A scoresheet sets a floor, but the floor is not always the end of the story. Florida law lets a judge sentence below the lowest permissible sentence when there is a real reason to, through a downward departure. This page explains when a departure is allowed, the two-step test a court applies, the grounds the statute recognizes, and why a departure has to be built rather than simply requested.
Going Below the Floor
Under section 921.0026, a court may impose a sentence below the lowest permissible sentence only when there are circumstances or factors that reasonably justify a downward departure. A departure is the exception, not the default, and the judge has to state the reasons for it in writing within seven days of sentencing. One hard limit applies at the start: a departure can go below the scored floor, but it cannot go below a mandatory minimum that a statute requires.
I began my career as an Assistant Public Defender in Florida’s Thirteenth Judicial Circuit, in Tampa, where I watched sentencing decide as much of a person’s future as the verdict ever did. Checking the scoresheet line by line and building real mitigation is quiet work that changes outcomes. Learn more about my background.
The Two-Step Test
Florida courts decide a downward departure in two steps. See Banks v. State, 732 So. 2d 1065 (Fla. 1999).
| Step | What the court decides |
|---|---|
| Step one: can it depart | Whether a valid legal ground exists and the record gives it adequate factual support, a question reviewed for competent, substantial evidence |
| Step two: should it depart | Whether a departure is the best sentencing option, weighing the totality of the circumstances, both aggravating and mitigating |
The defendant carries the burden at the first step, proving the mitigating ground by the greater weight of the evidence. Clearing step one does not guarantee a lower sentence, because the judge still has to be persuaded at step two that a departure is the right call.
The Grounds the Statute Recognizes
Section 921.0026 lists fourteen mitigating circumstances, and the list is not exclusive, so a judge may depart on a ground that is not named as long as it is supported by competent, substantial evidence. The grounds that come up most include that the offense was an isolated incident committed in an unsophisticated way with genuine remorse, that you were a minor or passive participant, that the victim was an initiator or aggressor, that you have made or can make restitution, and that you need and are amenable to specialized treatment. The treatment ground has its own proof: a defendant shows a mental disorder, unrelated to substance abuse or addiction, or a physical disability that requires specialized treatment, and that the defendant is amenable to it, without having to prove the prison system cannot provide it. See State v. Chubbuck, 141 So. 3d 1163 (Fla. 2014).
A Departure Has to Be Built
A departure does not happen on its own. It is built from evidence: records and witnesses that establish the ground, an evaluation and a concrete treatment plan when the basis is a disorder or an addiction, proof of restitution, and a mitigation presentation that gives the judge a reason to choose a lower sentence and put those reasons in writing. That building is the defense’s work, and it is where sentencing cases are won.
Common Questions
Can a Florida judge sentence below the guidelines?
Yes, but only with a valid reason. Under section 921.0026 a judge may go below the lowest permissible sentence when circumstances reasonably justify a downward departure, and the reasons have to be put in writing within seven days of sentencing.
What is a downward departure?
It is a sentence below the floor the scoresheet sets. It is not automatic and it is not a right. The defense has to identify a valid legal ground, prove it, and persuade the judge that a lower sentence is the better outcome.
What are valid grounds for a departure?
Section 921.0026 lists fourteen mitigating circumstances, and the list is not exclusive. Common ones include that the offense was isolated and 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.
Can I get a departure if my case has a mandatory minimum?
Not below the mandatory minimum. A departure can take a sentence below the scored floor, but it cannot go beneath a minimum a statute requires. Where a mandatory minimum applies, the real fight is often whether it truly fits the charge and the facts.
Who has to prove a departure?
The defendant does. You carry the burden of proving the mitigating ground by the greater weight of the evidence, which is why a departure has to be built with real proof rather than just argued.
Related: Sentencing, The Scoresheet, Minimum Mandatory Sentences, and Criminal Defense.
This page is general information about Florida law, not legal advice, and it does not create an attorney-client relationship. Felony sentencing in Florida is governed by the Criminal Punishment Code, sections 921.002 through 921.0027, Florida Statutes, including the scoresheet computation in section 921.0024 and the mitigating circumstances in section 921.0026, together with Florida Rule of Criminal Procedure 3.704. Mandatory minimum penalties are set by individual statutes and vary by offense. Every case is different, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely on advertisements.
