Florida Sentencing Guideline Departures: Youthful Offenders

Florida's sentencing guideline scheme is utilized to determine an appropriate sentencing range in felony cases and to promote uniformity throughout the state. Every offense is assigned a certain number points. If there is more than one offense before the court for sentencing, the offense which carries the highest number of points is scored as the primary offense. The guidelines take into account the points assessed for each additional offense, and for all prior offenses for which the defendant was convicted. With one narrow exception, if the total points exceed 44, the person is facing a mandatory prison sentence. Pursuant to Florida Statute section 921.0026(2)(m), if the offense is a non-violent felony, the defendant's total points are 60 or fewer, and the court determines that the defendant is amenable to a post adjudicatory treatment-based drug court program, the court may place the defendant on a period of supervision, in lieu of prison. Otherwise, 44 is the threshold number.

Florida law recognizes fourteen bases upon which the court can "depart" from the sentencing guidelines, and impose either (1) a lesser period of incarceration than the guidelines mandate; or (2) no period of incarceration (where a prison sentence must otherwise be imposed based on the person's guideline score). Unlike the federal system, the guidelines in Florida are not "discretionary" or "advisory". If a person is scoring mandatory prison, the court must sentence that person to at least minimum term of imprisonment, as mandated by the guidelines, unless a lawful departure basis exists. This post presents an overview of the "youthful offender" departure basis.

To qualify for a youthful offender departure, three threshold requirements must be satisfied. First, the offense before the court for sentencing cannot be a capital or life felony. Florida makes a distinction between a "life" felony and a "punishable by life" felony. The former is a disqualifier, whereas the latter is not. Second, the offender must be sentenced prior to his or her twenty-first birthday. Again, it does not matter whether the offense is committed, or the plea is entered, before the offender's twenty-first birthday. Sentence must be imposed prior to that time. A few years back I had a client who committed a very serious offense and was turning twenty-one within a couple weeks of retaining me. The quantum of proof against my client was overwhelming. Needless to say, getting his case calendared for a departure hearing within that time frame became my immediate priority and there were some scheduling challenges due to both the court and prosecutor's caseload. In the end, the hearing was held within a few days of his twenty-first birthday. The court elected to depart, and sentence was imposed at that time. Had my client waited just a couple of weeks longer in retaining an attorney, the outcome would have been devastating. The third and final threshold requirement is that the accused person cannot have been sentenced as a youthful offender in the past. With regard to this particular departure basis, you get one bite at the apple.

The above three requirements are but half of the analysis a court will undertake at a departure hearing. In addition to assessing whether it can lawfully depart from the applicable guideline range, the court will also decide whether it should. This is where the criminal defense attorney has his or her work cut out for him or her. Presenting mitigating circumstances sufficient to warrant a departure where the court can lawfully depart often requires a significant amount of time and effort, if it is to be effective. Many of my guideline departure hearings for youthful offenders have involved clinical assessments for drug and/or alcohol abuse, mental health issues, testimony of family members, and testimony of friends who have known my client for some time and can speak to the anomalous nature of his or her conduct. In more than a few instances, the alleged victim of the offense has been willing to address the court and ask that the accused person be given a second opportunity, in the form of supervision and appropriate counseling, in lieu of time in state prison. In instances where it may be helpful, I will also ask the court to order the Florida Department of Corrections to prepare a pre-sentence investigation report, which provides a comprehensive outline of the history and characteristics of the accused person on matters relevant to sentencing. The assigned officer will usually make a sentencing recommendation to the court at the end of the report.

If the court determines that the youthful offender meets the aforementioned criteria, and a departure is otherwise warranted, the court is limited to six years of jurisdiction or the statutory maximum for the pending offense, whichever is less. For example, dealing in stolen property is a second degree felony, punishable by up to fifteen years in prison. If the court were to sentence the accused person as a youtful offender, the court could not impose a sentence that exceeded six years (i.e. six years of probation, incarceration, or some combination of the two). Aggravated assault, on the other hand, is a third degree felony that is publishable by up to five years. If the court where to sentence the accused person as a youthful offender, the court would be limited to five years, not six, because five is the maximum period of jurisdiction the court would have, by statute, for that particular offense.

If the court decides to sentence the youthful offender to jail time (in a county facility) or a Department of Corrections probation and restitution center, the placement in such facility or center cannot exceed 364 days. The court may also impose a split sentence, which involves prison time to be followed by a period of supervision. If the court imposes a split sentence involving time in state prison, such prison sentence cannot be less that one year nor more than four years. Once again, the total sentence cannot exceed six years or the statutory maximum, whichever is less.

When a court sentences the accused person as a youthful offender, it may also avoid the imposition of otherwise applicable minimum mandatory sentences. No other departure basis authorizes a court to do this. Every other departure basis authorizes a deviation from the applicable guideline range, but sentencing guidelines and minimum mandatories are two different things. In almost every instance, only the state attorney can "come off" a minimum mandatory; the court ordinarily has no authority to do so. Youthful offender sentencing represents one of the very few exceptions to this principle. Also, the court may withhold adjudication of guilt, where it otherwise could not. In recent years, the legislature has placed some limitations on a court's ability to withhold adjudication of guilt in felony matters. For more information, see the Withholding of Adjudication section of our website. These limitations to do not apply to the youthful offender. You should know, however, that the youthful offender sentencing scheme will not prevent the accused person from having to register as a sexual offender or predator when the offense to which he or she is resolving carries such requirement as a collateral consequence of the plea.

As a St. Petersburg criminal defense attorney, I have had many young clients, facing years in the state penitentiary, avoid incarceration through a youthful offender departure. Almost all have gone on to get educated, have broken the chains of drug addiction, and have refrained from subsequent law violations. For those who want it, this departure basis really is a second chance at life.

Categories: Criminal Defense