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Getting A Mandatory Minimum Sentence Waived

As you know by now, Florida is a state notorious for its use of mandatory minimum sentences. A mandatory minimum sentence is a pre-determined sentence prescribed by the legislature that requires courts to impose a certain penalty for a particular offense. A mandatory minimum sentence does not allow a judge to exercise discretion. If convicted, the judge must sentence the accused to the mandatory minimum if such a sentence applies for the offense.

"Tough on crime" politicians believe that mandatory minimum sentences are a great way to prevent rogue judges from imposing soft penalties on criminals, and that mandatory sentences will deter crime. What really happens is all offenders - first-timers and repeats - get lumped into the same category and receive the same sentence. In other words, a college kid with no prior criminal history can get a mandatory twenty-five years in prison for being in possession of more than 28 grams of oxycodone without a prescription whereas a five-time felon selling oxycodone to grade school kids can receive the same sentence.

Plain and simple - it's just not fair.

A lot of good people who've made poor decisions have fallen victim to mandatory minimum sentencing. A mandatory minimum prison sentence requires the accused to serve day-for-day time, which means they will not receive gain time. A ten-year mandatory minimum sentence is ten years in prison, not eight and a half (which is what somebody would normally get on a ten-year sentence under Florida's current gain time scheme).

Mandatory minimum sentencing puts the power right into the hands of the state attorney. Only the state attorney can waive a mandatory minimum sentence.

Many crimes carry mandatory minimum sentences. Everything from DUI to drug trafficking to firearm crimes (10-20-Life). However, a good defense attorney can often persuade the state attorney to waive a mandatory minimum sentence. This paves the way for negotiations whereby the accused can plead guilty or no contest in exchange for a lesser sentence. Sometimes this may mean probation where they were once facing mandatory prison time.

So how do you get the state to waive a mandatory minimum? First and foremost, your attorney should conduct an independent investigation into the case. This includes taking depositions of state witnesses and trying to find defense witnesses. Exposing weaknesses in the state's case is the surest way to get a waiver of a mandatory minimum.

If the facts of the case are not on your side, you may want to highlight who you are as a person, not just as a defendant. A prosecutor doesn't know you. The prosecutor reads a police report and thinks you are a criminal. Evaluations conducted by medical professionals can sometimes help prosecutors understand who you are. If you get a mental health professional to administer a risk assessment, the prosecutor may be more inclined to waive the mandatory sentence when they believe that you are a low risk to re-offend.

A positive work history, good grades in school, and letters of recommendation from people in the community can also help. A prosecutor is more likely to give a second chance to somebody who has lived a good, law-abiding life but for the one mistake they have made.

Those are just a few ways to try and get mandatory sentences waived. While I will never support mandatory minimum sentencing and believe that all accused people should be treated as individuals by the court system, I am thankful that reasonable prosecutors have the authority to waive these harsh sentences. A good defense attorney should be a well-prepared trial lawyer, but at the same time, a persuasive and smart negotiator.

If you are facing a mandatory minimum sentence and do not believe that it is in your best interest to take your case to trial, then you need to speak with an attorney regarding how to get a mandatory minimum sentence waived.