Florida Department of Corrections
Michael D. Crews, Secretary

Part I: Introduction; Overview of Florida's Sentencing Policies

History of Sentencing Policy

Unstructured Sentencing

Prior to October 1, 1983, courts sentenced in accordance with the provisions of law that permitted a wide range of judicial discretion in the sentencing decision. Sanctions ranged from a fine up to state prison incarceration. The statutory maximum penalties of incarceration in state prison were:

• Five years for a felony of the third degree;
• Fifteen years for a felony of the second degree;
• Thirty years for a felony of the first degree, and;
• Life for a life felony.

This was a form of an indeterminate sentencing policy because most offenders sentenced to prison were by law, parole eligible. Parole was a discretionary early release policy, which obviously had a significant impact upon both the percentage and the actual amount of time served.

Structured Sentencing/Sentencing Guidelines

The Florida Sentencing Guidelines represent the state’s structured policy with respect to the sentencing of non-capital felony offenders. There are three distinct versions of the guidelines currently in operation in Florida. They each:

• Provide for a uniform set of standards to guide the sentencing court in sentencing decisions;
• Evaluate relevant factors present at sentencing relating to the offense or offenses and the defendant’s prior criminal behavior;
• Are attempts to provide for “truth in sentencing” and eliminate unwarranted disparity in sentencing decisions;
• Focus on ensuring that the punishment is commensurate with the offenses before the court for sentencing, and;
• Are mathematically based and provide a means to address several policy areas. Every assessment of points reflects a policy statement regarding the relative severity of a criminal behavior. Each policy is represented on its respective scoresheet, which must be completed for each felony defendant prior to sentencing.

The 1983 Sentencing Guidelines

Due to concerns regarding actual and percent of time served as well as concerns regarding a lack of uniformity in sentencing, the 1983 Florida Sentencing Guidelines were enacted October 1, 1983 and parole eligibility was abolished for almost all offenses committed after that date. These guidelines are currently in effect for all non-capital felony offenses that were committed on or after October 1, 1983 and before January 1, 1994 .

The 1983 guideline structure was comprised of nine separate worksheets for specified offense categories such as murder, sexual offenses, drug offenses, etc. All offenses were contained in one of these categories.

Within each worksheet, points were assessed for offenses to be sentenced and prior record offenses based on the number of offenses and each offense’s felony degree. Assessments were made for legal status and victim injury. Total scores fell into sentencing ranges or cells, for each worksheet. The least severe cell provided for a non-state prison sanction and the most severe cell provided for 27 years to life in prison. Departure sentences were permissible as long as written reasons were provided.

Several factors eventually eroded the integrity of the “truth in sentencing” aspect of the 1983 sentencing guidelines. Some of these factors included an epidemic of “crack” cocaine-related offense activity, which resulted in an unanticipated impact upon correctional resources; the passage of unfunded mandatory minimum sentence legislation; and significant growth in the population of the State of Florida.

As a result of these and other factors, the percentage of time served and actual time served declined. By 1989, the average percentage of time served was 34 percent. This lack of system integrity was the impetus for the creation of a new sentencing guideline structure.

The 1994 Sentencing Guidelines

The 1994 sentencing guidelines were enacted through the passage of the “Safe Streets Act.” These guidelines were created with the recognition that prison resources are finite and that the use of state incarceration should be focused upon offenders who commit serious or violent offenses, or who offend repetitively. The 1994 guidelines repealed the grant of basic gain time, evidencing the legislature’s re-commitment to “truth in sentencing.” These sentencing guidelines are in effect for all non-capital felony offenses committed on or after January 1, 1994 and before October 1, 1995.

The structure of the 1994 sentencing guidelines has little similarity to the 1983 structure. The structure created attempted to resolve some of the problems inherent in the preceding structure, such as the nine separate worksheets, the lack of offense-specific detail and the issue of grouping crimes by category. The structure of the 1994 guidelines:

• Ranks all non-capital felonies in one of ten offense severity levels. Level one is the least severe ranking and ten reflects the most serious felonies.
• Each of the rankings has an associated point value in each of three elements subject to scoring: primary offense, additional offense(s) and prior record. Point values escalate as the rank increases. Every offense scored is provided its corresponding point value in these areas, with the emphasis of points lying in the area of the primary offense.
• Includes other policy levels through an assessment of points for a variety of other factors such as: victim injury, legal status, supervision violations and others.

Under the 1994 structure, the total guidelines score determines the sanction and a range of length of sanction when state prison is applicable. There are basically three categories of sanction based upon total scores. There are ranges of score which:

1. Mandate a non-state prison sanction when the total score is 40 points or fewer.
2. Provide for discretionary prison or non-state prison sanction when the total score is greater than forty and less than 52 points.
3. Mandate a state prison sanction when the total score exceeds 52 points.

The length of prison is determined by subtracting 28 from the total sentence points to derive the total prison months.

The court has the discretion to increase or decrease the sanction by twenty-five percent. This provided for a relatively narrow range for the imposition of a guideline sentence.

The 1995 Sentencing Guidelines

The 1994 Sentencing Guidelines were significantly amended in 1995 through the passage of the Crime Control Act of 1995. The basic structure of the 1994 sentencing guidelines remained; however, point values were increased in a variety of areas and additional policy levers were created to provide for greater sanctions. The 1995 guidelines are in effect for offenses committed on or after October 1, 1995 through September 30, 1998.

The Heggs ruling stated that the use of the 1995 Sentencing Guidelines for offenses between October 1, 1995 and May 24, 1997 is unconstitutional. However, the 1995 Sentencing Guidelines are used for offense dates between May 25, 1997 and September 30, 1998.

The guidelines were slightly modified in both 1996 and 1997, again providing for increased sanctions and sanction length in certain instances.

The Criminal Punishment Code

The Criminal Punishment Code became effective for offenses committed on or after October 1, 1998. The guidelines are repealed for all offenses committed on or after October 1, 1998 but remain in effect for offenses committed prior to this date. The Code contains features of both structured and unstructured sentencing policies. It maintains many of the goals of guidelines sentencing. Compared to the guidelines however, the Code allows for greater upward discretion in sentencing, provides for increased penalties and lowers mandatory prison thresholds.

• The Code significantly alters the sentencing policy in a variety of respects. One of the most notable changes is the significant broadening of upward discretion in the sentencing policy. Under the sentencing guidelines, the upward discretion was 25 percent above the state prison months determined by the calculation. Under the Code, the maximum sentence for any felony offense is determined by the statutory maximums as provided in Florida Statute (F.S) 775.082.

• This has two effects that are divergent from the preceding guidelines. First, all felony offenders have the potential to receive a prison sentence, whereas many under the guidelines were by policy excluded from such a possibility. Second, the maximums of F.S. 775.082 usually will provide for far greater sentence lengths than were permissible under the guidelines.
• Another significant change is the determination when a prison sentence becomes mandatory under the new sentencing policy. The basic structure of the sentencing policy has not changed with respect to point determinations. Sentencing point thresholds for sentence calculations have, however, undergone significant revisions.

1. If total points are equal to or less than 44, the lowest permissible sentence is a non-state prison sanction. (However, state prison up to the statutory maximum can be imposed.)
2. If total points exceed 44, the minimum sentence is established by taking the total point value subtracting 28 and decreasing the remaining value by 25%. This end result value is the lowest permissible prison sentence in months.

This means than only those offenders scoring 44 or fewer points may receive a non- state prison sanction under the code. All others must receive a state prison sanction, absent downward departure from this structure. The threshold under the guidelines for mandatory prison incarceration was 52 points.

Department of Corrections Responsibilities

The department was provided a variety of responsibilities regarding the sentencing policy with respect to the 1994 and subsequent versions of the law. Florida Statute 921 requires the department to:

• Develop the scoresheet and any revisions of the scoresheet for approval by the Supreme Court and supply Sentencing Guidelines and Criminal Punishment Code scoresheets to the appropriate criminal justice entities in the state;
• Prior to July 1, 2001, the Department had a coequal responsibility to prepare scoresheets with the state attorneys. However, the Department of Corrections continued to complete scoresheets which had been ordered by the courts prior to July 1, 2001. In addition there were transitional issues involved in transferring this responsibility to the state attorneys. This resulted in 9.7% of scoresheets received during FY2001-02 having been prepared by the Department of Corrections;
• Assist the Criminal Justice Estimating Conference in estimating correctional impact of proposed changes to the code;
• Provide the legislature by October 1 of each year a report detailing the rate of compliance of each judicial circuit in providing scoresheets to the department; and,
• Provide the legislature an annual report detailing trends in sentencing and an analysis thereof by October 1 of each year.

The SAGES (Sentencing Analysis and Guidelines Entry Systems) database

The department developed a database in 1994 to be used as a mechanism to allow for the storage of completed scoresheets and allow for more accurate, legible and efficient scoresheet preparation.

This report is derived primarily from the information on sentencing scoresheets received by the department from the clerks of the courts and entered into SAGES.

The following should be considered when evaluating this and other information derived from this database:

• The information is compiled from a database containing sentencing scoresheets received by the Department of Corrections for offenses with dates of commission on or after January 1, 1994. The information is based on the scoresheets in the database with dates of sentence in Fiscal Year 2004-2005 and offenses on or after October 1, 1998, entered as of September 1, 2005.
• As the compliance rate for scoresheet submissions is not 100%, there is missing information that would have potentially affected the outcome of the analysis. The current statewide compliance rate is 67.9% for Fiscal Year 2004-2005.
• Though the Department retrieves and includes in the database omitted information from a scoresheet that is critical, no effort is made to correct preparation error or errors recorded on scoresheets regarding the sentence imposed. The department does not have the authority to amend an official court document. Conversely, there is a responsibility to record the information as received.
• There is data entry error on the part of department staff. Recent analyses indicate that the rate of data entry error in the fields analyzed in the report is not significant.