Florida's sentencing guidelines law assigns points for
particular offenses and other factors and provides a presumptive
sentence range for a defendant's composite score, within which the
sentencing judge has unreviewable discretion to fix a sentence
without written explanation. If the judge wishes to depart from the
range, however, he must give clear and convincing written reasons
based on facts proved beyond a reasonable doubt, and the sentence
he imposes is subject to appellate review. At the time petitioner
committed the sexual battery and other crimes for which he was
convicted, the sentencing guidelines would have resulted in a
presumptive sentence of 3 /2 to 4 1/2 years' imprisonment. However,
the guidelines were subsequently revised to increase the number of
points assigned to sexual offenses, and, at the time petitioner was
sentenced, called for a presumptive sentence of 5 1/2 to 7 years
for his crimes. The sentencing judge, rejecting petitioner's
ex
post facto argument, applied the revised guidelines to impose
a 7-year sentence. The State District Court of Appeal vacated the
sentence, but the State Supreme Court reversed.
Held: Application of the revised guidelines law to
petitioner, whose crimes occurred before the law's effective date,
violates the
Ex Post Facto Clause of Article I of the
Federal Constitution. The revised law evidences all of the elements
necessary to bring it within the
ex post facto
prohibition. Pp.
482 U. S.
429-435.
(a) The revised guidelines law is retrospective, in that it
changes the legal consequences of acts committed before its
effective date. The State's argument that there was no
ex post
facto violation, since the law provides for continuous review
of the guidelines, and thereby gave petitioner "fair warning" that
he would be sentenced under the guidelines in effect on his
sentencing date is not persuasive, since the law did not warn
petitioner of the specific punishment prescribed for his crimes.
The
ex post facto prohibition cannot be avoided merely by
adding to a law notice of the obvious fact that it might be
changed. Pp.
482 U.S.
430-431.
(b) The revised guidelines law is more onerous than the law in
effect at the time of petitioner's crimes, in that it substantially
disadvantages petitioner and similarly situated sexual offenders
and has no ameliorative features. The State's contention that the
change in laws is not disadvantageous because the trial judge could
have imposed a 7-year
Page 482 U. S. 424
sentence under the old guidelines by departing from the
presumptive sentence range then in existence is without merit,
since the revised law foreclosed petitioner's ability to challenge
the sentence on review because it is within the new presumptive
range. Pp.
482 U. S.
431-433.
(c) The revised guidelines law is not merely a procedural
change, since it increases the quantum of punishment for sexual
offenses. The State's contention that the increase operates only as
a "procedural guidepost" for the exercise of judicial discretion
within the same statutorily imposed sentencing limits is not
persuasive. The Court of Appeals decisions cited as authority,
which sustained the United States Parole Commission's guidelines
against
ex post facto claims, are inapposite. Unlike the
federal guidelines, Florida's revised sentencing law was enacted by
the state legislature, and has the force and effect of law. Nor do
the revised guidelines simply provide flexible "guideposts," but
instead create strict standards that must be met before the
sentencing judge can depart from the presumptive sentence range.
Moreover, the revised guidelines directly and adversely affect the
sentence petitioner receives. Pp.
482 U. S.
433-435.
488 So. 2d
820, reversed and remanded.
O'CONNOR, J., delivered the opinion for a unanimous Court.
JUSTICE O'CONNOR delivered the opinion of the Court.
At the time petitioner committed the crime for which he was
convicted, Florida's sentencing guidelines would have resulted in a
presumptive sentence of 3 1/2 to 4 1/2 years' imprisonment. At the
time petitioner was sentenced, the revised guidelines called for a
presumptive sentence of 5 1/2 to 7 years in prison. The trial court
applied the guidelines in effect at the time of sentencing, and
imposed a 7-year sentence. The question presented is whether
application of these amended
Page 482 U. S. 425
guidelines in petitioner's case is unconstitutional by virtue of
the
Ex Post Facto Clause.
I
In 1983, the Florida Legislature enacted legislation replacing
Florida's system of indeterminate sentencing with a sentencing
guidelines scheme intended "to eliminate unwarranted variation in
the sentencing process." Fla. Rule Crim. Proc. 3.701(b) (1983).
See 1983 Fla. Laws, ch. 83-216. Under the sentencing
statute, a guidelines commission was responsible for "the initial
development of a statewide system of sentencing guidelines."
Fla.Stat. § 921.001(1) (1983). Once the commission had made its
recommendation, the Supreme Court of Florida was to develop a final
system of guidelines. These guidelines were to become effective for
crimes committed on or after October 1, 1983. Fla.Stat. §
921.001(4)(a) (1983).
The sentencing statute authorized the guidelines commission to
"meet annually or at the call of the chairman to review sentencing
practices and recommend modifications to the guidelines." Fla.Stat.
§ 921.001(3) (1983). Before the convening of the legislature each
year, the commission was to make its recommendations regarding the
need for changes in the guidelines. The Supreme Court of Florida
then could revise the sentencing guidelines to conform to an or
part of the commission's recommendations. The sentencing law
provided, however, that such revisions would become effective "only
upon the subsequent adoption by the Legislature of legislation
implementing the guidelines as then revised." Fla.Stat. §
921.001(4)(b) (1983).
In accordance with this legislation, the Supreme Court of
Florida developed sentencing guidelines that went into effect on
October 1, 1983.
See In re Rules of Criminal Procedure
(Sentencing Guidelines), 439 So. 2d 848
(1983). Under the scheme, offenses were grouped into nine "offense
categories" (
e.g., "robbery" and "sexual offenses"). A
single sentencing
Page 482 U. S. 426
"scoresheet" would be prepared based on the defendant's "primary
offense," defined as the crime "with the highest statutory degree"
at the time of conviction. Fla.Rule Crim.Proc. 3.701(d) (1983). In
scoring a defendant's guidelines sentence, points would be assigned
based on the primary offense, additional offenses at the time of
conviction, prior record, legal status at the time of the offense,
and victim injury. The defendant's total point score then would be
compared to a chart for that offense category, which provided a
presumptive sentence for that composite score.
The presumptive sentence range was "assumed to be appropriate
for the composite score of the offender" Fla.Rule Crim.Proc.
3.701(d)(8) (1983). Within the recommended range, the sentencing
judge had discretion to fix the sentence "without the requirement
of a written explanation."
Ibid. If the sentencing judge
wished to depart from the guideline range, however, the judge had
to give clear and convincing reasons in writing for doing so:
"Departures from the presumptive sentence should be avoided
unless there are clear and convincing reasons to warrant
aggravating or mitigating the sentence. Any sentence outside of the
guidelines must be accompanied by a written statement delineating
the reasons for the departure. Reasons for deviating from the
guidelines shall not include factors relating to either instant
offense or prior arrests for which convictions have not been
obtained."
Fla.Rule Crim.Proc. 3.701(d)(11) (1983). The "clear and
convincing" standard was construed as requiring reasons "of such
weight as to produce in the mind of the judge a firm belief or
conviction, without hesitancy, that departure is warranted."
State v. Mischler, 488 So. 2d
523, 525 (Fla.1986). Only those sentences that fall outside the
guidelines' range are subject to appellate review.
See
Fla.Stat. § 921.001(5) (1983).
Petitioner was convicted in August, 1984, on counts of sexual
battery with slight force, a second-degree felony, Fla.
Page 482 U. S. 427
Stat. § 794.011(5) (Supp.1984); burglary with an assault, a
felony of the "first degree punishable by . . . life," Fla.Stat. §
810.02 (1983); and petit theft, a misdemeanor, Fla.Stat. §
812.014(2)(c) (1983). On April 25, 1984, when these offenses were
committed, the sentencing guidelines adopted October 1, 1983, were
still in effect. On May 8, 1984, however, the Supreme Court of
Florida proposed several revisions to the sentencing guidelines.
See Florida Bar: Amendment to Rules of Criminal Procedure
(3.701, 3.988 -- Sentencing Guidelines), 451 So. 2d 824
(1984). In June, 1984, the Florida Legislature adopted the
recommended changes,
see 1984 Fla. Laws, ch. 84-328, and
the legislation implementing the revised guidelines became
effective July 1, 1984. When petitioner was sentenced on October 2,
1984, therefore, these revised sentencing guidelines were the
guidelines then in effect.
Only two changes made in the revised guidelines are relevant
here. First, the guidelines changed the definition of "primary
offense" from the offense with "the highest statutory degree," to
the offense which results in "the most severe sentence range."
See 451 So. 2d at 824, n. This changed petitioner's
primary offense from burglary with assault -- the offense with the
higher statutory degree -- to sexual battery. Petitioner does not
argue here that the new definition itself changed his presumptive
sentence.
See Tr. of Oral Arg. 6. As a result of the new
definition, however, petitioner was affected by another change in
the revised guidelines law: a 20% increase in the number of primary
offense points assigned to sexual offenses. The Supreme Court of
Florida, in its comments accompanying the revised guidelines,
described the change:
"The revision increases the primary offense points by 20%, and
will result in both increased rates and length of incarceration for
sexual offenders."
451 So. 2d at 824, n. As a result of the point increase,
petitioner's total point score jumped to a presumptive sentence of
51/2 to 7 years.
See App. 12.
Page 482 U. S. 428
At petitioner's sentencing hearing on October 2, 1984, the State
contended that the revised guidelines should apply in determining
petitioner's sentence. Alternatively, the State argued that, if the
sentencing judge applied the earlier guidelines, he should depart
from the guidelines' range and impose a 7-year sentence.
Id. at 8-9. The sentencing judge, rejecting petitioner's
ex post facto argument, ruled that the revised guidelines
should apply. Concluding that he would "stay within the new
guidelines," the judge imposed a 7-year term of imprisonment for
the sexual assault count.
Id. at 10. Petitioner received a
concurrent 7-year sentence on the burglary count, and time served
on the misdemeanor charge.
Id. at 6, 11.
On appeal, the Florida District Court of Appeal, relying on this
Court's decision in
Weaver v. Graham, 450 U. S.
24 (1981), vacated petitioner's sentence and remanded
for resentencing in accordance with the sentencing guidelines in
effect at the time the offense was committed. 468 So. 2d 1018
(1985). In remanding the case, the court noted that "the same
sentence is possible if clear and convincing reasons for departure
from the then-applicable guidelines are stated in writing."
Ibid.
The Supreme Court of Florida reversed.
488 So. 2d
820 (1986). In a summary opinion, the court concluded that its
decision in
State v. Jackson, 478 So. 2d
1054 (1985), established that "the trial court may sentence a
defendant pursuant to the guidelines in effect at the time of
sentencing." 488 So. 2d at 820. In
Jackson, the Supreme
Court of Florida had emphasized that
"the presumptive sentence established by the guidelines does not
change the statutory limits of the sentence imposed for a
particular offense."
478 So. 2d at 1056. On that basis, it had concluded that a
modification in sentencing guidelines procedure was "merely a
procedural change, not requiring the application of the
ex post
facto doctrine" under
Dobbert v. Florida,
432 U. S. 282
(1977). 478 So. 2d at 1056.
Page 482 U. S. 429
We granted certiorari, 479 U.S. 960 (1986), and now reverse.
II
Article I of the United States Constitution provides that
neither Congress nor any State shall pass any "ex
post
facto Law."
See Art. I, § 9, cl. 3; Art. I, § 10, cl. 1.
Our understanding of what is meant by
ex post facto
largely derives from the case of
Calder v.
Bull, 3 Dall. 386 (1798), in which this Court first
considered the scope of the
ex post facto prohibition. In
Calder, Justice Chase, noting that the expression "
ex
post facto" "had been in use long before the revolution,"
id. at
3 U. S. 391,
summarized his understanding of what fell "within the words and the
intent of the prohibition":
"1st. Every law that makes an action done before the passing of
the law, and which was innocent when done, criminal, and punishes
such action. 2d. Every law that aggravates a crime, or makes it
greater than it was, when committed. 3d. Every law that changes the
punishment, and inflicts a greater punishment, than the law annexed
to the crime, when committed. 4th. Every law that alters the legal
rules of evidence, and receives less or different testimony than
the law required at the time of the commission of the offense, in
order to convict the offender."
Id. at
3 U. S. 390
(emphasis omitted).
Accord, Dobbert v. Florida, supra, at
432 U. S. 292,
quoting
Beazell v. Ohio, 269 U. S. 167,
269 U. S.
169-170 (1925).
Justice Chase explained that the reason the
Ex Post
Facto Clauses were included in the Constitution was to assure
that federal and state legislatures were restrained from enacting
arbitrary or vindictive legislation.
See 3 Dall. at
3 U. S. 389.
Justices Paterson and Iredell, in their separate opinions in
Calder, likewise emphasized that the Clauses were aimed at
preventing legislative abuses.
See id. at
3 U. S. 396
(Paterson, J.);
id. at
3 U. S. 399-400
(Iredell, J.).
See also Malloy v. South Carolina,
237 U. S. 180,
237 U. S. 183
(1915);
James v. United
States, 366
Page 482 U. S. 430
U.S. 213,
366 U. S. 247,
n. 3 (1961) (separate opinion of Harlan, J.). In addition, the
Justices' opinions in
Calder, as well as other early
authorities, indicate that the Clauses were aimed at a second
concern, namely, that legislative enactments "give fair warning of
their effect and permit individuals to rely on their meaning until
explicitly changed."
Weaver v. Graham, supra, at
450 U. S. 28-29.
See Calder v. Bull, 3 Dall. at
3 U. S. 388
(Chase, J.);
id. at
3 U. S. 396
(Paterson, J.); 1 W. Blackstone, Commentaries *46. Thus, almost
from the outset, we have recognized that central to the
ex post
facto prohibition is a concern for
"the lack of fair notice and governmental restraint when the
legislature increases punishment beyond what was prescribed when
the crime was consummated."
Weaver, 450 U.S. at
450 U. S.
30.
Our test for determining whether a criminal law is
ex post
facto derives from these principles. As was stated in
Weaver, to fall within the
ex post facto
prohibition, two critical elements must be present: first, the law
"must be retrospective, that is, it must apply to events occurring
before its enactment"; and second, "it must disadvantage the
offender affected by it."
Id. at
450 U. S. 29. We
have also held in
Dobbert v. Florida, supra, that no
ex post facto violation occurs if a change does not alter
"substantial personal rights," but merely changes "modes of
procedure which do not affect matters of substance."
Id.
at
432 U. S. 293.
See Beazell v. Ohio, supra, at
269 U. S.
170-171. Respondent contends that the revised sentencing
law is neither impermissibly retrospective nor to petitioner's
disadvantage; respondent also contends that the revised sentencing
law is merely a procedural change. We consider these claims in
turn.
A law is retrospective if it "changes the legal consequences of
acts completed before its effective date."
Weaver, supra,
at
450 U. S. 31.
Application of the revised guidelines law in petitioner's case
clearly satisfies this standard. Respondent nevertheless contends
that the
ex post facto concern for retrospective laws is
not violated here, because Florida's sentencing
Page 482 U. S. 431
statute "on its face provides for continuous review and
recommendation of changes to the guidelines." Brief for Respondent
27-28. Relying on our decision in
Dobbert, respondent
argues that it is sufficient that petitioner was given "fair
warning" that he would be sentenced pursuant to the guidelines then
in effect on his sentencing date. Brief for Respondent 28.
In our view,
Dobbert provides scant support for such a
pinched construction of the
ex post facto prohibition. In
Dobbert, the capital sentencing statute in effect at the
time the murders took place later was held to be invalid. In
rejecting the defendant's argument that imposition of the death
penalty therefore was a change in punishment from the punishment
"in effect" when the crimes were committed, the Court concluded
that
ex post facto concerns were satisfied because the
statute on the books at the time Dobbert committed the crimes
warned him of the specific punishment Florida prescribed for
first-degree murders.
See 432 U.S. at
432 U. S. 298.
Here, by contrast, the statute in effect at the time petitioner
acted did not warn him that Florida prescribed a 5 1/2 to 7-year
presumptive sentence for that crime. Petitioner simply was warned
of the obvious fact that the sentencing guidelines law -- like any
other law -- was subject to revision. The constitutional
prohibition against
ex post facto laws cannot be avoided
merely by adding to a law notice that it might be changed.
It is "axiomatic that, for a law to be
ex post facto,
it must be more onerous than the prior law."
Dobbert,
supra, at
432 U. S. 294.
Looking only at the change in primary offense points, the revised
guidelines law clearly disadvantages petitioner and similarly
situated defendants.
See 451 So. 2d at 824, n. (the
purpose and effect of the change in primary offense points was to
"increas[e] [the] rates and length of incarceration for sexual
offenders"). Considering the revised guidelines law as a whole does
not change this result. Unlike
Dobbert, where we found
that the
"totality of the procedural changes
Page 482 U. S. 432
wrought by the new statute . . . did not work an onerous
application of an
ex post facto change,"
432 U.S. at
432 U. S.
296-297, here respondent has not been able to identify
any feature of the revised guidelines law that could be considered
ameliorative.
Respondent maintains that the change in guidelines laws is not
disadvantageous, because petitioner "cannot show definitively that
he would have gotten a lesser sentence." Tr. of Oral Arg. 29. This
argument, however, is foreclosed by our decision in
Lindsey v.
Washington, 301 U. S. 397
(1937). In
Lindsey, the law in effect at the time the
crime was committed provided for a maximum sentence of 15 years,
and a minimum sentence of not less than six months. At the time
Lindsey was sentenced, the law had been changed to provide for a
mandatory 15-year sentence. Finding that retrospective application
of this change was
ex post facto, the Court determined
that "we need not inquire whether this is technically an increase
in the punishment annexed to the crime," because
"[i]t is plainly to the substantial disadvantage of petitioners
to be deprived of all opportunity to receive a sentence which would
give them freedom from custody and control prior to the expiration
of the 15-year term."
Id. at
301 U. S.
401-402. Thus,
Lindsey establishes
"that one is not barred from challenging a change in the penal
code on
ex post facto grounds simply because the sentence
he received under the new law was not more onerous than that which
he might have received under the old."
Dobbert, supra, at
432 U. S.
300.
Petitioner plainly has been "substantially disadvantaged" by the
change in sentencing laws. To impose a 7-year sentence under the
old guidelines, the sentencing judge would have to depart from the
presumptive sentence range of 3 1/2 to 4 1/2 years. As a result,
the sentencing judge would have to provide clear and convincing
reasons in writing for the departure, on facts proved beyond a
reasonable doubt, and his determination would be reviewable on
appeal. By contrast, because a 7-year sentence is within the
presumptive range
Page 482 U. S. 433
under the revised law, the trial judge did not have to provide
any reasons, convincing or otherwise, for imposing the sentence,
and his decision was unreviewable. Thus, even if the revised
guidelines law did not "technically . . . increase . . . the
punishment annexed to [petitioner's] crime,"
Lindsey,
supra, at
301 U. S. 401,
it foreclosed his ability to challenge the imposition of a sentence
longer than his presumptive sentence under the old law. Petitioner
therefore was "substantially disadvantaged" by the retrospective
application of the revised guidelines to his crime.
Finally, even if a law operates to the defendant's detriment,
the
ex post facto prohibition does not restrict
"legislative control of remedies and modes of procedure which do
not affect matters of substance."
Dobbert, 432 U.S. at
432 U. S. 293.
Hence, no
ex post facto violation occurs if the change in
the law is merely procedural, and does "not increase the punishment
nor change the ingredients of the offence or the ultimate facts
necessary to establish guilt."
Hopt v. Utah, 110 U.
S. 574,
110 U. S. 590
(1884).
See Dobbert, supra, at
432 U. S.
293-294 ("The new statute simply altered the methods
employed in determining whether the death penalty was to be
imposed; there was no change in the quantum of punishment attached
to the crime"). On the other hand, a change in the law that alters
a substantial right can be
ex post facto "even if the
statute takes a seemingly procedural form."
Weaver, 450
U.S. at
450 U. S. 29, n.
12.
Although the distinction between substance and procedure might
sometimes prove elusive, here the change at issue appears to have
little about it that could be deemed procedural. The 20% increase
in points for sexual offenses in no wise alters the method to be
followed in determining the appropriate sentence; it simply inserts
a larger number into the same equation. The comments of the Florida
Supreme Court acknowledge that the sole reason for the increase was
to punish sex offenders more heavily: the amendment was intended
to,
Page 482 U. S. 434
and did, increase the "quantum of punishment" for category 2
crimes.
See 451 So. 2d at 824, n.
Respondent objects that it is misleading to view the change in
the revised guidelines apart from the sentencing scheme as a whole.
Relying largely on decisions by the Courts of Appeals sustaining
the United States Parole Commission's guidelines against
ex
post facto claims, respondent urges that the revised
guidelines "merely guide and channel" the sentencing judge's
discretion. Brief for Respondent 35.
See, e.g., Wallace v.
Christensen, 802 F.2d 1539 (CA9 1986) (en banc);
Yamamoto
v. United States Parole Comm'n, 794 F.2d 1295 (CA8 1986);
Dufresne v. Baer, 744 F.2d 1543 (CA11 1984),
cert.
denied, 474 U.S. 817 (1985);
Warren v. United States
Parole Comm'n, 212 U.S.App.D.C. 137, 659 F.2d 183 (1981),
cert. denied, 455 U.S. 950 (1982).
See also Portley v.
Grossman, 444 U. S. 1311
(1980) (REHNQUIST, J., in chambers). Invoking the reasoning of
these cases, respondent contends that an increase in the guidelines
sentence operates only as a "procedural guidepost" for the exercise
of discretion within the same statutorily imposed sentencing
limits.
We find the federal parole guidelines cases inapposite. The
courts that have upheld the retrospective application of federal
parole guidelines have articulated several reasons why the
ex
post facto prohibition does not apply. The majority of these
courts have held that the federal parole guidelines are not "laws"
for purposes of the
Ex Post Facto Clause.
See, e.g.,
Wallace v. Christensen, supra, at 1553-1554 (citing cases).
Other courts have found that the guidelines merely rationalize the
exercise of statutory discretion, and that retrospective
application of the guidelines thus does not violate the
Ex Post
Facto Clause. See, e.g. Warren v. United States Parole
Comm'n, supra, at 149, 659 F.2d at 195;
Portley v.
Grossman, supra, at 1312. Finally, some of the cases have held
that retrospective application of the guidelines does not result in
a more onerous punishment and
Page 482 U. S. 435
thus does not constitute an
ex post facto violation.
See, e.g., Dufresne v. Baer, supra, at 1549-1550.
None of the reasons given in the federal parole cases even
arguably applies here. First, the revised sentencing law is a law
enacted by the Florida Legislature, and it has the force and effect
of law.
Cf. Williams v. State, 500 So. 2d
501,
503 (Fla.1986)
(departure sentence not supported by clear and convincing reasons
was erroneous even though defendant consented, because "a defendant
cannot . . . confer on the court the authority to impose an illegal
sentence"). Nor do the revised guidelines simply provide flexible
"guideposts" for use in the exercise of discretion; instead, they
create a high hurdle that must be cleared before discretion can be
exercised, so that a sentencing judge may impose a departure
sentence only after first finding "clear and convincing reasons"
that are "credible," "proven beyond a reasonable doubt," and "not .
. . a factor which has already been weighed in arriving at a
presumptive sentence."
See State v. Mischler, 488 So. 2d
at 525;
Williams v. State, 492 So. 2d
1308,
1309
(Fla.1986).
Compare S.Rep. No. 98-225, p. 38 (1983)
(describing the "unfettered discretion" of the Parole Commission
under the system of parole guidelines). Finally, the revised
guidelines directly and adversely affect the sentence petitioner
receives. Thus, this is not a case where we can conclude, as we did
in
Dobbert, that
"[t]he crime for which the present defendant was indicted, the
punishment prescribed therefor, and the quantity or the degree of
proof necessary to establish his guilt, all remained unaffected by
the subsequent statute."
432 U.S. at
432 U. S.
294.
III
The law at issue in this case, like the law in
Weaver,
"makes more onerous the punishment for crimes committed before its
enactment."
Weaver, supra, at
450 U. S. 36.
Accordingly, we find that Florida's revised guidelines law, 1984
Fla. Laws, ch. 84-328, is void as applied to petitioner, whose
Page 482 U. S. 436
crime occurred before the law's effective date. We reverse the
judgment of the Supreme Court of Florida, and remand the case for
further proceedings not inconsistent with this opinion.
It is so ordered.