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Am I eligible for a downward departure?

Phil Photo New By Philip M. Snyder

Am I eligible for a downward departure sentence?

As a Broward County criminal defense attorney, I oftentimes receives inquires concerning “downward departures” and when they are applicable in a criminal case.

Florida Statute 921.0026 – Mitigating Circumstances – allows the sentencing Court to “downward depart” from the lowest permissible sentence (as calculated according to the total sentence points pursuant to Florida Statute 921.0024) when there are circumstances or factors that reasonably justify such a departure.

Such common downward departures include:

  1. Florida Statute 921.0026(a), “The departure results from a legitimate, uncoerced plea bargain.” (i.e. negotiated plea with the State);
  2. Florida Statute 921.0026(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.”  (i.e. Axis I diagnosis such as bipolar disorder, ADHD, autism spectrum disorder, and schizophrenia);
  3. Florida Statute  921.0026 (j), “The offense was committed in an  unsophisticated manner and was an isolated incident for which the  defendant has shown remorse;
  4. Florida Stature 921.0026(l), “The defendant is to be sentenced as a youthful offender.”  (Of note, pursuant to Florida Statute 985.04,  the Court must sentence the defendant prior to his/her 21st birthday);
  5. Florida  Statute 921.0026(m), The defendant’s offense is a nonviolent felony, the defendant’s scoresheet total sentence points 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.

Important notes concerning downward departure sentences.

  1. Except as provided in 921.0026(m), the defendant’s substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor and does not, under any circumstances, justify a downward departure from the permissible sentencing range.
  2. Only the State Attorney’s Office (and not the Court) has the discretion to waive a minimum mandatory prison sentence, notwithstanding Florida Statute 921.0026(l) – Youthful Offender.  Stated another way, a defense attorney cannot request the Court to deviate from the sentencing guidelines (i.e. downward depart) on charges that carry      minimum mandatory prison sentences.

State v. Vanderhoff, 14 So.3d 1185 (Fla. 5th DCA, 2009) “Only the State Attorney has the discretion to waive the minimum mandatory sentence implicated here.”

State v. Gretz, 972 So.2d 212 (Fla. 5th DCA, 2007),   “The State is  correct, however, that Appellee’s conviction for aggravated battery upon a  law enforcement officer under Florida Statute 784.07(2)(d) required the lower court to impose a five-year minimum mandatory sentence.”

State v. Andrews, 875 So.2d 686 (Fla. 4th DCA, 2004), “Vacation of defendant’s downward departure sentence and remand for imposition of mandatory minimum sentence was required, where defendant was required to be sentenced under mandatory minimum sentence statute.”

Such common charges carrying minimum mandatory sentences include, but are not limited to:

(1) weapons  charges / “10-20-life” including aggravated assault with a firearm;

(2)  drug trafficking charges under Florida Statute 893.135 such as trafficking in cocaine or trafficking in oxycodone;

(3) aggravated battery law enforcement or aggravated assault law enforcement; and

(4) DUI manslaughter.

The trial court may consider a youthful offender sentence for a defendant (under Florida Statute 921.0026(1)) and that such a sentence would not be controlled by this mandatory minimum.  Darrow v. State, 789 So. 2d 552 (Fla. 5th DCA, 2001).

If you or a family member is charged with a crime carrying a lengthy prison sentence (including a minimum mandatory prison sentence), immediately contact an experienced criminal defense attorney familiar with downward departures (Florida Statute 921.0026.)