Wednesday, October 17, 2012


It's not unusual for Clearwater Criminal Defense Attorneys to be asked about fundamental fairness in criminal justice as this recent question illustrates:

due process means getting a fair trial not a not guilty verdict at trial in Clearwater, St. petersburg, Largo & Tampa Bay, Florida
Renoir, Self Portrat, 1875
My son was found guilty of possession of drugs. The drugs were found in his car after he was pulled over for an out of date license tag and police used a drug dog to find drugs in the car. My son didn't know the drugs were there. 
At sentencing the Judge gave him much more jail time than we were told he would get before the trial.  But he didn't take the plea deal because he would have lost his job. Can we appeal the sentence as being unfair and unjust? 

Fundamental fairness in American law is defined by the concept of Due Process. Due process derives from the amendments to the constitution which protect Americans from vague laws and require proof beyond a reasonable doubt to convict in criminal cases. Due Process delineates other protections as described here:
 Our Supreme Court has held that the due process clause protects against practices and policies which violate precepts of fundamental fairness, even if they do not violate specific guarantees of the Bill of Rights. Does the challenged practice or policy violate "a fundamental principle of liberty and justice which inheres in the very idea of a free government and is the inalienable right of a citizen of such government."
As you can see the standard of fundamental fairness is fluid depending on the facts and circumstances of each case. In your son's case it's not enough to simply argue that the sentence was unfair and unjust, as you'd need to establish why it is unfair and unjust. The trial itself and the sentencing after the trial will be presumed as fair unless you can establish that there was error by the Judge or Prosecutor which was fundamentally unfair in itself rather than merely creating a result that you didn't want. In other words Due Process doesn't mean you always get a fair result, but does require a fair process.
Did the Judge give your son a sentence within the Florida guideline and scoresheet range? In Florida an unlawful sentence can always be appealed, but a Judge in sentencing after a jury trial is well within his rights to give more time than was originally offered in a plea offer as long as the Judge is not punishing the Defendant for going to trial. 
For example, if the Judge makes a finding that he gave more punishment because a Defendant after testifying at a trial was convicted and therefore arguably committed perjury or that the facts heard at trial convinced the Judge that the case was more aggravated than he'd believed when making the plea offer, then the sentence will be affirmed by an appeals court in Florida even if the sentence is a mandatory minimum sentence for a nonviolent drug crime which a reasonable person would find as being overly harsh, inhumane and unreasonable. If you want to appeal the sentence you'll need to contact a Clearwater Criminal Lawyer to file a notice of appeal for your son as soon as possible as time is of the essence in any criminal appeal.