Upward Departure Under the Criminal Punishment Code for Third Degree Felonies That Are Not Forcible Felonies

Hon. William H. Burgess, III

The general presumption under Florida’s Criminal Punishment Code (CPC) is that only those offenders scoring 44 or less points on the sentencing scoresheet may receive a non-state prison sanction, absent the sentencing court imposing a downward departure.  A further presumption is that, under the CPC, the sentencing judge can impose as a lawful sentence any amount of incarceration up to the statutory maximum for any offense before the court for sentencing under the CPC.  The CPC has, in almost every aspect, eliminated the “upward departure” of the former determinate guidelines sentencing schemes and replaced it with an indeterminate sentencing scheme in which the judge is free to sentence up to the statutory maximum without having to provide written reasons for doing so.

A statutory exception to indeterminate sentencing under the CPC is found in section 775.082(10), Fla. Stat.  Under that section, if a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third-degree felony but not a forcible felony as defined in section 776.08, and excluding any third-degree felony violation under chapter 810, and if the total sentence points pursuant to section 921.0024 are 22 points or fewer, the court must sentence the defendant to a nonstate prison sanction.  However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to section 775.082.¹

 The “danger” may, at least in some cases, encompass pecuniary or economic harm.²

It is the general rule under the CPC that when the reasons provided by the trial court for a downward departure are found invalid on appeal, the resentencing following remand is de novo.  The Florida Supreme Court has, however, applied to section 775.082(10) upward departures the rule that when the judge provides no written reasons for an upward departure, or the reasons provided in support of a departure are found invalid on appeal, resentencing following remand must be to a nonstate prison sanction.  The rationale of the Florida Supreme Court in enunciating this rule is that the better policy is to require the trial court to enunciate all of the reasons for the departure in the original order and to prevent after-the-fact justifications for a previously imposed departure sentence.³

FOOTNOTES

¹§ 775.082(10), Fla. Stat.

²Porter v. State, 110 So. 3d 962 (Fla. 4th DCA 2013), case dismissed, 137 So. 3d 1021 (Fla. 2014); Travis v. State, 724 So. 2d 119, 120–21 (Fla. 1st DCA 1998) (Nonstate prison sentence would pose a danger to the community and a five-year prison sentence was justified under Sec. 775.082(10), Fla. Stat., where defendant convicted of grand theft by check scored 14.7 points on his Criminal Punishment Code scoresheet and had a prior criminal history comprising convictions for five felony worthless check charges, four misdemeanor worthless check charges, and one grand theft charge.); McCloud v. State, 55 So. 3d 643 (Fla. 5th DCA 2011), citing U.S. v. Reynolds, 956 F.2d 192, 192–93 (9th Cir. 1992); see U.S. v. Provenzano, 605 F.2d 85, 95 (3d Cir. 1979) (explaining that danger is not limited to physical harm; concept includes opportunity to exercise substantial and corrupting influence within labor union); U.S. v. Parr, 399 F. Supp. 883, 888 (W.D. Tex. 1975) (“The ‘danger to … the community’ provision [in the Bail Reform Act] permits consideration of the defendant’s propensity to commit crime generally, even where only pecuniary and not physical, harm might result to the community at large.”); see also U.S. v. Moss, 522 F. Supp. 1033, 1035 (E.D. Pa. 1981), aff’d, 688 F.2d 826 (3d Cir. 1982) (“It is generally agreed, of course, that a [c]ourt may refuse bail on the ground that a defendant poses a threat to the community even though the threat is pecuniary rather than physical.”); U.S. v. Miranda, 442 F. Supp. 786, 792 (S.D. Fla. 1977) (“First, it is beyond dispute that the criterion of ‘danger to the community,’ which is an explicit component of the Bail Reform Act, is not limited to the potential for doing physical harm.”).

³Bryant v. State, 148 So. 2d 1251 (Fla. 2014).