Florida Sentencing Blog

A discussion of contemporary law, policy, and practice in Florida criminal sentencing.

Length of Sentence for Juveniles Prosecuted As Adults in Florida

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Given Monday’s United States Supreme Court ruling in Miller v. Alabama declaring minimum mandatory life sentences for defendants whose crimes were committed when they were less than 18 years of age unconstitutional, I thought that this would be a good time to summarize the law of sentence length for juveniles prosecuted as adults in Florida.

First of all, how do children get into the adult criminal system in Florida?

Simply put, children come into the adult system either by indictment, information, or waiver or juvenile jurisdiction.

Cases prosecuted on indictment: If the child is found to have committed the offense punishable by death or life imprisonment, the child must be sentenced as an adult. If the juvenile is not found to have committed the indictable offense but is found to have committed a lesser included offense or any other offense for which he or she was indicted as a part of the criminal episode, the court may sentence as follows:

1. As an adult;

2. Pursuant to chapter 958; or

3. As a juvenile under section 985.565.1

Other cases: If a child who has been transferred for criminal prosecution pursuant to information or waiver of juvenile court jurisdiction is found to have committed a violation of state law or a lesser included offense for which he or she was charged as a part of the criminal episode, the court may sentence as follows:

1. As an adult;

2. Pursuant to chapter 958; or

3. As a juvenile under section 985.565.2

Notwithstanding any other provision to the contrary, if the state attorney is required to file a motion to transfer and certify the juvenile for prosecution as an adult under section 985.556(3) and that motion is granted, or if the state attorney is required to file an information under section 985.557(2)(a) or (b), the court must impose adult sanctions.3

At the constitutional level, the Eighth Amendment to the United States Constitution and Article I, Section 17 of the Florida Constitution,4 have historically provided protection relative to the mode and method of punishment, not the length of incarceration, and outside the context of capital punishment successful challenges to the proportionality of particular sentences have been exceedingly rare. A proportionality analysis thus focuses on the crime charged and the legislatively imposed punishment for the crime, not the specific facts of a particular case.5 A “gross disproportionality” principle is applicable, however, to sentences for terms of years. In other words, in order to violate the cruel and unusual punishment clauses of the national and state constitutions a prison sentence must, at least, be grossly disproportionate to the crime. The proportionality analysis to be followed in such cases is guided, first of all, by the gravity of the offense and the harshness of the penalty. If an inference of gross disproportionality is raised at this stage, further consideration is given to the sentences imposed on other criminals in the same jurisdiction and the sentences imposed for the commission of the same crime in other jurisdictions.6 A state’s choice of sentence, however, will never be unconstitutional simply because the penalty is harsher than the sentence imposed by other states for the same crime,7 and the fact that a co-defendant received a lighter sentence does not mean that a defendant’s sentence is disproportionate.8

The United States Supreme Court has invalidated a prison sentence because of its length on only one occasion.9 In fact, neither the Eighth Amendment nor its counterpart in the Florida Constitution require strict proportionality between crime and sentence, but rather forbid only sentences that are grossly disproportionate to the crime.10 A criminal sentence may qualify as a cruel and unusual punishment if it, among other things, is grossly disproportionate, involves the unnecessary and wanton infliction of pain, or otherwise shocks the conscience and sense of justice of the people, based on evolving standards of decency.11 Against this backdrop, the Florida Supreme Court has found that, in the Criminal Punishment Code, the legislature has provided a reasonable basis for its sentencing scheme for noncapital felonies which is neither discriminatory, arbitrary, or oppressive.12 Similarly, the Florida Supreme Court has also found that mandatory minimum sentencing schemes do not constitute cruel or unusual punishment.13

Recently, however, the United States Supreme Court has extended the categorical challenge analysis which heretofore has been reserved for capital sentencing and which considers the nature of the offense and the characteristics of the offender, to noncapital sentencing. In Graham v. Florida a majority of Justices held that the Constitution’s ban on cruel and unusual punishments prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide, adding that a state need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.14 On June 25, 2012, the United States Supreme Court in Miller v. Alabama15 extended this prohibition by holding that mandatory life without parole for those under the age of 18 at the time of there crimes violate the Eighth Amendment’s prohibition on cruel and unusual punishments. The Miller opinion appears, however, to sanction a life sentence for homicide where the defendant’s youthfulness is considered in mitigation at sentencing.

The rationale of the Supreme Court in the Graham and Miller decisions was that children are constitutionally different from adults for purposes of sentencing on the basis that (1) children have a lack of maturity and an underdeveloped sense of responsibility leading to recklessness, impulsivity, and heedless risk-taking, (2) children are more vulnerable to negative influences and outside pressures from their family and peers, having limited control over their own environment and lacking in the ability to extricate themselves from horrific, crime-producing settings, and (3) a child’s character is not as well-formed as an adult’s, his or her traits are less fixed, and his or her actions are less likely to be evidence of irretrievable depravity.16 Thus, the Supreme Court has reasoned that youthfulness is a factor that must be considered in the sentencing of an offender whose crimes were committed while he or she was less than 18 years of age. The holding of the Court that it is grossly disproportionate and hence unconstitutional for any judge or jury to impose a sentence of life without parole on an offender less than 18 years old under any circumstances for non-homicide cases and as a mandatory sentence in homicide cases is, in any event, a significant diminution of the power and autonomy of judges, juries, prosecutors, state legislatures and, ultimately, the citizenry when it comes to democratically selected methods of punishment.

In the wake of Graham, the appellate courts been faced with the question of sentences involving terms-of-years that were the functional equivalent of a life sentence. Florida courts have approved 50-,17 70-,18 and 90-year19 sentences. The First District, however, reversed consecutive forty-year sentences for armed robbery by a 17-year old defendant as the functional equivalent of a life sentence without parole and hence cruel and unusual under Graham. In reaching this decision, the per curiam opinion of the court observed that, even if defendant received the maximum amount of gain time, the earliest possible release was at age eighty-five, the combined eighty-year sentence exceeded defendant’s life expectancy based upon statistical evidence presented at sentencing and would not provide a meaningful or realistic opportunity to obtain release, and the trial court impermissibly judged defendant unfit to reenter society.20

A juvenile sentenced as an adult is thus not subject to the death penalty or to a sentence of life without possibility of parole, but is subject to any other lawful penalty reserved for adults.21 As unqualified life sentences categorically constitute cruel and unusual punishment when imposed upon persons who were minors when they committed the crimes, such sentences cannot be imposed at either original sentencing or after revocation of supervision.22 Any sentence imposing adult sanctions is presumed appropriate, and the court is not required to set forth specific findings or enumerate the criteria in section 985.556(4) as any basis for its decision to impose adult sanctions.23

This means, inter alia, that in the case of habitualized defendants charged with a non-homicide offense where the only permissible sentence is life imprisonment, but the defendant was a juvenile at the time he or she committed the offense, the court must impose a sentence under the applicable sentencing guidelines or the Criminal Punishment Code.24 The Second District Court of Appeal has added a further qualification under the Eighth Amendment and Article I, Section 17 of the Florida Constitution in cases where the defendant is charged with felony murder for an offense committed when the defendant was a juvenile and the defendant did not actually commit the murder: In those cases the sentencing court is permitted to engage in a case-specific analysis to determine whether the sentencing statute requiring the court to impose a sentence of life without possibility of parole is unconstitutional as applied to the particular defendant and whether a lesser sentence should be imposed.25

NOTES

1 Sec. 985.565(4)(a)1., F.S.

2 Sec. 985.565(4)(a)2., F.S.

3 Sec. 985.565(4)(a)3., F.S.

4 The cruel and unusual punishments clause of the United States Constitution applies to the states through the operation of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962).

5 Edwards v. State, 885 So. 2d 1039 (Fla. Dist. Ct. App. 4th Dist. 2004); see, State v. Nickerson, 541 So. 2d 725 (Fla. Dist. Ct. App. 1st Dist. 1989) (departure is erroneous insofar as it is based on the disproportionate severity of the sentence).

6 Adaway v. State, 902 So. 2d 746 (Fla. 2005).

7 See, Rummel v. Estelle, 445 U.S. 263, 299, 100 S. Ct. 1133, 1152, 63 L. Ed. 2d 382, n. 19 (1980) (Powell, J., with whom Brennan, Marshall and Stevens, JJ., join, dissenting).

8 Atwater v. State, 781 So. 2d 1149 (Fla. Dist. Ct. App. 5th Dist. 2001).

9 Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983) (life sentence without possibility of parole for habitual offender who uttered a bad check for $100 and had three prior convictions for third-degree burglary, one prior conviction for obtaining money under false pretenses, one prior conviction of grand larceny, and one prior conviction for third-offense driving while intoxicated).

10 Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment); Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983); Hall v. State, 823 So. 2d 757 (Fla. 2002); State v. Cotton, 769 So. 2d 345 (Fla. 2000).

11 Provenzano v. Moore, 744 So. 2d 413 (Fla. 1999); Duncan v. Moore, 754 So. 2d 708 (Fla. 2000); see also, United States v. Rosenberg, 195 F.2d 583 (2d Cir.), cert. denied, 344 U.S. 838, 73 S. Ct. 21, 97 L.Ed. 652 (1952).

12 Hall v. State, 823 So. 2d 757 (Fla. 2002).

13 See, e.g., State v. Benitez, 395 So. 2d 514 (Fla. 1981); McArthur v. State, 351 So. 2d 972 (Fla. 1977); Banks v. State, 342 So. 2d 469 (Fla. 1976); O’Donnel v. State, 326 So. 2d 4 (Fla. 1975).

14 Graham v. Florida, 560 U.S. —, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); see also, Rioux v. State, 48 So. 3d 1029 (Fla. Dist. Ct. App. 2d Dist. 2010) (reversal of life sentences for sexual battery and lewd molestation on persons less than twelve years old committed when defendant was fifteen); Manuel v. State, 48 So. 3d 94 (Fla. Dist. Ct. App. 2d Dist. 2010) (defendant’s convictions for attempted murder with a firearm were not homicide offenses, and thus Eighth Amendment’s prohibition of life sentences without the possibility of parole for non-homicide offenses committed by juveniles applied to defendant, who was 13 years old when the offenses were committed; homicide required the death of the victim).

15 Miller v. Alabama, — U.S. —, — S. Ct. —, — L. Ed. 2d —, 2012 WL 2368659 (2012).

16 Graham v. Florida, 560 U.S. —, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

17 See, Thomas v. State, 78 So. 3d 644 (Fla. Dist. Ct. App. 1st Dist. 2011).

18 See, Gridine v. State, — So.3d —, 2011 WL 6849649 (Fla. Dist. Ct. App. 1st Dist. 2011).

19 Henry v. State, — So.3d —, 2012 WL 162005 (Fla. Dist. Ct. App. 5th Dist. 2012).

20 Floyd v. State, — So. 3d —, 2012 WL 1216269 (Fla. Dist. Ct. App. 1st Dist. 2012)

21 Graham v. Florida, 560 U.S. —, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); see also, Rioux v. State, 48 So. 3d 1029 (Fla. Dist. Ct. App. 2d Dist. 2010) (reversal of life sentences for sexual battery and lewd molestation on persons less than twelve years old committed when defendant was fifteen); Manuel v. State, 48 So. 3d 94 (Fla. Dist. Ct. App. 2d Dist. 2010) (defendant’s convictions for attempted murder with a firearm were not homicide offenses, and thus Eighth Amendment’s prohibition of life sentences without the possibility of parole for non-homicide offenses committed by juveniles applied to defendant, who was 13 years old when the offenses were committed; homicide required the death of the victim).

22 Lavrrick v. State, 45 So. 3d 893 (Fla. Dist. Ct. App. 3d Dist. 2010), citing Graham v. Florida, 560 U.S. —, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).

23 Sec. 985.565(4)(a)4., F.S.

24 Shingler v. State, 74 So. 3d 171 (Fla. Dist. Ct. App. 1st Dist. 2011).

25 Arrington v. State, — So.3d —, 2012 WL 130276 (Fla. Dist. Ct. App. 2 Dist. 2012).

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