Smith v. State

Decision Date02 April 1992
Docket NumberNo. 76235,76235
Citation598 So.2d 1063
Parties17 Fla. L. Weekly S213 Rhoda SMITH, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

Bennett H. Brummer, Public Defender, and Marti A. Rothenberg, Asst. Public Defender, Miami, for petitioner.

Robert A. Butterworth, Atty. Gen., and Monique T. Befeler, Asst. Atty. Gen., Miami, for respondent.

BARKETT, Justice.

We have for review State v. Smith, 592 So.2d 1100 (Fla. 3d DCA 1990), in which the district court certified the following as a question of great public importance:

Should Pope v. State [, 561 So.2d 554 (Fla.1990),] be applied retrospectively to sentences imposed prior to April 26, 1990?

Smith, 592 So.2d at 1101. 1 We answer the certified question in the affirmative and quash the decision below.

On December 1, 1989, the circuit court entered into a plea colloquy with petitioner Rhoda Smith and agreed to give her a "last chance" on probation on the condition that she complete a drug rehabilitation program. Consequently, Smith agreed to plead guilty, and the court imposed sentence. The probation sentence constituted a downward departure, and, during the plea colloquy, the court directed the State to write on the scoresheet that the downward departure was based on Smith's drug dependency. The State replied that it had not yet prepared a scoresheet. The State objected to the departure sentence, but it agreed to prepare a scoresheet with the court's reason for departure as directed by the court. However, the scoresheet ultimately prepared by the State in this case did not contain the court's reason for departure. The scoresheet was not approved by either the court or defense counsel. The State appealed the sentence.

During the district court's consideration of Smith's appeal, this Court decided Pope, in which we held "that when an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines." Pope, 561 So.2d at 556. Consequently, finding no written reason for departure in the record, the district court below reversed and remanded for resentencing pursuant to Pope, or in the alternative giving Smith the option to withdraw her plea. The court then certified the question presented here.

In Ree v. State, 565 So.2d 1329 (Fla.1990), modified, State v. Lyles, 576 So.2d 706 (Fla.1991), we held that trial courts must produce contemporaneous written reasons when they depart from the guidelines. Of particular significance for the disposition of this case is that on rehearing in Ree, we held, without analysis, that Ree would apply prospectively only. Id. at 1331. 2 Both Smith and the State argue that Pope should follow the same path as Ree because the rules in Pope and Ree are so closely related in subject, purpose, and application.

We are troubled by the inconsistency or lack of clarity in various decisions of this Court and others concerning the application of the prospectivity rule in this context. For example, we applied the Ree rule retrospectively to Ree himself, quashing the district court's opinion, which, among other things, had allowed a departure sentence without contemporaneous written reasons. However, we disallowed similarly situated defendants in other cases to benefit from the same rule. In State v. Williams, 576 So.2d 281 (Fla.1991), we approved a departure sentence that had been imposed without contemporaneous written reasons because the sentence had been imposed before Ree, even though Williams' appeal was not final when Ree was issued. In Lyles, 576 So.2d at 706, we expressly held that Ree could not apply to benefit Lyles retrospectively even though Lyles' case was still on appeal when the final decision in Ree was issued.

In contradiction, and without explanation, we have treated Pope errors differently in two cases. The defendant in Pope benefitted from retrospective application in that we quashed the district court's decision that had erroneously authorized the trial court to depart from the guidelines in resentencing after no valid contemporaneous written reasons had been given to justify the original departure sentence. Likewise, we applied Pope retrospectively in Robinson v. State, 571 So.2d 429 (Fla.1990).

The inconsistent application of retrospectivity has much precedent. As the United States Supreme Court observed, this historically has been one of the most confusing and unprincipled areas of jurisprudence. See, e.g., Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); United States v. Johnson, 457 U.S. 537, 546, 102 S.Ct. 2579, 2585, 73 L.Ed.2d 202 (1982) (quoting Desist v. United States, 394 U.S. 244, 258, 89 S.Ct. 1030, 1038, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting)) ("coalitions favoring nonretroactivity had realigned from case to case, inevitably generating a welter of 'incompatible rules and inconsistent principles' ").

The old common-law rule, bolstered by decisions of the Supreme Court, was to give retrospective effect to changes in decisional law subject to certain limited exceptions. Johnson, 457 U.S. at 542, 102 S.Ct. at 2582. In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Court adopted a policy directing courts to "weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Id. at 629, 85 S.Ct. at 1738. Significantly, the decision in Linkletter was limited to collateral review only, holding that the new rule established in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), would not be applied retrospectively to state decisions that had become final before Mapp was decided.

However, the Court subsequently changed the Linkletter policy by applying retrospectivity on a case-by-case basis both to convictions that were final and convictions that were pending on direct review. For example, the decision in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), instructed courts to review in each instance "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." Id. at 297, 87 S.Ct. at 1970; see Griffith, 479 U.S. at 320, 107 S.Ct. at 712.

The ad hoc approach in nonfinal convictions did not work. As the Court later noted in Johnson, 457 U.S. at 544-46, 102 S.Ct. at 2583-85, case-by-case application led to a series of seemingly arbitrary decisions. In some cases a rule was held to apply retrospectively to the party litigating the claim on direct review, but not to others who were similarly situated. In other cases, the rule was applied to parties in future claims but not to the one who litigated the case where the rule was established. For example, in Lee v. Florida, 392 U.S. 378, 88 S.Ct. 2096, 20 L.Ed.2d 1166 (1968), the Court established and retrospectively applied to Lee's case a rule that evidence obtained in violation of a federal statute cannot be admitted into evidence at trial. 3 Later that same year, in Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968), the Court denied to Fuller the benefit of the Lee rule by holding that Lee applies prospectively only. See Desist, 394 U.S. at 256 n. 1, 89 S.Ct. at 1038 n. 1 (Harlan, J., dissenting).

Recognizing the problem, the Court in Johnson "shifted course" again, Griffith, 479 U.S. at 321, 107 S.Ct. at 712, and adopted with one exception the principles Justice Harlan enunciated in his dissent to Desist, 394 U.S. at 256-69, 89 S.Ct. at 1038-44. The Court in Johnson held that its decisions must be given retrospective effect in all cases where convictions are not yet final, unless the decision announced a "new rule" of law that was a "clear break" with past precedent. See Johnson, 457 U.S. at 549, 102 S.Ct. at 2587; see also Griffith, 479 U.S. at 324-26, 107 S.Ct. at 714-15. However, the "clear break" exception to the Court's policy created more problems, because it had the effect of denying the benefit of a change in the law in disparate fashion. Griffith, 479 U.S. at 324-26, 107 S.Ct. at 714-15.

Thus, the Court in Griffith readdressed the problem and found that the need for fairness and equal treatment compels a bright-line rule to control the retrospective application of its criminal law decisions in nonfinal criminal cases. Giving full force to Justice Harlan's Desist dissent, the Court abandoned the "clear break" exception and held that all of its decisions applying or announcing rules of criminal law must be applied retrospectively to all cases, state or federal, that are pending on direct review or not yet final. Griffith, 479 U.S. at 328, 107 S.Ct. at 716.

The Griffith rule is consistent with many decisions of this Court. For example, in Bundy v. State, 471 So.2d 9 (Fla.1985), cert. denied, 479 U.S. 894, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986), the Court held that hypnotically refreshed testimony is per se inadmissible in criminal trials in this state. We went on to expressly conclude that the new rule would be prospective only. Nonetheless, the Court applied that rule retrospectively to Bundy's direct appeal and ruled that it would be applied retrospectively to "any conviction presently in the appeals process." Id. at 18-19; see also, e.g., Wheeler v. State, 344 So.2d 244, 245 (Fla.1977) (reversing conviction where standard jury instruction had changed subsequent to trial because "decisional law in effect at the time an appeal is decided governs the issues raised on appeal, even when there has been a change of law since the time of trial").

We are persuaded that the principles of fairness and equal treatment underlying Griffith, which are embodied in the due process and...

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