Criminal Defense, Downward Departure, Legal Blog, Recent News

Downward Departure and the Right to Jury Trial

In a good case out of the 5th DCA published last week, the appellate court reiterated the constitutional right to a trial by jury.

In the case (Little v. State), the defendant elected to go to trial and was ultimately found guilty. During the sentencing phase, the trial judge made it clear that he would not even consider a downward departure argument because it was his policy that when a jury finds a defendant guilty, he will not downward depart. The appellate court held that the judge’s policy was a violation of due process, reversed the sentence, and ordered that a resentencing be held before a different judge to make the determination as to whether a downward departure sentence is appropriate

For those unfamiliar with downward departure, Florida Statute 921.0026 allows the court to downward depart from the lowest permissible sentence calculated by the felony point system. There are a list of mitigating circumstances found within the statute that the sentencing judge may consider in determining whether to downward depart, such as:

  • the defendant was a relatively minor participant in the crime;
  • the defendant was too young, or the capacity of the defendant to appreciate his conduct and the law was impaired by something other than voluntary intoxication;
  • the defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and is amenable to treatment;
  • the defendant acted under extreme duress;
  • the defendant cooperated with the state;
  • the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse; or
  • the defendant should be sentenced as a youthful offender.

The full list can be found under Florida Statute 921.0026(2).


In the Little case, the trial court essentially punished the defendant for electing to exercise his constitutional right to a trial by jury, because it does not want to “disrespect” the jury. That is contrary to law, and the appellate court found that the judge committed fundamental error requiring reversal.

The right to trial by jury is a constitutional right stemming from the presumption that every person is innocent until proven guilty, and a defendant should not be punished for exercising his or her constitutional right.

Anyone who is facing criminal charges in Palm Beach County, Florida should contact a Palm Beach criminal defense attorney.


Casey Reiter is an associate attorney at Stuart R. Manoff & Associates, P.A. in West Palm Beach, Florida, practicing in the areas of Criminal Defense and Family law.

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