A recent article by Will Hanlon, a Tampa criminal attorney, discusses a change to the sentencing process in Missouri's criminal courts which could come to Florida. This change to the factors which judges could consider during sentencing is so important for Florida taxpayers that our lawmakers should examine it.
Federal law states that anyone who uses a firearm in connection with a crime of violence or a drug-trafficking crime is subject to enhanced punishment. But what exactly does the word "uses" mean? Although the statute itself does not define this word, the United States Supreme Court has discussed its meaning in at least three different cases. An article that I posted on my Federal Criminal Lawyer website examines those cases.
The penalties are severe for drug trafficking in Florida. For example, if a person is convicted in State Court of trafficking in 200 grams or more of cocaine but less than 400 grams, that person must be sentenced to a mandatory minimum term of imprisonment of 7 years and ordered to pay a fine of $100,000. And if someone is convicted of trafficking in 400 grams or more of cocaine but less than 150 kilograms, that individual must be sentenced to a mandatory minimum term of imprisonment of 15 years and ordered to pay a fine of $250,000.
One way of avoiding such mandatory penalties is through something called substantial assistance which has been defined as assistance "directed to the investigation and prosecution of criminal activities by persons other than the defendant."
Florida statute section 893.135(4) provides that "[t]he state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of that person's accomplices, accessories, coconspirators, or principals or of any other person engaged in trafficking in controlled substances. . . . The judge hearing the motion may reduce or suspend the sentence if the judge finds that the defendant rendered such substantial assistance."
All is well and good if an individual provides substantial assistance and in return receives a reduction in sentence. Some people, though, are unable to provide the prosecutor with such information. Others are simply unwilling to do so. In either case, substantial assistance is of no help to them.
Sometimes, however, a defendant provides a prosecutor with information about the criminal activities of others but still does not receive a sentence reduction because the prosecutor or the judge does not believe that his assistance warrants it since the information turned out to be of little value. It is particularly frustrating when that occurs because the accused individual has, as it were, stuck his neck out by providing information about others, yet he receives nothing in return. It is for that reason that some defendants choose not to provide substantial assistance.
I previously published two articles on this website entitled "Florida Sentencing and Drug Court Programs" and "Amended Law Provides Additional Ways to Avoid Prison." Both of those articles looked at new laws that make it possible for some people to avoid being sent to prison even though the Florida Sentencing Guidelines call for a prison sentence.
On July 1 of this year, another law--called the Prison Diversion Program--went into effect in Florida that provides still another way for some individuals to avoid going to prison, but only if they meet the following four criteria:
If a person satisfies these four criteria and the judge decides to not sentence him to prison, then the judge "shall sentence the offender to a term of probation, community control, or community supervision with mandatory participation in a prison diversion program of the Department of Corrections."
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.
Florida's sentencing guidelines determine sentences for felony offenses (except for death-penalty cases) based primarily on the following two factors:
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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