Not Every Felony Conviction Permits a Prison Sentence

grace-e1481650484902-300x225They say that if you can’t explain something to a sixth grader–you probably don’t understand it.   Unfortunately, some legal concepts don’t fit nicely into a tiny article like this.  Yes, I’m already making excuses, and we’re not even three lines into this.  More importantly, I’m warning you that this article tends to be a bit detailed (boring?).

So many “scoresheet” issues come up these days, I thought it would be nice to start delving into them.  This article may sound a bit like an episode of Inside Baseball, but for those poor folks who find themselves facing possible prison time on a felony–I hope this article provides you some insights and comfort.

We defense attorneys constantly complain about the minimum mandatory sentences imposed by our legislature.  Sentencing is supposed to be the job of the judge.  Mandatory sentences unfairly tie the hands of our judges, who are forced to give some poor soul 15 years mandatory prison for $95 in oxycodone pills because the legislature has said so, when a bit of drug treatment would have made the world a better place.  Today’s case presents the opposite situation, in which the legislature has tied the hands of the judge by preventing a prison sentence.  

First, some history.  Back when I started defending criminal cases in 1993, any third degree felony could land you in prison.  That’s no longer the case.  Yes, every degree third felony still carries of maximum of 5 years prison–but judges no longer have the authority to hand out a prison sentence just because they’ve had a bad day at work.  Florida law prevents judicial vengeance via limitations built into a defendant’s scoresheet.

What is a scoresheet, you ask?

Well, every defendant must be sentenced according to his “scoresheet”.  Every felony conviction has a point value, and these points are added up on something we call a “scoresheet”.  Possession of cocaine, for example, scores 16 points.  If a citizen has numerous prior felony convictions, each prior case adds additional points to the grand total–and if you score over 44 points–you’re going to prison (Side Note: yes, there are ways around this, just play along for a bit).

And, the reverse is true.   Most possession of cocaine, for example, will score under 22 points.  If you score under 22 points, the judge is not allowed to send you to prison.  Believe it or not, our legislature passed a law that prevents judges from sending citizens to prison who don’t deserve it.  Shocking, I know.  Does this make up for all the minimum mandatory sentences on trafficking cases?  No.  But, its a start.  Will we ever get around to talking about a real case?  500 words later, your wish is my command.

Our case of the day involves a conviction for fleeing or attempting to elude a law enforcement officer, and a five year prison sentence soon followed.   A car chase, followed by a five year prison sentence.  It happens.  The case is Johnson v. State, and Johnson scored only 5.6 points on his scoresheet.  2017 Fla.App. LEXIS 6358 (Fla. 1st DCA 2017)  So, given the fact that he scored less than 22 points, Florida Statute 775.082(10) prohibited this judge from giving Johnson a prison sentence.  The judge could have given Johnson 1 year in the county jail (jail is not “prison”).  He could have given Johnson five years of supervised probation.  He could have given Johnson a few years of community control (think “home confinement”).  And, he could have given him a $5,000 fine on top of everything else.  Lots of options, but a score under 22 points takes prison off the table.

Well, do you think some technicality like the “law” or a “statute” will stop some judges?  Apparently not.

Johnson appealed his 5 year prison sentence, for the reasons stated above.  Even the state conceded that the judge was wrong, but claimed that Section 775.082(10) permits a prison sentence if the judge can justify the sentence in writing, to explain how a “nonstate prison sanction could present a danger to the public”.   This is true, Section 775.082(10) will let the judge send someone who scores under 22 points to prison, but only if they can explain how not sending them to prison would present a danger to the public.  Yikes.  Look, I’m not explaining this well, I know, but that’s because the legislature didn’t write the statute well.  Don’t blame me for my lack of clarity here.  As you’ll see below, not even the appellate court judges really understand what the heck the legislature is getting at here.

Ok, back to Johnson’s five year prison sentence when he scored under 22 points.  The judge can do it, but only if a “nonstate prison sanction could present a danger to the public.”

What does this mean?

Let’s dig deeper.  Let’s say the judge gives Johnson one year in jail.  A jail sentence for Johnson would have been legal, because jail sentences are not prison.  Prison sentences are anything above one year (even a year + one day is a prison sentence, but anything a year or below is a county jail sentence).  So, how could Johnson’s judge claim that a sentence of one year in jail would, somehow, “present a danger to the public?”  To tap dance around the law found in 775.082(10), this judge must argue that a prison sentence–like two years in prison–will rectify a danger that one year in jail will not rectify.  Yikes.  It can’t be done, can it?

Even the appellate court was perplexed by the statute’s language, commenting that “no guidance has been provided by the Legislature for deciding when a ‘nonstate prison sanction could present a danger to the public’.”  Id.   The court began their analysis by breaking down what they felt the Legislature meant by “danger to the public”, explaining that there must be a nexus between how a non-prison sentence might be a danger to the public.  Yes, the logic is circular,  hang in there.

The judge in Johnson decided to clean up his 5 year prison sentence, by supplementing with a written list of reasons.  The judge listed six reasons, all of which were shot down by the appellate court.  The appellate court threw out Johnson’s prison sentence, and instructed the sentencing judge to give him any sentence that is not prison.  Here’s my prediction: one year jail, followed by 2 years of community control with an ankle monitor, followed by 2 years probation, with a $5,000 fine and 500 hours community service.  In other words, this judge will likely impose so many conditions that not even the Pope could successfully complete the terms.  And then, this judge gets another go at sentencing on the VOP.  Girl, you know its true.