Booker v. State

• Decision Date: 24 September 1987
• Docket Number: No. 68400,68400
• Citation: 12 Fla. L. Weekly 491,514 So.2d 1079
• Parties: 12 Fla. L. Weekly 491 Dilar S. BOOKER, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 1079

514 So.2d 1079

12 Fla. L. Weekly 491

Dilar S. BOOKER, Petitioner, v. STATE of Florida, Respondent.

No. 68400.

Supreme Court of Florida.

Sept. 24, 1987.

Rehearing Denied Dec. 1, 1987.

James Marion Moorman, Public Defender, Tenth Judicial Circuit, and Douglas S. Connor, Asst. Public Defender, Bartow, for petitioner.

Robert A. Butterworth, Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for respondent.

EHRLICH, Justice.

We have for our review Booker v. State, 482 So.2d 414 (Fla. 2d DCA 1985), wherein the district court certified the following question of great public importance:

WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT

RELIED UPON A REASON OR REASONS THAT ARE PERMISSIBLE UNDER FLORIDA RULE OF CRIMINAL PROCEDURE 3.701 IN MAKING ITS DECISION TO DEPART FROM THE SENTENCING GUIDELINES, WHAT CRITERIA SHOULD AN APPELLATE COURT ADOPT IN DETERMINING IF THE SENTENCING COURT ABUSED ITS DISCRETION IN ITS EXTENT OF DEVIATION?

Id. at 419-420. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

The petitioner's first issue here is that there were no valid reasons for departure in his case. A full recitation of the trial court's order departing from the presumptive guidelines sentence of twelve to thirty months and sentencing the petitioner to five consecutive five-year terms is contained in the opinion of the district court below, 482 So.2d at 416-418, n. 1, and no useful purpose would be served by reproducing it here. It is sufficient for our purposes to note the petitioner's argument which is that the sole reason for departure in this case was probation violations and that the trial court's departure sentence above the one cell allowed by Florida Rule of Criminal Procedure 3.701(d)(14) was erroneous. We disagree with the petitioner's characterization of the reasons for departure. We agree with the district court that first, the prior probation violations were a valid reason to depart because a probation violation which occurs between the substantive offense and the current revocation is not scored on the guidelines score sheets; use of these unscored probation violations was a valid reason for departure. See Adams v. State, 490 So.2d 53, 54 (Fla.1986); State v. Pentaude, 500 So.2d 526, 528 (Fla.1987) (rule 3.701(d)(14) does not limit trial judge's discretion to depart based upon numerous other factors surrounding a violation of probation).

The second reason for departure, petitioner's escalating pattern of criminal activity, is a valid reason for departure and is amply supported by the facts in this case. See Keys v. State, 500 So.2d 134, 135-136 (Fla.1986) (escalating course of criminal conduct from crimes against property to violent crimes against person is a valid reasons for departure).

The question certified to us by the Second District Court of Appeal in this case was previously certified by that court in Ochoa v. State, 476 So.2d 1348 (Fla. 2d DCA 1985). In our decision in Ochoa (Ochoa v. State, 509 So.2d 1115 (Fla.1987)), we did not address the certified question. After accepting jurisdiction in both Ochoa and the case sub judice, the legislature amended section 921.001(5), Florida Statutes, to provide that "[t]he extent of departure from a guideline sentence shall not be subject to appellate review." Ch. 86-273, § 1, Laws of Fla. Accordingly, we issued an order in both cases requesting the parties "to brief the issue of judicial review of sentencing and the effect, if any, of the aforedescribed legislative action on judicial review." The parties in both cases have responded and have filed briefs on this issue. The petitioner sub judice alleges that his sentence of twenty-five years (five consecutive five-year terms) was an abuse of discretion by the trial court. ¹ Therefore, the issue is squarely presented here as to the effect chapter 86-273, § 1 has on the power of this Court and the district courts to review the extent of departure from a guidelines sentence.

In Albritton v. State, 476 So.2d 158 (Fla.1985), we addressed the issue of what standard should be employed by a reviewing court when presented with a departure sentence. Both parties, although suggesting different approaches, agreed that the extent of departure was subject to appellate review. Id. at 160. The state agreed that the extent of departure should be subject to an abuse of discretion standard, and it was this standard we adopted. In doing so we rejected the district court's holding that the only limitation on departure sentence was the statutory maximum. Id.

This Court's order in Ochoa and the case sub judice requesting briefs on the impact of chapter 86-273 was premised upon two basic concerns, the separation of powers issue and the ex post facto implications. In analyzing the separation of powers issue, two basic issues must be addressed. First is whether a reviewing court has any inherent power over reviewing acts of lower tribunals which may not be restricted by the legislative branch. The second concerns the legislature's power to limit the scope of appellate review. It has traditionally been recognized that courts do have certain inherent powers. In Petition of Florida Bar, 61 So.2d 646 (Fla.1952), we stated:

It is true that courts of general jurisdiction have certain inherent or implied powers that stem from the constitutional or statutory provisions creating the court and clothing it with jurisdiction. In other words, regularly constituted courts have power to do anything that is reasonably necessary to administer justice within the scope of its jurisdiction, but not otherwise. Inherent power has to do with the incidents of litigation, control of the court's process and procedure, control of the conduct of its officers and the preservation of order and decorum with reference to its proceedings. Such is the scope of inherent power, unless the authority creating the court clothes it with more.

Id. at 647. Concerning the second issue, legislative restriction on the scope of rights to appeal, this Court in Austin v. Town of Oviedo, 92 So.2d 648 (Fla.1957), observed:

In McJunkins v. Stevens, 88 Fla. 559, 102 So. 756, we announced a rule governing appellate practice which has been consistently followed by this Court. It was there held in substance that while the Constitution delineates the appellate jurisdiction of the Supreme Court and of the Circuit Courts, it does not prescribe the means or manner by which such appellate jurisdiction is acquired in particular cases. It remains the responsibility of the Legislature to prescribe the means and method by which appellate review may be obtained.

In Reed v. State, 94 Fla. 32, 113 So. 630, a capital case, this Court stated the rule to be that the right to appellate review of a case which has already been tried in a trial court is not a natural, absolute, or unqualified right but rather is a right created by law. To enjoy the right a party must first comply with the conditions precedent and regulatory required by law. In the absence of constitutional inhibitions it is within the power of the Legislature to impose conditions and restrictions on the privilege to seek appellate review.

Id. at 650. The discernible principle from Austin is that, absent a specific constitutional right to appellate review on a particular issue, the scope of appellate review may be modified by the legislature. The question then becomes does a reviewing court have inherent power to review actions of lower tribunals absent a substantive grant of that right from the legislature?

The rule in Florida historically has been that a reviewing court is powerless to interfere with the length of a sentence imposed by the trial court so long as the sentence is within the limits allowed by the relevant statute. As we stated in Brown v. State, 152 Fla. 853, 13 So.2d 458 (1943):

If the statute is not in violation of the Constitution, then any punishment assessed by a court or jury within the limits fixed thereby cannot be adjudged excessive, for the reason that the power to declare what punishment may be assessed against those convicted of crime is not a judicial power, but a legislative power, controlled only by the provisions of the Constitution.

Id. at 858, 13 So.2d at 461 (quoting 15 Am.Jur. Criminal Law § 526 (1938). See also Stanford v. State, 110 So.2d 1 (Fla.1959); Walker v. State, 44 So.2d 814 (Fla.1950); Infante v. State, 197 So.2d 542 (Fla. 3d DCA 1967); Rohdin v. State, 105 So.2d 371 (Fla. 2d DCA 1958). This view is also consistent with the United States Supreme Court's treatment of this issue. In Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), the Court was confronted with the claim that separate sentences for separate offenses was violative of the double jeopardy clause. In rejecting this claim, the Court stated:

In effect, we are asked to enter the domain of penology, and more particularly that tantalizing aspect of it, the proper apportionment of punishment. Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility ... these are peculiarly questions of legislative policy. Equally so are the much mooted problems relating to the power of the judiciary to review sentences. First the English and then the Scottish Courts of Criminal Appeal were given power to revise sentences, the power to increase as well as the power to reduce them.... This Court has no such power.

Id. at 393 (citations omitted).

We find from our prior holdings that there is no inherent judicial power of appellate review over sentencing which would render chapter 86-273 violative of the separation of powers provisions of article II, section 3. Indeed, it clearly appears that both this Court and the United States Supreme Court have embraced the notion that so long as the sentence imposed is within the maximum limit set by the legislature, an appellate court is without power to review the sentence. In...