What happens during sentencing?

Charles Jordan – A sentencing hearing takes place after a plea deal or a defendant has been found guilty and it is, regrettably, one of the most common events to be occurring in everyday life in the United States.

There are currently 1.21 million people serving prison sentences in state penitentiaries, 631,000 people serving time in local prisons, 226,000 serving time in federal prisons, and over 44,000 youth currently serving time in youth detention centers across the U.S.

Each of these individuals had a sentencing hearing where a judge determined how long they would have to spend time in prison.

Sentencing Hearing Factors

Federal rules prescribe that sentencing should occur “without unnecessary delay”, although there are inevitably a wide variety of event that will, rightly or wrongly, delay the imposition of a court sentence.

Further, the US Constitution is the supreme law of the land and it prescribes thsat all sentences in the United States must conform to the requirements of the Constitution, which sets out the basic requirements for sentencing although individual states will make their own policies regarding sentencing matters within that constitutional ambit.

Despite the continued growth of federal criminal law, the vast majority of criminal sentencing takes place in state and local courts.

Federal court statistics from 2003 show that the average sentence given for offenses resolved by guilty plea was 54.7 months, while the average sentence for offenses resolved by trial was 153.7 months.

During a sentencing hearing, a judge will consult the pre-sentencing report, and listen to arguments from the prosecution, defense, and in some cases the victims of the crimes. A sentencing hearing doesn’t consider guilt or innocence because a jury trial or plea hearing will have already determined guilt and innocence.

The pre-sentencing report will be prepared by a probation officer that has investigated the defendant and helps the judge take a closer look into the mental health, chemical dependence, work and education history, socio-economic status, and risk factors in the defendant’s community.

Mitigation and Aggravation

Both sides will be able to provide evidence and witnesses to mitigate or aggravate sentencing. These witnesses will help the judge to determine the character, risk, and traits of the defendant. The prosecution may ask the victims to testify on how the crimes have negatively impacted their lives. Also, the prosecution and defense may submit legal arguments about what sentencing guidelines may apply in your case.

Different States have different methods by which they divide crimes by category and severity. In Florida, for instance, a “2nd degree felony” in Florida is a category of crime punishable by up to 15 years in prison with no minimum while a “2nd degree felony” in Texas is a criminal category punishable by up to 20 years in jail with a mininum of two years’ incarceration in a penitentiary.

In Florida, where we practice with our Florida Criminal Defense Legal Group to avoid surprises, such as being jailed immediately after sentencing, which can occur too frequently if local knowledge of sentencing procedures and practices is not known by the defendant. Although ‘local knowledge’ may not be something that should be taken into account in such matters, it remains a key factor in ensuring that attorneys who have experience in local sentencing practices will use to the best advantage for clients facing sentencing in criminal courts.

Sentencing Possibilities

The severity of the crime you’ve committed will ultimately determine how you will be sentenced but most criminal offenses have a sentencing statute that the judge can use as a guideline in determining your sentence. Here are some examples of degrees and statutory maximum sentences in the State of Florida:

Civil Traffic: Punishable by fines
First and Second Degree Misdemeanors: Punishable up to one year in jail
First to Third Degree Felony: Punishable from five years up to thirty years in jail
Life Felony: Punishable up to life imprisonment
Capital Felony: Mandatory life imprisonment or a death sentence

Sentencing Guidelines

Each felony offense carries a minimum guideline that judges should follow when sentencing in a case. The severity of your crimes and the length of your criminal history will be a factor in the floor of your minimum penalties. A person convicted of a non-violent felony with no criminal history may have a sentencing guideline that allows for fines and probation versus a violent felony offender with a criminal history that carries a minimum sentence of 25 years incarceration.

Minimum Mandatory Sentencing

Even if a judge feels the penalty for the crime may be too harsh, in the case of minimum mandatory sentencing, a judge will have to give the minimum penalty outlined by the statute.

The prosecution has the power to wave minimum mandatory sentencing and can do this by coming to an agreement with the defense, or not including the statutory language in the charging document.

The jury can determine the minimum mandatory sentencing you face indirectly based on the crimes they find you guilty of. The jury will be unaware of the possible sentencing for the crimes but if they determine you to be guilty of a crime that carries a mandatory minimum sentence, then the judge will have to charge you.

Having an adept legal defense team support any client through asentencing could be a determining factor in getting the fairest sentence possible.

Source: Stephen G Cobb Law Office, Florida criminal defense attorney