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Business Observer Friday, Jul. 23, 2004 17 years ago

Confusion Reigns

A recent U.S. Supreme Court decision over sentencing guidelines affects Tampa Bay area state courts.

Confusion Reigns

A recent U.S. Supreme Court decision over sentencing guidelines affects Tampa Bay area state courts.

By David R. Corder

Associate Editor

Right away Deborah S. Moss sensed an opportunity. Colleagues urged the Clearwater criminal defense attorney to read the U.S. Supreme Court decision in Blakely v. Washington (No. 02-1632). They suggested the opinion on Washington State's sentencing guidelines might apply to her defense of Louis S. Mevec, the Largo father convicted seven days earlier in Pinellas County Circuit Court on a felony charge of culpable negligence. It was his handgun his 14-year-old son, Louis, used in the accidental shooting death of 12-year-old Sean Caroline II.

At Mevec's sentencing on July 16, Moss asked Circuit Judge Brandt C. Downey III to weigh the impact of Blakely v. Washington. Although he rejected her motion, Moss joined the ranks of attorneys nationwide citing the June Supreme Court decision in state and federal courts.

In a 5-4 ruling, the Supreme Court rejected a Washington trial court judge's decision to sentence a criminal defendant beyond a legislative-enacted maximum prison term. Writing for the majority, Justice Antonin Scalia argued that only juries may enhance a defendant's maximum sentence and then only beyond a reasonable doubt of all available facts. Otherwise, Scalia wrote, it's a violation of the defendant's right to due process under the Sixth Amendment of the U.S. Constitution.

The opinion has caused considerable debate in the legal community. It follows the Supreme Court decision four years ago in Apprendi v. New Jersey (530 U.S. 466). That case, too, invalidated a judge's decision to sentence a defendant beyond a statutory maximum prison term. Proponents have cited each case as cause to challenge legislative-enacted mandatory prison sentences.

To many in the legal community, the decision means criminal defendants deserve a separate jury trial when it comes to their sentencing. To others, it means prosecutors must clearly state factual reasons for enhanced sentencing up front in a criminal information or indictment or in a plea agreement.

"I think Blakely v. Washington has opened up a whole new area of litigation," says Moss, a Carlson & Meissner PA lawyer, board certified by the Florida Bar in criminal trial law. "Defense attorneys need to keep their eyes open for these issues dealing with statutory maximums when the jury has to get involved as far as making special findings. It leaves a lot of gray area open."

Because of the uncertainty, Moss adds, criminal defense attorneys now must press the issue.

"We're not sure exactly how to apply this to a lot of cases in state court, but you've got to make the motions," she says. "Those motions will be ruled on, and there will be appeals on either side as the (trial) court rules and the appellate courts make law. Another case with different versions of the fact may have those issues. I'm sure it's happening every day."

Since this is such a new development, little information is available about the potential impact of the Supreme Case on criminal cases in Florida. Sixth Circuit Chief Judge David Demers, for instance, would not comment about the case; 13th Circuit Chief Judge Manuel Menendez was unavailable for comment. The matter has not yet stirred official action from either the Florida Bar, the state Supreme Court or the judiciary committees in the state Legislature, say spokespersons for each of those entities.

But the Supreme Court action resonates throughout the federal courts, says Chief Judge Patricia C. Fawsett of the U.S. District Court for the Middle District of Florida. She acknowledges the Supreme Court ruling has caused confusion among judges.

Since each judge presides independently, Fawsett says, some of the judges in the district have not deviated from existing federal sentencing guidelines. Perhaps, she says, others are considering separate sentencing trials by jury. Still others are postponing sentences until they receive further guidance.

Nevertheless, Fawsett says the judges in the Middle District adhere closely to precedents set by the 11th Circuit Court of Appeals, first, then the other circuit court of appeals and the Supreme Court.

"In this case (Blakely), we have conflicting precedent (in the 11th Circuit)," she adds. "In the federal system we have to follow the opinions of our circuit, the 11th Circuit. It has not directly issued an opinion on this subject."

That apparently is the case with Middle District judges Richard A. Lazzara of Tampa and John E. Steele of Fort Myers, says Tampa criminal defense attorney James E. Felman.

"It's a very confusing situation," says Felman, a partner at Kynes Markman & Felman PA. "I had heard that in the Middle District of Florida Steele and Lazzara have essentially ruled, in light of existing precedent in the 11th Circuit Court of Appeals, that Blakely doesn't apply to federal sentencing."

Felman, too, suspects Blakely could pose an issue for the Florida state courts. "There certainly are some state guidelines that are constitutionally infirm in light of Blakely," he adds.

Uncertainty accounts for why Tampa attorney Timothy J. Fitzgerald sought a continuance of a client's sentencing date in federal court the day after the Supreme Court issued its decision. The past president of the Hillsborough County Association of Criminal Defense Lawyers expected to file a brief the week of July 19 and raise Blakely as an issue on behalf of criminal defendant Ernest C. Strong, who pleaded guilty earlier this year to a count of conspiracy to distribute a controlled substance. U.S. District Judge James S. Moody Jr. rescheduled Strong's sentencing date to July 23.

"The sentencing scheme has dramatically changed in the last month," says Fitzgerald of Farmer & Fitzgerald PA. "Unfortunately, we have to convey the uncertainty to the client. Two different judges in courtrooms next to each other may look at Blakely in different ways. It's true."

Members of the Tampa Bay chapter of the Federal Bar Association were scheduled to meet July 22 for a roundtable discussion about the impact of Blakely. The group, which met after GCBR's deadline, also invited federal judges and assistant U.S. attorneys.

Fitzgerald is among those who think Blakely could apply to state sentencing.

"I think it does impact Florida," he says. "There are a few facts that can increase the sentence, the minimum portion of the sentence, including victim injury and whether the offense is a drug-trafficking offense. Those may be impacted by the Blakely decision."

So far Clearwater criminal defense attorney Denis de Vlaming hasn't had an opportunity to cite Blakely on behalf of a client.

"It doesn't appear it's having as much affect with us in state court," says de Vlaming, a past president of the Florida Association of Criminal Defense Lawyers. "But we're always looking for opportunities if it benefits the client."

In de Vlaming's opinion, the Blakely decision creates opportunities only if the facts fit an individual case.

"Absolutely, I would raise it before the trial," he says. "If it was something that Blakely would require a hearing about, I would then make the request to preserve that at hearing."

In the meantime, Felman says, any resolution to the confusion over the Blakely decision depends on the actions of either the Congress or the Supreme Court.

The Senate Judiciary Committee heard extensive testimony about the matter July 13 and published much of it on its Internet Web site (

"The first thing that we'll know, probably by the end of the week, is whether Congress will enact any immediate Legislation," says Felman, a former co-chairman and member of the Practitioner's Advisory Group to the U.S. Sentencing Commission. "There are a number of legislative proposals. We'll know whether Congress is going to pass a law in a week or so.

"Then (the question is whether) the Supreme Court will grant review to Blakely as it applies to the federal guidelines, whether they're going to extend that reasoning to the federal government," Felman adds. "I still don't know what is going to happen this week. So I'll just do only what is in my client's best interest."

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