Florida Senate - 2017              PROPOSED COMMITTEE SUBSTITUTE
       Bill No. CS for SB 1068
       
       
       
       
       
                               Ì342712zÎ342712                          
       
       576-03828-17                                                    
       Proposed Committee Substitute by the Committee on Appropriations
       (Appropriations Subcommittee on Criminal and Civil Justice)
    1                        A bill to be entitled                      
    2         An act relating to sentencing; amending s. 921.002,
    3         F.S.; specifying requirements for sentencing and
    4         appeals of sentences for offenses committed on or
    5         after a certain date; authorizing upward departures of
    6         sentences under certain circumstances; amending s.
    7         921.0024, F.S.; providing applicability; creating
    8         requirements for permissible sentences for nonstate
    9         prison sanctions and state prison sanctions;
   10         authorizing a judge to depart from the guidelines
   11         under certain circumstances; prohibiting departure
   12         sentences under certain circumstances; creating s.
   13         921.00261, F.S.; providing applicability; defining the
   14         term “upward departure sentence”; specifying
   15         requirements for imposing an upward departure
   16         sentence; providing a circumstance under which a
   17         sentence is subject to appellate review; providing
   18         aggravating circumstances under which an upward
   19         departure sentence is reasonably justified; amending
   20         s. 924.06, F.S.; authorizing a defendant to appeal a
   21         sentence outside a specified range; amending s.
   22         924.07, F.S.; authorizing the state to appeal a
   23         sentence outside a specified range; creating s.
   24         950.021, F.S.; authorizing a court to sentence certain
   25         offenders to a term in county jail for up to 24 months
   26         if the offender meets specified criteria and if the
   27         county has a contract with the Department of
   28         Corrections; providing contractual requirements;
   29         requiring specific appropriations; providing for such
   30         appropriations; requiring validation of per diem
   31         rates; reenacting s. 958.04(3), F.S., relating to
   32         judicial disposition of youthful offenders, to
   33         incorporate the amendments made to ss. 924.06 and
   34         924.07, F.S., in references thereto; providing an
   35         appropriation; providing an effective date.
   36          
   37  Be It Enacted by the Legislature of the State of Florida:
   38  
   39         Section 1. Present paragraphs (g), (h), and (i) of
   40  subsection (1) of section 921.002, Florida Statutes, are
   41  redesignated as paragraphs (h), (i), and (k), respectively, new
   42  paragraphs (g) and (j) are added to that subsection, present
   43  paragraphs (g) and (h) of that subsection are amended, present
   44  subsection (4) of that section is redesignated as subsection
   45  (5), and a new subsection (4) is added to that section, to read:
   46         921.002 The Criminal Punishment Code.—The Criminal
   47  Punishment Code shall apply to all felony offenses, except
   48  capital felonies, committed on or after October 1, 1998.
   49         (1) The provision of criminal penalties and of limitations
   50  upon the application of such penalties is a matter of
   51  predominantly substantive law and, as such, is a matter properly
   52  addressed by the Legislature. The Legislature, in the exercise
   53  of its authority and responsibility to establish sentencing
   54  criteria, to provide for the imposition of criminal penalties,
   55  and to make the best use of state prisons so that violent
   56  criminal offenders are appropriately incarcerated, has
   57  determined that it is in the best interest of the state to
   58  develop, implement, and revise a sentencing policy. The Criminal
   59  Punishment Code embodies the principles that:
   60         (g) An upward departure sentence, as defined in s.
   61  921.00261, must be articulated in writing by the trial court
   62  judge and made only when circumstances or factors reasonably
   63  justify such sentence. The level of proof necessary to establish
   64  facts that support an upward departure sentence is a
   65  preponderance of the evidence.
   66         (h)(g)Except as provided in s. 921.0024(3), the trial
   67  court judge may impose a sentence up to and including the
   68  statutory maximum for any offense, including an offense that is
   69  before the court due to a violation of probation or community
   70  control.
   71         (i)(h) A sentence for an offense committed on or after
   72  October 1, 1998, but before October 1, 2017, may be appealed on
   73  the basis that it departs from the Criminal Punishment Code only
   74  if the sentence is below the lowest permissible sentence or as
   75  enumerated in s. 924.06(1).
   76         (j) A sentence for an offense committed on or after October
   77  1, 2017, may be appealed on the basis that it departs from the
   78  Criminal Punishment Code if the sentence is below the lowest
   79  permissible sentence provided in s. 921.0024(3); is outside the
   80  range authorized by s. 921.0024(3); or is as enumerated in s.
   81  924.06(1).
   82         (4) As provided in s. 921.00261, a court may impose an
   83  upward departure sentence based upon circumstances or factors
   84  that reasonably justify the aggravation of the sentence. The
   85  level of proof necessary to establish facts supporting an upward
   86  departure sentence is a preponderance of the evidence. When
   87  multiple reasons exist to support an upward departure sentence,
   88  such sentence shall be upheld when at least one circumstance or
   89  factor justifies such sentence regardless of the presence of
   90  other circumstances or factors found not to justify such
   91  sentence. Any upward departure sentence must be explained in
   92  writing by the trial court judge.
   93         Section 2. Present subsections (3) through (7) of section
   94  921.0024, Florida Statutes, are redesignated as subsections (4)
   95  through (8), respectively, and a new subsection (3) is added to
   96  that section, to read:
   97         921.0024 Criminal Punishment Code; worksheet computations;
   98  scoresheets.—
   99         (3)(a) This subsection applies to any felony offense,
  100  except a capital felony, committed on or after October 1, 2017.
  101         (b) The lowest permissible sentence is the minimum sentence
  102  that may be imposed by the trial court, absent a valid reason
  103  for departure.
  104         (c)The lowest permissible sentence is any nonstate prison
  105  sanction in which the total sentence points equal or are less
  106  than 44 points. The trial court may increase the total sentence
  107  points by up to, and including, 25 percent. If the total
  108  sentence points exceed 44 points as a result of this increase,
  109  the court may not impose a state prison sentence that is longer
  110  than the lowest permissible sentence in prison months calculated
  111  pursuant to paragraph (d).
  112         (d)If the total sentence points exceed 44 points, the
  113  lowest permissible sentence in prison months shall be calculated
  114  by subtracting 28 points from the total sentence points and
  115  decreasing the remaining total by 25 percent. The total sentence
  116  points shall be calculated only as a means of determining the
  117  lowest permissible sentence. The trial court may impose
  118  sentences under this subsection or s. 921.00261 concurrently or
  119  consecutively. However, any sentence to state prison must exceed
  120  1 year. If the lowest permissible sentence in prison months
  121  exceeds the statutory maximum sentence as provided in s.
  122  775.082, the lowest permissible sentence in prison months must
  123  be imposed. If the total sentence points are greater than or
  124  equal to 363, the court may sentence the offender to life
  125  imprisonment. An offender sentenced to life imprisonment under
  126  this subsection is not eligible for any form of discretionary
  127  early release, except executive clemency or conditional medical
  128  release under s. 947.149. This subsection does not supersede any
  129  requirement in subsection (1) to impose a statutory maximum
  130  sentence.
  131         (e)The trial court may impose a state prison sentence that
  132  does not vary upward by more than 25 percent from the lowest
  133  permissible sentence in prison months calculated pursuant to
  134  paragraph (d). However, no sentence imposed pursuant to this
  135  paragraph may exceed the statutory maximum sentence as provided
  136  in s. 775.082.
  137         (f) Except as provided in s. 921.00261, the trial court may
  138  not impose a sentence that varies upward by more than 25 percent
  139  from the lowest permissible sentence in prison months calculated
  140  pursuant to paragraph (d). The permissible range for sentencing
  141  for an upward departure sentence imposed by the court pursuant
  142  to s. 921.00261 is the lowest permissible sentence up to and
  143  including the statutory maximum, as provided in s. 775.082, for
  144  the primary offense and any additional offense before the court
  145  for sentencing.
  146         Section 3. Section 921.00261, Florida Statutes, is created
  147  to read:
  148         921.00261 Upward departure sentence; aggravating
  149  circumstances.—
  150         (1)(a) This section applies to any felony offense, except a
  151  capital felony, committed on or after October 1, 2017.
  152         (b) The sentence imposed pursuant to s. 921.0024(3)(d) or
  153  (3)(e) is assumed to be appropriate for the offender. A sentence
  154  that the trial court is authorized to impose pursuant to s.
  155  921.0024(3) is not an upward departure sentence. As used in this
  156  section, the term “upward departure sentence” means a state
  157  prison sentence that varies upward by more than 25 percent from
  158  the lowest permissible sentence in prison months calculated
  159  pursuant to s. 921.0024(3)(d).
  160         (c) The trial court may impose an upward departure sentence
  161  only if the sentence is accompanied by a written statement from
  162  the court specifying the reasons for the departure, filed within
  163  7 days after the date of sentencing. A written transcription of
  164  orally stated reasons for this departure is permissible if it is
  165  filed by the court within 7 days after the date of sentencing.
  166         (d) The imposition of a split sentence of incarceration
  167  followed by community control or probation does not by itself
  168  constitute an upward departure. For the purpose of determining
  169  the maximum sentence authorized by law, any community control
  170  portion of a split sentence does not constitute a term of
  171  imprisonment.
  172         (e) An upward departure sentence must be within any
  173  relevant maximum sentence limitations provided by s. 775.082.
  174         (2) An upward departure sentence is discouraged unless
  175  there are circumstances or factors that reasonably justify the
  176  departure. Aggravating circumstances to be considered include,
  177  but are not limited to, those listed in subsection (3). The
  178  failure of the trial court to impose a sentence within the range
  179  authorized by s. 921.0024(3) is subject to appellate review
  180  under chapter 924, but the extent of the departure from such
  181  range is not subject to appellate review.
  182         (3) Aggravating circumstances under which an upward
  183  departure sentence is reasonably justified include, but are not
  184  limited to:
  185         (a) The departure results from a legitimate, uncoerced plea
  186  bargain.
  187         (b) The offense was one of violence and was committed in a
  188  manner that was especially heinous, atrocious, or cruel.
  189         (c) The offenses before the court for sentencing arose out
  190  of separate episodes, the primary offense is scored at offense
  191  level 4 or higher, and the defendant has committed five or more
  192  offenses within a 180-day period which have resulted in
  193  convictions.
  194         (d) The primary offense is scored at offense level 3, and
  195  the defendant has committed eight or more offenses within a 180
  196  day period which have resulted in convictions.
  197         (e) The offense before the court for disposition was
  198  committed within 6 months after the defendant was discharged
  199  from probation, community control, or pretrial intervention or
  200  diversion or released from state prison, whichever is later.
  201         (f) The defendant occupied a leadership role in a criminal
  202  organization.
  203         (g) The offense was committed by a public official under
  204  color of office.
  205         (h) The defendant knew the victim was a law enforcement
  206  officer at the time of the offense, the offense was a violent
  207  offense, and that status is not an element of the primary
  208  offense.
  209         (i) The offense created a substantial risk of death or
  210  great bodily harm to many persons or to one or more children.
  211         (j) The victim was especially vulnerable due to age or
  212  physical or mental disability.
  213         (k) The offense was motivated by prejudice based on race,
  214  color, ancestry, ethnicity, religion, sexual orientation, or
  215  national origin of the victim.
  216         (l) The victim suffered extraordinary physical or emotional
  217  trauma or permanent physical injury or was treated with
  218  particular cruelty.
  219         (m) The victim was physically attacked by the defendant in
  220  the presence of one or more members of the victim’s family.
  221         (n) The offense resulted in substantial economic hardship
  222  to the victim and consisted of an illegal act or acts committed
  223  by means of concealment, guile, or fraud to obtain money or
  224  property, to avoid payment or loss of money or property, or to
  225  obtain business or professional advantage, when two or more of
  226  the following circumstances were present:
  227         1. The offense involved multiple victims or multiple
  228  incidents per victim;
  229         2. The offense involved a high degree of sophistication or
  230  planning or occurred over a lengthy period of time;
  231         3. The defendant used position or status to facilitate the
  232  commission of the offense, including positions of trust,
  233  confidence, or fiduciary relationship; or
  234         4. The defendant was in the past involved in other conduct
  235  similar to that involved in the current offense.
  236         (o) The offense was committed in order to prevent or avoid
  237  arrest, to impede or prevent prosecution for the conduct
  238  underlying the offense, or to effect an escape from custody.
  239         (p) The defendant is not amenable to rehabilitation or
  240  supervision, as evidenced by an escalating pattern of criminal
  241  conduct, which is a progression from nonviolent to violent
  242  crimes, a progression of increasingly violent crimes, or a
  243  pattern of increasingly serious criminal activity.
  244         (q) The defendant induced a minor to participate in any of
  245  the offenses pending before the court for disposition.
  246         (r) The primary offense is scored at offense level 7 or
  247  higher, and the defendant has been convicted of an additional
  248  offense that scored, or would have scored, at an offense level 8
  249  or higher.
  250         (s) The defendant has an extensive unscorable juvenile
  251  record.
  252         (t) The defendant committed an offense involving sexual
  253  contact or sexual penetration, and, as a direct result of the
  254  offense, the victim contracted a sexually transmissible disease.
  255         Section 4. Subsection (1) of section 924.06, Florida
  256  Statutes, is amended to read:
  257         924.06 Appeal by defendant.—
  258         (1) A defendant may appeal any of the following from:
  259         (a) A final judgment of conviction when probation has not
  260  been granted under chapter 948, except as provided in subsection
  261  (3).;
  262         (b) An order granting probation under chapter 948.;
  263         (c) An order revoking probation under chapter 948.;
  264         (d) A sentence, on the ground that it is illegal.; or
  265         (e) A sentence imposed under s. 921.0024 of the Criminal
  266  Punishment Code which exceeds the statutory maximum penalty
  267  provided in s. 775.082 for an offense at conviction, or the
  268  consecutive statutory maximums for offenses at conviction,
  269  unless otherwise provided by law.
  270         (f)A sentence imposed outside the range authorized by s.
  271  921.0024(3).
  272         Section 5. Subsection (1) of section 924.07, Florida
  273  Statutes, is amended to read:
  274         924.07 Appeal by state.—
  275         (1) The state may appeal any of the following from:
  276         (a) An order dismissing an indictment or information or any
  277  count thereof or dismissing an affidavit charging the commission
  278  of a criminal offense, the violation of probation, the violation
  279  of community control, or the violation of any supervised
  280  correctional release.
  281         (b) An order granting a new trial.
  282         (c) An order arresting judgment.
  283         (d) A ruling on a question of law when the defendant is
  284  convicted and appeals from the judgment. Once the state’s cross
  285  appeal is instituted, the appellate court shall review and rule
  286  upon the question raised by the state regardless of the
  287  disposition of the defendant’s appeal.
  288         (e) The sentence, on the ground that it is illegal.
  289         (f) A judgment discharging a prisoner on habeas corpus.
  290         (g) An order adjudicating a defendant insane under the
  291  Florida Rules of Criminal Procedure.
  292         (h) All other pretrial orders, except that it may not take
  293  more than one appeal under this subsection in any case.
  294         (i) A sentence imposed below the lowest permissible
  295  sentence established by the Criminal Punishment Code under
  296  chapter 921.
  297         (j) A ruling granting a motion for judgment of acquittal
  298  after a jury verdict.
  299         (k) An order denying restitution under s. 775.089.
  300         (l) An order or ruling suppressing evidence or evidence in
  301  limine at trial.
  302         (m) An order withholding adjudication of guilt in violation
  303  of s. 775.08435.
  304         (n) A sentence imposed outside the range authorized by s.
  305  921.0024(3).
  306         Section 6. Section 950.021, Florida Statutes, is created to
  307  read:
  308         950.021Sentencing of offenders to county jail.—
  309         (1)Notwithstanding s. 921.0024 or any other provision of
  310  law, and effective for offenses committed on or after July 1,
  311  2017, a court may sentence an offender to a term in the county
  312  jail in the county where the offense was committed for up to 24
  313  months if the offender meets all of the following criteria:
  314         (a)The offender’s total sentence points score, as provided
  315  in s. 921.0024, is more than 44 points but no more than 60
  316  points.
  317         (b)The offender’s primary offense is not a forcible felony
  318  as defined in s. 776.08; however, an offender whose primary
  319  offense is a third degree felony under chapter 810 is eligible
  320  to be sentenced to a county jail under this paragraph.
  321         (c)The offender’s primary offense is not punishable by a
  322  minimum mandatory sentence of more than 24 months.
  323         (2)(a)The court may only sentence an offender to a county
  324  jail pursuant to this section if there is a contractual
  325  agreement between the chief correctional officer of that county
  326  and the Department of Corrections.
  327         (b)If the chief correctional officer of a county requests
  328  the Department of Corrections to enter into a contract that
  329  allows offenders to be sentenced to the county jail pursuant to
  330  subsection (1), subject to the restrictions of this paragraph
  331  and subsections (3) and (6), the Department of Corrections must
  332  enter into such a contract. The contract must specifically
  333  establish the maximum number of beds and the validated per diem
  334  rate. The contract must provide for per diem reimbursement for
  335  occupied inmate days based on the contracting county’s most
  336  recent annual adult male custody or adult female custody per
  337  diem rates, not to exceed $60 per inmate.
  338         (3)A contract under this section is contingent upon a
  339  specific appropriation as provided by law. Contracts shall be
  340  awarded by the Department of Corrections on a first-come, first
  341  served basis up to the maximum appropriation allowable for this
  342  purpose. The maximum appropriation allowable consists of funds
  343  appropriated in or transferred to the specific appropriation in
  344  the Inmates Sentenced to County Jail appropriation category.
  345  Before any transferred appropriation under this section, the
  346  Inmates Sentenced to County Jail appropriation category provides
  347  for an estimated incremental appropriation for county jail beds
  348  contracted under this section in excess of the Department of
  349  Corrections’ per diem for adult male and female inmates.
  350         (4)The Department of Corrections shall transfer funds
  351  pursuant to s. 216.177 from other appropriation categories
  352  within the Adult Male Custody Operations or Adult and Youthful
  353  Offender Female Custody Operations budget entities to the
  354  Inmates Sentenced to County Jail appropriation category in an
  355  amount necessary to satisfy the requirements of each executed
  356  contract, but not to exceed the Department of Corrections’
  357  average total per diem published for the preceding fiscal year
  358  for adult male custody or adult and youthful offender female
  359  custody inmates for each county jail bed contracted.
  360         (5)The Department of Corrections shall assume maximum
  361  annual value of each contract when determining the full use of
  362  funds appropriated and must ensure that the maximum
  363  appropriation allowable is not exceeded.
  364         (6)All contractual per diem rates under this section as
  365  well as the per diem rates used by the Department of Corrections
  366  must be validated by the Auditor General before payments are
  367  made.
  368         Section 7. For the purpose of incorporating the amendments
  369  made by this act to sections 924.06 and 924.07, Florida
  370  Statutes, in references thereto, subsection (3) of section
  371  958.04, Florida Statutes, is reenacted to read:
  372         958.04 Judicial disposition of youthful offenders.—
  373         (3) The provisions of this section shall not be used to
  374  impose a greater sentence than the permissible sentence range as
  375  established by the Criminal Punishment Code pursuant to chapter
  376  921 unless reasons are explained in writing by the trial court
  377  judge which reasonably justify departure. A sentence imposed
  378  outside of the code is subject to appeal pursuant to s. 924.06
  379  or s. 924.07.
  380         Section 8. For the 2017-2018 fiscal year, the sum of
  381  $1,609,285 in nonrecurring funds from the General Revenue Fund
  382  is appropriated to the Department of Corrections, Inmates
  383  Sentenced to County Jail appropriation category in the Executive
  384  Direction and Support Services budget entity for the purpose of
  385  implementing s. 950.021, Florida Statutes, as created in this
  386  act.
  387         Section 9. This act shall take effect July 1, 2017.