• Loren Rhoton

Constitutional Amendment 11 and Retroactivity of Changes in Criminal Statutes

My office has received many inquiries about the effect of the passage of Florida Constitutional Amendment 11 on pre-existing minimum mandatory sentences. It seems that, as often happens, there is a lot of speculation that the passage of Amendment 11 last November means that previously imposed minimum mandatory sentences will be retroactively affected. At this point, it is too early to determine the ultimate effect of Amendment 11.


Amendment 11 proposed, in relevant part, a revision of Section 9 of Article X of the Florida Constitution, doing away with what is known as the Savings Clause. The Savings Clause banned the legislature from making retroactive changes to criminal sentencing laws. For example, if a minimum mandatory sentencing scheme was in place, but then later removed, the Savings Clause prevented the state from enacting retroactive legislation that would remove the minimum mandatory sentences for people already sentenced under the previous sentencing scheme that allowed them.


The Savings Clause previously read: “Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.” As per the will of the Florida voters, the Savings Clause was amended to read: “Repeal of a criminal statute shall not affect prosecution for any crime committed before such repeal.” Art. X, § 9, Fla. Const. Notably, the amendment removed the retroactivity prohibition as it pertained to the repeal of a criminal statute’s effect on the punishment (i.e., sentence). Thus, under the newly amended Savings Clause, the Florida legislature has the ability to repeal a previously enacted sentencing scheme (for example, minimum mandatory sentences) and make the repeal retroactive to those convicted and sentenced prior to the repeal.


While Amendment 11 is potentially a major positive development in Florida sentencing laws, its effect on Florida prisoners has not yet been determined. The rumor mill has many believing that just by virtue of the passage of Amendment 11, all previously sentenced prisoners will automatically benefit from any changes to the Florida sentencing scheme. However, as of this date, that is not necessarily so.


As with any constitutional development of this type, there is plenty of legal wrangling going on to determine how Amendment 11 will affect already-imposed sentences. The undersigned has been informed by a number of inmates that some are filing motions within the courts to retroactively apply sentencing changes to their cases. Additionally, various legislators and public officials are working to determine and/or limit the applicability and effect of Amendment 11. On the positive side, state senator Darryl Rouson sponsored Senate Bill 704, which would automatically make any future criminal justice reforms retroactive, and would make all past reforms, including a 2014 change to drug laws and a 2016 change to a 20-year mandatory minimum on aggravated assault, apply to people currently in prison. However, as of this point, SB 704 has not been passed and its future is uncertain.


On the other side of the spectrum, Senate Bill 1656, proposes that any revision of an existing criminal statute only operates going forward unless expressly provided otherwise. In other words, for any revision of an existing criminal statute to be retroactive, the statute must specifically provide for such retroactivity, and, in the absence of such a retroactive provision, the revision of said statute shall only be prospective.


As of this date, there has been no definitive answer as to what Amendment 11 will mean for those already sentenced. There will no doubt be both legislative action and judicial review of anything that results from Amendment 11. FPJ will track the developments and update readers in future issues. But, for now, until the legislature and/or the judiciary defines Amendment 11’s impact, any collateral/postconviction actions taken in reliance on Amendment 11 are likely premature.

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