Come Back With a Warrant
Episode 26: Sentencing in Florida: Same Crime, Different Time
Hosted by Brandon Dinetz and Monica Ishak
Intro
Brandon: Welcome back to Come Back With a Warrant podcast. I'm Brandon Dinetz.
Monica: And I'm Monica Ishak.
Monica: Before we kick-start this week's episode, this is your reminder that this podcast is not legal advice. It's real, unfiltered, and for entertainment purposes only. If you need to speak with a lawyer, call one. Or better yet, call us.
Brandon: Call us.
Episode
Monica: Ready? Oh, sorry. Okay, so today, we will be talking about sentencing and specifically, Florida sentencing — I was gonna say guidelines, but not just sentencing guidelines because that does apply to felony cases, just generally what's the process of sentencing, how the process goes, what to expect, the different types of enhancements, and really, this is the only math that I think lawyers, I shouldn't say lawyers, generally —
Brandon: Criminal defense attorneys.
Monica: Criminal defense attorneys do because we have to calculate our client's jail credit and calculate how much time is going towards that sentence that they're going to be receiving, and so there are so many different ways you can get to sentencing, and we'll talk about that, but it sounds, like I think when we were first talking about it, it felt, like, very, like, ah, we'll talk about sentencing, but there's actually so much that goes into it.
Brandon: Yeah, that's true, and you have — sentencing is so different from, based on the severity of the charge.
Monica: Mm-hmm.
Brandon: And when we're talking about sentencing, we're talking about what happens at the end of a criminal case, okay?
Monica: Yes.
Brandon: Not the end meaning an appeal. We're talking about the end of a criminal case where before that appellate process would start, we're talking about a case resolving either in terms of a plea or a trial and a conviction. So once somebody has either been found guilty or entered a plea of guilty, they are sentenced, and that sentence can come from a few different places. That sentence can come from the agreement between the parties, meaning the state attorney's office and the defense. That sentence can come from the statute, like in a DUI where certain probation requirements are required if you're convicted of a DUI, or that can come from the score sheet if we're talking about felonies.
Monica: Yeah.
Brandon: And that is your criminal history being given points and the current crimes you were charged with being given points, and those points are added up and sometimes, and we'll discuss it, there are sentencing minimums where a judge would have to start a sentence at a minimum. But this episode is gonna really almost answer the question of how can 2 people be charged with the same thing and be sentenced differently?
Monica: Yeah. Okay. And that —
Brandon: To a certain extent.
Monica: To a certain extent —
Brandon: Yeah.
Monica: — that'll answer it because I'm sure there's a lot of answers you could give for that question.
Brandon: Yeah. But the truth, what this comes down to, what we're talking about is the process of sentencing as a whole.
Monica: Yeah, and so specifically when I said sentencing guidelines is, that's exactly what Brandon was describing in felony cases where it's a score sheet that shows your rap sheet and it computes the number that says this is the minimum. And so in order, that was created in an attempt to try to make it kind of so that people who have similar histories or are in similar situations in terms of what they were charged with, not specific, fact-specific, these are things that would guide the judges or the courts to give a certain sentence and in the same sense where it's charges, there's, you know, mitigation or departures, downward departures in that situation. So there are so many ways that we can get there, and you said guilty plea, and I think that's because in Palm Beach County, we're so used to talking about guilty. Could be a no contest plea as well. So no contest is just the same exact thing legally as a guilty plea. It gives you the same effect. Some people are just more comfortable saying that they plead no contest and they'll accept their sentence and that's literally what it is. So —
Brandon: No contest is saying that you acknowledge that there is evidence and you could be found guilty, not that you are saying you are guilty, but you could be found guilty and you're acknowledging that. That's really what no contest is.
Monica: No contest. If they resolve it with no contest, then there is —
Brandon: A difference.
Monica: — less ramifications in a civil case than if they were to be found guilty or they were to admit guilt themselves.
Brandon: Right.
Monica: 'Cause then there's, like, points with your license —
Brandon: Right.
Monica: Right. They have a civil case going on because there was a car accident involved in whatever the criminal case was, their attorneys often prefer if it's a no contest versus them just admitting and —
Brandon: Yeah.
Monica: — being found guilty. So for what it's worth, there is a difference there, but —
Brandon: Well, strictly for criminal law.
Monica: For criminal law —
Brandon: Yeah.
Monica: — there is really no difference, yeah. In Florida.
Brandon: So the easiest way to break this down generally is to know the difference between a misdemeanor and a felony. There's so many words we throw around that are so easy for us to talk about and, you know, 'cause we know it, but we need to break it down. So a misdemeanor, and there's degrees and levels to each one, to both misdemeanors and felonies, and so misdemeanors, the highest degree is a first-degree misdemeanor and that's punishable by up to one year in the county jail and $1,000 fine, and when we say one year, that's 364 days and that matters. 364 days in the county jail and so when it comes to felonies, anything above 364, or punishable over 364 would be considered a felony. So a year plus. And that's also where, at least in this state, we get the difference between jail and prison. Jail is usually run by the counties. Prison is run by the state. The jails, somebody is supposed to be sentenced up until a 364, so less than a year. Sometimes people spend more than a year in, generally speaking, they're supposed to be under a year in a jail, and if their sentence is over a year, it is in prison. That is also akin, that also translates to the misdemeanor and the felony. Generally speaking, a felony is punishable by over a year —
Monica: Yeah.
Brandon: — where a misdemeanor is generally punishable by just over. And the reason why — sometimes people do end up serving their prison sentences in jail and the reason why is because what happens is they're waiting in custody pre-trial, so that's where people are housed is in the county jail, is also, pre-trial is also where people are sentenced for misdemeanors or if you have a felony and you're serving X amount of days in jail which is less than a certain term, like we said. So certain people are serving their sentence, certain people are sitting there pre-trial, waiting for their sentence, and so if you're sitting there pre-trial waiting for your sentence and it's years go by, which happens, it happens for more serious cases because there's discovery, depositions, it takes time to work up a case, or there's turnover with attorneys or whatever the case is. And so what happens is that you are serving, gaining credit during that time for every day that you're serving is going to go towards your sentence. And so, let's say you serve, I don't know, sometimes crazy numbers like 3,000 days or something, you know, I don't know. And so then you have to, when you take your sentence, you subtract those days from your sentence and that's what happens when you get a time served plea. It's like 600 days, credit for 600 days, you know?
Monica: Right.
Brandon: So then you get released that day but you didn't, technically that would be considered, you know, a prison sentence but you're getting time served so you're getting released from the jail. So there are so many nuances that, you know, that technically doesn't matter for purposes of sentencing generally unless you're getting time served.
Monica: And that's why I was saying this is the only math that we really do because we do have to from the date that they went in. Sometimes clients go in, go out, they get arrested again, they pick up a new charge —
Brandon: Right.
Monica: — and then they're, like, having to do for real math and you're like, "Oh, my gosh." Like, "I don't know. I need help. I have to double check my work. I'll do it 2, 3 times just to make sure," because every day counts.
Brandon: Well and the government side, they are the ones that have to come up with the score sheets which we're gonna talk about, that's all a computer software that does all that thankfully because, yeah, that is, it's a big grid of all the charges and there are specific points that go to each charge and if there's enhancements, there's more points or there's less points and, I mean, that is where criminal defense attorneys, we always joke, and criminal attorneys in general always joke that we're not good at math, but that is where math is important in our profession.
Monica: So before I go into misdemeanors, you can take a plea knowing what plea you'll get from the state attorney's office and it's an agreement and, like, if you're going into custody you can even negotiate what day you're gonna go into custody and, like, all those things. Great. So that's like the most seamless thing, right? Or way to kind of get sentenced. The other 2 ways which make things a little bit more complicated and also come into play in discussion when we're talking about should we go to trial or not, because what happens is you could face way more time if you go to trial just because of certain enhancement designations that could apply to you that the prosecutor is choosing to not go forward on if you're willing to negotiate and take a plea with them. And so that's why even if you have a very good case, you still need to consider the plea offer given by the state because at that point it's not just — and this is really more for serious cases or felony cases, it's not just like, well, can they prove this or not because there are other things that one, there's no guarantee and two, there's other things that come into play and then that's how much time you are going to be facing or how much time the judge or the state can now go below this once you are found guilty. So all that to say you could plead guilty to the judge and say, "Hey, judge. I plead guilty. Sentence me." And you have no idea what that is.
Brandon: Well, yeah. That's true but you could, I mean, that's why, the more serious the cases get and the score sheet comes into play, that's where things get —
Monica: You're less likely to do that.
Brandon: Yeah. Dangerous and you're less likely to do that because a prosecutor can say, "Okay, well, your guy on this charge faces 5 years but because of their criminal history, they're actually starting at 10 years." The prosecutor can say, "But if you're willing to take a plea, we're willing to give you less than those 10 years and we're willing to waive that minimum." You can get that done in a negotiation —
Monica: Yeah.
Brandon: — sometimes but that's not something that you can ask the judge to do because if you say to the judge, "Judge, I want you to give me the offer." And you already start at a certain point, the judge has to start at that certain point. So the judge says, "Oh, okay. You're pleading on something that's 5 years, but I actually have to start at 10 years because of your criminal history." You can't — unless there's a way for them to depart, which we'll talk about, you can't get around that. And the idea of taking a plea to the court becomes less likely the more serious your charges get.
Monica: Yeah, yeah. And so in that scenario, the reason why it would be, let's say someone's facing 5 years, that would be — so there are 3 degrees technically under felony. Obviously, there are certain things that are considered punishable by life felonies and those are — that's not included in what I'm saying, but there's a first degree, second degree, third degree felony. And so in this scenario, he was saying, "You're facing 5 years," that would be a third degree felony, you're facing 5 years, but let's say you have, like, a manslaughter on your history, which happens often. People serve, like, a 10-year prison sentence and they get out and they have a murder on their score sheet, which makes you score up the wall. It doesn't matter what type of charge you have, and then you pick up, let's say, a third degree felony, which is like — it could be literally a felony theft. A retail theft —
Brandon: Yeah.
Monica: — that's over a certain amount, let's say.
Brandon: Or like your third one.
Monica: Right. You know, which is an enhanceable offense. So like there are things that could be very minor and they end up becoming felonies and then your minimum starting point is 10 years, and so at this point you're talking about significant prison time that you could shave off your sentence because of whatever history that you have on your record, and so that comes into play for the guidelines. The more serious the crime that you either had or that you're accused of, the more points that are associated when we're talking about a score sheet, and the more time associated because of the statute and the whatever degree the charge falls under, and then there's also, like I keep saying, and then there's the potential of enhancements.
Brandon: Yeah. You know, we'll get into that, but I mean, an enhancement is something — it can be the way that a firearm is used in an offense or what accessory you have on you. And when I say accessory, I'm not talking about your handbag but I'm talking about, like, lock picks, I'm talking about burglary, other burglary tools, I'm talking about wearing a mask during a robbery or wearing a mask when you're committing certain acts in general. That's, in itself, an enhancement. There are a lot of different things that can make the situation even worse, and you made a really good point. That's why negotiating, you can't always shoot down negotiating right away, because you may be in a really bad position because of your history regardless of whatever the current case on the table is, and that creates leverage for prosecutors because they can make an offer on your case, which may not be that great of a case, that's a tough offer and tough in terms of how much time and tough in terms of — tough to turn it down. They can do that because your prior history puts you in a really bad position where there's a high score and you are going away for a minimum mandatory time. Then you look to negotiating and you look to the prosecutors to come down.
Monica: Yeah, they're the only people who can actually, like, waive certain things. Like even if there's — so certain charges, let's say, have — like, the one that comes to my mind is felon in possession. Trafficking, drug trafficking cases that have, and certain types of drugs have certain minimum mandatories and these minimum mandatories, oftentimes, before I say this, oftentimes — like if you serve any sort of prison or jail sentence, you are eligible, if you're on good behavior, for gain time. You can do, like, extra things while you're in custody to shave some time off, and that's not something that's guaranteed by your plea but that's really up to you once you go in there. But when it comes to these minimum mandatory sentences, none of that is a thing.
Brandon: Yeah.
Monica: You have to serve day-for-day every single day. You sign for 3 years, you're taking 3 years. You're getting out after 3 years.
Brandon: Yeah, the only thing you get is the credit that you served pre-trial but you do not get credit for —
Monica: Good behavior.
Brandon: — you know, good behavior or programs that you participate in. I have a client that resolved his case. It was a case involving a firearm. The case resolved to 20 years and it is day-for-day.
Monica: Yeah.
Brandon: He got the credit for when he was waiting for the case to resolve but that's a day-for-day sentence —
Monica: Yeah.
Brandon: — and that's based on the severity of the crime. That's part of the statute and that's where the crime fits.
Monica: Yeah, and that's like the starting point for judges. So there's — the guidelines are personal to you but minimum mandatory requirements are on the statute. They're required as a part of the enhancement or the charge that you are — like, that's associated with your case. So those are things that cannot be departed from by the judge, but when it comes to the score sheet that's personal to you, the charge that you are being charged with right now and your history, those are things the court can depart from. And so, and mind you, the law says that even if they find that there are grounds for departure they can still exercise their discretion and say, "We are not going to depart from the guidelines." And so that is also still a risk associated with it, but obviously if you go to trial and you lose, attorneys should always, like, I think file a sentencing memorandum and request downward departure if they can, but if you are found guilty of a minimum mandatory, the judge literally has 0 discretion and that's the minimum.
Brandon: Right.
Monica: So there are certain things that you have to talk about pre-trial that are, like, sentencing really dictates when it comes to things like this —
Brandon: Yeah.
Monica: — because I don't think people really realize the severity of certain things, like, this is a really, like, common scenario that I've seen. Burglary with the charge of battery is a punishable by life felony in Florida and this is, the scenario is — I've seen this scenario so many times where it's like boyfriend, ex-girlfriend, vice versa. They get into an argument and one person ends up, like, getting into the, uh, they're outside the house or they're inside the house and someone ends up going, throwing shit. Like, it's really just a domestic issue, and it escalates, and it's like, "Oh, this person wasn't welcome here. He was coming over to get his stuff and then he hit me." And then this person is facing life —
Brandon: Mm-hmm.
Monica: — as a result of that. And now we're not — instead of talking about just a domestic battery where you're facing a year in the jail, you're talking about life, like the rest of your life. And obviously that doesn't mean people are gonna get life, but it's not taken lightly at that point. You know?
Brandon: No. It's much more serious. I've seen cases where somebody was in their car and gets into an argument with somebody outside of their car. The person outside of the car reaches into the car —
Monica: Exactly.
Brandon: — and either grabs their phone or hits them, and now —
Monica: Bird bat.
Brandon: — they're calling it a bird bat, and it's a punishable by life offense, which is ridiculous given the circumstances.
Monica: Yeah. Yeah, exactly.
Brandon: But that's the way that it happens.
Monica: That's totally true. Yeah. Yeah. So, speaking on the degrees, 'cause I didn't fully flesh this out. So, first degree misdemeanor, up to one year in the county. Second degree, 60 days.
Brandon: Which, up —
Monica: Up to 60 days. And there are fines. It's a $500 fine, I think, for second degree.
Brandon: Mm-hmm.
Monica: And then a 1000 —
Brandon: Up to $500 for second degree, up to $1,000 for a first.
Monica: Yeah. And then for felonies, a third degree felony in Florida is punishable by up to 5 years. Don't know the fines on this one. Second degree felony is 15 years maximum, and then first degree is 30 years. And then obviously there are charges, like we were saying right now, that are associated, that are, like, life —
Brandon: Punishable by life offenses, right. There's 10-20-life law where it's like, if you have a firearm while you're committing a specific felony or if it's a discharge or causes, you know —
Monica: If it hits — injury.
Brandon: There's enhancements, and those are the minimum mandatory. So, obviously we don't expect all of you to know this, but there are things that people should know about, I think, the court system and criminal law that is, like, people should know this, you know?
Monica: Yeah.
Brandon: And I think it's important because a lot of people do wonder, you know, why do certain judges sentence the way that they do, and why do certain people get the amount of time that they get versus others? And a lot of it comes down to, especially the more serious you get, their criminal history and what the judges are allowed to do and where they're allowed to start, and a lot of it comes down to the negotiations between the defense attorney and the state attorney's office. Because the best deal oftentimes that's gonna be made is gonna be made that way, and that's gonna be way better than what the client would get after a sentencing, whether it's the judge deciding after a trial or pleading up to the judge and the judge deciding. You have a way better shot of getting something better from the prosecutor.
Monica: Yeah.
Brandon: You know, in misdemeanor cases sometimes you have a really good shot of getting a better deal from the judge.
Monica: Yeah.
Brandon: But we're talking charges that are not serious, when we know jail is really not a major factor, or we're looking at a difference of, you know, 30 days in jail —
Monica: Yeah.
Brandon: — between what the state's offering and what a judge may throw at you. Those are different discussions. We're not talking about 30 years —
Monica: Yeah.
Brandon: — in terms of a difference.
Monica: Yeah. So, when you're rolling the dice like that, it makes such a difference. Like, am I really gonna go in front of this judge? And so, like, speaking on misdemeanors though, there is something that I learned as a public defender, that you could do pre-plea inquiries in court, and not every judge does it. So, you can and you can't.
Brandon: Yeah. That's funny because I was always taught you cannot.
Monica: Okay. Okay.
Brandon: Which is fun because a pre-plea inquiry is basically saying to the judge, "Judge, if I plead guilty or if I'm found guilty, what is the sentence gonna be?" What would you give me? And the problem is that, and this happened, that if judges give an answer to that, which they can give the answer to that, there is an argument to be made by a public defender. After a trial, if the judge doesn't stick with that offer and the judge gives something worse, the public —
Monica: Oh.
Brandon: — defender can say, "Oh, you need to recuse yourself. You're not fair. There was no way that you should have done that. You can't go above — you already gave a number." It has happened where the —
Monica: But that's not fair.
Brandon: And that's why you —
Monica: That's —
Brandon: — have heard judges say, "Oh, I don't do pre-plea inquiries."
Monica: Yeah, some judges don't. Well, I would think that if they go to trial and they decline that offer, it shouldn't be on the table anymore. Like, that shouldn't be a thing.
Brandon: Correct. But because the judge —
Monica: Said it.
Brandon: — there is an argument to be made that the only reason the judge is going above what that number was —
Monica: Is because of trial.
Brandon: — is because they went to trial and there was a trial tax. Or because they learned more about the facts. That's the actual reason, and there is a genuine, legitimate reason to do that and to sentence above whatever that was gonna be.
Monica: For sure.
Brandon: But then you also have people that have made the argument, and that is why it is, I don't —
Monica: Ugh, they ruined it for us.
Brandon: It's silly, but that's it. But that's why you see certain judges are like, "Oh, no, no, no, no, no. I will not take a pre-plea inquiry."
Monica: I think that there's a way to word it, though. Some judges who normally don't like to do it, they'll — it's, it's basically like, "We're gonna plead guilty right now if you'll give us — " da-da-da-da-da. 'Cause we're disagreeing on X, Y, and Z. There are certain ways that judges will, like —
Brandon: There was a case where I had a client that pled guilty to a domestic battery and was on a plea and pass for domestic battery. And the same day that he pled, he got —
Monica: A new case.
Brandon: — a new case, a driving under suspension case. But his license was valid, he was able to get his license —
Monica: Huh.
Brandon: — valid and it was fine. The judge still issued a warrant, he came to court. I brought him in and I said to the judge, like, "This happened this day, his license was valid, it was just, like, a technicality from the DMV." The prosecutor said, "120 days in jail." And the judge —
Monica: That was the downside?
Brandon: No, that's just what theirs was —
Monica: Huh.
Brandon: — was their offer now to resolve the case.
Monica: Oh.
Brandon: That they were saying the plea and pass was enough. The judge in the case heard it, and I wasn't gonna plea to this judge because I was under the impression that this judge would go way higher. The judge heard the conversation I had with the prosecutor, said out loud, it was probation, not a plea and pass, said, "Mr. Dinetz, if your client is willing to go back on probation right now, we can resolve the case." And we did it.
Monica: That's nice.
Brandon: Yeah. Yeah. Sometimes judges help resolve the case —
Monica: Yeah.
Brandon: It was probation, not a plea and pass, for the record.
Monica: Yeah.
Brandon: It was probation, but he —
Monica: He hadn't taken it, yeah, he had it on the table.
Brandon: No, he was already, it was —
Monica: Oh.
Brandon: He took it. He was on probation —
Monica: So she —
Brandon: — but the day —
Monica: She reinstated him?
Brandon: That he went onto probation, he —
Monica: Mm-hmm.
Brandon: — picked up this new charge.
Monica: Which would be —
Brandon: But —
Monica: — considered a VOP.
Brandon: Right.
Monica: Right.
Brandon: And the judge issued a warrant, but when she heard what had happened, she was like, "Oh, okay. I'll let him go back on probation," but one of the ASAs in that courtroom —
Monica: Yeah.
Brandon: — that are, like, afraid of that judge, they were like, "Oh, 120 days," and the judge squashed it — which was the only time it's ever happened —
Monica: Surprising.
Brandon: — and it was —
Monica: Cool.
Brandon: — it was beneficial and I will forever be grateful for that.
Monica: Yeah.
Brandon: Yeah. Oftentimes, they don't like to do it. But I still shoot my shot, I'm like, "Hey, we'll do a pre-plea."
Monica: If the judge is willing to do a pre-plea or inquiry and you're not gonna go bananas after, then go for it. But sentencing oftentimes in misdemeanors, especially even after trial happens, like, right after — so sentencing is usually its own hearing, and you have basically your witnesses that you wanna call to prove whatever you need to prove, if you wanna prove grounds for downward departure, mitigation even, that are not technically, like, codified in the law, and you wanna be like, "This person's a good member of society. Don't lock them up." Or the opposite.
Brandon: Yeah. You have people and families coming to sentencing that are —
Monica: Like victims.
Brandon: — just victims —
Monica: Yeah.
Brandon: — and they are going to say whatever they want to say to the defendant.
Monica: Yeah.
Brandon: And you have those victim impact statements, oftentimes those carry good weight and a judge will hear that and think to themselves, "Wow, like, look at how these people are affected." Sometimes, though, you have sentencing that is, because everybody already knows what the sentence is gonna be, like, what I'm thinking of is the Idaho murders, the college students.
Monica: Mm-hmm.
Brandon: That sentencing was all for the victims to make statements, because everybody had already agreed and it was a life in prison, there was not gonna be — so, there was no need to —
Monica: Yeah.
Brandon: — really do it that way. And sometimes in cases where the judges don't do a sentencing, or don't do a separate sentencing hearing, they're doing sentencing right away because there is no other sentence that's going to be happening. So if it's a mandatory by life offense and they're going to be going away for life —
Monica: Right.
Brandon: — or you're convicted of murder and you're going away for life, they don't need to do a delay and do a sentencing hearing. They can —
Monica: Yeah.
Brandon: — but they can say, "I'm sentencing you to —"
Monica: Yeah.
Brandon: "— be sentenced to life."
Monica: Right.
Brandon: Yeah. That's it. That's the end of it. So —
Monica: Really the in-betweens.
Brandon: Yeah. It's the in-betweens, because in DUI cases, for example, the person has to be sentenced right then and there because they have to be put on probation right after being convicted.
Monica: Right. And obviously, everything we're talking about in this episode is in Florida.
Brandon: So that's required. But in certain other cases where there's a jury trial, oftentimes —
Monica: Reschedule.
Brandon: — the judge will say, "We're gonna set out sentencing for a few months." And there's different reasons for that. One is, "We've all just gone through the stress of a trial and we're all exhausted and there's no reason to do this right now."
Monica: Yeah.
Brandon: "The person's being — I'm holding them in custody, there's no reason to do it right now." The other is that it's not statutorily required under the charge in that case, so they can push off sentencing.
Monica: Yeah.
Brandon: Another reason is that judges sometimes require pre-sentencing investigations.
Monica: Mm-hmm.
Brandon: So a full report is done up on the person that is being sentenced, and that can aid the judge in their decision-making for what type of sentence they give. There are the opportunity for the defense attorneys to write sentencing memorandums.
Monica: Yeah.
Brandon: There's the opportunity for the state to write a sentencing memorandum. And these are all things that the judge can then take time and consider —
Monica: Yeah.
Brandon: — before coming up with what the sentence is gonna be.
Monica: Yeah. And that's often, you know, you see that in a lot of cases —
Brandon: Yeah.
Monica: — that's what happens. That's exactly what happens, and then, obviously at the hearing, the judge by then would have reviewed everything and then you just present your witnesses and the state presents their witnesses. So, state usually goes first and then defense, and each side requests something. Even if you were saying, "I was innocent," at trial and you have sentencing, that doesn't mean that you can't ask for a sentence. You should ask for a sentence from the defense side 'cause you don't wanna just let — you wanna guide the court, I think, in a way that it's like, "Hey, we are requesting this and because of X, Y, and Z." And I think sometimes it's reasonable and if it's a reasonable request, the court will use it as a guide and be like, "You know what? I think maybe that plus some jail or that plus some in-house arrest or whatever, you know, gets the job done," or depending on what the case is, but it's oftentimes, I think — I don't wanna say the most important, but sentencing is so important. And especially the amount of energy and work that goes into it, it's just as much work as something that would go into trial —
Brandon: Yeah.
Monica: I think.
Brandon: And I think it's also the least pleasant process —
Monica: Yeah. That's true.
Brandon: — that we deal with —
Monica: That's true.
Brandon: — for a lot of reasons.
Monica: Yeah.
Brandon: And I think that's for both sides.
Monica: Yeah.
Brandon: You know, if you're the prosecutor and you just won a big case, you have that anticipation for sentencing that you're excited for because of all the work that you put into it. But if you're dealing with a case where you have victims and everything else, that sentencing is going to be really, really hard.
Monica: Mm-hmm.
Brandon: I had a DUI manslaughter that we wound up having a plea — not a plea to the court. It was special plea, that the judge set out separate, so it was its own hearing, and the family came in and I was a defense attorney on this case, and the family of the deceased came in and gave statements and it is really hard.
Monica: Yeah.
Brandon: And even if you're on that side and you're like, "Oh, Judge, I'm giving the judge all the reasons to throw the book at the defendant in the case," you sitting there and listening to those statements is really rough.
Monica: Yeah.
Brandon: Regardless of how many times you've reviewed the evidence and what you've seen in the videos and what you know about the case and what you know about the deceased, it doesn't matter. When you're sitting there —
Monica: There's a human element to it.
Brandon: — it is really, really difficult.
Monica: Yeah.
Brandon: And I think sentencing in general —
Monica: Agree.
Brandon: — is tough. It's not — no, it's not enjoyable for anybody, and the judge has a tough decision to make because they wanna —
Monica: Yeah.
Brandon: — do what's best for the community and what's best under the law and, you know —
Monica: And it affects somebody's life.
Brandon: — take into account what this other person's dealing with.
Monica: Yeah. You never know and it's rough. Yeah, I think that it's — I always thought about, like, you know, not that my aspiration is to be a judge, but I think about a judge's job and the life of a judge 'cause I just think about it. And so, I think that I really have come to the conclusion that sentencing is the hardest part of their job. I think they have to make so many decisions in the day and that's on legal issues, factual issues. "Yes, that can't come in. No, that can come in. Yes, you have to turn over to discovery," all these things. I think the hardest thing they have to say is, "You are being sentenced to X, Y, and Z," whether they want to do it or not because that is affecting so many different moving parts. And so, obviously, there's very rarely ever, you know — state is always on this side and defense always on this side, so they have to find something that's going to be reasonable for both or reasonable for the circumstances. Maybe not even for both, like maybe not for one side or the other. They just think that this is what's fair considering all the circumstances and everything that's been heard, and I don't think that they take it lightly.
Brandon: No, it's not easy.
Monica: Yeah.
Brandon: I don't think handing out a life sentence is something that a judge takes lightly. Even if it's a case that's gruesome and they still have to learn all about the case and the impact that it had on other people's lives and —
Monica: Yeah.
Brandon: Just because at the end of the day, they get to be the last ones to close the book on it to an extent. It doesn't make the decision easier.
Monica: So, speaking on score sheets, 'cause we did talk about your primary offenses on there, meaning the most serious charge is the one that carries the most points, and then there is supplemental charges because sometimes people are charged with, you know, I don't know, like a bunch of charges and that could be like you have a gun charge, you have drug charges, whatever, and like whatever carries the most points goes first and then there is like the added on charges below that. Then there's your history. There is a portion on there if you were on probation and you violated your probation, if you injured somebody, victim injury, you have extra points for that. And it's not good points. Like the higher, more points you get, the higher likely, like the higher the chance that you will be getting a minimum sentence of prison.
Brandon: Right. That's what I meant. Well and specifically once the points get added up you have to get to a certain point to actually score prison.
Monica: Yeah. Exactly. So, once you get to that threshold of points, which is 44, once you're at that threshold, you now are scoring one year in prison.
Brandon: Yeah. And that is, that's where the judge would have to start and there's a box on the score sheet that basically says, you know, whatever the final score is with its final calculations minus this, plus this, X, Y, Z. That number, if it's 44 or higher, that is the minimum mandatory so that means, yes, that if the case resolves and the judge is put in a position where they are going to be doing some sort of sentencing, it is starting at that number.
Monica: Yeah.
Brandon: And that's in months, those points.
Monica: Yeah.
Brandon: Yeah. That number is in months.
Monica: Yeah. The ultimate points number, that shoots out, so if it's over 44, we're talking about the number of months.
Brandon: Yeah.
Monica: And so you said minimum mandatory but I just wanna clarify because we call the minimum mandatory on a score sheet the lowest permissible sentence in months.
Brandon: Right.
Monica: Because that is, like I said, not a minimum mandatory legally. Technically the term minimum mandatory is like a day for day sentence, you're not gonna get out before that and like you can't depart from that. Whereas this, the lowest permissible sentence, there are, if you have grounds for downward departure, which could be like the need to pay for restitution. Let's say if somebody was injured and they need to make payments back to the victim and the argument from the defense side is, "Okay, the victim needs to be compensated, then our client should be out of custody and on probation making money so they can pay the victim back, because if they're in custody, this victim's never gonna get their money back. They're never gonna get their bills paid again." So, that's also kind of a reason to incentivize the court, the victim, or the state, to be on board with downward departure. If you commit a crime under a certain age, you could be considered a youthful offender. There are so many different ways to depart from the guidelines and like that is also a part of the conversation again when talking about negotiating with the state or whether your case is a strong case because sometimes the grounds for downward departure is a reason to go to trial. If you're a YO, you know that you are a youthful offender — that you would get a youthful offender status even though the judge can technically still say, "No, I'm not gonna give you YO," that's an incentive to go to trial if you feel like you have a triable case, you know? But then —
Brandon: 'Cause it gets you out of that required score.
Monica: Right. It takes you away, out of that, that's why.
Brandon: Exactly.
Monica: Also another ground for downward departure is a plea bargain. So that's literally codified in the law, like if you plea with the state, the state can basically do what they want.
Brandon: Yeah, that's true, and that's, I mean, I had one case that a client scored 44 years, and that was his score, so if we would've asked the judge, the judge had to start at that and ultimately the prosecutor was willing to come down from that dramatically and give him a 20-year sentence but, you know, still, that's only something that the prosecutor has the discretion to do. The judge couldn't have done that.
Monica: Exactly.
Brandon: And the judge almost didn't give the 20 years because of how high the score was. The judge almost rejected the plea, which a judge has the ability to do.
Monica: That's a good point. And I don't know if we've discussed that, but —
Brandon: No, we should talk about that. Judges can reject pleas.
Monica: Yeah.
Brandon: And they do. It happens frequently.
Monica: Unfortunately.
Brandon: Where a judge will think that a plea is —
Monica: Too lenient.
Brandon: — too lenient and they will reject it. They never —
Monica: And that's —
Brandon: They never think it's too tough though. I'm trying to see — I do, I really do think I know of an, I have an example in my head where there was a county court judge that thought something was too tough.
Monica: Really?
Brandon: Yeah. Yeah. But it was — it was a long, long time ago —
Monica: Okay.
Brandon: — and it was like something kind of ridiculous was going on. I don't remember — it wasn't my case but I almost remember the judge rejecting the plea and like that was, it was definitely because it was too much, there was too much going on. And I think the judge kinda just made it seem like it was too complicated of a plea and that was why he was rejecting it but I think the judge was making sure that the defendant wasn't gonna be set up to fail.
Monica: Yeah.
Brandon: And I think that's what the judge was seeing when — I think it was a probation term that was not that long of a probation term but it had requirements that probably couldn't be completed in that amount of time, like setting a person, knowingly setting a person up to fail, like the judge didn't wanna do that.
Monica: Yeah. Yeah. Well, that's one of how many. Not —
Brandon: Thousands and thousands and thousands and thousands, that doesn't happen ever.
Monica: Yeah, but, yeah, exactly, like they just, I don't know, I've never seen it but —
Brandon: But it could happen. I do see — yeah. No, no, no. I've definitely seen it where they reject it because it's too lenient.
Monica: Yeah. Oh, yeah, for sure. That's definitely a thing. That happens all the time.
Brandon: That's definitely a thing.
Monica: Yeah, yeah, yeah.
Brandon: And one thing that we've been talking about is enhancements and what can drive a score up, or multiply a score. The enhancements are power-ups, for lack of a better term, because what they do is take a standard situation or a standard scenario where someone is accused of, let's say, burglary, and they're facing X amount. Well, if you start adding enhancements, like they had a mask or they had a firearm, now whatever they were facing is dramatically worse. And what I think the point of these enhancements is to try to deter people from doing these crimes in general, but the added things — I mean, if you're going to rob a bank and you put a mask on, your concerns, in terms of sentencing is way higher. Not that I think you were really concerned to begin with if you were already robbing the bank —
Monica: Yeah.
Brandon: — but that is the point. Like, there are different things that happen that can be enhancements. So like I said, wearing a mask during a robbery —
Monica: Yeah.
Brandon: — or you had mentioned firearm enhancements. 10-20-Life.
Monica: Yeah. 10-20-Life, right.
Brandon: There's also PRR —
Monica: Right.
Brandon: — where that's, like, prison release reoffender.
Monica: Reoffender.
Brandon: And that's when you're released from prison after, like, a certain amount of time. You commit a specific — it's designated crimes, it's not any crime.
Monica: Specific crimes. And if you are charged, just charged with these crimes, you are having — like, we say, like, PR 10. Like, that's, like, the minimum that you will see.
Brandon: Yeah.
Monica: So —
Brandon: And they're enhancements. Everything goes up if you are — yeah, but that — I mean, again, that — in an objective sense, that makes sense. If you just got out of prison and you just picked up a new really serious offense, the punishments should be higher. I mean, that just makes sense.
Monica: Yeah. But it takes out the dis- — like, I don't wanna say all the discretion because, again, the state uses it as leverage, so it does — but they — and they do take it into consideration, and they do use it to negotiate. But it takes out the discretion from the judge because at that point, the court can't do anything that you're PR 10.
Brandon: Right. Well, the state has to prove it, actually. The sentencing — so these — that's the other thing. When you go to sentencing and these — like, there's habitual felony offender, habitual violent felony offender, there's prison releasee reoffender. Like, violent career criminal. Like, there are all these different things. 10-20-Life, they have to prove — 10-20-Life I think they prove with the facts, but at sentencing, they have to prove that you are designated under these. So they would have to show that you were previously convicted and previously went to prison, and you were released on this date.
Monica: Which is very easy to do. So easy. It's, like, one document that's —
Brandon: Yeah.
Monica: — like, taken in.
Brandon: Mm-hmm.
Monica: But, yeah, that's something that obviously, like, once it's proven, the court can't do anything about it.
Brandon: Right. I mean, the enhancements are there for a reason, and then they just make matters a lot worse because they, again, from a defense side, are less that we have to work with. And from the prosecutor's side, it's also less to work with because there's — your hands are tied to some extent based on that being the statute, that being what governs how much time that person potentially could face at least.
Monica: Yeah. So I think that's — well, that's the shitty part, I think, in general for the defense, but the other thing is, like, that's what makes mitigation so important because that's when we come in —
Brandon: Mm-hmm.
Monica: — and we present to either the state or the judge why, if the judge has the discretion to depart, why they should depart or why they shouldn't follow the guidelines, why they should give our client probation, why this person shouldn't go into custody, whatever the case is. And that could literally be education, mental health, substance abuse, your upbringing. And, like, so many things that people don't think is important are so important, and those are things that we talk about. And it's not — like, just as the state or the government wants to paint this picture that you are a criminal, we wanna paint otherwise. Like, we wanna show that this is — there's more to this person aside from their criminal history, or the charges, or the allegations that are being said against this person. They deserve a second chance, and let me tell you why. Or maybe this isn't their second time, it's their — they have a crazy rap sheet. Why are they in this situation? And it's oftentimes we're not excusing behavior at that point, we're explaining behavior. Because we have to show to the court, like, why this person doesn't know any better and hasn't been provided, you know, resources to be better, and why this time it's different. You know, you have to show that because then otherwise, why are you asking for grace? Why are you asking for mercy in this situation?
Brandon: And so just — yeah, I think the downward departure is, like, the one time that the law says to the criminal defendant, "Okay, maybe you deserve a break." And that's the only time that there is a, like, you can look and see a codified system where somebody can be given a break in the system.
Monica: Yeah.
Brandon: And that's, this is really the only area where that exists.
Monica: Yeah.
Brandon: Otherwise, you're dealing with the mercy and discretion of the prosecutor or the mercy and discretion of the judge if they have it.
Monica: Yeah.
Brandon: Other than that, you're — I mean, downward departure is, you know, it's a unicorn.
Monica: Yeah. And then obviously when the judge can find grounds and say, "You know, I see there's mental health issues here and I see you've struggled," like, they will say that. "But I don't find that you deserve downward departure and you will be getting the minimum sentence, or you'll be getting more than the minimum sentence." And then it's like, yikes.
Brandon: Right.
Monica: You know? There is also, that's a point to make because I find that a lot of times when I talk to my clients, they don't find that — they don't know what's important when they provide to me information. I'm like, "Literally get me everything about you." Sometimes I'll even have my clients write me a bio just so I can get to know them a little bit better and have, like, something about them before sentencing just so I can know about them before I can approach the prosecutor and talk to them about negotiating 'cause those are things that still come into play when you're negotiating. It's important. Going to rehab, you know? If you —
Brandon: Yeah, it is.
Monica: If it's a DUI manslaughter, you know?
Brandon: And if you're lucky enough to be waiting out of custody, pre-trial, go into rehab.
Monica: Yeah. Show that you are redeemable.
Brandon: It does not need to get to the DUI manslaughter —
Monica: Right.
Brandon: — level for me to tell a client, "Get into —"
Monica: Yeah.
Brandon: "— a rehab program." Like, a second DUI inside of 5 years, they need to be doing, as far as I'm concerned, getting into some inpatient treatment —
Monica: Yeah.
Brandon: — because, one, they need it, and two, there is really nothing better to show the court than they're taking it seriously —
Monica: Yeah.
Brandon: — and they're getting treatment, because everything else beyond that is just asking for mercy.
Monica: Yeah, exactly.
Brandon: It's not — they have to do something to show that. And one of the things you were talking about before was the — and I guess I had mentioned it, but, like, the mandatory minimum sentence oftentimes comes from whatever the charge is as well. Whatever the offense is, and this could be misdemeanors or felonies.
Monica: Right.
Brandon: There could be a mandatory minimum sentence. So, for example, in misdemeanors and something that we deal with all the time —
Monica: DUIs.
Brandon: DUIs. So, a second DUI inside of 5 years has a minimum mandatory of 10 days jail on it. That's where a prosecutor generally starts with a second inside 5 DUI, and I'll tell you, in other counties, they almost treat it like the minimum mandatory is 60 days —
Monica: Yeah.
Brandon: — or higher on certain cases like that. You know, one or the other —
Monica: DUIs.
Brandon: That's — I was just gonna get there. The other thing is driving under suspension and driving without a valid license, both of these 2 charges now have minimum mandatory sentences if you have a certain number of priors of them, and they don't even need to necessarily be priors of the exact charge. So, for driving under suspension, if you have a mixture of prior DUIs and a mixture of prior driving under suspensions or leaving the scene of an accident conviction, you have those, or a drug conviction, if you have any combination of those, and you have 3, you get a 10-day minimum jail sentence for driving under suspension. There are so many people that their licenses get in bad shape, either on their own or through the court process, and they're not able to pay off fines or they don't get everything squared away with the DMV, and then they start picking up those charges and now they're facing jail time. It happens all the time —
Monica: Yeah.
Brandon: — to regular people that just have issues with their license. Non-criminals that, you know.
Monica: And it is, right.
Brandon: And it is a minimum mandatory that's really become serious —
Monica: Yeah.
Brandon: — between that and the —
Monica: They enforce it.
Brandon: Right. The no valid driver's license minimum mandatory I think is more designed to catch illegal immigrants —
Monica: Yeah.
Brandon: — if you wanna get —
Monica: Yeah. You know, that's what I think they did that. 100%.
Brandon: Because the majority of people that the no valid driver's license arrests and jail are people that never ever had a license to begin with.
Monica: Right.
Brandon: The driving under suspension people had one at some point and got —
Monica: They somehow suspended.
Brandon: — correct for whatever reason.
Monica: Yeah.
Brandon: But you start adding those up and the judges aren't looking to downward depart at all from those. The judges are looking to put everybody in for —
Monica: They do not care.
Brandon: — for the 10 days —
Monica: Yeah.
Brandon: — on those cases. And on the DUIs, it's worse. And the more DUIs you rack up, the better chance you have at mandatory minimum sentences.
Monica: Yeah, 100%. No, once you become, I think it's your 4th DUI becomes a felony.
Brandon: Yeah.
Monica: Mandatory felony conviction. You could have literally just DUIs on your record. I had a client like this. He had literally never been in trouble aside from DUI in the past. He was being charged with a felony DUI and he was about to become a convicted felon, which affects your life in so many different ways that he was not prepared to do. On top of that, there was a minimum jail sentence required and it was just, like, DUIs, I swear. They're gonna be the death of me. They're so stressful because there's truly nothing anybody can do about it unless you are willing to put in the work and show that your actions speak louder than your words and get some sort of treatment to show that you are redeemable in order to. And that's for the state and the judge. Like —
Brandon: Right.
Monica: The state wants to see that because otherwise, they are enforcing these 10-day minimum sentences, 30-day — it goes up to 30 days, and then these felony convictions required associated with it. Like, it just fucks up your life. The more DUIs you get also, the onus is completely on you that you need to get your shit together and figure it out because this is, it is difficult to get a DUI nowadays. Like, you have to go out of your way to —
Brandon: Just Uber.
Monica: Exactly. There are so many different options for not getting a DUI nowadays. It's cheaper, much cheaper than DUI probation, trust me.
Brandon: Yeah, an Uber or a bus or anything. There's —
Monica: You spend 10K. It's very different.
Brandon: You know, Fabi was on here. Fabi said an average DUI is 10K —
Monica: It's very expensive.
Brandon: — before you get lawyers involved.
Monica: Yeah. So — the things you have to pay for, like, and required to do prior to even getting your license, too, reinstated is another whole conversation. Like, you just pay up the ass in fines, fees, and —
Brandon: And then the collateral consequence of insurance, that you need special FR-44 insurance —
Monica: Yeah, FR-44, yes.
Brandon: — that costs —
Monica: So pricey.
Brandon: — anywhere up to some people pay 7 grand a year and you have to pay upfront. 3 years, I think, you have to pay upfront, something like that. It's —
Monica: Yeah.
Brandon: — out of control. This is why people are driving around with —
Monica: Yeah, because they can't afford it.
Brandon: — suspended licenses 'cause they can't afford to get it fixed after their DUI conviction.
Monica: Literally. Literally. Yeah. Oh my gosh. Yeah. But that's a different topic for a different —
Brandon: But I do know some good insurance agents if y'all need them.
Monica: You know some good insurance agents? Yeah. There you go.
Brandon: One of my best friends is an insurance agent.
Monica: There you go. So I'm like, send them, anytime my clients are like, "I need an FR-44 insurance," I'm like, "I know the guy for you, just, like, forward over his contact."
Brandon: Yeah. Well, we also know good lawyers for the DUIs, so before it gets —
Monica: Oh.
Brandon: — to that point.
Monica: Yeah, yeah. Clearly. Reach out to us first. Then we —
Brandon: Then we'll deal.
Monica: We'll help you. We'll help you with everything. We'll help refer you to insurance after the fact, but —
Brandon: Yeah.
Monica: Yeah, right, exactly. Okay, well. But just, I mean, anyways, just sentencing in general, sentencing in Florida comes down to math and some human element in terms of, you know, departures and negotiations, discretion on the part of prosecutors, sometimes discretion on the part of judges, and then morality.
Brandon: Yeah. Everybody involved taking a position of what they think is best for everybody involved.
Monica: Yeah, and I think there are just a few points that I just wanna highlight.
Brandon: Sure.
Monica: I just don't want to make it seem like we're like all for pleas. I just think that pleas allow our clients to feel in control, a sense of control versus pleading up to the judge or going to trial because you really know the outcome. Like, you are so aware and involved in the agreement that it's something that is really in your hands at that point and oftentimes if you're willing to talk about what you want, you can ask the government what it is that they want to see from you in order to get that on the table. Sometimes I will ask the state, "You know, my client's doing X, Y, and Z. What is it that you need to see from my client to get this?" Because it's, like, at that point I've asked many times and they've said no. So it's like, what can I do or what can my client do in order to gain this advantage for him, you know? And if they sometimes give me an answer and they're like, "You know, more in your management or more — get him in therapy and show me the evaluation and we'll talk again," you know? And I'm like, "Okay, go sign up. The onus is on you," you know? So it's like, if you want control, you gotta put in that type of work. Otherwise, if you wanna go to trial, just know that there's a risk associated whether you have a designation or minimum mandatories again, you can't get gain time, can't get out early for good behavior, none of that if it's a charge that has a minimum mandatory, which is obviously something they'll be aware of before they go to trial, but I think that, at the end of the day, is like a big part of the conversation of sentencing and it's not just like, "Oh, sentencing is, like, down the line, we don't have to worry about it." Like, sometimes yeah, like if it's, like, a battery case or whatever and then you're just going to trial on a misdemeanor, but once you're in felony world, it's a whole different ball game. Or DUI, like you said, DUI, DUS.
Brandon: Mm-hmm.
Monica: Like, there's just certain arenas in criminal law that once you get in, the first thing we're talking about is sentencing. Not because you're going to prison forever, but because that's a part of your decision-making. Like, you need to know this.
Brandon: Right.
Monica: So that's my little 2 cents.
Brandon: I agree. I like it.
Wrap-Up
Monica: Well. I think that's all we got for today.
Brandon: Cool.
Monica: So if you like listening to us, make sure you check out the show notes and make sure you subscribe to our newsletter to get our weekly gems in your inbox and make sure you like, comment, and subscribe to all of our videos and all the things on our platforms at comebackwithawarrant.pod and leave us a five star review and if you didn't like listening to us —
Brandon: Come Back With a Warrant.