The Role of Mitigating Factors in Criminal Sentencing

In general usage, “mitigating” simply means decreasing the negative aspects of something. For instance, if presented with bland food, a person might mitigate or improve the bland taste by adding sauce or seasoning. Now in the criminal context, the term mitigation has a similar meaning. In general, mitigation refers to anything that is positive about a criminal defendant or anything that might put a criminal defendant in a more sympathetic light.

General Mitigation in a Criminal Proceeding

Now as mentioned above in a criminal prosecution Florida mitigation refers to anything that is positive about a criminal defendant or anything that might put a criminal defendant in a more sympathetic light. Some examples of mitigation could include any of the following:

• Documentation of Educational Achievements
• Documentation of Employment
• Awards or Accolades
• Documentation of Involvement in the Community
• Letters of Support
• Documentation of a Medical Condition

Now there are a number of ways that an attorney may be able to utilize mitigation to better serve their client. One potential way in which mitigation may be useful is that it may provide a criminal defense attorney with better ammunition when it comes to negotiating with the prosecution. In other cases such mitigation might be persuasive to a Judge if the Court has been asked to decide a fair and appropriate sanction. Given the importance of mitigation, a criminal defendant can often greatly assist their attorney by helping to accumulate such materials for their attorney’s use.

However, while such general mitigation is oftentimes very critical, there is also another type of mitigation that also exists in Florida for felony cases and this is known as Statutory Mitigation. Now statutory mitigation refers to a specific type of mitigation laid out in Florida Statute 921.0026 that, if present, may allow the judge presiding over a felony case to impose a more lenient sentence than the Judge might normally be authorized to impose. The imposition of such a lenient sentence based upon criteria found in Florida Statute 921.0026 is known as a “downward departure”. It is called a downward departure as it refers to a sentence that is below the minimum sentence required under Florida’s sentencing guidelines.

Experienced Jacksonville criminal lawyers are familiar with the types of mitigating factors local judges consider important, and how best to demonstrate those factors to the court. If you’re currently facing criminal charges, seek the guidance of defense attorney Matthew Lufrano today by calling 904-513-3905 or filling out our online form.

Sentencing Guidelines in Florida and Statutory Mitigation

Now as referenced above when it comes to the punishment of felony offenses Florida is one of several states that has joined the federal government in implementing “structured sentencing.” The Florida Punishment Code, enacted in 1998, applies to all felony sentencing in the state except for a handful of the most serious crimes. While sentencing guidelines are often billed as a means of ensuring consistency in sentencing, the actual impact is a bit different. In many cases, the Florida system sets a minimum permissible sentence that a Judge can impose while also leaving the court free to impose any sentence up to the maximum. In short, the judge is often prevented from exercising discretion at the low end of the statutory sentencing range, but not at the high end.

A scoresheet must be prepared prior to sentencing in any case governed by the Code. This scoresheet considers and requires the assignment of points or factors such as:

• The primary offense
• Additional offenses
• Prior offenses
• Injury to the victim
• Legal status violations or violations of parole/probation
• Use of weapons in the crime

The scoresheet also includes both enhancements and mitigating factors. But, these two types of factors are treated differently.

After the first section of the scoresheet is completed, sentence points are subtotaled. But, before calculating the minimum permissible term of imprisonment based on the score, sentencing enhancements are scored and those points are added to the subtotal. The total after enhancements is used to determine the sentencing range.

In other words, the minimum sentence the judge is allowed to impose is set prior to considering mitigating factors.

Low Scoring Felonies

When the charge is a felony of the third degree and the scoresheet yields a total of 22 points or less, the court must generally impose a “non-state” sentence. That simply means that the defendant will not be sentenced to state prison. The possibilities range from a short term of probation to any amount of jail time short of one year. The court can impose a state sentence–a sentence of one year or more in prison–only if a jury is empanelled and makes findings that a non-state sentence would present a danger to the public.

If the score is between 22 and 44 points, the court retains the discretion to enter a non-state sentence, but may also impose any sentence up to the statutory maximum for the offense or combination of offenses.

When the score is above 44 points a person “scores for prison”, meaning that the lowest permissible sentence under the Florida Criminal Punishment Code will be a prison sentence. Now in order to calculate what that lowest permissible sentence is, a formula is applied. The result of this formula is often referred to as a guidelines score. But it is important to remember the guidelines score is not the recommended sentence nor is it the maximum sentence. Instead, a guidelines score is the lowest permissible sentence the Judge can impose. Here’s an example of how it works with a point total of 60:

• The first step is to subtract 28 from the total points–here, this leaves a total of 32
• The second step is to multiply the remaining value by 0.75.
• Thus in this example, the lowest permissible sentence for this defendant, absent mitigating factors, would be 24 months in prison.

How Mitigating Factors Impact Florida Sentencing

When a person has entered a guilty plea to or has been convicted of a felony covered by the Florida Punishment Code, the court’s authority is generally limited by the scoresheet. The judge can’t decide on their own that the punishment which the code calculated yielded is too harsh. The only justification to give a sentence below the guidelines, also known as a “downward departure”, requires the presence of a factor found in Florida Statute 921.0026.

Some of these Statutory Mitigating Factors found in Florida Statute 921.0026 include the following:

• The departure in sentencing is the result of a legitimate, uncoerced plea agreement
• The defendant was an accomplice who played a relatively minor role in the crime
• The defendant’s ability to appreciate the criminal nature of the act or to conform their conduct to the requirements of the law was substantially impaired
• The defendant requires specialized treatment for a mental disorder or physical disability and agrees to treatment
• The need for restitution to the victim outweighs the need for a prison sentence
• The victim initiated, willingly participated in, or provoked the incident
• The defendant acted under duress
• The defendant cooperated with the state to resolve the case or another criminal case
• The victim was substantially compensated before the state learned the identity of the defendant
• The offense was unsophisticated and was an isolated incident for which the defendant has shown remorse
• The defendant was too young to fully appreciate the consequences of their actions
• The defendant is to be sentenced as a youthful offender
• The defendant qualifies for and is amenable to a drug-court program, the offense is a non-violent felony, and the scoresheet total is 60 points or fewer
• The defendant was making a good-faith effort to obtain or provide medical assistance for someone experiencing a drug overdose

Fortunately, this list is not exclusive. The judge can rely on other mitigating factors the court may identify.

Talk to an Experienced Criminal Defense Attorney

If you’re facing criminal charges, a local Jacksonville criminal law attorney is your best source of information and guidance. Ultimately, working with an experienced criminal defense attorney can give you the best chance of achieving a favorable outcome in your case and moving on with your life. Your attorney can put mitigating factors to work for you long before you’ve been convicted and face sentencing, to help negotiate a favorable plea agreement. And, if you’ve been convicted at trial, your attorney can introduce evidence of mitigating factors at trial.

To learn more about how Jacksonville defense attorney Matthew Lufrano can help, call 904-513-3905 right now. The initial consultation is always free.