Amendments to 921.0026

1. State v. Chubbuck

   141 So. 3d 1163 (Fla. 2014)   Cited 32 times

   Section 921.0026(2) sets out a non-exclusive list of mitigating circumstances under which a downward departure sentence is reasonably justified for non-capital felonies committed on or after October 1, 1998. See§ 921.0026(2)(a)–(m), Fla. Stat. Under paragraph (2)(d), the mitigating circumstance at issue, a trial court may depart from the lowest permissible sentence if the defendant requires “specialized treatment” for a mental disorder (unrelated to substance abuse or addiction) or for a physical disability, and the defendant is amenable to treatment. § 921.0026(2)(d), Fla. Stat.; Ch. 97–194, § 8, Laws of Fla.

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2. State v. Ayers

   901 So. 2d 942 (Fla. Dist. Ct. App. 2005)   Cited 50 times

   Section 921.0026(1), Florida Statutes (2003), provides that a sentence less severe than the lowest permissible sentence shown on the Criminal Punishment Code scoresheet "is prohibited unless there are circumstances or factors that reasonably justify the downward departure." See also § 921.00265(1). Section 921.0026(2), which sets forth a nonexclusive list of such mitigating circumstances, provides in pertinent part: "Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include . . . (j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." Under section 921.002(3), "[t]he level of proof necessary to establish facts supporting the mitigation of a sentence is a preponderance of the evidence" and any downward departure sentence "must be explained in writing by the trial court judge." See also § 921.00265(2).

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3. State v. Murphy

   124 So. 3d 323 (Fla. Dist. Ct. App. 2013)   Cited 33 times

   We conclude the first factor the trial court relied on for departure is not valid. “That the undercover officer was an initiator, willing participant, aggressor, or provoker of the incident is not a proper ground in this case for downward departure pursuant to section 921.0026(2)(f), Florida Statutes.” State v. Holsey, 908 So.2d 1159, 1161 (Fla. 1st DCA 2005); see also State v. Grant, 912 So.2d 321, 322 (Fla. 2d DCA 2004) (holding that undercover officer involved in sting operation was not victim of defendant's drug offense as to support downward departure factor in section 921.0026(2)(f)).

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4. State v. Chubbuck

   83 So. 3d 918 (Fla. Dist. Ct. App. 2012)   Cited 17 times

   Under Florida's sentencing statutes, “[a] downward departure from the lowest permissible sentence ... is prohibited unless there are circumstances or factors that reasonably justify the downward departure.” § 921.0026(1), Fla. Stat. (2009). Subsection 921.0026(1) continues by indicating that subsection, 921.0026(2) provides a non-exclusive list of mitigating factors. Id. (“Mitigating factors to be considered include, but are not limited to, those listed in subsection (2).”). Although the trial court did not cite to a specific statutory section or use the term “mitigating factor,” both the state and Chubbuck invoked subsection 921.0026(2)(d), and the court's findings on Chubbuck's health suggest that subsection as the ground for the court's departure.

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5. Rochester v. State

   95 So. 3d 407 (Fla. Dist. Ct. App. 2012)   Cited 6 times

   .Section 921.0026(1) provides that “[a] downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s. 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the downward departure.” § 921.0026(1), Fla. Stat. The State argues that by its express terms, section 921.0026(1) is limited to those sentences calculable under the Criminal Punishment Code. See§§ 921.002–.0024, Fla. Stat. Therefore, section 921.0026 would not be available to Rochester because section 775.082(3)(a) 4. is not a Criminal Punishment Code sentence due to the fact that section 775.082(3)(a) 4. contains its own specific enumerated sentence. Based upon our analysis, we need not reach this argument.

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6. State v. Gaines

   971 So. 2d 219 (Fla. Dist. Ct. App. 2008)   Cited 9 times

   In Fontaine, the defendant disciplined his fiancée's nine-year-old son by repeatedly striking him with a belt, causing welts and bruising. During sentencing, the fianceée testified that the defendant had been in a serious accident, had been given a substantial amount of drugs, and, as a result, had become depressed and angry. Fontaine, too, attributed the behavior to the drugs and the pain, indicating he did not remember the entire incident and expressing extreme remorse. The trial court imposed a departure sentence, relying upon section 921.0026( 2)(c) (the defendant's capacity to appreciate the criminal nature of his behavior was substantially impaired at the time of the offense) and (j) (the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse). The majority affirmed the departure sentence based upon section 921.0026( 2)(c). Fontaine had a prior criminal record, i.e., two misdemeanors, larceny and reckless driving, committed some ten years earlier and, thus, had apparently abandoned his claim that the departure sentence was authorized under section 921.0026( 2)(j). In a special…

   PAGE 221
7. Kezal v. State

   42 So. 3d 252 (Fla. Dist. Ct. App. 2010)   Cited 11 times

   Section 921.0026 plainly states, "This section applies to any felony offense, except any capital felony, committed on or after October 1, 1998." Because the mitigator in section 921.0026(2)(j) applies to any felony offense, except any capital felony, committed on or after October 1, 1998, it is available to support a downward departure from a felony DUI conviction. The fact that the Legislature specifically exempted only capital felonies is further support for the conclusion that section 921.0026(2)0") applies to felony DUI convictions.

   PAGE 255
8. State v. Leverett

   44 So. 3d 634 (Fla. Dist. Ct. App. 2010)   Cited 13 times

   Section 921.0026(2) of the Florida Statutes (2007) sets forth a list of mitigating circumstances permitting the imposition of a downward departure from the lowest permissible guidance sentence. State v. Stephenson, 973 So.2d 1259, 1263 (Fla. 5th DCA 2008). However, the trial court can impose a downward departure sentence for reasons not delineated in section 921.0026, as long as the reason given is supported by competent, substantial evidence and not otherwise prohibited. Id.

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9. State v. Salgado

   948 So. 2d 12 (Fla. Dist. Ct. App. 2007)   Cited 21 times

   The other basis that the trial court relied upon when it imposed a departure sentence was that the offenses committed by the defendant were committed in an unsophisticated manner and were isolated incidents for which the defendant has shown remorse. This ground for departure, however, is only valid under section 921.0026(2)(j) when there is substantial competent evidence supporting all three elements. See State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006)("All three elements must exist to justify departure; the offense must have been isolated, committed in an unsophisticated manner, and one for which the defendant had shown remorse."); see also State v. Strawser, 921 So.2d 705, 707 (Fla. 4th DCA 2006); State v. Perez-Gonzalez, 884 So.2d 1031 (Fla. 3d DCA 2004). As the record does not contain competent substantial evidence which would support a finding that the charged offenses were committed in an unsophisticated manner, a departure based upon section 921.0026(2)(j) was unjustified.

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10. State v. Owens

    95 So. 3d 1018 (Fla. Dist. Ct. App. 2012)   Cited 10 times

    Section 921.0026 provides mitigating circumstances “under which a departure from the lowest permissible sentence is reasonably justified....” These include: “(d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” Although not stated in the statute, there is a significant body of case law holding that to receive a sentence pursuant to section 921.0026(2)(d), there must be evidence that the Department of Corrections (DOC) cannot provide the specialized treatment required. See State v. Gatto, 979 So.2d 1232, 1233 (Fla. 4th DCA 2008); State v. Green, 971 So.2d 146, 148 (Fla. 4th DCA 2007); State v. Scherber, 918 So.2d 423, 424–25 (Fla. 2d DCA 2006); State v. Wheeler, 891 So.2d 614, 616 (Fla. 2d DCA 2005); State v. Green, 890 So.2d 1283, 1286 (Fla. 2d DCA 2005); State v. Mann, 866 So.2d 179, 182 (Fla. 5th DCA 2004); State v. Tyrrell, 807 So.2d 122, 128 (Fla. 5th DCA 2002); State v. Thompson, 754 So.2d 126, 127 (Fla. 5th DCA 2000); State v. Abrams, 706 So.2d 903, 904 (Fla. 2d DCA 1998).

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