Bill Text: FL S1200 | 2017 | Regular Session | Introduced


Bill Title: Criminal Sentencing

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2017-05-05 - Died in Criminal Justice [S1200 Detail]

Download: Florida-2017-S1200-Introduced.html
       Florida Senate - 2017                                    SB 1200
       
       
        
       By Senator Bracy
       
       
       
       
       
       11-00738-17                                           20171200__
    1                        A bill to be entitled                      
    2         An act relating to criminal sentencing; amending s.
    3         921.002, F.S.; providing that the sentencing
    4         guidelines of the Criminal Punishment Code are
    5         recommendations for sentencing and are not mandatory;
    6         revising provisions concerning departures from
    7         recommended sentences; amending ss. 921.0024,
    8         921.0026, and 921.00265, F.S.; conforming provisions
    9         to changes made by the act; providing an effective
   10         date.
   11          
   12  Be It Enacted by the Legislature of the State of Florida:
   13  
   14         Section 1. Section 921.002, Florida Statutes, is amended to
   15  read:
   16         921.002 The Criminal Punishment Code.—The Criminal
   17  Punishment Code shall apply to all felony offenses, except
   18  capital felonies, committed on or after October 1, 1998.
   19         (1) The provision of criminal penalties and of limitations
   20  upon the application of such penalties is a matter of
   21  predominantly substantive law and, as such, is a matter properly
   22  addressed by the Legislature. The Legislature, in the exercise
   23  of its authority and responsibility to establish sentencing
   24  criteria, to provide for the imposition of criminal penalties,
   25  and to make the best use of state prisons so that violent
   26  criminal offenders are appropriately incarcerated, has
   27  determined that it is in the best interest of the state to
   28  develop, implement, and revise a sentencing policy of
   29  recommended sentences. The Criminal Punishment Code embodies the
   30  principles that:
   31         (a) Sentencing is neutral with respect to race, gender, and
   32  social and economic status.
   33         (b) The primary purpose of sentencing is to punish the
   34  offender. Rehabilitation is a desired goal of the criminal
   35  justice system but is subordinate to the goal of punishment.
   36         (c) The penalty imposed is commensurate with the severity
   37  of the primary offense and the circumstances surrounding the
   38  primary offense.
   39         (d) The severity of the sentence increases with the length
   40  and nature of the offender’s prior record.
   41         (e) The sentence imposed by the sentencing judge reflects
   42  the length of actual time to be served, shortened only by the
   43  application of incentive and meritorious gain-time as provided
   44  by law, and may not be shortened if the defendant would
   45  consequently serve less than 85 percent of his or her term of
   46  imprisonment as provided in s. 944.275(4)(b)3. The provisions of
   47  chapter 947, relating to parole, shall not apply to persons
   48  sentenced under the Criminal Punishment Code.
   49         (f) Departures below the lowest permissible sentence
   50  recommended established by the code must be articulated in
   51  writing by the trial court judge and made only when
   52  circumstances or factors reasonably justify the mitigation of
   53  the sentence due to a mitigating circumstance of a kind, or to a
   54  degree, not adequately taken into consideration in the
   55  formulation of the code. The level of proof necessary to
   56  establish facts that support a departure from the lowest
   57  recommended permissible sentence is a preponderance of the
   58  evidence.
   59         (g) The trial court judge may impose a sentence above the
   60  highest sentence recommended by the code when circumstances or
   61  factors reasonably justify the aggravation of the sentence due
   62  to an aggravating circumstance of a kind, or to a degree, not
   63  adequately taken into consideration in the formulation of the
   64  code impose a sentence up to and including the statutory maximum
   65  for any offense, including an offense that is before the court
   66  due to a violation of probation or community control.
   67         (h) A sentence may be appealed on the basis that it departs
   68  from the Criminal Punishment Code only if the sentence is below
   69  the lowest recommended permissible sentence or as enumerated in
   70  s. 924.06(1).
   71         (i) Use of incarcerative sanctions is prioritized toward
   72  offenders convicted of serious offenses and certain offenders
   73  who have long prior records, in order to maximize the finite
   74  capacities of state and local correctional facilities.
   75         (2) When a defendant is before the court for sentencing for
   76  more than one felony and the felonies were committed under more
   77  than one version or revision of the former sentencing guidelines
   78  or the code, each felony shall be sentenced under the guidelines
   79  or the code in effect at the time the particular felony was
   80  committed. This subsection does not apply to sentencing for any
   81  capital felony.
   82         (3) A court may impose a departure below the lowest
   83  recommended permissible sentence based upon circumstances or
   84  factors that reasonably justify the mitigation of the sentence
   85  in accordance with s. 921.0026. The level of proof necessary to
   86  establish facts supporting the mitigation of a sentence is a
   87  preponderance of the evidence. When multiple reasons exist to
   88  support the mitigation, the mitigation shall be upheld when at
   89  least one circumstance or factor justifies the mitigation
   90  regardless of the presence of other circumstances or factors
   91  found not to justify mitigation. Any sentence imposed below the
   92  lowest recommended permissible sentence must be explained in
   93  writing by the trial court judge.
   94         (4)(a) The Department of Corrections shall report on trends
   95  in sentencing practices and sentencing score thresholds and
   96  provide an analysis on the sentencing factors considered by the
   97  courts and shall submit this information to the Legislature by
   98  October 1 of each year.
   99         (b) The Criminal Justice Estimating Conference, with the
  100  assistance of the Department of Corrections, shall estimate the
  101  impact of any proposed change to the Criminal Punishment Code on
  102  future rates of incarceration and on the prison population. The
  103  Criminal Justice Estimating Conference shall base its
  104  projections on historical data concerning sentencing practices
  105  which have been accumulated by the Department of Corrections and
  106  other relevant data from other state agencies and records of the
  107  Department of Corrections which disclose the average time served
  108  for offenses covered by any proposed changes to the Criminal
  109  Punishment Code.
  110         (c) In order to produce projects that are either required
  111  by law or requested by the Legislature to assist the Legislature
  112  in making modifications to the Criminal Punishment Code, the
  113  Department of Corrections is authorized to collect and evaluate
  114  Criminal Punishment Code scoresheets from each of the judicial
  115  circuits after sentencing. Beginning in 1999, By October 1 of
  116  each year, the Department of Corrections shall provide an annual
  117  report to the Legislature that shows the rate of compliance of
  118  each judicial circuit in providing scoresheets to the
  119  department.
  120         Section 2. Paragraph (b) of subsection (1) and subsections
  121  (2), (3), and (4) of section 921.0024, Florida Statutes, are
  122  amended to read:
  123         921.0024 Criminal Punishment Code; worksheet computations;
  124  scoresheets.—
  125         (1)
  126         (b) WORKSHEET KEY:
  127  Legal status points are assessed when any form of legal status
  128  existed at the time the offender committed an offense before the
  129  court for sentencing. Four (4) sentence points are assessed for
  130  an offender’s legal status.
  131  Community sanction violation points are assessed when a
  132  community sanction violation is before the court for sentencing.
  133  Six (6) sentence points are assessed for each community sanction
  134  violation and each successive community sanction violation,
  135  unless any of the following apply:
  136         1. If the community sanction violation includes a new
  137  felony conviction before the sentencing court, twelve (12)
  138  community sanction violation points are assessed for the
  139  violation, and for each successive community sanction violation
  140  involving a new felony conviction.
  141         2. If the community sanction violation is committed by a
  142  violent felony offender of special concern as defined in s.
  143  948.06:
  144         a. Twelve (12) community sanction violation points are
  145  assessed for the violation and for each successive violation of
  146  felony probation or community control where:
  147         I. The violation does not include a new felony conviction;
  148  and
  149         II. The community sanction violation is not based solely on
  150  the probationer or offender’s failure to pay costs or fines or
  151  make restitution payments.
  152         b. Twenty-four (24) community sanction violation points are
  153  assessed for the violation and for each successive violation of
  154  felony probation or community control where the violation
  155  includes a new felony conviction.
  156  
  157  Multiple counts of community sanction violations before the
  158  sentencing court shall not be a basis for multiplying the
  159  assessment of community sanction violation points.
  160  
  161  Prior serious felony points: If the offender has a primary
  162  offense or any additional offense ranked in level 8, level 9, or
  163  level 10, and one or more prior serious felonies, a single
  164  assessment of thirty (30) points shall be added. For purposes of
  165  this section, a prior serious felony is an offense in the
  166  offender’s prior record that is ranked in level 8, level 9, or
  167  level 10 under s. 921.0022 or s. 921.0023 and for which the
  168  offender is serving a sentence of confinement, supervision, or
  169  other sanction or for which the offender’s date of release from
  170  confinement, supervision, or other sanction, whichever is later,
  171  is within 3 years before the date the primary offense or any
  172  additional offense was committed.
  173  
  174  Prior capital felony points: If the offender has one or more
  175  prior capital felonies in the offender’s criminal record, points
  176  shall be added to the subtotal sentence points of the offender
  177  equal to twice the number of points the offender receives for
  178  the primary offense and any additional offense. A prior capital
  179  felony in the offender’s criminal record is a previous capital
  180  felony offense for which the offender has entered a plea of nolo
  181  contendere or guilty or has been found guilty; or a felony in
  182  another jurisdiction which is a capital felony in that
  183  jurisdiction, or would be a capital felony if the offense were
  184  committed in this state.
  185  
  186  Possession of a firearm, semiautomatic firearm, or machine gun:
  187  If the offender is convicted of committing or attempting to
  188  commit any felony other than those enumerated in s. 775.087(2)
  189  while having in his or her possession: a firearm as defined in
  190  s. 790.001(6), an additional eighteen (18) sentence points are
  191  assessed; or if the offender is convicted of committing or
  192  attempting to commit any felony other than those enumerated in
  193  s. 775.087(3) while having in his or her possession a
  194  semiautomatic firearm as defined in s. 775.087(3) or a machine
  195  gun as defined in s. 790.001(9), an additional twenty-five (25)
  196  sentence points are assessed.
  197  
  198  Sentencing multipliers:
  199  
  200  Drug trafficking: If the primary offense is drug trafficking
  201  under s. 893.135, the subtotal sentence points are multiplied,
  202  at the discretion of the court, for a level 7 or level 8
  203  offense, by 1.5. The state attorney may move the sentencing
  204  court to reduce or suspend the sentence of a person convicted of
  205  a level 7 or level 8 offense, if the offender provides
  206  substantial assistance as described in s. 893.135(4).
  207  
  208  Law enforcement protection: If the primary offense is a
  209  violation of the Law Enforcement Protection Act under s.
  210  775.0823(2), (3), or (4), the subtotal sentence points are
  211  multiplied by 2.5. If the primary offense is a violation of s.
  212  775.0823(5), (6), (7), (8), or (9), the subtotal sentence points
  213  are multiplied by 2.0. If the primary offense is a violation of
  214  s. 784.07(3) or s. 775.0875(1), or of the Law Enforcement
  215  Protection Act under s. 775.0823(10) or (11), the subtotal
  216  sentence points are multiplied by 1.5.
  217  
  218  Grand theft of a motor vehicle: If the primary offense is grand
  219  theft of the third degree involving a motor vehicle and in the
  220  offender’s prior record, there are three or more grand thefts of
  221  the third degree involving a motor vehicle, the subtotal
  222  sentence points are multiplied by 1.5.
  223  
  224  Offense related to a criminal gang: If the offender is convicted
  225  of the primary offense and committed that offense for the
  226  purpose of benefiting, promoting, or furthering the interests of
  227  a criminal gang as defined in s. 874.03, the subtotal sentence
  228  points are multiplied by 1.5. If applying the multiplier results
  229  in the lowest recommended permissible sentence exceeding the
  230  statutory maximum sentence for the primary offense under chapter
  231  775, the court may not apply the multiplier and must sentence
  232  the defendant to the statutory maximum sentence.
  233  
  234  Domestic violence in the presence of a child: If the offender is
  235  convicted of the primary offense and the primary offense is a
  236  crime of domestic violence, as defined in s. 741.28, which was
  237  committed in the presence of a child under 16 years of age who
  238  is a family or household member as defined in s. 741.28(3) with
  239  the victim or perpetrator, the subtotal sentence points are
  240  multiplied by 1.5.
  241  
  242  Adult-on-minor sex offense: If the offender was 18 years of age
  243  or older and the victim was younger than 18 years of age at the
  244  time the offender committed the primary offense, and if the
  245  primary offense was an offense committed on or after October 1,
  246  2014, and is a violation of s. 787.01(2) or s. 787.02(2), if the
  247  violation involved a victim who was a minor and, in the course
  248  of committing that violation, the defendant committed a sexual
  249  battery under chapter 794 or a lewd act under s. 800.04 or s.
  250  847.0135(5) against the minor; s. 787.01(3)(a)2. or 3.; s.
  251  787.02(3)(a)2. or 3.; s. 794.011, excluding s. 794.011(10); s.
  252  800.04; or s. 847.0135(5), the subtotal sentence points are
  253  multiplied by 2.0. If applying the multiplier results in the
  254  lowest recommended permissible sentence exceeding the statutory
  255  maximum sentence for the primary offense under chapter 775, the
  256  court may not apply the multiplier and must sentence the
  257  defendant to the statutory maximum sentence.
  258         (2) The lowest recommended permissible sentence is the
  259  recommended minimum sentence that should may be imposed by the
  260  trial court, absent a valid reason for departure. The lowest
  261  recommended permissible sentence is any nonstate prison sanction
  262  in which the total sentence points equals or is less than 44
  263  points, unless the court determines within its discretion that a
  264  prison sentence, which may be up to the statutory maximums for
  265  the offenses committed, is appropriate. When the total sentence
  266  points exceeds 44 points, the lowest recommended permissible
  267  sentence in prison months shall be calculated by subtracting 28
  268  points from the total sentence points and decreasing the
  269  remaining total by 25 percent. The total sentence points shall
  270  be calculated only as a means of determining the lowest
  271  recommended permissible sentence. The recommended permissible
  272  range for sentencing shall be the lowest recommended permissible
  273  sentence up to and including the statutory maximum, as defined
  274  in s. 775.082, for the primary offense and any additional
  275  offenses before the court for sentencing. The sentencing court
  276  may impose such sentences concurrently or consecutively.
  277  However, any sentence to state prison must exceed 1 year. If the
  278  lowest recommended permissible sentence under the code exceeds
  279  the statutory maximum sentence as provided in s. 775.082, no
  280  more than the statutory maximum sentence may required by the
  281  code must be imposed. If the total sentence points are greater
  282  than or equal to 363, the court may sentence the offender to
  283  life imprisonment. An offender sentenced to life imprisonment
  284  under this section is not eligible for any form of discretionary
  285  early release, except executive clemency or conditional medical
  286  release under s. 947.149.
  287         (3) A single scoresheet shall be prepared for each
  288  defendant to determine the recommended permissible range for the
  289  sentence that the court may impose, except that if the defendant
  290  is before the court for sentencing for more than one felony and
  291  the felonies were committed under more than one version or
  292  revision of the guidelines or the code, separate scoresheets
  293  must be prepared. The scoresheet or scoresheets must cover all
  294  the defendant’s offenses pending before the court for
  295  sentencing. The state attorney shall prepare the scoresheet or
  296  scoresheets, which must be presented to the defense counsel for
  297  review for accuracy in all cases unless the judge directs
  298  otherwise. The defendant’s scoresheet or scoresheets must be
  299  approved and signed by the sentencing judge.
  300         (4) The Department of Corrections, in consultation with the
  301  Office of the State Courts Administrator, state attorneys, and
  302  public defenders, must develop and submit the revised Criminal
  303  Punishment Code scoresheet to the Supreme Court for approval by
  304  June 15 of each year, as necessary. Upon the Supreme Court’s
  305  approval of the revised scoresheet, the Department of
  306  Corrections shall produce and provide sufficient copies of the
  307  revised scoresheets by September 30 of each year, as necessary.
  308  Scoresheets must include item entries for the scoresheet
  309  preparer’s use in indicating whether any prison sentence imposed
  310  includes a mandatory minimum sentence or the sentence imposed
  311  was a downward departure from the lowest recommended permissible
  312  sentence under the Criminal Punishment Code.
  313         Section 3. Section 921.0026, Florida Statutes, is amended
  314  to read:
  315         921.0026 Mitigating circumstances.—This section applies to
  316  any felony offense, except any capital felony, committed on or
  317  after October 1, 1998.
  318         (1) A downward departure from the lowest recommended
  319  permissible sentence, as calculated according to the total
  320  sentence points pursuant to s. 921.0024, is prohibited unless
  321  there are circumstances or factors that reasonably justify the
  322  downward departure. Mitigating factors to be considered include,
  323  but are not limited to, those listed in subsection (2). The
  324  imposition of a sentence below the lowest recommended
  325  permissible sentence is subject to appellate review under
  326  chapter 924, but the extent of downward departure is not subject
  327  to appellate review.
  328         (2) Mitigating circumstances under which a departure from
  329  the lowest recommended permissible sentence is reasonably
  330  justified include, but are not limited to:
  331         (a) The departure results from a legitimate, uncoerced plea
  332  bargain.
  333         (b) The defendant was an accomplice to the offense and was
  334  a relatively minor participant in the criminal conduct.
  335         (c) The capacity of the defendant to appreciate the
  336  criminal nature of the conduct or to conform that conduct to the
  337  requirements of law was substantially impaired.
  338         (d) The defendant requires specialized treatment for a
  339  mental disorder that is unrelated to substance abuse or
  340  addiction or for a physical disability, and the defendant is
  341  amenable to treatment.
  342         (e) The need for payment of restitution to the victim
  343  outweighs the need for a prison sentence.
  344         (f) The victim was an initiator, willing participant,
  345  aggressor, or provoker of the incident.
  346         (g) The defendant acted under extreme duress or under the
  347  domination of another person.
  348         (h) Before the identity of the defendant was determined,
  349  the victim was substantially compensated.
  350         (i) The defendant cooperated with the state to resolve the
  351  current offense or any other offense.
  352         (j) The offense was committed in an unsophisticated manner
  353  and was an isolated incident for which the defendant has shown
  354  remorse.
  355         (k) At the time of the offense the defendant was too young
  356  to appreciate the consequences of the offense.
  357         (l) The defendant is to be sentenced as a youthful
  358  offender.
  359         (m) The defendant’s offense is a nonviolent felony, the
  360  defendant’s Criminal Punishment Code scoresheet total sentence
  361  points under s. 921.0024 are 60 points or fewer, and the court
  362  determines that the defendant is amenable to the services of a
  363  postadjudicatory treatment-based drug court program and is
  364  otherwise qualified to participate in the program as part of the
  365  sentence. For purposes of this paragraph, the term “nonviolent
  366  felony” has the same meaning as provided in s. 948.08(6).
  367         (n) The defendant was making a good faith effort to obtain
  368  or provide medical assistance for an individual experiencing a
  369  drug-related overdose.
  370         (3) Except as provided in paragraph (2)(m), the defendant’s
  371  substance abuse or addiction, including intoxication at the time
  372  of the offense, is not a mitigating factor under subsection (2)
  373  and does not, under any circumstances, justify a downward
  374  departure from the recommended permissible sentencing range.
  375         Section 4. Section 921.00265, Florida Statutes, is amended
  376  to read:
  377         921.00265 Recommended sentences; departure sentences;
  378  mandatory minimum sentences.—This section applies to any felony
  379  offense, except any capital felony, committed on or after
  380  October 1, 1998.
  381         (1) The lowest recommended permissible sentence provided by
  382  calculations from the total sentence points pursuant to s.
  383  921.0024(2) is assumed to be the lowest appropriate sentence for
  384  the offender being sentenced. A departure sentence is
  385  discouraged prohibited unless there are mitigating circumstances
  386  or factors present as provided in s. 921.0026 which reasonably
  387  justify a departure.
  388         (2) A sentence that decreases an offender’s sentence below
  389  the lowest recommended permissible sentence is a departure
  390  sentence and must be accompanied by a written statement by the
  391  sentencing court delineating the reasons for the departure,
  392  filed within 7 days after the date of sentencing. A written
  393  transcription of reasons stated orally at sentencing for
  394  departure from the lowest recommended permissible sentence is
  395  permissible if it is filed by the court within 7 days after the
  396  date of sentencing.
  397         (3) Any offender who is sentenced to a departure sentence
  398  or any offender who is subject to a minimum mandatory sentence
  399  must have the departure sentence and any minimum mandatory
  400  sentence so noted on the sentencing scoresheet.
  401         Section 5. This act shall take effect July 1, 2017.

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