Revised proposal to amend Florida Criminal Procedure rule 3.800(c) to allow for modification of a sentence at any time upon stipulation.

Proposal to amend Florida Rule of Criminal Procedure (F.R. Crim. Pro.) 3.800(c).

Submitted by N. Adam Tebrugge, Florida Bar# 473650    adam@tebruggelegal.com   

Proposal: The rule should be amended with language, such as: “Upon stipulation of the state attorney and the defendant, and after a hearing, the trial court may reduce, modify or correct a sentence at any time.”

Present situation: Under F.R. Crim. Pro. 3.800 (c), a motion to modify sentence must be filed within 60 days of the sentence becoming final. No rule of procedure presently allows for a motion to modify or reduce sentence after that time has run. While an “illegal sentence” may be corrected at any time (See F.R. Crim. Pro. 3.800(a)), there are occasions where a legal sentence should be corrected due to oversight or error. The restrictive nature of the present rule forces the parties and the court to develop “workarounds” when it is necessary to reduce, modify or correct a sentence outside the time limits.

History: This rule was adopted in 1968. The committee notes reflect that the rule was the “same as sections 921.24 and 921.25 Florida Statutes,” and were “similar to Federal Rule of Criminal Procedure 35.” The relevant Florida statutes were repealed in 1969 (See 1970 supplement to Florida Statutes). Now chapter 921 of the Florida Statutes contains the Criminal Punishment Code.

       When considering the 60 day limitation on motions to modify, the courts have considered this to be a jurisdictional issue. See, e.g. Abreu v. State, 660 So.2d 703 (Fla. 1995); McCormick v. State, 961 So.2d 1099 (Fla. 2d DCA 2007); Schlabach v. State, 37 So.3d 230 (Fla. 2010). In response to these cases, F.R. Crim. Pro. 3.800(c) was amended in 2011. See Amendments to Rule of Criminal Procedure 3.800(c), 76 So.3d 913 (Fla. 2011).  The amendment expanded the trial court’s jurisdiction to rule on a timely filed motion to “90 days from the date the motion is filed or such time as agreed by the parties or as extended by the trial court to enter an order ruling on the motion.” (emphasis added). Thus, the rule already contemplates that the court’s jurisdiction can be extended by stipulation. 

Why should the rule be amended? The sixty-day rule is overly restrictive and does not provide any exceptions. The court and the parties should not have to invent workarounds to the rules of procedure. There should be a mechanism that allows modification of a sentence when there is agreement. A safety valve should be in place that allows the flexibility to modify a sentence that all agree is unjust. Additionally, this rule would be useful whenever there is an emergency or other situation where it is necessary to take quick action.

Examples: The basis for this proposal is to give the court system the flexibility to address certain cases where everyone agreed that the interests of justice were at stake. An example of such a case might be found in the story of Cynthia Powell. As described in a story by REASON, an online publication:

     “In 2002, Powell was set up by a confidential informant and arrested after she sold 35 hydrocodone pills to an undercover police officer. Powell pleaded guilty and tried to likewise become an informant, but after she failed to provide police with any arrests—because she was a 40-year-old grandmother with no prior criminal history—prosecutors withdrew her "substantial assistance" agreement. The judge was forced to sentence her to a mandatory 25 years in Florida state prison, where she remains today.

If Powell had been convicted after 2014, when the Florida legislature lowered the state's mandatory minimum sentences for opioid trafficking and raised the weight thresholds to trigger them, Powell would already be free. As it stands today, she won't be released until 2023.”

     In other words, this first-time offender has already served seventeen years of a twenty-five year minimum mandatory sentence, where the maximum penalty under current Florida law is fifteen years. Under my proposal, Powell could make her case to the Office of the State Attorney that prosecuted her, and only if that office agreed that relief might be appropriate, ask the Court to modify her sentence after a properly noticed hearing.

    Also, this rule would provide a mechanism to address emergencies or other situations where immediate relief was warranted. For instance: What if an inmate was diagnosed with an infectious disease that put all members of the facility at risk? The proposed amendment to Rule 3.800(c) would allow the court system to rapidly address such a situation, again, only if everyone agreed.

Safeguards: Safeguards are in place in the contemplated amendment.

     a). The state attorney would be the gatekeeper, as the amendment would require their stipulation to any modification. As a constitutional officer and elected official, the state attorney is uniquely positioned to be responsive to the law and to their community.

     b). Any reduction, modification or correction would require judicial approval. Judicial approval would prevent stipulated modifications that do not comply with other Florida laws.

     c). The rule contemplates a properly noticed public hearing in order to ensure transparency and that there is a record of any modification.

     d). The Florida Constitution (Art. I, s. 18(b)) and Florida statutes (F.S. 960.001) require notice to any victim for a hearing of this type.

Impact on Judicial Resources: Because a hearing would be held only when the state attorney and defense stipulated to a modification or correction, hearings would be limited to explaining the circumstances to the court. Typically such a hearing would be very brief. The reason there should be a hearing is to ensure transparency and compliance with Florida law, including notice to any affected person, such as a victim.