Sentencing Guidelines 1995-96 Annual Report

Part I: Introduction

Section 1. Overview of Florida Sentencing Guidelines

What are 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 all:

• 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.
• Attempt 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
• Are mathematically based and provide a means to address several policy areas including severity of the crime, victim injury, prior record, legal status, and other specific considerations. Every assessment of points in each system reflects a policy statement regarding the relative severity of a criminal behavior.
• Are represented by a respective scoresheet which must be completed for each felony defendant prior to sentencing.

History of Sentencing Guidelines

Before Sentencing Guidelines

Florida Sentencing Guidelines first became effective on October 1, 1983. Prior to that time, courts sentenced in accordance with provisions of law that permitted a wide range of judicial discretion in the sentencing decision. Sanctions ranged from a minimum of 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
• Life for a life felony

This was a form of 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.

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 committed on or after October 1, 1983 and before January 1, 1994.
• All non-capital and non-life felonies committed before October 1, 1983 but sentenced after October 1, 1983, when the defendant elects to be sentenced under these guidelines.

The 1983 guidelines structure was comprised of nine separate worksheets for specified offense categories. All offenses were contained in one of these categories:

1. Murder/Manslaughter
2. Sexual Offenses
3. Robbery
4. Violent Personal Crimes
5. Burglary
6. Thefts, Forgery, Fraud
7. Drugs
8. Weapons and Escape
9. Other Felony Offenses

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 also 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. This resulted in an unanticipated impact upon correctional resources.
• The passage of unfunded mandatory minimum sentence legislation.
• 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 percent of time served was 34%. This lack of system integrity was the impetus for the creation of a new sentencing guidelines structure.

The 1994 Sentencing Guidelines

The 1994 sentencing guidelines were enacted through the passage of the "Safe Streets Act". 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 focus of these guidelines is to:

• Incarcerate violent and repetitive offenders.
• Ensure a greater percentage of time served by providing that the policy created matched the resources that would be available.
• Eliminate certain gain time provisions.
• Continue to attempt to eliminate unwarranted disparity in sentencing.
• Provide a flexible sentencing structure.

The structure of the 1994 sentencing guidelines has little similarity to the 1983 structure. The 1994 structure 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.
• Associates each of the rankings with a point value in each of three elements: 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 on the primary offense.
• Provides for victim injury points to be assessed for physical injury or death suffered as a direct result of any offense pending sentence. Victim injury points are also scored for sexual penetration or sexual contact sustained.

Other policy levels of the guidelines include an assessment of points for:

• Legal status existing at the time of the offense, pending sentencing.
• Offenses returned to the court due to a violation of community supervision.
• Offenses involving the possession of specified firearms when no mandatory minimum applies.
• Violations of the Law Enforcement Protection Act, which includes specified violent offenses committed against law enforcement officers.
• Drug trafficking offenses when no mandatory minimum penalty applies.

Under the 1994 structure, the total guidelines score determines the guidelines sanction and a range of state prison months, if applicable. There are basically three categories of sanction based upon total scores. The scores may:

1. mandate a non-state prison sanction.
2. provide for discretionary prison or non-state prison sanction.
3. mandate a state prison sanction.

The sentencing parameters point values operate as follows:

• If total or increased sentence points are under 40, the offender must receive a non-state prison sanction, which includes options of county jail, probation (with or without residential programs), or community control.
• If total sentence points are less than 40, but could be increased by 15% to reach over 40, the court may, in its discretion, do so. This means that in actuality, scores of less than 34.8 must receive a non-state prison sanction under the guidelines.
• If total or increased sentence points are over 40 and less than 52 the court has the discretion to provide a non-state prison sanction or a prison sanction.
• If the total sentence points exceed 52, a state prison sanction is mandated under the guidelines.
• 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 25%, unless the total sentence points were increased initially by 15% to obtain an increased point value of over 40.