Downward Departure From The Florida Criminal Punishment Code

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Since 2008, Florida Judges have used the Criminal Punishment Code to determine the appropriate sentence for felony offenses. The Florida Legislature has laid out a detailed blue print for minimum and maximum sentences that individual criminal defendants may receive based on the charges they are accused of, their prior record, and certain aggravating or mitigating circumstances like whether someone was injured. Each factor will increase the defendant’s score. If the defendant scores less than 22 points, the judge cannot sentence the defendant to prison without making aggravating findings on the record. Likewise, if the defendant scores 44 points or more, the defendant must receive a prison sentence unless the judge finds a legal reason for a downward departure.

Statutory Reasons For A Downward Departure

According to Florida law:

Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to:

(a) The departure results from a legitimate, uncoerced plea bargain.

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

(c) 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.

(d) 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.

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

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

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

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

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

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

(k) At the time of the offense the defendant was too young to appreciate the consequences of the offense.

(l) The defendant is to be sentenced as a youthful offender.

(m) The defendant's offense is a nonviolent felony, the defendant's Criminal Punishment Code scoresheet total sentence points under s. 921.0024 are 60 points or fewer, and the court determines that the defendant is amenable to the services of a postadjudicatory treatment-based drug court program and is otherwise qualified to participate in the program as part of the sentence. For purposes of this paragraph, the term “nonviolent felony" has the same meaning as provided in s. 948.08(6).

(n) The defendant was making a good faith effort to obtain or provide medical assistance for an individual experiencing a drug-related overdose. In deciding if a downward departure sentence below the sentencing guidelines is appropriate, the trial court must follow a two-step process; first, the trial court must determine whether there is a valid legal basis for the departure sentence that is supported by facts proven by a preponderance of the evidence. If so, trial court must then determine whether a departure sentence is the best sentencing option for the defendant by weighing totality of circumstances in the case, including any aggravating and mitigating factors.

When A Downward Departure Is Not Appropriate

Interestingly, the legislature made itself clear that the factors listed above are not necessarily the only factors. Still, a downward departure for reasons not set forth above is only permissible if supported by competent, substantial evidence and not otherwise prohibited.

The legislature and appellate courts have been better at defining what should not be considered than they have been about defining what other factors can or will be considered. For example, the defendant's substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor and does not, under any circumstances, justify a downward departure from the permissible sentencing range. Additionally, it is improper for a trial court to impose a downward departure sentence based on the trial court's perception that the lowest permissible sentence under the Criminal Punishment Code is not commensurate with the seriousness of the crime.

When A Downward Departure May Be Appropriate

At least one trial court set forth a scenario that the appellate courts approved as a legal reason for a downward departure that is not specifically set out in the statute. That Miami trial court termed it “sentence manipulation".

In that case, a downward departure sentence was appropriate for a defendant convicted of total of six counts of sale of cocaine, possession of cocaine, and sale of cocaine within 1,000 feet of a school, because the state conceded that police had engaged in sentence manipulation, but police conduct did not rise to level of entrapment and where sentence imposed was not lower than what defendant would have received had police not engaged in sentence manipulation. In that case, the trial court found that the defendant could have been arrested after the first of six undercover drug buys, but police continued to arrange additional undercover buys for express and sole purpose of increasing defendant's sentencing exposure. While this presents a pretty specific set of facts, these facts are not necessarily unique to this defendant. Frequently, police officers target specific drug dealers to investigate and often make several controlled buys before making an arrest.

If you find yourself in a situation where you are facing a mandatory prison sentence due to your score, you owe it to yourself to meet with a qualified criminal defense attorney to discuss the facts of your case and your options. The lawyers of the Ferraro Law Group have been practicing criminal defense since 1974. We purposefully manage smaller case loads to ensure that your case gets the attention that you deserve. Contact us now for a free consultation.

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