Florida Senate - 2017                        COMMITTEE AMENDMENT
       Bill No. SB 150
       
       
       
       
       
       
                                Ì164354+Î164354                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/03/2017           .                                
                                       .                                
                                       .                                
                                       .                                
       —————————————————————————————————————————————————————————————————




       —————————————————————————————————————————————————————————————————
       The Committee on Criminal Justice (Bracy) recommended the
       following:
       
    1         Senate Amendment to Amendment (423494) (with title
    2  amendment)
    3  
    4         Between lines 2067 and 2068
    5  insert:
    6         Section 8. Present subsection (11) of section 775.082,
    7  Florida Statutes, is redesignated as subsection (12), and a new
    8  subsection (11) is added to that section, to read:
    9         775.082 Penalties; applicability of sentencing structures;
   10  mandatory minimum sentences for certain reoffenders previously
   11  released from prison.—
   12         (11) If a defendant is sentenced for a primary offense of
   13  possession of a controlled substance committed on or after
   14  October 1, 2017, and if the total sentence points pursuant to s.
   15  921.0024 are 60 points or fewer, the court must sentence the
   16  offender to a nonstate prison sanction. However, if the court
   17  makes written findings that a nonstate prison sanction could
   18  present a danger to the public, the court may sentence the
   19  offender to a state correctional facility pursuant to this
   20  section. As used in this subsection, the term “possession of a
   21  controlled substance” means possession of a controlled substance
   22  in violation of s. 893.13, but does not include possession with
   23  intent to sell, manufacture, or deliver a controlled substance
   24  or possession of a controlled substance in violation of s.
   25  893.135.
   26         Section 9. Section 921.0026, Florida Statutes, is amended
   27  to read:
   28         921.0026 Mitigating circumstances.—This section applies to
   29  any felony offense, except any capital felony, committed on or
   30  after October 1, 1998.
   31         (1) A downward departure from the lowest permissible
   32  sentence, as calculated according to the total sentence points
   33  pursuant to s. 921.0024, is prohibited unless there are
   34  circumstances or factors that reasonably justify the downward
   35  departure. Mitigating factors to be considered include, but are
   36  not limited to, those listed in subsection (2). The imposition
   37  of a sentence below the lowest permissible sentence is subject
   38  to appellate review under chapter 924, but the extent of
   39  downward departure is not subject to appellate review.
   40         (2) Mitigating circumstances under which a departure from
   41  the lowest permissible sentence is reasonably justified include,
   42  but are not limited to:
   43         (a) The departure results from a legitimate, uncoerced plea
   44  bargain.
   45         (b) The defendant was an accomplice to the offense and was
   46  a relatively minor participant in the criminal conduct.
   47         (c) The capacity of the defendant to appreciate the
   48  criminal nature of the conduct or to conform that conduct to the
   49  requirements of law was substantially impaired.
   50         (d) For an offense committed on or after October 1, 1998,
   51  but before October 1, 2017, the defendant requires specialized
   52  treatment for a mental disorder that is unrelated to substance
   53  abuse or addiction or for a physical disability, and the
   54  defendant is amenable to treatment.
   55         (e) For an offense committed on or after October 1, 2017,
   56  the defendant requires specialized treatment for an addiction, a
   57  mental disorder, or a physical disability, and the defendant is
   58  amenable to treatment.
   59         (f)(e) The need for payment of restitution to the victim
   60  outweighs the need for a prison sentence.
   61         (g)(f) The victim was an initiator, willing participant,
   62  aggressor, or provoker of the incident.
   63         (h)(g) The defendant acted under extreme duress or under
   64  the domination of another person.
   65         (i)(h) Before the identity of the defendant was determined,
   66  the victim was substantially compensated.
   67         (j)(i) The defendant cooperated with the state to resolve
   68  the current offense or any other offense.
   69         (k)(j) The offense was committed in an unsophisticated
   70  manner and was an isolated incident for which the defendant has
   71  shown remorse.
   72         (l)(k) At the time of the offense the defendant was too
   73  young to appreciate the consequences of the offense.
   74         (m)(l) The defendant is to be sentenced as a youthful
   75  offender.
   76         (n)(m)For an offense committed on or after October 1,
   77  1998, but before October 1, 2017, the defendant’s offense is a
   78  nonviolent felony, the defendant’s Criminal Punishment Code
   79  scoresheet total sentence points under s. 921.0024 are 60 points
   80  or fewer, and the court determines that the defendant is
   81  amenable to the services of a postadjudicatory treatment-based
   82  drug court program and is otherwise qualified to participate in
   83  the program as part of the sentence. Except as provided in this
   84  paragraph, the defendant’s substance abuse or addiction,
   85  including intoxication at the time of the offense, is not a
   86  mitigating factor for an offense committed on or after October
   87  1, 1998, but before October 1, 2017, and does not, under any
   88  circumstance, justify a downward departure from the permissible
   89  sentencing range For purposes of this paragraph, the term
   90  “nonviolent felony” has the same meaning as provided in s.
   91  948.08(6).
   92         (o)(n) The defendant was making a good faith effort to
   93  obtain or provide medical assistance for an individual
   94  experiencing a drug-related overdose.
   95         (3) As used in subsection (2), the term “nonviolent felony”
   96  has the same meaning as provided in s. 948.08 Except as provided
   97  in paragraph (2)(m), the defendant’s substance abuse or
   98  addiction, including intoxication at the time of the offense, is
   99  not a mitigating factor under subsection (2) and does not, under
  100  any circumstances, justify a downward departure from the
  101  permissible sentencing range.
  102         Section 10. Subsection (7) of section 948.01, Florida
  103  Statutes, is amended to read:
  104         948.01 When court may place defendant on probation or into
  105  community control.—
  106         (7)(a) Notwithstanding s. 921.0024 and effective for
  107  offenses committed on or after July 1, 2009, the sentencing
  108  court may place the defendant into a postadjudicatory treatment
  109  based drug court program if the defendant’s Criminal Punishment
  110  Code scoresheet total sentence points under s. 921.0024 are 60
  111  points or fewer, the offense is a nonviolent felony, the
  112  defendant is amenable to substance abuse treatment, and the
  113  defendant otherwise qualifies under s. 397.334(3). The
  114  satisfactory completion of the program shall be a condition of
  115  the defendant’s probation or community control. As used in this
  116  subsection, the term “nonviolent felony” means a third degree
  117  felony violation under chapter 810 or any other felony offense
  118  that is not a forcible felony as defined in s. 776.08.
  119         (b) Notwithstanding s. 921.0024 and effective for offenses
  120  committed on or after October 1, 2017, the sentencing court must
  121  place the defendant into a postadjudicatory treatment-based drug
  122  court program, into residential drug treatment, or on drug
  123  offender probation if the defendant’s Criminal Punishment Code
  124  scoresheet total sentence points under s. 921.0024 are 60 points
  125  or fewer, the offense is a nonviolent felony, the defendant is
  126  amenable to substance abuse treatment, the defendant’s criminal
  127  behavior is related to substance abuse or addiction, and the
  128  defendant otherwise qualifies under s. 397.334(3). The
  129  satisfactory completion of the program must be a condition of
  130  the defendant’s probation or community control.
  131         (c)(b)In order to be placed in a postadjudicatory
  132  treatment-based drug court program under paragraph (a) or
  133  paragraph (b), the defendant must be fully advised of the
  134  purpose of the program, and the defendant must agree to enter
  135  the program. The original sentencing court shall relinquish
  136  jurisdiction of the defendant’s case to the postadjudicatory
  137  drug court program until the defendant is no longer active in
  138  the program, the case is returned to the sentencing court due to
  139  the defendant’s termination from the program for failure to
  140  comply with the terms thereof, or the defendant’s sentence is
  141  completed.
  142         (d) As used in this subsection, the term “nonviolent
  143  felony” means a third degree felony violation under chapter 810
  144  or any other felony offense that is not a forcible felony as
  145  defined in s. 776.08.
  146         Section 11. For the purpose of incorporating the amendment
  147  made by this act to section 921.0026, Florida Statutes, in
  148  references thereto, paragraphs (b) and (c) of subsection (1) of
  149  section 775.08435, Florida Statutes, are reenacted to read:
  150         775.08435 Prohibition on withholding adjudication in felony
  151  cases.—
  152         (1) Notwithstanding the provisions of s. 948.01, the court
  153  may not withhold adjudication of guilt upon the defendant for:
  154         (b) A second degree felony offense unless:
  155         1. The state attorney requests in writing that adjudication
  156  be withheld; or
  157         2. The court makes written findings that the withholding of
  158  adjudication is reasonably justified based on circumstances or
  159  factors in accordance with those set forth in s. 921.0026.
  160  
  161  Notwithstanding any provision of this section, no adjudication
  162  of guilt shall be withheld for a second degree felony offense if
  163  the defendant has a prior withholding of adjudication for a
  164  felony that did not arise from the same transaction as the
  165  current felony offense.
  166         (c) A third degree felony offense if the defendant has a
  167  prior withholding of adjudication for a felony offense that did
  168  not arise from the same transaction as the current felony
  169  offense unless:
  170         1. The state attorney requests in writing that adjudication
  171  be withheld; or
  172         2. The court makes written findings that the withholding of
  173  adjudication is reasonably justified based on circumstances or
  174  factors in accordance with those set forth in s. 921.0026.
  175  
  176  Notwithstanding any provision of this section, no adjudication
  177  of guilt shall be withheld for a third degree felony offense if
  178  the defendant has two or more prior withholdings of adjudication
  179  for a felony that did not arise from the same transaction as the
  180  current felony offense.
  181         Section 12. For the purpose of incorporating the amendment
  182  made by this act to section 921.0026, Florida Statutes, in a
  183  reference thereto, subsection (3) of section 921.002, Florida
  184  Statutes, is reenacted to read:
  185         921.002 The Criminal Punishment Code.—The Criminal
  186  Punishment Code shall apply to all felony offenses, except
  187  capital felonies, committed on or after October 1, 1998.
  188         (3) A court may impose a departure below the lowest
  189  permissible sentence based upon circumstances or factors that
  190  reasonably justify the mitigation of the sentence in accordance
  191  with s. 921.0026. The level of proof necessary to establish
  192  facts supporting the mitigation of a sentence is a preponderance
  193  of the evidence. When multiple reasons exist to support the
  194  mitigation, the mitigation shall be upheld when at least one
  195  circumstance or factor justifies the mitigation regardless of
  196  the presence of other circumstances or factors found not to
  197  justify mitigation. Any sentence imposed below the lowest
  198  permissible sentence must be explained in writing by the trial
  199  court judge.
  200         Section 13. For the purpose of incorporating the amendment
  201  made by this act to section 921.0026, Florida Statutes, in a
  202  reference thereto, subsection (1) of section 921.00265, Florida
  203  Statutes, is reenacted to read:
  204         921.00265 Recommended sentences; departure sentences;
  205  mandatory minimum sentences.—This section applies to any felony
  206  offense, except any capital felony, committed on or after
  207  October 1, 1998.
  208         (1) The lowest permissible sentence provided by
  209  calculations from the total sentence points pursuant to s.
  210  921.0024(2) is assumed to be the lowest appropriate sentence for
  211  the offender being sentenced. A departure sentence is prohibited
  212  unless there are mitigating circumstances or factors present as
  213  provided in s. 921.0026 which reasonably justify a departure.
  214         Section 14. For the purpose of incorporating the amendment
  215  made by this act to section 948.01, Florida Statutes, in
  216  references thereto, subsection (2) and paragraph (a) of
  217  subsection (4) of section 394.47892, Florida Statutes, are
  218  reenacted to read:
  219         394.47892 Mental health court programs.—
  220         (2) Mental health court programs may include pretrial
  221  intervention programs as provided in ss. 948.08, 948.16, and
  222  985.345, postadjudicatory mental health court programs as
  223  provided in ss. 948.01 and 948.06, and review of the status of
  224  compliance or noncompliance of sentenced defendants through a
  225  mental health court program.
  226         (4)(a) Entry into a postadjudicatory mental health court
  227  program as a condition of probation or community control
  228  pursuant to s. 948.01 or s. 948.06 must be based upon the
  229  sentencing court’s assessment of the defendant’s criminal
  230  history, mental health screening outcome, amenability to the
  231  services of the program, and total sentence points; the
  232  recommendation of the state attorney and the victim, if any; and
  233  the defendant’s agreement to enter the program.
  234         Section 15. For the purpose of incorporating the amendment
  235  made by this act to section 948.01, Florida Statutes, in
  236  references thereto, paragraph (a) of subsection (3) and
  237  subsection (5) of section 397.334, Florida Statutes, are
  238  reenacted to read:
  239         397.334 Treatment-based drug court programs.—
  240         (3)(a) Entry into any postadjudicatory treatment-based drug
  241  court program as a condition of probation or community control
  242  pursuant to s. 948.01, s. 948.06, or s. 948.20 must be based
  243  upon the sentencing court’s assessment of the defendant’s
  244  criminal history, substance abuse screening outcome, amenability
  245  to the services of the program, total sentence points, the
  246  recommendation of the state attorney and the victim, if any, and
  247  the defendant’s agreement to enter the program.
  248         (5) Treatment-based drug court programs may include
  249  pretrial intervention programs as provided in ss. 948.08,
  250  948.16, and 985.345, treatment-based drug court programs
  251  authorized in chapter 39, postadjudicatory programs as provided
  252  in ss. 948.01, 948.06, and 948.20, and review of the status of
  253  compliance or noncompliance of sentenced offenders through a
  254  treatment-based drug court program. While enrolled in a
  255  treatment-based drug court program, the participant is subject
  256  to a coordinated strategy developed by a drug court team under
  257  subsection (4). The coordinated strategy may include a protocol
  258  of sanctions that may be imposed upon the participant for
  259  noncompliance with program rules. The protocol of sanctions may
  260  include, but is not limited to, placement in a substance abuse
  261  treatment program offered by a licensed service provider as
  262  defined in s. 397.311 or in a jail-based treatment program or
  263  serving a period of secure detention under chapter 985 if a
  264  child or a period of incarceration within the time limits
  265  established for contempt of court if an adult. The coordinated
  266  strategy must be provided in writing to the participant before
  267  the participant agrees to enter into a treatment-based drug
  268  court program.
  269         Section 16. For the purpose of incorporating the amendment
  270  made by this act to section 948.01, Florida Statutes, in a
  271  reference thereto, paragraph (a) of subsection (5) of section
  272  910.035, Florida Statutes, is reenacted to read:
  273         910.035 Transfer from county for plea, sentence, or
  274  participation in a problem-solving court.—
  275         (5) TRANSFER FOR PARTICIPATION IN A PROBLEM-SOLVING COURT.—
  276         (a) For purposes of this subsection, the term “problem
  277  solving court” means a drug court pursuant to s. 948.01, s.
  278  948.06, s. 948.08, s. 948.16, or s. 948.20; a military veterans’
  279  and servicemembers’ court pursuant to s. 394.47891, s. 948.08,
  280  s. 948.16, or s. 948.21; a mental health court program pursuant
  281  to s. 394.47892, s. 948.01, s. 948.06, s. 948.08, or s. 948.16;
  282  or a delinquency pretrial intervention court program pursuant to
  283  s. 985.345.
  284         Section 17. For the purpose of incorporating the amendment
  285  made by this act to section 948.01, Florida Statutes, in a
  286  reference thereto, paragraph (c) of subsection (1) of section
  287  921.187, Florida Statutes, is reenacted to read:
  288         921.187 Disposition and sentencing; alternatives;
  289  restitution.—
  290         (1) The alternatives provided in this section for the
  291  disposition of criminal cases shall be used in a manner that
  292  will best serve the needs of society, punish criminal offenders,
  293  and provide the opportunity for rehabilitation. If the offender
  294  does not receive a state prison sentence, the court may:
  295         (c) Place the offender on probation with or without an
  296  adjudication of guilt pursuant to s. 948.01.
  297         Section 18. For the purpose of incorporating the amendment
  298  made by this act to section 948.01, Florida Statutes, in a
  299  reference thereto, section 943.04352, Florida Statutes, is
  300  reenacted to read:
  301         943.04352 Search of registration information regarding
  302  sexual predators and sexual offenders required when placement on
  303  misdemeanor probation.—When the court places a defendant on
  304  misdemeanor probation pursuant to ss. 948.01 and 948.15, the
  305  public or private entity providing probation services must
  306  conduct a search of the probationer’s name or other identifying
  307  information against the registration information regarding
  308  sexual predators and sexual offenders maintained by the
  309  Department of Law Enforcement under s. 943.043. The probation
  310  services provider may conduct the search using the Internet site
  311  maintained by the Department of Law Enforcement. Also, a
  312  national search must be conducted through the Dru Sjodin
  313  National Sex Offender Public Website maintained by the United
  314  States Department of Justice.
  315  
  316  ================= T I T L E  A M E N D M E N T ================
  317  And the title is amended as follows:
  318         Delete line 2537
  319  and insert:
  320         provisions; amending s. 775.082, F.S.; requiring that
  321         a court sentence a defendant who is convicted of a
  322         primary offense of possession of a controlled
  323         substance committed on or after a specified date to a
  324         nonstate prison sanction under certain circumstances;
  325         defining the term “possession of a controlled
  326         substance”; amending s. 921.0026, F.S.; revising the
  327         mitigating circumstances under which a departure from
  328         the lowest permissible sentence is reasonably
  329         justified; making technical changes; amending s.
  330         948.01, F.S.; requiring a sentencing court to place
  331         certain defendants who commit an offense on or after a
  332         specified date into a postadjudicatory treatment-based
  333         drug court program, into residential drug treatment,
  334         or on drug offender probation; making technical
  335         changes; reenacting ss. 775.08435(1)(b) and (c),
  336         921.002(3), and 921.00265(1), F.S., relating to the
  337         prohibition on withholding adjudication in felony
  338         cases, the Criminal Punishment Code, and recommended
  339         and departure sentences, respectively, to incorporate
  340         the amendment made to s. 921.0026, F.S., in references
  341         thereto; reenacting ss. 394.47892(2) and (4)(a),
  342         397.334(3)(a) and (5), 910.035(5)(a), 921.187(1)(c),
  343         and 943.04352, F.S., relating to mental health court
  344         programs, treatment-based drug court programs,
  345         transfer for participation in a problem-solving court,
  346         offender probation with or without adjudication of
  347         guilt, and court placement of a defendant on
  348         misdemeanor probation, respectively, to incorporate
  349         the amendment made to s. 948.01, F.S., in references
  350         thereto; reenacting ss. 39.806(1)(d), 63.089(4)(b),