All Felons Not Eligible For Prison, Haven’t You Heard?

I know that many of you reading this probably already know that July 1, 2009 marked a tiny victory for we criminal defense attorneys (and freedom loving citizens, I’m including you as well) because Section 775.082(10) of the Florida Statutes went into effect, forcing courts to give defendants a non-state prison sentence if they score under 22 points. It’s a rare piece of legislation that actually lowers punishment, isn’t it? Can we continue this trend, please (especially on trafficking in pill cases, which Orlando seems to be the mecca of trafficking min mans).

Ok, so if everyone knows about this under 22 points rule, why is that some judge’s and defense attorneys haven’t caught on? Such was the case in Hutto v. State 50 So.3d 85 (Fla. 1st DCA 2010), where Hutto was sentenced to 18 months Department of Corrections (DOC, prison, etc) on a felony driving while license suspended as a habitual traffic offender, even though he only scored 14.1 points on his scoresheet. Just a reminder here, but most third degree felonies do not qualify for a prison sentence if the offender scores under 22 points. Aren’t judges supposed to know this?

Apparently, the trial court did not read the statute which I’m about to type–Section 775.082(10) states that anyone who commits a crime “on or after July 1, 2009, which is a third degree felony but not a forcible felony … and if the total sentence points … are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could pressent a danger to the public, the court may sentence the offender to a state correctional facility”. Got that? Well, in Hutto’s case, there were no written findings that he was a danger to the community, so the appeals court overturned his 18 month prison sentence and remanded the case back down to the trial court. It’s worth noting here that this sentence was part of a plea deal, so some defense attorney out there overlooked this law as well. Hum. At least now you know.