Florida Bar Re: Rules of Criminal Procedure

482 So. 2d 311, 11 Fla. L. Weekly 15, 1985 Fla. LEXIS 1427
CourtSupreme Court of Florida
DecidedDecember 19, 1985
DocketNo. 67703
StatusPublished
Cited by36 cases

This text of 482 So. 2d 311 (Florida Bar Re: Rules of Criminal Procedure) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Bar Re: Rules of Criminal Procedure, 482 So. 2d 311, 11 Fla. L. Weekly 15, 1985 Fla. LEXIS 1427 (Fla. 1985).

Opinion

PER CURIAM.

The Sentencing Guidelines Commission has petitioned the Court to adopt the following amendments to Florida Rules of Criminal Procedure 3.701 and 3.988:

(1) The Sentencing Guidelines Commission has readopted and does recommend those changes presented to this Court prior to the 1985 legislative session. [These changes are set out in The Florida Bar: Amendment to Rules of Criminal Procedure, 468 So.2d 220 (Fla. 1985).]
(2) Eliminate the last sentence of the committee note to (d)(3). This revision is in line with the redefinition of “primary-offense” previously approved and is intended to conform the committee note to the text of revised 3.701(d)(3).
(3) Replace the forms that now appear at 3.988(aHi) with those forms promulgated by the office of the state courts administrator and utilized in all circuit courts in the State of Florida. (Attached are copies of all offense category score-sheets.)
(4) Revise the first sentence of 3.701(d)(1) to replace the word “prepared” with the word “utilized.” This change will clarify the apparent inconsistency between the wording appearing at 3.701(d)(1) and (d)(3) as it applies to the procedure for determination of primary offense.
(5) Revise the form appearing at 3.988(a) to incorporate a point value for inclusion in the prior record factor to be utilized in the determination of recommended sentence by scoring each prior conviction under section 316 193, Florida Statutes (Supp.1984), or section 316.1931, Florida Statutes (Supp.1984), or section 327.351, Florida Statutes (Supp.1984), at a value of thirty-two (32) points. This point value will be applied only where the offender is convicted of a violation of section 316.1931 or section 327.351, where the operation of a motor vehicle or vessel by the offender while intoxicated as defined in section 316.1931(1) or section 327.351(1), results in the death of any human being and the scoresheet utilized in sentencing is the form appearing at 3.988(a). For purposes of determining a prior conviction for violation of the above-enumerated statutes, a prior conviction for violation of section 316.1931 or section 316.193 or former section 860.-01 or former section 316.028, or a previous conviction for any substantially similar alcohol-related or drug-related traffic offense outside this state, shall also be considered as a prior conviction.
(6) Expand the committee note to (d)(4) by the addition of the following wording: “In the event of multiple counts of the same distinct offense and degree of felony being scored as primary offense, they shall be scored as additional counts of the primary offense. All other offenses for which the defendant is convicted and are pending before the court for sentencing shall be scored as additional offenses.” This revision is intended to eliminate confusion concerning the scoring of multiple counts of primary offense and represents no change in the intent of the commission concerning the point valuation for primary offense.
(7) Expand the wording appearing at 3.701(d)(4) to read: “Additional offenses at conviction: All other offenses for which the offender is convicted and which are pending before the court for sentencing at the same time shall be scored as additional offenses based upon [312]*312their degree and the number of counts of each.”
(8) Expand the committee note to (d)(5) to add: “For any offense where sentence was previously suspended pursuant to the imposition of probation and such offense is now before the court for sentencing, upon a revocation of that probation based upon a subsequent criminal offense (which subsequent offense is also before the court for sentencing at the same time), the earlier offense shall be scored as ‘prior record’ and not as ‘additional offense’.” The commission took this action to clarify its intent concerning the application for scoring purposes of the offense which results in the imposition of probation where the offender commits an offense subsequent to the date probation is imposed and where both offenses are before the court for sentencing and the subsequent offense is scored as “primary offense.”
(9) Expand the committee note to (d)(13) by adding the following sentence: “Community control is not an alternative sanction from the recommended range of any nonstate prison sanction unless the provisions of Florida Rule of Criminal Procedure 3.701(d)(ll) are applied.” This revision is intended to clarify the intent of the commission that community control is not to be considered as a nonstate prison sanction under the guidelines.
(10) Expand 3.701(d)(14) by adding language to the second sentence so that the paragraph reads as follows: “Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. The sentence imposed after revocation of probation or community control 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.”
(11) Revise 3.701(d)(13) by eliminating certain language. The revised first sentence of (d)(13) will now read: “Community control is a form of intensive supervised custody in the community involving restriction of the freedom of the offender.” The second sentence of that portion of the rule will remain unaltered.
(12) Expand the committee note to (d)(13) by adding a second sentence to read: “It is appropriate to impose a sentence of community control to be followed by a term of probation. The total sanction (community control and probation) shall not exceed the term provided by general law.”
(13) Expand the committee note to (d)(ll) by the addition of the following sentence: “Where deemed appropriate, the sentencing courts may include the following language in the written statement articulating the reasons for departures: If one or more or the foregoing reasons for departure are determined, upon appellate review, to be impermissible, it would still be the decision of this court to depart from the guidelines recommended sentence, upon the basis of the remaining permissible reason or reasons, and to impose the same sentence herein announced.”

After studying these proposed changes, we approve them except for the amendment to paragraph (d)(ll) of the committee note as set out above in paragraph (13).

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Bluebook (online)
482 So. 2d 311, 11 Fla. L. Weekly 15, 1985 Fla. LEXIS 1427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-bar-re-rules-of-criminal-procedure-fla-1985.