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A Judge in Florida Cannot Rely on a Defendant’s Subsequent Arrest When Imposing a Sentence

After a person is convicted of a crime in Florida, whether as a result of a guilty or no contest plea or a jury trial, it is up to the judge to determine the defendant’s sentence.  Of course, if the criminal defense lawyer and the prosecutor work out a deal as part of a guilty or no contest plea, the judge still has to agree to accept the deal, but judges will normally go along with a deal worked out by the two sides.  Minimum mandatory penalties for some crimes in Florida can limit a judge’s discretion in sentencing.  However, if a defendant enters a plea without a deal with the state or a person is found guilty at a trial, the judge will usually be the one to decide the defendant’s sentence without any limitations.

The sentence in such cases is usually determined at a sentencing hearing.  This is a hearing at which both sides can present witnesses, evidence and arguments to convince the judge to sentence the defendant as they see fit.  The parties can present a wide variety of information in aggravation or in mitigation to convince the judge of their position.  The judge is permitted to consider many different facts and opinions when determining a defendant’s sentence.

However, some facts are not appropriate for consideration at sentencing.  It is not uncommon for a sentencing hearing to take place several weeks, or even months, after a defendant enters a guilty or no contest plea or loses a trial.  Events that occur in between can be considered by the judge, for better or worse.  Examples of positive developments in between a plea and sentencing might be that the defendant obtained a new job or started a rehabilitation program.  On the other hand, if a defendant fails to appear at his/her sentencing hearing, that will almost always result in a higher sentence once the defendant is arrested on a warrant.

Obviously, an arrest is always bad, but a defendant getting arrested while awaiting a sentencing hearing is particularly bad.  It can cause the state to move to revoke the defendant’s bond, and judges will often agree unless the new arrest is for a very minor charge.  One thing the state cannot do is argue for a higher sentence based on the defendant’s new arrest.  The judge is not permitted to consider a new arrest when determining an appropriate sentence for a defendant.  The reason is obvious.  As we all know, an arrest is not evidence of guilt.  Everyone is innocent until proven guilty.  In other words, until a defendant enters a guilty or no contest plea or is found guilty at trial, that defendant is innocent of those new charges.  Judges are not entitled to consider a charge, of which a defendant is constitutionally determined to be innocent until proven otherwise, to increase a person’s sentence in a different case.  And the state is not permitted to make that argument.  If the state does consider an arrest without a conviction, the defendant is entitled to a new sentencing hearing in front of a different judge.  However, if the state moves quickly on the new case and obtains a conviction before sentencing on the prior case, the judge can consider the subsequent conviction and sentence the defendant accordingly.