HOW FEDERAL SAFETY VALVE CAN VOID A MANDATORY MINIMUM SENTENCE EVEN AFTER A FEDERAL TRIAL

One of the few ways to avoid a mandatory minimum sentences in nonviolent federal drug cases is by invoking the safety valve provision. The safety valve is useful way for any defendant to avoid a harsh sentence under the federal sentencing guidelines if he does not have any prior criminal convictions and if he fulfills an obligation to be debriefed by the DEA or FBI before he is sentenced.

Recently a Florida federal criminal defense attorney sent the following email:

Federal Judge slowly opens Safety Valve

What do I need to do to make certain of getting safety valve after a trial?  I have a drug conspiracy trial set and my client is safety valve eligible, I want to make sure I don't do anything to invalidate his eligibility at jury trial so that if we lose the trafficking in cocaine case the judge will still not sentence my client to the mandatory minimum prison term.

Other than making sure the jury does not convict his client what should he do to make sure that his client's eligibility for the safety valve is not compromised.

Under the Federal Sentencing Guidelines section 5C1.2  and federal caselaw the defendant must provide full and truthful disclosure no later than the time of sentencing. 

Not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant had concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

Usually sentencing after a federal conviction at trial will occur about three months later unless there are good reasons for the District Judge to continue the sentencing. Sometimes the government agents and federal prosecutors involved with the case will make it difficult to schedule the debriefing meeting possibly because they're miffed that the defendant chose to exercise his right to a jury trial. If that's the case a motion should be filed with the judge asking that the court order the agents to attend the defendant's proffer at a set time and date under threat of being held in contempt. 

But is a mere proffer completed before sentencing enough? No, it isn't. To get the safety valve provision the sentencing guidelines clearly call for the defendant to come clean in a complete and truthful way in the proffer to persuade the sentencing judge that the defendant has been honest. (see US v. Brownlee, 204 F.3d 1302)

We live in an era of prison over-incarceration because federal and state judges no longer have sentencing discretion in nonviolent drug crimes. Anytime the safety valve can be used to avoid a mandatory minimum the judge becomes a free agent who can finally give a much fairer sentence to the defendant.

THE SENTENCING GUIDELINE RANGE SHOULD ONLY BE ONE FACTOR USED FOR FAIR SENTENCING IN FLORIDA

Finding the appropriate sentencing guideline range is one of the most important factors in sentencing since judges and prosecutors use the guidelines as a base point for sentencing. When the sentencing guidelines call for prison time it's very important for to find the best ways to avoid the implications of the guideline range so the judge has better sentencing options. Within the state and federal sentencing guidelines systems prosecutors often have far more power than judges in determining the final outcome of sentencing so judges must be stopped from giving prosecutors preference in sentencing to achieve the best results for defendants.

Weighing the real costs of prison.
Vermeer, Woman Holding a Balance

The most important factor in sentencing other than the application of the sentencing guidelines is persuading the judge who may be human that you're a person and not just a case number and that just maybe you're a human too. Let's face it judges see the worst of humanity in their courtrooms every day. Imagine spending hour after hour listening to lawyers constantly arguing and belittling each other. It'd make anyone less inclined to be sympathetic. And it would be difficult to actually listen for mitigating factors in sentencing thru the fog of arguments.

Ultimately the goal of the process for some judges seems to be simply to harshly punish rather than to find the best remedy for whatever caused the criminal allegation in the first place. For a defense lawyer the driving force of presentations to the judge should be to read the judge's mind to find the best arguments for a non-prison sentence of probation, house arrest or work release. For most cases within the criminal justice system a prison only ruins the lives of the offender and his family and does nothing to help rehabilitate him. Is jail really necessary for a drug crime such as possession of cocaine or for a crime against property such as grand theft? What are the real costs of sending someone to prison?

Does the judge consider that the defendant will lose his job? Does the judge know that the family will lose their home? Does the judge understand that the children will no longer have a parent? Therefore it's necessary for the criminal defense attorney to touch the very heart of the sentencing judge so that he fully comprehends all of the dire consequences a sentence of prison will mean in balancing for a fair decision. So often in criminal law we see the results of a harsh sentencing is far worse than the very crime being answered.

WHY DO FLORIDA DOMESTIC BATTERY ALLEGATIONS ALMOST ALWAYS RESULT IN ARREST & PROSECUTION?

In Florida domestic battery allegations almost always result in one of the spouses being arrested. It isn't always the one who started the fight, nor the one who called 911, nor even the one who seems to be hurt the most who is arrested. In Pinellas County as in the rest of Florida domestic battery, assault, aggravated battery, aggravated assault and spouse battery are criminal acts that are believed to be threshold crimes. 

Not only are the crimes viewed as significant in and of themselves but judges and prosecutors pursue sentences with added heft because studies have shown that some unaddressed small violent acts if not corrected may lead to the commission of more extreme violent acts. Because even small violent acts are taken seriously an arrest is likely as is a thorough prosecution of each case even when the victim does not wish to prosecute as the State of Florida is also viewed as a victim in these cases.

At a minimum for misdemeanor arrests and convictions such as for simple battery, assault or simple domestic battery punishment may include anger management classes as a condition of six months probation in lieu of jail. Also, if guilt is admitted it may be possible to enter a Pretrial Intervention Program within the Pinellas County Domestic Violence Court with the charge being dismissed after a period of six months in some situations.

However, felony arrests are much more complicated because Florida guidelines and scoresheets may indicate that the judge should give jail or Florida prison time. If you or someone you care about has been arrested for a felony it's important to remember the the five best ways to avoid felony charges and not let a felony ruin your life. In domestic violence felony cases such as aggravated battery, aggravated assault, arson on a home or conveyance or assault with a deadly weapon the Florida sentencing guidelines and scoresheets will come into play driving up the possible sentencing ranges within which a judge must sentence unless your Clearwater criminal defense lawyer persuades the judge to accept and articulate for the record enumerated justifiable statutory reasons for going under the Florida sentencing guidelines.

It's always important to contact your Clearwater criminal defense lawyer as soon as possible if you've been arrested in Pinellas County, Florida so that the damage to your life and to your family and your employment opportunities from your arrest can be minimized and the best efforts made to get the best possible results possibly finding a way to dismiss or reduce the charges against you. 

HARD RIGHT SHIFT TO LAW & ORDER ALLOWS SPINELESS FLORIDA JUDGES TO GIVE HARSH SENTENCES

Even the toughest sentencing judges in Florida's vast array of federal and state courts seemed to mellow over the past few years as they accepted the fact that harsh sentencing especially for nonviolent offenses such as drugs, fraud or grand theft was abhorrent. As defense lawyers focused media attention to the devastated families and loved ones of defendants ruined by the criminal justice system it slowly became clear to society at large and even to law enforcement, prosecutors and judges that in daily use the harsh sentencing based on absurd sentencing guidelines and unfair minimum mandatory sentencing that often subverted justice and that they had gone too far in criminalizing nonviolent behavior with significant jail time. 

Judges could no longer effectively convince us that when they gave inhumane sentences that it was only because they lacked discretion under the sentencing guidelines. The most politically sensitive judges were the first to see that times had changed and were happy to receive more praise for more reasonable sentences. Soon others followed till a consensus developed for nuanced sentencing based on fairness, reasonableness and rehabilitation and giving a second chance thru the pretrial intervention program rather than retribution.

Those days of aspirations toward a Florida system of fair sentencing are about to end. The political climate for greater law and order will quickly turn the most spineless judges into mere adding machines pleasantly spitting math scores and spilling blood at sentencing. Eventually the zeal of long sentencing will sweep away any of the remaining reluctant judges until they're all giving minimum mandatory sentences that corrupt the very prosecutors and judges who pursue them with no apparent shame just as they were only a few years ago. Close your eyes as they waste another generation of lives thrown away for no purpose other than the fact that judges enjoy being judges. 

EXPOSURE TO VIOLENCE AS A CHILD FOR MITIGATION IN SENTENCING IN FLORIDA FEDERAL & STATE COURTS

It's believed that children exposed to high levels of violence are much more likely later in life to commit crime. Therefore it stands to reason that proof of exposure to violence as a child should be grounds for mitigation of criminal sentences. This is clearly true for a proper defense for any juvenile defendants who have been subjected to violence, sexual battery, sexual harassment, electronic harassment, bullying or any other act of inappropriate violence. But Defense lawyers should also use this information to the advantage of their adult clients to secure the best possible outcome in all Florida criminal courts (federal and state). So in evaluating your case it's important for your criminal defense lawyer to not only gather information on the charges you may be facing, but to have a clear understanding of every facet of your life and upbringing.

In Florida criminal courts and in the federal court in the Middle District of Florida reference can be made to the National Institute of Justice compendium of research on children exposed to violence, which as its name implies is a study of the most reliable recent research on effects and attributes of childhood violence. Not only does this study define in a broad way what may constitute violence in many situations, but it also discusses factors of risks and resilience, social bonds of violence, contexts of violence, teen dating violence, clusters of violence, school violence, familial violence and many physical and mental consequences of exposure to violence. So much so that even just writing about all this violence gives me a foreboding feeling of what may be lurking in the hallway as the lights flicker. 

Having this information at hand is important for any client who is a juvenile, but may also be significant for many adult clients who have been victimized or subjected to some type of violence as a child. Clearly the goal is to humanize your client. Good judges and fair prosecutors should be led into the story of your client so that they'll gain an actual interest not only in the facts of a particular case, but also in why the facts happened and how to make certain that any possible triggers for criminal behavior is resolved so that it never happens again. So no matter how old your client is now the compendium may be helpful in finding solid scientific support in persuading prosecutors to reduce felony charges to misdemeanors or as possible mitigation at the time of sentencing instead of merely relying on Florida sentencing guidelines and scoresheets.

HOW TO SURVIVE THE HARD FALL FROM AN ARREST OR AN ONGOING CRIMINAL INVESTIGATION IN FLORIDA

If you've been arrested or have a warrant for your arrest or if you're under investigation for a crime in Pinellas County, Florida you need to find the best way to parachute to safety from Florida's harsh criminal justice system. It's important to find timely help from a criminal defense attorney who will guide you thru the complicated criminal justice system so that you can land with the best possible outcome for your situation. 

How to Parachute to safety from Florida's
Harsh Criminal Justice System

When someone waits to hire an attorney, it only makes it more likely that their side of the story will never be heard or be heard too late to make a significant difference in the outcome of the case. That's because in most cases the criminal justice process works in the following way:

The police initiate an investigation of a possible criminal act. Their primary goal is find the perpetrator without regard to whether there exists sufficient evidence to successfully bring that perpetrator to justice at trial with a guilty conviction. The police either make an arrest or defer arrest for further investigation. 

It's important to understand that whatever decision is made by the relevant police agency, that decision will later be reviewed by prosecutors at the State Attorney's Office. Prosecutors may elect to file no charges or to file different charges or to file the same charges. But prosecutors aren't merely determining if a defendant committed the alleged criminal act, prosecutors use the higher standard of whether whatever charges may be filed can be won at trial. This makes sense in that the prosecutors are the ones who will try the case and must be reasonably certain of success to file a criminal charge.

If prosecutors elect not to pursue any charges, the case will end. Should prosecutors elect to file criminal charges then the criminal case will move forward thru the criminal court. A judge will set a day of trial before which the defendant will either plead guilty to a negotiated outcome or finally have his day in court before a jury of his peers - those unspeakable folks who occasionally ram your cart at Walmart. If convicted a defendant not only faces the frowning judge but the harsh Florida sentencing guidelines and scoresheets that determine sentences in Pinellas Courts from which even the most lenient judge has little room for judicial discretion to reduce a severe sentence.

Having immediate help and legal representation is essential to navigate the difficult and confusing criminal justice process from investigation by the police, to a possible arrest, to investigation of the facts and circumstances of the incident by the prosecutors and possible trial. At every stage your advocate will do everything possible to have the charges dismissed or reduced and to gain the best possible outcome in your case.

HOW THAT FOOL JUDGE HOLDER AIMS FOR JUSTICE BY TRUMPING THE CRIMINAL SENTENCING GUIDELINES

Judges - some are good, some are bad, some are smart and still others are just fools. Let's take a look at Circuit Judge Holder, a fool if there ever was one. For most criminal judges in Florida finding justice for criminal defendants is quick and easy, it's all about calculating the guideline ranges and like a machine spitting out the highest prison sentence possible. Smart judges know you can never give too much prison time to a defendant as it never pays in the end to show too much compassion or to look too deep into the facts and circumstances of a case. Real justice practiced by smart judges in Florida is all about being re-elected preferably without any opposition. The best way to do that is not to take any undo risks with those damned defendants who'd enjoy nothing more than spoiling their breakfast newspaper time with some new sordid crime followed in section B.

Donkey Wonder Fortune Teller Calculating Machine
 Used By Florida Judges to Calculate Prison Terms

Who knew that in the west coast of Florida there could be a judge who is not a mere guidelines and scoresheets calculating machine? Apparently this fool, Judge Holder, believes that justice means weighing all the facts surrounding an incident not only from the prosecution, the police, the witnesses and the victims, but all of the circumstances of a crime including even the possible motivations and incomprehensible suffering of the very defendant who committed the crime. 

In a recent case before Judge Holder in the special court for war veterans he ruled on the fate of a veteran shown to have post-traumatic stress disorder. The young veteran, a student at the University of South Florida, was charged with discharging a firearm, aggravated assault with a deadly weapon and criminal mischief. In his case, as in many so-called violent crimes, no one was actually hurt with his psychological issues combined with alcohol clearly shown to be a contributing factor.

In fact the only life seemingly ruined because of the incident was that of the young veteran who faced not only the grim prospect of years in prison after being branded a violent criminal for the rest of his life, but also of living a life with fewer job and educational opportunities as he'd been expelled from USF.

Because of the proven PTS the Judge Holder gave no jail time despite Florida sentencing guidelines dictating prison. Instead he gave two years of house arrest with a reasonable provision of his sentence being that the veteran receive regular help and therapy for his PTSD. 

But merely making sure that he'd given the young veteran a fair sentence wasn't enough for this judge. He took the time to write members of the board of the University of South Florida and to speak to them in urging the university to allow the young veteran to get his degree. Of course they ignored the judge, after all he's a fool. Just because he cares about justice, compassion and second chances why should he assume anyone else does? This is Florida, after all.

JUDGE'S DEATH MARKS THE END OF AN ERA BEFORE UNFAIR FLORIDA MINIMUM MANDATORY SENTENCING

Judge Mark McGarry

One of Pinellas County's best judges recently died. Judge Mark McGarry served as a judge from 1968 until his retirement decades later. With him goes a charming era when good judges mentored, trained and helped the lawyers who practiced before them. He often bettered lawyers with wit, charm, care and compassion, always a sly jesting glimmer in his eyes.

After thirty years of practicing law I've found that putting on that black robe often changes folks for the worse. I wonder why. Is the power? No, if anything most of a judge's time is spent in boring ways. Pushing shopping carts full of court documents and files thru the criminal justice system with endless status checks, pretrials, hearings, trials and appeals.

The only way a person of genuine intelligence like Judge McGarry was able to sit still on that bench for hours at a time that became years and then decades was because he spent much of that time dissecting those before him, often drawing New Yorker styled cartoons lampooning the judicial system, witnesses, bailiffs, and hapless lawyers who somehow bungled their way into his courtroom. He was deliciously pleased by the casual inadvertant catastrophy that make trials interesting for spectators and nightmarish for lawyers. The police officer who submitted that wrong evidence, say mislabeled cocaine in the marijuana trial, could happily lay claim to immortality, at least for us - laughing -who later saw the cartoon.

And yes, he could be cruel now and then, especially as retirement drew closer. He didn't like the way one somewhat pretentious, politically well-connected prosecutor treated a witness during a jury trial. The prosecutor's last name was Todd.  Judge McGarry waited for the prosecutor to finish questioning the witness by simply saying, "Mr. Toad, do you have any other witnesses?" I don't recall hearing the judge ever use the correct name again.

Of course, it was a different world then. During most of his time while serving as a Circuit Court Judge in Pinellas County only white men could wear those black robes. Bringing more women and minorities onto the bench should also have brought fresh awareness of how the criminal law should be applied. 

Yet Judge McGarry was ahead of his time in understanding the dynamics of fair sentencing. He understood that harsh minimum mandatory drug sentencing merely takes away the judge's discretion to sentence fairly. He knew sentencing guidelines and sentencing scoresheets were simply wrong and he did everything he could to ensure fairness in the sentencing process.

No wonder Judge McGarry left the bench when he did, head held high, an courageous, honest judge. Not long after he left the bench judges, prosecutors and defense lawyers became little more than calculators - adding machines to compute the scoresheets for Florida sentencing guidelines - as nothing but numbers now mattered. There would be no time for laughter nor for cartoons, it was to be all about punishment.

What Is The Likely Sentence That Will Be Imposed By A Judge For A Florida Drug Arrest?

I'm often asked about the likely sentence someone could receive for various drug offenses in Florida. Many factors dictate how much discretion a judge may have in providing a sentence that does not punish too harshly. 

Here are the five most important factors which will be taken into account by the sentencing judge in the first assigned courtroom of if moved to the new Pinellas County Drug Court:

1. The type of drug is an important factor in sentencing. There are many illegal drugs. A drug such as heroin will be more severely punished that a more benign drug such as marijuana or a prescription drug.
2. The amount of drug is a very significant factor in drug sentencing in Florida. A sentence for drugs will be based on the quantity of drugs possessed. Quantity of drugs can be based on the sheer weight of drugs or can be measured by the number of pills possessed by a defendant. If the quantity attributable to a defendant is large enough, then the Florida sentencing guidelines may be trumped by a minimum mandatory sentence which the judge must give under Florida's harsh drug sentencing laws. For example, only a handful of oxycodone pills will trigger a three year minimum mandatory sentence. Although marijuana is more benign than many other drugs, someone who is raising just a few plants may be charged with having a grow house which would require the judge to give a long sentence of imprisonment.
3. The criminal history of the defendant is always a factor in drug sentencing in Florida courts. Someone with no prior drug arrests may be eligible for treatment rather than face more severe sanctions such as prison. However, the judge must take the Florida guidelines into account when sentencing. This means that someone's prior record even for non-drug offenses may outweigh the need for treatment forcing the judge to give a severe sentence.
4. If weapons, firearms or guns were found incident to the arrest for drugs, then you're expectation should be that the prosecutor will ask the judge for a harsher penalty. In Pinellas County, Florida additional charges may be filed or additional time given at the sentencing hearing in your Clearwater courtroom. While in the Federal system in the Middle District of Florida in Tampa the government will ask the judge to give an additional five years on top of whatever the sentence would have been.
5. Finally, if there is an allegation of violence during the use or distribution of drugs in Florida, it's likely that the sentencing judge will use this as an aggravating factor to give a higher sentence. For example, an arresting officer who claims that he was battered during the course of the investigation will not only file an additional felony charge of Battery on a Law Enforcement Officer, but will ask prosecutors to give additional punishment at sentencing.

As you can see there are many variables in any drug charge which may dictate a future sentence. It's important to have a criminal defense lawyer look at the facts of your case to insure that you receive the lowest possible sentence by making arguments to reduce the quantity, quality and relevance of any drugs that may have been found in your possession.

AVOIDING PRISON SENTENCES IN GRAND THEFT & SCHEME TO DEFRAUD CASES WITH HUGE LOSS AMOUNTS

In Florida nonviolent crimes such as grand theft and scheme to defraud often result in lengthy prison sentences especially when the amount allegedly taken is significant. Yet inflation has diminished the actual damage amount values in real terms from statutes that were created decades ago. 

For a grand theft third degree felony it only takes a theft amount of over $300, but if the amount is over $20,000 then a second degree grand theft charge can be triggered and should the amount be over $100,000, then a first degree felony will be charged. Any scheme to defraud charge begins as a second degree and can escalate further based on overall amount of the fraud, the number of victims or the complexity of the fraud. The problem with any second degree felony is that it automatically will result in a guideline range that calls for time in jail or prison. And this is true despite the fact that these cases are nonviolent acts for which prison time brings no benefit to the victim nor to society.

Rather than blindly accepting the statutory loss amounts, you'd think smart sentencing judges would gladly accept evidence of the loss amount in real terms after inflation in their sentencing calculations; thus lowering the sentencing guidelines as well as the charged felony degree in many theft cases. But the prosecutor, dressed in black today, would object on the grounds that if there was a deflationary period, the defense would never accept anything less than the sum denominated in the statute. And the judge would agree because in Florida the guidelines and scoresheets determine the sentencing outcome.

Until Florida guidelines and scoresheets are altered by the legislature to accurately reflect inflationary loss amounts, it will be necessary to remind the sentencing judge of the passage of time since the statutes became law while establishing why a sentence under the guideline range is appropriate under the circumstances of the case. For example, the law in Florida specifically allows a judge to go under the sentencing guidelines if doing so will allow the victim to receive restitution. So that in many theft cases that may trigger a sentence of prison, it becomes a race against the clock to make a good showing to the sentencing judge that restitution can be paid.

WHY EVERY JUDGE SHOULD SPEND SOME QUALITY TIME IN JAIL

It's an unfortunate aspect of the American Criminal Justice System that the vast majority of judges have spent no time in jail. A little jail would do most of them good. Not only would some time in the slammer help them understand what incarceration really entails, it would add some perspective if not empathy to a sentencing process that is often inhumane and robotic. 

Even Judge Judy needs Jail

In fact why stop with just the judges? Prosecutors and Defense lawyers could share a cell, eat beans together and pay seventeen dollars for a two minute call home, just like their targets and clients must do when imprisoned. It's not unusual for prosecutors and judges to forget the hopeless reality of prison by simply basing every Florida sentencing decision on scoresheet calculations and sentencing guidelines. 


Because if they did think about it, if the tortured lives and wasted time of each prison day the defendant would serve had to be counted and assessed in some knowing way, the prisons would be emptied except for the most violent criminals. How does it help anyone to have nonviolent people wasting time in jail? 

Recently a family from my home town sought advice about a federal habeas corpus petition to rectify the results of on an older grand theft case in which the defendant was sentenced to twenty-five years in prison. Twenty-five years for a grand theft! He'd been offered a mere two years of jail before his trial. 

In Florida judges are forbidden to punish someone for exercising their constitutional right of going to a jury trial, but a judge may get around that by stating that information gained at the trial changed one's mind. One wonders if this judge would benefit from spending some quality time in jail himself. In fact why not have the judge spend say one hour for every year for which he sentences someone.

Wouldn't the victims be better off if the Defendant was earning money to pay them back even if he was just flipping hamburgers? Wouldn't society be better off if he was on probation? Wouldn't his children be better off with a father at home? It's unfathomable to me that the American Criminal Justice System is often just in the process but not in the results. Yet the truth is that the habeas corpus action was unlikely to meet with success unless some aspect of the process could be shown to have been a failure despite the obvious failed result of that process.

But let's brighten your day by thinking of others we should place in our empathy jail. Why not send every police officer to jail too?  Starting with the Sheriff,  all the way down. They'd all benefit from having a fuller understanding of how brutal the prison system actually is in Tampa Bay, Florida. Would the Pinellas County Jail's recurring problems with bad food, lack of safety and failures by the medical staff be affected if those in control knew that they would be spending time there? Would the Judges allow it to continue? Would the Prosecutors? Would the Defense lawyers?

FIVE EFFECTIVE WAYS TO PERSUADE SENTENCING JUDGES TO APPLY LENIENT PUNISHMENTS EVEN IF FAIRNESS SEEMS TO DEMAND A HARSH PENALTY

As Americans we often may lay claim to the notion that we want fairness in our criminal justice system. In truth what we want is consistent applications of our laws when applied to others but something less consistent when applied to us or the people we care about. Only when the ugly head of the law bites us do we fully understand that in the application of justice we really require some wiggle room. 

For Tampa Bay criminal defense lawyers justice should be fair except when a client faces a fair result which will also ruin his life, then what? Here are five effective arguments to leverage a judge's discretion to make sentencing findings running against the grain of harsh laws dictating excessive punishment while finding the best possible sentence.

First, look to the law's intended consequences to show that they are irrational when applied broadly. Even the best written laws should be narrowly construed so as not to ensnare those who may never have intended to do wrong at least in the broadest definition of the crime. 

Second, show that the law has unintended consequences that could result in unduly harsh sentencing results. Establish that the facts and circumstances of a case are unique outliers in the law's true intent.

Third, follow up the argument on the law's intended and unintended consequences by finding and presenting evidence of the legislative history of the law. In Florida the legislative history often includes information from committee hearings, debates, votes and amendments made during the legislative process. This evidence can establish that the law maker's intent was not to target the actions under consideration with significant punishment.

Fourth, establish that the harsh punishment for a broken law was not readily foreseeable by the average citizen. This is especially easy when the sentencing judge on the record expresses some surprise when told by the prosecutor where the Florida guideline scoresheet range of prison is for a defendant.

When Defendants were first being sentenced to the initial set of harsh minimum mandatory sentences for drugs some twenty years ago, the best judges were reluctant to sentence people to that much time. They looked for every possible avenue to avoid the law. As a prosecutor at the time I even observed a judge grant a new trial to force prosecutors and defense lawyers to come up with a non-minimum mandatory sentence. 

But as the sentences became more common habit displaced sympathy. With every additional minimum mandatory sentence issued, it became that much more difficult for judges to ignore the heft of the law for others in a misplaced notion that simple fairness dictated heartless sentences for everyone. No, simple fairness means that every judge best honors the law by finding the least possible punishment, despite sentencing guidelines, that provides deterrence and protects the public based on the facts of each case with the unique personal qualities of every defendant. 

And that leads to the the fifth argument which is to appeal to the sentencing judge's sense of wanting to do what is right, which is the most effective argument of all.

FLORIDA BAR DEMANDS JUDGES NOT PROSECUTORS DETERMINE FATE OF JUVENILES TREATED AS ADULTS

Right now in Florida it's prosecutors rather than unbiased Judges who make important initial filing decisions on whether juvenile offenders will be treated as adults. Because of harsh Florida sentencing guideline ranges a charge filed against a child as if he were an adult makes it much more difficult for a Clearwater criminal defense attorney to save that child from being brutalized within Florida's horrific criminal justice system.

James Dean in a Juvenile Arrest

Finally, after over ten years of debate the Florida Bar will become an advocate for young people charged with Florida crime by demanding that judges rather than prosecutors make initial filing determinations for juveniles and that mandatory direct filing should be abolished. The bar committee unanimously made the following findings to change current direct filing law as it relates to juveniles charged as adults and found in Florida Statutes Section 985.557:

* Children with prior felonies should only be direct filed if the child is charged with homicide or the child is at least 16 years of age at the time of the offense, and has been charged with a felony crime involving violence against a person in which the offense was heinous and premeditated, and a written explanation as to why the child was direct filed has been filed with the court. 

* Children with prior felonies should only be direct filed if the child is at least 16 years of age at the time of the offense and has been charged with a felony crime of violence against a person. 

* Children should not be direct filed on misdemeanor offenses. 

* Children who have been direct filed should be entitled to a pre-adjudication reverse waiver hearing, i.e., a judicial review hearing as to whether the child should be prosecuted in adult court or transferred back to juvenile court (as most states have).

This change of law would have directly helped a sixteen year old boy I represented in Clearwater, Florida. He was charged as an adult facing a minimum mandatory prison sentence for using a shotgun to break into a car by shattering the side window not by firing but by striking it with the butt of the rifle. Because he'd been charged as an adult the Judge had limited ability to give a fair sentence even under the Youthful Offender Statute. 

The boy's fate hung in the hands of a Pinellas jury. At trial the jury accepted the argument that by using the shotgun as a tool rather than a shotgun the boy should not be found guilty. All of this unnecessary risk could have been avoided if only the Judge rather than the prosecutors could determine if a child should be treated as an adult.

How Florida treats young people charged with crime has been especially troubling. In Tampa Bay, Florida many parents were outraged to find that their children had been falsely listed in secret law enforcement gang membership lists which allowed local Largo police to groom these children as future criminals. Yet occasionally the crime itself becomes the punishment as happened recently when three young Floridians stoled and snorted cremation urn ashes believing it was cocaine.

Ideally both the defense and the state attorney's office would be allowed to present facts to the judge in a preliminary hearing at which the Judge would make an informed decision distanced from public opinion and politics. Clearly even if the Court makes an initial decision to direct file a juvenile as an adult providing the mechanism of a reverse waiver hearing allows the Judge to send the case back into the juvenile court should it be appropriate before actual sentencing so that the sentence is much more likely to be fair.

ARE JUDGES HUMAN - POSSIBLY SO, BUT HOW CAN YOU BE SURE YOUR JUDGE KNOWS YOU MAY BE HUMAN TOO

Your favorite Clearwater criminal defense lawyer is often asked before sentencing if a particular Judge is human. As it's remotely possible that some stray Judge will one day read these very words I'm tip tap typing as you glance over this page, I'll reluctantly decline to answer that question. 

Is this a fair Judge?

Instead I'll pose a slightly better one - Does your Judge know that you're human? And if not, why not? If you were on a job interview wouldn't you do everything possible to persuade the interviewer about all the impressive things you've done in your life? You'd also talk about the even better things you plan to accomplish in your future. 

It's true that when it comes to sentencing the most important factor is often how the Florida scoresheets and guidelines apply to a specific set of facts. Yet fair sentencing decisions must always include much more than mere guidelines calculations otherwise our Judges are nothing more than human (or not so human) calculating machines. 

The best judges want a firm explanation of more than just the basic  sentencing guideline range blended with bland facts and circumstances of a case. The best judges also delve into the motivations, pressures, family life, failures, successes and goals of a defendant. 

What if you don't have the best judge or for that matter what if have a judge you don't suspect is human? Any judge can be led toward making good decisions that take into account a Defendant's entire life story. In Federal Court in the Middle District of Florida in Tampa, Federal judges have been told by the United States Supreme Court that the Federal Sentencing Guidelines are advisory not compulsory and that the Judges must examine in detail the personal characteristics of a defendant before sentencing. Clearly all judges should make an effort toward understanding a defendant before applying any sentence.

A strong, effective Clearwater criminal lawyer will push the judge toward wanting to learn more about the defendant's entire life history, learning not only what brought the defendant to this point in his life but why the defendant deserves to have a compassionate judge, a judge eager to find the best possible sentencing solutions with as little punishment as possible for a successful outcome.

FINDING THE BEST POSSIBLE OUTCOME BY LEVERAGING YOUR JUDGE'S DISCRETION IN FLORIDA CRIMINAL CASES

Friends and family members of loved ones who have been arrested in Tampa Bay, Florida often seek help from Clearwater criminal defense attorneys. Yet how can family members be sure that a lawyer knows how to find the best possible solution in their criminal case? How do you define success in criminal law? 

Judging Discretion

Success depends on more than the mere facts and circumstances of each case. Success requires that an effective advocate understand the arresting officers, the prosecutors and the judge; how they think and how they're apt to react to a vigorous defense. Knowledge of how the criminal justice system in Tampa Bay, Florida works from arrest, investigation by the the prosecutor, arraignment, pretrial and if necessary trial comes from experience, while experience comes from having handled thousands of criminal cases over a lifetime dedicated to excellent criminal law outcomes. 

Over the past three decades in criminal law the balance of power shifted from impartial Judges to political prosecutors with the introduction of brutal sentencing guidelines, minimum mandatory sentencing, harsh drug sentences and pretrial intervention programs. 

Yet over the last few years the U.S. Supreme Court has made it clear that Judges, not prosecutors must have more discretion in sentencing. In fact the Supreme Court has held that the Federal Sentencing Guidelines are only advisory; therefore when justice requires it, Judges must be willing to give sentences under the prevailing Sentencing Guidelines. Effective advocates must have a keen understanding of how to persuade Judges to use their discretion, while leveraging this possibility with prosecutors to receive the best pretrial offers in change of plea negotiations. 
Finding the best possible outcome must always be the over-riding goal of every advocate in criminal cases. 
Finding the best solution after an arrest requires that Clearwater criminal defense lawyers understand how to use the leverage of Judge's sentencing discretion to guide their clients to safety. 

READING YOUR JUDGE'S MIND: PROBATION, HOUSE ARREST OR WORK RELEASE INSTEAD OF JAIL SENTENCE

Your Clearwater Criminal Attorney is often asked by clients to perform a miracle mind reading before the frowning Judge pronounces  sentence. 
Until the age of four, just like you and everyone else, I could read minds with ease, but society found it culturally intolerable and one morning that comforting bliss of knowing what others thought simply vanished.
It may be reassuring to know that anyone can read the minds of Judges especially before sentencing and you don't need to pass a Bar Exam nor go to law school to do it.

Lippi, Saint Mamas In Prison with Lions, 1455

So if you or someone you love is about to be sentenced what is the Judge going to do? In Tampa Bay, Florida the Judge first looks to Florida sentencing guidelines and scoresheets, which will direct him toward a guideline range. 
To go under the guideline range your legal advocate must find articulable language within Florida law allowing him to do so.

Here are some of the best options for Defendants other than prison which may be available. When the law allows some discretion, a Judge may grant probation if the Defendant has no violent crime history nor is a threat to do further crime. In probation a Defendant will be closely monitored but will still have the freedom to maintain his job and social life. If a Judge finds that someone is apt to do further crime, for example in a drug case where there may be an addiction, then intensive probation may be ordered with random drug tests as a condition.

If probation is not an option, a Judge may grant house arrest, also known in Florida as Community Control if the Defendant would otherwise be imprisoned but can provide the Court with assurance that his home will be a prison with very limited social interaction.
The FDLE has an excellent article, Alternatives To Standard Methods of Incarceration which most Judges probably know by heart; here is an excerpt of the requirements for Community Control in Florida:

Community controlees are: (1) confined under "house arrest" to their residences except during regular employment, public service work, or participation in self-improvement programs approved by the community control officer; (2) required to do public service work for nonprofit and governmental agencies to make reparation to society; (3) required to pay monthly fees to the State to offset costs; (4) required to complete daily logs to account for their activities and time; (5) required to maintain employment to support themselves and their families; (6) ordered to submit to urinalysis and/or breathalyzer tests at any time; (7) must participate in self- improvement courses to improve their chances of rehabilitation.

Years ago while I was a prosecutor the inside joke whenever someone received house arrest was that it was 'delayed reporting to jail.' Like many jokes there's some truth there, because most people find it very difficult not to violate the onerous conditions which attach to house arrest. To successfully complete the terms of house arrest in Tampa Bay, Florida, you must think of it as being jail, but at least the benefit of being in jail at home.
A step closer to prison, but one with at least some freedom is work release, which may be an option for sentencing if the Judge is convinced that a Defendant needs a stepping stone of incarceration in a minimally controlled jail environment at night with limited freedom only to work during the day.
A creative and effective Clearwater Criminal Defense Lawyer will do his best before sentencing to persuade your frowning Judge to give his Clients the best possible results and maybe even crack a smile.