How Do You Get Probation When Scoring Prison?

Here in Orlando, our judges are well trained. Our judges are well educated. And, for the most part, they do a good job of playing referee in the fights between we criminal defense attorneys versus state attorneys. Our judges are also in a unique position to listen to mitigating factors which should weigh into any sentencing decision.

Here’s the bad news. Our judges don’t always get to determine a sentence, because our legislature has stepped in with various minimum mandatory sentence structures, and mandatory prison sentences based upon scoresheet points (leave it to a bunch of elected legislative officials to assume they know better than the boots on the ground). Basically, in Florida a defendant will be sent to prison if his total sentence points are greater than 44. The point structure is a simple computation that assesses points for the offense (possession of cocaine, for example, carries 16 points), and points for prior offenses (a prior possession of cocaine adds another 1.6 points, a prior grand theft only adds 0.8 points, etc.). Sometimes, the current and prior points may total more than 44 points, and if that’s the case–you’re scoring mandatory prison.

So, does every defendant who scores above 44 points go to prison? No. There are many reasons why a court can issue a “downward departure”, and give the accused a non-prison sentence. Usually, this downward departure is pursuant to a plea agreement between the state and defense. Today, we’re going to discuss an option available to drug users who are scoring mandatory prison, but have no agreement with the prosecutor for a non-prison sentence. It’s Florida Statute 948.20. Here it is in pertinent part:

948.20 (1) 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) or (6)(a), 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 60 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 chapter 810 or any other felony offense that is not a forcible felony as defined in s. 776.08

Do you see the beauty of this statute? It permits a judge to give drug offender probation–rather than prison–to a defendant that scores above 44 points (but below 60 points). And, another beautiful thing about this statute–it doesn’t require a drug charge! The underlying offense can be a grand theft charge, a felony driving while license suspended as a habitual traffic offender, a felony leaving the scene of an accident. It can be anything “non-violent”. So, should you find yourself in the unfortunate position of scoring over 44 points on a third degree felony, and assuming there’s an underlying drug problem, it’s time to have your defense attorney file a motion for alternative disposition requesting drug offender probation pursuant to Florida Statute 948.20(1). And if you’re defense attorney doesn’t know what you’re talking about, good luck…