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Sentencing
3.800 and 3.850 Postconviction Relief
Sometimes in the pursuit of justice mistakes are made by judges, the State, defense attorneys, and others. In other cases, the human passions of a sentencing judge may cause him or her to impose a harsh sentence which he or she might later reconsider, if asked. These mistakes and oversights are rare but real, and my office is here and fully equipped to stand and fight in your corner against these mistakes.
Two Florida Rules of Criminal Procedure, Rules 3.800 and 3.850*, are the vehicles most often used in my practice for the correction and reduction of sentences already imposed by the judge, as well as for having unlawful judgments, convictions, and sentences altogether set aside. Some examples of common post-conviction problems that I am able to assist with are:
- Missing credit for time served in Florida and out-of-state jails
- Involuntary guilty pleas (whether a plea agreement exists or not)
- Unlawful, excessive sentences
- Florida guideline scoresheet errors
- Ineffective assistance of trial counsel
- Newly discovered evidence</p>
If you believe that you or a family member are victims of an illegal sentence or an unlawful conviction and sentence, please call my office in Melbourne, Florida for a free consultation: (321) 757-6848 or feel free to use the “Contact” tab on the right hand side of this screen to send me an e-mail message.
When you come for the consultation, please bring with you (if available):
- Sentencing “Guidelines Scoresheet”
- The written judgment, sentence, and commitment
- Sentencing transcripts
- Trial transcripts
- Record on appeal, including order affirming the lower court’s judgment.
- Any previous 3.800 or 3.850 filings for the conviction
After our consultation, my staff will make copies of the portions of these records that I’ll need to best represent your position. You may keep the originals in your possession if you wish.
*Please remember, some time limitations apply to Rule 3.800 and 3.850 filings, so it is important to contact an attorney soon regarding your specific post-conviction relief needs. A motion to correct an illegal sentence can be made at anytime. A motion to set aside and vacate a sentence based on new evidence can be made at anytime if the evidence is in fact new. A motion for to set aside and vacate a sentence because an attorney was ineffective has to be filed within two years of the sentencing date or the date of a final appeal, whichever is later.
Sentence Hearings
If a person is found guilty by a Jury or a Judge or pleas guilty or no-contest the person has to be sentenced at a sentencing hearing. It is important to do everything possible to mitigate the crime to get the best sentence possible. This is especially important with a person who has a scoresheet that scores mandatory prison. In this case, if a plea cannot be worked out to avoid prison time then the only other way to avoid prison is to convince the Judge to do a downward departure.
Below are some examples of downward departures:
- Legitimate uncoerced plea bargain.
- Defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.
- The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirement of law was substantially impaired.
- Defendant requires specialized treatment for addiction, a mental disorder that is unrelated to substance abuse or addiction; or for a physical disability, and the defendant is amenable to treatment.
Effective only for offenses committed prior to July 1; 1997—Defendant requires specialized treatment for addiction and is amenable to treatment.
- The need for payment of restitution to the victim outweighs the need for a prison sentence.
- The victim was an initiator, willing participant, aggressor, or provoker of the incident.
- The defendant acted under extreme duress or under the domination of another person.
- Before the identity of the defendant was determined, the victim was substantially compensated.
- 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.
- Defendant to be sentenced as a youthful offender.
DRUG ADDICT EXCEPTION TO MANDATORY PRISON: 1Although not material to this opinion, the Legislature, in 2009, amended the first paragraph of section 948.20 as follows: If it appears to the court upon a hearing that the defendant is a chronic substance abuser whose criminal conduct is a violation of s. 893.13(2)(a)(PURCHASE OF CONTROL SUBSTANCE) or (6)(a)(SIMPLE POSSESSION), or other nonviolent felony if such nonviolent felony is committed on or after July 1, 2009, and notwithstanding s. 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. ; and, in In either case, it 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 chapter 810 or any other felony offense that is not a forcible felony as defined in s. 776.08. § 948.20, Fla. Stat. (2009) (emphasis added).
Sentence Modifications
A person can move to modify a sentence within sixty (60) days of the sentence, or within 60 days of a lost appeal.
RULE 3.800. CORRECTION, REDUCTION, AND MODIFICATION OF SENTENCES (c) Reduction and Modification. A court may reduce or modify to include any of the provisions of chapter 948, Florida Statutes, a legal sentence imposed by it, sua sponte, or upon motion filed within 60 days after the imposition, or within 60 days after receipt by the court of a mandate issued by the appellate court on affirmance of the judgment and/or sentence on an original appeal, or within 60 days after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal from the judgment and/or sentence, or, if further appellate review is sought in a higher court or in successively higher courts, within 60 days after the highest state or federal court to which a timely appeal has been taken under authority of law, or in which a petition for certiorari has been timely filed under authority of law, has entered an order of affirmance or an order dismissing the appeal and/or denying certiorari. If review is upon motion, the trial court shall have an additional 60 days or additional time as agreed by the parties to file an order ruling on the motion. This subdivision shall not be applicable to those cases in which the death sentence is imposed or those cases in which the trial judge has imposed the minimum mandatory sentence or has no sentencing discretion.
Habitual Offender
775.084. Violent career criminals; habitual felony offenders and habitual violent felony offenders; three-time violent felony offenders; definitions; procedure; enhanced penalties or mandatory minimum prison terms
(1) As used in this act:
(a) “Habitual felony offender” means a defendant for whom the court may impose an extended term of imprisonment, as provided in paragraph (4)(a), if it finds that:
1. The defendant has previously been convicted of any combination of two or more felonies in this state or other qualified offenses.
2. The felony for which the defendant is to be sentenced was committed: a. While the defendant was serving a prison sentence or other sentence, or court-ordered or lawfully imposed supervision that is imposed as a result of a prior conviction for a felony or other qualified offense; or b. Within 5 years of the date of the conviction of the defendant’s last prior felony or other qualified offense, or within 5 years of the defendant’s release from a prison sentence, probation, community control, control release, conditional release, parole or court-ordered or lawfully imposed supervision or other sentence that is imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later.
3. The felony for which the defendant is to be sentenced, and one of the two prior felony convictions, is not a violation of s. 893.13 relating to the purchase or the possession of a controlled substance.
4. The defendant has not received a pardon for any felony or other qualified offense that is necessary for the operation of this paragraph.
5. A conviction of a felony or other qualified offense necessary to the operation of this paragraph has not been set aside in any postconviction proceeding.
(b) “Habitual violent felony offender” means a defendant for whom the court may impose an extended term of imprisonment, as provided in paragraph (4)(b), if it finds that:
1. The defendant has previously been convicted of a felony or an attempt or conspiracy to commit a felony and one or more of such convictions was for:
a. Arson;
b. Sexual battery;
c. Robbery;
d. Kidnapping;
e. Aggravated child abuse;
f. Aggravated abuse of an elderly person or disabled adult;
g. Aggravated assault with a deadly weapon;
h. Murder;
i. Manslaughter;
j. Aggravated manslaughter of an elderly person or disabled adult;
k. Aggravated manslaughter of a child;
l. Unlawful throwing, placing, or discharging of a destructive device or bomb;
m. Armed burglary;
n. Aggravated battery; or
o. Aggravated stalking.
2. The felony for which the defendant is to be sentenced was committed:
a. While the defendant was serving a prison sentence or other sentence, or court-ordered or lawfully imposed supervision that is imposed as a result of a prior conviction for an enumerated felony; or
b. Within 5 years of the date of the conviction of the last prior enumerated felony, or within 5 years of the defendant’s release from a prison sentence, probation, community control, control release, conditional release, parole, or court-ordered or lawfully imposed supervision or other sentence that is imposed as a result of a prior conviction for an enumerated felony, whichever is later.
3. The defendant has not received a pardon on the ground of innocence for any crime that is necessary for the operation of this paragraph.
4. A conviction of a crime necessary to the operation of this paragraph has not been set aside in any postconviction proceeding.
(c) “Three-time violent felony offender” means a defendant for whom the court must impose a mandatory minimum term of imprisonment, as provided in paragraph (4)(c), if it finds that:
1. The defendant has previously been convicted as an adult two or more times of a felony, or an attempt to commit a felony, and two or more of such convictions were for committing, or attempting to commit, any of the following offenses or combination thereof:
a. Arson;
b. Sexual battery;
c. Robbery;
d. Kidnapping;
e. Aggravated child abuse;
f. Aggravated abuse of an elderly person or disabled adult;
g. Aggravated assault with a deadly weapon;
h. Murder;
i. Manslaughter;
j. Aggravated manslaughter of an elderly person or disabled adult;
k. Aggravated manslaughter of a child;
l. Unlawful throwing, placing, or discharging of a destructive device or bomb;
m. Armed burglary;
n. Aggravated battery;
o. Aggravated stalking;
p. Home invasion/robbery;
q. Carjacking; or
r. An offense which is in violation of a law of any other jurisdiction if the elements of the offense are substantially similar to the elements of any felony offense enumerated in sub-subparagraphs a.-q., or an attempt to commit any such felony offense.
2. The felony for which the defendant is to be sentenced is one of the felonies enumerated in sub-subparagraphs 1.a.-q. and was committed:
a. While the defendant was serving a prison sentence or other sentence imposed as a result of a prior conviction for any offense enumerated in sub-subparagraphs 1.a.-r.; or
b. Within 5 years after the date of the conviction of the last prior offense enumerated in sub-subparagraphs 1.a.-r., or within 5 years after the defendant’s release from a prison sentence, probation, community control, or other sentence imposed as a result of a prior conviction for any offense enumerated in sub-subparagraphs 1.a.-r., whichever is later.
3. The defendant has not received a pardon on the ground of innocence for any crime that is necessary for the operation of this paragraph. 4. A conviction of a crime necessary to the operation of this paragraph has not been set aside in any postconviction proceeding. (d) “Violent career criminal” means a defendant for whom the court must impose imprisonment pursuant to paragraph (4)(d), if it finds that: 1. The defendant has previously been convicted as an adult three or more times for an offense in this state or other qualified offense that is: a. Any forcible felony, as described in s. 776.08; b. Aggravated stalking, as described in s. 784.048(3) and (4); c. Aggravated child abuse, as described in s. 827.03(2); d. Aggravated abuse of an elderly person or disabled adult, as described in s. 825.102(2); e. Lewd or lascivious battery, lewd or lascivious molestation, lewd or lascivious conduct, or lewd or lascivious exhibition, as described in s. 800. 04 or s. 847.0135(5); f. Escape, as described in s. 944.40; or g. A felony violation of chapter 790 involving the use or possession of a firearm. 2. The defendant has been incarcerated in a state prison or a federal prison. 3. The primary felony offense for which the defendant is to be sentenced is a felony enumerated in subparagraph 1. and was committed on or after October 1, 1995, and: a. While the defendant was serving a prison sentence or other sentence, or court-ordered or lawfully imposed supervision that is imposed as a result of a prior conviction for an enumerated felony; or b. Within 5 years after the conviction of the last prior enumerated felony, or within 5 years after the defendant’s release from a prison sentence, probation, community control, control release, conditional release, parole, or court-ordered or lawfully imposed supervision or other sentence that is imposed as a result of a prior conviction for an enumerated felony, whichever is later. 4. The defendant has not received a pardon for any felony or other qualified offense that is necessary for the operation of this paragraph. 5. A conviction of a felony or other qualified offense necessary to the operation of this paragraph has not been set aside in any postconviction proceeding. (e) “Qualified offense” means any offense, substantially similar in elements and penalties to an offense in this state, which is in violation of a law of any other jurisdiction, whether that of another state, the District of Columbia, the United States or any possession or territory thereof, or any foreign jurisdiction, that was punishable under the law of such jurisdiction at the time of its commission by the defendant by death or imprisonment exceeding 1 year. (2) For the purposes of this section, the placing of a person on probation or community control without an adjudication of guilt shall be treated as a prior conviction. (3)(a) In a separate proceeding, the court shall determine if the defendant is a habitual felony offender or a habitual violent felony offender. The procedure shall be as follows: 1. The court shall obtain and consider a presentence investigation prior to the imposition of a sentence as a habitual felony offender or a habitual violent felony offender. 2. Written notice shall be served on the defendant and the defendant’s attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant. 3. Except as provided in subparagraph 1., all evidence presented shall be presented in open court with full rights of confrontation, cross-examination, and representation by counsel. 4. Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings. 5. For the purpose of identification of a habitual felony offender or a habitual violent felony offender, the court shall fingerprint the defendant pursuant to s. 921.241. 6. For an offense committed on or after October 1, 1995, if the state attorney pursues a habitual felony offender sanction or a habitual violent felony offender sanction against the defendant and the court, in a separate proceeding pursuant to this paragraph, determines that the defendant meets the criteria under subsection (1) for imposing such sanction, the court must sentence the defendant as a habitual felony offender or a habitual violent felony offender, subject to imprisonment pursuant to this section unless the court finds that such sentence is not necessary for the protection of the public. If the court finds that it is not necessary for the protection of the public to sentence the defendant as a habitual felony offender or a habitual violent felony offender, the court shall provide written reasons; a written transcript of orally stated reasons is permissible, if filed by the court within 7 days after the date of sentencing. Each month, the court shall submit to the Office of Economic and Demographic Research of the Legislature the written reasons or transcripts in each case in which the court determines not to sentence a defendant as a habitual felony offender or a habitual violent felony offender as provided in this subparagraph. (b) In a separate proceeding, the court shall determine if the defendant is a three-time violent felony offender. The procedure shall be as follows: 1. The court shall obtain and consider a presentence investigation prior to the imposition of a sentence as a three-time violent felony offender. 2. Written notice shall be served on the defendant and the defendant’s attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant. 3. Except as provided in subparagraph 1., all evidence presented shall be presented in open court with full rights of confrontation, cross-examination, and representation by counsel. 4. Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings. 5. For the purpose of identification of a three-time violent felony offender, the court shall fingerprint the defendant pursuant to s. 921.241. 6. For an offense committed on or after the effective date of this act, if the state attorney pursues a three-time violent felony offender sanction against the defendant and the court, in a separate proceeding pursuant to this paragraph, determines that the defendant meets the criteria under subsection (1) for imposing such sanction, the court must sentence the defendant as a three-time violent felony offender, subject to imprisonment pursuant to this section as provided in paragraph (4)(c). (c) In a separate proceeding, the court shall determine whether the defendant is a violent career criminal with respect to a primary offense committed on or after October 1, 1995. The procedure shall be as follows: 1. Written notice shall be served on the defendant and the defendant’s attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant. 2. All evidence presented shall be presented in open court with full rights of confrontation, cross-examination, and representation by counsel. 3. Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable only as provided in paragraph (d). 4. For the purpose of identification, the court shall fingerprint the defendant pursuant to s. 921.241. 5. For an offense committed on or after October 1, 1995, if the state attorney pursues a violent career criminal sanction against the defendant and the court, in a separate proceeding pursuant to this paragraph, determines that the defendant meets the criteria under subsection (1) for imposing such sanction, the court must sentence the defendant as a violent career criminal, subject to imprisonment pursuant to this section unless the court finds that such sentence is not necessary for the protection of the public. If the court finds that it is not necessary for the protection of the public to sentence the defendant as a violent career criminal, the court shall provide written reasons; a written transcript of orally stated reasons is permissible, if filed by the court within 7 days after the date of sentencing. Each month, the court shall submit to the Office of Economic and Demographic Research of the Legislature the written reasons or transcripts in each case in which the court determines not to sentence a defendant as a violent career criminal as provided in this subparagraph. (d) 1. A person sentenced under paragraph (4)(d) as a violent career criminal has the right of direct appeal, and either the state or the defendant may petition the trial court to vacate an illegal sentence at any time. However, the determination of the trial court to impose or not to impose a violent career criminal sentence is presumed appropriate and no petition or motion for collateral or other postconviction relief may be considered based on an allegation either by the state or the defendant that such sentence is inappropriate, inadequate, or excessive. 2. It is the intent of the Legislature that, with respect to both direct appeal and collateral review of violent career criminal sentences, all claims of error or illegality be raised at the first opportunity and that no claim should be filed more than 2 years after the judgment and sentence became final, unless it is established that the basis for the claim could not have been ascertained at the time by the exercise of due diligence. Technical violations and mistakes at trials and sentencing proceedings involving violent career criminals that do not affect due process or fundamental fairness are not appealable by either the state or the defendant. 3. It is the intent of the Legislature that no funds, resources, or employees of the state or its political subdivisions be used, directly or indirectly, in appellate or collateral proceedings based on violent career criminal sentencing, except when such use is constitutionally or statutorily mandated. (4)(a) The court, in conformity with the procedure established in paragraph (3)(a), may sentence the habitual felony offender as follows: 1. In the case of a life felony or a felony of the first degree, for life. 2. In the case of a felony of the second degree, for a term of years not exceeding 30. 3. In the case of a felony of the third degree, for a term of years not exceeding 10. (b) The court, in conformity with the procedure established in paragraph (3)(a), may sentence the habitual violent felony offender as follows: 1. In the case of a life felony or a felony of the first degree, for life, and such offender shall not be eligible for release for 15 years. 2. In the case of a felony of the second degree, for a term of years not exceeding 30, and such offender shall not be eligible for release for 10 years. 3. In the case of a felony of the third degree, for a term of years not exceeding 10, and such offender shall not be eligible for release for 5 years. (c) 1. The court, in conformity with the procedure established in paragraph (3)(b), must sentence the three-time violent felony offender to a mandatory minimum term of imprisonment, as follows: a. In the case of a felony punishable by life, to a term of imprisonment for life; b. In the case of a felony of the first degree, to a term of imprisonment of 30 years; c. In the case of a felony of the second degree, to a term of imprisonment of 15 years; or d. In the case of a felony of the third degree, to a term of imprisonment of 5 years. 2. Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law. (d) The court, in conformity with the procedure established in paragraph (3)(c), shall sentence the violent career criminal as follows: 1. In the case of a life felony or a felony of the first degree, for life. 2. In the case of a felony of the second degree, for a term of years not exceeding 40, with a mandatory minimum term of 30 years’ imprisonment. 3. In the case of a felony of the third degree, for a term of years not exceeding 15, with a mandatory minimum term of 10 years’ imprisonment. (e) If the court finds, pursuant to paragraph (3)(a) or paragraph (3)(c), that it is not necessary for the protection of the public to sentence a defendant who meets the criteria for sentencing as a habitual felony offender, a habitual violent felony offender, or a violent career criminal, with respect to an offense committed on or after October 1, 1995, sentence shall be imposed without regard to this section. (f) At any time when it appears to the court that the defendant is eligible for sentencing under this section, the court shall make that determination as provided in paragraph (3)(a), paragraph (3)(b), or paragraph (3)(c). (g) A sentence imposed under this section shall not be increased after such imposition. (h) A sentence imposed under this section is not subject to s. 921.002. (i) The provisions of this section do not apply to capital felonies, and a sentence authorized under this section does not preclude the imposition of the death penalty for a capital felony. (j) The provisions of s. 947.1405 shall apply to persons sentenced as habitual felony offenders and persons sentenced as habitual violent felony offenders. (k) 1. A defendant sentenced under this section as a habitual felony offender, a habitual violent felony offender, or a violent career criminal is eligible for gain-time granted by the Department of Corrections as provided in s. 944.275(4)(b). 2. For an offense committed on or after October 1, 1995, a defendant sentenced under this section as a violent career criminal is not eligible for any form of discretionary early release, other than pardon or executive clemency, or conditional medical release granted pursuant to s. 947.149. 3. For an offense committed on or after July 1, 1999, a defendant sentenced under this section as a three-time violent felony offender shall be released only by expiration of sentence and shall not be eligible for parole, control release, or any form of early release. (5) In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony. (6) The purpose of this section is to provide uniform punishment for those crimes made punishable under this section, and to this end, a reference to this section constitutes a general reference under the doctrine of incorporation by reference.
Scoresheet Calculations
On a violation of probation-if the sentence is complete, a new scoresheet must be done, without the sentence done being scored or scored as a prior record, if it occurred prior to any of the offenses. (SEE Sanders v. State, 35 Fla. L. Weekly S219(Fla. 2010)).
7/1/09-If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third-degree felony but not a forcible felony as defined in s. 776.08, and excluding any third-degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.
(28) If the lowest permissible sentence under the criminal punishment code is a state prison sanction but the total sentencing points do not exceed 48 points (or 54 points if six of those points are for a violation of probation, community control, or other community supervision that does not involve a new crime), the court may sentence the defendant to probation, community control, or community supervision with mandatory participation in a prison diversion program, as provided for in s. 921.00241, Florida Statutes, if the defendant meets the requirements for that program as set forth in section 921.00241.
(30) Sentences imposed after revocation of probation or community control must be imposed according to the sentencing law applicable at the time of the commission of the original offense.
Criminal Rule of Procedure, 3.703, 3.704
1999 GUIDELINES (On or after July 1, 1999) Greater than 44 Points=PRISON
1998 GUIDELINES (On or after 10/1/98)-CPC CODE, SKY IS THE LIMIT: When the Legislature adopted the criminal punishment code in 1998, it substantially altered sentencing in Florida. As we recently discussed: In Jones v. State, 813 So. 2d 22 (Fla. 2002), we recognized that the establishment of the Criminal Punishment Code in 1998 made substantial changes relating to the sentencing guidelines.
1995 GUIDELINES (5/25/97 thru 9/30/98)
1994 GUIDELINES(On or after 1/1/94 to 5/24/97)
1993 GUIDELINES (10/1/93-12/31/93)
1.) See Heggs, 759 So.2d at 630 (holding the 1995 sentencing guidelines invalid due to a single subject violation);
2.) The latter four offenses each occurred between October 1, 1995, and May 24, 1997, the Heggs window period as set forth in Trapp v. State, 760 So.2d 924, 928 (Fla.2000).
3.) A challenge under Heggs based on the unconstitutionality of the 1995 guidelines is untimely if filed more than two years after a sentence becomes final. Both district courts require that a motion be filed within two years of when Heggs was decided. Heggs was decided on February 17, 2000 and rehearing was denied on July 10, 2000.
TRIPP DOES NOT APPLY TO CPC CODE
(2) Felony offenses not listed in section 921.0022 are assigned a severity level in accordance with section 921.0023, Florida Statutes, as follows:
(A) A felony of the third degree within offense level 1.
(B) A felony of the second degree within offense level 4.
(C) A felony of the first degree within offense level 7.
(D) A felony of the first degree punishable by life within offense level 9.
(E) A life felony within offense level 10.
(ABOVE 44 is mandatory prison)
PRIMARY OFFENSE:
ADDITIONAL OFFENSES:
INJURY POINTS:
PRIOR RECORD:
UNCOUNSELED PRIORS:
LEGAL STATUS:
FIREARMS:
MULTIPLIERS:
Felonies and Misdemeanors
What’s the difference between a felony and a misdemeanor?
As a general rule, a felony is a crime that may be punished by a sentence of imprisonment for a year or more, while misdemeanors may be punished by no more than a year in the county jail.
Degrees of crimes
In the State of Florida, crimes are divided into different degrees based on the standards of the community. The punishment given for the commission of a crime ought to be neither more severe nor more lenient than the perceived damage to the person or property of another. As representatives of the collective will of Florida residents, the Legislature has categorized crimes into degrees of misdemeanors and felonies reflecting differing levels of seriousness of different crimes:
|
Classification/Degree of Crime |
Statutory Maximum Sentence |
Minimum Sentence |
Example crimes |
| Felony | |||
|
Capital |
Death | Life w/o Parole | Heinous, atrocious, and cruel murders |
|
Life w/o Parole |
Natural Life | Natural Life | Sexual battery of a minor under 12 |
|
1st |
30 years to Life | Probation to 30 years in prison. | Kidnapping, home invasion robbery |
|
2nd |
15 years | Probation to 15 years in prison. | Grand theft $20,000-100,000 |
|
3rd |
5 years | Probation to five years in prison. | Aggravated assault |
| Misdemeanor | |||
|
1st |
365 days | Probation | Repeat trespassing |
|
2nd |
60 days | Probation | Petit theft |
Any degree of crime defended
As a Florida Bar Certified Criminal Trial Expert, I have the required experience and skill needed to defend you against any degree of accusation. Whether you insist on a trial or enter into plea negotiations, my aim is to make sure you receive a legal sentence, presenting to the sentencing judge and to the State reasons why you should receive a more merciful sentence.
“It’s not like ___ killed someone!”
It is a common belief among the family members and friends of the accused, as well as the accused, that unless a person kills someone the accused should get little to no jail or prison time. Perhaps this is why a person who is sentenced to probation for a not so serious crime, doesn’t understand why after numerous violations of probation and or community control that he will do time. After all, “it’s not like he killed someone.”
These same people also believe that people charged with murder either end up having their cases dropped, or receiving a non-prison sentence, but in any event the killers usually end up doing less prison time than people who commit crimes where no one is killed. Causing people to say, “I could murder someone and get less time” or “I would have been better off killing someone,” or “Murderers get less time than that.”
It is a myth to believe that there are a bunch of convicted killers walking the streets, but with the draconian drug laws and various other minimum-mandatory sentences, and enhancements in place a person could kill someone and get less time than a drug addict.133