CHARLES REVERE BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charles Brown appeals his split sentence (8 years imprisonment plus 7 years probation) for arson, arguing it violates the Villery doctrine. The court holds that while the 1983 Correctional Reform Act statutorily abolished Villery's restrictions on split sentences, the new sentencing law cannot be applied retroactively to crimes committed before its effective date because doing so would violate the Ex Post Facto Clause.
The court holds that chapter 83-131 does abrogate the Villery holding and permits split sentences, but this change cannot be applied retroactively. Since the new sentencing alternatives are more onerous than the sentencing law in effect when the crime was committed, they violate the Ex Post Facto Clause when applied retroactively.
[1] A statute that alters penal provisions is unconstitutional if it is both retrospective and more onerous than the law in effect on the date of the offense.
[2] A statute enacted after the commission of a crime cannot be applied retroactively if it imposes a more onerous penalty.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the [ex post facto] clause if it is both retrospective and more onerous than the law in effect on the date of the offense”
Establishes the constitutional standard for evaluating retroactive application of sentencing statutes
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Join FLexlaw to unlock all legal intelligenceBrown was sentenced to eight years imprisonment followed by seven years probation for arson. The crime was committed prior to October 1, 1983. The tri…
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FRANK D. UPCHURCH, Jr., Judge.
Appellant Charles Brown appeals his sentence for arson contending it violates Villery v. Florida Parole & Probation Commission, 396 So. 2d 1107 (Fla.1981). Brown was sentenced to eight years imprisonment followed by seven years probation. The trial court overruled appellant’s objection to the split sentence stating that Villery had been statutorily abolished by the legislature when it enacted chapter 83-131, the Correctional Reform Act. of 1983. The Act created section 921.187, Florida Statutes, which reads in part as follows:
Disposition and sentencing; alternatives. —The following alternatives for the disposition of criminal cases shall be used in a manner which will best serve the needs of society, which will punish criminal offenders, and which will provide the opportunity for rehabilitation. The court may:
* * * * *
(7) Impose a split sentence whereby the offender is to be placed on probation upon completion of any specified period of such sentence, which may include a term of years or less. (emphasis added)
In addition, section 948.01(4) was amended by chapter 83-131 and renumbered as subsection (8). This subsection now reads as follows:
Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed, the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation or, with respect to any such felony, into community control upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant and direct that the defendant be placed upon probation or into community control after serving such period as may be imposed by the court. The period of probation shall commence immediately upon the release of the defendant from incarceration, whether by parole or gain-time allowances. (emphasis added)
While we have found no cases so holding, it appears that chapter 83-131 does abrogate the holding in Villery. We conclude, however, that the change cannot be applied retroactively.
The crime for which appellant was sentenced was committed prior to October 1, 1983, the effective date of the Act. In Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981), the United States Supreme Court held that “even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the [ex post facto] clause if it is both retrospective and more onerous than the law in effect on the date of the offense.” While it is often difficult to determine whether a sentencing alternative is more onerous than a previous one,1 here appellant would be subject to a longer term of imprisonment under the new split sentence alternatives in chapter 83-131. Since the new sentencing alternatives are more onerous to appellant, they should not have been applied and appellant should have been sentenced in accordance with Villery.
REVERSED and REMANDED.
DAUKSCH and ORFINGER, JJ„ concur. . See, e.g., Weaver v. Graham; Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937); Beech v. State, 436 So. 2d 82 (Fla.1983).
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Moore v. State, 469 So. 2d 947 (Fla. 5th DCA 1985)…d the offense, their application in this case violates the ex post facto clause. U.S. CONST., art. I, § 10; Art. I, § 10, Fla. Const.; Wilensky v. Fields, 267 So. 2d 1 (Fla.1972); Miller v. State, 468 So. 2d 1018 (Fla. 4th DCA 1985); Brown v. State, 460 So. 2d 427 (Fla. 5th DCA 1984); Carter v. State, 452 So. 2d 953, n. 3 at 954 (Fla. 5th DCA 1984). Even though we affirm the balance of this appeal, the sentence received exceeds the presumptive range for a “non-departing” sentence under the guidelines in effec…
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Poore v. State, 503 So. 2d 1282 (Fla. 5th DCA 1987)…rt, and (2) the defendant was not given credit for time served. . § 958.14, Fla.Stat. (1985). . § 958.05(2), Fla.Stat. (1983). . Van Tassel v. Coffman, 486 So. 2d 528 (Fla.1985); Andrews v. State, 462 So. 2d 18 (Fla. 2d DCA 1984); Brown v. State, 460 So. 2d 427 (Fla. 5th DCA 1984).…1 / 2
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Shively v. State, 474 So. 2d 352 (Fla. 5th DCA 1985)…lacing appellant on probation. If a statute alters penal provisions by the grace of the legislature, it violates the ex post facto clause if it is both retrospective and more onerous than the law in effect on the date of the offense. Brown v. State, 460 So. 2d 427 (Fla. 5th DCA 1984) citing Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981). In this case the amendment is more onerous because the court is allowed to impose a maximum incarceration period under the guidelines and, at the sam…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weaver v. Graham, 450 U.S. 24 (U.S. 1981)
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Lindsey v. Washington, 301 U.S. 397 (U.S. 1937)
- Beech v. State, 436 So. 2d 82 (Fla. 1983)