Don Waggoner Law

Orlando and Kissimmee Criminal Defense Lawyer and DUI Attorney

DO NOT TALK TO LAW ENFORCEMENT WITHOUT FIRST CONSULTING A LAWYER!!!

SENTENCING

•  Adjudication    •  Misdemeanors    •  Felonies    •  Youthful Offenders

Sentencing for persons convicted of crimes in Florida are covered generally under Florida Statute Chapter 775.  This chapter governs the sentencing of youthful offenders, habitual offenders, sex offenders, 10-20-Life, and others

Orlando and Kissimmee Criminal Defense Attorney Don Waggoner has represented clients at 1000’s of sentencings in his 19 year career.  It is critical that an attorney be able to present convincing mitigating evidence and arguments at sentencing in order to minimize the impact of sentencing on the accused and achieve the desired results.  Don Waggoner can do that for you.


Adjudication – Withhold of Adjudication

Whenever a person is sentenced for a crime or civil traffic infraction, the court will either adjudicate the person guilty or withhold the adjudication of guilt.  Let me explain what that means to the person being sentenced.

Civil Traffic Infractions - For a civil traffic infraction, the withholding of guilt in the case means that the DHSMV will not put any points against the person on his/her driving record.  This is very important to insurance companies.  It also may keep the person from having his/her driver’s license suspended.
Important – If a person has been cited for driving while license suspended (DWLS) without knowledge, it is very important that adjudication is withheld when paying for the ticket.  As stated elsewhere on this site, if a person gets three (3) or more DWLSs in a five (5) year period, his/her license will be suspended for five (5) years.  A withhold of adjudication on the DWLS/no knowledge civil infraction will not count as one of the three (3), but an adjudication will.  Before paying such a ticket, one might be wise to consult an attorney.  All other DWLSs are misdemeanors and a withhold of adjudication will not help you to avoid the five (5) year suspension if you get three (3) or more in a five (5) year period.

Caveat
Some states and the Federal government do not recognize withholds of adjudication as they pertain to civil traffic infractions and will award points on their licenses anyway.

Criminal Offenses
For almost all misdemeanors, 3rd Degree felonies, and some 2nd Degree felonies the court is allowed to withhold adjudication of guilt when sentencing the accused.  

Misdemeanors
With exception of DUI/BUI, adjudication of guilt may be withheld for all misdemeanors in Florida.  This is important for a number of reasons.

  1.  In certain cases, such as theft or the possession/sale/trafficking of drugs, if adjudication of guilt is not withheld by the court, the accused’s driver’s license may be suspended or revoked for two (2) years.  If the accused is a juvenile, a withhold of adjudication of delinquency will not prevent the driver’s license suspension.  There are other crimes for which the driver’s license may be suspended, as well.  If adjudication of guilt is withheld, the crime cannot be used to enhance your sentence to a felony or be used against you at trial.  An exception to this rule is battery. If anyone asks if an accused has been convicted of the crime for which adjudication of guilt was withheld, the accused person can answer no.  Exceptions include questions asked by government agencies on applications for work, licenses, the military, and by Federal law enforcement agencies. In cases where adjudication of guilt was withheld, and the accused has no prior adjudications of guilt for any crime, the accused can ask that the record be sealed and, eventually, expunged.

  2. Probation is not a requirement for a withholding of adjudication of guilt in misdemeanor cases.  F.S. 948.01(2).

    Felonies
    Adjudication of guilt may not be withheld in the following instances: F.S. 775.08435
  1. Any capital, life, of 1st degree felony offense;

  2. A 2nd degree felony, unless the State’s Attorney agrees in writing, or the court makes written findings that it is reasonably justified;
  3. In no case for a 2nd degree felony where the accused has a prior withhold of adjudication for a felony arising from a separate transaction from the current felony;
  4. A 3rd degree felony if the accused has a prior withhold of adjudication that did not arise from the same transaction as the current felony offense, unless
  5. The State’s Attorney requests it in writing, or
  6. The court makes written findings that it is reasonably justified, but
  7. In no case where the accused has two (2) or more withholdings of adjudication for a felony that did not arise out of the same transaction as the current felony.

Why is it important that adjudication of guilt be withheld for felonies?

  1. For all the same reasons as misdemeanors.

  2. If adjudication is not withheld for a felony, the accused will lose his/her driving privileges for two (2) years for drug felonies; the accused will lose his/her right to vote; the accused will lose his/her right to own a firearm, and; the accused will lose the right to certain professional licenses.
  3. The accused will be required to register as a convicted felon.
  4. Prior felonies may be used to enhance the degree of the crime and to enhance certain penalties such as to habitual or habitual violent offender.

  5. Misdemeanors

  6. Misdemeanors are considered to be minor crimes. 
    2nd Degree misdemeanors are generally punishable by up to a maximum of 60 days in the county jail, 6 months probation, and a $500 fine.  Exceptions are Reckless Driving (up to 90 days in jail, 6 months probation, $25-$500 fine) and DUI (up to 6 months in jail and 1 year probation and $500-$1000 fine).
    1st Degree misdemeanors are punishable by up to a maximum of 1 year in the county jail, 1 year of probation, and $1000 fine.
    Certain misdemeanors, such as batteries, prostitution, DUIs, and DWLS can be enhanced to felonies after an accused has amassed a certain number of them.
    An accused person may not always be entitled to a jury trial or an attorney for 2nd degree misdemeanors.
    Habitual Misdemeanor Offenders – F.S. 775.0837 Whether or not adjudication was withheld, if a person commits four (4) or more specified misdemeanor offenses within a 1 year period, and is before the court for a 5th offense during that one year, that person may be designated a Habitual Misdemeanor Offender and sentenced from 6 months to a year in the county jail; or commitment to a residential treatment program for not less than 6 months or more than 364 days; or detention for at least 6 months but not more than 364 days to a designated residence.

The designated offenses include misdemeanors from F.S. Chapter 741 - MARRIAGE; DOMESTIC VIOLENCE; Chapter 784 - ASSAULT; BATTERY; CULPABLE NEGLIGENCE; Chapter 790 - WEAPONS AND FIREARMS; Chapter 796 - PROSTITUTION; Chapter 800 -
LEWDNESS; INDECENT EXPOSURE; Chapter 806 - ARSON AND CRIMINAL MISCHIEF; Chapter 810 - BURGLARY AND TRESPASS; Chapter 812 - THEFT, ROBBERY, AND RELATED CRIMES; Chapter 817 - FRAUDULENT PRACTICES; Chapter 831 - FORGERY AND COUNTERFEITING; Chapter 832 - VIOLATIONS INVOLVING CHECKS AND DRAFTS; Chapter 843  - OBSTRUCTING JUSTICE; Chapter 856  - DRUNKENNESS; OPEN HOUSE PARTIES; LOITERING; PROWLING; DESERTION; Chapter 893 - DRUG ABUSE PREVENTION AND CONTROL; and Chapter 901 - ARRESTS.

Felonies

Felonies are considered to be serious crimes and are divided into degrees in Florida:

  1.  3rd degree felonies are punishably by up to 5 years in prison, 5 years probation, and a $5000 fine.
  2. 2nd degree felonies are punishable by up to 15 years in prison, 15 years probation, and a $10,000 fine.
  3. 1st degree felonies are punishable by up to 30 years to life in prison, 30 years to life probation, and $10,000 fine.
  4. Life felonies are 1st degree felonies are punishable by life in prison.

Certain persons accused of crimes may be sentenced to enhanced penalties:  F.S. 775.084

  1.  An Habitual Felony Offender (HFO) can receive up to double the maximum for the level of felony committed, or life for a 1st degree or life felony.
  2. An Habitual Violent Felony Offender (HVFO) can receive up to double the maximum penalty for the level of penalty committed, or life for a 1st degree or life felony.  In addition, for a 1st degree or life felony, the offender will not be eligible for release for a minimum of 15 years; for a 2nd degree felony for a minimum of 10 years; and for a 3rd degree felony for a minimum of 5 years.
  3. A Three-time Violent Felony Offender will be sentenced to a minimum mandatory term of Life for a life felony; 30 years for a 1st degree felony; for 15 years for a 2nd degree felony; and for 5 years for a 3rd degree felony.  Minimum mandatory means the judge must sentence the offender to these minimum terms in prison and cannot give a lower sentence.
  4. A Violent Career Criminal (VCC) will be sentenced to life for a life or 1st degree felony; up to 40 years with a minimum mandatory of 30 years for a 2nd degree felony; and for up to 15 years with a minimum mandatory of 10 years for a 3rd degree felony.
  5. Prison Release Re-Offender(PRR) – an offender who commits certain designated crimes within three (3) years of release from prison and is convicted of the new crime, must be sentenced to prison for the maximum term possible for that crime and must serve 100% of the time day for day.

Offenders sentenced under these enhanced guidelines are eligible for prison gain time, except for the three time offenders and PRR.


Youthful Offender

Youthful Offender, F.S. Chapter 958 is the savior for many serious offenders who are under the age of 21 at the time of sentencing.  Orlando and Kissimmee Criminal Defense Attorney Don Waggoner has negotiated or argued successfully for many Youthful Offender sentences.  If you have been accused of a serious crime and are facing a minimum mandatory sentence, Attorney Don Waggoner is experienced in helping those who are qualified in seeking a Youthful Offender sentence and avoiding that minimum mandatory sentence.


An offender who is at least 18 years old, or who has been transferred from the juvenile court to an adult felony court, can be sentenced as a Youthful Offender and avoid most prison sentences and minimum mandatory sentences.  F.S. 958.04.  However, the offender must be no older than 21 at the time of sentencing.  This provision does not apply to offenders previously adjudicated as Youthful Offenders or persons who have been found guilty of a capital or life felony.

If you feel you meet the criteria for Youthful Offender sentencing, you should discuss this option with your attorney and have him/her explain it to you thoroughly.