Senate Bill 0276c1

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    Florida Senate - 2000                    CS for SB's 276 & 394

    By the Committee on Criminal Justice and Senators Saunders and
    Klein




    307-610A-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         ranking the offense involving a fourth or

24         subsequent conviction for boating under the

25         influence; amending s. 921.0024, F.S., relating

26         to the Criminal Punishment Code worksheet

27         computations and scoresheets; revising

28         guidelines for applying a specified sentence

29         multiplier for offenses committed for the

30         purpose of benefiting, promoting, or furthering

31

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    Florida Senate - 2000                    CS for SB's 276 & 394
    307-610A-00




  1         the interests of a criminal street gang;

  2         providing an effective date.

  3

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

  5

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

  7  Statutes, is amended to read:

  8         775.021  Rules of construction.--

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

10  transaction or episode, commits an act or acts which

11  constitute one or more separate criminal offenses, upon

12  conviction and adjudication of guilt, shall be sentenced

13  separately for each criminal offense; and the sentencing judge

14  may order the sentences to be served concurrently or

15  consecutively. For the purposes of this subsection, offenses

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

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

18  or the proof adduced at trial.

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

20  sentence for each criminal offense committed in the course of

21  one criminal episode or transaction and not to allow the

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

23  determine legislative intent.  Exceptions to this rule of

24  construction are:

25         1.  Offenses which require identical elements of proof.

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

27  provided by statute.

28         3.  Offenses which are lesser offenses the statutory

29  elements of which are subsumed by the greater offense.

30         Section 2.  Section 874.04, Florida Statutes, is

31  amended to read:

                                  2

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    Florida Senate - 2000                    CS for SB's 276 & 394
    307-610A-00




  1         874.04  Criminal street gang activity; enhanced

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

  3  defendant committed the charged offense for the purpose of

  4  benefiting, promoting, or furthering the interests is a member

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

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

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

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

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

10  the findings required as a basis for such sentence shall be

11  found by a preponderance of the evidence. The enhancement will

12  be as follows:

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

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

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

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

17  sentencing under chapter 921 and determining incentive

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

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

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

21  to misdemeanors enhanced under this paragraph.

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

23  if it were a felony of the second degree.

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

25  if it were a felony of the first degree.

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

27  it were a life felony.

28

29  For purposes of sentencing under chapter 921 and determining

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

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

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    Florida Senate - 2000                    CS for SB's 276 & 394
    307-610A-00




  1  and without regard to the penalty enhancement in this

  2  subsection.  For purposes of this section, penalty enhancement

  3  affects the applicable statutory maximum penalty only.

  4         Section 3.  Paragraph (f) of subsection (3) of section

  5  921.0022, Florida Statutes, is amended to read:

  6         921.0022  Criminal Punishment Code; offense severity

  7  ranking chart.--

  8         (3)  OFFENSE SEVERITY RANKING CHART

  9

10  Florida           Felony

11  Statute           Degree             Description

12

13

14                              (f)  LEVEL 6

15  316.027(1)(b)      2nd      Accident involving death, failure

16                              to stop; leaving scene.

17  316.193(2)(b)      3rd      Felony DUI, 4th or subsequent

18                              conviction.

19  327.35(2)(b)       3rd      Felony BUI, 4th or subsequent

20                              conviction.

21  775.0875(1)        3rd      Taking firearm from law

22                              enforcement officer.

23  775.21(10)         3rd      Sexual predators; failure to

24                              register; failure to renew

25                              driver's license or

26                              identification card.

27  784.021(1)(a)      3rd      Aggravated assault; deadly weapon

28                              without intent to kill.

29  784.021(1)(b)      3rd      Aggravated assault; intent to

30                              commit felony.

31  784.041            3rd      Felony battery.

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    Florida Senate - 2000                    CS for SB's 276 & 394
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  1  784.048(3)         3rd      Aggravated stalking; credible

  2                              threat.

  3  784.048(5)         3rd      Aggravated stalking of person

  4                              under 16.

  5  784.07(2)(c)       2nd      Aggravated assault on law

  6                              enforcement officer.

  7  784.08(2)(b)       2nd      Aggravated assault on a person 65

  8                              years of age or older.

  9  784.081(2)         2nd      Aggravated assault on specified

10                              official or employee.

11  784.082(2)         2nd      Aggravated assault by detained

12                              person on visitor or other

13                              detainee.

14  784.083(2)         2nd      Aggravated assault on code

15                              inspector.

16  787.02(2)          3rd      False imprisonment; restraining

17                              with purpose other than those in

18                              s. 787.01.

19  790.115(2)(d)      2nd      Discharging firearm or weapon on

20                              school property.

21  790.161(2)         2nd      Make, possess, or throw

22                              destructive device with intent to

23                              do bodily harm or damage

24                              property.

25  790.164(1)         2nd      False report of deadly explosive

26                              or act of arson or violence to

27                              state property.

28  790.19             2nd      Shooting or throwing deadly

29                              missiles into dwellings, vessels,

30                              or vehicles.

31

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    Florida Senate - 2000                    CS for SB's 276 & 394
    307-610A-00




  1  794.011(8)(a)      3rd      Solicitation of minor to

  2                              participate in sexual activity by

  3                              custodial adult.

  4  794.05(1)          2nd      Unlawful sexual activity with

  5                              specified minor.

  6  800.04(5)(d)       3rd      Lewd or lascivious molestation;

  7                              victim 12 years of age or older

  8                              but less than 16 years; offender

  9                              less than 18 years.

10  800.04(6)(b)       2nd      Lewd or lascivious conduct;

11                              offender 18 years of age or

12                              older.

13  806.031(2)         2nd      Arson resulting in great bodily

14                              harm to firefighter or any other

15                              person.

16  810.02(3)(c)       2nd      Burglary of occupied structure;

17                              unarmed; no assault or battery.

18  812.014(2)(b)      2nd      Property stolen $20,000 or more,

19                              but less than $100,000, grand

20                              theft in 2nd degree.

21  812.13(2)(c)       2nd      Robbery, no firearm or other

22                              weapon (strong-arm robbery).

23  817.034(4)(a)1.    1st      Communications fraud, value

24                              greater than $50,000.

25  817.4821(5)        2nd      Possess cloning paraphernalia

26                              with intent to create cloned

27                              cellular telephones.

28  825.102(1)         3rd      Abuse of an elderly person or

29                              disabled adult.

30  825.102(3)(c)      3rd      Neglect of an elderly person or

31                              disabled adult.

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    Florida Senate - 2000                    CS for SB's 276 & 394
    307-610A-00




  1  825.1025(3)        3rd      Lewd or lascivious molestation of

  2                              an elderly person or disabled

  3                              adult.

  4  825.103(2)(c)      3rd      Exploiting an elderly person or

  5                              disabled adult and property is

  6                              valued at less than $20,000.

  7  827.03(1)          3rd      Abuse of a child.

  8  827.03(3)(c)       3rd      Neglect of a child.

  9  827.071(2)&(3)     2nd      Use or induce a child in a sexual

10                              performance, or promote or direct

11                              such performance.

12  836.05             2nd      Threats; extortion.

13  836.10             2nd      Written threats to kill or do

14                              bodily injury.

15  843.12             3rd      Aids or assists person to escape.

16  847.0135(2)        3rd      Use of computer to facilitate or

17                              solicit sexual conduct of or with

18                              a minor.

19  847.0135(3)        3rd      Solicitation of a child, via a

20                              computer service, to commit an

21                              unlawful sex act.

22  914.23             2nd      Retaliation against a witness,

23                              victim, or informant, with bodily

24                              injury.

25  943.0435(9)        3rd      Sex offenders; failure to comply

26                              with reporting requirements.

27

28

29

30

31

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    Florida Senate - 2000                    CS for SB's 276 & 394
    307-610A-00




  1  944.35(3)(a)2.     3rd      Committing malicious battery upon

  2                              or inflicting cruel or inhuman

  3                              treatment on an inmate or

  4                              offender on community

  5                              supervision, resulting in great

  6                              bodily harm.

  7  944.40             2nd      Escapes.

  8  944.46             3rd      Harboring, concealing, aiding

  9                              escaped prisoners.

10  944.47(1)(a)5.     2nd      Introduction of contraband

11                              (firearm, weapon, or explosive)

12                              into correctional facility.

13  951.22(1)          3rd      Intoxicating drug, firearm, or

14                              weapon introduced into county

15                              facility.

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

17  Statutes, is amended to read:

18         921.0024  Criminal Punishment Code; worksheet

19  computations; scoresheets.--

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

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

22

23                 FLORIDA CRIMINAL PUNISHMENT CODE

24                            WORKSHEET

25

26                          OFFENSE SCORE

27

28                         Primary Offense

29  Level         Sentence Points                            Total

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

31    10               116                             =      ....

                                  8

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    Florida Senate - 2000                    CS for SB's 276 & 394
    307-610A-00




  1     9                92                             =      ....

  2     8                74                             =      ....

  3     7                56                             =      ....

  4     6                36                             =      ....

  5     5                28                             =      ....

  6     4                22                             =      ....

  7     3                16                             =      ....

  8     2                10                             =      ....

  9     1                 4                             =      ....

10

11  ..............................................................

12                                                     Total      

13

14                       Additional Offenses

15  Level         Sentence Points            Counts          Total

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

17    10                58             x      ....     =      ....

18     9                46             x      ....     =      ....

19     8                37             x      ....     =      ....

20     7                28             x      ....     =      ....

21     6                18             x      ....     =      ....

22     5               5.4             x      ....     =      ....

23     4               3.6             x      ....     =      ....

24     3               2.4             x      ....     =      ....

25     2               1.2             x      ....     =      ....

26     1               0.7             x      ....     =      ....

27     M               0.2             x      ....     =      ....

28

29  ..............................................................

30                                                     Total      

31

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    Florida Senate - 2000                    CS for SB's 276 & 394
    307-610A-00




  1                          Victim Injury

  2  Level         Sentence Points            Number          Total

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

  4    2nd degree

  5      murder-

  6      death          240             x      ....     =      ....

  7    Death            120             x      ....     =      ....

  8    Severe            40             x      ....     =      ....

  9    Moderate          18             x      ....     =      ....

10    Slight             4             x      ....     =      ....

11    Sexual

12      penetration     80             x      ....     =      ....

13    Sexual

14      contact         40             x      ....     =      ....

15

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

17                                                     Total      

18

19  Primary Offense + Additional Offenses + Victim Injury =

20                       TOTAL OFFENSE SCORE

21

22                        PRIOR RECORD SCORE

23

24                           Prior Record

25  Level         Sentence Points            Number          Total

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

27    10                29             x      ....     =      ....

28     9                23             x      ....     =      ....

29     8                19             x      ....     =      ....

30     7                14             x      ....     =      ....

31     6                 9             x      ....     =      ....

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    Florida Senate - 2000                    CS for SB's 276 & 394
    307-610A-00




  1     5               3.6             x      ....     =      ....

  2     4               2.4             x      ....     =      ....

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

  4     2               0.8             x      ....     =      ....

  5     1               0.5             x      ....     =      ....

  6     M               0.2             x      ....     =      ....

  7

  8  ..............................................................

  9                                                     Total      

10

11     TOTAL OFFENSE SCORE........................................

12     TOTAL PRIOR RECORD SCORE...................................

13

14     LEGAL STATUS...............................................

15     COMMUNITY SANCTION VIOLATION...............................

16     PRIOR SERIOUS FELONY.......................................

17     PRIOR CAPITAL FELONY.......................................

18     FIREARM OR SEMIAUTOMATIC WEAPON............................

19                                                SUBTOTAL........

20

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

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

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

24     HABITUAL OFFENDER (no)(yes)................................

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

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

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

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

29  multiplier)...................................................

30     DOMESTIC VIOLENCE IN THE PRESENCE OF RELATED CHILD

31  (no)(yes) (x multiplier)......................................

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    Florida Senate - 2000                    CS for SB's 276 & 394
    307-610A-00




  1  ..............................................................

  2                                   TOTAL SENTENCE POINTS........

  3

  4                       (b)  WORKSHEET KEY:

  5

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

  7  existed at the time the offender committed an offense before

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

  9  assessed for an offender's legal status.

10

11  Community sanction violation points are assessed when a

12  community sanction violation is before the court for

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

14  community sanction violation, and each successive community

15  sanction violation; however, if the community sanction

16  violation includes a new felony conviction before the

17  sentencing court, twelve (12) community sanction violation

18  points are assessed for such violation, and for each

19  successive community sanction violation involving a new felony

20  conviction. Multiple counts of community sanction violations

21  before the sentencing court shall not be a basis for

22  multiplying the assessment of community sanction violation

23  points.

24

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

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

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

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

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

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

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

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    Florida Senate - 2000                    CS for SB's 276 & 394
    307-610A-00




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

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

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

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

  5  or any additional offense was committed.

  6

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

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

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

10  offender equal to twice the number of points the offender

11  receives for the primary offense and any additional offense.

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

13  previous capital felony offense for which the offender has

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

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

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

17  the offense were committed in this state.

18

19  Possession of a firearm, semiautomatic firearm, or machine

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

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

22  775.087(2) while having in his or her possession: a firearm as

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

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

25  attempting to commit any felony other than those enumerated in

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

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

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

29  points are assessed.

30

31  Sentencing multipliers:

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    Florida Senate - 2000                    CS for SB's 276 & 394
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  1

  2  Drug trafficking:  If the primary offense is drug trafficking

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

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

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

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

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

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

  9

10  Law enforcement protection:  If the primary offense is a

11  violation of the Law Enforcement Protection Act under s.

12  775.0823(2), the subtotal sentence points are multiplied by

13  2.5.  If the primary offense is a violation of s. 775.0823(3),

14  (4), (5), (6), (7), or (8), the subtotal sentence points are

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

16  784.07(3) or s. 775.0875(1), or of the Law Enforcement

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

18  sentence points are multiplied by 1.5.

19

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

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

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

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

24  subtotal sentence points are multiplied by 1.5.

25

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

27  offender is convicted of the primary offense and committed

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

29  furthering the interests of a criminal street gang as

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

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

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    Florida Senate - 2000                    CS for SB's 276 & 394
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  1  offense pursuant to s. 874.04, the subtotal sentence points

  2  are multiplied by 1.5.

  3

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

  5  is convicted of the primary offense and the primary offense is

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

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

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

  9  with the victim or perpetrator, the subtotal sentence points

10  are multiplied by 1.5.

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

12

13          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
14                    Senate Bill's 276 and 394

15

16  Ranks in level 6 of the Criminal Punishment Code Offense
    Severity Ranking Chart the felony offense under section
17  327.35(2)(b), F.S. (fourth or subsequent BUI conviction).

18

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