When Does Sentencing Actually Take Place In A Criminal Case?

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 Florida, a criminal case sentencing will happen at one of the several different points. As a practical matter, anyone arrested for a misdemeanor could enter a plea of no contest or guilty. If that were the case, they would be sentenced immediately after the first court date, known as arraignment. Some counties, including Okaloosa County, call arraignment court “plea day,” so the terminology can be a little bit confusing for the uninitiated. Frankly, if criminal defense lawyers are not familiar with the different counties within the same circuit, then the terminology can be confusing. Either way, the first opportunity will be at the first hearing outside of the jail, which is usually plea day. In the case of misdemeanor cases, it is referred to as arraignment or violation of probation arraignment.

If someone is unrepresented, then they are up against the office of the state attorney who has a lot of experience in making sentence recommendations before the court. They are smart enough to know that when they negotiate with an unrepresented person, they do not have to give the best deal. As a result, they never do. One of the key components of crime and punishment is the political aspect. The state attorney is an elected official. If the state attorney is viewed as giving plea bargains that are too favorable, then they run the risk of not being reelected. Something that helps the office of the state attorney is the fact that the public defender’s office is severely under-funded. It has entirely too many cases in order for the assistant public defenders to devote the necessary amount of time and energy to proper presentation of mitigation material, and to reduce someone’s sentencing exposure.

Another point at which people can be sentenced is on plea day. In felony cases, people are sentenced on docket day. When we are talking about the types of sentencings that occur long after someone has been formally charged, we find that there have usually been plea negotiations between lawyers. At that juncture, either a plea of no contest or guilty will be entered and each side will present evidence, or the judge will ratify a plea bargain. Most of the sentences that are imposed are going to be sentences that are agreed upon by the parties and do not depart from the requirements of the law.

For example, a judge may wish to sentence someone to a non-incarcerate sentence, and the prosecutor may feel the same way. However, there are certain scenarios where the legislature has decided that mandatory minimum sentencing applies. Recommendations have to follow along the lines of those minimum mandatories unless charges are substituted, reduced or otherwise disposed of as part of the plea bargaining process. Finally, sentencing can occur after a trial, whether it is a bench trial without a jury, a violation of probation or violation of community control hearing, or after a jury verdict. These types of sentencings can occur immediately upon rendition of the verdict or finding of guilt in the case of some type of bench trial. However, the judge will normally order a pre-sentence investigation and sentencing will be held at a later date.

It is important to note that in juvenile cases, a pre-disposition report is ordered in place of a pre-sentence investigation. It is essentially the same thing, and it is prepared by another branch of the government. The recommendations in pre-disposition and pre-sentence review reports are not nearly as favorable to the defendant as the recommendations made by the defendant’s lawyer. Sentencing should be held with timing in mind. There are times when a defense lawyer will want someone to be sentenced when they do not have a deal and other times when they may wish to delay or move a sentencing up. It all depends upon the facts of the case, the client’s objective, the law that applies and a number of other factors that can go into making sentencing a win or a loss for a particular client.

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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