AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROC., 696 So.2d 1171 (Fla. 1997)

AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE, RE SENTENCING GUIDELINES

No. 90,753Supreme Court of Florida.
June 26, 1997

Original Proceeding — Rules of Criminal Procedure.

John Hogenmuller, Director, Sentencing Commission, Tallahassee, Florida, for Petitioner.

PER CURIAM.

The Florida Sentencing Guidelines Commission (the Commission) petitions this Court to revise the statewide sentencing guidelines to conform with statutory enactments passed during the 1997 legislative session and clarify changes made during the 1996 legislative session. The Commission seeks to amend the procedural rule contained in Florida Rule of Criminal Procedure 3.703 and the scoresheets contained in rule 3.991. We have jurisdiction. Art. V, § 2(a), Fla. Const.

The legislature in chapter 97-194, Laws of Florida, changed the amended 1994 sentencing guidelines to clarify those guidelines and add new provisions. The Department of Corrections, in response to legislative directive, drafted and submitted to the Commission specific rule revisions reflecting the statutory changes and the proposed revisions were approved by the Commission. In addition, certain legislative changes contained in chapter 97-298, Laws of Florida, require rule revisions.

The proposed changes accomplish the following: The revisions reflect the fact that

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effective July 1, 1997, substance abuse or addiction, including intoxication, is no longer a mitigating factor to justify a downward departure sentence; the revisions also provide that anyone sentenced for a felony committed on or after July 1, 1997, with at least one previous felony conviction, and whose recommended sentence is a nonstate prison sanction or less than twenty-two months, may be sentenced to up to twenty-two months in the Department of Corrections; effective October 1, 1997, anyone convicted of an offense determined to be a crime of domestic violence as defined in section 741.28, Florida Statutes (1995), and such offense was committed in the presence of a child who is related by blood or marriage to the victim or perpetrator and is under the age of sixteen, may have their subtotal sentence points multiplied by 1.5, at the discretion of the court; the language concerning assessment of prior serious felony points is amended to clarify a change made by the 1996 legislature which allows assessment of prior serious felony points if an additional offense qualifies; the street gang multiplier has been added to the revised scoresheet and, therefore, the language concerning annotation contained in the rule and committee notes is no longer necessary.

We hereby adopt the amendments to rules 3.703 and 3.991 as appended to this opinion. The amendments are effective July 1, 1997, except the amendments to rule 3.703(d)(25) and rule 3.991(a) required by chapter 97-298, Laws of Florida, which are effective October 1, 1997.

New language is indicated by underlining; deletions are indicated by struck-through type.

It is so ordered.

OVERTON, SHAW, GRIMES, HARDING, WELLS and ANSTEAD, JJ., concur.

Appendix

Rule 3.703 SENTENCING GUIDELINES

[No changes to subdivisions (a) through (c).]

(d) General Rules and Definitions.

[No changes to subdivisions (1) through (11).]

(12) A single assessment of thirty prior serious felony points
is added if the offender has a primary offense or any additional
offense ranked in level 8, 9, or 10 and one or more prior serious
felonies. A “prior serious felony” is an offense in the
offender’s prior record ranked in level 8, 9, or 10 and for which
the offender is serving a sentence of confinement, supervision or
other sanction or for which the offender’s date of release from
confinement, supervision or other sanction, whichever is later is
within 3 years before the date the primary offense or any
additional offenses were committed. Out of state convictions
wherein the analogous or parallel Florida offenses are located in
offense severity level 8, 9, or 10 are to be considered prior
serious felonies.

[No changes to subdivisions (13) through (23).]

(24) If the offender is found to be a member of a criminal
street gang pursuant to section 874.04, at the time of the
commission of the primary offense, the subtotal sentence points
are multiplied by 1.5. [Such multiplier shall be annotated at
Section IX of the scoresheet.][]

[(25) If the primary offense is determined to be a crime of
domestic violence as defined in section 741.28 and to have been
committed in the presence of a child who is related by blood or
marriage to the victim or perpetrator and who is under the age of
16, the subtotal sentence points are multiplied, at the discretion
of the court, by 1.5.][]

[(25)][] [(26)][] “Total sentence points” are the
subtotal sentence points or the enhanced subtotal sentence
points.

[(26)][] [(27)][] “Presumptive sentence” is determined
by the total sentence points. [A person sentenced for a felony committed
on or after July 1, 1997, who has at least one prior felony
conviction and whose recommended sentence is any nonstate prison
sanction may be sentenced to community control or a term of
incarceration not to exceed 22 months. A person sentenced for a
felony committed on or after July 1, 1997, who has at least one
prior felony conviction and whose minimum][]

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[recommended sentence is less than 22 months in state prison
may be sentenced to a term of incarceration not to exceed 22
months.][]

[In all other cases,][] [I][] [i][] f the total
sentence points are less than or equal to 40, the recommended sentence,
absent a departure, shall not be state prison. The court may impose any
nonstate prison sanction authorized by law, including community control.
However, the sentencing court may increase sentence points less
than or equal to 40 by up to and including 15% to arrive at total
sentence points in excess of 40. If the total sentence points are
greater than 40 but less than or equal to 52, the decision to
sentence the defendant to state prison or a nonstate prison
sanction is left to the discretion of the sentencing court. If
the total sentence points are greater than 52, the sentence,
absent a departure, must be to state prison.

A state prison sentence is calculated by deducting 28 points
from the total sentence points where total sentence points exceed
40. The resulting number represents state prison months. State
prison months may be increased or decreased by up to and including
25% at the discretion of the sentencing court. State prison
months may not be increased where the sentencing court has
exercised discretion to increase total sentence points under 40
points to achieve a state prison sentence. The sentence imposed
must be entered on the scoresheet.

If the total sentence points are equal to or greater than 363,
the court may sentence the offender to life imprisonment.

[(27)][] [(28)][] If the recommended sentence under
the sentencing guidelines exceeds the maximum sentence authorized
for the pending felony offenses, the guidelines sentence must be
imposed, absent a departure. Such downward departure must be
equal to or less than the maximum sentence authorized by section
775.082.

[(28)][] [(29)][] For those offenses having
a mandatory penalty, a scoresheet should be completed and the
guidelines presumptive sentence calculated. If the presumptive
sentence is less than the mandatory penalty, the mandatory
sentence takes precedence. If the presumptive sentence exceeds
the mandatory sentence, the presumptive sentence should be
imposed.

[(29)][] [(30)][] Departure from the recommended
guidelines sentence provided by the total sentence points should
be avoided unless there are circumstances or factors that
reasonably justify aggravating or mitigating the sentence. A
state prison sentence that deviates from the recommended prison
sentence by more than 25%, a state prison sentence where the
total sentence points are equal to or less than 40, or a
sentence other than state prison where the total sentence points
are greater than 52 must be accompanied by a written statement
delineating the reasons for departure. Circumstances or factors
that can be considered include, but are not limited to, those
listed in subsections 921.0016(3) and (4). Reasons for departing from the
recommended guidelines sentence shall not include circumstances
or factors relating to prior arrests without conviction or
charged offenses for which convictions have not been obtained.

(A) If a sentencing judge imposes a sentence that departs
from the recommended guidelines sentence, the reasons for
departure shall be orally articulated at the time sentence is
imposed. Any departure sentence must be accompanied by a
written statement, signed by the sentencing judge, delineating
the reasons for departure. The written statement shall be
filed in the court file within 7 days after the date of
sentencing. A written transcription of orally stated reasons
for departure articulated at the time sentence was imposed is
sufficient if it is signed by the sentencing judge and filed in
the court file within 7 days after the date of sentencing. The
sentencing judge may also list the written reasons for departure
in the space provided on the guidelines scoresheet and shall
sign the scoresheet.

(B) The written statement delineating the reasons for
departure shall be made a part of the record. The written
statement, if it is a separate document, must accompany the
guidelines scoresheet required to be provided to the
Department of Corrections pursuant to subsection 921.0014(5).

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[(30)][] [(31)][] The sentencing court shall impose or suspend
sentence for each separate count, as convicted. The total
sentence shall be within the guidelines sentence unless a
departure is ordered.

If a split sentence is imposed, the incarcerative portion of
the sentence must not deviate more than 25 percent from the
recommended guidelines prison sentence. The total sanction
(incarceration and community control or probation) shall not exceed
the term provided by general law or the guidelines recommended
sentence where the provisions of subsection 921.001(5) apply.

[(31)][] [(32)][] Sentences imposed after revocation
of probation or community control must be in accordance with the
guidelines. Cumulative incarceration imposed after revocation of
probation or community control is subject to limitations imposed
by the guidelines. A violation of probation or community control
may not be the basis for a departure sentence.

Committee Notes

1996 Amendments.

(d)(24) The amendment applies to crimes committed on or after
October 1, 1996. [If used, this multiplier should be annotated with
the words, “Street Gang Enhancement” at Section IX of the form
appearing at Florida Rule of Criminal Procedure 3.991(a).][]

1997 Amendments.

(d) (25) The amendment applies to crimes committed on or after
October 1, 1997.

[] [EDITORS’ NOTE: THE TEXT CONTAINED WITHIN THE BRACKETS WAS STRICKEN THROUGH IN THE ORIGINAL TEXT.]

[] [EDITORS’ NOTE: THE TEXT CONTAINED WITHIN THE BRACKETS WAS UNDERLINED IN THE ORIGINAL TEXT.]

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OCTOBER 1, 1995 RULE 3.991(a) SENTENCING GUIDELINES SCORESHEET
____________________________________________________________________________ 1. DATE OF SENTENCE| 2. PREPARED BY | 3. COUNTY | 4. SENTENCING | DC SAO | | JUDGE MO DY YR | | | ___________________|________________|______________|________________________ 5. NAME (LAST, | 6. DOB | 7. DC# | 9. RACE 10. GENDER FIRST,M.I.) | | | M F | MO DY YR |______________| B W __________ | | 8. OBTS# | OTH 11. | | | PLEA | | | TRIAL ___________________|________________|______________|________________________

I. PRIMARY OFFENSE: If Qualifier, please check __A __S __C __R (A = Attempt, S = Solicitation, C = Conspiracy, R = Reclassification)

IV. _____

Effective Date: For offenses committed under the sentencing guidelines effective October 1, 1995 or any subsequent revision. Page Subtotal ______

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Page 1 Subtotal ______ V. Legal Status Violation = 4 points V. ______

VI. Community Sanction Violation before the court for sentencing A) 6 Pts x each such successive violation OR VI. A. ______ B) New Felony conviction = 12 Pts x each B. ____ successive violation

VII. Firearm/Semi-Automatic or Machine Gun = 18 or 25 Points VII. ______

VIII. Prior Serious Felony = 30 Pts VIII. ______

Subtotal Sentence Points ____

IX. Enhancements (only if the primary offense qualifies for enhancement)

____________ ____________ ___________ ___________ ___________ | Law | | Drug | | Grand | | Street | | Domestic | | Enforcement| | Trafficking| | Theft | | Gang | | (offenses | | Protection | | | | Motor | | (offenses | | committed | | | | | | Vehicle | | committed | | on or | | | | | | | | on or | | after | | | | | | | | after | | 10-1-97 | | x 1.5 | | x 1.5 | | x 1.5 | | 10-1-96 | | x 1.5 | | x 2.0 | | | | | | x 1.5 | | | | x 2.5 | | | | | | | | | |____________| |____________| |___________| |___________| |___________|

Enhanced Subtotal Sentence Points IX. ____

TOTAL SENTENCE POINTS ____

SENTENCE COMPUTATION
For any felony committed on or after July 1, 1997, where the defendant has at least one prior felony conviction, the court may impose a state prison sentence not to exceed 22 months when a non state prison sanction is recommended, or when the minimum recommended sentence is less than 22 months in state prison __________________________________________________________________________ | • 40 or less total sentence points mandates a | | non-state prison sanction. | | Sentence points less than or equal to 40 | | may be increased by increased by 15 percent | | _______________ x 1.15 = _________________________ | | Total Sentence Points Increased Sentence Points | |__________________________________________________________________________| ___________________________________________________________________________ |
• If total or increased sentence | points are greater than 40 or equal | to 52, state incarceration is | discretionary. A total of more than __________ minus 28 = ______________| 52 total or increased sentence Total/Increased State Prison | points must be a state prison Points Months | sentence. A life sentence may | be imposed at the discretion of the | court if total sentence points are | 363 or greater. | |
___________________________________________________________________________| ___________________________________________________________________________ |
• The sentencing court may increase | or decrease prison months by up to | 25 percent except where total | sentence points were originally | increased by 15 percent to exceed | 40 points. Any state prison sentence x. 75 = ____________________ | must exceed 12 months. Min. Prison Months | ___________________ | State Prison Months | x 1.25 = ____________________ | Max. Prison Months | ___________________________________________________________________________|

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OCTOBER 1, 1995 RULE 3.99(b) SUPPLEMENTAL SENTENCING GUIDELINES SCORESHEET
____________________________________________________________________________ NAME (LAST, FIRST, M.I.) | DOCKET# | DATE OF SENTENCE | | MO DY YR | |
_____________________________|_____________________|________________________ _________ CODES | II. ADDITIONAL OFFENSE(S)
DC USE | DOCKET# FEL/MM F.S.# LEVEL QUALIFY CNTS POINTS ONLY | A S C R | | __________/____________/_____________/___ ___x___=___ |
| Description: _____________________________________________ | | __________/____________/_____________/___ ___x___=___ |
| Description: _____________________________________________ | | __________/____________/_____________/___ ___x___=___ |
| Description: _____________________________________________ | | __________/____________/_____________/___ ___x___=___ |
| Description: _____________________________________________ | | __________/____________/_____________/___ ___x___=___ |
| Description: _____________________________________________ | | __________/____________/_____________/___ ___x___=___ |
| Description: _____________________________________________ |
| (Level = Pts: M=0.2, 1=0.7, 2=1.2, 3=2.4, 4=3.6, 5=5.4, 6=18 _________| 7=28, 8=37, 9=46, 10=58)

II. ___

IV. PRIOR RECORD: Supplemental page attached

FEL/MM F.S.# LEVEL QUALIFY DESCRIPTION NUM POINTS(s) DEGREE A S C R

______ ___________/____________________ ___x___ = ___

(Level = Pts: M=0.2, 1=0.5, 2=0.8, 3=1.6, 4=2.4, 5=3.6, 6=9, 7=14, 8=19, 9=23, 10=29)

IV. ___

REASONS FOR DEPARTURE ______________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

_________________________ JUDGE’S SIGNATURE

Effective Date: For offenses committed under the sentencing guidelineseffective October 1, 1995 or any subsequent revision.

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If reasons cited for departure are not listed below, please write reasons on the reverse side.
Reasons for Departure — Aggravating Circumstances

Legitimate, uncoerced, plea bargain. Offenses was one of violence and was committed in a manner that was especially heinous, atrocious or cruel. Offenses arose from separate episodes. Primary offense is at level 4 or higher and the defendant has committed 5 or more offenses within a 180 day period that have resulted in convictions. Primary offense is scored at level 3 and the defendant has committed 8 or more offenses within a 180 day period that have resulted in convictions. Offense was committed within 6 months of defendant’s discharge from a release program or state prison. Defendant occupied leadership role in a criminal organization. Offense committed by a public official under color of office. Defendant knew victim was a law enforcement officer at the time of the offense: the offense was a violent offense; and the status is not an element of the primary offense. Offense created substantial risk of death or great bodily harm to many persons or to one or more small children. Victim especially vulnerable due to age or physical or mental disability. Offense was motivated by prejudice based on race, color, ancestry, ethnicity, religion, sexual orientation, or national origin of the victim. Victim suffered extraordinary physical or emotional trauma or permanent physical injury, or was treated with particular cruelty. Victim was physically attacked by the defendant in the presence of one or more members of the victim’s family. Offense resulted in substantial economic hardship to a victim and consisted of an illegal act or acts committed by means of concealment, guile, or fraud to obtain money or property, to avoid payment or loss of money or property, or to obtain business or professional advantage, when two or more of the following circumstances were present: Offense involved multiple victims or multiple incidents per victim; Offense involved a high degree of sophistication or planning or occurred over a lengthy period of time; The defendant used position or status to facilitate the commission of the offense, including positions of trust, confidence, or fiduciary relationship; or The defendant was in the past involved in other conduct similar to that involved in the current offense. Offense committed in order to prevent or avoid arrest, to impede or prevent or avoid arrest, to impede or prevent prosecution for the conduct underlying the arrest, or to effect an escape from custody. Defendant is not amenable to rehabilitation or supervision, as evidenced by an escalating pattern of criminal conduct as described in s. 92.001(8) Defendant induced a minor to participate in any of the offenses pending before the court for disposition. Primary offense is scored at level 7 or higher and the defendant has been convicted of one or more offense that scored, or would have scored, at an offense 8 or higher. Defendant has an extensive unscoreable juvenile record. Effective for offenses committed on or after January 1, 1997 — Defendant committed an offense involving sexual contact or sexual penetration and as direct result of the offense, the victim contracted a sexually transmissible disease.

Reasons for Departure — Mitigating Circumstances

Legitimate, uncoerced plea bargain. Defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct. The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirement of law was substantially impaired. Defendant requires specialized treatment for addiction, mental disorder, or physical disability, and the defendant is amenable to treatment. Effective only for offenses committed prior to July 1, 1997 — Defendant requires specialized treatment for addiction and is amenable to treatment. The need for payment of restitution to the victim outweighs the need for a prison sentence. The victim was an initiator, willing participant, aggressor, or provoker of the incident. The defendant acted under extreme duress or under the domination of another person. Before the identity of the defendant was determined, the victim was substantially compensated. Defendant cooperated with the State to resolve the current offense or any other offense. The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. At the time of the offense the defendant was too young to appreciate the consequences of the offense. Defendant to be sentence as a youthful offender.

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