Is it “Punishment” if the Judge Just Doesn’t Say It Out Loud?

By: John Guidry

For 18 years, I’ve been defending criminal cases in Orlando, Seminole, and Osceola (yawn). I’ve seen my share of folks get ‘whacked’ for going to trial.

Back in the 90s, my first felony assignment was with Judge Richard Conrad. He was an excellent judge, and I learned more in his courtroom in one week than in three years of law school. One lesson I learned immediately: If you lose at trial, watch out.

On my very first day, I watched a defendant turn down one month of probation for a battery. After the jury convicted him of aggravated battery with a firearm, he received over 20 years in prison.

The cardinal rule, according to “Florida law,” is that a defendant cannot be punished merely for electing his constitutional right to have a jury trial. But what happens when the judge “hears some facts at trial” that change his mind?

Worried about the “Trial Tax” if you reject a plea offer?

You need an attorney who can evaluate the judge’s history and the real risks. Call John today at (407) 423-1117.

The Legal Breakdown: Karras v. State

Let’s look at Karras v. State, 60 So. 3d 1186 (Fla. 4th DCA 2011).

• The Conviction: Karras was convicted of sale, delivery, and trafficking in cocaine.
• The State’s Request: The prosecutor asked for four years in prison, citing anger that the defendant “took the stand and lied and not accepted responsibility.” (Don’t you love that? If you don’t agree with the government, you’re “lying.”)
• The Judge’s Reaction: The judge agreed with the State that the “lying testimony” aggravated the case. But instead of the four years the State asked for, the judge gave him five years.

The Ruling: The appeals court overturned the sentence. They found the trial court “crossed over the line of fundamental error” by sentencing the defendant to more time than the State requested based on the defendant’s testimony.

• The Logic: A judge cannot use a defendant’s refusal to admit guilt (or their decision to testify in their own defense) as a reason to increase the sentence. Doing so punishes them for exercising their constitutional rights.

The “Silent Judge” Problem

You asked the million-dollar question: If the judge simply kept his trap shut, could he have given a longer sentence?

The uncomfortable answer is: Probably.

If a judge is smart enough to stay silent, proving “vindictive sentencing” becomes much harder.

• The “Wilson” Factors: In Florida, if a judge doesn’t explicitly say “I’m punishing you for going to trial,” we have to look for other clues (based on Wilson v. State). We look for a massive disparity between the plea offer and the final sentence, or judicial involvement in plea negotiations.
• The Reality: If the judge in Karras had just said, “Based on the serious nature of the trafficking charges, I sentence you to five years,” and never mentioned the defendant’s testimony, that sentence likely would have stuck.

John’s Takeaways

• Silence is Deadly: The most dangerous judges are the ones who know the law well enough to not say the quiet part out loud. They smile, listen, and then hammer you within the legal guidelines without giving us a soundbite for appeal.
• The “Trial Tax” is Real: Even though it is technically illegal to punish someone for going to trial, the reality is that sentences after trial are almost always higher than the plea offer. It is a risk calculation we have to make in every single case.
• “Lying” vs. “Defending”: Prosecutors love to frame a “Not Guilty” plea as “failure to accept responsibility.” It is our job to remind the court that maintaining innocence is a constitutional right, not an aggravating factor.

Know the Risks Before You Roll the Dice

The difference between a plea deal and a trial sentence can be decades of your life. You need an attorney who knows which judges punish trial-goers and which ones play fair.

Call me at (407) 423-1117. Let’s calculate your odds.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.