Articles Posted in Florida Sentencing

Thumbnail image for IMG_0205.JPGAs you know, judges have an obligation to hand down “just” sentences. This is not an easy task, because our elected officials have meddled in the sentencing process, and created laws that are simply too harsh for the crime committed. When judges are confronted with a potential sentencing injustice, they have an escape valve known as a downward departure. In essence, if a defense attorney can convince the judge that certain mitigating circumstances are present, a trial judge may “downward depart” from the sentencing guidelines (so, if the legislature says the defendant must serve 10 years prison, the judge may ‘downward depart’ to give something lower, like 5 years prison, for reasons discussed below).

Sex offenses are the unofficial targets of ridiculous sentencing guidelines. For those of you who pay too much in taxes (all of you who actually pay taxes?), rest assured that sex offenses are that giant sucking sound Ross Perot thought he heard coming out of Mexico. But hey, why pay teachers the money they deserve when we can, instead, spend another $43,285/year housing a guy in prison for looking child porn? The sentence for possessing several hundred child pornographic images will exceed the minimum mandatory sentence given to a child molester, a rapist, and even some murderers (for more info, see my article found here).

How can we possibly stop the insanity? Judges look to the downward departure rules to help impose more reasonable sentences. To understand the kind of battles that ensue on the rare occasion that a judge departs on a sex case, let’s take a look at the downward departure found in State v. Davis, 141 So. 1230 (1st DCA 2014). Here’s what happened. Davis responded to an adults only dating website, specifically, to a 32 year old’s ad claiming that she and her “little sister” were in town, looking to have fun tonight. Naturally, the ad makes no mention as to how old the 32 year old’s sister really is, so Mr. Davis answers the ad. And, you know the rest of the story, but I’ll say it anyway. The 32 year old was actually a detective of unknown age (though, I presume of legal age, it’s hard to make detective by age 16). And, the promised ménage a trois (all the French I know, plus a few lines out of “Lady Marmalade”) is only twisted into something criminal once the detective has Davis hooked.
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flag tattered.jpgHow long had human beings been ruled by Kings, Queens, Pharaohs, and the like? Then along comes the first big experiment in governance–we Americans decided to rule ourselves. Now, for this experiment to work, the powers that corrupt must be separated, so as to provide a check on each other’s behavior. And this, my friends, is straight out of your fourth grade government textbook, the one with the big flag on the front.

The judicial branch has long held the awesome responsibility of sentencing citizens when they break the law. Judges are in the best position to understand all the facts and circumstances surrounding an offense, so they can best decide the consequences. Unfortunately, the legislative branch decided that judges are not doing a good enough job at sentencing, so our elected officials created “minimum mandatory sentences”. If a person is found guilty of committing such an offense, the judge has no sentencing discretion–the judge must impose the minimum mandatory sentence. For example, if you are caught with enough weed, you would be “trafficking in cannabis”, and sentenced to a 3 year minimum mandatory prison sentence. The judge would have no option to go lower than three years prison.

But wait, there’s more. The Florida legislature has set forth some conditions under which, if all the planets align, a citizen may petition the judge for a lower sentence than the minimum mandatory. We call this a “downward departure” sentence, and the rules governing a downward departure can be found in Florida Statute 921.0026. This statute lists over 10 circumstances under which a judge may depart, such as (1) pursuant to a plea bargain, (2) defendant requires specialized treatment for a mental disorder, (3) the victim provoked the incident, (4) the defendant was too young at the time to appreciate the consequences of the offense, or (5) the defendant played a minor role in the offense.
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Christ the King.jpg I’ve been in front of many many judges over my 21+ years practicing criminal defense. Their job is simple–to referee the game. Nobody comes to the game to see the referee, but how these judges call the game may influence the outcome. As the old saying goes, a good lawyer knows the law, and a great lawyer knows the judge. That’s true, but knowing a judge’s religious beliefs will not necessarily provide you with any more knowledge as to how harsh, or lenient, that judge may be. That fact is probably a sad commentary on how our beliefs affect our decisions at work. As a Christian, I wouldn’t make a very good judge, because Christianity requires a bit a mercy and love. Mercy, essentially, suspends justice. But as a judge, your job is to dispense justice, not mercy. It is disappointing for me to see judges that call themselves Christians hand down completely unmerciful decisions. We’re going to take a look at just such a decision today.

Recently, an appeals court overturned a rape sentencing due to judicial comments regarding religion. Obviously, religion has no place in the courtroom, but as a defense attorney, a tad bit of mercy every now and then is much appreciated. And, to no surprise to some of you, but much of the judicial mercy I’ve seen comes from judges that are not particularly religious. To make matters worse, the harsh sentences often come from so-called religious judges. Again, hypocrisy can be frustrating, but certainly not surprising. Today, let’s examine the role religion is permitted to play in the sentencing of Florida’s defendants. The case is Torres v. State, 124 So. 3d 439 (Fla. 1st DCA 2013).
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handshake.jpgIts never easy for a defendant to stand before a judge for sentencing. In over 20 years of defending criminal cases, I’ve seen my fair share of judges decide at the last minute to reject a plea agreement. In some cases, its a blessing. A few years ago, I worked out a good deal for a client charged with sale and delivery of cocaine. The Orange County judge rejected the plea deal, we went to trial, and got a not guilty. Unfortunately, not every rejected plea winds up better off in the long run. Most end up in a worse position. But, is it fair that a defendant could end up with a worse sentence due to a plea agreement breach on the part of the State? This is America, right? Let’s take a peek at recent case involving a plea agreement gone wrong, and what can be done about it.

Joshua O’Berry decided it would be in his best interest to enter a plea to a charge of burglary of a dwelling with an assault or battery therein. This charge sounds a lot like a home invasion, doesn’t it? Well, burglary of a dwelling with a battery therein is punishable by life in prison. Ouch. O’Berry decided to not risk a jury trial, so he entered a no contest plea “to the bench” with the state agreeing to recommend 40 years in prison. As you might expect due to the fact that I’m writing about this, the plea didn’t go as planned. First, during entry of the plea, the State decided to recommend a life sentence rather than the 40 years they agreed to recommend. Second, the judge sentenced O’Berry to 50 years prison.

O’Berry was not permitted to withdraw his plea so he appealed, and we’re now here to discuss what happened on appeal, in O’Berry v. State, 114 So. 3d 1110 (Fla. 2d DCA 2013). First, a dangerously short (at the risk of being inaccurate) breakdown of the actual plea and sentencing:

O’Berry’s Attorney: “It’s going to be an open plea to the Court. The State indicated that they would be recommending 40 year in prison but there is no cap and the Defense . . . can argue for . . . a lawful sentence.”

Prosecutor: “Well, Your Honor, our original offer on this case was life. I discussed it with [defense counsel] for a plea offer at one point and we came down to 40 years for a negotiated plea. However, that never panned out. So we’re here in front of you on a sentencing hearing with no cap. The first charge . . . is a burglary with a battery. That’s a first degree felony punishable by life. So the State is asking for the maximum in this case, Your Honor.” Id.

O’Berry’s Attorney: “. . . that’s not part of the plea agreement.”

Prosecutor: “We came down to a negotiated plea for 40 years. That wasn’t accepted.”

Later, the judge, again, asked for a prosecutor recommendation:

Prosecutor: “Well, we did propose I guess a recommended offer of 40 years.”

The judge then sentenced O’Berry to 50 years in prison.
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starfish.jpgFor many years, I owned a commercial recording facility. After recording and mastering a zillion albums, I learned that one of the toughest parts of this artistic process is convincing the artist that their recording had “too much” of something in it. Dr. Dre used to say that he would spend countless hours agonizing over what to take out of a song–not what to add. Do I take out that hi hat? Take out that bass line? Take out that extra layer of vocals? Take out the last verse? To succeed, Dr. Dre understood that he needed to fight the human urge which tells us more is better.

When it comes to the art of managing human beings, sometimes less is more. Dr. Dre’s approach to his art is much needed in political science. BTW, the label political “science” bothers me–there’s nothing scientific about it, it seems more like an art.

I’ll be the first to tell you we have too many crimes on the books (a shocking revelation from a criminal defense attorney, right?) Our legislative bodies in Washington and Tallahassee have become much like that co-worker who has mastered the art of busy work–not accomplishing anything, not adding any value to the organization, yet still maintaining an appearance of working hard. If our government really wants to do some hard work, try eliminating some laws. Try lowering the penalties for failing to register as a sex offender, possessing of child pornography, or trafficking in oxycodone. Try reducing the prison sentences of those who are no harm to society. Try getting rid of government entities that are inefficient. That’s hard work, and it’s not getting done. It’s far easier to simply get together, vote to spend more money than last year, then go home. That’s easy.

Can you tell me why a drug addict caught with 10 oxycodone pills faces mandatory prison time as a drug trafficker, yet a person who is convicted of beating his wife for a second time (battery with a prior battery conviction is a felony) faces no mandatory prison time? I’m not a fan of mandatory time, period, but why are drug addicts punished more harshly than violent offenders? Mandatory minimum prison sentences place the sentencing decision in the hands of the legislaturerather than with the judge, where it should be. Floridians need to take a closer look at the ridiculous sentences handed out to citizens who possess child porn, and reduce these sentences. And while they’re at it, mandatory prison time for having a drug problem needs to be fixed as well. It would be far cheaper to treat citizens for their drug addiction, rather than sending them to an expensive prison system–only to be released with the same problems they went into prison with.
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earth_black_edition.jpgWe all presume that the title of “judge” requires the exercise of some judgment. But when you consider the fact that our legislature requires judges to impose minimum mandatory sentences–on everything ranging from misdemeanor DUI, misdemeanor domestic violence battery, all the way up to trafficking cases–there’s often time little room for a judge to maneuver in one of the most important decisions a judge can make. Sentencing.

We taxpayers pay good money to our judges so that they can sort out real life human dramas. For example, what can a judge do with a defendant that (1) has a mental problem that requires special treatment, yet (2) the legislature’s score sheet “requires” that the judge impose a minimum mandatory prison sentence? The good news is that there is a tiny loophole in the sentencing law found in subsection 921.0026(2)(d). This subsection permits the judge to go below a mandatory sentence if the defendant requires specialized treatment for a mental disorder. Sounds easy, right? Not. In reality, this subsection is rarely used, because the burden is on the defendant to show that the needed treatment is not available at the Department of Corrections. Even though the subsection does not spell out such a requirement, our courts have interpreted the statute as requiring that “the defendant must also establish…that the Department of Corrections cannot provide the required ‘specialized treatment’.” Yikes. How do you prove this negative?

There is light at the end of this tunnel. The light comes from the case of State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012). Harry Chubbuck violated his probation (vop) by testing positive for cocaine, and the state requested that the court impose a minimum sentence of 37.65 months in prison. You heard me. 37+ months for testing positive for cocaine on a VOP. Harry’s criminal defense attorney argued that the court should give him only the 97 or 98 days time already served in jail, because Harry is very sick.
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prison cell2.jpg“Answered prayers cause more tears than those that go unanswered” Saint Teresa of Avila
Have you seen the new Chevy ads? Buy a Chevy, and if you don’t “love it”, you can return the car within 60 days. Some defendants here in Orlando assume that our court system has that same high level of customer service. But as you know–it doesn’t. So, when a plea is entered, there’s rarely an opportunity to go back and withdraw the plea just because the negotiated plea is not what was expected. You’d be surprised how many folks enter a plea involving prison time–only to then spend much of their prison time researching ways to undo the agreed upon plea. So, let’s say you’re one of the lucky prisoners who actually convinces a judge to undo an agreed upon prison sentence–now what?

This has actually happened in the recent case of Ciambrone v. State, Case No. 2D11-5349 (Fla. 2nd DCA August 3, 2012). Mrs. Ciambrone negotiated a plea deal on her child abuse case which resulted in death (felony murder, punishable by life, technically). The plea deal saved Mrs. Ciambrone from a life time in prison, as she received a 55 year sentence instead. Because this case dates back to 1993, and with gain time, she had a really good shot at getting out of prison later in life (young gal at the time). Later down the road, Mrs. Ciambrone requested that she be allowed to withdraw her plea because her attorney gave her bad advice regarding gain time rules. The Second District Court of Appeals granted her motion to withdraw the plea in 2006. What this means is, she is now back to square one, ready to actually have a jury trial if she likes.
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points.jpgHere in Orlando, our judges are well trained. Our judges are well educated. And, for the most part, they do a good job of playing referee in the fights between we criminal defense attorneys versus state attorneys. Our judges are also in a unique position to listen to mitigating factors which should weigh into any sentencing decision.

Here’s the bad news. Our judges don’t always get to determine a sentence, because our legislature has stepped in with various minimum mandatory sentence structures, and mandatory prison sentences based upon scoresheet points (leave it to a bunch of elected legislative officials to assume they know better than the boots on the ground). Basically, in Florida a defendant will be sent to prison if his total sentence points are greater than 44. The point structure is a simple computation that assesses points for the offense (possession of cocaine, for example, carries 16 points), and points for prior offenses (a prior possession of cocaine adds another 1.6 points, a prior grand theft only adds 0.8 points, etc.). Sometimes, the current and prior points may total more than 44 points, and if that’s the case–you’re scoring mandatory prison.

So, does every defendant who scores above 44 points go to prison? No. There are many reasons why a court can issue a “downward departure”, and give the accused a non-prison sentence. Usually, this downward departure is pursuant to a plea agreement between the state and defense. Today, we’re going to discuss an option available to drug users who are scoring mandatory prison, but have no agreement with the prosecutor for a non-prison sentence. It’s Florida Statute 948.20. Here it is in pertinent part:
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court hallway.jpgThe criminal justice system here in Orlando, and throughout Florida, runs on a well established balance of power between the prosecutors, the judge, and the criminal defense attorney. The actions of these players are controlled by the rules laid out in Florida’s Constitution, and the United States Constitution.

But this balance of power can be swayed by the behavior of the judge. For example, if a judge gets too involved in plea negotiations (like telling a defendant “you should take this plea offer”, or “this is the best offer you’re ever going to get on this case”, etc), such bench commentary may only serve to intimidate a citizen into taking a plea for something they didn’t do.

On the other side of this coin, many Florida jurisdictions have judges whose courtrooms and dockets are out of control because the judge refuses to reign in their overzealous prosecutors For example, if a judge refuses to participate in plea negotiations, their dockets may be manipulated by prosecutors who make unreasonable plea offers–knowing that their unreasonableness will not be checked by the judge.

Citizen’s accused of a crime should not be forced into a jury trial merely because the judge refuses to participate in a legitimate judicial function–sentencing. Judges may sentence on a plea, or they may sentence after a guilty verdict, but citizens who wish to enter a plea like to know what they’re getting before doing so, and some judges simply refuse to say. When a citizen’s entire future is left up to a stranger in a black robe, they have every right to question why this paid public servant refuses to participate in the process.
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prison walls.jpgIf I had a nickel for every time I was asked “how much gain time am I getting”, I could buy a park-hopper pass to Disney. Sure, we try to keep our Orlando clients out of prison, but every now and then, the worst case prison scenario creeps up. For those of you not up on your criminal defense lingo, “gain time” is a reference to the discount an inmate receives off a sentence for good behavior, program participation, or any other reason the Department of Corrections can come up.

For example, under Florida law, if a judge sentences a defendant to 10 years prison–that prisoner may be released after serving only 8 ½ years, because Florida’s Department of Corrections (and Florida Statutes, really) allow a maximum “gain time” of 1 ½ years on a ten year sentence. Basically, Florida prisons are legally permitted to discount a sentence 15 percent under most circumstances, and thus all prisoners must serve at least 85 percent of their sentence (See Florida Statute 944.275 for more details). County jails may give more gain time, and that’s a story for another day. Today, our focus is prison sentences, more specifically minimum mandatory sentences, and how that affects gain time.

Yes, it’s true. The Florida legislature is “mandatory-minimum-prison-sentence-happy”. The Orwellian double-speak translation of a minimum mandatory google translates to “the legislature does not trust our wise elected judges to give a fair sentence, so the legislatures have imposed their own predetermined minimum amount of prison time”. But, on a minimum mandatory case, would the prisoner be entitled to gain time? It depends.
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