Monday, October 13, 2014

VOP / Violation of Probation / Mitigation / Reduction in Sentence / Sentence / Sentencing / Psych Issues / AVVO / Michael A. Haber, Esq. **ARRESTED / **305DUI

Q:  Might a sentenced be reduced on a felony grand theft (retail) VOP if disposition were to be deferred at least 3 years or more?  I have a felony VOP. Probation was transferred out of state. Violations were theft related. One was dismissed. The others were an infraction and a misdemeanor. Will a sentenced be reduced if I were to defer returning to FL? Valid reasons prevent me from returning now.  Will a sentence be reduced with a psychodiagnostic assessment that evaluates stealing behaviors, mood disorders, problematic personality traits and other compulsive behaviors? The results from these measures are utilized to write a clinical report and form a treatment plan, including psychotherapies. A higher fee is assessed for a forensic evaluation. Or will counseling with a psychologist suffice?  What is the realistic range of time for sentencing? 5 years is the max. Score sheet indicates no prison.

Michael Adam Haber


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Answered You have asked difficult questions, with insufficient detail and some degree of doubt.

Most importantly I do not understand the out-of-state portion, and this is critical. I am interpreting your question as being on FL probation and serving it out of state (again, I cannot be sure) AND that your violations occurred out of state as well.

If this is the case then you have 2 problems: 1) a FL VOP based on new substantive out-of-state charges and 2) new charges in another State. In this event you face sentencing on your FL VOP from a low of reinstatement to a high of whatever statutory maximum amount of time that you originally faced (minus credit for any time actually served - in custody, not on probation) plus whatever your exposure is for whatever charges you are prosecuted in whatever state that you are alleged to have committed your new substantive offense(s). If this is not the case, and if all of your problems occurred / exist in FL, then the same holds true, but it may be possible to "globally" resolve everything.

As to the issue of sentence reduction (which we call "mitigation" in Florida), I cannot speak to any other State but I can say that if you meet the criteria in Florida for statutory mitigation then the Court is free to downward depart - even over an objection from the State - from the sentencing guidelines.

Florida Statute 921.0026 lists a series of "statutory mitigators" any one of which, if pled and proven by the Defendant and then found to be applicable and so ordered by the Judge (with a written order explaining the basis for the ruling), will permit a lawful downward departure from the permissible sentencing guidelines range, again, even over an objection by the State.

Of course the State is free to appeal if it disagrees, in which case an appellate court will review the record and determine whether or not the trial Judge exceeded the (wide) boundaries her / his permissible use of discretion.

For more on this I suggest that you take a look at my Avvo Legal Guide on sentencing issues in Florida. It contains a great deal of information on the subject. For your convenience a link follows:

Please see: 
Sentencing in Florida: The mathematics, procedures and the realities. /
As an aside, do not try to piece together mitigation on your own, and not just any psychologist will do. 
You need a "forensic psychologist", and preferably one whom the Court (YOUR Judge) regularly appoints and upon who's advise it routinely relies. Your lawyer should know exactly whom to hire, and if not, then this information is easily acquired by speaking to the PD in that Judge's courtroom. 

You should note that sentencing, and specifically mitigation, are niches in the law and require a great deal of knowledge and experience. When you are at that stage the stakes are at their apex. In my 23 years of criminal defense litigation experience I can tell you that I have had many cases where I have charged more for sentencing than I did for the "guilt" phase of the proceedings.

Do it right or you are likely to suffer.

I hope that I have been helpful in answering your question.
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Established in 1991, Michael A. Haber, P.A. has an unblemished record of providing creative, effective and zealous representation to clients, primarily in South Florida, on a wide variety of criminal matters ranging from DUI to drug trafficking and from misdemeanors to first degree murder. 

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