1

What are the Sentencing Guidelines?

The Sentencing Guidelines are part of the “Criminal Punishment Code” (“CPC”). The purpose of the CPC is to “establish sentencing criteria… to make the best use of state prisons so that violent criminal offenders are appropriately incarcerated… {in a} neutral {manner} with respect to race, gender, and social and economic status… {that} the penalty imposed is commensurate with the severity of the primary offense and the circumstances surrounding {it}… {that} the severity of the sentence increases {commensurate} with the… offender’s prior record… {and} that the sentence imposed… reflects the length of actual time to be served… (see F.S. 921.002 – http://www.flsenate.gov/Laws/Statutes/2013/921.002 ). In short, the Guidelines (and the CPC) are the Legislature’s attempt at standardizing criminal punishment throughout the State of Florida.

2

Where and what are the guidelines?

The Sentencing Guidelines (for crimes committed on or after 10/01/98) are found at both Rule 3.992, Fla.R.Crim.P., and at Florida Statute 921.0024. They are used in conjunction with various other statutes and rules, such as the “Offense Severity Ranking Chart” (F.S. 921.0022(3)), and a host of other sentencing provisions (including but not limited to statutory enhancers, mitigators, minimum / mandatory provisions and various criminal history designators). Theoretically each case (including each case’s unique factors) is “valued” on a variety of measurable scales and the Guidelines (which are essentially a mathematic formula) calculation results in the computation of a non-biased yet custom tailored “permissible sentencing range” within which the Judge is free to exercise her/his discretion and outside of which (up or down) s/he must adequately and lawfully explain her/his ruling.

3

What do the guidelines consider?

The CPC score sheet considers a variety of factors including the “primary offense” (the most serious offense charged), any “additional offenses” (any lesser or equal charges faced), the level of “victim injury” (the actual harm suffered by the victim), “prior record” (any properly score able prior criminal offenses), “legal status” (whether or not one was under any lawful sanction or requirement at the time), and a variety of other “enhancers” for such things as firearms, prior “serious” felonies, drug trafficking, law enforcement protection act violations, grand theft of a motor vehicle, gang related activities and domestic violence cases which occur in the presence of children. Each of these factors has a “point value” which must be determined and when the points are all added together the sum is used to computate the “lowest permissible prison sentence in months” or the “low end” of the guidelines) below which the Judge cannot depart without clearly stated legal reasons.

4

What is the high end of the sentencing guidelines?

While it is somewhat complicated to determine the minimum (or “lowest permissible prison sentence in months”) sentence that one faces in a given case the maximum possible prison sentence is easy to determine. Every crime in Florida is divided into one of seven (7) classes (see F.S. 775.081 – from least to most severe there are 2nd and 1st degree misdemeanors, and there are 3rd, 2nd, 1st, 1st degree punishable by life (“1st PBL) and Capital felonies) and each of these classes has its own statutory maximum permissible penalty (see F.S. 775.082 – 2nd degree misdemeanors = 60 days, 1st degree misdemeanors = 364 days, 3rd degree felonies = 5 years, 2nd degree felonies = 15 years, 1st degree felonies = 30 years, 1st PBLs = life in prison and Capital = the death penalty).

5

Is it possible to exceed / go higher than the statutory maximums?

The statutory maximum is the maximum sentence that you can receive for a given offense, but in practice there are many ways that the math can be enhanced For example, certain factors will “bump up” (or “reclassify”) a given offense from a lower to a higher level. There are many, but two examples of reclassification situations are: 1) Wearing a mask during the commission of a crime (see F.S. 775.0845) and 2) Possession or use of a weapon during the commission of certain offenses (see F.S. 775.087), both of which will ratchet an offense up to the next highest level (i.e. a 3rd degree felony, if committed while wearing a mask becomes a 2nd, and so on). Also, Chapter 775 of the Florida Statutes provides for a variety of other sentencing enhancements including various “minimum mandatory” prison term requirements (which must be served day for day) and several designations for repeat offenders which can significantly affect sentencing (Habitual, Career Criminal, Prison Release Reoffender).

6

What are reasons for downward departing?

Judges are prohibited from downward departing from the sentencing guidelines range absent a written and “reasonable justification” to do so. That said, Florida Statute 921.0026 lists the possible “mitigating circumstance” for which the Court may lawfully depart downward from the calculated sentencing guidelines permissible range (they are also found at the end of the sentencing guidelines score sheet). However, in order for any of the statutory mitigators to apply they must first be specifically pled and proven by the Defendant (and of course the State will be afforded an opportunity to disprove or to raise doubt as to the same). Some accepted mitigating factors are that the departure is made at the request of the State and defense jointly in the form of a plea bargain, the Defendant only committed the offense because of extreme duress or the dominance of another person, and, in “money” cases, before the defendant was identified the victim was substantially compensated.

7

What about young / youthful defendants? Are they treated differently?

There is a fundamental difference between being prosecuted in the juvenile and adult courts, namely that the purpose of juvenile court is to educate and rehabilitate whereas the purpose of adult criminal court is to punish. Still, young / youthful defendants can be treated differently than their adult counterparts in one of two ways. F. S. 921.0026(k) lists a statutory mitigator for offenders who can prove that at the time of the crime were “too young to appreciate the consequences of the offense” and Chapter 958 of the Florida Statutes creates a special category for “youthful offenders”, which effectively obviates the sentencing guidelines and even many minimum mandatory sentences.

8

Who is a “Youthful Offender” and what does “Y/O” status mean?

A “Y/O” is someone who is in between the ages of 18 (or under) and 21 AT THE TIME OF SENTENCING and who has neither been previously classified as a Y/O nor previously been found guilty of either a life or a capital felony. Y/O designation can be made by the Court (even over the State’s objection) or it can be done by the Department of Corrections (DOC) on its own authority. When a Court is satisfied that an offender qualifies and opts to formally designates her/him as a Y/O, then the CPC, the sentencing guidelines and minimum mandatory penalties are all inapplicable. Instead the Court can sentence a Y/O to a maximum 6 year sentence including any combination of probation / community control, a split sentence of prison and probation or straight prison. If incarcerated then all Y/O’s serve time in a specially designated Y/O facility. If a Y/O violates probation / CC then s/he is subject to sentencing under the CPC as originally calculated.

9

Getting back to the Guidelines, how do they work? Part 1 – The facts:

Let’s take an example. Mary Juanna is charged with sale of 1 gram of cocaine and possession of paraphernalia, the same being alleged to have occurred within 1,000 feet of an elementary school during school hours and while school was in session. She has one prior criminal conviction for burglary of an unoccupied dwelling and is 20 years old at the time of sentencing.

10

Getting back to the Guidelines, how do they work? Part 2 – The current charges:

Sale of 1 gram of cocaine is a 2nd degree felony punishable by a statutory maximum of 15 years in prison, but in this case the level of offense is reclassified because of where it occurred (within 1,000 feet of a school), so, instead, Mary is facing a 1st degree felony punishable by a statutory maximum of 30 years in state prison. The paraphernalia charge is a first degree misdemeanor so Mary faces an additional 364 days of local jail time on that charge. This is all the information that is required to calculate the top of Mary’s guidelines (the statutory maximum which could be imposed) and, based upon her charges, Mary faces 30 years in state prison plus another 1 year in the county jail.

11

Getting back to the Guidelines, how do they work? Part 3 – Calculating the “total sentencing points”:

Sale of cocaine within 1,000 feet of a school is a Level 7 offense, is Mary’s “primary” (or most serious) offense and is scored at 56 points. The paraphernalia charge is a misdemeanor and, as an “additional offense” is scored at 0.2 points. There is no victim injury to consider but her prior burglary of an unoccupied dwelling is a Level 7 offense and earns her an additional 14 points. As her prior is a Level 7 offense it does not qualify as a “prior serious felony”, and she does not qualify for any other enhancements under our fact pattern. When we add all of Mary’s points her total sentence points are 70.2.

12

Getting back to the Guidelines, how do they work? Part 4 – Calculating the permissible sentencing range:

If the “total sentencing points” are 44 or less then there is no required prison sentence. (This does not mean that the Judge cannot give a prison sentence – remember the “max” is the statutory max, in Mary’s case 30 years state plus 1 year local time – just that the Judge does not have to and is free to give a “non-state prison sanction” if s/he chooses, even over the State’s objection.) If the points exceed 44, as Mary’s do, then we need to do some more math. The guidelines tell us that to determine the “lowest permissible prison sentence in months” we must take the total number of points (70.2), subtract 28 and then multiply the difference by .75. In Mary’s case the math works out to (70.2 – 28 = 42.2 x .75 = ) 31.65 months.

13

Getting back to the Guidelines, how do they work? Part 5 – What is Mary facing?:

In our fact pattern Mary faces anywhere from 31.65 months in state prison at the low end of the guidelines to 30 years in state prison plus 1 year local time at the high end (the statutory maximum). It would behoove Mary to petition the Court for some form of mitigation, whether pursuant to F. S. 921.0026 or Chapter 958 (to be sentenced as a Y/O). In either event Mary will either have to plead and prove her case for a downward departure or her eligibility for Y/O sentencing and, absent an agreement by the State, she can expect resistance and a contentious legal battle.

14

Getting back to the Guidelines, how do they work? Part 6 – What will Mary be sentenced to?:

As originally discussed, the whole point of the CPC and the sentencing guidelines was to create uniformity, consistency and some degree of unbiased predictability in criminal sentencing across the large and diverse State of Florida. Still, as evidenced by both the creation of a sentencing range (anywhere from the bottom of the guidelines up to the statutory max) and the existence of various mitigators, Judge’s almost always both enjoy and maintain a great deal of discretion in determining a given sentence. In Mary’s case she might receive the benefit of a Y/O designation or she might qualify for statutory mitigation, or she might lawfully be sentenced to serve anywhere in between 31.65 months and 30 years in state prison (she’d probably get a “pass” on the misdemeanor).

15

Getting back to the Guidelines, how do they work? Part 7 – What do I do if I am in Mary’s shoes?:

It is always best to have an experienced criminal defense attorney assist you in criminal matters, but this is especially true when it comes to those which involve the potential for incarceration. Believe it or not, doing the guideline calculations is the easy part; being creative in exploring, developing and ultimately proving mitigation requires skill and experience. You should be able to find such a skilled and experienced criminal defense lawyer by searching either Avvo or the Florida Association of Criminal Defense Lawyers website by locality (please see http://www.facdl.org/ – and click on the “Find A Lawyer” tab), or you are always welcome to contact my law office for a consultation (if you are in SoFlo) or for a referral or two (if you are north of Palm Beach County).

16

What is the bottom line?

Florida has 20 different Judicial Circuits, each of which deals with cases in its own manner. Moreover, each of those Judicial Circuits has a given number of criminal court Judges (each of whom is unique), as well as its own State Attorney’s Office (each of which has its own policies and procedures), and a bunch of Assistant State Attorneys (who, although they operate on guidelines as established by their office, are each sentient and independent persons), and each case has its own set of variables (“free radicals” if you will) all of which combine to make it impossible to predict what will happen in a given case. Accordingly, the best advise you are going to get on a given case is to find yourself an experienced and local criminal defense attorney who is familiar with both the Judges and prosecutors, as well as their policies and tendencies.

Established in 1991, Michael A. Haber, P.A. has an unblemished record of providing creative, effective and zealous representation to clients, primarily in South Florida, on a wide variety of criminal matters ranging from DUI to drug trafficking and from misdemeanors to first degree murder.

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Sentencing / Sentencing Guidelines / Mitigation / Aggravation / Youthful Offender / Sentencing / Michael A. Haber, Esq. **ARRESTED / **305DUI

Sentencing in Florida: The mathematics, procedures and the realities.

1

What are the Sentencing Guidelines?

2

Where and what are the guidelines?

3

What do the guidelines consider?

4

What is the high end of the sentencing guidelines?

5

Is it possible to exceed / go higher than the statutory maximums?

6

What are reasons for downward departing?

7

What about young / youthful defendants? Are they treated differently?

8

Who is a “Youthful Offender” and what does “Y/O” status mean?

9

Getting back to the Guidelines, how do they work? Part 1 – The facts:

10

Getting back to the Guidelines, how do they work? Part 2 – The current charges:

11

Getting back to the Guidelines, how do they work? Part 3 – Calculating the “total sentencing points”:

12

Getting back to the Guidelines, how do they work? Part 4 – Calculating the permissible sentencing range:

13

Getting back to the Guidelines, how do they work? Part 5 – What is Mary facing?:

14

Getting back to the Guidelines, how do they work? Part 6 – What will Mary be sentenced to?:

15

Getting back to the Guidelines, how do they work? Part 7 – What do I do if I am in Mary’s shoes?:

16

What is the bottom line?

Michael A. Haber

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Sentencing / Sentencing Guidelines / Mitigation / Aggravation / Youthful Offender / Sentencing / Michael A. Haber, Esq. ARRESTED / 305DUI