You don’t necessarily have to be the Governor to avoid a long prison sentence, but becoming Governor certainly helps if you’ve committed a notable grand theft here in Florida. Yet it’s possible to avoid prison even for a significant Grand Theft without the burden of running for office.
Fingerprints at Booking
A recent client was charged with a Grand Theft that occurred over a period of three years in Clearwater, Florida. During that time $48,000 was taken from the victim. The evidence was unfortunately abundant. Not only had my client confessed, but there were multiple instances of forgery with the proceeds going directly her. After negotiations with the investigating detective it was agreed that my client would avoid arrest by turning herself in. At booking her bond was made ready and after a couple of hours of being processed, fingerprinted and photographed at the Pinellas County Jail she was released.
However, the charges were significant and could easily trigger prison time. She was charged with Grand Theft and Scheme to Defraud. It was essential to first make every effort to persuade the state attorney’s office not to file either the Grand Theft or the Scheme to Defraud charge as the combined scored total based on the dollar amount of the theft would drive up the Florida Guideline range. In fact, the Florida guidelines mandated a sentence of Florida prison. The prosecutors agreed to not file the Grand Theft and to file only one count of Scheme to Defraud which is a second degree felony. This not only meant that my client would be unable to have recourse to Pretrial Intervention despite having no previous criminal history but that there would be an adjudication of guilt and worse a very high likelihood of a long prison term. This was troubling in that it would be difficult enough for her to find work again without spending time incarcerated.
Clearly, the objective had to be to use whatever leverage necessary to persuade the prosecutors and the judge to first give my client no jail and second to give her a withholding of adjudication. In any criminal case the most effective means of leverage is to find multiple weaknesses within the framework of the criminal charges. But here there was not only a confession to the crime, but multiple examples of easily provable forgeries. Further, if the case was taken to trial and we lost it would likely result in jail, because the charges that were not filed would be filed again by the prosecutors. Other than using weakness in a Grand Theft case, the best next source of leverage is persuading the victim that jail time is unconscionable.
Under Florida law a judge may go under the Florida Sentencing Guidelines for a limited number of reasons. One of the most effective reasons to go under the guidelines is establishing that the victim will receive restitution. Here the victim was willing and able to pay restitution. Based on the restitution being payed the victim agreed to no prison time as well as to a sentence with a withholding of adjudication so that the defendant would have an opportunity to more easily find a job. But how could the state give a withhold of adjudication on a second degree felony Scheme to Defraud case?
At the sentencing the prosecutor amended the information to a Grand Theft in the third degree. After careful deliberation and after speaking to a representative from the victim on the record to be certain the restitution had been met, the judge agreed to a sentence giving my client a fresh start on life. Even after a huge mistake it’s possible to avoid prison time in Tampa Bay, Florida.
No one wants to be sentenced to prison, yet it’s an unfortunate fact that every day in the Tampa Bay area many otherwise good people are sentenced to prison. Why do some people get prison while others receive probation?
Here are the five most important factors that drive sentencing decisions toward probation or for prison by Clearwater, Florida sentencing judges.
- The nature of the crime. Many cases automatically call for long terms of prison rather than probation if there is a conviction for the crime as charged. These cases such as possession, conspiracy or trafficking of drugs such as cocaine, heroin or marijuana, aggravated battery, DUI manslaughter often call for minimum mandatory sentences from the judge.
- Prior misconduct established by showing that the defendant has been convicted of other crimes drives up the potential for jail rather than probation. Crimes of a similar nature to the new charged offense are even more troublesome as they tend to establish that the defendant is neither remorseful nor likely to change his criminal conduct in the future.
- The victim’s input especially in violent crimes or sexual crimes such as sexual battery not involving minors is by Florida law something which the sentencing judge must consider.
- Protection of the community from violent acts, sexual crimes, crimes against children, crimes involving drugs or scheme to defraud and grand theft of large sums of money are often used by sentencing judges and prosecutors to ramp up sentences from what in other circumstances might have been probation. In all of these cases judges will try to determine if there is a continuing threat to the community if the defendant is not sent to jail. Therefor it’s vital to establish why the unlawful conduct will never be repeated. Yet, defense counsel must argue especially in theft cases how can the victim ever receive restitution if the defendant is imprisoned.
- Although the Florida guidelines and scoresheets require strict adherence to the suggested guideline range of prison or probation, the United States Supreme Court at least in Federal cases has moved away from strict adherence to the guidelines in favor of more sentencing discretion for judges. And even within Florida law there are exceptions in which the guideline range may be avoided if certain conditions are met.
- The readiness of the defense to contest the strength of the allegations of criminal conduct by going to trial if necessary. Fundamental investigation and excellent preparation is a necessary requirement for getting the best possible result in Pinellas County criminal courts. The more likely it seems that the defense may test the guilt or innocence of the defendant by risking a trial, the more likely it will be that the Florida guidelines can be driven down to an acceptable level of probation rather than prison time.
There are many other variables that go into every sentencing decision. Not many of these variables can not be controlled by the defense, but some can. Those that can be controlled must be effectively utilized by a knowledgeable Clearwater criminal defense lawyer to persuade prosecutors to yield in either amending the charged offense to a lesser degree felony or by agreeing to go under the prevailing strict sentencing guidelines if they call for prison. If prosecutors believe that there is a credible defense which may yield a not guilty verdict, then a jail term is much less likely.
In Florida nonviolent crimes such as grand theft and scheme to defraud often result in lengthy prison sentences especially when the amount allegedly taken is significant. Yet inflation has diminished the actual damage amount values in real terms from statutes that were created decades ago.
For a grand theft third degree felony it only takes a theft amount of over $300, but if the amount is over $20,000 then a second degree grand theft charge can be triggered and should the amount be over $100,000, then a first degree felony will be charged. Any scheme to defraud charge begins as a second degree and can escalate further based on overall amount of the fraud, the number of victims or the complexity of the fraud. The problem with any second degree felony is that it automatically will result in a guideline range that calls for time in jail or prison. And this is true despite the fact that these cases are nonviolent acts for which prison time brings no benefit to the victim nor to society.
Rather than blindly accepting the statutory loss amounts, you’d think smart sentencing judges would gladly accept evidence of the loss amount in real terms after inflation in their sentencing calculations; thus lowering the sentencing guidelines as well as the charged felony degree in many theft cases. But the prosecutor, dressed in black today, would object on the grounds that if there was a deflationary period, the defense would never accept anything less than the sum denominated in the statute. And the judge would agree because in Florida the guidelines and scoresheets determine the sentencing outcome.
Until Florida guidelines and scoresheets are altered by the legislature to accurately reflect inflationary loss amounts, it will be necessary to remind the sentencing judge of the passage of time since the statutes became law while establishing why a sentence under the guideline range is appropriate under the circumstances of the case. For example, the law in Florida specifically allows a judge to go under the sentencing guidelines if doing so will allow the victim to receive restitution. So that in many theft cases that may trigger a sentence of prison, it becomes a race against the clock to make a good showing to the sentencing judge that restitution can be paid.
It’s an unfortunate aspect of the American Criminal Justice System that the vast majority of judges have spent no time in jail. A little jail would do most of them good. Not only would some time in the slammer help them understand what incarceration really entails, it would add some perspective if not empathy to a sentencing process that is often inhumane and robotic.
|Even Judge Judy needs Jail
In fact why stop with just the judges? Prosecutors and Defense lawyers could share a cell, eat beans together and pay seventeen dollars for a two minute call home, just like their targets and clients must do when imprisoned. It’s not unusual for prosecutors and judges to forget the hopeless reality of prison by simply basing every Florida sentencing decision on scoresheet calculations and sentencing guidelines.
Because if they did think about it, if the tortured lives and wasted time of each prison day the defendant would serve had to be counted and assessed in some knowing way, the prisons would be emptied except for the most violent criminals. How does it help anyone to have nonviolent people wasting time in jail?
Recently a family from my home town sought advice about a federal habeas corpus petition to rectify the results of on an older grand theft case in which the defendant was sentenced to twenty-five years in prison. Twenty-five years for a grand theft! He’d been offered a mere two years of jail before his trial.
In Florida judges are forbidden to punish someone for exercising their constitutional right of going to a jury trial, but a judge may get around that by stating that information gained at the trial changed one’s mind. One wonders if this judge would benefit from spending some quality time in jail himself. In fact why not have the judge spend say one hour for every year for which he sentences someone.
Wouldn’t the victims be better off if the Defendant was earning money to pay them back even if he was just flipping hamburgers? Wouldn’t society be better off if he was on probation? Wouldn’t his children be better off with a father at home? It’s unfathomable to me that the American Criminal Justice System is often just in the process but not in the results. Yet the truth is that the habeas corpus action was unlikely to meet with success unless some aspect of the process could be shown to have been a failure despite the obvious failed result of that process.
But let’s brighten your day by thinking of others we should place in our empathy jail. Why not send every police officer to jail too? Starting with the Sheriff, all the way down. They’d all benefit from having a fuller understanding of how brutal the prison system actually is in Tampa Bay, Florida. Would the Pinellas County Jail’s recurring problems with bad food, lack of safety and failures by the medical staff be affected if those in control knew that they would be spending time there? Would the Judges allow it to continue? Would the Prosecutors? Would the Defense lawyers?
As Americans we often may lay claim to the notion that we want fairness in our criminal justice system. In truth what we want is consistent applications of our laws when applied to others but something less consistent when applied to us or the people we care about. Only when the ugly head of the law bites us do we fully understand that in the application of justice we really require some wiggle room.
For Tampa Bay criminal defense lawyers justice should be fair except when a client faces a fair result which will also ruin his life, then what? Here are five effective arguments to leverage a judge’s discretion to make sentencing findings running against the grain of harsh laws dictating excessive punishment while finding the best possible sentence.
First, look to the law’s intended consequences to show that they are irrational when applied broadly. Even the best written laws should be narrowly construed so as not to ensnare those who may never have intended to do wrong at least in the broadest definition of the crime.
Second, show that the law has unintended consequences that could result in unduly harsh sentencing results. Establish that the facts and circumstances of a case are unique outliers in the law’s true intent.
Third, follow up the argument on the law’s intended and unintended consequences by finding and presenting evidence of the legislative history of the law. In Florida the legislative history often includes information from committee hearings, debates, votes and amendments made during the legislative process. This evidence can establish that the law maker’s intent was not to target the actions under consideration with significant punishment.
Fourth, establish that the harsh punishment for a broken law was not readily foreseeable by the average citizen. This is especially easy when the sentencing judge on the record expresses some surprise when told by the prosecutor where the Florida guideline scoresheet range of prison is for a defendant.
When Defendants were first being sentenced to the initial set of harsh minimum mandatory sentences for drugs some twenty years ago, the best judges were reluctant to sentence people to that much time. They looked for every possible avenue to avoid the law. As a prosecutor at the time I even observed a judge grant a new trial to force prosecutors and defense lawyers to come up with a non-minimum mandatory sentence.
But as the sentences became more common habit displaced sympathy. With every additional minimum mandatory sentence issued, it became that much more difficult for judges to ignore the heft of the law for others in a misplaced notion that simple fairness dictated heartless sentences for everyone. No, simple fairness means that every judge best honors the law by finding the least possible punishment, despite sentencing guidelines, that provides deterrence and protects the public based on the facts of each case with the unique personal qualities of every defendant.
And that leads to the the fifth argument which is to appeal to the sentencing judge’s sense of wanting to do what is right, which is the most effective argument of all.
Right now in Florida it’s prosecutors rather than unbiased Judges who make important initial filing decisions on whether juvenile offenders will be treated as adults. Because of harsh Florida sentencing guideline ranges a charge filed against a child as if he were an adult makes it much more difficult for a Clearwater criminal defense attorney to save that child from being brutalized within Florida’s horrific criminal justice system.
|James Dean in a Juvenile Arrest
Finally, after over ten years of debate the Florida Bar will become an advocate for young people charged with Florida crime by demanding that judges rather than prosecutors make initial filing determinations for juveniles and that mandatory direct filing should be abolished. The bar committee unanimously made the following findings to change current direct filing law as it relates to juveniles charged as adults and found in Florida Statutes Section 985.557:
* Children with prior felonies should only be direct filed if the child is charged with homicide or the child is at least 16 years of age at the time of the offense, and has been charged with a felony crime involving violence against a person in which the offense was heinous and premeditated, and a written explanation as to why the child was direct filed has been filed with the court.
* Children with prior felonies should only be direct filed if the child is at least 16 years of age at the time of the offense and has been charged with a felony crime of violence against a person.
* Children should not be direct filed on misdemeanor offenses.
* Children who have been direct filed should be entitled to a pre-adjudication reverse waiver hearing, i.e., a judicial review hearing as to whether the child should be prosecuted in adult court or transferred back to juvenile court (as most states have).
This change of law would have directly helped a sixteen year old boy I represented in Clearwater, Florida. He was charged as an adult facing a minimum mandatory prison sentence for using a shotgun to break into a car by shattering the side window not by firing but by striking it with the butt of the rifle. Because he’d been charged as an adult the Judge had limited ability to give a fair sentence even under the Youthful Offender Statute.
The boy’s fate hung in the hands of a Pinellas jury. At trial the jury accepted the argument that by using the shotgun as a tool rather than a shotgun the boy should not be found guilty. All of this unnecessary risk could have been avoided if only the Judge rather than the prosecutors could determine if a child should be treated as an adult.
How Florida treats young people charged with crime has been especially troubling. In Tampa Bay, Florida many parents were outraged to find that their children had been falsely listed in secret law enforcement gang membership lists which allowed local Largo police to groom these children as future criminals. Yet occasionally the crime itself becomes the punishment as happened recently when three young Floridians stoled and snorted cremation urn ashes believing it was cocaine.
Ideally both the defense and the state attorney’s office would be allowed to present facts to the judge in a preliminary hearing at which the Judge would make an informed decision distanced from public opinion and politics. Clearly even if the Court makes an initial decision to direct file a juvenile as an adult providing the mechanism of a reverse waiver hearing allows the Judge to send the case back into the juvenile court should it be appropriate before actual sentencing so that the sentence is much more likely to be fair.
Your favorite Clearwater criminal defense lawyer is often asked before sentencing if a particular Judge is human. As it’s remotely possible that some stray Judge will one day read these very words I’m tip tap typing as you glance over this page, I’ll reluctantly decline to answer that question.
|Is this a fair Judge?
Instead I’ll pose a slightly better one – Does your Judge know that you’re human? And if not, why not? If you were on a job interview wouldn’t you do everything possible to persuade the interviewer about all the impressive things you’ve done in your life? You’d also talk about the even better things you plan to accomplish in your future.
It’s true that when it comes to sentencing the most important factor is often how the Florida scoresheets and guidelines apply to a specific set of facts. Yet fair sentencing decisions must always include much more than mere guidelines calculations otherwise our Judges are nothing more than human (or not so human) calculating machines.
The best judges want a firm explanation of more than just the basic sentencing guideline range blended with bland facts and circumstances of a case. The best judges also delve into the motivations, pressures, family life, failures, successes and goals of a defendant.
What if you don’t have the best judge or for that matter what if have a judge you don’t suspect is human? Any judge can be led toward making good decisions that take into account a Defendant’s entire life story. In Federal Court in the Middle District of Florida in Tampa, Federal judges have been told by the United States Supreme Court that the Federal Sentencing Guidelines are advisory not compulsory and that the Judges must examine in detail the personal characteristics of a defendant before sentencing. Clearly all judges should make an effort toward understanding a defendant before applying any sentence.
A strong, effective Clearwater criminal lawyer will push the judge toward wanting to learn more about the defendant’s entire life history, learning not only what brought the defendant to this point in his life but why the defendant deserves to have a compassionate judge, a judge eager to find the best possible sentencing solutions with as little punishment as possible for a successful outcome.
Friends and family members of loved ones who have been arrested in Tampa Bay, Florida often seek help from Clearwater criminal defense attorneys. Yet how can family members be sure that a lawyer knows how to find the best possible solution in their criminal case? How do you define success in criminal law?
Success depends on more than the mere facts and circumstances of each case. Success requires that an effective advocate understand the arresting officers, the prosecutors and the judge; how they think and how they’re apt to react to a vigorous defense. Knowledge of how the criminal justice system in Tampa Bay, Florida works from arrest, investigation by the the prosecutor, arraignment, pretrial and if necessary trial comes from experience, while experience comes from having handled thousands of criminal cases over a lifetime dedicated to excellent criminal law outcomes.
Over the past three decades in criminal law the balance of power shifted from impartial Judges to political prosecutors with the introduction of brutal sentencing guidelines, minimum mandatory sentencing, harsh drug sentences and pretrial intervention programs.
Yet over the last few years the U.S. Supreme Court has made it clear that Judges, not prosecutors must have more discretion in sentencing. In fact the Supreme Court has held that the Federal Sentencing Guidelines are only advisory; therefore when justice requires it, Judges must be willing to give sentences under the prevailing Sentencing Guidelines. Effective advocates must have a keen understanding of how to persuade Judges to use their discretion, while leveraging this possibility with prosecutors to receive the best pretrial offers in change of plea negotiations.
Finding the best possible outcome must always be the over-riding goal of every advocate in criminal cases.
Finding the best solution after an arrest requires that Clearwater criminal defense lawyers understand how to use the leverage of Judge’s sentencing discretion to guide their clients to safety.
Your Clearwater Criminal Attorney is often asked by clients to perform a miracle mind reading before the frowning Judge pronounces sentence.
Until the age of four, just like you and everyone else, I could read minds with ease, but society found it culturally intolerable and one morning that comforting bliss of knowing what others thought simply vanished.
It may be reassuring to know that anyone can read the minds of Judges especially before sentencing and you don’t need to pass a Bar Exam nor go to law school to do it.
|Lippi, Saint Mamas In Prison with Lions, 1455
So if you or someone you love is about to be sentenced what is the Judge going to do? In Tampa Bay, Florida the Judge first looks to Florida sentencing guidelines and scoresheets, which will direct him toward a guideline range.
To go under the guideline range your legal advocate must find articulable language within Florida law allowing him to do so.
Here are some of the best options for Defendants other than prison which may be available. When the law allows some discretion, a Judge may grant probation if the Defendant has no violent crime history nor is a threat to do further crime. In probation a Defendant will be closely monitored but will still have the freedom to maintain his job and social life. If a Judge finds that someone is apt to do further crime, for example in a drug case where there may be an addiction, then intensive probation may be ordered with random drug tests as a condition.
If probation is not an option, a Judge may grant house arrest, also known in Florida as Community Control if the Defendant would otherwise be imprisoned but can provide the Court with assurance that his home will be a prison with very limited social interaction.
The FDLE has an excellent article, Alternatives To Standard Methods of Incarceration which most Judges probably know by heart; here is an excerpt of the requirements for Community Control in Florida:
Community controlees are: (1) confined under “house arrest” to their residences except during regular employment, public service work, or participation in self-improvement programs approved by the community control officer; (2) required to do public service work for nonprofit and governmental agencies to make reparation to society; (3) required to pay monthly fees to the State to offset costs; (4) required to complete daily logs to account for their activities and time; (5) required to maintain employment to support themselves and their families; (6) ordered to submit to urinalysis and/or breathalyzer tests at any time; (7) must participate in self- improvement courses to improve their chances of rehabilitation.
Years ago while I was a prosecutor the inside joke whenever someone received house arrest was that it was ‘delayed reporting to jail.’ Like many jokes there’s some truth there, because most people find it very difficult not to violate the onerous conditions which attach to house arrest. To successfully complete the terms of house arrest in Tampa Bay, Florida, you must think of it as being jail, but at least the benefit of being in jail at home.
A step closer to prison, but one with at least some freedom is work release, which may be an option for sentencing if the Judge is convinced that a Defendant needs a stepping stone of incarceration in a minimally controlled jail environment at night with limited freedom only to work during the day.
A creative and effective Clearwater Criminal Defense Lawyer will do his best before sentencing to persuade your frowning Judge to give his Clients the best possible results and maybe even crack a smile.
Your favorite Clearwater Criminal Defense Attorney recently received this question about the elasticity of sentencing guidelines; just how much leeway do federal Judges really have to reduce sentences under the sentencing guidelines or minimum mandatory requirements?
|Renoir, Baker Awaits Sentence,1877
My husband is facing a federal drug case. The amount of drugs involved carries a long minimum mandatory sentence.
He’s thinking of pleading guilty. If he pleads guilty is there any way that the Judge can sentence my husband to a term that’s under the minimum mandatory?
He’s already lost his job and now it looks like he’ll lose his freedom.
There are two different hurdles facing your husband. As you’re know there’s the minimum mandatory jail term triggered by the amount of drugs, but at the same time the facts of the case, prior convictions, aggravating factors and mitigating factors will also bring about a calculation of probable jail time based on the Federal Sentencing Guidelines. The Guidelines indicate that a Federal Judge should sentence a Defendant to whichever term is higher. In other words if the minimum mandatory sentence if ten years but the Sentencing Guidelines call for thirteen years, then the higher term if thirteen years is likely to be imposed.
For a long time many Federal Judges complained that their role in the sentencing process had been reduced to merely crunching numbers. Yet fairly recently the United States Supreme Court has repeatedly told Federal District Judges that the Federal Sentencing Guidelines are advisory, meaning that Federal Judges may impose less time when necessitated by the facts of a case or the personal characteristics of a Defendant. So it’s now possible to successfully attack the Federal Guidelines as applied to individuals.
Judges have less ability to go under minimum mandatory sentences. But under the law there are some ways to avoid a minimum mandatory sentence. For example, there is a provision for reducing sentences based on substantial assistance or based on the safety valve provision for Defendants with no prior record who accept responsibility for their crime, which allows the Federal Guidelines to trump the minimum mandatory sentence.
In minimum mandatory cases not brought in Federal Court but by the State of Florida, it’s deplorable that Prosecutors often possess much more discretion than Judges. Clearly, even in Florida cases it’s important to understand how Guideline Scoresheets and Guidelines are calculated before resolving a case. Even good people are destroyed by minimum mandatory sentencing including Florida Prosecutors in Tampa Bay and Pinellas County who continue to demand that judges ruin lives needlessly and who have a long history of failing justice, see minimum mandatory sentences corrupt Prosecutors.