Aggravated battery cases are often decided by the medical records long before a jury is picked. Whether an injury counts as “great bodily harm” or ordinary bodily harm can separate a misdemeanor from a 15-year felony. I am Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I learned to read injury evidence in the Major Crimes Unit and have tried more than 150 jury trials to verdict. Our attorneys build every battery defense the same way: get the medical records, the video, and the 911 calls early, then measure them against each element the State has to prove.

What is the difference between battery and aggravated battery in Florida?

Battery is an unwanted touch or strike, and aggravated battery is a battery that causes serious injury, involves a deadly weapon, or targets a pregnant victim. Under section 784.03, Florida Statutes, a person commits battery by actually and intentionally touching or striking someone against their will, or by intentionally causing bodily harm. No injury is required for simple battery. A shove, a slap, or a grab can be enough.

Between simple battery and aggravated battery sits felony battery. Under section 784.041, felony battery is an intentional touch or strike that causes great bodily harm, permanent disability, or permanent disfigurement. The same section also covers domestic battery by strangulation. Battery between family or household members is prosecuted as domestic violence, which our firm covers on our domestic violence defense page and in our post on how to fight a domestic violence battery charge in Florida. Battery also differs from assault, which is a threat without contact, as explained in what is assault in Florida.

Our attorneys defend every level of this ladder, from a misdemeanor bar-fight battery to aggravated battery with a firearm. More about that work is on our Tampa violent crime lawyer page.

Maximum prison terms come from section 775.082 and maximum fines from section 775.083. For the prior-conviction felony, Florida counts a plea or verdict of guilt as a “conviction” even when the judge withheld adjudication.

What does the State have to prove for aggravated battery in Florida?

The State must prove a battery plus one aggravating fact. Section 784.045 lists three ways to commit aggravated battery:

1. Great bodily harm. In committing the battery, the accused intentionally or knowingly caused great bodily harm, permanent disability, or permanent disfigurement.
2. Deadly weapon. In committing the battery, the accused used a deadly weapon.
3. Pregnant victim. The person struck was pregnant, and the accused knew or should have known it.

The first path requires more than a serious injury. The State must prove the accused meant to cause that level of harm or knew it would result. In T.S. v. State, 965 So. 2d 1288 (Fla. 2d DCA 2007), a juvenile dishwasher punched a co-worker once after she threw iced tea in his face, fracturing her eye socket. The Second District held that the punch was a quick, almost reflexive reaction, so the evidence did not prove the specific intent aggravated battery requires, and it ordered the charge reduced to felony battery. Hillsborough, Pinellas, and Pasco County appeals go to the Second District Court of Appeal, so its decisions on these elements carry particular weight in local courtrooms. Our attorneys build the intent argument from the first interview, because the facts that show a reflexive reaction fade quickly from witnesses’ memories.

How does a firearm change an aggravated battery charge?

A firearm can raise the degree of the charge and trigger Florida’s 10-20-Life mandatory minimums. Section 775.087 does two separate things.

First, subsection (1) reclassifies a felony one degree higher when the accused carried, displayed, used, or threatened to use a weapon or firearm. A second-degree felony becomes a first-degree felony punishable by up to 30 years. The statute excludes felonies in which use of a weapon or firearm is an essential element, so whether reclassification applies depends on which form of aggravated battery the State charges.

Second, subsection (2) lists aggravated battery as a 10-20-Life offense. On conviction, the minimum prison terms are:

• 10 years if the accused actually possessed a firearm during the battery.
• 20 years if the accused discharged the firearm.
• 25 years to life if the discharge caused death or great bodily harm.

These minimums apply whether or not weapon use is an element of the charge. Our post on Florida’s 10-20-Life law covers how “actual possession” is litigated. In a firearm case, our attorneys focus first on whether the State can prove actual possession and discharge, because those facts set the floor before any other sentencing argument begins.

What happens if the alleged victim is a police officer?

Battery on a law enforcement officer is a felony even without injury. Under section 784.07, a knowing battery on an officer engaged in official duties is reclassified from a first-degree misdemeanor to a third-degree felony. The same section covers firefighters, emergency medical care providers, hospital personnel, and other listed workers.

Aggravated battery on an officer becomes a first-degree felony with a 5-year mandatory minimum prison sentence. A battery on an officer committed while possessing a firearm carries a 3-year minimum. These cases often turn on whether the accused knew the person was an officer and whether the officer was performing official duties, and body camera footage usually answers both questions. In one case our firm resolved a three-year-old warrant for battery on a law enforcement officer as a misdemeanor with credit for time served.

How much prison does an aggravated battery conviction score in Florida?

A first aggravated battery conviction with no prior record scores at least 21 months in state prison under Florida’s Criminal Punishment Code, and the number rises with every level of injury. The offense severity ranking chart in section 921.0022 places aggravated battery causing great bodily harm and aggravated battery with a deadly weapon at Level 7. Under section 921.0024, a Level 7 primary offense scores 56 points, and victim injury adds 4 points for slight injury, 18 for moderate injury, and 40 for severe injury.

When total points exceed 44, the lowest permissible sentence is calculated by subtracting 28 and multiplying by 75 percent. At 44 points or fewer, the judge may impose a sentence without state prison. The table shows how the injury finding moves the number, assuming no prior record and no other charges.

Our attorneys run this scoresheet math early in every felony battery case, because it shows the client what each argument is worth. Two lessons follow from this math. First, the dispute over how badly someone was hurt matters at sentencing even when it does not change the charge. Second, reducing aggravated battery to misdemeanor battery removes the felony scoresheet entirely. A judge can sentence below the lowest permissible sentence only through a downward departure, which requires a legal reason supported by evidence.

How do our attorneys fight a battery or aggravated battery charge?

Our attorneys fight these charges by attacking the specific element that makes the case a felony, while preserving self-defense as a complete defense. The approaches below are the ones we use most often in Hillsborough, Pinellas, and Pasco County courtrooms.

1. Raise self-defense and Stand Your Ground immunity

Self-defense is a complete defense to battery and aggravated battery in Florida. Under section 776.012, a person may use force they reasonably believe is necessary to defend against another’s imminent use of unlawful force, and may use deadly force to prevent imminent death or great bodily harm. A person using deadly force who is not engaged in criminal activity and is in a place they have a right to be has no duty to retreat.

Section 776.032 goes further and makes justified force immune from arrest, charging, and prosecution. Our attorneys raise immunity by a pretrial motion to dismiss. Once the defense presents a prima facie claim at the immunity hearing, the State must overcome it by clear and convincing evidence. If the judge grants immunity, the case ends without a trial. The immunity does not apply when the person struck was a law enforcement officer performing official duties who identified themselves or was reasonably known to be an officer. Our posts on how to claim self-defense in a Florida criminal case and Stand Your Ground vs. self-defense in Florida explain the hearing in detail.

2. Challenge the “deadly weapon” label

An everyday object is a deadly weapon only if it was used in a way likely to cause death or great bodily harm. In C.A.C. v. State, 771 So. 2d 1261 (Fla. 2d DCA 2000), a 10-year-old stabbed another child two or three times in the back with the fork he had been using to eat watermelon. The victim had scratches, swelling, and puncture marks but needed no medical treatment. The Second District held that a fork used in its ordinary manner is not likely to cause death or great bodily harm, found no proof of a deadly weapon, and reduced the charge to simple battery.

Arrest reports sometimes label a bottle, a phone, a shoe, or a vehicle a “deadly weapon.” Our attorneys hold the State to proof of how the object was actually used and what injury it actually caused.

3. Test the medical evidence on great bodily harm

Great bodily harm means serious injury, more than the bruises and minor cuts that come with an ordinary fight. In Owens v. State, 289 So. 2d 472 (Fla. 2d DCA 1974), the Second District quoted the definition Florida courts still use: great bodily harm is “great as distinguished from slight, trivial, minor, or moderate harm” and does not include “mere bruises.” The victim in that case had a broken nose and one eye swollen shut, and the court held that whether those injuries qualified was a question of fact for the jury.

Because the question is factual, the medical records decide it. The State’s evidence in C.A.C. v. State, 771 So. 2d 1261 (Fla. 2d DCA 2000) failed partly because the injured child never needed treatment. Our attorneys subpoena the emergency room chart, imaging, discharge instructions, and follow-up records. When the chart shows a patient treated and released with no fracture, no surgery, and no lasting effect, that is evidence against great bodily harm, and our firm uses it in negotiations and at trial. When the medicine is disputed, we consult independent physicians through our forensic expert network.

4. Attack intent and show accident

Aggravated battery by great bodily harm is a specific intent crime, so an accidental or reflexive injury is not enough. T.S. v. State, 965 So. 2d 1288 (Fla. 2d DCA 2007) shows the difference: a single reflexive punch that broke an eye socket was felony battery, not aggravated battery, because nothing showed the young man intended or knew he would cause that injury.

Intent also matters at the battery level. A person who falls into someone, swings an arm while pulling away, or is pushed into contact has not “intentionally” touched anyone. Our attorneys reconstruct the seconds before contact with video, witness interviews, and the physical layout of the scene.

5. Contest identity in chaotic scenes

Fights in bars, parking lots, and crowds produce unreliable identifications. A 2014 report by the National Research Council of the National Academies, Identifying the Culprit: Assessing Eyewitness Identification, found that duress, elevated emotions, brief viewing, and the presence of a gun or knife all reduce an eyewitness’s ability to perceive a face accurately. The report also found that a witness’s confidence can shift over time and recommended recording it at the first identification.

Our attorneys use that research to challenge show-up identifications and photo lineups, and we look for video that settles the question. In one case our firm resolved, a frame-by-frame review of video showed the other person was the aggressor, and the State entered a nolle prosequi, the formal decision to drop the charge.

6. Work the case before charges are filed

The State Attorney’s Office decides what to file after the arrest, and that window is the best time to keep an aggravated battery from becoming a formal felony charge. In Hillsborough County, an arrest goes to an intake prosecutor who reviews the report and decides the charge. Our attorneys present that prosecutor with witness statements, video, medical records, and background on our client before the filing decision. Through representation before charges are filed, our firm obtained a release letter with no charges filed in an aggravated assault case after presenting the alleged victim’s signed affidavit to the intake prosecutor.

What should you do, and avoid, after a battery arrest in Florida?

Your conduct in the first days after a battery arrest can strengthen or damage every defense above. Our attorneys give every new client these instructions:

• Do not discuss the incident with police, the alleged victim, friends, or on social media. Jail calls are recorded.
• Obey every no-contact condition. Contact with the alleged victim can lead to a new charge and revocation of bond.
• Write down names of every witness and every business, home, or vehicle with a camera that may have recorded the incident. Many systems record over old footage automatically.
• Photograph your own injuries and get medical care. Injuries to the accused are often the strongest self-defense evidence.
• Call a defense attorney before first appearance if you can, so someone can argue bond conditions for you.

What happens after an aggravated battery arrest in Hillsborough County?

An aggravated battery arrest in Hillsborough County moves to first appearance within 24 hours, then to the State’s filing decision. In Hillsborough County the arrested person appears by video from the jail, while a judge downtown reviews probable cause and sets release conditions. Hillsborough County does not offer pretrial services supervision as a release option, though some neighboring counties do, so the judge chooses among a monetary bond, release on recognizance, or continued detention, usually with conditions such as no contact with the alleged victim. Our guide on what to do after being arrested in Tampa covers the first 48 hours step by step.

Hillsborough County arrests people for violent crimes at a higher rate than Florida as a whole. Florida Health CHARTS’ 2024 violent crime indicator, built from Florida Department of Law Enforcement arrest records, counts 2,652 violent crime arrest events in Hillsborough County, a rate of 168.6 per 100,000 residents compared with 145.7 for Florida as a whole. That category covers murder, rape, robbery, and aggravated assault.

After first appearance, the State Attorney’s Office decides whether to file a formal charge, called an information, and at what level. If you remain in jail and no charge is filed within 21 days, Florida’s rules let the defense demand an adversary preliminary hearing, where the State must establish probable cause with live testimony. Our firm’s office at 620 E. Twiggs Street is two blocks from the Hillsborough County Courthouse, and our attorneys practice in the 13th Judicial Circuit. More about local procedure is on our Hillsborough County criminal defense page.

What should you look for in a defense attorney for an aggravated battery charge in Hillsborough County?

Look for an attorney who tries violent felony cases to verdict, knows the local judges and prosecutors, and will get the evidence before it disappears. Prosecutors make their best offers in aggravated battery cases when they believe the defense is ready for trial.

Our firm’s practice is devoted entirely to criminal defense, from misdemeanors to capital cases. I have tried more than 150 jury trials to verdict over more than 25 years in Hillsborough County courtrooms. I served as Chief Operations Officer of the Hillsborough County Public Defender’s Office, overseeing a staff of over 100 attorneys, worked in the Major Crimes Unit, and taught at the police academy, which taught me how officers are trained to write reports and testify. I hold an AV Preeminent rating, have been selected for Super Lawyers, and have been named to the National Trial Lawyers Top 100. I also wrote “How to Choose a Major Crimes Attorney – or Any Criminal Defense Attorney for That Matter” for people facing exactly this decision.

We defend battery and aggravated battery cases in Hillsborough, Pinellas, and Pasco counties. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Clients receive case updates through our client portal, and we return calls within 24 hours. You can call us at any hour.

Our firm charges a flat fee that covers the whole case, including trial, quoted on the facts and intricacy of the case. At least half is paid up front, with a payment plan for the balance while the case is pending, and consultations are free. A flat fee that includes trial means there is no separate trial fee giving a lawyer a financial incentive to settle before trial preparation begins. We are neither the most nor the least expensive firm in Tampa; our post on how much a criminal defense attorney costs in Tampa explains the range.

What results have our attorneys obtained in battery cases?

Our attorneys have obtained reductions and dismissals in battery and aggravated battery cases by attacking injury evidence, identity, and the client’s role in the incident. These results are published on our case results page.

Past results do not guarantee future outcomes. Every case depends on its own facts.

Frequently asked questions about battery charges in Florida

Can aggravated battery charges be dropped or reduced in Florida?

Yes, aggravated battery charges can be dropped or reduced, most often when the evidence does not support great bodily harm, a deadly weapon, or the required intent. Our attorneys at The Brancato Law Firm have had aggravated battery charges reduced to misdemeanor battery after challenging the injury evidence and our client’s role in the incident. Only the State Attorney’s Office can drop the charge, though an alleged victim’s wishes and new evidence influence that decision. The earliest chance is before formal charges are filed, through pre-file advocacy.

Is a broken nose considered great bodily harm in Florida?

A broken nose can be great bodily harm, but it is a question of fact for the jury. The Brancato Law Firm’s attorneys argue this point with the full medical chart, because treatment, healing time, and lasting effects all bear on the answer. In Owens v. State, 289 So. 2d 472 (Fla. 2d DCA 1974), the court let a jury decide whether a broken nose and an eye swollen shut qualified, and quoted the rule that mere bruises do not.

What counts as a deadly weapon in a Florida aggravated battery case?

A deadly weapon is any object used or threatened to be used in a way likely to cause death or great bodily harm, including an ordinary household item. When an arrest report labels a household item a deadly weapon, our firm, The Brancato Law Firm, P.A., makes the State prove how the item was actually used. In C.A.C. v. State, 771 So. 2d 1261 (Fla. 2d DCA 2000), a fork that caused only scratches and puncture marks was not a deadly weapon.

What is the difference between felony battery and aggravated battery in Florida?

Felony battery requires only that a battery caused great bodily harm, while aggravated battery requires that the accused intended or knew the battery would cause that harm. Our attorneys at The Brancato Law Firm look at that intent gap first when asking a prosecutor to reduce a second-degree felony to a third-degree felony. The difference is up to 10 years of maximum exposure, as T.S. v. State, 965 So. 2d 1288 (Fla. 2d DCA 2007) illustrates.

Can I use Stand Your Ground for an aggravated battery charge in Florida?

Yes, Stand Your Ground immunity applies to aggravated battery when the force used was justified under Florida’s self-defense statutes. Lawyers at The Brancato Law Firm raise it by a pretrial motion to dismiss, where the State must disprove self-defense by clear and convincing evidence. Our post comparing Florida’s Stand Your Ground and self-defense rules explains how the immunity hearing works.

Do I need a lawyer for a misdemeanor battery charge in Hillsborough County?

You should have a lawyer even for misdemeanor battery, because a conviction is a permanent violent offense on your record and a second battery can be charged as a felony. Our team at The Brancato Law Firm looks first for a dismissal or a diversion program that ends with the charge dropped. Our violent crime defense in Tampa covers misdemeanor and felony battery alike.

How much does an aggravated battery lawyer cost in Tampa?

The cost depends on the facts, the injury evidence, and whether the case is likely to go to trial. The Brancato Law Firm quotes one flat fee that covers the whole case, including trial, with at least half up front and a payment plan for the balance while the case is pending. Our guide to criminal defense attorney costs in Tampa explains what drives the fee.

For more about our defense strategies, visit our Violent Crimes page.

Before the State files formal charges, our attorneys can still shape what the case becomes: we secure the video, the medical records, and the witness accounts, then put them in front of the prosecutor while the filing decision is open. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159 for a free consultation. Surveillance video can be recorded over quickly after an arrest, so call us at any hour.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If detectives took a phone or laptop from your home, the number of files on it will drive the sentencing exposure more than almost any other fact. I learned how these cases are built in the Major Crimes Unit, and as founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, I have tried more than 150 jury trials to verdict. Our attorneys attack the count, the reclassification, and the scoresheet before any plea offer is discussed, because each of those numbers can move.

What are Florida’s child pornography penalties after July 1, 2026?

Florida’s child pornography penalties rose on July 1, 2026. CS/CS/HB 1159, signed March 31, 2026 as Chapter 2026-20, Laws of Florida, renamed “child pornography” as “child sexual abuse material” (CSAM) throughout the statutes and made these changes, according to the House Criminal Justice Subcommittee analysis:

The age change matters most. Because the content trigger rose from a child under 5 to a child under 12, far more collections now meet the reclassification test. The law in effect on the date of the offense generally controls the sentence, so the date files were downloaded or viewed can decide which version of the statute applies. Our attorneys examine the forensic timeline for that reason.

How does Florida count child pornography charges?

Florida counts each image as a separate crime. Section 827.071(5) states that possessing, controlling, or intentionally viewing each photograph, video, image, or data file is a separate offense, and if one image shows more than one child, each child in that image is a separate offense. A single device can produce dozens or hundreds of felony counts. Our Tampa internet crimes attorney page explains how these investigations usually begin.

The Second District Court of Appeal, whose decisions bind Hillsborough, Pinellas, and Pasco courts, showed how far this goes in Walsh v. State, 198 So. 3d 783 (Fla. 2d DCA 2016). Officers found more than 3,000 images on a Sarasota County man’s home computer. The State selected 170 images, sorted them into groups of ten with each group containing an image of sexual battery on a child, and charged one reclassified count per group. He entered an open plea to 17 second-degree counts and received a total of 63.5 years in prison.

On appeal, Walsh argued that all the images from one episode should be one offense. The court disagreed. Because the statute makes each image a separate offense, the State could have charged all 170 images as separate counts, and section 775.0847 does not limit the State’s charging discretion. The lesson is that the prosecutor, not the device, decides how many counts appear on the information. That is why early defense work on the charging decision matters.

What triggers the section 775.0847 enhancement?

Section 775.0847 reclassifies a child pornography offense one degree higher when two conditions are both met. The enhancement applies to violations of sections 827.071, 847.0135, 847.0137, and 847.0138.

Reclassification is a fact the State must prove. In Jenrette-Smith v. State, 114 So. 3d 427 (Fla. 2d DCA 2013), a man who identified himself only as “James” handed an envelope of photographs to a Tampa police officer, which led to charges against the defendant on 14 counts of promoting a sexual performance by a child, one per photograph. The jury found he possessed 10 or more images, at least one depicting sexual battery, and all 14 counts were reclassified to first-degree felonies. The majority affirmed, relying on evidence that he possessed the camera, the film, and the developed prints. A dissenting judge argued that the enhancement depends on possessing 10 images when each offense is committed, so no more than four of the counts could be reclassified.

The dissent did not carry the day, but the question it raised remains a live defense issue: when each file arrived on the device, and whether the State can prove possession of 10 images at that time. Our attorneys work with independent forensic examiners on file dates, download paths, and whether files were ever opened.

How is a child pornography case scored on the Florida scoresheet?

Florida sentences felonies with a Criminal Punishment Code scoresheet. Under the 2026 offense severity chart in section 921.0022, possession under section 827.071(5) is a Level 6 offense and possession with intent to promote under section 827.071(4) is Level 7. A reclassified offense moves up one level. Under section 921.0024, the primary offense earns 36 points at Level 6 and 56 at Level 7, and each additional count earns 18 points at Level 6 and 28 at Level 7. When the total exceeds 44 points, the lowest permissible prison sentence in months is the total minus 28, multiplied by 0.75.

Here is how that math plays out for a person with no prior record and no other points. These examples are simplified; real scoresheets include prior record, legal status, and other factors.

The gap between those rows is the reclassification fight. Every count the defense removes, and every count that is not reclassified, lowers the floor. A judge can sentence anywhere from the lowest permissible sentence up to the statutory maximum for every count, served concurrently or consecutively.

How often do Florida possession cases end in prison?

Most Florida possession convictions end in prison. In fiscal year 2024-25, Florida Department of Corrections data showed 316 new prison commitments and 134 supervision sentences for knowingly soliciting, possessing, controlling, or intentionally viewing child pornography, according to the Florida Legislature’s Office of Economic and Demographic Research Criminal Justice Impact Conference review of SB 1750 (2026). The same review reported 654 new prison commitments in FY 2024-25 under statutes potentially subject to section 775.0847 reclassification.

The review also shows why the July 2026 change matters. It reported a 26 percent incarceration rate for Level 6 third-degree felonies and 39.7 percent for Level 6 second-degree felonies. Possession moved from the first group to the second.

Can a child pornography sentence go below the scoresheet?

Yes. A Florida judge may impose a downward departure below the lowest permissible sentence when the defense proves a legal reason under section 921.0026. Two reasons come up often in these cases: the defendant requires specialized treatment for a mental disorder unrelated to substance abuse and is amenable to treatment, and the offense was committed in an unsophisticated manner, was an isolated incident, and the defendant has shown remorse. Substance abuse or intoxication alone is not a valid reason.

Departure arguments rest on evidence about risk. A U.S. Department of Justice SMART Office research brief, Internet-Facilitated Sexual Offending (2015), summarizes a review by Michael Seto and colleagues of nine samples totaling 2,630 internet offenders followed for slightly more than three years: 4.6 percent committed a new sexual offense, 2 percent a contact sexual offense, and 3.4 percent a new child pornography offense. Our attorneys pair research like this with a psychosexual evaluation from a qualified expert, treatment records, and family testimony.

Mandatory minimums have a narrow exception. Under section 827.071(7), a court is not required to impose a mandatory minimum under that section if it finds in writing that the depicted child was 14 or older, the image was created with the child’s permission, the offender was not more than 4 years older, and the offender did not share it with anyone else. This exception fits teen sexting cases.

What other consequences follow a conviction?

A conviction for possessing or promoting child sexual abuse material in Florida requires registration as a sexual offender, which carries reporting duties, residence limits, and public listing. Many cases also bring sex offender probation conditions, limits on internet use, and immigration consequences for noncitizens. Our post on whether a withhold of adjudication avoids the sex offender registry explains why a withhold does not solve the registration problem.

For a full look at defenses, including search warrant challenges like the one in our post on Florida’s 10-day search warrant rule, see our guide to defending CSAM charges in Florida.

What should you do if you are under investigation?

Call a lawyer before you talk to detectives or consent to a device search. Many cases begin with a tip to law enforcement and a search warrant, and the charging decision, including how many images to file and whether to seek reclassification, is made after the forensic report. That window is when our pre-file advocacy can affect the number of counts.

1. Do not discuss the case with officers, family, or coworkers.
2. Do not delete files or reset devices. Destroying evidence is a separate crime.
3. Do not consent to searches of other devices or accounts.
4. Write down when officers arrived, what they took, and what they said.
5. Contact a defense attorney the same day.

Frequently asked questions about child pornography penalties in Florida

Is possession of child pornography a felony in Florida in 2026?

Yes. For offenses on or after July 1, 2026, each image is a separate second-degree felony punishable by up to 15 years in prison under section 827.071(5). The Brancato Law Firm reviews the offense dates in the forensic report to determine whether the older third-degree version applies.

Is there a mandatory minimum sentence for possessing child pornography in Florida?

Section 827.071(5) does not set a mandatory minimum for simple possession, but with 10 counts and no prior record the scoresheet floor is about 10.6 years in prison. Our attorneys at The Brancato Law Firm calculate the scoresheet at the start of the case so clients understand the real floor and the departure options.

Can prosecutors charge every image as a separate count?

Yes. Florida law makes each image, and each child in each image, a separate offense, and the Second District held in Walsh that reclassification does not limit how many counts the State may file. The Brancato Law Firm challenges duplicate files, unopened files, and images that do not meet the legal definition before the information is filed or amended.

Does the July 2026 law apply to a case from before July 1, 2026?

The law in effect on the date of the offense generally controls the penalty, so files possessed only before July 1, 2026 are usually scored under the older third-degree statute. Our attorneys at The Brancato Law Firm press the State to prove when each file was possessed, since that date can cut the maximum by two-thirds.

What is the difference between possession and possession with intent to promote?

Possession with intent to promote under section 827.071(4) is a second-degree Level 7 offense, and possessing three or more copies of an image is prima facie evidence of intent to promote. The Brancato Law Firm contests the intent element when file copies come from automatic backups or sync software rather than sharing; learn more on our internet crimes defense page.

Can a child pornography sentence be reduced below the scoresheet in Florida?

Yes, through a downward departure when the defense proves a statutory reason such as treatable mental health needs or an isolated, unsophisticated offense with remorse. The Brancato Law Firm builds departure motions with expert evaluations and treatment plans rather than character letters alone.

For more about our defense strategies, visit our Internet Crimes page.

For how The Brancato Law Firm, P.A. defends these cases, see our Tampa sex crimes defense practice.

Get a scoresheet review before the State files

The charging decision in a CSAM case often follows the forensic review of the seized devices, and that window closes fast. Our attorneys will review the warrant, the device seizure, and your likely scoresheet, so call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159. We are two blocks from the courthouse, and you can call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish and Haitian Creole speakers facing criminal charges.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

A Florida judge can sentence below the scoresheet only when the defense proves a legal reason for it with evidence, and most of that evidence lives in the client’s own life story. I have made that argument for more than 25 years in Hillsborough County courtrooms, including as former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and our attorneys build mitigation into the case from the first week rather than waiting for a sentencing date.

What is a mitigation report in a criminal case?

A mitigation report is an organized, evidence-backed presentation of everything a prosecutor or judge should weigh before deciding what a case is worth. It answers the question behind most plea offers and sentences in Hillsborough, Pinellas, and Pasco courtrooms: who is this person, and what outcome actually protects the community? A one-page character letter does not do that job. A mitigation report is a full social history, with records attached, written so a busy prosecutor can absorb it in one sitting.

Mitigation matters because most criminal cases are decided at the charging and sentencing stages, not at trial. Our firm uses the report in three places: before charges are filed, during plea negotiations, and at a sentencing hearing where we ask the judge for a sentence below the guidelines. Because mental health so often drives mitigation, it is also central to the work on our Tampa criminal mental health lawyer page.

What goes into a mitigation report?

A strong mitigation report covers the client’s whole life, and each point is backed by a record, a witness, or an expert. Our reports typically run many pages and are organized by the areas a Florida court weighs.

The report takes several hours to prepare, and it requires real time from the client, who has to talk honestly about difficult parts of their life. That effort is what makes it persuasive. Prosecutors see form letters every day, and a report with records behind every sentence stands out.

How does a mitigation report support a downward departure in Florida?

A mitigation report supports a downward departure by proving, with evidence, one of the legal reasons Florida allows a judge to sentence below the lowest permissible sentence. Under section 921.0026, Florida Statutes, a departure is prohibited unless circumstances “reasonably justify” it, and the statute lists mitigating circumstances that do.

The Florida Supreme Court described the process in Banks v. State, 732 So. 2d 1065 (Fla. 1999), an aggravated assault case where the victim suffered a permanent eye injury and the trial judge imposed probation and restitution instead of prison. The court reinstated that departure and explained the two steps: first, the judge decides whether a valid legal ground exists and whether the facts supporting it are proved by a preponderance of the evidence; second, the judge decides whether a departure is the best sentence after weighing all the circumstances. A mitigation report is built to win both steps.

The mental health mitigator is the one we prove most often. In State v. Chubbuck, 141 So. 3d 1163 (Fla. 2014), a cocaine trafficking case, the Florida Supreme Court held that a defendant seeking a departure under paragraph (2)(d) must prove three things by a preponderance of the evidence: a qualifying mental disorder or physical disability, a need for specialized treatment, and amenability to that treatment. The court also held that the defendant does not have to prove the Department of Corrections cannot provide the treatment, though the State may offer evidence that it can. A mitigation report is where those three elements are proved.

Is addiction a mitigating factor for a downward departure in Florida?

No, not by itself. Section 921.0026(3) says a defendant’s substance abuse or addiction, including intoxication at the time of the offense, “does not, under any circumstances, justify a downward departure,” with one exception: paragraph (2)(m) allows a departure for a nonviolent felony scoring 60 points or fewer when the defendant qualifies for a postadjudicatory drug court program.

That is why dual diagnosis matters. The paragraph (2)(d) mitigator requires a mental disorder “unrelated to substance abuse or addiction.” When a client struggles with addiction and also has a separate condition, such as depression, PTSD, or a bipolar disorder, the mitigation report documents that separate diagnosis. Once it is established, both conditions can be addressed together in one treatment plan, and the departure rests on the separate disorder. Our guide to how to get a downward departure in Florida covers every statutory mitigator in more detail.

The Legislature considered narrowing this mitigator in 2026. CS/SB 1326 would have limited the mental health mitigator to severe conditions and barred its use for certain offenses, but the bill died in committee on March 13, 2026, so section 921.0026(2)(d) remains in force as written.

How often do Hillsborough County felony cases end below the prison threshold?

Often enough that mitigation is worth doing in nearly every serious case. According to the Florida Department of Corrections’ Criminal Punishment Code report for FY 2023-24, Florida courts sentenced on 85,420 felony scoresheets that year, and 6,309 of them came from the 13th Judicial Circuit in Hillsborough County.

Under the Code, a scoresheet totaling more than 44 points makes state prison the lowest permissible sentence unless the judge departs or another sentencing law applies. Yet in FY 2023-24, 1,400 Hillsborough County scoresheets that scored more than 44 points ended in a county jail sentence, and another 690 ended in probation, according to the same Department of Corrections report. Those outcomes do not happen by accident. They come from plea negotiations and sentencing hearings where the defense gave the State or the judge a documented reason to go lower.

Research backs up what we see in court. In Modern Sentencing Mitigation, 116 Northwestern University Law Review 1395 (2022), Professor John B. Meixner Jr. coded defense sentencing memoranda from federal felony cases and found that mitigating evidence was a central predictor of the sentences judges imposed, with science-based arguments about mental and physical health among the most persuasive. A well-documented report gives the judge the same kind of evidence in a Florida courtroom. Our county work is described on our Hillsborough County criminal defense attorney page.

Why does our firm include the mitigation report in the representation?

Our firm includes the mitigation report because meaningful mitigation is often either missed or sold as an extra. Some attorneys have never prepared one and do not recognize the moments when it would change the result. Others charge a separate fee before anyone builds the client’s story. On the cases that need it, The Brancato Law Firm includes a comprehensive mitigation report as part of the representation, so the work that most often moves a prosecutor is neither overlooked nor gated behind another invoice.

Sometimes a case needs more than our report. A psychosexual evaluation, a forensic risk assessment, or a neuropsychological workup can supply the formal diagnosis or scored risk level a departure requires. When that adds real value, we bring in the right expert, the expert’s fee is paid directly to the expert, and we tell the client up front why we think it is warranted.

When does a case need a mitigation report?

A case needs a mitigation report whenever the outcome depends on the prosecutor’s or judge’s view of the client as a person, which is most felony cases. We prepare one on every case where the client will need it. If we can resolve a case quickly, for example through a pretrial diversion program, a full report may be unnecessary, and we will not ask a client to spend hours on work the case does not require.

Knowing the difference is a skill. My years leading the Public Defender’s Office and handling homicide, sex crime, and child abuse cases in the Major Crimes Unit taught me when a mitigation report is the tool that changes the outcome and when the case can be won another way.

Can a mitigation report stop charges before they are filed?

Yes, sometimes. The State Attorney’s Office reviews a case before deciding what to charge, and during that window our attorneys can present mitigation directly to the assigned prosecutor. In our experience, early mitigation has persuaded prosecutors to file a lesser charge or to decline a case. The earlier we start, the more room we have, which is why we explain the process on our page on representation before charges are filed.

Real results where mitigation made the difference

These are actual outcomes from our office. They show what disciplined mitigation, sometimes ours alone and sometimes paired with an expert and the client’s own treatment, can accomplish.

Child pornography charges reduced to a non-registerable offense (June 2026). Our client faced four counts of possession of child pornography, felonies that would have required lifetime sex offender registration. He contacted the firm after law enforcement visited his home but before any arrest. We moved immediately on mitigation, referring him to treatment and building an extensive mitigation packet that included an independent risk assessment. That mitigation, combined with Rocky Brancato’s review of the files, convinced the prosecutor to reduce the charges to four counts of obscenity, an offense that requires no sex offender registration. The client received a withhold of adjudication and three years of probation.

Below-guidelines probation after a trafficking conviction (July 2025). In a solicitation to commit human trafficking case tried to a jury, the client was convicted. The mitigation work and the treatment he completed before trial led the judge to depart from the guidelines and sentence him to probation. Because of that treatment, he kept contact with his child and was allowed to use the internet on probation, relief that rarely comes with such a conviction.

Past results do not guarantee future outcomes.

Frequently asked questions

Who writes the mitigation report in a Florida criminal case?

The defense team writes it, using interviews, records, and when needed an expert’s evaluation. At The Brancato Law Firm, our attorneys and staff prepare the report in-house and present it to the prosecutor or judge ourselves, so the person arguing the case knows every page of it.

Is a mitigation report the same as a presentence investigation report?

No. A presentence investigation (PSI) is prepared by the Department of Corrections at the judge’s request, while a mitigation report is prepared by the defense to advocate for the client. The Brancato Law Firm reviews any PSI for errors and uses our own report to fill in what the PSI leaves out, as described on our criminal mental health defense page.

How long does it take to prepare a mitigation report?

A thorough report takes several hours of client interviews plus the time needed to collect records, which can mean weeks for medical or school files. The Brancato Law Firm starts gathering records early so the report is ready before the plea deadline or sentencing date.

Does a mitigation report help in a sex crime or child pornography case?

Yes. In sex offense cases, treatment, a psychosexual evaluation, and a documented risk assessment can persuade a prosecutor to reduce a charge or a judge to depart, as our June 2026 result shows. The Brancato Law Firm often pairs our report with an independent evaluation in these cases, and our page on pre-file advocacy explains how early that work can start.

Can a mitigation report be used if I already lost at trial?

Yes. A conviction at trial does not prevent a downward departure, and the judge can still weigh mitigation at the sentencing hearing, as happened in our July 2025 trafficking case. The Brancato Law Firm prepares the sentencing presentation while the trial is still being prepared, so nothing is lost if the verdict goes the wrong way.

Does a mitigation report cost extra at The Brancato Law Firm?

No. The report is included in the representation on every case that needs one, and only an outside expert, when one is warranted, is paid separately and directly. The Brancato Law Firm tells clients before any expert is retained what the evaluation will add and why we recommend it.

For how this fits into the rest of a case, see our step-by-step guide to what happens in a Florida criminal case.

Talk to us before the State builds its case

The best time to start a mitigation report is the week of the arrest, or before charges are filed, while records are easy to collect and the prosecutor has not yet made up their mind. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159. You can call us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking criminal defense clients in Tampa.

For more about our defense strategies, visit our Criminal Mental Health page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If a detective has called about your relationship with a 16- or 17-year-old, or you have already been charged under section 794.05, the birth dates and the dates of contact in the police report will shape every decision that follows. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I learned how these cases are built in the Major Crimes Unit of the Hillsborough County Public Defender’s Office, which handled homicide, sex crimes, and child abuse cases, and I have tried more than 150 jury trials to verdict over more than 25 years in Hillsborough County courtrooms. Our attorneys defend section 794.05 charges across Hillsborough, Pinellas, and Pasco Counties, starting with the ages, the dates, and the scoresheet.

What does Florida Statute 794.05 say?

Section 794.05, Florida Statutes, titled “Unlawful sexual activity with certain minors,” makes it a second-degree felony for “a person 24 years of age or older” to engage in sexual activity “with a person 16 or 17 years of age.” People also call this charge sexual conduct with a minor, unlawful sexual conduct with a minor, or statutory rape, but section 794.05 is the statute on the charging document. Our Tampa sex crimes lawyer page explains how The Brancato Law Firm defends this charge and the related offenses below. Florida law defines a minor as anyone who has not turned 18, under section 1.01(13), Florida Statutes, so a 17-year-old is still a minor.

The Florida standard jury instruction for this charge, Instruction 11.7, lists three elements the State must prove beyond a reasonable doubt:

Section 794.05 has four more provisions that matter in practice. Sexual activity “does not include an act done for a bona fide medical purpose.” The statute does not apply to a 16- or 17-year-old “who has had the disabilities of nonage removed under chapter 743,” which includes a married minor. The minor’s “prior sexual conduct is not a relevant issue” in the prosecution. And if the offense results in a birth, paternity is established under chapter 742, and an offender found to be the father must pay child support under chapter 61. Our attorneys at The Brancato Law Firm build a timeline of both people’s ages against every alleged act before anything else, because a one-day error on either birthday can take a count outside the statute.

The 24-year line has been tested in court. In State v. Walborn, 729 So. 2d 504 (Fla. 2d DCA 1999), a trial judge in the Second District, which hears appeals from Hillsborough, Pinellas, and Pasco Counties, dismissed a section 794.05 charge as a denial of equal protection. The Second District reversed and held the statute constitutional, finding it “reasonably related to the goal of protecting minors from sexual exploitation by adults.” Florida’s line is unusually high. A 2004 U.S. Department of Health and Human Services report prepared by The Lewin Group, Statutory Rape: A Guide to State Laws and Reporting Requirements, found that 16 states set a minimum age for the accused, and Florida’s 24 was the highest listed.

Is consent a defense to unlawful sexual activity with a minor?

No. The elements of section 794.05 say nothing about consent, so if the State proves the ages and the act, the minor’s willingness does not defeat the charge. Florida courts treat section 794.05 as a strict liability crime, which means the State does not have to prove the accused knew the minor’s age or intended to break the law.

A mistake about age is not a defense either. Section 794.021, Florida Statutes, says that when a crime in chapter 794 depends on the victim’s age, “ignorance of the age is no defense,” and neither is “misrepresentation of age” or “a bona fide belief” that the person was older. A fake ID or a dating profile that says 18 does not change the legal answer. Our post on ignorance of the victim’s age in Florida covers this rule across other sex offenses.

Two appellate cases apply that rule directly to section 794.05. In Hodge v. State, 866 So. 2d 1270 (Fla. 4th DCA 2004), a man convicted of sexual activity with a 17-year-old asked for jury instructions requiring proof that he knew her age and acted with criminal intent. The Fourth District held that “the legislature left no doubt as to its intention that this offense be treated as a strict liability crime,” and affirmed. In Feliciano v. State, 937 So. 2d 818 (Fla. 1st DCA 2006), a 26-year-old whose relationship began two months after the girl’s 17th birthday argued that punishing him without proof he knew her age violated due process. The First District rejected that challenge and affirmed. Because the law closes these doors, The Brancato Law Firm puts the defense where the State still carries the burden: the ages, the dates, and whether the act happened.

What are the penalties for unlawful sexual activity with a minor in Florida?

Unlawful sexual activity with a minor is a second-degree felony carrying up to 15 years in prison under section 775.082, Florida Statutes, and a fine of up to $10,000 under section 775.083, Florida Statutes. The legal ramifications reach well past the sentence itself.

Section 794.05 carries no mandatory minimum sentence. The real floor comes from the Criminal Punishment Code scoresheet, explained in the next section, and that is where our attorneys at The Brancato Law Firm do much of their sentencing work.

How does the Florida scoresheet score a section 794.05 conviction?

The scoresheet usually calls for prison, even for a person with no record, because Florida adds points for the sexual act itself. Section 921.0022, Florida Statutes, ranks section 794.05(1) as a Level 6 offense, worth 36 points. Section 921.0021(7)(b), Florida Statutes, then requires 80 points for sexual penetration “regardless of whether there is evidence of any physical injury,” or 40 points for sexual contact without penetration. Under section 921.0024, Florida Statutes, any total above 44 points produces a minimum prison sentence: subtract 28 and multiply by 0.75.

The difference between penetration and union is worth fighting over. In Neira v. State, 847 So. 2d 1134 (Fla. 4th DCA 2003), a 17-year-old testified that she had consensual intercourse with the defendant, and he denied penetration. The judge scored 80 penetration points instead of 40 contact points, which raised the lowest permissible sentence from 36 months to 66.15 months, and imposed 66.15 months. The Fourth District affirmed, holding that the jury did not have to make a separate penetration finding for scoresheet purposes, and certified the question to the Florida Supreme Court as one of great public importance. The lesson for anyone charged today: the nature of the act decides roughly two and a half years of the minimum sentence, so The Brancato Law Firm contests it with the evidence, the charging language, and the verdict form.

Section 794.05 cases are far less common than other sex charges, and a high score does not always mean prison in Hillsborough County. Scoresheets received by the Florida Department of Corrections (FDC) for sentences from July 1, 2023, through June 30, 2024, cited section 794.05 62 times, compared with 589 for section 800.04 and 472 for section 794.011, according to the FDC report Florida’s Criminal Punishment Code: Assessment and Analysis (2024). The same report shows that in fiscal year 2023-24, Hillsborough County judges sentenced 2,235 of the 3,594 felony scoresheets of all types that scored more than 44 points and recorded a sanction to county jail, probation, or community control instead of state prison.

Can a judge sentence below the scoresheet if the teen was a willing participant?

Yes. Consent is not a defense at trial, but Florida law lets a judge consider it at sentencing. Section 921.0026(2)(f), Florida Statutes, lists as a mitigating circumstance that “the victim was an initiator, willing participant, aggressor, or provoker of the incident,” and that ground can support a downward departure, meaning a sentence below the scoresheet minimum.

The Florida Supreme Court settled the question in State v. Rife, 789 So. 2d 288 (Fla. 2001). Ronald Rife was convicted of three counts of sexual battery on a 17-year-old who had moved into his home, under a statute that says the minor’s willingness “is not a defense.” Both testified the relationship was consensual and that they planned to marry when she turned 18. His scoresheet minimum was 297.4 months, about 24 years, and the trial judge departed to 102 months followed by 10 years of probation. The court approved the departure, holding that judges are not barred as a matter of law from relying on a minor’s willing participation, while cautioning that the judge must weigh “the victim’s age and maturity and the totality of the facts” and that a young person’s failure to resist “is not the same as willing participation.”

The Second District applied that rule to a section 794.05 case in Rivera v. State, 1 So. 3d 1158 (Fla. 2d DCA 2009). Nelson Rivera pleaded no contest to unlawful sexual activity with a minor and received 10 years in prison. He later claimed his lawyer never presented mitigation, including that the girl had lied about her age. The Second District reversed the summary denial of his claim and sent it back for further proceedings, noting that the sentencing court could have considered her willing participation as mitigation under Rife, even though her misrepresentation of age was no defense to the charge. Mitigation only helps if someone builds it and presents it, which is why The Brancato Law Firm prepares a written mitigation package, with records and witnesses, before any sentencing hearing. Our guide to how to get a downward departure in Florida explains the other legal grounds.

Does a 794.05 conviction require sex offender registration?

Yes. Section 943.0435, Florida Statutes, lists section 794.05 as a qualifying offense, and it defines “convicted” to include a guilty or no contest plea “regardless of whether adjudication is withheld.” A withhold of adjudication, which avoids a formal conviction for most other purposes, does not avoid registration here.

• Initial registration: in person at the sheriff’s office within 48 hours after conviction, or within 48 hours after release from Department of Corrections custody.
• Reregistration: in person twice a year, during the birth month and six months later. Section 794.05 is not on the list of offenses that require reporting every three months.
• Duration: for life, unless a court grants removal. Section 943.0435(11) allows a petition after at least 25 years from release from confinement or supervision, with no arrest for any felony or misdemeanor since release.
• Sexual predator risk: under section 775.21, Florida Statutes, a section 794.05 conviction can lead to sexual predator designation when the person has a prior conviction for a listed sex offense.

Where a person can live depends on whether they are on supervision. Florida’s statutory 1,000-foot residency restriction, section 775.215, applies to listed offenses where the victim was under 16, and section 794.05 is not on that list. Probation is different. For a chapter 794 offense, section 948.30, Florida Statutes, requires a 10 p.m. to 6 a.m. curfew, sex offender treatment at the probationer’s expense, and, when the victim was under 18, a ban on living within 1,000 feet of a school, child care facility, park, or playground and on contact with children under 18 without court approval. Our post on sex offender probation rules in Florida covers those conditions in detail.

Registration touches thousands of people in Tampa Bay. As of October 2024, 1,999 registered sex offenders lived in Hillsborough County communities, 1,579 in Pinellas County, and 872 in Pasco County, according to the Florida Legislature’s Office of Program Policy Analysis and Government Accountability in Report 24-11 (2024). Because registration follows a plea as surely as a guilty verdict, our attorneys at The Brancato Law Firm look first for a resolution to an offense that does not require registration, as several of the results below show. Our guide to sex offender registration in Florida explains the reporting rules.

Does Florida’s Romeo and Juliet law apply to section 794.05?

No. Florida’s Romeo and Juliet law, section 943.04354, Florida Statutes, lets a court remove the registration requirement only for convictions under section 800.04, section 827.071, or section 847.0135(5), and only when the minor was 13 to 17 and the offender was not more than 4 years older. Section 794.05 is not on that list. The age math rules it out anyway: a person 24 or older is always more than 4 years older than a 16- or 17-year-old.

The Romeo and Juliet law is also not a defense to any charge; it only affects registration after a conviction for a qualifying offense. For a section 794.05 registrant, the realistic path off the registry is the 25-year petition described above. Our Romeo and Juliet registry removal guide explains who qualifies, and our article on the age of consent in Florida lays out which age combinations are legal. The Brancato Law Firm reviews registration consequences, including any removal path, before a client decides on a plea.

How is section 794.05 different from lewd or lascivious battery and sexual battery?

The younger person’s age and whether there was consent decide which statute applies. Section 794.05 covers only 16- and 17-year-olds with a partner 24 or older. Section 800.04, Florida Statutes, covers anyone under 16, whatever the other person’s age. Section 794.011, Florida Statutes, the sexual battery law, covers acts without consent and acts by a parent or other person in familial or custodial authority.

The scoresheet also separates these charges. Section 921.0022 ranks lewd or lascivious battery at Level 8, two levels above section 794.05, so the same act scores higher when the younger person is 15 than when the younger person is 16. A claim that a 16- or 17-year-old did not consent changes the case entirely, because it turns a second-degree felony into a first-degree sexual battery charge. Our guides on how to fight a lewd and lascivious charge and how to fight a sexual battery charge in Florida cover those statutes, and The Brancato Law Firm defends every charge in this group.

What defenses work against an unlawful sexual activity charge?

The strongest defenses attack the facts the State must prove: the two ages, the dates, and the act. These are the issues our attorneys work through in every section 794.05 case.

1. The accused was under 24 on the date of the act. Section 794.05 does not reach a 23-year-old. We match the accused’s birth date against each alleged date, because acts before the 24th birthday fall outside the statute even if later acts do not.
2. The minor was not 16 or 17 on that date. The State must prove the minor’s age with competent evidence, usually birth records. If the minor had turned 18, section 794.05 does not apply; if the minor was 15 or younger, the charge is the wrong statute, and the State must charge and prove a different offense.
3. No sexual activity as the statute defines it. Kissing or touching that is not penetration or union is not “sexual activity” under section 794.05. Whether the act was penetration or union also changes the scoresheet by 40 points.
4. The accusation is not reliable. Many of these cases rest on one person’s account. We collect texts, social media, location data, and school and work records that confirm or contradict the timeline, and we look for reasons the account changed.
5. The minor was emancipated or married. Section 794.05 does not apply to a minor whose disabilities of nonage were removed, and section 743.01, Florida Statutes, removes them for a minor who is or has been married. In Hodge, the Fourth District held this exception is an affirmative defense, so the accused must come forward with evidence of it. Under current law, section 741.04, Florida Statutes, allows a Florida marriage license for a 17-year-old only with parental consent and a spouse no more than 2 years older, so this defense mostly arises from out-of-state marriages or court-ordered emancipation.
6. The statement or controlled call can be challenged. Many cases are built on an interview or a recorded call that the minor or a parent makes at a detective’s direction. Our article on fighting a false confession in a Florida sex crime case explains how we challenge those statements.
7. Mitigation, if the facts are proven. When the evidence is strong, the willing participation mitigator under Rife, the client’s history, and treatment evaluations can support a sentence below the scoresheet or a negotiated plea to an offense that does not require registration.

A defense does not need a dramatic theory to work. In a case involving a 27-year-old and a 16-year-old, The Brancato Law Firm won a dismissal by showing that the accuser’s account did not hold together, as the results below show.

What should you do if a detective calls about a 16- or 17-year-old?

Decline the interview and call a defense lawyer before you say anything. In a section 794.05 investigation, consent is not a defense, so an admission that a relationship existed can supply most of the State’s case. Detectives often keep the tone friendly and say they “know it was consensual,” and some cases begin with a controlled call from the minor or a parent before any contact from police.

• Do not call, text, or message the minor or the minor’s family about the allegation.
• Do not delete anything. Messages and photos that show dates can prove when a birthday passed or when contact stopped.
• Do not post about the relationship or the investigation on social media.
• Write down the detective’s name, agency, and case number, and give them to your lawyer.

The weeks before an arrest are the best time to act. Our representation before charges are filed can include speaking with the detective for you and presenting information to the State Attorney’s Office before it decides whether to file.

If an arrest has already happened in Hillsborough County, expect to stay in jail until a judge sees you. Section 903.011, Florida Statutes, bars release before first appearance for anyone arrested for a second-degree felony, and the 13th Judicial Circuit’s 2026 bond schedule, Administrative Order S-2025-063, leaves second-degree felonies for a judge to decide. In Hillsborough County, first appearance happens within 24 hours of arrest, by video from the jail, and the judge usually sets no-contact conditions along with any bond. Our Hillsborough County criminal defense attorney page explains what comes next.

Real results in cases involving 16- and 17-year-olds

Past results do not guarantee future outcomes. More results are on our case results page.

Frequently Asked Questions About Unlawful Sexual Activity With a Minor

Can unlawful sexual activity charges be dropped if the teen does not want to cooperate?

They can, but the decision belongs to the State Attorney’s Office, not the minor or the minor’s parents. The Brancato Law Firm has had an unlawful sexual conduct charge involving a 16-year-old dismissed, and a case involving a 17-year-old closed with a letter of release that reflected the alleged victim’s wishes, and our sex crimes defense attorneys push for that outcome from the first week.

Is all sexual activity between an adult and a minor illegal in Florida?

No. Consensual sexual activity between a 16- or 17-year-old and an adult partner under 24 does not violate section 794.05, although other laws, such as those covering school employees, custodial adults, and explicit images, can still apply. The Brancato Law Firm checks every one of those statutes against the facts, and our guide to the Florida age of consent maps the age combinations.

What charge applies if the younger partner is 15 instead of 16?

Sexual activity with a 15-year-old is lewd or lascivious battery under section 800.04(4), a second-degree felony, whether the other person is 18, 23, or 40, and consent is not a defense. Our attorneys at The Brancato Law Firm defend those cases with the same focus on ages and dates, as our article on lewd and lascivious charges in Florida explains.

What is the minimum sentence for unlawful sexual activity with a minor in Florida?

There is no mandatory minimum, but a single count involving penetration scores a lowest permissible sentence of 66 months in prison for a person with no record. The Brancato Law Firm attacks the penetration points and builds departure grounds, such as willing participation under State v. Rife, as described in our guide to downward departures in Florida.

Does a withhold of adjudication avoid sex offender registration for section 794.05?

No. Section 943.0435 requires registration for a section 794.05 plea or verdict “regardless of whether adjudication is withheld.” That is why The Brancato Law Firm negotiates toward offenses that carry no registration requirement, and our page on Florida sex offender registration lists what registrants must report.

Can a woman be charged with unlawful sexual activity with a minor in Florida?

Yes. Section 794.05 applies to “a person 24 years of age or older,” so it covers women and men equally, and it applies whether the minor is a boy or a girl. The Brancato Law Firm defends women and men accused under this statute, often through pre-file advocacy that starts before any arrest.

Can I be charged if I did not know my partner was 17?

Yes. Section 794.021 makes ignorance of age, a lie about age, and a good-faith belief that the person was older no defense. The Brancato Law Firm still documents what the accused was told and shown, because those facts can matter in plea negotiations and at sentencing, as our post on mistake of age in Florida sex cases explains.

Talk to a lawyer before you talk to the detective

Our attorneys start by contacting the detective so you are never interviewed alone, then lock down the birth dates, messages, and records that decide whether section 794.05 even applies. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, defends unlawful sexual activity charges from the first phone call through trial and sentencing. The days before an arrest are when our attorneys can do the most, so call (813) 727-7159 now for a free, confidential consultation. You can call us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read about our Spanish and Haitian Creole criminal defense services.

For more about our defense strategies, visit our Sex Crimes page.

The Brancato Law Firm, P.A.

620 E. Twiggs Street, Suite 205, Tampa, FL 33602

(813) 727-7159

Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

A Florida prosecutor deciding what to offer, and a judge deciding what to impose, look at two numbers before anything else: the degree of the charge and the score on the sentencing scoresheet. Knowing both is the starting point for any defense. As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys, I have worked with those numbers for more than 25 years in Hillsborough County courtrooms. Our attorneys use them to negotiate reductions from felony to misdemeanor across Hillsborough, Pinellas, and Pasco Counties.

This guide explains how Florida classifies crimes, the maximum penalty for each degree, what a first-degree felony is, how the scoresheet works, and how felony charges get reduced.

What is the difference between a felony and a misdemeanor in Florida?

The difference is where the sentence can be served and for how long. Section 775.08, Florida Statutes defines a felony as an offense punishable “by death or imprisonment in a state penitentiary,” and a misdemeanor as an offense punishable “by a term of imprisonment in a county correctional facility… not in excess of 1 year.” A noncriminal violation, such as many traffic infractions, is punishable only by a fine or civil penalty and “does not constitute a crime.”

The label matters beyond the sentence. A felony conviction can affect voting, firearm rights, professional licenses, and immigration status, and a felony record is harder to seal. Our attorneys at The Brancato Law Firm treat the degree of the charge as the first thing to negotiate.

What are the degrees of crimes in Florida and their maximum penalties?

Section 775.081, Florida Statutes sets five felony degrees and two misdemeanor degrees. A felony with no degree stated is a third-degree felony, and a misdemeanor with no degree stated is second-degree.

The prison terms come from section 775.082, Florida Statutes and the fines from section 775.083, Florida Statutes. A court may also impose a fine of up to double the gain or loss caused by the offense. Common misdemeanors include simple assault and petit theft under $100, both second-degree misdemeanors, and battery, a first-degree misdemeanor. A first DUI is also a misdemeanor, with its own penalties under section 316.193.

What is a first-degree felony in Florida?

A first-degree felony is the most serious felony below a life or capital felony, punishable by up to 30 years in prison and a $10,000 fine. Some first-degree felonies are “punishable by life,” which raises the maximum to life in prison. Examples from Florida’s offense severity chart include leaving the scene of a crash involving death and attempted premeditated murder (first-degree felonies) and second-degree murder (a first-degree felony punishable by life).

A first-degree felony also closes off one common outcome. Under section 775.08435, Florida Statutes, a court “may not withhold adjudication of guilt” for “Any capital, life, or first degree felony offense,” and may withhold on a second-degree felony only in limited situations, such as when the State Attorney requests it in writing. A withhold is available on third-degree felonies and misdemeanors in most cases. That is why negotiating a first-degree charge down to a second- or third-degree charge is often the most important step in the case. Our attorneys at The Brancato Law Firm build that negotiation around the evidence and a mitigation report.

How does Florida decide the actual sentence for a felony?

The Criminal Punishment Code scoresheet decides the minimum. Under section 921.0022, Florida Statutes, every felony is ranked on 10 levels, “from least severe, which are level 1 offenses, to most severe, which are level 10.” The level, the prior record, and other factors produce a point total under section 921.0024, Florida Statutes.

The math is fixed. At 44 points or fewer, the lowest permissible sentence is “any nonstate prison sanction,” which means probation or county jail is allowed. Above 44 points, the lowest permissible prison sentence is calculated by “subtracting 28 points from the total sentence points and decreasing the remaining total by 25 percent,” expressed in months. A score of 60 points, for example, produces (60 minus 28) times 0.75, or 24 months. The judge can sentence anywhere from that minimum up to the statutory maximum, and any state prison sentence must exceed 1 year.

One more rule protects lower-level defendants. Under section 775.082(10), when a third-degree felony is not a forcible felony and the scoresheet totals 22 points or fewer, the court “must sentence the offender to a nonstate prison sanction” unless it makes written findings that a nonstate sanction could present a danger to the public. Our attorneys at The Brancato Law Firm prepare the scoresheet ourselves and check every point the State assigns.

What enhancements can raise a felony sentence?

Several statutes raise the maximum or impose a minimum:

• Habitual felony offender. Under section 775.084, Florida Statutes, a person with two or more prior felonies who commits a new felony within 5 years can face up to 10 years on a third-degree felony, 30 years on a second-degree felony, and life on a first-degree felony.
• Prison releasee reoffender. Section 775.082(9) requires mandatory terms served at 100% for listed offenses committed within 3 years of release from prison. Our post on prison releasee reoffender sentencing explains it.
• 10-20-Life. Section 775.087 sets firearm minimums for listed felonies such as robbery, burglary, and aggravated battery. Aggravated assault was removed from that list in 2016.

When an enhancement is filed, the question is whether the State can prove each prior conviction and each date. The Brancato Law Firm pulls the court records and checks them against the statute’s requirements.

Can a felony be reduced to a misdemeanor in Florida?

Yes, through negotiation or a successful defense. Prosecutors reduce charges when the evidence does not support the felony, when an element such as a weapon or the value of property is in doubt, or when mitigation shows the case belongs at a lower level. Recent results from our firm:

Past results do not guarantee future outcomes. More results are on our case results page.

How many felony and misdemeanor cases does Hillsborough County handle?

Roughly as many of each. The Florida courts’ FY 2024-25 Statistical Reference Guide shows 12,317 felony cases filed in the 13th Judicial Circuit, which covers Hillsborough County. Drug cases were the largest category at 3,780, followed by theft, forgery, and fraud at 2,464. The county criminal chapter shows 13,002 misdemeanor filings in Hillsborough the same year, plus 4,008 DUI and 16,970 criminal traffic cases.

Florida’s prisons take in tens of thousands of people a year. The Florida Department of Corrections’ Annual Report FY 2024-25 counted 27,171 prison admissions statewide and a prison population of 89,087 on June 30, 2025. Drug offenses were the largest admission category at 25.2%. A state research report helps explain why sentences vary so much: the Office of Program Policy Analysis and Government Accountability found in Diverting Low-Risk Offenders From Florida Prisons (Report No. 19-01, 2019) that about 96% of felony sentences result from pleas and that 59% of offenders who scored above 44 points received prison.

What happens after a felony arrest in Hillsborough County?

The case moves through a set sequence. The arrested person sees a judge at first appearance within 24 hours, where bond is set; our guide on how a bond hearing works in Tampa explains that hearing. The State then has 30 days to file formal charges if the person is in custody, or 60 days if released, under Rule 3.134. After the charge is filed, the case is set for arraignment, discovery, motions, and pretrial conferences.

The period before the charge is filed is often the best chance to influence the degree. Our attorneys provide representation before charges are filed by presenting evidence and mitigation to the prosecutor making the filing decision. Our post on the steps in a Hillsborough County criminal case covers the rest of the process.

Frequently asked questions about felonies and misdemeanors in Florida

Can a felony charge be dropped in Florida?

Yes. A felony can be dropped before or after filing when the evidence does not support it, and it can also be reduced to a misdemeanor through negotiation. The Brancato Law Firm works the filing decision first, then moves to motions if the case is filed, as explained in our guide on whether criminal charges can be dropped or dismissed in Florida.

Can you get probation for a felony in Florida?

Often, yes. When the scoresheet totals 44 points or fewer, the lowest permissible sentence is a nonstate prison sanction such as probation, and a judge can also depart downward for a valid legal reason. Our attorneys at The Brancato Law Firm prepare the scoresheet and the mitigation that supports a probationary sentence.

Can you get a withhold of adjudication for a first-degree felony?

No. Section 775.08435 prohibits a withhold for any capital, life, or first-degree felony, and limits withholds on second-degree felonies. The Brancato Law Firm negotiates the charge down to a degree that allows a withhold when the facts support it.

Is a third-degree felony serious in Florida?

Yes. A third-degree felony carries up to 5 years in prison and a $5,000 fine, and a conviction is still a felony record. Our attorneys at The Brancato Law Firm look first at whether the case qualifies for pretrial intervention or a reduction to a misdemeanor, and you can learn more on our Hillsborough County criminal defense page.

What is the difference between a first-degree and second-degree misdemeanor?

A first-degree misdemeanor carries up to 1 year in county jail and a $1,000 fine, while a second-degree misdemeanor carries up to 60 days and a $500 fine. The Brancato Law Firm often seeks diversion for first-time misdemeanor charges, which can end in a dismissal.

How many points do you need to go to prison in Florida?

Prison becomes the minimum sentence when the scoresheet totals more than 44 points. At 44 points or fewer, prison is not required, so our attorneys at The Brancato Law Firm challenge any points the State cannot support.

For how this fits into the rest of a case, see our guide to each stage of a Florida criminal case.

Call our Tampa criminal defense attorneys about the degree of your charge

The degree on the charging document can often be changed. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will check the scoresheet, test the elements that raise the degree, and negotiate for a reduction or dismissal. Call (813) 727-7159 for a free, confidential consultation. You can call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read about our Spanish and Haitian Creole criminal defense services.

For more about our defense strategies, visit our Hillsborough County Criminal Defense page.

The Brancato Law Firm, P.A.

620 E. Twiggs Street, Suite 205, Tampa, FL 33602

(813) 727-7159

Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I have spent more than 25 years in Hillsborough County courtrooms, including as Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys. Today our attorneys build departure cases the way appellate courts now require: with a valid legal ground, real evidence, and a clean record.

What is a downward departure in Florida?

A downward departure is any felony sentence below the “lowest permissible sentence” (LPS) that the scoresheet produces. Under section 921.0026, Florida Statutes, a judge may not go below that number “unless there are circumstances or factors that reasonably justify the downward departure.”

The scoresheet assigns points for the main offense, any additional offenses, prior record, victim injury, and legal status such as being on probation. Under section 921.0024, once total points exceed 44, the LPS in prison months is the total points minus 28, multiplied by 0.75. A defendant who scores 100 points faces a minimum of 54 months in state prison.

A “nonstate prison sanction” means county jail of up to 364 days, probation, or community control. That is why judges often pronounce “one year and one day” when they intend a state prison sentence.

A departure does not have to mean probation. In Lee v. State, No. 2D2025-0078 (Fla. 2d DCA June 12, 2026), the trial judge believed the only departure option was reinstating probation. The Second District Court of Appeal reversed, explaining that the judge also had the power to impose a prison term shorter than the 77.475-month LPS.

How often do Tampa Bay judges sentence below the scoresheet?

Departures are common, and Hillsborough County departs more often than the state as a whole. In fiscal year 2023-24, Hillsborough County judges sentenced 2,235 of 3,594 felony defendants who scored more than 44 points to county jail, probation, or community control instead of state prison, about 62%, according to the Florida Department of Corrections Criminal Punishment Code report. Because state prison was the minimum for every one of those defendants, each of those sentences was below the scoresheet.

Source: Florida Department of Corrections, Florida’s Criminal Punishment Code: Assessment and Analysis (FY 2023-24), pp. 26, 28-29. Percentages are calculated from the report’s counts. The report notes that scoresheet submission was 77.4% complete statewide, and shorter prison terms below the LPS are not separated out, so the true departure rate is likely higher.

Most of these sentences come from negotiated pleas, where the State agrees to the departure. The rest come from contested hearings where the defense proves a mitigating circumstance over the State’s objection. That second group is where the quality of the evidence decides the outcome.

The data also undercut the idea that departures are a public safety risk. A 2019 study by the Florida Legislature’s Office of Program Policy Analysis and Government Accountability (OPPAGA Report 19-01) compared matched offenders who scored above 44 points. Offenders who received community supervision had a two-year felony reconviction rate of 23.4%, compared with 28.8% for similar offenders released from prison. The same 2019 report estimated that at least 41% of statewide cases scoring above 44 points ended in a departure.

What are the legal grounds for a downward departure in Florida?

Section 921.0026(2) lists 14 mitigating circumstances. Proving any one of them by a preponderance of the evidence gives the judge legal authority to depart. Only one valid reason is needed to support a departure.

Ground (j) trips up more defendants than any other because remorse is not enough by itself. In State v. Sweeney, the Second District reversed a departure where the defendant was remorseful but the offense was neither unsophisticated nor isolated. By contrast, in State v. VanBebber, 848 So. 2d 1046 (Fla. 2003), the Florida Supreme Court upheld a (j) departure in a felony DUI case and held that the statute’s intoxication bar does not block the other mitigators.

Youthful offender sentencing has its own rules, which we cover in our guide to youthful offender sentencing in Florida.

Can a judge depart for a reason that is not on the statutory list?

Yes, but only if the reason fits Florida’s sentencing policy. The statutory list “includes, but is not limited to” the 14 grounds, and courts have upheld unlisted reasons supported by competent, substantial evidence. In State v. Stephenson, 973 So. 2d 1259 (Fla. 5th DCA 2008), the court said a judge may depart “for reasons not delineated in section 921.0026, so long as the reason given is supported by competent, substantial evidence and not otherwise prohibited.”

The Second District, which hears appeals from Hillsborough, Pinellas, and Pasco Counties, adds a limit. An unlisted reason must be “consistent with legislative sentencing policies,” and it generally has to reduce the defendant’s culpability for the crime. In Rafferty v. State, 799 So. 2d 243 (Fla. 2d DCA 2001), the court explained that mitigating circumstances “ameliorate the level of the defendant’s culpability.” A reason that says nothing about the crime, the defendant’s conduct, or the defendant’s mental state is unlikely to survive an appeal.

What did the court decide in State v. Mathis about volunteer work and small drug amounts?

In State v. Mathis, No. 2D2025-2309 (Fla. 2d DCA Oct. 9, 2026), the Second District held that a small drug quantity, volunteer work in jail, and community service talks are not valid grounds for a downward departure.

Wayne Mathis was convicted by a Manatee County jury of selling 0.8 grams of crack cocaine within 1,000 feet of a church. His lowest permissible sentence was 69.75 months in prison. His record included 18 prior felonies, and he qualified as a violent felony offender of special concern. His own lawyer did not ask for a departure and conceded there was no legal basis for one.

The trial judge departed anyway. He sentenced Mathis to one year of community control followed by two years of drug offender probation, citing three reasons:

1. The small amount of cocaine.
2. Mathis’s 5,776 hours of volunteer work in the jail kitchen while awaiting trial.
3. His talks to young people at Teen Court.

The State appealed and won. The Second District rejected all three reasons:

• Drug quantity. “Departing based on the quantity of drugs involved in the offense is not consistent with legislative sentencing policy,” because the Legislature already uses quantity to set drug penalties.
• The judge’s view of the guidelines. A judge’s personal belief that the LPS “overstates the seriousness of the offense” is not a valid reason.
• Volunteer and community work. The court called the jail work “undeniably laudable” but held that it “does not relate to the nature of the crime itself or to Mathis’s offense conduct or level of culpability.” The court added that it “could find no ‘case law that suggests that good work in the community is a valid basis for departure.’”

The court also noted that rewarding good behavior in custody is the Department of Corrections’ job through gain time under section 944.275. A departure on that basis was “an impermissible end run around the Department.”

The case went back for resentencing. The trial judge may still depart on a different, valid ground, as the Florida Supreme Court allowed in Jackson v. State, 64 So. 3d 90 (Fla. 2011).

The lesson for anyone facing sentencing in Tampa Bay is direct. Good character, steady work, and community service still matter when a judge picks a sentence inside the legal range. On their own, they are not a legal basis to go below the scoresheet, and a departure built only on them invites a State appeal and a second sentencing hearing.

Which departure reasons do Florida courts reject?

Courts reject reasons that have nothing to do with the crime or the defendant’s culpability, and reasons the Legislature has already accounted for. The table below compares rejected grounds with grounds that held up when the defense presented the right evidence.

We wrote about the Morgan autism case in detail in Florida Court Reverses Sentence: Judge Ignored Autism Evidence.

Does drug addiction count as a reason for a downward departure?

Not by itself. Section 921.0026(3) says a defendant’s “substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor” and “does not, under any circumstances, justify a downward departure.” The statute carves out one exception: ground (m), the drug court mitigator.

Ground (m) applies when the offense is a nonviolent felony, the scoresheet total is 60 points or fewer, and the judge finds the defendant amenable to a post-adjudicatory treatment-based drug court program. In Hillsborough County, that program runs through Adult Drug Treatment Court, Division “W.” Administrative Order S-2026-002, effective February 2, 2026, sets the same 60-point and nonviolent-felony limits for its post-adjudicatory track. You can read more about local procedure on our Hillsborough County criminal defense page.

A defendant who struggles with addiction may also qualify under ground (d) if a separate mental health condition exists independently of the substance use. A qualified evaluator must document that the disorder is “unrelated to substance abuse or addiction.” For defendants whose mental illness drives the case, Hillsborough also operates a Mental Health Criminal Division, Division “M,” under Administrative Order S-2023-046. Our Tampa criminal mental health lawyer page explains how we build those cases.

How do you prove a mitigating circumstance at a sentencing hearing?

You prove it with evidence, usually expert evidence, by a preponderance of the evidence. Arguments from counsel and letters from family rarely carry a contested departure. Under Banks v. State, 732 So. 2d 1065 (Fla. 1999), the judge decides two questions. First, can the court depart, meaning is there a valid legal ground supported by evidence? Second, should the court depart, considering the whole case?

The Second District enforces the first step strictly. In State v. Caulkins, a Hillsborough County case, the trial judge departed after hearing about the defendant’s upbringing, abuse, and addictions. The Second District reversed because no expert testimony connected those facts to a statutory ground. Without competent, substantial evidence, the departure could not stand.

For the mental health ground, the Florida Supreme Court held in Chubbuck that the defense does not have to prove the Department of Corrections cannot provide treatment. The defense must prove three things: a qualifying mental disorder or physical disability, a need for specialized treatment, and amenability to that treatment. The State may still argue that prison treatment is adequate, and the judge may weigh that at step two.

There are two ways to build this evidence:

A standard evaluation often works when the State is willing to agree to a departure. When the State opposes it, the judge needs more. Licensed counselors and clinical social workers who work as mitigation specialists in capital cases can build the same kind of life history in a serious noncapital case. Our post on why a comprehensive mitigation report sets our firm apart explains how our attorneys put these packages together.

The plan matters as much as the diagnosis. Judges are elected, and every departure is a judgment call that the judge has to defend if the defendant reoffends. A package with identified treatment providers, a work plan, and documented family support gives the judge a record to stand on.

Past results do not guarantee future outcomes.

Can the State appeal a downward departure sentence?

Yes. Section 921.0026(1) makes a sentence below the LPS subject to appellate review, but “the extent of downward departure is not subject to appellate review.” The State can argue that the reason was legally invalid or unsupported by evidence. It cannot argue that the judge went too far below the guidelines.

The State does not need to make a detailed objection to preserve the issue in the Second District. In Mathis, a general objection and a statement that the State reserved its right to appeal were enough.

If the State wins, what happens next depends on how the case was resolved. The judge may depart again on a valid ground at resentencing under Jackson. A defendant who entered an open plea generally cannot withdraw it and faces a guidelines sentence if no valid ground exists, as in State v. Brannum, 876 So. 2d 724 (Fla. 5th DCA 2004). A defendant whose plea depended on the departure may be offered the choice to withdraw the plea, as in Paulk.

Can you appeal if the judge refuses to grant a downward departure?

Yes. In Parrish v. State, No. SC2022-1457 (Fla. June 18, 2026), the Florida Supreme Court held that “a district court has jurisdiction to review a denial of a downward departure.” Before Parrish, the First District had refused to hear these appeals at all.

Having the right to appeal is not the same as winning. On remand, the First District affirmed Parrish’s 30-year sentence, applying its earlier en banc decision in Gazoombi v. State, 406 So. 3d 371 (Fla. 1st DCA 2025): “a bald assertion that the trial court should have imposed a sentence different from the one it did is not a cognizable claim for appellate relief.” Appellate courts reverse refusals to depart when the judge made a legal error.

The First District disagreed with the Second District’s approach in Manyak in a September 2026 decision, so the Florida Supreme Court may eventually resolve that split. For now, the Second District’s rule governs sentencing in Hillsborough, Pinellas, and Pasco Counties. That makes the hearing record decisive: the defense should ask the judge for findings on each Banks step.

A related problem arises when the LPS is higher than the statutory maximum. We explain that situation in what happens when the lowest permissible sentence exceeds the maximum.

What should you do before your sentencing date?

Start building the departure case as soon as you are charged, not the week before sentencing. A credible evaluation, collateral interviews, and a treatment plan take weeks to assemble, and treatment you begin before sentencing is itself evidence of amenability.

A practical timeline looks like this:

1. Right after arrest or charging: have counsel score the case so you know whether you are above 44 points and what the LPS is.
2. During discovery: identify which statutory ground fits the facts and retain the right evaluator or mitigation specialist.
3. Before plea negotiations: share the mitigation package with the prosecutor, because a negotiated ground (a) departure is the most common path.
4. At a contested hearing: present live expert testimony, and ask the judge to make findings on both Banks steps.
5. Within 7 days after sentencing: confirm the judge filed written reasons, as section 921.00265(2) requires.

Mitigation can begin even before charges are filed. Our pre-file advocacy work sometimes puts mitigation in front of prosecutors before they decide what to charge. Deciding whether to accept an offer is its own decision, which we cover in how to decide whether to accept a plea bargain in Florida.

For more about our defense strategies, visit our Criminal Mental Health page.

Frequently asked questions about downward departures

Does community service or volunteer work count toward a downward departure in Florida?

Not as a stand-alone legal ground in the Second District. State v. Mathis held in October 2026 that volunteer work in jail and community service talks do not relate to the crime or the defendant’s culpability, so they cannot justify a sentence below the scoresheet. At The Brancato Law Firm, we still present a client’s work and service history, but we tie the departure request to a statutory ground backed by evidence.

Can drug addiction get you a downward departure in Florida?

Only through the drug court ground or a separate mental health condition. Section 921.0026(3) bars addiction as a mitigator except under ground (m), which requires a nonviolent felony, 60 points or fewer, and amenability to a post-adjudicatory drug court program. As a Tampa drug crimes attorney practice, The Brancato Law Firm screens clients for Hillsborough’s Division “W” drug court track and for independent mental health diagnoses that can support ground (d).

Can I appeal if the judge denies my motion for downward departure?

Yes, but you need a legal error to win. Parrish v. State (Fla. 2026) confirmed that appellate courts can review a denial, and the Second District reverses when a judge misunderstood its discretion, applied a blanket policy, or failed to make clear findings. Our attorneys at The Brancato Law Firm make the record at the sentencing hearing with that appeal in mind, including asking for findings on both Banks steps.

What happens if the State appeals my downward departure and wins?

You return for resentencing, and the judge may depart again on a valid ground. If you entered an open plea, you generally cannot withdraw it, and the judge must impose a guidelines sentence unless a valid departure ground exists. The Brancato Law Firm prepares a backup ground with its own evidence so a reversed departure does not automatically mean prison.

Does an open plea count as a plea bargain for a downward departure?

No. Ground (a) requires a “legitimate, uncoerced plea bargain,” which means an agreement with the State that the court approves, as State v. Beck explains. When there is no agreement, The Brancato Law Firm builds the departure case on another statutory ground supported by expert testimony.

Can a downward departure be a shorter prison sentence instead of probation?

Yes. In Lee v. State (Fla. 2d DCA 2026), the Second District reversed because the judge did not realize it could impose a prison term below the LPS rather than only probation. When probation is not realistic, our attorneys at The Brancato Law Firm ask for a reduced prison term and explain to the court that it has that option.

Do I have to prove the prison system cannot treat my mental illness?

No. State v. Chubbuck (Fla. 2014) held that ground (d) does not require proof that the Department of Corrections cannot provide treatment, although the judge may consider prison treatment when deciding whether to depart. Through our criminal mental health defense practice, The Brancato Law Firm presents a specific community treatment plan so the judge can compare it with what prison offers.

How long does the judge have to file written reasons for a downward departure?

Seven days. Section 921.00265(2) requires a written statement of reasons, or a transcript of reasons stated orally, filed within 7 days after sentencing. Our team at The Brancato Law Firm checks the court file after every departure to confirm the reasons were filed and match what the judge said.

For how this fits into the rest of a case, see our guide to each stage of a Florida criminal case.

Talk to a Tampa criminal defense attorney about your sentencing

If you or someone you love is facing a felony that scores prison, the attorneys of The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, can evaluate whether a downward departure is realistic and start building the evidence now. Call (813) 727-7159. The sooner the mitigation work starts, the more of it a judge will see.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

How Florida’s Criminal Punishment Code Can Eliminate the “Trial Penalty”

Most people assume that going to trial dramatically increases their sentencing risk. Under Florida’s Criminal Punishment Code (CPC), this is often true. However, there’s one critical exception that completely flips the strategic analysis: when your lowest permissible sentence already exceeds the statutory maximum for your offense.

In these cases, you cannot receive a harsher sentence by going to trial. If the prosecution refuses to offer a deal below your LPS, and your lawyer doesn’t understand this leverage, you surrender the biggest strategic advantage the law provides.

Trial vs. Plea: When the Math Changes

How the Criminal Punishment Code Works

Under Florida’s CPC, every felony case generates a scoresheet that calculates a mandatory Lowest Permissible Prison Sentence (LPS). This LPS represents the minimum a judge must impose unless there’s an authorized reason to depart from the guidelines.

In cases involving serious offenses, multiple counts, or extensive prior records, the LPS can climb above the standard statutory maximum. For example, a third-degree felony normally carries a five-year maximum. But if your scoresheet calculates an LPS of 12 years, something important happens: the LPS becomes the maximum.

Florida appellate courts, including the Supreme Court, have consistently reinforced this principle:

“When the statutory maximum sentence as provided in section 775.082, Florida Statutes, is exceeded by the lowest permissible sentence under the code, the lowest permissible sentence under the code becomes the maximum sentence which the trial judge can impose.”

Recent Case: Harris v. State (2025)

The trial judge sentenced Harris to 15 years—but his LPS was only 154.950 months. The Fifth DCA vacated the sentence because it exceeded the legal maximum. This case demonstrates both the rule and what happens when judges violate it.

What This Means for Your Defense Strategy

When your LPS exceeds the statutory maximum, several powerful strategic realities emerge:

1. Plea Advantage Disappears: If the State refuses to offer a sentence below your LPS, that plea provides zero reduction in your sentencing exposure.
2. Trial Risk Neutralized: Going to trial doesn’t increase your sentencing exposure because the post-conviction sentence is capped by the LPS.
3. “Trial Penalty” Eliminated: The traditional fear of receiving a harsher sentence for exercising your right to trial vanishes.
4. Leverage Shifts to Defense: You have everything to gain by going to trial—seeking acquittal, dismissal, or reversal—and nothing additional to lose on sentencing.

Why Your Lawyer Must Understand This Analysis

This CPC analysis separates true major-felony trial lawyers from attorneys who primarily handle high-volume dockets or rely on plea bargaining. Only a lawyer who understands this nuance will:

• Immediately calculate the LPS from the CPC Scoresheet
• Compare the LPS to the statutory maximum and recognize when LPS controls
• Confront the State with this reality: their offer provides no actual incentive if it’s not below the LPS
• Prepare for trial knowing the client’s sentencing risk is identical to the best offer being made

Without a lawyer who executes this analysis, defendants are often pressured into accepting pleas that offer zero benefit compared to post-trial sentencing risk.

Frequently Asked Questions

Is a plea offer above the LPS worthless?

Yes. A plea that doesn’t go below the lowest permissible sentence gives you nothing you wouldn’t also face after conviction at trial. The only value in a plea is guaranteed sentence reduction.

Can I really get more time for going to trial in this situation?

Not legally. When your LPS exceeds the statutory maximum, the judge cannot sentence you to more than the LPS—even after trial conviction.

What is the “trial penalty” or “trial tax”?

The trial penalty is the extra time a defendant may receive after losing at trial compared to a plea offer. In theory, judges shouldn’t impose harsher sentences just because someone exercised their right to trial—but in practice, the gap between plea offers and post-trial sentences can be significant. When LPS exceeds statutory max, this penalty disappears.

If the prosecutor refuses to negotiate below LPS, should I go to trial?

When the prosecutor refuses to offer a sentence below the LPS, your sentencing exposure is identical at trial. Their refusal removes the only leverage a plea might provide, making trial a rational strategic choice to seek acquittal or dismissal.

Do I have to go to trial?

Not necessarily. In many cases, prosecutors will negotiate once they know your attorney is fully prepared to fight. When the State realizes trial is a real possibility, they may agree to a significant departure from guidelines or offer a resolution they’d never consider for an attorney who only pleads cases. A strong trial posture often creates better plea options—sometimes far better than what was originally offered.

For how this fits into the rest of a case, see our step-by-step guide to what happens in a Florida criminal case.

Does This Apply to Your Case?

Understanding whether your LPS exceeds the statutory maximum requires careful scoresheet analysis. If it does, you may have leverage your current attorney hasn’t identified—leverage that could change everything about how your case should be handled.

I’m Tampa Attorney Rocky Brancato. For over 25 years, I have tried major felony cases throughout Tampa Bay. I understand the Criminal Punishment Code, the case law that governs it, and how to use this technical leverage to force better outcomes for clients.

Call (813) 727-7159 for a Case Evaluation

The Brancato Law Firm, P.A.

620 E Twiggs Street, Suite 205, Tampa, FL 33602