Juveniles Really Can't Be Sentenced Without Real Release Opportunity.

Thomas Kelsey v. State, SC15-2079, Dec. 8, 2016

Held:  All juveniles currently sentenced to more than twenty years in state prison are entitled to be resentenced pursuant to chapter 2014-220, Laws of Florida, so that their sentences will be imposed with individualized sentencing considerations due to their juvenile status.

Discussion:  This is the latest in a series of recent juvenile sentencing decisions by the Florida Supreme Court that have thoroughly rejected lower courts’ attempts to minimize or avoid the impact of the United States Supreme Court’s Graham/Miller cases on Florida’s juveniles.  The FLSC again says emphatically that juveniles are different than adults, and this time it draws a line as to where juvenile sentences have to be redone under the post-Miller/Graham juvenile sentencing scheme enacted by the Florida Legislature in chapter 2014-220.  Below, the First District in Kelsey v. State, 183 So.3d 439 (Fla. 1^st DCA 2015) held that a forty-five year sentence for a juvenile was constitutional because it was not a de facto life sentence, and thus Graham did not apply.  The FLSC has thoroughly rejected that reasoning and conclusion.

To briefly review, in Graham v. Florida, 560 U.S. 48 (2010), the Court held that the a juvenile life without parole sentence for a nonhomicide offender was cruel and unusual punishment in violation of the Eighth Amendment.  But beyond that holding, the Court talked very specifically about the need to give juveniles “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” and that they must be given “a chance to demonstrate maturity and reform”.  The underlying sentiment of Graham and the rest of the Supreme Court’s jurisprudence in this area, which includes Roper v. Simmons, 543 U.S. 551 (2005) (juvenile death penalty unconstitutional), Miller v. Alabama, 132 S.Ct. 2455 (2012) (extending Graham to juvenile homicide offenders), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (Graham/Miller are retroactive) is that juveniles are fundamentally different from adults for three reasons:  1)  children have a lack of maturity and an underdeveloped sense of responsibility which leads to recklessness, impulsivity, and heedless risk-taking; 2) children are more vulnerable to negative influences and outside pressures, including from their family and peers, and have limited control over their environment and limited ability to extricate themselves from horrible, crime-producing settings; and 3) a child’s character is not well-formed, his traits are less fixed than those of an adult, and actions, even horrific actions, taken as a child are less likely to evidence irretrievable depravity.

This language may seem plain, but it has not been viewed that way by many prosecutors and lower court judges.  Consistently since Graham and Miller, there has been an effort to limit those cases to their explicit facts (i.e., only to juveniles sentenced to life, meaning to some courts a 90-year sentence was fine, because it was not explicitly a life sentence, and to most courts a life sentence that included parole, a system which barely exists other than as an academic topic in this state, was acceptable).  The Florida Supreme Court has been consistent in adhering to the spirit, not the letter, of Graham/Miller and their progeny.  In Henry v. State, 175 So.3d 675 (Fla. 2015) they reversed a 90-year sentence for a juvenile, because, although not literally a life sentence, such a sentence did not provide a meaningful opportunity for release upon demonstration of maturity and reform.  In Atwell v. State, 197 So.3d 1040 (Fla. 2016) they found that a life with parole sentence was still illegal under Miller, because neither the life with parole sentence or Florida’s parole system provides for individualized consideration of the unique features of a juvenile offender.  Atwell, incidentally, has some solid language that might be useful in an attack on the constitutionality of Florida’s parole system as a whole at some date.

In any event, the next frontier for lower courts was long sentences that were not so long that they amounted to de facto life sentences.  The First DCA, in this case, and the Second DCA in Williams v. State, 197 So.3d 569 (Fla. 2d DCA 2016) found that such sentences were not illegal precisely because they were not de facto life sentences, and thus Graham and its admonitions about the differences between juveniles and adults and the need to give juveniles an opportunity for release upon reform were inapplicable.  The Fifth DCA, to its credit, issued two very solid opinions, Tyson v. State, 199 So.3d 1087 (Fla. 5^th DCA 2016) and Peterson v. State, 193 So.3d 1034, 1038 (Fla. 5^th DCA 2016), which surprisingly get no mention in the Florida Supreme Court’s Kelsey opinion but which clearly anticipated it.  The Fifth District found that lengthy term-of-years sentences for juveniles, without a review mechanism and the opportunity for early release, and without a sentencing hearing that considers the unique characteristics of the juvenile offender, are unlawful.  This is what Kelsey says as well.

Ultimately, per Kelsey, every juvenile who was sentenced before the new 2014 juvenile sentencing law took effect and was sentenced to more than 20 years gets a new sentencing hearing.  The issue is not the length of the sentence but the fact that the offender being sentenced is a juvenile, who is thus entitled to certain considerations that the pre-2014 sentencing statutes did not provide.  There has to be a “meaningful opportunity for early release based on a demonstration of maturity and rehabilitation”, and if there isn’t one, the sentence is illegal.

Kelsey also makes a related double jeopardy finding.  The defendant there had initially been sentenced to life, and then was resentenced under Graham to 45 years.  He argued that on the resentencing that he sought, the new sentence was capped at 45 years.  Essentially, he wanted the 45 years (or something less) with the judicial review provisions of the new juvenile sentencing laws.  The Florida Supreme Court rejected that part of his argument.  Because the 45 years was not a legal sentence (because it was unconstitutional as the opinion held), the Double Jeopardy Clause did not apply to it and he had no protection against a higher sentence.  In other words, the benchmark for whether the defendant would be in a worse position than the original sentence was the original life sentence, not the later 45 year sentence (although this is hard to understand because the original life sentence was also illegal, as Graham clearly held).  In any event, the State could seek a life sentence if they saw fit.  What the defendant was entitled to was a brand new sentence that complies with 2014-220.  This portion of the opinion saw a pointed concurrence from Justices Pariente, Labarga, and Perry, essentially saying that, yes, a life sentence is a marginal possibility under the law, but such sentences should be vanishingly rare for juveniles and, under the facts of this case, should be impossible.

My Thoughts:  Although this decision seemed obvious to me based on the Henry case and the Graham/Miller language, it obviously wasn’t to many.  It will result in a lot of juveniles being resentenced, because there are a lot of them who have more than twenty-year sentences.  I question why the twenty-year line makes sense.  Any prison sentence is a lengthy sentence for a juvenile, if they were sentenced before the law said their juvenile status had to be accounted for, why should they not get a new sentencing where their juvenile status has to be taken into account?  However, to be fair, the FLSC does not say that this doesn’t apply to juveniles sentenced to less than twenty years, just that it does apply to all juveniles sentenced to more than twenty years.  They do not foreclose a juvenile sentenced to ten years from making the argument that she needs a chance to demonstrate she has changed and isn’t being afforded it.

In the long run, the question is going to be how this judicial review process plays out.  It is too early to know that.  I have never had a client go through the judicial review process, nor have I heard from anyone else who has.  I have my concerns.  Will it provide a meaningful opportunity for release?  Or will judges just focus on the often-horrific nature of the underlying crimes rather than whether the person who committed them as a child has demonstrated meaningful reform.  Also, are Florida’s prisons even set up to allow opportunities for such meaningful reform?  If not, isn’t that a Constitutional issue?  If the child is being confined by the State in a place that offers no education, no positive socialization, no opportunities to develop character, then can we blame the child when they are still underdeveloped twenty years later?  If we believe juveniles can be reformed, don’t we have an obligation to provide the opportunities to achieve such reform?  Let’s just say I think we are just at the beginning of a juvenile sentencing revolution that I have some hope could ultimately affect the very nature of the criminal justice system and what we as a society expect it to accomplish.

Want to Check Out My Cell Phone?  Get a Warrant.

State v. K.C., 4D15-3290, Dec. 7, 2016

Held:  An abandoned cell phone may not be searched without a warrant.

Discussion:  Significant Fourth Amendment case from the Fourth DCA.  The police conducted a traffic stop of what turned out to be a stolen car and the occupants ran and were not caught.  Left behind in the car was a cell phone, which was seized by the police (no problem with the seizure).  Presumably to find out who had been in the car, the police turned the phone over to their forensic expert, who cracked the password protection and linked the phone to the defendant, hence the case.  The police never sought a warrant, relying instead on the abandonment exception to the Fourth Amendment’s warrant requirement.

The Fourth extends the US Supreme Court’s ruling in Riley v. California, 134 S.Ct. 2473 (2014) by finding that the special protections afforded cell phones also apply to abandoned cell phones.  Riley distinguished cell phones from other property which police typically search, and which has typically been the subject of Fourth Amendment jurisprudence, because of cell phones unique power and portability.  On a cell phone, we can and do carry with us everywhere an immense amount of personal information that we would never carry in physical form.  The holding of Riley was that cell phones seized incident to arrest cannot be searched absent a warrant.  The Fourth extends the logic of Riley to abandoned cell phones, at least those protected by a password.  The password, they seem to suggest, means the contents of the phone are not truly abandoned, since the whole point of a cell phone password is to keep others from looking through the phone, even when out of one’s possession.  But the Fourth’s opinion does not seem ultimately to rest on the password protection (although the holding is limited to password protected phones), but on the plain fact that we are talking about a cell phone, full of potentially sensitive and private data, not a cigarette packet (United States v. Robinson, 414 U.S. 218 (1973) or a vehicle (Arizona v. Gant, 556 U.S. 332 (2009)) and cell phones are simply different and worthy of more Fourth Amendment protection.  We don’t carry around the whole of our private lives in our cigarette packets or vehicles, and we don’t have the same sort of expectations of privacy for those things.

My Thoughts:  I think this is a significant Fourth Amendment decision that will be of increasing relevance as law enforcement and technology continue to intersect.  It is well-reasoned and I believe will endure, likely even outside the State of Florida (interestingly, the Fourth split with the only other two courts in the country to consider the issue, one in South Carolina and one in Washington).  And it has the virtue of adhering to/announcing a clear rule that is easily followed: Want to search?  GET A WARRANT.

Defendants Who Act Crazy Might Be Crazy--Wouldn't Be Crazy to Find Out.

Xavier Moore v. State, 1D15-4848, Dec. 5, 2016

Held:  Abuse of discretion to fail to declare mistrial and hold competency hearing “following Appellant’s inexplicable testimony during the state’s cross-examination, which echoed Appellant’s earlier behavior in the trial proceedings”.

Discussion:  Courts are obligated to conduct a competency hearing when they have reasonable grounds to question competency.  The First does not describe in their opinion what the defendant did that constituted said reasonable grounds to question his competency.

Curious, I pulled the briefs.  The competency issue was the defendant testifying on cross-examination that a phone call that had been played of the defendant talking to the victim’s mother was not really him, and a video recorded interview of him giving a statement to an investigating detective was not really him and that he was not even in the room when the videotaped interview of him was taking place. Both prior statements were consistent with his trial testimony and defense so it was particularly irrational for him to deny the obvious fact that they were made by him.  Obviously, since the specifics of the behavior that gave rise to a reasonable question as to competency are not in the First DCA opinion, they are not citable as precedent, but I like to know what the facts an opinion is based on are in any event.

The First also says that the lower court can, on remand, do a retroactive competency hearing if possible, but if not, must do a new trial.

My thoughts: I find opinions that reverse without giving the facts as to why they are reversing only marginally more helpful than opinions that affirm without giving the facts as to why they are affirming (i.e. PCA’s).  Nevertheless, it is good that appellate courts are guarding against the trial of incompetent people.  I also find the retroactive competency procedure to be a farce.  To my mind, if one didn’t get doctors at the time to do an evaluation, how can competency possibly be determined?  The whole underlying principle of competency is that mental health and mental status is a fluid thing.  If you’ve ever dealt with an incompetent or potentially incompetent defendant, you know it’s hard enough to figure out what’s inside their head now, let alone retroactively determining what was in their head two years ago, which is probably how long has elapsed since the trial after the appellate process and remand.  My feelings notwithstanding, courts continually seem to allow this.  Hopefully a case will come up that will present a good set of facts to mount a challenge to this procedure.

Second District Declares Court Not Staffed by Aliens.

Lawrence Gudmestad v. State, 2D14-3140, Dec. 7, 2016

Held:  1)  Defendant’s out-of-court statements that police officers were aliens are not hearsay because not admitted for the truth of the matter, and thus impeachment of the defendant’s credibility with prior convictions inadmissible.

                2)  New competency hearing required, and court questions defendant’s “rational” understanding of proceedings based on his belief that police and court personnel are aliens.

Discussion:  When defendant was arrested, he called his fiancée an “alien bitch’ and called police officers “green aliens” and “green parasites”.  When he was being treated by paramedics after being shot by police, he said the paramedics looked like aliens and the ambulance an alien spacecraft.  He was evaluated for competency and the experts found that he had a genuine schizoaffective disorder that manifested in a fixed delusion that aliens had infiltrated Earth and disguised themselves among the humans.  Among the aliens were the judge, prosecutor, and jury.  The experts said that defendant was not malingering, but one expert said he understood the adversarial nature of trial and roles of parties and was competent, which the trial court then found him to be.

At trial, the State moved to introduce the defendant’s prior convictions as impeachment if the defense elicited any statements regarding aliens.  The State’s reasoning was that such statements were exculpatory and opened the door to his prior convictions.  The judge granted the motion based on Fla. Stat. 90.806(1), which provides that where a hearsay statement is admitted, the credibility of the declarant may be attacked as if he testified as a witness.  The defense did cross-examine on the defendant’s statements about aliens the night of the incident, and the State was permitted to introduce the priors.  The Second found the trial court abused its discretion in this ruling, because to permit impeachment, the allegedly exculpatory statements about aliens had to be hearsay.  Hearsay, as we hopefully all know, must be offered to prove the truth of the matter asserted.  Counsel was not admitting the defendant’s statements about the police and paramedics being aliens in order to prove that they were in fact aliens.  Thus, these statements were not hearsay.  As they were not hearsay, impeachment under 90.806(1) was not permissible.

This was not harmless error.  The defense was insanity.  The prior convictions affected the probability that the jury would acquit based on insanity.  When cases, like this one, turn on a defendant’s credibility, improper admission of the defendant’s prior convictions is not harmless because those convictions go directly to his credibility.

The Second also noted its concern with the defendant’s competency, ordering a new competency hearing before a new trial and noting in dicta that the competency test is “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him”.  Dusky v. United States, 362 U.S. 402, 402 (1960).  The Second said it is “skeptical” that a defendant who “honestly believes he is being tried by extraterrestrials can be said to have a rational and factual understanding of the proceedings” and ordered that, on remand, the court “delve into this aspect o the experts’ opinions more deeply” and consider the defendant rational and factual understanding of the proceedings with “due consideration”.

My thoughts:  First of all, a very well-written opinion by Judge Northcutt.  Concise, clear, and explains in plain language exactly what the facts are and what the legal error was.  The hearsay issue seems obvious when you read about it, but it is the sort of issue that in the heat of trial lawyers often miss.  If one wants to admit an out-of-court statement, one must always think about why, and if there is a plausible reason it is not for the truth of the statement, one must make that argument.  The competency facts are egregious, and it is somewhat surprising that the trial judge permitted the trial to go forward without a better competency record, but the reality is that in the hustle of trial work too often competency just becomes another box to check off:  “OK, we have a doctor who’s willing to say he’s competent, check the box and set the trial date” without real consideration of the unique mental situation of the potentially incompetent defendant.  I am glad to see the Second recognizing this and ordering a more thorough determination on the second go-round.

Keep Drug Offender Probation for the Druggies.

Caineth Orr v.State, 2D15-5131, Dec. 7, 2016

Held:  Drug offender probation may not be imposed for the crime of resisting an officer with violence.

Discussion:  Per statute (948.20(1)), drug offender probation may be imposed when a defendant violates certain portions of the drug prohibition statute (893.13) dealing with purchase or possession, or any other nonviolent felony.  The statute defines “nonviolent felony” as a third-degree felony burglary or any other felony that is not a forcible felony under section 776.08.  Resisting with violence (843.01) does not fall within any category.  This is so because the Second has found that resisting with violence is a forcible felony under 776.08 in Walker v. State, 965 So.2d 1281 (Fla. 2d DCA 2007).

The Court rejected a State argument that I couldn’t understand, that the limits on drug offender probation apply only when drug offender probation is imposed in lieu of another sentence, not in addition to another sentence, as here the defendant was sentenced to a jail term followed by drug offender probation.  In any event, the Second quickly rejects that argument.  948.20(1) governs.

The Second also says that on remand if the trial court wants it can impose regular probation with a special condition of drug treatment, assuming that is a special condition that is reasonably related to the offense and promotes the rehabilitation of the defendant or the protection of the public.

My thoughts:  Pretty straightforward statutory interpretation opinion.  One of those you get as a lawyer and you realize the trial court made a mistake, even if it’s not one that’s going to make much of a difference for your client, at least you have something to argue.  I will note that, although it helps the defendant in this case, the fact that resisting with violence, which in reality can be anything from a serious assault on an officer to a simple incidental touching with absolutely no harm done during the stressful and sometimes contentious process of an arrest, qualifies as a “forcible felony” is wrong.  Look at the list of enumerated offenses in 776.08 and compare them to resisting with violence.  The significance being that forcible felony priors permit serious and sometimes mandatory sentencing enhancements down the road, so that minor run-in with a cop could turn into a mandatory life sentence down the road as a Violent Career Criminal.

Hey What's Your iPhone Passcode?  No Seriously, You Have To Tell Me, I'm the Government.

State v. Aaron Stahl, 2D14-4283, Dec. 7, 2016

Held:  The Fifth Amendment privilege against self-incrimination does not protect an individual from being compelled to give the government the passcode to their cell phone, because it is a foregone conclusion that the government knows that the passcode exists and the defendant has it.

Discussion: The defendant was alleged to have used his cell phone to take upskirt photographs of women in a dressing room.  The police seized the phone and were granted a search warrant to access its contents.  However, the phone (an iPhone 5) was passcode protected and the police could not access it without the defendant giving them the passcode.  Importantly, the phone was seized after the fact and the police did not know it was the phone allegedly used to take the upskirt pictures, though obviously they suspected it was.  The State filed a motion to compel him to give them the passcode.  He argued, and the trial court agreed, that the Fifth Amendment privilege against self-incrimination applied as the passcode was testimonial and the foregone conclusion did not apply.

There was no dispute that the state was seeking to compel the defendant to give information, and that that information was incriminatory.  The question was whether the evidence the State sought, the passcode, was testimonial.  Testimonial communications, in this context, are those which compel an individual to use the contents of their own mind to explicitly or implicitly communicate some statement of fact.  According to the Second, the communication at issue here, the passcode, “was sought only for its content and the content has no other value or significance”, because the passcode was not itself an acknowledgement that the defendant had committed video voyeurism or that the phone contained evidence thereof.  Thus, they seem to believe, though they do not explicitly say, that providing the passcode was not testimonial and thus was not protected by the Fifth Amendment.  The Second cites the enduring standard that the government can force someone “to surrender a key to a strongbox containing incriminating documents” but not “the combination to his wall safe”.  Obviously, the passcode is more like a combination (something known inside the defendant’s mind) than a key (a physical object anyone can use just by possessing it), but the Second essentially says that this distinction, drawn by many courts including the US Supreme Court, is outdated and has not stood the test of time, and they will not rely on it.

The Second spends a decent amount of time on the “foregone conclusion” doctrine, which basically says that if the government already knows that the evidence they are seeking exists, and is just seeking access to it, then the defendant is not being asked to tell the government anything they don’t know and doesn’t have a Fifth Amendment privilege.  The Second focuses its foregone conclusion analysis on the passcode, not the contents of the phone that the passcode would reveal, and says that the passcode is a foregone conclusion because the government knows it exists and the defendant knows it.  They say “the question is not the State’s knowledge of the contents of the phone; the State has not requested the contents of the phone or the photos or videos on Stahl’s phone”.  Ultimately, as far as I can tell, the Second’s logic is that the defendant has to give up the passcode because the government already knows it exists and he has it, so he has no Fifth Amendment privilege in it.

The case also has a somewhat interesting standard of review section.  The State initially appealed the denial of their motion to compel, but when the Court asked them to show cause why that appeal should not be dismissed as one from a non-final, non-appealable order, they moved for review by petition for writ of certiorari, which is how the case ultimately was reviewed.  The Second says that certiorari is appropriate where the State has demonstrated that a ruling significantly impairs their ability to prosecute in a way that could not be remedied via post-judgment appeal and establishes that the trial court has violated a clearly established principle of law.  By taking the case up on certiorari and reversing, then, the Second is finding that the inapplicability of the Fifth Amendment privilege is a “clearly established principle of law”.

My thoughts:  This case is wrongly decided, and I don’t think it’s even close if you read the precedent.

First, the State should never have been able to get up on certiorari given the heightened standard and that the Second was clearly making new law here, not applying some clearly established principle of law.  Even they don’t try to argue otherwise, they simply ignore that issue in their opinion.

Second and more importantly, the analysis misses the mark.  The State doesn’t want the passcode for the passcode, they want it because it will lead them to the contents of the phone, where potentially incriminating information the defendant doesn’t want to give them access to resides.  No cases apply the Second’s “foregone conclusion” analysis to the passcode, they apply it to the information the government is seeking.  If the government already knows that information exists, foregone conclusion may apply.  If they don’t, it doesn’t.

There is a thorough analysis in United States v. Doe (in re Grand Jury Subpoena Duces Tecum), 670 F.3d 1335 (11^th Cir. 2012), which the Second cites throughout its opinion without acknowledging it reached a diametrically opposed result.  In Doe, the government had hard drives that were encrypted, presumably (though not definitely) by the defendant.  On those hard drives, the government believed (but did not know), was child pornography.  The government couldn’t access the drives without the defendant providing the decryption password.  The 11^th said that the defendant did have a Fifth Amendment privilege against decrypting the drives, because decrypting them would require “the contents of his mind” and because the existence of specific incriminating information on the hard drives was not a foregone conclusion.  The foregone conclusion analysis was specific to the content of the drives, not the decryption process.  If the Second’s analysis had been applied in Doe, the 11^th would have ruled for the government, because the government knew there was a decryption password and the defendant had it.  That, correctly, was not the analysis, because the issue in terms of the Fifth Amendment is not the password, but what the password will reveal.

The Second also cites the Supreme Court in United States v. Hubbell, 530 U.S. 27 (2000), which also ruled against the government.  This was a case related to the Whitewater investigation, and the government had given the defendant immunity to get him to provide certain documents.  The government then sought to use those documents to prosecute him, and said that the immunity applied to the act of production (i.e. they wouldn’t tell the jury that the defendant had turned over the documents) but not the documents themselves.  The Supreme Court held that because the government needed the defendant’s help to acquire the information they then used to prosecute him, he had a Fifth Amendment privilege in that information.  And, the “foregone conclusion” rationale did not apply, because the government did not know of the existence or whereabouts of the specific documents produced until the defendant produced them.  The government simply knew the defendant was a businessman and logically would have business documents, they didn’t know the specifics of what those documents were or what they’d contain.  Again, if the Second’s analysis were correct, the outcome would be different, because the foregone conclusion analysis would look to whether the government knew the defendant had the ability to provide the documents (yes), rather than what actually is supposed to be looked at, whether the government knew what the documents contained (no).  See also SEC Civil Action v. Huang, 2015 US Dist LEXIS 127583 (E.D. PA. Sept. 23, 2015) (foregone conclusion doctrine inapplicable to smartphone passcodes if government only knows the defendant possessed and had sole access to smartphones, and does not know what is on them, and finding the requirement that defendants produce smartphones passcodes testimonial and protected by the Fifth Amendment).

And, the United States Supreme Court, in Doe v. United States, 487 U.S. 201 (1988) has said that testimonial statements protected by the Fifth Amendment are those which “explicitly or implicitly relate a factual assertion or disclose information” and the “expression of the contents of an individuals mind” is testimonial.  This is also the case where the Supreme Court majority approved Justice Stevens’ distinction (in dissent) between the key to a box containing incriminating documents (not protected by Fifth Amendment) and the “combination to a wall safe” (protected).  The obvious reason for the distinction is that the key is a physical object, the combination is inside the defendant’s mind.  The Second deals with this by saying that it is outdated because of advances in technology.  My understanding of Supreme Court precedent is that lower courts are bound to follow it, even if they disagree with it, unless or until it is overruled.

I would certainly hope that the Florida Supreme Court (and if necessary the US Supreme Court) takes up this case.  The literal import of the Second’s opinion is that the government could force any of us to give them the passcodes to their phones, for any or no reason.  In this case, the government had a warrant for the phone, but there is nothing in the opinion limiting it to situations where a warrant exists, and the probable cause for a warrant standard is unrelated to the Fifth Amendment privilege standard.  After all, according to the Second, by giving the government our passcodes we are not giving up anything that they don’t know we already have (the knowledge of what the passcodes are).

Lets Play "What Did Those Crazy Legislators Mean".

James Baxter v. State, 2D14-5661, Dec. 9, 2016

Held:  A dangerous sexual felony offender sentenced pursuant to Florida Statutes sec. 794.0115(2), which says such an offender “must be sentenced to a mandatory minimum term of 25 years imprisonment up to, and including, life imprisonment” can be sentenced to a mandatory minimum of more than 25 years even if their offense is otherwise punishable by a lesser maximum, certifying conflict.

Discussion:  The Fifth District in Wilkerson v. State, 143 So.3d 462 (Fla. 5^th DCA 2014) found that if the mandatory minimum of the DSFO law exceeds the statutory maximum for the underlying offense (in both cases a second degree felony punishable by up to fifteen years) then the twenty-five year minimum mandatory must be imposed.  The Second says that the statutory language allows any minimum mandatory sentence, even if the underlying crime carries a lesser sentence.  The FL Supreme Court will have to resolve the conflict.

My thoughts:  I think the Fifth is right.  The language of 794.0115(6) says that “if the mandatory minimum term of imprisonment imposed under this section exceeds the maximum sentence authorized [for the underlying crime] the mandatory minimum term of imprisonment under this section must be imposed.  If the mandatory minimum term of imprisonment under this section is less than the sentence that could be imposed [for the underlying crime] the sentence imposed must include the mandatory minimum term of imprisonment under this section.”  That second clause would make no sense of the Second is right and the mandatory minimum is whatever the judge wants it to be even if the statutory max is lower, because then it would be impossible for the mandatory minimum term to be less than the sentence that could be imposed, except, I guess, for a death case.  I think the statutory language makes it clear that the legislature meant the 25 year min man had to be imposed for a crime with a lower statutory cap.