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.