Florida Senate - 2021                              CS for SB 328
       
       
        
       By the Committee on Criminal Justice; and Senator Rouson
       
       
       
       
       
       591-03562-21                                           2021328c1
    1                        A bill to be entitled                      
    2         An act relating to sentencing; creating s. 775.08701,
    3         F.S.; providing legislative intent; providing for the
    4         retroactive applicability of s. 775.087, F.S.;
    5         prohibiting certain persons from being sentenced to
    6         mandatory minimum terms of imprisonment for aggravated
    7         assault or attempted aggravated assault committed
    8         before a specified date; requiring resentencing for
    9         persons who committed such violations before a
   10         specified date and are serving mandatory minimum terms
   11         of imprisonment; specifying procedures for such
   12         resentencing; providing eligibility for gain-time for
   13         such sentenced or resentenced persons; creating s.
   14         893.13501, F.S.; providing legislative intent;
   15         providing for the retroactive applicability of s.
   16         893.135, F.S.; requiring the initial sentencing and
   17         the resentencing of certain persons who committed
   18         certain violations before a specified date which
   19         involved trafficking in hydrocodone or codeine;
   20         providing criminal penalties for such violations that
   21         are subject to an initial sentencing or a
   22         resentencing; providing legislative intent; providing
   23         for the retroactive applicability of s. 893.135, F.S.;
   24         requiring the initial sentencing and the resentencing
   25         of certain persons who committed certain violations
   26         before a specified date which involved trafficking in
   27         oxycodone; providing criminal penalties for such
   28         violations that are subject to an initial sentencing
   29         or a resentencing; specifying procedures for such
   30         resentencing; providing an effective date.
   31          
   32  Be It Enacted by the Legislature of the State of Florida:
   33  
   34         Section 1. Section 775.08701, Florida Statutes, is created
   35  to read:
   36         775.08701 Retroactive application relating to s. 775.087;
   37  legislative intent; prohibiting mandatory minimum sentencing for
   38  certain offenses; resentencing procedures.—
   39         (1) It is the intent of the Legislature to retroactively
   40  apply chapter 2016-7, Laws of Florida, only as provided in this
   41  section, to persons who committed aggravated assault or
   42  attempted aggravated assault before July 1, 2016, the effective
   43  date of chapter 2016-7, Laws of Florida, which amended s.
   44  775.087 to remove aggravated assault and attempted aggravated
   45  assault from the list of predicate offenses for mandatory
   46  minimum terms of imprisonment under that section.
   47         (2)As used in this section, a reference to “former s.
   48  775.087” is a reference to s. 775.087 as it existed at any time
   49  before its amendment by chapter 2016-7, Laws of Florida.
   50         (3)(a) A person who committed aggravated assault or
   51  attempted aggravated assault before July 1, 2016, but was not
   52  sentenced under former s. 775.087 before October 1, 2021, may
   53  not be sentenced for that violation to a mandatory minimum term
   54  of imprisonment under former s. 775.087.
   55         (b)A person who committed aggravated assault or attempted
   56  aggravated assault before July 1, 2016, who was sentenced before
   57  October 1, 2021, to a mandatory minimum term of imprisonment
   58  pursuant to former s. 775.087, and who is serving such mandatory
   59  minimum term of imprisonment on or after October 1, 2021, must
   60  be resentenced in accordance with paragraph (c) to a sentence
   61  without such mandatory minimum term of imprisonment. The new
   62  sentence must be as provided in s. 775.082, s. 775.083, or s.
   63  775.084.
   64         (c) Resentencing under this section must occur in the
   65  following manner:
   66         1. The Department of Corrections shall notify the person
   67  described in paragraph (b) of his or her eligibility to request
   68  a sentence review hearing.
   69         2. The person seeking sentence review under this section
   70  may submit an application to the court of original jurisdiction
   71  requesting that a sentence review hearing be held. The
   72  sentencing court retains original jurisdiction for the duration
   73  of the sentence for this purpose.
   74         3. A person who is eligible for a sentence review hearing
   75  under this section is entitled to be represented by counsel, and
   76  the court shall appoint a public defender to represent the
   77  person if he or she cannot afford an attorney.
   78         4. Upon receiving an application from the eligible person,
   79  the court of original sentencing jurisdiction shall hold a
   80  sentence review hearing to determine if the eligible person
   81  meets the criteria for resentencing under this section. If the
   82  court determines at the sentence review hearing that the
   83  eligible person meets the criteria in this section for
   84  resentencing, the court must resentence the person as provided
   85  in this section; however, the new sentence may not exceed the
   86  person’s original sentence with credit for time served. If the
   87  court determines that such person does not meet the criteria for
   88  resentencing under this section, the court must provide written
   89  reasons why such person does not meet such criteria.
   90         (d) A person sentenced or resentenced pursuant to this
   91  section is eligible to receive any gain-time pursuant to s.
   92  944.275 which he or she was previously ineligible to receive
   93  because of the imposition of the mandatory minimum term of
   94  imprisonment pursuant to former s. 775.087.
   95         Section 2. Section 893.13501, Florida Statutes, is created
   96  to read:
   97         893.13501 Retroactive application relating to s. 893.135;
   98  legislative intent; sentencing or resentencing for trafficking
   99  in hydrocodone, codeine, or oxycodone; penalties; resentencing
  100  procedures.—
  101         (1) It is the intent of the Legislature to retroactively
  102  apply changes to gram-weight thresholds and ranges and to
  103  penalties for trafficking in hydrocodone or codeine which are
  104  applicable to offenders who committed these offenses on or after
  105  October 1, 2019, the effective date of amendments to s. 893.135
  106  by chapter 2019-167, Laws of Florida.
  107         (a) If a violation of s. 893.135(1)(c) involving
  108  trafficking in hydrocodone, as described in s. 893.03(2)(a)1.k.;
  109  trafficking in codeine, as described in s. 893.03(2)(a)1.g.; or
  110  trafficking in any salt of hydrocodone or of codeine, or any
  111  mixture containing any such substance, as described in s.
  112  893.03(2)(a)2., was committed before October 1, 2019, and was
  113  punishable as a felony of the first degree at the time the
  114  violation was committed, the changes must be retroactively
  115  applied as provided in this subsection.
  116         (b)A person who committed a trafficking violation
  117  described in paragraph (a) before October 1, 2019, but who was
  118  not sentenced for such violation before October 1, 2021, must be
  119  sentenced as provided in paragraph (d).
  120         (c)A person who committed a trafficking violation
  121  described in paragraph (a) before October 1, 2019, and who is
  122  serving a mandatory minimum term of imprisonment for such
  123  violation on or after October 1, 2021, must be resentenced as
  124  provided in paragraph (d) and in accordance with subsection (3).
  125         (d)1.A violation described in paragraph (a) for which the
  126  person is to be sentenced or resentenced pursuant to this
  127  subsection is a felony of the first degree, punishable as
  128  provided in s. 775.082, s. 775.083, or s. 775.084.
  129         2. If the quantity of hydrocodone, as described in s.
  130  893.03(2)(a)1.k., codeine, as described in s. 893.03(2)(a)1.g.,
  131  any salt thereof, or any mixture containing any such substance
  132  involved in the violation of s. 893.135:
  133         a. Was 4 grams or more, but less than 28 grams, such person
  134  must be sentenced or resentenced as provided in s. 775.082, s.
  135  775.083, or s. 775.084.
  136         b. Was 28 grams or more, but less than 50 grams, such
  137  person must be sentenced or resentenced to a mandatory minimum
  138  term of imprisonment of 3 years and ordered to pay a fine of
  139  $50,000.
  140         c. Was 50 grams or more, but less than 100 grams, such
  141  person must be sentenced or resentenced to a mandatory minimum
  142  term of imprisonment of 7 years and ordered to pay a fine of
  143  $100,000.
  144         d. Was 100 grams or more, but less than 300 grams, such
  145  person must be sentenced or resentenced to a mandatory minimum
  146  term of imprisonment of 15 years and ordered to pay a fine of
  147  $500,000.
  148         e. Was 300 grams or more, but less than 30 kilograms, such
  149  person must be sentenced or resentenced to a mandatory minimum
  150  term of imprisonment of 25 years and ordered to pay a fine of
  151  $500,000 if the trafficking involves hydrocodone, any salt
  152  thereof, or any mixture containing hydrocodone; or to pay a fine
  153  of $750,000 if the trafficking involves codeine, or any salt
  154  thereof, or any mixture containing codeine.
  155         (2)It is the intent of the Legislature to retroactively
  156  apply the changes to gram-weight thresholds and ranges and to
  157  penalties for trafficking in oxycodone which are applicable to
  158  offenders who committed this offense on or after July 1, 2014,
  159  the effective date of amendments to s. 893.135 by chapter 2014
  160  176, Laws of Florida.
  161         (a) If a violation of s. 893.135(1)(c) involving
  162  trafficking in oxycodone, as described in s. 893.03(2)(a)1.q.,
  163  any salt thereof, or any mixture containing any such substance
  164  was committed before July 1, 2014, and was punishable as a
  165  felony of the first degree at the time the violation was
  166  committed, the changes must be retroactively applied as provided
  167  in this subsection.
  168         (b) A person who committed a trafficking violation
  169  described in paragraph (a) before July 1, 2014, but who was not
  170  sentenced for such violation before October 1, 2021, must be
  171  sentenced as provided in paragraph (d).
  172         (c) A person who committed a trafficking violation
  173  described in paragraph (a) before July 1, 2014, and who is
  174  serving a mandatory minimum term of imprisonment for such
  175  violation on or after October 1, 2021, must be resentenced as
  176  provided in paragraph (d) and in accordance with subsection (3).
  177         (d)1. A violation described in paragraph (a) for which the
  178  person is to be sentenced or resentenced pursuant to this
  179  subsection is a felony of the first degree, punishable as
  180  provided in s. 775.082, s. 775.083, or s. 775.084.
  181         2. If the quantity of oxycodone, as described in s.
  182  893.03(2)(a)1.q., any salt thereof, or any mixture containing
  183  any such substance involved in the violation of s. 893.135:
  184         a. Was 4 grams or more, but less than 7 grams, such person
  185  must be sentenced or resentenced as provided in s. 775.082, s.
  186  775.083, or s. 775.084.
  187         b. Was 7 grams or more, but less than 14 grams, such person
  188  must be sentenced or resentenced to a mandatory minimum term of
  189  imprisonment of 3 years and ordered to pay a fine of $50,000.
  190         c. Was 14 grams or more, but less than 25 grams, such
  191  person must be sentenced or resentenced to a mandatory minimum
  192  term of imprisonment of 7 years and ordered to pay a fine of
  193  $100,000.
  194         d. Was 25 grams or more, but less than 100 grams, such
  195  person must be sentenced or resentenced to a mandatory minimum
  196  term of imprisonment of 15 years and ordered to pay a fine of
  197  $500,000.
  198         e. Was 100 grams or more, but less than 30 kilograms, such
  199  person must be sentenced or resentenced to a mandatory minimum
  200  term of imprisonment of 25 years and ordered to pay a fine of
  201  $500,000.
  202         (3) Resentencing under this section must occur in the
  203  following manner:
  204         (a) The Department of Corrections shall notify the person
  205  described in paragraph (1)(c) or paragraph (2)(c) of his or her
  206  eligibility to request a sentence review hearing.
  207         (b) The person seeking sentence review under this section
  208  may submit an application to the court of original jurisdiction
  209  requesting that a sentence review hearing be held. The
  210  sentencing court retains original jurisdiction for the duration
  211  of the sentence for this purpose.
  212         (c) A person who is eligible for a sentence review hearing
  213  under this section is entitled to be represented by counsel, and
  214  the court shall appoint a public defender to represent the
  215  person if he or she cannot afford an attorney.
  216         (d) Upon receiving an application from the eligible person,
  217  the court of original sentencing jurisdiction shall hold a
  218  sentence review hearing to determine if the eligible person
  219  meets the criteria for resentencing under this section. If the
  220  court determines at the sentence review hearing that the
  221  eligible person meets the criteria in this section for
  222  resentencing, the court must resentence the person as provided
  223  in this section; however, the new sentence may not exceed the
  224  person’s original sentence with credit for time served. If the
  225  court determines that such person does not meet the criteria for
  226  resentencing under this section, the court must provide written
  227  reasons why such person does not meet such criteria.
  228         Section 3. This act shall take effect October 1, 2021.