WHAT HAPPENS AT SENTENCING?
A defendant who has been given a sentence of jail time often wonders whether or not they will be taken to jail immediately. This is the exact reason why no one should enter a plea of no contest or guilty at their first court date outside of the jailhouse, and something that an experienced defense attorney would never allow to happen. A courthouse surprise can (and often does) happen. I am quite certain that at this very moment, a defendant in Florida is being taken immediately to jail because they decided to throw themselves at the mercy of the courts during their sentencing hearing, likely without a defense attorney. So, in short: yes, someone may go to jail immediately after sentencing, possibly until their trial. However, if someone is represented by a competent defense counsel, then that may not be the case. Before you show up in court for a sentencing hearing, it is important that you are equipped with all of the relevant information that will help you set your expectations and know that there is a path forward regardless of the outcome of this one day.
Jail time in a criminal case may sometimes be negotiated by a defendant and their attorney into a scenario where it becomes a special condition of probation, beginning at the first hearing. Because it’s a special condition of probation, it doesn’t have to be served immediately. Moreover, there are cases in which small amounts of jail time can be served on weekends. For most people, the weekend starts Friday night and ends Sunday night, and many jail sentences with a weekend requirement reflect that. These types of penalties can work to accommodate your life so that these charges do not completely derail your career, which can ultimately impact the quality of life for your dependents such as your spouse or children.
However, not every defendant has a weekend on traditional weekend days. To address this, the weekend can be defined during the sentencing process. If a defendant goes to court on their own, enters a plea of no contest or guilty with the prosecution, and is then given a sentence to jail, then they are going to go to jail immediately almost 100% of the time. Working with an attorney is one of the best ways to understand what to expect on the court date of your sentencing, and to have a defense counsel working towards an agreeable outcome for your case. We would have had plenty of time together in court by this point and will be able to discuss the reality of your sentencing as a defendant before appearing in court this final time if you have been proven guilty.
Sentencing for a Felony or Misdemeanor
In many other cases, if a defendant is found guilty and sentenced to jail at a hearing in the felony or misdemeanor court, they will be taken to jail immediately. There are also those circumstances whereby the jail time served is subject to negotiations with either the judge or the prosecution during their sentencing hearing. For example, someone might be able to serve it on weekends. In very rare scenarios, a person’s report date can be later than the sentencing date. This has to be done very carefully because once the judge issues an order imposing jail time, there are a lot of rules, regulations, and laws that prohibit judges from doing certain things.
In the federal system, it’s not uncommon for somebody to receive a sentence of time in prison and then be told to report several weeks after the sentencing hearing. In a state court, this doesn’t take place. If someone gets straight time, they have to report immediately in almost every case. If someone has a split sentence with probation, community control, or house arrest as part of their sentence, then the judge may determine that jail time may be served in smaller bites over a longer period of time.
What factors does a judge consider when determining a sentence?
One of the most important factors in court is going to be the presence or absence of a minimum mandatory sentence in the case. In a misdemeanor case, the most common example of minimum mandatory sentencing involves DUI litigation. Someone who is convicted of a DUI within five years of any previous DUI in any state or other jurisdiction is subject to a minimum mandatory period of 10 days in jail. In most cases, minimum mandatory sentencing is going to apply in felony cases. The one example that comes to mind is a charge called drug trafficking. For certain types of trafficking, there is a three-year minimum mandatory prison sentence. In other types of trafficking, it’s seven years. You always have to determine, preferably with an attorney, if you have a case that involves minimum mandatory sentencing. Your defense counsel will work to identify all possible alternatives in your case. They will need to review the information with you in order to determine whether or not this is possible before any sentencing hearings in court.
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Minimum Mandatory Sentence
There is another type of minimum mandatory sentence known as a rule 3.992 point-based mandatory sentence. This means that when a defendant shows up in court and is charged with multiple felony offenses, the most serious of the charges is listed as the primary offense, and points are assessed based upon the offense severity ranking level of that charge. There are ten offense severity ranking levels. The higher the ranking level, the more points, and the more points, the greater likelihood of an incarcerate sentence at the end of the trial. The magic number for the court is 44. Anything about 44 points must be a state prison sentence. Anything below 44 points but above 22 points may be a state prison sentence, depending on the case. Anything below 22 points is not a state prison sentence unless the court proves a legal ground for what is known as aggravation.
If an aggravator is proven, then the person can get a prison sentence despite having scored less than 22 points. As your attorney, I will be able to go through your score and the potential of an aggravator before our day in court. The rule that provides for these types of sentences has two components: point calculation under subsection A and grounds of mitigation recognized by the legislature under subsection B. There are 14 grounds of mitigation that are recognized under subsection B. My favorite is the SPECT brain imaging-based specialized treatment departure sentence, simply because I have found over the past 12 years that it is the single most effective way to get a mitigated sentence. Every single person who was in fact guilty of a criminal act has come back with an abnormal brain scan. Because of this, every single person I’ve sent qualifies for a downward departure ground based upon this particular lawful ground of mitigation in court and a trial.
What Does the Judge Consider?
The judge will consider a number of different things at sentencing hearings within all of those different parameters, including testimony from witnesses. The complaining witness or victim of a criminal episode has a legal right to be present at any sentencing hearing in court and may offer testimony. The defendant, family members, friends, employers, and others may also testify. When we do the specialized treatment departure, we almost always have a medical expert testify in order to explain to the court why that person has a physical disability in their brain and how it affected their thinking. It is usually related to a traumatic brain injury, but not always. A medical expert can also testify for the prosecution about what an appropriate treatment for rehabilitating that person may be as an alternative to them being found guilty and receiving a harsh sentence from the court. Specialized treatment departure is an example of restorative justice. As far as I know, I am the only lawyer in the United States that uses it on a regular basis, and we can explore this option before your sentencing hearing and through the duration of your case.
So, when considering all of the different facts, information, and circumstances that a judge will look at in court regarding the defendant, some things may make a difference and some things won’t matter at all. Sometimes the judge and court are bound by the laws of the legislature. At the end of the day, it’s very important to be careful with your sentencing hearing and ensure that your lawyer will know what they are doing weeks or months in the future, while in court and possibly in trial.
What is a pre-sentence investigation and report?
A pre-sentencing investigation will take place in nearly all felony cases, and involves a Department of Corrections officer looking through all available information on behalf of the court regarding the criminal history of a defendant, as well as insight into their personal life, employment records, and more. This investigation will provide the judge with more insight into your character, and may lead them to determine that there would be possible alternatives sentences if your criminal background is either minimal or non-existent, or the judge may determine that they will seek the maximum sentence if you have a history of criminal charges and have been found guilty of multiple crimes.
However, the information in your pre-sentencing report may give the judge a better idea of how we can work together in order to utilize a specialized treatment departure or some other type of restorative justice so that we can work to ensure that you get the care that you need in order to avoid future legal issues. At your sentencing, we will take this opportunity to discuss the information in the pre-sentencing report in court with the prosecution. This report can result in departures from standard sentences in certain instances, and as your attorney, I will look at all possible outcomes so that we can plan your defense and take advantage of any positives that may arise from this report leading up to trial.
What is a sentencing hearing?
Simply put, a sentencing hearing is the day in court where a defendant appears, often alongside their defense lawyer, and the judge decides the penalty for a defendant. At your sentencing hearing in court, you will learn about the punishment after a guilty finding and may include things like fines, probation, community services, jail time, counseling, educational programs, rehabilitation, and more. Depending on how your trial went, the disposition of the court, and whether or not you are guilty on all counts, we may have been able to work towards alternative sentences that can help you work towards recovery and getting your life back on track. Every sentencing hearing is different and will depend on many specifics of our time in court together.
If you are not guilty of any charges, then you will not need to go through a sentencing hearing at all, because there will be no sentence for a defendant who is proven innocent, or if the case is dismissed.
What happens if you are sentenced directly to jail after a sentencing hearing?
If you are sent directly to jail following your hearing, we will work to identify the path forward after this day in court. This does not necessarily mean that your case is completely over, as we may have options to appeal to a higher court, or will have identified other ways that we can have your sentence reduced or your penalty lessened. As a defendant working with me, we would have discussed this day many times leading up to it, so depending on a range of unique factors in your case we will communicate about what to expect and what we will do next. This is one of the many reasons that it is so important to show up to court with an attorney so that you have experienced legal counsel to suggest paths forward that you would not immediately recognize.
Depending on the amount of jail time you receive, and whether or not there are additional charges that need to be resolved through more time in court, we would continue to work together if the situation calls for it.
Disclaimer: This article is in response to questions frequently asked of Mr. Cobb about court proceedings and is a slightly edited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
For more information on going to jail after a sentencing hearing, a free initial consultation is your next best step. Get the information and legal answers you are seeking by COMPLETING THIS LINK TO A INTAKE CONTACT FORM AND SCHEDULE AN APPOINTMENT.
Criminal Defense Lawyer in Destin, FL
For years, criminal defense attorney Stephen G. Cobb has been helping individuals accused of crimes to beat their charges and maintain their freedom. With an unparalleled reputation as a tenacious attorney, Mr. Cobb has a proven track record for winning trials in the Okaloosa County criminal courts. If you’ve been arrested, accused of a crime, or are under investigation, you need to act quickly. Don’t take chances with a public defender who has a massive caseload. Mr. Cobb offers his clients personalized, focused representation. Call immediately to schedule your consultation.
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