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.

In law school, I learned a phrase I have never forgotten: BATNA. What is the best alternative to negotiated agreement? That is the fundamental question of all negotiations. What is the BATNA? The best alternative to a negotiated agreement in criminal law is a trial. If the parties cannot come to an agreement at all, then six people are going to be picked out of the public, a seventh and possibly eighth person will be selected as alternates, and the case will proceed to trial. Sometimes the state and the defense can come to a partial agreement, and sometimes they cannot come to an agreement and one is put in the position to plead straight up to the court.

I try to avoid straight to the court pleas in most cases, because you never know what can go wrong, and I do not want my client risking the maximum sentence on a plea of no contest. If the maximum penalty is going to be the plea offer, my belief is that that case should take no less than five days to trial and if we wear everybody out and it takes twenty, that is even better. They remember that kind of thing, and I think there is not enough of it. Generally speaking in certain cases, that is not the best thing to do. The best thing to do is to take it to the judge. In cases where you are doing a straight up plea to the judge, or a partial deal, it is quite often advantageous to know all fourteen of the departure grounds under the Florida rules of criminal procedure.

Even if you have a bad fact pattern, you can use these departure grounds to try and convince the judge to do something other than what the state wants to do. This is where people run into trouble trying to represent themselves in misdemeanor cases. The felony departure grounds are the same for misdemeanor cases. In other words, there are fourteen legal reasons that allow a judge the discretion to give someone probation or house arrest instead of state prison and a felony case. Those same fourteen reasons can be used in misdemeanor cases as well. Unfortunately, a layperson has no idea what they are. You can search online until the cows come home and unless the person knows the exactly right language to use, they are not going to know that these fourteen reasons not to go to jail or prison even exist.

If they do learn of them, they do not know how to present them in court. This is one of the most important aspects of criminal defense, knowing the statutory and case law grounds for mitigation in cases where people either have very bad cases or are in fact guilty.

What Is The Florida Punishment Code And The Point System?

Both the federal and state system have a standardized punishment code. The idea behind standardized punishment codes is that there would not be a wide disparity between people with similar fact patterns getting radically different sentences. One person gets a super hard sentence. One person gets a super light one. Unfortunately, the moment you throw politics in there, sentences go flying out the window, and that is exactly what has happened. In Florida, when someone is accused of a felony they cannot plead any contest at their first court date because a rule 3.992 score sheet has to be prepared.

This score sheet 3.992 sub paragraph A lists all the different ways points are added, starting with the most serious charge that a person is facing. There are ten offense severity rankings and each one of those rankings contains a certain number of points. The magic number is 44. At the end of the score sheet, the rule is this: If someone scores 0 – 22 points they cannot go to state prison unless the state proves an upward departure ground. If a person scores 22 to 44 points, it is within the discretion of the judge. If a person scores more than 44 points, then the sentence must be a state prison sentence, unless one of the 14 departure grounds is present. Lawyers do not pay enough attention to the departure grounds under rule 3.992 B.

Let us take a look at these departure grounds. Number one is a legitimate un-coerced plea bargain. Number two, the defendant was an accomplice and was a relatively minor participant. Number three, the capacity of the defendant to appreciate the criminal nature of the conduct, or to conform to that conduct and the requirements of the law is substantially impaired. The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction, or for a physical disability, and the defendant is immutable to treatment. Others include the need for restitution outweighs the need for prison. The victim was an initiator, willing participant, aggressor, or provoker of the incident. Another is the defendant acted under extreme duress or domination of another.

Another ground is before the identity of the defendant was determined the victim was substantially compensated. The next would be the defendant cooperated with the state to resolve the current offense or any other offense. Next, the offense was committed in an unsophisticated manner, was an isolated incident, and the defendant has shown remorse. At the time of the offense, the defendant was too young to appreciate the consequences of the offense. The defendant is to be sentenced as a youthful offender. This one sounds good until someone finds out that it usually means four years in juvenile prison followed by two years of probation. That is not the great deal it sounds like it would be.

Next, we have the defendant is immutable to the services of the judiciary treatment phase drug court program and is otherwise qualified to participate in the program. This is the one thing I recommend people avoid at all costs. It is a violation waiting to happen. It almost always results in some jail time, and virtually every person who goes through drug court will relapse at some point. It is so bad that the legislature will not appropriate money to research the effectiveness of drug court. Why will the legislature not pay for research that is badly needed so that we can determine whether or not drug court works? Simply because there are a lot of lobbyists representing a lot of different special interests who do not want that information out. They already know it does not work, yet they will still take insurance money if they can get it for twenty-eight-day inpatient treatment programs.

Then we have the defendant was making a good-faith effort to provide a medical assistant for an individual experiencing a drug-related overdose. Those are the fourteen grounds.

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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