Florida Senate - 2020                             CS for SB 1716
       By the Committee on Criminal Justice; and Senators Brandes,
       Pizzo, and Bracy
       591-03102-20                                          20201716c1
    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 releasee reoffenders upon proof from a state
    5         attorney which establishes that a defendant is a
    6         prison releasee reoffender; deleting a provision that
    7         prohibits a prison releasee reoffender from
    8         eligibility for any form of early release and that
    9         requires a prison releasee reoffender to serve 100
   10         percent of the court-imposed sentence; providing
   11         legislative intent; defining a term for the purpose of
   12         establishing applicability of a specified provision;
   13         applying the revised sentencing structure to certain
   14         persons under certain circumstances; providing
   15         resentencing requirements; deleting a provision
   16         relating to legislative intent; deleting a provision
   17         that requires a state attorney to explain a sentencing
   18         deviation in writing under certain circumstances;
   19         providing an effective date.
   21  Be It Enacted by the Legislature of the State of Florida:
   23         Section 1. Subsection (9) of section 775.082, Florida
   24  Statutes, is amended to read:
   25         775.082 Penalties; applicability of sentencing structures;
   26  mandatory minimum sentences for certain reoffenders previously
   27  released from prison.—
   28         (9)(a)1. “Prison releasee reoffender” means any defendant
   29  who commits, or attempts to commit:
   30         a. Treason;
   31         b. Murder;
   32         c. Manslaughter;
   33         d. Sexual battery;
   34         e. Carjacking;
   35         f. Home-invasion robbery;
   36         g. Robbery;
   37         h. Arson;
   38         i. Kidnapping;
   39         j. Aggravated assault with a deadly weapon;
   40         k. Aggravated battery;
   41         l. Aggravated stalking;
   42         m. Aircraft piracy;
   43         n. Unlawful throwing, placing, or discharging of a
   44  destructive device or bomb;
   45         o. Any felony that involves the use or threat of physical
   46  force or violence against an individual;
   47         p. Armed burglary;
   48         q. Burglary of a dwelling or burglary of an occupied
   49  structure; or
   50         r. Any felony violation of s. 790.07, s. 800.04, s. 827.03,
   51  s. 827.071, or s. 847.0135(5);
   53  within 3 years after being released from a state correctional
   54  facility operated by the Department of Corrections or a private
   55  vendor, a county detention facility following incarceration for
   56  an offense for which the sentence pronounced was a prison
   57  sentence, or a correctional institution of another state, the
   58  District of Columbia, the United States, any possession or
   59  territory of the United States, or any foreign jurisdiction,
   60  following incarceration for an offense for which the sentence is
   61  punishable by more than 1 year in this state.
   62         2. “Prison releasee reoffender” also means any defendant
   63  who commits or attempts to commit any offense listed in sub
   64  subparagraphs (a)1.a.-r. while the defendant was serving a
   65  prison sentence or on escape status from a state correctional
   66  facility operated by the Department of Corrections or a private
   67  vendor or while the defendant was on escape status from a
   68  correctional institution of another state, the District of
   69  Columbia, the United States, any possession or territory of the
   70  United States, or any foreign jurisdiction, following
   71  incarceration for an offense for which the sentence is
   72  punishable by more than 1 year in this state.
   73         3. If the state attorney determines that a defendant is a
   74  prison releasee reoffender as defined in subparagraph 1., the
   75  state attorney may seek to have the court sentence the defendant
   76  as a prison releasee reoffender. Upon proof from the state
   77  attorney which that establishes by a preponderance of the
   78  evidence that a defendant is a prison releasee reoffender as
   79  defined in this section, such defendant is not eligible for
   80  sentencing under the sentencing guidelines and must be sentenced
   81  as follows:
   82         a. For a felony punishable by life, to by a term of 25
   83  years imprisonment for life;
   84         b. For a felony of the first degree, to by a term of
   85  imprisonment of 20 30 years;
   86         c. For a felony of the second degree, to by a term of
   87  imprisonment of 10 15 years; and
   88         d. For a felony of the third degree, to by a term of
   89  imprisonment of 3 5 years.
   90         (b) A person sentenced under paragraph (a) shall be
   91  released only by expiration of sentence and shall not be
   92  eligible for parole, control release, or any form of early
   93  release. Any person sentenced under paragraph (a) must serve 100
   94  percent of the court-imposed sentence.
   95         (b)(c)Nothing in This subsection does not shall prevent a
   96  court from imposing a greater sentence of incarceration as
   97  authorized by law, pursuant to s. 775.084 or any other provision
   98  of law.
   99         (c)(d)1. It is the intent of the Legislature to
  100  retroactively apply the amendments to this subsection which are
  101  effective on July 1, 2020.
  102         2. As used in this paragraph, the term “former s.
  103  775.082(9)” means s. 775.082(9) as it existed before the
  104  amendment of this subsection, which took effect on July 1, 2020.
  105         3. A person who qualified as a prison releasee reoffender
  106  before July 1, 2020, and who was not sentenced as a prison
  107  releasee reoffender before July 1, 2020, may not be sentenced as
  108  such under former s. 775.082(9). Such person, if sentenced as a
  109  prison releasee reoffender, must be sentenced as provided in
  110  paragraph (a).
  111         4. A person who qualified as a prison releasee reoffender
  112  before July 1, 2020, who was sentenced as such before July 1,
  113  2020, to a mandatory minimum term of imprisonment pursuant to
  114  former s. 775.082(9), and who is serving such mandatory minimum
  115  term of imprisonment on or after July 1, 2020, must be
  116  resentenced in accordance with subparagraph 5. to a sentence as
  117  provided in paragraph (a) and sub-subparagraph 5.d.
  118         5.Resentencing must occur in the following manner:
  119         a.The Department of Corrections shall notify a person
  120  described in subparagraph 4. of his or her eligibility to
  121  request a sentence review hearing.
  122         b.The person seeking sentence review may submit an
  123  application to the court of original jurisdiction requesting
  124  that a sentence review hearing be held. The sentencing court
  125  retains original jurisdiction for the duration of the sentence
  126  for this purpose.
  127         c.A person who is eligible for a sentence review hearing
  128  under this paragraph is entitled to representation by legal
  129  counsel. If the person is indigent and unable to employ counsel,
  130  the court must appoint counsel under s. 27.52. Determination of
  131  indigence and costs of representation is as provided in ss.
  132  27.52 and 938.29.
  133         d.Upon receiving an application from an eligible person,
  134  the court of original jurisdiction shall hold a sentence review
  135  hearing to determine if the eligible person meets the criteria
  136  for resentencing under subparagraph 4. If the court determines
  137  at the sentence review hearing that the eligible person meets
  138  such criteria, the court must resentence the person as provided
  139  in paragraph (a); however, the new sentence may not exceed the
  140  person’s original sentence with credit for time served. If the
  141  court determines that such person does not meet the criteria for
  142  resentencing under subparagraph 4., the court must provide
  143  written reasons why such person does not meet such criteria.
  144         6. A person resentenced pursuant to this subsection is
  145  eligible to receive any gain-time pursuant to s. 944.275 which
  146  he or she was previously ineligible to receive under former s.
  147  775.082(9) It is the intent of the Legislature that offenders
  148  previously released from prison or a county detention facility
  149  following incarceration for an offense for which the sentence
  150  pronounced was a prison sentence who meet the criteria in
  151  paragraph (a) be punished to the fullest extent of the law and
  152  as provided in this subsection, unless the state attorney
  153  determines that extenuating circumstances exist which preclude
  154  the just prosecution of the offender, including whether the
  155  victim recommends that the offender not be sentenced as provided
  156  in this subsection.
  157         2. For every case in which the offender meets the criteria
  158  in paragraph (a) and does not receive the mandatory minimum
  159  prison sentence, the state attorney must explain the sentencing
  160  deviation in writing and place such explanation in the case file
  161  maintained by the state attorney.
  162         Section 2. This act shall take effect July 1, 2020.