Florida Senate - 2018 SB 1194 By Senator Rouson 19-00739A-18 20181194__ 1 A bill to be entitled 2 An act relating to criminal justice; amending s. 3 775.082, F.S.; requiring a defendant who is sentenced 4 for a primary offense of possession of a controlled 5 substance committed on or after a specified date to be 6 sentenced to a nonstate prison sanction under certain 7 circumstances unless the court makes specified written 8 findings; defining the term “possession of a 9 controlled substance”; authorizing a defendant to move 10 the sentencing court to depart from a mandatory 11 minimum term of imprisonment or a mandatory fine if 12 the offense is committed on or after a specified date; 13 authorizing the state attorney to file an objection to 14 the motion; authorizing the sentencing court to grant 15 the motion if the court finds that the defendant has 16 demonstrated by a preponderance of the evidence that 17 specified criteria are met; defining the term 18 “coercion”; providing applicability; amending s. 19 921.002, F.S.; revising a principle of the Criminal 20 Punishment Code relating to a prisoner’s required 21 minimum term of imprisonment; amending s. 944.275, 22 F.S.; revising the incentive gain-time that the 23 Department of Corrections may grant a prisoner for 24 offenses committed on or after a specified date; 25 providing exceptions; revising the conditions under 26 which an inmate may be granted a one-time award of 60 27 additional days of incentive gain-time by the 28 department; deleting provisions prohibiting inmates 29 from earning or receiving gain-time in amounts that 30 would cause the inmate’s sentence to expire, end, or 31 terminate, or result in a prisoner’s release, before 32 serving a specified percentage of the imposed 33 sentence; amending s. 947.1405, F.S.; providing that 34 persons convicted of a noncapital offense and 35 sentenced for a term of life qualify for conditional 36 release, subject to certain terms and conditions; 37 requiring that the Department of Corrections within a 38 specified timeframe review certain records of persons 39 serving life sentences and compile such information 40 for the Florida Commission on Offender Review to use 41 in making certain determinations regarding conditional 42 release; reenacting ss. 775.084(4)(j), 944.70, 43 947.13(1)(f), and 947.141(1), (2), and (7), F.S., 44 relating to the conditional release program applying 45 to persons sentenced under certain provisions, 46 conditions for release from incarceration, the powers 47 and duties of the Florida Commission on Offender 48 Review, and violations of certain release or 49 supervision provisions, respectively, to incorporate 50 the amendment made to s. 947.1405, F.S., in references 51 thereto; providing an effective date. 52 53 Be It Enacted by the Legislature of the State of Florida: 54 55 Section 1. Present subsection (11) of section 775.082, 56 Florida Statutes, is redesignated as subsection (13), and a new 57 subsection (11) and subsection (12) are added to that section, 58 to read: 59 775.082 Penalties; applicability of sentencing structures; 60 mandatory minimum sentences for certain reoffenders previously 61 released from prison.— 62 (11) If a defendant is sentenced for a primary offense of 63 possession of a controlled substance committed on or after 64 October 1, 2018, and if the total sentence points pursuant to s. 65 921.0024 are 60 points or fewer, the court must sentence the 66 offender to a nonstate prison sanction. However, if the court 67 makes written findings that a nonstate prison sanction could 68 present a danger to the public, the court may sentence the 69 offender to a state correctional facility pursuant to this 70 section. As used in this subsection, the term “possession of a 71 controlled substance” means possession of a controlled substance 72 in violation of s. 893.13 but does not include possession with 73 intent to sell, manufacture, or deliver a controlled substance 74 or possession of a controlled substance in violation of s. 75 893.135. 76 (12)(a) A defendant who is convicted of an offense 77 committed on or after October 1, 2018, which requires that a 78 mandatory minimum term of imprisonment be imposed may move the 79 sentencing court to depart from the mandatory minimum term and, 80 if applicable, the mandatory fine. The state attorney may file 81 an objection to the motion. 82 (b) The court may grant the defendant’s motion if the court 83 finds that the defendant has demonstrated by a preponderance of 84 the evidence that all of the following criteria are met: 85 1. The defendant has not previously received a departure 86 under this section and has not been previously convicted of the 87 same offense for which he or she requests a departure under this 88 section; 89 2. The offense is not a forcible felony as defined in s. 90 776.08 or a misdemeanor that involves the use or threat of 91 physical force or violence against another person. However, 92 burglary of an unoccupied structure or conveyance is not 93 considered a forcible felony for purposes of this subparagraph; 94 3. The offense does not involve physical injury to another 95 person or coercion of another person; and 96 4. The offense does not involve a victim who is a minor or 97 the use of a minor in the commission of the offense. 98 (c) As used in this subsection, the term “coercion” means: 99 1. Using or threatening to use physical force against 100 another person; or 101 2. Restraining or confining or threatening to restrain or 102 confine another person without lawful authority and against his 103 or her will. 104 (d) This subsection does not apply to sentencing pursuant 105 to subsection (9), s. 775.0837, s. 775.084, or s. 794.0115. 106 Section 2. Paragraph (e) of subsection (1) of section 107 921.002, Florida Statutes, is amended to read: 108 921.002 The Criminal Punishment Code.—The Criminal 109 Punishment Code shall apply to all felony offenses, except 110 capital felonies, committed on or after October 1, 1998. 111 (1) The provision of criminal penalties and of limitations 112 upon the application of such penalties is a matter of 113 predominantly substantive law and, as such, is a matter properly 114 addressed by the Legislature. The Legislature, in the exercise 115 of its authority and responsibility to establish sentencing 116 criteria, to provide for the imposition of criminal penalties, 117 and to make the best use of state prisons so that violent 118 criminal offenders are appropriately incarcerated, has 119 determined that it is in the best interest of the state to 120 develop, implement, and revise a sentencing policy. The Criminal 121 Punishment Code embodies the principles that: 122 (e) The sentence imposed by the sentencing judge reflects 123 the length of actual time to be served, shortened only by the 124 application of incentive and meritorious gain-time as provided 125 by law, and may not be shortened if the defendant would 126 consequently serve less than 65 percent of his or her term of 127 imprisonment as provided in s. 944.275(4)(b)4.a. or 85 percent 128 of his or her term of imprisonment as provided in s. 944.275(4) 129 or s. 944.275(4)(b)4.b. The provisions of chapter 947, relating 130 to parole, shall not apply to persons sentenced under the 131 Criminal Punishment Code. 132 Section 3. Paragraphs (b), (d), and (f) of subsection (4) 133 of section 944.275, Florida Statutes, are amended to read: 134 944.275 Gain-time.— 135 (4) 136 (b) For each month in which an inmate works diligently, 137 participates in training, uses time constructively, or otherwise 138 engages in positive activities, the department may grant 139 incentive gain-time in accordance with this paragraph. The rate 140 of incentive gain-time in effect on the date the inmate 141 committed the offense that
whichresulted in his or her 142 incarceration shall be the inmate’s rate of eligibility to earn 143 incentive gain-time throughout the period of incarceration and 144 may shallnot be altered by a subsequent change in the severity 145 level of the offense for which the inmate was sentenced. 146 1. For sentences imposed for offenses committed before 147 prior toJanuary 1, 1994, up to 20 days of incentive gain-time 148 may be granted. If granted, such gain-time shall be credited and 149 applied monthly. 150 2. For sentences imposed for offenses committed on or after 151 January 1, 1994, and before October 1, 1995: 152 a. For offenses ranked in offense severity levels 1 through 153 7, under former s. 921.0012 or former s. 921.0013, up to 25 days 154 of incentive gain-time may be granted. If granted, such gain 155 time shall be credited and applied monthly. 156 b. For offenses ranked in offense severity levels 8, 9, and 157 10, under former s. 921.0012 or former s. 921.0013, up to 20 158 days of incentive gain-time may be granted. If granted, such 159 gain-time shall be credited and applied monthly. 160 3. For sentences imposed for offenses committed on or after 161 October 1, 1995, and before October 1, 2018, the department may 162 grant up to 10 days per month of incentive gain-time. 163 4. For sentences imposed for offenses committed on or after 164 October 1, 2018, the department may grant up to 20 days per 165 month of incentive gain-time, except that: 166 a. If the offense is a nonviolent felony, as defined in s. 167 948.08(6), the prisoner is not eligible to earn any type of 168 gain-time in an amount that would cause a sentence to expire, 169 end, or terminate, or that would result in a prisoner’s release, 170 before he or she serves a minimum of 65 percent of the sentence 171 imposed. For purposes of this sub-subparagraph, credits awarded 172 by the court for time physically incarcerated shall be credited 173 toward satisfaction of 65 percent of the sentence imposed. A 174 prisoner who is granted incentive gain-time pursuant to this 175 sub-subparagraph may not accumulate further gain-time awards at 176 any point when the tentative release date is the same as that 177 date at which the prisoner will have served 65 percent of the 178 sentence imposed. State prisoners sentenced to life imprisonment 179 shall be incarcerated for the rest of their natural lives, 180 unless granted pardon or clemency. 181 b. If the offense is not a nonviolent felony, as defined in 182 s. 948.08(6), the prisoner is not eligible to earn any type of 183 gain-time in an amount that would cause a sentence to expire, 184 end, or terminate, or that would result in a prisoner’s release, 185 before he or she serves a minimum of 85 percent of the sentence 186 imposed. For purposes of this sub-subparagraph, credits awarded 187 by the court for time physically incarcerated shall be credited 188 toward satisfaction of 85 percent of the sentence imposed. A 189 prisoner who is granted incentive gain-time pursuant to this 190 sub-subparagraph may not accumulate further gain-time awards at 191 any point when the tentative release date is the same as that 192 date at which the prisoner will have served 85 percent of the 193 sentence imposed. State prisoners sentenced to life imprisonment 194 shall be incarcerated for the rest of their natural lives, 195 unless granted pardon or clemency. 196 (d) Notwithstanding the monthly maximum awards of incentive 197 gain-time under subparagraphs (b)1.-4., 2., and 3.,the 198 education program manager shall recommend, and the Department of 199 Corrections may grant, a one-time award of 60 additional days of 200 incentive gain-time to an inmate who is otherwise eligible and 201 who successfully completes requirements for and is, or has been 202 during the current commitment, awarded a high school equivalency 203 diploma or vocational certificate. Under no circumstances may an 204 inmate receive more than 60 days for educational attainment 205 pursuant to this section. 206 (f) An inmate who is subject to subparagraph (b)3. is not207 eligible to earn or receive gain-time under paragraph (a),208 paragraph (b), paragraph (c), or paragraph (d) or any other type209 of gain-time in an amount that would cause a sentence to expire,210 end, or terminate, or that would result in a prisoner’s release,211 prior to serving a minimum of 85 percent of the sentence212 imposed. For purposes of this paragraph, credits awarded by the213 court for time physically incarcerated shall be credited toward214 satisfaction of 85 percent of the sentence imposed. Except as215 provided by this section, a prisoner may not accumulate further216 gain-time awards at any point when the tentative release date is217 the same as that date at which the prisoner will have served 85218 percent of the sentence imposed. State prisoners sentenced to219 life imprisonment shall be incarcerated for the rest of their220 natural lives, unless granted pardon or clemency.221 Section 4. Subsections (2) and (5) of section 947.1405, 222 Florida Statutes, are amended to read: 223 947.1405 Conditional release program.— 224 (2) Any inmate who: 225 (a) Is convicted of a crime committed on or after October 226 1, 1988, and before January 1, 1994, and any inmate who is 227 convicted of a crime committed on or after January 1, 1994, 228 which crime is or was contained in category 1, category 2, 229 category 3, or category 4 of Rule 3.701 and Rule 3.988, Florida 230 Rules of Criminal Procedure (1993), and who has served at least 231 one prior felony commitment at a state or federal correctional 232 institution; 233 (b) Is sentenced as a habitual or violent habitual offender 234 or a violent career criminal pursuant to s. 775.084; or235 (c) Is found to be a sexual predator under s. 775.21 or 236 former s. 775.23; or 237 (d) Is convicted of a noncapital offense and sentenced for 238 a term of life, 239 240 shall, upon reaching the tentative release date or provisional 241 release date or serving 20 years of a life sentence with no 242 record of disciplinary violations during that time, whichever 243 occurs isearlier, as established by the Department of 244 Corrections, be released under supervision subject to specified 245 terms and conditions, including payment of the cost of 246 supervision pursuant to s. 948.09. Such supervision shall be 247 applicable to all sentences within the overall term of sentences 248 if an inmate’s overall term of sentences includes one or more 249 sentences that are eligible for conditional release supervision 250 as provided herein. Effective July 1, 1994, and applicable for 251 offenses committed on or after that date, the commission may 252 require, as a condition of conditional release, that the 253 releasee make payment of the debt due and owing to a county or 254 municipal detention facility under s. 951.032 for medical care, 255 treatment, hospitalization, or transportation received by the 256 releasee while in that detention facility. The commission, in 257 determining whether to order such repayment and the amount of 258 such repayment, shall consider the amount of the debt, whether 259 there was any fault of the institution for the medical expenses 260 incurred, the financial resources of the releasee, the present 261 and potential future financial needs and earning ability of the 262 releasee, and dependents, and other appropriate factors. If any 263 inmate placed on conditional release supervision is also subject 264 to probation or community control, resulting from a probationary 265 or community control split sentence within the overall term of 266 sentences, the Department of Corrections shall supervise such 267 person according to the conditions imposed by the court and the 268 commission shall defer to such supervision. If the court revokes 269 probation or community control and resentences the offender to a 270 term of incarceration, such revocation also constitutes a 271 sufficient basis for the revocation of the conditional release 272 supervision on any nonprobationary or noncommunity control 273 sentence without further hearing by the commission. If any such 274 supervision on any nonprobationary or noncommunity control 275 sentence is revoked, such revocation may result in a forfeiture 276 of all gain-time, and the commission may revoke the resulting 277 deferred conditional release supervision or take other action it 278 considers appropriate. If the term of conditional release 279 supervision exceeds that of the probation or community control, 280 then, upon expiration of the probation or community control, 281 authority for the supervision shall revert to the commission and 282 the supervision shall be subject to the conditions imposed by 283 the commission. A panel of no fewer than two commissioners shall 284 establish the terms and conditions of any such release. If the 285 offense was a controlled substance violation, the conditions 286 shall include a requirement that the offender submit to random 287 substance abuse testing intermittently throughout the term of 288 conditional release supervision, upon the direction of the 289 correctional probation officer as defined in s. 943.10(3). The 290 commission shall also determine whether the terms and conditions 291 of such release have been violated and whether such violation 292 warrants revocation of the conditional release. 293 (5) Within 180 days before an inmate’s prior to the294 tentative release date, orprovisional release date, or 295 completion of 20 years of a life sentence, whichever occurs is296 earlier, a representative of the department shall review the 297 inmate’s program participation, disciplinary record, 298 psychological and medical records, criminal records, and any 299 other information pertinent to the impending release. The 300 department shall gather and compile information necessary for 301 the commission to make the determinations set forth in 302 subsections (2) and subsection(3). A department representative 303 shall conduct a personal interview with the inmate for the 304 purpose of determining the details of the inmate’s release plan, 305 including the inmate’s planned residence and employment. The 306 department representative shall forward the inmate’s release 307 plan to the commission and recommend to the commission the terms 308 and conditions of the conditional release. 309 Section 5. For the purpose of incorporating the amendment 310 made by this act to section 947.1405, Florida Statutes, in a 311 reference thereto, paragraph (j) of subsection (4) of section 312 775.084, Florida Statutes, is reenacted to read: 313 775.084 Violent career criminals; habitual felony offenders 314 and habitual violent felony offenders; three-time violent felony 315 offenders; definitions; procedure; enhanced penalties or 316 mandatory minimum prison terms.— 317 (4) 318 (j) The provisions of s. 947.1405 shall apply to persons 319 sentenced as habitual felony offenders and persons sentenced as 320 habitual violent felony offenders. 321 Section 6. For the purpose of incorporating the amendment 322 made by this act to section 947.1405, Florida Statutes, in a 323 reference thereto, section 944.70, Florida Statutes, is 324 reenacted to read: 325 944.70 Conditions for release from incarceration.— 326 (1)(a) A person who is convicted of a crime committed on or 327 after October 1, 1983, but before January 1, 1994, may be 328 released from incarceration only: 329 1. Upon expiration of the person’s sentence; 330 2. Upon expiration of the person’s sentence as reduced by 331 accumulated gain-time; 332 3. As directed by an executive order granting clemency; 333 4. Upon attaining the provisional release date; 334 5. Upon placement in a conditional release program pursuant 335 to s. 947.1405; or 336 6. Upon the granting of control release pursuant to s. 337 947.146. 338 (b) A person who is convicted of a crime committed on or 339 after January 1, 1994, may be released from incarceration only: 340 1. Upon expiration of the person’s sentence; 341 2. Upon expiration of the person’s sentence as reduced by 342 accumulated meritorious or incentive gain-time; 343 3. As directed by an executive order granting clemency; 344 4. Upon placement in a conditional release program pursuant 345 to s. 947.1405 or a conditional medical release program pursuant 346 to s. 947.149; or 347 5. Upon the granting of control release, including 348 emergency control release, pursuant to s. 947.146. 349 (2) A person who is convicted of a crime committed on or 350 after December 1, 1990, and who receives a control release date 351 may not refuse to accept the terms or conditions of control 352 release. 353 Section 7. For the purpose of incorporating the amendment 354 made by this act to section 947.1405, Florida Statutes, in a 355 reference thereto, paragraph (f) of subsection (1) of section 356 947.13, Florida Statutes, is reenacted to read: 357 947.13 Powers and duties of commission.— 358 (1) The commission shall have the powers and perform the 359 duties of: 360 (f) Establishing the terms and conditions of persons 361 released on conditional release under s. 947.1405, and 362 determining subsequent ineligibility for conditional release due 363 to a violation of the terms or conditions of conditional release 364 and taking action with respect to such a violation. 365 Section 8. For the purpose of incorporating the amendment 366 made by this act to section 947.1405, Florida Statutes, in a 367 reference thereto, subsections (1), (2), and (7) of section 368 947.141, Florida Statutes, are reenacted to read: 369 947.141 Violations of conditional release, control release, 370 or conditional medical release or addiction-recovery 371 supervision.— 372 (1) If a member of the commission or a duly authorized 373 representative of the commission has reasonable grounds to 374 believe that an offender who is on release supervision under s. 375 947.1405, s. 947.146, s. 947.149, or s. 944.4731 has violated 376 the terms and conditions of the release in a material respect, 377 such member or representative may cause a warrant to be issued 378 for the arrest of the releasee; if the offender was found to be 379 a sexual predator, the warrant must be issued. 380 (2) Upon the arrest on a felony charge of an offender who 381 is on release supervision under s. 947.1405, s. 947.146, s. 382 947.149, or s. 944.4731, the offender must be detained without 383 bond until the initial appearance of the offender at which a 384 judicial determination of probable cause is made. If the trial 385 court judge determines that there was no probable cause for the 386 arrest, the offender may be released. If the trial court judge 387 determines that there was probable cause for the arrest, such 388 determination also constitutes reasonable grounds to believe 389 that the offender violated the conditions of the release. Within 390 24 hours after the trial court judge’s finding of probable 391 cause, the detention facility administrator or designee shall 392 notify the commission and the department of the finding and 393 transmit to each a facsimile copy of the probable cause 394 affidavit or the sworn offense report upon which the trial court 395 judge’s probable cause determination is based. The offender must 396 continue to be detained without bond for a period not exceeding 397 72 hours excluding weekends and holidays after the date of the 398 probable cause determination, pending a decision by the 399 commission whether to issue a warrant charging the offender with 400 violation of the conditions of release. Upon the issuance of the 401 commission’s warrant, the offender must continue to be held in 402 custody pending a revocation hearing held in accordance with 403 this section. 404 (7) If a law enforcement officer has probable cause to 405 believe that an offender who is on release supervision under s. 406 947.1405, s. 947.146, s. 947.149, or s. 944.4731 has violated 407 the terms and conditions of his or her release by committing a 408 felony offense, the officer shall arrest the offender without a 409 warrant, and a warrant need not be issued in the case. 410 Section 9. This act shall take effect October 1, 2018.