Legal Pleadings:

Reply Brief – Youth Offender


ISSUE I The Trial Court Erred by Declining to Impose A Youthful Offender Sentence Based on Impermissible Considerations and Erroneous Legal Conclusions

The State did not object to the statement of the standard of review, in this case, as de novo. “Because a motion to correct a sentencing error involves a ‘purely legal issue,’ an appellate court’s standard of review for such a motion is de novo.” Willard v. State, 22 So.3d 864, 864 (Fla. 4th DCA 2009) (citing T.L.S. v. State, 949 So.2d 290, 291 (Fla. 5th DCA 2007)). Accord Daffin v. State, 31So.3d 867 (Fla. 1st DCA 2010). This Court has authority to review this sentence, which, although not exceeding the statutory maximum for the offense, fails to “adhere to … constitutional requirements.” Valdes v. State, 765 So.2d 774, 777 (Fla. 1st DCA 2000). See Howard v. State, 820 So.2d 337 (Fla. 4th DCA 2002), and Epprecht v. State, 488 So.2d 129 (Fla. 3d DCA 1986). Thus, this constitutes fundamental error, which can always be reviewed.
In its Answer Brief, the State claims the issue of trial court error, in declining to impose a Youthful Offender (“YO”) sentence, based on impermissible considerations and erroneous legal conclusions, was not preserved for review in the trial court. Although, as stated above, this trial court error is fundamental, and requires no objection as a condition of review, this issue was properly preserved. Appellant filed a motion for modification and/or reduction of sentence, pursuant to Rule 3.800(c), Fla. R. Crim. P., giving the trial court the opportunity to correct its error. RI, 52-55. This motion contained the specific contention of the legal ground constituting error, and specifically apprised the trial court of both the relief sought by appellant, and the grounds for appellant’s objection. Thus, the trial court had a fair opportunity to correct its error. None of the cases cited by the State hold that the filing of such a motion, by the appellant, fails to meet the requirements of the law.
The State, in refashioning and restating the issue on appeal, attempts to divert this Court’s attention from the trial court’s error, by claiming this issue is simply an appeal of a discretionary trial court decision. Nothing could be further from the facts in this case. What this Court is being asked to review is the trial court’s statement, at sentencing, that it no longer considered or imposed YO sentences, as a matter of practice, because the Department of Corrections (“DOC”) failed to follow the law, sending defendants, to whom the trial court had previously given YO jail sentences, to boot camp, and then released them early, over the trial court’s objections.
This position is contrary to the requirement (as admitted by the State) for trial court consideration of a YO sentence, where permitted by law, for defendants like the Appellant, who undisputedly qualify for a YO sentence. See, e.g., Hill v. State, 438 So.2d 513 (Fla. 4th DCA 1983).
The State’s brief fails to dispute the fact that it bears the “burden to show from the record as a whole that the trial judge did not rely on impermissible considerations in passing sentence upon the defendant where portions of the record reflect that the trial judge may have so relied.” Epprecht, supra at 131.
In this case, by its sole comment on the YO sentence already requested by appellant, the trial court clearly stated an impermissible consideration in rejecting any and all YO sentences. The State, ignoring the fact that the trial court never again thereafter, at sentencing, even mentioned a YO sentence, cites to a portion of the record where the trial court is explaining the length of the sentence imposed on the Appellant, as compared to his co-defendants, before pronouncing sentence. See Answer Brief at 2-3 and 11-12.
Immediately after the second, lengthy excerpt it provides, the State concedes the point raised here, admitting, “the trial court never specifically stated why he was not imposing a youthful offender sentence in the case.” Id. at 12 (emphasis added). This is exactly why this constitutes reliance on an impermissible consideration, and where the State fails to meet its burden. The trial court never said – while or after discussing the crime in question, and the relative pre-and post arrest roles of the appellant and his co-defendants – that these facts had anything to do with his decision not to impose a YO sentence. Instead, the trial court was merely prefacing the imposition of incarceration. This is clearly shown by the fact that, the very next thing the trial court did was adjudicate the defendants guilty and pronounce sentence. RII, 221.
This evidence unmistakably shows this is not a discretionary decision by the trial court – not a case where the court said it had considered imposition of a YO sentence, and it did not fit, or was not warranted. To the contrary, the trial court said it did not impose YO sentences because of the failure of the DOC to follow the law. This Court should not allow the State to divert its attention by incorrectly restating the issue.
The State completes its unpersuasive attempt sidestep the trial court’s errors by mischaracterizing the issue of compounded error from the trial court’s order denying the appellant’s Rule 3.800(c), Fla. R. Crim. P. motion (RI, 56) as a question of the use of discretion, as well. This concoction is encapsulated by the State’s attempt to frame the issue thusly, “the trial court can reject youthful offender sentencing when the court determines it is not appropriate for the particular case.” Answer Brief at 14 (emphasis added).
This is not at all what the trial court’s order did. Rather than reciting a single fact that made appellant’s gun crime case different from other gun crime cases – which would have been the application of discretion, that is distinguishing among defendants or specific circumstances in denying a YO sentence for armed robbery – the trial court simply stated that “the use of a firearm by the defendant” meant a YO sentence was “not appropriate.” RI, 56.
This not only failed to cure the original error, it distinctly compounded it. In its pronouncement, the trial court placed itself above the legislature, by deciding a YO sentence was inappropriate for a gun crime – not for this gun crime, but for all gun crimes. The State admits that is not the law, and that the YO sentencing provisions trump the 10-20-Life gun laws, and says “a youthful offender sentence can be imposed for crimes involving the use of a firearm.” Answer Brief at 13.
The State has failed to meet its burden of showing that the two impermissible considerations – refusal to impose a YO sentence due to DOC misconduct and because this was a gun case – “played no part” in the sentence imposed in the instant case. Epprecht, supra at 131, citing Townsend v. Burke, 334 U.S. 736, 740 (1948). Appellant has not only demonstrated the quantum of proof sufficient to constitute reversible sentencing error, namely the clear possibility that the trial court relied on impermissible considerations, he has shown it to be certain and indisputable. The trial court did not issue an order making clear that the impermissible consideration played no part in its sentencing decision, the State cannot meet its burden as to either sentencing error, and the instant sentence must be vacated.

ISSUE II The Trial Court Imposed a Disparate Sentence, in Violation of the Defendant’s Rights Under the Eighth Amendment to the United States Constitution and Article I Section 17 of the Florida Constitution

Again, the State does not dispute this issue, too, is reviewed de novo. See Willard, supra at 864 (citing T.L.S. supra at 291). Accord Daffin v. State, 31So.3d 867 (Fla. 1st DCA 2010). This Court has authority to review this sentence, which, although not exceeding the statutory maximum for the offense, fails to “adhere to … constitutional requirements.” Valdes, supra at 777. See Howard, supra, and Epprecht, supra.
The State next claims that the lack of a contemporaneous objections pretermits appellate review in this case. This is not so, because, as the State also concedes, fundamental error such as this – the failure to adhere to constitutional requirements – does not require objection for preservation. The cases cited by the State all involve challenges to the constitutionality of the imposition of the death penalty, which is always foreseeable in a capital case. Additionally, objection was here impossible, because until the sentence was pronounced, the comparison of the instant sentence to over one hundred sentences based on similar or worse facts, could not be performed.
The State does not, and indeed, cannot, dispute the fact that, in 135 cases in the Fourth Judicial Circuit, in Duval County, including 18 cases where sentencing was done by this trial court judge, lower, and in many cases, substantially lower, sentences were imposed, for similar or worse offenses. This amounts to disparate treatment, in violation of the constitutional prohibitions of cruel and unusual punishment.
Our system of justice is based on the idea of equal treatment under the rule of law, which means that “[s]imilar offenders engaged in similar conduct should be sentenced equivalently.” United States v. Goddard, 929 F.2d 546, 550 (10th Cir. 1991). “Disparate sentences are allowed only where the disparity is explicable by the facts on the record.” Id., citing, United States v. Sardin, 921 F.2d 1064, 1067 (10th Cir. 1990). Although trial courts have discretion when imposing sentences less than the maximum penalty allowed by law, that discussion should not be abused. See, e.g., Lerma v. State, 497 So.2d 736 (Fla. 1986).
The State has failed to cite any authority holding that a disparate sentence cannot be unconstitutional outside of the death penalty context. Indeed, this idea was clearly endorsed by no less of an authority than Justice Potter Stuart, albeit in dissent, raising the very question of disparate sentencing, when applied to non-death penalty cases. Estelle v. Dorrough, 420 U.S. 534, 544 (1975) (Stuart, J., dissenting).
The State does not contest the fact that a possibly disparate sentence should be the subject of a proportionality review. See, e.g., Victorino v. State, 23 So.3d 87, 107 (Fla. 2009), a capital case discussing the “duty to conduct a proportionality review to prevent the imposition of unusual punishments.”
In the instant case, should this Court find a potentially disparate sentence, it, too, should review appellant’s sentence for proportionality. If that review is undertaken, this Court can and should find the instant sentence – a ten year, minimum mandatory adult prison sentence – to be disparate and disproportionate, and, as such, an unusual punishment, imposed unfairly on a teenager with no prior record. Therefore, this sentence violates the Eighth Amendment United States Constitution, and Article I, Section 17 of the Florida Constitution, is unconstitutional, and this Court, having jurisdiction, and should reverse, and remand for re-sentencing.
ISSUE III The Imposition of a Minimum Mandatory Sentence by the Trial Court Violates the Defendant’s Rights Under the Eighth Amendment to the United States Constitution
The State again prefaces its argument on this issue with a claim that it is unpreserved. This ignores both the facts, and the law. The issue was properly preserved in appellant’s Motion to Correct Illegal Sentence, made pursuant to the provisions of Rule 3.800(a), Fla. R. Crim. P., raising this very issue. CCRI, 1-15. Furthermore, since the State admits this is a constitutional question, it is reviewable as fundamental error, without objection.
The State argues that this Court should not join the vanguard of jurisdictions recognizing that young people – specifically teenagers – are biologically immature, and different than adults. The thrust of this opposition (ignoring reality) is that this type of sentence passes moral muster because it is “below the statutory maximum,” and there is “an opportunity for release.” Answer Brief at 23.
This argument completely ignores the main basis for the progressive rejection of minimum mandatory sentences for teenagers, developmental immaturity precluding the capacity for proper appreciation of conduct and consequences. These facts, expressed in Roper v. Simmons, 534 U.S. 551(2005), are discussed at length in appellant’s Initial Brief. In sum, there are three “general differences” between juveniles and adults which make minimum mandatory sentences for juveniles unconstitutionally cruel and unusual.
These differences are: (1) immaturity and an “underdeveloped sense of responsibility”; (2) greater “vulnerab[ility] or susceptibl[ity] to negative influences and outside pressures, including peer pressure,”; and (3) that “the character of a juvenile is not as well formed as that of an adult.” Id. at 569-70. The State, in its Answer Brief, completely fails to address any of these facts, and only mentions Roper to acknowledge that appellant has cited and relied on it. Answer Brief at 23.
Once these clear facts are digested, the conclusion is clear. Based on the facts, just as our free society has evolved from the “rack and the thumbscrew … punishments that have been barred since the adoption of the Bill of Rights,” we should continue to evolve. Furman v. Georgia, 408 U.S. 238, 331 (1972). Our acquisition of clear scientific evidence shows that treating juveniles like adults is unfair and unjust. It is clearly cruel, in contravention of that selfsame Bill of Rights, and should be struck down.


The trial court committed error by refusing to consider a YO sentence on improper grounds, then, without correcting or repudiating its first error, further erroneously “considered” and rejected a YO sentence based on a misstatement of law (that YO sentences are not appropriate for gun crimes). The State has failed to meet its burden of showing that the two impermissible considerations played no part in appellant’s sentence.
The trial court also committed error and abused its discretion by imposing a disparate sentence, as the clear result of the capricious, inconsistent exercise of discretionary sentencing power. This Court should conduct a proportionality review, find the instant sentence unconstitutional as disparate, and therefore unusual punishment, and vacate and remand, with directions to the trial court to impose a Youthful Offender sentence. Finally, this Court should also certify the question of the constitutionality of juvenile minimum mandatory sentences.