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 796
INTRODUCER: Senator Bradley
SUBJECT: Tampering with or Fabricating Physical Evidence
DATE: January 24, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Cellon Jones CJ Pre-meeting
2. JU
3. RC
I. Summary:
SB 796 creates a tiered system of tampering with or fabricating evidence offenses, in addition to
the current third degree felonies provided in s. 918.13(1), F.S.
The bill creates a second degree felony offense of tampering with or fabricating evidence relating
to a criminal trial or proceeding or an investigation involving a violent felony offense described
in s. 775.084(1)(b)1., F.S.
The bill also creates a second degree felony offense of tampering with or fabricating evidence
relating to a criminal trial or proceeding or an investigation involving a capital offense, or an
offense involving the death of a person.
The bill makes a violation of s. 918.13(1)(b), F.S., a Level 3 offense in the Offense Severity
Ranking Chart (OSRC).
This bill will likely have a “positive indeterminate” prison bed impact (an unquantifiable
increase in prison beds). See Section V. Fiscal Impact Statement.
The bill is effective October 1, 2022.
II. Present Situation:
Tampering With or Fabricating Physical Evidence
Section 918.13, F.S., prohibits a person, knowing that a criminal trial or proceeding, or an
investigation by a prosecuting authority, law enforcement agency, grand jury, or legislative
committee is pending or about to be instituted, from:
REVISED: BILL: SB 796 Page 2
Altering, destroying, concealing, or removing any record, document, or thing with the
purpose to impair its verity or availability in the proceeding or investigation, or
Making, presenting, or using any record, document, or thing, knowing it to be false.
A person convicted of tampering with or fabricating physical evidence commits a third degree
felony.
1
Under current law, the criminal penalty does not vary based on the severity of the
underlying crime that is being investigated or prosecuted, so a person convicted of tampering
with evidence in a murder investigation is subject to the same penalty as a person that tampers
with evidence in a case involving misdemeanor marijuana possession.
A person may only be convicted of tampering with evidence in circumstances where the person
has the specific intent to destroy or conceal evidence to such an extent that it is unavailable for
trial or investigation.
2
Serious Felony Offenses
Capital Offenses
A capital felony is the most serious classification of felony offenses. A capital felony is a crime
that is punishable by either death or life imprisonment without the possibility of parole.
3
Currently, first degree murder and certain drug trafficking offenses are capital offenses.
4
Violent Felony Offenses
Section 775.084(1)(b)1., F.S., contains a list of criminal offenses that provide for enhanced
criminal penalties for a defendant who is classified as a habitual violent felony offender. This list
is frequently referred to by the shorthand “violent felony offenses.” This list contains the
following offenses:
Arson;
Sexual battery;
Robbery;
Kidnapping;
Aggravated child abuse;
Aggravated abuse of an elderly person or a disabled adult;
Aggravated assault with a deadly weapon;
Murder;
Manslaughter;
Aggravated manslaughter of an elderly person or disabled adult;
Aggravated manslaughter of a child;
Unlawful throwing, placing, or discharging of a destructive device or bomb;
Armed burglary;
Aggravated battery; and
Aggravated stalking.
1
A third degree felony is punishable by up to 5 years imprisonment and a $5,000 fine. Sections 775.082 and 775.083, F.S.
2
E.I. v. State, 25 So.3d 626 (Fla. 2d DCA 2009).
3
Section 775.082(1)(a), F.S.
4
See ss. 782.04(2)(a) and 893.135, F.S. BILL: SB 796 Page 3
Offense Severity Ranking Chart
Felony offenses subject to the Criminal Punishment Code are listed in a single offense severity
ranking chart (OSRC), which uses 10 offense levels to rank felonies from least severe (Level 1)
to most severe (Level 10). A person’s primary offense, any other current offenses, and prior
offenses are scored using the points designated for the offense severity level of each offense. The
final calculation, following the scoresheet formula, determines the lowest permissible sentence
that the trial court may impose, absent a valid reason for departure.
5
If an offense is unranked, the Criminal Punishment Code specifies a default level on the OSRC
depending on the felony degree of the offense. The criminal offense of altering, destroying, or
concealing physical evidence is ranked as a Level 3 offense on the OSRC.
6
The criminal offense
of making, presenting, or using physical evidence while knowing it is false is not ranked on the
OSRC and defaults to a Level 1 offense.
7
III. Effect of Proposed Changes:
The bill creates a tiered system of tampering with or fabricating evidence offenses, in addition to
the current third degree felonies in s. 918.13(1), F.S. The bill amends s. 918.13, F.S., by adding
two new felony offenses building upon the current offense of tampering with or fabricating
evidence. The new offenses provide that:
If a person commits tampering with or fabricating evidence relating to a criminal trial or
proceeding or an investigation that relates to a violent felony offense described in
s. 775.084(1)(b)1., F.S.,
8
he or she commits a second degree felony.
9
A person commits a second degree felony
10
if he or she commits tampering with or
fabricating evidence relating to a criminal trial or proceeding or an investigation relating to a
capital felony, or an offense that results in the death of a person.
Both of these new offenses are unranked in the OSRC. An unranked second degree felony is a
Level 4 offense.
11
The bill ranks the previously unranked third degree felony offense of making,
presenting, or using any record, document, or other thing, knowing it to be false, as a Level 3
offense in the OSRC.
12
The bill is effective October 1, 2022.
5
Section 921.0022(3)(c), F.S.
6
Id.
7
Section 921.0023, F.S.
8
See the list of violent felony offenses in Section II, Present Situation.
9
A second degree felony is punishable by up to 15 years imprisonment and a $10,000 fine. Sections 775.082 and 775.083,
F.S.
10
Id.
11
Section 921.0023(2), F.S.
12
Section 921.0022(3)(c), F.S. BILL: SB 796 Page 4
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,
Section 18 of the State 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.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The Criminal Justice Impact Conference has not yet considered SB 796, however the
Office of Economic and Demographic Research has provided a Proposed Estimate for the
bill.
13
The Proposed Estimate for SB 796 is that the bill will have a Positive
Indeterminate impact (an unquantifiable increase in prison beds) on the Department of
Corrections.
14
VI. Technical Deficiencies:
None.
13
On file with the Senate Criminal Justice Committee.
14
Id. BILL: SB 796 Page 5
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 918.13 and
921.0022.
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.