DOWNWARD DEPARTURE WHAT IS IT? HOW IS IT APPLIED?

You have been arrested for a felony crime, which is not a capital felony (i.e. murder). You have had your day in court and have been found guilty. Now its time for you to be sentenced. What happens now?

 

The prosecutor may recommend a prison sentence and ask the Judge to order the recommended sentence. This recommendation is based in large part on how the offense committed scored.

 

Prior to your arraignment date the prosecutor has filled out what is called a score sheet. A copy of the score sheet is typically provided to your defense attorney during the discovery phase. The score sheet is a formula that prosecutors and the courts use to determine the minimum sentence the defendant must serve if found guilty of the crime charged with.

 

To understand the score sheet would require an additional blog, however, the mathematical formula used takes into account, among other variables, the crime or crimes charged, the defendants past criminal history, (i.e. past convictions), whether there were any physical injuries to the victims, and whether the defendant was on probation at the time of the crime among other details. Each entry is assigned a point value which through a mathematical equation concludes with the minimum amount of time the defendant must serve if found guilty.

 

If your score sheet requires a minimum mandatory prison sentence your defense counsel may request a downward departure hearing prior to sentencing if applicable. In essence, this means the defense attorney is requesting that the Judge sentence the convicted defendant to less time than the minimum required by the score sheet score.

 

During the downward departure hearing the defense attorney may present to the court what are called mitigating circumstances which the court can take into consideration when determining if the defendant qualifies for a downward departure.

 

A downward departure from the lowest permissible sentence, as calculated according to the total sentence points 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:

 

  • The departure results from a legitimate, uncoerced plea bargain.
  • The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.
  • 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.
  • 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.
  • The need for payment of restitution to the victim outweighs the need for a prison sentence.
  • The victim was an initiator, willing participant, aggressor, or provoker of the incident.
  • The defendant acted under extreme duress or under the domination of another person.
  • Before the identity of the defendant was determined, the victim was substantially compensated.
  • The defendant cooperated with the state to resolve the current offense or any other offense.
  • The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.
  • At the time of the offense the defendant was too young to appreciate the consequences of the offense.
  • The defendant is to be sentenced as a youthful offender.
  • The defendant’s offense is a nonviolent felony, the defendant’s Criminal Punishment Code score sheet total sentence points are 60 points or fewer, and the court determines that the defendant is amenable to the services of a post adjudicatory treatment-based drug court program and is otherwise qualified to participate in the program as part of the sentence.
  • The defendant was making a good faith effort to obtain or provide medical assistance for an individual experiencing a drug-related overdose.

 

The defendant’s substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor and does not, under any circumstances, justify a downward departure from the permissible sentencing range.

 

The imposition of a sentence below the lowest permissible sentence is subject to appellate review, but the extent of downward departure is not subject to appellate review.

 

If you have been charged with a felony offense you may wish to consult with an attorney before going to court to further understand the possible outcome in your case.

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