There are two main ways that sentences for drug cases are handled, either through a negotiated plea or through sentencing after conviction. A negotiated plea is when the defendant’s Atlanta drug attorney and the prosecuting attorney discuss the case and come up with terms that they wish to present to the judge as long as the person accused also approves of those terms.
The judge will then hear the proposed terms of the sentence and will tell the defendant whether or not they approve of the terms. If the judge announces that he or she will order the defendant to more jail time instead of what has been negotiated, then the defendant has the right to withdraw that guilty plea and demand trial because the judge has refused to accept the negotiated terms.
After trial, though, there are no negotiations for terms. If a person is convicted of a drug offense at trial, then it’s up to the judge and the judge only to decide what the sentence will be. Of course, the judge will listen to the prosecuting attorney and the defense attorney for any evidence towards aggravating the sentence or in mitigation, but the judge has the authority to give any sentence that the legislature has allowed for that offense.
Aggravating factors are factors that the court can consider which tend to cause the court to give a harsher sentence to the person who’s being convicted. Such aggravating factors could be whether or not violence was involved in the case, whether or not the person has a bad criminal history, and/or the reason for which the person committed the crime.
Mitigating factors are factors which tend to cause the judge to give a lesser or softer sentence. Such mitigating factors can be the absence of any prior criminal history, the fact that there was no violence involved in the crime, and it could be based on the reason that the crime was committed. An example, if someone sold a small bag of marijuana to an undercover officer and they did that because it’s how they make a living, then that would probably be an aggravating factor for why the person is involved in the drug trade. However, if they did it one time because it was apparent that they needed to buy medicine for their child, that might be a mitigating factor.
When we talk about sentencing guidelines in Georgia, most often we are referring to federal cases that are being handled in the district courts. The federal government does have sentencing guidelines that they ask the trial judges at the district courts to follow when they give sentencing in drug cases.
At the state level though, there are no such guidelines. However, the legislature has set forth maximum and minimum possible penalties that the judge may order in any case, to include drug cases. And some charges, such as trafficking cases, have mandatory minimum prison sentences that the judge must order.
The key difference between possible sentencing in a misdemeanor versus a felony case is that in misdemeanor cases, with a couple of very rare exceptions, the maximum possible penalty is $1,000 fine and up to one year in jail. Felony cases are cases in which a person can receive up to life in prison or even a death penalty, and in some cases fines of millions of dollars. Additionally, felony convictions also have some other punishments that come into play such as the loss of voting rights and gun rights and the abilities to have certain types of employment.
Most of the courts in the Metro Atlanta area have some form of pretrial diversion, pretrial intervention, or a drug court program that people charged with drugs can opt to take advantage of in order to avoid having a permanent conviction. Drug courts are offered by the superior courts in the Metro Atlanta area and are for people charged with possession of felony amounts of drugs. Some courts also have pretrial diversion or pretrial intervention programs where a person prior to going to court can agree to take some drug test, some drug classes, or perform some community service. In exchange for a successful completion of those things, the drug charges will be dismissed.
Most courts have such an option in the Metro Atlanta area with one glaring exception and that is Gwinnett County. Although Gwinnett County is one of the largest counties in the metropolitan Atlanta area, the Superior Court there does not offer any form of pretrial intervention or pretrial diversion, but they do have a drug court program.
An experienced defense attorney will prepare the client for the possibility that he or she may have to stand in front of the judge and be sentenced either during a plea deal or after trial, if convicted. The most important factor that the defense attorney should discuss with the defendant is the possible range of sentences and what the likely outcomes will be if they enter a plea versus if they go to trial.
Next, the attorney must instruct the client on how to act and behave in front of the judge, what to say, what not to say. Demeanor and how a person behaves in court are very, very important clues to the judge into the nature of the person. It’s very important to show respect to the process even if the defendant disagrees with the outcome of the trial.
The defense attorney also needs to gather mitigating evidence about his or her client, such as work history, lack of any criminal history, treatment programs, rehab that the defendant has gone through as well as personal factors such as whether or not the defendant is supporting children or supporting other family members. The defense attorney must take time to prepare for the possibility of sentencing and have information to give the judge to use in mitigation.
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