The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Criminal Justice
BILL: SB 276
INTRODUCER: Senator Rouson
SUBJECT: Sentencing
DATE: November 1, 2021
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Erickson Jones CJ Pre-meeting
2. ACJ
3. AP
I. Summary:
SB 276 retroactively applies the 2016 amendments to s. 775.087, F.S., the “10-20-Life” statute,
which removed aggravated assault and attempted aggravated assault as predicate offenses for
sentencing under that statute. The 2016 amendments were prospective in application and only
benefitted offenders who committed those offenses on or after the effective date of the 2016
amendments. Retroactive application of the amendments benefits those offenders subject to the
mandatory sentencing provisions of “10-20-Life” based on aggravated assault or attempted
aggravated assault committed before the effective date of the 2016 amendments. They would no
longer be subject to this statute and its mandatory penalties.
The bill also retroactively applies:
The 2019 amendments to the gram weight thresholds and ranges applicable to hydrocodone
trafficking and codeine trafficking; and
The 2014 amendments to the gram weight thresholds and ranges applicable to oxycodone
trafficking.
These amendments were prospective in application and only benefited those offenders with
relevant trafficking offenses committed on or after the effective date of the amendments.
Retroactive application of the amendments may benefit those offenders who committed
hydrocodone, codeine, or oxycodone trafficking before the effective date of the amendments.
Depending on the quantity trafficked, the offenders may no longer be subject to mandatory
trafficking penalties or may be subject to reduced mandatory trafficking penalties.
The bill also provides procedures for resentencing eligible offenders.
The Legislature’s Office of Economic and Demographic Research (EDR) preliminarily estimates
that the bill will have a “negative indeterminate” prison bed impact (an unquantifiable decrease
in prison beds). The Department of Corrections (DOC) estimates that the bill will have an
REVISED: BILL: SB 276 Page 2
indeterminate fiscal impact on the department but may require $17,400 for programming
changes to adjust gain-time and identify impacted offenders. See Section V. Fiscal Impact
Statement.
The bill takes effect October 1, 2022.
II. Present Situation:
2016 Amendments to the “10-20-Life” Statute
Section 775.087, F.S., otherwise known as the “10-20-Life” statute, requires a judge to sentence
a person convicted of a specified offense to a minimum term of imprisonment if, while
committing the offense, the person possesses or discharges a firearm or destructive device
1
or if
the discharge of the firearm results in death or great bodily harm. Specified offenses include such
offenses as murder, sexual battery, robbery, and burglary.
2
Under s. 775.087, F.S., a person convicted of a specified offense, or the attempt to commit such
offense, must be sentenced to the following mandatory minimum term of imprisonment:
10 years for possession of a firearm;
15 years for possession of a semi-automatic/machine gun;
20 years for discharge of a firearm (any type); or
25 years to life imprisonment for discharge with great bodily injury or death.
3
However, s. 775.087(2)(a)1., F.S., provides for a minimum mandatory sentence of 3 years,
instead of 10 years, for the possession of a firearm by a felon or burglary of a conveyance if the
possession occurred during the commission of the offense.
A person sentenced under s. 775.087, F.S., is not eligible for statutory gain-time under
s. 944.275, F.S.
4
Section 775.087, F.S.,
5
used to include aggravated assault and attempted aggravated assault as
predicate offenses for purposes of mandatory minimum sentencing under the statute, until the
Legislature removed those offenses from the statute in 2016. Further, the statute in effect
immediately prior to its 2016 amendment also prohibited imposing the mandatory minimum
sentence for aggravated assault and attempted aggravated assault if the court made written
findings that:
The defendant had a good faith belief that the aggravated assault was justifiable pursuant to
ch. 776, F.S.;
The aggravated assault was not committed in the course of committing another criminal
offense;
The defendant does not pose a threat to public safety; and
1
The terms “firearm” and “destructive device” are defined in s. 790.001, F.S.
2
For a complete list of offenses, see s. 775.087(3)(a)1., F.S.
3
Section 775.087(2)(a)1.-3. and (3)(a)1.-3., F.S.
4
Section 775.087(2)(b) and (3)(b), F.S.
5
Chapter 2016-7, L.O.F. (effective July 1, 2016). BILL: SB 276 Page 3
The totality of the circumstances involved in the offense do not justify the imposition of such
sentence.
6
The 2016 legislation had prospective application.
Drug Trafficking Offenses
Drug trafficking, which is punished in s. 893.135, F.S., consists of knowingly selling,
purchasing, manufacturing, delivering, or bringing into this state (importation), or knowingly
being in actual or constructive possession of, certain Schedule I or Schedule II controlled
substances in a statutorily-specified quantity. The statute only applies to a limited number of
controlled substances, including hydrocodone, codeine, and oxycodone.
Most drug trafficking offenses are first degree felonies
7
and are subject to a mandatory minimum
term of imprisonment and a mandatory fine,
8
which is determined by the weight or quantity of
the substance.
9
For example, trafficking in 28 grams or more, but less than 200 grams, of
cocaine, a first degree felony, is punishable by a 3-year mandatory minimum term of
imprisonment and a mandatory fine of $50,000.
10
Trafficking in 200 grams or more, but less than
400 grams, of cocaine, a first degree felony, is punishable by a 7-year mandatory minimum term
of imprisonment and a mandatory fine of $100,000.
11
Changes have been made over the years to gram weight threshold and ranges for trafficking in
hydrocodone, codeine, and oxycodone (described below). As a result of changes to gram weight
thresholds, the bar became higher for charging trafficking. As a result of changes to gram weight
ranges, some persons were subject to less severe mandatory minimum terms and mandatory fines
than they would have been subject to had the law not been changed. All of these changes were
prospective in application.
Trafficking in Oxycodone
Prior to the 2014 legislative changes to s. 893.135, F.S., the statute provided for the following
gram weight threshold and ranges and mandatory penalties for trafficking in oxycodone, any salt
of oxycodone, and any mixture containing oxycodone:
If 4 grams or more but less than 14 grams, a mandatory minimum term of imprisonment of 3
years and a fine of $50,000;
If 14 grams or more but less than 28 grams, a mandatory minimum term of imprisonment of
15 years and a fine of $100,000; or
6
Section 775.087(6), F.S. (2015). This exception to mandatory minimum sentencing was created by ch. 2014-195, L.O.F.
(effective June 20, 2014).
7
A first degree felony is generally punishable by up to 30 years in state prison and a fine of up to $10,000. Sections 775.082
and 775.083, F.S.
8
Section 893.135, F.S., provides for mandatory fines which are greater than the maximum $10,000 fine prescribed in
s. 775.083, F.S., for a first degree felony. However, s. 775.083, F.S., which relates to fines, authorizes any higher amount if
specifically authorized by statute.
9
See s. 893.135, F.S.
10
Section 893.135(1)(b)1.a., F.S.
11
Section 893.135(1)(b)1.b., F.S. BILL: SB 276 Page 4
If 28 grams or more but less than 30 kilograms, a mandatory minimum term of imprisonment
of 25 years and a fine of $500,000.
12
In 2014, the Legislature revised the gram weight threshold and ranges for trafficking in
oxycodone, any salt of oxycodone, and any mixture containing oxycodone:
If 7 grams or more but less than 14 grams, a mandatory minimum term of imprisonment of 3
years and a fine of $50,000;
If 14 grams or more but less than 25 grams, a mandatory minimum term of imprisonment of
7 years and a fine of $100,000;
If 25 grams or more but less than 100 grams, a mandatory minimum term of imprisonment of
15 years and a fine of $500,000; or
If 100 grams or more but less than 30 kilograms, a mandatory minimum term of
imprisonment of 25 years and a fine of $750,000.
13
Trafficking in Hydrocodone
Prior to the 2014 legislative changes to s. 893.135, F.S., the statute provided the same gram
weight threshold and ranges and mandatory penalties for trafficking in hydrocodone, any salt of
hydrocodone, and any mixture containing hydrocodone as were provided for trafficking in
oxycodone, any salt of oxycodone, and any mixture containing oxycodone (see description above
of the oxycodone trafficking offense before the 2014 legislative changes).
The 2014 legislation that amended the oxycodone trafficking offense also revised the gram
weight threshold and ranges for trafficking in hydrocodone, any salt of hydrocodone, and any
mixture containing hydrocodone:
If 14 grams or more but less than 28 grams, a mandatory minimum term of imprisonment of
3 years and a fine of $50,000;
If 28 grams or more but less than 50 grams, a mandatory minimum term of imprisonment of
7 years and a fine of $100,000;
If 50 grams or more but less than 200 grams, a mandatory minimum term of imprisonment of
15 years and a fine of $500,000; or
If 200 grams or more but less than 30 kilograms, a mandatory minimum term of
imprisonment of 25 years and a fine of $750,000.
14
In 2019, the Legislature further revised the gram weight threshold and ranges for trafficking in
hydrocodone, any salt of hydrocodone, and any mixture containing hydrocodone:
If 28 grams or more but less than 50 grams, a mandatory minimum term of imprisonment of
3 years and a fine of $50,000;
If 50 grams or more but less than 100 grams, a mandatory minimum term of imprisonment of
7 years and a fine of $100,000;
If 100 grams or more but less than 300 grams, a mandatory minimum term of imprisonment
of 15 years and a fine of $500,000; or
12
Section 893.135(1)(c)1., F.S. (2013).
13
Chapter 2014-176, L.O.F. (effective July 1, 2014) and s. 893.135(1)(c)3., F.S.
14
Chapter 2014-176, L.O.F. (effective July 1, 2014) and s. 893.135(1)(c)2., F.S. BILL: SB 276 Page 5
If 300 grams or more but less than 30 kilograms, a mandatory minimum term of
imprisonment of 25 years and a fine of $750,000.
15
Trafficking in Codeine
The offense of trafficking in codeine, which was created in 2017,
16
was also amended by the
2019 legislation that amended the hydrocodone trafficking offense.
17
Prior to the 2019 legislative
changes to s. 893.135, F.S., the statute provided for the following gram weight threshold and
ranges and mandatory penalties for trafficking in codeine, any salt of codeine, and any mixture
containing codeine:
If 14 grams or more but less than 28 grams, a mandatory minimum term of imprisonment of
3 years and a fine of $50,000;
If 28 grams or more but less than 50 grams, a mandatory minimum term of imprisonment of
7 years and a fine of $100,000;
If 50 grams or more but less than 200 grams, a mandatory minimum term of imprisonment of
15 years and a fine of $500,000; and
If 200 grams or more but less than 30 kilograms, a mandatory minimum term of
imprisonment of 25 years and a fine of $750,000.
18
The 2019 legislation that amended the hydrocodone trafficking offense
19
also revised the gram
weight threshold and ranges for trafficking in codeine, and salt of codeine, and any mixture
containing codeine in the same manner as for the hydrocodone trafficking offense (see
description above of the 2019 legislative changes to the hydrocodone trafficking offense).
20
Constitutional and Statutory Savings Clauses
Article X, s. 9, of the Florida Constitution (Florida’s constitutional savings clause) used to
expressly prohibit any repeal or amendment of a criminal statute that affected prosecution or
punishment for any crime previously committed, and therefore, the Florida Legislature was
“powerless to lessen penalties for past transgressions; to do so would require constitutional
revision.”
21
In 2018, voters adopted the following amendment to Article X, s. 9, of the Florida Constitution:
Repeal or amendment of a criminal statute shall not affect prosecution or punishment for
any crime previously committed before such repeal.
Revised Article X, s. 9, of the Florida Constitution only prohibits applying the repeal of a
criminal statute to any crime committed before such repeal if this retroactive application “affects
15
Chapter 2019-167, L.O.F. (effective Oct. 1, 2019) and s. 893.135(1)(c)2., F.S.
16
Chapter 2017-197, L.O.F. (effective Oct. 1, 2017) and s. 893.135(1)(c)2., F.S.
17
Chapter 2019-167, L.O.F. (effective Oct. 1, 2019).
18
Section 893.135(1)(c)2., F.S. (2018).
19
Chapter 2019-167, L.O.F. (effective Oct. 1, 2019).
20
Section 893.135(1)(c)2., F.S.
21
Comment, Today’s Law and Yesterday’s Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U. Pa.
L. Rev. 120, 129 (1972). BILL: SB 276 Page 6
prosecution.” The revised constitutional savings clause does not expressly prohibit retroactive
application of a repeal that does not affect prosecution, a repeal that affects punishment, or an
amendment of a criminal statute that affects prosecution or punishment.
The elimination of the expressed prohibition on certain retroactive applications is not a directive
to the Legislature to retroactively apply what was formerly prohibited. As the Florida Supreme
Court stated: “… [T]here will no longer be any provision in the Florida Constitution that would
prohibit the Legislature from applying an amended criminal statute retroactively to pending
prosecutions or sentences. However, nothing in our constitution does or will require the
Legislature to do so, and the repeal of the prohibition will not require that they do so.”
22
In 2019, the Legislature created s. 775.022, F.S., a general savings statute for criminal statutes.
The statute defines a “criminal statute” as a statute, whether substantive or procedural, dealing in
any way with a crime or its punishment, defining a crime or a defense to a crime, or providing
for the punishment of a crime.
23
The statute specifies legislative intent to preclude:
Application of the common law doctrine of abatement to a reenactment or an amendment of
a criminal statute; and
Construction of a reenactment or amendment as a repeal or an implied repeal
24
of a criminal
statute for purposes of Article X, s. 9, of the Florida Constitution.
25
The statute also states that, except as expressly provided in an act of the Legislature or as
provided in two specified exceptions, the reenactment or amendment of a criminal statute
operates prospectively and does not affect or abate any of the following:
The prior operation of the statute or a prosecution or enforcement under the criminal statute;
A violation of the criminal statute based on any act or omission occurring before the effective
date of the act; and
A prior penalty, prior forfeiture, or prior punishment incurred or imposed under the statute.
26
The first exception is a retroactive amelioration exception that provides that if a penalty,
forfeiture, or punishment for a violation of a criminal statute is reduced by a reenactment or an
amendment of a criminal statute, the penalty, forfeiture, or punishment, if not already imposed,
must be imposed according to the statute as amended.
27
This means the penalty, forfeiture, or
punishment reduction must be imposed retroactively if the sentence has not been imposed,
including the situation in which the sentence is imposed after the effective date of the
amendment. However, nothing in the general savings statute precludes the Legislature from
providing for a more extensive retroactive application either to legislation in the future or
legislation that was enacted prior to the effective date of the general savings statute. This is
22
Jimenez v. Jones, 261 So.3d 502, 504 (Fla. 2018).
23
Section 775.022(2), F.S.
24
The Florida Supreme Court previously indicated that the “standard [is] that implied repeals are disfavored and should only
be found in cases where there is a ‘positive repugnancy’ between the two statutes or ‘clear legislative intent’ indicating that
the Legislature intended the repeal[.]” Flo-Sun, Inc. v. Kirk, 783 So.2d 1029, 1036 (Fla. 2001).
25
Section 775.022(1), F.S.
26
Section 775.022(3), F.S.
27
Section 775.022(4), F.S. BILL: SB 276 Page 7
because the general savings statute specifically provides for a legislative exception to the default
position of prospectively. The Legislature only has to “expressly provide” for this retroactive
application.
28
The second exception relates to defenses and provides that the general savings statute does not
limit the retroactive effect of any defense to a criminal statute enacted or amended by the
Legislature to any criminal case that has not yet reached final judgment.
29
III. Effect of Proposed Changes:
Retroactive Application of Amendments to the “10-20-Life” Statute
The bill creates s. 775.08701, F.S., to retroactively apply the 2016 legislative changes
30
to
s. 775.087, F.S., the “10-20-Life” statute, which removed aggravated assault and attempted
aggravated assault from the list of predicate offenses for mandatory minimum sentencing under
the statute. The 2016 legislative changes are retroactively applied in the following manner:
A person who committed aggravated assault or attempted aggravated assault before July 1,
2016, (the effective date of the 2016 legislation) but was not sentenced under former
s. 775.087, F.S., before October 1, 2022 (the effective date of the bill), may not be sentenced
for that violation to a mandatory minimum term of imprisonment under former s. 775.087,
F.S.
A person who committed aggravated assault or attempted aggravated assault before July 1,
2016, who was sentenced before October 1, 2022, to a mandatory minimum term of
imprisonment pursuant to former s. 775.087, F.S., and who is serving such mandatory
minimum term of imprisonment on or after October 1, 2022, must be resentenced in
accordance with resentencing procedures (described below) to a sentence without such
mandatory minimum term of imprisonment. The new sentence must be as provided in
ss. 775.082, 775.083, or 775.084, F.S.
Resentencing must occur in the following manner:
The DOC must notify the person described above of his or her eligibility to request a
sentence review hearing.
The person seeking sentence review under s. 775.08701, F.S., may submit an application to
the court of original jurisdiction requesting that a sentence review hearing be held. The
sentencing court retains original jurisdiction for the duration of the sentence for this purpose.
A person who is eligible for a sentence review hearing under s. 775.08701, F.S., is entitled to
be represented by counsel, and the court must appoint a public defender to represent the
person if he or she cannot afford an attorney.
Upon receiving an application from the eligible person, the court of original sentencing
jurisdiction must hold a sentence review hearing to determine if the eligible person meets the
criteria for resentencing under s. 775.08701, F.S. If the court determines at the sentence
review hearing that the eligible person meets the criteria in s. 775.08701, F.S., for
resentencing, the court must resentence the person as provided in this statute; however, the
28
Section 775.022(3), F.S.
29
Section 775.022(5), F.S.
30
Chapter 2016-7, L.O.F. (effective July 1, 2016). BILL: SB 276 Page 8
new sentence may not exceed the person’s original sentence with credit for time served. If
the court determines that such person does not meet the criteria for resentencing under
s. 775.08701, F.S., the court must provide written reasons why such person does not meet
such criteria.
A person sentenced or resentenced (as described above) is eligible to receive any gain-time
pursuant to s. 944.275, F.S., which he or she was previously ineligible to receive because of the
imposition of the mandatory minimum term of imprisonment.
Retroactive Application of Changes to the Hydrocodone Trafficking and Codeine
Trafficking Offenses
The bill creates s. 893.13501, F.S., to retroactively apply the 2019 legislative changes to the
gram weight threshold and ranges for trafficking in hydrocodone, codeine, any salt of
hydrocodone or codeine, and any mixture containing either controlled substance.
31
The 2019
legislative changes are reflected in current law.
32
The retroactive application does not change the
felony degree of the trafficking offense (first degree felony), because the 2019 legislation, did
not change the felony degree.
The retroactive application applies to the following persons:
A person who committed a first degree felony violation involving trafficking in
hydrocodone, codeine, any salt of hydrocodone or codeine, or any mixture containing either
controlled substance before October 1, 2019 (the effective date of the 2019 legislation) but
who was not sentenced for such violation before October 1, 2022, must be sentenced as
described below.
A person who committed a previously-described trafficking violation involving
hydrocodone, codeine, etc., before October 1, 2019, and who is serving a mandatory
minimum term of imprisonment for such violation on or after October 1, 2022, must be
resentenced as described below and in accordance with resentencing procedures (also
described below).
The bill provides that if the person trafficked in hydrocodone, codeine, any salt of hydrocodone
or codeine, or any mixture containing either substance, in a quantity of:
4 grams or more but less than 28 grams, the person must be sentenced or resentenced as
provided in ss. 775.082, 775.083, or 775.084, F.S.;
28 grams or more but less than 50 grams, the person must be sentenced or resentenced to a
mandatory minimum term of imprisonment of 3 years and ordered to pay a fine of $50,000;
50 grams or more but less than 100 grams, the person must be sentenced or resentenced to a
mandatory minimum term of imprisonment of 7 years and pay a fine of $100,000;
100 grams or more but less than 300 grams, the person must be sentenced or resentenced to a
mandatory minimum term of imprisonment of 15 years and pay a fine of $500,000; and
300 grams or more but less than 30 kilograms, the person must be sentenced or resentenced
to a mandatory minimum term of imprisonment of 25 years and pay a fine of $500,000 if the
trafficking involves hydrocodone, any salt thereof, or any mixture containing hydrocodone,
31
Chapter 2019-167, L.O.F. (effective Oct. 1, 2019).
32
Section 893.135(1)(c)2., F.S. BILL: SB 276 Page 9
or $750,000, if the trafficking involves codeine, or any salt thereof, or any mixture containing
codeine.
33
Resentencing must occur in the following manner:
The DOC must notify the person described above of his or her eligibility to request a
sentence review hearing.
The person seeking sentence review under s. 893.13501, F.S., may submit an application to
the court of original jurisdiction requesting that a sentence review hearing be held. The
sentencing court retains original jurisdiction for the duration of the sentence for this purpose.
A person who is eligible for a sentence review hearing under s. 893.13501, F.S., is entitled to
be represented by counsel, and the court must appoint a public defender to represent the
person if he or she cannot afford an attorney.
Upon receiving an application from the eligible person, the court of original sentencing
jurisdiction must hold a sentence review hearing to determine if the eligible person meets the
criteria for resentencing under s. 893.13501, F.S. If the court determines at the sentence
review hearing that the eligible person meets the criteria in s. 893.13501, F.S., for
resentencing, the court must resentence the person as provided in this statute; however, the
new sentence may not exceed the person’s original sentence with credit for time served. If
the court determines that such person does not meet the criteria for resentencing under
s. 893.13501, F.S., the court must provide written reasons why such person does not meet
such criteria.
Retroactive Application of Amendments to the Oxycodone Trafficking Offense
Section 893.13501, F.S., also retroactively applies the 2014 legislative changes to the gram
weight thresholds and ranges for trafficking in oxycodone, any salt thereof, and a mixture
containing oxycodone.
34
The 2014 legislative changes are reflected in current law.
35
The
retroactive application does not change the felony degree of the trafficking offense (first degree
felony), because the 2014 legislation, did not change the felony degree.
The retroactive application applies to the following persons:
A person who committed a first degree felony violation of former s. 893.135(1)(c)1., F.S.,
before July 1, 2014 (the effective date of the 2014 legislation), which involved trafficking in
oxycodone, any salt of oxycodone, or any mixture containing oxycodone, but who was not
sentenced for such violation before October 1, 2022, must be sentenced as described below.
A person who was sentenced before October 1, 2022, for a first degree felony violation of
former s. 893.135(1)(c)1., F.S., which was committed before July 1, 2014, and which
involved trafficking in oxycodone, any salt of oxycodone, or any mixture containing
oxycodone, must be resentenced as described below and in accordance with resentencing
procedures (see description above of resentencing procedures relating to hydrocodone
trafficking and codeine trafficking).
33
The highest level codeine trafficking offense, which was created in 2017, has always been subject to the $750,000
mandatory fine. See ch. 2017-197, L.O.F. (effective Oct. 1, 2017).
34
Chapter 2014-176, L.O.F. (effective July 1, 2014).
35
Section 893.135(1)(c)3., F.S. BILL: SB 276 Page 10
The bill provides that if the person trafficked in oxycodone, any salt of oxycodone, or any
mixture containing oxycodone, in a quantity of:
4 grams or more but less than 7 grams, the person must be sentenced or resentenced as
provided in ss. 775.082, 775.083, or 775.084, F.S.;
7 grams or more but less than 14 grams, the person must be sentenced or resentenced to a
mandatory minimum term of imprisonment of 3 years and pay a fine of $50,000;
14 grams or more but less than 25 grams, of oxycodone, any salt thereof, or an oxycodone
mixture, the person must be sentenced or resentenced to a mandatory minimum term of
imprisonment of 7 years and pay a fine of $100,000;
25 grams or more but less than 100 grams, the person must be sentenced or resentenced to a
mandatory minimum term of imprisonment of 15 years and a fine of $500,000; and
100 grams or more but less than 30 kilograms, the person must be sentenced or resentenced
to a mandatory minimum term of imprisonment of 25 years and a fine of $500,000.
Resentencing occurs in the same manner as previously described for resentencing in cases
involving retroactive application of changes involving trafficking in hydrocodone or codeine.
Effective Date
The bill takes effect October 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill does not appear to require cities and counties to expend funds or limit their
authority to raise revenue or receive state-shared revenues as specified by Article VII,
s. 18, of the Florida Constitution.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified. BILL: SB 276 Page 11
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The Criminal Justice Impact Conference, which provides the final, official estimate of the
prison bed impact, if any, of legislation, has not yet reviewed the bill. The EDR
preliminarily estimates that the bill will have a “negative indeterminate” prison bed
impact (an unquantifiable decrease in prison beds).
36
The EDR provided the following additional information regarding Section 1 of the bill,
which creates s. 775.08701, F.S., to provide for retroactive application of amendments to
s. 775.087, F.S. (the “10-20-Life” statute):
Per DOC, there are currently 141 cases eligible under this criteria, though it is
unknown how their new sentences would be structured. Furthermore, it is not
known how many offenders committed their offenses prior to July 1, 2016 and
have yet to be sentenced.
37
The EDR provided the following additional information regarding Section 2 of the bill,
which creates s. 893.13501, F.S., to provide for retroactive application of amendments to
s. 893.135, F.S., relating to trafficking in hydrocodone, oxycodone, and codeine:
Per DOC, as of September 30, 2021, there were 666 offenders incarcerated for
trafficking in illegal drugs with an offense committed before July 1, 2014. For the
4 or more, but less than 14 gram threshold group, of the 183 incarcerated, there
were no offenders with sentence lengths less than 3 years, though this is likely the
outcome of when the offenses were committed, since most offenders with smaller
sentences would no longer be incarcerated over six years after committing an
offense. For the 14 or more, but less than 28 gram threshold group, of the 220
incarcerated, there are some with sentence lengths less than 15 years (27,
12.27%), with 127 (57.73%) having sentences of exactly fifteen years. Finally, for
the 28 or more, but less than 30 kilogram threshold group, of the 263 incarcerated,
there is also a large number with sentence lengths less than 25 years (99, 37.64%),
with 99 (37.64%) having sentences of exactly 25 years. Though it is possible that
those offenders clustered around the mandatory minimum sentences could see an
impact from this bill, it is not known how many of these offenders would be
eligible for resentencing since DOC does not have information on how many were
36
The EDR estimate of SB 276 is on file with the Senate Committee on Criminal Justice.
37
Id. BILL: SB 276 Page 12
incarcerated for hydrocodone/codeine or oxycodone prior to July 1, 2014. It is
also not known how many additional offenders have yet to be sentenced who
committed their offenses prior to October 1, 2022.
There has been one commitment to prison since the change in
hydrocodone/codeine thresholds on October 1, 2019. This was for an offense
under the 28 or more, but less than 50 grams threshold, and this person received a
sentence below the 3 year mandatory minimum (13 months). Furthermore, there
are currently 49 offenders incarcerated under the hydrocodone/codeine thresholds
prior to that date. For the 14 or more, but less than 28 gram threshold group, of
the 23 incarcerated, there is one with a sentence length less than 3 years (1,
4.35%), with 3 (13.04%) having sentences of exactly three years. Finally, for the
28 or more, but less than 50 grams threshold group, of the 16 incarcerated, there
are also a few with sentence lengths less than 7 years (4, 25%), with 6 (37.50%)
having sentences of exactly 7 years. There are only 10 incarcerated at higher
thresholds, and only 2 are at or above the mandatory minimums for these
thresholds. Given the new thresholds for hydrocodone/codeine removing the 3
year mandatory minimum for more than 14 and less than 28 grams, as well as
reducing the mandatory minimum from 7 years to 3 years for more than 28 and
less than 50 grams, these two incarcerated groups, especially the 9 offenders with
sentence lengths that line up with mandatory minimums, could possibly be
impacted by this language. However, it is also not known how many additional
offenders have yet to be sentenced who committed their offenses prior to
October 1, 2022.
Since hydrocodone and oxycodone were initially recorded under trafficking in
illegal drugs, it is not known how many would be eligible for resentencing, nor is
it known how offenders are currently sentenced when hydrocodone and
oxycodone fall below their trafficking thresholds. However, both sentence length
and incarceration rates are significantly lower for offenses under s. 893.13, F.S.
when compared to the trafficking in illegal drugs threshold where these drug types
initially were (4 grams or more, less than 14 grams), and could impact
resentencing decisions for those who are eligible.
38
The DOC estimates that the bill will have an indeterminate fiscal impact on the
department but may require $17,400 for programming changes to adjust gain-time and
identify impacted offenders.
39
VI. Technical Deficiencies:
None.
38
Id.
39
2022 Agency Legislative Bill Analysis (SB 276) (Oct. 26, 2021), Department of Corrections (on file with the Senate
Committee on Criminal Justice). BILL: SB 276 Page 13
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates the following sections of the Florida Statutes: 775.08701 and 893.13501.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.