No. 82410.
November 30, 1993.
Original Proceeding — Florida Rules of Criminal Procedure.
Leonard Holton, Director, Sentencing Guidelines Commission, Tallahassee, for petitioner.
Ira D. Karmelin, Asst. State Atty., West Palm Beach, Richard Combs, Asst. State Atty., Quincy, and Arthur I. Jacobs, Fernandina Beach, on behalf of the Florida Prosecution Attys. Ass'n, Inc., responding.
PER CURIAM.
The Sentencing Guidelines Commission petitions the Court to amend Florida Rules of Criminal Procedure 3.701(c) and 3.988(b) and (c) to conform to statutory revisions enacted in the 1993 regular legislative session and to approve a new rule of procedure and forms necessary to implement the revised sentencing guidelines adopted by the legislature in its May 1993 special session. We have jurisdiction pursuant to article V, section 2(a), Florida Constitution, and adopt the amendments to rules 3.701(c) and 3.988(b) and (c) set out in appendix A and adopt the new rules 3.702 and 3.990, Florida Rules of Criminal Procedure, set out in appendix B.
In chapter 93-406, Laws of Florida, the legislature amended section 921.001, Florida Statutes (1991), and created sections 921.0011 through 921.0014 and 921.0016, Florida Statutes (1993). The new sentencing guidelines create a structure based on an offense-ranking system rather than the offense-category system in the current guidelines and will be effective January 1, 1994. The new statutes contain both substance and procedure, and we hereby incorporate any procedural provisions into our rules of procedure. Crimes committed prior to the new guidelines' effective date will be considered under the current rules of procedure, so rules 3.701 and 3.988 will be retained for the foreseeable future and the new guidelines rule and forms will be found in rules 3.702 and 3.990. The new guidelines reflect a different structure and a shift in public policy, and, therefore, existing caselaw that is in conflict with the new statutes and rules of procedure will be superseded.
We published the proposed amendments and solicited comments on them. Several commentators noted that in the 1993 fall special session the legislature amended section 921.001 to provide that the new guidelines will apply only to crimes committed on or after January 1, 1994 and that only the current statute and rules will apply to crimes committed before that date. We have, therefore, amended proposed rule 3.702 to delete any references to defendants' electing to be sentenced under the new guidelines.
We hereby adopt the amendments to rules 3.701 and 3.988 and new rules 3.702 and 3.990 as appended to this opinion. The amendments to rules 3.701 and 3.988 will be effective immediately on the filing of this opinion. New rules 3.702 and 3.990 will be effective at 12:01 a.m., January 1, 1994.
It is so ordered.
BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.
PER CURIAM.
underlined; struck through 782.04 316.193Section 775.22, C c 826.04 491.0112 812.13. , and sections 812.133 and 812.135. and 843.01 817.025 806.13 192.037 206.56 415.111 494.0018 496.413 496.417 517.301 585.145 687.146 812.13 499.005 944.40 826.04 491.0112 812.13 812.133 812.135 Use. Purpose and Construction. Offense Severity Ranking. General Rules and Definitions. 775.087 790.001 790.001 775.087 775.087 790.001 893.135 775.0823 775.087 775.0823 775.084
APPENDIX A [Additions deletions ] RULE 3.701 SENTENCING GUIDELINES (c) Offense Categories. Offenses have been grouped into 9 offense categories encompassing the following statutes: Category 1: Murder, manslaughter: Chapter 782 (except subsection (1)(a)), subsection (3)(c)(3), and subsection 327.351(2). Category 2: Sexual offenses: hapters 794 and 800, section , and section . Category 3: Robbery: Section Category 4: Violent personal crimes: Section 231.06, chapters 784 and 836, section , and subsection 381.411(4). Category 5: Burglary: Chapter 810, section , and subsection (3). Category 6: Thefts, forgery, fraud: Sections and , chapters 322 and 409, section 370.142, section , chapter 443, section 493.3175, sections , , and , chapter 509, subsection (1)(a), subsections (3) and 585.85(2), section , and chapters 812 (except section ), 815, 817, 831, and 832. Category 7: Drugs: Section and chapter 893. Category 8: Weapons: Chapter 790 and section . Category 9: All other felony offenses. Rule 3.988(b) Category 2: Sexual Offenses Chapter 794 — Sexual Battery Chapter 800 — Lewdness; Indecent Exposure Section — Incest Section — Sexual Misconduct by a Psychotherapist Section 775.22 — Sexual Predator Registration GUIDELINE SENTENCE __________________________________________________________________________ | Points | Recommended Range | Permitted Range | |____________|______________________________|______________________________| | 149 — 169 | any nonstate prison sanction | any nonstate prison sanction | |____________|______________________________|______________________________| | | community control or | any nonstate prison sanction | | 170 — 185 | 12 — 30 months incarceration | or community control or | | | | 1 — 3 1/2 years | | | | incarceration | |____________|______________________________|______________________________| | | 3 | community control or 1 — 4 | | 186 — 207 | (2 1/2 — 3 1/2) | 1/2 years incarceration | |____________|______________________________|______________________________| | | 4 | | | 208 — 229 | (3 1/2 — 4 1/2) | 2 1/2 — 5 1/2 | |____________|______________________________|______________________________| | | 5 | | | 230 — 250 | (4 1/2 — 5 1/2) | 3 1/2 — 7 | |____________|______________________________|______________________________| | | 6 | | | 251 — 278 | (5 1/2 — 7) | 4 1/2 — 9 | |____________|______________________________|______________________________| | | 8 | | | 279 — 312 | (7 — 9) | 5 1/2 — 12 | |____________|______________________________|______________________________| | | 10 | | | 313 — 354 | (9 — 12) | 7 — 17 | |____________|______________________________|______________________________| | | 15 | | | 355 — 422 | (12 — 17) | 9 — 22 | |____________|______________________________|______________________________| | | 20 | | | 423 — 486 | (17 — 22) | 12 — 27 | |____________|______________________________|______________________________| | | 25 | | | 487 — 546 | (22 — 27) | 17 — 40 | |____________|______________________________|______________________________| | | 30 | | | 547 — 582 | (27 — 40) | 22 — Life | |____________|______________________________|______________________________| | 583 + | Life | 27 — Life | |____________|______________________________|______________________________| Note — Any person sentenced for a felony offense committed after October 1, 1988, whose presumptive sentence is any nonstate prison sanction may be sentenced to community control or to a term of incarceration not to exceed 22 months. Such sentence is not subject to appeal. However, before imposing such sentence, the court shall give due consideration to the criteria in s. 921.005(1). § 921.001(5), Fla. Stat. (Supp. 1988). Rule 3.988(b) Category 2: Sexual Offenses I. Primary Offense at Conviction Counts Points _______________________ Degree | 1 | 2 | 3 | 4 | ________________|_____|_____|_____|_____| | Life | 262 | 314 | 340 | 366 | |________________|_____|_____|_____|_____| _____ | 1st | 216 | 259 | 281 | 302 | |________________|_____|_____|_____|_____| _____ | 2nd | 158 | 190 | 206 | 222 | |________________|_____|_____|_____|_____| _____ | 3rd | 149 | 179 | 193 | 209 | |________________|_____|_____|_____|_____| _____ Primary offense counts in excess of four: Add 26 for each additional life _____ Add 21 for each additional 1st _____ Add 16 for each additional 2nd _____ Add 16 for each additional 3rd _____ Total _____ II. Additional Offenses at Conviction Counts Points ______________________ Degree | 1 | 2 | 3 | 4 | ________________|_____|_____|_____|____| | Life | 44 | 53 | 69 | 97 | |________________|_____|_____|_____|____| _____ | 1st pbl | 40 | 48 | 62 | 88 | |________________|_____|_____|_____|____| _____ | 1st | 36 | 43 | 56 | 78 | |________________|_____|_____|_____|____| _____ | 2nd | 26 | 31 | 40 | 56 | |________________|_____|_____|_____|____| _____ | 3rd | 25 | 30 | 39 | 55 | |________________|_____|_____|_____|____| _____ | MM | 5 | 6 | 8 | 11 | |________________|_____|_____|_____|____| _____ Additional offense counts in excess of four: Add 28 for each additional life _____ Add 26 for each additional 1st pbl _____ Add 22 for each additional 1st _____ Add 16 for each additional 2nd _____ Add 16 for each additional 3rd _____ Add 3 for each additional MM _____ Total _____ III. Prior Record Counts Points ________________________ Degree | 1 | 2 | 3 | 4 | ________________|_____|_____|_____|______| | Life | 264 | 530 | 810 | 1100 | |________________|_____|_____|_____|______| _____ | 1st pbl | 211 | 424 | 648 | 880 | |________________|_____|_____|_____|______| _____ | 1st | 158 | 318 | 486 | 660 | |________________|_____|_____|_____|______| _____ | 2nd | 80 | 159 | 243 | 330 | |________________|_____|_____|_____|______| _____ | 3rd | 26 | 53 | 81 | 110 | |________________|_____|_____|_____|______| _____ | MM | 5 | 10 | 15 | 20 | |________________|_____|_____|_____|______| _____ Prior convictions in excess of four: Add 290 for each additional life _____ Add 232 for each additional 1st pbl _____ Add 174 for each additional 1st _____ Add 87 for each additional 2nd _____ Add 29 for each additional 3rd _____ Add 5 for each additional MM _____ Total _____ IV. Legal Status at Time of Offense Status Points ________________________________ | No restrictions | 0 | |_________________________|______| | Legal constraint | 30 | |_________________________|______| Total ______ V. Victim Injury (physical) Degree of Injury x Number = Points ____________________________ | No Contact | 0 | |_______________________|____| _____ _____ | Contact but no | | | Penetration | 20 | |_______________________|____| _____ _____ | Penetration or slight | | | injury | 40 | |_______________________|____| _____ _____ | Death or serious | | | injury | 85 | |_______________________|____| _____ _____ Total _____ Rule 3.988(c) Category 3: Robbery Section — Robbery Section — Carjacking Section — Home Invasion Robbery GUIDELINE SENTENCE __________________________________________________________________________ | Points | Recommended Range | Permitted Range | |___________|______________________________|_______________________________| | 34 — 53 | any nonstate prison sanction | any nonstate prison sanction | |___________|______________________________|_______________________________| | | community control or | any nonstate prison sanction | | 54 — 65 | 12 — 30 months incarceration | or community control or | | | | 1 — 3 1/2 years incarceration | |___________|______________________________|_______________________________| | | 3 | community control or | | 66 — 81 | (2 1/2 — 3 1/2) | 1 — 4 1/2 years incarceration | |___________|______________________________|_______________________________| | | 4 | | | 82 — 101 | (3 1/2 — 4 1/2) | 2 1/2 — 5 1/2 | |___________|______________________________|_______________________________| | | 5 | | | 102 — 121 | (4 1/2 — 5 1/2) | 3 1/2 — 7 | |___________|______________________________|_______________________________| | | 6 | | | 122 — 151 | (5 1/2 — 7) | 4 1/2 — 9 | |___________|______________________________|_______________________________| | | 8 | | | 152 — 183 | (7 — 9) | 5 1/2 — 12 | |___________|______________________________|_______________________________| | | 10 | | | 184 — 229 | (9 — 12) | 7 — 17 | |___________|______________________________|_______________________________| | | 15 | | | 230 — 295 | (12 — 17) | 9 — 22 | |___________|______________________________|_______________________________| | | 20 | | | 296 — 357 | (17 — 22) | 12 — 27 | |___________|______________________________|_______________________________| | | 25 | | | 358 — 417 | (22 — 27) | 17 — 40 | |___________|______________________________|_______________________________| | | 30 | | | 418 — 453 | (27 — 40) | 22 — Life | |___________|______________________________|_______________________________| | 454 + | Life | 27 — Life | |___________|______________________________|_______________________________| Note — Any person sentenced for a felony offense committed after October 1, 1988, whose presumptive sentence is any nonstate prison sanction may be sentenced to community control or to a term of incarceration not to exceed 22 months. Such sentence is not subject to appeal. However, before imposing such sentence, the court shall give due consideration to the criteria in s. 921.005(1). § 921.001(5), Fla. Stat. (Supp. 1988). Rule 3.988(c) Category 3: Robbery I. Primary Offense at Conviction Counts Points _______________________ Degree | 1 | 2 | 3 | 4 | ________________|_____|_____|_____|_____| | Life | 102 | 122 | 133 | 148 | |________________|_____|_____|_____|_____| _____ | 1st pbl | 82 | 98 | 107 | 119 | |________________|_____|_____|_____|_____| _____ | 1st | 70 | 84 | 91 | 101 | |________________|_____|_____|_____|_____| _____ | 2nd | 50 | 60 | 65 | 75 | |________________|_____|_____|_____|_____| _____ | 3rd | 34 | 41 | 44 | 54 | |________________|_____|_____|_____|_____| _____ Primary offense counts in excess of four: Add 15 for each additional life _____ Add 12 for each additional 1st pbl _____ Add 10 for each additional 1st _____ Add 10 for each additional 2nd _____ Add 10 for each additional 3rd _____ Total _____ II. Additional Offenses at Conviction Counts Points _______________________ Degree | 1 | 2 | 3 | 4 | ________________|_____|_____|_____|_____| | Life | 20 | 24 | 26 | 28 | |________________|_____|_____|_____|_____| _____ | 1st pbl | 17 | 20 | 22 | 24 | |________________|_____|_____|_____|_____| _____ | 1st | 14 | 17 | 18 | 19 | |________________|_____|_____|_____|_____| _____ | 2nd | 10 | 12 | 13 | 14 | |________________|_____|_____|_____|_____| _____ | 3rd | 7 | 8 | 9 | 10 | |________________|_____|_____|_____|_____| _____ | MM | 1 | 2 | 3 | 4 | |________________|_____|_____|_____|_____| _____ Additional offense counts in excess of four: Add 2 for each additional life _____ Add 2 for each additional 1st pbl _____ Add 1 for each additional 1st _____ Add 1 for each additional 2nd _____ Add 1 for each additional 3rd _____ Add 1 for each additional MM _____ Total _____ III. A. Prior Record Counts Points _______________________ Degree | 1 | 2 | 3 | 4 | ________________|_____|_____|_____|_____| | Life | 100 | 210 | 330 | 460 | |________________|_____|_____|_____|_____| _____ | 1st pbl | 80 | 168 | 264 | 368 | |________________|_____|_____|_____|_____| _____ | 1st | 60 | 126 | 198 | 276 | |________________|_____|_____|_____|_____| _____ | 2nd | 30 | 63 | 99 | 138 | |________________|_____|_____|_____|_____| _____ | 3rd | 10 | 21 | 33 | 46 | |________________|_____|_____|_____|_____| _____ | MM | 2 | 5 | 8 | 12 | |________________|_____|_____|_____|_____| _____ Prior convictions in excess of four: Add 130 for each additional life _____ Add 104 for each additional 1st pbl _____ Add 78 for each additional 1st _____ Add 39 for each additional 2nd _____ Add 13 for each additional 3rd _____ Add 4 for each additional MM _____ Total _____ III. B. Same Category Priors Add 25 for each prior category 3 offense _______ Priors x 25 = _______ Total Points IV. Legal Status at Time of Offense Status Points _________________________________ | No restrictions | 0 | |_________________________|_______| | Legal constraint | 17 | |_________________________|_______| Total ______ V. Victim Injury (physical) Degree of Injury x Number = Points ___________________________ | None | 0 | |______________________|____| ______ ______ | Slight | 7 | |______________________|____| ______ ______ | Moderate | 14 | |______________________|____| ______ ______ | Death or severe | 21 | |______________________|____| ______ ______ Total ______ APPENDIX B RULE 3.702 SENTENCING GUIDELINES (1994) (a) This rule is to be used in conjunction with the forms located at rule 3.990. This rule is intended to implement the 1994 revised sentencing guidelines in strict accordance with chapter 921, Florida Statutes, as revised by chapter 93-406, Laws of Florida. (b) The purpose of the 1994 revised sentencing guidelines and the principles they embody are set out in subsection 921.001(4). Existing caselaw construing the application of sentencing guidelines that is in conflict with the provisions of this rule or the statement of purpose or the principles embodied by the 1994 sentencing guidelines set out in subsection 921.001(4) is superseded by the operation of this rule. (c) Felony offenses subject to the 1994 revised sentencing guidelines are listed in a single offense severity ranking chart located at section 921.0012. The offense severity ranking chart employs 10 offense levels, ranked from least severe to most severe. Each felony offense is assigned to a level according to the severity of the offense, commensurate with the harm or potential for harm to the community that is caused by the offense. Felony offenses not listed in section 921.0012 are to be assigned a severity level as described in section 921.0013. (d) (1) A comprehensive guidelines scoresheet shall be prepared for each defendant covering all offenses pending before the court for sentencing, including offenses for which the defendant has been adjudicated an habitual felony offender or an habitual violent felony offender. The office of the state attorney or the probation services office, or both where appropriate, will prepare the scoresheets and present them to defense counsel for review as to accuracy. Where the defendant is alleged to have violated probation or community control and probation services will recommend revocation, probation services shall prepare a comprehensive guidelines scoresheet for use at sentencing after revocation of probation or community control. The sentencing judge shall review the scoresheet for accuracy. (2) "Conviction" means a determination of guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended. (3) "Primary offense" is the offense pending for sentencing that results in the highest number of total sentence points. Only one offense may be scored as the primary offense. (4) "Additional offense" is any offense, other than the primary offense, pending before the court for sentencing. Sentence points for additional offenses are determined by the severity level and the number of offenses at a particular severity level. Misdemeanors are scored at level "M" regardless of degree. (5) "Victim injury" is scored for physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing. If an offense pending before the court for sentencing involves sexual penetration, victim injury is to be scored. If an offense pending before the court for sentencing involves sexual contact, but no penetration, victim injury shall be scored. If the victim of an offense involving sexual penetration or sexual contact without penetration suffers any physical injury as a direct result of an offense pending before the court for sentencing, that physical injury is to be scored separately and in addition to any points scored for the sexual contact or sexual penetration. Victim injury shall be scored for each victim physically injured and for each offense resulting in physical injury whether there are one or more victims. However, if the victim injury is the result of a crime of which the defendant has been acquitted, it shall not be scored. (6) Attempts, conspiracies, and solicitations charged under chapter 777 are scored at severity levels below the level at which the completed offense is located. Attempts and solicitations are scored 2 severity levels below the completed offense. Criminal conspiracies are scored 1 severity level below the completed offense. (7) "Total offense score" results from adding the sentence points for primary offense, additional offense, and victim injury. (8) "Prior record" refers to any conviction for an offense committed by the defendant prior to the commission of the primary offense. Prior record shall include convictions for offenses committed by the defendant as an adult or as a juvenile, convictions by federal, out-of-state, military, or foreign courts, and convictions for violations of county or municipal ordinances that incorporate by reference a penalty under state law. Federal, out-of-state, military, or foreign convictions are scored at the severity level at which the analogous or parallel Florida crime is located. (A) Convictions for offenses committed more than 10 years prior to the date of the commission of the primary offense are not scored as prior record if the defendant has not been convicted of any other crime for a period of 10 consecutive years from the most recent date of release from confinement, supervision, or other sanction, whichever is later, to the date of the commission of the primary offense. (B) Juvenile dispositions of offenses committed by the defendant within 3 years prior to the date of the commission of the primary offense are scored as prior record if the offense would have been a crime if committed by an adult. Juvenile dispositions of sexual offenses committed by the defendant more than 3 years prior to the date of the primary offense are to be scored as prior record if the defendant has not maintained a conviction-free record, either as an adult or as a juvenile, for a period of 3 consecutive years from the most recent date of release from confinement, supervision, or sanction, whichever is later, to the date of commission of the primary offense. (C) Entries in criminal histories that show no disposition, disposition unknown, arrest only, or a disposition other than conviction shall not be scored. Criminal history records expunged or sealed under section 943.058 or other provisions of law, including former sections 893.14 and 901.33, shall be scored as prior record where the defendant whose record has been expunged or sealed is before the court for sentencing. (D) Any uncertainty in the scoring of the defendant's prior record shall be resolved in favor of the defendant, and disagreement as to the propriety of scoring specific entries in the prior record shall be resolved by the sentencing judge. (E) When unable to determine whether the conviction to be scored as prior record is a felony or a misdemeanor, the conviction should be scored as a misdemeanor. When the degree of felony is ambiguous or the severity level cannot be determined, the conviction should be scored at severity level 1. (9) "Legal status violations" occur when a defendant, while under any of the forms of legal status listed in subsection 921.011(3), commits an offense that results in conviction. Legal status violations receive a score of 4 sentence points and are scored when the offense committed while under legal status is before the court for sentencing. Points for a legal status violation are to be assessed only once regardless of the existence of more than one form of legal status at the time an offense is committed or the number of offenses committed while under any form of legal status. (10) "Release program violations" occur when the defendant is found to have violated a condition of a release program designated in subsection 921.011(6). Six points shall be assessed for each violation up to a maximum of 18 points in the case of multiple violations. Where there are multiple violations, points in excess of 6 may be assessed only for each successive violation that follows the reinstatement or modification of the release program and are not to be assessed for violation of several conditions of a single release program order. (11) "Total prior record score" results from adding sentence points for prior record, legal status violations, and release program violations. (12) Possession of a firearm, destructive device, semiautomatic weapon, or a machine gun during the commission or attempt to commit a crime will result in additional sentence points. Eighteen sentence points shall be assessed where the defendant is convicted of committing or attempting to commit any felony other than those enumerated in subsection (2) while having in his or her possession a firearm as defined in subsection (6) or a destructive device as defined in subsection (4). Twenty-five sentence points shall be assessed where the offender is convicted of committing or attempting to commit any felony other than those enumerated in subsection (2) while having in his or her possession a semiautomatic weapon as defined in subsection (2) or a machine gun as defined in subsection (9). (13) "Subtotal sentence points" result from adding the total offense score, the total prior record score, and any additional points for possession of a firearm, destructive device, semiautomatic weapon, or machine gun. (14) If the primary offense is drug trafficking under section , the subtotal sentence points may be multiplied, at the discretion of the sentencing court, by a factor of 1.5. If the primary offense is a violation of the Law Enforcement Protection Act under subsections (2), (3), (4), or (5), the subtotal sentence points shall be multiplied by a factor of 2. If the primary offense is a violation of subsection (2)(a)(2) or subsections (6) or (7), the subtotal sentence points shall be multiplied by a factor of 1.5. If both enhancements are applicable, only the enhancement with the higher multiplier is to be used. (15) "Total sentence points" result from the enhancement, if applicable, of the subtotal sentence points. If no enhancement is applicable, the subtotal sentence points are the total sentence points. (16) "Presumptive sentence" is determined by the total sentence points. If the total sentence points are less than or equal to 40, the recommended sentence, absent a departure, shall not be state prison. However, the sentencing court may increase sentence points less than or equal to 40 by up to and including 15 percent to arrive at total sentence points in excess of 40. If the total sentence points are greater than 40 but less than or equal to 52, the decision to sentence the defendant to state prison or a nonstate prison sanction is left to the discretion of the sentencing court. If the total sentence points are greater than 52, the sentence, absent a departure, must be to state prison. A state prison sentence is calculated by deducting 28 points from the total sentence points where total sentence points exceed 40. The resulting number represents state prison months. State prison months may be increased or decreased by up to and including 25 percent at the discretion of the sentencing court. State prison months may not be increased where the sentencing court has exercised discretion to increase total sentence points under 40 points to achieve a state prison sentence. The sentence imposed must be entered on the scoresheet. (17) For those offenses having a mandatory penalty, a scoresheet should be completed and the guidelines presumptive sentence calculated. If the presumptive sentence is less than the mandatory penalty, the mandatory sentence takes precedence. If the presumptive sentence exceeds the mandatory sentence, the presumptive sentence should be imposed. (18) Departure from the recommended guidelines sentence provided by the total sentence points should be avoided unless there are circumstances or factors that reasonably justify aggravating or mitigating the sentence. A state prison sentence that deviates from the recommended prison sentence by more than 25 percent, a state prison sentence where the total sentence points are equal to or less than 40, or a sentence other than state prison where the total sentence points are greater than 52 must be accompanied by a written statement delineating the reasons for departure. Circumstances or factors that can be considered include, but are not limited to, those listed in subsections 921.0016(3) and (4). Reasons for departing from the recommended guidelines sentence shall not include circumstances or factors relating to prior arrests without conviction or charged offenses for which convictions have not been obtained. (A) If a sentencing judge imposes a sentence that departs from the recommended guidelines sentence, the reasons for departure shall be orally articulated at the time sentence is imposed. Any departure sentence must be accompanied by a written statement, signed by the sentencing judge, delineating the reasons for departure. The written statement shall be filed in the court file within 15 days of the date of sentencing. A written transcription of orally stated reasons for departure articulated at the time sentence was imposed is sufficient if it is signed by the sentencing judge and filed in the court file within 15 days of the date of sentencing. The sentencing judge may also list the written reasons for departure in the space provided on the guidelines scoresheet and shall sign the scoresheet. (B) The written statement delineating the reasons for departure shall be made a part of the record. The written statement, if it is a separate document, must accompany the guidelines scoresheet required to be provided to the Department of Corrections pursuant to subsection 921.0014(5). (19) The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall be within the guidelines sentence unless a departure is ordered. If a split sentence is imposed, the incarcerative portion of the sentence must not deviate more than 25 percent from the recommended guidelines prison sentence. The total sanction (incarceration and community control or probation) shall not exceed the term provided by general law or the guidelines recommended sentence where the provisions of subsection 921.001(5) apply. (20) Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. Cumulative incarceration imposed after revocation of probation or community control is subject to limitations imposed by the guidelines. A violation of probation or community control may not be the basis for a departure sentence. Committee Notes (d)(1) If sentences are imposed under section and the sentencing guidelines, a scoresheet listing only those offenses sentenced under the sentencing guidelines must be prepared and utilized in lieu of the comprehensive scoresheet. Due to ethical considerations, defense counsel may not be compelled to submit or sign a scoresheet. (d)(3) The primary offense need not be the highest ranked offense pending for sentencing where scoring the less severe offense as the primary offense will result in higher total sentence points. This can occur where the multipliers for drug trafficking or violations of the Law Enforcement Protection Act are applied or where past convictions can be included as prior record that could not be scored if the offense ranked at a higher severity level was the primary offense. (d)(16) The presumptive sentence is assumed to be appropriate for the composite score of the defendant. Where the total sentence points do not exceed 40, the court has the flexibility to impose any lawful term of probation with or without a period of incarceration as a condition of probation, a county jail term alone, or any nonincarcerative disposition. Any sentence may include a requirement that a fine be paid.