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

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

Further Mitigation of a Youthful Offender Sentence Through Completion of a Basic Training “Boot Camp” Program

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

A way of further mitigation of a Youthful Offender (YO) sentence is through successful completion of a basic training, or “boot camp,” program run by the Department of Corrections (DOC), or a county of the state, authorized under section 958.04(4).¹

DOC is required to develop and implement a basic training program for youthful offenders sentenced or classified by the department as youthful offenders pursuant to chapter 958.  The period of time to be served at the basic training program must be no less than 120 days.²  The program is required to include marching drills, calisthenics, a rigid dress code, manual labor assignments, physical training with obstacle courses, training in decisionmaking and personal development, high school equivalency diploma and adult basic education courses, and drug counseling and other rehabilitation programs.³

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

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

Comment: Florida's Prison Diversion Statute, Section 921.00241

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

Notwithstanding section 921.0024, Fla. Stat., and effective for offenses committed after July 1, 2009, a court may divert from the state correctional system a defendant who would otherwise be sentenced to a state facility by sentencing the defendant to a nonstate prison sanction as provided in section 921.00241(2).¹ A defendant may be sentenced to a nonstate prison sanction if the offender meets all of the following criteria:

The Criminal Punishment Code Scoresheet Explained

Prosecutors, defense attorneys, and judges in Florida's circuit courts rely heavily on scoresheets in the vast majority of their sentencing hearings.  Scoresheets are required by law in most felony sentencings.  A properly filled out, accurate and complete sentencing scoresheet helps to ensure just sentencing and is an important safeguard against sentencing error in circuit court.

Copyright 2013 Thomson Reuters and William H. Burgess, III. Further reproduction is prohibited.

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

  The State of Florida has, for the past 30 years and through a succession of sentencing schemes involving the vast majority of criminal sentencings in circuit court, used printed scoresheets to collect and report sentencing data, to quantify sentencing factors, and to document sentences imposed. Since October 1, 1998, the State has used the Rule 3.992(a) Criminal Punishment Code Scoresheet and the Rule 3.992(b) Criminal Punishment Code Supplemental Scoresheet, illustrated below.  This post presents a comprehensive explanation of the proper completion and utilization of the Criminal Punishment Code sentencing scoresheet.