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.

I normally describe the legal system as an upside down letter Y. It starts with an investigation, follows with an arrest and ultimately leads to a trial or some kind of sentencing. This question involves materials strictly on the side of the upside down letter Y that leads toward sentencing. Although I don’t go into this very often in my explanations or diagrams, this question is perfect for pointing this out. There will be a negotiated settlement or a sentencing hearing. A negotiated settlement in a misdemeanor case can be done entirely on paper, and the client need not even appear in court. This is very rarely done because most lawyers do not have a whole lot of trial experience. Only about one percent of all cases go to trial, and less than one percent of all lawyers are certified specialists in criminal trial litigation.

As a result, most lawyers who practice criminal defense law spend a majority of their court time in various types of proceedings other than trial. This includes sentencing after trial. So, if someone has an agreed upon sentencing and there is no trial, then there will be the submission of written paperwork in court (presuming that this is not one of the scenarios in which people can have their cases settled without having to go to court). I do this quite frequently. It spares people a lot of stress and anxiety. Otherwise, the person will have to go to court, the written documentation will be forwarded to the court and then the judge will engage in what is called a plea colloquy.

A plea colloquy is a conversation between a judge and a criminal defendant who is about to be sentenced. The purpose of a plea colloquy is to make sure that the plea is entered freely and voluntarily with the full understanding of all rights that are given up prior to sentencing. Plea colloquies can be very serious. I often tell the story of the guy who didn’t control his stress and consequently turned four years of probation into 35 years in state prison. That happened because his mind was not in the right place while he was undergoing a plea colloquy in open court. So, if someone is sentenced in open court according to a plea agreement or a plea bargain, they should have a full understanding of what is going to happen during the plea colloquy. They should answer the questions honestly and make sure that they have their wits about them because that’s one time in life when, as we say in the south, having your snap is absolutely critical. Once that happens, the person will follow through with the sentence. It may require that they report to a probation officer, or they may be incarcerated on spot.

Another type of sentencing hearing is a contested sentencing hearing, which mostly occurs in felony cases. It can also occur in a number of misdemeanor cases, ranging from DUI to possession of drugs or paraphernalia. At these types of hearings, sometimes there is no agreement at all and it’s a straight up plea to the court. In other scenarios, there is a partial agreement and certain aspects of the sentencing are left up to the court. There will be a plea colloquy, but evidence may be presented to the court to show legal grounds for increasing or decreasing a sentence, known as aggravation or mitigation respectively. A client has the option to offer testimony or to continue remaining silent. Sometimes it’s best to offer testimony, sometimes it’s best not to say a word; it just depends on the facts of the case, the type of person involved at sentencing and other types of factors that we obviously can’t see in advance. Other witnesses can also give testimony at a sentencing hearing.

One of my favorite ways to get a more favorable sentence at a sentencing hearing is to do a specialized treatment sentencing departure, which is extremely difficult. Most lawyers do it with what’s known as “the battle of the experts.” Each side will try to offer what they think is appropriate in terms of the mental health or substance abuse mitigation or aggravation (hence the name, “the battle of the experts”). I completely eliminate this battle by using single photon emission computed tomography (SPECT), which allows for psychiatric brain imaging. I find it amazing that in 2017, people undergo chemical surgery on their brains for mental health disorders after speaking to a psychiatrist who does not look at the organ. They simply talk to the patient for about 45 minutes. It seems ridiculous. This would never be allowed with a broken bone, but it still happens in some courtrooms all across the state and country. The proper way to handle mental health and substance abuse mitigation in Florida is by using specialized treatment departure and SPECT brain imaging. I’ve found over the course of my career that it is probably one of the most important impacts on influencing a judge or prosecutor.

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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