This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0537d.JDC
DATE: 3/29/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 537 Custody and Supervision of Specified Offenders
SPONSOR(S): Criminal Justice Subcommittee, Silvers
TIED BILLS: IDEN./SIM. BILLS: SB 528
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice Subcommittee 17 Y, 1 N, As CS Padgett Hall
2) Justice Appropriations Subcommittee 13 Y, 1 N Smith Keith
3) Judiciary Committee Padgett Kramer
SUMMARY ANALYSIS
CS/HB 537 makes several changes relating to the custody and supervision of specified offenders to align the
sentencing and supervision requirements for a person who commits specified offenses with the sentencing and
supervision requirements for a person who attempts, solicits, or conspires to commit the same specified
offenses as follows:
Amends s. 794.011, F.S., to prohibit the Florida Department of Corrections (FDOC) from granting basic
gain-time to a person who commits, or attempts, solicits, or conspires to commit a sexual battery on or
after July 1, 2023.
Amends s. 944.275, F.S., to prohibit FDOC from granting incentive gain-time to a person who commits,
or attempts, solicits, or conspires to commit specified offenses on or after July 1, 2023.
Amends s. 948.30, F.S., to require a court, for an offense committed on or after July 1, 2023, to
sentence a person to certain additional conditions of probation if the person is convicted of attempting,
soliciting, or conspiring to commit an enumerated offense that would otherwise require a person to be
sentenced to additional conditions of probation in the same manner as if he or she committed the
underlying offense.
The bill amends s. 948.05, F.S., to prohibit a court from reducing the supervision term of a person who is on
probation or community control after being convicted of a criminal offense that is a predicate offense for
designation as a sexual predator under s. 775.21(4)(a)(1)a. or b., F.S., or a sexual offender under s.
943.0435(1)(h)1.a., F.S., or if the person is a violent felony offender of special concern under s. 948.06(8)(b),
F.S.
The bill prohibits inmates who have been convicted of specified offenses, or attempting, soliciting, or conspiring
to commit such specified offenses on or after July 1, 2023, from receiving certain types of gain-time. To the
extent that such inmates are eligible to receive gain-time under current law and would be awarded gain-time in
the future, the bill may have a positive indeterminate prison bed impact by making such inmates ineligible to
receive gain-time and thus, ineligible for an earlier release date from incarceration.
The bill prohibits a reduction in the supervision term for specified probationers or offenders in community
control. To the extent such probationers or offenders in community control are currently receiving a reduction in
the term of supervision, there may be an indeterminate fiscal impact to FDOC workload. Provisions of the bill
would require FDOC to continue supervising such offenders who would otherwise have their term of
supervision reduced. Any workload impact can likely be absorbed within existing resources.
The bill provides an effective date of July 1, 2023. STORAGE NAME: h0537d.JDC PAGE: 2
DATE: 3/29/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Gain-time
Background
The Criminal Punishment Code (Code) applies to convictions for felony offenses, except capital felony
offenses, committed on or after October 1, 1998.
1
Under the Code, a judge must sentence an offender
based on a calculation that determines the lowest and highest permissible sentence up to the statutory
maximum sentence.
2
Any sentence imposed under the Code reflects the length of actual time to be
served and may only be decreased by earned gain-time.
3
Section 944.275, F.S., authorizes the Florida Department of Corrections (FDOC) to grant deductions in
an inmate’s sentence, which is known as gain-time. The types of gain-time that FDOC may award to an
inmate include:
Basic gain-time;
4
Incentive gain-time;
5
Meritorious gain-time;
6
and
Educational achievement gain-time.
7
Some inmates are not eligible to receive specified types of gain-time. FDOC may not award basic gain-
time to any inmate who was convicted of committing a sexual battery on or after October 1, 1992.
8
In
addition, FDOC may not award incentive gain-time to an inmate who committed the following offenses
on or after October 1, 2014:
First degree murder committed by a person engaged in the perpetration of, or in the attempt to
perpetrate a sexual battery in s. 782.04(1)(a)2.c., F.S.;
Sexual battery or lewd and lascivious battery, molestation, conduct, or exhibition committed
during the kidnapping or false imprisonment of a child under the age of 13 in s. 787.01(3)(a)2. or
3. and s. 787.02(3)(a)2. or 3., F.S.;
Sexual battery in s. 794.011, F.S.;
9
Lewd or lascivious offenses committed against a person under the age of 16 or upon or in the
presence of an elderly or disabled person in s. 800.04 and s. 825.1025, F.S.; and
Offenses related to computer pornography and traveling to meet a minor for the purpose of
engaging in unlawful sexual conduct in s. 847.0135(5), F.S.
10
1
S. 921.002, F.S.
2
Id. A judge may impose a sentence below the lowest permissible sentence under the Code only when circumstances or factors
reasonably justify mitigation of a sentence. If a judge imposes a sentence below the lowest permissible sentence, he or she must
articulate in writing the reasons justifying such mitigation. S. 921.002(1)(f), F.S.
3
S. 921.002(1)(e), F.S. An inmate’s sentence may not be shortened if the application of gain-time would result in such inmate serving
less than 85 percent of his or her term of imprisonment imposed by the court. Id.
4
S. 944.275(4)(a), F.S. FDOC may award an inmate up to 10 days each month if an inmate demonstrates satisfactory behavior while
incarcerated. Id.
5
S. 944.275(4)(b), F.S. For sentences imposed on or after October 1, 1995, FDOC may award up to 10 days per month of incentive
gain-time to an inmate who works diligently, participates in training, uses time constructively, or otherwise engages in positive activity.
S. 944.275(4)(b)3., F.S.
6
S. 944.275(4)(c), F.S. FDOC may award up to 60 days of meritorious gain-time to an inmate who commits an outstanding deed or
who performs an outstanding service that merits such an award. Id.
7
S. 944.275(4)(d), F.S. FDOC may grant a one-time award of 60 days of educational achievement gain-time to an inmate who receives
a high school equivalency diploma or a vocational certificate. Id.
8
S. 794.011(7), F.S.
9
Excluding s. 794.011(10), F.S.
10
S. 944.275(4)(e), F.S. Other inmates, such as a prison releasee reoffender under s. 775.082(9), F.S., and inmates serving a life
sentence under s. 775.082(3), F.S., are ineligible to receive gain-time. STORAGE NAME: h0537d.JDC PAGE: 3
DATE: 3/29/2023
Based on prior court decisions, FDOC considers inmates who have been convicted of attempting to
commit a crime that is excluded from eligibility for incentive gain-time to be ineligible for incentive gain-
time in the same manner as if they had been convicted of the underlying crime.
Fla. Dep’t. of Corrections v. Gould
An inmate convicted of attempted sexual battery on a child under the age of 12 filed suit against FDOC
alleging that a conviction for a criminal attempt was not excluded from the award of gain-time by statute
because a conviction for a criminal attempt is a separate and distinct crime than the underlying
offense.
11
The First District Court of Appeal (DCA) receded from previous decisions which held that a
conviction for an attempted crime was a conviction for the underlying offense modified by the attempt
statute in s. 777.04, F.S., and ruled that a conviction for an attempt was a separate and distinct
offense.
12
Thus, a person convicted of attempting to commit a crime that would otherwise be ineligible
for the award of incentive gain-time is eligible for the award of gain-time.
13
FDOC appealed the decision
of the First DCA, which is currently pending before the Florida Supreme Court.
Effect of Proposed Changes – Gain-time
CS/HB 537 amends s. 794.011(7), F.S., to prohibit FDOC, for sentences imposed for offenses
committed on or after July 1, 2023, from granting basic gain-time to a person who is convicted of
committing, or attempting, soliciting, or conspiring to commit a sexual battery in violation of s. 794.011,
F.S.
The bill amends s. 944.275(4)(e), F.S., to prohibit FDOC, for sentences imposed for offenses
committed on or after July 1, 2023, from granting incentive gain-time to a person who is convicted of
attempting, soliciting, or conspiring to commit an offense that is otherwise currently ineligible for the
award of incentive gain-time under s. 944.275(4)(e), F.S. Under the bill, FDOC would continue to be
prohibited from awarding incentive gain-time to a person who is convicted of committing an offense that
is currently ineligible for the award of gain-time.
Probation and Community Control
Background
Probation and Community Control
Probation is a form of community supervision requiring specified contacts with probation officers and
compliance with certain terms and conditions.
14
Following a conviction for a criminal offense, the court
determines the terms and conditions of probation.
15
Standard conditions of probation include:
Reporting to the probation officer as directed.
Permitting the probation officer to visit the probationer at his or her home.
Working faithfully at suitable employment, when possible.
Residing at a specified place.
Living without violating the law.
Paying restitution to any aggrieved party for the damage or loss caused by a probationer’s
offense.
Being prohibited from possessing, carrying, or owning a firearm or weapon, without the
probation officer’s consent.
Being prohibited from using intoxicants to excess or possessing any drugs or narcotics.
16
11
Fla. Dep’t of Corrections v. Gould, 344 So. 3d 496 (Fla. 1st DCA 2022).
12
Id.
13
Id.
14
S. 948.01(8), F.S.
15
S. 948.03(1), F.S.
16
Id. STORAGE NAME: h0537d.JDC PAGE: 4
DATE: 3/29/2023
Community control is a form of intensive supervised custody of an offender who remains in the
community, but whose freedom is restricted within the home, community, or noninstitutional residential
placement and includes specific sanctions and monitoring by probation officers with restricted
caseloads.
17
In addition to the standard conditions which apply to normal probationers, an offender on
community control must:
Maintain specified contact with his or her parole or probation officer;
Be confined to an agreed-upon residence during any hours he or she is away from work or
public service activities;
Complete mandatory public service;
Be supervised by FDOC by means of an electronic monitoring device or system.
18
Section 948.05(2), F.S., authorizes FDOC to implement a system of graduated incentives to promote
compliance with the terms of supervision. FDOC may, without leave of court, award a compliant
probationer or offender in community control specified incentives, including:
A 60 day reduction of his or her term of supervision for each educational advancement activity
19
completed; or
A 30 day reduction of his or her term of supervision for each period of workforce achievement
20
completed.
FDOC may also recommend that the court terminate the supervision of a compliant probationer or
offender in community control early, but the court must approve any such early termination.
21
Violent Felony Offender of Special Concern
A “violent felony offender of special concern” (VFOSC) is a person who is on felony supervision:
Related to a qualifying offense
22
committed on or after March 12, 2007.
For any offense committed on or after March 12, 2007, and who has previously been convicted
of a qualifying offense.
For any offense committed on or after March 12, 2007, and who is found to have violated
supervision by committing a qualifying offense.
And has previously been found by a court to be a habitual violent felony offender,
23
three-time
violent offender,
24
or sexual predator,
25
and who has committed a qualifying offense on or after
March 12, 2007.
26
Effect of Proposed Changes – Probation and Community Control
17
S. 948.001(3), F.S.
18
S. 948.101(1), F.S.
19
S. 948.05(2)(c), F.S. “Educational advancement activity” means a high school equivalency degree, an academic degree, or a
vocational certificate. Id.
20
S. 948.05(2)(d), F.S. “Workforce achievement” means continuous and verifiable full-time employment, for at least 30 hours per week
for a six month period, for which the probationer or offender earns a wage. Id.
21
S. 948.05(2)(b)5., F.S.
22
Section 948.06(8)(c), F.S., defines qualifying offense to include any of the following: kidnapping or attempted kidnapping, s. 787.01,
F.S.; false imprisonment of a child under the age of 13, s. 787.02(3), F.S.; luring or enticing a child, s. 787.025(2)(b) or (b), F.S.; murder
or attempted murder, s. 782.04, F.S.; attempted felony murder, s. 782.051, F.S.; manslaughter, s. 782.07, F.S.; aggravated battery or
attempt, s. 784.045, F.S.; sexual battery or attempt, s. 794.011(2), (3), (4), or (8)(b) or (c), F.S.; lewd and lascivious battery or attempt,
s. 800.04(4), F.S.; lewd and lascivious molestation, s. 800.04(5)(b) or (c), F.S.; lewd and lascivious conduct, s. 800.04(6)(b), F.S.; lewd
and lascivious exhibition, s. 800.04(7)(b), F.S.; lewd and lascivious exhibition on computer, s. 847.0135(5)(b), F.S.; robbery or attempt,
s. 812.13, F.S.; carjacking or attempt, s. 812.133, F.S.; home invasion robbery or attempt, s. 812.135, F.S.; lewd and lascivious offense
upon or in the presence of an elderly person or attempt, s. 825.1025, F.S.; sexual performance by a child or attempt, s. 827.071, F.S.;
computer pornography, s. 847.0135(2) or (3), F.S.; transmission of child pornography, s. 847.0137, F.S.; selling or buying of minors, s.
847.0145, F.S.; poisoning food or water, s. 859.01, F.S.; abuse of a dead human body, s. 872.06, F.S.; any burglary offense that is a
first or second degree felony, s. 810.02(2) or (3), F.S.; arson or attempt, s. 806.01(1), F.S.; aggravated assault, s. 784.021, F.S.;
aggravated stalking, s. 784.048(3), (4), (5), or (7), F.S.; aircraft piracy, s. 860.16, F.S.; throwing a deadly missile, s. 790.161(2), (3), or
(4), F.S.; and treason, s. 876.32, F.S.
23
S. 775.084(1)(b), F.S.
24
S. 775.084(1)(c), F.S.
25
S. 775.21, F.S.
26
S. 946.06(8)(b), F.S. STORAGE NAME: h0537d.JDC PAGE: 5
DATE: 3/29/2023
The bill amends s. 948.05, F.S., to prohibit any reduction in the term of supervision for a probationer or
offender in community control who is under supervision for committing or attempting, soliciting, or
conspiring to commit the following offenses:
Sexual misconduct with an individual with a developmental disability;
27
Sexual misconduct with a mental health patient by an employee;
28
Kidnapping or false imprisonment, where the victim is a minor and there is a sexual component
to the crime;
29
Luring or enticing a child, with a prior sexual conviction;
30
Human trafficking;
31
Sexual battery;
32
Unlawful sexual activity with minors;
33
Lewd or lascivious battery, molestation, conduct, or exhibition;
34
Video voyeurism with a prior video voyeurism conviction;
35
Lewd or lascivious offense on an elderly person;
36
Sexual performance by a child;
37
Providing obscene materials to a minor;
38
Computer pornography involving minors;
39
Soliciting a minor over the Internet;
40
Traveling to meet minors;
41
Lewd or lascivious exhibition over the Internet;
42
Transmission of child pornography by electronic device or equipment;
43
Transmission of material harmful to minors;
44
Selling or buying minors to engage in sexually explicit conduct;
45
Racketeering involving at least one sexual offense;
46
Sexual misconduct with a forensic client;
47
and
Sexual misconduct by an employee on a juvenile offender.
48
The bill also prohibits any reduction in the term of supervision for a probationer or offender in
community control who qualifies as a VFOSC.
Probation or Community Control for Certain Sex Offenses
Background
Section 948.30, F.S., requires a court to impose additional conditions of supervision on a person who is
sentenced to probation or community control after being convicted of one of the following offenses:
Sexual battery in ch. 794, F.S.;
27
S. 393.135(2), F.S.
28
S. 394.4593(2), F.S.
29
Ss. 787.01 and 787.02, F.S.
30
S. 787.025(2), F.S.
31
Ss. 787.06(3)(b), (d), (f), or (g), F.S.
32
S. 794.011, excluding s. 794.011(10), F.S.
33
S. 794.05, F.S.
34
S. 800.04, F.S.
35
S. 810.145(8), F.S.
36
S. 825.1025, F.S.
37
S. 827.071, F.S.
38
S. 847.0133, F.S.
39
S. 847.0135(2), F.S.
40
S. 847.0135(3), F.S.
41
S. 847.0135(4), F.S.
42
S. 847.0135(5), F.S.
43
S. 847.0137, F.S.
44
S. 847.0138, F.S.
45
S. 847.0145, F.S.
46
S. 895.03, F.S.
47
S. 916.1075(2), F.S.
48
S. 985.701(1), F.S. STORAGE NAME: h0537d.JDC PAGE: 6
DATE: 3/29/2023
Lewd or lascivious battery, molestation, conduct, or exhibition in s. 800.04, F.S.;
Sexual performance by a child in s. 827.071, F.S.;
Lewd or lascivious exhibition over the Internet in s. 847.0135(5), F.S.; and
Selling or buying minors to engage in sexually explicit conduct in s. 847.0145, F.S.
Examples of such conditions include:
A mandatory 8-hour curfew;
A prohibition on contact or living within 1,000 feet of a school and other places where children
regularly congregate;
A prohibition on any contact with the victim;
Active participation in and successful completion of a sexual offender treatment program with
certain specifications;
Submit a specimen of blood or other approved biological specimen to be registered with the
DNA data bank;
Submission to a warrantless search by the community control or probation officer of the
probationer’s or community controllee’s person, residence, or vehicle;
Participation at least annually in polygraph examinations for specified purposes and with
specified conditions;
Maintenance of a driving log and prohibition against driving a motor vehicle alone without prior
approval;
Prohibition against obtaining or using a post office box without prior approval;
Submission to an HIV test with specified conditions; and
Electronic monitoring when deemed necessary and ordered by the court.
49
Effect of Proposed Changes – Probation or Community Control for Certain Sex Offenses
The bill amends s. 948.30, F.S., to require a court, for offenses committed on or after July 1, 2023, to
sentence a person to the additional conditions of probation in s. 948.30, F.S., if such person is
convicted of attempting, soliciting, or conspiring to commit a violation of an enumerated offense that
would otherwise require a person to be sentenced to additional conditions of probation in the same
manner as if he or she committed the underlying offense.
50
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 794.011, F.S., relating to sexual battery.
Section 2: Amends s. 944.275, F.S., relating to gain-time.
Section 3: Amends s. 948.05, F.S., relating to court to admonish or commend probationer or offender
in community control; graduated incentives.
Section 4: Amends s. 948.30, F.S., relating to additional terms and conditions of probation or
community control for certain sex offenses.
Section 5: Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
49
S. 948.30(1) and (2), F.S.
50
For example, the bill requires a court, for an offense committed on or after July 1, 2023, to impose the additional conditions of
probation in s. 948.30, F.S., if a person is sentenced to probation or community control for committing attempted sexual battery in the
same manner that the court is currently required to sentence a person who committed the underlying offense of sexual battery to such
additional conditions of probation. STORAGE NAME: h0537d.JDC PAGE: 7
DATE: 3/29/2023
2. Expenditures:
See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill prohibits inmates who have been convicted of specified offenses, or attempting, soliciting, or
conspiring to commit such specified offenses on or after July 1, 2023, from receiving certain types of
gain-time. To the extent that such inmates are eligible to receive gain-time under current law and would
be awarded gain-time in the future, the bill may have a positive indeterminate prison bed impact by
making such inmates ineligible to receive gain-time and thus, ineligible for an earlier release date from
incarceration.
The bill prohibits a reduction in the supervision term for specified probationers or offenders in
community control. To the extent such probationers or offenders in community control are currently
receiving a reduction in the term of supervision, there may be an indeterminate fiscal impact to FDOC
workload. Provisions of the bill would require FDOC to continue supervising such offenders who would
otherwise have their term of supervision reduced. Any workload impact can likely be absorbed within
existing resources.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
FDOC has sufficient rulemaking authority to implement the provisions of the bill.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 7, 2023, the Criminal Justice Subcommittee adopted a proposed committee substitute (PCS)
and reported the bill favorably as a committee substitute. The PCS differed from the original bill as it added
provisions to the bill which:
Amended s. 794.011, F.S., to prohibit FDOC from granting basic gain-time to a person who
commits, or attempts, solicits, or conspires to commit a sexual battery on or after July 1, 2023. STORAGE NAME: h0537d.JDC PAGE: 8
DATE: 3/29/2023
Amended s. 944.275, F.S., to prohibit FDOC from granting incentive gain-time to a person who
solicits or conspires to commit specified offenses on or after July 1, 2023.
Amended s. 948.30, F.S., to require a court, for an offense committed on or after July 1, 2023, to
sentence a person to certain additional conditions of probation if the person is convicted of
attempting, soliciting, or conspiring to commit an enumerated offense that would otherwise require a
person to be sentenced to additional conditions of probation in the same manner as if he or she
committed the underlying offense.
Amended s. 948.05, F.S., to prohibit a court from reducing the supervision term of a person who is
on probation or community control after being convicted of a criminal offense that is a predicate
offense for designation as a sexual predator under s. 775.21(4)(a)(1)a. or b., F.S., or a sexual
offender under s. 943.0435(1)(h)1.a., F.S., or if the person is a violent felony offender of special
concern under s. 948.06(8)(b), F.S.
This analysis is drafted to the committee substitute as passed by the Criminal Justice Subcommittee.