In our December, 2015 post, we examined the circumstances under which the court can "depart" from the sentencing guidelines based on the defendant's status as a youthful offender. This post presents an overview of the circumstances under which the court can depart based on findings that the offense was committed in an "unsophisticated" manner, that it is an "isolated" incident, and that the accused has sufficiently demonstrated "remorse".
To briefly recap, in Florida, all felony offenses are assigned a certain numerical value (or "points") for purposes of determining the accused person's minimum guideline score. With one exception, where the total number of points exceeds 44, the court must impose a state prison sentence (which will be at least a year and a day in the Florida Department of Corrections - not the Pinellas or Hillsborough County jail). Determining the low end of the guideline range requires the court to consider not only the primary offense but also any other offenses before it for sentencing and the accused person's prior record (which are also assigned a certain number of points). Where the total points are 44 or less, the court is not required to impose a state prison sentence (unless there is an applicable minimum mandatory based on the nature of the offense; this is separate and apart from guideline issues), but can sentence the person to a period of incarceration up to the statutory maximum. For a third degree felony, the maximum penalty is five years, for a second degree felony, the maximum penalty is fifteen years and for a first degree felony, the maximum penalty is thirty years (for a first degree felony that is punishable by life ("PBL"), the maximum penalty is life).
Guideline departures represent a caveat to the requirement that the court impose a prison sentence in cases where the accused person's total points exceed 44. The fourteen statutorily enumerated departure bases are set forth in Fla. Stat. section 921.0026(2). As a St. Petersburg criminal defense attorney, I am often confronted with cases involving mandatory prison sentences and a great deal of my time is spent working toward a sentence that does not involve a state prison sanction, through some form of departure. This is usually no small feat. In Florida, the primary purpose of sentencing is to punish the offender. The law dictates that while rehabilitation is a desired goal of the criminal justice system, it is subordinate to the goal of punishment.
Section 921.0026(2)(j) allows the trial court to depart from the sentencing guideline range where there is competent, substantial record evidence that (1) the offense was committed in an unsophisticated manner; (2) the offense was an isolated incident; and (3) the defendant has shown remorse for having committed the offense. The level of proof necessary to establish the facts that support a departure from the lowest permissible sentence is a "preponderance of the evidence". For purposes of this particular departure basis, all three elements must be supported by record evidence; two out of the three won't cut it.
Lack of sophistication is determined by the trial court on a case-by-case basis. A court is more likely to find lack of sophistication in, for example, a situation where the accused stole an electronic device from a local retail outlet versus a situation where the accused engaged in a continuing course of conduct involving a series of white collar type computer transactions. Both cases involve allegations of theft, but the level of sophistication in each scenario is markedly different. In State v. Flemming, the Fourth District Court of Appeal construed "unsophisticated" as having the opposite meaning of "sophisticated", which is defined as "possessing acquired worldly knowledge or refinement and lacking in natural simplicity or naiveté". See 751 So.2d 620 (Fla. 4 th DCA 1999). Where it is evident that significant forethought or planning went into perpetrating the offense (and/or covering it up), or where the accused has some special skill which he or she used to commit the crime, it is less likely that the court will find a lack of sophistication. In Flemming, the Fourth District held that the defendant's offense was not committed in a sophisticated manner when he purchased marijuana from police who were (apparently unbeknown to the defendant) executing a search warrant at his dealer's residence. In finding that the defendant's acts were "artless, simple, and not refined", the Fourth District noted its obligation to construe the word "unsophisticated" liberally in favor of the accused.
What constitutes an "isolated incident" will also be determined by the court on a case-by-case basis. Just because the accused person has a criminal history does not mean that the court is precluded from finding that the offense before it is not sufficiently "isolated" for purposes of a sentencing guideline departure. Where, however, the accused has an extensive prior criminal history, or a history of committing offenses that are similar to the pending offense, it is unlikely that the requisite finding will be made to support a departure. For example, in State v. Todd Munro, a Pinellas County case, the Second District Court of Appeal reversed a guideline departure sentence that had been imposed on the bases of unsophistication, isolation and remorse. See 930 So.2d 381 (Fla. 2nd DCA 2005). InMunro, the defendant plead guilty to lewd and lascivious molestation of his step daughter, which occurred on at least three different occasions over a three week period. The appellate court determined that because the defendant had committed multiple acts of abuse on the alleged victim, his crime could not be construed as isolated (even though this was the only charge on his record).
With regard to the "remorse" element, the defendant must accept full responsibility for the commission of the offense. Where, for example, an accused person is found guilty after trial, and continues to maintain his or her innocence at sentencing, it would be very difficult (if not impossible) to establish the remorse element for purposes of attaining a guideline departure on this basis. It seems that a simple apology for any pain or anguish the accused person caused the victim by virtue of his or her conduct will not not suffice either. To satisfy this basis, genuine remorse for the conduct or wrongdoing must be demonstrated. For example, in State v. Whiting, another Pinellas County case, the trial court's imposition of a departure sentence was reversed, at least in part, on the ground that remorse for the conduct itself was not established. See 711 So.2d 1212 (Fla. 2nd DCA 1998). In reversing the departure sentence, the Second District Court of Appeal stated that the defendant "merely uttered a brief apology for the pain he caused the victim's family, as well as his own. He did not otherwise express any regret as to his actual conduct, nor did he acknowledge any wrongdoing."
In these cases, I would have my client (post plea, of course) not only acknowledge an understanding of how the offense affected any victims, the client himself or herself, and his or her own family members, but also unequivocally acknowledge wrongdoing and accept full responsibility for his or her actions. It merits mention that representations by the attorney alone are insufficient to support a guideline departure. In the Munro case (above), the appellate court held that the representation of the defendant's attorney that the defendant was remorseful did not meet the requisite burden, noting that "only after the court determined to downward depart did Mr. Munro place on the record his desire to apologize and express regret for his actions".
If the trial court elects to depart where all three elements are not established (e.g. lack of sophistication, isolated incident, and remorse), the sentence will be reversed on appeal and remanded for re-sentencing. For example, in State v. Santomaso, the Second District Court of Appeal reversed the trial court's below guideline sentence and remanded with instructions to either re sentence the defendant within the guideline range or to withdraw his plea and proceed to trial. See 764 So.2d 735 (Fla. 2nd DCA 2000). In Santomaso, the defendant was charged with grand theft of real property in one matter and, in another matter, with multiple counts of grand theft, uttering forged instruments, and uttering checks with forged endorsements (where his aunt was the alleged victim). At sentencing, the defendant apologized for his actions, stating he was truly remorseful, and presented some character witnesses. His attorney thereafter asked for a guideline departure, which the court granted, over the state's objection. Apparently, the trial court departed on two bases: (1) lack of sophistication/isolation/remorse; and (2) that the need for payment of restitution outweighed the need for incarceration (another statutorily recognized departure basis). The appellate court determined that the departure sentence was not warranted because even though the defendant expressed remorse on the record, there was no evidence to support the additional required elements that the offense was committed in an unsophisticated manner and that it was an isolated incident.
At any sentencing departure hearing, the judge will conduct a two step analysis: (1) can I lawfully depart; and (2) if so, should I? The criminal defense attorney must work to ensure that there is a sufficient legal basis to depart or, stated differently, that there is competent, substantial record evidence to support the departure. A lot of times, satisfying the first prong will require the attorney to search for cases that are factually similar to the client's case where the court determined that the departure was legally justifiable. In precedent setting cases where it was determined that the departure was not legally justified, it is the attorney's task to argue why those cases are factually dissimilar to the client's case. Also, in preparing for sentencing,the criminal defense attorney should look for more than one potentially viable departure basis as this gives the court some alternatives to consider. If it is clear that a particular basis is not feasible, I won't argue it. Doing so, I believe, has a dilutive effect on the overall presentation and the last thing an attorney wants to do is lose credibility.
Where the departure is lawful, the attorney must also persuade the court that the departure is warranted. Just because the court can depart, does not mean it will. This is the other side of the equation that cannot be neglected in preparation for a sentencing guideline departure hearing.
As a St. Petersburg criminal defense attorney and former Pinellas County state prosecutor, I have handled countless departure hearings. Prosecutors are always very well prepared for these hearings and it essential that the criminal defense attorney be just as prepared, or better. When a client is facing years in the state penitentiary, there is simply no room for error.