In Re: Amendments to Florida Rule of Criminal Procedure 3.992

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Supreme Court of Florida ____________ No. SC21-891 ____________ IN RE: AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.992. March 24, 2022 PER CURIAM. This matter is before the Court for consideration of proposed amendments to Florida Rule of Criminal Procedure 3.992. We have jurisdiction. See art. V, § 2(a), Fla. Const. The Criminal Court Steering Committee (CCSC) filed a report proposing amendments to rule 3.992 (Criminal Punishment Code Scoresheets). The CCSC’s report was in response to a referral from the Court to propose amendments to the rule in accordance with the Court’s recent decision in State v. Gabriel, 314 So. 3d 1243, 1252 (Fla. 2021) (concluding that “under section 921.0024(2), the LPS [lowest permissible sentence] is an individual minimum sentence where there are multiple convictions subject to sentencing on a single scoresheet”). The CCSC and the Court previously published the proposal for comment. The CCSC submitted an amended report, which was published by the Court and received one comment. Having considered the amended proposal, the comment, and the Committee’s response, the Court hereby amends rule 3.992 with additional modifications to the amended proposal. Specifically, under the sentence computation heading, in the third box, additional language is added to explain that the lowest permissible sentence is imposed if it is higher than the statutory maximum for an individual felony offense pursuant to Gabriel, and a detailed calculation is added to explain how to total the maximum sentence for each felony offense before the court for sentencing. The CCSC’s amended proposal does not fully resolve the concerns identified by this Court in Gabriel. In Gabriel, on the single line titled “maximum sentence in years,” the trial judge entered “25 years,” the collective statutory maximum for the three offenses before the court for sentencing. 314 So. 3d at 1251 n.6. As noted by this Court in Gabriel, this single line suggested one collective maximum sentence when there were multiple convictions subject to sentencing. Further, the language in the third box stating that “[t]he maximum sentence is up to the statutory -2- maximum for the primary and any additional offenses as provided in s. 775.082, F.S., unless the lowest permissible sentence (LPS) under the Code exceeds the statutory maximum” created ambiguity regarding the trial court’s individual consideration of each offense’s statutory maximum sentence for purposes of determining whether it was exceeded by the LPS. The CCSC’s response suggests that the purpose of the single line titled “maximum sentence in years” in the third box under the sentence computation heading is to assist the trial court in accurately advising a defendant of the maximum prison exposure prior to entering a plea. We believe that the amendments reflected in appendix A to this opinion clarify the calculation for determining a defendant’s total maximum sentence when there are multiple offenses before the court for sentencing. For purposes of illustrating its use, we applied the amendments to rule 3.992 to Gabriel’s case in appendix B to this opinion. Accordingly, we amend Florida Rule of Criminal Procedure 3.992 as reflected in appendix A to this opinion. New language is indicated by underscoring; deletions are indicated by struckthrough type. The amendments to the rule shall become effective immediately. Because the amendments were significantly altered -3- from the version that was previously published for comment, interested persons shall have seventy-five days from the date of this opinion in which to file comments with the Court. 1 It is so ordered. CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur. THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS. Original Proceeding – Florida Rules of Criminal Procedure 1. All comments must be filed with the Court on or before June 7, 2022, with a certificate of service verifying that a copy has been served on the Committee Chair, Honorable Debra J. Riva, Twelfth Judicial Circuit, P.O. Box 48927, Sarasota, Florida 342305927, driva@jud12.flcourts.org, and on the OSCA Staff Liaison to the Committee, Bart Schneider, 500 S. Duval Street, Tallahassee, Florida 32399, schneidb@flcourts.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until June 28, 2022, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted. -4- Judge Debra J. Riva, Chair, Criminal Court Steering Committee, Sarasota, Florida, and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner Hon. Carlos J. Martinez and Maria E. Lauredo on behalf of the Florida Public Defender Association, Inc., Miami, Florida, Responding with comments -5- APPENDIX A Rule 3.992(a) Criminal Punishment Code Scoresheet e Criminal Punishment Code Scoresheet Preparation Manual is available at: http://www.dc.state. .us/pub/sen_cpcm/index.html 1. DATE OF SENTENCE 2. PREPARER’S NAME 5. NAME (LAST, FIRST, MI.I.) 6. DOB 3. COUNTY 4. SENTENCING JUDGE 8. RACE 10. PRIMARY OFF. DATE 12. B W OTHER 7. DC # 9. GENDER 11. PRIMARY DOCKET # M F I. PRIMARY OFFENSE: FELONY DEGREE _______/ TRIAL If Qualifier, please check ____A ____S ____C ____R (A=Attempt, S=Solicitation, C=Conspiracy, R=Reclassification) F.S.# ___________/ PLEA DESCRIPTION POINTS OFFENSE LEVEL __________/ ___________________________________________/ (Level - Points: 1=4, 2=10, 3=16, 4=22, 5=28, 6=36, 7=56, 8=74, 9=92, 10=116) Prior capital felony triples Primary Offense points II. I. ADDITIONAL OFFENSE(S): Supplemental page attached DOCKET# FEL/MM DEGREE _____________/ _________/ DESCRIPTION F.S.# OFFENSE LEVEL _________ ______________/ QUALIFY COUNTS A S C R _______ ________ POINTS x ______ TOTAL = ______ = ______ ________________________________________________________________________________ _____________/ DESCRIPTION _____________/ DESCRIPTION _____________/ ________/ ______________/ _________ _______ X ______ ________________________________________________________________________________ ________/ _____________/ _________ _______ X ______ = ______ ________________________________________________________________________________ _________/ ______________/ _________ _______ x ______ = ______ DESCRIPTION ________________________________________________________________________________ (Level - Points: M=0.2, 1=0.7, 2=1.2, 3=2.4, 4=3.6, 5=5.4, 6=18, 7=28, 8=37, 9=46, 10=58) Prior capital felony triples Additional Offense points III. VICTIM INJURY: 2nd Degree Murder Death Severe Moderate 240 x 120 x 40 x 18 x Number _______ _______ _______ _______ Supplemental page points________ II. = = = = Total _______ _______ _______ _______ IV. PRIOR RECORD: Supplemental page attached FEL/MM F.S.# OFFENSE QUALIFY: TOTAL DEGREE LEVEL AS C R ____ _____ _____ / / Slight Sex Penetration Sex Contact 4x 80 x 40 x Number _______ = _______ = _______ = _________ Total ________ ________ ________ III. DESCRIPTION _ NUMBER ______ POINTS ______ X _ = ________ X _ = / _______ X _ = / _______ X _ = -6- _____ _____ _____ _____ _____ _____ / ________ / / X_ _ = _______ X _ = ________ X _ = / _______ X _ = / ________ _______ X __ = (Level = Points: M=0.2, 1=0.5, 2=0.8, 3=1.6, 4=2.4, 5=3.6, 6=9, 7=14, 8=19, 9=23, 10=29) Supplemental page points IV. ______ _________ Page 1 Subtotal: _____ Effective Date: For offenses committed under the Criminal Punishment Code effective for offenses committee on or after October 1, 1998 and subsequent revisions. NAME (LAST, FIRST, MI) DOCKET # Page 1 Subtotal: ________ V. Legal Status violation = 4 Points Escape Fleeing Failure to appear Supersedeas bond Incarceration Pretrial intervention or diversion program Court imposed or post prison release community supervision resulting in a conviction V. ______ VI. Community Sanction violation before the court for sentencing VI. _______ Probation Community Control Pretrial Intervention or diversion 6 points for any violation other than new felony conviction x _______ each successive violation OR New felony conviction = 12 points x _______ each successive violation if new offense results in conviction before or at same time as sentence for violation of probation OR 12 points x _______ each successive violation for a violent felony offender of special concern when the violation is not based solely on failure to pay costs, fines, or restitution OR New felony conviction = 24 points x _______ each successive violation for a violent felony offender of special concern if new offense results in a conviction before or at the same time for violation of probation VII. _____ VII. Firearm/Semi-Automatic or Machine Gun = 18 or 25 Points VIII. _____ VIII. Prior Serious Felony - 30 Points Subtotal Sentence Points ________ IX. Enhancements (only if the primary offense qualifies for enhancement) Law Enf. Protect. Drug Trafficker Motor Vehicle Theft Criminal Gang Offense Domestic Violence in the Presence of Related Child (offenses committed on or after 3/12/07) ___x 1.5 ___ x 2.0 ___ x 2.5 ____ x 1.5 ___ x 1.5 Adult-on-Minor Sex Offense (offenses committed on or after 10/1/14) ___ x 1.5 ___ x 1.5 Enhanced Subtotal Sentence Points TOTAL SENTENCE POINTS ___x 2.0 IX. _____ ________ SENTENCE COMPUTATION If total sentence points are less than or equal to 44, the lowest permissible sentence is any non-state prison sanction. If the total sentence points are 22 points or less, see Section 775.082(10), Florida Statutes, to determine if the court must sentence the offender to a non-state prison sanction. -7- If total sentence points are greater than 44: __________________________ minus 28 = ____________________ x .75 =_____________________________________ total sentence points lowest permissible prison sentence in months If total sentence points are 60 points or less and court makes findings pursuant to both Florida Statute 948.20 and 397.334(3), the court may place the defendant into a treatment-based drug court program. The maximum sentence for each individual felony offense is up to the statutory maximum for the primary and any additional offenses as provided in s. 775.082, F.S., unless the lowest permissible sentence under the Code listed above exceeds the statutory maximum for that offense. If the lowest permissible sentence exceeds the statutory maximum for an individual felony offense, the lowest permissible sentence replaces the statutory maximum and must be imposed for that offense. See State v. Gabriel, 314 So. 3d 1243 (Fla. 2021). Such sSentences for multiple felony offenses may be imposed concurrently or consecutively. If total sentence points are greater than or equal to 363, a life sentence may be imposed. Primary offense: ____________________________________________________ Description ________________________ Maximum sentence in years Additional offense: __________________________________________________ Description ________________________ Maximum sentence in years Additional offense: __________________________________________________ Description ________________________ Maximum sentence in years Additional offense: __________________________________________________ Description ________________________ Maximum sentence in years Total maximum sentence in years for all counts above if consecutive sentences imposed: ________________________ TOTAL SENTENCE IMPOSED Years Months Days State Prison Life ___________ ___________ __________ County Jail Time Served ___________ ___________ __________ ___________ ___________ __________ ___________ ___________ __________ Community Control Probation Modified Please check if sentenced as habitual offender, habitual violent offender, violent career criminal, prison releasee reoffender, or a mandatory minimum applies. Mitigated Departure Plea Bargain Prison Diversion Program Other Reason _____________________________________________________________________________ JUDGE’S SIGNATURE Effective Date: For offenses committed under the Criminal Punishment Code effective for offenses committed on or after October 1, 1998, and subsequent revisions. 3.992(b) Supplemental Criminal Punishment Code Scoresheet NAME (LAST, FIRST, MI.I) DOCKET # DATE OF SENTENCE II. ADDITIONAL OFFENSES(S): DOCKET# FEL/MM F.S# DEGREE __________/ ________/ OFFENSE QUALIFY LEVEL _____________/ A ___________ COUNTS POINTS TOTAL _______ = _______ S C R _______ x DESCRIPTION _________________________________________________________________________________________ __________/ ________/ _____________/ ___________ _______ x _______ = DESCRIPTION _________________________________________________________________________________________ -8- _______ __________/ ________/ _____________/ ___________ _______ x _______ = _______ DESCRIPTION _________________________________________________________________________________________ __________/ ________/ _____________/ ___________ _______ x _______ = _______ DESCRIPTION _________________________________________________________________________________________ __________/ ________/ _____________/ ___________ _______ x _______ = _______ DESCRIPTION _________________________________________________________________________________________ (Level - Points: M=0.2, 1=0.7, 2=1.2, 3=2.4, 4=3.6, 5=5.4, 6=18, 7=28, 8=37, 9=46, 10=58) II. _________ IV. PRIOR RECORD FEL/MM TOTAL F.S.# DEGREE _____ _____ _____ _____ _____ _____ OFFENSE QUALIFY: LEVEL A S C R OFFENSE/DATE/STATE NUMBER POINTS / / / __ _______ X __ = _ / / / ____ _______ X __ = _ / / / ____ _______ X __ = _ / / / ___ ______ X __ = _ / / / ____ _______ X __ = _ / / / ____ _______ X __ = _ (Level = Points: M=0.2, 1=0.5, 2=0.8, 3=1.6, 4=2.4, 5=3.6, 6=9, 7=14, 8=19, 9=23, 10=29) IV. _________ REASONS FOR DEPARTURE - MITIGATING CIRCUMSTANCES (reasons may be checked here or written on the scoresheet) Legitimate, uncoerced plea bargain. The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct. The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired. The need for payment of restitution to the victim outweighs the need for a prison sentence. The victim was an initiator, willing participant, aggressor, or provoker of the incident. The defendant acted under extreme duress or under the domination of another person. Before the identity of the defendant was determined, the victim was substantially compensated. The defendant cooperated with the State to resolve the current offense or any other offense. The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. At the time of the offense the defendant was too young to appreciate the consequences of the offense. The defendant is to be sentenced as a youthful offender. The defendant is amenable to the services of a postadjudicatory treatment-based drug court program and is otherwise qualified to participate in the program. The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction, or for a physical disability, and the defendant is amenable to treatment. The defendant was making a good faith effort to obtain or provide medical assistance for an individual experiencing a drug-related overdose. Pursuant to 921.0026(3) the defendant’s substance abuse or addiction does not justify a downward departure from the lowest permissible sentence, except for the provisions of s. 921.0026(2)(m). Effective Date: For offenses committed under the Criminal Punishment Code effective for offenses committee on or after October 1, 1998 and subsequent revisions. -9- APPENDIX B The maximum sentence for each individual felony offense is the statutory maximum as provided in s. 775.082, F.S., unless the lowest permissible sentence listed above exceeds the statutory maximum for that offense. If the lowest permissible sentence exceeds the statutory maximum for an individual felony offense, the lowest permissible sentence replaces the statutory maximum and must be imposed for that offense. See State v. Gabriel, 314 So. 3d 1243 (Fla. 2021). Sentences for multiple felony offenses may be imposed concurrently or consecutively. If total sentence points are greater than or equal to 363, a life sentence may be imposed. Primary offense: Attempted robbery with a firearm Description 15 years Maximum sentence in years Additional offense: Resisting officer with violence Description 8.93 years Maximum sentence in years Additional offense: Aggravated assault with a firearm Description 8.93 years Maximum sentence in years Additional offense: __________________________________________________ Description ______________________ Maximum sentence in years Total maximum sentence in years for all counts above if consecutive sentences imposed: - 10 - 32.86 years

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