Senate Bill 1496c1

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    Florida Senate - 1999                           CS for SB 1496

    By the Committee on Criminal Justice and Senator Saunders





    307-1875A-99

  1                      A bill to be entitled

  2         An act relating to sentencing; amending s.

  3         775.021, F.S., relating to rules of

  4         construction; removing exceptions to a

  5         construction rule regarding sentencing for

  6         criminal offenses; amending s. 874.04, F.S.;

  7         providing for enhanced penalties for commission

  8         of a felony or misdemeanor, or a delinquent act

  9         or violation of law that would be a felony or

10         misdemeanor if committed by an adult, under

11         specified circumstances when the defendant

12         committed the charged offense for the purpose

13         of furthering, benefiting, or promoting a

14         criminal street gang; amending s. 921.0022,

15         F.S., relating to the offense severity ranking

16         chart of the Criminal Punishment Code; ranking

17         the offense of knowingly transmitting or

18         disseminating by computer any notice or

19         advertisement for the purpose of facilitating,

20         encouraging, offering, or soliciting sexual

21         conduct of or with a minor, or visually

22         depicting such conduct; amending s. 921.0024,

23         F.S., relating to the Criminal Punishment Code

24         worksheet computations and scoresheets;

25         revising guidelines for application of a

26         specified sentence multiplier for offenses

27         related to criminal street gangs; conforming

28         terminology; providing an effective date.

29

30  Be It Enacted by the Legislature of the State of Florida:

31

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    Florida Senate - 1999                           CS for SB 1496
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  1         Section 1.  Subsection (4) of section 775.021, Florida

  2  Statutes, is amended to read:

  3         775.021  Rules of construction.--

  4         (4)(a)  Whoever, in the course of one criminal

  5  transaction or episode, commits an act or acts which

  6  constitute one or more separate criminal offenses, upon

  7  conviction and adjudication of guilt, shall be sentenced

  8  separately for each criminal offense; and the sentencing judge

  9  may order the sentences to be served concurrently or

10  consecutively. For the purposes of this subsection, offenses

11  are separate if each offense requires proof of an element that

12  the other does not, without regard to the accusatory pleading

13  or the proof adduced at trial.

14         (b)  The intent of the Legislature is to convict and

15  sentence for each criminal offense committed in the course of

16  one criminal episode or transaction and not to allow the

17  principle of lenity as set forth in subsection (1) to

18  determine legislative intent.  Exceptions to this rule of

19  construction are:

20         1.  Offenses which require identical elements of proof.

21         2.  Offenses which are degrees of the same offense as

22  provided by statute.

23         3.  Offenses which are lesser offenses the statutory

24  elements of which are subsumed by the greater offense.

25         Section 2.  Section 874.04, Florida Statutes, is

26  amended to read:

27         874.04  Criminal street gang activity; enhanced

28  penalties.--Upon a finding by the court at sentencing that the

29  defendant committed the charged offense for the purpose of

30  furthering, benefiting, or promoting a criminal street gang is

31  a member of a criminal street gang, the penalty for any felony

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    Florida Senate - 1999                           CS for SB 1496
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  1  or misdemeanor, or any delinquent act or violation of law

  2  which would be a felony or misdemeanor if committed by an

  3  adult, may be enhanced if the offender was a member of a

  4  criminal street gang at the time of the commission of such

  5  offense. Each of the findings required as a basis for such

  6  sentence shall be found by a preponderance of the evidence.

  7  The enhancement will be as follows:

  8         (1)(a)  A misdemeanor of the second degree may be

  9  punished as if it were a misdemeanor of the first degree.

10         (b)  A misdemeanor of the first degree may be punished

11  as if it were a felony of the third degree.  For purposes of

12  sentencing under chapter 921 and determining incentive

13  gain-time eligibility under chapter 944, such offense is

14  ranked in level 1 of the offense severity ranking chart. The

15  criminal street gang multiplier in s. 921.0024 does not apply

16  to misdemeanors enhanced under this paragraph.

17         (2)(a)  A felony of the third degree may be punished as

18  if it were a felony of the second degree.

19         (b)  A felony of the second degree may be punished as

20  if it were a felony of the first degree.

21         (c)  A felony of the first degree may be punished as if

22  it were a life felony.

23

24  For purposes of sentencing under chapter 921 and determining

25  incentive gain-time eligibility under chapter 944, such felony

26  offense is ranked as provided in s. 921.0022 or s. 921.0023,

27  and without regard to the penalty enhancement in this

28  subsection.  For purposes of this section, penalty enhancement

29  affects the applicable statutory maximum penalty only.

30

31

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    Florida Senate - 1999                           CS for SB 1496
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  1         Section 3.  Paragraph (f) of subsection (3) of section

  2  921.0022, Florida Statutes, 1998 Supplement, is amended to

  3  read:

  4         921.0022  Criminal Punishment Code; offense severity

  5  ranking chart.--

  6         (3)  OFFENSE SEVERITY RANKING CHART

  7

  8  Florida           Felony

  9  Statute           Degree             Description

10

11

12                              (f)  LEVEL 6

13  316.027(1)(b)      2nd      Accident involving death, failure

14                              to stop; leaving scene.

15  316.193(2)(b)      3rd      Felony DUI, 4th or subsequent

16                              conviction.

17  775.0875(1)        3rd      Taking firearm from law

18                              enforcement officer.

19  775.21(9)          3rd      Sexual predators; failure to

20                              register; failure to renew

21                              driver's license or

22                              identification card.

23  784.021(1)(a)      3rd      Aggravated assault; deadly weapon

24                              without intent to kill.

25  784.021(1)(b)      3rd      Aggravated assault; intent to

26                              commit felony.

27  784.041            3rd      Felony battery.

28  784.048(3)         3rd      Aggravated stalking; credible

29                              threat.

30  784.048(5)         3rd      Aggravated stalking of person

31                              under 16.

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    Florida Senate - 1999                           CS for SB 1496
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  1  784.07(2)(c)       2nd      Aggravated assault on law

  2                              enforcement officer.

  3  784.08(2)(b)       2nd      Aggravated assault on a person 65

  4                              years of age or older.

  5  784.081(2)         2nd      Aggravated assault on specified

  6                              official or employee.

  7  784.082(2)         2nd      Aggravated assault by detained

  8                              person on visitor or other

  9                              detainee.

10  784.083(2)         2nd      Aggravated assault on code

11                              inspector.

12  787.02(2)          3rd      False imprisonment; restraining

13                              with purpose other than those in

14                              s. 787.01.

15  790.115(2)(d)      2nd      Discharging firearm or weapon on

16                              school property.

17  790.161(2)         2nd      Make, possess, or throw

18                              destructive device with intent to

19                              do bodily harm or damage

20                              property.

21  790.164(1)         2nd      False report of deadly explosive

22                              or act of arson or violence to

23                              state property.

24  790.19             2nd      Shooting or throwing deadly

25                              missiles into dwellings, vessels,

26                              or vehicles.

27  794.011(8)(a)      3rd      Solicitation of minor to

28                              participate in sexual activity by

29                              custodial adult.

30  794.05(1)          2nd      Unlawful sexual activity with

31                              specified minor.

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    Florida Senate - 1999                           CS for SB 1496
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  1  806.031(2)         2nd      Arson resulting in great bodily

  2                              harm to firefighter or any other

  3                              person.

  4  810.02(3)(c)       2nd      Burglary of occupied structure;

  5                              unarmed; no assault or battery.

  6  812.014(2)(b)      2nd      Property stolen $20,000 or more,

  7                              but less than $100,000, grand

  8                              theft in 2nd degree.

  9  812.13(2)(c)       2nd      Robbery, no firearm or other

10                              weapon (strong-arm robbery).

11  817.034(4)(a)1.    1st      Communications fraud, value

12                              greater than $50,000.

13  817.4821(5)        2nd      Possess cloning paraphernalia

14                              with intent to create cloned

15                              cellular telephones.

16  825.102(1)         3rd      Abuse of an elderly person or

17                              disabled adult.

18  825.102(3)(c)      3rd      Neglect of an elderly person or

19                              disabled adult.

20  825.1025(3)        3rd      Lewd or lascivious molestation of

21                              an elderly person or disabled

22                              adult.

23  825.103(2)(c)      3rd      Exploiting an elderly person or

24                              disabled adult and property is

25                              valued at less than $20,000.

26  827.03(1)          3rd      Abuse of a child.

27  827.03(3)(c)       3rd      Neglect of a child.

28  827.071(2)&(3)     2nd      Use or induce a child in a sexual

29                              performance, or promote or direct

30                              such performance.

31  836.05             2nd      Threats; extortion.

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    Florida Senate - 1999                           CS for SB 1496
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  1  836.10             2nd      Written threats to kill or do

  2                              bodily injury.

  3  843.12             3rd      Aids or assists person to escape.

  4  847.0135(2)        3rd      Use of computer to facilitate or

  5                              solicit sexual conduct of or with

  6                              a minor.

  7  847.0135(3)        3rd      Solicitation of a child, via a

  8                              computer service, to commit an

  9                              unlawful sex act.

10  914.23             2nd      Retaliation against a witness,

11                              victim, or informant, with bodily

12                              injury.

13  943.0435(6)        3rd      Sex offenders; failure to comply

14                              with reporting requirements.

15  944.35(3)(a)2.     3rd      Committing malicious battery upon

16                              or inflicting cruel or inhuman

17                              treatment on an inmate or

18                              offender on community

19                              supervision, resulting in great

20                              bodily harm.

21  944.40             2nd      Escapes.

22  944.46             3rd      Harboring, concealing, aiding

23                              escaped prisoners.

24  944.47(1)(a)5.     2nd      Introduction of contraband

25                              (firearm, weapon, or explosive)

26                              into correctional facility.

27  951.22(1)          3rd      Intoxicating drug, firearm, or

28                              weapon introduced into county

29                              facility.

30         Section 4.  Subsection (1) of section 921.0024, Florida

31  Statutes, 1998 Supplement, is amended to read:

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    Florida Senate - 1999                           CS for SB 1496
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  1         921.0024  Criminal Punishment Code; worksheet

  2  computations; scoresheets.--

  3         (1)(a)  The Criminal Punishment Code worksheet is used

  4  to compute the subtotal and total sentence points as follows:

  5

  6                 FLORIDA CRIMINAL PUNISHMENT CODE

  7                            WORKSHEET

  8

  9                          OFFENSE SCORE

10

11                         Primary Offense

12  Level         Sentence Points                            Total

13  ..............................................................

14    10               116                             =      ....

15     9                92                             =      ....

16     8                74                             =      ....

17     7                56                             =      ....

18     6                36                             =      ....

19     5                28                             =      ....

20     4                22                             =      ....

21     3                16                             =      ....

22     2                10                             =      ....

23     1                 4                             =      ....

24

25  ..............................................................

26                                                     Total      

27

28                       Additional Offenses

29  Level         Sentence Points            Counts          Total

30  ..............................................................

31    10                58             x      ....     =      ....

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    Florida Senate - 1999                           CS for SB 1496
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  1     9                46             x      ....     =      ....

  2     8                37             x      ....     =      ....

  3     7                28             x      ....     =      ....

  4     6                18             x      ....     =      ....

  5     5               5.4             x      ....     =      ....

  6     4               3.6             x      ....     =      ....

  7     3               2.4             x      ....     =      ....

  8     2               1.2             x      ....     =      ....

  9     1               0.7             x      ....     =      ....

10     M               0.2             x      ....     =      ....

11

12  ..............................................................

13                                                     Total      

14

15                          Victim Injury

16  Level         Sentence Points            Number          Total

17  ..............................................................

18    2nd degree

19      murder-

20      death          240             x      ....     =      ....

21    Death            120             x      ....     =      ....

22    Severe            40             x      ....     =      ....

23    Moderate          18             x      ....     =      ....

24    Slight             4             x      ....     =      ....

25    Sexual

26      penetration     80             x      ....     =      ....

27    Sexual

28      contact         40             x      ....     =      ....

29

30  ..............................................................

31                                                     Total      

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    Florida Senate - 1999                           CS for SB 1496
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  1

  2  Primary Offense + Additional Offenses + Victim Injury =

  3                       TOTAL OFFENSE SCORE

  4

  5                        PRIOR RECORD SCORE

  6

  7                           Prior Record

  8  Level         Sentence Points            Number          Total

  9  ..............................................................

10    10                29             x      ....     =      ....

11     9                23             x      ....     =      ....

12     8                19             x      ....     =      ....

13     7                14             x      ....     =      ....

14     6                 9             x      ....     =      ....

15     5               3.6             x      ....     =      ....

16     4               2.4             x      ....     =      ....

17     3               1.6             x      ....     =      ....

18     2               0.8             x      ....     =      ....

19     1               0.5             x      ....     =      ....

20     M               0.2             x      ....     =      ....

21

22  ..............................................................

23                                                     Total      

24

25     TOTAL OFFENSE SCORE........................................

26     TOTAL PRIOR RECORD SCORE...................................

27

28     LEGAL STATUS...............................................

29     COMMUNITY SANCTION VIOLATION...............................

30     PRIOR SERIOUS FELONY.......................................

31     PRIOR CAPITAL FELONY.......................................

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    Florida Senate - 1999                           CS for SB 1496
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  1     FIREARM OR SEMIAUTOMATIC WEAPON............................

  2                                                SUBTOTAL........

  3

  4     PRISON RELEASEE REOFFENDER (no)(yes).......................

  5     VIOLENT CAREER CRIMINAL (no)(yes)..........................

  6     HABITUAL VIOLENT OFFENDER (no)(yes)........................

  7     HABITUAL OFFENDER (no)(yes)................................

  8     DRUG TRAFFICKER (no)(yes) (x multiplier)...................

  9     LAW ENF. PROTECT. (no)(yes) (x multiplier).................

10     MOTOR VEHICLE THEFT (no)(yes) (x multiplier)...............

11     CRIMINAL STREET GANG OFFENSE MEMBER (no)(yes) (x

12  multiplier)...................................................

13     DOMESTIC VIOLENCE IN THE PRESENCE OF RELATED CHILD

14  (no)(yes) (x multiplier)......................................

15  ..............................................................

16                                   TOTAL SENTENCE POINTS........

17

18                       (b)  WORKSHEET KEY:

19

20  Legal status points are assessed when any form of legal status

21  existed at the time the offender committed an offense before

22  the court for sentencing. Four (4) sentence points are

23  assessed for an offender's legal status.

24

25  Community sanction violation points are assessed when a

26  community sanction violation is before the court for

27  sentencing.  Six (6) sentence points are assessed for each

28  community sanction violation, and each successive community

29  sanction violation; however, if the community sanction

30  violation includes a new felony conviction before the

31  sentencing court, twelve (12) community sanction violation

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    Florida Senate - 1999                           CS for SB 1496
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  1  points are assessed for such violation, and for each

  2  successive community sanction violation involving a new felony

  3  conviction. Multiple counts of community sanction violations

  4  before the sentencing court shall not be a basis for

  5  multiplying the assessment of community sanction violation

  6  points.

  7

  8  Prior serious felony points: If the offender has a primary

  9  offense or any additional offense ranked in level 8, level 9,

10  or level 10, and one or more prior serious felonies, a single

11  assessment of 30 points shall be added. For purposes of this

12  section, a prior serious felony is an offense in the

13  offender's prior record that is ranked in level 8, level 9, or

14  level 10 under s. 921.0022 or s. 921.0023 and for which the

15  offender is serving a sentence of confinement, supervision, or

16  other sanction or for which the offender's date of release

17  from confinement, supervision, or other sanction, whichever is

18  later, is within 3 years before the date the primary offense

19  or any additional offense was committed.

20

21  Prior capital felony points:  If the offender has one or more

22  prior capital felonies in the offender's criminal record,

23  points shall be added to the subtotal sentence points of the

24  offender equal to twice the number of points the offender

25  receives for the primary offense and any additional offense.

26  A prior capital felony in the offender's criminal record is a

27  previous capital felony offense for which the offender has

28  entered a plea of nolo contendere or guilty or has been found

29  guilty; or a felony in another jurisdiction which is a capital

30  felony in that jurisdiction, or would be a capital felony if

31  the offense were committed in this state.

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  1

  2  Possession of a firearm, semiautomatic firearm, or machine

  3  gun:  If the offender is convicted of committing or attempting

  4  to commit any felony other than those enumerated in s.

  5  775.087(2) while having in his possession: a firearm as

  6  defined in s. 790.001(6), an additional 18 sentence points are

  7  assessed; or if the offender is convicted of committing or

  8  attempting to commit any felony other than those enumerated in

  9  s. 775.087(3) while having in his possession a semiautomatic

10  firearm as defined in s. 775.087(3) or a machine gun as

11  defined in s. 790.001(9), an additional 25 sentence points are

12  assessed.

13

14  Sentencing multipliers:

15

16  Drug trafficking:  If the primary offense is drug trafficking

17  under s. 893.135, the subtotal sentence points are multiplied,

18  at the discretion of the court, for a level 7 or level 8

19  offense, by 1.5.  The state attorney may move the sentencing

20  court to reduce or suspend the sentence of a person convicted

21  of a level 7 or level 8 offense, if the offender provides

22  substantial assistance as described in s. 893.135(4).

23

24  Law enforcement protection:  If the primary offense is a

25  violation of the Law Enforcement Protection Act under s.

26  775.0823(2), the subtotal sentence points are multiplied by

27  2.5.  If the primary offense is a violation of s. 775.0823(3),

28  (4), (5), (6), (7), or (8), the subtotal sentence points are

29  multiplied by 2.0. If the primary offense is a violation of s.

30  784.07(3) or s. 775.0875(1), or of the Law Enforcement

31

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  1  Protection Act under s. 775.0823(9) or (10), the subtotal

  2  sentence points are multiplied by 1.5.

  3

  4  Grand theft of a motor vehicle:  If the primary offense is

  5  grand theft of the third degree involving a motor vehicle and

  6  in the offender's prior record, there are three or more grand

  7  thefts of the third degree involving a motor vehicle, the

  8  subtotal sentence points are multiplied by 1.5.

  9

10  Offense related to criminal street gang member:  If the

11  offender is convicted of the primary offense and committed

12  that offense for the purpose of furthering, benefiting, or

13  promoting a criminal street gang is found to have been a

14  member of a criminal street gang at the time of the commission

15  of the primary offense pursuant to s. 874.04, the subtotal

16  sentence points shall be are multiplied by 1.5.

17

18  Domestic violence in the presence of a child:  If the offender

19  is convicted of the primary offense and the primary offense is

20  a crime of domestic violence, as defined in s. 741.28, which

21  was committed in the presence of a child under 16 years of age

22  who is a family household member as defined in s. 741.28(2)

23  with the victim or perpetrator, the subtotal sentence points

24  are multiplied, at the discretion of the court, by 1.5.

25         Section 5.  This act shall take effect July 1, 1999.

26

27

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29

30

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 1496

  3

  4  -     Deletes provision of the bill amending the rule of
          lenity.
  5
    -     Deletes provision of the bill requiring sentence point
  6        enhancements for certain felonies committed or attempted
          while possessing a firearm.
  7
    -     Deletes provision of the bill allowing consecutive
  8        sentencing of mandatory minimum terms and enhanced
          sentences.
  9
    -     Ranks in level 6 of the offense severity ranking chart
10        the offense of use of a computer to facilitate or
          solicit sexual conduct of or with a minor.
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