CREATIVE SENTENCING – OR NOT

A woman who left her dog in filth for a week spent the day picking up garbage at a dump.  A teen who didn’t pay for a 30-mile cab fare had to walk 30 miles.  A bike thief rode an honestly paid-for bike for a charity parade.  These are only a few examples of creative sentencing from an Ohio Judge.  And they are not merely instances of poetic justice.  Even the perpetrators felt their sentences were more meaningful than time in a county jail or a stiff fine.

But don’t try that in Florida.  The state’s Supremes seem to frown at creativity. When a trial judge offered that a newly convicted felon paying the first chunk of restitution early could shave two years off his ten-year sentence, the Florida Supreme Court reversed.  Richer defendants might be able to spend less time in jail than poorer ones, the highest court reasoned, something it found so unfair as to deny due process.

By that logic, fitter defendants who can walk 30 miles or ride a bike or stand on their feet long enough to spend the day picking up trash have an unfair advantage too.  Indeed, the State Supremes acknowledged that the Florida victims would have benefited from early restitution, but put legal bright lines ahead of pragmatism.

Since sentencing is one of the most frequent grounds for appeal, this is something to be keenly aware of.  It is also another reminder that appeals are an area of practice unto itself, and that the choice of an appellate attorney should be made with care.