Stephen G. Cobb - Florida Criminal Defense Lawyer

Is Someone Sent Straight To Jail After A Sentencing Hearing?

What Happens at Sentencing?

People who have been sentenced to jail time often wonder whether or not they will be taken to jail immediately. This is the exact reason why no one should enter a plea of no contest or guilty at their first court date outside of the jailhouse. A courthouse surprise can (and often does) happen. I am quite certain that at this very moment, someone in Florida is being taken immediately to jail because they decided to throw themselves at the mercy of the court. So yes, someone can go to jail immediately after sentencing. However, if someone is represented by a competent counsel, then that may not be the case.

Jail time in a criminal case can sometimes be negotiated into a scenario where it becomes a special condition of probation. Because it’s a special condition of probation, it doesn’t have to be served immediately. Moreover, there are cases in which small amounts of jail time can be served on weekends. For most people, the weekend starts Friday night and ends Sunday night, and many jail sentences with a weekend requirement reflect that. However, some types of workers don’t have a weekend on traditional weekend days. To address this, the weekend can be defined during the sentencing process. If someone goes to court on their own, enters a plea of no contest or guilty and is sentenced to jail, then they are going to go to jail immediately almost 100% of the time.

Sentencing for a Felony or Misdemeanor

In many other cases, if someone is sentenced to jail in the felony or misdemeanor court, they will be taken to jail immediately. There are also those circumstances whereby the jail time served is subject to negotiations. For example, someone might be able to serve it on weekends. In very rare scenarios, a person’s report date can be later than the sentencing date. This has to be done very carefully because once the judge issues an order imposing jail time, there are a lot of rules, regulations and laws that prohibit judges from doing certain things. In the federal system, it’s not uncommon for somebody to get sentenced to a prison sentence and then be told to report several weeks later. In state court, this doesn’t happen. If someone gets straight time, they have to report immediately in almost every case. If someone has a split sentence with probation, community control or house arrest as part of their sentence, then the jail time may be served in smaller bites over a longer period of time.

What Factors Does A Judge Consider When Determining A Sentence?

One of the most important factors is going to be the presence or absence of any minimum mandatory sentencing. In misdemeanor cases, the most common example of minimum mandatory sentencing involves DUI litigation. Someone who is convicted of a DUI within five years of any previous DUI in any state or other jurisdiction is subject to a minimum mandatory period of 10 days in jail. In most cases, minimum mandatory sentencing is going to apply in felony cases. The one example that comes to mind is a charge called drug trafficking. For certain types of trafficking, there is a three-year minimum mandatory prison sentence. In other types of trafficking, it’s seven years. You always have to determine if you have a case that involves minimum mandatory sentencing.

Stephen G. Cobb, Esq.

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Minimum Mandatory Sentence

There is another type of minimum mandatory sentence known as a rule 3.992 point-based mandatory sentence. This means that when someone is charged with multiple felony offenses, the most serious of the charges is listed as the primary offense and points are assessed based upon the offense severity ranking level of that charge. There are ten offense severity ranking levels. The higher the ranking level, the more points, and the more points, the greater likelihood of an incarcerate sentence. The magic number is 44. Anything about 44 points must be a state prison sentence. Anything below 44 points but above 22 points may be a state prison sentence. Anything below 22 points is not a state prison sentence unless the state proves a legal ground for what is known as aggravation.

If an aggravator is proven, then the person can go to prison despite having scored less than 22 points. The rule that provides for these types of sentences has two components: point calculation under subsection A and grounds of mitigation recognized by the legislature under subsection B. There are 14 grounds of mitigation that are recognized under subsection B. My favorite is the SPECT brain imaging based specialized treatment departure sentence, simply because I have found over the past 12 years that it is the single most effective way to get a mitigated sentence. Every single person who was in fact guilty of a criminal act has come back with an abnormal brain scan. Because of this, every single person I’ve sent qualifies for a downward departure ground based upon this particular lawful ground of mitigation.

What Does the Judge Consider?

The judge will consider a number of different things at the sentencing hearing within all of those different parameters, including testimony from witnesses. The complaining witness or victim of a criminal episode has a legal right to be present at any sentencing hearing and may offer testimony. The defendant, family members, friends, employers and others may also testify. When we do the specialized treatment departure, we almost always have a medical expert testify in order to explain to the court why that person has a physical disability in their brain and how it affected their thinking. It is usually related to a traumatic brain injury, but not always. A medical expert can also testify as to an appropriate treatment for rehabilitating that person. Specialized treatment departure is an example of restorative justice. As far as I know, I am the only lawyer in the United States that uses it on a regular basis.

So, when considering all of the different facts and circumstances that a judge can look at, some things will make a difference and some things won’t matter at all. Sometimes the judge is bound by the laws of the legislature. At the end of the day, it’s very important to be careful with any sentencing hearing and ensure that your lawyer will know what they are doing weeks or months in the future.

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

For more information on Going To Jail After A Sentencing Hearing, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (850) 423-0035 today.

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Stephen G. Cobb, Esq.

Get your questions answered - call me for your free, 20 min phone consultation (850) 423-0035