What is a Downward Departure?

Are You Eligible For a Downward Departure?

Every crime has sentencing guidelines that dictate what kind of punishment to expect after a conviction. In Florida, judges use the Florida Criminal Punishment Code (CPC) to determine the appropriate sentence for a convicted offender. However, if you have been charged with a felony and meet specific guidelines, it is possible to file a motion for a downward departure to reduce your sentence. If the court approves the downward departure motion, your sentence could be lowered to less than the minimum sentence for your charge.

Facing a felony charge can be nerve-wracking because years of your future are at stake. If you qualify, a downward departure could help you regain some of your life. Your Fort Lauderdale criminal defense lawyer will let you know if there’s a chance for a downward departure in your case before working toward this outcome.

What is a Score Sheet and How Does It Affect Your Sentencing?

To determine whether a person convicted of a felony will face prison time, the prosecutor will fill out a score sheet as instructed by Florida’s state guidelines, using the details of the defendant’s charges and prior record. This score sheet will be provided to your defense attorney to review and discuss with you. Your attorney may challenge the scoring if they disagree with the prosecution’s methodology.

Every felony offense has a score assigned to it. As the severity of the felony increases, so does the score. Additional felonies and certain details of the crime, such as firearm use or a previous conviction, have their own scores that will be added to the total. Some circumstances relating to the crime can even result in the total being multiplied by 1.5 to 2.5. Examples of multipliers can include:

• Gang-related activity
• Drug trafficking
• Acts of domestic violence in front of children under 16
• Grand theft of a motor vehicle

If the score is below a certain threshold and the charge was a third-degree felony, the defendant will likely not face prison time unless they are considered a threat to the community. Overall, a low score may result in probation, house arrest, fines, or time in the county jail instead of a prison sentence. For higher scores, the judge will use the score in a formula to determine the minimum number of months the defendant must serve in prison. This will be the minimum prison sentence length unless the judge chooses to impose a downward departure on the sentence.

How Can You Qualify for a Downward Departure?

Only some people are eligible for a downward departure. In Florida, you might get this outcome when certain mitigating factors apply that make the crime less severe. Some examples of mitigating factors include:

• You played a minor role in the offense as an accomplice
• You were under intense pressure or coercion to commit the crime
• You have a legitimate plea bargain
• You did not have the ability to understand that your actions were criminal
• This was an isolated crime for which you have shown remorse
• You’re being sentenced as a youthful offender
• You committed a non-violent offense
• You have a mental disorder that requires treatment, and you agree to receive treatment
• The victim has a need for restitution that outweighs their need for you to serve a prison sentence
• You were trying to provide or get medical assistance for a person suffering from a drug overdose
• The victim provoked you into committing the crime or was a willing participant
• You committed a non-violent felony, scored low on the felony score sheet, and agreed to attend a drug treatment program.

Keep in mind that downward departure is not an option for capital felonies or crimes with a minimum mandatory sentence. If these don’t apply to your situation, your attorney will review your case and let you know if a downward departure is an option.

How Can You File a Motion for a Downward Departure?

If your lawyer sees at least one mitigating factor in your case, the next step is to file a written motion for a downward departure. Your lawyer will need to provide the judge with a written statement that explains why you deserve a lesser sentence for the crime. The motion should cite case law and highlight what evidence makes you qualified for less severe penalties.

The judge will review the motion for a downward departure before the sentencing hearing. You might have to provide testimony or have one or more experts testify on your behalf at the hearing. It is ultimately up to the judge’s discretion to approve the downward departure. If the judge imposes a downward departure, they are required by law to either produce a written statement or an oral statement with a written transcript explaining why they believe the reduction in sentencing is appropriate.

What Happens If the Request Is Approved?

If the judge approves the request for a downward departure, your punishment will be less than the lowest possible sentence. For instance, if the sentencing guidelines document for the crime you committed usually recommends a sentence of five to ten years in prison, you will get less than five years if your downward departure is approved.

Depending on your circumstances, you could potentially eliminate prison time altogether. With a downward departure, you may be sentenced to probation, community control or other penalties instead. If you’re interested in learning if this is a viable option for your case, call our Fort Lauderdale law firm at 954-523-3811 to speak with an experienced criminal defense lawyer.