Recently in Florida Sentencing Category

Religion and Judges

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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Defendant May Be Punished for State's Breach of Plea Agreement

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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Florida's Prison Rate is 7th Highest in U.S., Beating Out Most of Planet Earth

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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Good Judges Make the World a Better Place

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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Be Careful What You Wish For!

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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How Do You Get Probation When Scoring Prison?

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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Judges Should Be Involved In Plea Negotiations

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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Gain Time on a Minimum Mandatory Sentence?

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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Judge's Sentencing "Policy" Can Violate The Law

tents.jpgBelieve it or not, judge's pre-judge their cases. No, I'm not talking about actual guilt or innocence, but rather sentencing options. After 18+ years of defending criminal cases in Orlando, it's common to hear "well, we don't do PTI here", or "we don't do youthful offender here", etc etc. Is that right? Can a judge just decide that a legislative sentencing option will NEVER be imposed in his/her courtroom?

First of all, good luck getting a judge to say that on the record! I will say that Judge Richard Conrad (may he rest in peace) was a great judge. He made me a better defense lawyer and a better human being. And he said on the record, about a thousand times--"I will never go to trial on a felony driving while license suspended case". He stuck to that promise over the course of his 30+ years on the bench. Judge Conrad was never appealed on his position (to my knowledge). But, not all judges with such "policies" are that lucky.

In the case of Pressley v. State, 73 So.3d 834 (Fla. 1st DCA 2011), Pressley was convicted of carrying a concealed firearm without a license and resisting an officer without violence. At sentencing, the judge imposed four years prison, to which Pressley responded "There's no boot camp?". The trial court replied, "Sir, I don't do boot camp." Oops. We've all had moments like this, be honest.... (it's just that most of a judge's moments are on the record). Kind of funny though, that the defendant's outburst in this case prompted an appealable issue!

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When A Plea Gets You Deported, Can You Undo it?

passport.jpgOrlando attorneys and defendants need to be aware of the immigration consequences of their pleas. Often times, it doesn't seem like a big deal, because the actual sentences may not amount to much. But, INS is always lurking, so inform your clients accordingly.

This problem comes up once a citizen realizes, at some later date, that INS wants to deport him as a result of a plea. For example, let's say "Joe" enters a plea to Possession of Cocaine. Later, deportation proceedings are started against him as a result of this old cocaine conviction. Of course, he hires a criminal defense attorney to "undo" the plea on the possession of cocaine that caused the deportation to begin with, and if the withdrawal is granted--no more deportation!

The most common reason for requesting a withdrawal of the plea is due to an attorney or judge's failure to adequately advise a defendant of the immigration consequences of said plea. Unfortunately, this argument doesn't work in central Florida as well as it used to, as our standard judge's warning that 'you may be deported if you are not a United State's citizen' has been held sufficient. (see Santiago v. State, 65 So.3d 575, Fla. 5th DCA 2011).

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Some Jurisdictions Have Banned Plea Bargains

courtroom.jpg"What can you get me on this case?" That's a pretty common question asked of criminal defense attorneys here in Orange County (and most other places, as well), but believe it or not--it's not always legal to obtain a plea bargain. Sure, some judges ban plea deals after a case has gone past a certain point, noting that "there will be no plea agreements after docket sounding, all pleas at that point are blind to the bench"--meaning, essentially, that the judge wants a defendant to plea within a certain time frame, or all bets are off.

Other jurisdictions have taken plea bargain bans a step further. In parts of Alaska, New Orleans, California (Ventura County) and Michigan (Oakland County), plea bargaining has been terminated. Gone. Illegal. So, what is the result? In "Subverting Justice", writer Robert Bidinotto argues that "ending plea bargaining [puts the] responsibility back into every level of our system: police [do] better investigating; prosecutors and lawyers began preparing their cases better; lazy judges were compelled to spend more time in court and control their calendars more efficiently. Most importantly, justice was served--and criminals began to realize that they could not continue their arrogant manipulation of a paper-tiger court system." [Id at page 76]. I don't agree with this position on almost every level, but you know what they say about opinions. That being said, many countries have outlawed plea bargains.

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Just Because a Judge Says So....doesn't make it so

kid pose.jpgThere was a show "Kids Say the Craziest Things", but there could also be one for judges (and attorneys, for that matter). When I first started defending criminal cases here in Orlando back in 1993, the judge my public defender assigned me to once said to a Spanish client accused of Battery that "You won't stop beating your wife, you're Mexican!" Oops. Yes, the JQC did find out about such things and this person is no longer a judge (lost an election, those who know their Orange County history know exactly who I'm talking about).

Anyway, we could hash around war stories all night, but that's what CLE meetings are for. So, here's an analysis about probation conditions which a judge should not impose--even though they may seem like a good idea at the time. Let's take a look.

Today's case is Spano v. State, 60 So.3d 1108 (Fla. 4th DCA 2011). Spano was sentenced to community control following a plea to practicing law without a license. Somehow, she was ordered by the court to have no contact with her daughter (!?# huh?), possibly because they had a difficult relationship, with the daughter having obtained a restraining order against Spano. Eventually, Spano was issued a violation of probation (comm control, actually) by having contact with her daughter, against the order of the judge at sentencing.

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Missed Court Date, Now What?

man running.jpgOh, that sinking feeling. You "thought" court was set for next week, only to have the sheriff come knocking on your door. Hum, why is the sheriff looking for me? The severity of a missed court date depends on the type of court date missed. Missing a trial date can be different than missing a case management hearing, or a pretrial. The severity of a missed court date also depends upon whether or not you have a defense attorney tap dancing in your absence....[For those of you who have recently missed a court date and are wondering what to do: stop reading this article--call a local defense attorney asap!!!]

True, missing court is never a good thing. But, here in Orlando, many judge's are somewhat forgiving, when defense counsel presents a reasonable explanation for such absence (I said "many" judges, not "all"). However, things can get a bit more complex when it's a sentencing date. Such was the case recently in Palmore v. State, 36 Fla. L. Weekly D1782a (Fla. 1st DCA 2011). Palmore entered a plea to 60 days jail followed by 36 months probation on a possession of cocaine, use of firearm, and possession of marijuana.

The judge allowed Palmore to enter a plea as stated above, but a condition of the plea was that he must show up in court weeks later to begin the sentence. The problem for Palmore is that he failed to appear at his sentencing date on January 11, 2011, because he was arrested on January 9th for burglary and grand theft. Oops, I did it again.

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All Felons Not Eligible For Prison, Haven't You Heard?

prison cell2.jpgI know that many of you reading this probably already know that July 1, 2009 marked a tiny victory for we criminal defense attorneys (and freedom loving citizens, I'm including you as well) because Section 775.082(10) of the Florida Statutes went into effect, forcing courts to give defendants a non-state prison sentence if they score under 22 points. It's a rare piece of legislation that actually lowers punishment, isn't it? Can we continue this trend, please (especially on trafficking in pill cases, which Orlando seems to be the mecca of trafficking min mans).

Ok, so if everyone knows about this under 22 points rule, why is that some judge's and defense attorneys haven't caught on? Such was the case in Hutto v. State 50 So.3d 85 (Fla. 1st DCA 2010), where Hutto was sentenced to 18 months Department of Corrections (DOC, prison, etc) on a felony driving while license suspended as a habitual traffic offender, even though he only scored 14.1 points on his scoresheet. Just a reminder here, but most third degree felonies do not qualify for a prison sentence if the offender scores under 22 points. Aren't judges supposed to know this?

Apparently, the trial court did not read the statute which I'm about to type--Section 775.082(10) states that anyone who commits a crime "on or after July 1, 2009, which is a third degree felony but not a forcible felony ... and if the total sentence points ... are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could pressent a danger to the public, the court may sentence the offender to a state correctional facility". Got that? Well, in Hutto's case, there were no written findings that he was a danger to the community, so the appeals court overturned his 18 month prison sentence and remanded the case back down to the trial court. It's worth noting here that this sentence was part of a plea deal, so some defense attorney out there overlooked this law as well. Hum. At least now you know.

DOC Doesn't Decide Credit Time Served, Judge Does

prison cell.jpg We knew this, right? Sometimes, Florida's high and mighty Department of Corrections likes to tell prisoners what they're getting for time served. This isn't usually a problem until there's a disagreement. DOC always wins, right? Wrong. There is hope,....read on.

Steven Howard was adjudicated guilty of uttering a forged instrument, petit theft, and forgery in Polk County. Howard v. State of Florida, 23 So.3d 1273 (Fla. 2nd DCA 2010). He violated his probation several times (probation is tough, who can blame him), and sentenced twice to the Bridges of America Program. On both Bridge sentences, Howard awaited placement into the Bridge drug treatment program while he was in jail -- basically waiting for a bed to become available (typical). After failing this drug treatment program twice, Howard was sentenced to fifty months prison, but the DOC / prison denied him credit for the jail time served while awaiting entry into the Bridge program. He appealed.

First thing Howard did was ask the original judge to tell DOC to give him credit, but the court did not grant his request for the additional credit time served. The court reasoned that, because his "sentence" was over, Howard's time simply waiting for placement did not count as sentence 'credit'. Fortunately, the appeals court disagreed.

Howard was, eventually, given credit for all the jail time served waiting for bed space to become available at the Bridge program. Let this be a lesson to all, please have a local criminal defense lawyer handle all stages of a criminal case, don't let important details such as credit time served are not forgotten. Doesn't it make you feel good to see a court order DOC to do something, anything? I feel good.