Prison Releasee Reoffender Brief

Author:  Heather L. Gatheridge

Email:  hlgatheridge@gmail.com;  Cell:  218-779-2646

Contributors:  Christopher Aikens, Dorian Mackeroy, Joshua Lingebach and over 200 study participants currently incarcerated under the PRR.

Original brief written in 2020; amended in August 2022

Abstract: 

In May of 1997, the Florida legislature passed HB 1371 which created the “Prison Releasee Reoffender Act.” This outline includes, but is not limited to, the definition and history of this Act, explaining in great detail why this Act is draconian, egregious and wholly unnecessary, the catalyst for the drafting, and ultimate passing, of this bill, which was contrary to the reasoning the legislature provided as to why this Act was necessary; how the Act violates various Articles of the Florida Constitution; and the exorbitant costs associated with the implementation of this Act since its inception.

Definition:

The Prison Releasee Reoffender Act (hereafter PRR) under 775.082(9)(a)1 is a mandatory maximum statute.[1] In its original form, to qualify to be sentenced as a PRR an individual would have committed, or attempted to commit, any one of the enumerated offenses[2] within 3 years after being released from a state correctional facility operated by the Department of Corrections, or a private vendor.

If the state attorney determines that a defendant is a PRR as defined in subparagraph 1, the state attorney may seek to have the court sentence the defendant as a PRR.  Upon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a PRR as defined in this section, the defendant is not eligible to be sentenced under the usual sentencing guidelines and the court must sentence the individual under the PRR guidelines.[3]  The burden of proof needed to qualify an individual as a PRR is simply a preponderance of the evidence and includes a determination of the defendant’s last date of release from a correctional institution/prison sentence in order to show it was within 3 years of the most recent offense, and whether the defendant has committed one of the enumerated offenses.  A defendant sentenced under the PRR must serve 100% of the sentence and is not eligible for gain time, parole, control release, or any form of early release.[4]

History:

Although the legislature in 1997 utilized “public safety” as the catalyst for drafting the PRR by stating, “WHEREAS, the people of this state and the millions of people who visit our state deserve public safety and protection from violent felony offenders who have previously been sentenced to prison and who continue to prey on society by reoffending,”[5] this section will prove that the catalyst was more so due to overcrowding and gain time litigation, starting with this statement which precedes the earlier statement with regard to public safety, “WHEREAS, recent court decisions have mandated the early release of violent felony offenders.”[6]

Since the early 1970’s, Florida has had a severe prison overcrowding problem which resulted in litigation (specifically, Costello v. Wainwright, 397 F. Supp. 20,22 (M.D. Fla.1975)) to not only ease the overcrowding, but to ensure the Department of Corrections (hereafter DOC) provide adequate medical care (the inadequate care was felt to be, in part, due to overcrowding).  As an example of the severity of the overcrowding during that time, in 1973 the normal capacity for the existing institutions of the Division of Corrections was 7,000 with an “emergency” capacity of 8,300. The actual inmate population on February 8, 1973, was approximately 10,300. The Lake Butler Reception and Medical Center, which was designed for 700 inmates, actually had a population of 1,300.[7] 

Pursuant to Costello v. Wainwright, the DOC entered into a consent decree that provided for the capping of the prison population within certain limits.  Over the years, instead of employing means to decrease the prison population to relieve the overcrowding, and still be in compliance with Costello, the Florida legislature decided instead to enact various gain time statutes related to overcrowding.  In 1983, the legislature enacted an Emergency Gain Time statute[8] which did not become active until prison overcrowding surpassed 98% of lawful capacity.  On June 2, 1986, the triggering threshold percentile was increased to 99% capacity.[9] On February 5, 1987, the legislature enacted the Administrative Gain Time Statute[10] which superseded the Emergency Gain Time statute due to a triggering threshold percentile of 98%, which was lower than the 99% for Emergency Gain Time.  The Emergency Gain Time statute was repealed effective June 17, 1993[11] and no credits were ever given under this statute.  Under the Administrative Gain Time statute, DOC awarded a total of 720 days to individual prisoners between February of 1987 and June of 1988.  Effective July 1, 1988, the Administrative Gain Time Statute was repealed and the Provisional Credits statute took its place with a triggering threshold percentile of 97.5.[12]

In 1989, the provisional credit statute was revised to exclude inmates ever convicted of committing, or attempting to commit, murder in the first, second, or third degree, and was applicable to offenses committed on or after January 1, 1990.[13] It was again amended in 1992 and, although it still contained the murder/attempted murder exclusions, it did not specify an effective date.[14] In 1992, then-Attorney General Robert Butterworth issued an opinion which surmised that the lack of an effective date in the 1992 provisional credits amendment indicated the legislature intended it to have retroactive application.[15] After AG Butterworth’s opinion, the legislature enacted 944.278 (1993) which retroactively cancelled all awards of administrative gain time and provisional credits for all inmates serving a sentence in the custody of the DOC or serving a state sentence in custody of another jurisdiction.[16] As a result, credits for 2,789 individuals who were still in custody were cancelled, and rearrest warrants were issued for 164 individuals who had been released.[17]

Pursuant to AG Butterworth’s opinion and the 1993 amendment which cancelled all administrative gain time and provisional credits, litigation challenging the revocation of credits ensued.  Although denied at the State level, one such case, Lynce v. Mathis, made its way to the United States Supreme Court.  Kenneth Lynce was one of the 164 individuals who had been rearrested.  In summary, Lynce argued that the retroactive cancellation of provisional credits violated the ex post facto clause of the United States Constitution. The United States Supreme Court agreed and reversed and remanded the case for further proceedings.  The Lynce case was argued on November 4, 1996 and decided on February 19, 1997.[18]

Due to the Lynce decision, another similar case, Calamia v. Singletary, on petition for writ of certiorari the Florida Supreme Court granted the writ of habeas corpus of Russell Calamia and a writ of mandamus for Jeffrey Lynn Hock which reinstated their administrative and provisional gain time.  This decision was May 22, 1997.[19]

Although author/sociologist Heather Schoenfeld indicates in her book, Building The Prison State, that the PRR was drafted immediately following the Calamia decision by Representatives Victor Crist and Adam Putnam,[20] we can see from the Journal of the House of Representatives that the first reading of HB 1371, which created the Prison Releasee Reoffender Act, occurred on March 13, 1997,[21] roughly two months prior to the Calamia decision (May 22, 1997), and roughly one month following the Lynce decision (February 19, 1997), and the PRR was ultimately signed into law on May 30, 1997.

Not only did HB 1371 create the PRR Act, it also amended Florida statute 947.141, violations of conditional release, control release, or conditional medical release, by utilizing one simple word to ensure anyone who violated terms of early release (even if that early release was due to overcrowding as “control release” is utilized when overcrowding occurs) would forfeit all gain time or commutation of time for good conduct as follows (words stricken are deletions, words underlined are additions), whereas before the revocation of gain time credits had been discretionary:

            (6) Whenever a conditional release, control release, or conditional medical release is revoked by a panel of no fewer than two commissioners and the releasee is ordered to be returned to prison, the releasee, by reason of the misconduct, shall may be deemed to have forfeited all gain time or commutation of time for good conduct, as provided by law, earned up to the date of release.[22]

In addition to overcrowding litigation, the analyses utilized litigation related to gain time.  Gain time is a behavioral management tool used to encourage satisfactory behavior.  At the time, there were four types of gain time under statute 944.275 including basic gain time, incentive gain time, educational gain time and meritorious gain time.  This section was amended in 1993 and 1995 to repeal basic gain time and reduce the amount of incentive gain time the DOC could award which specifically required all individuals sentenced to state prison for crimes committed on or after October 1, 1995, to serve no less than 85% of their sentence, which effectively implemented the “85% rule.”[23]

On March 20, 1996, Attorney General Robert Butterworth released an opinion concluding that the department could exercise its “discretion” under the statute by adopting a rule that prohibited certain classes of inmates from receiving incentive gain-time.[24] Based on this opinion, the DOC amended Rule 33-11.0065 of the administrative code and denied future incentive gain time awards to individuals who had 85% or less of any sentence remaining to be served.[25] The amended rule affected over 20,000 individuals[26] and was projected to lengthen the time served in prison on average by several years.  A small number of individuals (153) were projected to serve more than 20 years longer as a result of the amended rule.[27]

Once again, in prison litigation, specifically Gwong v. Singletary, 683 So. 2d 109 (1996), the Florida Supreme Court ruled that the DOC could not change the manner in which incentive gain time was previously awarded and that such retrospective change violated the ex post facto clause of the U.S. Constitution.[28] As a result, approximately 500 individuals were immediately released in November and December of 1996.  By August 1997, approximately 1,800 additional individuals were projected to be released.  The individuals affected by Gwong, mostly convicted of murder and sexual battery, were scheduled to be released by these dates anyway prior to the DOC’s adoption of the amended rule and the Florida Supreme Court decision.[29]

We can determine through the original PRR bill analyses that the intent of the legislature at the time in drafting the bill was due to the early release statutes due to overcrowding, as well as litigation regarding gain time.  The House’s Committee on Crime and Punishment’s final bill research and economic impact statement begins its substantive analysis not with concerns for public safety, nor outcry at violent crime rates or the introduction of specific cases which could perpetuate the necessity of such an act, but with detailing the creation and repeal of early release statutes, keeping the prison population below thresholds for early release, the cancellation of administrative gain time and provisional release credits, incentive gain time litigation issues, and definition of habitual offenders and habitual violent offenders.[30]

Along with quantifying the affected individuals in Gwong, the analyses also quantified the number of individuals affected by the Lynce decision, indicating approximately 2,700 individuals would have their sentence reduced from 30 days up to 7 years.  Of those affected, approximately 500 either had been or would be immediately released during the first two weeks of March, 1997.  The remaining individuals would be released, on average, of 10 to 12 individuals per month for several years.  Of the 2,700 affected individuals, the DOC estimated that 1,800 (67%) would be under some type of supervision, or placed under the custody of another law enforcement agency.[31]

Although one could argue the legislature was concerned for public safety due to the offense categories of those whose early release credits were reinstated, and who had incentive gain time reinstated, the low number of individuals affected (4,500 combining both issues) hardly made it a crises situation.  For example, according to the 1997-1998 Florida DOC annual report, 2,269 individuals were released during the fiscal year whose offenses were murder/manslaughter (882) and sexual offenses (1,387), many of which could most probably be included in the offense categories of those who received reinstatement of credits.  Dividing the total (2,269) by 12 months, approximately 189 individuals who had been incarcerated with violent offenses were released per month.  Furthermore, one could possibly incorporate the category of “other violent” offenses from that same fiscal year of 3,202.  Adding that category to the others, for a total of 5,471 indicates approximately 455 releases per month of “violent” offenders.[32]

Though one could possibly also argue the violent crime rate at the time and/or recidivism rates, nothing in the original bill analyses, or even the bill itself, refers in any way, shape or form to either of those being a catalyst for the impetus of the PRR, a bill which was ultimately sponsored by 35 representatives and by 2 House committees^[33], and was passed unanimously in the House and without the Governor’s signature.^[34]

Once again, although the legislature at the time hinted at public safety being the issue by stating “the people of this state and the millions of people who visit our state deserve public safety,” even if referring to the murders of tourists that took place in the state, a majority of those crimes occurred between 1992-1993 when 10 foreign visitors were killed within 13 months, and only 3 murders of tourists occurred in 1996 with the last one being in July of that year, yet it wasn’t until the reinstatement of early release credits and the Gwong decision that the PRR was drafted. 

Furthermore, the legislature stated, “and protection from violent felony offenders (emphasis added) who have previously been sentenced to prison and who continue to prey on society by reoffending (emphasis added),”[35] yet the first prison sentence which helps qualify an individual for the PRR does not have to be a violent offense.  For example, an individual who is sentenced to a 1 year and 1 month prison sentence for manufacture/sale/distribute of marijuana, and then commits a robbery within 3 years, qualifies as a PRR, even though the first prison sentence was for a drug offense and not a violent offense.  Also, it simply takes only the 1 current qualifying statutory offense and the 1 prior prisone sentence for an individual to be sentenced under the PRR. 

Although the legislature also indicated they found “the best deterrent to prevent prison releasees from committing future crimes is to require that any releasee who commits new serious felonies must be sentenced to the maximum term of incarceration allowed by law, and serve 100% of the court-imposed sentence,”[36] neither the bill itself, nor the bill analyses, substantiates this claim in any way, shape or form.  There is no included data, or even mere mention, that this statement is true.

In summary, it is conclusive that due to overcrowding and the retroactive cancellation of provisional release credits and the resultant prison litigation culminating in the U. S. Supreme Court Lynce v. Mathis decision, as well as due to the retroactive amendment to incentive gain time, both of which violated the ex post facto clause of the U.S. Constitution, that without those two issues the PRR never would have been drafted.  Thus, it is due to the State’s egregious misuse of their authority that the PRR statute was drafted, passed, and to this day is costing Florida taxpayers millions of dollars each year due to the excessive nature of the law. 

Let me be clear.  Once again, although the legislature at the time wanted to blame the court decisions, and wanted to instill a false sense of fear regarding public safety by insinuating individuals were being released “early” because of the court decisions, these individuals would have been released anyway, but it was not due to court decisions, it was due to Attorney General Robert Butterworth’s misapplication of retroactivity of provisional and gain time credits, credits which were given due to overcrowding (provisional) and credits that were actually earned (gain time credits).  Thus, if anyone was to “blame,” it would be the State for, first of all, not addressing the overcrowding problem properly pre- and post-Costello, and making early release credits a necessity because of not engaging in due diligence and finding other ways to lower the prison population to relieve overcrowding.

Amendments

Since the passing of the PRR Act in 1997, the PRR portion of 775.082 has undergone several amendments which have increased eligibility, as well as harshness.  Following are the amendments I am aware of at the time of the writing of this report:

1. In June of 1998, Gregory Thomas filed an appeal of his PRR sentence which challenged the definition of “sentence” under the PRR statute.  Almost one month later, his appeal was assigned a number, 98-02761.  In May of 1999, the legislature passed HB 121 which created the “Three-Strike Violent Felony Offender Act.” This act also redefined the term “prison releasee reoffender.” The term was revised to include “any defendant who commits or attempts to commit any offense listed in subparagraph (a)1.a.-r while the defendant was serving a prison sentence or on an escape status from a state correctional facility operated by the DOC or a private vendor.” Prior to this amendment, the definition of a PRR was simply anyone who committed or attempted to commit a qualifying offense within 3 years of being released from a state correctional facility or a private vendor.  On October 6, 1999 the 2^nd District Court of Appeals filed their decision to Thomas’s appeal, which reversed the PRR designation and remanded for deletion of that portion of his sentence.  Mr. Thomas had walked away from his work release employment and did not return to the work release facility he was staying at.  Two days later, he was charged with burglary and attempted burglary, as well as escape.  The 2^nd DCA decided the PRR statute did not actually define “released” and that their reading of the statute convinced them it indicated a release initiated by the state, not a “self-release” as in an “escape.” As further delineated in Graff v. State, 785 So.2d 649 (Fla. 2d DCA 2001), in accordance with Thomas, Graff’s PRR sentence was reversed and remanded for deletion.  Lawrence Graff was also confined to a work release center when he escaped from the facility, and while on escape status he allegedly committed strong-arm robbery and aggravated battery.  Footnote 1 of that decision reads, “We note that the legislature in 1999 added section 775.082(9)(a)(2) to address the situation presented in this case by including the definition of a “prison releasee reoffender” persons who commit one of the enumerated offenses while serving a prison sentence or on escape status from a state correctional facility…” Due to the appealability of such ambiguity, even before Mr. Thomas’s case was decided, the legislature passed legislation to further delineate and define the term “release.” What this did was not only include those on “escape” status, but also included the verbiage of while serving a prison sentence, which simply cast a wider net of eligibility. 

This amendment also removed the very clear and concise instances where the state attorney could deviate from the PRR to read, “…unless the state attorney determines that extenuating circumstances exist which preclude the just prosecution of the offender, including whether the victim recommends that the offender not be sentenced as provided in this subsection.” As we note later in the report, there were four specific instances where a state attorney could deviate/offer a plea including insufficient evidence, unobtainable material witness testimony, the victim does not want the offender to receive the mandatory prison sentence and provides written statement to that affect, and lastly, the extenuating circumstances.  What this portion of the amendment did was generalize the “extenuating circumstances” utilized for deviation, which in turn gave further power to the state attorney as to their individual interpretation of what extenuating circumstances consist of.

However, the 2nd District Court of Appeals issued an opinion declaring HB 121 (chapter 99-188) unconstitutional as they determined it violated the “one subject and matter” requirement of Article III, section 6 of Florida’s Constitution.  Therefore, in April of 2002 the legislature passed HB 1399 which simply reenacted sections of HB 121, including the PRR portion, to satisfy the Second District’s opinion.  It did not change any of the language, but simply reenacted the sections and made them retroactive to when HB 121 was signed into law.

2. On June 15, 2001, the Governor signed into law SB 676 which amended the following:
   1. Changed q. under the qualifying offenses list from “Burglary of an occupied structure or dwelling,” to “Burglary of a dwelling or burglary of an occupied structure.
   2. The next change further widens the PRR eligibility net by adding to the definition of within 3 years after being released from a state correctional facility operated by the DOC or a private vendor to include, “…or within 3 years after being released from a correctional institution of another state, the District of Columbia, the United States, any possession or territory of the United States, or any foreign jurisdiction, following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.  Therefore, a defendant could have committed a crime in Georgia that was a misdemeanor, but in Florida was a sentence of more than 1 year, and that individual would then qualify as a PRR.  Furthermore, whereas defendants had to have served their prior qualifying prison time in a Florida prison, an individual who spent at least 1 year in prison in another state, any US possession or territory, or even any foreign jurisdiction, would now qualify as a PRR.  There was no regard as to the nature of the previously committed offense, only that the individual had been sentenced to prison for at least 1 year.
   3. The next change widens criteria even further by adding to while the defendant was serving a prison sentence or on escape status from a state correctional facility operated by the DOC or a private vendor to include, “…or while the defendant was on escape status from a correctional institution of another state, the District of Columbia, the United States, any possession or territory of the United States, or any foreign jurisdiction following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.  Once again, there was no regard for the nature of the previous committed offense, simply that the defendant had been in prison and had escaped.  This amendment was signed into law on June 15, 2001, a little over one month after the Graff decision. 

3. In 2013, Dazarian Lewars was convicted of burglary of an unoccupied dwelling and was sentenced to 15 years as a PRR.  Lewars appealed, arguing that he did not qualify as a PRR because he was not released from a DOC-operated facility, or private vendor, within 3 years of the burglary as he had spent a 24-month sentence solely in a county jail and never transferred to actual prison due to an accumulation of jail credit while he was awaiting a violation of probation hearing and sentencing.  On December 13, 2018 the Florida Supreme Court upheld the decision of the 2^nd District Court in Lewars v. State which, briefly, affirmed their opinion that release from a county jail did not satisfy PRR designation.^[37]

On 6/28/2019, HB 7125, also known as the Florida First Step Act, was signed into law.  Included in this bill was an amendment to the PRR.  As you may have already ascertained, the amendment involved release from a county detention facility, to read as follows: “…within 3 years of being released from a state correctional facility operated by the Department of Corrections or a private vendor, a county detention facility following incarceration for an offense for which the sentence pronounced was a prison sentence.^[38] To solidify the still ambiguous nature of “county detention facility,” the final bill analysis for HB 7125 defined it further as follows: “A county detention facility means county jail, a county stockade, a county work camp, a county residential probation center, and any other place except a municipal detention facility used by a county or county officer for the detention of persons charged with or convicted of either felony or misdemeanor.”^[39] On page 88 of the analysis, it reads, “This bill amends s. 775.082, F.S., expanding the pool of offenders eligible for a mandatory minimum sentence for a “prison releasee reoffender.” Also according to this analysis, as reported by the DOC, in FY 2017-2018 there were roughly 570 individuals who would be impacted by the bill language who were sentenced to time served and released before going to prison.  The CJEC determined the new provision would increase the need for prison beds by an indeterminate amount.  To put this into perspective, not having the county facility language in place in fiscal year 2017-2018 saved the state roughly $12,932,160.

Comparison to Habitual Offender Enhancements

When the PRR was drafted, Florida had several habitual offender enhancements under 775.084 including habitual felony offender (hereafter HFO), habitual violent felony offender (hereafter HVFO), and violent career criminal (hereafter VCC).  Briefly, at the time the PRR was drafted the habitual offender laws basically doubled (enhanced) the statutory maximum sentences under 775.082 as potential maximum sentences for the HFO and HVFO, and as a mandatory minimum for the VCC.  However, the enhancements under the HVFO were lower than those under the PRR.  More importantly, a court had the discretion to decline to impose all three sentences if the court found that such sentencing was not necessary for the protection of the public.[40] Unlike the habitual offender statute, the imposition of sentence under the PRR is mandatory and certain, and the court would have no discretion to decline the imposition of the prescribed sentence.  Furthermore, at the time, to qualify as a habitual felony offender an individual must have been previously convicted of two or more similar felonies, and the current felony for which the individual was being sentenced would have occurred within 5 years of the last felony conviction or release from prison, whichever is later.[41] In regards to the PRR, when it was initially drafted an individual need only have been released from a state correctional facility within 3 years of the most recent offense.[42] As confirmed by the bill analysis, and as noted previously, unlike the habitual offender statute, the application of the PRR was not based on a certain number of prior convictions, nor a certain type of prior offense,[43] even though the legislature, as mentioned earlier, insinuated the bill was being drafted for the protection from “violent felony offenders” who have previously been sentenced to prison and who “continue to prey on society by reoffending,”[44] but by the legislature’s own admission we know this to be false since it was known to not be based on a certain number or even the type of prior offense.  One simply cannot categorize someone as inherently violent based on one offense, and cannot describe someone as habitual when the determination is not based on a certain number of prior convictions.  That is the design of the habitual offender statutes, which were already in effect. 

Furthermore, since the PRR is based on one prior prison sentence, and the HFO statutes are based on the number and type of offense, an individual can be sentenced as both a PRR and a HFO.  For example, a defendant convicted of burglary may be sentenced to 25 years under the HVFO with 15 of those years served as a PRR. 

In summary, as noted by the bill analysis, the PRR was distinguishable from the habitual offender statute in its certainty of punishment and its mandatory nature.  Not only does it not allow for the court to depart downward from the proposed sentence, the mandatory minimum imposed is the maximum statutory penalty under 775.082.[45] The state attorney is not required to pursue PRR sentencing, even if a defendant meets the criteria, and the state attorney can seek to have the defendant sentenced under the usual sentencing guidelines, or if he/she meets relevant criteria, sentenced under one of the habitual offender sentences.  However, it should be emphasized that when a state attorney does pursue sentencing under the PRR and proves the defendant qualifies, the court must impose the appropriate statutory maximum term of imprisonment.[46]

Cost

Although the original bill analyses indicate the fiscal impact on state agencies/funds and local governments was “indeterminate,”[47] the Criminal Justice Estimating Conference (hereafter CJEC), which provides an official estimate of the fiscal and prison bed impact, on March 21, 1997 estimated the total cost for 10 years (1997-2007) would be $1,575,094,620. This estimate assumed prosecutors would pursue PRR sentences for all qualifying individuals.[48] However, on April 10, 1997 the CJEC met to consider the bed impact of the PRR which estimated total funds required for the same 10-year period mentioned previously would be $2,069,190,199.  Contrary to the initial estimate which assumed all qualifying individuals would be sentenced as a PRR, the April estimate assumed only 87.9% of eligible offenders would be sentenced as a PRR.[49] It should also be noted that in the preliminary CJEC estimate on the prison bed impact, it was emphasized that the estimate assumed the bill would be the only change to occur in the current forecast.  Other bills passed by the legislature could increase the costs further.[50] Earlier, we elucidated several amendments to the PRR which widened the eligibility criteria, and which most probably increased associated costs.  In summary, the analyses concluded that the long-term impacts of the PRR bill were difficult to estimate due to prosecutorial and judicial behavior, but stated “will probably be substantial (emphasis added) in both the operating and capital costs.”[51]

According to the DOC’s 2020-201 Annual Report, it now costs $28,042 per year (up from $22,688 in FY 2018-2019) to house just one individual in prison, with costs having gradually increased over the last 5 years (up $7,675 per year since FY 2016-2017).^[52] For further perspective on cost, Florida PRR Families United (hereafter FPFU), a reform group aimed at retroactive repeal of the PRR, did an informal project related to plea deals.  Although the PRR was originally drafted to prohibit pleas,[53] with the certain and mandatory nature of the statute, as well as lack of gain time incentives, the PRR is a wonderful bargaining tool for prosecutors and courts to clear dockets.  Although plea information was requested from all twenty state attorneys’ offices, the information was either reportedly completely lacking, insufficient, time-restrictive, or cost prohibitive with one office quoting more than half a million dollars to retrieve the requested records.  Through FPFU, a small sampling of questionnaires were sent to PRR individuals currently incarcerated, with a majority of questionnaires being sent to those given a life sentence for robbery since that is the majority offense category for life sentences.[54]

This sampling revealed that of those with a life sentence, 100 were offered pleas ranging from 3 years to life (the life sentence pleas, a total of 8, are not included as each individual’s life is indeterminate) with the average plea offered being 18 years.  For clarification, when the State offers a plea, they are saying with absolute certainty that they are more than comfortable from a public safety, length of sentence for crime committed, and victim impact perspective with that individual serving the offered amount of time.  Hypothetically speaking, if someone enters prison at age 20 and is given an 18-year PRR (100%) plea deal, the cost for those 18 years is now $504,756 (up from $408,384 in 2018-19).  The average life expectancy for a male is approximately 78 years.[55] Therefore, someone given a life sentence at age 20 with an expected 58 more years to live will now cost the State $1,626,436 (up from $1,315,904 in 2018-2019).  That is for only one individual.  As you may have deduced, the defendants in these cases obviously rejected the plea offers and were given a life sentence at trial.  Hence, although the State was comfortable offering substantially lesser sentences via a plea, these individuals are now serving life sentences simply for exercising their constitutional right to a trial, aptly called a “trial penalty.”[56]

The Florida DOC 2020-2021 Annual Report indicates the majority of admissions for that fiscal year, 34.1%, were individuals in the 25-34 age range.  For argument’s sake, let us assume the average age of PRR individuals when sentenced is at the high end of the majority, or 34.  Utilizing the 18-year average plea, the cost once again for one individual is $504,756.  With a difference now of 44 years (78-34 = 44), that would now make the cost $1,233,848 (44 x $22,688), which is up from $998,272 in FY 2018-2019.  Again, for only one individual.  There are currently approximately 2,000 PRR individuals serving life sentences.  Let’s assume they were all 34 when they were given the life sentence.  That would mean Florida taxpayers will be paying almost $2.5 billion in the next 44 years.  Let’s also assume that at least half of those individuals have life sentences for offenses where they were offered pleas for substantially less time, or would have received substantially less time than they could have under the usual guidelines.  That means Floridians will be paying approximately $1.25 billion unnecessarily over the next 44 years.  That is only assuming the annual cost to house an individual prison remains the same, and history has shown us the costs only continue to rise.

Now let’s assume one-quarter of the estimated current PRR population with life sentences (1,750 from the SB 1716 bill analysis), or 437.5, were age 20 when sentenced.  At an estimated cost of $1,315,904 (58 years x $22,688) x 437.5 that would total $575,708,000.  Compared to the same estimate for those with an average 18-year plea at a cost of $408,384 x 437.5 which is $178,668,000 with a difference of $397,040,000.  We can also assume that the same percentage of individuals (437.5) was 34 at the time of admission.  At a cost of $998,272 (44 x $22,688) that would total $436,744,000 (437.5 x $998,272) as compared to the 18-year average plea cost of $178,668,000 with a difference of $258,076,000.  This is still a significant amount.  Furthermore, this is assuming the cost of incarceration for one individual for one year stays the same.  Although these are estimates due to the extreme difficulty with data collection, these are not at all unreasonable estimates. 

Anti-Murder Act of 2007

In order to further emphasize the “public safety” ruse the 1997 legislature utilized as a sort of justification for drafting and passing the PRR as quickly and with so little regard to issues of future fiscal responsibility, constitutional issues, prison management issues, etc., I would like to highlight legislation that was passed almost a decade after the PRR for comparison purposes, including cost. 

On February 1, 2004, 11-year-old Carlie Brucia from Sarasota, FL was abducted when she was walking home from a friend’s house, which was only a mile away, after a sleepover.  Her body was found on February 6 and a man named Joseph P. Smith was charged with, and ultimately convicted of, murder, kidnapping and rape.[57] Joseph Smith was a drug addict with a long criminal record and was on probation for drug offenses.  Two months before the murder, a judge had declined to charge Smith with violation of probation because he hadn’t paid all of his court fines and fees.[58]

Almost a year later, in February of 2005, Jessica Lunsford, age 9, was taken from her home in Homasassa, FL, and her body was discovered 3 weeks later.  A registered sex offender, John E. Couey, confessed to kidnapping and killing Jessica.[59] It was also determined by investigators that the little girl had been raped. 

Approximately 2 months later in April of 2005, 13-year-old Sarah Lunde was murdered in her home in Hillsborough County by a convicted rapist who was on probation after being released from prison in 2002.  David Lee Onstott had previously dated Sarah’s mother.  Sarah’s body was found 6 days after she disappeared partially submerged in a pond near her home.[60]

Also in 2004, what is considered to be one of the worst mass murders in Volusia County occurred on August 6 in Deltona.  Known as the “Xbox Murders,” six people were murdered when they were beaten to death with aluminum baseball bats by four men.  The group of men was said to be led by Troy Victorino, who was on probation for beating a man with a walking stick 8 years earlier.  The Deltona massacre is reported as having occurred because one of the victims had apparently discovered several items at her grandparent’s home, which was vacant at the time as her grandparents lived part of the year in Maine, and believing these items to belong to “squatters,” the victim may have discarded some of them, including an Xbox believed to have belonged to Victorino.  Victorino was livid about the victim throwing his things away, and it is believed that was the catalyst for the brutal murders.[61]

Following the murder of Sarah Lunde, then-Attorney General Charlie Crist proposed that a new law be drafted which would ensure that violent felons who violate probation are locked up unless they can convince a judge that they do not pose a danger to the community.  This bill was called the Anti-Murder Act of 2005.[62] Although there was certainly enough justification for such a bill with the above-mentioned events which had occurred within a little over a year, both related bills, HB 451 and CS/SB 608, died in Justice Appropriations, with the reason being cost, citing the $350 million to $630 million in additional court and prison resources.[63] Though judges do not normally voice their opinion on such matters, at least one judge, Stanford Blake, spoke out against the bill stating, “judges have to have discretion.”[64] In fact, the Anti-Murder Act of 2005 took two years to pass, even though Charlie Crist proposed the Act again in the 2006 legislative session, even modifying it to lower the cost estimate.  The sponsor of the House version, Rep. Joe Negron, even modified the list of qualifying offenses to “make those as limited to the serious felonies as possible.”[65]

At the time, the St. Petersburg Times editorial board opined that the Act would remove discretion from judges and “could unnecessarily burden the state’s prisons.”[66] In response, Charlie Crist wrote a letter to the editor stating, “Getting even one potential killer off the street makes it a cost-effective proposition, not even considering its broader benefits to society.”[67] Although the House supported the Act, the Senate never took up the bill, citing a cost of $118 million by 2010.  The Senate president at the time, Tom Lee, told reporters, “at the end of the day, it was just a question of how much money are we going to spend to grow the criminal justice infrastructure in our state in 2006?”[68]

Remember, three innocent little girls had been kidnapped, raped and murdered in just a little over a year’s time.  And yet, it took two years to pass any type of legislation related to those brutal murders (notwithstanding the Jessica Lunsford Act, which mostly dealt with sex offender registration and reporting[69]), simply due to cost.  The legislature in 1997, however, passed the PRR bill with lightning speed.  There weren’t three little girls who were no longer alive, there weren’t three families who were mourning the murders of their innocent daughters.  It was simply because a few thousand individuals had their gain time restored due to the State violating the Ex Post Facto clause.  The PRR was passed almost unanimously with absolutely no regard to the future fiscal impact.  My question is, why?  A bill that was estimated to cost between anywhere from $1.5 to $2 billion over 10 years, but with the actual cost being completely and utterly indeterminate.  What was so important about this piece of legislation, but the lives of three little girls meant so little that “cost” kept legislation related to their murders from passing for two years.

Violent Crime Rate

Some of you may be surmising that perhaps the PRR was passed, in part, due to an increase in the violent crime rate.  First, let me explain how the crime rate is calculated. The crime rate is determined by only 2 factors–the number of reported crimes divided by the current population, then multiplied by 100,000 (the rate is per 100,000 individuals). Therefore, an increase in population and a decrease in the number of reported crimes automatically indicates a lower crime rate.

However, even if the overall crime rate decreases, that does not mean that the number of reported crimes in the various categories have also decreased. For example, in Polk County from 2019 to 2020 there was a 15% decrease in the overall crime rate, but the number of reported crimes actually increased in 4 out of the 7 category markers utilized to determine the rate including murder, rape, aggravated assault and motor vehicle theft.

Up until 2021, the UCR, or Uniform Crime Reporting, system was utilized to determine the crime rate. This system utilized data from law enforcement agencies that reported on a total of 4 Part 1 violent crimes including murder, rape, robbery and aggravated assault, and on a total of 3 Part 1 property crimes including burglary, larceny (theft) and motor vehicle theft. If an individual was charged with more than one offense, only the most serious offense was recorded for UCR data. If any law enforcement agencies did not report data to the FBI UCR, the FBI simply estimated the data.

Although the reported violent crime rate in Florida for Part I crimes[70] from 1990 to 1993 had increased to around 160,000 total violent crimes per year, the violent crime rate actually started to decline after 1993 by 2.4% in 1994 and by 7.2% in 1995.  There was a modest decrease of only 0.7% in 1996, and another modest decrease of 0.3% in 1997.  Although the violent crime rate continued to decrease/remain steady over the next 7 years, it once again started to increase in 2005, then starting its decline again in 2009.[71]

Although I do not have the data for fiscal years 1995-96, 1998-99, 1999-2000 and 2000-01[72], the prison admissions for violent crime are as follows:[73]

Although the violent crime rate from 1993 (161,789) to 1997 (146,929) had decreased by almost 10%[74], the rate of prison admissions for violent crime actually increased by the same amount, approximately 10% (see table above).  Furthermore, although the violent crime rate over the next 10 years continued to fluctuate quite modestly, and the rate of prison admissions for violent crime did decrease for the same time period, from 2007 to 2018 the violent crime rate has continued to decline, down to 81,896 in 2018, yet the prison admissions for violent crimes has remained relatively the same at around 30%.[75]

Recidivism

The Florida Department of Corrections defines recidivism as a return to prison as the result of either a new conviction or a violation of post-prison supervision, including technical violations, within 3 years of their prison release date.  According to the 1996-1997 DOC Annual Report, the total recidivism rate at that time was a very low 18%.  The recidivism rate from 2009 to 2016 has remained, on average, approximately 25%.[76] The recidivism rate is a cumulative calculation, so it should be noted that the recidivism rate for the first year after release is 8%, year two is 7% and year three is 5% (data taken from the Florida DOC’s 2018 recidivism report). The rate declines further in year 4 to 4% and year five to 3%. Note that a majority of individuals recidivate within 3 years of being released, which interestingly correlates to that which qualifies someone as a PRR.

Constitutional Issues

Although important, this section will be somewhat brief, mainly because numerous issues regarding the PRR have been addressed in the courts with few, if any, finding relief, and most appeals simply being met with legislation to “fix” the appealable issue.  It is important to note constitutional issues for the simple reason that in the Senate analyses of the PRR, at least one constitutional issue related to due process was mentioned as follows:

            “The legislation contains no provision for providing notice to the defendant prior to judgement being pronounced (emphasis added).  It is fundamental to due process that “reasonable notice and an opportunity to appear and be heard (be provided) before judgement is pronounced.” State ex rel. Barancik v. Gates, 134 So.2d 497, 500 (Fla. 1961).  Although the legislation apprises each releasee that he or she may be subject to the prison releasee reoffender sanction, there is no actual notice by the state to the defendant prior to judgement of the state attorney’s intent to pursue such sanction(emphasis added).  This is in contrast to current habitualization, so that the defendant can prepare to defend himself or herself (emphasis added).  See, Massey v. State, 589 So.2d 336, 337 (Fla. 5^th DCA 1991) (“Lack of any notice, written or otherwise, is a due process violation…”), approved, Massey v. State, 609 So.2d 598 (Fla. 1992).  Ashley v. State, 614 So.2d 486 (Fla. 1993, citing Massey.”[77]

After the passage of the PRR law in 1997, it stipulated that when an individual is released from prison they are required to sign a “notice” which indicates the individual’s name, DOC number and release date, which states, “You are hereby notified that if you commit or attempt to commit one of the following offenses within three years of your release from incarceration, you may be sentenced to the mandatory minimum sentencing provisions of section 775.082, F.S., of the “Prison Releasee Reoffender Punishment Act.” It then goes on to list the qualifying offenses, and at the bottom in bold states, “I acknowledge receipt of this notification of the “Prison Releasee Reoffender Punishment Act.”  Refusal to sign this notice will not preclude you from being sentenced pursuant to section 775.082, F.S.”[78] Now, let’s say someone commits a robbery 2 years and 8 months from the date of their release from prison.  How many of those individuals are going to recall signing, or even seeing, this warning notice?  How many individuals would recall this notice even after 3 months, 6 months, a year?  Furthermore, since the notice does not detail the actual penalties under the PRR and simply lists the statute number, how many individuals who are released from prison are going to research the specifics of that particular statute?  Also, although notice is given to defendants sentenced under the HFO statutes by the court, the PRR “notice” is required to be given by the DOC, which has nothing to do with an individual’s actual case that they are being assessed for as to qualifying as a PRR.  Clearly this is an issue of due process, no matter how many times the courts refuse to declare it, and even though the State is not required to demonstrate that the person received notice in order for the court to sentence the person as a prison releasee reoffender.  The lack of notice in and of itself should constitute a violation of due process.  I have had individuals sentenced as PRR who have indicated to me that if they had known they were going to receive such a harsh sentence, they would have taken the offered plea agreement. 

Furthermore, many individuals have been sentenced as PRR whose first prison sentence was prior to the passing of the Act and therefore those individuals absolutely did not receive notice, yet the courts have yet to rectify this injustice as the PRR was clearly prospective, yet utilizing prison sentences prior to the initiation of the act is retrospective and anyone who was sentenced as a PRR in this fashion should not have qualified.

Due process is defined as fair treatment of the judicial system.  The Florida Constitution Article I, section 9, states, “No person shall be deprived of life, liberty or property without due process of law.” By law, and because of this warning “notice” the DOC shows people upon their release from prison, actual notice of the intent to sentence someone as a PRR is not required.  However, it is required under the habitual offender laws. 

Article I, section 17, of Florida’s Constitution forbids the imposition of a punishment that is not only cruel, but also unusual.  Although Florida’s felony murder rule, and the 10-20-Life law are certainly in company with the PRR as far as cruelty, the PRR is unusual in several ways as follows (please note, if there is any redundancy from that already discussed prior, this is intentional as I feel it is important to emphasize these issues as completely as possible): 

1. First, the PRR is not a “minimum mandatory” in that once determined to be a PRR, the court must impose the statutory maximum.  For instance, if robbery with a firearm carries a statutory maximum of being punishable by life, the court under the usual guidelines may sentence up to and including life, whereas under the PRR the court would have no choice but to sentence the individual to a life sentence, which is the maximum sentence allowed. 
2. Under the usual guidelines, the court may sentence the defendant to a lesser sentence than the statutory maximum.  Under the PRR, the court has absolutely no discretion and must sentence the defendant according to the PRR guidelines.  The only discretion the court has when it comes to the PRR is the ability to sentence a defendant to more than the statutory maximum.  However, if a court is already bound to give a defendant the statutory maximum, what would be the point of giving more than the maximum allowed?
3. Under the PRR, an individual must serve 100% of his/her sentence with no opportunities for gain time, parole, control release, or any form of early release.  It is very important to note here that the House of Representatives’ Committee on Crime and Punishment noted in their final bill analysis that, “Because the penalties involved under the bill are minimum mandatory sentences, the DOC may face some disciplinary problems with those offenders serving sentences with no prospect for gain time awarded for good behavior.”[79] How much more unusual is it for the legislature to pass legislation that renders an individual without the possibility of any form of redemption, knowing full well it most probably would cause more problems for the DOC?
4. Once again, the PRR does not take into consideration the type of prior offense, nor a certain number of prior offenses.  Certainly, if it had it would simply be an almost exact replica of the habitual offender enhancements, and then what would be the purpose?

The Eighth Amendment to the U.S. Constitution also forbids the imposition of a sentence that is cruel and unusual, but this includes sentences that are disproportionate to the crime committed.  If the State is comfortable offering a 15-year sentence for robbery with a firearm, how proportionate is it to receive a life sentence at trial for the same offense? 

Furthermore, the PRR is disproportionate in that it differentiates between a defendant who committed a crime 2 years and 364 days after being released from a prison sentence and a defendant who committed the same crime 3 years and 1 day after being released from a prison sentence.  Once again, there is no regard to offense type regarding the first prison sentence, only that the individual was previously in prison, and was released within 3 years of the most recent qualifying offense.

When the bill was originally drafted, it indicated that plea bargaining was prohibited and could only be utilized in certain circumstances.[80] These circumstances included:

1. The prosecuting attorney does not have sufficient evidence to prove the highest charge available.
2. The testimony of the material witness cannot be obtained.
3. The victim does not want the offender to receive the mandatory prison sentence and provides written statement to that effect.
4. Other extenuating circumstances exist which preclude the just prosecution of the offender.

At the time, for every case that the defendant did not meet PRR criteria and did not receive the mandatory minimum prison sentence, the state attorney was to explain the sentencing deviation in writing and maintain the deviation in the case file, with a report regarding these deviations to be sent to the Florida Prosecuting Attorneys Association (hereafter FPAA) on a quarterly basis.  This information was to be made available to the public for at least a 10-year period.  At this time, however, that portion of the bill states the offender is to be punished to the fullest extent of the law “unless the state attorney determines that extenuating circumstances exist which preclude the just prosecution of the offender, including whether the victim recommends that the offender not be sentenced as per the PRR guidelines.  Therefore, the PRR is also disproportionate in that not everyone is afforded a plea offer, and even for those that are offered a plea, these pleas are all disproportionate. 

On October 8, 2020 I received copies of PRR deviations from the State Attorneys office of the 19^th judicial district.  One example is of a defendant accused of second-degree murder and robbery.  The defendant was willing to open plea to all charges if the State agreed to waive the PRR designation.  The deviation was granted and the defendant received a life sentence for the second-degree murder, and 15 years for the robbery, both sentences imposed by a judge because without the PRR designation the judge had discretion, and in this case where someone was actually murdered, a life sentence would seem appropriate.  The case is now on appeal.  Once again, however, not everyone is offered a plea because the State Attorney decides the definition of “extenuating circumstances,” and in this particular case those circumstances included that although they felt they had a strong case, they also felt it possible the jury could return a verdict of manslaughter as it appeared the murder was the result of a drug deal gone bad (for marijuana, according to court documents)[81].  Additionally, the state felt the plea would avoid any unknown or appellate issues.  Without the deviation, and being sentenced as PRR, the defendant faced a mandatory life in prison sentence if convicted.  With the deviation, however, the sentence would be left up to the court and could impose any sentence from the bottom of the guideline (27.5  years) up to life in prison.  To reiterate, even though the defendant in this case actually killed someone, the State was more than comfortable with the possibility of the court sentencing the defendant to 27.5 years when they offered and were granted a plea deviation from the PRR.  I will note here that of those individuals I mentioned earlier whom the FPFU sampled regarding plea deals, of those who provided score sheets, for 31 individuals there was no victim injury.  Zero.  For 4 individuals there was slight, for 5 individuals moderate, and for 1 individual severe.  The two highest categories of victim injury on the score sheet are death (120 points) and second-degree murder (240 points), yet none of these individuals sentenced to life had anything over severe, and the majority were none. 

In another case, part of the reasoning for the deviation was the judge for the case was one who was felt to be “hypercritical” of law enforcement and there was concern with law enforcement affidavits.  In the same case, the victims were elderly and were concerned about having to testify at a trial, and the defendant was willing to take a 20-year plea.  Therefore, the PRR is also disproportionate not only dependent apparently on the personal disposition of the judge in the case, but in that it technically allows the wishes of a victim to determine sentencing.  Now, if the wishes of the victim were not only heard, but also abided by, in all PRR cases, one could not as easily argue disproportionality.  However, we know this to not be the case.  Some victims are unaware they are able to request a lesser sentence, or request that the defendant not be charged at all.  And, even if some victims are aware, their wishes are not always adhered to.  In 2005, Jonathan Beaudry was charged with robbery with a gun or deadly weapon.  He had robbed a cab driver with a steak knife of $220.  Mr. Beaudry was introduced to drugs at a young age by a family member, and this robbery was the result of his drug addiction.  Mr. Beaudry’s victim wrote a statement indicating he did not want him to receive a life sentence, but his wishes were ignored and Mr. Beaudry was given a life sentence.  The prior prison stay which qualified Mr. Beaudry as a PRR was for introduction of contraband into a detention facility, a non-violent crime. 

In the last example, an individual charged with 2 counts of robbery with a deadly weapon while wearing a mask, an offense punishable by life, 2 counts of aggravated assault with a weapon with no intent to kill, and grand theft, was determined to be an “accomplice” and was instrumental in securing convictions for the actual gunman (life) and the getaway driver (13 years on violation of probation) and was therefore offered a 15-year sentence, which he accepted, and which the victims in the case were comfortable with.  However, if the defendant, being simply an accomplice, had refused the plea and gone to trial and was found guilty, the court would have had no choice but to sentence the individual to a life sentence under the PRR.  Not every defendant has an accomplice, or accomplices, to garner a plea offer.  However, this is the perfect case to highlight yet another example of disproportionality, besides the plea offers, in that this individual was still ultimately sentenced as a PRR.  Yet, there are individuals, as noted above, who are offered pleas where the PRR is omitted completely. 

To finish off the constitutional issues, we now address separation of powers which is located in Article II, section 3 of the Florida Constitution.  Although this issue has also been argued in the courts, it is important to note simply due to the instances where it is stated that it is the State Attorney, and not the court, which has discretion in determining not only the eligibility of a defendant as a PRR, but also, as proven by the plea deviations, the definition of “extenuating circumstances,” and whether or not a victim is able to determine sentencing with their wishes for or against prosecution as a PRR in order to determine whether an individual is, or isn’t, offered a plea.  The State Attorney is an executive function and determines charges and whether to prosecute someone charged with a crime.  Sentencing, however, is a judicial function.  With the PRR, once a defendant is determined to qualify as a PRR, a function which rests solely with the State Attorney, the court has no discretion as to sentencing, except to sentence above the statutory maximum as discussed earlier, a discretion so minute it’s hardly worth including as part of the statute when one considers the mandatory prison term is the maximum statutory sentence allowed, and so insignificant several courts have deemed the judge’s involvement as simply “ministerial.”

The original bill, HB 1371, reads as follows (all emphases are added):  “If the state attorney determines that a defendant is a prison releasee reoffender as defined in subparagraph 1., the state attorney may seek to have the court sentence the defendant as a prison releasee reoffender.  Upon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffender as defined in this section, such defendant is not eligible for sentencing under the usual guidelines…”[82] It also reads as follows:  “For every case in which the offender meets the criteria in paragraph (a) and does not receive the mandatory minimum prison sentence, the state attorney must explain the sentence deviation in writing…”

The HB 1371 analyses describe the discretion multiple times as follows:

1. Page 1 of the Senate Staff Analysis and Economic Impact Statement, CS/SB 2362, Ways and Means Committee reads under the summary:  “CS/SB 2362 provides that when a state attorney pursues sentencing…,” though sentencing is clearly a judicial function.  In contrast, this same report states on page 2 regarding the habitual offender statutes, “If a state attorney pursues a habitual offender sanction (not sentence) against a defendant…,” which would clearly be in the purview of the executive branch.  This same verbiage is used for the HVFO and VCC.
2. On page 6 of the same report as in number 1, it reads, “if a state attorney determines that a defendant is a prison releasee reoffender the state attorney may seek to have the court sentence the defendant as a prison releasee reoffender.” Now, this statement does intimate the court has some discretion in the matter, but the court only needs to determine if the defendant has committed a qualifying offense and has done so within 3 years of being released from prison, in order to confirm or deny the individual qualifies as a PRR.  Thereafter, there is absolutely no discretion as to sentencing, except as noted previously.  The judge is not able to entertain mitigating circumstances, does not determine the definition of extenuating circumstances, and is not able to take into consideration the wishes of the victim, which are all under the discretion of the State Attorney.  Once the State Attorney proves that the defendant is a PRR and the court either confirms or denies this designation, sentencing is determined solely by the PRR designation, which once again is pursued by the State Attorney, not the court.
3. In the same report also on page 6, last paragraph, it reads as follows: “The state attorney is not required to pursue sentencingthe defendant as a prison releasee reoffender.  Even if the defendant meets the criteria for a prison releasee reoffender, the state attorney can seek to have the defendant sentenced under the sentencing guidelines or…” and “when the state attorney does pursue sentencing of the defendant as a prison releasee reoffender and proves that the defendant is a prison releassee reoffender, the court must impose the appropriate mandatory minimum term of imprisonment.
4. In the same report, on page 10 under VII, Related Issues, it states, “This CS gives the state attorney total discretion to pursue prison releasee reoffender sentencing.  If the court finds by a preponderance of the evidence that the defendant qualifies, it has no discretion and must impose the statutory maximum allowable for the offense.  And, “the provisions of this CS do not authorize a court to impose a lesser sentence even if the court believes the defendant presents no present danger to the public.  Ergo, even if the court used their discretion in determining the defendant did not pose a danger to the public and wanted to impose a lesser sentence, he/she could not do so.  That is the very definition of discretion, yet the court has no discretion in sentencing, a duty of the judiciary.  This point is further elucidated with the following last sentence from the same paragraph, “This distinction could raise arguments that the bill empowers assistant state attorneys to be the ultimate sentencing authority, rather than the elected judiciary.  This CS passed the Committee with 24 yays and 0 nays. 

The points above are reiterated in the Senate’s Criminal Justice Committee CS pages 1, 2, 6, 7, 9, 10 and page 1 of the Statement of Substantial Changes Contained in Committee Substitute (passed with 7 yays and 1 nay); and the House of Representatives Committee on Criminal Justice Appropriations Bill Research and Economic Impact Statement of April 2, 1997 pages 1 and 5.

Ricky Tyrone Neal Decision

In 2020, Ricky Neal was being resentenced in the Orange County circuit court after a motion regarding the illegality of his HVFO designation had been granted.  Since Mr. Neal had also been designated as a PRR, due to the resentencing the State had to re-notify Mr. Neal that they were seeking the PRR designation.  On 10/15/2020, Mr. Neal’s defense team filed a motion to declare the PRR statute unconstitutional.  On December 8, 2020 Judge Tom Young granted Mr. Neal’s motion stating that the factual finding that his offense was committed within three years after release from prison should have been submitted to a jury.  The State then appealed to the Fifth District Court of Appeals, but this motion was denied citing lack of jurisdiction and was dismissed on April 20, 2021.  The State then filed a response to Judge Young’s decision on February 23, 2022 but a response to this motion is still pending, and Mr. Neal has yet to be resentenced.

Based on the Judge Young’s decision in the Neal case, another PRR individual, Hermando Simmons, filed a 3.800 motion to correct illegal sentence which was filed with the Florida Supreme Court.  The Florida Supreme Court transferred this motion to the circuit court and this court denied the motion, with the Fifth District affirming the circuit court’s opinion.  Simmons then again filed with the Florida Supreme Court asking the court to accept jurisdiction and hear the motion.  This motion was denied by the Florida Supreme Court who, once again, indicated they did not have jurisdiction.

Though Judge Young granted Neal’s motion and declared the PRR unconstitutional, others who have filed motions based on the Neal decision have, to my knowledge, all been denied.  Various courts have opined that an individual’s release date from prison is derivative of a prior conviction and therefore does not need to be heard by a jury.  They have indicated that determining this date is simply a “ministerial” act, but that is incorrect.  It is only a ministerial act performed by the judge, and this in and of itself should be a separation of powers violation, but determining the release date is performed by the State Attorney who requests a “pen pack” from the Florida DOC which would inform the State Attorney when the defendant I question was released from imprisonment and the State Attorney would then calculate whether the new offense occurred within 3 years of the defendant being released from imprisonment to determine eligibility for enhanced sentencing.  This calculation determines whether the individual will be sentenced under the usual guidelines for the most recent offense, or under enhanced sentencing, and therefore it is derivative of the most recent offense.  It determines prospectively whether the defendant will be serving 100% of their sentence, or will be able to earn gain time, so once again it is derivative of the most recent offense.  The United States Supreme Court ruled that any fact other than a prior conviction must be heard by a jury.  Florida courts have admitted that the date of release from a prior prison sentence is not a bare fact of a prior conviction, but it is derivative of a prior conviction and therefore does not need to be heard by a jury.  They are wrong.  Under the habitual offender laws under Florida Statute 775.084 it states:

“Habitual felony offender means a defendant for whom the court may impose an extended term of imprisonment if it finds that:

1. The defendant has previously been convicted of any combination of two or more felonies in this state or other qualified offenses.
2. The felony for which the defendant is to be sentenced was committed:
   1. While the defendant was serving a prison sentence, or court-ordered or lawfully imposed supervision that is imposed as a result of a prior conviction for a felony or other qualified offense; or
   1. Within 5 years of the date of the conviction of the defendant’s last prior felony or other qualified offense, or within 5 years of the defendant’s release from a prison sentence, probation, community control, control release, conditional release, parole or court-ordered or lawfully imposed supervision or other sentence that is imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later.

The other categories of habitual offenders under this statute include the very same language, and thus clearly the qualification of within 5 years is commensurate with a bare fact of a prior conviction because the statute clearly delineates this fact.

The PRR, however, states that prison releasee reoffender means any defendant who commits, or attempts to commit a qualifying offense…

            “…within 3 years after being released from a state correctional facility operated by the Department of Corrections or a private vendor, a county detention facility following incarceration for an offense for which the sentence pronounced was a prison sentence….following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.”

Prison releasee reoffender also means any defendant who commits or attempts to commit any offense listed in sub-subparagraphs (a)1.a.-r while the defendant was serving a prison sentence….following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.”

The PRR section of this statute not once mentions a prior conviction.  The determining factor is “after being released…following incarceration” for an offense.  Therefore, by the plain language of the statute, the release date following incarceration is directly related to the most recent offense because it enhances the sentencing for that offense, and since it is not a bare fact of a prior conviction, it is thus a separate fact that must be heard by a jury and proved beyond a reasonable doubt. 

Recent Legislation

In the 2020, 2021 and 2021 legislative sessions, Senator Jeff Brandes introduced SB 1716, SB 210 and SB 746, respectively, which amended the sentencing structure under the PRR as follows:

            a.  For a felony punishable by life, to a term of imprisonment of 25 years (currently life).

            b.  For a felony of the first degree, to a term of imprisonment of 20 years (currently 30 years).

            c.  For a felony of the second degree, to a term of imprisonment of 10 years (currently 15 years).

            d.  For a felony of the third degree, to a term of imprisonment of 3 years (currently 5 years).

This bill also allowed for the accrual of gain time for anyone sentenced as a PRR, whereas the current law does not.  These amendments were to be applied retroactively.  According to the Senate Bill Analysis and Fiscal Impact statement for SB 1716, the legislature’s Office of Economic and Demographic Research (hereafter EDR) indicated there were 7,396 potentially eligible PRR individuals incarcerated with varying mandatory sentences as follows:  1,126 with 5 years; 3,579 with 15 years; 799 with 30 years; 1,750 with life sentences; and 142 listed as “other.” Although the bed impact could not be absolutely quantified, it was determined that with the bill proposals there would be a significant impact on the prison population.^[83] However, these bills died in committee, or were never heard.

Hypothetically, if any of these bills had passed and those in the 5 and 15-year categories had served enough time to subsequently be released, that would be an annual savings now of $131,937,610 (combined total of approximately 4,705 x $28,042); over 5 years, a savings of $659,688,050; over 10 years a savings of $1,319,376,100.  Furthermore, the amendment for felonies punishable by life to 25 years is still 10 years more than the majority of plea offerings (15 years) where the individual ultimately received a life sentence at trial.

In relation to cost, it’s important to note that with laws like the PRR, and other mandatory minimums, in which individuals are not only serving longer prison sentences, but in the case of the PRR who are then having to serve 100% of that sentence, this most probably adds to the elderly inmate population, which in turn substantially increases the cost.  According to the DOC 2020-2021 Annual Report, as of June 30, 2021 elderly inmates (defined as 50 or older per statute 944.02) accounted for 28.2% (22,675) of the total inmate population (an increase from 25.5% in FY 2018-2019).^[84] The percentage of elderly inmates increased from 26.8% on June 30, 2020 to 28.2% on June 30, 2021.  During FY 20-21, elderly inmates accounted for 55.3% of all episodes of outpatient medical events, 60.5% of all hospital admissions and 68.7% of all inpatient hospital days, even though they represented only 28.2% of the prison population.  The National Institute of Corrections has indicated that the annual cost of incarcerating those 55 or older who have chronic or terminal illnesses is 2 or 3 times that for all others on average, according to a Pew research study, and in this same study Florida was 7^th overall in elderly inmate population for fiscal year 2015 when compared to other reporting states.^[85]

VOI/TIS Theory

Although I have no doubt that the appeals regarding administrative/provisional credits related to overcrowding, as well as gain time credits, and the incorrect application of retroactivity in the opinions by Attorney General Butterworth were responsible for the drafting and passing of the PRR, I have my own theory about what may have been the catalyst, or at least contributed to, the apparent expeditious nature of passing this bill.  Title II, Subtitle A of the Violent Crime Control and Law Enforcement Act of 1994 (“Crime Act”) (Pub. L. 103-322), established the Violent Offender Incarceration and Truth-in-Sentencing (hereafter VOI/TIS) Incentive Grant Program.  Briefly, this program was developed to help states remove violent offenders from the community, and encouraged states to implement TIS laws.  This program provided formula grants to states to build or expand correctional facilities and jails to increase secure confinement space for violent offenders.  From fiscal years 1996 to 2001, half of the funds were made available for the VOI portion, and half were available as incentive awards to states that implemented TIS laws.  During FYs 1996-2001, more than $2.7 billion was allocated for the VOI/TIS program. 

VOI funds were allocated to states using a three-tiered formula, with each tier using different criteria for eligibility.  Eligible states could receive funding under all three tiers.  Florida received the second highest total award of $236,967,649.  Although the funding for each year from 1996 to 2001 was relatively equal,[86] and though a majority of states for 1996 received the exact same amount ($1,248,453), in fiscal year 1997 Florida received $73,077,414 which is almost double most of the subsequent years.  It should be noted that this amount is taken from the Bureau of Justice Assistance (hereafter BJA) report.  If one compares these figures to the semi-annual report provided by the state[87], there is a discrepancy.  The semi-annual report indicates Florida received $31,221,730 in 1996 and $43,104,137 in 1997.  With this difference, it appears that funds that should have belonged in 1997 were added to the amount reported by the BJA for FY 1996 of $1,248,453 ($77,077,414 – $43,104,137 = $29,973,277).  Add $29,937,277 to $1,248,453 and that equals the amount Florida reported for FY 1996 of $31,221,730.  I obviously do not have a reason as to why there is this discrepancy, whether honest human error, intentional, misunderstanding/miscalculation, etc., but either way there is a discrepancy.  Although everyone makes mistakes, I would be remiss to think that an error such as this was made by the BJA in a report to Congress.  Eighty-five percent of the funds from the VOI grants were available for the first two tiers, and the remaining 15% of the total funds were reserved for the third tier.

The eligibility requirements for the VOI portion of the grants are as follows:

1. Tier 1:  To have qualified for VOI funds, a state needed to provide an assurance in its application for funding that it had implemented, or was planning to implement, correctional policies and programs, including truth-in-sentencing laws that (1) ensured that violent offenders served a substantial portion of the sentence imposed; (2) provided sufficiently severe punishment for violent offenders, including violent juvenile offenders; and (3) ensured that the prison time served was appropriately related to the determination that the inmate was a violent offender and thus was deemed necessary to protect the public.
2. Tier 2:  A state that received a grant under Tier 1 was eligible for Tier 2 funds if it demonstrated that, since 1993, it had increased (1) the percentage of persons arrested for a Part 1 violent crime who were sentenced to prison; (2) the average prison time actually served by Part 1 violent offenders; or (3) the average percentage of a sentence served by persons convicted of a Part 1 violent crime.
3. Tier 3:  A state that received a grant under Tier 1 (and Tier 2, if applicable) was eligible for Tier 3 funds if it demonstrated that, since 1993, it had increased (1) the percentage of persons arrested for a Part 1 violent crime who were sentenced to prison; (2) the average percentage of a sentence served by persons convicted of a Part 1 violent crime; or (3) by 10 percent or more, over the most recent 3-year period, the number of persons convicted of Part 1 violent crimes that had made new court commitments.

Using this information, let’s note a few things.  One could certainly argue Florida utilized TIS implementation to garner grant funds, and I’m assuming it did, however as noted previously in this report Florida implemented the 85% TIS rule in 1995, one year after the passing of the 1994 crime bill, and one year prior to federal funds being appropriated to states.  Unfortunately, as of this writing I have yet to receive copies of the requested grant applications from FYs 1996-2001 in order to confirm/deny this information, and therefore these are only assumptions, but assumptions I feel are worthy of contemplation as the passing of the PRR portion of 775.082 certainly qualifies as implementation of a policy which satisfies all three tiers. 

In December of 1993, over 5,000 members of a group called STOP (Stop Turning Out Prisoners) approved a petition drive for a constitutional amendment that would require prisoners to serve at least 85% of their sentences.  This was after one STOP member inaccurately claimed in an article in the Orlando Sentinel that “We are disgusted that many Florida felons serve less than 15% of their sentence.”[88] In July of 1994, the Florida Supreme Court ruled against the proposed STOP ballot amendment.  By 1995, however, prisoners were already serving an average of 60% of their sentences and the guideline changes and the end of early releases would increase the average time served to 75% by 1996.[89] However, then-Senator Charlie Crist sponsored a bill shortly thereafter which was similar to the STOP ballot initiative.  This bill passed unanimously in the Senate and overwhelmingly in the House.  However, the 85% requirement would again require more prison beds (15,000) and subsequently an increase in operating expenses.

The question, then, became how to pay for the prison expansion afforded by the 1995 legislation of $2 billion over the next 5 years.  Despite resistance to the suggestion of cutting Medicaid funding to help pay for prisons, lawmakers voted to do just that by 4%.  In addition, the legislature cut funds for welfare and social services by making the AFDC application procedure more difficult, reducing benefits for poor pregnant women and aid to county public health clinics, and laying off HRS employees.  By making these cuts, the legislature was able to fund 3,552 new prison beds ($80 million), operating costs for the 17,000 expected new prison beds for FY 1995-96 ($219.5 million), 2,942 new DOC positions, and a 6% pay raise for corrections officers (interestingly, at the same time teachers received only a 3% raise).[90] Of note, the grant funds received from the 1994 federal crime bill would cover almost half of the needed beds.  According to the 2012 BJA report, Florida used its VOI/TIS funds to add 7,673 correctional beds, with 6,426 in operation, according to the last progress report.  

To summarize, it is my theory that the PRR was passed, at least in part, as swiftly and with such little regard to the future fiscal impact due to the State needing to implement a program or policy that would help to satisfy the tier requirements of the VOI/TIS grants.  At the time, there were already habitual offender enhancements.  TIS had been implemented in 1995.  They would need something that ensured violent offenders served a substantial portion of the sentence imposed (100%), provided sufficient punishment (certain punishment with the maximum statutory punishment allowed), increased the average prison time actually served by Part 1 violent offenders (many of the qualifying PRR offenses are Part 1), increased the average percentage of a sentence served by persons convicted of Part 1 offenses, etc.  Regardless of the “cause” or catalyst, the prison releasee reoffender act is a draconian, disproportionate and unnecessary piece of legislation.

Relevant Articles/Case Studies

In an article in the St. Thomas Law Review, author Desiree Cuason hit on several key points regarding the PRR.[91] Of note, Ms. Cuason states the PRR mandates the courts automatically sentence a defendant who commits one of the qualifying crimes within 3 years of being released from a Florida prison to the statutory maximum.  Although Ms. Cuason compares the PRR to other “three strikes” laws during that time period, the PRR is inherently different in that it is a “two strikes” law.  The 1994 Crime Bill required federal courts to sentence persons charged with a current felony to the statutory maximum if they had previously been convicted of at least two other serious violent felonies, or any combination of two or more serious violent felonies, or drug offense.  As we’ve discussed in detail, the PRR does not take into consideration the type, or number of prior offense(s).  She goes on to state, “The only significant difference between the federal “Three Strikes” law and the Act is that the federal law provides the offender with two changes, while the Florida statute does not.”

Although Ms. Cuason opines that the PRR does not constitute cruel and unusual punishment as it does not impose a sentence of death, nor does it impose a sentence so severe that it shocks the conscience of the court, but how is that not so when someone is offered a 15-year plea deal, or even a 3, 5, 7, 10-year plea, and then receives a life sentence at trial?  How is it not so severe when someone receives a life sentence for robbery where no one was physically harmed, yet people who have committed murder have been released? 

This report also touches on the issue of disproportionality by noting, “In order to determine whether mandatory sentences fall within the purview of the Eighth Amendment Cruel and Unusual Punishment Clause, courts must consider “whether under the circumstances the nature of the punishment is grossly disproportionate to the offense and goes beyond any legitimate penal goal so as to shock the general conscience and violate principles of fundamental fairness.”‘ Failure of a defendant to refrain from reoffending, combined with the failure of previous sentences to deter such defendant, justifies the imposition of statutory maximums that the Act provides. Therefore, the imposition of such statutory maximums are not disproportionate to the qualifying crimes.” However, the PRR takes into consideration only one previous sentence, and therefore even by the definition of the federal “Three Strikes” law it is highly disproportionate for someone to receive a life sentence based on that one prior offense, especially given that even the type of prior offense is irrelevant.

Another discrepancy in this article is found on page 645 and reads, “If found guilty of committing one of the qualified crimes within three years of being released from a Florida prison, the reoffender will be sentence to the maximum penalty.  The word “commits,” found in the amended language of chapter 775, mandates the finding of guilt.” However, as we know, even though an individual may have been offered a plea, that plea could still have included sentencing under the PRR, and in that respect an individual was not found guilty but admitted guilt to avoid an even longer PRR sentence. 

Under section III, the author notes the PRR could contribute to even more prison overcrowding with longer prison terms with no chance of early release, and that courts would sentence individuals to statutory maximums for what could be a minor crime, and that this would cause a tremendous strain on the financial resources of the State.  And, though it is indicated in this report that there is no violation of the separation of powers, Ms. Cuason states, “With the implementation of the Act, judges will virtually have no voice in the sentencing scheme in that if the offender qualifies, courts will automatically impose the statutory maximum, and prevents judges from exercising discretion, and recommends that based on their experiences in applying general principles, concepts and standards, lawmakers should give discretion back to judges.  Although she states sentencing is left up to the legislature and this in and of itself does not violate the separation of powers, however when someone is sentenced as a PRR the usual sentencing guidelines are bypassed, and this is exactly why it does violate the separation of powers. 

In her summary and recommendations, Ms. Cuason suggests alternatives to sentencing such as partial and short-term confinement, intensive supervision, electronic monitoring and community service.  But, more importantly, lawmakers must develop new ways of preventing future crimes with things such as early intervention school programs, job training and placement programs to educate troubled youth. 

In another case study from 2002, author Pamala Griset brilliantly displays the history prior to the passing of the PRR and how amendments to gain time were the ultimate catalyst to its passing.[92] Regarding its definition, she wrote:

            ”The PRR was a mandatory sentencing law that clearly designated the prosecutor as the most powerful person in sentencing. Prosecutors were not required under the law to file PRR status for qualifying offenders, but when they did, judges could not intervene. Judges could not impose a lesser sentence by departure because the PRR bypassed the sentencing guidelines. Nor were any other avenues for mercy left to judicial discretion. The legislature sought to encourage prosecutors to file PRR status, however, by requiring them to write reasons, to be made public, for not filing against qualifying offenders.”

This report refers to the court decisions I’ve already discussed, Gwong v. Singletary and Lynce v. Mathis, and also reiterates how upset the legislature was regarding these decisions and utilized the PRR in retaliation.  As noted, one of the individuals she interviewed stated, “‘The PRR evolved from the late 1980s. There were so many variations of sentencing because every year the Legislature changed its sentencing policy, so the DOC had different rules for everyone, depending on the date of their crime. The Legislature said ‘no more gain time,’ but the courts said ‘no, you can’t arbitrarily take it away.’ Hundreds of offenders were released early, and many might commit crimes, so the Legislature said ‘whenever they’re released, if they commit another crime, then they get a long, long sentence.’’ Another interviewee noted, “‘giving them the statutory maximum, no gain time… was overkill. What was really needed was supervising them closely once they were released. But it [the PRR] got caught up in politics, and the Speaker put his entire weight behind passing it. He said ‘we’re not going home without this bill.’ He held hostage everything else.’’ Other interviewees, including some prosecutors, indicated the PRR was unnecessary as there were already habitual offender laws to cover every potential situation, but they did note that the PRR was different in “the extent of power allocated to prosecutors and removed from judges.”

Plea Questionnaire Findings

FPFU sent out approximately 500 questionnaires to random individuals incarcerated in several of Florida’s correctional institutions.  Of those 500 questionnaires, 204 were returned with findings noted below:

1. A total of 129 of respondents, or 63%, were offered a plea.
2. Of the total of 129 plea respondents, 84% (109) were black, 15% (19) were white and 1% (1) were Hispanic (1).
3. The average plea offered was 18 years with 100 of those respondents ultimately being given a life sentence.
4. Of those 129 plea respondents who provided their score sheet (45), the average lowest possible sentence that could have been given under the usual guidelines is 10 years.
5. Of those 129 plea respondents who provided their score sheet which included the victim injury section (44), in 80% of the cases (35) there was zero victim injury, in 11% (5) there was slight victim injury, in 7% (3) there was moderate victim injury and in 2% (1) there was severe victim injury.
6. A total of 75 respondents, or 37%, were not offered a plea.
7. Of the 75 respondents who were not offered a plea, 83% (62) were black, 16% (12) were white, and 1% (1) were Hispanic.
8. Of the 75 respondents not offered a plea who provided their score sheet (25), the average lowest possible sentence under the normal guidelines was 9.5 years.
9. Of the 75 respondents not offered a plea who provided their score sheet which included the victim injury section (26), in 81% (21) of the cases there was zero victim injury, in 8% (2) there was slight victim injury, in 3% (1) there was moderate victim injury, and in 8% (2) there was severe victim injury. 
10. Of the 75 respondents who were not offered a plea, 97% (73) received life sentences and 3% (2) received 30 years.

Racial/Ethnic Impact

The plea study noted above, although not as broad as one would like it to have been, still recognizes the racial disparity of the PRR.  I have perused the Racial/Ethnic Impact Statement which was prepared for last session’s SB 1716 by the Florida State University College of Criminology and Criminal Justice.  According to this report, “it was found that there is racial/ethnic disparity in the rate of qualifying offenders sentenced as PRR’s.  Black offenders were more likely to be sentenced as PRR’s for all felony types than were Hispanic and White offenders.” It goes on to state, “Prior research has not examined potential racial/ethnic differences among offenders sentenced to prison under Florida’s PRR Act.  Research estimating the impact of the PRR shortly after its implementation, however, suggested that the Act resulted in large increases to the prison population, especially among offenders who otherwise would not have been sentenced to prison if they had not been designated as a PRR (Cuason, 1998; Griset, 2002).”

According to an investigative report done by The Marshall Project and the Tampa Bay Times in 2021, there are approximately 2,100 individuals serving life sentences under the PRR, which is about 15% of Florida’s “lifer” population.  This report found that the PRR law has been disproportionately applied to black men, 75% of whom are serving time because of it. A link to this article, along with two others done by The Marshall Project and Tampa Bay Times, can be found at our website, prrfam.org.

Following the publication of the above-mentioned reports, the Florida Sheriff’s Association released their own report regarding the PRR.  Although we certainly respect law enforcement and their opinions regarding crime, much of their report was inaccurate, or with incomplete information.  Links to their report, as well as my response to their report, may also be found at our website under the “Important Links” tab. 

One of the criticisms of the FSA has been that lowering the prison population would necessarily increase crime rates.  However, as per the 2020 report “Explaining the Past and Projecting Future Crime Rates,”[93] there is clear evidence that lowering state and federal imprisonment rates will not necessarily trigger increases in crime.  They gave an example of 4 states where prison populations had been lowered by over 20% and crime rates had also declined by substantial amounts.  By 2017, New York had reduced its prison population by 32%, but also had a 43% reduction in the UCR crime rate.  New Jersey had a 38% reduction in the prison population, with a 48% reduction in the UCR crime rate.  Maryland had a 17% reduction in their prison population, with a 34% reduction in crime.  California had a 25% reduction in their prison population, with a 21% reduction in crime.[94]

This report further elucidates that a state’s prison population represents a small share of the total correctional system, with jails and probation containing far more admissions than prisons.[95] The authors beg the question, “Was it the rise in the prison population or the much larger number of people being booked and held in local jail systems or being sentenced to probation that most influenced crime rates?” And then go on to surmise, “There is certainly a possibility that the other forms of correctional control have had a greater impact than imprisonment has, particularly the jail and probation systems, which make up 90% of the total admissions to the correctional system and represent two-thirds of the total correctional population.  These statistics should prompt policymakers and criminologists to question previous conclusions regarding the effects of imprisonment alone on crime.”

The average daily population for Florida jails/detention centers in the month of October 2020 was 48,602 which was as 12.5% decrease from the previous year, however of note this decrease is most likely due to the pandemic.[96] Therefore, Florida county jails/detention facilities house approximately half of the entire prison population on a daily basis.

Crime Victims 

One of the misconceptions about reformers is that we don’t care about victims.  This couldn’t be further from the truth.  Reform should not only include changes to laws, it should more so include greater access to rehabilitation, with the goal of ensuring when someone is released from prison there will be no more victims, or, at the very least, much less.  When Dorian Mackeroy wrote to Senator Brandes, he was honest in stating that for many years after he received his life sentence he was kind of lost in what it is he wanted to do, or even how he felt at spending the rest of his life in prison, but one day he decided the most important thing was to ensure there were no more victims, not only outside prison, but also inside, and vowed that even though life in prison seemed hopeless, he was resolved to be a better person.  James Wilson stated to me several times that if I were ever to have a chance to speak in front of legislators about the PRR that they give me more than two minutes to speak because his victim deserved more than two minutes for me to explain why he should be released from prison. 

The criminal justice system, and lawmakers, will always purport that what they are doing in terms of laws and upholding those laws are done for the victims.  But, do they really understand what victims want?  And, if they do, do they always abide by those wishes?  As proven by the plea agreements and plea deviations, they do not.  In 2016, the Alliance for Safety and Justice (ASJ) released their National Survey of Victim’s Views report.  This report was conducted by David Binder Research, which contacted a nationally representative sample of 3,165 people across the country, and, from that pool, identified and interviewed over 800 victims of both non-violent and violent crimes.

This report found that 61% of crime victims support shorter prison sentences, and more funding for prevention and rehabilitation.  By a margin of 3 to 1, crime victims believe that time in prison makes people more likely to commit another crime rather than less likely.  By a margin of 15 to 1, victims prefer increased investments in schools and education rather than prison and jails.  By a margin of 10 to 1, victims preferred increased investments in job creation rather than in prison and jails. 

In 2018, the ASJ did a similar report specifically for the State of Florida.[97] The same research company as the national study conducted the survey in both English and Spanish in January 2018 via landline phones and online.  Respondents self-identified as victims and provided the types of crime they had experienced in the last 10 years.  Of those interviewed, 88% supported investing more in education and communities than jails and prisons, and 83% supported investing more in job training and workforce development than jails and prisons.  By a margin of 4 to 1, victims think prison makes people more likely to commit crimes than to help rehabilitate them into better citizens; by a margin of 3 to 1, victims prefer shorter sentences and more spending on prevention and rehabilitation programs to longer sentences that keep people in prison for as long as possible; 7 in 10 (69 percent) think rehabilitation, drug treatment, and mental health treatment is a better way to prevent future crimes than punishment through incarceration; and 8 in 10 (78 percent) prefer that prosecutors focus on solving neighborhood problems and stopping repeat crimes through rehabilitation, even if it means fewer prison convictions. 

In addition to surveying crime victims about their broad priorities, the ASJ also asked about reforms that have been raised as policy reform options in Florida.  Overwhelmingly, victims support policy changes that restore judicial discretion, incentivize participation in rehabilitation and risk-reduction programs, and reduce the use of prison for less serious crimes such as drug possession and petty theft.

Interestingly, this report also shows that although victims in Florida support the above measures, they also feel the system is not meeting their needs as victims.  So, once again, how much does the criminal justice system in Florida truly care about not only victims’ views on their needs and support, but also on the system itself, when they are clearly taking neither into consideration?

Although many states, and the federal government, have accomplished reforms that have reduced their prison populations, many of these reforms have been related to offenders/offenses deemed “non-violent.” However, most state inmates (in Florida, 56%[98]) have been convicted of violent crimes.  Therefore, reductions in incarceration must, at least in part, depend upon reducing sentences for violent offenses.  In a 2018 article for USA Today, sociologist Bruce Western wrote, “The political challenges for achieving criminal justice reform are formidable. Political debate portrays violence as a characteristic of certain people — thugs who are beyond redemption, people with no conscience. Using anger and fear to punish them with life sentences or death has become an intractable part of public policy.”[99]

This article also references the Boston Re-Entry Study[100] for which Mr. Western was the chief investigator for the Harvard University Team.  During the course of this study, half of the 122 individuals who were interviewed indicated they had been beaten by their parents; 40% had witnessed someone being killed; 30% grew up with other family violence; and 16% reported being sexually abused.  Mr. Western further writes, “Violence is as much a characteristic of places as of people. Poor and chaotic homes, disorderly and low-income neighborhoods, and the prisons and jails that lie, in some cases, in close proximity to them, are places where violence frequently happens.  Some of the same violent conditions (domestic abuse, childhood sexual trauma) also exist in middle- and upper-income households. But people in higher-income areas also have more economic opportunity, greater access to mental health treatment and the ability to more easily leave bad situations behind.”    

It is understandable that legislators do not want to appear “soft on crime,” which understandably occurs with conversations regarding violent crimes, but when we talk about victims we must include even those who go on to victimize. 

Advocacy

Several years ago, I started a petition on Change.org which calls for the retroactive repeal of the PRR.  As of the writing of this report, the petition has 10,668 signatures (up from 4,875 signatures in 2020).  In 2020, Brenda “Kay” Spitzbarth started Florida PRR Families United to bring awareness to this egregious law as her son is one of the PRR individuals who spent his time in a county jail prior to the 2019 amendment, yet he has continued to be denied relief, even following the Lewars decision.

Conclusion

The PRR is a draconian, egregious and wholly unnecessary law which was drafted for purely political, malicious and, in my opinion, short-term economic reasons.  Buddy Jacobs of the FPAA testified at a Senate committee meeting during the 2020 session that none of the criminal justice bills from the 1990’s were drafted maliciously, but how much more malicious is it to pass a law of such magnitude as the PRR simply due to restored early release credits?  All of the individuals who’d had credits restored were going to be released eventually.  The restored credits were due in part to the legislature not adequately dealing with prison overcrowding issues stemming from the 1970’s and 80’s, and the remainder were credits that had to be earned.  And, if my theory is correct and the PRR was utilized to receive federal grant monies, how is sending thousands of people to prison for terms sometimes decades longer than necessary for short-term grant money not the very definition of malicious?  Even with the small sampling the FPFU was able to provide, we can see that the State time and again was comfortable offering anywhere from 3 years to 5, 10, 15, etc., years to individuals who ultimately were given life.  How is this type of law not considered malicious?  How malicious is it to pass a law knowing the DOC could have disciplinary problems with individuals who not only received disproportionately long sentences, but would also have absolutely no incentive for good behavior due to having to serve 100% of the sentence?  How malicious is it to take an egregious law and make it worse with amendments that increase the eligibility net and make it watertight to appeals?  How malicious is it to continue to not amend and/or retroactively repeal this statute simply because it helps prosecutors and courts clear dockets? 

As we’ve determined, the PRR is disproportionate in a myriad of ways, and we’ve even determined that the PRR disproportionately affects African Americans. 

Although the courts have mostly disagreed, the PRR does violate separation of powers in that it gives the state attorney sole discretion in whether someone is sentenced as a PRR, and this has been proven without a doubt.  Sentencing is the role of the judiciary and should be left to such.

The PRR is the very definition of, if not cruel, at least unusual punishment.  The PRR does not take into consideration the type of offense, nor the number of offenses, before it is ultimately able to qualify someone for a life sentence after only two “strikes,” and in many of these instances, as we have proven, there was absolutely no physical victim injury.  Only two instances of “proof” are needed to qualify someone as a PRR, that the individual committed a qualifying offense, and that the most recent offense occurred within 3 years of the individual being released from a prison sentence.  Absolutely nothing else may be taken into consideration by the court when determining sentencing.  PRR individuals must serve 100% of their sentence and are not eligible for gain time or any other form of early release.  The PRR is a mandatory maximum where the statutory maximum is the sentence that must be imposed.  Since its inception, there have been approximately 14,000 individuals sentenced under the PRR.  You will not hear even one of those individuals who say they did not deserve punishment for their crimes, but in a majority of instances, the punishment simply does not fit the crime. 

Thank you for your time.  The following are summaries of several PRR cases I’ve chosen to highlight, but there are many, many more examples of why this law needs to be repealed, or, at the very least, extensively amended. 

Case Studies

Dorian Mackeroy:  In 1998, at the age of 23, Dorian was sentenced to life under the PRR in Pinellas County for robbery with a firearm.  His victim was not physically injured.  The prior sentence that qualified him for the PRR was robbery with no gun/deadly weapon at the age of 16.  At that time, however, since he was simply only with the other youth who actually committed the crime, he took a plea of 4 years as a youthful offender as a principal to robbery.  Dorian was released from that sentence on September 30, 1994.  Since the PRR was not passed until May 30, 1997, Dorian would not have received the PRR “warning” notice as required by the statute.  Due to the qualifying PRR offense of robbery and his past offense of robbery, even though he plead to a lesser charge and did not even actually commit the first robbery, he was also designated as a “habitual violent felony offender,” though he physically hurt no one in either of the offenses.  The HVFO was later stricken per court order on August 24, 2004, but the PRR life sentence was left intact.  The lowest possible sentence Dorian could have received under the usual guidelines is 6-1/2 years, and the maximum prison sentence he could have received under the usual guidelines is 11 years.  Even with his life sentence, Dorian has managed to take as many programs as are offered for those serving life.  Dorian is married and has 3 children, many grandchildren and a large extended family who are supportive.  Dorian has been incarcerated for 23 years, 8 years more than the 15-year majority plea offered in robbery cases, and 6 years more than the average plea offered in the FPFU study.  It has already cost the state approximately $500,000 to house Dorian, and if he spends the next 33 years in prison it will cost the State approximately $750,000 more.  And, what will this 33 years prove/gain in the end?

Samuel L. Green, II:  The prior offense that qualified Samuel as a PRR was an armed robbery that occurred in 1992.  He was sentenced to 5 years in prison followed by 10 years of probation.  He was released from actual prison on March 7, 1997, TWO MONTHS BEFORE the PRR was passed into law.  He started his probation at that time, and violated probation with a technical violation (no new charge) and went back to prison in January of 2002 to serve the probation violation time, and was released on January 1, 2003.  The most recent offense of robbery with a firearm occurred in June of 2004, seven years after he was released from actual prison.  Samuel’s technical probation violation was used to qualify him as a PRR, even though he was released from actual prison BEFORE the PRR was passed into law, BEFORE the PRR was amended to include “from a prison sentence,” which would include probation.  Obviously, Samuel also did not receive the PRR notice from the DOC.  For the most recent offense, Samuel was offered a 15-year plea as a PRR and indicated that one of the reasons he did not accept that plea is because his trial attorney informed him they had to be noticed in writing before trial if the State was going to seek the PRR.  He also elected to go to trial because the lowest possible score he could have received under the usual guidelines was 5-1/2 years.  Samuel is currently serving a life sentence under the PRR.  Samuel was 32 when he was given his life sentence; he is now 47.

Mark Jones:  In 2012, Mark, an honorably discharged Army veteran, was sentenced to life under the PRR for burglary/assault any person.  The details of the “assault” are that Mark walked up to the victim’s car talking on a cell phone, he reached in the car and grabbed her wrist and said, “get out of the car and give me your keys.” She looked at him and didn’t think he was serious, and when she realized he was serious she screamed and Mark walked away.  The State Attorney pursued PRR in Mark’s case due to him being sentenced to 1 year and 1 day in prison for grand theft of $300/less than $5000 for which he was sentenced on June 5, 2008 and was released on December 24, 2008.  His qualifying PRR offense occurred on June 27, 2011.  The lowest possible sentence Mark could have received was 5-1/2 years.  There was no physical injury, weapons used, etc.  The Veteran’s  Administration was active throughout his incarceration and up to trial, but the State Attorney would not talk to them.  Mark had a serious drinking problem due to an incident which occurred during service in the military.  He eventually was unable to hold down jobs and would commit thefts because he had no money or home.  Mark also has a documented traumatic brain injury and PTSD from active duty service and multiple social workers from the VA were present throughout his trial and at sentencing, yet the State continued to refuse to cooperate with them for any type of treatment plan.  In all the time Mark has been incarcerated, he has never received a disciplinary report.  Mark’s father is a retired special agent who spent 30 years with the FBI, his mom a retired schoolteacher who passed away recently while he has been incarcerated.  Mark is married and has 2 brothers.

Michael Nicks:  If you were to look up Michael Nicks on the DOC website, his offenses would make one think he’s a really bad guy.  First-degree murder, robbery.  Michael has 2 life sentences, and unless you knew the details of his case, you might think he deserves to be in prison for the rest of his life.  But, that is exactly why taking discretion away from judges, as with the PRR, does not allow anyone to take into consideration the individual nuances of each case.  At the age of 23, Michael was sentenced for the first-degree murder under the felony murder rule.  In February of 2001, Michael was visiting Orlando with 2 friends.  They met a man who one of his friends was possibly selling a gun to.  This buyer ended up shooting and killing a taxi driver.  Though Michael did not know the shooter, nor the cab driver, and did not shoot or kill anyone, due to the felony murder rule he was sentenced as if he had.  The friend who was selling the gun received a 15-year plea deal in exchange for testimony that a robbery was what led to the murder and that Michael had conspired with the buyer to help with the robbery.  The individual who actually killed the cab driver received 25 years.  Michael was the least involved in the incident, but ended up with the 2 life sentences because of the PRR.  A few years prior to the incident he had stolen some car batteries from a junk yard full of golf carts.  He was caught and given 18 months of work release.  This offense is what qualified Michael for the PRR.  The judge in Michael’s case, Richard Conrad of the 9^th Judicial Circuit in Orlando, actually apologized to Michael for having no other choice but to sentence him to life.  Michael is now in his early 40’s.  The same year he went to prison, he became a mentor and tutor in education.  He has been a chaplain’s orderly, and a colonel’s orderly.  He is a mentor and program auditor in Wakulla’s faith and character based rehabilitation program, and has 1,220 hours in this program.  Michael’s goal is to work as a paralegal, and one day, if granted his freedom, to become a lawyer.  The morning of his trial, Michael was offered a 15-year plea deal, which he declined as he did not murder anyone, nor had he conspired to murder anyone, but he is now serving a life sentence.  Michael has been in prison for 18 years, 3 years longer than the 15-year plea he was offered.

Louis Smock:  Though there was no victim injury in his case, in 2008 Louis was sentenced to 5 life sentences for robbery with a gun/deadly weapon, and two sentences of 30 years for robbery without a gun/deadly weapon.  The lowest possible sentence he could have received is 22 years.  One month after his arrest, Louis was offered a plea of 26 years DOC with 10 years minimum mandatory, 10 years of probation, and a $250 fine.  However, because he chose to go to trial, and due to the PRR, he received the above sentences.  Five life sentences where no one was hurt.

Dontarious Carr:  In 2014, Dontarious was charged with robbery with a gun/deadly weapon and possession of a concealed weapon/firearm by a convicted felon.  There was no victim injury, and the lowest possible score he could have received under the usual guidelines was 7 years.  Dontarious was deemed to qualify as a PRR and faced a life sentence at trial due to the offense of robbery with a deadly weapon being punishable by life, but he was offered a 15-year plea as a PRR, which he accepted.  His current release date is 2029. 

Marcus Maye:  In May of 2002, Marcus was charged with robbery w/a deadly weapon.  There was no victim injury, and the lowest possible sentence he could have received under the usual guidelines is 5-1/2 years.  He was first offered a 30-year plea before trial, then 20 years at the start of trial.  Marcus declined the plea, went to trial and received a life sentence due to the PRR.

Kenneth Nelson:  In March of 2007, Kenneth was charged with robbery while armed with a firearm or deadly weapon.  There was no physical victim injury, and the lowest possible sentence he could have received under the usual guidelines was 5 years.  In 2007, Kenneth’s lawyer received a letter from Jennifer Kuyrkendall, the assistant state attorney of the Office of the State Attorney of the third judicial circuit indicating Kenneth was released from prison on January 6, 2007 and this therefore qualified him as a PRR.  The prison sentence Kenneth was released from at that time was for burglary of an occupied dwelling in which he received a 2-year and 8-month prison sentence.  Ms. Kuyrkendall indicated that being subject to qualifying as a PRR he would be sentenced to a mandatory life sentence.  She further went on to state that, “If your client wants to enter into a plea agreement with the State, I will amend the information to where it is charged as a 10-20-Life case pursuant to Florida Statute 775.087.  Sentencing under that statute would only be a 20-year mandatory sentence.” Part of this offer also included, “…and offer a proffer of testimony against his co-defendant and testify truthfully with or without subpoena.” To reiterate, even though there was no physical injury to the victim, and even though the lowest possible sentence he could have received was 5 years the ASA felt a mandatory 20 years was appropriate, which it wasn’t, as long as he cooperated with the State and testified against his co-defendant.  Kenneth obviously refused the plea, and is now serving a life sentence.  Another example of disproportionate sentencing, and sentencing decided entirely by the ASA, not the court.

Linda Wright:  One of the very few women sentenced under the PRR, at the age of 47 Linda was charged with robbery with a weapon in October of 1998.  Linda indicated to me that during the time she was going back and forth to the court for her case her lawyer would tell her she was facing 30 years, so she told him she wanted to go to trial, believing that if she lost she would receive the 30-year sentence.  In June of 1993, Linda was charged with grand theft $300 less than $20,000 and received a 5-year prison sentence.  She was released from that sentence on March 21, 1997, which is again two months before the PRR was signed into law, and in my opinion should absolutely not qualify someone as a PRR.  If the DOC PRR warning notice precludes the State having to provide notice to defendants prior to trial so they are able to prepare an adequate defense, then it is absolutely obvious that any individual released prior to this law taking effect were NOT noticed.  There was no physical victim injury in Linda’s case, and the lowest possible sentence she could have received under the usual guidelines was 9.8 years, yet because she chose to go to trial she is now serving life as a PRR plus 30 years as a habitual offender for the robbery, and 30 years as a habitual offender plus 15 years as a PRR for count 2 which was aggravated battery (again, no victim injury is indicated on her score sheet).  Does anyone else not see these sentences as extreme?!  Linda didn’t murder anyone, she didn’t even physically hurt anyone, yet because she chose to go to trial she is serving life PLUS.  Absolutely ridiculous.  Linda is now 68 years old.  She has been in prison now for 22 years.

Keith Bland:  In April of 1993, Keith was sentenced to 5 years 6 months DOC for aggravated battery with a deadly weapon and was released from that sentence on May 7, 1997 which was, once again, before the PRR was passed into law.  Keith was charged with armed robbery in July of 1997.  There was no physical victim injury, and the lowest possible prison sentence Keith could have received under the usual guidelines was 4.8 years, and the maximum prison sentence he could have received under the usual guidelines was 8 years.  Keith was initially offered 30 years with 20 mandatory, then 25 with 20 mandatory, and the last offer made to him was 20 years PRR.  Keith indicated he asked for 10 years but that was declined by the State, even though the maximum sentence he could have received under the usual guidelines (97.5 points) was 8 years.  Keith was 22 when he was given his life sentence, and he is now 44, having served almost THREE TIMES the maximum amount that he would have received without the PRR.  If Keith had been given the maximum sentence under the usual guidelines, it would have cost the state approximately $181,504 (not accounting for gain time, so it could be even less).  Due to the PRR, the state has already spent approximately $317,632 more than was necessary just for Keith, and if he should live to be 78 they will spend approximately $771,392 more for a total of $1,089,024 just on Keith alone. 

Alexander Patterson:  If you look up Mr. Patterson on the DOC website, it appears he has 11 life sentences.  What comes to mind when you think of even one life sentence, let alone 11?  One would perhaps think of a terrorist, serial killer, etc., yet Alexander was found guilty of robbery with a gun/deadly weapon.  No one was physically hurt as a result of the robbery.  The previous prison sentence which qualified Alexander as a PRR was for sale, delivery and possession of cocaine.  Alexander committed 2 robberies.  The reason it appears as if he has 11 life sentences is because the SA wanted to charge separately for everyone that was in the 2 stores at the time.  Alexander’s co-defendant received 30 years and is set to be released June 5, 2024.  Alexander tried to get a plea for 25 years, but the SA offered only life.  Well, that is unless Alexander agreed to testify against his co-defendant, then they would have offered him 5 years.  Alexander was 24 when he was given his life sentence.  He is now 45 and has been in prison for 21 years.  He is supported by his loving wife.

Horace Stokes:  In June of 2014, Horace was charged with robbery with no firearm/deadly weapon, a second-degree felony that carries a maximum term of 15 years in prison.  There was no victim injury, and the lowest possible sentence Horace could have received under the usual guidelines was a little less than 7 years, with the maximum being 15 years.  Horace was offered a plea of 15 years and 1 day in prison as a habitual felony offender with a 15-year PRR mandatory.  On the plea agreement, the assistant state attorney indicated that since Horace qualified as a PRR, a conviction would mandate a life sentence.  However, if Horace were to forego his constitutional right to trial and enter a guilty plea, he would receive the earlier-mentioned sentence.  Because he chose to go to trial, he received a life sentence.

William Graves:  In March of 2001, William was charged with robbery with a firearm at the age of 39.  There was no victim injury, and under the usual guidelines the lowest possible sentence he could have received was approximately 6 years.  William indicated to me that four years after his conviction it was suggested to him that he should write the state attorney’s office in the county of his conviction and inquire if there was ever a plea offered in his case.  William received a response on July 25, 2006 from the 7^th Judicial Circuit’s ASA Bryan Feigenbaum that it was believed a plea of “three or four years DOC before trial began” had been offered, and subsequently rejected by William.  William denies knowledge of any plea offer, and although his trial counsel, James Purdy, indicates he had notified William of a plea received from the prosecutor of 3-1/2 years in prison followed by 3 years’ probation, it is incredulous to me that a 39-year-old individual facing a life sentence as a PRR would reject such an incredibly low offer.  William has been in prison for 18 years, 14 to 15 years more than his offered plea of 3-4 years.

Joshua Lingebach:  In 2006, Joshua was charged with robbery with a gun or deadly weapon.  There was no physical victim injury.  Joshua was not offered a plea, however the prosecutor trying his case requested PRR to be waived in order to accept a plea, but his supervisor would not agree to a waiver.  Joshua received his life sentence when he was 27, he is now 40.  During his incarceration, Joshua has completed many classes and gained many certificates including, but not limited to, Victim Impact, Financial Literacy, Parenting Classes, Toastmasters, Life Mapping, Commitment to Change 1 and 2, Financial Peace, Civics 911, Parenting From the Inside Out, G.R.O.T.H., journaling, Trauma Recovery, Beyond Anger, Personal Financial Management and Substance Abuse. 

Cyril Innis:  In 2002, Cyril was charged with robbery with a gun or deadly weapon.  The prior prison stay which was used to qualify Cyril as a PRR occurred in the State of Massachusetts.  Cyril was released on May 21, 1998 from the North Central Correctional Institution in Gardner, MA where he was serving time for armed robbery.  He was rearrested approximately 11 months later for possession of cocaine and was released from a county jail approximately 4 months later.  Although thereafter he ended up getting married and starting his own company, he relapsed.  Cyril’s wife convinced him to move to Florida, and even though he ended up working as a lead counselor at the Human Crisis Council in Orlando, he once again relapsed and ended up in a situation which led to the offense for which he is currently incarcerated.  During the commission of the robbery, Cyril utilized a BB gun which was not loaded with BB’s.  Cyril was offered a plea of 20 years after 8 months, then 25 years right before trial.  He was given the PRR designation on the first day of his trial, and since his prior prison sentence was not in the State of Florida, he would not have received the PRR “warning” notice.  Cyril took his case to trial, with one of the reasons being his lawyer told him Florida had parole.  Cyril’s sentencing judge did not want to give him life under the PRR, but of course the judge had no choice but to do so.  Cyril has been incarcerated for 19 years.  During that time, he has remained DR-free, has obtained a Bachelor’s degree in Christian Counseling and is an ordained minister.  He currently works as a Senior Drug Treatment Facilitator for the treatment program where he is currently housed. 

Christopher Aikens:  In 1993, Christopher was sentenced to 9 years in prison for robbery with no gun/deadly weapon.  He was released from that sentence on January 9, 1997 which was more than 4 months prior to the PRR being passed into law.  Once again, Christopher did not receive the PRR “warning” notice which precludes notice of PRR sentencing intent.  Furthermore, Christopher is adamant he did not commit the most recent robbery for which he is serving a life sentence.  Christopher has information that supports his innocence, but he has failed to find relief in the courts thus far.  Christopher was offered a 15-year plea deal which he rejected because he maintained his innocence of the actual robbery.  Christopher was found guilty at trial and is now serving a life sentence for a robbery he maintains to this day he did not commit.  Christopher was 31 when he was given his life sentence, and he has now spent 22 years total incarcerated, 7 years more than the plea he was offered.  The lowest possible sentence he could have received under the usual guidelines was 12-1/2 years.

---

[1] State v. Cotton, 769 So.2d 345 (Fla. 2000)

[2] Treason; murder; manslaughter; sexual battery; carjacking; home invasion robbery; robbery; arson; kidnapping; aggravated assault with a deadly weapon; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; any felony that involves use or threat of physical force or violence against an individual; armed burglary; burglary of a dwelling or burglary of an occupied structure; or any felony violation of s. 790.97, 800.04, 827.03, 827.071 or 847.0135.

[3] For a felony punishable  by life, by a term of imprisonment for life; For a felony of the first degree, by a term of imprisonment of 30 years; For a felony of the second degree, by a term of imprisonment of 15 years; For a felony of the third degree, by a term of imprisonment of 5 years.

[4] 775.082 (9)(1)a, Fla. Statute

[5] Chapter 97-239, House Bill 1371, Laws of Florida

[6] Chapter 97-239, House Bill 1371, Laws of Florida

[7] Gomez v. Singletary 733 So. 2d 499 (1998)

[8] 944.598, Fla. Stat. (1983)

[9] Chapter 86-46, Laws of Florida ; 944.598, Fla. Stat. (Supp.1986)

[10] Chapter 87-2, Laws of Florida

[11] Chapter 93-406, Laws of Florida

[12] 944.277, Flat. Stat. (Supp. 1988); Chapter 88-122, Laws of Florida

[13] 944.277(1)(h) and (i) (1989)

[14] Herring v. Singletary, 879 F. Supp. 1180

[15] AGO 92-96

[16] Herring v. Singletary, 879 F. Supp. 1180; 944.278, Fla. Stat. (1993); Chapter 88-122 and Chapter 93-406 Laws of Florida

[17] Lynce v. Mathis, 519 U.S. 433 (1997)

[18] Lynce v. Mathis, 519 U.S. 433 (1997)

[19] Calamia v. Singletary, 694 So. 2d 733 (1997)

[20] Building The Prison State, page 167

[21] Journal of the House of Representatives, March 13, 1997, page 195

[22] Chapter 97-239, Section 4(6), Laws of Florida

[23] Gwong v. Singletary, 683 So. 2d 109 (1996); House of Representatives h1371s2z.cp, page 4

[24] Op Atty. Gen. Fla. 96-22 (1996)

[25] House of Representatives h1371s2z.cp, page 3

[26] Gwong v. Singletary, 683 So. 2d 108 (1996)

[27] House of Representatives h1371s2z.cp, page 4

[28] House of Representatives h1371s2z.cp, page 4

[29] House of Representatives h1371s2z.cp, page 4

[30] h1371s2z.cp, pages 2-4

[31] h1371s2z.cp, page 3

[32] Florida Department of Corrections Annual Report, 1997-1998 Fiscal Year

[33] Representatives Villalobos, Putnam, Crist, Harrington, Ball, Warner, Flanagan, Culp, Morroni, Morse, Fasano, Valdes, Lacasa, Goode, Thrasher, Bronson, Smith, Wiles, Livingston, Laurent, Bainter, Dockery, Byrd, Posey, Cosgrove, Melvin, Sanderson, Argenziano, Brooks, Edwards, Spratt, Barreiro, Casey, Minton and Feeney; Committees on Criminal Justice Appropriations, Crime and Punishment, HB 1371.

[34] Chapter 97-239, page 7, Laws of Florida

[35] Chapter 97-239, page 3, Laws of Florida

[36] Chapter 97-239, page 3, Laws of Florida

[37] State of Florida v. Dazarian Cordell Lewars, SC17-1002

[38] CS/HB 7125, page 81, 2014-2018

[39] House of Representatives Staff Analysis Final Bill Analysis, page 21

[40] Senate Staff Analysis and Economic Impact Statement, CS/SB 2362, Criminal Justice Committee, pages 2, 3 and 4

[41] House of Representatives h1371s1b.cp, page 4

[42] Chapter 97-239, Laws of Florida, page 4

[43] House of Representatives h1371s1b.cp, page 10(V)(1)

[44] Chapter 97-239, Laws of Florida, page 1

[45] Senate Staff Analysis and Economic Impact Statement, CS/SB 2362 (Ways and Means), page 6 (III)

[46] Senate Staff Analysis and Economic Impact Statement, CS/SB 2362 (Ways and Means), page 6 (III)

[47] House Committee on Crime and Punishment h1371s1b.cp, pages 8 and 9

[48] House Committee on Crime and Punishment h1371s2z.cp (final bill statement) page 10, appendix A

[49] Senate Staff Analysis and Impact Statement CS/SB 2362, page 8, 9

[50] Senate Staff Analysis and Impact Statement CS/SB 2362, page 9

[51] House Committee on Criminal Justice Appropriations h1371s2c.cj, page 10

[52] Florida DOC 2020-21 Annual Report

[53] Senate Staff Analysis and Economic Impact Statement, CS/SB 2362, April 10, 1997, page 1

[54] Florida Department of Corrections via public records request, March 2019

[55] Centers for Disease Control and Prevention, National Center for Health Statistics, United States Life Tables 2017

[56] The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, National Association of Criminal Defense Lawyers, July 10, 2018

[57] Florida Girl Abducted on Video is Found Dead; Mechanic with Criminal Record is Charged, The New York Times, February 7, 2004

[58] Tatiana Morales, “Mechanic Charged in Carlie’s Death,” CBS News, February 6, 2004

[59] “The Body of a Missing Florida Girl is Found, Associated Press, The New York Times, March 20, 2005

[60] “Building the Prison State,” Heather Schoenfeld, page 180

[61] “14 Years Later, 2004 Deltona Massacre Resonates,” The Daytona Beach News Journal, August 10, 2018

[62] Message from Attorney General Charlie Crist, May 6, 2005

[63] Florida Legislature, 37^th regular session

[64] “Costly Bill Targets Violent Felons, Scott Hiaasen, Miami Herald, April 4, 2005, IB

[65] “Crist Sticking to His Theme,” Steve Bousquet, St. Petersburg Times, June 22, 2006, IB

[66] “The Anti-Murder Act,” St. Petersburg Times, April 27, 2006, 14A

[67] “Anti-Murder Act Is a Sound Way to Protect State Residents,” Charlie Crist, St. Petersburg Times, May 3, 2006

[68] “Crist Sticking To His Theme,” Steve Bousquet, St. Petersburg Times, June 22, 2006, IB

[69] Chapter 2005-28, Laws of Florida

[70] Murder, forcible sex offenses, robbery and aggravated assault per the Florida Department of Law Enforcement, Florida Statewide Reported Violent Crime, 1971-2018

[71] Florida Department of Law Enforcement, Florida Statewide Reported Violent Crime, 1971-2018

[72] Available annual reports provided from the DOC included dead links to admissions data for these years.

[73] Corresponding DOC Annual Reports, with exception to 2001-02, 2002-03 and 2003-04 which were taken from Annual Report for fiscal  year 2004-2005

[74] FLDLE Florida Statewide Reported Violent Crime, 1971-2018

[75] FL DOC Annual Reports for indicated fiscal years

[76] Florida Prison Recidivism Report, Releases from 2008-2018

[77] Senate Staff Analysis and Economic Impact Statement, CS/SB 2362, April 10, 1997, page 8

[78] See Appendix A

[79] House of Representatives Committee on Crime and Punishment Final Bill Research and Economic Impact Statement, h1371s2z.cp, May 30, 1997, page 11

[80] Senate Staff Analysis and Economic Impact Statement, CS/SB 2362, page 1

[81] Okeechobee County Clerk of Courts, case #472020CF000238CFAXMX, arrest affidavit

[82] Chapter 97-239, HB1371, page 4

[83] Senate Bill Analysis and Fiscal Impact Statement, February 5, 2020, page 7, 8

[84] Florida DOC 2020-2021 Annual Report, page 24

[85] Aging Prison Populations Drive Up Costs, Matt McKillop and Alex Boucher, February 20, 2018

[86] Bureau of Justice Assistance, U.S. Dept. of Justice, Report to Congress, Violent Offender Incarceration and Truth-In-Sentencing Incentive Formula Grant Program, February 2012, page 5; 1998 of $47,202,272; 1999 of $41,204,384; 2000 of $36,997,672; 2001 of $37,237,454.

[87] Violent offender Incarceration and Truth-In-Sentencing (VOITIS) Semi-Annual Report, January 1, 2005 through June 30, 2005.

[88] “Tell Officials to Stop Turning Out Criminals,” Orlando Sentinel, August 25, 1993

[89] Florida Department of Corrections, “Report on Increasing Lawful Capacity to 150%,” January 11, 1995, S18, Box 2162, FSA

[90] “Prisons, Courts Top Spending List,” Miami Herald, April 7, 1995, A28.

[91] “Another Three-Strikes Law:  An In-Depth Look at Florida’s Prisoner Releasee Reoffender Punishment Act,” 1998

[92] “New Sentencing Laws Follow Old Patterns:  A Florida Case Study,” 2002, page 296, paragraphs 1-3

[93] James Austin, Todd Clear and Richard Rosenfeld of the Harry Frank Guggenheim Foundation, September 2020

[94] Table 3, page 11 of report listed under footnote 93

[95] Bureau of Justice Statistics, 2016; table 4, page 13 of report under footnote 93

[96] Florida County Detention Facilities Average Inmate population, October 2020

[97] Crime Survivors Speak:  Florida Victims’ Views on Safety and Justice, Alliance for Safety and Justice Brief, February 2018.

[98] Florida Department of Corrections 2018-2019 Annual Report, page 16

[99] “Violent Offenders, often victims themselves, need more compassion and less punishment,” USA Today, August 9, 2018

[100]