US SUPREME COURT DECISIONS

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 chanrobles.com-red

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.