How is a felony sentence calculated in Florida?

For a felony committed on or after October 1, 1998, other than a capital felony, Florida sentences under the Criminal Punishment Code (s. 921.002, Florida Statutes). The code does not set one fixed sentence. It produces a range: a floor, called the lowest permissible sentence, worked out on a scoresheet, and a ceiling, the statutory maximum for the degree of the crime. This page explains how the scoresheet is built, what can change it, and how a judge can go below it. Mr. Mead's practice areas are listed on our criminal defense page.

The maximums for each degree, from 60 days for a second-degree misdemeanor to 30 years for a first-degree felony, are in our chart of Florida's maximum penalties by degree. This page goes one step further, into the points.

How is a scoresheet prepared, step by step?

1. Each felony gets a level. The offense severity ranking chart in section 921.0022 assigns listed felonies to levels 1 through 10, from least to most severe, and the statute number and degree in the chart control. The counts that reach sentencing depend on what happened earlier in the case, including the routes discussed in can criminal charges be dropped before trial.
2. The State Attorney prepares the scoresheet. A single digitized scoresheet is prepared for each defendant covering every offense pending for sentencing, and it "must be presented to the defense counsel for review for accuracy in all cases unless the judge directs otherwise" (s. 921.0024(3)).
3. Points are added up. The primary offense, additional offenses, victim injury and prior record are scored, then legal status, community sanction violations and other items are added, and some offenses carry multipliers (s. 921.0024(1)).
4. The floor is calculated. At 44 points or fewer, the lowest permissible sentence is any nonstate prison sanction unless the court decides prison is appropriate; above 44, subtract 28 and reduce the rest by 25 percent to get the minimum months in prison (s. 921.0024(2)).
5. The judge sentences within the range, or departs. The court may impose up to the statutory maximum, and may go below the floor only for reasons that "reasonably justify the mitigation," stated in writing (s. 921.002(1)(f), (g), (3)).
6. The judge signs the scoresheet. The scoresheet "must be approved and signed by the sentencing judge," and the clerk sends a digitized copy to the Department of Corrections (s. 921.0024(3), (6)).

How many points does each level score?

The chart ranks each felony by statute and subsection, so similar-sounding charges can land at different levels. Lewd or lascivious conduct by an offender 18 or older ranks at level 6 (s. 800.04(6)(b)), as discussed on our lewd and lascivious conduct page. The sexual battery offenses listed in section 794.011(5) rank at level 8, and our sexual assault and battery page covers those charges. Using a computer to facilitate sexual conduct with a minor ranks at level 6 under section 847.0135(2), as our internet crimes page explains. Abuse of a child under section 827.03(2)(c) ranks at level 6 and aggravated child abuse at level 9, discussed on our child abuse and neglect page. Living on the earnings of a prostitute ranks at level 5 for a first offense and level 7 for a later one (s. 796.05(1)), and related charges are on our prostitution defense page.

What else adds points?

Certain offenses then multiply the subtotal. Examples in the statute include drug trafficking at level 7 or 8 (times 1.5, at the court's discretion), offenses against specified justice system personnel (times 1.5 to 2.5), and a crime of domestic violence committed in the presence of a related child under 16 (times 1.5) (s. 921.0024(1)(b)). How Mr. Mead approaches drug cases, including trafficking charges, is on our drug offenses page. The trafficking weights and their mandatory minimums are listed in how much of a drug makes it trafficking.

What changes the answer?

• Minimum mandatory terms. Some statutes set a floor of their own. For example, a person convicted of possession of a firearm by a felon who actually possessed the firearm must serve at least 3 years (s. 775.087(2)(a)1.), explained on our page about a convicted felon found with a gun. When a minimum mandatory exceeds the scoresheet range, the minimum controls (s. 775.087(2)(c)).
• A floor above the maximum. If the lowest permissible sentence exceeds the statutory maximum, "the sentence required by the code must be imposed" (s. 921.0024(2)).
• Very high totals. At 363 points or more, the court may impose life imprisonment (s. 921.0024(2)).
• Low-level third-degree felonies. For a third-degree felony that is not a forcible felony, with 22 points or fewer, the court must impose a nonstate prison sanction unless it finds in writing that this could present a danger to the public (s. 775.082(10)), as our penalties chart page explains.
• Different versions of the code. Felonies committed under different versions are each sentenced under the version in effect when committed, on separate scoresheets (ss. 921.002(2), 921.0024(3)).
• Which priors count. Out-of-state, federal, military and foreign convictions are part of the prior record, but convictions for offenses more than 10 years before the new offense drop off if the person went 10 consecutive years without a conviction after the most recent release from confinement, supervision or sanction (s. 921.0021(5)).
• Probation status. Being on supervision or in a diversion program, or having fled prosecution or failed to appear, when the new offense happened adds legal status points (s. 921.0021(3)), and a violation adds community sanction points; violations are discussed on our probation violation page.

When can a judge go below the scoresheet?

A downward departure "is prohibited unless there are circumstances or factors that reasonably justify the downward departure" (s. 921.0026(1)). The facts supporting it must be shown by a preponderance of the evidence, and the judge must explain it in writing (s. 921.002(3)). Section 921.0026(2) lists mitigating circumstances, among them:

• a legitimate, uncoerced plea bargain;
• a relatively minor role as an accomplice;
• substantially impaired capacity to appreciate the criminal nature of the conduct;
• a need for specialized treatment for a mental disorder unrelated to substance abuse, or a physical disability, with amenability to treatment;
• restitution to the victim outweighing the need for prison;
• a victim who was an initiator, willing participant, aggressor or provoker;
• extreme duress or domination by another person;
• cooperation with the State;
• an unsophisticated, isolated offense for which the defendant has shown remorse;
• youth, or youthful offender sentencing;
• for a nonviolent felony scoring 60 points or fewer, suitability for a treatment-based drug court program.

Substance abuse or intoxication at the time of the offense is not a mitigating factor, except through the drug court provision (s. 921.0026(3)). That rule matters in crash cases such as those described in DUI manslaughter in Florida.

A worked example

For example, consider two hypothetical defendants. The first is sentenced for one level 5 felony, with one additional level 4 offense and two prior level 3 felonies, and was on probation for another case at the time. The worksheet adds 28 + 3.6 + 3.2 + 4, for 38.8 points. That is under 44, so the lowest permissible sentence is a nonstate prison sanction, such as probation or county jail, unless the judge finds prison appropriate, and the ceiling is the maximum for the offenses. The second defendant has the same history but the primary offense is level 7, such as DUI with serious bodily injury, discussed in what happens when a DUI involves a crash. That case scores 56 + 3.6 + 3.2 + 4 = 66.8 points; 66.8 minus 28 is 38.8, and reducing that by 25 percent gives about 29 months as the floor, before any victim injury points. Both examples are simplified illustrations of the statute's arithmetic, not predictions.

How much of a prison sentence is actually served?

The Criminal Punishment Code says the sentence reflects the time to be served, shortened only by incentive and meritorious gain-time, and may not be shortened below 85 percent of the term (s. 921.002(1)(e)). Parole does not apply to sentences under the code.

Common mistakes people make

• Focusing only on the maximum, when the scoresheet floor often decides whether prison is required.
• Not checking the scoresheet for errors, such as an offense scored at the wrong level or an old record counted twice.
• Overlooking legal status points from being on probation or pretrial release.
• Assuming intoxication will lower a sentence, which the statute rules out as a mitigator.
• Forgetting that a minimum mandatory term can override the whole calculation.
• Waiting until sentencing to gather proof of mitigating circumstances such as treatment needs or restitution.

What to do this week

1. Get a copy of the charging document and note the statute and degree for each count.
2. List every prior case, in any court, with its date and how it ended.
3. Note whether you were on probation, pretrial release or another supervision when the new offense was alleged.
4. Start collecting records that could support mitigation: treatment, employment, family responsibilities and restitution ability.
5. Ask your lawyer to walk you through a draft scoresheet before any plea discussion.

Frequently asked questions

Who fills out the scoresheet?

The State Attorney prepares it, defense counsel reviews it for accuracy unless the judge directs otherwise, and the sentencing judge approves and signs it (s. 921.0024(3)).

Can a plea bargain lead to a sentence below the scoresheet?

Yes. A "legitimate, uncoerced plea bargain" is the first mitigating circumstance listed in section 921.0026(2). The judge must still state the reason in writing.

Can I appeal a sentence that is within the range?

Section 921.002(1)(h) says a sentence may be appealed on the ground that it departs from the code only if it is below the lowest permissible sentence or as listed in section 924.06(1). Other appeal grounds are outside the scope of this page.

Do misdemeanors count on a felony scoresheet?

Yes, as additional or prior offenses, at 0.2 points each under the worksheet. A misdemeanor is not scored as the primary offense.

Does a withhold of adjudication avoid the scoresheet?

No. A withhold is a different decision about adjudication, and the scoresheet still sets the sentencing range. When a withhold is possible is explained on our page about withhold of adjudication in Florida.

What if the floor is higher than the maximum?

Then the code's sentence must be imposed even though it exceeds the statutory maximum (s. 921.0024(2)).

How can Mr. Mead help?

In a felony case, the scoresheet is often the most important document after the charging papers. Mr. Mead reviews how each count and prior is scored, looks for errors and mitigating circumstances, and explains the realistic range before any decision is made. Every case is different, and no outcome can be promised. For a confidential conversation, call (561) 362-6677, 24 hours a day.

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