Skip to main content

Exit WCAG Theme

Switch to Non-ADA Website

Accessibility Options

Select Text Sizes

Select Text Color

Website Accessibility Information Close Options
Close Menu

What Are Considered “Mitigating Factors” In Florida Criminal Sentencing?


Every criminal offense in Florida carries a minimum permissible sentence. But a judge can take into account certain “mitigating circumstances” and impose a sentence beyond the statutory minimum. For example, if the defendant negotiates a plea bargain with the prosecution for a lower sentence, the court can accept that. Another common ground for granting a downward departure in sentencing is that the victim in the case “was an initiator, willing participant, aggressor, or provoker of the incident.”

Judge Rejects Minor’s “Consent” as a Leniency Factor in Sentencing Statutory Rape Defendant

When deciding whether to apply a downward departure, Florida courts must conduct a two-step first process. The first step is to determine whether a valid legal and factual basis exists for the departure–i.e., does it fall within any of the statutory mitigation factors listed. If this first step is satisfied, the trial judge must then decide if the case before them is appropriate for a downward departure.

This second step is an exercise of discretion. In other words, even if the defendant proves a mitigating factor was present, that does not require the judge to issue a below-minimum sentence. The judge always retains the discretion to hold a departure is not appropriate. An appellate court will typically not second-guess the judge’s exercise of discretion unless there is clear evidence of abuse.

A recent decision from the Florida Fifth District Court of Appeals, Watson v. State, provides an illustration. This was a statutory rape case. The defendant, who was 25 years old at the time, had a sexual relationship with his 15-year-old stepsister, which resulted in her pregnancy. Florida prosecutors subsequently charged the defendant with third-degree felony child abuse.

The defendant agreed to plead guilty. At sentencing, he argued for a downward departure based on the mitigating factor that the victim had “voluntarily engaged in the sexual relationship” and told the court she did not want the defendant to go to jail. The judge found this mitigating factor to be inadequate and proceeded to sentence the defendant to 81.15 months in jail, which was within Florida’s statutory guidelines.

On appeal, the defendant argued the trial court abused its discretion in refusing to consider the victim’s “consent.” The Fifth District disagreed and upheld the sentence. The appellate court did note that “while a minor’s consent is not a defense to crimes of a sexual nature, a trial court may impose a downward departure from the sentencing guidelines under such circumstances.” That is, nothing in the law prohibits taking a minor’s initiation of a sexual relationship with an adult into account when the latter is sentenced for statutory rape. But a judge is not required to do so. And in this case, the Fifth District said the trial court acted within the bounds of its discretion by denying the defendant’s “taking advantage of the victim’s consent was not appropriate under the circumstances.”

Contact Florida Criminal Defense Attorney Jose Baez Today

If you are facing any sex crimes charges it is important that you receive timely and accurate legal advice from a qualified Orlando criminal attorney. Contact the Baez Law Firm today to speak with a lawyer right away.


By submitting this form I acknowledge that form submissions via this website do not create an attorney-client relationship, and any information I send is not protected by attorney-client privilege.

DISCLAIMER: This website contains information about The Baez Law Firm that includes testimonial statements from persons who are familiar with the firm's services. The testimonials shown are not necessarily representative of every person's experience with us. Testimonials from every client are not provided. As no two situations or persons are identical, the facts and circumstances of your situation may differ from those for which testimonials are shown. This website also includes information about some of the past results that we have obtained for our clients. Not all results are provided, and the results shown are not necessarily representative of all results obtained by us. No two situation are exactly alike; every person's situation is unique and the outcome for each person depends on the individual facts.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

Skip footer and go back to main navigation