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IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR ORANGE COUNTY, FLORIDA
CRIMINAL JUSTICE DIVISION

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STATE OF FLORIDA,
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Plaintiff,
CASE NUMBER:

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48-2009-CF-17393-A-0

vs.

DIVISION NUMBER:

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TODD MICHAEL HANNIGAN,
VOLUME I of I

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Defendant./
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SENTENCING

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BEFORE

ORIGINAL

THE HONORABLE TIM SHEA

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In the Orange County Courthouse
Courtroom 6A
=' "ii r ··
Orlando, Florida 32801
?i';~
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August 1 7, 2 010
Jean Dexter, RPR, CRR

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A P P E A R A N C E S:
- .J

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JESSICA TRAVIS
Ass istant State Attorney
415 North Orange Avenue
Orl ando, Florida 32801
On behalf of the Sta t e
ROBERT POWER
Assistant Public
43 5 North Orange
Orlando, Florida
On behalf of the

De fender
Avenue
32801
De fendant

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I N D E X

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SENTENCING

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CERTIF I CATE OF REPORTER

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THE COURT:

we ar e here o n whi c h case ?

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MR. POWER:

To d d Ha nn i g an .

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sente nc i ng toda y, Judge .

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v erdi c t of guilty .

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THE COURT:

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MS. TRAVIS:

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THE COURT:

Thi s i s s et f o r

The re was a trial a n d a

Where is Ms. Travis?
Right here, You r Honor .
Where i s Mr. Hann igan ?

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THE DEFENDANT:

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THE COURT:

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Mr. Hanni g an , raise y our right hand, please.

(Ind i cat ing) .

Good morn ing, Mr. Hannigan.

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TODD MICHAEL HANNIGAN

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the defendant, was duly sworn.

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THE COURT:

Okay.

It' s my unde rs t a nding yo u'r e

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going to be a r guing for a downward depa rtu r e; i s that

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right ?

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P R 0 C E E D I N G S

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MR. POWER:

I 'm go ing t o be a rgui ng i n i t iall y to
If the Cou rt fi n ds

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g i ve you t h e a u t hor ity to do s o .

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there is no such a u thor ity or my argument is n o t

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convincing , there ' s no reason to go into mitigati on .

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THE COURT:

Okay.

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MR. POWER:

So first thing i s to - -

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THE COURT :

Go a h ead .

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MR. POWER:

The crux here is wh ethe r

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th i s Court ha s

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authority to downward depart or exercise any type of

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discretion when it comes to a minimum-mandatory

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sentence.

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Well, the Court does have the author ity

to downward depart if the defendant is sentenced under

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an alternative sentencing scheme, but that's not t he

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case in this case.

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MR. POWER:

No youthful --

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THE COURT:

Hang on.

We have a court reporter.

No

youthful offender.

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MR. POWER:

No/ sir .

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THE COURT:

No other alternative sentencing scheme.

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MR. POWER:

There is no substantial assistance.

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THE COURT:

No substantial assistance.

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MR. POWER:

The prosecutor has not exercised a ny

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discretion to come off the minimum manda tory .

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question is whether or not, given those parameters, t his

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Court can downward depart and nonetheless entertain such

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argument.

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THE COURT:

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The scheme is under 893.135.

Firs t th ing's first/ under 893 .1 35(3 )(c)

Now,

the

excuse

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me - - it s a ys, any pers on who knowingly sells/

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p urchases, manufactures/ delive rs, or brings into t his

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sta te o r who is knowingly in actual or construct ive

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po ss ession - -

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THE COURT:

Slow down.

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morphine~

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it's hydrocodone

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derivative,

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incl ud ing heroin,

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further and further.

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or more,

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testimony was 22 g r a ms -- 14 grams or more, but l es s

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than 28 grams,

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opium, oxyco done, hydrocodone -- in this case
hydromorphone,

or any salt,

isomer, or salt of an isomer thereof,
as d e scribed there in.

in this case -- in the jury trial,

the

such person shall be sentenced to a

mandatory-minimum term of imp r isonment o f 15 years.
As· an aside,

this is the onl y statutory scheme that

goes from three to 15 years.

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from three to seven to 15.

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onl y one that handles it differently.

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And it goes

And then it says , i f it's 14 grams

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-- of four-grams or more of any

MR. POWER:

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All of the other ones go
For some reason,

{c ) is the

would call to the Court's attention to

subsection --

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THE COURT:

The key word there being shall.

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MR. POWER:

Shall.

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THE COURT:

Right.

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MR. POWER:

Right.

The re i s, however, furth er

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language in the st at u t e under ( 3) where the Court i s

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admon ished that n o twithstanding t he provisions of

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Subsecti on 948, which is your probationary statute , with

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r e sp ec t

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section , ad judica t ion of guilt or imposition of sentenc e

to any p e r son who is foun d to have violat ed t h e

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shall not be suspended, deferred or withheld, nor shall

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any person be eligible for parole pr ior to serving the

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mandatory-minimum term of imprisonment prescribed by

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this section.

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the statutory scheme has now been modified.

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Additionally,

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restrict a judge' s ability to do any thing in thi s case.

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But in as much they decided to become specific, what

there are more parameters now that

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they have not said is you cannot downward depart or

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e nt e rtain litigation.

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Let's say they can't defer, can't suspend and can't

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withhold, we're n ot seeking any of those.

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seeking to suspe nd or def e r s e ntence or withhold

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adjudication of guilt, we're asking you to entertai n

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mitigation ln a case whose facts,

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diff e r e nt.

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What I'm suggesting to t h i s Court is, based on (c},

We're not

as you know, are very

I have some ca se law I would like to cite to t he
I have already provided thi s case law to

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Court .

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Ms . Travi s.

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indicating tha t a cou r t c annot e xerc ise its discret i on;

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howeve r,

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entrapment d e f e nse is no t brought up and the other

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o ne -- th ese cases are Kelley v ers us Stat e , f o und a t 821

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So.2d 1 2 55.

Both of these cases are initially

they' re distinguishable on the facts.

It

One

is a 2002 deci s ion out of the Fourth

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a 15-year minimum mandatory, that without the

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prosecutor's waiver, she had no discretion to go below

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the statutory manda ted sentence minimum of 15 years for

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trafficking in an amount gr e a te r t han 400 grams as

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charged.

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Court.

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That's on page 2.

It's highlighted for the

More importantly, under o n e, the hold ing of the
Court, we agree with the trial court, t h at the 15-year

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minimum sentence was mandatory unless t h e prosecut or

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recommended otherwise.

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Kelley in that in this case t h e Court was trying to

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determine whether o r n ot this particular person was

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eligible for this because of police mis conduct.

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have a variable here of police misconduct which may

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have , had it been properly argued , tha t i s the

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e ntrapment defens e, may have l ed to a different res ult.

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the judge explained at sentenci ng on

DCA.

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In this case,

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I wo u ld distinguish this c ase o f

And I have to cite this case law .

So we

It's against me,

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but the short ans wer is , according to t his court, t hat

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t h e sent e ncing statutes in Florida do not permit the

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judge to avo id th e minimum - ma n datory prov isi ons fo r the

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reasons sugge st e d, which was this business o f

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entrapmen t.

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I have a n obligation t o cite t h at case.
it' s distinguishable.

As you know,

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I think

the f ac t s h e re was a

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person trying to commit suicide with Vicodin pills he

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had stolen from his mother, and he was found in a park

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drinking beer and

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guess valor, to complete the job when police rolled up

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on him.

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beverage in a state park.

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progressed to an arrest based on pills that were found

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within his vicinity.

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these pills, getting up,

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He was arrested for possession of alcoholic
And then from there it

So my first argument to this Court is because the

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statutory scheme does not specifically tell you as it

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does in (c), that you cannot suspend , defer, withho ld.

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It does not specifically tell you that you cannot

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mitigate or find mitigation.

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exercise its discretion where the statute has not

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limited you, that is, to do a downward departure and

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entertain mitigation.

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poppin~

I'm asking this Court to

The other argument I would make is more familiar

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with the Court.

The 15-year minimum-mandatory sentence

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in this case is just a violation of the Eighth

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Amendme nt.

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in simpl e possession without p e ddling.

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talks abo ut the distinction between peddling and just an

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addict or possessor.

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is oppressive a nd cruel a nd unusual, and,

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should not be impo sed.

It is cruel and unusual for a pe rson who is
The Hill case

As such, I would say the 15 years
therefo r e,

And we should go and entertain

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mitigation or otherwise go by the scoresheet.

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I would entertain questions that you have, Judge ,

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but,

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you are not specifically deprived of y our ability, and

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the other one is the Eighth Amendment is cruel or

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unusual.

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mandatory day for day,

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possessing witho ut the cash value or any kind of

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monetary peddling .

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those are my two arguments.

One,

t h at

It's just too onerous, 15-year minimum

MS. TRAVIS:

for a person who is simply

Your Honor, the defendant was tried

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and a j ury found t he defendant guilty of t ra fficking in

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14 grams or more of hydrocodone.

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statute, the wording of the statute is that the judge

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shall sen tence t h e d e fendant to 15 years a nd the mi n imum

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mandatory.

Based upon the

Based upon t h e cas es that the d e fe nse cited , Hill

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in essence,

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versus Stat e , which came out of the Second District

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Court of Appeals i n 1993, Kelley versus S tate, which

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came out of the Fourth District Court of Appea ls in

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2 00 2 .

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ess entially the same thing of Mond versus State whic h

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c ame out Second Distric t Co ur t Of App ea ls i n 1993.

And, Your Honor,

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THE COURT:

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MS. TRAVIS:

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THE COURT:

I

have another one which s ta tes

Do yo u have a c i tation o n that?
627 So . 2d 577 .
Th a nk you.

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defendant either pled no contest to the charge or was

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found guilty by a trial of the charges, and all three of

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the courts stated that the court has no discretion and

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must sentence the defendant to the mandatory minimum.

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In this case , Your Honor, that would be 15 years.
State requests that you sentence the defendant to that.
My last argument, Judge, would be t he

MR. POWER:

following:
Hang on one second.

THE COURT:

Is that it,

Ms. Travis?
MS. TRAVIS:

That's all.

Only that the Court does

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not have any dis cre tion to waive the minimum mandatory,

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and that there c an be no mitigat ion e vidence to be

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presented in order to allow the Court to mitigate from

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that mandatory minimum.

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THE COURT:

Or that presentation of such evidence

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be useless in light of the restraints placed by the

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legis lature.

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Your Honor, in all three cases, the

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MS. TRAVIS:

MR. POWER:

Th e last t hing · r wou l d do is an analogy

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between federal l a w and state l a w.

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two matters in which a mandatory-minimum s e ntence can be

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a v oi d e d, or three matt ers, are a sentence scheme unde r

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t h e youthf ul offe n der statute, t h e prosecutor t h rough a

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n egot i ated plea b argain or through subs tantial
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Under state law , the

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assistance.

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federal law, which is called the escape clause.

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to allow people who generally fall between the cracks

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cannot give substantial assistance because, although

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they're int e rtwined in the trafficking scheme,

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don't have enough knowledge or it's repetitive, and,

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therefore,

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federal statut e , you are given what is ca lled an escape

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clause.

they

This is what I'm trying to see if this Court

will entertain.

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the way the facts fall.

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This is

if you qualify under the five criteria of the

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THE COURT:

There be an escape clause because of

Well, I understand the argument you are

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making in the federal arena.

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frayed robe , I make less money than a federal judge,

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number one.

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appointment.

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As you can tell from my

Number two, I don't have a lifetime
There are differences.

In addition, whil e there are some marching orders I

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must take from the United States Supreme Court, clearly

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we all must take from the United States Supreme Court,

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we're talking about the Florida Legislature here.

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There is a fourth category under the

Now, Mr. Hannigan , I will t e ll you t hat, based on

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the facts that have emerged in your case , that I do

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believe that this is an inappropriate sentence for you .

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I really b e li e ve that.

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on my ability to stray from the statutory framewor k for

But there are restrai n ts p l ace d

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sentencing.

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think Mr. Power has done a good job arguing.

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that there does seem to be a l eap of logic here in the

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sentencing scheme.

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certain amount of drugs,

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engaged in trafficking and there should be a harsher

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sentence rather than taking into account the kinds of

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fact s and circumstances surrounding Mr. Hannigan 's case .

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Mr. Hannigan , if there should be some change in the

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legislative framework that would result in early release

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from sentence, n o one would be mor e than happy than I.

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I

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is an inappropriate sentencing under these

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circumstances.

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wisdom, decided t o transfer a significant amount, which

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wa s once judicial discretion,

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of this state .

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There's nothing I

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Unfortunately,

this is one of them.

think

When you say if you process a
t hat,

therefore, you are

want you to understand tha t .

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Because I

The legislatu re has,

do think this

i n its infinite

to the prosecutorial arm

There ' s nothing

I

can do about that.

can do about that at all.

understand the argument you'r e making , Mr. Power,

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but it seems t o me the arguments concerning the

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stat ut ory fr a mework are better made to t h e legislatur e

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than to this Court because under this set of

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circumstances,

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a n administe ri al f unction .

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autopil o t.

t h is Court does nothing more than perform
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sign t h e p a pe rs .

I'm on

So I would suggest you take it up with the

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legislature.

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I know that you have made your record, and th i s is

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something you may want to take up on appeal.

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encourage you to do so.

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facts and circumstances , the Court has n o alternative ,

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Mr. Hannigan, but to move forward and sentence you under

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the minimum-mandatory sentence.

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intends to d o .

Nonetheless, under this set of

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in a moment.

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he's free t o go at this time .

That's what the Court

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just wanted t o let the d o ctor know t hat

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MR. POWER:

Thank you, Doctor.

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THE COURT:

It doesn't make sense f o r me to take

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t e stimony from a docto r since there rea l ly isn't any

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room to maneuver, so to speak.

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coming thi s mo rning, Doctor.
Oka y.

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Thank you very much for

Mr. Hannigan, as I

indi c ated, unfortuna tely,

must move forward with this sentence .

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State, do y o u have a sco re s heet t h ere ?

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MS. TRAVIS:

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wo u ld

I'm going to move forward to impose that senten ce

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Your Ho nor,

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beli e v e I gav e you a

scoreshee t.
have a sc o resheet.

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THE COURT:

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MR. POWER:

My scoresheet re a ds 8 2 .05 months.

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gon e ov e r t h a t wit h my c l i en t .
MS. TRAVIS:

If I can r e mind the Court --

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I 've

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indicated that - Seventeen and a half.

MS. TRAVIS:

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MR. POWER:

Seventeen and a half years.

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THE COURT:

Seventeen and a hal f y ears.

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I'm go ing

to do -- I have n o t yet sentenced him yet, correct?
MS. TRAVIS:

No, you did sentence him , however , you

set aside that sentencing to the next day .
What I'm going to do , I'm going to

THE COURT:

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impose the 15-year minimum-mandatory sentence on

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Mr. Hannigan.

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years, but it will be a 15-year minimum mandatory served

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day for day .

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I had indi cated at fir st 1 7 and a h a l f

In a dd ition, you're required to pay $668 in felony
court costs.

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Was the subs t a nce tested?

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MS. TRAVIS:

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THE COURT:

Yes, Your Ho nor.
So that's a n other $100 FDLE drug

Thos e cost s and fees are due and payable now.

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cha r g e .

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If the y are not paid by the t ime you are r e l eased from

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incarcerat ion,

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collections court to work out a payment pl an with them.

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There was a 17 -- I had

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Hang on.

THE COURT:

I ' ll give you 6 0 days t o report t o

I n addition,

the jury found y o u guilty o n both

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c harg es , so t he Co ur t ' s go ing t o ad j ud i c at e y ou gu il t y

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on b o th charges.
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Your Honor, there is also the cost of

investigation of $58.20 that you ordered previously.
THE COURT:

Fifty-eight dollars and 20 cents.

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That's payable to the Orlando Police Department.

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will be added to your costs and fees, Mr. Hannigan.

That

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Okay.

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MS. TRAVIS:

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THE COURT:

Anything else from you, Mr. Power?

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MR. POWER:

No, Your Honor.

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THE COURT:

Okay.

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THE CLERK:

Count 2 is a misdemeanor.

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THE COURT:

Count 2 is a misdemeanor.

Anything else, Ms. Travis?
No.

Court's

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going to sentence Mr. Hannigan to 261 days in the Orange

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County Jail with c redit for 261 days time served.

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Mr. Hannigan, did you want to say something, sir?

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THE DEFENDANT:

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THE COURT:

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asked you that,

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Yes .

You know,
sir.

THE DEFENDANT:

I apologize,

I should have

Go ahead.
You know,

I agree with you that

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it's unfair punishment for the crime in this case.

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I wa n ted was some treatme nt, some help, and I don't fe e l

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this is going to help me at all.

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MS. TRAVIS:

THE COURT:

All

Bas ed on th e facts and circumstances

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pr e sent e d to thi s Cour t during tr i al , I ag ree t h a t some

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help would be app r opriate; and as indicated, no o n e
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would be happier than I if the laws change giving us

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discretion.

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in this case.

Unfortunately,

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THE DEFENDANT:

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THE COURT:

If

Sure.

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tha t' s not the circumstances

can , can I file for an appeal?

Mr. Power is go ing to present me

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with an affidavit of insol vency for purposes of appeal

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and I'm going to sign that for you today.

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THE DEFENDANT:

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THE COURT:

Okay.

Okay.

Thank you.

Mr. Power is goi n g to be right

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over with the paperwork.

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fingerprinting, Oscar, i s fine, but let Mr. Hannigan

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sign that before you take him downstairs.

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Whatever you want to do with

(The proceed i ngs concluded.)

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C E R T I

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F

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C A T E

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STATE OF FLORIDA:

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COUNTY OF ORANGE:

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I, Jean Dexter, CRR, RPR, Official Court

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Reporter of the Ninth Judicial Circuit of Fl o rida,

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do hereby c e rtify , pursuant to F lorida Rul e s o f Judi c ial

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Administration 2. 535 (h ) (3 l, that I was authorized to a n d did

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report in stenographic shorthand t he foregoing proceedings ,

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and that ther e after my ste n o graphic s h o rthand n o tes

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were transcribed to typewritten form by the p rocess

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o f c ompute r -aided transc ription, and that the

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foreg o ing pages contain a tru e and corr e c t

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transcripti o n of my sho rthand notes taken the r ein.

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WITNESS my hand t his

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2 010,

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Sta te o f Fl o rida.

d a y of

in the City o f Orlando, County of Orange,

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Je

CRR , RPR

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