Florida Senate - 2020                                     SB 554
       
       
        
       By Senator Brandes
       
       
       
       
       
       24-00767-20                                            2020554__
    1                        A bill to be entitled                      
    2         An act relating to sentencing; amending s. 921.0026,
    3         F.S.; revising the mitigating circumstances under
    4         which a departure from the lowest permissible sentence
    5         is reasonably justified; conforming a provision to
    6         changes made by the act; reenacting ss.
    7         775.08435(1)(b), (c), and (d), 921.002(3), and
    8         921.00265(1), F.S., all relating to mitigating
    9         circumstances, to incorporate the amendment made to s.
   10         921.0026, F.S., in references thereto; providing an
   11         effective date.
   12          
   13  Be It Enacted by the Legislature of the State of Florida:
   14  
   15         Section 1. Section 921.0026, Florida Statutes, is amended
   16  to read:
   17         921.0026 Mitigating circumstances.—This section applies to
   18  any felony offense, except any capital felony, committed on or
   19  after October 1, 1998.
   20         (1) A downward departure from the lowest permissible
   21  sentence, as calculated according to the total sentence points
   22  pursuant to s. 921.0024, is prohibited unless there are
   23  circumstances or factors that reasonably justify the downward
   24  departure. Mitigating factors to be considered include, but are
   25  not limited to, those listed in subsection (2). The imposition
   26  of a sentence below the lowest permissible sentence is subject
   27  to appellate review under chapter 924, but the extent of
   28  downward departure is not subject to appellate review.
   29         (2) Mitigating circumstances under which a departure from
   30  the lowest permissible sentence is reasonably justified include,
   31  but are not limited to:
   32         (a) The departure results from a legitimate, uncoerced plea
   33  bargain.
   34         (b) The defendant was an accomplice to the offense and was
   35  a relatively minor participant in the criminal conduct.
   36         (c) The capacity of the defendant to appreciate the
   37  criminal nature of the conduct or to conform that conduct to the
   38  requirements of law was substantially impaired.
   39         (d) For offenders sentenced on or after October 1, 2020,
   40  the defendant requires specialized treatment for substance abuse
   41  or addiction, a mental disorder, or a physical disability The
   42  defendant requires specialized treatment for a mental disorder
   43  that is unrelated to substance abuse or addiction or for a
   44  physical disability, and the defendant is amenable to treatment.
   45         (e) The need for payment of restitution to the victim
   46  outweighs the need for a prison sentence.
   47         (f) The victim was an initiator, willing participant,
   48  aggressor, or provoker of the incident.
   49         (g) The defendant acted under extreme duress or under the
   50  domination of another person.
   51         (h) Before the identity of the defendant was determined,
   52  the victim was substantially compensated.
   53         (i) The defendant cooperated with the state to resolve the
   54  current offense or any other offense.
   55         (j) The offense was committed in an unsophisticated manner
   56  and was an isolated incident for which the defendant has shown
   57  remorse.
   58         (k) At the time of the offense the defendant was too young
   59  to appreciate the consequences of the offense.
   60         (l) The defendant is to be sentenced as a youthful
   61  offender.
   62         (m) The defendant’s offense is a nonviolent felony, the
   63  defendant’s Criminal Punishment Code scoresheet total sentence
   64  points under s. 921.0024 are 60 points or fewer, and the
   65  defendant is sentenced for the offense on or after October 1,
   66  2020 the court determines that the defendant is amenable to the
   67  services of a postadjudicatory treatment-based drug court
   68  program and is otherwise qualified to participate in the program
   69  as part of the sentence. For purposes of this paragraph, the
   70  term “nonviolent felony” has the same meaning as provided in s.
   71  948.08(6).
   72         (n) The defendant was making a good faith effort to obtain
   73  or provide medical assistance for an individual experiencing a
   74  drug-related overdose.
   75         (3) Except as provided in paragraph (2)(m), the defendant’s
   76  substance abuse or addiction, including intoxication at the time
   77  of the offense, is not a mitigating factor under subsection (2)
   78  and does not, under any circumstances, justify a downward
   79  departure from the permissible sentencing range.
   80         Section 2. For the purpose of incorporating the amendment
   81  made by this act to section 921.0026, Florida Statutes, in
   82  references thereto, paragraphs (b), (c), and (d) of subsection
   83  (1) of section 775.08435, Florida Statutes, are reenacted to
   84  read:
   85         775.08435 Prohibition on withholding adjudication in felony
   86  cases.—
   87         (1) Notwithstanding the provisions of s. 948.01, the court
   88  may not withhold adjudication of guilt upon the defendant for:
   89         (b) A second degree felony offense unless:
   90         1. The state attorney requests in writing that adjudication
   91  be withheld; or
   92         2. The court makes written findings that the withholding of
   93  adjudication is reasonably justified based on circumstances or
   94  factors in accordance with those set forth in s. 921.0026.
   95  
   96  Notwithstanding any provision of this section, no adjudication
   97  of guilt shall be withheld for a second degree felony offense if
   98  the defendant has a prior withholding of adjudication for a
   99  felony that did not arise from the same transaction as the
  100  current felony offense.
  101         (c) A third degree felony that is a crime of domestic
  102  violence as defined in s. 741.28, unless:
  103         1. The state attorney requests in writing that adjudication
  104  be withheld; or
  105         2. The court makes written findings that the withholding of
  106  adjudication is reasonably justified based on circumstances or
  107  factors in accordance with s. 921.0026.
  108         (d) A third degree felony offense if the defendant has a
  109  prior withholding of adjudication for a felony offense that did
  110  not arise from the same transaction as the current felony
  111  offense unless:
  112         1. The state attorney requests in writing that adjudication
  113  be withheld; or
  114         2. The court makes written findings that the withholding of
  115  adjudication is reasonably justified based on circumstances or
  116  factors in accordance with those set forth in s. 921.0026.
  117  
  118  Notwithstanding any provision of this section, no adjudication
  119  of guilt shall be withheld for a third degree felony offense if
  120  the defendant has two or more prior withholdings of adjudication
  121  for a felony that did not arise from the same transaction as the
  122  current felony offense.
  123         Section 3. For the purpose of incorporating the amendment
  124  made by this act to section 921.0026, Florida Statutes, in a
  125  reference thereto, subsection (3) of section 921.002, Florida
  126  Statutes, is reenacted to read:
  127         921.002 The Criminal Punishment Code.—The Criminal
  128  Punishment Code shall apply to all felony offenses, except
  129  capital felonies, committed on or after October 1, 1998.
  130         (3) A court may impose a departure below the lowest
  131  permissible sentence based upon circumstances or factors that
  132  reasonably justify the mitigation of the sentence in accordance
  133  with s. 921.0026. The level of proof necessary to establish
  134  facts supporting the mitigation of a sentence is a preponderance
  135  of the evidence. When multiple reasons exist to support the
  136  mitigation, the mitigation shall be upheld when at least one
  137  circumstance or factor justifies the mitigation regardless of
  138  the presence of other circumstances or factors found not to
  139  justify mitigation. Any sentence imposed below the lowest
  140  permissible sentence must be explained in writing by the trial
  141  court judge.
  142         Section 4. For the purpose of incorporating the amendment
  143  made by this act to section 921.0026, Florida Statutes, in a
  144  reference thereto, subsection (1) of section 921.00265, Florida
  145  Statutes, is reenacted to read:
  146         921.00265 Recommended sentences; departure sentences;
  147  mandatory minimum sentences.—This section applies to any felony
  148  offense, except any capital felony, committed on or after
  149  October 1, 1998.
  150         (1) The lowest permissible sentence provided by
  151  calculations from the total sentence points pursuant to s.
  152  921.0024(2) is assumed to be the lowest appropriate sentence for
  153  the offender being sentenced. A departure sentence is prohibited
  154  unless there are mitigating circumstances or factors present as
  155  provided in s. 921.0026 which reasonably justify a departure.
  156         Section 5. This act shall take effect October 1, 2020.