ESAS©® Successes: Plea-bargains & Sentencing Hearings
Reduction from 15 Years FSP to 7.5 Years FSP + 5 Years Probation
Charge(s):
- (1) F.S. 827.071(5) – F3 – 10 Counts – Possession of Child Pornography
- (2) F.S. 847.0137(2) – F3 – 2 Counts – Sending Child Pornography
State: Offers: 1st - 20 Years FSP, 2nd and final - 15 Years FSP
Defense: Requested a disposition under 10 years FSP
Result: Based upon similar cases found using ESAS®, defense counsel advised the client to enter an Open Plea and conduct a contested sentencing hearing. The final result was a court imposed split sentence consisting of 7.5 years FSP for all counts followed by five years of probation.
Defense Counsel’s Comments and Observations: “Mr. ______ received 7.5 years. While it’s a long sentence - - it is close to the scoresheet sentence and it’s a huge win for Mr. _____. As you know, the original offer from the State was 240 months (20 years) and the final offer was for 180 months (15 Years). So, we cut, by half, his prison sentence. This is a fantastic outcome, and it is due in large part to Technologies for Justice preparation and testimony.” The maximum exposure on all counts combined was 60 years.
It is also of note that the presiding judge was so impressed with the presentation of the ESAS® generated data and testimony that he asked the prosecutor, defense counsel and the expert witness to approach the bench for a side-bar conference to commend the work Technologies for Justice is doing with ESAS and DOC sentence data.
Reduction from 20 Years FSP to 8 Years FSP + 5 Years Probation
Charge(s):
- (1) F.S. 316.193(1BC)-(3ABC)3, DUI Manslaughter - F2
- (2) F.S. 782.071(1)(A), Vehicular Homicide – F2
- (3) F.S. 316.193(1BC)-(3ABC)2 DUI Manslaughter – F3
- (4) F.S. 316.192(1)(3ABC)2 Reckless Driving w/SBI – 1MM
State: Offered 20 Years FSP
Defense: Requested a downward departure disposition
Result: Based upon similar cases found using ESAS, defense counsel advised the client to enter an Open Plea and conduct a contested sentencing hearing. The final result was a court imposed mitigated downward departure sentence of eight-years FSP for all counts followed by five-years of probation.
Defense Counsel’s Comments and Observations: We did extremely well! (If you can ever say someone going to prison for even a day is a success.) While for the record the judge specifically denied the downward departure on the grounds of equality and proportionality in sentencing, I believe that it had to have an impact on him, especially the cases found in ESAS involving the same prosecutor agreeing to a 10-year plea for a career criminal on a DUI manslaughter and asking for 20 years for my client who has been a solid citizen his entire life.
Also, the average of 8.97 years calculated as the average for one death DUI cases must have helped because the Judge sentenced my client to eight-years of incarceration for everything followed by five-years of probation. As far as I can tell, that’s the lowest sentence ever in Broward for the offenses he plead to (DUI Manslaughter, Vehicular Homicide, DUI Causing Personal Injury, and DUI Reckless Driving Causing Injury) with the sentencing score he calculated. Thank you again for your consultation and assistance.
Reduction from 5 Years FSP to 3 Years FSP
Charge: VOP on a felony battery great bodily harm (he had pled down originally from a sex batt).
Offense Level: 6
State Offer: 60 months DOC
Result: 36 months DOC
Observations: I found 6 similar cases in my county and got the offer down to 36 months. ASA ended up forwarding the table I sent him to my colleague unprompted to give an unsolicited better offer on one of her cases.
Reduction from 4 Years FSP to 2 Years FSP
Charge: VOP on three felony theft counts, with the alleged violation being a new theft from another circuit with very similar facts to the underlying convictions (primary offense 812.014(2)(c)(6))
Offense Level: 4
State Offer: 48 months DOC
Result: 24 months DOC
Observations: I got it down to 24 months DOC by finding 10 similar cases with ESAS. With the credit he had he just needs to finish out the better part of a year in DOC.
Reduction from 5 Years FSP to 5 Years Drug Offender Probation
Charge: Possession of Controlled Substance (F3) 893.13(6)(a)
Offense Level: 8
State’s Offer: 60 months DOC
Result: 36 months DOC, then agreed to 18 months DOC suspended sentence and 60 months of drug offender probation
Observations: My client scored 98 months DOC with no clear path for a downward departure. Found one case in my county where the defendant scored a similar amount and pled to probation, and that convinced the ASA to give a similar offer.
Reduction from 128.75 Years FSP to 12.5 Years FSP
Charge(s): 115 second degree felony counts of Viewing Child Pornography (Enhanced), carrying up to 15 years FSP per count.
State: No plea offers from the prosecutor.
Defense: After all defense offers were rejected, the defense counsel deployed ESAS in preparation for an Open Plea and a sentencing hearing. Defense counsel used ESAS® along with other mitigation and requested a Mitigated Downward Departure of 3 to 6 years FSP, followed by probation for 25 years up to life. The state requested the bottom of the CPC, 128.75 years which is effectively a “Life” sentence.
Result: The judge granted a mitigated downward departure of 12.5 years FSP and 25 years of probation to the defense counsel over the state’s objection.
Reasons for Downward Departure:
The sentencing judge filed a “Reasons for Downward Departure” order reflecting the following:
- The court compared the nature and gravity of the offense and the harshness of the penalty.
- The court compared the sentence imposed on other criminals in the same jurisdiction for similar offenses. Evidence of other judgments and sentences within an adjacent circuit were admitted into evidence where the state readily agreed to significant downward departures.
- Fairness and justice dictate that a downward departure in this case, under these facts, is appropriate.
Reduction from 10 - 15 Years SP to 8 Years SP
Charge(s): Defendant pled straight up to DUI Manslaughter, F.S. 316.193(1), a level 8 2nd Degree Felony
Sentencing Range: 10.375 years minimum to 15 years maximum
State: The prosecutor deferred to the judge
Defense: Defense counsel requested a mitigated downward departure based upon ESAS® generated Sentencing Precedent from FDOC ESAS database
Result: – Defense counsel’s request was granted. The judge imposed a split sentence consisting of 8 years SP followed by 7 years of probation
Attorney Remarks: Defense counsel said the judge was appreciative of the knowledge ESAS provided and noted that one of the prior sentences from the data was a sentence the judge herself had previously rendered. It certainly helped the Court to make a wise and informed decision.
Reduction from 18 Months SP to 12 Months CJ
Charge(s): F.S. 827.071(5) – F.S. §322.34(5) Driving While License Suspended/Revoke (Habitual Offender, a 5 year Felony)
State: 18 months state prison
Defense: 12 months county jail
Result: 12 months county jail
Note: The defense attorney said "the State was compelled by the ESAS® data, and agreed to 12 months county jail as shown from the data. No hearing was needed because the data spoke for itself. "
This ESAS® success not only shaved off six months but it also allowed the client to serve the sentence in county jail rather than state prison.
Reduction from 9.25 - 15 years SP to 3 years SP and 5 years probation
Charge(s): A jury found the client guilty of Vehicular Homicide, F.S. 782.07(1), a Level 7 2nd Degree Felony
Sentencing Range: 9.25 years minimum to 15 years maximum
State: The prosecutor deferred to the judge
Defense: Defense counsel requested a mitigated downward departure based upon ESAS® generated Sentencing Precedent from FDOC
Result: – Defense counsel’s request was granted. The judge imposed a split sentence consisting of 3 years FSP followed by 5 years of probation
Attorney Remarks: Defense counsel said the judge was appreciative of the knowledge ESAS provided as to the average sentences for the same offenses in that particular circuit as well as all 20 circuits from Pensacola to Key West. It certainly helped the Court to make a wise and informed decision.
Reduction from 15 years to 8 years
Charge(s): F.S. 827.071(5) – Possession of 100 Photos Exhibiting Sexual Performance by a Child, Possession of Cocaine, Two Counts of Possession of Other Controlled Substance
Sentence Range: 112 years to Life
State: 15 years state prison
Defense: Defense counsel secured a Custom ESAS® search of all 20 judicial circuits and made an appointment to share the resulting data/Sentencing Precedent.
Result: After entering into plea negotiations with the prosecutor, defense shared the ESAS® generated data and was thereby able to convince the prosecutor to reduce the offer down to eight years FSP followed by 10 years of probation.
Tax-Payer savings in state prison costs: $152,200
Reduction from Life to 15 years
Charge(s): F.S. 810.145(8)(A)(2) (322 counts) F.S. 810.145(6)(B) (15 counts) and F.S. 810.145(A)(3) (13 counts) Video Voyeurism (School Official) and Video Voyeurism (Victim Under 16) grand total = 350 felonies
Sentence Range: 4,395.975 points (363.8 years FSP) = Life
State: No offer. The state refused to extend any offers – even after an extensive mitigation package and a meeting with the elected State Attorney.
Defense: Based upon the ESAS generated sentence data/precedent from all 20 judicial circuits, defense counsel advised the client to enter an open plea to the judge and request a contested sentencing hearing.
Result: After hearing arguments from the state, the defense and considering the sentencing precedent from all 20 judicial circuits reflecting the three longest sentences for video voyeurism were 15 years FSP, which effectively established a reasonable cap, the judge imposed 15 years FSP followed by 40 years sex offender probation.
Tax-Payer savings in state prison costs: $619,676
81% Reduction in Sentencing
Charge(s): F.S. 951.22 – Introducing Contraband at County Detention Facility
Sentence Range: 5 years to 5.5 years state prison
State: 4 years state prison
Defense: Initially counter-offered 18mos but later reduced it to "any non-state prison time" after deploying ESAS®
Result: Nine months county jail, a negotiated mitigated departure from the lowest permissible sentence on the CPC.
Observation: Defense counsel said the prosecutor was adamant about the client serving 4 years on the VOP until ESAS data revealed that senior prosecutors routinely agreed to county jail sentences in such cases.
Tax-Payer savings in state prison costs: $69,459
100% Reduction in Sentencing
Charge(s) - Aggravated Battery with a Deadly Weapon w/out Intent to Kill - Open Guilty Plea to Court, followed by a sentencing hearing - agreed upon range of 0 to 15 years Florida State Prison
State - Requested 15 years state prison, the maximum
Defense - Requested a 2 year suspended prison sentence based on ESAS©® search results
Result - Judge imposed 12 days county jail as Time Served, 2 years of Community Control (Home Detention) followed by 12 years of Probation = (No state prison)
Tax Payer savings in state prison costs: $326,145*
85% Reduction in Sentencing
Charge(s) - Shooting into an Occupied Dwelling, carrying up to 15 years and Criminal Mischief carrying up to 5 years for a grand total of 20 years in state prison.
State - 10 years state prison
Defense - Community Based Drug/Alcohol Treatment. ESAS generated data (Sentencing Precedent) demonstrated no one in that circuit or in any other circuit across Florida with the exact same charges and criminal punishment code (CPC) points had ever received anywhere near 10 years.
Result - Community Based Supervision drug/alcohol treatment program with credit for 1.5 years’ time served followed by probation. No prison time whatsoever.
Tax Payer savings in state prison costs: $184,016*
62% Reduction in Sentencing
Charge(s) - Aggravated Assault with deadly weapon without intent to kill
State - 24 months prison (18.45 months minimum mandatory)
Defense - 12 months - used ESAS©® to prepare counter offer
Result - Time Served (9 months), modification of Probation to 1 year Community Control and 1 year standard probation
Tax Payer savings in state prison costs: $26,987*
40% Reduction in Sentencing
Charge(s) - First Degree Felony Aggravated Child Abuse
State - Offered 10 Years State Prison
Defense - Used ESAS©® to find four recent cases from the same county with the same charge but lighter sentences
Result - Prosecutor came down to 6 years in state prison followed by 7 years of Probation and credit for 225 days in jail. "This was an excellent result that saved this young man four years of his life."
Tax Payer savings in state prison costs: $86,972*
Plea-bargain Between Defense Attorney & Prosecutor
Charge(s) - Possession of a Firearm by a Convicted Felon, bifurcated from 2nd Degree Murder count
State - Offered 10 Years State Prison on the PFCF after defendant’s N.G. Verdict on Murder charge.
Defense - Used ESAS©® to produce sentencing data (Precedent) reflecting the average plea-bargain for PFCF was between 12 months minimum and 18 months maximum.
Result - After reviewing ESAS©® generated “Sentencing Precedent,” the lead prosecutor voluntarily agreed to reduce offer from 10 years to 18 Months State Prison.
Tax Payer savings in state prison costs: $185,200*
Contested Sentencing Hearing After Jury Trial
Charge(s) & Trial Results - Guilty of Racketeering and Organized Fraud, Not-guilty of 1st Degree Arson
Sentencing Range - 3 years minimum to 35 years maximum
State's Position - The CPC Maximum: 35 Years State Prison
Defenses' Position - The CPC Minimum: 3 years State Prison
Result – After reviewing ESAS©® generated “Sentencing Precedent,” the Judge Sentenced client to 7 Years State Prison (a 28 year difference) over the state’s vehement objection
Tax Payer savings in state prison costs: $608,800*
Plea Bargain between State & Defense
Charge(s) – Grand Theft
Sentencing Range – 5 years minimum ___ years Maximum (Not-Specified by Attorney)
State's Position – Bottom of the Criminal Penalty Code (C.P.C.) = 5 years Florida State Prison
Defense’ Position – Prior to making any counter offer, defense counsel conducted an ESAS©® analysis and “found she would have received the highest sentence (in the 13th Circuit) for a Grand Theft"'.
Result - After reviewing ESAS©® generated “Sentencing Precedent", and a lot of motions, the State came back with 2 offers: 2 years Community Control followed by 1 year probation OR 5 years’ probation. Client took 2 years C.C. followed by 1 year probation.”
Tax Payer savings in state prison costs: $65,229*
Contested Sentencing Hearing After Open Plea to Judge
Charge(s) - Ten 2nd Degree Felony Counts Carrying 15 years each
Sentencing Range - 10 years minimum to 150 years maximum
State's Position – State Prison in excess of 6 years, Opposed any Downward Departure
Defense' Position – No State Prison, Downward Departure & Youthful Offender Program (YOP) Sanctions
Result - After reviewing ESAS©® generated “Sentencing Precedent,” the judge sentenced client as a Youthful Offender: 2 Years, Incarceration, 2 Years Community Control, 2 Years Probation. The presiding judges articulated on the record that said sentence was imposed “over the state’s objection.”
Tax Payer savings in state prison costs: $86,972*
Contested Sentencing Hearing After Open Plea to Judge
Charge(s) – Two (2) Counts of Grand Theft +$100K
Sentencing Range – 1.8 years minimum to 30 years maximum
State's Position – 7 Years State Prison
Defense’ Position – Probation
Result - After reviewing ESAS©® generated “Sentencing Precedent,” the judge sentenced client to 22 months Florida State Prison. Defense Counsel, a Board Certified Criminal Trial Attorney, commented: “Thanks for the data. It was very useful. The judge “discussed the data so it obviously had an impact. I do believe the data helped.”
Tax Payer savings in state prison costs: $112,800*
Grand Total Tax Payer Savings: $2.3 M+
*According to the OPPAGA's (Office of Program Policy and Government Accountability) 2019 report on Florida Correctional Facilities, "the per diem of all FDC institutions, excluding private prisons, for Fiscal Year 2017-18, the most recent year available was $59.57." The per diem includes costs related to operations, health, education, and substance abuse. http://www.oppaga.state.fl.us/MonitorDocs/Reports/pdf/1908rpt.pdf
What is being said about ESAS©®
Attorneys and Judges Talk ESAS©®
Venues: ESAS©® is actively being used, has been deployed and/or utilized by four Public Defender Offices, one State Attorney Office and private attorneys in 17 of Florida's 20 judicial circuits as follows: 1st, 2nd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 18th 19th and 20th.
Private Defense Attorney: "I seem to have a handle on the searches now. I really enjoy using the software; it gives instant peace of mind being able to see and compare other's sentences, seeing trends among judges, and the average severity of specific charges. It’s genius! I communicated an offer to the ASA assigned who claims the victim is persisting on a 10 year prison sentence. Our offer, after comparing sentencing precedent, was nearly 80% less off the demands of the victim. We shall see!"
Public Defense Attorney: I used ESAS to "pull the statistics for defendants with similar scores and charges as one of my clients. He had 2 PBL* violation of probations over his head and a new law arrest for 3 F2s.** My client was not understanding the gravity of the situation, and I was able to show him the numbers and show him that the State’s offer was actually slightly below what the average was for someone with his score. When he was able to see the actual data, he decided it was in his best interest to take the State’s global offer instead of risking life at a VOP hearing. It was a way to show my client the reality of the situation instead of him going on “well I heard this person only got this much time for the same thing.” ESAS reduced the client's risk from 12 to Life* plus 45** down to eight.
Private Defense Attorney: “This is an amazing tool to use. I cannot wait to sign up”
Public Defense Attorney: “Every PD needs this system”
Public Defense Attorney: ESAS©® motivates to “walk a mile in my client’s shoes”
Public Defense Attorney: “Continue your efforts to make this tool a part of every Public Defender’s office”
Circuit Judge: “…must use tool for defense bar and a great tool for judges to use to evaluate their sentencing”
Appellate Judge: After having observed a live ESAS©® demonstration, I am motivated to: "Evaluate sentencing more objectively by evaluating my own biases and developing sentences that are fair to all concerned." ESAS©® "should be presented to the Florida Circuit Court Conference and the Appellate Conference to educate judges."
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