The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 Sentencing Guidelines), No. 65216

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM; ALDERMAN; ADKINS
Citation451 So.2d 824
PartiesTHE FLORIDA BAR: AMENDMENT to RULES of CRIMINAL PROCEDURE (3.701, 3.988--SENTENCING GUIDELINES).
Docket NumberNo. 65216
Decision Date08 May 1984

Page 824

451 So.2d 824
THE FLORIDA BAR: AMENDMENT to RULES of CRIMINAL PROCEDURE (3.701, 3.988--SENTENCING GUIDELINES).
No. 65216.
Supreme Court of Florida.
May 8, 1984.

Original Proceeding--Florida Rules of Criminal Procedure.

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

PER CURIAM.

Acting under the provisions of section 921.001(4)(b), Florida Statutes (1983), the Sentencing Guidelines Commission has presented to this Court recommendations for changes in sentencing guidelines which require modification of criminal rules of procedure 3.701 and 3.988. We have reviewed the recommendations and approve the changes. * As with our original adoption of sentencing guidelines, In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983), the Committee Notes adopted herein are part of these rules.

It is so ordered.

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

ADKINS, J., dissents.

RULE 3.701. SENTENCING GUIDELINES

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

Page 825

b. 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.

c. Offense Categories

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

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

d. 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.

Page 826

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

a) A separate guidelines scoresheet shall be prepared scoring each offense at conviction as the "primary offense at conviction" with the other offenses at conviction scored as "additional offenses at conviction."

b) The guidelines scoresheet which recommends the most severe sentence range shall be the scoresheet to be utilized by the sentencing judge pursuant to these guidelines.

4. 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.

5. 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 primary 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.

b) 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.

c) 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 commission of the instant offense and which would have been criminal if committed by an adult, shall be included in prior record.

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

Offenders on parole, probation, or community control; in custody serving a sentence; escapes; fugitives who have fled to avoid prosecution or who have failed to appear for a criminal judicial proceeding or who have violated conditions of a supersedeas bond; and offenders in pretrial intervention or diversion programs.

7. Victim injury shall be scored if it is an element of any offenses at conviction.

8. 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.

Page 827

9. 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.

10. 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.

11. Departures from the guideline sentence: Departures from the guideline range 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 prior arrests without conviction. Reasons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained.

12. 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.

13. 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.

14. Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. The sentence imposed after revocation of probation may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure.

COMMITTEE NOTE: (a) 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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85 practice notes
  • Peugh v. United States, No. 12–62.
    • United States
    • U.S. Supreme Court
    • June 10, 2013
    ...482 U.S., at 431, 107 S.Ct. 2446 (citing Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So.2d 824, 824, n. (1984) (per curiam ) (internal quotation marks and alterations omitted)). Such a retrospective increase in the measure of punishment ra......
  • Peugh v. United States, No. 12–62.
    • United States
    • U.S. Supreme Court
    • June 10, 2013
    ...482 U.S., at 431, 107 S.Ct. 2446 (citing Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So.2d 824, 824, n. (1984) ( per curiam ) (internal quotation marks and alterations omitted)). Such a retrospective increase in the measure of punishment r......
  • Mischler v. State, No. 84-151
    • United States
    • Florida District Court of Appeals
    • October 17, 1984
    ...offense" and substituted "factors relating to prior arrests without conviction" in the latest amendment adopted May 8th, 1984. See 451 So.2d 824 (Fla.1984). In a well worded special concurrence, Judge Ervin of the First District suggests that this phrase, and others, precluded the trial jud......
  • Rogers v. State, No. 2D05-3965.
    • United States
    • Court of Appeal of Florida (US)
    • August 17, 2007
    ...element of any offenses at conviction." See The Fla. Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So.2d 824, 826 (Fla.1984). Subsequently, that provision was amended and the 1988 version of rule 963 So.2d 332 3.701(d)(7) provided that "victim injur......
  • Request a trial to view additional results
85 cases
  • Peugh v. United States, No. 12–62.
    • United States
    • U.S. Supreme Court
    • June 10, 2013
    ...482 U.S., at 431, 107 S.Ct. 2446 (citing Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So.2d 824, 824, n. (1984) (per curiam ) (internal quotation marks and alterations omitted)). Such a retrospective increase in the measure of punishment ra......
  • Peugh v. United States, No. 12–62.
    • United States
    • U.S. Supreme Court
    • June 10, 2013
    ...482 U.S., at 431, 107 S.Ct. 2446 (citing Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So.2d 824, 824, n. (1984) ( per curiam ) (internal quotation marks and alterations omitted)). Such a retrospective increase in the measure of punishment r......
  • Mischler v. State, No. 84-151
    • United States
    • Florida District Court of Appeals
    • October 17, 1984
    ...offense" and substituted "factors relating to prior arrests without conviction" in the latest amendment adopted May 8th, 1984. See 451 So.2d 824 (Fla.1984). In a well worded special concurrence, Judge Ervin of the First District suggests that this phrase, and others, precluded the trial jud......
  • Rogers v. State, No. 2D05-3965.
    • United States
    • Court of Appeal of Florida (US)
    • August 17, 2007
    ...element of any offenses at conviction." See The Fla. Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So.2d 824, 826 (Fla.1984). Subsequently, that provision was amended and the 1988 version of rule 963 So.2d 332 3.701(d)(7) provided that "victim injur......
  • Request a trial to view additional results

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