A “downward departure” occurs when a judge agrees to depart from the applicable sentence, giving the defendant a lesser sentence than the state sentencing guidelines stipulate. A judge will only consider imposing a downward departure when certain mitigating factors exist.

If you have been charged with a felony in Florida and are facing possible imprisonment, call Goldman Wetzel in St. Petersburg to discuss your case with our defense lawyers. We can review your case, let you know exactly what you are up against, and explain how to approach the case for the best possible outcome. Call us today at 727-828-3900.

What is a downward departure?

In Florida, every person accused of a crime receives a “score,” computed using a state-designed formula and outlined in the Criminal Punishment Code (CPC). All crimes have an assigned level and numerical value. When the state charges someone with a crime, it will use the numeric value of the crime and the defendant’s prior offenses to calculate a score. If the score exceeds a certain number, then the defendant has “scored prison.”

When the state convicts defendants of certain felonies who have “scored prison,” Florida law mandates that judges follow the sentencing guidelines in the CPC. Judges, for the most part, must follow the sentencing guidelines. However, Florida Statute § 921.0026 provides that a judge can depart from the lowest possible sentence when there “are circumstances or factors that reasonably justify the downward departure.”

While we cannot, in most cases, get around a mandatory minimum sentence, we might be able to get you a lesser sentence if the state agrees to waive the mandatory minimum.

When will judges consider departing from sentencing guidelines?

Florida law specifies 14 mitigating factors that a court may consider when determining whether to impose a downward departure: One of the most common scenarios is a plea bargain. Prosecutors love to offer plea bargains because it frees them from excessive caseloads. When a defendant accepts a legitimate, uncoerced plea bargain, the court may decide to deviate from the guidelines and lower the sentence.

Another common scenario in which a judge may agree to lesser penalties is when the defendant cooperates with the state in resolving the current offense or any other crime. When a defendant provides “substantial assistance in the investigation or prosecution of another person who has committed an offense,” the prosecutor might file a motion for a downward departure.

Other situations in which a judge may consider a downward departure include but are not limited to the following:

  • The defendant was an accomplice and played a minor part in the criminal conduct.
  • The defendant’s capacity to understand the gravity and criminal nature of the conduct or to adhere to the law was substantially impaired.
  • The defendant requires and is open to receiving specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability.
  • “The need for payment of restitution to the victim outweighs the need for a prison sentence.”
  • “The victim was an initiator, willing participant, aggressor, or provoker of the incident.”
  • The defendant acted under extreme duress or under the control of another person.
  • The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.
  • At the time of the offense, the defendant was too young to appreciate the consequences.
  • The defendant is a “youthful offender.”
  • The defendant was making a good faith effort to obtain or provide medical assistance for an individual experiencing a drug-related overdose. 

Who requests a downward departure for a defendant?

Either the defendant’s attorney or the state prosecutor can file a motion with the court, respectfully asking the court to consider a downward departure for a defendant. Within the motion, the attorney must provide grounds for the downward departure and statutory and non-statutory information that supports the request.

After reviewing the motion, the judge will 1) decide whether there is sufficient evidence of mitigating circumstances that support a downward departure sentence, and 2) determine whether to agree and impose a downward departure sentence. The decision is entirely discretionary. Even if there is ample evidence of a mitigating factor, the judge is not required to depart from the sentencing guidelines.

Can Goldman Wetzel request a lower sentence for my case?

Our criminal defense lawyers at Goldman Wetzel have handled various types of cases for defendants in St. Petersburg. In applicable circumstances, we can file a motion with the court and seek a downward departure. Much depends on the specifics of your case.

For a free case evaluation and help with your case, call our office at 727-828-3900.