House Bill 0435
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Florida House of Representatives - 2000 HB 435
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.; deleting specified exceptions to
4 a rule of construction; amending s. 874.04,
5 F.S.; revising enhanced penalties provisions
6 for certain offenses relating to street gangs;
7 amending s. 921.0022, F.S.; including within
8 the Offense Severity Rating Chart a reference
9 to certain offenses relating to facilitation or
10 solicitation of sexual conduct with a minor
11 using a computer; amending s. 921.0024, F.S.;
12 revising a sentencing multiplier provision
13 relating to offenses related to criminal street
14 gangs; providing an effective date.
15
16 Be It Enacted by the Legislature of the State of Florida:
17
18 Section 1. Paragraph (b) of subsection (4) of section
19 775.021, Florida Statutes, is amended to read:
20 775.021 Rules of construction.--
21 (4)
22 (b) The intent of the Legislature is to convict and
23 sentence for each criminal offense committed in the course of
24 one criminal episode or transaction and not to allow the
25 principle of lenity as set forth in subsection (1) to
26 determine legislative intent. Exceptions to this rule of
27 construction are:
28 1. Offenses which require identical elements of proof.
29 2. Offenses which are degrees of the same offense as
30 provided by statute.
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1 3. Offenses which are lesser offenses the statutory
2 elements of which are subsumed by the greater offense.
3 Section 2. Section 874.04, Florida Statutes, is
4 amended to read:
5 874.04 Criminal street gang activity; enhanced
6 penalties.--Upon a finding by the court at sentencing that the
7 defendant committed the charged offense for the purpose of
8 furthering, benefiting, or promoting is a member of a criminal
9 street gang, the penalty for any felony or misdemeanor, or any
10 delinquent act or violation of law which would be a felony or
11 misdemeanor if committed by an adult, may be enhanced if the
12 offender was a member of a criminal street gang at the time of
13 the commission of such offense. Each of the findings required
14 as a basis for such sentence shall be found by a preponderance
15 of the evidence. The enhancement will be as follows:
16 (1)(a) A misdemeanor of the second degree may be
17 punished as if it were a misdemeanor of the first degree.
18 (b) A misdemeanor of the first degree may be punished
19 as if it were a felony of the third degree. For purposes of
20 sentencing under chapter 921 and determining incentive
21 gain-time eligibility under chapter 944, such offense is
22 ranked in level 1 of the offense severity ranking chart. The
23 criminal street gang multiplier in s. 921.0024 does not apply
24 to misdemeanors enhanced under this paragraph.
25 (2)(a) A felony of the third degree may be punished as
26 if it were a felony of the second degree.
27 (b) A felony of the second degree may be punished as
28 if it were a felony of the first degree.
29 (c) A felony of the first degree may be punished as if
30 it were a life felony.
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1 For purposes of sentencing under chapter 921 and determining
2 incentive gain-time eligibility under chapter 944, such felony
3 offense is ranked as provided in s. 921.0022 or s. 921.0023,
4 and without regard to the penalty enhancement in this
5 subsection. For purposes of this section, penalty enhancement
6 affects the applicable statutory maximum penalty only.
7 Section 3. Paragraph (f) of subsection (3) of section
8 921.0022, Florida Statutes, is amended to read:
9 921.0022 Criminal Punishment Code; offense severity
10 ranking chart.--
11 (3) OFFENSE SEVERITY RANKING CHART
12
13 Florida Felony
14 Statute Degree Description
15
16
17 (f) LEVEL 6
18 316.027(1)(b) 2nd Accident involving death, failure
19 to stop; leaving scene.
20 316.193(2)(b) 3rd Felony DUI, 4th or subsequent
21 conviction.
22 775.0875(1) 3rd Taking firearm from law
23 enforcement officer.
24 775.21(10) 3rd Sexual predators; failure to
25 register; failure to renew
26 driver's license or
27 identification card.
28 784.021(1)(a) 3rd Aggravated assault; deadly weapon
29 without intent to kill.
30 784.021(1)(b) 3rd Aggravated assault; intent to
31 commit felony.
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1 784.041 3rd Felony battery.
2 784.048(3) 3rd Aggravated stalking; credible
3 threat.
4 784.048(5) 3rd Aggravated stalking of person
5 under 16.
6 784.07(2)(c) 2nd Aggravated assault on law
7 enforcement officer.
8 784.08(2)(b) 2nd Aggravated assault on a person 65
9 years of age or older.
10 784.081(2) 2nd Aggravated assault on specified
11 official or employee.
12 784.082(2) 2nd Aggravated assault by detained
13 person on visitor or other
14 detainee.
15 784.083(2) 2nd Aggravated assault on code
16 inspector.
17 787.02(2) 3rd False imprisonment; restraining
18 with purpose other than those in
19 s. 787.01.
20 790.115(2)(d) 2nd Discharging firearm or weapon on
21 school property.
22 790.161(2) 2nd Make, possess, or throw
23 destructive device with intent to
24 do bodily harm or damage
25 property.
26 790.164(1) 2nd False report of deadly explosive
27 or act of arson or violence to
28 state property.
29 790.19 2nd Shooting or throwing deadly
30 missiles into dwellings, vessels,
31 or vehicles.
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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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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 a computer to facilitate
17 or solicit sexual conduct of or
18 with 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
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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 = ....
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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
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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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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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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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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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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 criminal street gangs gang member: If the
27 offender is convicted of any felony the primary offense and
28 committed that offense for the purpose of furthering,
29 benefiting, or promoting is found to have been a member of a
30 criminal street gang at the time of the commission of the
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1 primary offense pursuant to s. 874.04, the subtotal sentence
2 points 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 *****************************************
14 HOUSE SUMMARY
15
16
Removes exceptions to a rule of construction regarding
17 sentencing for criminal offenses. Provides for enhanced
penalties for commission of a felony or misdemeanor, or a
18 delinquent act or violation of law that would be a felony
or misdemeanor if committed by an adult, under specified
19 circumstances when the defendant committed the charged
offense for the purpose of furthering, benefiting, or
20 promoting a criminal street gang.
21
Ranks in the offense severity ranking chart of the
22 Criminal Punishment Code the offense of knowingly
transmitting or disseminating by computer any notice or
23 advertisement for the purpose of facilitating,
encouraging, offering, or soliciting sexual conduct of or
24 with a minor, or visually depicting such conduct.
25
Revises guidelines of the Criminal Punishment Code
26 worksheet computations and scoresheets for application of
a specified sentence multiplier for offenses related to
27 criminal street gangs and conforms terminology.
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