Excessive Sentencing Project - Florida

Policies and rulings on lengthy imprisonment terms in Florida.

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  • Florida has abolished parole. Fla. Stat. § 921.002(1)(e)(2003). Incentive and meritorious gain-time may be available, but a defendant must serve 85 percent of his or her sentence.
  • Florida has mandatory LWOP and allows for JLWOP.
  • Florida does not require children to reach a minimum age before they are transferred to adult court. Fla. Stat. § 985.225 specifies when a juvenile defendant must be treated as an adult. A juvenile must be treated as an adult for any offenses punishable by death or life imprisonment.
  • Flor. Stat. § 921.137(1) provides a three-prong test for determining mental retardation of defendants. The defendant’s IQ must be 70 or below to meet the first prong of this test. See State v. Herring, 76 So. 3d 891 (Fla. 2011).

State Constitution

§ 17.  Excessive punishments  

Excessive fines, cruel and unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are forbidden. The death penalty is an authorized punishment for capital crimes designated by the legislature. The prohibition against cruel or unusual punishment, and the prohibition against cruel and unusual punishment, shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution. Any method of execution shall be allowed, unless prohibited by the United States Constitution. Methods of execution may be designated by the legislature, and a change in any method of execution may be applied retroactively. A sentence of death shall not be reduced on the basis that a method of execution is invalid. In any case in which an execution method is declared invalid, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method. This section shall apply retroactively. Fla. Const. Art. I, § 17 (2012) (Emphasis added).

NOTE: This amendment was made in 2002. See Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007). While this version requires conformity to the Eighth Amendment precedent, the pre-2002 may have been broader than the Eighth Amendment. See Adaway v. State, 902 So. 2d 746, 747 (Fla. 2005).However, the Supreme Court of Florida never actually decided the issue.

Pre-2002 § 17  

Excessive fines, cruel or unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are forbidden. (Under pre-2002 Article 1, Section 17, the death penalty could not be applied to juveniles under 16-years old. Allen v. State, 636 So. 2d 494 (Fla. 1994); Brennan v. State, 754 So. 2d 1 (Fla. 1999)).

Sentencing Statutes

  • Sentencing Guidelines System – NONE
    • Florida repealed its sentencing guidelines for all offenses that occurred on or after October 1, 1998. See Florida Department of Corrections, Overview of Florida's Sentencing Policies, http://dc.state.fl.us/pub/sen_cpcm/. Instead, the criminal code controls.
  • Habitual Criminal Statute – Fla. Stat. § 775.084
    • Fla. Stat. § 775.084 addresses violent career criminals, habitual felony offenders, habitual violent felony offenders, three-time violent felony offenders, and enhanced penalties or mandatory minimum prison terms.

Case Law


The Eighth Amendment to the United States Constitution and article I, section 17 of the Florida Constitution have historically provided protection relative to the mode and method of punishment, not the length of incarceration. Hall v. State, 823 So. 2d 757, 760 (Fla. 2002).

Mandatory minimums have been consistently upheld by the Supreme Court of Florida despite their severity and despite constitutional attacks. Paey v. State, 943 So. 2d 919, 926 (Fla. Dist. Ct. App. 2d Dist. 2006). The Supreme Court of Florida has “affirmed its commitment to the principle that the legislature, and not the judiciary, determines maximum and minimum penalties for violations of the law.” Id. (citing State v. Benitez, 395 So. 2d at 518 (Fla. 1981)).

State Constitution & Proportionality 

The Eighth Amendment forbids extreme sentences that are “grossly disproportionate” to the offense. Hall v. State, 823 So. 2d 757, 760 (Fla. 2002).

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Proportionality analysis under the Eighth Amendment “includes consideration of: (i) the gravity of the offense and the harshness of the penalty, (ii) the sentences imposed on other criminals in the same jurisdiction, and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Jones v. State, 861 So. 2d 1261 (Fla. Dist. Ct. App. 4th Dist. 2003).

Parole eligibility is not relevant in Florida for determining an unduly harsh or disproportionate sentence, even though the Supreme Court considered parole eligibility in Rummel. Adaway v. State, 902 So. 2d 746 (Fla. 2005).

The defendant’s age is a factor that must be considered when conducting a proportionality review of the defendant’s sentence. Phillips v. State, 807 So. 2d 713, 718 (Fla. Dist. Ct. App. 2d Dist. 2002).

Florida requires comparative proportionality analysis for death sentences. See Tillman v. State, 591 So. 2d 167 (Fla. 1991); Sinclair v. Florida, 657 So. 2d 1138, 1142 (Fla. 1995).

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The imposition of a life sentence with a minimum of 25-years imprisonment before eligibility for parole for sexual battery of a child is not cruel or unusual punishment in Florida. Jones v. State, 861 So. 2d 1261

Leading Court Discussions of Graham and Miller  

Treacy v. Lamberti, 141 So. 3d 174 (Fla. October 10, 2013) (In Florida where defendants charged with offense punished by life are not entitled to bond, Graham makes juveniles entitled to bond as a matter of right; attempted murder is not homicide and Graham is applicable) 

Severe Sentences 

Adaway v. State, 902 So. 2d 746 (Fla. 2005) –Defendant was sentenced to life imprisonment without parole for the crime of oral union with the genitals of a child under the age of twelve.  

Andrews v. State, 82 So. 3d 979 (Fla. Dist. Ct. App. 1st Dist. 2011) – The court upheld defendant’s consecutive ten-year sentences for failure to report a temporary residence. These sentences were the result of defendant’s acquired  habitual violent felony offender (HVFO) status.

Morrow v. State, 856 So. 2d 1043, 1044 (Fla. Dist. Ct. App. 5th Dist. 2003) – The court upheld defendant’s sentence of life imprisonment for illegally possessing a firearm under Florida’s Three Strikes Violent Felony Offender Act. Such harsh punishment is permissible under the Eighth Amendment.

Tate v. State, 864 So. 2d 44, 55 (Fla. Dist. Ct. App. 4th Dist. 2003) –  The court upheld a sentence of life without parole for a 12-year old who was convicted of murdering a 6-year old. (new trial granted on other grounds).