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What Factors Do Judges Consider In Felony Sentencing?

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Most people do not understand what factors judges take into account when coming to a decision regarding sentencing. The first thing a judge is going to look at is whether there are any special enhancements in a particular case that has nothing to do with the point system. For example, if someone is charged with capital sexual battery on a child under twelve, then the point system does not matter because the minimum and maximum sentence are life in prison. Therefore, it is as if the point system is irrelevant. There are many other aspects of law where this type of factor can have more impact than the point system. However, for the vast majority of criminal cases, it easily exceeds eighty percent, and possibly ninety percent. The two important factors the judge is going to consider would involve rule 3.992(a) and rule 3.992(b). Between the two, (a) is going to be more important.

What are these two provisions of Florida Criminal Procedure? First, rule 3.992(a) is a point sheet where points are assessed in ten specific areas. The first areas where points are assessed are what are known as the primary offense. There are ten offense levels that are listed in Florida statute section 921, and for each of these levels, a certain number of points are assessed. These points are duly recorded. Then other things are given points such as whether there are additional counts, whether someone has a prior record, whether or not there is victim injury, whether there is a legal status violation, whether there is a probation, or community control violation. When all of the points have been tallied up, there is a calculation at the bottom.

The total sentencing points have a mathematical formula, and if at the end of that mathematical formula, the total is greater than 44, then the judge must impose a state prison sentence. At every felony sentencing, a judge is going to ask what is the point total. The way they ask for this is has a guideline score sheet been prepared? I find this somewhat amusing because we have not used sentencing guideline score sheets in a long period, but we used them for so long that judges still refer to them as sentencing guideline score sheets. In actuality, they are Florida punishment code score sheets, but I digress. When the judge gets the score sheet, the judge will not even consider the fourteen grounds for mitigation listed in rule 3.992(b) if it is an agreed-upon sentence recommendation. Most judges will accept a guideline sentence, as they call it, a punishment code, as I would call it, if it is within certain parameters relating to rule 3.992(a).

Another way to state that is if the parties are in agreement on a particular sentence, the judge will rarely disturb it and will sentence accordingly. Now, if there is a plea of no contest or guilty, and some or all of the sentencing parameters are not agreed upon, then the defense can raise one or more of the rule 3.992(b) sentencing departure grounds. For example, I recently raised two of them: diminished capacity, and specialized treatment. Of the two, I have had the most success using specialized treatment in conjunction with SPECT (Single Photon Emission Computed Tomography) brain scans. The reason for that is the specialized treatment departure ground has three basic components. Does the person have a mental illness or physical disability? Does the person require specialized treatment?

Finally, is the person amenable to treatment? If all three of those are met, then the judge can legally depart from the Florida Punishment Code. There are thirteen other grounds, but this is the one I would say that I use the most frequently. Then again, I do the most SPECT brain imaging for criminal defense mitigation in the country, if not the world. Therefore, these are factors that the judge takes into account when determining how to sentence somebody in a felony case. It is critically important if someone wants to settle their case without going to trial that they discuss with their lawyer the different types of factors in mitigation that are likely to be affective in their case.

Each case is going to be different; there is no guarantee that one or more factors will affect it, and then finally, we also have to consider that in addition to factors the judge will consider, we have to ask ourselves what are the factors that the prosecutor will consider. If you can get an agreed upon sentence with the prosecutor, and sometimes this requires reductions and substitutions of charge to get what you are looking for, then that is much better than having to do it with the judge directly. I tend to use a half approach, even in SPECT brain imaging cases where I release the diagnostic evaluation to the office of the state attorney, and first approach the prosecutor with negotiation recommendations. If that does not work, then we take it to the judge for a rule 3.992(b) departure hearing.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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