Senate Bill sb0580

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    Florida Senate - 2005                                   SB 580

    By Senator Fasano





    11-449-05

  1                      A bill to be entitled

  2         An act relating to mitigating factors in

  3         certain offenses; amending s. 921.0026, F.S.;

  4         providing that the fact that a victim was an

  5         initiator, willing participant, aggressor, or

  6         provoker of an incident, or consented to an

  7         incident, is not a mitigating factor to

  8         offenses under ch. 794, F.S., or s. 800.04,

  9         F.S., under certain circumstances; providing an

10         effective date.

11  

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

13  

14         Section 1.  Section 921.0026, Florida Statutes, is

15  amended to read:

16         921.0026  Mitigating circumstances.--This section

17  applies to any felony offense, except any capital felony,

18  committed on or after October 1, 1998.

19         (1)  A downward departure from the lowest permissible

20  sentence, as calculated according to the total sentence points

21  pursuant to s. 921.0024, is prohibited unless there are

22  circumstances or factors that reasonably justify the downward

23  departure.  Mitigating factors to be considered include, but

24  are not limited to, those listed in subsection (2).  The

25  imposition of a sentence below the lowest permissible sentence

26  is subject to appellate review under chapter 924, but the

27  extent of downward departure is not subject to appellate

28  review.

29         (2)  Mitigating circumstances under which a departure

30  from the lowest permissible sentence is reasonably justified

31  include, but are not limited to:

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    Florida Senate - 2005                                   SB 580
    11-449-05




 1         (a)  The departure results from a legitimate, uncoerced

 2  plea bargain.

 3         (b)  The defendant was an accomplice to the offense and

 4  was a relatively minor participant in the criminal conduct.

 5         (c)  The capacity of the defendant to appreciate the

 6  criminal nature of the conduct or to conform that conduct to

 7  the requirements of law was substantially impaired.

 8         (d)  The defendant requires specialized treatment for a

 9  mental disorder that is unrelated to substance abuse or

10  addiction or for a physical disability, and the defendant is

11  amenable to treatment.

12         (e)  The need for payment of restitution to the victim

13  outweighs the need for a prison sentence.

14         (f)  The victim was an initiator, willing participant,

15  aggressor, or provoker of the incident, except as provided in

16  subsection (4).

17         (g)  The defendant acted under extreme duress or under

18  the domination of another person.

19         (h)  Before the identity of the defendant was

20  determined, the victim was substantially compensated.

21         (i)  The defendant cooperated with the state to resolve

22  the current offense or any other offense.

23         (j)  The offense was committed in an unsophisticated

24  manner and was an isolated incident for which the defendant

25  has shown remorse.

26         (k)  At the time of the offense the defendant was too

27  young to appreciate the consequences of the offense.

28         (l)  The defendant is to be sentenced as a youthful

29  offender.

30         (3)  The defendant's substance abuse or addiction,

31  including intoxication at the time of the offense, is not a

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    Florida Senate - 2005                                   SB 580
    11-449-05




 1  mitigating factor under subsection (2) and does not, under any

 2  circumstances, justify a downward departure from the

 3  permissible sentencing range.

 4         (4)  In any case in which the victim is younger than 16

 5  years of age, the fact that the victim was an initiator,

 6  willing participant, aggressor, or provoker of the incident,

 7  or consented to the incident, is not a mitigating factor to

 8  any offense contained in chapter 794 or s. 800.04 in which

 9  consent is not a defense if the offender was more than 4 years

10  older than the victim at the time of the offense. Such fact,

11  under the circumstances provided in this subsection, may not

12  be used to justify a downward departure from the permissible

13  sentencing range.

14         Section 2.  This act shall take effect upon becoming a

15  law.

16  

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18                          SENATE SUMMARY

19    Provides that the fact that a victim was an initiator,
      willing participant, aggressor, or provoker of an
20    incident, or consented to an incident, is not a
      mitigating factor to specified offenses if the victim is
21    younger than 16 years of age and the offender is more
      than 4 years older than the victim.
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