Florida Senate - 2017 COMMITTEE AMENDMENT
Bill No. SB 150
Ì164354+Î164354
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
04/03/2017 .
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The Committee on Criminal Justice (Bracy) recommended the
following:
1 Senate Amendment to Amendment (423494) (with title
2 amendment)
3
4 Between lines 2067 and 2068
5 insert:
6 Section 8. Present subsection (11) of section 775.082,
7 Florida Statutes, is redesignated as subsection (12), and a new
8 subsection (11) is added to that section, to read:
9 775.082 Penalties; applicability of sentencing structures;
10 mandatory minimum sentences for certain reoffenders previously
11 released from prison.—
12 (11) If a defendant is sentenced for a primary offense of
13 possession of a controlled substance committed on or after
14 October 1, 2017, and if the total sentence points pursuant to s.
15 921.0024 are 60 points or fewer, the court must sentence the
16 offender to a nonstate prison sanction. However, if the court
17 makes written findings that a nonstate prison sanction could
18 present a danger to the public, the court may sentence the
19 offender to a state correctional facility pursuant to this
20 section. As used in this subsection, the term “possession of a
21 controlled substance” means possession of a controlled substance
22 in violation of s. 893.13, but does not include possession with
23 intent to sell, manufacture, or deliver a controlled substance
24 or possession of a controlled substance in violation of s.
25 893.135.
26 Section 9. Section 921.0026, Florida Statutes, is amended
27 to read:
28 921.0026 Mitigating circumstances.—This section applies to
29 any felony offense, except any capital felony, committed on or
30 after October 1, 1998.
31 (1) A downward departure from the lowest permissible
32 sentence, as calculated according to the total sentence points
33 pursuant to s. 921.0024, is prohibited unless there are
34 circumstances or factors that reasonably justify the downward
35 departure. Mitigating factors to be considered include, but are
36 not limited to, those listed in subsection (2). The imposition
37 of a sentence below the lowest permissible sentence is subject
38 to appellate review under chapter 924, but the extent of
39 downward departure is not subject to appellate review.
40 (2) Mitigating circumstances under which a departure from
41 the lowest permissible sentence is reasonably justified include,
42 but are not limited to:
43 (a) The departure results from a legitimate, uncoerced plea
44 bargain.
45 (b) The defendant was an accomplice to the offense and was
46 a relatively minor participant in the criminal conduct.
47 (c) The capacity of the defendant to appreciate the
48 criminal nature of the conduct or to conform that conduct to the
49 requirements of law was substantially impaired.
50 (d) For an offense committed on or after October 1, 1998,
51 but before October 1, 2017, the defendant requires specialized
52 treatment for a mental disorder that is unrelated to substance
53 abuse or addiction or for a physical disability, and the
54 defendant is amenable to treatment.
55 (e) For an offense committed on or after October 1, 2017,
56 the defendant requires specialized treatment for an addiction, a
57 mental disorder, or a physical disability, and the defendant is
58 amenable to treatment.
59 (f)(e) The need for payment of restitution to the victim
60 outweighs the need for a prison sentence.
61 (g)(f) The victim was an initiator, willing participant,
62 aggressor, or provoker of the incident.
63 (h)(g) The defendant acted under extreme duress or under
64 the domination of another person.
65 (i)(h) Before the identity of the defendant was determined,
66 the victim was substantially compensated.
67 (j)(i) The defendant cooperated with the state to resolve
68 the current offense or any other offense.
69 (k)(j) The offense was committed in an unsophisticated
70 manner and was an isolated incident for which the defendant has
71 shown remorse.
72 (l)(k) At the time of the offense the defendant was too
73 young to appreciate the consequences of the offense.
74 (m)(l) The defendant is to be sentenced as a youthful
75 offender.
76 (n)(m) For an offense committed on or after October 1,
77 1998, but before October 1, 2017, the defendant’s offense is a
78 nonviolent felony, the defendant’s Criminal Punishment Code
79 scoresheet total sentence points under s. 921.0024 are 60 points
80 or fewer, and the court determines that the defendant is
81 amenable to the services of a postadjudicatory treatment-based
82 drug court program and is otherwise qualified to participate in
83 the program as part of the sentence. Except as provided in this
84 paragraph, the defendant’s substance abuse or addiction,
85 including intoxication at the time of the offense, is not a
86 mitigating factor for an offense committed on or after October
87 1, 1998, but before October 1, 2017, and does not, under any
88 circumstance, justify a downward departure from the permissible
89 sentencing range For purposes of this paragraph, the term
90 “nonviolent felony” has the same meaning as provided in s.
91 948.08(6).
92 (o)(n) The defendant was making a good faith effort to
93 obtain or provide medical assistance for an individual
94 experiencing a drug-related overdose.
95 (3) As used in subsection (2), the term “nonviolent felony”
96 has the same meaning as provided in s. 948.08 Except as provided
97 in paragraph (2)(m), the defendant’s substance abuse or
98 addiction, including intoxication at the time of the offense, is
99 not a mitigating factor under subsection (2) and does not, under
100 any circumstances, justify a downward departure from the
101 permissible sentencing range.
102 Section 10. Subsection (7) of section 948.01, Florida
103 Statutes, is amended to read:
104 948.01 When court may place defendant on probation or into
105 community control.—
106 (7)(a) Notwithstanding s. 921.0024 and effective for
107 offenses committed on or after July 1, 2009, the sentencing
108 court may place the defendant into a postadjudicatory treatment
109 based drug court program if the defendant’s Criminal Punishment
110 Code scoresheet total sentence points under s. 921.0024 are 60
111 points or fewer, the offense is a nonviolent felony, the
112 defendant is amenable to substance abuse treatment, and the
113 defendant otherwise qualifies under s. 397.334(3). The
114 satisfactory completion of the program shall be a condition of
115 the defendant’s probation or community control. As used in this
116 subsection, the term “nonviolent felony” means a third degree
117 felony violation under chapter 810 or any other felony offense
118 that is not a forcible felony as defined in s. 776.08.
119 (b) Notwithstanding s. 921.0024 and effective for offenses
120 committed on or after October 1, 2017, the sentencing court must
121 place the defendant into a postadjudicatory treatment-based drug
122 court program, into residential drug treatment, or on drug
123 offender probation if the defendant’s Criminal Punishment Code
124 scoresheet total sentence points under s. 921.0024 are 60 points
125 or fewer, the offense is a nonviolent felony, the defendant is
126 amenable to substance abuse treatment, the defendant’s criminal
127 behavior is related to substance abuse or addiction, and the
128 defendant otherwise qualifies under s. 397.334(3). The
129 satisfactory completion of the program must be a condition of
130 the defendant’s probation or community control.
131 (c)(b) In order to be placed in a postadjudicatory
132 treatment-based drug court program under paragraph (a) or
133 paragraph (b), the defendant must be fully advised of the
134 purpose of the program, and the defendant must agree to enter
135 the program. The original sentencing court shall relinquish
136 jurisdiction of the defendant’s case to the postadjudicatory
137 drug court program until the defendant is no longer active in
138 the program, the case is returned to the sentencing court due to
139 the defendant’s termination from the program for failure to
140 comply with the terms thereof, or the defendant’s sentence is
141 completed.
142 (d) As used in this subsection, the term “nonviolent
143 felony” means a third degree felony violation under chapter 810
144 or any other felony offense that is not a forcible felony as
145 defined in s. 776.08.
146 Section 11. For the purpose of incorporating the amendment
147 made by this act to section 921.0026, Florida Statutes, in
148 references thereto, paragraphs (b) and (c) of subsection (1) of
149 section 775.08435, Florida Statutes, are reenacted to read:
150 775.08435 Prohibition on withholding adjudication in felony
151 cases.—
152 (1) Notwithstanding the provisions of s. 948.01, the court
153 may not withhold adjudication of guilt upon the defendant for:
154 (b) A second degree felony offense unless:
155 1. The state attorney requests in writing that adjudication
156 be withheld; or
157 2. The court makes written findings that the withholding of
158 adjudication is reasonably justified based on circumstances or
159 factors in accordance with those set forth in s. 921.0026.
160
161 Notwithstanding any provision of this section, no adjudication
162 of guilt shall be withheld for a second degree felony offense if
163 the defendant has a prior withholding of adjudication for a
164 felony that did not arise from the same transaction as the
165 current felony offense.
166 (c) A third degree felony offense if the defendant has a
167 prior withholding of adjudication for a felony offense that did
168 not arise from the same transaction as the current felony
169 offense unless:
170 1. The state attorney requests in writing that adjudication
171 be withheld; or
172 2. The court makes written findings that the withholding of
173 adjudication is reasonably justified based on circumstances or
174 factors in accordance with those set forth in s. 921.0026.
175
176 Notwithstanding any provision of this section, no adjudication
177 of guilt shall be withheld for a third degree felony offense if
178 the defendant has two or more prior withholdings of adjudication
179 for a felony that did not arise from the same transaction as the
180 current felony offense.
181 Section 12. For the purpose of incorporating the amendment
182 made by this act to section 921.0026, Florida Statutes, in a
183 reference thereto, subsection (3) of section 921.002, Florida
184 Statutes, is reenacted to read:
185 921.002 The Criminal Punishment Code.—The Criminal
186 Punishment Code shall apply to all felony offenses, except
187 capital felonies, committed on or after October 1, 1998.
188 (3) A court may impose a departure below the lowest
189 permissible sentence based upon circumstances or factors that
190 reasonably justify the mitigation of the sentence in accordance
191 with s. 921.0026. The level of proof necessary to establish
192 facts supporting the mitigation of a sentence is a preponderance
193 of the evidence. When multiple reasons exist to support the
194 mitigation, the mitigation shall be upheld when at least one
195 circumstance or factor justifies the mitigation regardless of
196 the presence of other circumstances or factors found not to
197 justify mitigation. Any sentence imposed below the lowest
198 permissible sentence must be explained in writing by the trial
199 court judge.
200 Section 13. For the purpose of incorporating the amendment
201 made by this act to section 921.0026, Florida Statutes, in a
202 reference thereto, subsection (1) of section 921.00265, Florida
203 Statutes, is reenacted to read:
204 921.00265 Recommended sentences; departure sentences;
205 mandatory minimum sentences.—This section applies to any felony
206 offense, except any capital felony, committed on or after
207 October 1, 1998.
208 (1) The lowest permissible sentence provided by
209 calculations from the total sentence points pursuant to s.
210 921.0024(2) is assumed to be the lowest appropriate sentence for
211 the offender being sentenced. A departure sentence is prohibited
212 unless there are mitigating circumstances or factors present as
213 provided in s. 921.0026 which reasonably justify a departure.
214 Section 14. For the purpose of incorporating the amendment
215 made by this act to section 948.01, Florida Statutes, in
216 references thereto, subsection (2) and paragraph (a) of
217 subsection (4) of section 394.47892, Florida Statutes, are
218 reenacted to read:
219 394.47892 Mental health court programs.—
220 (2) Mental health court programs may include pretrial
221 intervention programs as provided in ss. 948.08, 948.16, and
222 985.345, postadjudicatory mental health court programs as
223 provided in ss. 948.01 and 948.06, and review of the status of
224 compliance or noncompliance of sentenced defendants through a
225 mental health court program.
226 (4)(a) Entry into a postadjudicatory mental health court
227 program as a condition of probation or community control
228 pursuant to s. 948.01 or s. 948.06 must be based upon the
229 sentencing court’s assessment of the defendant’s criminal
230 history, mental health screening outcome, amenability to the
231 services of the program, and total sentence points; the
232 recommendation of the state attorney and the victim, if any; and
233 the defendant’s agreement to enter the program.
234 Section 15. For the purpose of incorporating the amendment
235 made by this act to section 948.01, Florida Statutes, in
236 references thereto, paragraph (a) of subsection (3) and
237 subsection (5) of section 397.334, Florida Statutes, are
238 reenacted to read:
239 397.334 Treatment-based drug court programs.—
240 (3)(a) Entry into any postadjudicatory treatment-based drug
241 court program as a condition of probation or community control
242 pursuant to s. 948.01, s. 948.06, or s. 948.20 must be based
243 upon the sentencing court’s assessment of the defendant’s
244 criminal history, substance abuse screening outcome, amenability
245 to the services of the program, total sentence points, the
246 recommendation of the state attorney and the victim, if any, and
247 the defendant’s agreement to enter the program.
248 (5) Treatment-based drug court programs may include
249 pretrial intervention programs as provided in ss. 948.08,
250 948.16, and 985.345, treatment-based drug court programs
251 authorized in chapter 39, postadjudicatory programs as provided
252 in ss. 948.01, 948.06, and 948.20, and review of the status of
253 compliance or noncompliance of sentenced offenders through a
254 treatment-based drug court program. While enrolled in a
255 treatment-based drug court program, the participant is subject
256 to a coordinated strategy developed by a drug court team under
257 subsection (4). The coordinated strategy may include a protocol
258 of sanctions that may be imposed upon the participant for
259 noncompliance with program rules. The protocol of sanctions may
260 include, but is not limited to, placement in a substance abuse
261 treatment program offered by a licensed service provider as
262 defined in s. 397.311 or in a jail-based treatment program or
263 serving a period of secure detention under chapter 985 if a
264 child or a period of incarceration within the time limits
265 established for contempt of court if an adult. The coordinated
266 strategy must be provided in writing to the participant before
267 the participant agrees to enter into a treatment-based drug
268 court program.
269 Section 16. For the purpose of incorporating the amendment
270 made by this act to section 948.01, Florida Statutes, in a
271 reference thereto, paragraph (a) of subsection (5) of section
272 910.035, Florida Statutes, is reenacted to read:
273 910.035 Transfer from county for plea, sentence, or
274 participation in a problem-solving court.—
275 (5) TRANSFER FOR PARTICIPATION IN A PROBLEM-SOLVING COURT.—
276 (a) For purposes of this subsection, the term “problem
277 solving court” means a drug court pursuant to s. 948.01, s.
278 948.06, s. 948.08, s. 948.16, or s. 948.20; a military veterans’
279 and servicemembers’ court pursuant to s. 394.47891, s. 948.08,
280 s. 948.16, or s. 948.21; a mental health court program pursuant
281 to s. 394.47892, s. 948.01, s. 948.06, s. 948.08, or s. 948.16;
282 or a delinquency pretrial intervention court program pursuant to
283 s. 985.345.
284 Section 17. For the purpose of incorporating the amendment
285 made by this act to section 948.01, Florida Statutes, in a
286 reference thereto, paragraph (c) of subsection (1) of section
287 921.187, Florida Statutes, is reenacted to read:
288 921.187 Disposition and sentencing; alternatives;
289 restitution.—
290 (1) The alternatives provided in this section for the
291 disposition of criminal cases shall be used in a manner that
292 will best serve the needs of society, punish criminal offenders,
293 and provide the opportunity for rehabilitation. If the offender
294 does not receive a state prison sentence, the court may:
295 (c) Place the offender on probation with or without an
296 adjudication of guilt pursuant to s. 948.01.
297 Section 18. For the purpose of incorporating the amendment
298 made by this act to section 948.01, Florida Statutes, in a
299 reference thereto, section 943.04352, Florida Statutes, is
300 reenacted to read:
301 943.04352 Search of registration information regarding
302 sexual predators and sexual offenders required when placement on
303 misdemeanor probation.—When the court places a defendant on
304 misdemeanor probation pursuant to ss. 948.01 and 948.15, the
305 public or private entity providing probation services must
306 conduct a search of the probationer’s name or other identifying
307 information against the registration information regarding
308 sexual predators and sexual offenders maintained by the
309 Department of Law Enforcement under s. 943.043. The probation
310 services provider may conduct the search using the Internet site
311 maintained by the Department of Law Enforcement. Also, a
312 national search must be conducted through the Dru Sjodin
313 National Sex Offender Public Website maintained by the United
314 States Department of Justice.
315
316 ================= T I T L E A M E N D M E N T ================
317 And the title is amended as follows:
318 Delete line 2537
319 and insert:
320 provisions; amending s. 775.082, F.S.; requiring that
321 a court sentence a defendant who is convicted of a
322 primary offense of possession of a controlled
323 substance committed on or after a specified date to a
324 nonstate prison sanction under certain circumstances;
325 defining the term “possession of a controlled
326 substance”; amending s. 921.0026, F.S.; revising the
327 mitigating circumstances under which a departure from
328 the lowest permissible sentence is reasonably
329 justified; making technical changes; amending s.
330 948.01, F.S.; requiring a sentencing court to place
331 certain defendants who commit an offense on or after a
332 specified date into a postadjudicatory treatment-based
333 drug court program, into residential drug treatment,
334 or on drug offender probation; making technical
335 changes; reenacting ss. 775.08435(1)(b) and (c),
336 921.002(3), and 921.00265(1), F.S., relating to the
337 prohibition on withholding adjudication in felony
338 cases, the Criminal Punishment Code, and recommended
339 and departure sentences, respectively, to incorporate
340 the amendment made to s. 921.0026, F.S., in references
341 thereto; reenacting ss. 394.47892(2) and (4)(a),
342 397.334(3)(a) and (5), 910.035(5)(a), 921.187(1)(c),
343 and 943.04352, F.S., relating to mental health court
344 programs, treatment-based drug court programs,
345 transfer for participation in a problem-solving court,
346 offender probation with or without adjudication of
347 guilt, and court placement of a defendant on
348 misdemeanor probation, respectively, to incorporate
349 the amendment made to s. 948.01, F.S., in references
350 thereto; reenacting ss. 39.806(1)(d), 63.089(4)(b),