After 22+ years of criminal defense work, certain questions keep coming up. One of the most common is, “Do you do pro bono work?” In other words, will I work for free? It takes a certain amount of balls to ask this question. Would you head over to the car dealership and ask them if they’d give away a car? Would you ask a mechanic to fix your car for free?
I do give a “free consultation”. But, a free consultation isn’t legal advice. Law firms use free consultations to decide whether or not a case—and client—are a good fit for the firm. Hopefully, potential clients are sizing up the law firms they interview in the same fashion. That being said, a free consultation will never equate to some sort of guide as to how to defend yourself. Every now and then, I get a do-it-yourself kid who wants legal advice, rather than a free consultation. If you want examples of folks who have failed because they lack enough common sense to hire professionals to assist them, just tune into Tosh.O and you’ll get a feel for how folks behave without supervision (Comedy Central, weekdays, you probably already watch it, don’t pretend you don’t).
So, when people aren’t asking me to work for free, they’re asking some form of the question “How much time will I serve?” Well, that’s a loaded question. As a general rule, everyone is entitled to some sort of discount on their prison sentence–the going rate is 15%. For example, a 10 year prison sentence will be reduced by 15%, to 8 ½ years, for what we call ‘good time’ or ‘gain time’. However, this general rule does not apply to all crimes, as some must be served without a discount (or, “day-for-day”). Today, we’re going to take a closer look at this issue, as it presents itself in Melvin v. State, 2015 Fla.App. LEXIS 14949 (Fla. 1st DCA 2015).
Melvin pled to several counts of lewd and lascivious molestation of a child under 12 years of age. Lewd molestation of a child under 12 carries a minimum mandatory sentence of 25 years in prison (the maximum is life). Melvin’s plea called for the 25 year minimum mandatory prison sentence, to be followed by a lifetime of sex offender probation. But here’s the catch, the judge told Melvin that he must serve the 25 years “day-for-day”. Basically, the judge is telling the prison system not to give Melvin the gain time we mentioned above, as he doesn’t want Melvin’s 25 years to be shortened in any way. Now, if you ask me, the judge has overstepped his bounds here. Judge’s impose sentences, but it is the Department of Corrections that carries out that sentence according to guidelines written by the legislature. In Florida, the legislature has dictated that most prison sentences may be shortened by 15%. There are exceptions for certain minimum mandatory sentences. And this gets us back to Melvin’s situation. Must Melvin serve his 25 years “day-for-day” because his sentence was a “minimum mandatory” sentence?
The court phrased the issue as follows, “Melvin contends that, absent specific statutory language to that effect, gain-time may be applied so as to allow him ultimately to spend less than 25 years in prison. The State agrees. As do we. In Mastay v. McDonough, we said that ‘when the legislature intends to prohibit individuals from being eligible for gain-time during the service of a mandatory-minimum term of imprisonment, it uses explicit language to that effect. 928 So. 2d 512, 514 (Fla. 1st DCA 2006)” As we have said before, and the appeals court reiterated in Melvin’s case, “gain-time applicability is a separate and distinct issue from the mandatory-minimum issue”. Id. at 4.
When it comes to the 25 year minimum mandatory for a lewd act on a child under 12, the statute contains no language prohibiting gain time. For clarity, let’s review the sort of terminology thrown around by the legislature when they don’t want a defendant to receive gain time.
The three year minimum mandatory prison sentence imposed on an aggravated fleeing and eluding a law enforcement officer reads “A person convicted and sentenced to a mandatory minimum term of incarceration under paragraph (3)(b) or paragraph (4)(b) is not eligible for statutory gain time under s. 944.275 or any form of discretionary early release . . . prior to serving the mandatory minimum sentence”. Id, citing Section 316.1935(6), Fla. Stat. (2012) [emphasis added].
The court goes on to cite another example a minimum mandatory legislation prohibiting gain time. The firearm minimum mandatories found under the 10-20-Life law are “not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency, or conditional medical release under s. 947.149, prior to serving the minimum sentence”. Section 775.087(2)(a)(3)(b), Fla. Stat. (2012) [emphasis added].
There are a zillion crimes now that carry minimum mandatory sentences, and obviously, these automatic mandatory sentences keep judges from dispensing justice on a case by case basis. For you folks out there concerned about tax payer dollars, forcing judges to impose expensive sentences (when cheaper sentences will work) is driving up Florida’s criminal justice expenditures. It is my hope that our future legislatures will give the power back to the judges to craft more reasonable, less expensive sentences. Until such time, defendants like Melvin will have to keep appealing until they get what little they’re entitled to under current laws.