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Florida Sentencing Guideline Departures: Need for Restitution


In past posts, we have explored the circumstances under which the trial court can impose a sentence that is less than what the applicable guideline range mandates. These prior posts include the Youthful Offender Departure (December, 2015), and the Unsophisticated/Isolated/Remorse Departure (May, 2016). Any meaningful discussion of Florida sentencing guideline departures must begin with a brief overview of how guidelines work. At the risk of sounding overly repetitive, here is what you need to know: first, sentencing guidelines only apply in felony cases. If you are charged with a misdemeanor crime, you do not need to be concerned with guidelines. If charged with a felony, your offense will be assigned a certain numerical value (by statute). The guideline will take into account the primary offense points (the primary offense is the most serious offense and therefore carries the highest number of points), additional offense points (which includes all other charges before the same judge for sentencing), and prior offense points (yes, your prior record is taken into account in determining your minimum lawful guideline score). The statutory maximums for the primary and additional offenses establish the maximum penalty. Assume, for example, that you are charged with Dealing in Stolen Property (a second degree felony and level 5 offense) and Grand Theft (a third degree felony and level 2 offense). Second degree felonies are punishable by up to fifteen years in state prison and third degree felonies are punishable by up to five years in state prison. The maximum penalty in your case would be twenty years (fifteen plus five). The minimum penalty is determined by adding the number of points assigned to each offense level (of each crime) before the court for sentencing, and performing a minor mathematical calculation. If the total points are greater than 44, the court must impose a prison sentence, which will be at least a year and a day in length.

As stated in previous posts, Florida law recognizes a number of circumstances under which the court can "depart" from the guidelines, and impose a sentence that is less than the minimum number of months or years that the guidelines mandate. These bases are finite, are defined by statute, and must be supported by competent, substantial record evidence. If not, the state will likely appeal the sentence and the matter will be remanded by the appropriate court of appeals for re-sentencing. This post explores the circumstances under which the trial court can depart from an otherwise mandatory guideline sentence where (1) the defendant has the ability to compensate the victim for his or her loss (that resulted from the defendant's criminal conduct, either directly or indirectly); and (2) the court finds that the victim has a bona fide need to be compensated.

The bases upon which the court can depart are set forth in Florida Statutes section 921.0026. There are fourteen of them. Subsection (2)(e) allows for a departure where "the need for payment of restitution outweighs the need for incarceration". The key word here is "need". That the alleged victim would prefer to receive restitution, in lieu of the defendant receiving a state prison sentence, is not enough and Florida appellate courts have routinely held this. In State of Florida v. Montgomery, for example, the Second District Court of Appeal reversed a below guidelines sentence that was imposed over the state's objection on the basis of the victim's representations to the court regarding the payment of restitution. See 155 So.3d 1182 (Fla. 2nd DCA 2014). In Montgomery, the defendant pled guilty to aggravated battery, and was facing a minimum guideline score of 35.4 months. The defendant's attorney, the alleged victim, and the alleged victim's civil attorney engaged in some discussions wherein the victim agreed to accept a payment of $50,000.00 from the defendant in exchange for a release from any further civil or criminal action. The state objected, nonetheless, to a below guidelines sentence. The court departed after discussing with the alleged victim his preference for a restitution payment over the imposition of a prison sentence. The court adjudicated the defendant guilty, placed him on probation for five years, and ordered $50,000.00 in restitution as a condition thereof.

In its opinion, the second district court of appeals noted that while the victim's need for restitution is a valid reason for a departure from the sentencing guidelines under section 921.0026(2)(e), the evidence must show that the victims actual need outweighs the need for imprisonment. Evidence that would support this finding includes: (1) the nature of the victim's loss; (2) the effectiveness of restitution; and (3) the consequences of imprisonment (will it preclude the defendant from making restitution payments?). In its ensuing discussion, the court emphasized that when the defense offers no evidence of these three factors, other than the representations of counsel, the departure must be reversed. Here, the alleged victim did not provide sworn testimony about why he needed the restitution, the extent of the injuries he suffered, or the nature and extent of the financial losses that resulted from the defendant's criminal conduct.

The second factor that must be taken into account in determining the propriety of a departure on this basis is the defendant's ability to pay. In State of Florida v. Wheeler, the Fifth District Court of Appeal reversed a below guidelines sentence, on the purported basis of a need for restitution and ability to pay, due to a lack of competent, substantial record evidence as to both elements. See 180 So.3d 1117 (Fla. 5th DCA 2015). In Wheeler, the defendant was charged with burglary to a dwelling, dealing in stolen property, false verification of ownership, and grand theft, which violated the defendant's probation in three prior felony cases. Over the state's objection, the trial court conducted plea negotiations with the defendant and imposed a departure sentence. The sentence consisted of 10 years prison, suspended on the condition that the defendant complete two years of community control and three years of probation.

In reversing the departure sentence, the appellate court reiterated that in weighing the need for restitution against the need for incarceration, the trial court must take into account certain relevant factors, including the nature of the loss, the efficacy of restitution, and the consequences of imprisonment. In considering the efficacy of restitution the court must evaluate the power of the restitution plan to restore the victim to his or her previous state which would include, obviously, the defendant's ability to pay restitution. In Wheeler, the alleged victim advised that it would be "nice" if she received restitution for the stolen items, which is hardly a showing of actual need. The only record evidence supporting the defendant's ability to pay was the testimony of a drug treatment coordinator that "he would hope" that he could place the defendant in employment that would allow for the payment of restitution. The fifth district held that as to both factors, the evidence fell woefully short of supporting lawful grounds for the departure.

In reading the plethora of opinions published by Florida's appellate courts, it is readily apparent that if the criminal defense attorney is to succeed in obtaining a guideline departure for his or her client on this basis, and one that will withstand appellate scrutiny, both prongs of the analysis must be well supported. In preparing to address the first prong (the victim's need), it is often necessary to obtain copies of the victim's medical records and the bills associated with treatment, where applicable. The state will usually provide these materials as part of discovery, especially where injury is an element of the offense. The criminal defense attorney may also want to consider deposing the alleged victim regarding the nature and extent of is or her injuries, the nature and extent of his or her financial loss, and seek to illicit the specific reasons why the victim needs to be financially compensated for those losses. In a subsequent departure hearing, the victim can be called by the defense (or the state), and voir dired on these very same matters. The medical records and bills may also be offered into evidence to help meet the preponderance of the evidence standard necessary for a departure.

Often times, I will have my client provide me with a lump sum of restitution which I will deposit into my trust account. Sometimes the funds come from the client, sometimes from the client's family members, and sometimes it is a combination of both. In any event, a substantial sum of restitution in trust, for the purposes of reimbursing the victim, will go a long way in establishing that there exists a bona fide ability to pay. I will also have my client testify (post plea, of course) as to his or her financial circumstances (including employment, salary, and monthly expenses) to demonstrate a continued ability pay until the victim can be fully compensated for his or her losses. In lieu of testimony, your criminal defense attorney may also consider the possibility of filing a financial affidavit with the clerk of court, ahead of time, and asking the trial judge to judicially notice it at the hearing. Another option may be a stipulation from the state regarding its admissibility. The more competent, substantial record evidence there is, the more likely the trial court will be to depart, and the less likely an appellate court will be to reverse it.

As I have said in previous posts, it is good practice for the criminal defense attorney to explore the existence of more than one viable departure basis. In seeking a departure sentence for my clients, it is all about maximizing opportunity and minimizing risk. Where multiple potential bases for a departure can be identified, that objective is often met. You may have noticed that in the Montgomery and Wheeler cases above, both departure sentences were imposed over the state's objection. Another viable departure basis is a "legitimate, uncoerced, plea bargain" with the state. Where the state agrees to a departure, it will not appeal a departure sentence. In many instances, a substantial sum in trust, to be used for the purposes of restitution, can provide significant leverage in negotiating with the state for a below guidelines sentence. The reality is that most victims want to be compensated for their losses and most realize that a lengthy incarcerative sentence will, in all likelihood, prevent that from happening.

While it is not a guarantee, a negotiated plea agreement with the state, based on the ability to pay restitution, it is most definitely worth exploring. Where the client has no lump sum to pay, or where the state will not agree to a below guidelines sentence, the "need for payment of restitution" departure basis may still provide a meaningful opportunity to avoid an incarcerative component. In instances where the state is objecting to the departure, knowing your judge is a must. Has this judge imposed departure sentences based on the need for restitution in the past? Is there something in particular the judge is looking for in terms of evidence or argument? Has the judge denied a request for a departure sentence based on the need for restitution in the past? If so, why? Is there something about the client's case that can distinguish it from those cases where the judge declined to depart? These are all questions for which answers should be sought well in advance of the hearing. If specific past cases can be identified, and the client has the money, pulling the hearing transcript can provide some invaluable insight, and go a long way in maximizing opportunity and minimizing risk.

Because the primary purpose of sentencing in Florida is, by law, to punish the offender, and because departure bases require competent, substantial evidence in support thereof, the criminal defense attorney has his or her work cut out for him or her. A thorough understanding of the applicable law, with some grit and ingenuity can, however, mean the difference between a probationary sentence, and potentially years in the state penitentiary.