In Florida Criminal Sentencing, It’s the Guidelines That Count

August 17, 2010

Many clients come to me after they have been arrested for a felony charge and quickly ask me “what they are looking at” as far as a possible sentence should they be found guilty. Prior to 1983, that determination was totally within the discretion of the Judge, who could render, in almost all cases, a sentence which ranged from probation up to the statutory maximum prison time for the particular offense.

As of October 1,1983, the Florida Rule of Criminal Procedure 3.704 took effect which outlines the Sentencing Guidelines procedure which applies to all sentences in felony cases. The guidelines were instituted to attempt to ensure more consistent sentences throughout the state for defendants with similar prior criminal records who are charged with the same crimes.

From their inception, the guidelines were formulated to calculate a score based on numeric values assigned to the most serious (or “primary”) offense; any other lesser ( or “additional”) offenses pending before the court for sentencing; and any prior convictions for which a sentence has previously been completed. Juvenile offenses which occurred within 5 years of the primary offense ARE scoreable.The exception to this use of prior convictions occurs where there has been a 10 year gap between the date of release from a prior criminal sentence and the next criminal arrest. Under these circumstances, the prior convictions are NOT scoreable.

In addition to these calculations, additional points are assessed for victim injury; whether the crime was committed while on probation for another charge; whether a firearm was possessed or if drug trafficking was involved. The magic number in this system is 44. If the total score is less than or equal to 44, the court may impose any “non-state prison sanction”, which includes probation, house arrest or county jail time. If the total is greater than 44, the number 28 is subtracted and then multiplied by .75 to arrive at the minimum state prison sentence in months that must be imposed. The maximum possible sentence is in most cases controlled by the statutory maximum for the particular offense (eg. 5 years for a third degree felony, 15 years for a second degree felony, and so on).

Quite frankly, while this appears on it face to be a reasonable goal, since their inception, the guidelines have been repeatedly attacked by prosecutors, judges and defense attorneys alike. Since 1983, the rules have been amended numerous times to address obvious problems within the system. However, in their attempt to prevent so-called “rogue” judges from imposing disparate ,(read “too lenient”) sentences, the Legislature has taken much needed discretion away from the vast majority of judges who exercise it wisely. As a result, I have seen numerous cases as both a prosecutor and defense attorney where the guidelines have been either too lenient upon a defendant who deserved a long prison term and too severe where an individual clearly deserved a break.

While there are circumstances within the rules under which a judge may depart from the guidelines recommendation, they are subject to automatic appeal and further clog an already overburdened appellate court system. That is why it is critical from the initial client interview to begin gathering any and all information about the offense and the client’s background to establish valid grounds to depart downward from the guidelines recommendation if necessary.

Rest assured that the sentencing guidelines are not going away any time soon. As a result, at the Heyman Law Firm, a significant portion of our efforts on behalf of our clients are directed towards ensuring that the sentencing judge has sufficient reasons to take back his or her discretion and avoid rendering an otherwise unduly harsh sentence.