Criminal Law Questions? Ask a Criminal Lawyer.
Good evening! I'm a Florida criminal defense attorney practicing in both state and federal courts. Was this a federal offense?
I don't think so. She was charged in Florida and sentenced in Fl
I understand that, but federal cases are prosecuted in Florida as well. Based on the charges you listed, I had the impression that they were federal in nature. Do you know what courthouse she was sentenced in? Or do you have statute numbers?
She was in Hillsborough county criminal circuit court
Got it. Give me a few minutes and I'll respond in detail.
A couple things.....It doesn't help that this occurred so long ago. The trafficking charges are each first degree felony offense, punishable by up to 30 years. With this in mind, the sentence is completely legal. Was she sentenced in 2005?
Ok, that certainly doesn't help. As she was sentenced so long ago, most of her rights have passed her by. She could have filed an appeal, but only within 30 days of sentencing. She could have filed a motion arguing ineffective assistance of counsel, but only within 2 years of sentencing.
Florida no longer has parole, so that isn't an option either.
it may be legal, but is it ethical?
Yes, so long as the judge sentenced her to no more than the statutory maximum, there is nothing unethical about what he did.
While he sentenced her to the maximum, it was lawful and ethical.
she has not seen or heard from the public defender since her sentencing, how is a person unfamiliar with the law know the deadlines?
okay, so where do we stand now, is there any way that we can try to get her sentence reduced?
Well, the attorney should have discussed this with her. Additionally, Florida law requires the judge to detail some of it at sentencing.
Unfortunately, probably not. Give me a moment...
She could file a motion to mitigate sentence. Unfortunately, such a motion is supposed to be filed within 60 days of sentencing, that passed her by a long time ago. If she wanted, she could try, but she should do so realizing that she would likely lose based simply on the timing requirement.
Can this deadline be bypassed if the lawyer representing her did not appeal?
Would a defense attorney automatically appeal in a case such as this?
Relating to such a long sentence
Extremely unlikely. Part of the reason I say this is because I can all but guarantee that the judge informed your sister of her rights to appeal.
And no, an attorney would not automatically appeal. While the sentence was long, and perhaps unduly harsh, there was nothing illegal about it. If it isn't illegal, there isn't a legitimate basis to an appeal.
How do you start a motion to mitigate a sentence?
It's a rather simple motion, much like any other. It would simply state what you've detailed here, that she was sentenced, the sentence was rather harsh (including maximum penalties) and, hopefully, she has been a model inmate while incarcerated.
Having said that, I can say with a high level of confidence that she will lose as the motion would be extremely late.
yes, she has gone through the faith based program and works in the prison clothing factory. She hasn't been in any trouble while in prison
As I suggested earlier, she can TRY, but she will most likely not prevail
Even with prison overcrowding, not to mention the financial aspects of incarceration and the fact that her children are without a mother, nothing would likely sway them?
her crime was not one of violence, mostly harm to herself
I don't mean to sound cruel, but the court system doesn't really care about that. Additionally, Florida has actually reduced the overcrowding in most facilities over the past few years.
Any reason she has done nothing for 6 years?
Are you beginning to sense desperation on my end? :)
Trust me, I get that a lot. Unfortunately, she just doesn't have any viable options.
Well, we (her family) were very disappointed with her at first and thought she should pay her dues, but the reality of thirty years has began to sink in with us.
While I can appreciate that, it carries no weight in court...as I'm sure you know
I guess we just thought that things would just resolve somehow
I wasn't speaking to her when she was sentenced and have just in the last year began to correspond with her. Her pleas to help are tearing me up inside.
While our criminal laws have been getting more harsh, not less harsh, over the years, that could change. She, and/or you, could keep an eye on the laws, maybe they will change.
For example, a defendant currently has to do 85% of his sentence, that may change.
We eliminated parole, but that might change as well
Do you think that there is ANY chance that the sentence might be reduced or is the judge allowed to have a bad day at the expense of her life? Don't misunderstand, I can only imagine the frustration that someone in this field must experience.
Do you know if it's the same judge? Or has it changed?
The same judge
I hate to be negative, but (and this is purely speculative) I would suggest that the odds of success are around 1%.
The odds of the same judge changing his mind.......not good.
Can you ask for a change of judges?
That a judge for whatever reason does not like the defendant
Not normally. Judges rotate in and out from time to time, the lose elections or the get recused. As to a recusal, that would be based on a showing of bias against your sister specifically, nothing you have stated arises to that level.
have you ever experienced unfair judges personally?
Yes, many times.
How can it be proven that a judge has a bias? Wouldn't the length of sentence be proof enough? Remarks in court, would they be stricken from the record? Can it be that a judge can have a bias against drug offenders? Would/could that be considered?
It can't be against "drug offenders", it has to be against HER specifically
and you're right, proving bias is all but impossible
especially since the motion would be decided by the same judge
Her "score" was 44.25, does that mean anything to you?
Yes, anything over 44 is mandatory prison
so she just barely even made prison time?
Based on what you're saying, yes. However, I wonder if that's accurate, with two trafficking charges, I would expect it to be higher
I was on the Lowell correctional Institution website and looking at different inmates, their crimes, sentences, and she was the least threat to society!
14-U28gr of amphetamin
We've been chatting for neary an hour and I'm about to take my wife out for dinner. I can continue this conversation later if you like.
ok same here. thanks so much for your time.
I'll be back online in a few hours, you can return if you like.
I am going off-line for the evening. Please feel free to respond, if necessary, and know that I will be back on-line tomorrow.
Thank you for your patience.
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