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!

Anyway, the law is quite simple. It is fundamental error for a judge to refuse consideration of a legislatively authorized sentencing option as a matter of policy. So, the appeals court has sent this case back down to the trial court for reconsideration. Note, the case is being sent down without instructions to impose a youthful offender sentence–they’ve merely asked the judge to reconsider.

So, how much do you want to bet Pressley doesn’t get a youthful offender sentence the second time around? They could have, at least, sent it to a different judge.