Florida Senate - 2017                        COMMITTEE AMENDMENT
       Bill No. SB 1068
       
       
       
       
       
       
                                Ì925088IÎ925088                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/27/2017           .                                
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       The Committee on Criminal Justice (Bracy) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Between lines 76 and 77
    4  insert:
    5         Section 2. Present paragraphs (g), (h), and (i) of
    6  subsection (1) of section 921.002, Florida Statutes, are
    7  redesignated as paragraphs (h), (i), and (k), respectively, new
    8  paragraphs (g) and (j) are added to that subsection, present
    9  paragraphs (g) and (h) of that subsection are amended, present
   10  subsection (4) of that section is redesignated as subsection
   11  (5), and a new subsection (4) is added to that section, to read:
   12         921.002 The Criminal Punishment Code.—The Criminal
   13  Punishment Code shall apply to all felony offenses, except
   14  capital felonies, committed on or after October 1, 1998.
   15         (1) The provision of criminal penalties and of limitations
   16  upon the application of such penalties is a matter of
   17  predominantly substantive law and, as such, is a matter properly
   18  addressed by the Legislature. The Legislature, in the exercise
   19  of its authority and responsibility to establish sentencing
   20  criteria, to provide for the imposition of criminal penalties,
   21  and to make the best use of state prisons so that violent
   22  criminal offenders are appropriately incarcerated, has
   23  determined that it is in the best interest of the state to
   24  develop, implement, and revise a sentencing policy. The Criminal
   25  Punishment Code embodies the principles that:
   26         (g) An upward departure sentence, as defined in s.
   27  921.00261, must be articulated in writing by the trial court
   28  judge and made only when circumstances or factors reasonably
   29  justify such sentence. The level of proof necessary to establish
   30  facts that support an upward departure sentence is a
   31  preponderance of the evidence.
   32         (h)(g)Except as provided in s. 921.0024(3), the trial
   33  court judge may impose a sentence up to and including the
   34  statutory maximum for any offense, including an offense that is
   35  before the court due to a violation of probation or community
   36  control.
   37         (i)(h) A sentence for an offense committed on or after
   38  October 1, 1998, but before October 1, 2017, may be appealed on
   39  the basis that it departs from the Criminal Punishment Code only
   40  if the sentence is below the lowest permissible sentence or as
   41  enumerated in s. 924.06(1).
   42         (j) A sentence for an offense committed on or after October
   43  1, 2017, may be appealed on the basis that it departs from the
   44  Criminal Punishment Code if the sentence is below the lowest
   45  permissible sentence provided in s. 921.0024(3); is outside the
   46  range authorized by s. 921.0024(3); or is as enumerated in s.
   47  924.06(1).
   48         (4) As provided in s. 921.00261, a court may impose an
   49  upward departure sentence based upon circumstances or factors
   50  that reasonably justify the aggravation of the sentence. The
   51  level of proof necessary to establish facts supporting an upward
   52  departure sentence is a preponderance of the evidence. When
   53  multiple reasons exist to support an upward departure sentence,
   54  such sentence shall be upheld when at least one circumstance or
   55  factor justifies such sentence regardless of the presence of
   56  other circumstances or factors found not to justify such
   57  sentence. Any upward departure sentence must be explained in
   58  writing by the trial court judge.
   59         Section 3. Present subsections (3) through (7) of section
   60  921.0024, Florida Statutes, are redesignated as subsections (4)
   61  through (8), respectively, and a new subsection (3) is added to
   62  that section, to read:
   63         921.0024 Criminal Punishment Code; worksheet computations;
   64  scoresheets.—
   65         (3)(a) This subsection applies to any felony offense,
   66  except a capital felony, committed on or after October 1, 2017.
   67         (b) The lowest permissible sentence is the minimum sentence
   68  that may be imposed by the trial court, absent a valid reason
   69  for departure.
   70         (c)The lowest permissible sentence is any nonstate prison
   71  sanction in which the total sentence points equal or are less
   72  than 44 points. The trial court may increase the total sentence
   73  points by up to, and including, 25 percent. If the total
   74  sentence points exceed 44 points as a result of this increase,
   75  the court may not impose a state prison sentence that is longer
   76  than the lowest permissible sentence in prison months calculated
   77  pursuant to paragraph (d).
   78         (d)If the total sentence points exceed 44 points, the
   79  lowest permissible sentence in prison months shall be calculated
   80  by subtracting 28 points from the total sentence points and
   81  decreasing the remaining total by 25 percent. The total sentence
   82  points shall be calculated only as a means of determining the
   83  lowest permissible sentence. The trial court may impose
   84  sentences under this subsection or s. 921.00261 concurrently or
   85  consecutively. However, any sentence to state prison must exceed
   86  1 year. If the lowest permissible sentence in prison months
   87  exceeds the statutory maximum sentence as provided in s.
   88  775.082, the lowest permissible sentence in prison months must
   89  be imposed. If the total sentence points are greater than or
   90  equal to 363, the court may sentence the offender to life
   91  imprisonment. An offender sentenced to life imprisonment under
   92  this subsection is not eligible for any form of discretionary
   93  early release, except executive clemency or conditional medical
   94  release under s. 947.149. This subsection does not supersede any
   95  requirement in subsection (1) to impose a statutory maximum
   96  sentence.
   97         (e)The trial court may impose a state prison sentence that
   98  does not vary upward by more than 25 percent from the lowest
   99  permissible sentence in prison months calculated pursuant to
  100  paragraph (d). However, no sentence imposed pursuant to this
  101  paragraph may exceed the statutory maximum sentence as provided
  102  in s. 775.082.
  103         (f) Except as provided in s. 921.00261, the trial court may
  104  not impose a sentence that varies upward by more than 25 percent
  105  from the lowest permissible sentence in prison months calculated
  106  pursuant to paragraph (d). The permissible range for sentencing
  107  for an upward departure sentence imposed by the court pursuant
  108  to s. 921.00261 is the lowest permissible sentence up to and
  109  including the statutory maximum, as provided in s. 775.082, for
  110  the primary offense and any additional offense before the court
  111  for sentencing.
  112         Section 4. Section 921.00261, Florida Statutes, is created
  113  to read:
  114         921.00261 Upward departure sentence; aggravating
  115  circumstances.—
  116         (1)(a) This section applies to any felony offense, except a
  117  capital felony, committed on or after October 1, 2017.
  118         (b) The sentence imposed pursuant to s. 921.0024(3)(d) or
  119  (3)(e) is assumed to be appropriate for the offender. A sentence
  120  that the trial court is authorized to impose pursuant to s.
  121  921.0024(3) is not an upward departure sentence. As used in this
  122  section, the term “upward departure sentence” means a state
  123  prison sentence that varies upward by more than 25 percent from
  124  the lowest permissible sentence in prison months calculated
  125  pursuant to s. 921.0024(3)(d).
  126         (c) The trial court may impose an upward departure sentence
  127  only if the sentence is accompanied by a written statement from
  128  the court specifying the reasons for the departure, filed within
  129  7 days after the date of sentencing. A written transcription of
  130  orally stated reasons for this departure is permissible if it is
  131  filed by the court within 7 days after the date of sentencing.
  132         (d) The imposition of a split sentence of incarceration
  133  followed by community control or probation does not by itself
  134  constitute an upward departure. For the purpose of determining
  135  the maximum sentence authorized by law, any community control
  136  portion of a split sentence does not constitute a term of
  137  imprisonment.
  138         (e) An upward departure sentence must be within any
  139  relevant maximum sentence limitations provided by s. 775.082.
  140         (2) An upward departure sentence is discouraged unless
  141  there are circumstances or factors that reasonably justify the
  142  departure. Aggravating circumstances to be considered include,
  143  but are not limited to, those listed in subsection (3). The
  144  failure of the trial court to impose a sentence within the range
  145  authorized by s. 921.0024(3) is subject to appellate review
  146  under chapter 924, but the extent of the departure from such
  147  range is not subject to appellate review.
  148         (3) Aggravating circumstances under which an upward
  149  departure sentence is reasonably justified include, but are not
  150  limited to:
  151         (a) The departure results from a legitimate, uncoerced plea
  152  bargain.
  153         (b) The offense was one of violence and was committed in a
  154  manner that was especially heinous, atrocious, or cruel.
  155         (c) The offenses before the court for sentencing arose out
  156  of separate episodes, the primary offense is scored at offense
  157  level 4 or higher, and the defendant has committed five or more
  158  offenses within a 180-day period which have resulted in
  159  convictions.
  160         (d) The primary offense is scored at offense level 3, and
  161  the defendant has committed eight or more offenses within a 180
  162  day period which have resulted in convictions.
  163         (e) The offense before the court for disposition was
  164  committed within 6 months after the defendant was discharged
  165  from probation, community control, or pretrial intervention or
  166  diversion or released from state prison, whichever is later.
  167         (f) The defendant occupied a leadership role in a criminal
  168  organization.
  169         (g) The offense was committed by a public official under
  170  color of office.
  171         (h) The defendant knew the victim was a law enforcement
  172  officer at the time of the offense, the offense was a violent
  173  offense, and that status is not an element of the primary
  174  offense.
  175         (i) The offense created a substantial risk of death or
  176  great bodily harm to many persons or to one or more children.
  177         (j) The victim was especially vulnerable due to age or
  178  physical or mental disability.
  179         (k) The offense was motivated by prejudice based on race,
  180  color, ancestry, ethnicity, religion, sexual orientation, or
  181  national origin of the victim.
  182         (l) The victim suffered extraordinary physical or emotional
  183  trauma or permanent physical injury or was treated with
  184  particular cruelty.
  185         (m) The victim was physically attacked by the defendant in
  186  the presence of one or more members of the victim’s family.
  187         (n) The offense resulted in substantial economic hardship
  188  to the victim and consisted of an illegal act or acts committed
  189  by means of concealment, guile, or fraud to obtain money or
  190  property, to avoid payment or loss of money or property, or to
  191  obtain business or professional advantage, when two or more of
  192  the following circumstances were present:
  193         1. The offense involved multiple victims or multiple
  194  incidents per victim;
  195         2. The offense involved a high degree of sophistication or
  196  planning or occurred over a lengthy period of time;
  197         3. The defendant used position or status to facilitate the
  198  commission of the offense, including positions of trust,
  199  confidence, or fiduciary relationship; or
  200         4. The defendant was in the past involved in other conduct
  201  similar to that involved in the current offense.
  202         (o) The offense was committed in order to prevent or avoid
  203  arrest, to impede or prevent prosecution for the conduct
  204  underlying the offense, or to effect an escape from custody.
  205         (p) The defendant is not amenable to rehabilitation or
  206  supervision, as evidenced by an escalating pattern of criminal
  207  conduct, which is a progression from nonviolent to violent
  208  crimes, a progression of increasingly violent crimes, or a
  209  pattern of increasingly serious criminal activity.
  210         (q) The defendant induced a minor to participate in any of
  211  the offenses pending before the court for disposition.
  212         (r) The primary offense is scored at offense level 7 or
  213  higher, and the defendant has been convicted of one more offense
  214  that scored, or would have scored, at an offense level 8 or
  215  higher.
  216         (s) The defendant has an extensive unscorable juvenile
  217  record.
  218         (t) The defendant committed an offense involving sexual
  219  contact or sexual penetration, and, as a direct result of the
  220  offense, the victim contracted a sexually transmissible disease.
  221         Section 5. Subsection (1) of section 924.06, Florida
  222  Statutes, is amended to read:
  223         924.06 Appeal by defendant.—
  224         (1) A defendant may appeal any of the following from:
  225         (a) A final judgment of conviction when probation has not
  226  been granted under chapter 948, except as provided in subsection
  227  (3).;
  228         (b) An order granting probation under chapter 948.;
  229         (c) An order revoking probation under chapter 948.;
  230         (d) A sentence, on the ground that it is illegal.; or
  231         (e) A sentence imposed under s. 921.0024 of the Criminal
  232  Punishment Code which exceeds the statutory maximum penalty
  233  provided in s. 775.082 for an offense at conviction, or the
  234  consecutive statutory maximums for offenses at conviction,
  235  unless otherwise provided by law.
  236         (f)A sentence imposed outside the range authorized by s.
  237  921.0024(3).
  238         Section 6. Subsection (1) of section 924.07, Florida
  239  Statutes, is amended to read:
  240         924.07 Appeal by state.—
  241         (1) The state may appeal any of the following from:
  242         (a) An order dismissing an indictment or information or any
  243  count thereof or dismissing an affidavit charging the commission
  244  of a criminal offense, the violation of probation, the violation
  245  of community control, or the violation of any supervised
  246  correctional release.
  247         (b) An order granting a new trial.
  248         (c) An order arresting judgment.
  249         (d) A ruling on a question of law when the defendant is
  250  convicted and appeals from the judgment. Once the state’s cross
  251  appeal is instituted, the appellate court shall review and rule
  252  upon the question raised by the state regardless of the
  253  disposition of the defendant’s appeal.
  254         (e) The sentence, on the ground that it is illegal.
  255         (f) A judgment discharging a prisoner on habeas corpus.
  256         (g) An order adjudicating a defendant insane under the
  257  Florida Rules of Criminal Procedure.
  258         (h) All other pretrial orders, except that it may not take
  259  more than one appeal under this subsection in any case.
  260         (i) A sentence imposed below the lowest permissible
  261  sentence established by the Criminal Punishment Code under
  262  chapter 921.
  263         (j) A ruling granting a motion for judgment of acquittal
  264  after a jury verdict.
  265         (k) An order denying restitution under s. 775.089.
  266         (l) An order or ruling suppressing evidence or evidence in
  267  limine at trial.
  268         (m) An order withholding adjudication of guilt in violation
  269  of s. 775.08435.
  270         (n) A sentence imposed outside the range authorized by s.
  271  921.0024(3).
  272         Section 7. For the purpose of incorporating the amendments
  273  made by this act to sections 924.06 and 924.07, Florida
  274  Statutes, in references thereto, subsection (3) of section
  275  958.04, Florida Statutes, is reenacted to read:
  276         958.04 Judicial disposition of youthful offenders.—
  277         (3) The provisions of this section shall not be used to
  278  impose a greater sentence than the permissible sentence range as
  279  established by the Criminal Punishment Code pursuant to chapter
  280  921 unless reasons are explained in writing by the trial court
  281  judge which reasonably justify departure. A sentence imposed
  282  outside of the code is subject to appeal pursuant to s. 924.06
  283  or s. 924.07.
  284  
  285  ================= T I T L E  A M E N D M E N T ================
  286  And the title is amended as follows:
  287         Delete line 9
  288  and insert:
  289         requiring validation of per diem rates; amending s.
  290         921.002, F.S.; specifying requirements for sentencing
  291         and appeals of sentences for offenses committed on or
  292         after a certain date; authorizing upward departures of
  293         sentences under certain circumstances; amending s.
  294         921.0024, F.S.; providing applicability; creating
  295         requirements for permissible sentences for nonstate
  296         prison sanctions and state prison sanctions;
  297         authorizing a judge to depart from the guidelines
  298         under certain circumstances; prohibiting departure
  299         sentences under certain circumstances; creating s.
  300         921.00261, F.S.; providing applicability; defining the
  301         term “upward departure sentence”; specifying
  302         requirements for imposing an upward departure
  303         sentence; providing a circumstance under which a
  304         sentence is subject to appellate review; providing
  305         aggravating circumstances under which an upward
  306         departure sentence is reasonably justified; amending
  307         s. 924.06, F.S.; authorizing a defendant to appeal a
  308         sentence outside a specified range; amending s.
  309         924.07, F.S.; authorizing the state to appeal a
  310         sentence outside a specified range; reenacting s.
  311         958.04(3), F.S., relating to judicial disposition of
  312         youthful offenders, to incorporate the amendments made
  313         to ss. 924.06 and 924.07, F.S, in references thereto;
  314         providing an