So what is Downward Departure?
Downward Departure refers to a sentence that is below what your score sheet tells you that you score. Because a score sheet is the backbone of where a downward comes from, a brief discussion of what a score sheet does and how it is calculated is mildly important.
A score sheet is a packet that is generated by the State Attorney. It’s a multi page packet that contains the charges you are currently in trouble for, multipliers for specific things such as injuries, your history, and if you’re on probation the additional points for your probation violation. Score sheets are calculated using fairly straight forward principles (Click here for the score sheet statutory run down). For example, each offense has an offense level that is enumerated by statute. Note that offense level is not the same thing as felony degree. For purposes of a score sheet the offense level is more important. The higher the level the more points you score.
The more higher level offenses in your history, the more points you score. After your score sheet is added, the Score sheet has a math formula that is used to give you another number. This number tells you how long you have to go to prison for AT THE VERY LEAST. In other words, it sets the floor not the ceiling. The ceiling will still be the maximum number of years for that specific offense. So for example, let’s say you score 3 years prison on a Burglary of a Dwelling (F2). That means that you have to do at last 3 years in prison (unless you get downward departure), but you can also get up to 15 years in prison depending on what happens at trial, plea deal, judge’s sentence.
So this is where downward departure comes in. A client scores prison and doesn’t want to do prison. The criminal defense lawyer is guided by the statute on downward departure. To read the whole statute click here. Otherwise read the indented text directly below that I find most important.
Florida Statute 921.0026
- (2) 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 score sheet 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 post adjudicatory 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.
This is direct copy/paste from the downward departure statute. Notice that the very first downward departure is “a legitimate uncoerced plea bargain.” In other words the State Attorney can give you a downward departure for ANY reason whatsoever. If the evidence isn’t strong enough, if the Defense Attorney can provide rational/moral reasons why there should be a downward departure, etc. In all cases, this prong is the most argued and most contested. Because without this prong, without the State agreeing to a downward departure you must either (a) go to trial, and if you lose argue downward departure at sentencing, or (b) enter a blind plea to the bench and request downward departure.
Since we are talking about downward departure, we focus on sentencing following a trial loss OR sentencing after a blind plea to the bench. As you can see above, there are several specifically enumerated examples of where downward departure is appropriate. In order for the judge to go below the score sheet, evidence must be provided at that sentencing hearing, showing that you fit into one of those categories in order to get downward departure.
But what about “not limited to” provision?
Keep in mind, that a plain reading of the Downward Departure Statute may be confusing because the very first line states that the reasons for downward departure are to include everything listed below, but it is not to be “limited to” said reasons. This appears to create a floating concept of downward departure outside of the stuff statutorily specified. Unfortunately, there is little to no case law on what is actually an acceptable reason for downward departure outside of the statutory mitigation listed specifically.
Because of this, if you attempt to argue this “not limited to” prong, you will likely not get your downward departure. Personally, over the years, I have never seen a judge find a reason outside of those specifically enumerated to grant downward departure. Legally speaking, the judges are being cautious, and one day you may see a judge be a bit adventurous and step outside the box on this particular provision of the Statute. However, for now it’s safe to assume that arguing the “not limited to” provision is a long shot at the very least.