The criminal justice system can be daunting, especially when you are facing the possibility of being sentenced. Since there are numerous legal terms with which the common public is unfamiliar, people often wonder what is downward departure in Florida.
Downward departure in Florida is a sentence that reduces an offender’s punishment below the lowest permissible sentence. Given that it results in lesser penalties for the offender, a departure sentence is only imposed if certain mitigating factors are met. A downward departure does not apply to capital felonies.
Not all offenders are eligible for a downward departure sentence in Florida. However, if you are facing a felony offense charge, this is an important concept that you may want to understand. In the following sections, you will find key information about departure sentences, how they work, and the grounds for this type of sentence.
If you are facing felony charges in the Tampa Bay Area, a criminal defense attorney can help you assess your case and find the best legal approach for your situation. Call us today at 727-828-3900 to book a free consultation with our legal team.
Motion for Downward Departure Florida
In Florida, the lowest permissible sentence is the minimum sentence that can be imposed for a crime. In other words, when determining an offender’s punishment, the judge has sentencing guidelines that range from the lowest permissible to the maximum imprisonment punishment associated with that offense.
If you are convicted for a felony crime, your criminal defense attorney can file a motion to request a departure sentence. With this motion, your lawyer would seek to provide the judge with mitigating circumstances that may make you eligible for downward departure.
A downward departure sentence in Florida occurs when the judge imposes a punishment below the lowest permissible sentence. For instance, let’s say that the sentencing guidelines scoresheet recommends a range between 4.5 years (lowest permissible) to 7 years (maximum sentence) for an offender.
After assessing his case, the court decides that there are enough legal grounds for a departure sentence. Therefore, the defendant will receive a punishment less than 4.5 years, which is the lowest permissible sentence.
According to Florida Statute §921.0026, a departure sentence is prohibited for capital felonies and offenses with a minimum mandatory sentence. But even though this type of sentence is available for any other felony, offenders are not eligible for a departure unless certain mitigating circumstances are met.
To depart from the sentencing guidelines, the court must determine:
- If there are enough legal grounds to impose this sentence. If there are, these grounds must be proved at a hearing with evidence.
- If a departure sentence is the best sentencing option for the defendant.
When judges decide to impose a departure sentence in Florida, the court is required to provide a written statement or a written transcription of an oral statement where they explain the reasons for the departure. The prosecution can appeal a downward departure and request a new sentence if they consider your grounds to be insufficient.
Grounds for Downward Departure
As established before, a downward departure is prohibited unless the existence of specific mitigating factors can be proved. Some of the legal grounds for a downward departure in Florida include, but are not limited to:
- The offender willingly entered a plea bargain.
- The defendant was an accomplice and a minor participant in the crime.
- The defendant’s capacity to appreciate the criminal nature of his actions was substantially impaired.
- The defendant is a youthful offender.
- The need for paying restitution to the victim outweighs the need for a prison sentence.
- The crime was committed in an unsophisticated manner and was an isolated incident for which the defendant showed remorse.
- The offender cooperated with law enforcement to resolve a crime.
- The victim was an initiator, aggressor, or provoker of the incident.
- The crime is a nonviolent felony, and the defendant is willing to engage in treatment or a program.
- The defendant requires specialized treatment for a mental disorder.
The mitigating circumstances described in Florida Statute §921.0026 is not an exhaustive list. As explained in State v. Stephenson, the court may impose a downward departure sentence for reasons that are not mentioned in the legislation. However, these reasons are still required to be supported with substantial evidence.
Additionally, it is up to the judge’s discretion to impose this type of sentence. So even if there is convincing evidence of a mitigating circumstance, the judge can decide whether or not to depart from the sentencing guidelines.
Case Examples of downward departure in Florida
Example #1: Jackson v. State
Bradley James Jackson pled guilty to two noncapital felonies in 2008. His charges were:
- Possession of less than 20 grams of cannabis
- Sale or delivery of cocaine
Jackson’s sentence ranged from 13.95 months to 15 years imprisonment based on his scoresheet. But, because the defendant had requested assistance and was amenable to rehabilitation, the trial court decided to impose a downward departure sentence.
As a result, Jackson was sentenced to 9 months to be served in county jail. However, the State appealed this decision, and the First District concluded that the trial court failed to file written reasons for the departure as established by Florida laws.
Additionally, they also found that the grounds for the departure sentence were not valid. Therefore, the downward departure was reversed and remanded for resentencing.
Example #2: Banks v. State
Donald Banks had an altercation with his neighbor Mark Kotila. As a result of this, Mr. Kotila sustained a permanent injury, and Mr. Banks was charged with aggravated assault. The median recommended guidelines sentence for this offense was 68 months of imprisonment.
Mr. Banks entered a plea of no contest based on the agreement that he would receive probation. The court accepted his plea, withheld adjudication, and imposed a downward departure sentence:
- Make restitution to the victim
- Four years’ probation
- Complete anger management school
The mitigating circumstances for this case were:
- Mr. Banks had no prior criminal record.
- The need for restitution to the victim overweights the need for imprisonment.
Since there were valid reasons and there was enough evidence to support them, the departure sentence was accepted.
Don’t Go It Alone
Being charged with a crime and facing potential imprisonment can be frightening. A dedicated criminal lawyer can help you find the best legal approach for your case. If it is applicable to your circumstances, the defense attorneys at Goldman Wetzel may be able to file a motion to seek downward departure.
Goldman Wetzel is a criminal law firm that represents clients facing criminal charges in the Tampa Bay Area. To book a free consultation, call today at 727-828-3900.