Amended Law Provides Additional Ways to Avoid Prison

Posted on October 25, 2009 by Ron Chapman

          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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Florida Sentencing and Drug Court Programs

Posted on October 12, 2009 by Ron Chapman

          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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