Criminal Sentencing Hearing
I Need A Good Criminal Lawyer for Sentencing
By Kenneth Rhoden, Esquire
If you have been convicted of a crime, the next step is sentencing. Unless you plead to the crime with an agreed sentence, you will want to get the least harsh sentence possible. You may have been found guilty at a trial or you may have plead to the court with no agreement – in either case, you need to make a strong presentation in your criminal sentencing hearing. It is important that you have an experienced and aggressive criminal defense attorney help you prepare for your sentencing hearing.
In Florida, the starting point for a criminal sentencing hearing is Rule 3.992 (a) Criminal Punishment Code Scoresheet. The Scoresheet takes into account the present offense, prior criminal record, victim injury, and other factors. The end result is the sentence, expressed in months, that the judge must impose. This is usually called the guidelines sentence.
The trial court can depart downward from the lowest permissible guidelines sentence if the Defendant proves certain mitigating circumstances exist. Argument of counsel is not sufficient to prove a mitigating circumstance, but the defendant’s testimony can be. It is better practice to have several witnesses, including expert witnesses, testify.
In State v. Johnson, 197 So. 3d 1268 (Fla. 2nd DCA 2016), the defense attorney told the court that his client received no financial benefit from the fraudulent check and that he was a minor participant in a large criminal scheme. The defense was seeking a downward departure under F.S. 921.0026(2)(b). The trial court accepted the representations of the defense attorney and gave the defendant a downward departure sentence of probation. The Second District Court of Appeal reversed stating that the defense attorneys’ statements were not evidence. It would have been easy for the defense attorney to call the defendant as a witness to establish the basis for the downward departure. It can be a big mistake to hire the wrong attorney. You need an aggressive and experienced criminal defense attorney if you are charged with a crime.
The criminal defense attorneys at Rhoden Law Group have decades of experience in sentencing hearings. The sentencing hearing is like a mini trial where witnesses are examined and cross examined, and attorneys make arguments based on the evidence presented. You need an experienced Cocoa criminal defense attorney to prove mitigating circumstances exist and to convince the judge to depart downward.
Florida Statute 921.0026 lists fourteen mitigating circumstances a defendant can use to try and get a court to depart downward from the sentencing guidelines lowest permissible sentence. These are sometimes referred to as statutory mitigators. Besides the fourteen listed statutory mitigators, a defendant can argue that other circumstances should be considered as mitigating. These types of mitigating circumstances are sometimes referred to as non-statutory mitigators.
F.S. 921.0026(2)(a) provides a court may depart downward because of a plea bargain. A plea bargain is where the State and the defendant agree on a sentence. If the judge also agrees with the proposed sentence, the judge can depart downward. This is the most common type of downward departure. The plea must be negotiated with the State. A plea to the court does not qualify. In State v. Geoghagan, 27 So. 3d 111, (Fla. 1st DCA) the appellate court reversed a departure sentence based on a plea to the Court.
F.S. 921.0026(2)(b) provides a court may depart downward if it finds the defendant was an accomplice and minor participant in the crime. This factor may apply if a defendant is merely the driver for a drug deal or supplied information to burglars about where money was located.
F.S. 921.0026(2)(c) allows a sentencing court to depart downward from the lowest permissible guidelines sentence if the defendant’s ability to appreciate the criminal nature of his conduct or to conform his conduct to the requirements of law is substantially impaired. This statute would apply to someone with substantial intellectual deficits or mental health issues. It would apply if someone did not have the ability to know what he was doing was a crime. Also, even if the person knew what he was doing was a crime, but could not stop himself, the statute could apply.
In State v. Johnson, 79 So. 3d 146 (Fla. 4th DCA 2012), the trial court imposed a downward sentence where a sex offender failed to properly report his status. The law had recently changed, and the defendant claimed he was unaware of the change. The Fourth District Court of Appeal reversed stating that it was not enough that the defendant was ignorant of the law, he must have been unable to understand the new law. In contrast, in State v. Fontaine, 955 So. 2d 1248 (Fla. 4th DCA 2007) the Fourth District upheld a downward departure where the defendant had been in a serious accident, had multiple surgeries, was overmedicated, and depressed. The crucial factor was that the defendant’s capacity to understand what he was doing was wrong was impaired.
Criminal statutes provide defenses for defendants who are incompetent to stand trial or who were insane at the time of the crime. F.S. 921.0026(2)(c) can provide some relief for defendants who do not quite meet the requirements of either of the incompetent to proceed or insanity defenses. If a defendant is found incompetent to proceed or insane, they cannot be convicted of a crime. F.S. 921.0026(2)(c) comes into play, after conviction, when a court is considering a sentence.
To use F.S. 921.0026(2)(c) an expert witness is often required. An aggressive and experienced criminal defense attorney will know what expert to use. At Rhoden Law Group, we have decades of experience using expert witnesses. Knowing the right expert to use in a particular case only comes with deep experience and knowledge. At Rhoden Law Group, this knowledge and experience has been built up during our many years of practicing law.
In State v. Milici, 219 So. 3d 117, (Fla. 5th DCA 2017), the defendant had a history of mental illness. In imposing a downward departure sentence, the trial court noted that the defendant’s mental capacity had been in question as it related to both his intelligence quotient and his competency. The State appealed and the Fifth District Court of Appeal reversed. The Fifth stated there was no expert testimony to establish the defendant’s mental health issues prevented him from appreciating the criminal nature of his conduct. The bottom line – do not ask the trial judge to be your mental health expert – the appellate court will reverse every time.
A trial court can depart downward under F.S. 921.0026(2)(d) if a defendant requires specialized treatment for a mental disorder or a physical disability and the treatment is not available in prison. A defendant must be amendable to treatment and the mental disorder cannot be related to substance abuse or addiction.
In State v. Chubbuck, 141 So. 3d 1163, (Fla. 2014) the Florida Supreme Court upheld a trial court’s decision to revoke a defendant’s probation and sentence him to the ninety-six days in jail he had already served. The sentencing guidelines called for a sentence of 37.65 months in prison. Mr. Chubbuck was 66 years old and as a result of his service in the military required specialized treatment for mental and physical disorders. The trial court called Mr. Chubbuck a hero for his service in Vietnam and said it would be ludicrous to put him under the supervision of the Florida Department of Corrections.
Nevertheless, the State appealed arguing that the defendant did not prove that the specialized treatment he needed was not available in prison. The State appeared to be on firm legal ground as the district courts of appeal had ruled that the defendant must prove the specialized treatment required was not available in the Department of Corrections. The Florida Supreme Court ruled a defendant did not have to prove the specialized treatment was not available in the Department of Corrections. The court stated that the statute did not contain a requirement for the defendant to prove the needed treatment was not available.
As a practical matter, it would be difficult to prove specific treatment is available or not in the Department of Corrections. The Florida Department of Corrections is the largest agency administered by the State of Florida with a $2.4 billion budget, 23,000 employees, and 95,000 inmates. The Department is so large that it has trouble keeping track of everything it is doing.
However, it is good practice if you are trying to get a trial court to apply F.S. 921.0023(2)(d) to utilize an expert. The right expert can testify about the defendants medical and mental condition and if the defendant is amenable to treatment. The expert may also know what treatment is or is not available in the Department of Corrections. While it is always hard to prove a negative such as, treatment is not available, the expert can still give an informative opinion based on their knowledge and experience.
F.S. 921.0026(2)(e) provides for a downward departure if the need for restitution to a victim outweighs the need for a prison sentence. This situation may occur if a victim has suffered a substantial monetary loss and the defendant, if he is not in prison, can compensate the victim for all, or a large portion, of that loss. Sometimes a judge may agree that, “working off your debt”, is a better form of rehabilitation than a prison sentence. An experienced criminal defense attorney will also try to persuade the victim to agree the defendant should stay out of prison so he can pay restitution. A judge may agree to probation and restitution even if the State Attorney wants prison time if the victim wants or needs restitution.
It is somewhat counterintuitive, but a defendant must prove a victim suffered a loss for this factor to apply. Usually in a sentencing hearing, a victim presents evidence of a loss so a court will order restitution. In State v. Rogers, 250 So. 2d 821 (Fla. 5th DCA 2018), the appellate court reversed a departure sentence because the defendant failed to prove any loss sustained by the victim.
In cases involving property, but not injury or opportunity for injury to persons, Florida Statute 921.185 authorizes a court, in its discretion, to impose a sentence that uses restitution to mitigate the severity of a defendant’s otherwise lawful sentence. A criminal defense attorney should utilize both statutes when seeking a downward departure.
F.S. 921.0026(f) provides a mitigating circumstance if, “The victim was an initiator, willing participant, aggressor, or provoker of the incident.” In State v. Rife, 789 So. 2d 288 (Fla. 2001) the Florida Supreme Court held this mitigating circumstance could apply in cases involving a minor child victim. In Rife, the victim was seventeen years old. Holland v. State, 953 So.2d 19 (Fla. 2nd DCA 2007) involved a child victim who was 12 years of age when sexual activity began. The trial court was of the opinion the Supreme Court would not reach the same conclusion in a case involving a 12-year-old victim. The appellate court reversed stating that Rife did not restrict its holding to victims approaching legal age. The appellate court also noted that since Rife was decided (in 2001) the Florida Legislature had not amended the statute. In the nineteen years since Rife was decided, the legislature had not amended the statute.
Under F.S. 921.0026(2)(g) a trial court can downward depart if it finds the defendant acted under extreme duress or the domination of another person. Extreme duress in criminal law could apply if someone were holding a gun on the defendant’s child or made a credible threat to harm the defendant. In some circumstances, this could be a complete defense, in other circumstances, only enough to get a reduction in sentence.
Domination of another would indicate a longer relationship between the person in charge and the person being dominated. All too often this involves a boyfriend who is a criminal and a girlfriend who allows herself to be lead into criminal activity. In State v. Sisco, 254 So. 3d 1139 (Fla. 3rd DCA 2018) the Defendant, Sisco, had worked as a house sitter for many years in Key West, Monroe County, Florida. When the homeowners were away, Sisco would take care of the house and yard. Soon after she got involved with a man with a long criminal history he pressured her to do criminal acts she had never done before. The trial court found Sisco acted under the domination of her boyfriend. The State appealed. The Third District Court of Appeal used the Merriam-Webster’s Dictionary to define “domination” and upheld the trial court’s ruling. Crucial evidence at Sisco’s trial was the boyfriend’s testimony that he pressured Sisco.
F.S. 921.0026(2)(h) provides a judge may sentence a defendant below the guidelines if before the defendant was caught, the victim was substantially compensated. This could happen where a thief steals a car then returns the car after a wave of remorse. For good measure, the thief leaves a hundred-dollar bill in the car and a note saying how sorry they are. Needless to say, this does not happen very often.
F.S. 921.0026(2)(i) allows a judge to downward depart if a defendant cooperates with the State Attorney to resolve the current offense or any other offense. In State v. Davis, 537 So. 2d 192 (Fla. 2nd DCA 1989), a defendant gave police information resulting in the arrest of three codefendants, and in solving numerous other crimes. At sentencing, the police officers testified about the defendant’s cooperation. The court upheld a downward departure sentence.
F.S. 921.0026(2)(j) provides a mitigating circumstance under Florida law if, “The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” All three elements must be met to allow a trial court to downward depart. In State v. Tice, 898 So. 2d 268 (Fla. 5th DCA 2005), the Defendant was found guilty at trial of resisting an officer without violence and burglary of a dwelling. The Criminal Punishment Code Guidelines called for a sentence of 34.2 months in prison. The trial court departed downward and imposed a sentence of eight (8) months incarceration. The Fifth District Court of Appeal agreed that the Defendant had shown remorse but disagreed that the crimes were isolated incidents. The Defendant had been previously convicted of prior felonies, violation of probation, and a misdemeanor. The Fifth District Court of Appeal found the downward departure was improper and remanded the case to the trial court for a resentencing in accord with the guidelines.
In State v. Merritt, 714 So. 2d 1153 (Fla. 5th DCA, 1998), the State appealed a downward departure sentence. The Fifth District affirmed the imposition of the downward departure sentence. The Court stated the three sex acts committed by the Defendant had been “isolated” because they were something the Defendant had never engaged in before, in his 25-year lifetime, and they took place in a relatively short period of time. They noted the Defendant had no prior criminal history.
In State v.VanBebber, 848 So.2d 1046, (Fla. 2003), the Defendant plead to DUI manslaughter and DUI with serious personal injury. The Defendant scored 175.9 to 240 months prison time. The trial court found F.S. 921.0026(2)(j) applied and suspended a sentence of 200 months incarceration. On appeal the State argued the mitigator was not available because DUI cannot be committed in an unsophisticated manner. The Florida Supreme Court disagreed and affirmed the downward departure. The Court stated,
“Instead, when all of the phrases of this statutory mitigator are read together, the more reasonable view is that unless the crime involves some sophistication, this mitigator may be used if the trial court finds that the offender has shown remorse and the offense was an isolated incident. Indeed, it is logical to conclude that the legislature intended to withhold the benefit of this statutory mitigator from a defendant who, although he or she has demonstrated remorse for an offense that was an “isolated” incident, nonetheless committed the crime in a sophisticated manner either in its planning or execution.”Pariente, J. concurring
In State v. Murphy, 124 So.3d 323, (Fla. 1st DCA 2013), the Defendant was found guilty by a jury of using a computer service to solicit a person believed to be the parent of a child to engage in unlawful sexual conduct with a person believed to be a child, and with traveling for the purpose of engaging in unlawful sexual conduct with a person believed to be a minor.
Law Enforcement placed an advertisement on Craigslist that led to the Defendant contacting what he believed to be a minor’s father. The Defendant attempted to convince the “father” that he was a suitable sexual partner for the non-existent child. After email communication via a mobile phone the officer and Defendant arranged to meet at a location where the Defendant would have sex with the 14-year-old girl.
Upon conviction, the Defendant scored 42 months in prison. The trial court departed downward, withheld adjudication on several counts, and imposed a sentence of concurrent terms of nine months in jail followed by five years sex offender probation. The court based the departure on F.S. 921.0026(2)(j). The State, in its cross appeal, argued, in particular, that the trial court erred in finding the crimes were committed in an unsophisticated manner. The First District affirmed the trial court’s ruling. The First District stated,
“Here, Murphy used his mobile phone to access craigslist online, answer an ad posted on the web site, and communicate by email with Officer Huston. It was reasonable for the trial court to conclude that such communication tools and modes are so ubiquitous today as to no longer require any level of sophistication to use them.”Murphy, 124 So.3d at 331
The Court’s ruling certainly indicates more is required of a Defendant than just routine actions and the actual commission of a crime to find sophistication.
F.S. 921.0026(2)(k) allows a court to downward depart if it finds the defendant was too young to appreciate the consequences of the offense. This factor does not apply to many cases as Juvenile Law and Youthful Offender statutes deal with young defendants. In State v. Gilson, 800 So. 2d 727 (Fla. 5th DCA 2001), the defendant broke into a neighbor’s home and stole a Kia Sportage. Gilson and his mother testified at the sentencing hearing about his serious alcohol and marijuana problems. The Fifth District Court of Appeal ruled that Gilson’s age of 18 alone was not enough to support this mitigating factor. However, when his young age was combined with his emotional immaturity, the factor was supported.
F.S. 921.0026(2)(l) states that a trial court can depart downward if a defendant is to be sentenced as a youthful offender. Florida Statute 958.04 is the youthful offender statute and it provides that any person between the ages of 18 to 21 can be sentenced to probation, community control, or up to six years in prison. The intent is to give young defendants a less severe sentence than they might otherwise receive under the Criminal Punishment Code. In State v. Ford, 27 So. 3d 725 (Fla. 3rd DCA 2010) the sentencing guidelines dictated a 21 month to five-year prison sentence. The trial court proposed a downward departure of two years probation based on the need for restitution. The defendant qualified as a youthful offender, but his trial attorney failed to request such a sentence. The appeal court reversed the departure based on restitution not being a valid reason to depart and that the trial court did not make any findings regarding youthful offender. The case was remanded to the trial court.
Ford highlights the need for you to hire a good criminal defense attorney. Mr. Ford could have been sentenced as a youthful offender but was not because his attorney failed to raise the issue.
F.S. 921.0026(2)(n) could be called the save your friend statute. The statute provides a judge can downward depart if a defendant was caught for some crime while trying to obtain or provide medical assistance for a person who has overdosed. Notice the statute says, “obtain or provide”. This means you can drive your friend to the hospital or provide the medical care yourself.
In the Quentin Tarantino movie, Pulp Fiction, Mia Wallace, played by Uma Thurman, is near death due to a heroin overdose. Hitman Vincent Vega, played by John Travolta, drives Mia to a drug dealers house to get a shot of adrenaline to the heart. Under F.S. 921.0026(2)(n), Vincent is providing Mia medical assistance. If as a result of this episode, Vincent was convicted of some crime, he could use 921.0026(2)(n) to request a downward departure.
A more common scenario is where a group of friends are using drugs when one person overdoses and a call is placed to 911. Paramedics and police arrive, and a participant in the criminal activity tells the paramedics and police what drugs they were using. If this person is arrested and convicted of a crime, they can ask the judge for a downward departure sentence.
F.S. 921.0026(2)(m) provides a judge may depart downward and sentence a defendant to drug treatment instead of prison. There are several requirements that must be met. First, the defendant’s offense cannot be a violent felony. A violent felony is any felony which involves the use or threat of physical force or violence against a person. Second, the defendant must score 60 points or fewer on the Criminal Punishment Code scoresheet. Third, the Court must determine the defendant is amendable to treatment. Fourth, the defendant must otherwise be qualified to participate in treatment. If any of the factors are not proven the sentence can be overturned on appeal.
In State v. Knight, 182 So.3d.887 (Fla. 5th DCA 2016), the appeal court reversed the trial court’s departure sentence. The defendant only scored 52.8 points and his crime of grand theft was a nonviolent felony. However the trial court made no determination that the defendant was amenable to treatment or was otherwise qualified to participate in treatment. Mr. Knight’s attorney should have made sure the trial court made the necessary findings. That failure could have resulted in Mr. Knight being sentenced to prison.
The Court can consider mitigating circumstances not listed in F.S. 921.0026(2). These are sometimes called non-statutory mitigators. In State v. Montanez, 133 So.3d 1151 (Fla. 4th DCA 2014), the trial court imposed a downward departure sentence because the defendant was, “experiencing great difficulty in his personal life due to his divorce which made him more susceptible to substance abuse”. The Fourth District approved the mitigating circumstances as grounds for downward departure. However, the Fourth District found there was no competent, substantial evidence to support the departure.
In State v. Steadman, 827 So. 2d 1022 (Fla. 3rd DCA 2002), the appellate court upheld a downward departure sentence for a non-statutory mitigator. The police in Steadman made six separate purchases of crack cocaine from the defendant. The police admitted that they did not arrest Steadman after the first purchase because they wanted Steadman to face a lengthy prison sentence. This is called sentence manipulation. The sentencing guidelines for all six case indicated a guidelines range of 15.4 years to life in prison. The trial court sentenced Steadman to seven years in prison. After going through a lot of legal reasoning the Third District Court of Appeal thought this was fair considering the conduct of the police.
To use non-statutory mitigation, you need an attorney that is creative and aggressive. The non-statutory mitigation must be proven to the court. A skillful attorney may call witnesses, present documents, develop expert witnesses, and be ready to counter any presentation the State may make. You need to find an experienced attorney near you to help with your case.
The Criminal Punishment Code states in Florida Statute 921.002(1)(b) that the primary purpose of sentencing is to punish the offender. Most judges are reluctant to depart downward from the guidelines sentence. The aggressive and experienced attorneys Rhoden Law Group can help you with your case.
Call Rhoden Law Group today for a free initial consultation, Call or Text: 321-549-3162. If you are charged with a serious crime, you need a serious law firm working for you. Rhoden Law Group has the experience you need and three offices to serve you: Rockledge, Eau Gallie, Melbourne. If you live in Palm Bay, Titusville, or anywhere in between, we are near you.