Florida Senate - 2019                             CS for SB 1030
       
       
        
       By the Committee on Criminal Justice; and Senator Bracy
       
       
       
       
       
       591-03157-19                                          20191030c1
    1                        A bill to be entitled                      
    2         An act relating to mitigating circumstances in
    3         sentencing; amending s. 921.0026, F.S.; revising the
    4         mitigating circumstances under which a departure from
    5         the lowest permissible sentence is reasonably
    6         justified; authorizing mitigation of the lowest
    7         permissible sentence when a defendant requires
    8         specialized treatment for a certain substance
    9         addiction and is amenable to treatment; making
   10         technical changes; reenacting ss. 775.08435(1)(c),
   11         921.002(3), and 921.00265(1), F.S., relating to the
   12         prohibition on withholding adjudication in felony
   13         cases, the Criminal Punishment Code, and recommended
   14         and departure sentences, respectively, to incorporate
   15         the amendment made to s. 921.0026, F.S., in references
   16         thereto; providing an effective date.
   17          
   18  Be It Enacted by the Legislature of the State of Florida:
   19  
   20         Section 1. Section 921.0026, Florida Statutes, is amended
   21  to read:
   22         921.0026 Mitigating circumstances.—Except as otherwise
   23  provided in this section, this section applies to any felony
   24  offense, except any capital felony, committed on or after
   25  October 1, 1998.
   26         (1) A downward departure from the lowest permissible
   27  sentence, as calculated according to the total sentence points
   28  pursuant to s. 921.0024, is prohibited unless there are
   29  circumstances or factors that reasonably justify the downward
   30  departure. Mitigating factors to be considered include, but are
   31  not limited to, those listed in subsection (2). The imposition
   32  of a sentence below the lowest permissible sentence is subject
   33  to appellate review under chapter 924, but the extent of
   34  downward departure is not subject to appellate review.
   35         (2) Mitigating circumstances under which a departure from
   36  the lowest permissible sentence is reasonably justified include,
   37  but are not limited to:
   38         (a) The departure results from a legitimate, uncoerced plea
   39  bargain.
   40         (b) The defendant was an accomplice to the offense and was
   41  a relatively minor participant in the criminal conduct.
   42         (c) The capacity of the defendant to appreciate the
   43  criminal nature of the conduct or to conform that conduct to the
   44  requirements of law was substantially impaired.
   45         (d) For an offense committed on or after October 1, 1998,
   46  but before July 1, 2019, the defendant requires specialized
   47  treatment for a mental disorder that is unrelated to substance
   48  abuse or addiction or for a physical disability, and the
   49  defendant is amenable to treatment.
   50         (e) For an offense committed on or after July 1, 2019, the
   51  defendant requires specialized treatment for a mental disorder,
   52  a substance addiction that predates the date of the offense, or
   53  a physical disability, and the defendant is amenable to
   54  treatment.
   55         (f)(e) The need for payment of restitution to the victim
   56  outweighs the need for a prison sentence.
   57         (g)(f) The victim was an initiator, willing participant,
   58  aggressor, or provoker of the incident.
   59         (h)(g) The defendant acted under extreme duress or under
   60  the domination of another person.
   61         (i)(h) Before the identity of the defendant was determined,
   62  the victim was substantially compensated.
   63         (j)(i) The defendant cooperated with the state to resolve
   64  the current offense or any other offense.
   65         (k)(j) The offense was committed in an unsophisticated
   66  manner and was an isolated incident for which the defendant has
   67  shown remorse.
   68         (l)(k) At the time of the offense the defendant was too
   69  young to appreciate the consequences of the offense.
   70         (m)(l) The defendant is to be sentenced as a youthful
   71  offender.
   72         (n)(m)For an offense committed on or after October 1,
   73  1998, but before July 1, 2019, the defendant’s offense is a
   74  nonviolent felony, the defendant’s Criminal Punishment Code
   75  scoresheet total sentence points under s. 921.0024 are 60 points
   76  or fewer, and the court determines that the defendant is
   77  amenable to the services of a postadjudicatory treatment-based
   78  drug court program and is otherwise qualified to participate in
   79  the program as part of the sentence. Except as provided in this
   80  paragraph, the defendant’s substance abuse or addiction,
   81  including intoxication at the time of the offense, is not a
   82  mitigating factor for an offense committed on or after October
   83  1, 1998, but before July 1, 2019, and does not, under any
   84  circumstance, justify a downward departure from the permissible
   85  sentencing range. For purposes of this paragraph, the term
   86  “nonviolent felony” has the same meaning as provided in s.
   87  948.08(6).
   88         (o)(n) The defendant was making a good faith effort to
   89  obtain or provide medical assistance for an individual
   90  experiencing a drug-related overdose.
   91         (3) Except as provided in paragraph (2)(m), the defendant’s
   92  substance abuse or addiction, including intoxication at the time
   93  of the offense, is not a mitigating factor under subsection (2)
   94  and does not, under any circumstances, justify a downward
   95  departure from the permissible sentencing range.
   96         Section 2. For the purpose of incorporating the amendment
   97  made by this act to section 921.0026, Florida Statutes, in
   98  references thereto, paragraph (c) of subsection (1) of section
   99  775.08435, Florida Statutes, is reenacted to read:
  100         775.08435 Prohibition on withholding adjudication in felony
  101  cases.—
  102         (1) Notwithstanding the provisions of s. 948.01, the court
  103  may not withhold adjudication of guilt upon the defendant for:
  104         (c) A third degree felony that is a crime of domestic
  105  violence as defined in s. 741.28, unless:
  106         1. The state attorney requests in writing that adjudication
  107  be withheld; or
  108         2. The court makes written findings that the withholding of
  109  adjudication is reasonably justified based on circumstances or
  110  factors in accordance with s. 921.0026.
  111         Section 3. For the purpose of incorporating the amendment
  112  made by this act to section 921.0026, Florida Statutes, in a
  113  reference thereto, subsection (3) of section 921.002, Florida
  114  Statutes, is reenacted to read:
  115         921.002 The Criminal Punishment Code.—The Criminal
  116  Punishment Code shall apply to all felony offenses, except
  117  capital felonies, committed on or after October 1, 1998.
  118         (3) A court may impose a departure below the lowest
  119  permissible sentence based upon circumstances or factors that
  120  reasonably justify the mitigation of the sentence in accordance
  121  with s. 921.0026. The level of proof necessary to establish
  122  facts supporting the mitigation of a sentence is a preponderance
  123  of the evidence. When multiple reasons exist to support the
  124  mitigation, the mitigation shall be upheld when at least one
  125  circumstance or factor justifies the mitigation regardless of
  126  the presence of other circumstances or factors found not to
  127  justify mitigation. Any sentence imposed below the lowest
  128  permissible sentence must be explained in writing by the trial
  129  court judge.
  130         Section 4. For the purpose of incorporating the amendment
  131  made by this act to section 921.0026, Florida Statutes, in a
  132  reference thereto, subsection (1) of section 921.00265, Florida
  133  Statutes, is reenacted to read:
  134         921.00265 Recommended sentences; departure sentences;
  135  mandatory minimum sentences.—This section applies to any felony
  136  offense, except any capital felony, committed on or after
  137  October 1, 1998.
  138         (1) The lowest permissible sentence provided by
  139  calculations from the total sentence points pursuant to s.
  140  921.0024(2) is assumed to be the lowest appropriate sentence for
  141  the offender being sentenced. A departure sentence is prohibited
  142  unless there are mitigating circumstances or factors present as
  143  provided in s. 921.0026 which reasonably justify a departure.
  144         Section 5. This act shall take effect July 1, 2019.