Sentencing Is Its Own Battle
A criminal case does not end at the verdict or the plea. Sentencing is a separate fight with its own rules, and it is where a great deal of the real outcome is decided. The judge works inside a structure, and that structure has both a floor the judge usually cannot go below and room to move for the right reasons. How that structure gets worked, the scoresheet, the mandatory minimums, the case for going lower, often matters as much as anything that came before it.
The Criminal Punishment Code and the Scoresheet
For a felony, the Criminal Punishment Code drives the sentence. A scoresheet under section 921.0024 adds up points for the primary offense, any additional offenses, victim injury, your prior record, and other factors, and a formula turns the total into the lowest permissible sentence, the floor the judge generally cannot go beneath. The math matters, because a miscounted prior or the wrong injury points can inflate that floor. And when the lowest permissible sentence is higher than the statutory maximum for the offense, the lowest permissible sentence becomes the maximum the judge can impose. See Millien v. State, 336 So. 3d 354 (Fla. 4th DCA 2022). Checking the scoresheet line by line is the first thing a careful defense does.
Mandatory Minimums Override Mitigation
Some offenses carry a mandatory minimum that the judge cannot go below, no matter how strong the mitigation. A DUI manslaughter carries a four-year mandatory minimum under section 316.193(3), and drug-trafficking and certain firearm offenses carry their own. A sentence below a mandatory minimum is an illegal sentence. That makes two questions central early on: which minimums are in play, and whether they truly apply to the facts and the charge as written, because the answer changes the whole shape of the case.
| Lever | What it does | Where the defense works |
|---|---|---|
| The scoresheet | Sets the lowest permissible sentence under 921.0024 | Catch miscounted priors, wrong injury points, and scoring errors |
| Mandatory minimums | A hard floor the judge cannot go below | Test whether the minimum truly applies to the charge and facts |
| Downward departure | Lets the judge go below the floor for cause | Build and prove a mitigating basis under 921.0026 |
Downward Departure: Going Below the Floor
Outside a mandatory minimum, the judge can sentence below the lowest permissible sentence only when there are circumstances that reasonably justify a downward departure, under section 921.0026. The statute lists fourteen mitigating circumstances, but that list is not exclusive, and a judge may depart for a reason that is not on it as long as the reason is supported by competent, substantial evidence. See State v. Kahl, 333 So. 3d 809 (Fla. 1st DCA 2022). The analysis runs in two steps, whether the court can depart, meaning a valid mitigating ground is proven, and then whether it should, and the defendant carries the burden of proving the ground by the greater weight of the evidence. See Childers v. State, 171 So. 3d 170 (Fla. 1st DCA 2015). Common grounds include that the offense was an isolated incident committed in an unsophisticated way with genuine remorse, that you need and are amenable to specialized treatment for a mental disorder or an addiction, that you were a minor participant, or that you have made restitution. A departure does not happen on its own. It has to be built and proven, and that is the defense’s work.
The Sentencing Hearing and Mitigation
Sentencing is a hearing, not a formality. The defense puts on mitigation: the person behind the charge, the treatment started, the work history, the family who depend on you, restitution made, and letters from people who know you, along with an allocution, your own chance to speak to the judge. The goal is to assemble a record that gives the judge both a human reason and a lawful basis to go lower. The difference between a prepared mitigation case and a few sentences at the podium is often measured in years.
Restitution
Most sentences include restitution, the order to repay the victim for what the offense cost them, under section 775.089. The amount has to be proven with real evidence and tied to the victim’s actual loss, so that the victim is made whole without a windfall and you do not pay for more harm than you caused. See Tolbert v. State, 268 So. 3d 947 (Fla. 1st DCA 2019). Your ability to pay matters as well, and an unpaid balance cannot be turned into a probation violation later without a finding that you had the means and willfully refused, which I cover on the violation of probation page. Testing the figure and the proof behind it is part of the sentencing work.
Preserving Sentencing Issues
A sentencing error has to be raised the right way, either when it happens or through a motion to correct a sentencing error under Florida Rule of Criminal Procedure 3.800(b), or it can be lost. I make the record at sentencing so that any error is preserved, which matters whether or not a case ever goes up on appeal. There is more on that, and on how appeals turn on the trial record, on the appeals and preserving your rights page.
How I Approach Sentencing
I treat sentencing as its own case. I check the scoresheet for errors that raise the floor, I test whether a claimed mandatory minimum truly applies, I build a downward departure where the facts support one, and I put on real mitigation rather than a few words at the end. If your case is a DUI, the specific penalties by offense level are laid out on the DUI penalties pages, and if you are facing a violation of probation, the sentencing exposure works through the same scoresheet, which I cover on the violation of probation page.
Related: DUI penalties overview, Violation of probation, Preserving your rights for appeal, and Criminal defense overview.
I started out as an Assistant Public Defender in Florida’s Thirteenth Judicial Circuit, in Tampa. I treat sentencing as its own case: I check the scoresheet for errors, test whether a mandatory minimum truly applies, build a departure where the facts support one, and put on real mitigation. Learn more about my background.
Dig Deeper
Each part of a felony sentence has its own page with more detail: the scoresheet, downward departure, and minimum mandatory sentences.
Common Questions
What is a sentencing scoresheet?
For a felony, Florida uses a Criminal Punishment Code scoresheet under section 921.0024 that adds up points for the offense, victim injury, your prior record, and other factors. A formula turns the total into the lowest permissible sentence, the floor the judge generally cannot go below, which is why catching scoring errors matters.
Can a judge go below a mandatory minimum?
No. A mandatory minimum is a hard floor, and a sentence below it is an illegal sentence, no matter how strong the mitigation. That is why an early question in any case is whether a claimed mandatory minimum truly applies to the charge and the facts.
Can a judge sentence below the guidelines?
Sometimes, through a downward departure under section 921.0026, but only when there are circumstances that reasonably justify it. The statute lists fourteen mitigating grounds, the list is not exclusive, and a departure has to be supported by competent, substantial evidence that the defense builds and proves.
What happens at a sentencing hearing?
The defense presents mitigation, the person behind the charge, treatment, work and family, restitution, and letters, along with an allocution where you speak to the judge directly. The aim is a record that gives the judge a reason and a lawful basis to impose a lower sentence.
Does the scoresheet apply to a misdemeanor or a DUI?
The Criminal Punishment Code scoresheet applies to felonies. Misdemeanor and standard DUI sentencing is set by statute instead, with its own fines, jail caps, probation, and license consequences, which are laid out on the DUI penalties pages.
What is allocution?
Allocution is your right to speak directly to the judge before the sentence is imposed. It is a chance to show remorse, context, and the person you are beyond the charge, and a prepared allocution can matter.
This page is general information about Florida law, not legal advice, and it does not create an attorney-client relationship. A sentence turns on the offense, the scoresheet, any mandatory minimums, and the judge, and the law can change, so confirm how it applies with counsel. Every case is different, and past results do not guarantee a similar outcome.
