Skip to Content
South Florida Criminal Attorney
Free Case Evaluation 305-504-6655 | 305-542-9491

Downward Departure

Aggressive Trial Attorney With a Reputation for Success

We criminal defense attorneys fight day in and day out for the rights of our clients. But magicians we are not. Sometimes, clients come to us with cases where the proof of guilt is strong. There may be ample amounts of physical evidence, eyewitnesses, even a confession. While skilled criminal lawyers can file motions to suppress where the law warrants such an attack on the State's evidence, sometimes, the best thing to do is work toward the best possible plea resolution for a client.

A plea agreement, or plea bargain, is an agreement between the client, the State Attorney's Office, and the Court, whereby the client pleads "guilty" or "no contest" to the charge in exchange for what's typically a lighter sentence than the maximum they could receive if they were found guilty at trial.
Believe it or not, most cases are resolved by way of plea agreements. Plea agreements may mean probation instead of prison. Trial is a right of everyone charged with a crime, but trial also subjects the accused to the statutory maximum penalty for their charge.
Plea agreements are formulated by prosecutors. Believe me, prosecutors love pleas because it allows them to get rid of some of their cases. I should know. I once worked for the Miami-Dade State Attorney's Office.
But in Florida, every accused person is given a "score" by way of a mathematical matrix designed by the legislature, and permitted by the Florida Criminal Punishment Code. Each crime is assigned a numerical value, and coupled with the defendant's prior offenses, comes out to a score. If the score exceeds a certain number, the lowest offer (bottom of the guidelines) is non-state prison (such as county jail, probation, or credit for time served). If the score exceeds a certain number, then that number is the lowest permissible prison sentence.
Scoresheets are only calculated for felony offenses, which are prosecuted in our circuit courts. Misdemeanors, prosecuted in our county courts, do not involve the use of scoresheets. You should know, however, that if you are charged with a felony but have misdemeanor priors, those misdemeanor priors will count toward your overall score.
For instance, if you are charged with burglary of an unoccupied dwelling or aggravated battery, you would score out to 21 months state prison at the bottome of the guidelines, all the way up to 15 years state prison at the top. Lesser felonies such as possession of cocaine, burglary of an unoccupied structure, and grand theft, do not score out to state prison on their own. If you have a prior criminal history, you may score out to state prison based on that. If you have no priors, however, you will not score state prison.
If you score state prison, the State Attorney's Office can go "below guidelines" and make you a plea offer. For example, if you are charged with burglary of an unoccupied dwelling but have no priors, the State can make you a probationary plea offer with restitution to the victim and other conditions. Prosecutors are more likely to offer a below-guidelines plea in Miami-Dade than in Broward. Personally speaking, I find Miami-Dade to be a more reasonable jurisdiction than Broward.
However, there are some instances in which the prosecutor will not go below guidelines. In this situation, I can file a motion with the Court, asking the judge to depart downward from the bottom of the guidelines and impose a sentence that is lower than what the State is offering.
Also, certain enhancements will prevent a judge from imposing a downward departure sentence. If the accused is designated a PRRP (prison releasee reoffender), the judge is not allowed to go below the guidelines.
However, if the accused is a habitual offender (H.O.), there is no mandatory sentence (only increased maximums), so the judge can impose a downward departure sentence.
When I have a downward departure situation, I usually begin by having my client evaluated for a mental health condition. Florida law permits a downward departure when the accused suffers from a mental illness that requires specific treatment. If the client is in jail, the doctor will go and visit them. If the evaluation comes back showing that the client suffers from a mental health disorder, I contact treatment centers throughout Miami-Dade County and begin proposing an alternative sentence. This may include probation with the condition that the client complete mental health treatment or dual-diagnosis treatment (treatment for a mental health disorder and drug addiction).
As a criminal attorney with a practice that includes Miami and Broward cases, I handle many downward departure situations. I have also been extremely successful in getting clients excellent plea offers from the Court. In some of these situations, the client was facing life in prison. While I cannot publish specific case results on my website according to the Florida Supreme Court, I will be happy to tell you about these cases if you contact my office and speak with me personally.
Please call me if you want to discuss your case, or the case of a loved one.