What Happens If I Lose My Trial? The “Hurricane Path” of Sentencing

By: John Guidry

How hard is it to predict the path of a hurricane? We have computer models. We have Satellite 4000 Radar Plus scanning the skies. We have people with Ph.D.s, wind sensors, thermometers, and atmospheric pressure sensors. And still, no one can tell you exactly where that storm is going to land.

I remember when Hurricane Dorian was heading our way a few years back. Every news channel had nine different “models” showing the storm heading in nine different directions. It’s exactly like Yogi Berra used to say: “It’s tough to make predictions, especially about the future.”

In my 30-plus years as an Orlando defense attorney, one of the most common questions I get is, “John, what happens if we lose?” It’s a fair question. You’re facing the power of the State, and you want to know the risk. Some lawyers will give you a “blabbing” sales pitch full of false confidence just to get hired. I won’t do that. Predicting a sentence is like predicting a hurricane—it depends entirely on the “atmosphere” of the courtroom and, most importantly, who is your judge?

Facing a tough decision between a plea deal and a trial in Orlando? Don’t roll the dice without knowing the odds. Call John Guidry at (407) 423-1117 for a straight-shooting analysis of your case.

The Legal Breakdown: The “Trial Penalty” and Vindictive Sentencing

The “sad but true” reality of our system is something called the Trial Penalty. This is the massive difference between the sentence a defendant is offered in a plea deal and the much higher sentence they often receive if they are convicted at trial.

However, Florida law has a safeguard called the “Vindictive Sentencing” doctrine. A judge cannot punish you simply because you exercised your Sixth Amendment right to a jury trial. But as a recent 2025 case, Gonzalez v. State, reminds us, proving a judge was “mad” at you for going to trial is an uphill battle.

Under the landmark Florida Supreme Court case Wilson v. State (845 So. 2d 142), courts look at four main factors to see if a sentence is illegally vindictive:

• Judicial Participation: Did the trial judge initiate the plea discussions? Judges are supposed to be neutral arbiters, not deal-makers.
• Judicial Comments: Did the judge make “insane” remarks on the record urging you to take the plea or implying the sentence would be worse if you “wasted the court’s time” with a trial?
• The Disparity: Is there a “shocking” difference between the plea offer (e.g., probation) and the final sentence (e.g., 20 years in prison)?
• The Reason for the Increase: Is there some new, legitimate evidence that came out during the trial that justifies a harsher sentence, other than the fact that you didn’t just “blab” a confession and take a deal?

In the case of Carballo v. State (2019), a man was offered a deal to drop all charges if he just paid restitution for popping tires with nails. He refused. After losing at trial, the judge “maxed him out” with jail time. Because the judge didn’t personally participate in the plea talks, the appellate court upheld the sentence. The lesson? A prosecutor’s “kindness” in a plea offer shouldn’t be mistaken for weakness in their case.

John’s Takeaways

• Know Your Judge: A great lawyer knows the judge’s “track record.” In Orange and Seminole County, your sentence can vary wildly depending on who is sitting on the bench.
• The Spreadsheet Advantage: I use sentencing databases to show prosecutors that their “high” offers are out of line with what the judge actually does in similar cases. Data can often stop a “vindictive” sentence before it starts.
• Don’t Mistake Kindness for Weakness: Just because a prosecutor offers Pretrial Intervention (PTI) doesn’t mean their case is weak. It might just be a “take it or leave it” door that slams shut once the jury is sworn in.
• The VOP Danger: If you get a “second chance” with probation after a trial, remember that a Violation of Probation (VOP) is a trap. A judge can give you the statutory maximum, and you don’t get a second jury trial to save you.
• Preserving the Record: If a judge makes comments about you “wasting time,” we must object immediately to preserve a “vindictive sentencing” claim for appeal.

Predicting the future is hard, but preparing for it shouldn’t be. Whether your case is in Orange, Seminole, Osceola, Lake, Brevard, or Volusia County, you need to know the potential path of the storm before you decide to stand your ground.

I’ve been trying cases in these trenches since 1993. I’ve seen the “light sentencers” and I’ve seen the judges who will “max you out” without blinking. Let’s sit down, look at the data, and make an informed choice together.

Worried about the “Trial Penalty”? Call John at (407) 423-1117.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.