Florida Sentencing Guideline Departures: Victim as Initiator, Participant or Provoker of Incident

As you are probably aware, either through personal experience or from reading past blog posts on our site, the incarcerative component of a person's sentence, if there is to be one, is determined based on the accused person's "score" on Florida's sentencing guidelines. For the uninitiated, here is how it works: Every felony offense is assigned, by law, both a degree and an offense level. The degree of felony determines the high end range of the guidelines: third degree felonies are punishable by up to five years, second degree felonies are punishable by up to fifteen years, and first degree felonies are punishable by up to thirty years (unless the offense is designated "PBL" or "punishable by life", in which case the maximum period of incarceration is life). The low end of the guideline range is determined based on the the offense level. Every offense before the court for sentencing, and the person's prior convictions, are assigned a specific number of points based on the offense level (offense levels range from one to ten). The more severe the crime, the higher the offense level and the corresponding points. Felony possession of marijuana and felony driving while license suspended are, for example, third degree felonies, and level one offenses. Sexual battery of a physically helpless victim is, for example, a first degree felony, and a level nine offense. The low end range (in months) is determined by adding up the points, and then performing a minor mathematical calculation.

If the total points exceed 44, the court must impose a prison sentence (there is an exception for non-violent felony offenders whose total points are 60 or fewer and who are amenable to a post-adjudicatory drug court program; this will be a topic for an upcoming blog post). The resulting sentence will be no less than a year and a day in state prison. Where the total points are less than 44, the court is not required to sentence a person to prison, but may still do so (up to the statutory maximum). If the offense was committed on or after July 1st, 2009, is a third degree felony, and the total points are 22 or less, the court must sentence the accused person to a non-state prison sanction, unless (1) the offense is a forcible felony; (2) the offense is a violation of chapter 810 (burglary), or (3) the court makes finding that a non-state prison sanction would present a danger to the public. For a complete list of felony degree and offense levels, see Florida Statute section 921.0022. Please note that sentencing guidelines do not apply in misdemeanor cases.

A downward departure from the lowest permissible sentence (e.g. where the total points exceed 44), is prohibited unless there are circumstances or factors that "reasonably justify" the departure. Florida law recognizes fourteen bases upon which the court can lawfully depart from the low end of the guideline range. The burden of establishing the existence of a lawful departure basis is on the defense. The facts proffered in support of the departure basis must be proven by a preponderance of the evidence.

The court's decision to depart is essentially a two step process. First, the court will determine whether it can lawfully depart. This part of the analysis is a mixed question of law and fact and will be sustained on appellate review if the sentencing court applied the correct rule of law and if "competent substantial" evidence supports the ruling. Second, and assuming the conditions in step one have been satisfied, the court must determine whether it should depart. This prong affords the trial court quite a bit of discretion and will be upheld on appeal unless it is apparent that the court abused its discretion. A court abuses its discretion only where no reasonable person would agree with its decision. As a St. Petersburg criminal defense attorney, much of my preparation for a departure hearing is dedicated to this second prong.

The trial court can lawfully depart from the low end of the guidelines range (assuming the person scores prison) where the victim was an initiator, willing participant, an aggressor, or a provoker of the incident. This particular guideline departure basis is codified in Florida Statute section 921.0026(2)(f). It is typically raised in cases that involve crimes of violence, such as aggravated assault, aggravated battery, manslaughter, and even murder. Trial courts throughout the state have held that provocation by the victim in these types of cases can be a permissible basis for a guideline departure. The departure may be legally cognizable even where the victim's provocation was not legally sufficient to warrant a finding that the defendant acted in self-defense. See, e.g., State v. Mathis, 541 So.2d 744 (Fla. 3rd DCA 1989)(the trial court did not err in departing from the low end of the guidelines as there was competent substantial evidence in the record to support the court's findings that the offense committed by the defendant was the result of provocation by the victim, although the provocation was not legally sufficient to warrant a finding that the defendant acted in self-defense).

A guilty verdict, where the issue of self defense is raised at trial, will not preclude the court from thereafter departing from the defendant's low end guideline score pursuant to section 921.0026(2)(f). In State v. Hines, for example, the defendant raised the issue of self-defense at trial, asserting that he hit his girlfriend after she threatened him with a butcher knife. See 817 So.2d 964 (Fla. 2nd DCA 2002). The jury rejected his self defense claim and found him guilty. In imposing sentence, the trial court believed that it lacked the authority to depart, based on the victim's purported provocation and participation in the incident, because the jury had returned a guilty verdict. In reversing the defendant's guideline sentence, Florida's Second District Court of Appeal held that a court can mitigate a sentence based on conduct that is not otherwise sufficient to excuse or legally justify the crime. In other words, even though the defendant may not have been legally justified in hitting the victim (thereby warranting a not guilty verdict), there may be sufficient record evidence nonetheless to impose a below guideline sentence based on a finding that the victim was a willing participant or in some way provoked the incident. The appellate court remanded the matter with instructions to the trial court to reconsider the sentence in light of its now clarified discretion to depart.

This same reasoning would also apply where a motion to dismiss, based on Florida's stand your ground law (statutory immunity), is denied by the court, and the accused elects to enter a plea in lieu of going to trial. Even though the facts presented at the hearing may have failed to support a finding of legal justification (warranting an outright dismissal of the charge), your criminal defense attorney may nonetheless argue for a guideline departure, based on victim initiation, provocation, or willing participation, which may very well be granted. On that same basis, your attorney may argue for a withhold of adjudication of guilt, where a withholding may otherwise be precluded by law (this point is a bit beyond the scope of our present discussion; for more information on withholding of adjudication of guilt, and the bases upon which a court may lawfully do so, see the Withholding of Adjudication section our website or consult with an experienced St. Petersburg criminal defense lawyer).

In an aggravated battery case earlier this year, the court denied my motion to dismiss based on statutory immunity and my client thereafter elected to go to trial (in lieu of entering a plea). As any experienced St. Petersburg criminal defense attorney will tell you, predicting a jury verdict is an exercise in futility. With that in mind, my questions at trial (on both direct and cross-examination) were carefully crafted to create as much record evidence of the victim's provocations and willing participation in the incident as possible. If I was able to accomplish my objective in that regard, I knew I would have a decent shot at keeping my client out of prison if the jury rejected our self-defense theory and returned a guilty verdict. Fortunately, my client was acquitted and a sentencing hearing became a non-issue. As long as it is relevant to the issues at trial, I think it is critical for the criminal defense attorney to do all he or she can to introduce competent substantial evidence that can be used to support a departure basis should the client be found guilty.

The matter of a victim's willing participation, as a guideline departure basis, may also be raised in underage sex crimes. Even though a minor victim's "consent" does not constitute a defense to sexual activity (because an underage victim is incapable, as a matter of law, to consent to sexual relations), his or her willingness to participate in such activity may nonetheless form the basis for a guideline departure. Once again, a trial court can mitigate a sentence based on conduct that is not sufficient to excuse or justify the crime itself. Legal justification and sentencing mitigation are two different things.

In State v. Ronald Rife, for example, the Florida Supreme Court held upheld a guideline departure sentence after the jury found the defendant guilty of sexual battery involving a seventeen year old victim. The evidence at trial showed that the victim was a willing participant in the sexual activity. While the Supreme Court readily acknowledged that "consent" by a minor was not a cognizable defense to the charged offense, it also pointed out that a guideline departure based on a victim's initiation, provocation, or willing participation under Florida Statutes section 921.0026(2)(f) is not precluded based on his or her age. Where the facts support it, the trial court can lawfully depart from the guidelines in a sexually motivated offense involving an underage victim (step one). In assessing whether it should depart in these matters (step two), the Florida Supreme Court urged judges to consider the victim's age, maturity, and relationship to the accused. Common sense dictates that a court may be more inclined to depart under section 921.0026(2)(f) where the victim is seventeen, the defendant is twenty five, and there is no familial relationship versus an adult uncle who has "consensual" sex with his fourteen year old niece.

There is authority in Florida holding that where the initiator, aggressor, or willing participant in the incident giving rise to the defendant's charge(s) is a law enforcement officer, a guideline departure on that basis is improper. The issue usually comes up in cases where an undercover police officer participates in the purchase of controlled substances from the accused. In James Grant v. State, for example, the trial court was reluctantly persuaded by the defense to depart under section 921.0026(2)(f) on the basis that the government initiated the drug purchase from the defendant and willingly participated in the transaction. See 912 So.2d 321 (Fla. 2nd DCA 2004). In reversing the departure sentence, Florida's Second District Court of Appeal held that a departure under section 921.0026(2)(f) requires that the initiator, provoker, or willing participant be a victim of the offense and the involved officer was not a victim. The same issue was raised, and the same result was reached, in State v. Holmes, 909 So.2d 526 (Fla. 1st DCA 2005)(that the undercover officer was an initiator, willing participant, aggressor, or provoker of the hand-to-hand drug transaction with the defendant is not a sufficient basis for a departure under sec. 921.0026(2)(f)) and State v. Holsey, 908 So.2d 1159 (Fla. 1st DCA 2005)(a departure under 921.0026(2)(f), because the undercover officer was an initiator or willing participant in a drug buy from the defendant, was not proper).

As indicated above, the initiator/willing participant guideline departure basis is but one of fourteen. Its applicability is, obviously, limited to cases wherein (1) there is a victim; and (2) there is competent substantial record evidence of that person's involvement in the incident as an initiator or participant. There is usually more than one guideline departure basis that can be argued at sentencing and it is the job of your St. Petersburg criminal defense lawyer to present every viable basis. In self-defense cases, where justification failed as an absolute defense (either at a hearing on a motion to dismiss or at trial), or in underage sex crimes where the alleged victim is close to the age of majority and bears no familial relationship to the accused, section 921.0026(2)(f) presents a critical opportunity to avoid the imposition of what could be a very lengthy prison sentence. Departure hearings can be very tedious, stressful undertakings for both the client and the attorney. Effective legal research, motion drafting, and argument can, however, go a long way in pulling a client back from the brink of disaster.