Florida Senate - 2018 SB 570 By Senator Bracy 11-00691-18 2018570__ 1 A bill to be entitled 2 An act relating to sentencing; amending s. 921.0024, 3 F.S.; revising the computation of the lowest 4 permissible sentence under the Criminal Punishment 5 Code; reenacting ss. 775.082(10), 921.00241(1), 6 921.0026(1) and (2)(m), 921.00265(1), 924.06(1)(e), 7 948.01(7) and (8), 948.06(2)(i) and (j) and (8)(b), 8 and 948.20(1), F.S., relating to penalties, prison 9 diversion programs, mitigating circumstances, 10 recommended sentences, appeals by defendants, 11 placement on probation or community control, 12 violations of probation and community control, and 13 drug offender probation, respectively, to incorporate 14 the amendment made to s. 921.0024, F.S., in references 15 thereto; providing an effective date. 16 17 Be It Enacted by the Legislature of the State of Florida: 18 19 Section 1. Subsection (2) of section 921.0024, Florida 20 Statutes, is amended to read: 21 921.0024 Criminal Punishment Code; worksheet computations; 22 scoresheets.— 23 (2)(a) The lowest permissible sentence is the minimum 24 sentence that may be imposed by the trial court, absent a valid 25 reason for departure. 26 (b) For offenses committed on or after October 1, 1998, and 27 before October 1, 2018, the lowest permissible sentence is any 28 nonstate prison sanction in which the total sentence points 29 equals or is less than 44 points, unless the court determines 30 within its discretion that a prison sentence, which may be up to 31 the statutory maximums for the offenses committed, is 32 appropriate. When the total sentence points exceeds 44 points, 33 the lowest permissible sentence in prison months shall be 34 calculated by subtracting 28 points from the total sentence 35 points and decreasing the remaining total by 25 percent. 36 (c) For offenses committed on or after October 1, 2018, the 37 lowest permissible sentence is any nonstate prison sanction in 38 which the total sentence points equals or is less than 52 39 points, unless the court determines within its discretion that a 40 prison sentence, which may be up to the statutory maximums for 41 the offenses committed, is appropriate. When the total sentence 42 points exceeds 52 points, the lowest permissible sentence in 43 prison months shall be calculated by subtracting 36 points from 44 the total sentence points and decreasing the remaining total by 45 25 percent. 46 (d) The total sentence points shall be calculated only as a 47 means of determining the lowest permissible sentence. The 48 permissible range for sentencing shall be the lowest permissible 49 sentence up to and including the statutory maximum, as defined 50 in s. 775.082, for the primary offense and any additional 51 offenses before the court for sentencing. The sentencing court 52 may impose such sentences concurrently or consecutively. 53 However, any sentence to state prison must exceed 1 year. If the 54 lowest permissible sentence under the code exceeds the statutory 55 maximum sentence as provided in s. 775.082, the sentence 56 required by the code must be imposed. If the total sentence 57 points are greater than or equal to 363, the court may sentence 58 the offender to life imprisonment. An offender sentenced to life 59 imprisonment under this section is not eligible for any form of 60 discretionary early release, except executive clemency or 61 conditional medical release under s. 947.149. 62 Section 2. For the purpose of incorporating the amendment 63 made by this act to section 921.0024, Florida Statutes, in a 64 reference thereto, subsection (10) of section 775.082, Florida 65 Statutes, is reenacted to read: 66 775.082 Penalties; applicability of sentencing structures; 67 mandatory minimum sentences for certain reoffenders previously 68 released from prison.— 69 (10) If a defendant is sentenced for an offense committed 70 on or after July 1, 2009, which is a third degree felony but not 71 a forcible felony as defined in s. 776.08, and excluding any 72 third degree felony violation under chapter 810, and if the 73 total sentence points pursuant to s. 921.0024 are 22 points or 74 fewer, the court must sentence the offender to a nonstate prison 75 sanction. However, if the court makes written findings that a 76 nonstate prison sanction could present a danger to the public, 77 the court may sentence the offender to a state correctional 78 facility pursuant to this section. 79 Section 3. For the purpose of incorporating the amendment 80 made by this act to section 921.0024, Florida Statutes, in a 81 reference thereto, subsection (1) of section 921.00241, Florida 82 Statutes, is reenacted to read: 83 921.00241 Prison diversion program.— 84 (1) Notwithstanding s. 921.0024 and effective for offenses 85 committed on or after July 1, 2009, a court may divert from the 86 state correctional system an offender who would otherwise be 87 sentenced to a state facility by sentencing the offender to a 88 nonstate prison sanction as provided in subsection (2). An 89 offender may be sentenced to a nonstate prison sanction if the 90 offender meets all of the following criteria: 91 (a) The offender’s primary offense is a felony of the third 92 degree. 93 (b) The offender’s total sentence points score, as provided 94 in s. 921.0024, is not more than 48 points, or the offender’s 95 total sentence points score is 54 points and 6 of those points 96 are for a violation of probation, community control, or other 97 community supervision, and do not involve a new violation of 98 law. 99 (c) The offender has not been convicted or previously 100 convicted of a forcible felony as defined in s. 776.08, but 101 excluding any third degree felony violation under chapter 810. 102 (d) The offender’s primary offense does not require a 103 minimum mandatory sentence. 104 Section 4. For the purpose of incorporating the amendment 105 made by this act to section 921.0024, Florida Statutes, in 106 references thereto, subsection (1) and paragraph (m) of 107 subsection (2) of section 921.0026, Florida Statutes, are 108 reenacted to read: 109 921.0026 Mitigating circumstances.—This section applies to 110 any felony offense, except any capital felony, committed on or 111 after October 1, 1998. 112 (1) A downward departure from the lowest permissible 113 sentence, as calculated according to the total sentence points 114 pursuant to s. 921.0024, is prohibited unless there are 115 circumstances or factors that reasonably justify the downward 116 departure. Mitigating factors to be considered include, but are 117 not limited to, those listed in subsection (2). The imposition 118 of a sentence below the lowest permissible sentence is subject 119 to appellate review under chapter 924, but the extent of 120 downward departure is not subject to appellate review. 121 (2) Mitigating circumstances under which a departure from 122 the lowest permissible sentence is reasonably justified include, 123 but are not limited to: 124 (m) The defendant’s offense is a nonviolent felony, the 125 defendant’s Criminal Punishment Code scoresheet total sentence 126 points under s. 921.0024 are 60 points or fewer, and the court 127 determines that the defendant is amenable to the services of a 128 postadjudicatory treatment-based drug court program and is 129 otherwise qualified to participate in the program as part of the 130 sentence. For purposes of this paragraph, the term “nonviolent 131 felony” has the same meaning as provided in s. 948.08(6). 132 Section 5. For the purpose of incorporating the amendment 133 made by this act to section 921.0024, Florida Statutes, in a 134 reference thereto, subsection (1) of section 921.00265, Florida 135 Statutes, is reenacted to read: 136 921.00265 Recommended sentences; departure sentences; 137 mandatory minimum sentences.—This section applies to any felony 138 offense, except any capital felony, committed on or after 139 October 1, 1998. 140 (1) The lowest permissible sentence provided by 141 calculations from the total sentence points pursuant to s. 142 921.0024(2) is assumed to be the lowest appropriate sentence for 143 the offender being sentenced. A departure sentence is prohibited 144 unless there are mitigating circumstances or factors present as 145 provided in s. 921.0026 which reasonably justify a departure. 146 Section 6. For the purpose of incorporating the amendment 147 made by this act to section 921.0024, Florida Statutes, in a 148 reference thereto, paragraph (e) of subsection (1) of section 149 924.06, Florida Statutes, is reenacted to read: 150 924.06 Appeal by defendant.— 151 (1) A defendant may appeal from: 152 (e) A sentence imposed under s. 921.0024 of the Criminal 153 Punishment Code which exceeds the statutory maximum penalty 154 provided in s. 775.082 for an offense at conviction, or the 155 consecutive statutory maximums for offenses at conviction, 156 unless otherwise provided by law. 157 Section 7. For the purpose of incorporating the amendment 158 made by this act to section 921.0024, Florida Statutes, in 159 references thereto, subsections (7) and (8) of section 948.01, 160 Florida Statutes, are reenacted to read: 161 948.01 When court may place defendant on probation or into 162 community control.— 163 (7)(a) Notwithstanding s. 921.0024 and effective for 164 offenses committed on or after July 1, 2009, the sentencing 165 court may place the defendant into a postadjudicatory treatment 166 based drug court program if the defendant’s Criminal Punishment 167 Code scoresheet total sentence points under s. 921.0024 are 60 168 points or fewer, the offense is a nonviolent felony, the 169 defendant is amenable to substance abuse treatment, and the 170 defendant otherwise qualifies under s. 397.334(3). The 171 satisfactory completion of the program shall be a condition of 172 the defendant’s probation or community control. As used in this 173 subsection, the term “nonviolent felony” means a third degree 174 felony violation under chapter 810 or any other felony offense 175 that is not a forcible felony as defined in s. 776.08. 176 (b) The defendant must be fully advised of the purpose of 177 the program, and the defendant must agree to enter the program. 178 The original sentencing court shall relinquish jurisdiction of 179 the defendant’s case to the postadjudicatory drug court program 180 until the defendant is no longer active in the program, the case 181 is returned to the sentencing court due to the defendant’s 182 termination from the program for failure to comply with the 183 terms thereof, or the defendant’s sentence is completed. 184 (8)(a) Notwithstanding s. 921.0024 and effective for 185 offenses committed on or after July 1, 2016, the sentencing 186 court may place the defendant into a postadjudicatory mental 187 health court program if the offense is a nonviolent felony, the 188 defendant is amenable to mental health treatment, including 189 taking prescribed medications, and the defendant is otherwise 190 qualified under s. 394.47892(4). The satisfactory completion of 191 the program must be a condition of the defendant’s probation or 192 community control. As used in this subsection, the term 193 “nonviolent felony” means a third degree felony violation under 194 chapter 810 or any other felony offense that is not a forcible 195 felony as defined in s. 776.08. Defendants charged with 196 resisting an officer with violence under s. 843.01, battery on a 197 law enforcement officer under s. 784.07, or aggravated assault 198 may participate in the mental health court program if the court 199 so orders after the victim is given his or her right to provide 200 testimony or written statement to the court as provided in s. 201 921.143. 202 (b) The defendant must be fully advised of the purpose of 203 the mental health court program, and the defendant must agree to 204 enter the program. The original sentencing court shall 205 relinquish jurisdiction of the defendant’s case to the 206 postadjudicatory mental health court program until the defendant 207 is no longer active in the program, the case is returned to the 208 sentencing court due to the defendant’s termination from the 209 program for failure to comply with the terms thereof, or the 210 defendant’s sentence is completed. 211 (c) The Department of Corrections may establish designated 212 and trained mental health probation officers to support 213 individuals under supervision of the mental health court 214 program. 215 Section 8. For the purpose of incorporating the amendment 216 made by this act to section 921.0024, Florida Statutes, in 217 references thereto, paragraphs (i) and (j) of subsection (2) and 218 paragraph (b) of subsection (8) of section 948.06, Florida 219 Statutes, are reenacted to read: 220 948.06 Violation of probation or community control; 221 revocation; modification; continuance; failure to pay 222 restitution or cost of supervision.— 223 (2) 224 (i)1. Notwithstanding s. 921.0024 and effective for 225 offenses committed on or after July 1, 2009, the court may order 226 the defendant to successfully complete a postadjudicatory 227 treatment-based drug court program if: 228 a. The court finds or the offender admits that the offender 229 has violated his or her community control or probation; 230 b. The offender’s Criminal Punishment Code scoresheet total 231 sentence points under s. 921.0024 are 60 points or fewer after 232 including points for the violation; 233 c. The underlying offense is a nonviolent felony. As used 234 in this subsection, the term “nonviolent felony” means a third 235 degree felony violation under chapter 810 or any other felony 236 offense that is not a forcible felony as defined in s. 776.08; 237 d. The court determines that the offender is amenable to 238 the services of a postadjudicatory treatment-based drug court 239 program; 240 e. The court has explained the purpose of the program to 241 the offender and the offender has agreed to participate; and 242 f. The offender is otherwise qualified to participate in 243 the program under the provisions of s. 397.334(3). 244 2. After the court orders the modification of community 245 control or probation, the original sentencing court shall 246 relinquish jurisdiction of the offender’s case to the 247 postadjudicatory treatment-based drug court program until the 248 offender is no longer active in the program, the case is 249 returned to the sentencing court due to the offender’s 250 termination from the program for failure to comply with the 251 terms thereof, or the offender’s sentence is completed. 252 (j)1. Notwithstanding s. 921.0024 and effective for 253 offenses committed on or after July 1, 2016, the court may order 254 the offender to successfully complete a postadjudicatory mental 255 health court program under s. 394.47892 or a military veterans 256 and servicemembers court program under s. 394.47891 if: 257 a. The court finds or the offender admits that the offender 258 has violated his or her community control or probation; 259 b. The underlying offense is a nonviolent felony. As used 260 in this subsection, the term “nonviolent felony” means a third 261 degree felony violation under chapter 810 or any other felony 262 offense that is not a forcible felony as defined in s. 776.08. 263 Offenders charged with resisting an officer with violence under 264 s. 843.01, battery on a law enforcement officer under s. 784.07, 265 or aggravated assault may participate in the mental health court 266 program if the court so orders after the victim is given his or 267 her right to provide testimony or written statement to the court 268 as provided in s. 921.143; 269 c. The court determines that the offender is amenable to 270 the services of a postadjudicatory mental health court program, 271 including taking prescribed medications, or a military veterans 272 and servicemembers court program; 273 d. The court explains the purpose of the program to the 274 offender and the offender agrees to participate; and 275 e. The offender is otherwise qualified to participate in a 276 postadjudicatory mental health court program under s. 277 394.47892(4) or a military veterans and servicemembers court 278 program under s. 394.47891. 279 2. After the court orders the modification of community 280 control or probation, the original sentencing court shall 281 relinquish jurisdiction of the offender’s case to the 282 postadjudicatory mental health court program until the offender 283 is no longer active in the program, the case is returned to the 284 sentencing court due to the offender’s termination from the 285 program for failure to comply with the terms thereof, or the 286 offender’s sentence is completed. 287 (8) 288 (b) For purposes of this section and ss. 903.0351, 948.064, 289 and 921.0024, the term “violent felony offender of special 290 concern” means a person who is on: 291 1. Felony probation or community control related to the 292 commission of a qualifying offense committed on or after the 293 effective date of this act; 294 2. Felony probation or community control for any offense 295 committed on or after the effective date of this act, and has 296 previously been convicted of a qualifying offense; 297 3. Felony probation or community control for any offense 298 committed on or after the effective date of this act, and is 299 found to have violated that probation or community control by 300 committing a qualifying offense; 301 4. Felony probation or community control and has previously 302 been found by a court to be a habitual violent felony offender 303 as defined in s. 775.084(1)(b) and has committed a qualifying 304 offense on or after the effective date of this act; 305 5. Felony probation or community control and has previously 306 been found by a court to be a three-time violent felony offender 307 as defined in s. 775.084(1)(c) and has committed a qualifying 308 offense on or after the effective date of this act; or 309 6. Felony probation or community control and has previously 310 been found by a court to be a sexual predator under s. 775.21 311 and has committed a qualifying offense on or after the effective 312 date of this act. 313 Section 9. For the purpose of incorporating the amendment 314 made by this act to section 921.0024, Florida Statutes, in a 315 reference thereto, subsection (1) of section 948.20, Florida 316 Statutes, is reenacted to read: 317 948.20 Drug offender probation.— 318 (1) If it appears to the court upon a hearing that the 319 defendant is a chronic substance abuser whose criminal conduct 320 is a violation of s. 893.13(2)(a) or (6)(a), or other nonviolent 321 felony if such nonviolent felony is committed on or after July 322 1, 2009, and notwithstanding s. 921.0024 the defendant’s 323 Criminal Punishment Code scoresheet total sentence points are 60 324 points or fewer, the court may either adjudge the defendant 325 guilty or stay and withhold the adjudication of guilt. In either 326 case, the court may also stay and withhold the imposition of 327 sentence and place the defendant on drug offender probation or 328 into a postadjudicatory treatment-based drug court program if 329 the defendant otherwise qualifies. As used in this section, the 330 term “nonviolent felony” means a third degree felony violation 331 under chapter 810 or any other felony offense that is not a 332 forcible felony as defined in s. 776.08. 333 Section 10. This act shall take effect October 1, 2018.