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