Downward Departure Sentencing in Florida

In Florida, the sentencing of convicted felons is determined by a mandatory point-scoring system adopted by the legislature in 1998. The Florida criminal justice system applies minimum sentences to many felonies based on a total score when the case facts are assigned a point value.  


Using the Florida Criminal Punishment Manual and the scoresheet prepared by the prosecutor, judges can consider special factors present in an individual defendant’s case that will justify deviating from the sentence dictated by the manual. The defendant’s attorney reviews the sheet and may object to its accuracy and propose that additional data be included favoring the defendant. 


Some case facts or the defendant’s prior criminal record will be considered “aggravating” factors that justify an upward deviation and a higher sentence. But many defendants are convicted in cases in which the facts and the defendant’s personal history warrant a “downward departure.” This blog explains downward departures, how they are applied, and what your criminal defense lawyer can do to persuade the sentencing judge to impose a sentence lower than required in the standard Criminal Punishment Manual. 



Why Mandatory Minimum Sentencing and Point Scoring Became Law 


Mandatory minimum sentences are a recent fixture in the American criminal justice system. Before they were adopted by the federal government and many states, sentencing defendants convicted of criminal offenses was left entirely to the judge.  


The wide discretion the sentencing judges had meant that sentences imposed by different judges on defendants convicted of the same crime could vary immensely. One judge might think a burglar deserved ten years in jail, while another judge in the same jurisdiction might impose only probation on their defendant. These variations were widely seen as unfair, especially when the people benefiting from the lowest sentences seemed reserved for wealthy, connected defendants whose race or ethnicity was favored. Poor members of minority communities frequently suffered harsher sentences. 


To even the playing field, sentencing guidelines were adopted that included mandatory minimum sentences for certain offenses or defendants with the worst prior criminal histories. 


Mitigating Factors Justifying Downward Departure in Florida 


The adoption application of mandatory minimum sentencing rules is a work in progress. Over the years, adjustments were made in the rules to increase the punishment for some criminal behavior and allow judges to reduce the length of the sentence they must impose if certain “mitigating” factors were present.  


With a few narrow exceptions, the accused person’s prior criminal history will also be scored. If the total points exceed 44, then the court must impose a prison sentence, unless there is a lawful departure basis (there is an exception here as well: if the defendant’s offense is a non-violent felony, the total sentence points are 60 or fewer, and the court determines that the defendant is amenable to the services of a post adjudicatory treatment-based drug court program, the court may avert an otherwise mandatory prison sentence). 


Florida’s sentencing system includes 14 specific mitigating factors a judge can rely upon to justify imposing a downward departure from the sentencing guidelines: 


The departure results from a legitimate, uncoerced plea bargain. 

  • A legitimate, uncoerced plea bargain is one that is reached between the prosecutor and the defense after considering all the facts of the case, including the defendant’s history and character. The judge can accept the negotiated plea and impose a sentence lower than called for by the guideline. 


The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct. 

  • While two co-defendants can be convicted of the same crime, the downward departure is available if one of the defendants is guilty but significantly less involved in the commission of the crime. Those who played small parts in the events may still be convicted, but they need not suffer the harsh sentence imposed on the person driving the crime. 


The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired. 

  • Many cases involve a defendant so impaired by illness or intoxicants that they had a diminished capacity to form the intent at the heart of the crime. This is often called an “imperfect defense.” The conviction remains valid because the evidence showed they did complete the crime, but with less of a guilty mind. 


The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment. 

  • Florida law permits a downward departure when someone’s mental state is affected by a mental illness affecting their behavior. There is a big difference between mental illness and insanity, though. An illness that played a significant role in the person’s illegal conduct is not a defense, but it is a mitigating factor worthy of great consideration. 


The need for payment of restitution to the victim outweighs the need for a prison sentence. 

  • When a person’s sentencing point total indicates a prison sentence is appropriate, a judge is permitted to reduce or eliminate the prison when the victim of the offense would suffer greater hardship by the defendant being unemployed. If a victim’s need is great and the defendant can pay restitution if not imprisoned, this circumstance can persuade a judge to grant a downward departure. 


The victim was an initiator, willing participant, aggressor, or provoker of the incident. 

  • This mitigation applies in cases in which a defendant responded to a provocation by committing a crime. If a person is forcefully attacked, the law permits them to respond with only the force necessary to repel the attack. If they use excessive force in response to the attack, then they can be convicted of a type of criminal battery. The fact that they were acting in response to the “victim’s” aggression justifies a downward departure. 


The defendant acted under extreme duress or under the domination of another person. 

  • While rare, if a defendant was so dominated by another in committing an offense, so much so that barely had an individual will, a downward departure may be granted. This may apply where a young, submissive, or intellectually limited person is overwhelmed by the pressure of a stronger, older, manipulative defendant.  


Before the identity of the defendant was determined, the victim was substantially compensated. 

  • Evidence that a defendant made significant restitution or paid damages to a victim even before their identity was known to police is evidence of genuine remorse and acceptance of financial responsibility. If payment is made after the defendant were already arrested, it would be viewed as a more self-serving gesture. 


The defendant cooperated with the state to resolve the current offense or any other offense. 

  • Providing substantial assistance to the government is prosecuting others is of value to the system and is typically rewarded with lighter sentences. 


The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. 

  • Cases in which the evidence indicates that the crime lacked any planning, was impulsive, and is not typical of the defendant’s character can warrant lenience in sentencing. 


At the time of the offense, the defendant was too young to appreciate the consequences of the offense. 

  • Youthful offenses are sometimes understood to be the result of immaturity. With age comes wisdom, hopefully.  


The defendant is to be sentenced as a youthful offender. 

  • When a defendant qualifies to be treated as a youthful offender, the criminal justice system thinks they may be rehabilitated more easily if they are extended an opportunity to turn their life toward more productive activity. This applies to persons over 18 but not yet 21 years old. 


The defendant’s offense is a nonviolent felony, and the defendant’s Criminal Punishment Code scoresheet total sentence points are 60 points or fewer, and they are amenable to treatment.  

  • Again, the system hopes to rehabilitate non-violent offenders by providing them with resources to address substantial substance use or other issues contributing to their criminal conduct.  


The defendant was making a good-faith effort to obtain or provide medical assistance for an individual experiencing a drug-related overdose.  

  • If a defendant is convicted of an offense after being arrested while aiding a person overdosing on drugs, the law recognizes that the defendant might have escaped arrest had they fled instead. By remaining at the scene to obtain aid or to render aid, the defendant’s selflessness can warrant a downward departure. 


Learn More > Florida’s Felony Scoresheet 


Your Criminal Defense Attorney Must Fight for Your Downward Departure 


Remember that it is the prosecutor who completes the Criminal Punishment Scoresheet. Prosecutors are unlikely to go far out of their way to recognize favorable facts to lower a defendant’s penalty score.  


Only your criminal defense lawyer is going to identify your eligibility for a downward departure and then aggressively argue for the lower sentence deviation at sentencing. Choosing the right experienced criminal defense lawyer can mean a lower sentence. Choosing the wrong, inexperienced, or inattentive lawyer can result in them missing the opportunity to obtain the downward departures to which you or your family member are entitled. 


Tampa Bay Criminal Defense  

We are on your side and will aggressively argue for a lower sentence based on your circumstances. Contact our experienced attorneys at Stechschulte Nell Law for a case review today at 813-280-1244. 

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