Florida Senate - 2022 SB 746 By Senator Brandes 24-00058-22 2022746__ 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 specified 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. 20 21 Be It Enacted by the Legislature of the State of Florida: 22 23 Section 1.Subsection (9) of section 775.082, Florida 24 Statutes, is amended to read: 25 775.082Penalties; 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); 52 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 1.a.-r. sub-subparagraphs (a)1.a.-r. while the 65 defendant was serving a prison sentence or on escape status from 66 a state correctional facility operated by the Department of 67 Corrections or a private vendor or while the defendant was on 68 escape status from a correctional institution of another state, 69 the District of Columbia, the United States, any possession or 70 territory of the United States, or any foreign jurisdiction, 71 following 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 83 imprisonment of 25 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)1.(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, 2022. 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 takes effect on July 1, 105 2022. 106 3.A person who qualified as a prison releasee reoffender 107 before July 1, 2022, and who was not sentenced as a prison 108 releasee reoffender before July 1, 2022, may not be sentenced as 109 such under former s. 775.082(9). Such person, if sentenced as a 110 prison releasee reoffender, must be sentenced as provided in 111 paragraph (a). 112 4.A person who qualified as a prison releasee reoffender 113 before July 1, 2022, who was sentenced as such before July 1, 114 2022, to a mandatory minimum term of imprisonment pursuant to 115 former s. 775.082(9), and who is serving such mandatory minimum 116 term of imprisonment on or after July 1, 2022, must be 117 resentenced in accordance with subparagraph 5. to a sentence as 118 provided in paragraph (a) and sub-subparagraph 5.d. 119 5.Resentencing must occur in the following manner: 120 a.The Department of Corrections shall notify a person 121 described in subparagraph 4. of his or her eligibility to 122 request a sentence review hearing. 123 b.The person seeking sentence review may submit an 124 application to the court of original jurisdiction requesting 125 that a sentence review hearing be held. The sentencing court 126 retains original jurisdiction for the duration of the sentence 127 for this purpose. 128 c.A person who is eligible for a sentence review hearing 129 under this paragraph is entitled to representation by legal 130 counsel. If the person is indigent and unable to employ counsel, 131 the court must appoint counsel under s. 27.52. Determination of 132 indigence and costs of representation is as provided in ss. 133 27.52 and 938.29. 134 d.Upon receiving an application from an eligible person, 135 the court of original jurisdiction shall hold a sentence review 136 hearing to determine if the eligible person meets the criteria 137 for resentencing under subparagraph 4. If the court determines 138 at the sentence review hearing that the eligible person meets 139 such criteria, the court must resentence the person as provided 140 in paragraph (a); however, the new sentence may not exceed the 141 persons original sentence with credit for time served. If the 142 court determines that such person does not meet the criteria for 143 resentencing under subparagraph 4., the court must provide 144 written reasons why such person does not meet such criteria. 145 6.A person resentenced under this subsection is eligible 146 to receive any gain-time pursuant to s. 944.275 which he or she 147 was previously ineligible to receive under former s. 775.082(9) 148 It is the intent of the Legislature that offenders previously 149 released from prison or a county detention facility following 150 incarceration for an offense for which the sentence pronounced 151 was a prison sentence who meet the criteria in paragraph (a) be 152 punished to the fullest extent of the law and as provided in 153 this subsection, unless the state attorney determines that 154 extenuating circumstances exist which preclude the just 155 prosecution of the offender, including whether the victim 156 recommends that the offender not be sentenced as provided in 157 this subsection. 158 2.For every case in which the offender meets the criteria 159 in paragraph (a) and does not receive the mandatory minimum 160 prison sentence, the state attorney must explain the sentencing 161 deviation in writing and place such explanation in the case file 162 maintained by the state attorney. 163 Section 2.This act shall take effect July 1, 2022.