Florida Senate - 2018                                    SB 1194
       
       
        
       By Senator Rouson
       
       
       
       
       
       19-00739A-18                                          20181194__
    1                        A bill to be entitled                      
    2         An act relating to criminal justice; amending s.
    3         775.082, F.S.; requiring a defendant who is sentenced
    4         for a primary offense of possession of a controlled
    5         substance committed on or after a specified date to be
    6         sentenced to a nonstate prison sanction under certain
    7         circumstances unless the court makes specified written
    8         findings; defining the term “possession of a
    9         controlled substance”; authorizing a defendant to move
   10         the sentencing court to depart from a mandatory
   11         minimum term of imprisonment or a mandatory fine if
   12         the offense is committed on or after a specified date;
   13         authorizing the state attorney to file an objection to
   14         the motion; authorizing the sentencing court to grant
   15         the motion if the court finds that the defendant has
   16         demonstrated by a preponderance of the evidence that
   17         specified criteria are met; defining the term
   18         “coercion”; providing applicability; amending s.
   19         921.002, F.S.; revising a principle of the Criminal
   20         Punishment Code relating to a prisoner’s required
   21         minimum term of imprisonment; amending s. 944.275,
   22         F.S.; revising the incentive gain-time that the
   23         Department of Corrections may grant a prisoner for
   24         offenses committed on or after a specified date;
   25         providing exceptions; revising the conditions under
   26         which an inmate may be granted a one-time award of 60
   27         additional days of incentive gain-time by the
   28         department; deleting provisions prohibiting inmates
   29         from earning or receiving gain-time in amounts that
   30         would cause the inmate’s sentence to expire, end, or
   31         terminate, or result in a prisoner’s release, before
   32         serving a specified percentage of the imposed
   33         sentence; amending s. 947.1405, F.S.; providing that
   34         persons convicted of a noncapital offense and
   35         sentenced for a term of life qualify for conditional
   36         release, subject to certain terms and conditions;
   37         requiring that the Department of Corrections within a
   38         specified timeframe review certain records of persons
   39         serving life sentences and compile such information
   40         for the Florida Commission on Offender Review to use
   41         in making certain determinations regarding conditional
   42         release; reenacting ss. 775.084(4)(j), 944.70,
   43         947.13(1)(f), and 947.141(1), (2), and (7), F.S.,
   44         relating to the conditional release program applying
   45         to persons sentenced under certain provisions,
   46         conditions for release from incarceration, the powers
   47         and duties of the Florida Commission on Offender
   48         Review, and violations of certain release or
   49         supervision provisions, respectively, to incorporate
   50         the amendment made to s. 947.1405, F.S., in references
   51         thereto; providing an effective date.
   52          
   53  Be It Enacted by the Legislature of the State of Florida:
   54  
   55         Section 1. Present subsection (11) of section 775.082,
   56  Florida Statutes, is redesignated as subsection (13), and a new
   57  subsection (11) and subsection (12) are added to that section,
   58  to read:
   59         775.082 Penalties; applicability of sentencing structures;
   60  mandatory minimum sentences for certain reoffenders previously
   61  released from prison.—
   62         (11) If a defendant is sentenced for a primary offense of
   63  possession of a controlled substance committed on or after
   64  October 1, 2018, and if the total sentence points pursuant to s.
   65  921.0024 are 60 points or fewer, the court must sentence the
   66  offender to a nonstate prison sanction. However, if the court
   67  makes written findings that a nonstate prison sanction could
   68  present a danger to the public, the court may sentence the
   69  offender to a state correctional facility pursuant to this
   70  section. As used in this subsection, the term “possession of a
   71  controlled substance” means possession of a controlled substance
   72  in violation of s. 893.13 but does not include possession with
   73  intent to sell, manufacture, or deliver a controlled substance
   74  or possession of a controlled substance in violation of s.
   75  893.135.
   76         (12)(a) A defendant who is convicted of an offense
   77  committed on or after October 1, 2018, which requires that a
   78  mandatory minimum term of imprisonment be imposed may move the
   79  sentencing court to depart from the mandatory minimum term and,
   80  if applicable, the mandatory fine. The state attorney may file
   81  an objection to the motion.
   82         (b) The court may grant the defendant’s motion if the court
   83  finds that the defendant has demonstrated by a preponderance of
   84  the evidence that all of the following criteria are met:
   85         1.The defendant has not previously received a departure
   86  under this section and has not been previously convicted of the
   87  same offense for which he or she requests a departure under this
   88  section;
   89         2.The offense is not a forcible felony as defined in s.
   90  776.08 or a misdemeanor that involves the use or threat of
   91  physical force or violence against another person. However,
   92  burglary of an unoccupied structure or conveyance is not
   93  considered a forcible felony for purposes of this subparagraph;
   94         3.The offense does not involve physical injury to another
   95  person or coercion of another person; and
   96         4.The offense does not involve a victim who is a minor or
   97  the use of a minor in the commission of the offense.
   98         (c)As used in this subsection, the term “coercion” means:
   99         1.Using or threatening to use physical force against
  100  another person; or
  101         2. Restraining or confining or threatening to restrain or
  102  confine another person without lawful authority and against his
  103  or her will.
  104         (d)This subsection does not apply to sentencing pursuant
  105  to subsection (9), s. 775.0837, s. 775.084, or s. 794.0115.
  106         Section 2. Paragraph (e) of subsection (1) of section
  107  921.002, Florida Statutes, is amended to read:
  108         921.002 The Criminal Punishment Code.—The Criminal
  109  Punishment Code shall apply to all felony offenses, except
  110  capital felonies, committed on or after October 1, 1998.
  111         (1) The provision of criminal penalties and of limitations
  112  upon the application of such penalties is a matter of
  113  predominantly substantive law and, as such, is a matter properly
  114  addressed by the Legislature. The Legislature, in the exercise
  115  of its authority and responsibility to establish sentencing
  116  criteria, to provide for the imposition of criminal penalties,
  117  and to make the best use of state prisons so that violent
  118  criminal offenders are appropriately incarcerated, has
  119  determined that it is in the best interest of the state to
  120  develop, implement, and revise a sentencing policy. The Criminal
  121  Punishment Code embodies the principles that:
  122         (e) The sentence imposed by the sentencing judge reflects
  123  the length of actual time to be served, shortened only by the
  124  application of incentive and meritorious gain-time as provided
  125  by law, and may not be shortened if the defendant would
  126  consequently serve less than 65 percent of his or her term of
  127  imprisonment as provided in s. 944.275(4)(b)4.a. or 85 percent
  128  of his or her term of imprisonment as provided in s. 944.275(4)
  129  or s. 944.275(4)(b)4.b. The provisions of chapter 947, relating
  130  to parole, shall not apply to persons sentenced under the
  131  Criminal Punishment Code.
  132         Section 3. Paragraphs (b), (d), and (f) of subsection (4)
  133  of section 944.275, Florida Statutes, are amended to read:
  134         944.275 Gain-time.—
  135         (4)
  136         (b) For each month in which an inmate works diligently,
  137  participates in training, uses time constructively, or otherwise
  138  engages in positive activities, the department may grant
  139  incentive gain-time in accordance with this paragraph. The rate
  140  of incentive gain-time in effect on the date the inmate
  141  committed the offense that which resulted in his or her
  142  incarceration shall be the inmate’s rate of eligibility to earn
  143  incentive gain-time throughout the period of incarceration and
  144  may shall not be altered by a subsequent change in the severity
  145  level of the offense for which the inmate was sentenced.
  146         1. For sentences imposed for offenses committed before
  147  prior to January 1, 1994, up to 20 days of incentive gain-time
  148  may be granted. If granted, such gain-time shall be credited and
  149  applied monthly.
  150         2. For sentences imposed for offenses committed on or after
  151  January 1, 1994, and before October 1, 1995:
  152         a. For offenses ranked in offense severity levels 1 through
  153  7, under former s. 921.0012 or former s. 921.0013, up to 25 days
  154  of incentive gain-time may be granted. If granted, such gain
  155  time shall be credited and applied monthly.
  156         b. For offenses ranked in offense severity levels 8, 9, and
  157  10, under former s. 921.0012 or former s. 921.0013, up to 20
  158  days of incentive gain-time may be granted. If granted, such
  159  gain-time shall be credited and applied monthly.
  160         3. For sentences imposed for offenses committed on or after
  161  October 1, 1995, and before October 1, 2018, the department may
  162  grant up to 10 days per month of incentive gain-time.
  163         4.For sentences imposed for offenses committed on or after
  164  October 1, 2018, the department may grant up to 20 days per
  165  month of incentive gain-time, except that:
  166         a.If the offense is a nonviolent felony, as defined in s.
  167  948.08(6), the prisoner is not eligible to earn any type of
  168  gain-time in an amount that would cause a sentence to expire,
  169  end, or terminate, or that would result in a prisoner’s release,
  170  before he or she serves a minimum of 65 percent of the sentence
  171  imposed. For purposes of this sub-subparagraph, credits awarded
  172  by the court for time physically incarcerated shall be credited
  173  toward satisfaction of 65 percent of the sentence imposed. A
  174  prisoner who is granted incentive gain-time pursuant to this
  175  sub-subparagraph may not accumulate further gain-time awards at
  176  any point when the tentative release date is the same as that
  177  date at which the prisoner will have served 65 percent of the
  178  sentence imposed. State prisoners sentenced to life imprisonment
  179  shall be incarcerated for the rest of their natural lives,
  180  unless granted pardon or clemency.
  181         b.If the offense is not a nonviolent felony, as defined in
  182  s. 948.08(6), the prisoner is not eligible to earn any type of
  183  gain-time in an amount that would cause a sentence to expire,
  184  end, or terminate, or that would result in a prisoner’s release,
  185  before he or she serves a minimum of 85 percent of the sentence
  186  imposed. For purposes of this sub-subparagraph, credits awarded
  187  by the court for time physically incarcerated shall be credited
  188  toward satisfaction of 85 percent of the sentence imposed. A
  189  prisoner who is granted incentive gain-time pursuant to this
  190  sub-subparagraph may not accumulate further gain-time awards at
  191  any point when the tentative release date is the same as that
  192  date at which the prisoner will have served 85 percent of the
  193  sentence imposed. State prisoners sentenced to life imprisonment
  194  shall be incarcerated for the rest of their natural lives,
  195  unless granted pardon or clemency.
  196         (d) Notwithstanding the monthly maximum awards of incentive
  197  gain-time under subparagraphs (b)1.-4., 2., and 3., the
  198  education program manager shall recommend, and the Department of
  199  Corrections may grant, a one-time award of 60 additional days of
  200  incentive gain-time to an inmate who is otherwise eligible and
  201  who successfully completes requirements for and is, or has been
  202  during the current commitment, awarded a high school equivalency
  203  diploma or vocational certificate. Under no circumstances may an
  204  inmate receive more than 60 days for educational attainment
  205  pursuant to this section.
  206         (f) An inmate who is subject to subparagraph (b)3. is not
  207  eligible to earn or receive gain-time under paragraph (a),
  208  paragraph (b), paragraph (c), or paragraph (d) or any other type
  209  of gain-time in an amount that would cause a sentence to expire,
  210  end, or terminate, or that would result in a prisoner’s release,
  211  prior to serving a minimum of 85 percent of the sentence
  212  imposed. For purposes of this paragraph, credits awarded by the
  213  court for time physically incarcerated shall be credited toward
  214  satisfaction of 85 percent of the sentence imposed. Except as
  215  provided by this section, a prisoner may not accumulate further
  216  gain-time awards at any point when the tentative release date is
  217  the same as that date at which the prisoner will have served 85
  218  percent of the sentence imposed. State prisoners sentenced to
  219  life imprisonment shall be incarcerated for the rest of their
  220  natural lives, unless granted pardon or clemency.
  221         Section 4. Subsections (2) and (5) of section 947.1405,
  222  Florida Statutes, are amended to read:
  223         947.1405 Conditional release program.—
  224         (2) Any inmate who:
  225         (a) Is convicted of a crime committed on or after October
  226  1, 1988, and before January 1, 1994, and any inmate who is
  227  convicted of a crime committed on or after January 1, 1994,
  228  which crime is or was contained in category 1, category 2,
  229  category 3, or category 4 of Rule 3.701 and Rule 3.988, Florida
  230  Rules of Criminal Procedure (1993), and who has served at least
  231  one prior felony commitment at a state or federal correctional
  232  institution;
  233         (b) Is sentenced as a habitual or violent habitual offender
  234  or a violent career criminal pursuant to s. 775.084; or
  235         (c) Is found to be a sexual predator under s. 775.21 or
  236  former s. 775.23; or
  237         (d)Is convicted of a noncapital offense and sentenced for
  238  a term of life,
  239  
  240  shall, upon reaching the tentative release date or provisional
  241  release date or serving 20 years of a life sentence with no
  242  record of disciplinary violations during that time, whichever
  243  occurs is earlier, as established by the Department of
  244  Corrections, be released under supervision subject to specified
  245  terms and conditions, including payment of the cost of
  246  supervision pursuant to s. 948.09. Such supervision shall be
  247  applicable to all sentences within the overall term of sentences
  248  if an inmate’s overall term of sentences includes one or more
  249  sentences that are eligible for conditional release supervision
  250  as provided herein. Effective July 1, 1994, and applicable for
  251  offenses committed on or after that date, the commission may
  252  require, as a condition of conditional release, that the
  253  releasee make payment of the debt due and owing to a county or
  254  municipal detention facility under s. 951.032 for medical care,
  255  treatment, hospitalization, or transportation received by the
  256  releasee while in that detention facility. The commission, in
  257  determining whether to order such repayment and the amount of
  258  such repayment, shall consider the amount of the debt, whether
  259  there was any fault of the institution for the medical expenses
  260  incurred, the financial resources of the releasee, the present
  261  and potential future financial needs and earning ability of the
  262  releasee, and dependents, and other appropriate factors. If any
  263  inmate placed on conditional release supervision is also subject
  264  to probation or community control, resulting from a probationary
  265  or community control split sentence within the overall term of
  266  sentences, the Department of Corrections shall supervise such
  267  person according to the conditions imposed by the court and the
  268  commission shall defer to such supervision. If the court revokes
  269  probation or community control and resentences the offender to a
  270  term of incarceration, such revocation also constitutes a
  271  sufficient basis for the revocation of the conditional release
  272  supervision on any nonprobationary or noncommunity control
  273  sentence without further hearing by the commission. If any such
  274  supervision on any nonprobationary or noncommunity control
  275  sentence is revoked, such revocation may result in a forfeiture
  276  of all gain-time, and the commission may revoke the resulting
  277  deferred conditional release supervision or take other action it
  278  considers appropriate. If the term of conditional release
  279  supervision exceeds that of the probation or community control,
  280  then, upon expiration of the probation or community control,
  281  authority for the supervision shall revert to the commission and
  282  the supervision shall be subject to the conditions imposed by
  283  the commission. A panel of no fewer than two commissioners shall
  284  establish the terms and conditions of any such release. If the
  285  offense was a controlled substance violation, the conditions
  286  shall include a requirement that the offender submit to random
  287  substance abuse testing intermittently throughout the term of
  288  conditional release supervision, upon the direction of the
  289  correctional probation officer as defined in s. 943.10(3). The
  290  commission shall also determine whether the terms and conditions
  291  of such release have been violated and whether such violation
  292  warrants revocation of the conditional release.
  293         (5) Within 180 days before an inmate’s prior to the
  294  tentative release date, or provisional release date, or
  295  completion of 20 years of a life sentence, whichever occurs is
  296  earlier, a representative of the department shall review the
  297  inmate’s program participation, disciplinary record,
  298  psychological and medical records, criminal records, and any
  299  other information pertinent to the impending release. The
  300  department shall gather and compile information necessary for
  301  the commission to make the determinations set forth in
  302  subsections (2) and subsection (3). A department representative
  303  shall conduct a personal interview with the inmate for the
  304  purpose of determining the details of the inmate’s release plan,
  305  including the inmate’s planned residence and employment. The
  306  department representative shall forward the inmate’s release
  307  plan to the commission and recommend to the commission the terms
  308  and conditions of the conditional release.
  309         Section 5. For the purpose of incorporating the amendment
  310  made by this act to section 947.1405, Florida Statutes, in a
  311  reference thereto, paragraph (j) of subsection (4) of section
  312  775.084, Florida Statutes, is reenacted to read:
  313         775.084 Violent career criminals; habitual felony offenders
  314  and habitual violent felony offenders; three-time violent felony
  315  offenders; definitions; procedure; enhanced penalties or
  316  mandatory minimum prison terms.—
  317         (4)
  318         (j) The provisions of s. 947.1405 shall apply to persons
  319  sentenced as habitual felony offenders and persons sentenced as
  320  habitual violent felony offenders.
  321         Section 6. For the purpose of incorporating the amendment
  322  made by this act to section 947.1405, Florida Statutes, in a
  323  reference thereto, section 944.70, Florida Statutes, is
  324  reenacted to read:
  325         944.70 Conditions for release from incarceration.—
  326         (1)(a) A person who is convicted of a crime committed on or
  327  after October 1, 1983, but before January 1, 1994, may be
  328  released from incarceration only:
  329         1. Upon expiration of the person’s sentence;
  330         2. Upon expiration of the person’s sentence as reduced by
  331  accumulated gain-time;
  332         3. As directed by an executive order granting clemency;
  333         4. Upon attaining the provisional release date;
  334         5. Upon placement in a conditional release program pursuant
  335  to s. 947.1405; or
  336         6. Upon the granting of control release pursuant to s.
  337  947.146.
  338         (b) A person who is convicted of a crime committed on or
  339  after January 1, 1994, may be released from incarceration only:
  340         1. Upon expiration of the person’s sentence;
  341         2. Upon expiration of the person’s sentence as reduced by
  342  accumulated meritorious or incentive gain-time;
  343         3. As directed by an executive order granting clemency;
  344         4. Upon placement in a conditional release program pursuant
  345  to s. 947.1405 or a conditional medical release program pursuant
  346  to s. 947.149; or
  347         5. Upon the granting of control release, including
  348  emergency control release, pursuant to s. 947.146.
  349         (2) A person who is convicted of a crime committed on or
  350  after December 1, 1990, and who receives a control release date
  351  may not refuse to accept the terms or conditions of control
  352  release.
  353         Section 7. For the purpose of incorporating the amendment
  354  made by this act to section 947.1405, Florida Statutes, in a
  355  reference thereto, paragraph (f) of subsection (1) of section
  356  947.13, Florida Statutes, is reenacted to read:
  357         947.13 Powers and duties of commission.—
  358         (1) The commission shall have the powers and perform the
  359  duties of:
  360         (f) Establishing the terms and conditions of persons
  361  released on conditional release under s. 947.1405, and
  362  determining subsequent ineligibility for conditional release due
  363  to a violation of the terms or conditions of conditional release
  364  and taking action with respect to such a violation.
  365         Section 8. For the purpose of incorporating the amendment
  366  made by this act to section 947.1405, Florida Statutes, in a
  367  reference thereto, subsections (1), (2), and (7) of section
  368  947.141, Florida Statutes, are reenacted to read:
  369         947.141 Violations of conditional release, control release,
  370  or conditional medical release or addiction-recovery
  371  supervision.—
  372         (1) If a member of the commission or a duly authorized
  373  representative of the commission has reasonable grounds to
  374  believe that an offender who is on release supervision under s.
  375  947.1405, s. 947.146, s. 947.149, or s. 944.4731 has violated
  376  the terms and conditions of the release in a material respect,
  377  such member or representative may cause a warrant to be issued
  378  for the arrest of the releasee; if the offender was found to be
  379  a sexual predator, the warrant must be issued.
  380         (2) Upon the arrest on a felony charge of an offender who
  381  is on release supervision under s. 947.1405, s. 947.146, s.
  382  947.149, or s. 944.4731, the offender must be detained without
  383  bond until the initial appearance of the offender at which a
  384  judicial determination of probable cause is made. If the trial
  385  court judge determines that there was no probable cause for the
  386  arrest, the offender may be released. If the trial court judge
  387  determines that there was probable cause for the arrest, such
  388  determination also constitutes reasonable grounds to believe
  389  that the offender violated the conditions of the release. Within
  390  24 hours after the trial court judge’s finding of probable
  391  cause, the detention facility administrator or designee shall
  392  notify the commission and the department of the finding and
  393  transmit to each a facsimile copy of the probable cause
  394  affidavit or the sworn offense report upon which the trial court
  395  judge’s probable cause determination is based. The offender must
  396  continue to be detained without bond for a period not exceeding
  397  72 hours excluding weekends and holidays after the date of the
  398  probable cause determination, pending a decision by the
  399  commission whether to issue a warrant charging the offender with
  400  violation of the conditions of release. Upon the issuance of the
  401  commission’s warrant, the offender must continue to be held in
  402  custody pending a revocation hearing held in accordance with
  403  this section.
  404         (7) If a law enforcement officer has probable cause to
  405  believe that an offender who is on release supervision under s.
  406  947.1405, s. 947.146, s. 947.149, or s. 944.4731 has violated
  407  the terms and conditions of his or her release by committing a
  408  felony offense, the officer shall arrest the offender without a
  409  warrant, and a warrant need not be issued in the case.
  410         Section 9. This act shall take effect October 1, 2018.