Stephen G. Cobb - Florida Criminal Defense Lawyer

Are There Minimum Sentencing Requirements For Felony Convictions?

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Yes, there most certainly is minimum sentencing for felony convictions. For example, the moment the word “Trafficking” is attached to a drug charge instead of “Possession with intent to distribute”, or sale of a particular controlled substance, then you are talking about a minimum mandatory prison sentence with no gain time. That is an example of where you have a minimum sentencing requirement for a felony conviction. We also have them for DUI and domestic violence cases with misdemeanor convictions. They are very common. There are a number of other minimum sentencing requirements in Florida felony sentencing, for example, sex offenses and for firearms. For most sex offenses other than indecent exposure, which is a misdemeanor, there is a requirement of sex offender designation.

That can come with sex offender registration, and in some cases, involuntary commitment under the Jimmy Ryce statute. These are all examples of minimum sentencing requirements. Whenever a charge has a firearm enhancement added, you are talking about minimum mandatory prison sentencing. In addition, some are not used very often anymore, although they still exist and used. For example, habitualization statute. We have two designations for habitual criminal offenders, one being habitual felony offender, or as we call it in a short form HFO, and then there are habitual violent felony offenders HVFO, and each of those means that person is looking at double the maximum sentence and zero gain time.

Finally, we have what is known as the Prison Releasee Re-offender Act, which also invokes minimum mandatory sentences, and then we have various enhancement statutes such as where law enforcement or emergency services personnel are involved. These types of laws are very specific and require, in my view, advanced knowledge. If someone is charged, or someone’s family member or a loved one is charged with these types of serious crimes, it is even more critical to qualify any attorney they consider hiring to defend the charge. Many lawyers have handled many cases; very few lawyers have tried enough cases in front of a jury to be certified as an expert in criminal law, and such qualifications make a big difference in the outcome of these serious types of cases.

Can My Attorney Ask For Alternative Sentencing?

An attorney can ask for alternative sentencing, but most lawyers blow this. How do I mean that? Let us say someone is facing serious sanctions and they have a longstanding drug problem. One of the alternatives that may be available is drug court. Drug court is twelve to fourteen months of multi-phased drug treatment that is based on Faith Healing. They call it the twelve-step program, but I think faith healing would be more accurate when seven of the twelve steps are faith-based, and not scientifically valid. Drug court has numerous problems. For example, the time requirement to go to some type of therapy session every single day, get drug tested every other day, and then go to court once a week for the first three or four months is burdensome that many people blow drug court simply because of the time requirement.

On top of that, many times they are required to sign a plea of no contest or guilty and that plea is set aside so that they can enter drug court. What is dangled in front of them like a carrot is that they are going to get a favorable outcome quite often, such as charges dismissed, probation, or whatever The reality is that they are in for a lot of suffering, and long-term drug court is not effective. Nobody wants to hear that. Defense lawyers are supposed to jump up and down in unison praising drug court as a step in the right direction that should be made more available to a wider variety of people charged with felonies. In reality, I consider drug court to be a failure, both as an alternative sentencing program and as a treatment program. It is based upon beliefs without testing. What do I mean?

If you or a loved one breaks a bone, the next step is obviously to go to a doctor. When this is done, we all expect to get an x-ray. Why would you want an x-ray? So that the doctor knows what they are doing, and they can actually see what the problem is and take the best possible approach to try to fix the problem. With drug court, there is this assumption as to what it means to be addicted to drugs and one size is supposed to fit everybody. This is like going to the doctor with a broken arm only to find out that everybody who comes in with that complaint gets a red cast on their right knee. For people who need a red cast on their right knee that is the exact treatment required. However, for everybody else, that is a real problem. Therefore, alternative sentencing is available.

Your lawyer needs to be extremely skilled at how they approach it. In the same types of cases that other lawyers are trying to shove drug courts down their client’s throats, I am sending people to get advanced diagnostic brain imaging based psychiatric and psychological evaluations. Why would I do that? Primarily because that is the best type of diagnosis a person can get, and they are not likely to get some crackpot treatment theory that will not help them. I can also use it in negotiations with the prosecutor, and if necessary, take it before the court at a sentencing hearing. We have a much more effective treatment for behavioral disorder than a one size fits all alternative programs that have a very high failure rate long term. They will jump up and down and tell you about how wonderful drug court is because of a large number of people graduating, which is eighty to eighty-eight percent.

What they do not want to talk about is how the legislature will not appropriate money to study the long-term effectiveness. The reason the legislature will not appropriate money to study the long-term effectiveness is they know that it is not very good. There are other alternative programs that are better, and veteran’s court is probably the best example. However, far too many people are excluded from veteran’s court due to the political concerns of the elected prosecutor in each of the twenty circuits in Florida. On top of that, they are not using the most advanced diagnostic tools so their effectiveness is more limited than it could be. Finally, we have the worst alternative program of all, and that is known as Pre-trial Diversion. Let me give you an example in the context of domestic violence.

I can work out a negotiated dismissal on a first offense domestic that will result in charges being dismissed fairly quickly with few or even no conditions. A typical domestic violence pre-trial diversion would be something like entering into pre-trial diversion after signing a plea of no contest. The pre-trial diversion will last for a full year. You will report to a pre-trial diversion officer, which is a probation officer, for each of the twelve months while on diversion. You will pay $52 a month for the cost of being supervised while on pre-trial diversion. You will be frequently and randomly drug, and breath-tested. You will be required to take twenty-six weeks of batterer’s intervention program, a counseling program that does virtually nothing in terms of diagnosis but imposes pretty intense treatment that is very expensive regardless of whether that treatment will be effective or not.

Then there are conditions such as perform X or Y number of community service hours during the diversion. Now, compare that to a negotiated dismissal that is timed out to last for ninety days that has an automatic termination provision, and that person only has to say pay $350 in court costs, and cost of prosecution. Once this is paid, the case is over. Compare that to a scenario where it is dismissed with no conditions. The diversion program looks good as an alternative. When prosecutors have unrepresented people who do not know what they are doing, have no experience in the criminal justice system and they hear the phrase, “Charges will be dismissed”, you have people jumping all over these diversion programs not realizing that they appear to be designed to set people up for failure.

When that person fails, they have a harsh punishment as a result. Florida needs to have alternative sentencing, but it needs to be done far better than it currently is by the authorities.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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Stephen G. Cobb, Esq.

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