Florida Senate - 2023 CS for SB 1478
By the Committee on Criminal Justice; and Senator Simon
591-03475-23 20231478c1
1 A bill to be entitled
2 An act relating to criminal sentencing; amending s.
3 921.0024, F.S.; prohibiting points from being assessed
4 for violations of community sanctions which are
5 resolved under an alternative sanctioning program for
6 purposes of calculations under the Criminal Punishment
7 Code; amending s. 948.06, F.S.; providing for the
8 resolution of low-risk violations of probation through
9 an alternative sanctioning program in certain
10 circumstances; revising the definition of the term
11 “technical violation”; correcting provisions
12 concerning limiting prison sentences for first-time
13 revocations for technical violations; providing for
14 structured sentences when technical violations result
15 in prison terms in certain circumstances; providing
16 time periods for hearing and release of a probationer
17 or offender concerning alleged violations that are
18 low-risk violations; revising the definition of the
19 term “moderate-risk violation”; providing that an
20 alternative sanction is the required method for
21 resolving certain low-risk violations; requiring the
22 state attorney to consent to the offering of an
23 alternative sanction under certain circumstances;
24 requiring a court to impose the recommended sanction
25 for certain low-risk violations; providing an
26 exception; providing an effective date.
27
28 Be It Enacted by the Legislature of the State of Florida:
29
30 Section 1. Paragraph (b) of subsection (1) of section
31 921.0024, Florida Statutes, is amended to read:
32 921.0024 Criminal Punishment Code; worksheet computations;
33 scoresheets.—
34 (1)
35 (b) WORKSHEET KEY:
36
37 Legal status points are assessed when any form of legal status
38 existed at the time the offender committed an offense before the
39 court for sentencing. Four (4) sentence points are assessed for
40 an offender’s legal status.
41
42 Community sanction violation points are assessed when a
43 community sanction violation is before the court for sentencing.
44 Six (6) sentence points are assessed for each community sanction
45 violation and each successive community sanction violation,
46 unless any of the following apply:
47 1. If the community sanction violation includes a new
48 felony conviction before the sentencing court, twelve (12)
49 community sanction violation points are assessed for the
50 violation, and for each successive community sanction violation
51 involving a new felony conviction.
52 2. If the community sanction violation is committed by a
53 violent felony offender of special concern as defined in s.
54 948.06:
55 a. Twelve (12) community sanction violation points are
56 assessed for the violation and for each successive violation of
57 felony probation or community control where:
58 I. The violation does not include a new felony conviction;
59 and
60 II. The community sanction violation is not based solely on
61 the probationer or offender’s failure to pay costs or fines or
62 make restitution payments.
63 b. Twenty-four (24) community sanction violation points are
64 assessed for the violation and for each successive violation of
65 felony probation or community control where the violation
66 includes a new felony conviction.
67
68 Multiple counts of community sanction violations before the
69 sentencing court shall not be a basis for multiplying the
70 assessment of community sanction violation points.
71
72 If the community sanction violation is resolved through the
73 alternative sanctioning program under s. 948.06(9), no points
74 are assessed. If a community sanction violation not resolved
75 through the alternative sanctioning program is before the court,
76 no points are assessed for prior violations that were resolved
77 through the alternative sanctioning program.
78
79 Prior serious felony points: If the offender has a primary
80 offense or any additional offense ranked in level 8, level 9, or
81 level 10, and one or more prior serious felonies, a single
82 assessment of thirty (30) points shall be added. For purposes of
83 this section, a prior serious felony is an offense in the
84 offender’s prior record that is ranked in level 8, level 9, or
85 level 10 under s. 921.0022 or s. 921.0023 and for which the
86 offender is serving a sentence of confinement, supervision, or
87 other sanction or for which the offender’s date of release from
88 confinement, supervision, or other sanction, whichever is later,
89 is within 3 years before the date the primary offense or any
90 additional offense was committed.
91
92 Prior capital felony points: If the offender has one or more
93 prior capital felonies in the offender’s criminal record, points
94 shall be added to the subtotal sentence points of the offender
95 equal to twice the number of points the offender receives for
96 the primary offense and any additional offense. A prior capital
97 felony in the offender’s criminal record is a previous capital
98 felony offense for which the offender has entered a plea of nolo
99 contendere or guilty or has been found guilty; or a felony in
100 another jurisdiction which is a capital felony in that
101 jurisdiction, or would be a capital felony if the offense were
102 committed in this state.
103
104 Possession of a firearm, semiautomatic firearm, or machine gun:
105 If the offender is convicted of committing or attempting to
106 commit any felony other than those enumerated in s. 775.087(2)
107 while having in his or her possession: a firearm as defined in
108 s. 790.001(6), an additional eighteen (18) sentence points are
109 assessed; or if the offender is convicted of committing or
110 attempting to commit any felony other than those enumerated in
111 s. 775.087(3) while having in his or her possession a
112 semiautomatic firearm as defined in s. 775.087(3) or a machine
113 gun as defined in s. 790.001(9), an additional twenty-five (25)
114 sentence points are assessed.
115
116 Sentencing multipliers:
117
118 Drug trafficking: If the primary offense is drug trafficking
119 under s. 893.135, the subtotal sentence points are multiplied,
120 at the discretion of the court, for a level 7 or level 8
121 offense, by 1.5. The state attorney may move the sentencing
122 court to reduce or suspend the sentence of a person convicted of
123 a level 7 or level 8 offense, if the offender provides
124 substantial assistance as described in s. 893.135(4).
125
126 Law enforcement protection: If the primary offense is a
127 violation of the Law Enforcement Protection Act under s.
128 775.0823(2), (3), or (4), the subtotal sentence points are
129 multiplied by 2.5. If the primary offense is a violation of s.
130 775.0823(5), (6), (7), (8), or (9), the subtotal sentence points
131 are multiplied by 2.0. If the primary offense is a violation of
132 s. 784.07(3) or s. 775.0875(1), or of the Law Enforcement
133 Protection Act under s. 775.0823(10) or (11), the subtotal
134 sentence points are multiplied by 1.5.
135
136 Grand theft of a motor vehicle: If the primary offense is grand
137 theft of the third degree involving a motor vehicle and in the
138 offender’s prior record, there are three or more grand thefts of
139 the third degree involving a motor vehicle, the subtotal
140 sentence points are multiplied by 1.5.
141
142 Offense related to a criminal gang: If the offender is convicted
143 of the primary offense and committed that offense for the
144 purpose of benefiting, promoting, or furthering the interests of
145 a criminal gang as defined in s. 874.03, the subtotal sentence
146 points are multiplied by 1.5. If applying the multiplier results
147 in the lowest permissible sentence exceeding the statutory
148 maximum sentence for the primary offense under chapter 775, the
149 court may not apply the multiplier and must sentence the
150 defendant to the statutory maximum sentence.
151
152 Domestic violence in the presence of a child: If the offender is
153 convicted of the primary offense and the primary offense is a
154 crime of domestic violence, as defined in s. 741.28, which was
155 committed in the presence of a child under 16 years of age who
156 is a family or household member as defined in s. 741.28(3) with
157 the victim or perpetrator, the subtotal sentence points are
158 multiplied by 1.5.
159
160 Adult-on-minor sex offense: If the offender was 18 years of age
161 or older and the victim was younger than 18 years of age at the
162 time the offender committed the primary offense, and if the
163 primary offense was an offense committed on or after October 1,
164 2014, and is a violation of s. 787.01(2) or s. 787.02(2), if the
165 violation involved a victim who was a minor and, in the course
166 of committing that violation, the defendant committed a sexual
167 battery under chapter 794 or a lewd act under s. 800.04 or s.
168 847.0135(5) against the minor; s. 787.01(3)(a)2. or 3.; s.
169 787.02(3)(a)2. or 3.; s. 794.011, excluding s. 794.011(10); s.
170 800.04; or s. 847.0135(5), the subtotal sentence points are
171 multiplied by 2.0. If applying the multiplier results in the
172 lowest permissible sentence exceeding the statutory maximum
173 sentence for the primary offense under chapter 775, the court
174 may not apply the multiplier and must sentence the defendant to
175 the statutory maximum sentence.
176 Section 2. Paragraph (c) of subsection (1), paragraph (f)
177 of subsection (2), subsection (4), and paragraphs (c) through
178 (f) and (i) of subsection (9) of section 948.06, Florida
179 Statutes, are amended to read:
180 948.06 Violation of probation or community control;
181 revocation; modification; continuance; failure to pay
182 restitution or cost of supervision.—
183 (1)
184 (c) If a probationer or offender on community control
185 commits a technical violation, the probation officer shall
186 determine whether the probationer or offender on community
187 control is eligible for the alternative sanctioning program
188 under subsection (9). If the probation officer determines that
189 the probationer or offender on community control is eligible,
190 the probation officer may proceed with the alternative
191 sanctioning program in lieu of filing an affidavit of violation
192 with the court. If the probationer or offender on community
193 control is eligible for the alternative sanctioning program and
194 the violation is a low-risk violation as defined in paragraph
195 (9)(b), the probation officer must proceed with the alternative
196 sanctioning program in lieu of filing an affidavit of violation
197 with the court unless directed by the court to submit or file an
198 affidavit of violation pursuant to paragraph (9)(i). For
199 purposes of this section, the term “technical violation” means
200 an alleged violation of supervision that is not a new felony
201 offense, a misdemeanor violation of chapter 784, a misdemeanor
202 crime of domestic violence as defined in s. 741.28, or a
203 misdemeanor under s. 316.193, s. 741.29, s. 741.31, s. 784.046,
204 s. 784.047, s. 784.048, s. 784.0487, s. 784.049, or s. 787.025
205 misdemeanor offense, or criminal traffic offense other than a
206 misdemeanor violation of s. 322.34.
207 (2)
208 (f)1. Except as provided in subparagraph 4. 3. or upon
209 waiver by the probationer, the court shall modify or continue a
210 probationary term upon finding a probationer in violation when
211 all of the following apply:
212 a. The term of supervision is probation.
213 b. The probationer does not qualify as a violent felony
214 offender of special concern, as defined in paragraph (8)(b).
215 c. The violation is a low-risk technical violation, as
216 defined in paragraph (9)(b).
217 d. The court has not, on two or more separate occasions,
218 previously found the probationer in violation of his or her
219 probation pursuant to a filed violation of probation affidavit
220 during the current term of supervision. A probationer who has
221 successfully completed sanctions through the alternative
222 sanctioning program is eligible for mandatory modification or
223 continuation of his or her probation.
224 2. Upon modifying probation under subparagraph 1., the
225 court may include in the sentence a maximum of 90 days in county
226 jail as a special condition of probation. If the court has
227 previously found the probationer in violation of his or her
228 probation and modified probation with up to 90 days in county
229 jail as a special condition of probation, it may, upon
230 modification of probation under subparagraph 1., include in the
231 sentence a maximum of 120 days in county jail as a special
232 condition of probation.
233 3.2. Upon modifying probation under subparagraph 1., the
234 court may include in the sentence a maximum of 90 days in county
235 jail as a special condition of probation.
236 4.3. Notwithstanding s. 921.0024, if a probationer meets
237 the criteria for mandatory modification in subparagraph 1. but
238 has less time under supervision remaining than the number of
239 days in jail authorized in subparagraph 2. than 90 days of
240 supervision remaining on his or her term of probation and meets
241 the criteria for mandatory modification or continuation in
242 subparagraph 1., the court may revoke probation and sentence the
243 probationer to a maximum of 90 or 120 days in county jail as
244 provided in subparagraph 2.
245 5.4. For purposes of imposing a jail sentence under this
246 paragraph only, the court may grant credit only for time served
247 in the county jail since the probationer’s most recent arrest
248 for the violation. However, the court may not order the
249 probationer to a total term of incarceration greater than the
250 maximum provided by s. 775.082.
251 (4) Notwithstanding any other provision of this section, a
252 felony probationer or an offender in community control who is
253 arrested for violating his or her probation or community control
254 in a material respect may be taken before the court in the
255 county or circuit in which the probationer or offender was
256 arrested. That court shall advise him or her of the charge of a
257 violation and, if such charge is admitted, shall cause him or
258 her to be brought before the court that granted the probation or
259 community control. If the violation is not admitted by the
260 probationer or offender, the court may commit him or her or
261 release him or her with or without bail to await further
262 hearing. However, if the probationer or offender is under
263 supervision for any criminal offense proscribed in chapter 794,
264 s. 800.04(4), (5), (6), s. 827.071, or s. 847.0145, or is a
265 registered sexual predator or a registered sexual offender, or
266 is under supervision for a criminal offense for which he or she
267 would meet the registration criteria in s. 775.21, s. 943.0435,
268 or s. 944.607 but for the effective date of those sections, the
269 court must make a finding that the probationer or offender is
270 not a danger to the public prior to release with or without
271 bail. In determining the danger posed by the offender’s or
272 probationer’s release, the court may consider the nature and
273 circumstances of the violation and any new offenses charged; the
274 offender’s or probationer’s past and present conduct, including
275 convictions of crimes; any record of arrests without conviction
276 for crimes involving violence or sexual crimes; any other
277 evidence of allegations of unlawful sexual conduct or the use of
278 violence by the offender or probationer; the offender’s or
279 probationer’s family ties, length of residence in the community,
280 employment history, and mental condition; his or her history and
281 conduct during the probation or community control supervision
282 from which the violation arises and any other previous
283 supervisions, including disciplinary records of previous
284 incarcerations; the likelihood that the offender or probationer
285 will engage again in a criminal course of conduct; the weight of
286 the evidence against the offender or probationer; and any other
287 facts the court considers relevant. The court, as soon as is
288 practicable, shall give the probationer or offender an
289 opportunity to be fully heard on his or her behalf in person or
290 by counsel. If the alleged violation is a low-risk violation as
291 defined in paragraph (9)(b), the court must, within 20 days
292 after arrest, give the probationer or offender an opportunity to
293 be fully heard on his or her behalf in person or by counsel. If
294 no hearing is held within 20 days after arrest, the court must
295 release the probationer or offender without bail. The court may
296 impose nonmonetary conditions of release. After the hearing, the
297 court shall make findings of fact and forward the findings to
298 the court that granted the probation or community control and to
299 the probationer or offender or his or her attorney. The findings
300 of fact by the hearing court are binding on the court that
301 granted the probation or community control. Upon the probationer
302 or offender being brought before it, the court that granted the
303 probation or community control may revoke, modify, or continue
304 the probation or community control or may place the probationer
305 into community control as provided in this section. However, the
306 probationer or offender shall not be released and shall not be
307 admitted to bail, but shall be brought before the court that
308 granted the probation or community control if any violation of
309 felony probation or community control other than a failure to
310 pay costs or fines or make restitution payments is alleged to
311 have been committed by:
312 (a) A violent felony offender of special concern, as
313 defined in this section;
314 (b) A person who is on felony probation or community
315 control for any offense committed on or after the effective date
316 of this act and who is arrested for a qualifying offense as
317 defined in this section; or
318 (c) A person who is on felony probation or community
319 control and has previously been found by a court to be a
320 habitual violent felony offender as defined in s. 775.084(1)(b),
321 a three-time violent felony offender as defined in s.
322 775.084(1)(c), or a sexual predator under s. 775.21, and who is
323 arrested for committing a qualifying offense as defined in this
324 section on or after the effective date of this act.
325 (9)
326 (c) As used in this subsection, the term “moderate-risk
327 violation” means any of the following:
328 1. A violation identified in paragraph (b), when committed
329 by an offender on community control.
330 2. Failure to remain at an approved residence by an
331 offender on community control.
332 3. A third violation identified in paragraph (b) by a
333 probationer within the current term of supervision.
334 4. A new misdemeanor offense that is not a misdemeanor
335 violation of chapter 784, a misdemeanor crime of domestic
336 violence as defined in s. 741.28, or a misdemeanor under s.
337 316.193, s. 741.29, s. 741.31, s. 784.046, s. 784.047, s.
338 784.048, s. 784.0487, s. 784.049, or s. 787.025.
339 5.4. Any other violation as determined by administrative
340 order of the chief judge of the circuit.
341 (d) A probationer or offender on community control is not
342 eligible for an alternative sanction if:
343 1. He or she is a violent felony offender of special
344 concern as defined in paragraph (8)(b);
345 2. The violation is a felony, a misdemeanor violation of
346 chapter 784, a misdemeanor crime of domestic violence as defined
347 in s. 741.28, or a misdemeanor under s. 316.193, s. 741.29, s.
348 741.31, s. 784.046, s. 784.047, s. 784.048, s. 784.0487, s.
349 784.049, or s. 787.025 misdemeanor, or criminal traffic offense
350 other than a misdemeanor violation of s. 322.34;
351 3. The violation is absconding;
352 4. The violation is of a stay-away order or no-contact
353 order;
354 5. The violation is not identified as low-risk or moderate
355 risk under this subsection or by administrative order;
356 6. He or she has a prior moderate-risk level violation
357 during the current term of supervision;
358 7. He or she has three prior low-risk level violations
359 during the same term of supervision;
360 8. The term of supervision is scheduled to terminate in
361 less than 90 days; or
362 9. The terms of the sentence prohibit alternative
363 sanctioning.
364 (e) For a first or second low-risk violation, as defined in
365 paragraph (b), within the current term of supervision, a
366 probation officer shall may offer an eligible probationer one or
367 more of the following as an alternative sanction:
368 1. Up to 5 days in the county jail.
369 2. Up to 50 additional community service hours.
370 3. Counseling or treatment.
371 4. Support group attendance.
372 5. Drug testing.
373 6. Loss of travel or other privileges.
374 7. Curfew for up to 30 days.
375 8. House arrest for up to 30 days.
376 9.a. Any other sanction as determined by administrative
377 order of the chief judge of the circuit.
378 b. However, in no circumstance shall participation in an
379 alternative sanctioning program convert a withheld adjudication
380 to an adjudication of guilt.
381 (f)1. For a first moderate-risk violation, as defined in
382 paragraph (c), within the current term of supervision, a
383 probation officer, with a supervisor’s approval, may offer an
384 eligible probationer or offender on community control one or
385 more of the following as an alternative sanction:
386 a.1. Up to 21 days in the county jail.
387 b.2. Curfew for up to 90 days.
388 c.3. House arrest for up to 90 days.
389 d.4. Electronic monitoring for up to 90 days.
390 e.5. Residential treatment for up to 90 days.
391 f.6. Any other sanction available for a low-risk violation.
392 g.7.a. Any other sanction as determined by administrative
393 order of the chief judge of the circuit.
394 b. However, in no circumstance shall participation in an
395 alternative sanctioning program convert a withheld adjudication
396 to an adjudication of guilt.
397 2. If the violation of subparagraph 1. is a moderate-risk
398 violation of an offense specified in subparagraph (c)4., the
399 state attorney must consent to the offer of an alternative
400 sanction.
401 (i) If the violation is a low-risk violation under
402 paragraph (b), the court must impose the recommended sanction
403 unless it records a finding of specific, identified risk to
404 public safety, in which case it may direct the department to
405 submit a violation report, affidavit, and warrant to the court.
406 In all other cases, the court may impose the recommended
407 sanction or direct the department to submit a violation report,
408 affidavit, and warrant to the court.
409 Section 3. This act shall take effect October 1, 2023.