In the State of Florida, all criminal defendants charged with felonies have sentencing guidelines. These guidelines recommend a sentencing range. For most non-violent first-time offenders, they will score "non-state prison" at the bottom of their guidelines, which means that the Court is free to sentence the accused to a non-state prison sanction, such as county jail, probation, or time served.
Some accused people will "score" state prison, meaning that their recommended sentence will be a prison sentence. For instance, even a first-time offender accused of burglary of a dwelling will score out to 21 months state prison at the bottom of their guidelines, all the way up to 15 years, which is the maximum sentence. For your information, the "top" of the guidelines will almost always be the statutory maximum, unless the accused qualifies for an enhanced sentence.
In many cases, a judge can impose a sentence that is "below guidelines" by making written findings that the defendant is not a danger to the community.
In going below guidelines, however, most judges will look for reasons to depart downward, which are enumerated in
Florida Statute Section 921.0026.
This statute applies to any felony offense, except any capital felony, committed on or after October 1, 1998, and states:
(1) A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s. 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the downward departure. Mitigating factors to be considered include, but are not limited to, those listed in subsection (2). The imposition of a sentence below the lowest permissible sentence is subject to appellate review under chapter 924, but the extent of downward departure is not subject to appellate review.
(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 scoresheet total sentence points under s. 921.0024 are 52 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).
Florida does not view drug addiction, by itself, as a mitigating factor under this section. An accused person in need of mental health treatment and drug treatment (dual diagnosis) will qualify.
Sentences that are below an accused's guidelines happen all of the time. As you can see from reading the statute, a below-guideline sentence is perfectly appropriate as part of a plea agreement between the State and defense.
In other situations, a motion for downward departure may be necessary wherein the accused, through his or her criminal defense attorney, will ask the judge for a reduced sentence by relying on one or more of the above-listed factors.
Eric Matheny represents clients in Miami-Dade and Broward. Call today to discuss your case.