Florida Senate - 2023                                     SB 440
       By Senator Rouson
       16-00977-23                                            2023440__
    1                        A bill to be entitled                      
    2         An act relating to sentencing of prison releasee
    3         reoffenders; amending s. 775.082, F.S.; revising the
    4         required sentencing structure for prison releasee
    5         reoffenders; providing legislative intent; applying
    6         the revised sentencing structure to certain persons
    7         under certain circumstances; providing resentencing
    8         requirements; deleting a provision that requires a
    9         state attorney to explain a sentencing deviation in
   10         writing in certain circumstances; providing an
   11         effective date.
   13  Be It Enacted by the Legislature of the State of Florida:
   15         Section 1. Subsection (9) of section 775.082, Florida
   16  Statutes, is amended to read:
   17         775.082 Penalties; applicability of sentencing structures;
   18  mandatory minimum sentences for certain reoffenders previously
   19  released from prison.—
   20         (9)(a)1. “Prison releasee reoffender” means any defendant
   21  who commits, or attempts to commit:
   22         a. Treason;
   23         b. Murder;
   24         c. Manslaughter;
   25         d. Sexual battery;
   26         e. Carjacking;
   27         f. Home-invasion robbery;
   28         g. Robbery;
   29         h. Arson;
   30         i. Kidnapping;
   31         j. Aggravated assault with a deadly weapon;
   32         k. Aggravated battery;
   33         l. Aggravated stalking;
   34         m. Aircraft piracy;
   35         n. Unlawful throwing, placing, or discharging of a
   36  destructive device or bomb;
   37         o. Any felony that involves the use or threat of physical
   38  force or violence against an individual;
   39         p. Armed burglary;
   40         q. Burglary of a dwelling or burglary of an occupied
   41  structure; or
   42         r. Any felony violation of s. 790.07, s. 800.04, s. 827.03,
   43  s. 827.071, or s. 847.0135(5);
   45  within 3 years after being released from a state correctional
   46  facility operated by the Department of Corrections or a private
   47  vendor, a county detention facility following incarceration for
   48  an offense for which the sentence pronounced was a prison
   49  sentence, or a correctional institution of another state, the
   50  District of Columbia, the United States, any possession or
   51  territory of the United States, or any foreign jurisdiction,
   52  following incarceration for an offense for which the sentence is
   53  punishable by more than 1 year in this state.
   54         2. “Prison releasee reoffender” also means any defendant
   55  who commits or attempts to commit any offense listed in sub
   56  subparagraphs (a)1.a.-r. while the defendant was serving a
   57  prison sentence or on escape status from a state correctional
   58  facility operated by the Department of Corrections or a private
   59  vendor or while the defendant was on escape status from a
   60  correctional institution of another state, the District of
   61  Columbia, the United States, any possession or territory of the
   62  United States, or any foreign jurisdiction, following
   63  incarceration for an offense for which the sentence is
   64  punishable by more than 1 year in this state.
   65         3. If the state attorney determines that a defendant is a
   66  prison releasee reoffender as defined in subparagraph 1., the
   67  state attorney may seek to have the court sentence the defendant
   68  as a prison releasee reoffender. Upon proof from the state
   69  attorney which that establishes by a preponderance of the
   70  evidence that a defendant is a prison releasee reoffender as
   71  defined in this section, such defendant is not eligible for
   72  sentencing under the sentencing guidelines and must be sentenced
   73  as follows:
   74         a. For a felony punishable by life, to by a term of
   75  imprisonment of 25 years imprisonment for life;
   76         b. For a felony of the first degree, to by a term of
   77  imprisonment of 20 30 years;
   78         c. For a felony of the second degree, to by a term of
   79  imprisonment of 10 15 years; and
   80         d. For a felony of the third degree, to by a term of
   81  imprisonment of 3 5 years.
   82         (b)A person sentenced under paragraph (a) shall be
   83  released only by expiration of sentence and shall not be
   84  eligible for parole, control release, or any form of early
   85  release. Any person sentenced under paragraph (a) must serve 100
   86  percent of the court-imposed sentence.
   87         (b)(c)Nothing in This subsection does not shall prevent a
   88  court from imposing a greater sentence of incarceration as
   89  authorized by law, pursuant to s. 775.084 or any other provision
   90  of law.
   91         (c)(d)1. It is the intent of the Legislature to
   92  retroactively apply the amendments to this subsection which are
   93  effective on July 1, 2023.
   94         2.As used in this paragraph, the term “former s.
   95  775.082(9)” means s. 775.082(9) as it existed before the
   96  amendment of this subsection, which took effect on July 1, 2023.
   97         3.A person who qualified as a prison releasee reoffender
   98  before July 1, 2023, and who was not sentenced as a prison
   99  releasee reoffender before July 1, 2023, may not be sentenced as
  100  such under former s. 775.082(9). Such person, if sentenced as a
  101  prison releasee reoffender, must be sentenced as provided in
  102  paragraph (a).
  103         4.A person who qualified as a prison releasee reoffender
  104  before July 1, 2023, who was sentenced as such before July 1,
  105  2023, to a mandatory minimum term of imprisonment pursuant to
  106  former s. 775.082(9), and who is serving such mandatory minimum
  107  term of imprisonment on or after July 1, 2023, must be
  108  resentenced in accordance with subparagraph 5. to a sentence as
  109  provided in paragraph (a) and sub-subparagraph 5.d.
  110         5.Resentencing must occur in the following manner:
  111         a.The Department of Corrections shall notify a person
  112  described in subparagraph 4. of his or her eligibility to
  113  request a sentence review hearing.
  114         b.The person seeking sentence review may submit an
  115  application to the court of original jurisdiction requesting
  116  that a sentence review hearing be held. The sentencing court
  117  retains original jurisdiction for the duration of the sentence
  118  for this purpose.
  119         c.A person who is eligible for a sentence review hearing
  120  under this paragraph is entitled to representation by legal
  121  counsel. If the person is indigent and unable to employ counsel,
  122  the court must appoint counsel under s. 27.52. Determination of
  123  indigence and costs of representation is as provided in ss.
  124  27.52 and 938.29.
  125         d.Upon receiving an application from an eligible person,
  126  the court of original jurisdiction shall hold a sentence review
  127  hearing to determine if the eligible person meets the criteria
  128  for resentencing under subparagraph 4. If the court determines
  129  at the sentence review hearing that the eligible person meets
  130  such criteria, the court must resentence the person as provided
  131  in paragraph (a); however, the new sentence may not exceed the
  132  person’s original sentence with credit for time served. If the
  133  court determines that such person does not meet the criteria for
  134  resentencing under subparagraph 4., the court must provide
  135  written reasons why such person does not meet such criteria.
  136         6.A person resentenced pursuant to this subsection is
  137  eligible to receive any gain-time pursuant to s. 944.275 which
  138  he or she was previously ineligible to receive under former s.
  139  775.082(9) It is the intent of the Legislature that offenders
  140  previously released from prison or a county detention facility
  141  following incarceration for an offense for which the sentence
  142  pronounced was a prison sentence who meet the criteria in
  143  paragraph (a) be punished to the fullest extent of the law and
  144  as provided in this subsection, unless the state attorney
  145  determines that extenuating circumstances exist which preclude
  146  the just prosecution of the offender, including whether the
  147  victim recommends that the offender not be sentenced as provided
  148  in this subsection.
  149         2.For every case in which the offender meets the criteria
  150  in paragraph (a) and does not receive the mandatory minimum
  151  prison sentence, the state attorney must explain the sentencing
  152  deviation in writing and place such explanation in the case file
  153  maintained by the state attorney.
  154         Section 2. This act shall take effect July 1, 2023.