Florida Senate - 2022 SB 1138 By Senator Powell 30-01129-22 20221138__ 1 A bill to be entitled 2 An act relating to criminal sentencing; amending s. 3 921.0024, F.S.; prohibiting points from being assessed 4 for violations of community sanctions which are 5 resolved under an alternative sanctioning program for 6 purposes of calculations under the Criminal Punishment 7 Code; amending s. 948.06, F.S.; providing for the 8 resolution of low-risk violations of probation through 9 an alternative sanctioning program in certain 10 circumstances; revising the definition of the term 11 technical violation; correcting provisions 12 concerning limiting prison sentences for first-time 13 revocations for technical violations; providing for 14 structured sentences when technical violations result 15 in prison terms in certain circumstances; providing 16 time periods for hearing and release of a probationer 17 or offender concerning alleged violations that are 18 criminal traffic offenses or low-risk violations; 19 revising the definition of the term moderate-risk 20 violation; providing that an alternative sanction is 21 the required method for resolving certain low-risk 22 violations; providing an exception; providing an 23 effective date. 24 25 Be It Enacted by the Legislature of the State of Florida: 26 27 Section 1.Paragraph (b) of subsection (1) of section 28 921.0024, Florida Statutes, is amended to read: 29 921.0024Criminal Punishment Code; worksheet computations; 30 scoresheets. 31 (1) 32 (b)WORKSHEET KEY: 33 34 Legal status points are assessed when any form of legal status 35 existed at the time the offender committed an offense before the 36 court for sentencing. Four (4) sentence points are assessed for 37 an offenders legal status. 38 39 Community sanction violation points are assessed when a 40 community sanction violation is before the court for sentencing. 41 Six (6) sentence points are assessed for each community sanction 42 violation and each successive community sanction violation, 43 unless any of the following apply: 44 1.If the community sanction violation includes a new 45 felony conviction before the sentencing court, twelve (12) 46 community sanction violation points are assessed for the 47 violation, and for each successive community sanction violation 48 involving a new felony conviction. 49 2.If the community sanction violation is committed by a 50 violent felony offender of special concern as defined in s. 51 948.06: 52 a.Twelve (12) community sanction violation points are 53 assessed for the violation and for each successive violation of 54 felony probation or community control where: 55 I.The violation does not include a new felony conviction; 56 and 57 II.The community sanction violation is not based solely on 58 the probationer or offenders failure to pay costs or fines or 59 make restitution payments. 60 b.Twenty-four (24) community sanction violation points are 61 assessed for the violation and for each successive violation of 62 felony probation or community control where the violation 63 includes a new felony conviction. 64 65 Multiple counts of community sanction violations before the 66 sentencing court shall not be a basis for multiplying the 67 assessment of community sanction violation points. 68 Prior serious felony points: If the offender has a primary 69 offense or any additional offense ranked in level 8, level 9, or 70 level 10, and one or more prior serious felonies, a single 71 assessment of thirty (30) points shall be added. For purposes of 72 this section, a prior serious felony is an offense in the 73 offenders prior record that is ranked in level 8, level 9, or 74 level 10 under s. 921.0022 or s. 921.0023 and for which the 75 offender is serving a sentence of confinement, supervision, or 76 other sanction or for which the offenders date of release from 77 confinement, supervision, or other sanction, whichever is later, 78 is within 3 years before the date the primary offense or any 79 additional offense was committed. 80 81 Prior capital felony points: If the offender has one or more 82 prior capital felonies in the offenders criminal record, points 83 shall be added to the subtotal sentence points of the offender 84 equal to twice the number of points the offender receives for 85 the primary offense and any additional offense. A prior capital 86 felony in the offenders criminal record is a previous capital 87 felony offense for which the offender has entered a plea of nolo 88 contendere or guilty or has been found guilty; or a felony in 89 another jurisdiction which is a capital felony in that 90 jurisdiction, or would be a capital felony if the offense were 91 committed in this state. 92 93 Possession of a firearm, semiautomatic firearm, or machine gun: 94 If the offender is convicted of committing or attempting to 95 commit any felony other than those enumerated in s. 775.087(2) 96 while having in his or her possession: a firearm as defined in 97 s. 790.001(6), an additional eighteen (18) sentence points are 98 assessed; or if the offender is convicted of committing or 99 attempting to commit any felony other than those enumerated in 100 s. 775.087(3) while having in his or her possession a 101 semiautomatic firearm as defined in s. 775.087(3) or a machine 102 gun as defined in s. 790.001(9), an additional twenty-five (25) 103 sentence points are assessed. 104 105 Sentencing multipliers: 106 107 Drug trafficking: If the primary offense is drug trafficking 108 under s. 893.135, the subtotal sentence points are multiplied, 109 at the discretion of the court, for a level 7 or level 8 110 offense, by 1.5. The state attorney may move the sentencing 111 court to reduce or suspend the sentence of a person convicted of 112 a level 7 or level 8 offense, if the offender provides 113 substantial assistance as described in s. 893.135(4). 114 115 Law enforcement protection: If the primary offense is a 116 violation of the Law Enforcement Protection Act under s. 117 775.0823(2), (3), or (4), the subtotal sentence points are 118 multiplied by 2.5. If the primary offense is a violation of s. 119 775.0823(5), (6), (7), (8), or (9), the subtotal sentence points 120 are multiplied by 2.0. If the primary offense is a violation of 121 s. 784.07(3) or s. 775.0875(1), or of the Law Enforcement 122 Protection Act under s. 775.0823(10) or (11), the subtotal 123 sentence points are multiplied by 1.5. 124 125 Grand theft of a motor vehicle: If the primary offense is grand 126 theft of the third degree involving a motor vehicle and in the 127 offenders prior record, there are three or more grand thefts of 128 the third degree involving a motor vehicle, the subtotal 129 sentence points are multiplied by 1.5. 130 131 Offense related to a criminal gang: If the offender is convicted 132 of the primary offense and committed that offense for the 133 purpose of benefiting, promoting, or furthering the interests of 134 a criminal gang as defined in s. 874.03, the subtotal sentence 135 points are multiplied by 1.5. If applying the multiplier results 136 in the lowest permissible sentence exceeding the statutory 137 maximum sentence for the primary offense under chapter 775, the 138 court may not apply the multiplier and must sentence the 139 defendant to the statutory maximum sentence. 140 141 Domestic violence in the presence of a child: If the offender is 142 convicted of the primary offense and the primary offense is a 143 crime of domestic violence, as defined in s. 741.28, which was 144 committed in the presence of a child under 16 years of age who 145 is a family or household member as defined in s. 741.28(3) with 146 the victim or perpetrator, the subtotal sentence points are 147 multiplied by 1.5. 148 149 Adult-on-minor sex offense: If the offender was 18 years of age 150 or older and the victim was younger than 18 years of age at the 151 time the offender committed the primary offense, and if the 152 primary offense was an offense committed on or after October 1, 153 2014, and is a violation of s. 787.01(2) or s. 787.02(2), if the 154 violation involved a victim who was a minor and, in the course 155 of committing that violation, the defendant committed a sexual 156 battery under chapter 794 or a lewd act under s. 800.04 or s. 157 847.0135(5) against the minor; s. 787.01(3)(a)2. or 3.; s. 158 787.02(3)(a)2. or 3.; s. 794.011, excluding s. 794.011(10); s. 159 800.04; or s. 847.0135(5), the subtotal sentence points are 160 multiplied by 2.0. If applying the multiplier results in the 161 lowest permissible sentence exceeding the statutory maximum 162 sentence for the primary offense under chapter 775, the court 163 may not apply the multiplier and must sentence the defendant to 164 the statutory maximum sentence. 165 3.If the community sanction violation is resolved through 166 the alternative sanctioning program under s. 948.06(9), no 167 points are assessed. If a community sanction violation not 168 resolved through the alternative sanctioning program is before 169 the court, no points are assessed for prior violations that were 170 resolved through the alternative sanctioning program. 171 Section 2.Paragraph (c) of subsection (1), paragraph (f) 172 of subsection (2), subsection (4), and paragraphs (c), (d), (e), 173 and (i) of subsection (9) of section 948.06, Florida Statutes, 174 are amended to read: 175 948.06Violation of probation or community control; 176 revocation; modification; continuance; failure to pay 177 restitution or cost of supervision. 178 (1) 179 (c)If a probationer or offender on community control 180 commits a technical violation, the probation officer shall 181 determine whether the probationer or offender on community 182 control is eligible for the alternative sanctioning program 183 under subsection (9). If the probation officer determines that 184 the probationer or offender on community control is eligible, 185 the probation officer may proceed with the alternative 186 sanctioning program in lieu of filing an affidavit of violation 187 with the court. If the probationer or offender on community 188 control is eligible for the alternative sanctioning program and 189 the violation is a low-risk violation, as defined in paragraph 190 (9)(b), the probation officer shall proceed with the alternative 191 sanctioning program in lieu of filing an affidavit of violation 192 with the court unless directed by the court to submit or file an 193 affidavit of violation pursuant to paragraph (9)(i). For 194 purposes of this section, the term technical violation means 195 an alleged violation of supervision that is not a new felony 196 offense, a misdemeanor violation of chapter 784, a misdemeanor 197 crime of domestic violence, as defined in s. 741.28, or a 198 misdemeanor under s. 316.193, s. 741.29, s. 741.31, s. 784.046, 199 s. 784.047, s. 784.048, s. 784.0487, s. 784.049, or s. 787.025 200 misdemeanor offense, or criminal traffic offense other than a 201 misdemeanor violation of s. 322.34. 202 (2) 203 (f)1.Except as provided in subparagraph 4. 3. or upon 204 waiver by the probationer, the court shall modify or continue a 205 probationary term upon finding a probationer in violation when 206 all of the following apply: 207 a.The term of supervision is probation. 208 b.The probationer does not qualify as a violent felony 209 offender of special concern, as defined in paragraph (8)(b). 210 c.The violation is a low-risk technical violation, as 211 defined in paragraph (9)(b). 212 d.The court has not, on two or more separate occasions, 213 previously found the probationer in violation of his or her 214 probation pursuant to a filed violation of probation affidavit 215 during the current term of supervision. A probationer who has 216 successfully completed sanctions through the alternative 217 sanctioning program is eligible for mandatory modification or 218 continuation of his or her probation. 219 2.Upon modifying probation under subparagraph 1., the 220 court may include in the sentence a maximum of 90 days in county 221 jail as a special condition of probation. If the court has 222 previously found the probationer in violation of his or her 223 probation and modified probation with up to 90 days in county 224 jail as a special condition of probation, it may, upon 225 modification of probation under subparagraph 1., include in the 226 sentence a maximum of 120 days in county jail as a special 227 condition of probation. 228 3.2.Upon modifying probation under subparagraph 1., the 229 court may include in the sentence a maximum of 90 days in county 230 jail as a special condition of probation. 231 4.3.Notwithstanding s. 921.0024, if a probationer meets 232 the criteria for mandatory modification in subparagraph 1. but 233 has less time on supervision remaining than the number of days 234 in jail authorized in subparagraph 2. than 90 days of 235 supervision remaining on his or her term of probation and meets 236 the criteria for mandatory modification or continuation in 237 subparagraph 1., the court may revoke probation and sentence the 238 probationer to a maximum of 90 or 120 days in county jail as 239 provided in subparagraph 2. 240 5.4.For purposes of imposing a jail sentence under this 241 paragraph only, the court may grant credit only for time served 242 in the county jail since the probationers most recent arrest 243 for the violation. However, the court may not order the 244 probationer to a total term of incarceration greater than the 245 maximum provided by s. 775.082. 246 (4)Notwithstanding any other provision of this section, a 247 felony probationer or an offender in community control who is 248 arrested for violating his or her probation or community control 249 in a material respect may be taken before the court in the 250 county or circuit in which the probationer or offender was 251 arrested. That court shall advise him or her of the charge of a 252 violation and, if such charge is admitted, shall cause him or 253 her to be brought before the court that granted the probation or 254 community control. If the violation is not admitted by the 255 probationer or offender, the court may commit him or her or 256 release him or her with or without bail to await further 257 hearing. However, if the probationer or offender is under 258 supervision for any criminal offense proscribed in chapter 794, 259 s. 800.04(4), (5), (6), s. 827.071, or s. 847.0145, or is a 260 registered sexual predator or a registered sexual offender, or 261 is under supervision for a criminal offense for which he or she 262 would meet the registration criteria in s. 775.21, s. 943.0435, 263 or s. 944.607 but for the effective date of those sections, the 264 court must make a finding that the probationer or offender is 265 not a danger to the public prior to release with or without 266 bail. In determining the danger posed by the offenders or 267 probationers release, the court may consider the nature and 268 circumstances of the violation and any new offenses charged; the 269 offenders or probationers past and present conduct, including 270 convictions of crimes; any record of arrests without conviction 271 for crimes involving violence or sexual crimes; any other 272 evidence of allegations of unlawful sexual conduct or the use of 273 violence by the offender or probationer; the offenders or 274 probationers family ties, length of residence in the community, 275 employment history, and mental condition; his or her history and 276 conduct during the probation or community control supervision 277 from which the violation arises and any other previous 278 supervisions, including disciplinary records of previous 279 incarcerations; the likelihood that the offender or probationer 280 will engage again in a criminal course of conduct; the weight of 281 the evidence against the offender or probationer; and any other 282 facts the court considers relevant. The court, as soon as is 283 practicable, shall give the probationer or offender an 284 opportunity to be fully heard on his or her behalf in person or 285 by counsel. If the alleged violation is a criminal traffic 286 offense or a low-risk violation, as defined in paragraph (9)(b), 287 the court shall, within 20 days after arrest, give the 288 probationer or offender an opportunity to be fully heard on his 289 or her behalf in person or by counsel. If no hearing is held 290 within 20 days after arrest, the court shall release the 291 probationer or offender without bail. The court may impose 292 nonmonetary conditions of release. After the hearing, the court 293 shall make findings of fact and forward the findings to the 294 court that granted the probation or community control and to the 295 probationer or offender or his or her attorney. The findings of 296 fact by the hearing court are binding on the court that granted 297 the probation or community control. Upon the probationer or 298 offender being brought before it, the court that granted the 299 probation or community control may revoke, modify, or continue 300 the probation or community control or may place the probationer 301 into community control as provided in this section. However, the 302 probationer or offender shall not be released and shall not be 303 admitted to bail, but shall be brought before the court that 304 granted the probation or community control if any violation of 305 felony probation or community control other than a failure to 306 pay costs or fines or make restitution payments is alleged to 307 have been committed by: 308 (a)A violent felony offender of special concern, as 309 defined in this section; 310 (b)A person who is on felony probation or community 311 control for any offense committed on or after the effective date 312 of this act and who is arrested for a qualifying offense as 313 defined in this section; or 314 (c)A person who is on felony probation or community 315 control and has previously been found by a court to be a 316 habitual violent felony offender as defined in s. 775.084(1)(b), 317 a three-time violent felony offender as defined in s. 318 775.084(1)(c), or a sexual predator under s. 775.21, and who is 319 arrested for committing a qualifying offense as defined in this 320 section on or after the effective date of this act. 321 (9) 322 (c)As used in this subsection, the term moderate-risk 323 violation means any of the following: 324 1.A violation identified in paragraph (b), when committed 325 by an offender on community control. 326 2.Failure to remain at an approved residence by an 327 offender on community control. 328 3.A third violation identified in paragraph (b) by a 329 probationer within the current term of supervision. 330 4.A new misdemeanor offense that is not a misdemeanor 331 violation of chapter 784, a misdemeanor crime of domestic 332 violence, as defined in s. 741.28, or a misdemeanor under s. 333 316.193, s. 741.29, s. 741.31, s. 784.046, s. 784.047, s. 334 784.048, s. 784.0487, s. 784.049, or s. 787.025. 335 5.4.Any other violation as determined by administrative 336 order of the chief judge of the circuit. 337 (d)A probationer or offender on community control is not 338 eligible for an alternative sanction if: 339 1.He or she is a violent felony offender of special 340 concern as defined in paragraph (8)(b); 341 2.The violation is a felony, a misdemeanor violation of 342 chapter 784, a misdemeanor crime of domestic violence, as 343 defined in s. 741.28, or a misdemeanor under s. 316.193, s. 344 741.29, s. 741.31, s. 784.046, s. 784.047, s. 784.048, s. 345 784.0487, s. 784.049, or s. 787.025 misdemeanor, or criminal 346 traffic offense other than a misdemeanor violation of s. 322.34; 347 3.The violation is absconding; 348 4.The violation is of a stay-away order or no-contact 349 order; 350 5.The violation is not identified as low-risk or moderate 351 risk under this subsection or by administrative order; 352 6.He or she has a prior moderate-risk level violation 353 during the current term of supervision; 354 7.He or she has three prior low-risk level violations 355 during the same term of supervision; 356 8.The term of supervision is scheduled to terminate in 357 less than 90 days; or 358 9.The terms of the sentence prohibit alternative 359 sanctioning. 360 (e)For a first or second low-risk violation, as defined in 361 paragraph (b), within the current term of supervision, a 362 probation officer shall may offer an eligible probationer one or 363 more of the following as an alternative sanction: 364 1.Up to 5 days in the county jail. 365 2.Up to 50 additional community service hours. 366 3.Counseling or treatment. 367 4.Support group attendance. 368 5.Drug testing. 369 6.Loss of travel or other privileges. 370 7.Curfew for up to 30 days. 371 8.House arrest for up to 30 days. 372 9.a.Any other sanction as determined by administrative 373 order of the chief judge of the circuit. 374 b.However, in no circumstance shall participation in an 375 alternative sanctioning program convert a withheld adjudication 376 to an adjudication of guilt. 377 (i)If the violation is a low-risk violation under 378 paragraph (b), the court shall impose the recommended sanction 379 unless it records a finding of specific, identified risk to 380 public safety, in which case it may direct the department to 381 submit a violation report, affidavit, and warrant to the court. 382 In all other cases, the court may impose the recommended 383 sanction or direct the department to submit a violation report, 384 affidavit, and warrant to the court. 385 Section 3.This act shall take effect October 1, 2022.