Florida Criminal Sentencing and Departures
Under Florida law the sentencing guidelines and laws are in place to provide uniformity of sentence. This uniformity was born out when political activists argued that certain races in Florida were being treated differently under the previous criminal sentencing scheme, because of race or skin color. Basically, black activists argued for “Florida Sentencing Guidelines” that would provide equal sentences for all races of people, touting what they believed was disparaging sentences that blacks faced for crack cocaine possession versus whites for powder cocaine possession. Since the sentencing guidelines have been enacted in Florida, at the behest of the activists, sentencing judges have a very difficult time meting out a sentence below the guidelines. Experienced criminal defense attorneys have crafted ways to persuade trial judges to go below the guidelines, but then the State on many occasions, through the appellate process, gets the non-state prison sentence or reduced incarceration sentence overturned.
Florida law provides for a downward departure for the defendant, if certain conditions are met and shown, at the sentencing hearing. Knowing what and how to persuade a sentencing judge to downward depart; and to have the sentence affirmed or stand on appeal is best left with an experienced criminal defense attorney. The experienced criminal defense attorney knows the standards of departure and knows how to make a record, so that if the transcript goes up on appeal, it will contain the buzz words, so that appellate court affirms the mitigated or reduced sentence. Experienced Palm Beach Criminal Defense Attorney Andrew D. Stine understands the importance of making a “record” for appellate purposes, because not only does he have vast amount of experience as a criminal defense trial lawyer, Attorney Stine also does appellate law. The combination of bringing trial experience with appellate experience is priceless, when you are in the foxhole of the courtroom and the battle is raging and your freedom is on the line.
How does a criminal defendant get a downward departed sentence from a Judge at sentencing? The kindest of answers is that a lot of variables must be in place in order for a judge to order a downward departure at sentencing. The following review may help you understand the sentencing options under Florida Law.
At the trial court sentencing level, the sentencing court is bound by Florida General Statute or Law 921.0026. The law 921.0026 states in essence that a downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to the criminal punishment code, is prohibited, unless there are circumstances or factors that reasonably justify the downward departure. Mitigating factors to be considered include, but are not limited to, those listed in subsection (2) of the statute or law. Subsection (2) of Section 921.0026 list elements or factors for which the judge can use to downward depart from the lowest permissible sentence when meting out a sentence of the accused. But there is also a “catch all phrase” in the statute which states: “the trial court can impose a downward departure sentence for reasons ‘not delineated’ in section 921.0026 (2), so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited.” The catch all phrase “not delineated” is very important to the experienced criminal defense attorney at sentencing. Because of this catch all phrase, the criminal defendant at sentencing can argue a vast array of factors not specified in the law and have the judge, if he or she chooses provide the accused with a downward departure of sentence. Some of the winning arguments for departure of sentence are in the everyday occurrences of our lives. Like mental health issues, occupational disabilities, US military service disabilities, drug and alcohol abuse, and the hardship to a family unit like to the development of young children if the accused is sent to prison.
Another important factor at the sentencing hearing is perfecting the record on the downward departure sentence. The record or transcript must contain the information that the appellate court will look at and affirm the lower court’s departed sentence. The information is the testimony and facts provided about the accused by those who testify on behalf of the defendant at sentencing. Hiring and calling experts at trial like mental health professionals, occupational specialist, and military personal if the defendant served in the US Armed Forces during combat, drug and alcohol therapist, and many other professionals and family members of the accused to “make” the record on appeal to have the downward departure stand is imperative in the appellate court level.
More often we are seeing appellate courts, like the 4th District Court of Appeals, who serves the following Florida counties on appeal: Broward, Palm Beach, Martin, Okeechobee, St. Lucie and Indian River overturn a downward departed sentence. Certain judges on the 4th DCA have also through their opinions made the downward departure sentence less likely to realize for the criminal defendant at sentencing. This creative writing by the “activist” judges is no more than a ploy in their attempt to be elevated to the Florida Supreme Court. Attorney Andrew D. Stine has practiced and tried cases in front of these “activist” appellate judges, when they were appointed to the “county courts.” Rarely has the activist judge ever been elected! When the activist judge is appointed, they are certain characteristics that the judge has that immediately jumps out at the practicing criminal defense lawyer: (i) arrogance, (ii) lack of knowledge, (iii) intimidation factors and (iv) state and law enforcement basis. A good criminal defense lawyer knows the law; a great criminal defense lawyer knows the Judge! Making a record at sentencing is the best way to keep the activist Appellate Judges from overturning the downward departed sentence of the accused. Criminal Defense Attorney Andrew D. Stine makes a record better than other trial lawyer, because Attorney Stine also does appeals and understands, unlike most lawyers who do not do both appellate work and trial work, how important the record is on appeal. Making the record for Appeal is a great criminal trial lawyer’s motto!
The blog following this one will teach you about the appellate process of the downward departure. Read on to the next blog and learn. Criminal Defense Lawyer Andrew D. Stine has been practicing law for over 10 years. Attorney Stine has a passion, like no other lawyer, in representing those accused of crimes throughout Broward, Palm Beach, Martin, Okeechobee, St. Lucie and Indian River counties and all of Florida. If the police are talking to you, you need to be on the telephone with me! Hire Stine or Do the Time.