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.
Yes, there is an opportunity to reduce a sentence at a sentencing hearing. This takes us into the area of what is known as post-conviction relief. There are a couple of different ways that post-conviction relief can happen. One is under rule 3.800 of the Florida Rules of Criminal Procedure. It lays out the different ways that the trial court retains jurisdiction to modify or correct a sentence. For example, the number one ground is under subsection A. For some reason, the sentence is illegal. This doesn’t happen very often, but when it does happen, it usually involves people who have multiple cases, multiple counts or a combination of both. Between the three of those choices, the combination of multiple cases and multiple counts is where you are more likely than any other scenario to find an illegal sentence. The appropriate remedy is for your lawyer to file a motion to correct a legal sentence under rule 3.800.
All of our plea agreements in Florida say essentially the same thing when it comes to asking for a different sentence later. In order for a sentence to be changed, there has to be a substantial change in circumstances that occurs after sentencing. If there is a substantial change in circumstances that occurs after sentencing, then rule 3.800 provides the mechanism by which the sentence can be modified. When you are past that point, you are starting to look at appellate remedies. An appellate remedy is where you appeal the judgment, the sentence or both. In most cases, someone is going to appeal the judgment and the sentence of the court in order to ensure that all of the bases have been covered.
The next type of remedy is what is known as ineffective assistance of counsel motions, of which there are two basic types. These motions are very rarely granted. There is a rule 3.850 and a rule 3.851. Under a rule 3.851 motion, the allegation is that the lawyer was ineffective in a death penalty case. For all of the other cases, the appropriate remedy for ineffective assistance of counsel is a rule 3.850 post-conviction motion. Again, these types of motions are very rarely granted because everything is done during the pre-trial, trial and post-trial phases of a case in order to ensure that there are no legal errors. A legal error has to be quite substantial in order to get a change in sentence due to ineffective assistance of counsel.
There is an example of sentencing modification that most people don’t think of. It would occur in a situation where someone has been placed on probation at the Fort Walton Beach Courthouse for a period of three years for a particular felony offense, but they complete all of the requirements of probation by the end of the second year. At that point, they are two-thirds of the way into their sentence and all they are doing is paying the cost of supervision. All counseling, fines, court costs, other fees and other requirements have been completed. That is an example of a substantial change in circumstances that has occurred after sentence and justifies an early termination of probation. I tell each and every one of my clients to do everything they possibly can to comply with probation and complete all requirements of probation early. Some judges in certain counties will consider a motion to terminate early at the 50% mark.
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It’s critically important to have input with your legal team before sentencing. In many cases, it’s also important to have input after sentencing, especially when it comes to an early termination of probationary supervision. The faster probation is terminated, the better; there can’t be a violation of a probationary sentence once probation is over.
What Can Someone Do Prior To Sentencing To Mitigate Their Case?
When it comes to things that a defendant can do to help themselves regarding a sentencing hearing, every case is different. One of the most important things that every defendant (and their family members and friends) can do is use our protocol called Coping with Stress During Criminal Prosecution. It is also important that they follow our dress instructions for court. These things apply in virtually every case. It is critically important to understand that while the technical requirements of the criminal law are extremely important, they are not the only things that are important. Understanding the psychology of the courtroom is critical.
All a defendant and their family needs to understand is this: follow the guidelines for coping with stress, and follow the guidelines for what to wear to court. These things are scientifically designed, tried, tested and true. These are easily the two most important things that every single person can do. But again, every case is different. Even cases of the same type are different. For example, one DUI case might have a refusal while another might have a refusal and an accident. A third DUI case might have something new altogether. So, the difference in a case is what determines which strategies will be used at a sentencing hearing.
In cases involving injury or financial loss, I often like my clients to prepare a letter of apology. Now, we inoculate it so that if any plea bargaining falls apart, it does not turn into an admission that is used against my client at trial. I would never want a letter of apology to be weaponized by the prosecution against my client, so we use various techniques to protect our clients when these letters are requested. One of the ways that we do that is by having it reviewed by a lawyer or specifically me. The reason I review them is not to tell somebody what to say, but to make sure that they don’t say something that can have the opposite effect of what they intend. The last thing we want is a letter of apology that makes it worse.
I’m reminded of one animal cruelty case where I had the defendant write his apology letter 10 or 11 times. In the end, we couldn’t use any of them because he could never get the right tone. He became very frustrated with me and demanded that I tell him what to say. My reply was very simple. I told him that it was his letter of apology, not mine. Therefore, the words needed to be his. I told him that he was writing the letter from his point of view, rather than from the point of view of the person who was hurt by the loss of their pet. Letters of apology should always be written from the perspective of the reader, and they should always be reviewed by a lawyer. If it is a SPECT brain imaging specialized departure treatment sentence and that’s what we’re asking for at the sentencing hearing, then the single most important thing that a person can do is to follow the treatment plan and keep good records. Since I never know what an individualized treatment plan will look like until I actually receive it, all I can give is general guidance, and this is it.
Whatever the requirements of the treatment plan are, make sure to follow them and keep records. If medication is recommended, keep records of them. If attendance at a specific type of counseling is recommended, keep records of that. If hyperbaric oxygen therapy is ordered to properly heal the brain, keep records of it. When it comes to things that might have to be proven down the line at a sentencing hearing, one of the most important things to do is keep all of the pertinent records.
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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