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Florida’s Criminal Punishment Code often produces harsh sentencing outcomes—especially in cases involving multiple counts and mandatory scoring on a sentencing scoresheet. But even when the guidelines are severe, trial courts still have lawful discretion to impose a downward departure sentence in appropriate cases.
A recent Florida appellate decision involving Winston Morgan (Morgan v State 2nd DCA) highlights an important point for defense attorneys, judges, and families navigating the sentencing process: an autism diagnosis—and the functional impairments associated with autism—can be a legitimate basis for a downward departure, and courts must actually consider it when properly presented.
Winston Morgan v. State
Winston Morgan pleaded no contest to:
- 40 counts of possession of child pornography, and
- 1 count of transmission of child pornography by electronic device
He did not challenge his convictions on appeal. His appeal focused only on the sentences imposed.
At sentencing, Morgan sought a downward departure of his sentence primarily based either youthful offender status or because of a mental health condition (here autism). Over two days of evidentiary hearing, Morgan presented unrebutted evidence about his autism diagnosis—particularly his social deficits and compulsive, repetitive, obsessive traits.
Despite that, the sentencing judge concluded that the only way to go below the guidelines was through youthful offender sentencing, and stated:
“Which leaves me with no alternative but to sentence [Mr. Morgan]… to 536.550 months.”
That sentence was the bottom of the guidelines under the Criminal Punishment Code scoresheet. The appellate court reversed.
Florida’s Two-Step Test for Downward Departure Sentencing (The “Banks” Framework)
Florida law requires trial courts to follow a structured analysis when deciding a motion for downward departure. The Florida Supreme Court explained this in Banks v. State, 732 So. 2d 1065 (Fla. 1999):
Step 1 -The judge must determine whether:
- there is a valid legal ground for departure, and
- there is adequate factual support for that ground
The defendant must prove the supporting facts by a preponderance of the evidence (more likely than not). This step involves both law and fact.
Step 2- If the legal ground exists and is supported by evidence, the judge must then decide whether a downward departure is the best sentencing option, considering the totality of the circumstances, including:
- mitigating factors
- aggravating factors
- the defendant’s history and characteristics
- the nature of the offense
- public safety considerations
This step is a discretionary “judgment call,” reviewed on appeal only for abuse of discretion.
What Went Wrong Here?
The appellate court found that Morgan did present evidence supporting a departure—specifically tied to autism-related limitations—and that evidence was unrebutted, but the trial judge mistakenly believed the only argument presented was youthful offender sentencing, and therefore believed the court had:
“no alternative” but to impose the guidelines sentence.
That belief was legally incorrect.
Autism as a Downward Departure Basis: The Court’s Message Was Clear
This case is important because the appellate court strongly emphasized that the defense evidence regarding Morgan’s autism diagnosis was not just “background information”—it was a potentially valid sentencing ground.
Morgan presented evidence of autism-related impairments including:
- social deficits, and
- compulsive, repetitive, obsessive features inherent in the diagnosis
A properly supported autism diagnosis—especially when it explains cognitive, behavioral, and social functioning limitations—can be a meaningful basis for downward departure arguments, whether through:
- statutory mitigating factors under § 921.0026(2), and/or
- non-enumerated mitigating circumstances under § 921.0026(1)
The Downward Departure Statute is Not Limited to the Listed Factors
One of the most important sentencing principles reinforced in the opinion is that Florida’s statutory list of mitigating factors is not exhaustive.
Section 921.0026(1) permits a downward departure when:
“there are circumstances or factors that reasonably justify the downward departure.”
And appellate courts have repeatedly confirmed that trial courts may depart for reasons not explicitly listed in § 921.0026(2), so long as the reason is supported by competent substantial evidence and is not prohibited by law.
That matters in mental health and neurodevelopmental cases, because autism-related mitigation may not always fit neatly into one checkbox—but can still be legally valid.
If you or a loved one is facing sentencing in Florida, especially in a case involving mental health or neurodevelopmental conditions, it is critical to work with a defense attorney who understands:
- how sentencing scoresheets work,
- how to build a downward departure record, and
- how to preserve errors for appeal when the court misapplies the law.
Why Retaining an Attorney Matters
Criminal Defense Lawyer Matt Landsman at Landsman Law helps people accused of crimes in Gainesville, Alachua County, Bradford County, Levy County, Gilchrist County, Marion and surrounding areas of north Florida. If you need help for yourself or a loved one, contact Criminal Defense Attorney Matt Landsman for a free consultation today. For help with any Criminal Matter from Board Certified Criminal Trial Lawyer Matt Landsman – CALL NOW
If you’re accused of any criminal matter, retaining an attorney is critical to protecting your rights. These cases will involve constitutional questions and concern allegations of misconduct or are sensitive in nature, requiring a skill, preparation and experience. For expert legal help, contact Gainesville Defense Lawyer Matt Landsman to protect your rights today.