Senate Bill 0276

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    Florida Senate - 2000                                   SB 276

    By Senator Saunders





    25-185-00

  1                      A bill to be entitled

  2         An act relating to sentencing; amending s.

  3         775.021, F.S.; deleting the exceptions to a

  4         rule of construction which requires that

  5         separate sentences be imposed for separate

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

  7         providing for enhanced penalties for the

  8         commission of a felony or misdemeanor, or a

  9         delinquent act or violation of law that would

10         be a felony or misdemeanor if committed by an

11         adult, under specified circumstances when the

12         defendant committed the charged offense for the

13         purpose of benefiting, promoting, or furthering

14         the interest of a criminal street gang;

15         amending s. 921.0022, F.S., relating to the

16         offense severity ranking chart of the Criminal

17         Punishment Code; ranking the offense of

18         knowingly transmitting or disseminating by

19         computer any notice or advertisement for the

20         purpose of facilitating, encouraging, offering,

21         or soliciting sexual conduct of or with a

22         minor, or visually depicting such conduct;

23         amending s. 921.0024, F.S., relating to the

24         Criminal Punishment Code worksheet computations

25         and scoresheets; revising guidelines for

26         applying a specified sentence multiplier for

27         offenses committed for the purpose of

28         benefiting, promoting, or furthering the

29         interests of a criminal street gang; providing

30         an effective date.

31

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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 that 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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  1  benefiting, promoting, or furthering the interests is a member

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

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

  4  would be a felony or misdemeanor if committed by an adult, may

  5  be enhanced if the offender was a member of a criminal street

  6  gang at the time of the commission of such offense. Each of

  7  the findings required as a basis for such sentence must shall

  8  be found by a preponderance of the evidence. The enhancement

  9  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, is amended to read:

  3         921.0022  Criminal Punishment Code; offense severity

  4  ranking chart.--

  5         (3)  OFFENSE SEVERITY RANKING CHART

  6

  7  Florida           Felony

  8  Statute           Degree             Description

  9

10

11                              (f)  LEVEL 6

12  316.027(1)(b)      2nd      Accident involving death, failure

13                              to stop; leaving scene.

14  316.193(2)(b)      3rd      Felony DUI, 4th or subsequent

15                              conviction.

16  775.0875(1)        3rd      Taking firearm from law

17                              enforcement officer.

18  775.21(10)         3rd      Sexual predators; failure to

19                              register; failure to renew

20                              driver's license or

21                              identification card.

22  784.021(1)(a)      3rd      Aggravated assault; deadly weapon

23                              without intent to kill.

24  784.021(1)(b)      3rd      Aggravated assault; intent to

25                              commit felony.

26  784.041            3rd      Felony battery.

27  784.048(3)         3rd      Aggravated stalking; credible

28                              threat.

29  784.048(5)         3rd      Aggravated stalking of person

30                              under 16.

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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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  1  800.04(5)(d)       3rd      Lewd or lascivious molestation;

  2                              victim 12 years of age or older

  3                              but less than 16 years; offender

  4                              less than 18 years.

  5  800.04(6)(b)       2nd      Lewd or lascivious conduct;

  6                              offender 18 years of age or

  7                              older.

  8  806.031(2)         2nd      Arson resulting in great bodily

  9                              harm to firefighter or any other

10                              person.

11  810.02(3)(c)       2nd      Burglary of occupied structure;

12                              unarmed; no assault or battery.

13  812.014(2)(b)      2nd      Property stolen $20,000 or more,

14                              but less than $100,000, grand

15                              theft in 2nd degree.

16  812.13(2)(c)       2nd      Robbery, no firearm or other

17                              weapon (strong-arm robbery).

18  817.034(4)(a)1.    1st      Communications fraud, value

19                              greater than $50,000.

20  817.4821(5)        2nd      Possess cloning paraphernalia

21                              with intent to create cloned

22                              cellular telephones.

23  825.102(1)         3rd      Abuse of an elderly person or

24                              disabled adult.

25  825.102(3)(c)      3rd      Neglect of an elderly person or

26                              disabled adult.

27  825.1025(3)        3rd      Lewd or lascivious molestation of

28                              an elderly person or disabled

29                              adult.

30

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  1  825.103(2)(c)      3rd      Exploiting an elderly person or

  2                              disabled adult and property is

  3                              valued at less than $20,000.

  4  827.03(1)          3rd      Abuse of a child.

  5  827.03(3)(c)       3rd      Neglect of a child.

  6  827.071(2)&(3)     2nd      Use or induce a child in a sexual

  7                              performance, or promote or direct

  8                              such performance.

  9  836.05             2nd      Threats; extortion.

10  836.10             2nd      Written threats to kill or do

11                              bodily injury.

12  843.12             3rd      Aids or assists person to escape.

13  847.0135(2)        3rd      Use of computer to facilitate or

14                              solicit sexual conduct of or with

15                              a minor.

16  847.0135(3)        3rd      Solicitation of a child, via a

17                              computer service, to commit an

18                              unlawful sex act.

19  914.23             2nd      Retaliation against a witness,

20                              victim, or informant, with bodily

21                              injury.

22  943.0435(9)        3rd      Sex offenders; failure to comply

23                              with reporting requirements.

24  944.35(3)(a)2.     3rd      Committing malicious battery upon

25                              or inflicting cruel or inhuman

26                              treatment on an inmate or

27                              offender on community

28                              supervision, resulting in great

29                              bodily harm.

30  944.40             2nd      Escapes.

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  1  944.46             3rd      Harboring, concealing, aiding

  2                              escaped prisoners.

  3  944.47(1)(a)5.     2nd      Introduction of contraband

  4                              (firearm, weapon, or explosive)

  5                              into correctional facility.

  6  951.22(1)          3rd      Intoxicating drug, firearm, or

  7                              weapon introduced into county

  8                              facility.

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

10  Statutes, is amended to read:

11         921.0024  Criminal Punishment Code; worksheet

12  computations; scoresheets.--

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

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

15

16                 FLORIDA CRIMINAL PUNISHMENT CODE

17                            WORKSHEET

18

19                          OFFENSE SCORE

20

21                         Primary Offense

22  Level         Sentence Points                            Total

23  ..............................................................

24    10               116                             =      ....

25     9                92                             =      ....

26     8                74                             =      ....

27     7                56                             =      ....

28     6                36                             =      ....

29     5                28                             =      ....

30     4                22                             =      ....

31     3                16                             =      ....

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  1     2                10                             =      ....

  2     1                 4                             =      ....

  3

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

  5                                                     Total      

  6

  7                       Additional Offenses

  8  Level         Sentence Points            Counts          Total

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

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

11     9                46             x      ....     =      ....

12     8                37             x      ....     =      ....

13     7                28             x      ....     =      ....

14     6                18             x      ....     =      ....

15     5               5.4             x      ....     =      ....

16     4               3.6             x      ....     =      ....

17     3               2.4             x      ....     =      ....

18     2               1.2             x      ....     =      ....

19     1               0.7             x      ....     =      ....

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

21

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

23                                                     Total      

24

25                          Victim Injury

26  Level         Sentence Points            Number          Total

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

28    2nd degree

29      murder-

30      death          240             x      ....     =      ....

31    Death            120             x      ....     =      ....

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  1    Severe            40             x      ....     =      ....

  2    Moderate          18             x      ....     =      ....

  3    Slight             4             x      ....     =      ....

  4    Sexual

  5      penetration     80             x      ....     =      ....

  6    Sexual

  7      contact         40             x      ....     =      ....

  8

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

10                                                     Total      

11

12  Primary Offense + Additional Offenses + Victim Injury =

13                       TOTAL OFFENSE SCORE

14

15                        PRIOR RECORD SCORE

16

17                           Prior Record

18  Level         Sentence Points            Number          Total

19  ..............................................................

20    10                29             x      ....     =      ....

21     9                23             x      ....     =      ....

22     8                19             x      ....     =      ....

23     7                14             x      ....     =      ....

24     6                 9             x      ....     =      ....

25     5               3.6             x      ....     =      ....

26     4               2.4             x      ....     =      ....

27     3               1.6             x      ....     =      ....

28     2               0.8             x      ....     =      ....

29     1               0.5             x      ....     =      ....

30     M               0.2             x      ....     =      ....

31

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  1

  2  ..............................................................

  3                                                     Total      

  4

  5     TOTAL OFFENSE SCORE........................................

  6     TOTAL PRIOR RECORD SCORE...................................

  7

  8     LEGAL STATUS...............................................

  9     COMMUNITY SANCTION VIOLATION...............................

10     PRIOR SERIOUS FELONY.......................................

11     PRIOR CAPITAL FELONY.......................................

12     FIREARM OR SEMIAUTOMATIC WEAPON............................

13                                                SUBTOTAL........

14

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

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

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

18     HABITUAL OFFENDER (no)(yes)................................

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

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

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

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

23  multiplier)...................................................

24     DOMESTIC VIOLENCE IN THE PRESENCE OF RELATED CHILD

25  (no)(yes) (x multiplier)......................................

26  ..............................................................

27                                   TOTAL SENTENCE POINTS........

28

29                       (b)  WORKSHEET KEY:

30

31

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

  2  existed at the time the offender committed an offense before

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

  4  assessed for an offender's legal status.

  5

  6  Community sanction violation points are assessed when a

  7  community sanction violation is before the court for

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

  9  community sanction violation, and each successive community

10  sanction violation; however, if the community sanction

11  violation includes a new felony conviction before the

12  sentencing court, twelve (12) community sanction violation

13  points are assessed for such violation, and for each

14  successive community sanction violation involving a new felony

15  conviction. Multiple counts of community sanction violations

16  before the sentencing court shall not be a basis for

17  multiplying the assessment of community sanction violation

18  points.

19

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

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

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

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

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

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

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

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

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

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

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

31  or any additional offense was committed.

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  1

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

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

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

  5  offender equal to twice the number of points the offender

  6  receives for the primary offense and any additional offense.

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

  8  previous capital felony offense for which the offender has

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

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

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

12  the offense were committed in this state.

13

14  Possession of a firearm, semiautomatic firearm, or machine

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

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

17  775.087(2) while having in his or her possession: a firearm as

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

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

20  attempting to commit any felony other than those enumerated in

21  s. 775.087(3) while having in his or her possession a

22  semiautomatic firearm as defined in s. 775.087(3) or a machine

23  gun as defined in s. 790.001(9), an additional 25 sentence

24  points are assessed.

25

26  Sentencing multipliers:

27

28  Drug trafficking:  If the primary offense is drug trafficking

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

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

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

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

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

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

  4

  5  Law enforcement protection:  If the primary offense is a

  6  violation of the Law Enforcement Protection Act under s.

  7  775.0823(2), the subtotal sentence points are multiplied by

  8  2.5.  If the primary offense is a violation of s. 775.0823(3),

  9  (4), (5), (6), (7), or (8), the subtotal sentence points are

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

11  784.07(3) or s. 775.0875(1), or of the Law Enforcement

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

13  sentence points are multiplied by 1.5.

14

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

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

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

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

19  subtotal sentence points are multiplied by 1.5.

20

21  Offense related to a criminal street gang member:  If the

22  offender is convicted of the primary offense and committed

23  that offense for the purpose of benefiting, promoting, or

24  furthering the interests of a criminal street gang as

25  prohibited under is found to have been a member of a criminal

26  street gang at the time of the commission of the primary

27  offense pursuant to s. 874.04, the subtotal sentence points

28  are multiplied by 1.5.

29

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

31  is convicted of the primary offense and the primary offense is

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

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

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

  4  with the victim or perpetrator, the subtotal sentence points

  5  are multiplied by 1.5.

  6         Section 5.  This act shall take effect July 1, 2000.

  7

  8            *****************************************

  9                          SENATE SUMMARY

10    Removes exceptions to certain construction guidelines to
      provide that the legislative intent is to convict and
11    sentence a defendant for each criminal offense in the
      course of one criminal episode or transaction and not to
12    allow the principle of lenity to determine legislative
      intent. Provides for enhanced penalties for the
13    commission of a felony or misdemeanor, or a delinquent
      act or violation of law that would be a felony or
14    misdemeanor if committed by an adult, under specified
      circumstances when the defendant committed the charged
15    offense for the purpose of benefiting, promoting, or
      furthering the interests of a criminal street gang. Ranks
16    under the Criminal Punishment Code the offense of using a
      computer to facilitate or solicit sexual conduct of or
17    with a minor. Revises guidelines for applying a specified
      sentence multiplier for offenses committed for the
18    purpose of benefiting, promoting, or furthering the
      interests of a criminal street gang. (See bill for
19    details.)

20

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