439 So.2d 848 (Fla. 1983), 63962, In re Rules of Criminal Procedure (Sentencing Guidelines)

Docket Nº63962.
Citation439 So.2d 848
Party NameIN re RULES OF CRIMINAL PROCEDURE (SENTENCING GUIDELINES).
Case DateSeptember 08, 1983
CourtUnited States State Supreme Court of Florida

Page 848

439 So.2d 848 (Fla. 1983)

IN re RULES OF CRIMINAL PROCEDURE (SENTENCING GUIDELINES).

No. 63962.

Supreme Court of Florida.

September 8, 1983

Original Proceeding--Florida Rules of Criminal Procedure.

Robert Wesley, Staff Counsel, Tallahassee, for Sentencing Guidelines Com'n, petitioner.

Page 849

PER CURIAM.

The Sentencing Guidelines Commission has proposed a rule of criminal procedure to implement sentencing guidelines in order to comply with the action of the legislature in its passage of section 921.001, Florida Statutes (1983). After publication of the proposed rule in The Florida Bar News, the Court received numerous comments and suggestions regarding the proposed rule. The commission considered these suggestions at its final meeting, August 26, 1983, made several changes, and transmitted its final version of the proposed rule to this Court.

We have considered the proposed rule and the comments and suggestions which have been received, and we hereby adopt, as rule 3.701 and form 3.988, the rule and forms appended to this opinion. The sentencing guidelines adopted herein will be effective for all applicable offenses committed after 12.01 a.m., October 1, 1983 and, if affirmatively selected by the defendant, to sentences imposed after that date for applicable crimes occurring prior thereto.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

ADKINS, J., dissents.

PROPOSED RULE

RULE 3.701. SENTENCING GUIDELINES

  1. This rule is to be used in conjunction with forms 3.988(a)-(i).

  2. Statement of Purpose

    The purpose of sentencing guidelines is to establish a uniform set of standards to guide the sentencing judge in the sentence decision-making process. The guidelines represent a synthesis of current sentencing theory and historic sentencing practices throughout the state. Sentencing guidelines are intended to eliminate unwarranted variation in the sentencing process by reducing the subjectivity in interpreting specific offense- and offender-related criteria and in defining their relative importance in the sentencing decision.

    The sentencing guidelines embody the following principles:

    1. Sentencing should be neutral with respect to race, gender, and social and economic status.

    2. The primary purpose of sentencing is to punish the offender. Rehabilitation and other traditional considerations continue to be desired goals of the criminal justice system but must assume a subordinate role.

    3. The penalty imposed should be commensurate with the severity of the convicted offense and the circumstances surrounding the offense.

    4. The severity of the sanction should increase with the length and nature of the offender's criminal history.

    5. The sentence imposed by the sentencing judge should reflect the length of time to be served, shortened only by the application of gain time.

    6. While the sentencing guidelines are designed to aid the judge in the sentencing decision and are not intended to usurp judicial discretion, departures from the presumptive sentences established in the guidelines shall be articulated in writing and made only for clear and convincing reasons.

    7. Because the capacities of state and local correctional facilities are finite, use of incarcerative sanctions should be limited to those persons convicted of more serious offenses or those who have longer criminal histories. To ensure such usage of finite resources, sanctions used in sentencing convicted felons should be the least restrictive necessary to achieve the purposes of the sentence.

  3. Offense Categories

    Offenses have been grouped into nine (9) offense categories encompassing the following statutes:

    Page 850

    Category 1: Murder, manslaughter: Chapter 782 (except subsection 782.04(1)(a)) and subsection 316.1931(2)

    Category 2: Sexual offenses: Chapters 794 and 800 and section 826.04

    Category 3: Robbery: Section 812.13

    Category 4: Violent personal crimes: Chapters 784 and 836 and section 843.01

    Category 5: Burglary: Chapter 810 and subsection 806.13(3)

    Category 6: Thefts, forgery, fraud: Chapters 322, 409, 443, 509, 812 (except section 812.13), 815, 817, 831, and 832

    Category 7: Drugs: Chapter 893

    Category 8: Weapons: Chapter 790

    Category 9: All other felony offenses

  4. General Rules and Definitions

    1. One guideline scoresheet shall be prepared for each defendant covering all offenses pending before the court for sentencing. The state attorney's office will prepare the scoresheets and present them to defense counsel for review as to accuracy in all cases unless the judge directs otherwise. The sentencing judge shall approve all scoresheets.

    2. "Conviction" means a determination of guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended.

    3. "Primary offense" is defined as the most serious offense at conviction. In the case of multiple offenses, the primary offense is determined on the basis of the following:

  5. The offense with the highest statutory degree, in the order of life felony, first-degree felony punishable by life, first-degree, second-degree, and third-degree felonies; and

  6. In the event of two (2) or more offenses of the same degree, by the lowest numerical offense category.

    1. Additional offenses at conviction: All other offenses for which the offender is convicted and which are pending before the court shall be scored as additional offenses based upon their degree and the number of counts of each.

    2. a) "Prior record" refers to any past criminal conduct on the part of the offender, resulting in conviction, disposed of prior to the commission of the instant offense. Prior record includes all prior Florida, federal, out-of-state, military, and foreign convictions.

    1) Entries in criminal histories which show no disposition, disposition unknown, arrest only, or other nonconviction disposition shall not be scored.

    2) When scoring federal, foreign, military, or out-of-state convictions, assign the score for the analogous or parallel Florida statute.

    3) When unable to determine whether an offense at conviction is a felony or misdemeanor, the offense should be scored as a misdemeanor. Where the degree of the felony is ambiguous or impossible to determine, score the offense as a third-degree felony.

    4) Prior record shall include criminal traffic offenses, which shall be scored as misdemeanors.

    5) Convictions which do not constitute violations of a parallel or analogous state criminal statute shall not be scored.

  7. Adult record: An offender's prior record shall not be scored if the offender has maintained a conviction-free record for a period of ten (10) consecutive years from the most recent date of release from confinement, supervision or sanction, whichever is later, to the date of the instant offense.

  8. Juvenile record: All prior juvenile dispositions which are the equivalent of convictions as defined in section d(2), occurring within three (3) years of the current conviction and which would have been criminal if committed by an adult, shall be included in prior record.

    1. Legal status at time of offense is defined as follows:

      Offenders on parole, probation, or community control; in custody serving a sentence; escapees; fugitives who have

      Page 851

      fled to avoid prosecution or who have failed to appear for a judicial proceeding or who have violated conditions of a supersedeas bond; and offenders in pretrial intervention or diversion programs.

    2. Victim injury shall not be scored if not a factor of an offense at conviction.

    3. Guidelines ranges: The presumptive sentences provided in the guideline grids are assumed to be appropriate for the composite score of the offender. However, a sentence range is provided in order to permit some discretion without the requirement of a written explanation for departing from the presumptive sentence.

    4. Mandatory sentences: For those offenses having a mandatory penalty, a scoresheet should be completed and the guideline sentence calculated. If the recommended sentence is less than the mandatory penalty, the mandatory sentence takes precedence. If the guideline sentence exceeds the mandatory sentence, the guideline sentence should be imposed.

    5. Sentences exceeding statutory maximums: If the composite score for a defendant charged with a single offense indicates a guideline sentence that exceeds the maximum sentence provided by statute for that offense, the statutory maximum sentence should be imposed.

    6. Departures from the guideline sentence: Departures from the presumptive sentence should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure. Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.

    7. Sentencing for separate offenses: A sentence must be imposed for each offense. However, the total sentence cannot exceed the total guideline sentence unless a written reason is given.

    8. Community control, a form of intensive supervised custody in the community involving restriction of the freedom of the offender, is a sanction which the court may impose upon a finding that probation is an unsuitable disposition. When community control is imposed, it shall not exceed the term provided by general law.

      COMMITTEE NOTE: (

  9. The operation of this rule is not intended to change the law or requirements of proof as regards sentencing.

    (b) These principles are binding on the sentencing court.

    (c) Only one category is proper in any particular case. Category 9, "All Other Felony Offenses," should be used only when the primary offense at conviction is not included in another, more specific...

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102 practice notes
  • 199 So.3d 941 (Fla.App. 4 Dist. 2016), 4D13-3689, Alfonso-Roche v. State
    • United States
    • Florida Court of Appeal of Florida (US)
    • June 1, 2016
    ...” Page 947 Santiago v. State, 478 So.2d 47, 48 (Fla. 1985) (quoting In re Rules of Crim. Proc. (Sent’ g Guidelines ), 439 So.2d 848, 849 (Fla. 1983)); accord Alan C. Sundberg et al., A Proposal for Sentence Reform in Florida, 8F La. ST. U.L.REV. 1 (1980) [hereinafte......
  • 469 So.2d 179 (Fla.App. 3 Dist. 1985), 84-393, Steiner v. State
    • United States
    • Florida Court of Appeal of Florida (US) Third District
    • May 21, 1985
    ...must be considered in making every sentencing decision, including the formulation of the guidelines, In Re Rules of Criminal Procedure, 439 So.2d 848, 849 (Fla.1983), and (b) one of their primary objectives is to achieve statewide uniformity in sentences which should not therefore vary acco......
  • Back with a vengeance: the resilience of retribution as an articulated purpose of criminal punishment.
    • United States
    • American Criminal Law Review Vol. 37 Nbr. 4, September 2000
    • September 22, 2000
    ...justice system but is subordinate to the goal of punishment."); see also In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla. 1983) (per curiam) (providing language of proposed role). The Florida courts have followed and employed this retributive directive. Se......
  • 537 So.2d 982 (Fla. 1989), 72862, Smith v. State
    • United States
    • Florida United States State Supreme Court of Florida
    • January 5, 1989
    ...the sentencing guidelines, including the grid schedules, in the form of rules. In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983). In a short opinion, this Court stated: The Sentencing Guidelines Commission has proposed a rule of criminal procedure to implem......
  • Request a trial to view additional results
100 cases
  • 199 So.3d 941 (Fla.App. 4 Dist. 2016), 4D13-3689, Alfonso-Roche v. State
    • United States
    • Florida Court of Appeal of Florida (US)
    • June 1, 2016
    ...” Page 947 Santiago v. State, 478 So.2d 47, 48 (Fla. 1985) (quoting In re Rules of Crim. Proc. (Sent’ g Guidelines ), 439 So.2d 848, 849 (Fla. 1983)); accord Alan C. Sundberg et al., A Proposal for Sentence Reform in Florida, 8F La. ST. U.L.REV. 1 (1980) [hereinafte......
  • 469 So.2d 179 (Fla.App. 3 Dist. 1985), 84-393, Steiner v. State
    • United States
    • Florida Court of Appeal of Florida (US) Third District
    • May 21, 1985
    ...must be considered in making every sentencing decision, including the formulation of the guidelines, In Re Rules of Criminal Procedure, 439 So.2d 848, 849 (Fla.1983), and (b) one of their primary objectives is to achieve statewide uniformity in sentences which should not therefore vary acco......
  • 537 So.2d 982 (Fla. 1989), 72862, Smith v. State
    • United States
    • Florida United States State Supreme Court of Florida
    • January 5, 1989
    ...the sentencing guidelines, including the grid schedules, in the form of rules. In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983). In a short opinion, this Court stated: The Sentencing Guidelines Commission has proposed a rule of criminal procedure to implem......
  • 480 So.2d 1387 (Fla.App. 1 Dist. 1986), BC-473, Stewart v. State
    • United States
    • Florida Court of Appeal of Florida (US) First District
    • January 7, 1986
    ...1983, effective date of the guidelines as contemplated by the Supreme Court in In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983). He had, therefore, already elected guidelines sentencing prior to being placed on probation. It was a guidelines controlled pen......
  • Request a trial to view additional results
2 books & journal articles
  • Back with a vengeance: the resilience of retribution as an articulated purpose of criminal punishment.
    • United States
    • American Criminal Law Review Vol. 37 Nbr. 4, September 2000
    • September 22, 2000
    ...justice system but is subordinate to the goal of punishment."); see also In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla. 1983) (per curiam) (providing language of proposed role). The Florida courts have followed and employed this retributive directive. Se......
  • Sentencing guidelines and prison population growth.
    • United States
    • Journal of Criminal Law and Criminology Vol. 85 Nbr. 3, January 1995
    • January 1, 1995
    ...Impacts 102 (1987). (5) Supreme Court of Delaware, Directive Number Seventy-Six, September 15, 1987; In re Rules of Crim. Procedure, 439 So. 2d 848 (Fla. 1983) (per curiam) (adopting Rule 3.701 of the Florida Rules of Criminal Procedure); Michigan Supreme Court, Administrative Order No. 198......

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