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.



The jurisdiction of circuit courts is defined by section 26.012, F.S.; that of the county courts by section 34.01, F.S. Plea discussion and agreement is governed by Fla. R. Crim. P. 3.171; the conduct of a sentencing hearing is governed by Fla. R. Crim. P. 3.720 and is predicated upon a finding of guilt after plea or jury verdict. While the trial court may participate in plea discussions upon request of a party and once involved, the court may actively discuss potential sentences and comment on proposed plea agreements, so long as the court acts to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter,(1) nothing in the plain language of the applicable statutes or rules authorizes either the prosecution or the defense to request, or the presiding judge to issue, non-binding advisory opinions as are sought in such pre-plea departure sentencing hearings. A trial judge does not, therefore, have discretion to conduct a sentencing departure hearing prior to the entry of a plea or a conviction by jury.


Regardless, absent explicit statutory authority, downward departure from statutorily-imposed non-guidelines or non-Criminal Punishment Code minimum mandatory sentencing is prohibited.(2)
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1. Wilson v. State, 845 So. 2d 142 (Fla. 2003).

2. See, State v. Crews, 884 So. 2d 1139 (Fla. Dist. Ct. App. 2d Dist. 2004) (delivery of cocaine within 1,000 feet of a school); State v. Andrews, 875 So. 2d 686 (Fla. Dist. Ct. App. 4th Dist. 2004) (aggravated assault on a law enforcement officer); Kelley v. State, 821 So. 2d 1255 (trafficking in cocaine).

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