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The sentencing phase of a criminal case begins after a defendant in a criminal matter is convicted by a jury, or accepts a guilty plea from the court or the government. Once this phase of the case begins, a judge will establish the appropriate penalty. According to the Supreme Court the sole instance where a jury is involved in the decision of a sentence is in a death penalty case, where the defendant's conviction and their sentence must be administered in separate judgments by the jury. In a federal conviction or an approval of a guilty plea by the defendant, the judge will take into consideration the Federal Sentencing Guidelines which are instructions that set forth a constant sentencing procedure for individuals and groups which have been convicted of serious felonies as well as severe misdemeanors. These guidelines are variables that contemplate the type of crime that has been committed as well as the convicted individual's criminal history taking into account previous illegal activity carried out by that individual.  These guidelines were introduced by the U.S. Sentencing Commission under the Sentencing Reform Act in the 1980's in order to minimize the disparities of penalties from one judge to another's ruling. It is important to point out that these guidelines are not compulsory regulations based on a 2005 Supreme Court case (U.S. v. Booker) where it was found that necessitating a judge to the use of these guidelines stringently violated the Sixth Amendment to the U.S. Constitution. Thus, these guidelines are more an advisory tool than a requirement.

Several states have adopted sentencing guidelines that are similar to the federal rendition and similarly, the detail that they're basically advisory and not mandatory should apply to these recommendations by state judges as well. However, in some states there are mandatory minimum sentences that are firm in their assertions.

Attaining the most favorable sentence after a conviction is a vital attribute of a superior trial attorney. Depending on the circumstances, after a guilty plea has been determined, whether by the verdict of a jury or an arrangement between the prosecution or government (plea deal), superior post-trial advocacy can result in a best possible outcome of a case in its disposition or a significantly reduced sentence.

Judges take a host of factors into consideration before they render a decision of what a convicted defendant's sentence will be. One important factor is the judge's belief that the defendant has shown substantial remorse and regret for their actions during court proceedings and prior to their sentencing as well as during a sentencing hearing. Other elements usually taken into consideration are the defendant's previous criminal record or lack thereof, their social, economic, mental state and personal situation, the method in which the crime was committed and its impact on any victims affected by the crime such as injuries incurred, to name a number of observations the judge may be considering.  

In Florida the post-conviction appeal process is essential in cases that conclude with a conviction where penalties fall into the category of mandatory minimum sentences.

Florida has some of the strictest of these in many categories. As an example, being convicted of drug trafficking of more than 28 grams of  a controlled substance such as Oxycodone or Vicodin has a mandatory minimum sentence of twenty-five years of incarceration. In Texas, the same crime is punishable by two years in prison. To put this in perspective, the twenty-five year prison sentence is the same for an individual who was convicted of the molestation of a child under the age of twelve years. The state has mandatory minimum sentences for a number of drug crimes as well as a number of other offenses.

Florida also obligates a sentencing policy known as 10-20-Life for certain felony convictions concerning the use or attempted use of a gun or other destructive device. This policy includes a mandatory minimum 10 year prison term for using a firearm during the commission of a crime, even if it wasn't fired. If the weapon is fired the penalty doubles to a mandatory minimum 20 year prison sentence for its usage during the crime. In the case where someone is injured or killed during the crime the mandatory minimum term of incarceration moves to twenty-five years to life in addition to any other sentence for the shooting. This sentence will be imposed whether an injured individual survives or not. Additionally, if the firearm in question is a machine gun or an assault weapon, the structure of the sentence will change to minimums of fifteen, twenty, or twenty-five years to life. This penalty is the base aggregate of years to be served and will be added and consecutive to the term of imprisonment for the underlying felony's term of punishment.

To continue reading about the sentencing process, view examples of cases, and see how my law firm can assist in this area of the criminal law process, click here.