Blakely Sentencing Guidance Does Not Apply Retroactively, Florida High Court Rules – State v. Johnson

July 3, 2013 by David S. Seltzer

The U.S. Supreme Court has issued a series of rulings in recent years on sentencing law. Cases like Apprendi v. New Jersey and Blakely v. Washington are wins for defendants, permitting people already in prison to petition for sentence reductions where appropriate. One case like this is the Florida Supreme Court’s recent ruling in State v. Johnson. Sirron Johnson was convicted of armed kidnapping, armed robbery and armed sexual battery. He was sentenced to 48 years in prison, with that sentence becoming final in 2000 and reiterated on re-sentencing. This was a substantial upward departure from the sentencing range of 9.6 to 16 years. In this case, Johnson petitioned under Blakely for a new sentence, but the Florida Supreme Court ruled the decision cannot apply retroactively.

Johnson’s crimes took place in 1995, but his sentence became final in October of 2000, a few months after the U.S. Supreme Court issued Apprendi. That case prohibited judges from increasing sentences based on any fact that was not decided by a jury or admitted to in a plea agreement. Shortly after his conviction, Johnson petitioned for re-sentencing, arguing that the upward departure in his sentence exceeded the statutory maximum as defined by Apprendi. The trial court re-sentenced him to 40 years on two of the counts and 48 years on the armed robbery count, still a vast upward departure. In 2004, the Supreme Court issued Blakely, which held that for the purposes of applying Apprendi, state sentencing guidelines are the “statutory maximum.” Johnson again petitioned for re-sentencing.

The trial court denied Johnson’s motion, but the First District Court of Appeal reversed, finding Blakely applies retroactively to any case re-sentenced after Apprendi. The Florida Supreme Court ultimately reversed again. As a rule, Supreme Court cases apply to any case that is not yet final or pending on direct review. Blakely was not a clarification of Apprendi, as the appeals court said; the Florida Supreme Court said Blakely made new law on its own. Though making new law is one part of the test for retroactivity, the high court said, Blakely was not fundamentally significant enough to require retroactivity. Violation of the new rule is often held harmless, the court noted, and courts have relied extensively on the old rule, which weighs against making the new one retroactive. In addition, applying it retroactively would change the administration of justice, the court said, another factor against making it retroactive. Thus, it quashed the appeals court and restored the denial of Johnson’s motion.

I must agree with the Florida Supreme Court that applying Blakely retroactively would change the administration of justice—but that’s not necessarily a bad thing. If the U.S. Supreme Court has ruled that routine sentencing decisions deny defendants the right to a jury trial, it seems to me that justice requires correcting these routine sentencing decisions. The difference between 16 years in prison and 48 years in prison is not small, as my clients who are facing serious criminal charges, and their families, can confirm. If 32 of those years are the result of an illegal sentence, I believe that the defendant should have a chance to make his case.

Based in downtown Miami, Seltzer Law, P.A., represents clients from across Florida who are charged with serious crimes. For a free consultation, call us anytime—24 hours a day and seven days a week—at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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Courts Must Apply Sentencing Guidelines Effective When Crime Committed, Not When Sentenced – Peugh v. U.S.

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