Advanced Plea Bargaining, Chapter 1

by Stephen Cobb on Jan. 10, 2018

Criminal Criminal  Misdemeanor Criminal  Felony 

Summary: Advanced Plea Bargaining is what many families need instead of a jury trial. While it is generally advisable to set every criminal case for a jury trial, the reality is that less than 1% of all criminal cases go to trial.


Due to the advanced nature of the subject matter, Basic Plea Bargaining has been omitted entirely. Nevertheless, all of the basic principles - strength of case, credible threat of a long and painful jury trial, courtroom psychology, avoidance of diversion and the elimination of courthouse surprise - remain critically important. Advanced Plea Bargaining assumes mastery of Basic Plea Bargaining techniques.

Since 2009, Florida and many other states have jumped on the restorative justice bandwagon and created one sided and misleading alternative courts and sentencing schemes. In particular, Florida's "treatment programs" for substance abuse and mental health issues are a national disgrace and an international embarrassment. Florida's "Doubling Down on Dumb" approach is what happens when out of touch politicians pretend they are mental health experts: state mandated Level I DUI alcohol treatment fails so often, the Florida legislature created Level II.

Fortunately, the Florida legislature occasionally makes a serious error resulting in laws that are actually useful. After over a quarter of a century of experience, I can assure you that when a good law is passed, it is almost uniformly by accident. Legislators are remarkably unconcerned about their constituents. They are deeply concerned with pleasing donors, campaign cash and perennial re-election. 

However, this book is not about the legislature. If you are reading this book, it is highly likely that you or someone you love is looking at jail or prison time. So, this book is written for people accused and their loved ones.

If you or someone you love has a behavior problem, the last entity on Earth that will help you effectively is the government. Every treatment program put together by the government is carefully designed to make political donors money or provide them with power and to set up the vulnerable for incarceration when state sponsored treatment fails.  

You need this book to tell you how the criminal justice system really works, what to do about it and how to get the treatment you or your loved one desperately needs.

Chapter I: Know the rules 

Criminal law is based upon a single paradigm: crime and punishment.

The paradigm of crime and punishment predates the existence of the law itself. In the Western world, there has been a great focus on the fairness of the process. For example, great concern has been given with regard to whether evidence is admissible or not, the rights of the criminally accused, and more recently the rights of crime victims. Yet through it all, one certainty has always existed: if there is a crime, then there must be punishment. 

Statutorily, this is enshrined in laws like Florida statute section 921: the primary purpose of sentencing is punishment. This same statutory section goes on to classify felony offenses according to ten (10) separate offense severity ranking levels. These ten categories determine how sentencing points are scored on a a point sheet. Points are scored for several different things: the most serious offense is scored first, then any additional offenses, aggravating factors and prior criminal history.

At the end of the scoresheet, there is a math problem and a number on the other side of an equal sign. There are several magic numbers. Generally, if the total  sentencing points are less than 22, then the court can impose up to a year in jail. If the total sentencing points are above 22 points but below 44 points, then the sentencing court may impose a state prison sentence up to and including the maximum. If the total number of points is greater than 44 points, then the sentencing court must impose a state prison sentence.

The exact formula is contained in Florida rule of criminal procedure 3.992 (a). Florida courts are not required to use a Rule 3.992(a) scoresheet in misdemeanor cases. However, there is a second rule of criminal procedure that is extremely important whether a case is a felony or a misdemeanor because the legal grounds for mitigation are the same. This other rule would be Florida rule of criminal procedure 3.992 (b). 

Rule 3.992(b) lists fourteen (14) reasons for a sentencing court to impose a sentence without imprisonment. They are how the sentencing court imposes a legal sentence according to Florida Statute Section 921.0026. For advanced plea bargaining, specialized knowledge regarding these fourteen well recognized departure grounds is essential. 

Pursuant to Florida Statute Section 921.0026(2), the departure grounds which allow a judge to sentence someone to community supervision and treatment instead of prison are:

(a)   The departure results from a legitimate, uncoerced plea bargain.

(b) The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.

(c) The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired.

(d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.

(e) The need for payment of restitution to the victim outweighs the need for a prison sentence.

(f) The victim was an initiator, willing participant, aggressor, or provoker of the incident.

(g) The defendant acted under extreme duress or under the domination of another person.

(h) Before the identity of the defendant was determined, the victim was substantially compensated.

(i) The defendant cooperated with the state to resolve the current offense or any other offense.

(j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.

(k) At the time of the offense the defendant was too young to appreciate the consequences of the offense.

(l) The defendant is to be sentenced as a youthful offender.

(m) The defendant’s offense is a nonviolent felony, the defendant’s Criminal Punishment Code scoresheet total sentence points under s. 921.0024 are 60 points or fewer, and the court determines that the defendant is amenable to the services of a postadjudicatory treatment-based drug court program and is otherwise qualified to participate in the program as part of the sentence. For purposes of this paragraph, the term “nonviolent felony” has the same meaning as provided in s. 948.08(6).

(n) The defendant was making a good faith effort to obtain or provide medical assistance for an individual experiencing a drug-related overdose.

Your defense lawyer must also understand the law of the case as it relates to each departure ground, and this is extremely complex. Also, these are not the only grounds for a departure sentence. See, FSS 921.0026(1).

When it comes to departure grounds that are not listed in 921.0026, great care must be taken to insure that an aggravator is not accidentally used improperly for mitigation. For example, it is very common for people to want to go to drug or alcohol treatment instead of jail or prison. However, take a look at FSS 921.0026(2)(d) above: substance abuse is not a legal departure ground. Defense lawyers who have argued their client has a drug or alcohol problem and therefore should get treatment instead of incarceration have unwittingly influenced judges across the state to send their clients to jail and prison. 

For the rest of this exciting topic, contact Mr. Cobb directly instead of waiting for the 2019 publication by Sunshine Publishing.

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