One of the most practiced ways to mitigate a defendant’s sentence, where no other alternatives are available, is through a downward departure from the Criminal Punishment Code sentencing "floor." It is, in fact the practice of some defense counsel to seek a "departure hearing" before a defendant enters a plea to test the court for leniency, although some courts will not entertain such a hearing until the defendant has pled.
Pre-plea "departure hearings" comprise an unauthorized blending of plea discussion and agreement with the conduct of a sentencing hearing, and the creation of a legal fiction that an offense is not "before the court for sentencing," so as to evade requirements of the Florida Rules of Criminal Procedure and statutory law. Such hearings are a means for the defendant to get a commitment from the presiding judge as to whether and how much of a downward departure sentence he or she will impose if and when the defendant decides to plea without making any commitment in return. Typically, these hearings are used by the defendant to put on evidence in mitigation without the defendant accepting any responsibility for having committed any wrongful act, which is a contradiction the Rules of Criminal Procedure are designed to prevent. This technique also places a legally unrecognizable burden on the prosecutor and any victim or victims involved to overcome such mitigation and persuade the judge not to depart downward in the event that the defendant does decide to enter a plea. Under the former guidelines, where upward departure was a possibility, the prosecutor would often try to blunt the defense request for downward departure by putting on evidence in aggravation and requesting an upward departure during the same hearing. Additionally, the conduct of a pre-plea departure hearing tends to invert and short-circuit the trial process by substituting the defendant’s case for leniency for the prosecutor’s presentation of all relevant evidence of guilt before a jury in a trial. Such a procedure is also contrary to principles of judicial economy and entails the potential for otherwise unnecessary and avoidable recusal consequences.
Pre-plea "departure hearings" comprise an unauthorized blending of plea discussion and agreement with the conduct of a sentencing hearing, and the creation of a legal fiction that an offense is not "before the court for sentencing," so as to evade requirements of the Florida Rules of Criminal Procedure and statutory law. Such hearings are a means for the defendant to get a commitment from the presiding judge as to whether and how much of a downward departure sentence he or she will impose if and when the defendant decides to plea without making any commitment in return. Typically, these hearings are used by the defendant to put on evidence in mitigation without the defendant accepting any responsibility for having committed any wrongful act, which is a contradiction the Rules of Criminal Procedure are designed to prevent. This technique also places a legally unrecognizable burden on the prosecutor and any victim or victims involved to overcome such mitigation and persuade the judge not to depart downward in the event that the defendant does decide to enter a plea. Under the former guidelines, where upward departure was a possibility, the prosecutor would often try to blunt the defense request for downward departure by putting on evidence in aggravation and requesting an upward departure during the same hearing. Additionally, the conduct of a pre-plea departure hearing tends to invert and short-circuit the trial process by substituting the defendant’s case for leniency for the prosecutor’s presentation of all relevant evidence of guilt before a jury in a trial. Such a procedure is also contrary to principles of judicial economy and entails the potential for otherwise unnecessary and avoidable recusal consequences.