Law Office of William B. Wynne
2501 Orient Rd., Suite D
Tampa, FL 33619
Law Office of William B. Wynne
2501 Orient Rd., Suite D
Tampa, FL 33619
For those faced with the grim prospect of a lengthy prison sentence, a “downward departure” stands out as a glimmer of hope. Yet, there are many misconceptions about the concept of downward departures in Florida’s criminal justice system. To clarify, the legal term “downward departure” refers to a sentence imposed by a judge that falls below the guidelines calculated by Florida’s Criminal Punishment Code (CPC).
When you face a felony offense in Florida, the CPC—often called “the scoresheet”—plays a crucial role. This code assigns numerical values to each felony based on a ranking system. The system uses a complex formula that considers various factors such as your prior criminal history (including felonies and misdemeanors), the level of injury to the victim, the severity of the offense, and any existing probation violations. All of these factors are used to calculate the offender’s lowest permissible prison sentence in months. The court then has the authority to sentence the offender anywhere between the lowest permissible sentence (calculated by the CPC) and the statutory maximum.
Consider this scenario: an individual is charged with Felony Battery in Florida. According to the CPC, their lowest permissible prison sentence is set at 26 months in the Department of Corrections. Given that Felony Battery is a 3rd-degree felony, the maximum prison sentence under Florida law is 5 years. This means the imposed sentence must range between these two boundaries: 26 months and 5 years.
A downward departure, however, introduces an exception to this rule. In exceptional circumstances, it allows the judge the discretion to impose a sentence below the 26-month threshold. It’s essential to underscore that such downward departures are rarely granted and come with strict qualifying criteria, which we will explore in the subsequent sections.
Florida’s legal system has stringent statutory requirements that govern the implementation and scope of downward departures in criminal sentencing. Pursuant to section 921.0026(1), Florida Statutes, the trial court may not impose a sentence below the lowest permissible sentence required by the Criminal Punishment Code unless the defendant establishes a valid basis for departure. State v. Carlson, 911 So.2d 234, 236 (Fla. 2d DCA 2005). The legislature has directed that a downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to section 921.0024, Florida Statutes, is prohibited unless there are circumstances or factors that reasonably justify the downward departure.”1
The legislature has enumerated a non-exhaustive list of mitigating circumstances or factors which “reasonably justify” downward departure. State v. Imber, 223 So. 3d 1070, 1072 (Fla. 2d DCA 2017). The mitigating circumstances listed in section 921.0026(2)(a)-(n), Florida Statutes, are neither exclusive, nor exhaustive, but are examples of circumstances “under which a departure from the lowest permissible sentence is reasonably justified.”2
In other words, the law gives us a list of reasons or circumstances that might justify a downward departure in Florida. The mitigating factors discussed above aren’t merely suggestions; they are critical factors that can “reasonably justify” a sentence that falls below the calculated minimum. While the language of the statute does indicate that the factors enumerated or non-exhaustive—which might indicate some flexibility in their application—courts are reluctant to stray from the list.
A thorough analysis from an experienced attorney can make a compelling case for why a downward departure is justified, referencing both statutory regulations and case law precedent.
A written motion is a crucial first step for any defendant considering requesting a downward departure in Florida. In the motion, the defendant (through his attorney) can identify which enumerated mitigating factors apply and make a persuasive and compelling argument as to why a lesser sentence is justified. A skilled attorney can author a detailed and thorough analysis for departure, with supporting case law and statutory authority.
A trial court’s decision whether to depart from the guidelines is a two-part process. Banks v. State, 732 So.2d 1065 (Fla.1999). First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground.4 Secondly, the court must determine whether the court should depart, that is “whether the departure is indeed the best sentencing option for the defendant.” State v. Baksh, 758 So.2d 1222 (Fla. 4th DCA 2000). The second step requires the facts supporting the grounds for departure to be shown by a preponderance of the evidence. In other words, the second step allows the sentencing court to determine whether it should depart and if so, is that departure the best sentences for that defendant in that specific case. State v. Alonso, 31 So.3d 265 (Fla. 4th DCA 2010).
When requesting a downward departure, “the defendant has the burden of presenting competent, substantial evidence to support the reason or reasons articulated for the downward departure sentence.” State v. Jimenez-Porras, 974 So.2d 422 (Fla. 2d DCA 2007). The Court’s sentencing discretion also includes the ability to determine the existence of mitigating circumstances and whether or not such circumstances warrant a downward departure. Arbelaez v. State, 626 So.2d 169 (Fla. 1993).
The Court may impose a downward departure sentence based on factors, which are “reasonably justified and are established by a preponderance of the evidence.” State v. Ayers, 901 So.2d 942, 944-945 (Fla. 2nd DCA 2005). In simpler terms, “preponderance of the evidence” means that it is more likely than not that the facts presented are true. In the context of a downward departure, this means that you must show that it’s more likely than not that the mitigating factors you’ve cited should lead to a lesser sentence.
In summation, a downward departure in Florida offers a lifeline for defendants, allowing for the possibility of a sentence that falls below the guidelines set by the Florida Criminal Punishment Code. It’s not just a theoretical possibility; a well-argued case for downward departure by an experienced attorney could mean the difference between years in prison and a probation sentence.
If you or a loved one is facing criminal charges in the greater Tampa Bay area, it’s important that you speak with a knowledgeable attorney. Having an experienced criminal defense attorney assist you with navigating the intricacies of the Florida legal system can be invaluable in securing a more favorable outcome in your case. Our office is available for initial consultations, which are always free of charge. Contact us today at 813-532-5057.