D’Arienzo Psychological Group offers independent psychological evaluations to assess clients for mitigating circumstances. Contact our office today at 904-379-8094 for consultation related to Mitigation Specialist Services related to Mitigation for Criminal Defense.
Even in situations where the defendant’s mental disorder does not meet the criteria for a not guilty by reason of insanity defense, the defendant’s state of mind at the time, as well as relevant past history of mental disorder and psychological abuse, can be used to attempt a mitigation of sentence. The forensic psychologist’s evaluation and report is an important element in presenting evidence for sentence mitigation. The Sixth Circuit Court of Appeals reversed the decision of a lower court because counsel did not thoroughly investigate the defendant’s mental history in preparation for the sentencing phase of the trial. Specifically, the court stated that such investigation should include members of the defendant’s immediate and extended family, medical history, and family and social history (including physical and mental abuse, domestic violence, exposure to traumatic events and criminal violence). This issue was further addressed in Wiggins v. Smith and Bigby v. Dretke.
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).
(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.