Florida Senate - 2016                   (PROPOSED BILL) SPB 7066
       
       
        
       FOR CONSIDERATION By the Committee on Criminal Justice
       
       591-01710D-16                                         20167066pb
    1                        A bill to be entitled                      
    2         An act relating to criminal justice; amending s.
    3         775.082, F.S.; requiring a defendant who is sentenced
    4         for a primary offense of possession of a controlled
    5         substance committed on or after a specified date to be
    6         sentenced to a nonstate prison sanction under certain
    7         circumstances unless the court makes specified written
    8         findings; defining the term “possession of a
    9         controlled substance”; authorizing a defendant to move
   10         the sentencing court to depart from a mandatory
   11         minimum term of imprisonment or a mandatory fine, if
   12         the offense is committed on or after a specified date;
   13         authorizing the state attorney to file an objection to
   14         the motion; authorizing the sentencing court to grant
   15         the motion if the court finds that the defendant has
   16         demonstrated by a preponderance of the evidence that
   17         specified criteria are met; defining the term
   18         “coercion”; providing applicability; amending s.
   19         921.002, F.S.; revising a principle of the Criminal
   20         Punishment Code relating to a prisoner’s required
   21         minimum term of imprisonment; amending s. 944.275,
   22         F.S.; revising the incentive gain-time that the
   23         Department of Corrections may grant a prisoner for
   24         offenses committed on or after a specified date;
   25         providing exceptions; providing an effective date.
   26          
   27  Be It Enacted by the Legislature of the State of Florida:
   28  
   29         Section 1. Present subsection (11) of section 775.082,
   30  Florida Statutes, is redesignated as subsection (13), and new
   31  subsections (11) and (12) are added to that section, to read:
   32         775.082 Penalties; applicability of sentencing structures;
   33  mandatory minimum sentences for certain reoffenders previously
   34  released from prison.—
   35         (11) If a defendant is sentenced for a primary offense of
   36  possession of a controlled substance committed on or after
   37  October 1, 2016, and if the total sentence points pursuant to s.
   38  921.0024 are 60 points or fewer, the court must sentence the
   39  offender to a nonstate prison sanction. However, if the court
   40  makes written findings that a nonstate prison sanction could
   41  present a danger to the public, the court may sentence the
   42  offender to a state correctional facility pursuant to this
   43  section. As used in this subsection, the term “possession of a
   44  controlled substance” means possession of a controlled substance
   45  in violation of s. 893.13 but does not include possession with
   46  intent to sell, manufacture, or deliver a controlled substance
   47  or possession of a controlled substance in violation of s.
   48  893.135.
   49         (12)(a) A person who is convicted of an offense committed
   50  on or after October 1, 2016, which requires that a mandatory
   51  minimum term of imprisonment be imposed may move the sentencing
   52  court to depart from the mandatory minimum term and, if
   53  applicable, the mandatory fine. The state attorney may file an
   54  objection to the motion.
   55         (b) The court may grant the motion if the court finds that
   56  the defendant has demonstrated by a preponderance of the
   57  evidence that all of the following criteria are met:
   58         1.The defendant has not previously received a departure
   59  under this section and has not been previously convicted of the
   60  same offense for which the defendant requests a departure under
   61  this section;
   62         2.The offense is not a forcible felony as defined in s.
   63  776.08 or a misdemeanor that involves the use or threat of
   64  physical force or violence against another person. However,
   65  burglary of an unoccupied structure or conveyance is not
   66  considered a forcible felony for purposes of this subparagraph;
   67         3.The offense does not involve physical injury to another
   68  person or coercion of another person; and
   69         4.The offense does not involve a victim who is a minor or
   70  the use of a minor in the commission of the offense.
   71         (c)As used in this subsection, the term “coercion” means:
   72         1.Using or threatening to use physical force against
   73  another person; or
   74         2. Restraining or confining or threatening to restrain or
   75  confine another person without lawful authority and against his
   76  or her will.
   77         (d)This subsection does not apply to sentencing pursuant
   78  to subsection (9), s. 775.0837, s. 775.084, or s. 794.0115.
   79         Section 2. Paragraph (e) of subsection (1) of section
   80  921.002, Florida Statutes, is amended to read:
   81         921.002 The Criminal Punishment Code.—The Criminal
   82  Punishment Code shall apply to all felony offenses, except
   83  capital felonies, committed on or after October 1, 1998.
   84         (1) The provision of criminal penalties and of limitations
   85  upon the application of such penalties is a matter of
   86  predominantly substantive law and, as such, is a matter properly
   87  addressed by the Legislature. The Legislature, in the exercise
   88  of its authority and responsibility to establish sentencing
   89  criteria, to provide for the imposition of criminal penalties,
   90  and to make the best use of state prisons so that violent
   91  criminal offenders are appropriately incarcerated, has
   92  determined that it is in the best interest of the state to
   93  develop, implement, and revise a sentencing policy. The Criminal
   94  Punishment Code embodies the principles that:
   95         (e) The sentence imposed by the sentencing judge reflects
   96  the length of actual time to be served, shortened only by the
   97  application of incentive and meritorious gain-time as provided
   98  by law, and may not be shortened if the defendant would
   99  consequently serve less than 65 percent of his or her term of
  100  imprisonment as provided in s. 944.275(4)(b)4.a. or 85 percent
  101  of his or her term of imprisonment as provided in s.
  102  944.275(4)(b)3. or s. 944.275(4)(b)4.b. The provisions of
  103  chapter 947, relating to parole, shall not apply to persons
  104  sentenced under the Criminal Punishment Code.
  105         Section 3. Paragraph (b) of subsection (4) of section
  106  944.275, Florida Statutes, is amended to read:
  107         944.275 Gain-time.—
  108         (4)
  109         (b) For each month in which an inmate works diligently,
  110  participates in training, uses time constructively, or otherwise
  111  engages in positive activities, the department may grant
  112  incentive gain-time in accordance with this paragraph. The rate
  113  of incentive gain-time in effect on the date the inmate
  114  committed the offense that which resulted in his or her
  115  incarceration shall be the inmate’s rate of eligibility to earn
  116  incentive gain-time throughout the period of incarceration and
  117  may shall not be altered by a subsequent change in the severity
  118  level of the offense for which the inmate was sentenced.
  119         1. For sentences imposed for offenses committed before
  120  prior to January 1, 1994, up to 20 days of incentive gain-time
  121  may be granted. If granted, such gain-time shall be credited and
  122  applied monthly.
  123         2. For sentences imposed for offenses committed on or after
  124  January 1, 1994, and before October 1, 1995:
  125         a. For offenses ranked in offense severity levels 1 through
  126  7, under former s. 921.0012 or former s. 921.0013, up to 25 days
  127  of incentive gain-time may be granted. If granted, such gain
  128  time shall be credited and applied monthly.
  129         b. For offenses ranked in offense severity levels 8, 9, and
  130  10, under former s. 921.0012 or former s. 921.0013, up to 20
  131  days of incentive gain-time may be granted. If granted, such
  132  gain-time shall be credited and applied monthly.
  133         3. For sentences imposed for offenses committed on or after
  134  October 1, 1995, the department may grant up to 10 days per
  135  month of incentive gain-time, except that no prisoner is
  136  eligible to earn any type of gain-time in an amount that would
  137  cause a sentence to expire, end, or terminate, or that would
  138  result in a prisoner’s release, before prior to serving a
  139  minimum of 85 percent of the sentence imposed. For purposes of
  140  this subparagraph, credits awarded by the court for time
  141  physically incarcerated shall be credited toward satisfaction of
  142  85 percent of the sentence imposed. Except as provided by this
  143  section, a prisoner may shall not accumulate further gain-time
  144  awards at any point when the tentative release date is the same
  145  as that date at which the prisoner will have served 85 percent
  146  of the sentence imposed. State prisoners sentenced to life
  147  imprisonment shall be incarcerated for the rest of their natural
  148  lives, unless granted pardon or clemency.
  149         4.For sentences imposed for offenses committed on or after
  150  October 1, 2016, the department may grant up to 20 days per
  151  month of incentive gain-time, except that:
  152         a.If the offense is a nonviolent felony, as defined in s.
  153  948.08(6), the prisoner is not eligible to earn any type of
  154  gain-time in an amount that would cause a sentence to expire,
  155  end, or terminate, or that would result in a prisoner’s release,
  156  before serving a minimum of 65 percent of the sentence imposed.
  157  For purposes of this sub-subparagraph, credits awarded by the
  158  court for time physically incarcerated shall be credited toward
  159  satisfaction of 65 percent of the sentence imposed. A prisoner
  160  who is granted incentive gain-time pursuant to this sub
  161  subparagraph may not accumulate further gain-time awards at any
  162  point when the tentative release date is the same as that date
  163  at which the prisoner will have served 65 percent of the
  164  sentence imposed. State prisoners sentenced to life imprisonment
  165  shall be incarcerated for the rest of their natural lives,
  166  unless granted pardon or clemency.
  167         b.If the offense is not a nonviolent felony, as defined in
  168  s. 948.08(6), the prisoner is not eligible to earn any type of
  169  gain-time in an amount that would cause a sentence to expire,
  170  end, or terminate, or that would result in a prisoner’s release,
  171  before serving a minimum of 85 percent of the sentence imposed.
  172  For purposes of this sub-subparagraph, credits awarded by the
  173  court for time physically incarcerated shall be credited toward
  174  satisfaction of 85 percent of the sentence imposed. A prisoner
  175  who is granted incentive gain-time pursuant to this sub
  176  subparagraph may not accumulate further gain-time awards at any
  177  point when the tentative release date is the same as that date
  178  at which the prisoner will have served 85 percent of the
  179  sentence imposed. State prisoners sentenced to life imprisonment
  180  shall be incarcerated for the rest of their natural lives,
  181  unless granted pardon or clemency.
  182         Section 4. This act shall take effect October 1, 2016.