What is a Downward Departure?

March 17, 2022 Don Pumphrey, Jr. Criminal Defense Social Share

A downward departure occurs when a judge departs from the lowest permissible prison sentence according to Florida’s Criminal Punishment Code. But how does a defendant dodge a mandatory prison sentence? This blog will explore how the lowest permissible prison sentence is calculated and what circumstances will result in the court straying away from it.

Florida’s Criminal Punishment Code

Under Section 921.002 of the Florida Statutes, the Criminal Punishment Code should apply to all felony offenses, except capital felonies, committed on or after October 1, 1998. When a person is charged with a felony offense, that felony is assigned an offense level between 1 and 10. Each level carries a specific number of sentence points – with the more serious crimes resulting in a higher offense level, and more points. A person’s “score” is determined by adding the following offenses:

• Primary Offense – Also known as the crime that has the highest offense level. If two felony offenses were committed, only one will be deemed the primary offense.
• Additional Offenses – Other felony offenses that are not the primary offense will be categorized as additional offenses and awarded a point value.
• Prior Offenses – All past felonies committed by the defendant will be categorized under the prior record and awarded a point value.

The Criminal Punishment Code will also award additional points depending on certain factors, such as if there was an injury to the victim, the crime involved firearms, if the defendant committed prior serious felonies, or if they were on probation at the time of the offense. A person’s points will then be added together using a Scoresheet Preparation Manual, and if they equal 44 points or more, the person “scores” prison, meaning they must serve a mandatory prison sentence. However, if those points result in a score less than 44, or the person is deemed a chronic substance abuser, they may only face community control or probation. Under Section 948.20 of the Florida Statutes, if the defendant is a chronic substance abuser and committed a nonviolent felony that results in 60 or fewer sentence points, the judge may sentence the defendant to drug offender probation or to a post adjudicatory treatment-based drug court program instead of prison.

What Circumstances Warrant a Downward Departure?

Section 921.0026 of the Florida Statutes lists the specific circumstances that warrant a downward departure. It states that a downward departure from the lowest possible sentence is prohibited unless there are circumstances or factors that reasonably justify the downward departure. Mitigating factors include but are not limited to:  

1. The departure results from a legitimate, uncoerced plea bargain.
2. The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.
3. 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.
4. 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.
5. The need for payment of restitution to the victim outweighs the need for a prison sentence.
6. The victim was an initiator, willing participant, aggressor, or provoker of the incident.
7. The defendant acted under extreme duress or under the domination of another person.
8. Before the identity of the defendant was determined, the victim was substantially compensated.
9. The defendant cooperated with the state to resolve the current offense or any other offense.
10. The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.
11. At the time of the offense, the defendant was too young to appreciate the consequences of the offense.
12. The defendant is to be sentenced as a youthful offender.
13. The defendant’s offense is a nonviolent felony, the defendant’s Criminal Punishment Code scoresheet total sentence points under Section 921.0024 are 60 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.
14. The defendant was making a good faith effort to obtain or provide medical assistance for an individual experiencing a drug-related overdose.

Recent Case Involving Downward Departure

In May 2021, Corey Pujols, a manager at a Dunkin’ in Tampa, fatally punched a customer after the customer called him a racial slur. He pled guilty to a charge of felony battery – a level 6 offense that has a mandatory minimum sentence of 19-36 months. However, the judge employed a downward departure given the mitigating circumstances, including that the victim called Pujols a racial slur, Pujols had no criminal record, and did not intend to kill the victim. To read more about the jarring story, visit our blog page here.

Tallahassee Criminal Defense Attorney

Felony charges are life-altering offenses that can impact your future for years to come. Downward departure sentences are not automatic, which is why it is imperative you contact a knowledgeable Tallahassee criminal defense attorney to consult with and advise you on your options. Don Pumphrey and the members of the legal team at Pumphrey Law Firm will build a case that affords you the greatest opportunity to avoid prison time through a downward departure – or better, potentially avoid a conviction altogether. Contact us today at (850) 681 – 7777 or send an online message today to discuss your legal matter during an open and free consultation with an attorney in our team.

Written by Sarah Kamide

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