The Florida Senate

¹921.001  Sentencing Commission and sentencing guidelines generally.--

(1)  The provision of criminal penalties and of limitations upon the application of such penalties is a matter of predominantly substantive law and, as such, is a matter properly addressed by the Legislature. The Legislature, in the exercise of its authority and responsibility to establish sentencing criteria, to provide for the imposition of criminal penalties, and to make the best use of state prisons so that violent criminal offenders are appropriately incarcerated, has determined that it is in the best interest of the state to develop, implement, and revise a uniform sentencing policy in cooperation with the Supreme Court. In furtherance of this cooperative effort, the Legislature created a Sentencing Commission, responsible for the initial development of a statewide system of sentencing guidelines, evaluating these guidelines periodically, and recommending on a continuing basis changes necessary to ensure incarceration of:

(a)  Violent criminal offenders; and

(b)  Nonviolent criminal offenders who commit repeated acts of criminal behavior and who have demonstrated an inability to comply with less restrictive penalties previously imposed for nonviolent criminal acts.

(2)(a)  The commission is composed of 17 members, consisting of: 2 members of the Senate appointed by the President of the Senate; 2 members of the House of Representatives appointed by the Speaker of the House of Representatives; the Chief Justice of the Supreme Court or a member of the Supreme Court designated by the Chief Justice; 3 circuit court judges, 1 county court judge, and 1 representative of the victim advocacy profession, appointed by the Chief Justice of the Supreme Court; the Attorney General or her or his designee; and the secretary of the Department of Corrections or her or his designee. The following members are appointed by the Governor: one state attorney recommended by the Florida Prosecuting Attorneys Association; one public defender recommended by the Public Defenders Association; one private attorney recommended by the President of The Florida Bar; and two persons of the Governor's choice. The membership of the commission shall reflect the geographic and ethnic diversity of the state. The Chief Justice or the member of the Supreme Court designated by the Chief Justice serves as chair of the commission.

(b)  The members of the commission appointed by the Governor and the members from the Senate and the House of Representatives serve 2-year terms. The members appointed by the Chief Justice of the Supreme Court serve at her or his pleasure.

(c)  Membership on the commission does not disqualify a member from holding any other public office or from being employed by a public entity. The Legislature finds and declares that the commission serves a state, county, and municipal purpose and that service on the commission is consistent with a member's principal service in a public office or in public employment.

(d)  Members of the commission serve without compensation but are entitled to be reimbursed for per diem and travel expenses as provided for in s. 112.061.

(e)  The office of the State Courts Administrator shall act as staff for the commission and shall provide all necessary data collection, analysis, and research, and support services.

(3)(a)  The commission shall meet annually or at the call of the chair to review sentencing practices and recommend modifications to the guidelines. In recommending modifications to the sentencing guidelines, the commission shall take into consideration the existing sentencing and release practices and correctional resources, including the capacities of local and state correctional facilities, in addition to other relevant factors.

(b)  For the purpose of assisting the commission in recommending modifications to the sentencing guidelines, the Department of Corrections is authorized to collect and evaluate data on sentencing practices in the state from each of the judicial circuits and provide technical assistance to the commission upon request. The Department of Corrections shall, no later than October 1 of each year, provide the commission with a yearly report detailing the rate of compliance of each judicial circuit in providing scoresheets to the department.

²(4)  The purpose of the sentencing guidelines is to establish a uniform set of standards to guide the sentencing judge in the sentence decisionmaking process. The guidelines represent a synthesis of current sentencing theory, historical sentencing practices, and a rational approach to managing correctional resources. The sentencing guidelines are intended to eliminate unwarranted variation in the sentencing process by reducing the subjectivity in interpreting specific offense-related and offender-related criteria and in defining the relative importance of those criteria in the sentencing decision.

(a)  The sentencing guidelines embody the principles that:

1.  Sentencing is neutral with respect to race, gender, and social and economic status.

2.  The primary purpose of sentencing is to punish the offender. Rehabilitation is a desired goal of the criminal justice system but is subordinate to the goal of punishment.

3.  The penalty imposed is commensurate with the severity of the primary offense and the circumstances surrounding the primary offense.

4.  The severity of the sentence increases with the length and nature of the offender's prior record.

5.  The sentence imposed by the sentencing judge reflects the length of actual time to be served, shortened only by the application of incentive and meritorious gain-time.

6.  Departures from the recommended sentences established in the guidelines are articulated in writing and made only when circumstances or factors reasonably justify the aggravation or mitigation of the sentence. The level of proof necessary to establish facts that support a departure from the sentencing guidelines is a preponderance of the evidence.

7.  Use of incarcerative sanctions is prioritized toward offenders convicted of serious offenses and certain offenders who have long prior records, in order to maximize the finite capacities of state and local correctional facilities.

(b)1.  The guidelines enacted effective October 1, 1983, apply to all felonies, except capital felonies, committed on or after October 1, 1983, and before January 1, 1994; and to all felonies, except capital felonies and life felonies, committed before October 1, 1983, when the defendant affirmatively selects to be sentenced pursuant to such provisions.

2.  The 1994 guidelines apply to sentencing for all felonies, except capital felonies, committed on or after January 1, 1994. Any revision to the 1994 guidelines applies to sentencing for all felonies, except capital felonies, committed on or after the effective date of the revision.

3.  Felonies, except capital felonies, with continuing dates of enterprise shall be sentenced under the sentencing guidelines in effect on the beginning date of the criminal activity.

4.  When a defendant is before the court for sentencing for more than one felony and the felonies were committed under more than one version or revision of the guidelines, each felony shall be sentenced under the guidelines in effect at the time the particular felony was committed. This subparagraph does not apply to sentencing for any capital felony.

(c)  The commission shall, no later than October 1 of each year, make a recommendation to the members of the Supreme Court, the President of the Senate, the Speaker of the House of Representatives, and the chairs of the relevant substantive committees of both houses on the need for changes in the guidelines. Upon receipt of such recommendation, the Supreme Court may revise the statewide sentencing guidelines to conform them with all or part of the commission recommendation. Such revision shall be submitted by the Supreme Court to the President of the Senate, the Speaker of the House of Representatives, and the chairs of the relevant substantive committees of both houses no later than December 1 of each year following the receipt of the recommendations of the commission. However, such revision is effective only upon the subsequent adoption by the Legislature of legislation implementing the guidelines as then revised. The court may also revise the statewide sentencing guidelines if it certifies that the revisions are necessary to conform the guidelines to previously adopted statutory revisions.

(d)  The commission, with the assistance of the Department of Corrections, shall estimate how sentencing score thresholds and weights assigned to the sentencing factors will affect the rates of incarceration and the levels of prison population and shall submit to the Legislature, by October 1 of each year, recommended sentencing score thresholds, recommended weights assigned to the sentencing factors, and a recommended appropriation for state correctional resources that is sufficient to fund the estimated prison population.

(5)  Sentences imposed by trial court judges under the 1994 revised sentencing guidelines on or after January 1, 1994, must be within the 1994 guidelines unless there is a departure sentence with written findings. However, a person sentenced for a felony committed on or after July 1, 1997, who has at least one prior felony conviction and whose recommended sentence is any nonstate prison sanction may be sentenced to community control or a term of incarceration not to exceed 22 months. A person sentenced for a felony committed on or after July 1, 1997, who has at least one prior felony conviction and whose minimum recommended sentence is less than 22 months in state prison may be sentenced to a term of incarceration not to exceed 22 months. As used in this subsection, the term "conviction" means a determination of guilt which is the result of a plea or a trial, regardless of whether adjudication is withheld. Such sentence is not subject to appeal. If a recommended sentence under the guidelines exceeds the maximum sentence otherwise authorized by s. 775.082, the sentence under the guidelines must be imposed, absent a departure. If a departure sentence, with written findings, is imposed, such sentence must be within any relevant maximum sentence limitations provided in s. 775.082. The failure of a trial court to impose a sentence within the sentencing guidelines is subject to appellate review pursuant to chapter 924, except as otherwise provided in this subsection. However, the extent of a departure from a guidelines sentence is not subject to appellate review.

(6)  A court may impose a departure sentence outside the sentencing guidelines based upon circumstances or factors which reasonably justify the aggravation or mitigation of the sentence in accordance with s. 921.0016. The level of proof necessary to establish facts supporting a departure from a sentence under the guidelines is a preponderance of the evidence. When multiple reasons exist to support a departure from a guidelines sentence, the departure shall be upheld when at least one circumstance or factor justifies the departure regardless of the presence of other circumstances or factors found not to justify departure. Any sentence imposed outside the range recommended by the guidelines must be explained in writing by the trial court judge.

(7)  A sentence may be imposed outside the guidelines based on credible facts, which may include an oral or written statement submitted by the victim or next of kin pursuant to s. 921.143, proven by a preponderance of the evidence, which demonstrate that the victim suffered excessive physical or emotional trauma at the hands of the defendant; and such departure is not barred because victim injury has been utilized in the calculation of the guidelines sentence.

(8)  A sentence may be imposed outside the guidelines based on credible facts, proven by a preponderance of the evidence, which demonstrate that the defendant's prior record, including offenses for which adjudication was withheld and the current criminal offense for which the defendant is being sentenced, indicate an escalating pattern of criminal conduct. The escalating pattern of criminal conduct may be evidenced by a progression from nonviolent to violent crimes, a progression of increasingly violent crimes, or a pattern of increasingly serious criminal activity.

(9)(a)  The Sentencing Commission and the office of the State Courts Administrator shall conduct ongoing research on the impact of the sentencing guidelines, the use of imprisonment and alternatives to imprisonment, and plea bargaining. The commission, with the aid of the office of the State Courts Administrator, the Department of Corrections, and the Parole Commission, shall estimate the impact of any proposed changes to the sentencing guidelines on future rates of incarceration and levels of prison population, based in part on historical data of sentencing practices which have been accumulated by the office of the State Courts Administrator and on Department of Corrections records reflecting average time served for offenses covered by the proposed changes to the guidelines. The commission shall review the projections of impact and shall make them available to other appropriate agencies of state government, including the Legislature, by October 1 of each year.

(b)  On or after January 1, 1994, any legislation which:

1.  Creates a felony offense;

2.  Enhances a misdemeanor offense to a felony offense;

3.  Moves a felony offense from a lesser offense severity level to a higher offense severity level in the offense severity ranking chart in s. 921.0012; or

4.  Reclassifies an existing felony offense to a greater felony classification

must provide that such a change result in a net zero sum impact in the overall prison population, as determined by the Criminal Justice Estimating Conference, unless the legislation contains a funding source sufficient in its base or rate to accommodate such change or a provision which specifically abrogates the application of this paragraph.

(10)(a)  A person who is convicted of a crime committed on or after October 1, 1983, but before January 1, 1994, may be released from incarceration only:

1.  Upon expiration of the person's sentence;

2.  Upon expiration of the person's sentence as reduced by accumulated gain-time;

3.  As directed by an executive order granting clemency;

4.  Upon attaining the provisional release date;

5.  Upon placement in a conditional release program pursuant to s. 947.1405; or

6.  Upon the granting of control release pursuant to s. 947.146.

(b)  A person who is convicted of a crime committed on or after January 1, 1994, may be released from incarceration only:

1.  Upon expiration of the person's sentence;

2.  Upon expiration of the person's sentence as reduced by accumulated meritorious or incentive gain-time;

3.  As directed by an executive order granting clemency;

4.  Upon placement in a conditional release program pursuant to s. 947.1405 or a conditional medical release program pursuant to s. 947.149; or

5.  Upon the granting of control release, including emergency control release, pursuant to s. 947.146.

(11)  A person who is convicted of a crime committed on or after December 1, 1990, and who receives a control release date may not refuse to accept the terms or conditions of control release.

History.--ss. 1, 2, 3, ch. 82-145; s. 2, ch. 83-87; s. 176, ch. 83-216; s. 2, ch. 84-328; s. 1, ch. 86-273; s. 2, ch. 87-110; s. 5, ch. 88-96; s. 8, ch. 88-122; s. 2, ch. 88-131; s. 3, ch. 89-526; s. 6, ch. 90-211; s. 69, ch. 91-110; s. 1, ch. 91-239; s. 1, ch. 92-135; s. 5, ch. 93-406; s. 1, ch. 93-417; s. 3, ch. 95-184; s. 1541, ch. 97-102; ss. 1, 40, ch. 97-194.

¹Note.--

A.  Section 1, ch. 97-194, provides that "[s]ections 921.0001, 921.001, 921.0011, 921.0012, 921.0013, 921.0014, 921.0015, 921.0016, and 921.005, Florida Statutes, as amended by this act, are repealed effective October 1, 1998, except that those sections shall remain in effect with respect to any crime committed before October 1, 1998."

B.  Section 43, ch. 97-194, provides that "[t]he Division of Statutory Revision of the Joint Legislative Management Committee shall leave the repealed statutory provisions referenced herein in the Florida Statutes for 10 years from October 1, 1998."

²Note.--Section 3, ch. 95-184, purported to amend paragraph (b) of subsection (4), but did not set out in full the amended paragraph to include the introductory paragraph of subsection (4). In absence of affirmative evidence that the Legislature intended to repeal the omitted material, it is set out in full here, pending clarification by the Legislature.