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Does A Felony Conviction Always Mean Jail Time In Florida?


Criminal sentencing is a very complicated area of law. When a person is convicted of a felony in Florida, for example, they will not necessarily face a mandatory prison sentence. Indeed, the courts rely on a complex “score sheet” prepared by the State’s Attorney to determine whether prison is necessary for a given crime.

Briefly, the score sheet starts by assessing a “base level” for the primary offense that the person was convicted of. Any additional offenses are then added (at a fraction of the points assessed for the primary offense) and other factors are accounted for, such as whether there was a victim who suffered physical injury or if the defendant had any prior criminal convictions.

Essentially, what matters is the final score. If the score is under 22 points and the defendant was convicted of a third-degree felony, then the defendant will receive a “nonstate prison sanction,” such as probation, unless there is a written finding that a nonprison sanction “could present a danger to the public.”

Appeals Court Orders New Sentencing in Obscenity Case

As the Florida Fifth District Court of Appeal recently clarified, the question is whether the nonprison sanction poses a danger to the public, not the defendant themselves. This might sound like a distinction without difference, but it does in fact matter quite a bit when it comes to protecting a criminal defendant’s due process rights.

The case before the Fifth District, Pine v. State, offers a helpful illustration of what we mean. In this case, prosecutors charged the defendant with two counts of showing “obscene material” to a minor. This is a third-degree felony under Florida law.

The defendant requested a jury trial. The jury ultimately found the defendant guilty of one of the two third-degree felony counts. There was then a separate hearing on sentencing. As relevant here, the defendant’s score sheet showed he had less than 22 points, meaning that he was entitled to a nonprison sanction unless the jury made written findings that such a sentence could pose a danger to the public.

However, the prosecution requested–and the judge issued–an instruction to the jury that it should consider whether or not “the defendant could present a danger to the public.” The jury answered “yes,” and the court sentenced the defendant to five years in prison.

The Fifth District said that was improper and ordered a new sentencing hearing. As previously described, the correct question mandated by the statute was whether “a nonstate prison sentence” posed a danger to the public, not the defendant personally. As the appellate court noted, there are “sentencing options other than state prison which could limit the danger a defendant might pose to the public.” And any danger must be “specifically related to the nonstate prison sentence.”

Contact Orlando Criminal Defense Attorney Jose Baez Today

Even when sentencing a person convicted of a crime, there are still certain basic rules of due process that must be followed. An experienced Orlando criminal defense lawyer can help to ensure that prosecutors and courts respect those rights. Contact the Baez Law Firm today to schedule a free consultation with a member of our team.


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