Recently arrested – Am I going to prison?
As a Broward County criminal defense attorney, I oftentimes receive phone calls from potential clients who are (justifiably) concerned with the possibility of going to prison after a recent arrest or violation of probation. Hopefully this blog will quell some fears and misconceptions about the criminal justice system, and more specifically, when a prison sentence is a likely possibility.
Misdemeanor offenses vs. Felony offenses
Misdemeanor offenses are handled by the county court and are almost always considered less serious than felony offenses. Misdemeanor offenses include Driving While Under the Influence, Battery, Petit Theft and Possession of Marijuana. A second degree misdemeanor is a crime punishable by no more the 60 days in jail; a first degree misdemeanor is a crime punishable by no more than a year in jail. Although misdemeanors can have serious collateral consequences, a large majority individuals arrested for first (or second) offenses for misdemeanor crimes are not sentenced to jail, although probation is sometimes imposed.
Felony offenses are handled by the circuit court. Any crime not classified as a misdemeanor offense is classified as a felony offense and includes Possession of Cocaine, Robbery, Burglary, and Aggravated Battery. A third degree felony is a crime punishable by no more than five years in prison; a second degree felony is a crime punishable by no more than fifteen years in prison; a first degree felony is a crime punishable by no more than thirty years in prison; a life felony is a crime punishable by life in prison. Any plea to a felony offense can have serious consequences, even if the Court’s (or State’s) offer does not include jail or prison. Do not accept a plea to a felony offense without retaining an experience criminal defense attorney.
Criminal Punishment Score sheet
Each crime carries an “Offense Level”. The more serious the crime, the higher the “Offense Level”. Each offense level corresponds to a certain number of points. For example:
NEW CHARGES, PRIMARY OFFENSE:
Possession of Cocaine is a level 3 and carries 16 points
Robbery by Sudden Snatching is a level 5 and carries 28 points
Aggravated Battery is a level 7 and carries 56 points.
NEW CHARGES, ADDITIONAL OFFENSE: (The additional offense has an equal or lower offense level than the primary offense)
All misdemeanors carry “.2”
Possession of Cocaine is a level 3 and carries 2.4 points
Robbery by Sudden Snatching is a level 5 and carries 5.4 points
Aggravated Battery is a level 7 and carries 28 points.
PRIOR CHARGES, REGARDLESS OF WHETHER ADJUDICATION WAS WITHHELD:
All misdemeanors carry “.2”
Possession of Cocaine is a level 3 and carries 1.6 points
Robbery by Sudden Snatching is a level 5 and carries 3.6 points
Aggravated Battery is a level 7 and carries 14 points.
If you score more than 44 points, you are subject to a minimum term of imprisonment. If you score below 44 points, the Court can (but is not required to) sentence you to prison.
Some charges (such as Trafficking in Cocaine) contain Minimum Mandatory Sentences.
An individual who picks up a new criminal offense (especially a felony offense) while on probation subjects themselves to additional points that could move them over the 44 point threshold.
Some individuals are eligible for diversion programs which “diverts” their case out of the criminal justice system.
An individual who scores more than 44 points may be eligible for a downward departure to avoid imprisonment.
The bottom line
Anyone arrested for a crime should immediately retain an experienced criminal defense attorney. Rule of thumb – criminal defense attorneys typically charge higher fees for individuals (1) who score over 44 points; (2) were arrested for charges that contain minimum mandatory prison sentences; (3) have a significant prior criminal history; and/or (4) are on probation.
For more information on whether a particular charge carries prison, please review the criminal punishment score sheet (Florida Rule 3.992(a)) or the criminal offense ranking chart (Florida Statute 921.0022) or Mr. Snyder’s recent article, “Am I eligible for a downward departure?”