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

         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:

1. The crime the person committed is a third-degree felony (for which the maximum punishment is 5 years in prison);
2. The accused individual does not have more than 48 points on the sentencing guidelines, or he has 54 points but 6 of those points are for a violation of probation, community control, or other community supervision, and do not involve a new violation of law;
3. The person has never been convicted of a forcible felony except for third-degree felonies involving burglary or trespass; and
4. The crime does not carry a minimum-mandatory sentence.

         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."

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          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'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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          Imagine the following scenario:  You have been charged in federal court with one count of conspiracy to distribute crack cocaine.  After reviewing the prosecutor's evidence against you, you decide that it is in your best interest to plead guilty to the one count that you have been charged with.  Your lawyer then obtains a written plea agreement from the U.S. Attorney's Office which requires you to admit that you are, in fact, guilty of conspiring to distribute crack cocaine.  Towards the end of the plea agreement, however, is a paragraph that also requires you to admit that you engaged in money laundering even though you have not been charged with committing that particular crime. 

          So what you may ask?  You haven't been charged with money laundering; therefore, there's no harm in admitting that you engaged in that activity as part of the conspiracy to distribute crack cocaine.  Wrong!

          Section 1B1.2(c) of the Federal Sentencing Guidelines states that "[a] plea agreement (written or made orally on the record) containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offense(s)."  In other words, by admitting in your plea agreement that you engaged in money laundering, the judge who will later sentence you will treat it is as if you had been formally charged and convicted of money laundering even though that is not the case at all.  More importantly, the amount of prison time that you are facing may well increase because of your inadvertent admission to money laundering.

          That is precisely what happened in the case of United States v. Miller.  In that case, Mr. Miller was originally charged with committing the two crimes of transporting computer visual depictions of minors engaged in sexually explicit conduct and possession of computer disks containing depictions of minors engaged in sexually explicit conduct.  He eventually pled guilty to both crimes. However, in his plea agreement he also stipulated that he had used email to solicit teenage boys to engage in sexual activity.

          Several weeks after pleading guilty, Miller learned for the first time that the amount of prison time he was facing was substantially more than what he had originally thought it would be because of the emails he had sent.  Miller objected to this increase saying that these emails were not part of the crimes he had pled guilty to because they did not occur during either the preparation of his crimes or in the actual commission of them.

          The appellate court hearing Miller's case rejected these arguments in part because of the stipulation contained in his plea agreement combined with the language contained in Section 1B1.2(c) of the Federal Guidelines.

          The lesson to be learned, of course, is that someone who is considering pleading guilty to a federal crime should be concerned not only about the actual crime he is pleading guilty to but also about any additional facts that he is considering agreeing to as part of the plea agreement.

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I previously authored a post entitled "Disparity in Sentencing and Crack Cocaine."  Earlier this month, the U.S. Supreme Court addressed this same issue in two different cases.  The result was a resounding win for both defendants. 

In his blog entitled "Sentencing Law and Policy," Professor Douglas A. Berman summarizes the two cases as follows:

The Supreme Court ruled 7-2 that the federal guidelines on sentencing for cocaine violations are advisory only, rejecting a lower court ruling that they are effectively mandatory. Judges must consider the Guideline range for a cocaine violation, the Court said, but may conclude that they are too harsh when considering the disparity between punishment for crack cocaine and cocaine in powder form. Justice Ruth Bader Ginsburg wrote the decision in Kimbrough v. U.S. (06-6330)....

Ruling in a second Guidelines case, Gall v. U.S. (06-7949), the Court — also by a 7-2 vote — cleared the way for judges to impose sentences below the specified range and still have such punishment regarded as “reasonable.” The Justices, in an opinion written by Justice John Paul Stevens, told federal appeals courts to use a “deferential abuse-of-discretion standard” even when a trial sets sets a punishment below the range. Chief Justice John G. Roberts, Jr., announced the opinion in Stevens’ absence.

Florida drug offense lawyer Ronald Chapman has been representing people accused of committing drug crimes in Florida since 1990.  You can read more about Mr. Chapman’s experience as a Florida drug offense attorney as well as review news articles about some of his cases.  Some of the types of cases and issues that Mr. Chapman has handled since 1990 include:

• Death Penalty Cases
• Assault and Battery Cases
• DUI Cases
• Drug Cases
• Sex Crimes Cases
• Sealing & Expunging Criminal Records
• Bond|Bail
• Mistaken Identification and Wrongful Conviction
• Police Interrogations
• Sentencing

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