Can I Get a Downward Departure on My Case?

If you are found guilty of a crime, the law generally stipulates sentencing guidelines that the judge follows when he or she orders a sentence. A downward departure occurs when the judge departs from the applicable sentence and orders a lower sentence than is recommended for a particular crime. A downward departure can be utilized only in the sentencing of some types of crimes and only when mitigating factors are present.

What is a Downward Departure?

In Florida, the state uses a computer system to assign scores to every person who is accused of a crime. Scores are calculated using a formula that is designated in the Florida Department of Corrections Criminal Punishment Code (CPC). Each crime is assigned a level and associated numerical value. It applies to sentencing for all felonies, except for capital felonies, that were committed after October 1, 1998. A person convicted of a crime receives a score through the system. If they receive a particular score based on the offense, they reach the number necessary to get a prison sentence. Judges must follow the sentencing guidelines based on the score. However, the law allows judges to depart from the guideline sentence when there are “circumstances or factors that reasonably justify the downward departure.”

Mitigating Factors

The law allows for 14 mitigating factors that the judge may consider when determining the sentence. These are factors that can be used to justify a downward departure from the sentencing guidelines. When the prosecutor offers a plea bargain and the defendant accepts, the judge may determine whether to choose a lower sentence than is provided in the guidelines. Another reason the judge may consider a downward departure is when the defendant provided significant assistance in the prosecution of another person who committed a crime.

Some other reasons why the judge may apply a downward departure include:

  • When the defendant was an accomplice with only a minor role in the crime
  • The defendant is a youth
  • The defendant was helping to provide medical assistance to someone with a drug overdose
  • The defendant acted under extreme duress or was under the control of someone else.
  • Restitution payment is more important than a prison sentence.

How can I Request a Downward Departure?

Your attorney can file a motion with the court to ask for consideration for a downward departure. The state prosecutor may also file such a motion. The attorney must provide the grounds under which the downward departure will apply and provide supporting documentation. The judge alone has the ability to make a determination as to whether there are mitigating factors that would allow for downward departure. If so, the judge may impose a lesser sentence. The decision to allow downward departure and the sentence to impose is at the discretion of the judge. Some crimes are not eligible for downward departure. For some crimes, such as drug crimes, a downward departure is rarely allowed.

If you are facing criminal charges, you may be eligible for a downward departure. Contact our experienced legal team at Henderson Legal Group to discuss the details of your case today.

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