West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          Earlier this month, I published an article on this website entitled Florida Sentencing and Drug Court Programs in which I noted that if a criminal defendant has more than 44 total sentence points on the sentencing guidelines, he is supposed to be sentenced to state prison.

          But on July 1st of this year, the Florida Legislature amended Florida Statute Section 948.20 ["Drug offender probation"] in such a way that some individuals who might previously have been sentenced to prison can now instead be placed on drug-offender probation or into a treatment-based drug court program.  Section 948.20 now provides that:

          "If it appears to the court upon a hearing that the defendant is a chronic substance abuser whose criminal conduct is a violation of [Florida Statute Section] 893.13(2)(a) or (6)(a), or other nonviolent felony if such nonviolent felony is committed on or after July 1, 2009, and notwithstanding [Florida Statute Section] 921.0024 the defendant's Criminal Punishment Code scoresheet total sentence points are 52 points or fewer, the court may either adjudge the defendant guilty or stay and withhold the adjudication of guilt. In either case, the court may also stay and withhold the imposition of sentence and place the defendant on drug offender probation or into a postadjudicatory treatment-based drug court program if the defendant otherwise qualifies. As used in this section, the term 'nonviolent felony' means a third degree felony violation under [Florida Statutes] chapter 810 ['Burglary and Trespass'] or any other felony offense that is not a forcible felony as defined in [Florida Statute Section] 776.08."

          Therefore, according to the amended version of the drug-offender probation statute, a person who has as many as 52 points on the sentencing guidelines may now be able to avoid going to prison.

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          In order to prove someone guilty of the crime of trafficking in cocaine, a prosecutor must establish that the accused individual knowingly was in either actual possession or constructive possession of 28 grams or more of cocaine.  To prove constructive possession, the prosecutor has to show the following two things beyond a reasonable doubt:

1. The defendant knew of the presence of the cocaine; and
2. The defendant was able to exercise dominion and control over the cocaine.

          Proving these two things can sometimes be quite difficult, especially when the cocaine is located in a jointly-occupied automobile.  That was the situation in the case of Culver v. State of Florida.

          In that particular case, Ms. Culver was driving her car and had a passenger with her when the police stopped her.  After a drug-sniffing dog arrived and alerted to the presence of contraband inside Culver's vehicle, the car was searched, and a paper bag containing 33.45 grams of crack cocaine was found behind the passenger seat.  Culver was eventually charged with trafficking in cocaine.

          At her trial, Culver argued that the prosecutor had not established that she was in possession of the crack cocaine found in her vehicle due to the lack of evidence showing that she had knowledge of the presence of the cocaine or that she had dominion and control over it.  Nevertheless, Culver was convicted of trafficking in cocaine.

          On appeal, however, the court hearing her case reversed her conviction because the prosecutor failed to present any evidence linking Culver to the cocaine other than the fact that she was close to it while riding in her car.  The appellate court stated:

"Ms. Culver pointed out that her passenger could have put the brown paper bag behind the passenger seat after Ms. Culver had left the car.  Indeed, both the deputy who made the stop and the K-9 officer who was assigned to watch the passenger expressed concern about the passenger's continuing movements inside the vehicle after the stop.  We note that the [prosecutor] did not present any fingerprint evidence, admissions, eyewitness testimony, or other evidence tending to establish that Ms. Culver had dominion and control over the brown paper bag or the plastic baggie hidden inside it.  For example, the [prosecutor] did not present evidence showing that the law enforcement officers saw Ms. Culver in possession of the brown paper bag, that the brown paper bag was already behind the passenger seat when Ms. Culver left the vehicle, or that the brown paper bag was found inside or in close proximity to Ms. Culver's personal property."

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          Florida's sentencing guidelines determine sentences for felony offenses (except for death-penalty cases) based primarily on the following two factors:

1. The conduct associated with the offense.  (For example, manslaughter is a Level 7 on the guidelines which means that that particular crime has 56 sentencing points.)
2. An individual's criminal history.  (So, for example, if someone has 5 prior felony convictions, that person will score higher on the guidelines than someone with no criminal record assuming both persons are charged with the same offense.)

         Florida law provides that if a criminal defendant has more than 44 total sentence points, he is supposed to be sentenced to state prison.  Florida law also provides, however, that under certain circumstances, an individual who has more than 44 total sentence points does not have to be sentenced to state prison.  Such circumstances are called "mitigating circumstances," and thirteen of them are listed in Florida statute section 921.0026.

          Until several years ago, one of the mitigating circumstances routinely used by defendants to avoid going to prison was substance-abuse addiction.  Such individuals argued that sentencing them to a drug-treatment program was more likely to result in their rehabilitation than sentencing them to prison.  If the treatment program failed, they argued, the judge could then sentence them to prison.

          That was the situation until the Florida Legislature changed the law in the late 1990's.  After that, judges were prohibited from sentencing defendants to drug-treatment programs if the sentencing guidelines mandated a prison sentence.

          But on July 1 of this year, a new mitigating circumstance was added to the list.  This circumstance applies when "[the defendant's offense is a nonviolent felony, the defendant's Criminal Punishment Code   scoresheet total sentence points under [Florida statute section] 921.0024 are 52 points or fewer, and the court determines that the defendant is amenable to the services of a postadjudicatory treatment-based drug court program and is otherwise qualified to participate in the program as part of the sentence.  For purposes of this paragraph, the term 'nonviolent felony' has the same meaning as provided in [Florida statute section] 948.08(6)."

          Thus, given the right set of circumstances, it is possible once again for a criminal defendant in Florida to receive drug treatment rather than to be simply locked up behind bars.

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When someone seeking to have her criminal-history record sealed or expunged files the appropriate paperwork with the Court including a certificate of eligibility issued by the Florida Department of Law Enforcement, that person is legally entitled to have her record sealed unless the judge hearing the case finds that there is a good reason to not do so.  But when a judge fails to schedule a formal hearing to consider the request, that case may very well be reversed on appeal. A look at one such case appears in an article I posted on my Florida Criminal Records FAQ website.

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