Sentence Mitigation: Extraordinary Restitution

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

Ordinarily, the payment or promised payment of restitution is not a basis for downward departure outside of the provisions of sections 921.0026(2)(e) and 921.185, Florida Statutes. A further basis for downward departure may be extraordinary restitution, whether paid before or after a defendant enters a plea, where the defendant demonstrates acceptance of responsibility and makes exceptional efforts to fully remedy the harm caused by the offense. The sentencing laws of Florida do not prohibit downward sentencing departures in such situations and no Florida appellate court has taken up the issue. Nonetheless, such a departure is arguably permitted in appropriate circumstances by the provisions of subsections 921.002(1)(c)¹ and (3).²

By comparison, extraordinary restitution is a valid basis for downward departure under federal sentencing guidelines, although tied to acceptance of responsibility, which is not a statutory mitigator under Florida law. Nonetheless, federal law is instructive: While there is no bright-line rule for determining when particular payments of restitution are “extraordinary” enough to warrant downward departures, factors that a sentencing court can look to include the degree of voluntariness, the efforts to which the defendant went to to make restitution, the percentage of funds restored, the timing of the restitution, and whether the defendant’s motive demonstrates sincere remorse and acceptance of responsibility.³ The efforts at restitution must be of such an exceptional degree that it cannot be characterized as typical or “usual.” The most important factor, however, is the results. A federal defendant does not necessarily have to provide full, or more than full, restitution, but the federal courts typically will not find restitution of less than nearly the entire amount owed to be “extraordinary.”

NOTES

¹“The penalty imposed is commensurate with the severity of the primary offense and the circumstances surrounding the primary offense.” § 921.002(1)(c), Fla. Stat.

²A court may impose a departure below the lowest permissible sentence based upon circumstances or factors that reasonably justify the mitigation of the sentence in accordance with s. 921.0026. The level of proof necessary to establish facts supporting the mitigation of a sentence is a preponderance of the evidence. When multiple reasons exist to support the mitigation, the mitigation shall be upheld when at least one circumstance or factor justifies the mitigation regardless of the presence of other circumstances or factors found not to justify mitigation. Any sentence imposed below the lowest permissible sentence must be explained in writing by the trial court judge.” § 921.002(3), Fla. Stat.

³See, U.S. v. Kim, 364 F.3d 1235 (11th Cir. 2004); see also Catharine M. Goodwin, Federal Criminal Restitution, § 15:5 (August 2017 Update).

⁴See, e.g., U.S. v. Hairston, 96 F. 2d 102, 108 (4th Cir. 1996); U.S. v. Oligmueller, 198 F. 3d 669 8th Cir. 1999).