Recent Florida Supreme Court Decision Clarifies What Evidence Can Be Considered for Sentencing

September 2, 2022 Don Pumphrey, Jr. Criminal Defense, News & Announcements Social Share

If you or a loved one is facing a possible prison sentence, a knowledgeable defense attorney may be able to assist if you qualify for a downward departure.

When sentencing a felony defendant in circuit court, the judge must analyze the defendant’s criminal sentencing score sheet in order to figure out which sentence is appropriate. This sentencing score sheet is usually prepared by the prosecutor who verifies its accuracy with the defense. The score sheet will list the lowest sentence possible, which the judge is required to sentence a defendant to upon an open plea or conviction.

But Florida allows for a downward departure from that sentence based upon several mitigating factors. If a defendant is able to successfully argue that one or more of the mitigating factors applies to their case, the judge may sentence below the lowest permissible sentence.

We will go over some of the requirements to determine if you or a loved one qualify for a downward departure from the established sentencing guidelines, as well as explain a recent Florida Supreme Court decision on this subject.

How Does Downward Departure Work?

In Florida, you must file a motion for a downward departure pursuant to Florida Statute § 921.0026. It lists out the factors that a judge may consider while looking over the motion, like whether:

• There was a plea bargain
• Cooperation by the defendant
• Limited culpability by the defendant
• Limited mental understanding by the defendant
• If such a sentence is in the best interest of the victim
• The defendant acted under duress or threat
• The defendant was the initial aggressor
• The defendant is considered a youthful offender
• The defendant was a minor at the time
• The defendant has expressed remorse
• The defendant has no other criminal record
• The defendant’s offense was nonviolent

(This list is non-exhaustive). To read more about downward departures and sentencing, please visit our blog post here.

Florida Supreme Court Decision

In August 2022, the Supreme Court of Florida decided State v. Garcia, where it held that the respondent’s due process rights were violated because his sentence was partly based on a factor the trial court is barred from considering when analyzing a motion for downward departure – the respondent’s misconduct while out on bond. However, the Court found that the trial court did not commit a fundamental error, so the respondent did not get resentenced after this finding.

The Facts

On June 11, 2014, the respondent’s mortgage lender notified him that his house would be sold at foreclosure in a month. About two weeks later, the respondent’s neighbor watched as the respondent’s house went up in flames and quickly dialed 911. The respondent was charged with arson, and the trial concluded with a hung jury. The respondent was released on bond pending his second trial.

The Court details in its opinion that the respondent “made a menace of himself while out on bond.” Once, the respondent was arrested after driving with a suspended license and leaving the scene of a car crash. Then, the respondent aimed a gun at his neighbor’s face after the neighbor stopped by his residence to grab some house tools and have a beer. The neighbor did not dial the authorities.

A few days later the respondent went to his ex-wife’s house to grab guns from her safe. The police found him banging on her door and acting intoxicated, mentally disturbed, or both. The respondent then called an officer on the scene a racial epithet. That same officer drove the respondent home who then, immediately, started arguing with his neighbor, threatening to shoot him and the officer who had driven him home. The officer took the respondent to a mental health facility to have him committed under the Baker Act. One hour after being dropped off, the respondent walked out of the facility to a local bar where he ate chicken wings and drank beer before he was picked up again by the police.

Procedural History

The respondent proceeded to his second trial and was convicted of arson. When the sentencing judge ordered a presentence report, it showed that the respondent was intelligent, a threat to himself and society, and refused to cooperate with the court or the letter of the law. The respondent moved for a downward departure from the lowest permissible sentence on the scoresheet, arguing that he was terminally ill. The State argued for an 84-month sentence, showing that the respondent’s conduct while on bond was endangering the community.  

The respondent appealed to the Fourth District, claiming that it was a vindictive sentence. The Fourth District found that the trial court committed a fundamental error by considering an impermissible factor during sentencing – the bond misconduct.

Legal Analysis

When the case went to Florida’s Supreme Court, the Court found that the sentencing judge was hearing an argument on a motion for downward departure, wherein a judge may consider “all the evidence” – including evidence about an incident that it previously considered in revoking the respondent’s bond. The United States Supreme Court decided decades ago that the conduct of a defendant, if shown by a preponderance of the evidence, may be considered by a sentencing court. Furthermore, the court considered, in addition to the evidence about the bond misconduct, the respondent’s previous convictions, evidence about how the respondent prepared the home to catch fire (and endanger his neighbors and the community in the process), and his ex-wife about the threats he made to her. With that evidence, the respondent was between the range of 34.8 and 360 months. When sentenced to 84 months, the Florida Supreme Court stated: “[w]e cannot say that this determination reflects the trial court’s having committed fundamental error on the order of an illegal sentence.”

Tallahassee Criminal Defense Attorney

Trial judges have wide discretion when sentencing defendants. The best way to avoid a harsh sentence is by forming a solid defense. If you or a loved one has been charged with a criminal offense in Florida, focus on retaining an experienced and qualified Tallahassee criminal defense attorney. Don Pumphrey and the members of the legal team at Pumphrey Law Firm have the experience and passion to ensure that all defenses are explored in your or a loved one’s favor. Call us today at (850) 681-7777 or send an online message to discuss your case during an open and free consultation with an attorney in our legal team.

Written by Gabi D’Esposito

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