Florida Senate - 2020                                    SB 1716
       By Senator Brandes
       24-00857A-20                                          20201716__
    1                        A bill to be entitled                      
    2         An act relating to sentencing; amending s. 775.082,
    3         F.S.; revising the required sentencing structure for
    4         prison release reoffenders upon proof from a state
    5         attorney which establishes that a defendant is a
    6         prison release reoffender; providing legislative
    7         intent; defining a term for the purpose of
    8         establishing applicability of a specified provision;
    9         applying the revised sentencing structure to certain
   10         persons under certain circumstances; providing
   11         resentencing requirements; deleting a provision
   12         relating to legislative intent; deleting a provision
   13         that requires a state attorney to explain a sentencing
   14         deviation in writing under certain circumstances;
   15         providing an effective date.
   17  Be It Enacted by the Legislature of the State of Florida:
   19         Section 1. Subsection (9) of section 775.082, Florida
   20  Statutes, is amended to read:
   21         775.082 Penalties; applicability of sentencing structures;
   22  mandatory minimum sentences for certain reoffenders previously
   23  released from prison.—
   24         (9)(a)1. “Prison releasee reoffender” means any defendant
   25  who commits, or attempts to commit:
   26         a. Treason;
   27         b. Murder;
   28         c. Manslaughter;
   29         d. Sexual battery;
   30         e. Carjacking;
   31         f. Home-invasion robbery;
   32         g. Robbery;
   33         h. Arson;
   34         i. Kidnapping;
   35         j. Aggravated assault with a deadly weapon;
   36         k. Aggravated battery;
   37         l. Aggravated stalking;
   38         m. Aircraft piracy;
   39         n. Unlawful throwing, placing, or discharging of a
   40  destructive device or bomb;
   41         o. Any felony that involves the use or threat of physical
   42  force or violence against an individual;
   43         p. Armed burglary;
   44         q. Burglary of a dwelling or burglary of an occupied
   45  structure; or
   46         r. Any felony violation of s. 790.07, s. 800.04, s. 827.03,
   47  s. 827.071, or s. 847.0135(5);
   49  within 3 years after being released from a state correctional
   50  facility operated by the Department of Corrections or a private
   51  vendor, a county detention facility following incarceration for
   52  an offense for which the sentence pronounced was a prison
   53  sentence, or a correctional institution of another state, the
   54  District of Columbia, the United States, any possession or
   55  territory of the United States, or any foreign jurisdiction,
   56  following incarceration for an offense for which the sentence is
   57  punishable by more than 1 year in this state.
   58         2. “Prison releasee reoffender” also means any defendant
   59  who commits or attempts to commit any offense listed in sub
   60  subparagraphs (a)1.a.-r. while the defendant was serving a
   61  prison sentence or on escape status from a state correctional
   62  facility operated by the Department of Corrections or a private
   63  vendor or while the defendant was on escape status from a
   64  correctional institution of another state, the District of
   65  Columbia, the United States, any possession or territory of the
   66  United States, or any foreign jurisdiction, following
   67  incarceration for an offense for which the sentence is
   68  punishable by more than 1 year in this state.
   69         3. If the state attorney determines that a defendant is a
   70  prison releasee reoffender as defined in subparagraph 1., the
   71  state attorney may seek to have the court sentence the defendant
   72  as a prison releasee reoffender. Upon proof from the state
   73  attorney which that establishes by a preponderance of the
   74  evidence that a defendant is a prison releasee reoffender as
   75  defined in this section, such defendant is not eligible for
   76  sentencing under the sentencing guidelines and must be sentenced
   77  as follows:
   78         a. For a felony punishable by life, to by a term of 25
   79  years imprisonment for life;
   80         b. For a felony of the first degree, to by a term of
   81  imprisonment of 20 30 years;
   82         c. For a felony of the second degree, to by a term of
   83  imprisonment of 10 15 years; and
   84         d. For a felony of the third degree, to by a term of
   85  imprisonment of 3 5 years.
   86         (b) A person sentenced under paragraph (a) shall be
   87  released only by expiration of sentence and shall not be
   88  eligible for parole, control release, or any form of early
   89  release. Any person sentenced under paragraph (a) must serve 100
   90  percent of the court-imposed sentence.
   91         (c) Nothing in This subsection does not shall prevent a
   92  court from imposing a greater sentence of incarceration as
   93  authorized by law, pursuant to s. 775.084 or any other provision
   94  of law.
   95         (d)1. It is the intent of the Legislature to retroactively
   96  apply the amendments to this subsection which are effective on
   97  July 1, 2020.
   98         2.As used in this paragraph, the term former s.
   99  775.082(9)” means s. 775.082(9) as it existed before the
  100  amendment of this subsection, which took effect on July 1, 2020.
  101         3.A person who qualified as a prison release reoffender
  102  before July 1, 2010, and who was not sentenced as a prison
  103  release reoffender before July 1, 2020, may not be sentenced as
  104  such under former s. 775.082(9). Such person, if sentenced as a
  105  prison release reoffender, must be sentenced as provided in
  106  paragraph (a).
  107         4.A person who qualified as a prison release reoffender
  108  before July 1, 2010, who was sentenced as such before July 1,
  109  2020, to a mandatory minimum term of imprisonment pursuant to
  110  former s. 775.082(9), and who is serving such mandatory minimum
  111  term of imprisonment on or after July 1, 2010, must be
  112  resentenced in accordance with subparagraph 5. to a sentence as
  113  provided in paragraph (a) and sub-subparagraph 5.d.
  114         5.Resentencing must occur in the following manner:
  115         a.The Department of Corrections shall notify a person
  116  described in subparagraph 4. of his or her eligibility to
  117  request a sentence review hearing.
  118         b.The person seeking sentence review may submit an
  119  application to the court of original jurisdiction requesting
  120  that a sentence review hearing be held. The sentencing court
  121  retains original jurisdiction for the duration of the sentence
  122  for this purpose.
  123         c.A person who is eligible for a sentence review hearing
  124  under this paragraph is entitled to representation by legal
  125  counsel. If the person is indigent and unable to employ counsel,
  126  the court must appoint counsel under s. 27.52. Determination of
  127  indigence and costs of representation is as provided in ss.
  128  27.52 and 938.29.
  129         d.Upon receiving an application from an eligible person,
  130  the court of original jurisdiction shall hold a sentence review
  131  hearing to determine if the eligible person meets the criteria
  132  for resentencing under subparagraph 4. If the court determines
  133  at the sentence review hearing that the eligible person meets
  134  such criteria, the court must resentence the person as provided
  135  in paragraph (a); however, the new sentence may not exceed the
  136  person’s original sentence with credit for time served. If the
  137  court determines that such person does not meet the criteria for
  138  resentencing under subparagraph 4., the court must provide
  139  written reasons why such person does not meet such criteria.
  140         6. A person resentenced pursuant to this subsection is
  141  eligible to receive any gain-time pursuant to s. 944.275 which
  142  he or she was previously ineligible to receive under former s.
  143  775.082(9) It is the intent of the Legislature that offenders
  144  previously released from prison or a county detention facility
  145  following incarceration for an offense for which the sentence
  146  pronounced was a prison sentence who meet the criteria in
  147  paragraph (a) be punished to the fullest extent of the law and
  148  as provided in this subsection, unless the state attorney
  149  determines that extenuating circumstances exist which preclude
  150  the just prosecution of the offender, including whether the
  151  victim recommends that the offender not be sentenced as provided
  152  in this subsection.
  153         2. For every case in which the offender meets the criteria
  154  in paragraph (a) and does not receive the mandatory minimum
  155  prison sentence, the state attorney must explain the sentencing
  156  deviation in writing and place such explanation in the case file
  157  maintained by the state attorney.
  158         Section 2. This act shall take effect July 1, 2020.