Glover v. State

• Decision Date: 28 August 1985
• Docket Number: No. AW-173,AW-173
• Citation: 10 Fla. L. Weekly 2027,474 So.2d 886
• Parties: 10 Fla. L. Weekly 2027 Charles GLOVER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 886

474 So.2d 886

10 Fla. L. Weekly 2027

Charles GLOVER, Appellant, v. STATE of Florida, Appellee.

No. AW-173.

District Court of Appeal of Florida,

First District.

Aug. 28, 1985.

Michael E. Allen, Public Defender and Terry Carley, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen. and Wallace Allbritton, David P. Gauldin, Asst. Attys. Gen., Tallahassee, for appellee.

BARFIELD, Judge.

Charles Glover appeals a life sentence imposed by the trial court in a departure from the recommended guidelines sentence. Appellant contends the trial court erred (I) in failing to inform him fully of the possible sentence he could receive under the guidelines, (II) in failing to provide clear and convincing reasons for departing from the sentencing guidelines, and (III) in failing to provide a written statement of the reasons for departure from the sentencing guidelines. We reverse and remand for resentencing on points two and three, but also deem appropriate some discussion of appellant's first point.

Appellant was charged by information with armed robbery of a Winn-Dixie grocery store in Panama City, Florida. Appellant initially entered a plea of not guilty. Eventually, after filing motions for continuance and waiving his right to speedy trial, appellant entered a guilty plea. The Waiver and Plea form executed by appellant indicates that appellant understood that "the maximum penalty could be Life" if he was "not sentenced under the Sentencing Guidelines eff. 10-1-83." ¹ Paragraph six of the Waiver and Plea form set out the following plea bargain provisions:

6. No person, officer, agent or any official of any branch of Government nor my attorney, has made any promise or suggestion of any kind to me, or anyone else to my knowledge, that if I would plead guilty to these charges that I would receive a light sentence, probation or other form of leniency, except as set forth below in the following plea bargain agreement: No retention of jurisdiction by Court; No enhancement of penalty pursuant to Habitual offender; option to be Sentenced under Guidelines.

Appellant later executed a form entitled "Election to Be Sentenced Under Florida Sentencing Guidelines." Appellant's score sheet reflects a total of 180 points, with a recommended sentence range of seven to nine years. The trial court sentenced appellant to imprisonment for natural life, with credit for 412 days jail time. As grounds for sentencing in excess of the recommended guidelines sentence, the trial court stated orally:

Mr. Glover, I've gone outside the guidelines for the following reasons; Less than a month before you had been involved in the same activity in Leon County. You've already been sentenced for that, I'm aware of that.

You've been given a tremendous break by the plea bargaining arrangement with the state and I think that the facts and circumstances that I mentioned to Mr. Johnson [co-defendant] would apply to you. Not only the danger to yourself and your co-defendant but to the other people in the store when this handgun was used.

It was a huge amount of money taken and there was danger to the manager and the other two employees in that store. It was beyond the run-of-the-mill robbery in my view. For that reason I've gone outside of the guidelines. ²

Counsel for appellant objected to the court's departure from the guidelines, pointing out to the court that prior convictions had already been factored into the score total, that no physical injuries were inflicted during the robbery, and that all of the money taken in the robbery had been recovered.

ISSUE I

The first issue raised by appellant is the failure of the trial court to inform him of the ramifications of entering a guilty plea under the sentencing guidelines. Appellant contends that the trial court should have informed him that his selection of guideline sentencing would render him ineligible for parole, as such ineligibility for parole is a violation of the ex post facto clauses of the federal and Florida constitutions when applied to persons whose offenses were committed prior to the effective date of the guidelines. Appellant has cried "foul" because his life sentence means he will spend the rest of his natural life in prison, while if he had parole eligibility he might get out of prison at some date in the future. This sounds as if there may have been a basis for raising a question of denial of equal protection of the laws, an issue not raised by the parties to this appeal. We find appellant's "ex post facto" argument, however, to be without merit.

The term "ex post facto" literally translates as "after the fact." Black's Law Dictionary. Whether a law is "ex post facto" with respect to the commission of a specific offense depends upon when the law was passed. If passed after the commission of the offense, it is as to that offense "ex post facto," but whether it is in the class of "ex post facto" laws forbidden by the Constitution may depend on other matters. Kring v. State of Missouri, 107 U.S. [17 Otto] 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883). The classic definition of an "ex post facto" law prohibited by the United States Constitution appears in Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798):

1st. Every law that makes an action done before the passing of the law; and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

Although there seems to be some debate among legal historians regarding the question whether "ex post facto" was intended by the founding fathers to encompass all retrospective legislation, both civil and criminal, Justice Chase's opinion in Calder v. Bull established that the "ex post facto" prohibition was inserted to prevent the federal and state legislatures from passing certain types of retrospective criminal laws only. Justice Chase appears to have been of the opinion that such laws were inherently prohibited, even if they had not been expressly restrained by the provisions of the Constitution. Justice Paterson agreed that the words "ex post facto" have a technical meaning when applied to a law and, in legal phraseology, refer to crimes, pains and penalties. Justice Iredell concurred that the true construction of the prohibition extends to criminal, but not to civil cases because, "It is only in criminal cases, indeed, in which the danger to be guarded against, is greatly to be apprehended." Id. at 399.

By stretching the categories in Calder, the court held in Kring v. State of Missouri, that a change in criminal procedure amounted to an ex post facto law prohibited by the Constitution. The Court concluded that a change in procedure "alter[ing] the situation of a party to his disadvantage" could not be applied to crimes committed prior to the change without violating the ex post facto prohibition. 107 U.S. at 228. In a series of later cases, the Court sustained the application of procedural Later Supreme Court cases apparently ignored Kring and did not construe Thompson as establishing any significant restraint on legislatures. In Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925), the Court noted:

                statutes in trials for crimes allegedly committed before the statutes were enacted. 3  In these cases, the court stated that the defendant had not been deprived of a substantial or vested right, but did not examine the resulting disadvantage to the defendant.  In Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), however, the court again applied the prohibition to a procedural change.  Thompson's crime was committed while Utah was a territory governed by federal law guaranteeing a trial by a jury of twelve.  Before the trial, Utah was admitted to the Union, and Thompson was convicted under state law requiring only eight jurors.  In reversing the conviction, Justice Harlan, writing for the Court, was apparently untroubled by the logical implication of the decision, that rights were vested in a defendant upon commission of a wrong.  The kind of disadvantage to the defendant that renders a procedural change ex post facto, the Court generalized, is limited to those "materially impair[ing] the right of the accused to have the question of his guilt determined according to the law as it was when the offense was committed."  170 U.S. at 351, 18 S.Ct. at 623
                

Just what alterations of procedure will be held to be of sufficient moment to transgress the constitutional prohibition cannot be embraced within a formula or stated in a general proposition. The distinction is one of degree. But the constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation, and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance. (cites omitted)

One writer ⁴ has delineated four basic problems with retrospective laws, which generally seem to underlie the ex post facto prohibition: (1) that such a law gives no fair warning that the act is prohibited and the extent of the punishment which will be imposed; (2) that such a law frustrates reliance on existing laws; (3) that such a law does not serve the function of criminal laws (to deter crime by the threat of punishment); and (4) that such a law presents a potential for legislative abuse (where the result to be achieved by the legislation is politically motivated). Accordingly, it has been suggested that a court should consider the following factors in deciding whether a law is proscribed by the ex post facto prohibition: first,...