¹921.0016 Recommended sentences; departure sentences; aggravating and mitigating circumstances.--

1. (1) (a) The recommended guidelines sentence provided by the total sentence points is assumed to be appropriate for the offender.
2. (b) A trial court judge may impose a state prison sentence which varies upward or downward by up to, and including, 25 percent from the recommended guidelines state prison sentence without issuing a written statement delineating the reasons for the variation.
3. (c) A state prison sentence which varies upward or downward from the recommended guidelines prison sentence by more than 25 percent is a departure sentence and must be accompanied by a written statement delineating the reasons for the departure, filed within 7 days after the date of sentencing. A written transcription of orally stated reasons for departure from the guidelines at sentencing is permissible if it is filed by the court within 7 days after the date of sentencing.
4. (d) The imposition of a split sentence of incarceration followed by community control or probation does not by itself constitute a departure from sentencing guidelines. For the purpose of determining the maximum sentence authorized by law, any community control portion of a split sentence does not constitute a term of imprisonment.
5. (e) A departure sentence must be within any relevant maximum sentence limitations provided by s. 775.082
6. (2) A departure from the recommended guidelines sentence is discouraged unless there are circumstances or factors which reasonably justify the departure. Aggravating and mitigating factors to be considered include, but are not limited to, those listed in subsections (3) and (4). The failure of a trial court to impose a sentence within the sentencing guidelines is subject to appellate review under chapter 924, but the extent of departure from a guidelines sentence is not subject to appellate review.

7. (3) Aggravating circumstances under which a departure from the sentencing guidelines is reasonably justified include, but are not limited to:

   1. (a) The departure results from a legitimate, uncoerced plea bargain.
   2. (b) The offense was one of violence and was committed in a manner that was especially heinous, atrocious, or cruel.
   3. (c) The offenses before the court for sentencing arose out of separate episodes; the primary offense is scored at offense level 4 or higher; and the defendant has committed five or more offenses within a 180-day period that have resulted in convictions.
   4. (d) The primary offense is scored at offense level 3 and the defendant has committed eight or more offenses within a 180-day period that have resulted in convictions.
   5. (e) The offense before the court for disposition was committed within 6 months after the defendant was discharged from a release program, as defined in ²s. 921.0011(6), or released from state prison, whichever is later.
   6. (f) The defendant occupied a leadership role in a criminal organization.
   7. (g) The offense was committed by a public official under color of office.
   8. (h) The defendant knew the victim was a law enforcement officer at the time of the offense; the offense was a violent offense; and that status is not an element of the primary offense.
   9. (i) The offense created a substantial risk of death or great bodily harm to many persons or to one or more small children.
   10. (j) The victim was especially vulnerable due to age or physical or mental disability.
   11. (k) The offense was motivated by prejudice based on race, color, ancestry, ethnicity, religion, sexual orientation, or national origin of the victim.
   12. (l) The victim suffered extraordinary physical or emotional trauma or permanent physical injury, or was treated with particular cruelty.
   13. (m) The victim was physically attacked by the defendant in the presence of one or more members of the victim's family.

   14. (n) The offense resulted in substantial economic hardship to a victim and consisted of an illegal act or acts committed by means of concealment, guile, or fraud to obtain money or property, to avoid payment or loss of money or property, or to obtain business or professional advantage, when two or more of the following circumstances were present:

       1. The offense involved multiple victims or multiple incidents per victim;

       2. The offense involved a high degree of sophistication or planning or occurred over a lengthy period of time;

       3. The defendant used position or status to facilitate the commission of the offense, including positions of trust, confidence, or fiduciary relationship; or

       4. The defendant was in the past involved in other conduct similar to that involved in the current offense.

   15. (o) The offense was committed in order to prevent or avoid arrest, to impede or prevent prosecution for the conduct underlying the offense, or to effect an escape from custody.
   16. (p) The defendant is not amenable to rehabilitation or supervision, as evidenced by an escalating pattern of criminal conduct as described in s. 921.001(8).
   17. (q) The defendant induced a minor to participate in any of the offenses pending before the court for disposition.
   18. (r) The primary offense is scored at offense level 7 or higher and the defendant has been convicted of one more offense that scored, or would have scored, at an offense level 8 or higher.
   19. (s) The defendant has an extensive unscoreable juvenile record.
   20. (t) The defendant committed an offense involving sexual contact or sexual penetration and as a direct result of the offense, the victim contracted a sexually transmissible disease.

8. (4) Mitigating circumstances under which a departure from the sentencing guidelines is reasonably justified include, but are not limited to:

   1. (a) The departure results from a legitimate, uncoerced plea bargain.
   2. (b) The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.
   3. (c) The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired.
   4. (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.
   5. (e) The need for payment of restitution to the victim outweighs the need for a prison sentence.
   6. (f) The victim was an initiator, willing participant, aggressor, or provoker of the incident.
   7. (g) The defendant acted under extreme duress or under the domination of another person.
   8. (h) Before the identity of the defendant was determined, the victim was substantially compensated.
   9. (i) The defendant cooperated with the state to resolve the current offense or any other offense.
   10. (j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.
   11. (k) At the time of the offense the defendant was too young to appreciate the consequences of the offense.
   12. (l) The defendant is to be sentenced as a youthful offender.

9. (5) A defendant's substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor under subsection (4) and does not, under any circumstances, justify a downward departure from the sentence recommended under the sentencing guidelines.

   ¹Note.--

   A. Section 1, ch. 97-194, provides that "[s]ections 921.0001, 921.001, 921.0011, 921.0012, 921.0013, 921.0014, 921.0015, 921.0016, and 921.005, Florida Statutes, as amended by this act, are repealed effective October 1, 1998, except that those sections shall remain in effect with respect to any crime committed before October 1, 1998."

   B. Section 43, ch. 97-194, provides that "[t]he Division of Statutory Revision of the Joint Legislative Management Committee shall leave the repealed statutory provisions referenced herein in the Florida Statutes for 10 years from October 1, 1998."

   ²Note.--Section 4, ch. 95-184, deleted the definition of the term "release program" from s. 921.0011(6).

History.--s. 13, ch. 93-406; s. 7, ch. 95-184; s. 5, ch. 96-409; ss. 1, 41, ch. 97-194.