Scored Under 22 Points? Why the Judge Can’t Send You to Prison

By: John Guidry

They say that if you can’t explain something to a sixth grader, you probably don’t understand it.

Unfortunately, some legal concepts don’t fit nicely into a tiny article like this. Yes, I’m already making excuses, and we’re not even three lines into this. More importantly, I’m warning you that this article tends to be a bit detailed.

This may sound like an episode of “Inside Baseball,” but for those poor folks facing a felony conviction, I hope this provides some insight and comfort.

Facing a felony but have a clean record?

You might be legally protected from prison. Call John today at (407) 423-1117.

The “Under 22 Points” Rule

We defense attorneys constantly complain about minimum mandatory sentences where the legislature forces judges to send people to prison. But today’s topic is the opposite: The legislature tying the judge’s hands to prevent a prison sentence.

Every defendant must be sentenced according to a “Criminal Punishment Code Scoresheet.”

• 44 Points: If you score over 44 points, you are generally going to prison.
• 22 Points: If you score under 22 points, Florida Statute 775.082(10) mandates that the judge cannot send you to prison.

Shocking, I know. The legislature actually passed a law that prevents judges from sending citizens to prison who don’t deserve it.

The Case: Johnson v. State

Our case of the day is Johnson v. State, 215 So. 3d 171 (Fla. 1st DCA 2017).

• The Crime: Johnson was convicted of Fleeing or Attempting to Elude a Law Enforcement Officer (a car chase).
• The Score: Johnson scored only 5.6 points on his scoresheet.
• The Sentence: Despite the low score, the judge gave him 5 years in prison.

The Problem: Because he scored under 22 points, the law prohibited a prison sentence. The judge could have given him:

• 1 year in County Jail (Jail is not Prison).
• Probation.
• Community Control (House Arrest).
• A massive fine.

But prison? That was supposed to be off the table.

The “Danger to the Public” Loophole

Johnson appealed his 5-year prison sentence.

The State argued that the statute permits a prison sentence if the judge can explain in writing how a “non-state prison sanction could present a danger to the public.”

Basically, the judge tried to use a loophole. He argued that Johnson was so dangerous that sending him to county jail (a non-prison sanction) wasn’t enough; only prison would keep the public safe.

Why the Loophole Failed The appellate court was perplexed. How could a judge claim that a sentence of 1 year in jail would “present a danger to the public,” but 1 year and 1 day in prison would fix it?

• The logic is circular and nearly impossible to prove.
• The appellate court noted that the Legislature provided zero guidance on what this phrase actually means.

Because the judge couldn’t logically explain why jail was dangerous but prison was safe, the appellate court threw out the prison sentence.

John’s Takeaways (and Prediction)

The appellate court instructed the judge to resentence Johnson to anything except prison. While this is a victory, don’t celebrate too early.

The Reality of “Judicial Vengeance” Just because the judge can’t send him to prison now doesn’t mean Johnson is off the hook. Here is my prediction for the resentencing:

1. 11 months and 29 days in County Jail.
2. Followed by 2 years of Community Control (ankle monitor).
3. Followed by 3 years of strict Probation.
4. Throw in a $5,000 fine and 500 hours of community service.

In other words, the judge will likely impose so many conditions that not even the Pope could successfully complete them. And when Johnson inevitably violates that strict probation? Then the judge gets another crack at sending him to prison.

Know Your Score

If you are facing a felony, knowing your score is critical. If you are under 22 points, we need to ensure the judge follows the law and keeps you out of the prison system.

Call me at (407) 423-1117. Let’s run the numbers.

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.