Florida Senate - 2018                                     SB 866
       
       
        
       By Senator Bracy
       
       
       
       
       
       11-00302B-18                                           2018866__
    1                        A bill to be entitled                      
    2         An act relating to sentencing; amending s. 775.082,
    3         F.S.; revising the threshold of assessed sentence
    4         points below which a court must sentence nonviolent
    5         felony offenders who commit certain offenses on or
    6         after a specified date to a nonstate prison sanction;
    7         providing an exception; amending s. 921.0024, F.S.;
    8         revising the computation of the lowest permissible
    9         sentence under the Criminal Punishment Code for
   10         certain offenses; reenacting ss. 921.00241(1),
   11         921.0026(1) and (2)(m), 921.00265(1), 924.06(1)(e),
   12         948.01(7) and (8), 948.06(2)(i) and (j) and (8)(b),
   13         and 948.20(1), F.S., relating to prison diversion
   14         programs, mitigating circumstances, recommended
   15         sentences, appeals by defendants, placement on
   16         probation or into community control, violations of
   17         probation and community control, and drug offender
   18         probation, respectively, to incorporate the amendment
   19         made to s. 921.0024, F.S., in references thereto;
   20         providing an effective date.
   21          
   22  Be It Enacted by the Legislature of the State of Florida:
   23  
   24         Section 1. Subsection (10) of section 775.082, Florida
   25  Statutes, is amended to read:
   26         775.082 Penalties; applicability of sentencing structures;
   27  mandatory minimum sentences for certain reoffenders previously
   28  released from prison.—
   29         (10) If a defendant is sentenced for an offense committed
   30  on or after October 1, 2018 July 1, 2009, which is a third
   31  degree felony but not a forcible felony as defined in s. 776.08,
   32  and excluding any third degree felony violation under chapter
   33  810, and if the total sentence points pursuant to s. 921.0024
   34  are 44 22 points or fewer, the court must sentence the offender
   35  to a nonstate prison sanction. However, if the jury makes
   36  findings, or the defendant waives the right to a jury trial and
   37  the court makes written findings, that a nonstate prison
   38  sanction could present a danger to the public, the court may
   39  sentence the offender to a state correctional facility pursuant
   40  to this section.
   41         Section 2. Subsection (2) of section 921.0024, Florida
   42  Statutes, is amended to read:
   43         921.0024 Criminal Punishment Code; worksheet computations;
   44  scoresheets.—
   45         (2)(a) The lowest permissible sentence is the minimum
   46  sentence that may be imposed by the trial court, absent a valid
   47  reason for departure.
   48         (b)For offenses committed on or after October 1, 1998, and
   49  before October 1, 2018, the lowest permissible sentence is any
   50  nonstate prison sanction in which the total sentence points
   51  equals or is less than 44 points, unless the court determines
   52  within its discretion that a prison sentence, which may be up to
   53  the statutory maximums for the offenses committed, is
   54  appropriate. When the total sentence points exceeds 44 points,
   55  the lowest permissible sentence in prison months shall be
   56  calculated by subtracting 28 points from the total sentence
   57  points and decreasing the remaining total by 25 percent.
   58         (c) For offenses committed on or after October 1, 2018, the
   59  lowest permissible sentence is any nonstate prison sanction in
   60  which the total sentence points equal or are fewer than 52
   61  points, unless the court determines within its discretion that a
   62  prison sentence, which may be up to the statutory maximums for
   63  the offenses committed, is appropriate. When the total sentence
   64  points exceed 52 points, the lowest permissible sentence in
   65  prison months shall be calculated by subtracting 36 points from
   66  the total sentence points and decreasing the remaining total by
   67  25 percent.
   68         (d) The total sentence points shall be calculated only as a
   69  means of determining the lowest permissible sentence. The
   70  permissible range for sentencing shall be the lowest permissible
   71  sentence up to and including the statutory maximum, as defined
   72  in s. 775.082, for the primary offense and any additional
   73  offenses before the court for sentencing. The sentencing court
   74  may impose such sentences concurrently or consecutively.
   75  However, any sentence to state prison must exceed 1 year. If the
   76  lowest permissible sentence under the code exceeds the statutory
   77  maximum sentence as provided in s. 775.082, the sentence
   78  required by the code must be imposed. If the total sentence
   79  points are greater than or equal to 363, the court may sentence
   80  the offender to life imprisonment. An offender sentenced to life
   81  imprisonment under this section is not eligible for any form of
   82  discretionary early release, except executive clemency or
   83  conditional medical release under s. 947.149.
   84         Section 3. For the purpose of incorporating the amendment
   85  made by this act to section 921.0024, Florida Statutes, in a
   86  reference thereto, subsection (1) of section 921.00241, Florida
   87  Statutes, is reenacted to read:
   88         921.00241 Prison diversion program.—
   89         (1) Notwithstanding s. 921.0024 and effective for offenses
   90  committed on or after July 1, 2009, a court may divert from the
   91  state correctional system an offender who would otherwise be
   92  sentenced to a state facility by sentencing the offender to a
   93  nonstate prison sanction as provided in subsection (2). An
   94  offender may be sentenced to a nonstate prison sanction if the
   95  offender meets all of the following criteria:
   96         (a) The offender’s primary offense is a felony of the third
   97  degree.
   98         (b) The offender’s total sentence points score, as provided
   99  in s. 921.0024, is not more than 48 points, or the offender’s
  100  total sentence points score is 54 points and 6 of those points
  101  are for a violation of probation, community control, or other
  102  community supervision, and do not involve a new violation of
  103  law.
  104         (c) The offender has not been convicted or previously
  105  convicted of a forcible felony as defined in s. 776.08, but
  106  excluding any third degree felony violation under chapter 810.
  107         (d) The offender’s primary offense does not require a
  108  minimum mandatory sentence.
  109         Section 4. For the purpose of incorporating the amendment
  110  made by this act to section 921.0024, Florida Statutes, in
  111  references thereto, subsection (1) and paragraph (m) of
  112  subsection (2) of section 921.0026, Florida Statutes, are
  113  reenacted to read:
  114         921.0026 Mitigating circumstances.—This section applies to
  115  any felony offense, except any capital felony, committed on or
  116  after October 1, 1998.
  117         (1) A downward departure from the lowest permissible
  118  sentence, as calculated according to the total sentence points
  119  pursuant to s. 921.0024, is prohibited unless there are
  120  circumstances or factors that reasonably justify the downward
  121  departure. Mitigating factors to be considered include, but are
  122  not limited to, those listed in subsection (2). The imposition
  123  of a sentence below the lowest permissible sentence is subject
  124  to appellate review under chapter 924, but the extent of
  125  downward departure is not subject to appellate review.
  126         (2) Mitigating circumstances under which a departure from
  127  the lowest permissible sentence is reasonably justified include,
  128  but are not limited to:
  129         (m) The defendant’s offense is a nonviolent felony, the
  130  defendant’s Criminal Punishment Code scoresheet total sentence
  131  points under s. 921.0024 are 60 points or fewer, and the court
  132  determines that the defendant is amenable to the services of a
  133  postadjudicatory treatment-based drug court program and is
  134  otherwise qualified to participate in the program as part of the
  135  sentence. For purposes of this paragraph, the term “nonviolent
  136  felony” has the same meaning as provided in s. 948.08(6).
  137         Section 5. For the purpose of incorporating the amendment
  138  made by this act to section 921.0024, Florida Statutes, in a
  139  reference thereto, subsection (1) of section 921.00265, Florida
  140  Statutes, is reenacted to read:
  141         921.00265 Recommended sentences; departure sentences;
  142  mandatory minimum sentences.—This section applies to any felony
  143  offense, except any capital felony, committed on or after
  144  October 1, 1998.
  145         (1) The lowest permissible sentence provided by
  146  calculations from the total sentence points pursuant to s.
  147  921.0024(2) is assumed to be the lowest appropriate sentence for
  148  the offender being sentenced. A departure sentence is prohibited
  149  unless there are mitigating circumstances or factors present as
  150  provided in s. 921.0026 which reasonably justify a departure.
  151         Section 6. For the purpose of incorporating the amendment
  152  made by this act to section 921.0024, Florida Statutes, in a
  153  reference thereto, paragraph (e) of subsection (1) of section
  154  924.06, Florida Statutes, is reenacted to read:
  155         924.06 Appeal by defendant.—
  156         (1) A defendant may appeal from:
  157         (e) A sentence imposed under s. 921.0024 of the Criminal
  158  Punishment Code which exceeds the statutory maximum penalty
  159  provided in s. 775.082 for an offense at conviction, or the
  160  consecutive statutory maximums for offenses at conviction,
  161  unless otherwise provided by law.
  162         Section 7. For the purpose of incorporating the amendment
  163  made by this act to section 921.0024, Florida Statutes, in
  164  references thereto, subsections (7) and (8) of section 948.01,
  165  Florida Statutes, are reenacted to read:
  166         948.01 When court may place defendant on probation or into
  167  community control.—
  168         (7)(a) Notwithstanding s. 921.0024 and effective for
  169  offenses committed on or after July 1, 2009, the sentencing
  170  court may place the defendant into a postadjudicatory treatment
  171  based drug court program if the defendant’s Criminal Punishment
  172  Code scoresheet total sentence points under s. 921.0024 are 60
  173  points or fewer, the offense is a nonviolent felony, the
  174  defendant is amenable to substance abuse treatment, and the
  175  defendant otherwise qualifies under s. 397.334(3). The
  176  satisfactory completion of the program shall be a condition of
  177  the defendant’s probation or community control. As used in this
  178  subsection, the term “nonviolent felony” means a third degree
  179  felony violation under chapter 810 or any other felony offense
  180  that is not a forcible felony as defined in s. 776.08.
  181         (b) The defendant must be fully advised of the purpose of
  182  the program, and the defendant must agree to enter the program.
  183  The original sentencing court shall relinquish jurisdiction of
  184  the defendant’s case to the postadjudicatory drug court program
  185  until the defendant is no longer active in the program, the case
  186  is returned to the sentencing court due to the defendant’s
  187  termination from the program for failure to comply with the
  188  terms thereof, or the defendant’s sentence is completed.
  189         (8)(a) Notwithstanding s. 921.0024 and effective for
  190  offenses committed on or after July 1, 2016, the sentencing
  191  court may place the defendant into a postadjudicatory mental
  192  health court program if the offense is a nonviolent felony, the
  193  defendant is amenable to mental health treatment, including
  194  taking prescribed medications, and the defendant is otherwise
  195  qualified under s. 394.47892(4). The satisfactory completion of
  196  the program must be a condition of the defendant’s probation or
  197  community control. As used in this subsection, the term
  198  “nonviolent felony” means a third degree felony violation under
  199  chapter 810 or any other felony offense that is not a forcible
  200  felony as defined in s. 776.08. Defendants charged with
  201  resisting an officer with violence under s. 843.01, battery on a
  202  law enforcement officer under s. 784.07, or aggravated assault
  203  may participate in the mental health court program if the court
  204  so orders after the victim is given his or her right to provide
  205  testimony or written statement to the court as provided in s.
  206  921.143.
  207         (b) The defendant must be fully advised of the purpose of
  208  the mental health court program, and the defendant must agree to
  209  enter the program. The original sentencing court shall
  210  relinquish jurisdiction of the defendant’s case to the
  211  postadjudicatory mental health court program until the defendant
  212  is no longer active in the program, the case is returned to the
  213  sentencing court due to the defendant’s termination from the
  214  program for failure to comply with the terms thereof, or the
  215  defendant’s sentence is completed.
  216         (c) The Department of Corrections may establish designated
  217  and trained mental health probation officers to support
  218  individuals under supervision of the mental health court
  219  program.
  220         Section 8. For the purpose of incorporating the amendment
  221  made by this act to section 921.0024, Florida Statutes, in
  222  references thereto, paragraphs (i) and (j) of subsection (2) and
  223  paragraph (b) of subsection (8) of section 948.06, Florida
  224  Statutes, are reenacted to read:
  225         948.06 Violation of probation or community control;
  226  revocation; modification; continuance; failure to pay
  227  restitution or cost of supervision.—
  228         (2)
  229         (i)1. Notwithstanding s. 921.0024 and effective for
  230  offenses committed on or after July 1, 2009, the court may order
  231  the defendant to successfully complete a postadjudicatory
  232  treatment-based drug court program if:
  233         a. The court finds or the offender admits that the offender
  234  has violated his or her community control or probation;
  235         b. The offender’s Criminal Punishment Code scoresheet total
  236  sentence points under s. 921.0024 are 60 points or fewer after
  237  including points for the violation;
  238         c. The underlying offense is a nonviolent felony. As used
  239  in this subsection, the term “nonviolent felony” means a third
  240  degree felony violation under chapter 810 or any other felony
  241  offense that is not a forcible felony as defined in s. 776.08;
  242         d. The court determines that the offender is amenable to
  243  the services of a postadjudicatory treatment-based drug court
  244  program;
  245         e. The court has explained the purpose of the program to
  246  the offender and the offender has agreed to participate; and
  247         f. The offender is otherwise qualified to participate in
  248  the program under the provisions of s. 397.334(3).
  249         2. After the court orders the modification of community
  250  control or probation, the original sentencing court shall
  251  relinquish jurisdiction of the offender’s case to the
  252  postadjudicatory treatment-based drug court program until the
  253  offender is no longer active in the program, the case is
  254  returned to the sentencing court due to the offender’s
  255  termination from the program for failure to comply with the
  256  terms thereof, or the offender’s sentence is completed.
  257         (j)1. Notwithstanding s. 921.0024 and effective for
  258  offenses committed on or after July 1, 2016, the court may order
  259  the offender to successfully complete a postadjudicatory mental
  260  health court program under s. 394.47892 or a military veterans
  261  and servicemembers court program under s. 394.47891 if:
  262         a. The court finds or the offender admits that the offender
  263  has violated his or her community control or probation;
  264         b. The underlying offense is a nonviolent felony. As used
  265  in this subsection, the term “nonviolent felony” means a third
  266  degree felony violation under chapter 810 or any other felony
  267  offense that is not a forcible felony as defined in s. 776.08.
  268  Offenders charged with resisting an officer with violence under
  269  s. 843.01, battery on a law enforcement officer under s. 784.07,
  270  or aggravated assault may participate in the mental health court
  271  program if the court so orders after the victim is given his or
  272  her right to provide testimony or written statement to the court
  273  as provided in s. 921.143;
  274         c. The court determines that the offender is amenable to
  275  the services of a postadjudicatory mental health court program,
  276  including taking prescribed medications, or a military veterans
  277  and servicemembers court program;
  278         d. The court explains the purpose of the program to the
  279  offender and the offender agrees to participate; and
  280         e. The offender is otherwise qualified to participate in a
  281  postadjudicatory mental health court program under s.
  282  394.47892(4) or a military veterans and servicemembers court
  283  program under s. 394.47891.
  284         2. After the court orders the modification of community
  285  control or probation, the original sentencing court shall
  286  relinquish jurisdiction of the offender’s case to the
  287  postadjudicatory mental health court program until the offender
  288  is no longer active in the program, the case is returned to the
  289  sentencing court due to the offender’s termination from the
  290  program for failure to comply with the terms thereof, or the
  291  offender’s sentence is completed.
  292         (8)
  293         (b) For purposes of this section and ss. 903.0351, 948.064,
  294  and 921.0024, the term “violent felony offender of special
  295  concern” means a person who is on:
  296         1. Felony probation or community control related to the
  297  commission of a qualifying offense committed on or after the
  298  effective date of this act;
  299         2. Felony probation or community control for any offense
  300  committed on or after the effective date of this act, and has
  301  previously been convicted of a qualifying offense;
  302         3. Felony probation or community control for any offense
  303  committed on or after the effective date of this act, and is
  304  found to have violated that probation or community control by
  305  committing a qualifying offense;
  306         4. Felony probation or community control and has previously
  307  been found by a court to be a habitual violent felony offender
  308  as defined in s. 775.084(1)(b) and has committed a qualifying
  309  offense on or after the effective date of this act;
  310         5. Felony probation or community control and has previously
  311  been found by a court to be a three-time violent felony offender
  312  as defined in s. 775.084(1)(c) and has committed a qualifying
  313  offense on or after the effective date of this act; or
  314         6. Felony probation or community control and has previously
  315  been found by a court to be a sexual predator under s. 775.21
  316  and has committed a qualifying offense on or after the effective
  317  date of this act.
  318         Section 9. For the purpose of incorporating the amendment
  319  made by this act to section 921.0024, Florida Statutes, in a
  320  reference thereto, subsection (1) of section 948.20, Florida
  321  Statutes, is reenacted to read:
  322         948.20 Drug offender probation.—
  323         (1) If it appears to the court upon a hearing that the
  324  defendant is a chronic substance abuser whose criminal conduct
  325  is a violation of s. 893.13(2)(a) or (6)(a), or other nonviolent
  326  felony if such nonviolent felony is committed on or after July
  327  1, 2009, and notwithstanding s. 921.0024 the defendant’s
  328  Criminal Punishment Code scoresheet total sentence points are 60
  329  points or fewer, the court may either adjudge the defendant
  330  guilty or stay and withhold the adjudication of guilt. In either
  331  case, the court may also stay and withhold the imposition of
  332  sentence and place the defendant on drug offender probation or
  333  into a postadjudicatory treatment-based drug court program if
  334  the defendant otherwise qualifies. As used in this section, the
  335  term “nonviolent felony” means a third degree felony violation
  336  under chapter 810 or any other felony offense that is not a
  337  forcible felony as defined in s. 776.08.
  338         Section 10. This act shall take effect October 1, 2018.