Sunday, August 2, 2015

Downward Departure Sentencing Where the Need for Payment of Restitution to the Victim Outweighs the Need for a Prison Sentence

Hon. William H. Burgess, III, C.B.E.

Consistent with the Fourteenth Amendment of the United States Constitution, when deciding what sentence to initially impose, a sentencing judge may consider the entire background of a defendant, including employment history, financial resources, and ability to make restitution. The Constitution does not preclude a judge from actively using the sentencing process to encourage payment of restitution to victims of crimes, nor does it prevent a judge from showing mercy by reducing the severity of a previously imposed legal sentence.1

In weighing the need for restitution versus the need for imprisonment, a court must take into consideration all of the relevant factors, including the victim’s need for restitution and the defendant's ability to pay. Evidence in support of restitution includes findings such as the nature of the victim’s loss, the effectiveness of restitution, and the consequences of imprisonment.2 The amount of restitution due must be substantial and not be minor.3 The victim must have a “pressing need” to recover the restitution amount specified.4

Ordinarily, the defendant's ability to pay restitution need only be considered at the time of enforcement of the restitution order.5 However, where the purpose of sentencing a defendant to a downward departure is based on the need to reimburse the victim for his or her loss, it necessarily presupposes that restitution can be paid, and there must be competent substantial evidence of the defendant’s ability to pay, if this reason for departure is not to be defeated.6

There must also be competent, substantial evidence showing that the victim’s need for restitution outweighs the need for a prison sentence.7 The test is the victim’s need, not the victim’s desire or preference.8 The trial court needs non-hearsay evidence of the extent of loss suffered by the victim.9

In the absence of testimony or a showing of the need for restitution by the victims or evidence that the defendant would be able to provide restitution if spared a longer sentence, a downward departure based on the need for restitution is improper.10 Simply pleading guilty to the crimes committed, thereby saving the State the cost of prosecution will not support a downward departure sentence on this basis because there is a distinction between restitution and the taxation of the costs of investigation and prosecution.11 Restitution can be made a condition of post-incarceration probation, however.

Note that, alongside section 921.0026(2)(e) is another, older and more general, restitution departure statute. Section 921.185, which has been the law since 1974,12 provides that in the imposition of a sentence for any felony or misdemeanor involving property, but not injury or opportunity for injury to persons, the court, in its discretion, shall consider any degree of restitution a mitigation of the severity of an otherwise appropriate sentence.13 This statute has been used to support a downward departure from the former sentencing guidelines based on the trial court judge’s “well-justified conclusion that the defendant would be more likely to make the required restitution if he were not incarcerated for the guidelines period.”14


1Noel v. State, 127 So. 3d 769 (Fla. 4th DCA 2013).

2State v. Petringelo, 762 So. 2d 965 (Fla. 2d DCA 2000).

3State v. O’Dorle, 738 So. 2d 987 (Fla. 2d DCA 1999) (restitution amount of $112.62 will not support downward departure sentencing).

4See State v. Adkison, 56 So. 3d 880 (Fla. 1st DCA 2011).

5§ 775.089(6)(b), Fla. Stat.

6State v. Baker, 713 So. 2d 1027 (Fla. 2d DCA 1998), opinion quashed, 733 So. 2d 992 (Fla. 1999).

7State v. Kasten, 775 So. 2d 992 (Fla. 3d DCA 2000) (downward departure on ground that defendant could pay for therapy for child victim of sexual offenses if he were not incarcerated reversed because there was no record testimony as to cost of future counseling, and victim was presently receiving counseling at no cost, and there was no record supporting the need for restitution); State v. White, 755 So. 2d 830 (Fla. 5th DCA 2000); State v. Bleckinger, 746 So. 2d 553 (Fla. 5th DCA 1999).

8Demoss v. State, 843 So. 2d 309 (Fla. 1st DCA 2003); Banks v. State, 732 So. 2d 1065 (Fla. 1999) (victim's wishes not dispositive, for it is the judge, not the victim, who must weigh society’s competing needs); see also State v. Quintanal, 791 So. 2d 23 (Fla. 3d DCA 2001) (reversing downward departure sentence where victims lost approximately $200,000 and preferred restitution over incarceration, but no evidence was presented as to victims’ need for restitution).

9State v. Schillaci, 767 So. 2d 598 (Fla. 4th DCA 2000) (downward departure improper where there was no evidence that the victims had any particular need or desire for restitution nor any evidence regarding the amount of restitution).

10State v. Amodeo, 750 So. 2d 664 (Fla. 5th DCA 1999).

11State v. Bleckinger, 746 So. 2d 553 (Fla. 5th DCA 1999); State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985); see, State v. Tyrrell, 807 So. 2d 122 (Fla. 5th DCA 2002) (disapproved of by State v. Chubbuck, 141 So. 3d 1163 (Fla. 2014)); Travis v. State, 724 So. 2d 119, 120–21 (Fla. 1st DCA 1998).

12See Ch. 74-125, Laws of Florida.

13§ 921.185, Fla. Stat.

14Pinto v. State, 721 So. 2d 791 (Fla. 3d DCA 1998).

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