When Your Lowest Permissible Sentence Exceeds the Maximum: Why Going to Trial May Be Your Smartest Move

Most people assume that going to trial dramatically increases their sentencing risk. Under Florida’s Criminal Punishment Code (CPC), this is often true. However, there is one critical, nuanced exception—an exception that completely flips the strategic analysis in your favor: When your lowest permissible sentence (LPS) is higher than the statutory maximum for a specific offense, the LPS becomes the maximum sentence the court can impose.

This rule effectively means that, in many serious or multi-count cases, you cannot receive a harsher sentence by going to trial. If the prosecution refuses to negotiate a deal below your LPS, and your lawyer doesn’t understand this technical leverage, you surrender the biggest strategic advantage the law provides. The Brancato Law Firm, P.A. can help you take advantage of that leverage.

The Critical Rule: CPC Scoresheet Controls the Cap

Under the CPC, every felony case is assigned a scoresheet that determines a mandatory Lowest Permissible Prison Sentence (LPS). This LPS is the minimum a judge must impose, unless there is an authorized reason to depart the guidelines. In cases involving serious offenses, high-level counts, or extensive prior records, that mandatory minimum number can climb to a level that exceeds the standard statutory maximum (e.g., five years for a third-degree felony).

Florida appellate courts, including the Supreme Court, have unequivocally reinforced this principle:

When “the statutory maximum sentence as provided in section 775.082, Florida Statutes, is exceeded by the lowest permissible sentence under the code, the lowest permissible sentence under the code becomes the maximum sentence which the trial judge can impose.”

Case Example: Harris v. State

This principle was recently reinforced in the Fifth District’s decision, Harris, v. State, 5D2024-1179 (Fla. 5th DCA November 21, 2025). Harris was convicted of third-degree felonies, normally punishable by up to five years. However, his CPC Scoresheet showed an LPS of 154.950 months (approximately 12.9 years).

The trial judge illegally sentenced him to fifteen years. The appellate court vacated the sentences because they exceeded the legally controlling maximum: the 154.950-month LPS. This case is a clear reminder: the judge must adhere to the rule.

How This Impacts Your Case Strategy

When the LPS exceeds the statutory maximum, it creates a powerful legal reality:

• Plea Advantage Disappears: If the State refuses to offer a plea below your LPS, that plea offers no reduction in your sentencing exposure.
• Trial Risk Neutralized: A trial does not increase your sentencing exposure because the post-conviction sentence is capped by the LPS.

In this specific scenario, the plea sentence exposure is approximately the same as the trial sentence exposure.

Conclusion: You may have everything to gain by going to trial—seeking an acquittal, dismissal, or reversal on appeal—and nothing additional to lose on sentencing. The traditional fear of the “trial penalty” disappears, and the leverage shifts to the defense.

Why Your Lawyer Must Be a Major-Felony Trial Strategist

This crucial CPC analysis separates true major-felony trial lawyers from those who primarily handle high-volume dockets or rely on plea bargaining.

Only a lawyer who understands this nuance will:

1. Immediately Calculate the LPS: The first step is to accurately calculate the lowest permissible sentence on the CPC Scoresheet.
2. Identify the True Maximum: Compare the LPS to the statutory maximum. If the LPS is higher, the lawyer must recognize that the LPS becomes the new maximum.
3. Confront the State: A seasoned attorney will confront the prosecution with the legal reality: their offer provides no actual incentive if it’s not below the LPS.
4. Prepare to Fight: If the State refuses to offer a concession that truly benefits the client, the lawyer prepares for trial, knowing the client’s sentencing risk is identical to the best offer they are receiving.

Without a lawyer who can execute this strategic analysis, defendants are often pressured into accepting pleas that offer zero benefit compared to the post-trial sentencing risk. The key to a successful defense is knowing when and how to deploy the law’s most powerful technical levers.

When your lowest permissible sentence makes trial risk-free, you need a firm that understands how to use that leverage. The Brancato Law Firm, P.A. brings major-felony experience to every case. Call (813) 727-7159.

Common Questions on the LPS Rule

Q: Does this mean a plea offer above the Lowest Permissible Sentence is worthless?

A: Yes. A plea that does not go below that lowest permissible number gives you nothing you would not also face after conviction at trial. The only value in a plea is the guaranteed sentence reduction.

Q: Can I really get more time for going to trial in this specific situation?

A: Not legally. When your LPS exceeds the statutory maximum, the judge cannot sentence you to more than the LPS, even after a trial conviction^.

Q: What is the Trial Penalty (Trial Tax):

The trial penalty is the extra time a defendant may receive after losing at trial compared to the far lower sentence offered in a plea. In theory, judges should not impose a harsher sentence just because someone exercised their right to trial, but in practice it still happens—judges are human, and the gap between a plea offer and a post-trial sentence can be significant.

Q: If the prosecutor refuses to negotiate, should I still go to trial?

A: When the prosecutor refuses to offer a sentence below the LPS, your sentencing exposure is identical at trial. The refusal removes the only leverage a plea might provide, making trial a rational strategic choice to seek an acquittal or dismissal.

Q: Do I have to go to trial?

Not necessarily. In many cases, the prosecutor will negotiate once they know your attorney is fully prepared to fight. When the State realizes trial is a real possibility, they may agree to a significant departure from the guidelines or offer a resolution they would never consider for a lawyer who only pleads cases. A strong trial posture often creates better plea options—sometimes far better than what was originally on the table.

Q: Why does choosing the right lawyer matter so much here?

A: Only a lawyer who understands the CPC, the specific case law (like Gabriel and Butler), and real trial strategy can use this leverage effectively. Without that specific knowledge, you risk an illegal sentence (like the one in Harris) and lose the strategic advantage necessary to force a better plea or pursue a trial without fear.