DANNY LEE COCHRAN, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court held that when a defendant sentenced after October 1, 1983 for a pre-1983 crime affirmatively selects sentencing under the guidelines, the record need not affirmatively show a knowing and intelligent waiver of parole eligibility. The court rejected the argument that parole eligibility is a constitutional right requiring explicit waiver protections.
No. An affirmative selection by the defendant to be sentenced under the guidelines is sufficient; the record need not affirmatively demonstrate a knowing and intelligent waiver of parole eligibility. This is because parole is a matter of legislative grace, not a constitutional right, and differs fundamentally from a guilty plea which implicates federal constitutional rights.
[1] A defendant who committed a crime before October 1, 1983, and affirmatively selects sentencing pursuant to the sentencing guidelines, does not need to knowingly and intel…
[2] Parole is a matter of legislative grace, not a constitutional right.
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“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.”
Establishes that parole is a matter of legislative grace, not a constitutional right
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Join FLexlaw to unlock all legal intelligenceIn 1977, Cochran was charged with uttering a false prescription, pleaded guilty, and was sentenced to five years' probation. In 1984, after the state …
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McDonald, justice.
The First District Court of Appeal has certified the following question as being of great public interest:
When a defendant who committed a crime before 1 October 1983 affirmatively selects sentencing pursuant to the sentencing guidelines, must the record show the defendant knowingly and intelligently waived the right to parole eligibility?
Cochran v. State, 460 So. 2d 542, 543 (Fla. 1st DCA 1984). We have jurisdiction pursuant to article V, section 3(b)(4) of the state constitution. We agree with the district court that an affirmative selection is sufficient and answer the question in the negative.
In 1977 the state charged Cochran with uttering a false prescription. He pleaded guilty, and, after adjudicating him guilty, the trial court sentenced him to five years’ probation. In 1977 the state filed an affidavit of violation of probation, charging five violations. In 1984 the state filed an amended affidavit, charging eight new instances of probation violation.
At his 1984 probation revocation hearing Cochran admitted the allegations in the amended affidavit, and the court revoked his probation. The court also told Cochran that, if he elected to be sentenced under the sentencing guidelines, the court would depart from the recommended sentence of any nonstate prison sanction. At sentencing Cochran elected to be sentenced under the guidelines. The trial court departed from the recommended sentence and imposed a five-year prison term. On appeal the district court affirmed the sentence and certified the question set out above.
Cochran argues that his sentence must be vacated because the record does not show that, by electing to be sentenced under guidelines, he knowingly and intelligently waived his eligibility for parole. The district court considered this same argument and found that an affirmative selection is all that is required. We agree.
Florida’s sentencing guidelines do not provide for parole. § 921.001(8), Fla. Stat. (1983); Fla.R.Crim.P. 3.701 b.5. Cochran would have us rule that prisoners have a constitutional right to parole eligibility. In reality, however, parole is a matter of legislative grace. As stated by the United States Supreme Court: “There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-04, 60 L.Ed.2d 668 (1979).
Waiving eligibility for parole, therefore, is not comparable to a guilty plea, which implicates several federal constitutional rights, i.e., the privilege against self-incrimination, the right to trial by a jury, and the right to confront one’s accusers, and which requires a voluntary and knowing waiver. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A defendant sentenced after October 1, 1983 for a crime committed before that date only need choose or “affirmatively select” to be sentenced under the guidelines. Presumably, he knows the consequences thereof and, thus, the record need not affirmatively show a knowing and intelligent waiver of parole eligibility.*
As a second point, Cochran argues that the trial court lacked jurisdiction to revoke his probation because the state filed the amended affidavit of probation violation after the expiration of his probationary period. Cochran admitted the truth of the amended charges before the trial court and did not object to the state’s using those charges. Moreover, Cochran failed to raise this point before the district court. We decline to consider this issue, which has been presented for the first time at a very late stage in this case. Trushin v. State, 425 So. 2d 1126 (Fla.1982).
We therefore answer the certified question in the negative and approve the district court’s opinion.
It is so ordered.
BOYD, C.J., and ADKINS, OVERTON, EHRLICH and SHAW, JJ., concur. *
Such a showing, however, would be beneficial for appeals on post-conviction collateral attacks.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Whitehead v. State, 498 So. 2d 863 (Fla. 1986)…cing guidelines, must the record show the defendant knowingly and intelligently waived the right to parole eligibility? Id. at 780. We have jurisdiction. Art. V, § 3(b)(4), Fla.Const. This Court answered the certified question in Cochran v. State, 476 So. 2d 207 (Fla.1985). Thus, we approve the district court’s holding that the record does not have to show that a defendant knowingly and intelligently waived the right to parole eligibility if it shows that he affirmatively selected the guidelines. We disappr…
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Kayle Barrington Bates v. State, 750 So. 2d 6 (Fla. 1999)…ent with prevailing legislative policy, this Court has consistently recognized that a defendant can waive constitutional protections. See Bowles v. Singletary, 698 So. 2d 1201 (Fla.1997); Melvin v. State, 645 So. 2d 448 (Fla.1994); Cochran v. State, 476 So. 2d 207 (Fla.1985). In fact, Florida’s extensive sentencing guidelines scheme has always permitted a defendant convicted of a noncapital offense the option of being sentenced under the prevailing sentencing law or sentenced under the law prevailing at the t…
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Bowles v. Singletary, 698 So. 2d 1201 (Fla. 1997)…ea of sentencing guidelines, where we have held that an affirmative election to accept a newly created program waives any potential ex post facto argument the petitioner may have had. See Brown v. State, 487 So. 2d 1073 (Fla.1986); Cochran v. State, 476 So. 2d 207 (Fla.1985); cf. Joyner v. State, 594 So. 2d 328 (Fla. 2d DCA 1992)(holding that acceptance of community control constituted waiver of right to contest supervision upon revocation), approved, 618 So. 2d 205 (Fla.1993). Both the beneficial opportunit…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Boykin v. Alabama, 395 U.S. 238 (U.S. 1969)
- Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1 (U.S. 1979)
- Trushin v. State, 425 So. 2d 1126 (Fla. 1982)
- Cochran v. State, 460 So. 2d 542 (Fla. 1st DCA 1984)