DISTRICT COURT OF APPEAL ANSWER BRIEF OF APPELLEE

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1 IN THE DISTRICT COURT OF APPEAL FIRST APPELLATE DISTRICT OF FLORIDA STATE OF FLORIDA, v. Appellant, RONALD J. THOMPSON, Case No. 1D LT. No CF-1759 Fourth Judicial Circuit in and for Clay County, Florida. Appellee. ANSWER BRIEF OF APPELLEE WHITTINGTON & CULBERT, P.A. Steven Brian Whittington, Esquire Florida Bar No A North Pine Street Green Cove Springs, FL (904) or Counsel for Appellee

2 A. TABLE OF CONTENTS Page A. Table of Contents... ii B. Table of Citations... iii 1. Cases... iii 2. Statutes... iii 3. Other Authority...iv C. Statement of the Case and Statement of the Facts Statement of the Case and Course of Proceedings Below....1 D. Summary of Argument....4 E. Argument and Citations of Authority The trial court s decision declaring a portion of the Life statute unconstitutional as cruel and unusual punishment should be upheld and the three-year minimum mandatory sentence imposed allowed to stand; a 20-year minimum mandatory sentence imposed on Ronald Thompson would be grossly disproportionate to the crime he committed... 5 F. Conclusion...20 G. Certificate of Service...21 H. Certificate of Compliance.22 ii

3 B. TABLE OF CITATIONS 1. Cases Page Adaway v. State, 902 So.2d 746 (Fla. 2005)... 8 Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). 5 Ewing v. California, 538 U.S. 11, 29-30, 123 S.Ct. 1179, 115 L.Ed.2d 108 (2003) Furman v. Georgia, 408 U.S. 238, 383, 92 S.Ct. 2726, 33 L.Ed. 2d 346 (1972)... 6 Graham v. Florida, --U.S.--, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) 5, 6, 7, 13, 19 Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). 7, 8, 12 Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 2649, 171 L.Ed.2d 525, 538 (2008).. 6 Solem v. Helm, 463 U.S , 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) 7, 8, 12, 14 State v. Thompson, 4 So.3d 689 (Fla. 1st DCA 2009) 17 Tropp v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) 5 Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed.2d 793 (1910)... 6 iii

4 2. Statutes (2)(a)2, Fla. Stat. (2009) Other Authority Amend. VIII, U.S. Const.... 5, 6, 8 Art. I, 17, Fla. Const... 5 Florida Dept. of Corrections, Life Criminals Sentenced to Florida Prisons, July Hamilton, Alexander, Madison, James, and Jay, John. The Federalist Papers. New York: NAL Penguin, iv

5 C. STATEMENT OF THE CASE AND STATEMENT OF THE FACTS 1. Statement of the Case and Course of Proceedings Below Ronald Thompson was arrested on September 19, 2009, on four counts of aggravated assault. (R1-2). Mr. Thompson was visiting at the home of a friend, Theresa Crews, who lived two doors down from him. (R1-2, 15). Ms. Crews was not at home and Mr. Thompson was there with her mother, Betty Warren, who also lived in the home. (R1-15). According to the pleadings and the arrest and booking report, the incident began when Darrell Connelly, the son of the homeowner, came to the residence with three of his friends. (R1-2). Mr. Thompson believed Connelly had been ordered to stay out of the home by his mother. (R1-15). According to Mr. Thompson, Connelly began to curse his grandmother. (R1-15). At some point thereafter, Mr. Thompson obtained his pistol and fired a shot into the ground. (R1-2, 15). Mr. Thompson later fired a second shot, also into the ground, near the car in which Connelly and his friends had arrived. (R1-3). Mr. Thompson did this in order to scare the four into leaving. (R1-3). Mr. Thompson never denied that he fired the gun. (R1-3, 15). Connelly, as acknowledged by the state, had a prior history of violence. (R1-25). Evidence apparently established that all four complainants were drug users. (R1-26). It would appear that the four were in their early 20s. (R1-2-3). Both Connelly 1

6 and one of his female companions were convicted juvenile delinquents. (R1-29). (While this information was properly kept from the jury, it nevertheless is appropriate to consider for sentencing purposes.) On the other hand, Mr. Thompson was a 62-year disabled military veteran. (R ). Other than a DUI in 1988, Mr. Thompson had never been in trouble with the law. (R1-92). He was a happily married man for 23 years. (R1-94). Attached to the Pre-Sentence Investigation Report was a 72 page summary documenting Mr. Thompson s myriad medical issues. The PSI report summarizes that Mr. Thompson is: in poor health since his military days. He suffered from diabetes and heart-disease that was overlooked by the military which is the basis for his full disability pension. The defendant previously had 3 angioplasty surgeries, caterats [sic] removed in both eyes and a triple-bypass surgery. This officer faxed over a medical release form to the VA Hospital in Lake City, Florida and was informed that there are well-over 3000 pages of medical information on the defendant. VA faxed over a 72-page summary of his health with medication listings and his psychological evaluation conducted in This information has been attached for Court purposes. (R1-94). The trial court correctly noted that the taxpayers would foot a substantial bill to care for Mr. Thompson the remainder of his days if the Court were to impose the 20- year minimum mandatory sentence. (R11-203). 2

7 Mr. Thompson elected to try the case to a jury. The state had offered up to the trial a negotiated settlement of 3-years DOC minimum mandatory. (SR1-6) Mr. Thompson was subsequently convicted and the issue of the sentence became the concern. The Pre-sentence Investigation Report contained a recommendation of 8 months county jail to be followed by a combination of community control and probation. (R1-96). Despite having consistently believed 3-years was an appropriate sentence, (and thus having been willing to waive the 20-year mandatory sentence), the state at sentencing insisted that the trial court impose the 20-year minimum mandatory sentence required under Section (2)(a)2, Florida Statutes. The trial court found a portion of that statute unconstitutional as cruel and unusual punishment. (SR1-5-8). Mr. Thompson was sentenced to the 3-year minimum mandatory. This appeal from the state followed. 3

8 D. SUMMARY OF ARGUMENT. Section (2)(a)2, Florida Statutes, requires the imposition of a 20-year minimum mandatory sentence for aggravated assault with a discharge of a firearm. The imposition of such a sentence on Ronald Thompson, after careful consideration of the circumstances of the case and the background and character of Mr. Thompson, would constitute a grossly disproportionate sentence when compared to the conduct being punished. The sentence would be cruel. It would also be unusual as the harshness of such a sentence is far greater than that otherwise required for significantly more serious crimes, including other crimes sentenced under (2)(a)2, Florida Statutes. Mr. Thompson s unique circumstances present the Court with the rare case where a sentence should be deemed cruel and unusual. 4

9 E. ARGUMENT AND CITATIONS OF AUTHORITY 1. The trial court s decision declaring a portion of the Life statute unconstitutional as cruel and unusual punishment should be upheld and the three-year minimum mandatory sentence imposed allowed to stand; a 20-year minimum mandatory sentence imposed on Ronald Thompson would be grossly disproportionate to the crime he committed. Article I, Section 17 of the Florida Constitution prohibits excessive fines, cruel and unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses. The clause must be construed in conformity with the United States Supreme Court s construction of the Eighth Amendment to the United States Constitution. The Eighth Amendment states: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society. Graham v. Florida, -- U.S. --, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), quoting Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). This is because [t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains 5

10 the same, but its applicability must change as the basic mores of society change. Id., Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 2649, 171 L.Ed.2d 525, 538 (2008) (quoting Furman v. Georgia, 408 U.S. 238, 383, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)(Burger, C.J., dissenting). The Eighth Amendment clearly prohibits inherently barbaric punishments. However, the majority of the United States Supreme Court s opinions deal with punishments, i.e. sentences, that are not barbaric, but disproportionate to the crime. Graham, at The Supreme Court recently noted that [e]mbodied in the Constitution s ban on cruel and unusual punishments is the precept of justice that punishment for crime should be graduated and proportioned to [the] offense. Id., quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed.2d 793 (1910). The United States Supreme Court s cases addressing the cruel and unusual clause have, until recently, fallen within two general classifications. The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty (categorical prohibition of death on juveniles, for example). In Graham, the Court added a third classification: a categorical challenge to a term-of-years sentence. Id. at 6

11 2021, While the circumstances of Graham involved a juvenile who received a life sentence without the possibility of parole for a non-homicide offense, nothing in the opinion suggests that this new third classification would forever be limited to juveniles receiving life sentences. Graham certainly is important for it shows that the high court is broadening the type of sentence that would constitute cruel and unusual punishment. The Supreme Court cases indicate that courts conducting narrow proportionality review should begin with a threshold inquiry that compares the gravity of the offense and harshness of the penalty. Solem v. Helm, 463 U.S , 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)(the cruel and unusual clause forbids extreme sentences that are grossly disproportionate to the crime ). The analysis can consider a particular offender s mental state and motive for committing the crime, the actual harm caused to his victim or to society by his conduct, and any prior criminal history. Solem, at (considering motive, past criminal conduct, alcoholism, and propensity for violence).; see also Ewing v. California, 538 U.S. 11, 29-30, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (examining a defendant s criminal history); Harmelin, supra, 501 U.S. at (opinion of Kennedy, J.) (noting specific 7

12 details of the particular conviction). Thus, the first question appears to be whether the sentence is cruel. Only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality, Harmelin, at 1005, should courts proceed to an intrajurisdictional comparison of the sentence at issue with those imposed on other criminals in the same jurisdiction, and an interjurisdictional comparison with sentences imposed for the same crime in other jurisdictions. Solem, supra, at If these subsequent comparisons confirm the inference of gross disproportionality, courts should invalidate the sentence as a violation of the Eighth Amendment. Thus, the second question appears to be whether the sentence, if cruel, is also unusual. The Florida Supreme Court follows the same process. See Adaway v. State, 902 So.2d 746 (Fla. 2005). As noted in the statement of facts above, Mr. Thompson was (at the time of the offense) a 62-year old, disabled military veteran. (R1-96). Mr. Thompson s only prior arrest was for a DUI in (R1-92). The charged conduct involved four young people in their early 20s who attempted to enter a home where they were not welcomed. (R1-15). In order to scare the four young adults into leaving, Mr. Thompson (clearly unwisely) produced a handgun and fired a bullet into the dirt in 8

13 front of one of the victims. Mr. Thompson fired another shot near the vehicle the four had arrived in. He never intended to harm anyone nor did he harm anyone. Step One: Considering whether the sentence is cruel. The state points out in its initial brief that the trial court below failed to review the case under the grossly disproportionate analysis set forth above. (IBA, p.21). Two options are available: Remand the case back to the trial court for further findings which will also enable Mr. Thompson to further establish a record supporting a finding that the 20-year minimum mandatory sentence would constitute cruel and unusual punishment; or, continue on with the matter and review the sentence under the grossly disproportionate classification. Mr. Thompson would submit that the question as to whether the proposed 20-year minimum mandatory sentence is cruel and unusual is squarely before the Court. Imposition of the 20-year minimum mandatory sentence certainly passes the initial threshold inquiry in that such a sentence would be grossly disproportionate to the crime committed. The state cannot, in good faith, argue otherwise. Throughout the duration of Mr. Thompson s case, the state s plea offer was a three-year minimum mandatory sentence. Clearly, the prosecutors handling the case never felt that the draconian sentence that they now seek would have been appropriate. The record establishes that Mr. Thompson was arrested on September 19, (R1-2). The trial 9

14 began six months later on March 10, (R1-78). So through six months of litigation including depositions, various court appearances, motion hearings and the like, the state never believed Mr. Thompson deserved, or that justice required, or that somehow the community needed, this man to be locked up for 20 years. The only thing that changed was that a trial occurred. (R ). Now the state insists that the 20-year sentence be imposed. Mr. Thompson is at risk of suffering a 17-year swing in punishment because he went to trial. The Criminal Punishment Code Scoresheet provides further support for a gross disproportionate finding. Absent the 20-year minimum mandatory statute, Mr. Thompson would have only scored 46.5 months imprisonment. (R1-164). A Presentence Investigation Report was completed. The Department of Corrections recommendation is quite telling. The recommendation provided: The defendant is a 63 year old male who has been qualified as a full disabled military veteran with no prior felony arrest in his past. This defendant has served our Country with Honors and made the ultimate sacrifice of health in the interim. This officer fully understands that the punishment should fit the crime, but in this instance, I believe the defendant has learned a valuable lesson so it is the recommendation of this officer that the Court consider deviation from the Florida Sentencing Guidelines or Criminal Punishment Code. (R1-96) The report continued with the following suggested sentence: 10

15 The defendant should be sentenced to serve 8 months county jail followed by 5 years probation with the first 12 months of Community Control Level 1. Special conditions should include: obtain a mental and substance abuse evaluation from the Veterans Administration, surrender firearm, may travel for medical treatment and may apply for early termination after 30 months of successful supervision. This recommendation has been supported by the Veterans Administration because if the defendant is incarcerated for more than 12 months he will lose his disability rating for benefits. (R1-96). A common sense appraisal of Mr. Thompson s conduct on September 19, 2009, should lead a reasonable person to conclude that the department s recommendation closely matches a proportionate punishment to the actual crime committed. Finally, the Court should consider Mr. Thompson. He was 62 years old (on the offense date) and a fully disabled veteran. He suffers from a myriad of health problems. (R ). Save for a DUI arrest in 1988, he has never been in trouble with the law until the instant case. The crime was not one where Mr. Thompson went out and intentionally committed. The four complainants came to a home where Mr. Thompson was and made a scene. Mr. Thompson overreacted and fired his pistol at the ground in order to get the four to leave. No one ever suggested that Mr. Thompson tried to shoot or harm anyone. The Pre-Sentence Investigation Report indicates that none of the four victims returned the call from the probation officer for 11

16 an impact statement. (R1-92). No victim statement was heard at the sentencing hearing. Mr. Thompson was not motivated by a substance addiction or financial hardship that could lead to possible future criminal activity. In fact, there is no reason to believe Mr. Thompson is at risk to reoffend. Additionally, while the 20-year minimum mandatory sentence is clearly disproportionate to the crime actually committed, as noted in the sentencing hearing, the sentence is really a life sentence when applied to Mr. Thompson. (R2-203). With his advanced age and poor health, Mr. Thompson would never leave prison if the 20 year sentence is imposed. In that sense, the sentence is the second harshest sentence that a state can lawfully impose. Mr. Thompson submits that his case represents that rare instance where the sentence is grossly disproportionate to the crime committed. Harmelin, 501 U.S. at Thus, the Court should next determine how Mr. Thompson s potential sentence compares with sentences within this jurisdiction and within other jurisdictions. Solem, supra, at Step Two: Considering whether the sentence is unusual. Mr. Thompson s sentence is far more severe than that imposed for similar violations of Florida law, and, more importantly, more severe than significantly more serious violations of Florida law. As pointed out in Chief Justice Roberts concurring 12

17 opinion in Graham, individuals who commit burglary or robbery offenses in Florida receive average sentences of less than 5 years and less than 10 years, respectively. Graham, supra, 130 S.Ct. at , citing, Florida Dept. of Corrections, Annual Report FY : The Guidebook to Corrections in Florida 35. Most burglaries and certainly robberies are more serious offenses than the act done by Mr. Thompson. Under the Criminal Punishment Code, a defendant can commit and be convicted of armed robbery, carjacking, home invasion robbery, lewd and lascivious molestation and many other serious offenses and not suffer a sentence as severe as the one Mr. Thompson faces. In many of those sentences, the maximum sentence possible would be less than the 20-year minimum mandatory the state seeks to impose upon Mr. Thompson. In July 2007, the Florida Department of Corrections issued a comprehensive report on the Life statute. Florida Dept. of Corrections, Life Criminals Sentenced to Florida Prisons, July 2007, (hereafter the DOC report ). The report accumulated statistics for all the inmates sentenced under the Life statute from its inception in July 1999 through June DOC report, pp 3-4. Through June 2006, 4,825 inmates had been admitted to prison with a sentence imposed under the Life legislation. Id. A mere 5.3% of those inmates (258) received the 20-year minimum mandatory sentence that state seeks to impose on Mr. Thompson. A slightly 13

18 higher percentage received a 25 year sentence or longer (8.7%), and a very small percent received Life, (1.7%). Id. The vast majority, over 80%, received either a 3- year or 10-year minimum sentence. Id. Thus, Mr. Thompson is in danger of becoming a member of a significantly small percentage of inmates who received one of the harshest of sentences under the Life statute. Can any reasonable person articulate a justification for why Mr. Thompson s conduct merits such a dubious distinction? The DOC report continues with additional findings that support Mr. Thompson s claim. The report breaks down the types of crimes committed for the mandatory sentences imposed. Out of the 248 inmates who had received a 20-year minimum mandatory sentence, 93 were convicted of murder/manslaughter and 75 of robbery, for a total of 168. Id. at 17. The other significant category, with 67 inmates, was other violent crimes. Id. The other violent category includes Mr. Thompson s offense of aggravated assault, but it also includes aggravated battery, carjacking and other types of offenses. Id. The undersigned could find no breakdown of how many aggravated assault inmates ended up receiving a 20-year minimum mandatory sentence. However, it is reasonable to assume that a significant portion of the 67 inmates received their harsh sentence for crimes such as aggravated battery and carjacking. Thus, when broken down further, by considering the still broad category 14

19 of other violent crime, Mr. Thompson is in danger of becoming a member of 1.3% of all the inmates who had been sentenced (during the first seven years of the statute s existence) to the 20-year minimum mandatory sentence, i.e. 67 out of 4,825. And the percentage is even lower as certainly most of the crimes committed were for offenses other than aggravated assault. Thus, it is clear that Mr. Thompson s potential sentence is grossly more severe than that imposed for similar offenses, and more importantly, for more serious offenses in the State of Florida, particularly when considering the Life statute. As the United States Supreme Court explained in Solem, supra, at 291, [i]f more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive. (emphasis added). The trial court below made this exact finding. The court found: There are only two third degree felonies encompassed by the Life law; aggravated assault being one and burglary to a conveyance being the other. The Court s ruling applies only to aggravated assault. Aggravated assault is given special status in the statute in that as a third degree felony, normally punishable by five years imprisonment, it can be enhanced to three years minimum mandatory imprisonment through the use of a firearm during the aggravated assault. Only aggravated assault, possession of a firearm by a convicted felon, and burglary to a conveyance carry this reduced first enhancer. In this regard, when applied to aggravated assault, the statute is more appropriately deemed to be Three-Twenty-Life. 15

20 It is the second enhancer of aggravated assault to twenty years which the Court found to be unconstitutional on its face as violative of Article I, Section 17 of the Florida State Constitution as cruel and unusual punishment. The second enhancer, when applied, effectively makes aggravated assault a second degree felony in that there is no distinction made, as in the first enhancer, to differentiate the minimum mandatory sentence of twenty years for aggravated assault from the minimum mandatory sentence of twenty years for aggravated battery. To prove aggravated battery in order to trigger the enhanced penalties of F.S , the State minimally must show that the defendant has committed a battery and during the course of committing the battery did use a firearm. A simple battery requires proof that the victim was touched or struck in some fashion. Assault requires no injury, touching or striking, only an intentional and unlawful threat by word or act to do violence to the person of another with the apparent ability to do so and creating in that person a well founded fear that such violence is imminent. Aggravated assault for purposes of F.S is simple assault with a firearm. Historically, under common law, and carrying over into the current Florida Statutes, assaults in general are subject to a considerably shorter maximum penalty than batteries, which by their very nature can involve serious personal injury. It is for this reason that the sentencing court in this case found F.S (2)(a)2 unconstitutional on its face as a second enhancer to the charge of aggravated assault. As a third degree felony, it cannot, and should not carry the same mandatory minimum penalty (in this case: 20 years) as a second degree felony and this is why it is violative of Article I, Section 17 of the Florida State Constitution. Had the legislature continued in its special treatment of third degree felonies subject to the Ten-Twenty-Life law in regard to the second enhancer, as it took pains to do with the first enhancer, this section would have easily survived any constitutional attack. 16

21 The trial court rightly found that the crime for which Mr. Thompson was convicted is punished the same as a significantly more serious crime. This fact, alone, invites serious inquiry into the validity of the statute as applied to anyone charged with aggravated assault with a discharge but certainly as to Mr. Thompson. Mr. Thompson recognizes the Court s fairly recent opinion in State v. Thompson, 4 So.3d 689 (Fla. 1st DCA 2009)(no known relation to Mr. Ronald Thompson). It does not appear from the opinion that the defendant in that case made the same constitutional attack as the one being presented now. The argument in the 2009 Thompson case apparently involved a separation of powers claim. Id. at 691. In any event, the primary claim being raised by Ronald Thompson involves the constitutionality of applying the 20-year minimum mandatory sentence to him. The facts as set forth in the 2009 Thompson case appear much more aggravated than those present here. Consideration of the trial court. Finally, a word on the state s request for this Court to remove the trial court from any future proceedings. In the initial brief, the state complained that since the trial court decreed that it would not impose the mandatory sentence even though it understood it would be reversed, and because while the case was on remand for the appointment of counsel, it entered an order clarifying its previous ruling, the trial 17

22 court is somehow unfit to preside over the case. (IBA, p. 22). The state cites to no rule of judicial conduct that the trial court ran afoul and none comes to mind. Nothing can be wrong with a trial court taking an opportunity to clarify why it did what it did, especially when what it did was declare a portion of state law unconstitutional. Such an order could only assist this Court in carrying out its duty. By the language it used, the state implies that the trial court just chose to ignore the law all the while realizing it would be overruled. (IBA, p. 22). That is not a fair characterization of the trial court s ruling. While the court clearly expressed doubts as to whether its sentence could withstand appellate review, I ll probably be reversed, (RII-204), the trial court clearly believed that a portion of the statute was cruel and unusual. The court went to great lengths to explain why. (SR1-5-8). Fortunately, for now, trial judges have not been reduced to mere automatons whose role at sentencing amounts to nothing more than a scrivener. They are human beings accountable to the citizenry which elected them; entrusted to administer the law fairly and justly. In Federalist Paper # 78, Alexander Hamilton foresaw the role of judges as guarding the liberty of citizens from encroachments by legislative and executive powers. Hamilton, Alexander, Madison, James, and Jay, John. The Federalist Papers. New York: NAL Penguin, 1961 (pp ). And that is exactly what the trial judge did below; he protected the liberty of Ronald Thompson by refusing to impose upon him a sentence 18

23 that any civilized society would deem grossly disproportionate to the behavior sought to be punished: a sentence that would be both cruel and unusual. In order for the necessary moral judgment to be made to determine a certain sentence s cruelty, Graham, supra, 130 S.Ct. at 2021, trial judges must be encouraged to make (not disciplined for making) the difficult decision to find certain sentences cruel and unusual. Clearly, these decisions should be rare. The state seeks to have the trial court disciplined because it made a moral judgment the state (only since Mr. Thompson went to trial) disagrees with. No matter the Court s ultimate ruling, the trial court below should remain on the case. 19

24 F. CONCLUSION The Court should affirm the trial court s decision below and allow Mr. Thompson s sentence to remain in place. 20

25 G. CERTIFICATE OF SERVICE I HEREBY CERTIFY a true and correct copy of the foregoing instrument has been filed electronically and furnished by U.S. Mail delivery to: Edward C. Hill, Jr. Special Counsel, Criminal Appeals Office of the Attorney General Pl-01, The Capitol Tallahassee, Florida this 25th day of October, Respectfully submitted, WHITTINGTON & CULBERT, P.A. /s/ Steven Brian Whittington Steven Brian Whittington, Esquire Florida Bar No A North Pine Street Green Cove Springs, FL (904) or Counsel for Appellee 21

26 H. CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the Initial Brief of Appellant meets the font requirements of Times New Roman 14-point. Respectfully submitted, WHITTINGTON & CULBERT, P.A. /s/ Steven Brian Whittington Steven Brian Whittington, Esquire Florida Bar No A North Pine Street Green Cove Springs, FL (904) or Counsel for Appellee 22

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