Bill Text: FL S1478 | 2023 | Regular Session | Comm Sub

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-Comm_Sub.html

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       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.