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Sentences
Criminal Defense Lawyers Should Be Aware of Mitigating Circumstances
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Obtaining the best possible sentence for your client is one of the most important functions of a good trial lawyer. After your client pleads to a charge or is found guilty post trial good advocacy can result in a non jail disposition or a greatly reduced sentence depending upon the circumstances.
Sentences in the Florida State courts are regulated by the criminal punishment code since Oct. 1, 1998. Under the code sentences are computed on a criminal punishment code score sheet. An offender's penalty may range from any non-state sanction in prison up to the statutory maximum sentence under the code allowed by law. Sentencing departures should be obtained if possible in every case to avoid a harsh guideline sentence. Thus competent criminal defense lawyers should be aware of the mitigating circumstances under which a departure from the lowest permissible sentence that can be justified ; these factors include the following:
The departure results from a legitimate plea bargain that has not been coerced. The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct. The capability of the defendant to understand the unlawful sort of manner of conduct or to adapt that manner of conduct to the provisions of the law was significantly diminished. The defendant necessitates specific medical action for a mental ailment that is unconnected to the abuse of a controlled substance or an addiction, or for a bodily infirmity, and the defendant is agreeable to the acceptance of treatment. The victim of the crime requiring restitution that outweighs the necessity for a penalty of incarceration or if the injured party was an originator, eager accomplice, antagonist provoker of the occurrence; the defendant operated under the emotion of extreme duress, pressure or under the control of another individual. Prior to the identity of the suspect was recognized, the victim was significantly reimbursed. The suspect provided full cooperation to the state in his attempt to resolve the existing wrongdoing or any other violation; the crime was committed in an ingenuous method and was a one-time happening where the defendant has displayed regret and/or remorse. When the offense occurred the perpetrator was too young to completely understand the ramifications of their actions and the defendant will be penalized as a youthful offender. The defendant's infraction is of a non-violent felonious variety; with score-sheet points considered low numerated and is agreeable to seeking treatment through a drug court program.
Obviously each of these grounds for departure should be set forth in a written motion and litigated properly at an evidentiary hearing prior to sentence being imposed.
In the federal courts, the law of sentencing is controlled by the United States Sentencing Guidelines which are no longer mandatory; Since the landmark decision of the Supreme Court in the case of United States v Booker and later cases it is clear that the federal sentencing guidelines are subject to a variance from a guideline computation based upon certain factors found in Title 18 United States Code section 3553.
Thus after reviewing a pre-sentence investigation report prepared by the United States Probation Office which calculates a defendant's guideline range prior to sentencing skilled defense counsel should file appropriate objections to the Pre-Sentence Report raising all possible challenges to the guideline range and in addition move for a variance to the lowest possible sentencing range. Although the previous law regarding sentencing departures should be consulted the more modern approach is to consider the law on variance to achieve the best result.
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