Do you know about the 5/6 “Dipsy-Do” technique? This is a tactic used by prosecutors that is intended to ensure increase sentencing exposure for defendants charged with one level 6 offense and one level 5 offense.
Normally, in accordance with section 921.0021(4) and Fla. R. Crim P. 3.704(d)(7) the offense which carries the greater sentence would be scored as the primary offense.
So normally a level 6 offense would be scored as the primary offense for a total of 36 points, and the level 5 offense would be scored as a secondary offense for 5.4 points for a total of 41.4 points.
A defendant with a score of 44 or less is eligible for a non-prison sentence.
What prosecutors do is pull a little switcheroo. They score the level 5 offense as the primary offense for 28 points and the level 6 offenses as a secondary offense for 18 points for a total score of 46.
Any score over 46 is a mandatory prison sentence unless there are valid grounds to depart lower.
This is called sentence manipulation and as of the date of this post, it is not technically illegal. In fact, this was actually taught to prosecutors by the Florida Prosecuting Attorneys Association at its Sentencing Seminar on March 23, 2007 in Orlando, Florida.
It is not illegal, but it should because it takes advantage of ambiguity in sentencing statute and rule. But generally, where these is ambiguity in a statute, it should resolved in favor of the defendant under the rule of lenity.
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