Senate Bill 0194e1

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  1                      A bill to be entitled

  2         An act relating to punishment of felons;

  3         amending s. 775.087, F.S., relating to felony

  4         reclassification and minimum sentence and other

  5         penalties for offenders who committed

  6         aggravated battery or committed certain acts

  7         involving a weapon, firearm, or destructive

  8         device during the commission of a felony;

  9         conforming terminology to changes made by the

10         act; increasing from 3 to 10 years the minimum

11         prison term for certain felonies or attempted

12         felonies under specified circumstances when the

13         offender possessed a firearm or destructive

14         device during the commission or attempted

15         commission of the offense or flight therefrom;

16         revising the category of such offenses to

17         include murder, sexual battery, robbery,

18         burglary, arson, aggravated assault or

19         aggravated battery, kidnapping, escape,

20         aircraft piracy, aggravated child abuse,

21         aggravated abuse of an elderly person or

22         disabled adult, unlawful throwing, placing, or

23         discharging of a destructive device or bomb,

24         carjacking, home-invasion robbery, aggravated

25         stalking, possession of a firearm by a

26         convicted felon, and trafficking in cannabis,

27         trafficking in cocaine, capital importation of

28         cocaine, trafficking in illegal drugs, capital

29         importation of illegal drugs, trafficking in

30         phencyclidine, capital importation of

31         phencyclidine, trafficking in methaqualone,


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  1         capital importation of methaqualone,

  2         trafficking in amphetamine, capital importation

  3         of amphetamine, trafficking in flunitrazepam,

  4         or other violation of s. 893.135(1), F.S.;

  5         providing for an exception from the requirement

  6         that the possession of a firearm by a convicted

  7         felon result in a 3-year minimum term of

  8         imprisonment; providing for imposition of a

  9         20-year minimum term of imprisonment when, in

10         addition to such circumstances, the firearm or

11         destructive device was discharged while the

12         person was possessing, carrying, displaying,

13         using, or threatening or attempting to use the

14         firearm or destructive device; providing for

15         imposition of a minimum term of imprisonment of

16         not less than 25 years and not more than a term

17         of imprisonment of life in prison when, in

18         further addition to such circumstances, the

19         discharging of the firearm or destructive

20         device resulted in infliction of death or great

21         bodily harm upon any person; providing for

22         construction; providing legislative intent with

23         respect to punishment of offenders who possess,

24         carry, display, use, or threaten or attempt to

25         use firearms or destructive devices; providing

26         imposition of the minimum term of imprisonment

27         consecutive to any other term of imprisonment

28         imposed; providing that the minimum term of

29         imprisonment imposed is authorized by law

30         regardless of the maximum sentence that may be

31         imposed for the underlying felony; increasing


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  1         from 8 to 15 years the minimum prison term for

  2         certain felonies or attempted felonies under

  3         specified circumstances when, during the

  4         commission or attempted commission of the

  5         offense, the offender possessed a semiautomatic

  6         firearm and its high-capacity detachable box

  7         magazine or a machine gun; providing for the

  8         category of such offenses to include murder,

  9         sexual battery, robbery, burglary, arson,

10         aggravated assault, aggravated battery,

11         kidnapping, escape, aircraft piracy, aggravated

12         child abuse, aggravated abuse of an elderly

13         person or disabled adult, unlawful throwing,

14         placing, or discharging of a destructive device

15         or bomb, carjacking, home-invasion robbery,

16         aggravated stalking, possession of a firearm by

17         a convicted felon, and trafficking in cannabis,

18         trafficking in cocaine, capital importation of

19         cocaine, trafficking in illegal drugs, capital

20         importation of illegal drugs, trafficking in

21         phencyclidine, capital importation of

22         phencyclidine, trafficking in methaqualone,

23         capital importation of methaqualone,

24         trafficking in amphetamine, capital importation

25         of amphetamine, trafficking in flunitrazepam,

26         or other violation of s. 893.135(1); providing

27         an exception from the requirement that

28         possession of a firearm by a convicted felon

29         result in an 8-year minimum term of

30         imprisonment; providing for imposition of a

31         20-year minimum term of imprisonment when, in


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  1         addition to such circumstances, the

  2         semiautomatic firearm and its high-capacity

  3         detachable box magazine or a machine gun was

  4         discharged while the person was possessing,

  5         carrying, displaying, using, or threatening or

  6         attempting to use the semiautomatic firearm and

  7         its high-capacity detachable box magazine or a

  8         machine gun; providing for imposition of a

  9         minimum term of imprisonment of not less than

10         25 years and not more than a term of

11         imprisonment of life in prison when, in further

12         addition to such circumstances, the discharging

13         of the semiautomatic firearm and its

14         high-capacity detachable box magazine or a

15         machine gun resulted in infliction of death or

16         great bodily harm upon any person; providing

17         for construction; providing legislative intent

18         with respect to punishment of offenders who

19         possess, carry, display, use, or threaten or

20         attempt to use a semiautomatic firearm and its

21         high-capacity detachable box magazine or a

22         machine gun; providing for imposition of the

23         minimum term of imprisonment consecutive to any

24         other term of imprisonment imposed; providing

25         that the minimum term of imprisonment imposed

26         is authorized by law regardless of the maximum

27         sentence that may be imposed for the underlying

28         felony; requiring the state attorney to explain

29         mandatory sentence deviations in writing;

30         requiring state attorneys to submit such

31         writings to their association, where they must


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  1         remain available to the public for a specified

  2         period; defining the term "possession";

  3         reenacting s. 921.0022(2), F.S., relating to

  4         the Criminal Punishment Code offense severity

  5         ranking chart, s. 921.0024(1)(b), F.S.,

  6         relating to Florida Criminal Punishment Code

  7         worksheet computations and key, and s.

  8         947.146(3)(b), F.S., relating to Control

  9         Release Authority, to incorporate said

10         amendment in references; providing for public

11         service announcements with respect to the

12         penalties provided in the act; providing an

13         effective date.

14

15         WHEREAS, Florida ranks among the most violent states in

16  the nation, and

17         WHEREAS, in 1975 the Florida Legislature enacted

18  legislation requiring a minimum mandatory sentence of three

19  years in prison for possessing a gun during the commission or

20  attempted commission of a violent felony, and

21         WHEREAS, the Legislature enacted this mandatory penalty

22  in order to protect citizens from criminals who are known to

23  use guns during the commission of violent crimes, and

24         WHEREAS, the FBI reports that among persons identified

25  in the felonious killings of law enforcement officers in 1997,

26  71% had prior criminal convictions, and one of every four were

27  on probation or parole for other crimes when they killed the

28  officers, and

29         WHEREAS, criminals who use guns during the commission

30  of violent crimes pose an increased danger to the lives,

31  health, and safety of Florida's citizens and to Florida's law


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  1  enforcement officers who daily put their lives on the line to

  2  protect citizens from violent criminals, and

  3         WHEREAS, the Legislature intends to hold criminals more

  4  accountable for their crimes, and intends for criminals who

  5  use guns to commit violent crimes to receive greater criminal

  6  penalties than they do today, and

  7         WHEREAS, the Legislature intends that when law

  8  enforcement officers put themselves in harm's way to apprehend

  9  and arrest these gun-wielding criminals who terrorize the

10  streets and neighborhoods of Florida, that these criminals be

11  sentenced to longer mandatory prison terms than provided in

12  current law, so that these offenders cannot again endanger law

13  enforcement officers and the public, and

14         WHEREAS, there is a critical need for effective

15  criminal justice measures that will ensure that violent

16  criminals are sentenced to prison terms that will effectively

17  incapacitate the offender, prevent future crimes, and reduce

18  violent crime rates, and

19         WHEREAS, it is the intent of the Legislature that

20  criminals who use guns to commit violent crimes be vigorously

21  prosecuted and that the state demand that minimum mandatory

22  terms of imprisonment be imposed pursuant to this act, NOW,

23  THEREFORE,

24

25  Be It Enacted by the Legislature of the State of Florida:

26

27         Section 1.  Section 775.087, Florida Statutes, is

28  amended to read:

29         775.087  Possession or use of weapon; aggravated

30  battery; felony reclassification; minimum sentence.--

31


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  1         (1)  Unless otherwise provided by law, whenever a

  2  person is charged with a felony, except a felony in which the

  3  use of a weapon or firearm is an essential element, and during

  4  the commission of such felony the defendant carries, displays,

  5  uses, threatens to use, or attempts to use any weapon or

  6  firearm, or during the commission of such felony the defendant

  7  commits an aggravated battery, the felony for which the person

  8  is charged shall be reclassified as follows:

  9         (a)  In the case of a felony of the first degree, to a

10  life felony.

11         (b)  In the case of a felony of the second degree, to a

12  felony of the first degree.

13         (c)  In the case of a felony of the third degree, to a

14  felony of the second degree.

15

16  For purposes of sentencing under chapter 921 and determining

17  incentive gain-time eligibility under chapter 944, a felony

18  offense which is reclassified under this section is ranked one

19  level above the ranking under s. 921.0022 or s. 921.0023 of

20  the felony offense committed.

21         (2)(a)1.  Any person who is convicted of a felony or an

22  attempt to commit a felony and the conviction was for:

23         a.(a)  Murder;

24         b.(b)  Sexual battery;

25         c.(c)  Robbery;

26         d.(d)  Burglary;

27         e.(e)  Arson;

28         f.(f)  Aggravated assault;

29         g.(g)  Aggravated battery;

30         h.(h)  Kidnapping;

31         i.(i)  Escape;


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  1         j.(j)  Aircraft piracy;

  2         k.(k)  Aggravated child abuse;

  3         l.(l)  Aggravated abuse of an elderly person or

  4  disabled adult;

  5         m.(m)  Unlawful throwing, placing, or discharging of a

  6  destructive device or bomb;

  7         n.(n)  Carjacking;

  8         o.(o)  Home-invasion robbery; or

  9         p.(p)  Aggravated stalking;

10         q.  Possession of a firearm by a convicted felon; or

11         r.  Trafficking in cannabis, trafficking in cocaine,

12  capital importation of cocaine, trafficking in illegal drugs,

13  capital importation of illegal drugs, trafficking in

14  phencyclidine, capital importation of phencyclidine,

15  trafficking in methaqualone, capital importation of

16  methaqualone, trafficking in amphetamine, capital importation

17  of amphetamine, trafficking in flunitrazepam, or other

18  violation of s. 893.135(1)

19

20  and during the commission of the offense, such person

21  possessed a "firearm" or "destructive device" as those terms

22  are defined in s. 790.001, shall be sentenced to a minimum

23  term of imprisonment of 10 3 years, except that a person who

24  is convicted of the commission or attempted commission of

25  possession of a firearm by a convicted felon shall be

26  sentenced to a minimum mandatory term of imprisonment of 3

27  years.

28         2.  Whenever a person is convicted of any of the

29  felonies delineated in subparagraph (a)1., regardless of

30  whether the use of a weapon is an element of the felony, and

31  during the course of the commission of the felony or the


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  1  flight therefrom, a "firearm" or "destructive device" as

  2  defined in s. 790.001 was discharged while the person was

  3  possessing, carrying, displaying, using, threatening to use,

  4  or attempting to use it, the person shall be sentenced to a

  5  minimum term of imprisonment of 20 years.

  6         3.  Whenever a person is convicted of any of the

  7  felonies delineated in subparagraph (a)1., regardless of

  8  whether the use of a weapon is an element of the felony, and

  9  during the course of the commission of the felony or the

10  flight therefrom, a "firearm" or "destructive device" as

11  defined in s. 790.001 was discharged while the person was

12  possessing, carrying, displaying, using, threatening to use,

13  or attempting to use it and, as the result of the discharge,

14  death or great bodily harm was inflicted upon any person, the

15  convicted person shall be sentenced to a minimum term of

16  imprisonment of not less than 25 years and not more than a

17  term of imprisonment of life in prison.

18         (b)  Subparagraph (a)1., subparagraph (a)2., or

19  subparagraph (a)3. does not preclude a court from imposing a

20  longer sentence of incarceration as authorized by law in

21  addition to the minimum mandatory sentence, or from imposing a

22  sentence of death pursuant to other applicable law.

23  Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3.

24  does not authorize a court to impose a lesser sentence than

25  otherwise required by law.

26

27  Notwithstanding s. 948.01, adjudication of guilt or imposition

28  of sentence shall not be suspended, deferred, or withheld, and

29  the defendant is not eligible for statutory gain-time under s.

30  944.275 or any form of discretionary early release, other than

31


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  1  pardon or executive clemency, or conditional medical release

  2  under s. 947.149, prior to serving the minimum sentence.

  3         (c)  If the minimum mandatory terms of imprisonment

  4  imposed pursuant to this section exceed the maximum sentences

  5  authorized by s. 775.082, s. 775.084, or the Criminal

  6  Punishment Code under chapter 921, the mandatory minimum

  7  sentence must be imposed. If the mandatory minimum terms of

  8  imprisonment pursuant to this section are less than the

  9  sentences that could be imposed as authorized by s. 775.082,

10  s. 775.084, or the Criminal Punishment Code under chapter 921,

11  the sentence imposed by the court must include the mandatory

12  minimum term of imprisonment as authorized in this section.

13         (d)  It is the intent of the Legislature that offenders

14  who possess, carry, display, use, threaten to use, or attempt

15  to use firearms or destructive devices be punished to the

16  fullest extent of the law, and the minimum terms of

17  imprisonment imposed pursuant to this subsection shall be

18  imposed for each qualifying felony count for which the person

19  is convicted. However, the court may consider in sentencing

20  the person under this subsection whether or not the offense

21  was committed by a person being threatened with domestic

22  violence. The court shall impose any term of imprisonment

23  provided for in this subsection consecutively to any other

24  term of imprisonment imposed for any other felony offense.

25         (3)(a)1.  Any person who is convicted of a felony or an

26  attempt to commit a felony and the conviction was for:

27         a.1.  Murder;

28         b.2.  Sexual battery;

29         c.3.  Robbery;

30         d.4.  Burglary;

31         e.5.  Arson;


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  1         f.6.  Aggravated assault;

  2         g.7.  Aggravated battery;

  3         h.8.  Kidnapping;

  4         i.9.  Escape;

  5         j.10.  Sale, manufacture, delivery, or intent to sell,

  6  manufacture, or deliver any controlled substance;

  7         k.11.  Aircraft piracy;

  8         l.12.  Aggravated child abuse;

  9         m.13.  Aggravated abuse of an elderly person or

10  disabled adult;

11         n.14.  Unlawful throwing, placing, or discharging of a

12  destructive device or bomb;

13         o.15.  Carjacking;

14         p.16.  Home-invasion robbery; or

15         q.17.  Aggravated stalking;

16         r.  Possession of a firearm by a convicted felon; or

17         s.  Trafficking in cannabis, trafficking in cocaine,

18  capital importation of cocaine, trafficking in illegal drugs,

19  capital importation of illegal drugs, trafficking in

20  phencyclidine, capital importation of phencyclidine,

21  trafficking in methaqualone, capital importation of

22  methaqualone, trafficking in amphetamine, capital importation

23  of amphetamine, trafficking in flunitrazepam, or other

24  violation of s. 893.135(1);

25

26  and during the commission of the offense, such person

27  possessed a semiautomatic firearm and its high-capacity

28  detachable box magazine or a machine gun as defined in s.

29  790.001, shall be sentenced to a minimum term of imprisonment

30  of 15 8 years, except that a person who is convicted of the

31  commission or attempted commission of possession of a firearm


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  1  by a convicted felon shall be sentenced to a minimum mandatory

  2  term of imprisonment of 8 years.

  3         2.  Whenever a person is convicted of any of the

  4  felonies delineated in subparagraph (a)1., regardless of

  5  whether the use of a weapon is an element of the felony, and

  6  during the course of the commission of the felony or the

  7  flight therefrom, a semiautomatic firearm and its

  8  high-capacity box magazine or a "machine gun" as defined in s.

  9  790.001 was discharged while the person was possessing,

10  carrying, displaying, using, threatening to use, or attempting

11  to use it, the person shall be sentenced to a minimum term of

12  imprisonment of 20 years.

13         3.  Whenever a person is convicted of any of the

14  felonies delineated in subparagraph (a)1., regardless of

15  whether the use of a weapon is an element of the felony, and

16  during the course of the commission of the felony or the

17  flight therefrom, a semiautomatic firearm and its

18  high-capacity box magazine or a "machine gun" as defined in s.

19  790.001 was discharged while the person was possessing,

20  carrying, displaying, using, threatening to use, or attempting

21  to use it and, as the result of the discharge, death or great

22  bodily harm was inflicted upon any person, the convicted

23  person shall be sentenced to a minimum term of imprisonment of

24  not less than 25 years and not more than a term of

25  imprisonment of life in prison.

26         (b)  Subparagraph (a)1., subparagraph (a)2., or

27  subparagraph (a)3. does not prevent a court from imposing a

28  longer sentence of incarceration as authorized by law in

29  addition to the minimum mandatory sentence, or from imposing a

30  sentence of death pursuant to other applicable law.

31  Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3.


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  1  does not authorize a court to impose a lesser sentence than

  2  otherwise required by law.

  3

  4  Notwithstanding s. 948.01, adjudication of guilt or imposition

  5  of sentence shall not be suspended, deferred, or withheld, and

  6  the defendant is not eligible for statutory gain-time under s.

  7  944.275 or any form of discretionary early release, other than

  8  pardon or executive clemency, or conditional medical release

  9  under s. 947.149, prior to serving the minimum sentence.

10         (c)  If the minimum mandatory terms of imprisonment

11  imposed pursuant to this section exceed the maximum sentences

12  authorized by s. 775.082, s. 775.084, or the Criminal

13  Punishment Code under chapter 921, the mandatory minimum

14  sentence must be imposed. If the mandatory minimum terms of

15  imprisonment pursuant to this section are less than the

16  sentences that could be imposed as authorized by s. 775.082,

17  s. 775.084, or the Criminal Punishment code under chapter 921,

18  the sentence imposed by the court must include the mandatory

19  minimum term of imprisonment as authorized in this section.

20         (d)  It is the intent of the Legislature that offenders

21  who possess, carry, display, use, threaten to use, or attempt

22  to use semiautomatic firearms and their high-capacity box

23  magazines or machine guns be punished to the fullest extent of

24  the law, and that the minimum terms of imprisonment imposed

25  pursuant to this subsection shall be imposed for each

26  qualifying felony count for which the person is convicted. The

27  court shall impose any term of imprisonment provided for in

28  this subsection consecutively to any other term of

29  imprisonment imposed for any other felony offense.

30         (e)(b)  As used in this subsection, the term:

31


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  1         1.  "High-capacity detachable box magazine" means any

  2  detachable box magazine, for use in a semiautomatic firearm,

  3  which is capable of being loaded with more than 20 centerfire

  4  cartridges.

  5         2.  "Semiautomatic firearm" means a firearm which is

  6  capable of firing a series of rounds by separate successive

  7  depressions of the trigger and which uses the energy of

  8  discharge to perform a portion of the operating cycle.

  9         (4)  For every case in which the offender meets the

10  criteria in this section and does not receive the mandatory

11  minimum prison sentence, the state attorney must explain the

12  sentencing deviation in writing and place that explanation in

13  the case file maintained by the state attorney. Quarterly,

14  each state attorney shall submit copies of deviation memoranda

15  regarding offenses committed on or after the effective date of

16  this act to the President of the Florida Prosecuting Attorneys

17  Association, Inc. The association must maintain such

18  information, and make such information available to the

19  public, upon request, for at least a 10-year period.

20         (5)  For purposes of imposition of minimum mandatory

21  sentencing provisions of this section, with respect to a

22  firearm "possession" is defined as carrying it on the person

23  or having it within immediate physical reach with ready

24  access.

25         Section 2.  For the purpose of incorporating the

26  amendment to section 775.087, Florida Statutes, in references

27  thereto, subsection (2) of section 921.0022, Florida Statutes,

28  1998 Supplement, is reenacted to read:

29         921.0022  Criminal Punishment Code; offense severity

30  ranking chart.--

31


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  1         (2)  The offense severity ranking chart has 10 offense

  2  levels, ranked from least severe, which are level 1 offenses,

  3  to most severe, which are level 10 offenses, and each felony

  4  offense is assigned to a level according to the severity of

  5  the offense. For purposes of determining which felony offenses

  6  are specifically listed in the offense severity ranking chart

  7  and which severity level has been assigned to each of these

  8  offenses, the numerical statutory references in the left

  9  column of the chart and the felony degree designations in the

10  middle column of the chart are controlling; the language in

11  the right column of the chart is provided solely for

12  descriptive purposes. Reclassification of the degree of the

13  felony through the application of s. 775.0845, s. 775.087, s.

14  775.0875, s. 794.023, or any other law that provides an

15  enhanced penalty for a felony offense, to any offense listed

16  in the offense severity ranking chart in this section shall

17  not cause the offense to become unlisted and is not subject to

18  the provisions of s. 921.0023.

19         Section 3.  For the purpose of incorporating the

20  amendment to section 775.087, Florida Statutes, in references

21  thereto, paragraph (b) of subsection (1) of section 921.0024,

22  Florida Statutes, 1998 Supplement, is reenacted to read:

23         921.0024  Criminal Punishment Code; worksheet

24  computations; scoresheets.--

25         (1)

26

27                       (b)  WORKSHEET KEY:

28

29  Legal status points are assessed when any form of legal status

30  existed at the time the offender committed an offense before

31


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  1  the court for sentencing. Four (4) sentence points are

  2  assessed for an offender's legal status.

  3

  4  Community sanction violation points are assessed when a

  5  community sanction violation is before the court for

  6  sentencing.  Six (6) sentence points are assessed for each

  7  community sanction violation, and each successive community

  8  sanction violation; however, if the community sanction

  9  violation includes a new felony conviction before the

10  sentencing court, twelve (12) community sanction violation

11  points are assessed for such violation, and for each

12  successive community sanction violation involving a new felony

13  conviction. Multiple counts of community sanction violations

14  before the sentencing court shall not be a basis for

15  multiplying the assessment of community sanction violation

16  points.

17

18  Prior serious felony points: If the offender has a primary

19  offense or any additional offense ranked in level 8, level 9,

20  or level 10, and one or more prior serious felonies, a single

21  assessment of 30 points shall be added. For purposes of this

22  section, a prior serious felony is an offense in the

23  offender's prior record that is ranked in level 8, level 9, or

24  level 10 under s. 921.0022 or s. 921.0023 and for which the

25  offender is serving a sentence of confinement, supervision, or

26  other sanction or for which the offender's date of release

27  from confinement, supervision, or other sanction, whichever is

28  later, is within 3 years before the date the primary offense

29  or any additional offense was committed.

30

31


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  1  Prior capital felony points:  If the offender has one or more

  2  prior capital felonies in the offender's criminal record,

  3  points shall be added to the subtotal sentence points of the

  4  offender equal to twice the number of points the offender

  5  receives for the primary offense and any additional offense.

  6  A prior capital felony in the offender's criminal record is a

  7  previous capital felony offense for which the offender has

  8  entered a plea of nolo contendere or guilty or has been found

  9  guilty; or a felony in another jurisdiction which is a capital

10  felony in that jurisdiction, or would be a capital felony if

11  the offense were committed in this state.

12

13  Possession of a firearm, semiautomatic firearm, or machine

14  gun:  If the offender is convicted of committing or attempting

15  to commit any felony other than those enumerated in s.

16  775.087(2) while having in his possession: a firearm as

17  defined in s. 790.001(6), an additional 18 sentence points are

18  assessed; or if the offender is convicted of committing or

19  attempting to commit any felony other than those enumerated in

20  s. 775.087(3) while having in his possession a semiautomatic

21  firearm as defined in s. 775.087(3) or a machine gun as

22  defined in s. 790.001(9), an additional 25 sentence points are

23  assessed.

24

25  Sentencing multipliers:

26

27  Drug trafficking:  If the primary offense is drug trafficking

28  under s. 893.135, the subtotal sentence points are multiplied,

29  at the discretion of the court, for a level 7 or level 8

30  offense, by 1.5.  The state attorney may move the sentencing

31  court to reduce or suspend the sentence of a person convicted


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    CS for SB 194                                  First Engrossed



  1  of a level 7 or level 8 offense, if the offender provides

  2  substantial assistance as described in s. 893.135(4).

  3

  4  Law enforcement protection:  If the primary offense is a

  5  violation of the Law Enforcement Protection Act under s.

  6  775.0823(2), the subtotal sentence points are multiplied by

  7  2.5.  If the primary offense is a violation of s. 775.0823(3),

  8  (4), (5), (6), (7), or (8), the subtotal sentence points are

  9  multiplied by 2.0. If the primary offense is a violation of s.

10  784.07(3) or s. 775.0875(1), or of the Law Enforcement

11  Protection Act under s. 775.0823(9) or (10), the subtotal

12  sentence points are multiplied by 1.5.

13

14  Grand theft of a motor vehicle:  If the primary offense is

15  grand theft of the third degree involving a motor vehicle and

16  in the offender's prior record, there are three or more grand

17  thefts of the third degree involving a motor vehicle, the

18  subtotal sentence points are multiplied by 1.5.

19

20  Criminal street gang member:  If the offender is convicted of

21  the primary offense and is found to have been a member of a

22  criminal street gang at the time of the commission of the

23  primary offense pursuant to s. 874.04, the subtotal sentence

24  points are multiplied by 1.5.

25

26  Domestic violence in the presence of a child:  If the offender

27  is convicted of the primary offense and the primary offense is

28  a crime of domestic violence, as defined in s. 741.28, which

29  was committed in the presence of a child under 16 years of age

30  who is a family household member as defined in s. 741.28(2)

31


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    CS for SB 194                                  First Engrossed



  1  with the victim or perpetrator, the subtotal sentence points

  2  are multiplied, at the discretion of the court, by 1.5.

  3         Section 4.  For the purpose of incorporating the

  4  amendment to section 775.087, Florida Statutes, in references

  5  thereto, subsection (3) of section 947.146, Florida Statutes,

  6  1998 Supplement, is reenacted to read:

  7         947.146  Control Release Authority.--

  8         (3)  Within 120 days prior to the date the state

  9  correctional system is projected pursuant to s. 216.136 to

10  exceed 99 percent of total capacity, the authority shall

11  determine eligibility for and establish a control release date

12  for an appropriate number of parole ineligible inmates

13  committed to the department and incarcerated within the state

14  who have been determined by the authority to be eligible for

15  discretionary early release pursuant to this section.  In

16  establishing control release dates, it is the intent of the

17  Legislature that the authority prioritize consideration of

18  eligible inmates closest to their tentative release date.  The

19  authority shall rely upon commitment data on the offender

20  information system maintained by the department to initially

21  identify inmates who are to be reviewed for control release

22  consideration.  The authority may use a method of objective

23  risk assessment in determining if an eligible inmate should be

24  released.  Such assessment shall be a part of the department's

25  management information system. However, the authority shall

26  have sole responsibility for determining control release

27  eligibility, establishing a control release date, and

28  effectuating the release of a sufficient number of inmates to

29  maintain the inmate population between 99 percent and 100

30  percent of total capacity.  Inmates who are ineligible for

31


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    CS for SB 194                                  First Engrossed



  1  control release are inmates who are parole eligible or inmates

  2  who:

  3         (a)  Are serving a sentence that includes a mandatory

  4  minimum provision for a capital offense or drug trafficking

  5  offense and have not served the number of days equal to the

  6  mandatory minimum term less any jail-time credit awarded by

  7  the court;

  8         (b)  Are serving the mandatory minimum portion of a

  9  sentence enhanced under s. 775.087(2) or (3), or s. 784.07(3);

10         (c)  Are convicted, or have been previously convicted,

11  of committing or attempting to commit sexual battery, incest,

12  or any of the following lewd or indecent assaults or acts:

13  masturbating in public; exposing the sexual organs in a

14  perverted manner; or nonconsensual handling or fondling of the

15  sexual organs of another person;

16         (d)  Are convicted, or have been previously convicted,

17  of committing or attempting to commit assault, aggravated

18  assault, battery, or aggravated battery, and a sex act was

19  attempted or completed during commission of such offense;

20         (e)  Are convicted, or have been previously convicted,

21  of committing or attempting to commit kidnapping, burglary, or

22  murder, and the offense was committed with the intent to

23  commit sexual battery or a sex act was attempted or completed

24  during commission of the offense;

25         (f)  Are convicted, or have been previously convicted,

26  of committing or attempting to commit false imprisonment upon

27  a child under the age of 13 and, in the course of committing

28  the offense, the inmate committed aggravated child abuse,

29  sexual battery against the child, or a lewd, lascivious, or

30  indecent assault or act upon or in the presence of the child;

31


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    CS for SB 194                                  First Engrossed



  1         (g)  Are sentenced, have previously been sentenced, or

  2  have been sentenced at any time under s. 775.084, or have been

  3  sentenced at any time in another jurisdiction as a habitual

  4  offender;

  5         (h)  Are convicted, or have been previously convicted,

  6  of committing or attempting to commit assault, aggravated

  7  assault, battery, aggravated battery, kidnapping,

  8  manslaughter, or murder against an officer as defined in s.

  9  943.10(1), (2), (3), (6), (7), (8), or (9); against a state

10  attorney or assistant state attorney; or against a justice or

11  judge of a court described in Art. V of the State

12  Constitution; or against an officer, judge, or state attorney

13  employed in a comparable position by any other jurisdiction;

14  or

15         (i)  Are convicted, or have been previously convicted,

16  of committing or attempting to commit murder in the first,

17  second, or third degree under s. 782.04(1), (2), (3), or (4),

18  or have ever been convicted of any degree of murder or

19  attempted murder in another jurisdiction;

20         (j)  Are convicted, or have been previously convicted,

21  of DUI manslaughter under s. 316.193(3)(c)3., and are

22  sentenced, or have been sentenced at any time, as a habitual

23  offender for such offense, or have been sentenced at any time

24  in another jurisdiction as a habitual offender for such

25  offense;

26         (k)1.  Are serving a sentence for an offense committed

27  on or after January 1, 1994, for a violation of the Law

28  Enforcement Protection Act under s. 775.0823(2), (3), (4), or

29  (5), and the subtotal of the offender's sentence points is

30  multiplied pursuant to former s. 921.0014 or s. 921.0024;

31


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    CS for SB 194                                  First Engrossed



  1         2.  Are serving a sentence for an offense committed on

  2  or after October 1, 1995, for a violation of the Law

  3  Enforcement Protection Act under s. 775.0823(2), (3), (4),

  4  (5), (6), (7), or (8), and the subtotal of the offender's

  5  sentence points is multiplied pursuant to former s. 921.0014

  6  or s. 921.0024;

  7         (l)  Are serving a sentence for an offense committed on

  8  or after January 1, 1994, for possession of a firearm,

  9  semiautomatic firearm, or machine gun in which additional

10  points are added to the subtotal of the offender's sentence

11  points pursuant to former s. 921.0014 or s. 921.0024; or

12         (m)  Are convicted, or have been previously convicted,

13  of committing or attempting to commit manslaughter,

14  kidnapping, robbery, carjacking, home-invasion robbery, or a

15  burglary under s. 810.02(2).

16

17  In making control release eligibility determinations under

18  this subsection, the authority may rely on any document

19  leading to or generated during the course of the criminal

20  proceedings, including, but not limited to, any presentence or

21  postsentence investigation or any information contained in

22  arrest reports relating to circumstances of the offense.

23         Section 5.  In order to inform the public and to deter

24  and prevent crime in the state, the Executive Office of the

25  Governor shall place public service announcements in visible

26  local media throughout the state explaining the penalties

27  provided in this act.

28         Section 6.  This act shall take effect upon becoming a

29  law.

30

31


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