Amendments to Florida Rules of Criminal Procedure 3.704 & 3.992

Citations: 810 So. 2d 826; 26 Fla. L. Weekly Supp. 626; 2001 Fla. LEXIS 1929; 2001 WL 1130811Docket: No. SC01-1446

Court: Supreme Court of Florida; September 26, 2001; Florida; State Supreme Court

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The Committee on Rules to Implement the Florida Criminal Punishment Code has petitioned for amendments to the Florida Rules of Criminal Procedure, specifically rules 3.704 and 3.992, to align them with legislative changes enacted during the 2001 session, effective July 1, 2001. Key amendments include:

1. **Rule 3.704(d)(1)**: Reflects legislative changes relieving the Department of Corrections from preparing score-sheets, transferring this responsibility solely to state attorneys’ offices.
   
2. **Rule 3.704(d)(14)(B)**: Updates scoring rules for juvenile dispositions, extending the timeframe for considering prior records from three years to five years.

3. **Rule 3.704(d)(22)**: Enhances penalties for offenses committed to benefit criminal street gangs, aligning with legislative amendments that also respond to the court's ruling in *State v. O.C.*.

4. **Rule 3.992(a)**: Amends language regarding the street gang multiplier to remove references to the original effective date of the multiplier statute, which was rendered irrelevant by the O.C. decision.

The amendments are effective immediately, and interested parties have thirty days to submit comments. Additional editorial changes have been made to rule 3.704, with new text underlined and deletions indicated by strikethrough. The rule supports the implementation of the 1998 Criminal Punishment Code and outlines the offense severity ranking for felony offenses.

Felony offenses not specified in section 921.0022 are classified by severity levels under section 921.0023 of Florida Statutes, with third-degree felonies at level 1, second-degree at level 4, first-degree at level 7, first-degree punishable by life at level 9, and life felonies at level 10. A felony's reclassification under certain statutes does not exempt it from these provisions. 

Criminal Punishment Code scoresheets must be prepared for each offender for all offenses pending sentencing, including those qualifying as habitual or violent offenders. These scoresheets, prepared by the state attorney or the Department of Corrections, must be reviewed for accuracy by defense counsel. When sentencing under sections 775.084 or 775.082(9), a specific scoresheet for the Criminal Punishment Code offenses is required alongside other sentencing documents. 

If an offender faces multiple felonies from different guidelines, separate scoresheets are necessary, and sentences may be imposed concurrently or consecutively. The sentencing judge must verify and sign the scoresheet. For felonies with ongoing criminal activities, sentencing is based on the guidelines effective at the start of the conduct.

Key definitions include "conviction" as a guilt determination from a plea or trial, "primary offense" as the most severe offense pending, and "additional offense" as any other pending offense. "Victim injury" includes physical injury or death directly resulting from the offense, with specific scoring for sexual offenses based on penetration and contact, including additional scoring for physical injuries sustained by victims. Each victim's injury must be individually scored for each related offense.

Victim injury cannot be scored for offenses where the offender has not been convicted. Victim injury from capital offenses should not be included in scoresheets for non-capital offenses. However, victim injury from non-capital offenses can be scored. Attempts, conspiracies, and solicitations must be recorded on the Criminal Punishment Code scoresheet, scored one severity level below the completed offense, with specific scoring rules for third-degree felonies. An increase in offense severity may occur due to reclassifications under certain statutes, which must be noted on the scoresheet. 

A flat assessment of thirty prior serious felony points is added if the offender has a primary or additional offense in levels 8, 9, or 10 and has prior serious felonies, defined as offenses ranked in levels 8, 9, or 10 with specific sentencing conditions. Out-of-state convictions that align with these Florida levels are treated as prior serious felonies. If the offender has prior capital felonies, points equal to twice the number of points for the primary and additional offenses must be added to the subtotal. 

"Prior record" encompasses any prior convictions, including adult and juvenile offenses, as well as federal and out-of-state convictions, all scored at the corresponding Florida offense severity level. Convictions over ten years old do not count if there have been no new crimes in the last ten years. Juvenile offenses within 35 years prior to the primary offense must be scored if they would be crimes if committed by an adult, while older juvenile sexual offenses are scored if there has not been a conviction-free record for 35 consecutive years leading up to the primary offense.

Entries in criminal histories that lack a disposition, are marked as disposition unknown, consist of arrests only, or result in anything other than a conviction are not scored. However, records that have been expunged or sealed under specific Florida statutes must be included in scoring if the offender is being sentenced. Any ambiguity in scoring must favor the offender, with disputes resolved by the sentencing judge. If it is unclear whether a conviction is a felony or misdemeanor, it is scored as a misdemeanor; similarly, if the degree of felony is ambiguous, it is scored at severity level 1.

Legal status points are assigned for specific actions by an offender, such as escaping incarceration or failing to appear in court, with each legal status violation receiving a score of 4 points, assessed only once regardless of multiple legal statuses at the time of the offense. Community sanction violation points are given for violating probation or other community controls, with 6 points for each violation or 12 points if the violation results from a new felony conviction. Points for multiple violations can only be assessed for successive violations that occur after a continuation or change in supervision.

Possession of firearms during the commission of a crime incurs additional sentence points: 18 points for a firearm and 25 points for a semiautomatic firearm or machine gun, with only one point assessment allowed per conviction. The subtotal sentence points include various categories, such as primary offense points and prior record points. If the primary offense involves drug trafficking at severity level 7 or 8, the total points may be multiplied by 1.5 at the court's discretion.

Violations of the Law Enforcement Protection Act have specific multipliers for subtotal sentence points based on the subsection of the statute involved: a factor of 2.5 for violations under subsection 775.0823(2), 2.0 for subsections 775.0823(3) through (8), and 1.5 for subsections 775.0823(9) or (10), or sections 784.07(3) and 775.0875(1). For third-degree grand theft of a motor vehicle, if the offender has three prior convictions for the same offense, a multiplier of 1.5 applies. A similar 1.5 multiplier is also applied if the offense was committed to further a criminal street gang's interests, or if it is a domestic violence crime witnessed by a child under 16 who is a family member.

Total sentence points are the subtotal or enhanced subtotal points. The lowest permissible sentence is determined by the total sentence points: if they are 44 or fewer, nonstate prison sanctions are possible; if over 44, a calculation method is used to determine the lowest permissible prison sentence. The permissible sentencing range extends from the lowest permissible sentence to the statutory maximum, which must exceed one year for state prison. If total sentence points equal or exceed 363, life imprisonment is an option. 

For offenses with mandatory minimum sentences, a scoresheet must be completed. If the lowest permissible sentence is less than the mandatory minimum, the latter prevails. Conversely, if it exceeds the mandatory, the Criminal Punishment Code remains applicable. Any downward departure from the lowest permissible sentence is disallowed unless justified by specific circumstances listed in Florida statutes.

A sentencing judge imposing a sentence below the lowest permissible level must provide a written statement detailing the reasons for the departure within 7 days of sentencing. This can include a written transcription of orally stated reasons made during sentencing. The reasons for departure must also be documented on the Criminal Punishment Code scoresheet. If the written statement is a separate document, it must accompany the scoresheet sent to the Department of Corrections. In cases of split sentences, the total sanction cannot exceed the statutory maximum. Sentences following the revocation of probation or community control must adhere to the laws in effect at the time the original offense was committed. The terms "must" and "shall" indicate mandatory obligations. Additionally, a reference is made to a case where enhanced penalties for gang activity were deemed unconstitutional, as they violated substantive due process rights by penalizing mere association without a direct link to the offenses.