Downward Departure Sentencing Where the Defendant Cooperated With the State to Resolve the Current Offense or Any Other Offense

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

The sentencing court can mitigate a presumptive prison sentence for which there is no applicable minimum mandatory non-minimum mandatory where the defendant cooperated with the State to resolve the current offense or any other offense.¹ In applying this basis to depart, the court must make a finding based on competent substantial evidence that a crime, or crimes, had been resolved as a result of the defendant’s cooperation.² A resolution implies that a decision or determination has been made, such as the filing of charges or the closing of a case.³ “Cooperation with the State” was originally intended for those situations when there are multiple codefendants and one makes a deal with the State Attorney to assist in the prosecution of the other codefendants, and was not for application to persons who simply cooperated with law enforcement.⁴ Cooperation with the State has since come to mean cooperation with law enforcement, and not just cooperation with the prosecutor.⁵

A departure sentence cannot be based on cooperation where the assistance does not result in solving any crimes or the arrest of other persons.⁶ A defendant’s act of turning himself or herself in to the police does not constitute cooperation with authorities and cannot serve as the basis for a downward departure.⁷ A defendant’s action in not requiring police officers to get a search warrant to search his or her home and giving a statement to officers does not rise to the level of cooperation required in order to justify a downward departure sentence.⁸ Confessing to the crimes for which he or she is charged and allowing the police to search his or her room, where no contraband is found or crimes solved as a result and where it does not lead to the arrest of other persons, cannot serve as the basis for a downward departure.⁹ Merely pleading guilty is not sufficient cooperation for departure below the required sentence.¹⁰ Prior cooperation with the State that results in sentence mitigation cannot be used to mitigate sentencing for a new offense or a violation of probation or community control.¹¹ A defendant’s cooperation can also be devalued for departure purposes where he or she commits additional offenses that undermine his or her credibility and value as a witness, or where the information provided by the defendant simply does not lead to the arrest, prosecution, and conviction of those involved.¹² The cooperation, in any event, must be unequivocal.¹³

FOOTNOTES

¹§ 921.0026(2)(i), Fla. Stat.

²See State v. Bell, 854 So. 2d 686 (Fla. 5th DCA 2003); State v. Beck, 763 So. 2d 506 (Fla. 4th DCA 2000).

³State v. Quintanal, 791 So. 2d 23 (Fla. 3d DCA 2001) (although law enforcement judged information provided by defendant to be truthful, warrant was never issued because no corroborating evidence could be obtained and so no offense was resolved).

⁴See Clausen v. McDonough, 2006 WL 3333554 (M.D. Fla. 2006) (Not reported in F. Supp. 2d (2006)).

⁵See State v. Davis, 537 So. 2d 192 (Fla. 2d DCA 1989) (defendant gave police information resulting in the arrest of three codefendants and in solving numerous other crimes is valid reason for downward departure).

⁶State v. Ertel, 886 So. 2d 423 (Fla. 2d DCA 2004); State v. White, 894 So. 2d 293 (Fla. 2d DCA 2005) (defendant’s assistance did not lead to the arrest of other persons).

⁷State v. Laroe, 821 So. 2d 1199 (Fla. 5th DCA 2002).

⁸State v. Ertel, 886 So. 2d 423 (Fla. 2d DCA 2004).

⁹State v. White, 894 So. 2d 293 (Fla. 2d DCA 2005).

¹⁰State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985).

¹¹See State v. Bell, 854 So. 2d 686 (Fla. 5th DCA 2003).

¹²State v. Pita, 54 So. 3d 557 (Fla. 3d DCA 2011).

¹³See People v. McLemore, 2010 WL 3660211 (Mich. App. 2010) (downward departure not justified where evidence presented does not demonstrate that defendant’s cooperation with law enforcement was unequivocal).