Florida Criminal Sentencing and Departures: Part II the Appeal
In the first part of this blog, Florida Criminal Sentencing and Departures, we learned the laws and policies at the trial court level, as it relates to trial judges departing from the Florida criminal sentencing guidelines. The second part of the blog will now discuss the appellate process and how the appeals courts review the departed sentence from the lower court.
If the lower court, also known as the sentencing court, downward departs on a criminal sentence the State of Florida through the Office of the State Attorney, for the county in which the crime occurred, will likely appeal the lower court’s ruling to depart to the District Court of Appeals. The principle behind this appeal is set out in the separation of powers of the Florida and United States Constitution. The Judges of Florida make up a portion of the Judicial Branch of Government. The State Attorneys in and for each County in Florida, along with their law enforcement official friends, like county sheriffs and local police, make up the executive branch of government. When judges part of the judiciary, do something the state attorney, the executive does not like, the state attorney appeals to one of the five appellate courts in the State of Florida.
On appeal, the most prevailing of arguments set forth by Office of the State Attorney or by the Office of the Attorney General, who more often than not assist the State Attorney in their Appeals, are as follows: (1) the court’s ground for granting the downward departure sentences was unlawful; and (2) competent, substantial evidence did not support the court’s ground for the downward departure sentences.
As to the prosecutor’s first argument seen on many appeals, that the downward departed sentences “was unlawful” is easily defeated by showing any palpable reason that is supported by the record for the departure made by the sentencing judge. For instance, there are no delineated or enumerated reasons laid out in in Fl. Gen. Stat. 921.0026 that allows many of the reasons why a sentencing judge departs. But because the reasons are not laid out does not prohibit a sentencing judge from a downward departing sentence if a palpable reason is articulated on the record.
For instance, sentencing judges may downward depart for reasons like: (i) family unity will be broken if the single parent is incarcerated; (ii) health concerns of the defendant outweigh the societal good of incarceration; (iii) restitution paid back to the victim outweighs incarceration; (iv) mental health illness of the defendant, and he or she is in need of treatment and is amenable to treatment; (v) loss of defendant’s employment due to incarceration will have a greater impact than incarceration; (iv) loss of defendant’s civil rights like voting, gun ownership, and ability to contract with the government outweigh the punishment of incarceration.
The list of why a sentencing judge may depart is endless, with a creative and dedicated criminal defense lawyer, when attempting to reduce you or your loved ones sentence. Judge’s can be persuaded to depart from the State’s requested sentence with help from the experienced criminal defense attorney. More likely than not, the Appellate Courts will defer to the lower courts sentence, in their opinion as to the first prong of the test. Most of time the Appellate Courts will hold that the lower court provided a reason that was palpable, justified, and reasonable in the downward departed sentence of the accused.
The second prong of the Appellate Court’s review of a downward departed sentence is to determine from the record; whether or not there is competent, substantial evidence to support the sentencing court’s departed sentence of the accused. Here, the appellate court looks to the record to determine if the witnesses who provided testimony are in fact competent to do so. Competent witnesses in this reference does not mean mentally competent or suffering from mental illness, but simply means does the witnesses have knowledge for which he or she is testifying about.
For instance, a wife or sister may testify as to the affect that alcohol has on the accused, because they witness the aftermath of the drinking. But the wife or sister is not competent to testify that “treatment” will help the accused, if they are not licensed alcohol and drug counselors or therapist.
A wife may testify that if the husband loses his job, the family will be homeless with no way to pay the mortgage and buy food-all which may be true. But a vocational expert, employment expert, financial advisor, accountant or the like, needs to testify as to the condition of the finances with and without the husband’s income, which shows the impact on the continuity of the family. This is what experienced criminal lawyers do in building the record or making the record to properly preserve the issue for appeal. This helps to assure that the appellate court will not overturn the lower court’s ruling, when it reduces or departs on behalf of the defendant’s sentence. Making the record for appeal with competent witnesses helps to satisfy the second prong of the test for departed sentences.
Remember on appeal, we have many activist judges who have not been elected but appointed. These same activist judges are looking for their next seat on the Florida Supreme Court. Do not let them write the answer to your appeal and have the famous words: “with the record evidence before us, we conclude that there was no competent, substantial evidence to support the downward departure sentence of the defendant.” Thus, we reverse the lower court’s decision to downward depart on said sentence and we remand with direction to re-sentence the Defendant inside the guideline range. So ordered.
Hiring experienced criminal defense attorney, Andrew D. Stine, who practices both criminal trial law and also perfects criminal appeals, will improve your chances on success in a downward departed sentence. Criminal Defense Attorney Andrew D. Stine has handled criminal matters throughout the entire State of Florida from Monroe County to Duval County, from Okaloosa County to Lee County and everywhere in between the State of Florida. West Palm Beach Criminal trial attorney and Criminal appellate attorney, Andrew D. Stine, is here to help you.
If you or a loved one needs a criminal trial lawyer or a criminal appellate lawyer, then contact Attorney Andrew D. Stine for you free immediate consultation. Hire Stine or Do the Time.