Florida Statutes
Fla. Stat. § 921.0026 (2025)
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, 141 So. 3d 1163 (Fla. 2014).
State of Florida v. Harry James Chubbuck, 141 So. 3d 1163 (Fla. 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, 83 So. 3d 918 (Fla. 4th DCA 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, 848 So. 2d 1046 (Fla. 2003). “§ 921.0026, Fla. Stat. (Supp.1998). In concluding that the mitigator in section 921.”
State v. Joseph M. Milici, 219 So. 3d 117 (Fla. 5th DCA 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, 42 So. 3d 252 (Fla. 2d DCA 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, 807 So. 2d 122 (Fla. 5th DCA 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, 77 So. 3d 677 (Fla. 3d DCA 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, 223 So. 3d 342 (Fla. 1st DCA 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, 813 So. 2d 22 (Fla. 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, 124 So. 3d 323 (Fla. 1st DCA 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, 189 So. 3d 896 (Fla. 3d DCA 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, 64 So. 3d 90 (Fla. 2011). “§§ 921.0026(1), 921.00265(1), Fla. Stat. (2008); Fla.”
— 921.0026(1) — 62 cases
State of Florida v. Harry James Chubbuck, 141 So. 3d 1163 (Fla. 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, 83 So. 3d 918 (Fla. 4th DCA 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, 901 So. 2d 942 (Fla. 2d DCA 2005).
State v. Perez-Diaz, 189 So. 3d 896 (Fla. 3d DCA 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, 95 So. 3d 407 (Fla. 4th DCA 2012).
— 921.0026(1)(d) — 1 case
State v. Tyrrell, 807 So. 2d 122 (Fla. 5th DCA 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 (Fla. 3d DCA 2018).
State v. Sisco, 254 So. 3d 1139 (Fla. 3d DCA 2018).
— 921.0026(2) — 100 cases
State v. Murphy, 124 So. 3d 323 (Fla. 1st DCA 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, 64 So. 3d 90 (Fla. 2011). “§§ 921.0026(1), 921.00265(1), Fla. Stat. (2008); Fla.”
State v. Joseph M. Milici, 219 So. 3d 117 (Fla. 5th DCA 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, 948 So. 2d 1014 (Fla. 3d DCA 2007).
State v. Simmons, 80 So. 3d 1089 (Fla. 4th DCA 2012).
— 921.0026(2)(J) — 1 case
State v. Geoghagan, 27 So. 3d 111 (Fla. 1st DCA 2009).
— 921.0026(2)(a) — 14 cases
Martinez v. State, 216 So. 3d 734 (Fla. 4th DCA 2017).
Alvin Davis v. State of Florida, 268 So. 3d 958 (Fla. 1st DCA 2019).
State v. Geoghagan, 27 So. 3d 111 (Fla. 1st DCA 2009).
State of Florida v. Harry James Chubbuck, 141 So. 3d 1163 (Fla. 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, 866 So. 2d 179 (Fla. 5th DCA 2004).
— 921.0026(2)(b) — 6 cases
State v. Joseph M. Milici, 219 So. 3d 117 (Fla. 5th DCA 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, 141 So. 3d 1163 (Fla. 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, 83 So. 3d 918 (Fla. 4th DCA 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, 77 So. 3d 677 (Fla. 3d DCA 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, 43 So. 3d 909 (Fla. 2d DCA 2010).
— 921.0026(2)(c) — 15 cases
State v. Joseph M. Milici, 219 So. 3d 117 (Fla. 5th DCA 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, 77 So. 3d 677 (Fla. 3d DCA 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.”
James Green v. State of Florida, 257 So. 3d 474 (Fla. 4th DCA 2018).
Camacho v. State, 164 So. 3d 45 (Fla. 2d DCA 2015).
Kezal v. State, 42 So. 3d 252 (Fla. 2d DCA 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, 141 So. 3d 1163 (Fla. 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, 83 So. 3d 918 (Fla. 4th DCA 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, 223 So. 3d 342 (Fla. 1st DCA 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, 95 So. 3d 1018 (Fla. 5th DCA 2012).
Barnhill v. State, 140 So. 3d 1055 (Fla. 2d DCA 2014).
— 921.0026(2)(e) — 26 cases
State v. Walters, 12 So. 3d 298 (Fla. 3d DCA 2009).
& SC14-1952 Jean Claude Noel v. State of Florida & Jean Claude Noel v. State of Florida, 191 So. 3d 370 (Fla. 2016).
Noel v. State, 127 So. 3d 769 (Fla. 4th DCA 2013).
Kirby v. State, 863 So. 2d 238 (Fla. 2003).
Demoss v. State, 843 So. 2d 309 (Fla. 1st DCA 2003).
— 921.0026(2)(f) — 16 cases
State v. Rife, 789 So. 2d 288 (Fla. 2001).
State v. Holmes, 909 So. 2d 526 (Fla. 1st DCA 2005).
State v. Fureman, 161 So. 3d 403 (Fla. 5th DCA 2014).
State v. Pinckney, 173 So. 3d 1139 (Fla. 2d DCA 2015).
Davis v. State, 73 So. 3d 304 (Fla. 1st DCA 2011).
— 921.0026(2)(g) — 2 cases
State v. Sisco (Fla. 3d DCA 2018).
State v. Sisco, 254 So. 3d 1139 (Fla. 3d DCA 2018).
— 921.0026(2)(i) — 15 cases
State v. Bleckinger, 746 So. 2d 553 (Fla. 5th DCA 1999).
Barnhill v. State, 140 So. 3d 1055 (Fla. 2d DCA 2014).
State v. Geoghagan, 27 So. 3d 111 (Fla. 1st DCA 2009).
State v. Wheeler, 180 So. 3d 1117 (Fla. 5th DCA 2015).
State v. Randall, 746 So. 2d 550 (Fla. 5th DCA 1999).
— 921.0026(2)(j) — 97 cases
State v. VanBebber, 848 So. 2d 1046 (Fla. 2003). “§ 921.0026, Fla. Stat. (Supp.1998). In concluding that the mitigator in section 921.”
State v. Waterman, 12 So. 3d 1265 (Fla. 4th DCA 2009).
Staffney v. State, 826 So. 2d 509 (Fla. 4th DCA 2002).
State v. Stephenson, 973 So. 2d 1259 (Fla. 5th DCA 2008).
State v. Gaines, 971 So. 2d 219 (Fla. 4th DCA 2008).
— 921.0026(2)(k) — 8 cases
State v. Salgado, 948 So. 2d 12 (Fla. 3d DCA 2006).
Laisha L. Landrum v. State of Florida, 192 So. 3d 459 (Fla. 2016).
State v. Browne, 187 So. 3d 377 (Fla. 5th DCA 2016).
State v. Leverett, 44 So. 3d 634 (Fla. 5th DCA 2010).
State v. Jerry, 19 So. 3d 1167 (Fla. 1st DCA 2009).
— 921.0026(2)(l) — 1 case
Joshua E Wallace v. State of Florida, 257 So. 3d 1054 (Fla. 4th DCA 2018).
— 921.0026(2)(m) — 6 cases
State v. Henderson, 108 So. 3d 1137 (Fla. 5th DCA 2013).
State v. Wheeler, 180 So. 3d 1117 (Fla. 5th DCA 2015).
State v. Hudson, 153 So. 3d 375 (Fla. 2d DCA 2014).
State of Florida v. Toni Marie Sawyer, 205 So. 3d 866 (Fla. 1st DCA 2016).
State v. Kutz, 157 So. 3d 380 (Fla. 2d DCA 2015).
— 921.0026(3) — 20 cases
Jones v. State, 813 So. 2d 22 (Fla. 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, 108 So. 3d 1137 (Fla. 5th DCA 2013).
Jackson v. State, 64 So. 3d 90 (Fla. 2011). “§§ 921.0026(1), 921.00265(1), Fla. Stat. (2008); Fla.”
State v. Subido, 925 So. 2d 1052 (Fla. 5th DCA 2006).
State v. Holmes, 909 So. 2d 526 (Fla. 1st DCA 2005).
— 921.0026(Z) — 1 case
State v. Brown, 855 So. 2d 270 (Fla. 5th DCA 2003).
— 921.0026(c) — 3 cases
State v. Resh, 992 So. 2d 294 (Fla. 5th DCA 2008).
Smelley v. Inch (N.D. Fla. 2021).
Guevara-Vilca v. State, 189 So. 3d 815 (Fla. 2d DCA 2015).
— 921.0026(d) — 1 case
State v. Aguilar, 775 So. 2d 994 (Fla. 3d DCA 2000).
— 921.0026(e) — 1 case
Michael Love v. State of Florida (Fla. 4th DCA 2022).
— 921.0026(i) — 1 case
State v. Johnson, 193 So. 3d 32 (Fla. 3d DCA 2016).
— 921.0026(j) — 3 cases
State v. Henderson, 152 So. 3d 49 (Fla. 5th DCA 2014).
State v. Aguilar, 775 So. 2d 994 (Fla. 3d DCA 2000).
State v. Alginavon T. Cleveland, 185 So. 3d 1290 (Fla. 5th DCA 2016).
— 921.0026(l)(d) — 1 case
State v. McElroy, 145 So. 3d 866 (Fla. 2d DCA 2014).
— 921.0026(m) — 1 case
State v. Knight, 182 So. 3d 887 (Fla. 5th DCA 2016).
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