Sentence Mitigation: Any Degree of Restitution

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

Alongside section 921.0026(2)(e), Fla. Stat., is another, older and more general, restitution departure statute. Section 921.185, which has been the law since 1974,¹ 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.²

While section 921.0026(2)(e) focuses on the need for restitution in all cases sentenced under the Criminal Punishment Code, section 921.185 is focused on the actual payment of restitution in essentially all felony or misdemeanor property crimes where there is no injury or opportunity to injure anyone. Each statute thus serves a different purpose and may be applied simultaneously where circumstances justify the application of both,

Section 921.185 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.”³ The Florida Supreme Court has, however, found the statute to be unconstitutional as applied where the trial court at sentencing provided for a reduction of a defendant’s prison sentence upon the payment of restitution.⁴

NOTES

¹See Chapter 74-125, Laws of Florida. Section 921.0026, Fla. Stat., was created by Chapter 97-194, Laws of Florida, enacted on May 29, 1997.

²§ 921.185, Fla. Stat.

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

⁴Noel v. State, 191 So. 3d 370 (Fla. 2016); see also DeLuise v. State, 72 So. 3d 248 Fla. 4th DCA 2011); Smith v. State, 933 So. 2d 723 (Fla. 2d DCA 2006) (plea agreement pursuant to which reduced sentence was conditioned upon payment of restitution by a third person); People v. Collins, 239 Mich. App. 125, 607 N.W. 2d 760 (Ct. App. Mich. 1999).