House Bill 2059

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    Florida House of Representatives - 1999                HB 2059

        By the Committee on Crime & Punishment and Representative
    Ball





  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 certain

  5         construction guidelines which provide that the

  6         legislative intent is to convict and sentence

  7         for each criminal offense in the course of one

  8         criminal episode or transaction and not to

  9         allow the principle of lenity determine

10         legislative intent; amending s. 874.04, F.S.;

11         providing for enhanced penalties for commission

12         of a felony or misdemeanor, or a delinquent act

13         or violation of law that would be a felony or

14         misdemeanor if committed by an adult, under

15         specified circumstances when the defendant

16         committed the charged offense for the purpose

17         of furthering, benefiting, or promoting a

18         criminal street gang; amending s. 921.0022,

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

20         chart of the Criminal Punishment Code; ranking

21         the offense of knowingly transmitting or

22         disseminating by computer any notice or

23         advertisement for the purpose of facilitating,

24         encouraging, offering, or soliciting sexual

25         conduct of or with a minor, or visually

26         depicting such conduct; amending s. 921.0024,

27         F.S.; revising guidelines for application of a

28         specified sentence multiplier for offenses

29         related to criminal street gangs; conforming

30         terminology; providing an effective date.

31

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    Florida House of Representatives - 1999                HB 2059

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

  2

  3         Section 1.  Subsection (4) of section 775.021, Florida

  4  Statutes, is amended to read:

  5         775.021  Rules of construction.--

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

  7  transaction or episode, commits an act or acts which

  8  constitute one or more separate criminal offenses, upon

  9  conviction and adjudication of guilt, shall be sentenced

10  separately for each criminal offense; and the sentencing judge

11  may order the sentences to be served concurrently or

12  consecutively. For the purposes of this subsection, offenses

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

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

15  or the proof adduced at trial.

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

17  sentence for each criminal offense committed in the course of

18  one criminal episode or transaction and not to allow the

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

20  determine legislative intent.  Exceptions to this rule of

21  construction are:

22         1.  Offenses which require identical elements of proof.

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

24  provided by statute.

25         3.  Offenses which are lesser offenses the statutory

26  elements of which are subsumed by the greater offense.

27         Section 2.  Section 874.04, Florida Statutes, is

28  amended to read.

29         874.04  Criminal street gang activity; enhanced

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

31  defendant committed the charged offense for the purpose of

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    Florida House of Representatives - 1999                HB 2059

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

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

  3  or misdemeanor, or any delinquent act or violation of law

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

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

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

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

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

  9  The enhancement will be as follows:

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

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

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

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

14  sentencing under chapter 921 and determining incentive

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

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

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

18  to misdemeanors enhanced under this paragraph.

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

20  if it were a felony of the second degree.

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

22  if it were a felony of the first degree.

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

24  it were a life felony.

25

26  For purposes of sentencing under chapter 921 and determining

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

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

29  and without regard to the penalty enhancement in this

30  subsection.  For purposes of this section, penalty enhancement

31  affects the applicable statutory maximum penalty only.

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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 House of Representatives - 1999                HB 2059

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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 House of Representatives - 1999                HB 2059

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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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  1  836.10             2nd      Written threats to kill or do

  2                              bodily injury.

  3  843.12             3rd      Aids or assists person to escape.

  4

  5  847.0135(2)        3rd      Use of computer to facilitate or

  6                              solicit sexual conduct of or with

  7                              a minor.

  8  847.0135(3)        3rd      Solicitation of a child, via a

  9                              computer service, to commit an

10                              unlawful sex act.

11  914.23             2nd      Retaliation against a witness,

12                              victim, or informant, with bodily

13                              injury.

14  943.0435(6)        3rd      Sex offenders; failure to comply

15                              with reporting requirements.

16  944.35(3)(a)2.     3rd      Committing malicious battery upon

17                              or inflicting cruel or inhuman

18                              treatment on an inmate or

19                              offender on community

20                              supervision, resulting in great

21                              bodily harm.

22  944.40             2nd      Escapes.

23  944.46             3rd      Harboring, concealing, aiding

24                              escaped prisoners.

25  944.47(1)(a)5.     2nd      Introduction of contraband

26                              (firearm, weapon, or explosive)

27                              into correctional facility.

28  951.22(1)          3rd      Intoxicating drug, firearm, or

29                              weapon introduced into county

30                              facility.

31

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    Florida House of Representatives - 1999                HB 2059

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

  2  Statutes, 1998 Supplement, is amended to read:

  3         921.0024  Criminal Punishment Code; worksheet

  4  computations; scoresheets.--

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

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

  7

  8                 FLORIDA CRIMINAL PUNISHMENT CODE

  9                            WORKSHEET

10

11                          OFFENSE SCORE

12

13                         Primary Offense

14  Level         Sentence Points                            Total

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

16    10               116                             =      ....

17     9                92                             =      ....

18     8                74                             =      ....

19     7                56                             =      ....

20     6                36                             =      ....

21     5                28                             =      ....

22     4                22                             =      ....

23     3                16                             =      ....

24     2                10                             =      ....

25     1                 4                             =      ....

26

27  ..............................................................

28                                                     Total      

29

30

31

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    Florida House of Representatives - 1999                HB 2059

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  1                       Additional Offenses

  2  Level         Sentence Points            Counts          Total

  3  ..............................................................

  4    10                58             x      ....     =      ....

  5     9                46             x      ....     =      ....

  6     8                37             x      ....     =      ....

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

  8     6                18             x      ....     =      ....

  9     5               5.4             x      ....     =      ....

10     4               3.6             x      ....     =      ....

11     3               2.4             x      ....     =      ....

12     2               1.2             x      ....     =      ....

13     1               0.7             x      ....     =      ....

14     M               0.2             x      ....     =      ....

15

16  ..............................................................

17                                                     Total      

18

19                          Victim Injury

20  Level         Sentence Points            Number          Total

21  ..............................................................

22    2nd degree

23      murder-

24      death          240             x      ....     =      ....

25    Death            120             x      ....     =      ....

26    Severe            40             x      ....     =      ....

27    Moderate          18             x      ....     =      ....

28    Slight             4             x      ....     =      ....

29    Sexual

30      penetration     80             x      ....     =      ....

31

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    Florida House of Representatives - 1999                HB 2059

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  1    Sexual

  2      contact         40             x      ....     =      ....

  3

  4  ..............................................................

  5                                                     Total      

  6

  7  Primary Offense + Additional Offenses + Victim Injury =

  8                       TOTAL OFFENSE SCORE

  9

10                        PRIOR RECORD SCORE

11

12                           Prior Record

13  Level         Sentence Points            Number          Total

14  ..............................................................

15    10                29             x      ....     =      ....

16     9                23             x      ....     =      ....

17     8                19             x      ....     =      ....

18     7                14             x      ....     =      ....

19     6                 9             x      ....     =      ....

20     5               3.6             x      ....     =      ....

21     4               2.4             x      ....     =      ....

22     3               1.6             x      ....     =      ....

23     2               0.8             x      ....     =      ....

24     1               0.5             x      ....     =      ....

25     M               0.2             x      ....     =      ....

26

27  ..............................................................

28                                                     Total      

29

30     TOTAL OFFENSE SCORE........................................

31     TOTAL PRIOR RECORD SCORE...................................

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    Florida House of Representatives - 1999                HB 2059

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  1

  2     LEGAL STATUS...............................................

  3     COMMUNITY SANCTION VIOLATION...............................

  4     PRIOR SERIOUS FELONY.......................................

  5     PRIOR CAPITAL FELONY.......................................

  6     FIREARM OR SEMIAUTOMATIC WEAPON............................

  7                                                SUBTOTAL........

  8

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

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

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

12     HABITUAL OFFENDER (no)(yes)................................

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

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

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

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

17  multiplier)...................................................

18     DOMESTIC VIOLENCE IN THE PRESENCE OF RELATED CHILD

19  (no)(yes) (x multiplier)......................................

20  ..............................................................

21                                   TOTAL SENTENCE POINTS........

22

23                       (b)  WORKSHEET KEY:

24

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

26  existed at the time the offender committed an offense before

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

28  assessed for an offender's legal status.

29

30  Community sanction violation points are assessed when a

31  community sanction violation is before the court for

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

  2  community sanction violation, and each successive community

  3  sanction violation; however, if the community sanction

  4  violation includes a new felony conviction before the

  5  sentencing court, twelve (12) community sanction violation

  6  points are assessed for such violation, and for each

  7  successive community sanction violation involving a new felony

  8  conviction. Multiple counts of community sanction violations

  9  before the sentencing court shall not be a basis for

10  multiplying the assessment of community sanction violation

11  points.

12

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

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

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

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

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

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

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

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

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

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

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

24  or any additional offense was committed.

25

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

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

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

29  offender equal to twice the number of points the offender

30  receives for the primary offense and any additional offense.

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

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  1  previous capital felony offense for which the offender has

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

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

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

  5  the offense were committed in this state.

  6

  7  Possession of a firearm, semiautomatic firearm, or machine

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

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

10  775.087(2) while having in his possession: a firearm as

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

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

13  attempting to commit any felony other than those enumerated in

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

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

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

17  assessed.

18

19  Sentencing multipliers:

20

21  Drug trafficking:  If the primary offense is drug trafficking

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

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

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

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

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

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

28

29  Law enforcement protection:  If the primary offense is a

30  violation of the Law Enforcement Protection Act under s.

31  775.0823(2), the subtotal sentence points are multiplied by

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  1  2.5.  If the primary offense is a violation of s. 775.0823(3),

  2  (4), (5), (6), (7), or (8), the subtotal sentence points are

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

  4  784.07(3) or s. 775.0875(1), or of the Law Enforcement

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

  6  sentence points are multiplied by 1.5.

  7

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

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

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

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

12  subtotal sentence points are multiplied by 1.5.

13

14  Offense related to criminal street gang member:  If the

15  offender is convicted of the primary offense and committed

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

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

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

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

20  sentence points shall be are multiplied by 1.5.

21

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

23  is convicted of the primary offense and the primary offense is

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

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

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

27  with the victim or perpetrator, the subtotal sentence points

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

29         Section 5.  This act shall take effect upon becoming a

30  law.

31

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  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Removes exceptions to certain construction guidelines
  4    providing that the legislative intent is to convict and
      sentence for each criminal offense in the course of one
  5    criminal episode or transaction and not to allow the
      principle of lenity determine legislative intent.
  6

  7    Provides for enhanced penalties for commission of a
      felony or misdemeanor, or a delinquent act or violation
  8    of law that would be a felony or misdemeanor if committed
      by an adult, under specified circumstances when the
  9    defendant committed the charged offense for the purpose
      of furthering, benefiting, or promoting a criminal street
10    gang or the defendant's status in the criminal street
      gang. Revises guidelines for application of a specified
11    sentence multiplier for offenses related to criminal
      street gangs.
12

13    Provides for the applicability of certain guidelines for
      concurrent or consecutive sentencing to all sentences,
14    regardless of whether the offenses occur in single or
      multiple criminal episodes. Ranks the offense of
15    knowingly transmitting or disseminating by computer any
      notice or advertisement for the purpose of facilitating,
16    encouraging, offering, or soliciting sexual conduct of or
      with a minor, or visually depicting such conduct, on the
17    offense severity ranking chart of the Criminal Punishment
      Code.
18

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