelines apply only in the future, would that wreck the system of Florida?

Mr. Shearer: Well, I think that the problem is that the guidelines have to be continually altered and--

Unknown Speaker: Would that wreck the whole thing?

Mr. Shearer: --It would make it administratively difficult for the courts, and it may--

Unknown Speaker: How would it be difficult--

Mr. Shearer: --Well, because the courts would have to, when they're sentencing a particular individual, determine the date of his offense, and then determine what guidelines were in effect then.

Unknown Speaker: --That's a problem?

Mr. Shearer: It can be.

Because it's really... there's already three different sets, and there's a fourth that's pending in the legislature.

Unknown Speaker: So one more would be a problem?

Mr. Shearer: But there's going to be a fifth and a sixth.

Unknown Speaker: It would be much easier not to try them at all.

Mr. Shearer: Well, anyway, Your Honor, I think that the administrative problems are a valid concern.

And I've cited a couple of the bail act cases, where the courts have said that a change in the bail format, which makes it more difficult to get bail on appeal, really only advances the date of sentencing, and is not ex post facto; and that administrative concerns are valid, and the court shouldn't have to deal with two sets of bail statutes when deciding a bail issue.

We submit that analysis applies here as well.

Therefore, in view of the ameliorative nature of the guidelines, the continued existence of judicial discretion, the fair warning given to offenders, and the policy reasons given, we submit that the Florida Supreme Court correctly relied on Dobbert v. Florida.

And we request that the judgment below be affirmed by this Court.

Thank you.

Rebuttal of Anthony Calvello

Chief Justice Rehnquist: Thank you, Ms. Shearer.

Mr. Calvello, you have nine minutes remaining.

Mr. Calvello: I have nothing further, Your Honor.

Thank you very much.

Chief Justice Rehnquist: The case is submitted.