Smith v. State

Citation537 So.2d 982,14 Fla. L. Weekly 6
Decision Date05 January 1989
Docket NumberNo. 72862,72862
Parties14 Fla. L. Weekly 6 Alphonso P. SMITH, Appellant, v. STATE of Florida, Appellee.
CourtUnited States State Supreme Court of Florida

Michael E. Allen, Public Defender and Michael J. Minerva, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., James W. York, Deputy Atty. Gen., Walter M. Meginniss, Director, Criminal Appeals; and Richard E. Doran, Asst. Atty. Gen., Tallahassee, for appellee.

William N. Meggs, State Atty. and Raymond L. Marky, Asst. State Atty., Tallahassee, for amicus curiae.

GRIMES, Justice.

In the course of sentencing appellant, the trial judge declared the sentencing guidelines to be invalid. On appeal, the First District Court of Appeal certified that the trial judge's order required immediate resolution by this Court because the issue presented is of great public importance and has great effect on the proper administration of justice throughout the state. We have jurisdiction pursuant to article V, section 3(b)(5) of the Florida Constitution.

Appellant was convicted of the crimes of burglary of a dwelling and sexual battery that were committed on May 23, 1983. The sentencing took place on March 15, 1984, at which time appellant elected to be sentenced under the sentencing guidelines. The trial court departed from the guidelines recommendation and imposed consecutive sentences of fifteen years for burglary and ten years for sexual battery. The court of appeal held that only one of the six reasons stated for departure was valid. Because the appellate court was unable to find beyond a reasonable doubt that the sentences would have been the same had the trial court not considered the improper reasons, the case was remanded for resentencing. Smith v. State, 479 So.2d 804 (Fla. 1st DCA 1985), review denied, 488 So.2d 831 (Fla.1986). By the time appellant was resentenced on June 23, 1988, the single departure reason previously upheld had been rendered invalid by this Court's opinion in Scurry v. State, 489 So.2d 25 (Fla.1986). At this point, rather than sentence appellant within the recommended range of the guidelines, the trial court on motion of the state attorney ruled that section 921.001, Florida Statutes (1983), which created the guidelines, was unconstitutional. The trial court then reimposed the original sentence totalling twenty-five years. 1

The trial court stated as grounds for its ruling:

2. That the Florida Sentencing Guidelines Act, Section 921.001, Florida Statutes, is violative of Article II, Section 3, of the Florida Constitution. The Sentencing Guidelines Commission performs essentially executive and legislative powers; however, five members of said Commission are judicial officers appointed to the Commission by the Chief Justice. Article II, Section 3, prohibits any person belonging to one branch of government from exercising any powers appertaining to either of the other branches. It is the court's conclusion that by including judicial officers as members of the Commission to perform legislative functions, the Sentencing Guidelines Act violates Art. II, Sec. 3, of the Florida Constitution. U.S. v. Brodie, [686 F.Supp. 941 (D.D.C.1988) ] and U.S. v. Bogle, [693 F.Supp. 1102 (S.D.Fla.1988) ].

3. That the Sentencing Guidelines Act constitutes substantive law and must be enacted into law by the Legislature; however, the guidelines applicable to this case allegedly became law upon approval by the Supreme Court and not the Legislature. The Legislature was without authority to delegate to the judiciary the exercise of legislative powers, Cain v. State [State v. Cain ], 381 So.2d 1361, 1367 (Fla.1980); Husband v. Cassel, 130 So.2d 69 (Fla.1961) and the Supreme Court under Article V, Florida Constitution, is "powerless to promulgate a rule which had the effect of enacting ... a statute involving ... substantive law." Petition of Florida State Bar Ass'n, etc., 199 So. 57, 59 (Fla.1940); Benyard v. Wainwright, 322 So.2d 473 (Fla.1975).

In order to decide this case, it is advisable to consider the history of the sentencing guidelines. In 1977, the Chief Justice of the Supreme Court appointed a committee to explore alternatives to reduce unreasonable disparities in sentencing. This committee recommended the development and implementation of structured sentencing guidelines. Pursuant to chapter 79-362, Laws of Florida, and with the aid of a federal grant, the Office of the State Courts Administrator conducted a pilot program in four judicial circuits for the purpose of testing the feasibility of developing and implementing sentencing guidelines. Sundberg, Plante and Braziel, Florida's Initial Experience With Sentencing Guidelines, 11 Fla.St.U.L.Rev. 125 (1983). In chapter 82-145, Laws of Florida, the legislature referred to favorable reports of the pilot program and enacted section 921.001 which created the Sentencing Commission to make recommendations for the implementation of sentencing guidelines. Section 921.001 was amended the following year by chapter 83-87, Laws of Florida. Subsection (4) thereof read as follows:

Upon recommendation of a plan by the commission, the Supreme Court shall develop by September 1, 1983, statewide sentencing guidelines to provide trial court judges with factors to consider and utilize in determining the presumptively appropriate sentences in criminal cases. The statewide sentencing guidelines shall be implemented by October 1, 1983, unless the Legislature affirmatively delays the implementation of such guidelines prior to October 1, 1983, and shall be applied to all felonies, except capital felonies, committed on or after October 1, 1983, and to all felonies, except capital felonies and life felonies committed prior to October 1, 1983, for which sentencing occurs subsequent to such date where the defendant affirmatively selects to be sentenced pursuant to the provisions of this act. The commission shall, no later than 45 days prior to the convening of the Legislature in regular session each year, make a recommendation to the members of the Supreme Court, the President of the Senate, and the Speaker of the House of Representatives on the need for changes in the guidelines. Upon receipt of such recommendation, the Supreme Court may within 60 days revise the statewide sentencing guidelines to conform them with all or part of the commission recommendation. However, such revision shall become effective only upon the subsequent adoption by the Legislature of legislation implementing the guidelines as then revised.

On September 8, 1983, the Supreme Court promulgated the sentencing guidelines, including the grid schedules, in the form of rules. In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983). In a short opinion, this Court stated:

The Sentencing Guidelines Commission has proposed a rule of criminal procedure to implement sentencing guidelines in order to comply with the action of the legislature in its passage of section 921.001, Florida Statutes (1983). After publication of the proposed rule in The Florida Bar News, the Court received numerous comments and suggestions regarding the proposed rule. The commission considered these suggestions at its final meeting, August 26, 1983, made several changes, and transmitted its final version of the proposed rule to this Court.

We have considered the proposed rule and the comments and suggestions which have been received, and we hereby adopt, as rule 3.701 and form 3.988, the rule and forms appended to this opinion. The sentencing guidelines adopted herein will be effective for all applicable offenses committed after 12:01 a.m., October 1, 1983, and, if affirmatively selected by the defendant, to sentences imposed after that date for applicable crimes occurring prior thereto.

It is so ordered.

Id. at 849. The legislature made a minor amendment to section 921.001 in chapter 84-328, Laws of Florida. Referring to a minor revision to the rules made by the Supreme Court on May 8, 1984, this bill also contained the following language:

Section 1. Rule 3.701 and Rule 3.988, Florida Rules of Criminal Procedure, as revised by the Florida Supreme Court on May 8, 1984, are hereby adopted and implemented in accordance with s. 921.001, Florida Statutes.

Chapter 84-328 became effective on July 1, 1984.

Subsequent thereto, this Court has continued to make revisions to rules 3.701 and 3.988. In chapter 86-273, Laws of Florida, the legislature adopted our revision of December 19, 1985. However, in chapter 87-110, Laws of Florida, the legislature adopted only a portion of our April 2, 1987, revision of the rules. In 1988, the legislature fully approved our April 21, 1988, revision of the rules. Ch. 88-131, Laws of Fla. At the same time, the legislature has also continued to make substantive amendments to section 921.001.

Turning to the reasons given for holding the guidelines invalid, we believe that the concern over the fact that five judges have served on the Sentencing Guidelines Commission can be easily resolved. The trial court rested its ruling upon the separations of power clause contained in article II, section 3, of the Florida Constitution, which reads as follows:

SECTION 3. Branches of government.--The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

However, contrary to the trial court's analysis, the Sentencing Guidelines Commission was not performing "essentially executive and legislative powers." The commission was simply a body created by the legislature to study the disparity in sentencing and to make recommendations to the Supreme Court. The commission had no legislative or rulemaking authority whatsoever. The Florida Constitution does not prohibit judges from serving on legislative advisory commissions any more than it...

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