Florida Senate - 2017 SB 1200 By Senator Bracy 11-00738-17 20171200__ 1 A bill to be entitled 2 An act relating to criminal sentencing; amending s. 3 921.002, F.S.; providing that the sentencing 4 guidelines of the Criminal Punishment Code are 5 recommendations for sentencing and are not mandatory; 6 revising provisions concerning departures from 7 recommended sentences; amending ss. 921.0024, 8 921.0026, and 921.00265, F.S.; conforming provisions 9 to changes made by the act; providing an effective 10 date. 11 12 Be It Enacted by the Legislature of the State of Florida: 13 14 Section 1. Section 921.002, Florida Statutes, is amended to 15 read: 16 921.002 The Criminal Punishment Code.—The Criminal 17 Punishment Code shall apply to all felony offenses, except 18 capital felonies, committed on or after October 1, 1998. 19 (1) The provision of criminal penalties and of limitations 20 upon the application of such penalties is a matter of 21 predominantly substantive law and, as such, is a matter properly 22 addressed by the Legislature. The Legislature, in the exercise 23 of its authority and responsibility to establish sentencing 24 criteria, to provide for the imposition of criminal penalties, 25 and to make the best use of state prisons so that violent 26 criminal offenders are appropriately incarcerated, has 27 determined that it is in the best interest of the state to 28 develop, implement, and revise a
sentencingpolicy of 29 recommended sentences. The Criminal Punishment Code embodies the 30 principles that: 31 (a) Sentencing is neutral with respect to race, gender, and 32 social and economic status. 33 (b) The primary purpose of sentencing is to punish the 34 offender. Rehabilitation is a desired goal of the criminal 35 justice system but is subordinate to the goal of punishment. 36 (c) The penalty imposed is commensurate with the severity 37 of the primary offense and the circumstances surrounding the 38 primary offense. 39 (d) The severity of the sentence increases with the length 40 and nature of the offender’s prior record. 41 (e) The sentence imposed by the sentencing judge reflects 42 the length of actual time to be served, shortened only by the 43 application of incentive and meritorious gain-time as provided 44 by law, and may not be shortened if the defendant would 45 consequently serve less than 85 percent of his or her term of 46 imprisonment as provided in s. 944.275(4)(b)3. The provisions of 47 chapter 947, relating to parole, shall not apply to persons 48 sentenced under the Criminal Punishment Code. 49 (f) Departures below the lowest permissiblesentence 50 recommended establishedby the code must be articulated in 51 writing by the trial court judge and made only when 52 circumstances or factors reasonably justify the mitigation of 53 the sentence due to a mitigating circumstance of a kind, or to a 54 degree, not adequately taken into consideration in the 55 formulation of the code. The level of proof necessary to 56 establish facts that support a departure from the lowest 57 recommended permissiblesentence is a preponderance of the 58 evidence. 59 (g) The trial court judge may impose a sentence above the 60 highest sentence recommended by the code when circumstances or 61 factors reasonably justify the aggravation of the sentence due 62 to an aggravating circumstance of a kind, or to a degree, not 63 adequately taken into consideration in the formulation of the 64 code impose a sentence up to and including the statutory maximum65 for any offense, including an offense that is before the court 66 due to a violation of probation or community control. 67 (h) A sentence may be appealed on the basis that it departs 68 from the Criminal Punishment Code only if the sentence is below 69 the lowest recommended permissiblesentence or as enumerated in 70 s. 924.06(1). 71 (i) Use of incarcerative sanctions is prioritized toward 72 offenders convicted of serious offenses and certain offenders 73 who have long prior records, in order to maximize the finite 74 capacities of state and local correctional facilities. 75 (2) When a defendant is before the court for sentencing for 76 more than one felony and the felonies were committed under more 77 than one version or revision of the former sentencing guidelines 78 or the code, each felony shall be sentenced under the guidelines 79 or the code in effect at the time the particular felony was 80 committed. This subsection does not apply to sentencing for any 81 capital felony. 82 (3) A court may impose a departure below the lowest 83 recommended permissiblesentence based upon circumstances or 84 factors that reasonably justify the mitigation of the sentence 85 in accordance with s. 921.0026. The level of proof necessary to 86 establish facts supporting the mitigation of a sentence is a 87 preponderance of the evidence. When multiple reasons exist to 88 support the mitigation, the mitigation shall be upheld when at 89 least one circumstance or factor justifies the mitigation 90 regardless of the presence of other circumstances or factors 91 found not to justify mitigation. Any sentence imposed below the 92 lowest recommended permissiblesentence must be explained in 93 writing by the trial court judge. 94 (4)(a) The Department of Corrections shall report on trends 95 in sentencing practices and sentencing score thresholds and 96 provide an analysis on the sentencing factors considered by the 97 courts and shall submit this information to the Legislature by 98 October 1 of each year. 99 (b) The Criminal Justice Estimating Conference, with the 100 assistance of the Department of Corrections, shall estimate the 101 impact of any proposed change to the Criminal Punishment Code on 102 future rates of incarceration and on the prison population. The 103 Criminal Justice Estimating Conference shall base its 104 projections on historical data concerning sentencing practices 105 which have been accumulated by the Department of Corrections and 106 other relevant data from other state agencies and records of the 107 Department of Corrections which disclose the average time served 108 for offenses covered by any proposed changes to the Criminal 109 Punishment Code. 110 (c) In order to produce projects that are either required 111 by law or requested by the Legislature to assist the Legislature 112 in making modifications to the Criminal Punishment Code, the 113 Department of Corrections is authorized to collect and evaluate 114 Criminal Punishment Code scoresheets from each of the judicial 115 circuits after sentencing. Beginning in 1999,By October 1 of 116 each year, the Department of Corrections shall provide an annual 117 report to the Legislature that shows the rate of compliance of 118 each judicial circuit in providing scoresheets to the 119 department. 120 Section 2. Paragraph (b) of subsection (1) and subsections 121 (2), (3), and (4) of section 921.0024, Florida Statutes, are 122 amended to read: 123 921.0024 Criminal Punishment Code; worksheet computations; 124 scoresheets.— 125 (1) 126 (b) WORKSHEET KEY: 127 Legal status points are assessed when any form of legal status 128 existed at the time the offender committed an offense before the 129 court for sentencing. Four (4) sentence points are assessed for 130 an offender’s legal status. 131 Community sanction violation points are assessed when a 132 community sanction violation is before the court for sentencing. 133 Six (6) sentence points are assessed for each community sanction 134 violation and each successive community sanction violation, 135 unless any of the following apply: 136 1. If the community sanction violation includes a new 137 felony conviction before the sentencing court, twelve (12) 138 community sanction violation points are assessed for the 139 violation, and for each successive community sanction violation 140 involving a new felony conviction. 141 2. If the community sanction violation is committed by a 142 violent felony offender of special concern as defined in s. 143 948.06: 144 a. Twelve (12) community sanction violation points are 145 assessed for the violation and for each successive violation of 146 felony probation or community control where: 147 I. The violation does not include a new felony conviction; 148 and 149 II. The community sanction violation is not based solely on 150 the probationer or offender’s failure to pay costs or fines or 151 make restitution payments. 152 b. Twenty-four (24) community sanction violation points are 153 assessed for the violation and for each successive violation of 154 felony probation or community control where the violation 155 includes a new felony conviction. 156 157 Multiple counts of community sanction violations before the 158 sentencing court shall not be a basis for multiplying the 159 assessment of community sanction violation points. 160 161 Prior serious felony points: If the offender has a primary 162 offense or any additional offense ranked in level 8, level 9, or 163 level 10, and one or more prior serious felonies, a single 164 assessment of thirty (30) points shall be added. For purposes of 165 this section, a prior serious felony is an offense in the 166 offender’s prior record that is ranked in level 8, level 9, or 167 level 10 under s. 921.0022 or s. 921.0023 and for which the 168 offender is serving a sentence of confinement, supervision, or 169 other sanction or for which the offender’s date of release from 170 confinement, supervision, or other sanction, whichever is later, 171 is within 3 years before the date the primary offense or any 172 additional offense was committed. 173 174 Prior capital felony points: If the offender has one or more 175 prior capital felonies in the offender’s criminal record, points 176 shall be added to the subtotal sentence points of the offender 177 equal to twice the number of points the offender receives for 178 the primary offense and any additional offense. A prior capital 179 felony in the offender’s criminal record is a previous capital 180 felony offense for which the offender has entered a plea of nolo 181 contendere or guilty or has been found guilty; or a felony in 182 another jurisdiction which is a capital felony in that 183 jurisdiction, or would be a capital felony if the offense were 184 committed in this state. 185 186 Possession of a firearm, semiautomatic firearm, or machine gun: 187 If the offender is convicted of committing or attempting to 188 commit any felony other than those enumerated in s. 775.087(2) 189 while having in his or her possession: a firearm as defined in 190 s. 790.001(6), an additional eighteen (18) sentence points are 191 assessed; or if the offender is convicted of committing or 192 attempting to commit any felony other than those enumerated in 193 s. 775.087(3) while having in his or her possession a 194 semiautomatic firearm as defined in s. 775.087(3) or a machine 195 gun as defined in s. 790.001(9), an additional twenty-five (25) 196 sentence points are assessed. 197 198 Sentencing multipliers: 199 200 Drug trafficking: If the primary offense is drug trafficking 201 under s. 893.135, the subtotal sentence points are multiplied, 202 at the discretion of the court, for a level 7 or level 8 203 offense, by 1.5. The state attorney may move the sentencing 204 court to reduce or suspend the sentence of a person convicted of 205 a level 7 or level 8 offense, if the offender provides 206 substantial assistance as described in s. 893.135(4). 207 208 Law enforcement protection: If the primary offense is a 209 violation of the Law Enforcement Protection Act under s. 210 775.0823(2), (3), or (4), the subtotal sentence points are 211 multiplied by 2.5. If the primary offense is a violation of s. 212 775.0823(5), (6), (7), (8), or (9), the subtotal sentence points 213 are multiplied by 2.0. If the primary offense is a violation of 214 s. 784.07(3) or s. 775.0875(1), or of the Law Enforcement 215 Protection Act under s. 775.0823(10) or (11), the subtotal 216 sentence points are multiplied by 1.5. 217 218 Grand theft of a motor vehicle: If the primary offense is grand 219 theft of the third degree involving a motor vehicle and in the 220 offender’s prior record, there are three or more grand thefts of 221 the third degree involving a motor vehicle, the subtotal 222 sentence points are multiplied by 1.5. 223 224 Offense related to a criminal gang: If the offender is convicted 225 of the primary offense and committed that offense for the 226 purpose of benefiting, promoting, or furthering the interests of 227 a criminal gang as defined in s. 874.03, the subtotal sentence 228 points are multiplied by 1.5. If applying the multiplier results 229 in the lowest recommended permissiblesentence exceeding the 230 statutory maximum sentence for the primary offense under chapter 231 775, the court may not apply the multiplier and must sentence 232 the defendant to the statutory maximum sentence. 233 234 Domestic violence in the presence of a child: If the offender is 235 convicted of the primary offense and the primary offense is a 236 crime of domestic violence, as defined in s. 741.28, which was 237 committed in the presence of a child under 16 years of age who 238 is a family or household member as defined in s. 741.28(3) with 239 the victim or perpetrator, the subtotal sentence points are 240 multiplied by 1.5. 241 242 Adult-on-minor sex offense: If the offender was 18 years of age 243 or older and the victim was younger than 18 years of age at the 244 time the offender committed the primary offense, and if the 245 primary offense was an offense committed on or after October 1, 246 2014, and is a violation of s. 787.01(2) or s. 787.02(2), if the 247 violation involved a victim who was a minor and, in the course 248 of committing that violation, the defendant committed a sexual 249 battery under chapter 794 or a lewd act under s. 800.04 or s. 250 847.0135(5) against the minor; s. 787.01(3)(a)2. or 3.; s. 251 787.02(3)(a)2. or 3.; s. 794.011, excluding s. 794.011(10); s. 252 800.04; or s. 847.0135(5), the subtotal sentence points are 253 multiplied by 2.0. If applying the multiplier results in the 254 lowest recommended permissiblesentence exceeding the statutory 255 maximum sentence for the primary offense under chapter 775, the 256 court may not apply the multiplier and must sentence the 257 defendant to the statutory maximum sentence. 258 (2) The lowest recommended permissiblesentence is the 259 recommended minimum sentence that should maybe imposed by the 260 trial court, absent a valid reason for departure. The lowest 261 recommended permissiblesentence is any nonstate prison sanction 262 in which the total sentence points equals or is less than 44 263 points, unless the court determines within its discretion that a 264 prison sentence, which may be up to the statutory maximums for 265 the offenses committed, is appropriate. When the total sentence 266 points exceeds 44 points, the lowest recommended permissible267 sentence in prison months shall be calculated by subtracting 28 268 points from the total sentence points and decreasing the 269 remaining total by 25 percent. The total sentence points shall 270 be calculated only as a means of determining the lowest 271 recommended permissiblesentence. The recommended permissible272 range for sentencing shall be the lowest recommended permissible273 sentence up to and including the statutory maximum, as defined 274 in s. 775.082, for the primary offense and any additional 275 offenses before the court for sentencing. The sentencing court 276 may impose such sentences concurrently or consecutively. 277 However, any sentence to state prison must exceed 1 year. If the 278 lowest recommended permissiblesentence under the code exceeds 279 the statutory maximum sentence as provided in s. 775.082, no 280 more than the statutory maximum sentence may required by the281 code mustbe imposed. If the total sentence points are greater 282 than or equal to 363, the court may sentence the offender to 283 life imprisonment. An offender sentenced to life imprisonment 284 under this section is not eligible for any form of discretionary 285 early release, except executive clemency or conditional medical 286 release under s. 947.149. 287 (3) A single scoresheet shall be prepared for each 288 defendant to determine the recommended permissiblerange for the 289 sentence that the court may impose, except that if the defendant 290 is before the court for sentencing for more than one felony and 291 the felonies were committed under more than one version or 292 revision of the guidelines or the code, separate scoresheets 293 must be prepared. The scoresheet or scoresheets must cover all 294 the defendant’s offenses pending before the court for 295 sentencing. The state attorney shall prepare the scoresheet or 296 scoresheets, which must be presented to the defense counsel for 297 review for accuracy in all cases unless the judge directs 298 otherwise. The defendant’s scoresheet or scoresheets must be 299 approved and signed by the sentencing judge. 300 (4) The Department of Corrections, in consultation with the 301 Office of the State Courts Administrator, state attorneys, and 302 public defenders, must develop and submit the revised Criminal 303 Punishment Code scoresheet to the Supreme Court for approval by 304 June 15 of each year, as necessary. Upon the Supreme Court’s 305 approval of the revised scoresheet, the Department of 306 Corrections shall produce and provide sufficient copies of the 307 revised scoresheets by September 30 of each year, as necessary. 308 Scoresheets must include item entries for the scoresheet 309 preparer’s use in indicating whether any prison sentence imposed 310 includes a mandatory minimum sentence or the sentence imposed 311 was a downward departure from the lowest recommended permissible312 sentence under the Criminal Punishment Code. 313 Section 3. Section 921.0026, Florida Statutes, is amended 314 to read: 315 921.0026 Mitigating circumstances.—This section applies to 316 any felony offense, except any capital felony, committed on or 317 after October 1, 1998. 318 (1) A downward departure from the lowest recommended 319 permissiblesentence, as calculated according to the total 320 sentence points pursuant to s. 921.0024, is prohibited unless 321 there are circumstances or factors that reasonably justify the 322 downward departure. Mitigating factors to be considered include, 323 but are not limited to, those listed in subsection (2). The 324 imposition of a sentence below the lowest recommended 325 permissiblesentence is subject to appellate review under 326 chapter 924, but the extent of downward departure is not subject 327 to appellate review. 328 (2) Mitigating circumstances under which a departure from 329 the lowest recommended permissiblesentence is reasonably 330 justified include, but are not limited to: 331 (a) The departure results from a legitimate, uncoerced plea 332 bargain. 333 (b) The defendant was an accomplice to the offense and was 334 a relatively minor participant in the criminal conduct. 335 (c) The capacity of the defendant to appreciate the 336 criminal nature of the conduct or to conform that conduct to the 337 requirements of law was substantially impaired. 338 (d) The defendant requires specialized treatment for a 339 mental disorder that is unrelated to substance abuse or 340 addiction or for a physical disability, and the defendant is 341 amenable to treatment. 342 (e) The need for payment of restitution to the victim 343 outweighs the need for a prison sentence. 344 (f) The victim was an initiator, willing participant, 345 aggressor, or provoker of the incident. 346 (g) The defendant acted under extreme duress or under the 347 domination of another person. 348 (h) Before the identity of the defendant was determined, 349 the victim was substantially compensated. 350 (i) The defendant cooperated with the state to resolve the 351 current offense or any other offense. 352 (j) The offense was committed in an unsophisticated manner 353 and was an isolated incident for which the defendant has shown 354 remorse. 355 (k) At the time of the offense the defendant was too young 356 to appreciate the consequences of the offense. 357 (l) The defendant is to be sentenced as a youthful 358 offender. 359 (m) The defendant’s offense is a nonviolent felony, the 360 defendant’s Criminal Punishment Code scoresheet total sentence 361 points under s. 921.0024 are 60 points or fewer, and the court 362 determines that the defendant is amenable to the services of a 363 postadjudicatory treatment-based drug court program and is 364 otherwise qualified to participate in the program as part of the 365 sentence. For purposes of this paragraph, the term “nonviolent 366 felony” has the same meaning as provided in s. 948.08(6). 367 (n) The defendant was making a good faith effort to obtain 368 or provide medical assistance for an individual experiencing a 369 drug-related overdose. 370 (3) Except as provided in paragraph (2)(m), the defendant’s 371 substance abuse or addiction, including intoxication at the time 372 of the offense, is not a mitigating factor under subsection (2) 373 and does not, under any circumstances, justify a downward 374 departure from the recommended permissiblesentencing range. 375 Section 4. Section 921.00265, Florida Statutes, is amended 376 to read: 377 921.00265 Recommended sentences; departure sentences; 378 mandatory minimum sentences.—This section applies to any felony 379 offense, except any capital felony, committed on or after 380 October 1, 1998. 381 (1) The lowest recommended permissiblesentence provided by 382 calculations from the total sentence points pursuant to s. 383 921.0024(2) is assumed to be the lowest appropriate sentence for 384 the offender being sentenced. A departure sentence is 385 discouraged prohibitedunless there are mitigating circumstances 386 or factors present as provided in s. 921.0026 which reasonably 387 justify a departure. 388 (2) A sentence that decreases an offender’s sentence below 389 the lowest recommended permissiblesentence is a departure 390 sentence and must be accompanied by a written statement by the 391 sentencing court delineating the reasons for the departure, 392 filed within 7 days after the date of sentencing. A written 393 transcription of reasons stated orally at sentencing for 394 departure from the lowest recommended permissiblesentence is 395 permissible if it is filed by the court within 7 days after the 396 date of sentencing. 397 (3) Any offender who is sentenced to a departure sentence 398 or any offender who is subject to a minimum mandatory sentence 399 must have the departure sentence and any minimum mandatory 400 sentence so noted on the sentencing scoresheet. 401 Section 5. This act shall take effect July 1, 2017.