Bill Text: FL S1478 | 2023 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Criminal Sentencing

Spectrum: Bipartisan Bill

Status: (Vetoed) 2023-06-27 - Vetoed by Governor [S1478 Detail]

Download: Florida-2023-S1478-Introduced.html

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       Florida Senate - 2023                                    SB 1478
       
       
        
       By Senator Simon
       
       
       
       
       
       3-01130-23                                            20231478__
    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         criminal traffic offenses or low-risk violations;
   19         revising the definition of the term “moderate-risk
   20         violation”; providing that an alternative sanction is
   21         the required method for resolving certain low-risk
   22         violations; requiring a court to impose the
   23         recommended sanction for certain low-risk violations;
   24         providing an exception; providing an effective date.
   25          
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   28         Section 1. Paragraph (b) of subsection (1) of section
   29  921.0024, Florida Statutes, is amended to read:
   30         921.0024 Criminal Punishment Code; worksheet computations;
   31  scoresheets.—
   32         (1)
   33         (b) WORKSHEET KEY:
   34  
   35  Legal status points are assessed when any form of legal status
   36  existed at the time the offender committed an offense before the
   37  court for sentencing. Four (4) sentence points are assessed for
   38  an offender’s legal status.
   39  
   40  Community sanction violation points are assessed when a
   41  community sanction violation is before the court for sentencing.
   42  Six (6) sentence points are assessed for each community sanction
   43  violation and each successive community sanction violation,
   44  unless any of the following apply:
   45         1. If the community sanction violation includes a new
   46  felony conviction before the sentencing court, twelve (12)
   47  community sanction violation points are assessed for the
   48  violation, and for each successive community sanction violation
   49  involving a new felony conviction.
   50         2. If the community sanction violation is committed by a
   51  violent felony offender of special concern as defined in s.
   52  948.06:
   53         a. Twelve (12) community sanction violation points are
   54  assessed for the violation and for each successive violation of
   55  felony probation or community control where:
   56         I. The violation does not include a new felony conviction;
   57  and
   58         II. The community sanction violation is not based solely on
   59  the probationer or offender’s failure to pay costs or fines or
   60  make restitution payments.
   61         b. Twenty-four (24) community sanction violation points are
   62  assessed for the violation and for each successive violation of
   63  felony probation or community control where the violation
   64  includes a new felony conviction.
   65  
   66  Multiple counts of community sanction violations before the
   67  sentencing court shall not be a basis for multiplying the
   68  assessment of community sanction violation points.
   69  Prior serious felony points: If the offender has a primary
   70  offense or any additional offense ranked in level 8, level 9, or
   71  level 10, and one or more prior serious felonies, a single
   72  assessment of thirty (30) points shall be added. For purposes of
   73  this section, a prior serious felony is an offense in the
   74  offender’s prior record that is ranked in level 8, level 9, or
   75  level 10 under s. 921.0022 or s. 921.0023 and for which the
   76  offender is serving a sentence of confinement, supervision, or
   77  other sanction or for which the offender’s date of release from
   78  confinement, supervision, or other sanction, whichever is later,
   79  is within 3 years before the date the primary offense or any
   80  additional offense was committed.
   81  
   82  Prior capital felony points: If the offender has one or more
   83  prior capital felonies in the offender’s criminal record, points
   84  shall be added to the subtotal sentence points of the offender
   85  equal to twice the number of points the offender receives for
   86  the primary offense and any additional offense. A prior capital
   87  felony in the offender’s criminal record is a previous capital
   88  felony offense for which the offender has entered a plea of nolo
   89  contendere or guilty or has been found guilty; or a felony in
   90  another jurisdiction which is a capital felony in that
   91  jurisdiction, or would be a capital felony if the offense were
   92  committed in this state.
   93  
   94  Possession of a firearm, semiautomatic firearm, or machine gun:
   95  If the offender is convicted of committing or attempting to
   96  commit any felony other than those enumerated in s. 775.087(2)
   97  while having in his or her possession: a firearm as defined in
   98  s. 790.001(6), an additional eighteen (18) sentence points are
   99  assessed; or if the offender is convicted of committing or
  100  attempting to commit any felony other than those enumerated in
  101  s. 775.087(3) while having in his or her possession a
  102  semiautomatic firearm as defined in s. 775.087(3) or a machine
  103  gun as defined in s. 790.001(9), an additional twenty-five (25)
  104  sentence points are assessed.
  105  
  106  Sentencing multipliers:
  107  
  108  Drug trafficking: If the primary offense is drug trafficking
  109  under s. 893.135, the subtotal sentence points are multiplied,
  110  at the discretion of the court, for a level 7 or level 8
  111  offense, by 1.5. The state attorney may move the sentencing
  112  court to reduce or suspend the sentence of a person convicted of
  113  a level 7 or level 8 offense, if the offender provides
  114  substantial assistance as described in s. 893.135(4).
  115  
  116  Law enforcement protection: If the primary offense is a
  117  violation of the Law Enforcement Protection Act under s.
  118  775.0823(2), (3), or (4), the subtotal sentence points are
  119  multiplied by 2.5. If the primary offense is a violation of s.
  120  775.0823(5), (6), (7), (8), or (9), the subtotal sentence points
  121  are multiplied by 2.0. If the primary offense is a violation of
  122  s. 784.07(3) or s. 775.0875(1), or of the Law Enforcement
  123  Protection Act under s. 775.0823(10) or (11), the subtotal
  124  sentence points are multiplied by 1.5.
  125  
  126  Grand theft of a motor vehicle: If the primary offense is grand
  127  theft of the third degree involving a motor vehicle and in the
  128  offender’s prior record, there are three or more grand thefts of
  129  the third degree involving a motor vehicle, the subtotal
  130  sentence points are multiplied by 1.5.
  131  
  132  Offense related to a criminal gang: If the offender is convicted
  133  of the primary offense and committed that offense for the
  134  purpose of benefiting, promoting, or furthering the interests of
  135  a criminal gang as defined in s. 874.03, the subtotal sentence
  136  points are multiplied by 1.5. If applying the multiplier results
  137  in the lowest permissible sentence exceeding the statutory
  138  maximum sentence for the primary offense under chapter 775, the
  139  court may not apply the multiplier and must sentence the
  140  defendant to the statutory maximum sentence.
  141  
  142  Domestic violence in the presence of a child: If the offender is
  143  convicted of the primary offense and the primary offense is a
  144  crime of domestic violence, as defined in s. 741.28, which was
  145  committed in the presence of a child under 16 years of age who
  146  is a family or household member as defined in s. 741.28(3) with
  147  the victim or perpetrator, the subtotal sentence points are
  148  multiplied by 1.5.
  149  
  150  Adult-on-minor sex offense: If the offender was 18 years of age
  151  or older and the victim was younger than 18 years of age at the
  152  time the offender committed the primary offense, and if the
  153  primary offense was an offense committed on or after October 1,
  154  2014, and is a violation of s. 787.01(2) or s. 787.02(2), if the
  155  violation involved a victim who was a minor and, in the course
  156  of committing that violation, the defendant committed a sexual
  157  battery under chapter 794 or a lewd act under s. 800.04 or s.
  158  847.0135(5) against the minor; s. 787.01(3)(a)2. or 3.; s.
  159  787.02(3)(a)2. or 3.; s. 794.011, excluding s. 794.011(10); s.
  160  800.04; or s. 847.0135(5), the subtotal sentence points are
  161  multiplied by 2.0. If applying the multiplier results in the
  162  lowest permissible sentence exceeding the statutory maximum
  163  sentence for the primary offense under chapter 775, the court
  164  may not apply the multiplier and must sentence the defendant to
  165  the statutory maximum sentence.
  166         3. If the community sanction violation is resolved through
  167  the alternative sanctioning program under s. 948.06(9), no
  168  points are assessed. If a community sanction violation not
  169  resolved through the alternative sanctioning program is before
  170  the court, no points are assessed for prior violations that were
  171  resolved through the alternative sanctioning program.
  172         Section 2. Paragraph (c) of subsection (1), paragraph (f)
  173  of subsection (2), subsection (4), and paragraphs (c), (d), (e),
  174  and (i) of subsection (9) of section 948.06, Florida Statutes,
  175  are amended to read:
  176         948.06 Violation of probation or community control;
  177  revocation; modification; continuance; failure to pay
  178  restitution or cost of supervision.—
  179         (1)
  180         (c) If a probationer or offender on community control
  181  commits a technical violation, the probation officer shall
  182  determine whether the probationer or offender on community
  183  control is eligible for the alternative sanctioning program
  184  under subsection (9). If the probation officer determines that
  185  the probationer or offender on community control is eligible,
  186  the probation officer may proceed with the alternative
  187  sanctioning program in lieu of filing an affidavit of violation
  188  with the court. If the probationer or offender on community
  189  control is eligible for the alternative sanctioning program and
  190  the violation is a low-risk violation as defined in paragraph
  191  (9)(b), the probation officer must proceed with the alternative
  192  sanctioning program in lieu of filing an affidavit of violation
  193  with the court unless directed by the court to submit or file an
  194  affidavit of violation pursuant to paragraph (9)(i). For
  195  purposes of this section, the term “technical violation” means
  196  an alleged violation of supervision that is not a new felony
  197  offense, a misdemeanor violation of chapter 784, a misdemeanor
  198  crime of domestic violence as defined in s. 741.28, or a
  199  misdemeanor under s. 316.193, s. 741.29, s. 741.31, s. 784.046,
  200  s. 784.047, s. 784.048, s. 784.0487, s. 784.049, or s. 787.025
  201  misdemeanor offense, or criminal traffic offense other than a
  202  misdemeanor violation of s. 322.34.
  203         (2)
  204         (f)1. Except as provided in subparagraph 4. 3. or upon
  205  waiver by the probationer, the court shall modify or continue a
  206  probationary term upon finding a probationer in violation when
  207  all of the following apply:
  208         a. The term of supervision is probation.
  209         b. The probationer does not qualify as a violent felony
  210  offender of special concern, as defined in paragraph (8)(b).
  211         c. The violation is a low-risk technical violation, as
  212  defined in paragraph (9)(b).
  213         d. The court has not, on two or more separate occasions,
  214  previously found the probationer in violation of his or her
  215  probation pursuant to a filed violation of probation affidavit
  216  during the current term of supervision. A probationer who has
  217  successfully completed sanctions through the alternative
  218  sanctioning program is eligible for mandatory modification or
  219  continuation of his or her probation.
  220         2. Upon modifying probation under subparagraph 1., the
  221  court may include in the sentence a maximum of 90 days in county
  222  jail as a special condition of probation. If the court has
  223  previously found the probationer in violation of his or her
  224  probation and modified probation with up to 90 days in county
  225  jail as a special condition of probation, it may, upon
  226  modification of probation under subparagraph 1., include in the
  227  sentence a maximum of 120 days in county jail as a special
  228  condition of probation.
  229         3.2. Upon modifying probation under subparagraph 1., the
  230  court may include in the sentence a maximum of 90 days in county
  231  jail as a special condition of probation.
  232         4.3. Notwithstanding s. 921.0024, if a probationer meets
  233  the criteria for mandatory modification in subparagraph 1. but
  234  has less time under supervision remaining than the number of
  235  days in jail authorized in subparagraph 2. than 90 days of
  236  supervision remaining on his or her term of probation and meets
  237  the criteria for mandatory modification or continuation in
  238  subparagraph 1., the court may revoke probation and sentence the
  239  probationer to a maximum of 90 or 120 days in county jail as
  240  provided in subparagraph 2.
  241         5.4. For purposes of imposing a jail sentence under this
  242  paragraph only, the court may grant credit only for time served
  243  in the county jail since the probationer’s most recent arrest
  244  for the violation. However, the court may not order the
  245  probationer to a total term of incarceration greater than the
  246  maximum provided by s. 775.082.
  247         (4) Notwithstanding any other provision of this section, a
  248  felony probationer or an offender in community control who is
  249  arrested for violating his or her probation or community control
  250  in a material respect may be taken before the court in the
  251  county or circuit in which the probationer or offender was
  252  arrested. That court shall advise him or her of the charge of a
  253  violation and, if such charge is admitted, shall cause him or
  254  her to be brought before the court that granted the probation or
  255  community control. If the violation is not admitted by the
  256  probationer or offender, the court may commit him or her or
  257  release him or her with or without bail to await further
  258  hearing. However, if the probationer or offender is under
  259  supervision for any criminal offense proscribed in chapter 794,
  260  s. 800.04(4), (5), (6), s. 827.071, or s. 847.0145, or is a
  261  registered sexual predator or a registered sexual offender, or
  262  is under supervision for a criminal offense for which he or she
  263  would meet the registration criteria in s. 775.21, s. 943.0435,
  264  or s. 944.607 but for the effective date of those sections, the
  265  court must make a finding that the probationer or offender is
  266  not a danger to the public prior to release with or without
  267  bail. In determining the danger posed by the offender’s or
  268  probationer’s release, the court may consider the nature and
  269  circumstances of the violation and any new offenses charged; the
  270  offender’s or probationer’s past and present conduct, including
  271  convictions of crimes; any record of arrests without conviction
  272  for crimes involving violence or sexual crimes; any other
  273  evidence of allegations of unlawful sexual conduct or the use of
  274  violence by the offender or probationer; the offender’s or
  275  probationer’s family ties, length of residence in the community,
  276  employment history, and mental condition; his or her history and
  277  conduct during the probation or community control supervision
  278  from which the violation arises and any other previous
  279  supervisions, including disciplinary records of previous
  280  incarcerations; the likelihood that the offender or probationer
  281  will engage again in a criminal course of conduct; the weight of
  282  the evidence against the offender or probationer; and any other
  283  facts the court considers relevant. The court, as soon as is
  284  practicable, shall give the probationer or offender an
  285  opportunity to be fully heard on his or her behalf in person or
  286  by counsel. If the alleged violation is a criminal traffic
  287  offense or a low-risk violation as defined in paragraph (9)(b),
  288  the court must, within 20 days after arrest, give the
  289  probationer or offender an opportunity to be fully heard on his
  290  or her behalf in person or by counsel. If no hearing is held
  291  within 20 days after arrest, the court must release the
  292  probationer or offender without bail. The court may impose
  293  nonmonetary conditions of release. After the hearing, the court
  294  shall make findings of fact and forward the findings to the
  295  court that granted the probation or community control and to the
  296  probationer or offender or his or her attorney. The findings of
  297  fact by the hearing court are binding on the court that granted
  298  the probation or community control. Upon the probationer or
  299  offender being brought before it, the court that granted the
  300  probation or community control may revoke, modify, or continue
  301  the probation or community control or may place the probationer
  302  into community control as provided in this section. However, the
  303  probationer or offender shall not be released and shall not be
  304  admitted to bail, but shall be brought before the court that
  305  granted the probation or community control if any violation of
  306  felony probation or community control other than a failure to
  307  pay costs or fines or make restitution payments is alleged to
  308  have been committed by:
  309         (a) A violent felony offender of special concern, as
  310  defined in this section;
  311         (b) A person who is on felony probation or community
  312  control for any offense committed on or after the effective date
  313  of this act and who is arrested for a qualifying offense as
  314  defined in this section; or
  315         (c) A person who is on felony probation or community
  316  control and has previously been found by a court to be a
  317  habitual violent felony offender as defined in s. 775.084(1)(b),
  318  a three-time violent felony offender as defined in s.
  319  775.084(1)(c), or a sexual predator under s. 775.21, and who is
  320  arrested for committing a qualifying offense as defined in this
  321  section on or after the effective date of this act.
  322         (9)
  323         (c) As used in this subsection, the term “moderate-risk
  324  violation” means any of the following:
  325         1. A violation identified in paragraph (b), when committed
  326  by an offender on community control.
  327         2. Failure to remain at an approved residence by an
  328  offender on community control.
  329         3. A third violation identified in paragraph (b) by a
  330  probationer within the current term of supervision.
  331         4. A new misdemeanor offense that is not a misdemeanor
  332  violation of chapter 784, a misdemeanor crime of domestic
  333  violence as defined in s. 741.28, or a misdemeanor under s.
  334  316.193, s. 741.29, s. 741.31, s. 784.046, s. 784.047, s.
  335  784.048, s. 784.0487, s. 784.049, or s. 787.025.
  336         5.4. Any other violation as determined by administrative
  337  order of the chief judge of the circuit.
  338         (d) A probationer or offender on community control is not
  339  eligible for an alternative sanction if:
  340         1. He or she is a violent felony offender of special
  341  concern as defined in paragraph (8)(b);
  342         2. The violation is a felony, a misdemeanor violation of
  343  chapter 784, a misdemeanor crime of domestic violence as defined
  344  in s. 741.28, or a misdemeanor under s. 316.193, s. 741.29, s.
  345  741.31, s. 784.046, s. 784.047, s. 784.048, s. 784.0487, s.
  346  784.049, or s. 787.025 misdemeanor, or criminal traffic offense
  347  other than a misdemeanor violation of s. 322.34;
  348         3. The violation is absconding;
  349         4. The violation is of a stay-away order or no-contact
  350  order;
  351         5. The violation is not identified as low-risk or moderate
  352  risk under this subsection or by administrative order;
  353         6. He or she has a prior moderate-risk level violation
  354  during the current term of supervision;
  355         7. He or she has three prior low-risk level violations
  356  during the same term of supervision;
  357         8. The term of supervision is scheduled to terminate in
  358  less than 90 days; or
  359         9. The terms of the sentence prohibit alternative
  360  sanctioning.
  361         (e) For a first or second low-risk violation, as defined in
  362  paragraph (b), within the current term of supervision, a
  363  probation officer shall may offer an eligible probationer one or
  364  more of the following as an alternative sanction:
  365         1. Up to 5 days in the county jail.
  366         2. Up to 50 additional community service hours.
  367         3. Counseling or treatment.
  368         4. Support group attendance.
  369         5. Drug testing.
  370         6. Loss of travel or other privileges.
  371         7. Curfew for up to 30 days.
  372         8. House arrest for up to 30 days.
  373         9.a. Any other sanction as determined by administrative
  374  order of the chief judge of the circuit.
  375         b. However, in no circumstance shall participation in an
  376  alternative sanctioning program convert a withheld adjudication
  377  to an adjudication of guilt.
  378         (i) If the violation is a low-risk violation under
  379  paragraph (b), the court must impose the recommended sanction
  380  unless it records a finding of specific, identified risk to
  381  public safety, in which case it may direct the department to
  382  submit a violation report, affidavit, and warrant to the court.
  383  In all other cases, the court may impose the recommended
  384  sanction or direct the department to submit a violation report,
  385  affidavit, and warrant to the court.
  386         Section 3. This act shall take effect October 1, 2023.