If you have read our previous posts involving sentencing guideline departures, you likely have a basic understanding as to how the guidelines work. That being said, I will spare you the pang of a detailed re-iteration and be as brief and concise as I can.
Every felony offense in Florida is assigned both a degree and an offense level. The degree of felony dictates the maximum penalty that can be imposed (or the top end of the guideline range). Third degree felonies are punishable by up to five years in state prison, second degree felonies are punishable by up to fifteen years in state prison, and first degree felonies are punishable by up to thirty years in state prison, unless they are designated "PBL", in which case they are punishable by life.
Every offense level corresponds to a set number of points. The most serious offense before the court for sentencing is scored as the primary offense and carries the highest number of points. Other pending matters before the court for sentencing are scored as additional offenses and carry a lower number of points than the primary. The guidelines also take into account the accused person's record of prior convictions, assigning a certain number of points to those as well. If the total points exceed 44, the court must sentence the accused person to state prison. The lowest permissible sentence, in months, where the total points exceed 44, is determined by performing a minor mathematical calculation. The resulting sentence will not be less than twelve months.
Florida law recognizes fourteen bases upon which the court can "depart" from the low end of the sentencing guideline range (where the accused person scores mandatory prison). These bases are codified in Florida Statutes section 921.0026. A departure sentence can involve an incarcerative component that is less than what would be imposed in the absence of a valid departure basis, but it usually involves the imposition of a probationary sentence in lieu of prison (or jail) time. Under subsection (k) of 921.0026, the court may lawfully depart if it finds that "at the time of the offense, the defendant was too young to appreciate the consequences of the offense".
This is not the same thing as a youthful offender departure, which is authorized under section 921.0026(l). Although these two departure bases sound similar, they are quite different. In the youthful offender scenario, the court can depart if (1) the offense is not a capital or life felony; (2) the accused person is under twenty one years old at the time of sentencing; and (3) the accused person has never availed himself or herself of a youthful offender departure before. For additional reading, see our prior blog post entitled "Florida Sentencing Guideline Departures: Youthful Offenders". The criteria for imposing a youthful offender departure is relatively straightforward; there is not a lot of gray area there. In my experience over the past twenty years, as both a Pinellas County state prosecutor and a St. Petersburg area criminal defense attorney, youthful offender departures are granted more frequently than just about any other, and they are rarely appealed by the State.
The "too young to appreciate the consequences of the offense" basis presents more of a challenge than the youthful offender departure. First, the case law interpreting and applying this particular basis does not provide a hard and fast rule as what is meant by "too young". Twenty one may be too young in some situations, but may not be in others. Also, youthful age does not, in and of itself, justify a departure on this basis. There must also be competent, substantial record evidence presented at the time of sentencing to show that the accused is "emotionally immature" or lacks "ordinary intelligence". The defendant's youth is but one of two prongs and it is the second that always seems to present the greatest challenge.
For example, in State v. Tirone Jerry, a case out of the First District Court of Appeal, the defendant pled guilty to a six count information charging him with two counts of selling cocaine, two counts of possessing cocaine, and possession of drug paraphernalia. See 19 So.3d 1167 (Fla. 1st DCA 2009). The defendant was twenty three years old at the time the crimes were committed. His low end guideline score was 33.15 months in state prison and the high end of the range was 40 years. The court departed from the low end of the guideline range and imposed a sentence of ten years probation (with four years DOC suspended). The court explained, at the sentencing hearing, that it was departing based on the defendant's "relatively young age", his "unsophistication", and that he was "too young to appreciate fully the consequences of his actions" due to a "below normal level of intellect and maturity" and "low emotional maturity". In reversing the departure sentence, the appellate court noted that the defendant was twenty three years old, and the instant offenses constituted a third violation of his probation for other drug related crimes. The implication is that twenty three years of age is not too young to appreciate the consequences of the crime, especially where it is not the defendant's first drug related offense. The appellate court then went on to state that "there was no evidence presented tending to show that the defendant suffered from a diminished mental capacity or other mental deficit which prevented him from maturing enough, by age twenty three, to appreciate the consequences of his offenses". It appears that the trial court's findings in that regard (the court that imposed the departure sentence) were merely conclusory and not based on competent, substantial record evidence.
In State v. James Brown, a case out of the Fifth District Court of Appeal, the trial court sentenced the defendant to fifty-one weeks in the county jail for a probation violation despite a low end guideline score of 15.15 months. See 187 So.3d 377 (Fla. 5 th DCA). The trial court, in imposing the departure sentence, found that the defendant was too young to appreciate the consequences of his original offenses (burglary and petit theft), and the alleged probation violations (the most recent of which was based on a new arrest for DUI). The defendant was twenty one years old at the time the underlying offenses were committed and twenty three years old at the time the departure sentence was imposed. In reversing the departure sentence, the appellate court noted that although the defendant had only completed the tenth grade, there was no evidence presented at the sentencing hearing to establish that the defendant suffered from "diminished mental capacity or other mental deficit which prevented him maturing enough, by age twenty three, to appreciate the consequences of his offense", citing the holding in State v. Jerry (above).
Although the sentences were reversed in both of these cases, the opinions give us some important insight into what will and what will not work if a departure sentence under 921.0026(k) is to be upheld on appeal. At sentencing, the defendant has the burden of proving the facts supporting a ground for a guideline departure by a "preponderance of the evidence". This is a much lower burden than "beyond a reasonable doubt" but it is a burden nonetheless, and it must be met. The defense attorney cannot rely on the court to make findings in the absence of competent substantial evidence. Representations of counsel are not, in and of themselves, sufficient to meet the defendant's burden and without more, any departure sentence imposed on that basis will not withstand appellate scrutiny. In the two cases I cited above, the sentence was overturned because the record lacked any real evidence that the respective defendants were without the requisite mental capacity, or emotional maturity, to appreciate the consequences of their crimes.
In preparing for a departure hearing on this basis, I would begin by interviewing family members (parents or guardians) about my client's history and characteristics that tend to support a a lack of emotional maturity, or diminished mental capacity, for his or her age. Has a professional in the appropriate field reached that conclusion following an examination? If so, when? On what basis was that conclusion reached? Has more than one professional reached that same conclusion? Were written reports prepared? Are these people available to discuss their findings and testify if necessary?
If there have not been previous findings that would tend to support a 921.0026(k) departure, I would then reach out to one of the Tampa Bay area psychologists I frequently consult with, for that purpose. If, after discussing my client's purported emotional or mental disadvantages relative to his or her young age, and the nature and circumstances of the offense, it appeared that the psychologist (or other professional) could help, I would have the client undergo a formal evaluation. I think the nature and circumstances of the offense would certainly be an important consideration in evaluating the viability of a sentencing guideline departure under 921.0026(k). If the crime required specialized knowledge, skills, or was particularly sophisticated, it may be difficult to convince the sentencing judge that the client possessed a below normal level of intellect. In that scenario, it would be prudent for the criminal defense attorney to explore some alternative bases for a guideline departure.
If the findings of the evaluator were in fact helpful, I would then ask that person appear at the sentencing hearing to present those findings to the court. Testimony from a qualified professional who has already established a degree of credibility with the court, and preferably the State too, can go a long way in meeting the defense's burden of proof at the departure hearing and in persuading the sentencing judge that the departure is the best sentencing option for the accused.
Testimony from family members themselves can also be helpful in persuading the trial court that a 921.0026(k) departure is justified, and in upholding a departure sentence should it be appealed. Few will know the accused as well as the people who raised her. If there are emotional and/or mental health issues that suggest a diminished capacity to appreciate the consequences of the offense, those closest to the accused will be well aware and their input is something I would want the court to hear.
In State v. Justin Gilson, the Fifth District Court of Appeal upheld a departure sentence based on the defendant being too young to appreciate the consequences of the offense. See 800 727 (Fla. 5th DCA 2001). There, the eighteen year old defendant was charged with grand theft auto, driving on a suspended license, fleeing to elude, two counts of possession of marijuana, two counts of burglary with different victims, and two counts of grand theft firearm involving the same victim. The low end of the guidelines was 50.7 months in prison, which the court suspended, conditioned on successful completion of two years community control followed by three years probation (the defendant was sentenced to time served on the misdemeanors). When the court suspends a guideline sentence conditioned on the defendant's successful completion of probation, it is considered a departure.
At the sentencing hearing, the defendant's mother testified about his issues with drugs and alcohol, that he had been taking Ritalin for attention deficit hyperactivity disorder, but that he had been incorrectly diagnosed and medicated. In upholding the ensuing departure sentence, the appellate court first reiterated that the defendant's age, 18, was not sufficient in and of itself to justify the departure. However, the evidence presented regarding the defendant's attention deficit problems and mis-diagnosis, resulting in him being improperly prescribed Ritalin (which is known to aggravate symptoms of anxiety and agitation), supported the trial court's conclusion that the defendant was an emotionally immature 18 year old. Emotional immaturity, coupled with chronological young age, the appellate court held, is a sufficient basis to allow a sentencing judge to depart downwards. As indicated above, the departure sentence in this case was upheld, although the appellate court did state in its written opinion that it was a "close call".
Assessing the propriety of a guideline departure requires the court to engage in a two step analysis. First, the court must consider whether it can lawfully depart from the low end of the sentencing guidelines. The court can lawfully depart if there is a valid legal ground (e.g. one or more of the bases set forth in section 921.0026) and adequate factual support for that ground in the case pending before it. Factual support would come in the form of written reports and/or in-court testimony from relevant witnesses. Once again, representations of counsel, in and of themselves, are not sufficient. Step one is a mixed question of law and fact and will be sustained on review if the trial court applied the right rule of law, and if competent substantial evidence supports its ruling.
If the court determines that it can depart, it must then consider whether it should. This is largely a discretionary call by the court. Here, the court is seeking to determine whether a departure is the best sentencing option for the defendant. With regard to this second step, an appeals court will not disturb the trial court's findings unless "no reasonable person would agree with its decision". As I have said in previous posts, this step is one that cannot be ignored and that I usually spend a great deal of time preparing for. If the accused has no prior criminal record, or a minimal one, is enrolled in college or has graduated, is gainfully employed, etc., these are all things the court needs to know in assessing the "whole person" and, ultimately, whether it should depart.
Securing a guideline departure is not easy. It requires a great deal of preparation and study. I was reminded of that fact earlier this year in a restitution based departure proceeding that required five separate hearings over several months. The facts were very complicated and the issues to be resolved were no easier. In the end, the court departed from the guidelines and my client avoided a six and half year prison sentence. As difficult and challenging as they can be, when the client is spared years behind bars as a result, the effort is always worth it. And then some.