Sentencing & Probation

By May 15, 2018Criminal Resources

SENTENCING & PROBATION

What does the judge consider at sentencing?

  1. Scoresheet:  The scoresheet is a mathematical calculation that assigns a Defendant a number of points.  It takes into account the severity of the crime of conviction + the criminal history of the Defendant.  Additional points may be added for victim injury and certain drug and firearm charges.  Click here for a sample scoresheet and instruction manual:  http://www.dc.state.fl.us/pub/sen_cpcm/cpc_manual.pdf
    If the Defendant ‘scores’ under 44 points, he is typically put on supervision.  If he ‘scores’ over 44 points, he is typically sent to prison.  The total number of points sets the lowest sentence that the judge can impose.  A departure is the only way a defendant can get probation or a sentence lower than what they score. See below for more information on departures.
  2. Statutes:  Statutory law may require a higher sentence than the scoresheet.  Some crimes have mandatory minimums.  Some offenders have enhancement characteristics such as Habitual Felony Offender (HFO) classification.  Thoroughly discuss all sentencing aspect with your attorney.
  3. Pre-Sentence Investigation (PSI) report:  A summary of the defendant’s information and sentencing options.
  4. Input from victim:  Under Article I, §16, victims of crime have the right to be heard at sentencing.  They may personally speak or ask another to read a prepared statement.  Talk to your attorney about what to expect.
  5. Statement by defendant:  Talked to your attorney about whether you should speak and what you should say.
  6. Recommendation from prosecutor.
  7. Argument and evidence from defense attorney.

How do I get a sentencing Departure?

‘Getting a departure’ means the defendant scores prison (over 44 points) and is given something less – either put on probation or given a shorter prison sentence.

Note:  A Departure may NOT be based on drug use or voluntary intoxication.

Florida Statute §921.0026 sets out grounds for a Departure:

  • A plea agreement with the prosecutor.
  • The defendant was an accomplice and had a minor part in the crime.
  • The defendant’s ability to appreciate (understand) the criminal nature of the conduct is impaired.
  • That the defendant requires and is amenable to special treatment for a mental disorder – NOT related to drug use and NOT for a physical disability.
  • The need for restitution to the victim outweighs the need for prison.
  • The victim was an initiator, willing participant, aggressor or provoker.
  • The defendant was under extreme duress or 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 qualifies to be sentenced as a Youthful Offender.  To qualify, the defendant must be under 21 at the time of sentencing.  If the criteria of Florida Statue §958.03 are met, the defendant cannot be sentenced to more than 4 years in prison + 2 years on supervision.
  • The offense is non-violent, the defendant scores 60 or fewer points and the defendant qualifies for drug court.  Click here for information on Brevard County’s Drug Court:  {insert link to this topic on my page}
  • The Defendant was making a good faith effort to obtain or provide medical assistance for a drug-overdose victim.

How much time will the defendant serve?

Jail sentence:  The Brevard sheriff may reduce a sentence by up to 10 days per month for good time.

Prison:  Unless good time is lost, a defendant will serve 85% with the Department of Corrections. (He will also get credit for any time served in the county jail.)

Can my probation be modified or terminated early?

Probation can be modified if the conditions or requirements need to be changed.

If all conditions have been completed, all costs paid and the defendant has served ½ of his supervision, she may be eligible to apply for early termination of her probation.

Talk to an attorney about a motion to modify or terminate probation.

Violation of Probation (VOP)

If the conditions of probation are violated – a technical l violation or a new arrest – a defendant will likely be arrested and held in jail until she can appear in front of the judge to determine whether she should be put back on supervision or incarcerated.  An attorney can make argument in her client’s favor and speed up the process.

Jessica J. Travis argues for release and develops a VOP case plan so the defendant can complete as many conditions as possible before the court date.

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