When I began work as a Pinellas County prosecutor in 1982, there were no such thing as "sentencing guidelines". Those charged with felony offenses were sentenced by judges armed only with Pre-sentence Investigations ("PSIs") prepared by the Department of Corrections which provided the judge with a synopsis of the charged offenses and a rundown of the defendant's criminal background, if any. The judge had the discretion to impose a sentence anywhere between probation and the statutory maximum time in prison.
In 1982, fueled by dissatisfaction with how some defendants were either sentenced or released early to parole, the Florida Legislature enacted the "Truth in Sentencing" Act. Among other things, this legislation was intended to promote uniformity of sentencing throughout Florida. The theory was that a defendant committing a specific crime in Tallahassee and having a particular past criminal record should receive the same sentence as a similar defendant in Miami. It was a nice idea which has gone through many changes over time so that, in 2021, it finally reflects that original intent.
The first guidelines became effective October 1, 1983. Under the initial law, crimes were ranked in terms of severity, as was the offender's prior history. Through the use of a mathematical formula, a recommended sentence was calculated within sentencing "ranges" which fell between probation and life in prison. The judge was required to sentence the defendant within that range ( i.e.: 2 1/2 - 3 1/2 years in prison) unless there were specific, and narrowly defined, reasons to depart upward or downward.
From my perspective as a prosecutor at the time, the guidelines often seemed too lenient or too harsh under the facts of a particular case. As a result, some filing decisions were made to cancel out this effect. For example, the original guidelines required the defendant to be charged with in excess of 10 grand thefts in order to qualify for a state prison sentence. As a result, if a particular defendant was a repeat offender who had defrauded many, many people, he would be charged with as many thefts as possible under the facts presented to ensure a prison sentence.
On the other hand, a person with no prior record who broke someone's nose in a bar fight would have faced mandatory prison if charged with Aggravated Battery. In those cases, if the defendant agreed to pay restitution, the charge was reduced to misdemeanor battery which would avoid the sentencing guidelines altogether. (That very circumstance later caused the Legislature to create the offense of Felony Battery which will be discussed in a subsequent blog post).
The Sentencing Guidelines were modified in 1994 and 1995, primarily as a reaction to the revelation that as a result of the "Truth in Sentencing" Act, inmates were only serving a small fraction of their actual sentences - in part because parole had been eliminated and prisoners were being granted significant "gain time" against their sentences.
The 1994 revision ranked felonies on a scale from 1-10. A typical Category 1 offense was Issuing a Worthless check. Category 10 was reserved for Homicides. The sentencing ranges were also widened and the sentencing judge could sentence the defendant to either one category above or below the recommended range without needing to provide reasons for the departure.
In 1995, a number of crimes were assigned additional points. In addition, "multipliers" were added for certain crimes which further increased potential sentences.
The Criminal Punishment Code now in effect became law on October 1, 1998. As a result of those changes, the majority of the Judge's discretion in determining an appropriate sentence has been restored to pre-1983 standards. While the guidelines permit a defendant who scores 44 points or less to be sentenced to "any non-state prison" sanction ( i.e. probation; community control or county jail), the courts are now only constrained by the statutory maximum sentences for the charged offenses. The guidelines only mandate what the minimum sentence should be. Even defendants who fall into the non-state prison range can be sentenced to state prison. Guideline departures are still permitted.
The bottom line is that in the 15 years between the enactment of the first sentencing guidelines and the current version passed in 1998, the sentencing structure in Florida's state courts had come full circle - from removing from and later restoring to the judge most of his or her sentencing discretion. Given this fact, criminal defense attorneys must be keenly aware of how the guidelines will be applied to a particular case, and p[erhaps more importantly, how to effectively advocate for a below guidelines sentence to both the State and the sentencing judge. There are times when I request that the Department of Corrections prepare a Pre-Sentence Investigation like they did in 1982.
If you or a loved one if facing charges which are subject to the Florida Sentencing Guidelines, please do not hesitate to contact me at my offices at 727-822-3700 to schedule a no-cost consultation.
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