But for purposes of this discussion, "sentencing" will refer to a penalty imposed by the court upon a finding of guilt. Sentencing varies depending on a wide array of factors. Some charges permit the judge to exercise discretion.
Others, due to statutory mandatory minimum sentences, do not allow the judge to exercise discretion. For misdemeanors, the judge can usually exercise discretion except in DUI cases.
All DUIs have mandatory sentences. The severity of the sentence depends on whether it is your first DUI, second DUI, or third DUI and beyond. Typically, a fourth DUI and higher is a felony DUI. Sentences for DUI will also depend on whether there was a high blow (enhanced DUI).
For most other misdemeanors, the judge can sentence based on what they believe is fair. Judges may or may not impose jail time. This depends on the severity of the offense, and the accused's prior record. The judge does have the ability to sentence a defendant to the maximum allowed by law.
The judge may also sentence on multiple counts concurrently (sentences run together) or consecutively (sentences run one after the other). For misdemeanors, sentencing will occur right after trial. For felonies, sentencing will usually occur weeks after the verdict so that the Department of Corrections can do a pre-sentence investigation. This is a tool that helps the judge decide on a fair and just sentence.
The judge will also consider the defendant's priors, severity of the offense, and the sentencing guidelines. If the defendant is a habitual violent offender (HVO), or prison releasee reoffender (PRRP), the judge will impose a mandatory prison term depending on the charge. If the accused is a habitual offender, the judge may go below guidelines and impose a lesser sentence than is recommended.
When a judge goes below guidelines, this is known as a downward departure. Most criminal attorneys will make motions for downward departure during sentencing.
At sentencing, both the State and criminal defense attorney will make argument as to what the sentence should be. The court may hear testimony from the alleged victim(s), police officers, and character witnesses for the defendant. If this is a murder or manslaughter case, the court will hear from the next of kin.
This is allowed by law and is called a victim impact statement. In the end, considering all facts and relevant law, the court will pronounce sentence. A defendant may always appeal a sentence if he or she believes it was imposed contrary to the law. Eric Matheny is a criminal defense lawyer who serves Miami-Dade and Broward. Call today to discuss your case.