×
You have 2 more free articles available this month. Subscribe today.
Retroactive Application of Florida Sentencing Guidelines Violates Ex Post Facto Clause
Retroactive Application of Florida Sentencing Guidelines Violates Ex Post
Facto Clause
The United States Supreme Court held that the use of Florida's
revised sentencing guidelines retroactively when those guidelines change
the legal consequences of acts committed before their effective date
violates the Ex Post Facto Clause. This action was filed by a Florida
defendant who committed crimes on April 25, 1984, but had revised
guidelines effective July 1, 1984, applied to him.
In 1983 Florida replaced its system of indeterminate sentencing with a
sentencing guidelines scheme intended to eliminate unwarranted variation
in the sentencing process." These guidelines became effective October 1,
1983. Under the scheme, a simple sentencing score sheet" would be
prepared based on the defendant's primary offense," defined as the
crime with the highest statutory degree" at the time of conviction.
Points were assigned based on the primary offense, additional offenses at
the time of conviction, prior record, legal status at the time of offense,
and victim injury. The defendant's total point score was then compared to
a chart for the offense category to provide a presumptive sentence range.
Any departure required clear and convincing reasons in writing.
The defendant in this case had applied to him at his October 1984
sentencing the July 1984 revision, which changed the definition
or primary offense" to the most severe sentence range." The defendant,
who was convicted of burglary with assault and sexual battery, had a
primary offense change, resulting in a 20% increase of his primary offense
points. Under the old guidelines the defendant had a sentencing range of
3 ½ to 4 ½ years. The revision called for 5 ½ years in prison. On appeal,
the defendant's sentence was remanded for re-sentencing in accordance with
the sentencing guidelines in effect at the time the offense was
committed. See: 488 So. 2d 1018 (Fla. 1st DCA 1985).
The Florida Supreme Court reversed, holding the trial court may sentence
a defendant pursuant to the guidelines in effect at the time of
sentencing." See: 488 So.2d 820 (Fla. 1986).
The U.S. Supreme Court reversed, holding a law is ex post facto if it
is retrospective, that is, it must apply to events occurring before its
enactment" and it must disadvantage the offender affected by it." A law
is retrospective if it changes the legal consequences of acts completed
before its effective date." The Court held the application of the revised
guidelines to the defendant clearly satisfied this standard. The revised
guidelines also disadvantaged the defendant by increasing his sentence
without requiring written reasons for departure, which are reviewable on
appeal.
The Court also rejected the State's argument that the change in the
guidelines law was not disadvantageous because the defendant cannot
definitively show that he would have gotten a lesser sentence." The Court
rejected a similar argument in a prior case that changed a sentence from
six months to 15 years to a mandatory 15 years. In that case, the court
held, we need not inquire whether this is technically an increase in the
punishment annexed to the crime," because, it is plainly to the
substantial disadvantage of petitioners to be deprived of all opportunity
to receive a sentence which would give them freedom from custody and
control prior to expiration of the 15-year term.
The Court also said that Florida's guidelines, unlike federal parole
guidelines, are laws enacted by the legislature with the force and effect
of law. Thus, any case law applicable to federal parole guidelines are
inappropriate, as those guidelines are discretionary. The decision of the
Florida Supreme Court was reversed. See: Miller v. Florida, 482 U.S.
423, 107 S.Ct. 2446, 96 L.Ed. 2d 351 (1987).
Facto Clause
The United States Supreme Court held that the use of Florida's
revised sentencing guidelines retroactively when those guidelines change
the legal consequences of acts committed before their effective date
violates the Ex Post Facto Clause. This action was filed by a Florida
defendant who committed crimes on April 25, 1984, but had revised
guidelines effective July 1, 1984, applied to him.
In 1983 Florida replaced its system of indeterminate sentencing with a
sentencing guidelines scheme intended to eliminate unwarranted variation
in the sentencing process." These guidelines became effective October 1,
1983. Under the scheme, a simple sentencing score sheet" would be
prepared based on the defendant's primary offense," defined as the
crime with the highest statutory degree" at the time of conviction.
Points were assigned based on the primary offense, additional offenses at
the time of conviction, prior record, legal status at the time of offense,
and victim injury. The defendant's total point score was then compared to
a chart for the offense category to provide a presumptive sentence range.
Any departure required clear and convincing reasons in writing.
The defendant in this case had applied to him at his October 1984
sentencing the July 1984 revision, which changed the definition
or primary offense" to the most severe sentence range." The defendant,
who was convicted of burglary with assault and sexual battery, had a
primary offense change, resulting in a 20% increase of his primary offense
points. Under the old guidelines the defendant had a sentencing range of
3 ½ to 4 ½ years. The revision called for 5 ½ years in prison. On appeal,
the defendant's sentence was remanded for re-sentencing in accordance with
the sentencing guidelines in effect at the time the offense was
committed. See: 488 So. 2d 1018 (Fla. 1st DCA 1985).
The Florida Supreme Court reversed, holding the trial court may sentence
a defendant pursuant to the guidelines in effect at the time of
sentencing." See: 488 So.2d 820 (Fla. 1986).
The U.S. Supreme Court reversed, holding a law is ex post facto if it
is retrospective, that is, it must apply to events occurring before its
enactment" and it must disadvantage the offender affected by it." A law
is retrospective if it changes the legal consequences of acts completed
before its effective date." The Court held the application of the revised
guidelines to the defendant clearly satisfied this standard. The revised
guidelines also disadvantaged the defendant by increasing his sentence
without requiring written reasons for departure, which are reviewable on
appeal.
The Court also rejected the State's argument that the change in the
guidelines law was not disadvantageous because the defendant cannot
definitively show that he would have gotten a lesser sentence." The Court
rejected a similar argument in a prior case that changed a sentence from
six months to 15 years to a mandatory 15 years. In that case, the court
held, we need not inquire whether this is technically an increase in the
punishment annexed to the crime," because, it is plainly to the
substantial disadvantage of petitioners to be deprived of all opportunity
to receive a sentence which would give them freedom from custody and
control prior to expiration of the 15-year term.
The Court also said that Florida's guidelines, unlike federal parole
guidelines, are laws enacted by the legislature with the force and effect
of law. Thus, any case law applicable to federal parole guidelines are
inappropriate, as those guidelines are discretionary. The decision of the
Florida Supreme Court was reversed. See: Miller v. Florida, 482 U.S.
423, 107 S.Ct. 2446, 96 L.Ed. 2d 351 (1987).
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
Miller v. Florida
| Year | 1987 |
|---|---|
| Cite | 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed. 2d 351 (198 |
| Level | Supreme Court |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
MILLER v. FLORIDA, 107 S. Ct. 2446, 482 U.S. 423 (U.S. 06/09/1987)
[1] SUPREME COURT OF THE UNITED STATES
[2] No. 86-5344
[3] 107 S.Ct. 2446, 482 U.S. 423, 96 L.Ed.2d 351, 1987
[4] decided: June 9, 1987.
[5] MILLER
v.
FLORIDA
[6] CERTIORARI TO THE SUPREME COURT OF FLORIDA.
[7] Anthony Calvello argued the cause for petitioner. With him on the briefs were Richard L. Jorandby and Craig S. Barnard.
[8] Joy B. Shearer, Assistant Attorney General of Florida, argued the cause for respondent. With her on the brief was Robert A. Butterworth, Attorney General.*fn*
[9] O'Connor, J., delivered the opinion for a unanimous Court.
[10] Author: O'connor
[ 482 U.S. Page 424]
[11] JUSTICE O'CONNOR delivered the opinion of the Court.
[12] At the time petitioner committed the crime for which he was convicted, Florida's sentencing guidelines would have resulted in a presumptive sentence of 3 1/2 to 4 1/2 years' imprisonment. At the time petitioner was sentenced, the revised guidelines called for a presumptive sentence of 5 1/2 to 7 years in prison. The trial court applied the guidelines in effect at the time of sentencing and imposed a 7-year sentence. The question presented is whether application of these amended
[ 482 U.S. Page 425]
guidelines in petitioner's case is unconstitutional by virtue of the Ex Post Facto Clause.
[13] I
[14] In 1983, the Florida Legislature enacted legislation replacing Florida's system of indeterminate sentencing with a sentencing guidelines scheme intended "to eliminate unwarranted variation in the sentencing process." Fla. Rule Crim. Proc. 3.701(b) (1983). See 1983 Fla. Laws, ch. 83-216. Under the sentencing statute, a guidelines commission was responsible for "the initial development of a statewide system of sentencing guidelines." Fla. Stat. § 921.001(1) (1983). Once the commission had made its recommendation, the Supreme Court of Florida was to develop a final system of guidelines. These guidelines were to become effective for crimes committed on or after October 1, 1983. Fla. Stat. § 921.001(4)(a) (1983).
[15] The sentencing statute authorized the guidelines commission to "meet annually or at the call of the chairman to review sentencing practices and recommend modifications to the guidelines." Fla. Stat. § 921.001(3) (1983). Before the convening of the legislature each year, the commission was to make its recommendations regarding the need for changes in the guidelines. The Supreme Court of Florida then could revise the sentencing guidelines to conform to all or part of the commission's recommendations. The sentencing law provided, however, that such revisions would become effective "only upon the subsequent adoption by the Legislature of legislation implementing the guidelines as then revised." Fla. Stat. § 921.001(4)(b) (1983).
[16] In accordance with this legislation, the Supreme Court of Florida developed sentencing guidelines that went into effect on October 1, 1983. See In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848 (1983). Under the scheme, offenses were grouped into nine "offense categories" (e. g., "robbery" and "sexual offenses"). A single sentencing
[ 482 U.S. Page 426]
"scoresheet" would be prepared based on the defendant's "primary offense," defined as the crime "with the highest statutory degree" at the time of conviction. Fla. Rule Crim. Proc. 3.701(d) (1983). In scoring a defendant's guidelines sentence, points would be assigned based on the primary offense, additional offenses at the time of conviction, prior record, legal status at the time of the offense, and victim injury. The defendant's total point score then would be compared to a chart for that offense category, which provided a presumptive sentence for that composite score.
[17] The presumptive sentence range was "assumed to be appropriate for the composite score of the offender." Fla. Rule Crim. Proc. 3.701(d)(8) (1983). Within the recommended range, the sentencing judge had discretion to fix the sentence "without the requirement of a written explanation." Ibid. If the sentencing judge wished to depart from the guideline range, however, the judge had to give clear and convincing reasons in writing for doing so:
[18] "Departures from the presumptive sentence should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure. Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained." Fla. Rule Crim. Proc. 3.701(d)(11) (1983).
[19] The "clear and convincing" standard was construed as requiring reasons "of such weight as to produce in the mind of the judge a firm belief or conviction, without hesitancy, that departure is warranted." State v. Mischler, 488 So. 2d 523, 525 (Fla. 1986). Only those sentences that fall outside the guidelines' range are subject to appellate review. See Fla. Stat. § 921.001(5) (1983).
[20] Petitioner was convicted in August 1984 on counts of sexual battery with slight force, a second-degree felony, Fla.
[ 482 U.S. Page 427]
Stat. § 794.011(5) (Supp. 1984); burglary with an assault, a felony of the "first degree punishable by . . . life," Fla. Stat. § 810.02 (1983); and petit theft, a misdemeanor, Fla. Stat. § 812.014(2)(c) (1983). On April 25, 1984, when these offenses were committed, the sentencing guidelines adopted October 1, 1983, were still in effect. On May 8, 1984, however, the Supreme Court of Florida proposed several revisions to the sentencing guidelines. See Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 -- Sentencing Guidelines), 451 So. 2d 824 (1984). In June 1984 the Florida Legislature adopted the recommended changes, see 1984 Fla. Laws, ch. 84-328, and the legislation implementing the revised guidelines became effective July 1, 1984. When petitioner was sentenced on October 2, 1984, therefore, these revised sentencing guidelines were the guidelines then in effect.
[21] Only two changes made in the revised guidelines are relevant here. First, the guidelines changed the definition of "primary offense" from the offense with "the highest statutory degree," to the offense which results in "the most severe sentence range." See 451 So. 2d, at 824, n. This changed petitioner's primary offense from burglary with assault -- the offense with the higher statutory degree -- to sexual battery. Petitioner does not argue here that the new definition itself changed his presumptive sentence. See Tr. of Oral Arg. 6. As a result of the new definition, however, petitioner was affected by another change in the revised guidelines law: a 20% increase in the number of primary offense points assigned to sexual offenses. The Supreme Court of Florida, in its comments accompanying the revised guidelines, described the change: "The revision increases the primary offense points by 20% and will result in both increased rates and length of incarceration for sexual offenders." 451 So. 2d, at 824, n. As a result of the point increase, petitioner's total point score jumped to a presumptive sentence of 5 1/2 to 7 years. See App. 12.
[ 482 U.S. Page 428]
At petitioner's sentencing hearing on October 2, 1984, the State contended that the revised guidelines should apply in determining petitioner's sentence. Alternatively, the State argued that if the sentencing judge applied the earlier guidelines, he should depart from the guidelines' range and impose a 7-year sentence. Id., at 8-9. The sentencing judge, rejecting petitioner's ex post facto argument, ruled that the revised guidelines should apply. Concluding that he would "stay within the new guidelines," the judge imposed a 7-year term of imprisonment for the sexual assault count. Id., at 10. Petitioner received a concurrent 7-year sentence on the burglary count, and time served on the misdemeanor charge. Id., at 6, 11.
[22] On appeal, the Florida District Court of Appeal, relying on this Court's decision in Weaver v. Graham, 450 U.S. 24 (1981), vacated petitioner's sentence and remanded for resentencing in accordance with the sentencing guidelines in effect at the time the offense was committed. 468 So. 2d 1018 (1985). In remanding the case, the court noted that "the same sentence is possible if clear and convincing reasons for departure from the then applicable guidelines are stated in writing." Ibid.
[23] The Supreme Court of Florida reversed. 488 So. 2d 820 (1986). In a summary opinion, the court concluded that its decision in State v. Jackson, 478 So. 2d 1054 (1985), established that "the trial court may sentence a defendant pursuant to the guidelines in effect at the time of sentencing." 488 So. 2d, at 820. In Jackson, the Supreme Court of Florida had emphasized that "the presumptive sentence established by the guidelines does not change the statutory limits of the sentence imposed for a particular offense." 478 So. 2d, at 1056. On that basis, it had concluded that a modification in sentencing guidelines procedure was "merely a procedural change, not requiring the application of the ex post facto doctrine" under Dobbert v. Florida,432 U.S. 282 (1977). 478 So. 2d, at 1056.
[ 482 U.S. Page 429]
We granted certiorari, 479 U.S. 960 (1986), and now reverse.
[24] II
[25] Article I of the United States Constitution provides that neither Congress nor any State shall pass any "ex post facto Law." See Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. Our understanding of what is meant by ex post facto largely derives from the case of Calder v. Bull,3 Dall. 386 (1798), in which this Court first considered the scope of the ex post facto prohibition. In Calder, Justice Chase, noting that the expression " ex post facto " "had been in use long before the revolution," id., at 391, summarized his understanding of what fell "within the words and the intent of the prohibition":
[26] "1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender." Id., at 390 (emphasis omitted).Accord, Dobbert v. Florida, supra, at 292, quoting Beazell v. Ohio,269 U.S. 167, 169-170 (1925).
[1] SUPREME COURT OF THE UNITED STATES
[2] No. 86-5344
[3] 107 S.Ct. 2446, 482 U.S. 423, 96 L.Ed.2d 351, 1987
[4] decided: June 9, 1987.
[5] MILLER
v.
FLORIDA
[6] CERTIORARI TO THE SUPREME COURT OF FLORIDA.
[7] Anthony Calvello argued the cause for petitioner. With him on the briefs were Richard L. Jorandby and Craig S. Barnard.
[8] Joy B. Shearer, Assistant Attorney General of Florida, argued the cause for respondent. With her on the brief was Robert A. Butterworth, Attorney General.*fn*
[9] O'Connor, J., delivered the opinion for a unanimous Court.
[10] Author: O'connor
[ 482 U.S. Page 424]
[11] JUSTICE O'CONNOR delivered the opinion of the Court.
[12] At the time petitioner committed the crime for which he was convicted, Florida's sentencing guidelines would have resulted in a presumptive sentence of 3 1/2 to 4 1/2 years' imprisonment. At the time petitioner was sentenced, the revised guidelines called for a presumptive sentence of 5 1/2 to 7 years in prison. The trial court applied the guidelines in effect at the time of sentencing and imposed a 7-year sentence. The question presented is whether application of these amended
[ 482 U.S. Page 425]
guidelines in petitioner's case is unconstitutional by virtue of the Ex Post Facto Clause.
[13] I
[14] In 1983, the Florida Legislature enacted legislation replacing Florida's system of indeterminate sentencing with a sentencing guidelines scheme intended "to eliminate unwarranted variation in the sentencing process." Fla. Rule Crim. Proc. 3.701(b) (1983). See 1983 Fla. Laws, ch. 83-216. Under the sentencing statute, a guidelines commission was responsible for "the initial development of a statewide system of sentencing guidelines." Fla. Stat. § 921.001(1) (1983). Once the commission had made its recommendation, the Supreme Court of Florida was to develop a final system of guidelines. These guidelines were to become effective for crimes committed on or after October 1, 1983. Fla. Stat. § 921.001(4)(a) (1983).
[15] The sentencing statute authorized the guidelines commission to "meet annually or at the call of the chairman to review sentencing practices and recommend modifications to the guidelines." Fla. Stat. § 921.001(3) (1983). Before the convening of the legislature each year, the commission was to make its recommendations regarding the need for changes in the guidelines. The Supreme Court of Florida then could revise the sentencing guidelines to conform to all or part of the commission's recommendations. The sentencing law provided, however, that such revisions would become effective "only upon the subsequent adoption by the Legislature of legislation implementing the guidelines as then revised." Fla. Stat. § 921.001(4)(b) (1983).
[16] In accordance with this legislation, the Supreme Court of Florida developed sentencing guidelines that went into effect on October 1, 1983. See In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848 (1983). Under the scheme, offenses were grouped into nine "offense categories" (e. g., "robbery" and "sexual offenses"). A single sentencing
[ 482 U.S. Page 426]
"scoresheet" would be prepared based on the defendant's "primary offense," defined as the crime "with the highest statutory degree" at the time of conviction. Fla. Rule Crim. Proc. 3.701(d) (1983). In scoring a defendant's guidelines sentence, points would be assigned based on the primary offense, additional offenses at the time of conviction, prior record, legal status at the time of the offense, and victim injury. The defendant's total point score then would be compared to a chart for that offense category, which provided a presumptive sentence for that composite score.
[17] The presumptive sentence range was "assumed to be appropriate for the composite score of the offender." Fla. Rule Crim. Proc. 3.701(d)(8) (1983). Within the recommended range, the sentencing judge had discretion to fix the sentence "without the requirement of a written explanation." Ibid. If the sentencing judge wished to depart from the guideline range, however, the judge had to give clear and convincing reasons in writing for doing so:
[18] "Departures from the presumptive sentence should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure. Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained." Fla. Rule Crim. Proc. 3.701(d)(11) (1983).
[19] The "clear and convincing" standard was construed as requiring reasons "of such weight as to produce in the mind of the judge a firm belief or conviction, without hesitancy, that departure is warranted." State v. Mischler, 488 So. 2d 523, 525 (Fla. 1986). Only those sentences that fall outside the guidelines' range are subject to appellate review. See Fla. Stat. § 921.001(5) (1983).
[20] Petitioner was convicted in August 1984 on counts of sexual battery with slight force, a second-degree felony, Fla.
[ 482 U.S. Page 427]
Stat. § 794.011(5) (Supp. 1984); burglary with an assault, a felony of the "first degree punishable by . . . life," Fla. Stat. § 810.02 (1983); and petit theft, a misdemeanor, Fla. Stat. § 812.014(2)(c) (1983). On April 25, 1984, when these offenses were committed, the sentencing guidelines adopted October 1, 1983, were still in effect. On May 8, 1984, however, the Supreme Court of Florida proposed several revisions to the sentencing guidelines. See Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 -- Sentencing Guidelines), 451 So. 2d 824 (1984). In June 1984 the Florida Legislature adopted the recommended changes, see 1984 Fla. Laws, ch. 84-328, and the legislation implementing the revised guidelines became effective July 1, 1984. When petitioner was sentenced on October 2, 1984, therefore, these revised sentencing guidelines were the guidelines then in effect.
[21] Only two changes made in the revised guidelines are relevant here. First, the guidelines changed the definition of "primary offense" from the offense with "the highest statutory degree," to the offense which results in "the most severe sentence range." See 451 So. 2d, at 824, n. This changed petitioner's primary offense from burglary with assault -- the offense with the higher statutory degree -- to sexual battery. Petitioner does not argue here that the new definition itself changed his presumptive sentence. See Tr. of Oral Arg. 6. As a result of the new definition, however, petitioner was affected by another change in the revised guidelines law: a 20% increase in the number of primary offense points assigned to sexual offenses. The Supreme Court of Florida, in its comments accompanying the revised guidelines, described the change: "The revision increases the primary offense points by 20% and will result in both increased rates and length of incarceration for sexual offenders." 451 So. 2d, at 824, n. As a result of the point increase, petitioner's total point score jumped to a presumptive sentence of 5 1/2 to 7 years. See App. 12.
[ 482 U.S. Page 428]
At petitioner's sentencing hearing on October 2, 1984, the State contended that the revised guidelines should apply in determining petitioner's sentence. Alternatively, the State argued that if the sentencing judge applied the earlier guidelines, he should depart from the guidelines' range and impose a 7-year sentence. Id., at 8-9. The sentencing judge, rejecting petitioner's ex post facto argument, ruled that the revised guidelines should apply. Concluding that he would "stay within the new guidelines," the judge imposed a 7-year term of imprisonment for the sexual assault count. Id., at 10. Petitioner received a concurrent 7-year sentence on the burglary count, and time served on the misdemeanor charge. Id., at 6, 11.
[22] On appeal, the Florida District Court of Appeal, relying on this Court's decision in Weaver v. Graham, 450 U.S. 24 (1981), vacated petitioner's sentence and remanded for resentencing in accordance with the sentencing guidelines in effect at the time the offense was committed. 468 So. 2d 1018 (1985). In remanding the case, the court noted that "the same sentence is possible if clear and convincing reasons for departure from the then applicable guidelines are stated in writing." Ibid.
[23] The Supreme Court of Florida reversed. 488 So. 2d 820 (1986). In a summary opinion, the court concluded that its decision in State v. Jackson, 478 So. 2d 1054 (1985), established that "the trial court may sentence a defendant pursuant to the guidelines in effect at the time of sentencing." 488 So. 2d, at 820. In Jackson, the Supreme Court of Florida had emphasized that "the presumptive sentence established by the guidelines does not change the statutory limits of the sentence imposed for a particular offense." 478 So. 2d, at 1056. On that basis, it had concluded that a modification in sentencing guidelines procedure was "merely a procedural change, not requiring the application of the ex post facto doctrine" under Dobbert v. Florida,432 U.S. 282 (1977). 478 So. 2d, at 1056.
[ 482 U.S. Page 429]
We granted certiorari, 479 U.S. 960 (1986), and now reverse.
[24] II
[25] Article I of the United States Constitution provides that neither Congress nor any State shall pass any "ex post facto Law." See Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. Our understanding of what is meant by ex post facto largely derives from the case of Calder v. Bull,3 Dall. 386 (1798), in which this Court first considered the scope of the ex post facto prohibition. In Calder, Justice Chase, noting that the expression " ex post facto " "had been in use long before the revolution," id., at 391, summarized his understanding of what fell "within the words and the intent of the prohibition":
[26] "1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender." Id., at 390 (emphasis omitted).Accord, Dobbert v. Florida, supra, at 292, quoting Beazell v. Ohio,269 U.S. 167, 169-170 (1925).