Tuesday, January 29, 2008

Pre-Plea Downward Departure Sentencing Hearings

One of the most practiced ways to mitigate a defendant’s sentence, where no other alternatives are available, is through a downward departure from the Criminal Punishment Code sentencing "floor." It is, in fact the practice of some defense counsel to seek a "departure hearing" before a defendant enters a plea to test the court for leniency, although some courts will not entertain such a hearing until the defendant has pled.


Pre-plea "departure hearings" comprise an unauthorized blending of plea discussion and agreement with the conduct of a sentencing hearing, and the creation of a legal fiction that an offense is not "before the court for sentencing," so as to evade requirements of the Florida Rules of Criminal Procedure and statutory law. Such hearings are a means for the defendant to get a commitment from the presiding judge as to whether and how much of a downward departure sentence he or she will impose if and when the defendant decides to plea without making any commitment in return. Typically, these hearings are used by the defendant to put on evidence in mitigation without the defendant accepting any responsibility for having committed any wrongful act, which is a contradiction the Rules of Criminal Procedure are designed to prevent. This technique also places a legally unrecognizable burden on the prosecutor and any victim or victims involved to overcome such mitigation and persuade the judge not to depart downward in the event that the defendant does decide to enter a plea. Under the former guidelines, where upward departure was a possibility, the prosecutor would often try to blunt the defense request for downward departure by putting on evidence in aggravation and requesting an upward departure during the same hearing. Additionally, the conduct of a pre-plea departure hearing tends to invert and short-circuit the trial process by substituting the defendant’s case for leniency for the prosecutor’s presentation of all relevant evidence of guilt before a jury in a trial. Such a procedure is also contrary to principles of judicial economy and entails the potential for otherwise unnecessary and avoidable recusal consequences.

Thursday, January 24, 2008

Violent Felony Offenders of Special Concern (VFOSC)

In response to questions about Florida's "Anti-Murder Act" and the creation of the designation "Violent Felony Offender of Special Concern," or VFOSC, I am posting the following summary:

On March 8, 2007, the Florida legislature passed the "Anti-Murder Act," which was signed into law by the Governor on March 12, 2007 as Chapter 2007-2, Laws of Florida. The Act amended section 948.06(4), F.S., to create six classes of "violent felony offender of special concern" (VFOSC). For purposes of sections 903.0351 (bail), 948.064 (notification), and 921.0024 (scoresheet), the term "violent felony offender of special concern" means a person who is on:


1. Felony probation or community control related to the commission of a qualifying offense committed on or after March 12, 2007.


2. Felony probation or community control for any offense committed on or after March 12, 2007, and has previously been convicted of a qualifying offense. "Convicted" in this regard means a determination of guilt which is the result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is imposed or withheld.


3. Felony probation or community control for any offense committed on or after March 12, 2007, and is found to have violated that probation or community control by committing a qualifying offense. Note that only a "finding," and not a conviction, is required.


4. Felony probation or community control and has previously been found by a court to be a habitual violent felony offender as defined in section 775.084(1)(b), and has committed a qualifying offense on or after March 12, 2007.


5. Felony probation or community control and has previously been found by a court to be a three-time violent felony offender as defined in section 775.084(1)(c), and has committed a qualifying offense on or after March 12, 2007.


6. Felony probation or community control and has previously been found by a court to be a sexual predator under section 775.21, and has committed a qualifying offense on or after March 12, 2007.


For purposes of section 948.06, the term "qualifying offense" means any of the following:

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