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What is Downward Departure in Florida Sentencing?

Facing felony charges and the associated minimum mandatory prison sentences can be terrifying, and that's true whether the defendant is a first-time offender or has been in court before. Florida law requires the judge to sentence a person convicted of some felony offenses to prison according to the guidelines set in the Florida Criminal Punishment Code (CPC). However, in some cases with mitigating circumstances, the law allows judges to depart from the minimum sentencing guidelines and give a lesser sentence in a downward departure.

If you have been charged with a felony in Palm Beach County, Florida, contact an experienced criminal defense attorney at Noble Law today. Criminal defense attorney Jacob Noble will put forth your best defense. The goal is always dismissal or acquittal. But in instances where the latter is not possible, he will put forth a strategy to get you the best outcome, including downward departure at sentencing.

Felony Offenses by Degree in Florida

To understand downward departure, you need to understand Florida's felony classification system. Florida law assigns each felony offense a degree of severity. The degree of severity determines the maximum prison sentence the defendant faces.

  • Third Degree Felony -- punishable by up to five years in prison.
  • Second Degree Felony -- punishable by up to 15 years in prison.
  • First Degree Felony -- punishable by up to 30 years in prison.
  • Life Felony -- punishable by up to life in prison.
  • Capital Felony -- punishable by up to life in prison or death.

Downward Departure & Florida's Score Sheet

The score sheet determines if the defendant faces prison time resulting from the felony offense. Not all felony offenses result in prison time.

Each felony offense has a point value. The more serious the offense is, the higher the point value. The most serious offense is considered the primary offense, and additional offenses add more points to the score. Details of the crime -- like the victim's injuries, the defendant's prior criminal record, use of a firearm, or committing a new felony while under court-ordered supervision for a previous offense -- also have a point value that is added to the score.

If the felony offense includes any of the below offenses or circumstances, the number of points is multiplied by 1.5, 2, or 2.5:

  • Grand Theft of Motor Vehicle
  • Drug Trafficking
  • Domestic Violence committed in the presence of a child under 16 years of age
  • Violation of the Law Enforcement Protection Act, or
  • Gang-related activity.

The Levels & Point System of the Score Sheet

Each felony offense is assigned a level, and each level has a point value.

  • Level 1—4 points
  • Level 2—10 points
  • Level 3—16 points
  • Level 4—22 points
  • Level 5—28 points
  • Level 6—36 points
  • Level 7—56 points
  • Level 8—74 points
  • Level 9—92 points
  • Level 10—116 points

What the Points Mean in Terms of Incarceration

If the defendant scores less than 22 points and the offense was a third-degree felony, the judge can only sentence the defendant to prison time if he determines that a non-prison sentence would present a danger to the community.

If the total number of points is between 22 and 44, the defendant may not have to serve prison time. Instead, he or she may qualify for probation, house arrest, fines, or jail time in the county jail.

If the defendant has 44 or more points on the score sheet, he or she has "scored prison." To determine the minimum length of the prison sentence, subtract 28 from the total number of points and multiply that number by .75. The equation is : X - 28 x .75 = prison sentence, with "X" being the score. This is the number of months the defendant must serve in prison unless the judge imposes a downward departure sentence.

The Score Sheet Process

The prosecutor prepares the score sheet for the court based on the guidelines set in the 56-page manual provided by the Florida Department of Corrections. This manual provides very detailed information about how the prosecutor must fill out the score sheet and calculate the total.

The defendant's attorney receives a copy of this score sheet and will explain it to the defendant in detail. The defendant's attorney may challenge the prosecutor's calculations on the score sheet if he believes the score is incorrect.

Qualifying for Downward Departure in Florida: Mitigating Circumstances

Not every felony conviction qualifies for a downward departure. Florida law, Fla. Stat. section 921.0026, specifies that the judge may choose a downward departure sentence if one of the following occurs:

  • The defendant agrees to an uncoerced plea bargain.
  • The defendant was an accomplice to the felony crime and his participation was minimal.
  • The defendant does not have the capacity to understand that his actions were criminal or his ability to conduct himself as required by law is impaired.
  • The defendant had not reached the maturity level required to appreciate the consequences of committing the felony.
  • The felony was an isolated incident and the defendant shows remorse.
  • The defendant is a youthful offender.
  • The defendant has a mental disorder that requires treatment, and the defendant agrees to treatment. This does not apply to cases of substance abuse, addiction, or physical disability.
  • The victim's need for restitution payments outweighs the need for a prison sentence.
  • The victim provoked the defendant into committing the crime, was a willing participant or initiated the crime.
  • The defendant was under another person's domination or extreme duress during the commission of the felony offense.
  • The victim was substantially compensated before the defendant's identity was determined.
  • The defendant cooperated with the state to reach a resolution for the felony offense.
  • The felony was nonviolent, the defendant scores 60 points or less on the CPC scoresheet, and the defendant agrees to attend a treatment-based drug court program.
  • The defendant was trying to obtain or provide medical assistance to a person suffering from a drug overdose.

Florida law also specifies that the reasons a judge may choose a downward departure sentence are not limited to the mitigating circumstances listed above. Florida judges, however, rarely deviate from this legal standard.

What Circumstances Do Not Qualify for Florida's Downward Departure Sentencing?

Florida law is very specific that if the defendant has issues with substance abuse or addiction or was intoxicated at the time of the felony offense, the defendant will not qualify for a downward departure sentence.

The court may not give a downward departure sentence in cases where the court believes that the minimum sentence is not equal to the seriousness of the felony offense.

Even if the defendant's attorney shows that mitigating circumstances exist by a preponderance of the evidence, the decision to give a downward departure sentence is entirely at the judge's discretion.

Accepting Responsibility For Criminal Activity in Palm Beach County, Florida

Although granting a downward departure sentence is entirely up to the judge, Florida trial courts have a history of rewarding defendants who accept responsibility for the offense. Prosecutors often agree to downward departure sentences when the defendant accepts responsibility early in the case. This shows the court that the defendant could likely be rehabilitated.

In McKune v. Lile, the court found, "Acceptance of responsibility . . . demonstrates that an offender ‘is ready and willing to admit his crime and enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary.'”

The defendant can show the court that he accepts responsibility in several ways:

  • Ceasing criminal conduct
  • Truthfully admitting guilt
  • Surrendering to law enforcement promptly after committing the offense
  • Paying restitution before being found guilty by the court, or
  • Cooperating with law enforcement and assisting in their investigation.

The defendant must voluntarily make any of the above actions to show that he accepts responsibility. He cannot be coerced in any way.

The defendant may also show that he accepts responsibility for the offense by cooperating with the State. To qualify for a downward departure sentence, the judge must find substantial evidence that the crime was resolved due to the defendant's cooperation. This can be accomplished by the defendant agreeing to testify against other co-defendants and cooperating with law enforcement's investigation. These actions must result in solving the crime or arresting other people to qualify for a downward departure sentence.

Florida appellate courts have taken different stances on what constitutes accepting responsibility. The Fifth District Court of Appeal found that making a full confession is enough of a mitigating circumstance to warrant a downward departure sentence while the Second District Court of Appeal found that the defendant must show remorse and accept responsibility for the offense to warrant a downward departure sentence.

Paying Restitution in Palm Beach County, Florida

A defendant may prove to the court that he is worthy of a downward departure sentence by paying extraordinary restitution. Usually, simply paying restitution is not a reason for a judge to grant a downward departure sentence, but if the defendant shows that he has accepted responsibility by making an extraordinary effort to correct the harm caused by the offense, the judge takes this into consideration.

Determining Extraordinary Restitution as Mitigating Factor

Florida does not have a cut-and-dried definition of what constitutes extraordinary restitution, but the court considers the effort the defendant made to pay the restitution, the percentage of restitution paid, the timing, and if the defendant's motivation for paying restitution is sincere remorse. These efforts must be beyond what is "typical" or "usual." Although the law does not say that restitution has to be paid in full to be extraordinary, the judge typically will not consider less than a full restitution payment extraordinary.

Determining Any Degree of Restitution as Mitigating Factor

Extraordinary restitution is not the only way for a defendant to seek a downward departure sentence by paying restitution. The Laws of Florida Section 921.185 states,

In the imposition of a sentence for any felony or misdemeanor involving property, but not injury or opportunity for injury to persons, the court, in its discretion, shall consider any degree of restitution a mitigation of the severity of an otherwise appropriate sentence.

Some trial court judges have used this statute to justify downward departure sentences in cases where they believe the defendants would have made full restitution payments if they had not been incarcerated.

Determining Victim's "Need" for Restitution as Mitigating Factor

In some cases, the judge grants a downward departure sentence because the victim's need for restitution outweighs the defendant's need for incarceration. In these instances, the judge considers the defendant's ability to pay restitution if he is not incarcerated. The key word is "need." The judge cannot grant the downward departure sentenced based on the victim's desire for restitution -- the victim must need it.

The victim proves his or her need through non-hearsay evidence showing the victim's loss as a result of the offense. Even if the victim proves he or she needs restitution, the judge does not have to grant a downward departure sentence and may instead order the defendant to pay restitution after his incarceration. The judge has to weigh the victim's need for restitution against society's need for the defendant to be incarcerated when making his decision to grant a downward departure sentence.

Requesting a Downward Departure Sentence

Either the prosecutor or the defendant's attorney can file a motion with the court requesting a downward departure sentence. The motion must contain information that shows the mitigating circumstances why the defendant qualifies for a downward departure sentence. The judge uses this information to determine if qualifying mitigating circumstances exist and if he believes that imposing a downward departure sentence is in the defendant's best interest.

To show the court that the defendant is worthy of a downward departure sentence, the defendant's attorney may present the court with the defendant's:

  • personal statement
  • letters from former employers
  • letters from friends or family; or
  • awards or commendations from school or military service.

Aggressive Felony Criminal Defense Representation in Palm Beach County, Florida

Have you or someone you love been charged with a felony in Palm Beach County, Florida? Some Florida felonies carry lengthy minimum prison sentences, but with an experienced criminal defense attorney fighting for a downward departure sentence, you or your loved one may not need to face prison time at all.

Criminal defense attorney Jacob Noble is an aggressive litigator with the experience necessary to protect your or your loved one's freedom, finances, and future. He understands the important nuances of the downward departure sentence statute and will present the strongest argument to the judge for reduced penalties. If you or someone you love has been charged with a felony crime in Palm Beach County, Florida, and need aggressive, smart legal representation, contact Noble Law today at (561) 847-7095.

Aggressive. Prepared. Tenacious.

These invaluable qualities are what distinguishes Jacob Noble from his peers, and what leaves many of his clients feeling satisfied with their case results. For more information about how he can help you, don't hesitate to contact Noble Law today at (561) 847-7095.