Departure Hearings

Pursuant to Florida Statute §921.001(6): “A Court may impose a departure sentence outside of the sentencing guidelines based upon circumstances or factors which reasonably justify the “aggravation” or “mitigation” of the sentence in accordance with Florida Statute §921.0016.

The level of proof necessary to establish facts supporting a departure from a sentence under the guidelines is a “preponderance of the evidence.” When multiple reasons exist to support a departure from the presumptive guideline sentence, the departure shall be upheld when at least one circumstance or factor justifies the departure regardless of the presence of other circumstances or factors found not to justify a departure. Any sentence imposed “outside” the range recommended by the sentencing guidelines must be explained in writing by the trial court Judge.

Florida Statute §921.0026, entitled “Mitigating Circumstances,” provides a useful list of factors that the sentencing Court can consider when determining whether or not to “depart” from the sentencing guidelines on any given case. Subsection (2) states as follows:

(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 Florida Statute §921.0024 are 52 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 Florida Statute §948.08(6).

*** It should be noted that the above-listed “Mitigating Circumstances” are not an exhaustive list of each and every ground which a sentencing Court can rely upon to grant a Defendant’s request for a Downward Departure. An experienced and creative criminal defense attorney can always provide the Court with additional Mitigating Circumstances which can justify a Downward Departure.

*** Except as provided in paragraph (2)(m) above, a defendant’s substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor under subsection (2) and does not, under any circumstances, justify a Downward Departure from the permissible sentencing range.

In many cases, our clients score “mandatory prison” on their Criminal Punishment Code scoresheet. Sometimes, the Lawyers of Blake & Dorsten, P.A. are able to negotiate a non-incarcerative disposition with the State Attorney’s Office. However, that’s not always the case. In cases where the State Attorney’s Office will not reduce our client’s charge(s), and where our client scores mandatory prison, the best available option may be to enter an “open plea” (a straight up plea to the Judge without any formal plea agreement) and have the client’s case set for a “Departure/Sentencing Hearing.”

In this scenario, Blake & Dorsten, P.A. can provide one or more mitigating circumstances to the Court in an effort to convince the Judge to “Depart” from the client’s sentencing guidelines and impose a sentence that is less than or below the bottom of the client’s presumptive guideline sentence.

For more information on “Departure Hearings” and/or to determine whether or not there is a valid basis to request a departure sentence on your case, please contact the criminal defense at the Clearwater-based Blake & Dorsten, P.A. at 727-286-6141.