921.0026
Mitigating circumstances.
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921.0026 Mitigating circumstances.—This section applies to any felony offense, except any capital felony, committed on or after October 1, 1998.
(1) 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. Mitigating factors to be considered include, but are not limited to, those listed in subsection (2). The imposition of a sentence below the lowest permissible sentence is subject to appellate review under chapter 924, but the extent of downward departure is not subject to appellate review.
(2) Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to:
(a) The departure results from a legitimate, uncoerced plea bargain.
(b) The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.
(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.
(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.
(e) The need for payment of restitution to the victim outweighs the need for a prison sentence.
(f) The victim was an initiator, willing participant, aggressor, or provoker of the incident.
(g) The defendant acted under extreme duress or under the domination of another person.
(h) Before the identity of the defendant was determined, the victim was substantially compensated.
(i) The defendant cooperated with the state to resolve the current offense or any other offense.
(j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.
(k) At the time of the offense the defendant was too young to appreciate the consequences of the offense.
(l) The defendant is to be sentenced as a youthful offender.
(m) The defendant’s offense is a nonviolent felony, the defendant’s Criminal Punishment Code scoresheet total sentence points under s. 921.0024 are 60 points or fewer, and the court determines that the defendant is amenable to the services of a postadjudicatory treatment-based drug court program and is otherwise qualified to participate in the program as part of the sentence. For purposes of this paragraph, the term “nonviolent felony” has the same meaning as provided in s. 948.08(6).
(n) The defendant was making a good faith effort to obtain or provide medical assistance for an individual experiencing a drug-related overdose.
(3) Except as provided in paragraph (2)(m), the defendant’s substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor under subsection (2) and does not, under any circumstances, justify a downward departure from the permissible sentencing range.
History.—s. 8, ch. 97-194; s. 8, ch. 98-204; s. 2, ch. 2009-64; s. 2, ch. 2011-33; s. 3, ch. 2012-36.
Notes of Decisions
Cited in 329
cases (49 in the last 5 years), 1998–2026 · leading case: State of Florida v. Harry James Chubbuck
State of Florida v. Harry James Chubbuck (2014)
“§ 921.0026(1), Fla. Stat. In 18. In his special concurrence in Chubbuck, Judge Gross found that the record contains reasons which supported Chubbuck’s downward departure sentence other than subsection 921.”
State v. Chubbuck (2012)
“For the purpose of deciding whether to downwardly depart from the lowest permissible guidelines sentence, section 921.0026, Florida Statutes (2009) does not limit a sentencing judge to those "mitigating factors" specified in subsection 921.”
State v. VanBebber (2003)
“§ 921.0026, Fla. Stat. (Supp.1998). In concluding that the mitigator in section 921.”
State v. Joseph M. Milici (2017)
“§ 921.0026(2), Fla. Stat. (2016). The burden rests on the defendant to “prove these elements, or other mitigating factors, before the trial court will depart.”
Kezal v. State (2010)
“She argues that the circuit court erred in determining that it could not consider the mitigating factors listed at subsections (2)(c) and (2)(j) of section 921.0026, Florida Statutes (2005), with respect to her request for a downward departure because her offenses involved…”
State v. Tyrrell (2002)
“§ 921.0026, Fla. Stat. (1999). The list of statutory departure reasons is not exclusive, so departures based on reasons not delineated in section 921.”
State v. Massingill (2011)
“[7] Among other reasons, mental health "defenses" and mental health mitigators under section 921.0026 may overlap and may be addressed, as here, by the same defense expert.”
State of Florida v. Brian Mitchell Lee (2017)
“” § 921.0026(2)(d), Fla. Stat. (2013). The trial court also relied on the following non- statutory mitigating factors: Lee’s ability to be rehabilitated, his contribution to the community, his employment history, his family background, and his lack of criminal history.”
Jones v. State (2002)
“The sentencing guidelines as set forth in section 921.0026 apply broadly to all felonies and provide for general sentencing guidelines.”
State v. Murphy (2013)
“Section 921.0026, Florida Statutes (2011), prohibits a downward departure from the lowest permissible sentence, unless the court finds mitigating circumstances or factors that reasonably justify such departure.”
State v. Perez-Diaz (2016)
“The imposition of a sentence below the lowest permissible sentence is subject to appellate review under chapter 924, but the extent of downward departure is not subject to appellate review.”
Jackson v. State (2011)
“§§ 921.0026(1), 921.00265(1), Fla. Stat. (2008); Fla.”
— 921.0026(1) — 62 cases
State of Florida v. Harry James Chubbuck (2014)
“§ 921.0026(1), Fla. Stat. In 18. In his special concurrence in Chubbuck, Judge Gross found that the record contains reasons which supported Chubbuck’s downward departure sentence other than subsection 921.”
State v. Chubbuck (2012)
“For the purpose of deciding whether to downwardly depart from the lowest permissible guidelines sentence, section 921.0026, Florida Statutes (2009) does not limit a sentencing judge to those "mitigating factors" specified in subsection 921.”
State v. Ayers (2005)
State v. Perez-Diaz (2016)
“The imposition of a sentence below the lowest permissible sentence is subject to appellate review under chapter 924, but the extent of downward departure is not subject to appellate review.”
Rochester v. State (2012)
— 921.0026(1)(d) — 1 case
State v. Tyrrell (2002)
“§ 921.0026, Fla. Stat. (1999). The list of statutory departure reasons is not exclusive, so departures based on reasons not delineated in section 921.”
— 921.0026(1)(g) — 2 cases
State v. Sisco (2018)
State v. Sisco (2018)
— 921.0026(2) — 100 cases
State v. Murphy (2013)
“Section 921.0026, Florida Statutes (2011), prohibits a downward departure from the lowest permissible sentence, unless the court finds mitigating circumstances or factors that reasonably justify such departure.”
Jackson v. State (2011)
“§§ 921.0026(1), 921.00265(1), Fla. Stat. (2008); Fla.”
State v. Joseph M. Milici (2017)
“§ 921.0026(2), Fla. Stat. (2016). The burden rests on the defendant to “prove these elements, or other mitigating factors, before the trial court will depart.”
Johnson v. State (2007)
State v. Simmons (2012)
— 921.0026(2)(J) — 1 case
State v. Geoghagan (2009)
— 921.0026(2)(a) — 14 cases
Martinez v. State (2017)
State v. Geoghagan (2009)
State of Florida v. Harry James Chubbuck (2014)
“§ 921.0026(1), Fla. Stat. In 18. In his special concurrence in Chubbuck, Judge Gross found that the record contains reasons which supported Chubbuck’s downward departure sentence other than subsection 921.”
State v. Mann (2004)
— 921.0026(2)(b) — 6 cases
State v. Joseph M. Milici (2017)
“§ 921.0026(2), Fla. Stat. (2016). The burden rests on the defendant to “prove these elements, or other mitigating factors, before the trial court will depart.”
State of Florida v. Harry James Chubbuck (2014)
“§ 921.0026(1), Fla. Stat. In 18. In his special concurrence in Chubbuck, Judge Gross found that the record contains reasons which supported Chubbuck’s downward departure sentence other than subsection 921.”
State v. Chubbuck (2012)
“For the purpose of deciding whether to downwardly depart from the lowest permissible guidelines sentence, section 921.0026, Florida Statutes (2009) does not limit a sentencing judge to those "mitigating factors" specified in subsection 921.”
State v. Massingill (2011)
“[7] Among other reasons, mental health "defenses" and mental health mitigators under section 921.0026 may overlap and may be addressed, as here, by the same defense expert.”
State v. Reith (2010)
— 921.0026(2)(c) — 15 cases
State v. Joseph M. Milici (2017)
“§ 921.0026(2), Fla. Stat. (2016). The burden rests on the defendant to “prove these elements, or other mitigating factors, before the trial court will depart.”
State v. Massingill (2011)
“[7] Among other reasons, mental health "defenses" and mental health mitigators under section 921.0026 may overlap and may be addressed, as here, by the same defense expert.”
Camacho v. State (2015)
Kezal v. State (2010)
“She argues that the circuit court erred in determining that it could not consider the mitigating factors listed at subsections (2)(c) and (2)(j) of section 921.0026, Florida Statutes (2005), with respect to her request for a downward departure because her offenses involved…”
— 921.0026(2)(d) — 74 cases
State of Florida v. Harry James Chubbuck (2014)
“§ 921.0026(1), Fla. Stat. In 18. In his special concurrence in Chubbuck, Judge Gross found that the record contains reasons which supported Chubbuck’s downward departure sentence other than subsection 921.”
State v. Chubbuck (2012)
“For the purpose of deciding whether to downwardly depart from the lowest permissible guidelines sentence, section 921.0026, Florida Statutes (2009) does not limit a sentencing judge to those "mitigating factors" specified in subsection 921.”
State of Florida v. Brian Mitchell Lee (2017)
“” § 921.0026(2)(d), Fla. Stat. (2013). The trial court also relied on the following non- statutory mitigating factors: Lee’s ability to be rehabilitated, his contribution to the community, his employment history, his family background, and his lack of criminal history.”
State v. Owens (2012)
Barnhill v. State (2014)
— 921.0026(2)(e) — 26 cases
State v. Walters (2009)
Noel v. State (2013)
Kirby v. State (2003)
Demoss v. State (2003)
— 921.0026(2)(f) — 16 cases
State v. Rife (2001)
State v. Holmes (2005)
State v. Fureman (2014)
State v. Pinckney (2015)
Davis v. State (2011)
— 921.0026(2)(g) — 2 cases
State v. Sisco (2018)
State v. Sisco (2018)
— 921.0026(2)(i) — 15 cases
State v. Bleckinger (1999)
Barnhill v. State (2014)
State v. Geoghagan (2009)
State v. Wheeler (2015)
State v. Randall (1999)
— 921.0026(2)(j) — 97 cases
State v. VanBebber (2003)
“§ 921.0026, Fla. Stat. (Supp.1998). In concluding that the mitigator in section 921.”
State v. Waterman (2009)
Staffney v. State (2002)
State v. Stephenson (2008)
State v. Gaines (2008)
— 921.0026(2)(k) — 8 cases
State v. Salgado (2006)
State v. Browne (2016)
State v. Leverett (2010)
State v. Jerry (2009)
— 921.0026(2)(l) — 1 case
— 921.0026(2)(m) — 6 cases
State v. Henderson (2013)
State v. Wheeler (2015)
State v. Hudson (2014)
State v. Kutz (2015)
— 921.0026(3) — 20 cases
Jones v. State (2002)
“The sentencing guidelines as set forth in section 921.0026 apply broadly to all felonies and provide for general sentencing guidelines.”
State v. Henderson (2013)
Jackson v. State (2011)
“§§ 921.0026(1), 921.00265(1), Fla. Stat. (2008); Fla.”
State v. Subido (2006)
State v. Holmes (2005)
— 921.0026(Z) — 1 case
State v. Brown (2003)
— 921.0026(c) — 3 cases
State v. Resh (2008)
SMELLEY v. INCH (2021)
Guevara-Vilca v. State (2015)
— 921.0026(d) — 1 case
State v. Aguilar (2000)
— 921.0026(e) — 1 case
— 921.0026(i) — 1 case
State v. Johnson (2016)
— 921.0026(j) — 3 cases
State v. Henderson (2014)
State v. Aguilar (2000)
— 921.0026(l)(d) — 1 case
State v. McElroy (2014)
— 921.0026(m) — 1 case
State v. Knight (2016)
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