Senate Bill 328 (2021) — Sentencing
SB 328
Florida Bills
Florida Senate - 2021 SB 328 By Senator Rouson 19-00275-21 2021328__ Page 1 of 8 CODING: Words stricken are deletions; words underlined are additions. A bill to be entitled 1
An act relating to sentencing; creating s. 775.08701, 2 F.S.; providing legislative intent; providing for the 3 retroactive applicability of s. 775.087, F.S.; 4 prohibiting certain persons from being sentenced to 5 mandatory minimum terms of imprisonment for aggravated 6 assault or attempted aggravated assault committed 7 before a specified date; requiring resentencing for 8 persons who committed such violations before a 9 specified date and are serving mandatory minimum terms 10 of imprisonment; specifying procedures for such 11 resentencing; providing eligibility for gain-time for 12 such sentenced or resentenced persons; creating s. 13 893.13501, F.S.; providing legislative intent; 14 providing for the retroactive applicability of s. 15 893.135, F.S.; requiring the initial sentencing and 16 the resentencing of certain persons who committed 17 certain violations before a specified date which 18 involved trafficking in hydrocodone or codeine; 19 providing criminal penalties for such violations that 20 are subject to an initial sentencing or a 21 resentencing; providing legislative intent; providing 22 for the retroactive applicability of s. 893.135, F.S.; 23 requiring the initial sentencing and the resentencing 24 of certain persons who committed certain violations 25 before a specified date which involved trafficking in 26 oxycodone; providing criminal penalties for such 27 violations that are subject to an initial sentencing 28 or a resentencing; specifying procedures for such 29
Florida Senate - 2021 SB 328 19-00275-21 2021328__ Page 2 of 8 CODING: Words stricken are deletions; words underlined are additions. resentencing; providing an effective date. 30 31 Be It Enacted by the Legislature of the State of Florida: 32 33
Section
Section 775.08701, Florida Statutes, is created 34 to read: 35 775.08701 Retroactive application relating to s. 775.087; 36 legislative intent; prohibiting mandatory minimum sentencing for 37 certain offenses; resentencing procedures.— 38
(1) It is the intent of the Legislature to retroactively 39 apply
chapter 2016-7, Laws of Florida, only as provided in this 40 section, to persons who committed aggravated assault or 41 attempted aggravated assault before July 1, 2016, the effective 42 date of
chapter 2016-7, Laws of Florida, which amended s. 43 775.087 to remove aggravated assault and attempted aggravated 44 assault from the list of predicate offenses for mandatory 45 minimum terms of imprisonment under that section. 46
(2) As used in this section, a reference to “former s. 47 775.087” is a reference to s. 775.087 as it existed at any time 48 before its amendment by
chapter 2016-7, Laws of Florida. 49 (3)(
a) A person who committed aggravated assault or 50 attempted aggravated assault before July 1, 2016, but was not 51 sentenced under former s. 775.087 before October 1, 2021, may 52 not be sentenced for that violation to a mandatory minimum term 53 of imprisonment under former s. 775.087. 54 (
b) A person who committed aggravated assault or attempted 55 aggravated assault before July 1, 2016, who was sentenced before 56 October 1, 2019, to a mandatory minimum term of imprisonment 57 pursuant to former s. 775.087, and who is serving such mandatory 58
Florida Senate - 2021 SB 328 19-00275-21 2021328__ Page 3 of 8 CODING: Words stricken are deletions; words underlined are additions. minimum term of imprisonment on or after October 1, 2021, must 59 be resentenced in accordance with paragraph (
c) to a sentence 60 without such mandatory minimum term of imprisonment. The new 61 sentence must be as provided in s. 775.082, s. 775.083, or s. 62 775.084. 63 (
c) Resentencing under this
section must occur in the 64 following manner: 65 1. The Department of Corrections shall notify the person 66 described in paragraph (
b) of his or her eligibility to request 67 a sentence review hearing. 68 2. The person seeking sentence review under this
section 69 may submit an application to the court of original jurisdiction 70 requesting that a sentence review hearing be held. The 71 sentencing court retains original jurisdiction for the duration 72 of the sentence for this purpose. 73 3. A person who is eligible for a sentence review hearing 74 under this
section is entitled to be represented by counsel, and 75 the court shall appoint a public defender to represent the 76 person if he or she cannot afford an attorney. 77 4. Upon receiving an application from the eligible person, 78 the court of original sentencing jurisdiction shall hold a 79 sentence review hearing to determine if the eligible person 80 meets the criteria for resentencing under this section. If the 81 court determines at the sentence review hearing that the 82 eligible person meets the criteria in this
section for 83 resentencing, the court must resentence the person as provided 84 in this section; however, the new sentence may not exceed the 85 person’s original sentence with credit for time served. If the 86 court determines that such person does not meet the criteria for 87
Florida Senate - 2021 SB 328 19-00275-21 2021328__ Page 4 of 8 CODING: Words stricken are deletions; words underlined are additions. resentencing under this section, the court must provide written 88 reasons why such person does not meet such criteria. 89 (
d) A person sentenced or resentenced pursuant to this 90
section is eligible to receive any gain-time pursuant to s. 91 944.275 which he or she was previously ineligible to receive 92 because of the imposition of the mandatory minimum term of 93 imprisonment pursuant to former s. 775.087. 94
Section
Section 893.13501, Florida Statutes, is created 95 to read: 96 893.13501 Retroactive application relating to s. 893.135; 97 legislative intent; sentencing or resentencing for trafficking 98 in hydrocodone, codeine, or oxycodone; penalties; resentencing 99 procedures.— 100
(1) It is the intent of the Legislature to retroactively 101 apply changes to gram-weight thresholds and ranges and to 102 penalties for trafficking in hydrocodone or codeine which are 103 applicable to offenders who committed these offenses on or after 104 October 1, 2019, the effective date of amendments to s. 893.135 105 by
chapter 2019-167, Laws of Florida. 106 (
a) If a violation of s. 893.135(1)(
c) involving 107 trafficking in hydrocodone, as described in s. 893.03(2)(a)1.k.; 108 trafficking in codeine, as described in s. 893.03(2)(a)1.g.; or 109 trafficking in any salt of hydrocodone or of codeine, or any 110 mixture containing any such substance, as described in s. 111 893.03(2)(a)2., was committed before October 1, 2019, and was 112 punishable as a felony of the first degree at the time the 113 violation was committed, the changes must be retroactively 114 applied as provided in this subsection. 115 (
b) A person who committed a trafficking violation 116
Florida Senate - 2021 SB 328 19-00275-21 2021328__ Page 5 of 8 CODING: Words stricken are deletions; words underlined are additions. described in paragraph (
a) before October 1, 2019, but who was 117 not sentenced for such violation before October 1, 2021, must be 118 sentenced as provided in paragraph (d). 119 (
c) A person who committed a trafficking violation 120 described in paragraph (
a) before October 1, 2019, and who is 121 serving a mandatory minimum term of imprisonment for such 122 violation on or after October 1, 2021, must be resentenced as 123 provided in paragraph (
d) and in accordance with subsection (3). 124 (d)1. A violation described in paragraph (
a) for which the 125 person is to be sentenced or resentenced pursuant to this 126 subsection is a felony of the first degree, punishable as 127 provided in s. 775.082, s. 775.083, or s. 775.084. 128 2. If the quantity of hydrocodone, as described in s. 129 893.03(2)(a)1.k., codeine, as described in s. 893.03(2)(a)1.g., 130 any salt thereof, or any mixture containing any such substance 131 involved in the violation of s. 893.135: 132 a. Was 4 grams or more, but less than 28 grams, such person 133 must be sentenced or resentenced as provided in s. 775.082, s. 134 775.083, or s. 775.084. 135 b.
Was 28 grams or more, but less than 50 grams, such 136 person must be sentenced or resentenced to a mandatory minimum 137 term of imprisonment of 3 years and ordered to pay a fine of 138 $50,000. 139 c. Was 50 grams or more, but less than 100 grams, such 140 person must be sentenced or resentenced to a mandatory minimum 141 term of imprisonment of 7 years and ordered to pay a fine of 142 $100,000. 143 d. Was 100 grams or more, but less than 300 grams, such 144 person must be sentenced or resentenced to a mandatory minimum 145
Florida Senate - 2021 SB 328 19-00275-21 2021328__ Page 6 of 8 CODING: Words stricken are deletions; words underlined are additions. term of imprisonment of 15 years and ordered to pay a fine of 146 $500,000. 147 e. Was 300 grams or more, but less than 30 kilograms, such 148 person must be sentenced or resentenced to a mandatory minimum 149 term of imprisonment of 25 years and ordered to pay a fine of 150 $500,000. 151
(2) It is the intent of the Legislature to retroactively 152 apply the changes to gram-weight thresholds and ranges and to 153 penalties for trafficking in oxycodone which are applicable to 154 offenders who committed this offense on or after July 1, 2014, 155 the effective date of amendments to s. 893.135 by
chapter 2014-156 176, Laws of Florida. 157 (
a) If a violation of s. 893.135(1)(
c) involving 158 trafficking in oxycodone, as described in s. 893.03(2)(a)1.q., 159 any salt thereof, or any mixture containing any such substance 160 was committed before July 1, 2014, and was punishable as a 161 felony of the first degree at the time the violation was 162 committed, the changes must be retroactively applied as provided 163 in this subsection. 164 (
b) A person who committed a trafficking violation 165 described in paragraph (
a) before July 1, 2014, but who was not 166 sentenced for such violation before October 1, 2021, must be 167 sentenced as provided in paragraph (d). 168 (
c) A person who committed a trafficking violation 169 described in paragraph (
a) before July 1, 2014, and who is 170 serving a mandatory minimum term of imprisonment for such 171 violation on or after October 1, 2021, must be resentenced as 172 provided in paragraph (
d) and in accordance with subsection (3). 173 (d)1. A violation described in paragraph (
a) for which the 174
Florida Senate - 2021 SB 328 19-00275-21 2021328__ Page 7 of 8 CODING: Words stricken are deletions; words underlined are additions. person is to be sentenced or resentenced pursuant to this 175 subsection is a felony of the first degree, punishable as 176 provided in s. 775.082, s. 775.083, or s. 775.084. 177 2. If the quantity of oxycodone, as described in s. 178 893.03(2)(a)1.q., any salt thereof, or any mixture containing 179 any such substance involved in the violation of s. 893.135: 180 a.
Was 4 grams or more, but less than 7 grams, such person 181 must be sentenced or resentenced as provided in s. 775.082, s. 182 775.083, or s. 775.084. 183 b. Was 7 grams or more, but less than 14 grams, such person 184 must be sentenced or resentenced to a mandatory minimum term of 185 imprisonment of 3 years and ordered to pay a fine of $50,000. 186 c. Was 14 grams or more, but less than 25 grams, such 187 person must be sentenced or resentenced to a mandatory minimum 188 term of imprisonment of 7 years and ordered to pay a fine of 189 $100,000. 190 d.
Was 25 grams or more, but less than 100 grams, such 191 person must be sentenced or resentenced to a mandatory minimum 192 term of imprisonment of 15 years and ordered to pay a fine of 193 $500,000. 194 e. Was 100 grams or more, but less than 30 kilograms, such 195 person must be sentenced or resentenced to a mandatory minimum 196 term of imprisonment of 25 years and ordered to pay a fine of 197 $500,000. 198
(3) Resentencing under this
section must occur in the 199 following manner: 200 (
a) The Department of Corrections shall notify the person 201 described in paragraph (1)(
c) or paragraph (2)(
c) of his or her 202 eligibility to request a sentence review hearing. 203
Florida Senate - 2021 SB 328 19-00275-21 2021328__ Page 8 of 8 CODING: Words stricken are deletions; words underlined are additions. (
b) The person seeking sentence review under this
section 204 may submit an application to the court of original jurisdiction 205 requesting that a sentence review hearing be held. The 206 sentencing court retains original jurisdiction for the duration 207 of the sentence for this purpose. 208 (
c) A person who is eligible for a sentence review hearing 209 under this
section is entitled to be represented by counsel, and 210 the court shall appoint a public defender to represent the 211 person if he or she cannot afford an attorney. 212 (
d) Upon receiving an application from the eligible person, 213 the court of original sentencing jurisdiction shall hold a 214 sentence review hearing to determine if the eligible person 215 meets the criteria for resentencing under this section. If the 216 court determines at the sentence review hearing that the 217 eligible person meets the criteria in this
section for 218 resentencing, the court must resentence the person as provided 219 in this section; however, the new sentence may not exceed the 220 person’s original sentence with credit for time served. If the 221 court determines that such person does not meet the criteria for 222 resentencing under this section, the court must provide written 223 reasons why such person does not meet such criteria. 224