Florida Criminal Sentencing: Downward Departures

Florida Sentencing: What is a Downward Departure?

Downward Departures in Florida Criminal Sentencing

When it comes to Florida criminal sentencing, there are a lot of common misconceptions about downward departures. To put it simply, a downward departure in Florida is a sentence imposed by a judge that is lower than the sentence calculated by Florida’s Criminal Punishment Code.

When you are charged with a felony in Florida, you are sentenced pursuant to Florida’s Criminal Punishment Code (CPC)—colloquially referred to as “the scoresheet.” The CPC assigns a numerical value for each felony offense based on a ranking system. The CPC uses a complex formula that considers a number of different factors, like prior criminal history (both felonies and misdemeanors), injury to victim, offense level, and whether there are probation violations. It uses all these factors to calculate the offender’s lowest permissible prison sentence in months. The judge then has the authority to sentence the offender anywhere between the lowest permissible sentence (calculated by the CPC) and the statutory maximum.

When it comes to Florida criminal sentencing, there are a lot of common misconceptions about downward departures.


Here is an example: Let’s say an offender is charged with Felony Battery and his lowest permissible sentence under the CPC is 26 months in the Department of Corrections. The crime of Felony Battery is a 3rd degree felony, punishable by a maximum prison sentence of 5 years. This means that the judge’s sentence must be between 26 months in prison (the lowest sentence under the CPC) and 5 years in prison (the maximum statutory sentence). The only way the sentence can be under 26 months is if the court agrees to a downward departure.

Both case law and Florida Statutes mandate the nature and application of the law. Pursuant to section 921.0026(1), Florida Statutes (2020), 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.” § 921.0026(1), Fla. Stat. (2020). 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.” Id.

To put it simply, a downward departure in Florida is a sentence imposed by a judge that is lower than the sentence calculated by Florida’s Criminal Punishment Code.


The Mitigating Factors for Downward Departures

Section 921.0026(2)(a-n), Florida Statutes, specifies a “non-exhaustive list of mitigating circumstances or factors which ‘reasonably justify’ downward departure.” § 921.0026(2)(a-m), Fla. Stat. (2020). In other words, the law gives us a list of reasons or circumstances that might justify a downward departure in Florida. While the language of the statute does indicate that the factors enumerated or non-exhaustive—meaning that situations and circumstances not on the list might also qualify—courts are reluctant to stray from the list.

The list of mitigating circumstances and factors is as follows:

Section 921.0026(2)(a-m), Florida Statutes, provides the following list of mitigating circumstances that, if established, can justify a downward departure:

  1. The departure results from a legitimate, uncoerced plea bargain.
  2. The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.
  3. 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.
  4. 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
  5. The need for payment of restitution to the victim outweighs the need for a prison sentence.
  6. The victim was an initiator, willing participant, aggressor, or provoker of the incident.
  7. The defendant acted under extreme duress or under the domination of another person.
  8. Before the identity of the defendant was determined, the victim was substantially compensated.
  9. The defendant cooperated with the state to resolve the current offense or any other offense.
  10. The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.
  11. At the time of the offense the defendant was too young to appreciate the consequences of the offense.
  12. The defendant is to be sentenced as a youthful offender.
  13. 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).
  14. The defendant was making a good faith effort to obtain or provide medical assistance for an individual experiencing a drug-related overdose.

Requesting a Downward Departure

To be considered for a downward departure in Florida, a written motion is required. In the motion, the defendant (through his attorney) can identify which enumerated factors apply and make a persuasive and compelling argument as to why such a departure is justified. A skilled attorney can author a detailed and thorough analysis for departure, with supporting case law and statutory authority.

A skilled attorney can author a detailed and thorough analysis for departure, with supporting case law and statutory authority.


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 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). 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).

Even a defendant facing several years in prison, can end up receiving only probation, if his attorney can make a compelling case for downward departure.


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. Id. 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).

Final Thoughts

In summation, a downward departure in Florida provides a defendant with the opportunity to receive a sentence below that which is proscribed by the Florida Punishment Code. Even a defendant facing several years in prison, can end up receiving only probation, if his attorney can make a compelling case for downward departure. If you have been charged with a crime in the greater Tampa Bay area, feel free to contact our office to speak with an attorney about your options. Initial consultations are always free of charge.

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William B. Wynne, Esq.
Attorney William B. Wynne is a Tampa criminal attorney that aggressively fights criminal charges in the Tampa Bay area and surrounding counties.
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