Sentencing Hearings

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SENTENCING HEARINGS

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Sentencing hearings are conducted after a person either enters a plea of guilty or no contest or after they are found guilty at trial. When there is a negotiated disposition between the prosecutor and the defense attorney, there usually will not be a sentencing hearing.

What happens at a sentencing hearing?

Typically at a sentencing hearing, both sides can present witnesses and other evidence to establish mitigation or aggravation. For example, a defense attorney may call defense witnesses to testify about what kind of person the judge is about to sentence. Is he a hard worker? Has he had a difficult childhood? The prosecutor may present aggravating evidence. For example, they may call the victim of the offense to testify how the crime affected his or her life. There may also be legal arguments at the sentencing hearing about what guidelines apply.

What can the judge sentence me to?

That depends on the offense you are being sentenced on. Every criminal statute has an associated degree connected with it and many criminal statutes have separate specific sentencing statutes, as well.

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DEGREES & STATUTORY MAXIMUM SENTENCES

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Capital Felony
Punishable by mandatory life or a death sentence

Life Felony
Punishable by life in prison

First Degree Felony Punishable by Life
Punishable by up to life

First Degree Felony
Punishable by up to 30 years in prison

Second Degree Felony
Punishable by up to 15 years in prison

Third Degree Felony
Punishable by up to 5 years in prison

First Degree Misdemeanor
Punishable by up to 1 year in jail

Second Degree Misdemeanor
Punishable by up to 60 days in jail

Criminal Traffic
Varies by statutory offense

Municipal Ordinance Violations
Varies by ordinance

Civil Traffic
Punishable by fines

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SENTENCING GUIDELINES

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In addition to the maximum sentences listed above, each felony offense will have a minimum guideline sentence that a Judge should use as a floor to the sentence. The more serious the offense and the longer your criminal record, the higher the guideline sentence will be.

For example, a person convicted of a second degree murder with no prior record may be looking at a guideline sentence around 25 years in prison, while a person convicted of a possession of cocaine with no prior record will have a bottom guideline sentence of 0, meaning the judge can give probation or no jail or prison.

There are statutory mitigators that allow the judge to go below a guideline sentence which include, but are not limited to:

• the departure results from a legitimate uncoerced plea bargain

• the defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct

• the capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired

• the defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment

• the need for payment of restitution to the victim outweighs the need for a prison sentence

• the victim was an initiator, willing participant, aggressor, or provoker of the incident

• the defendant acted under extreme duress or under the domination of another person

• before the identity of the defendant was determined, the victim was substantially compensated

• the defendant cooperated with the state to resolve the current offense or any other offense

• the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse

• at the time of the offense the defendant was too young to appreciate the consequences of the offense

• the defendant is to be sentenced as a youthful offender

• the defendant’s offense is a nonviolent felony, the sentencing scoresheet total sentence points are under 60 points and the court determines that the defendant is amenable to the services of a post-adjudicatory treatment-based drug court program and is otherwise qualified to participate in the program as part of the sentence

• the defendant was making a good faith effort to obtain or provide medical assistance for an individual experiencing a drug-related overdose

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Minimum Mandatory Sentences

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There are many minimum mandatory sentences in our Florida statutes.

What is a minimum mandatory sentence?

A minimum mandatory sentence is a floor in sentencing below which the judge cannot go. For example, if a person is convicted of firing a gun at another person, and he or she was charged with the minimum mandatory, the judge would have to sentence the person to 20 years in prison, even if the judge believed that this sentence was too harsh and wants to sentence the person to probation.

Who can go below the minimum mandatory sentence?

Only the prosecutor has the authority to waive the minimum mandatory sentence. They do this by agreeing to it, or by not including certain statutory language in the Information, or the charging document. The judge has no ability to sentence a person to a lesser sentence below the minimum mandatory sentence required by law.

Will the jury decide if I get a minimum mandatory sentence if I go to trial?

Yes and no. In a sense, the answer is yes because the jury must make a specific finding in order for the minimum mandatory to apply. For example, in a gun case, they must find that you actually possessed the gun (3 or 10 year minimum mandatory), actually discharged the gun (15 year minimum mandatory), or actually discharged the gun and caused great bodily harm or death (25-life minimum mandatory). However, the jury will never be told what the possible sentences are. They will never be told that you face 5, 10, 15 or 25 years in prison if they make those specific findings.