Opinion
No. SC08-1834.
November 20, 2008.
Judge Thomas H. Bateman, III, Chair, Florida Criminal Procedure Rules Committee, Second Judicial Circuit, Quincy, Florida, John F. Harkness, Jr., Executive Director, and Jodi Jennings, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner.
The Florida Bar's Criminal Procedure Rules Committee (Committee) has filed an out-of-cycle report proposing amendments to the Florida Rules of Criminal Procedure to conform the rules to 2008 legislation. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla.R.Jud.Admin. 2.140(e).
The Committee also submitted proposed amendments to rule 3.130 (First Appearance). Those proposals, which are not based on new legislation, have been severed from this case and will be considered in a separate case, In re Amendments to Florida Rule of Criminal Procedure 3.130 , No. SC08-1934 (Fla. petition filed Sept. 29, 2008).
The Committee proposes amendments to rules 3.704 (Criminal Punishment Code) and 3.986 (Forms Related to Judgment and Sentence) in response to recent legislation that became effective October 1, 2008. See ch. 2008-238, §§ 8, 21-22, 26, 35, Laws of Fla. The Executive Committee of the Florida Bar Board of Governors unanimously approved the proposals. After considering the Committee's proposals and reviewing the relevant legislation, we amend the rules as proposed by the Committee.
The amendment to rule 3.704(d)(22) changes the term "criminal street gang" to "criminal gang." The change is in response to chapter 2008-238, Laws of Florida, section 8 (amending section 874.04, Florida Statutes, to replace the term "criminal street gang activity" with "gang-related offenses," and to change the term "criminal street gang" to "criminal gang") and section 26 (amending section 921.0024(1)(a), Florida Statutes, to change the term "criminal street gang offense" to "criminal gang offense"). This change is consistent with the recent amendment to rule 3.992(a), Criminal Punishment Code Scoresheet, made in In re Amendments to Florida Rule of Criminal Procedure 3.992(a )" Criminal Punishment Code Scoresheet, 992 So.2d 239 (Fla. 2008). An editorial change to correct the spelling of the word "benefiting" also is made to the subdivision.
The amendment to rule 3.986(d), Form for Sentencing, adds a provision for felony convictions for an offense that is found, pursuant to section 874.04, to have been committed for the purpose of benefiting, promoting, or furthering the interests of a criminal gang. The amendments to rules 3.986(e), Form for Order of Probation, and 3.986(1), Form for Community Control, add special conditions prohibiting association with criminal gang members. The changes are made in response to chapter 2008-238, Laws of Florida, section 21 (creating section 948.033, Florida Statutes, to prohibit persons convicted of criminal gang offenses from associating with other criminal gang members during community control or probation) and section 22 (amending section 947.18, Florida Statutes, to prohibit persons convicted of criminal gang offenses from associating with other criminal gang members during parole).
Accordingly, we amend the Rules of Criminal Procedure as reflected in the appendix to this opinion. New language is underscored, and deleted language is struck through. These amendments shall become effective immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.
An original and nine paper copies of all comments must be filed with the Court on or before January 19, 2009, with a certificate of service verifying that a copy has been served on the committee chair, Honorable Thomas H. Bateman, III, Gadsden County Courthouse, 24 North Adams Street, Quincy, Florida 32354, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The committee chair has until February 9, 2009, to file a response to any comments filed with the Court. Electronic copies of all comments and responses also must be filed in accordance with the Court's administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).
It is so ordered.
QUINCE, C.J., and WELLS, ANSTEAD, PARIENTE, LEWIS, CANADY, and POLSTON, JJ., concur.
APPENDIX
RULE 3.704. THE CRIMINAL PUNISHMENT CODE (a) — (c) (No Change) (d) General Rules and Definitions.
(1) — (21) (No Change)
If the offender is found to have committed the offense for the purpose of Continued benefitting, promoting, or furthering the interests of a criminal street gang under section 874.04, Florida Statutes, at the time of the commission of the primary offense, the subtotal sentence points are multiplied by 1.5.
(23) — (28) (No Change)
Committee Note (No Change)
RULE 3.986. FORMS RELATED TO JUDGMENT AND SENTENCE (a)(c) (No Change) (d) Form for Sentencing.
Defendant_____ Case Number_____ OBTS Number_____
SENTENCE (As to Count —)
The defendant, being personally before this court, accompanied by the defendant's attorney of record, _____, and having been adjudicated guilty herein, and the court having given the defendant an opportunity to be heard and to offer matters in mitigation of sentence, and to show cause why the defendant should not be sentenced as provided by law, and no cause being shown,
(Check one if applicable)
— and the court having on. . . . . (date). . . . . deferred imposition of sentence until this date
— and the court having previously entered a judgment in this case on. . . . . (date). . . . . now resentences the defendant
— and the court having placed the defendant on probation/community control and having subsequently revoked the defendant's probation/community control
It Is The Sentence Of The Court That:
— The defendant pay a fine of $_____, pursuant to section 775.083, Florida Statutes, plus $_____ as the 5% surcharge required by section 960.25, Florida Statutes.
— The defendant is hereby committed to the custody of the Department of Corrections.
— The defendant is hereby committed to the custody of the Sheriff of _____ County, Florida.
— The defendant is sentenced as a youthful offender in accordance with section 958.04, Florida Statutes.
To Be Imprisoned (check one; unmarked sections are inapplicable):
— For a term of natural life.
— For a term of_______
— Said SENTENCE SUSPENDED for a period of _____ subject to conditions set forth in this order.
If "split" sentence complete the appropriate paragraph
— Followed by a period of _____ on probation/community control under the supervision of the Department of Corrections according to the terms and conditions of supervision set forth in a separate order entered herein.
— However, after serving a period of _____ imprisonment in _____ the balance of the sentence shall be suspended and the defendant shall be placed on probation/community control for a period of _____ under supervision of the Department of Corrections according to the terms and conditions of probation/community control set forth in a separate order entered herein.
In the event the defendant is ordered to serve additional split sentences, all incarceration portions shall be satisfied before the defendant begins service of the supervision terms.
SPECIAL PROVISIONS (As to Count —)
By appropriate notation, the following provisions apply to the sentence imposed:
Mandatory/Minimum Provisions:
Firearm
— It is further ordered that the 3-year minimum imprisonment provision of section 775.087(2), Florida Statutes, is hereby imposed for the sentence specified in this count.
Drug Trafficking
— It is further ordered that the ___ mandatory minimum imprisonment provision of section 893.135(1), Florida Statutes, is hereby imposed for the sentence specified in this count.
Controlled Substance Within 1,000 Feet of School
— It is further ordered that the 3-year minimum imprisonment provision of section 893.13(1)(e)1, Florida Statutes, is hereby imposed for the sentence specified in this count.
Habitual Felony Offender
— The defendant is adjudicated a habitual felony offender and has been sentenced to an extended term in accordance with the provisions of section 775.084(4)(a), Florida Statutes. The requisite findings by the court are set forth in a separate order or stated on the record in open court.
Habitual Violent Felony Offender
— The defendant is adjudicated a habitual violent felony offender and has been sentenced to an extended term in accordance with the provisions of section 775.084(4)(b), Florida Statutes. A minimum term of____ year(s) must be served prior to release. The requisite findings of the court are set forth in a separate order or stated on the record in open court.
Law Enforcement Protection Act
— It is further ordered that the defendant shall serve a minimum of ___ years before release in accordance with section 775.0823, Florida Statutes.
Capital Offense
— It is further ordered that the defendant shall serve no less than 25 years in accordance with the provisions of section 775.082(1), Florida Statutes.
Short-Barreled Rifle, Shotgun, Machine Gun
— It is further ordered that the 5-year minimum provisions of section 790.221(2), Florida Statutes, are hereby imposed for the sentence specified in this count.
Continuing Criminal Enterprise
— It is further ordered that the 25-year minimum sentence provisions of section 893.20, Florida Statutes, are hereby imposed for the sentence specified in this count.
Taking a Law Enforcement Officer's Firearm
— It is further ordered that the 3-year mandatory minimum imprisonment provision of section 775.0875(1), Florida Statutes, is hereby imposed for the sentence specified in this count.
Other Provisions:
Criminal Gang Activity
— The felony conviction is for an offense that was found, pursuant to section 874.04, Florida Statutes, to have been committed for the purpose of benefiting, promoting, or furthering the interests of a criminal gang.
Retention of Jurisdiction
— The court retains jurisdiction over the defendant pursuant to section 947.16(3), Florida Statutes (1983).
Jail Credit
— It is further ordered that the defendant shall be allowed a total of ___ days as credit for time incarcerated before imposition of this sentence.
CREDIT FOR TIME SERVED IN RESENTENCING AFTER VIOLATION OF PROBATION OR COMMUNITY CONTROL
— It is further ordered that the defendant be allowed ___ days time served between date of arrest as a violator following release from prison to the date of resentencing. The Department of Corrections shall apply original jail time credit and shall compute and apply credit for time served and unforfeited gain time previously awarded on case/count _____ (Offenses committed before October 1, 1989)
— It is further ordered that the defendant be allowed ___ days time served between date of arrest as a violator following release from prison to the date of resentencing. The Department of Corrections shall apply original jail time credit and shall compute and apply credit for time served on case/count _____ (Offenses committed between October 1, 1989, and December 31, 1993)
— The Court deems the unforfeited gain time previously awarded on the above case/count forfeited under section 948.06(6).
— The Court allows unforfeited gain time previously awarded on the above case/count. (Gain time may be subject to forfeiture by the Department of Corrections under section 944.28(1)).
— It is further ordered that the defendant be allowed ___ days time served between date of arrest as a violator following release from prison to the date of resentencing. The Department of Corrections shall apply original jail time credit and shall compute and apply credit for time served only pursuant to section 921.0017, Florida Statutes, on case/count _____ (Offenses committed on or after January 1, 1994)
Consecutive/Concurrent as to Other Counts
It is further ordered that the sentence imposed for this count shall run (check one) ___ consecutive to ___ concurrent with the sentence set forth in count ___ of this case.
Consecutive/Concurrent as to Other Convictions
It is further ordered that the composite term of all sentences imposed for the counts specified in this order shall run (check one) ___ consecutive to ___ concurrent with (check one) the following:
— any active sentence being served.
— specific sentences: ______
_______________________________
_____________________________
In the event the above sentence is to the Department of Corrections, the Sheriff of _____ County, Florida, is hereby ordered and directed to deliver the defendant to the Department of Corrections at the facility designated by the department together with a copy of this judgment and sentence and any other documents specified by Florida Statute.
The defendant in open court was advised of the right to appeal from this sentence by filing notice of appeal within 30 days from this date with the clerk of this court and the defendant's right to the assistance of counsel in taking the appeal at the expense of the state on showing of indigency.
In imposing the above sentence, the court further recommends _______
_____________________________________________________________
_____________________________________________________________
DONE AND ORDERED in open court at _____ County, Florida, on. . . . .(date). . . . . .
__________
Judge
(e) Form for Order of Probation.
In the _____ Court
of _____ County, Florida
Case Number __________
State of Florida
v.
__________
Defendant
ORDER OF PROBATION
This cause coming on this day to be heard before me, and you, the defendant, _______, being now present before me, and you having
(check one)
— entered a plea of guilty to
— entered a plea of nolo contendere to
— been found guilty by jury verdict of
— been found guilty by the court trying the case without a jury of the offense(s) of _______
______________________________
______________________________
SECTION 1: Judgment Of Guilt
— The Court hereby adjudges you to be guilty of the above offense(s).
Now, therefore, it is ordered and adjudged that the imposition of sentence is hereby withheld and that you be placed on probation for a period of _____ under the supervision of the Department of Corrections, subject to Florida law.
SECTION 2: Order Withholding Adjudication
— Now, therefore, it is ordered and adjudged that the adjudication of guilt is hereby withheld and that you be placed on probation for a period of _______ under the supervision of the Department of Corrections, subject to Florida law.
SECTION 3: Probation During Portion Of Sentence
It is hereby ordered and adjudged that you be
— committed to the Department of Corrections
— confined in the County Jail
for a term of ___ with credit for ___ jail time. After you have served ___ of the term you shall be placed on probation for a period of ___ under the supervision of the Department of Corrections, subject to Florida law.
— confined in the County Jail
for a term of ___ with credit for ___ jail time, as a special condition of probation.
It is further ordered that you shall comply with the following conditions of probation during the probationary period.
(1) Not later than the fifth day of each month, you will make a full and truthful report to your officer on the form provided for that purpose.
(2) You will pay the State of Florida the amount of $_____ per month toward the cost of your supervision, unless otherwise waived in compliance with Florida Statutes.
(3) You will not change your residence or employment or leave the county of your residence without first procuring the consent of your officer.
(4) You will not possess, carry, or own any firearm. You will not possess, carry, or own any weapons without first procuring the consent of your officer.
(5) You will live without violating the law. A conviction in a court of law shall not be necessary for such a violation to constitute a violation of your probation.
(6) You will not associate with any person engaged in any criminal activity.
(7) You will not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician. Nor will you visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used.
(8) You will work diligently at a lawful occupation, advise your employer of your probation status, and support any dependents to the best of your ability, as directed by your officer.
(9) You will promptly and truthfully answer all inquiries directed to you by the court or the officer, and allow your officer to visit in your home, at your employment site, or elsewhere, and you will comply with all instructions your officer may give you.
(10) You will pay restitution, costs, and/or fees in accordance with the attached orders.
(11) You will report in person within 72 hours of your release from confinement to the probation office in _____ County, Florida, unless otherwise instructed by your officer. (This condition applies only if section 3 on the previous page is checked.) Otherwise, you must report immediately to the probation office located at _____
SPECIAL CONDITIONS
— You must undergo a (drug/alcohol) evaluation and, if treatment is deemed necessary, you must successfully complete the treatment.
— You will submit to urinalysis, breathalyzer, or blood tests at any time requested by your officer, or the professional staff of any treatment center where you are receiving treatment, to determine possible use of alcohol, drugs, or controlled substances. You shall be required to pay for the tests unless payment is waived by your officer.
— You must undergo a mental health evaluation, and if treatment is deemed necessary, you must successfully complete the treatment.
— You will not associate with _____ during the period of probation.
— You will not associate with other criminal gang members or associates, except as authorized by law enforcement officials, prosecutorial authorities, or the court, for the purpose of aiding in the investigation of criminal activity.
— You will not contact _____ during the period of probation.
— You will attend and successfully complete an approved batterers' intervention program.
— Other _______
____________________
(Use the space below for additional conditions as necessary.)
You are hereby placed on notice that the court may at any time rescind or modify any of the conditions of your probation, or may extend the period of probation as authorized by law, or may discharge you from further supervision. If you violate any of the conditions of your probation, you may be arrested and the court may revoke your probation, adjudicate you guilty if adjudication of guilt was withheld, and impose any sentence that it might have imposed before placing you on probation or require you to serve the balance of the sentence.
It is further ordered that when you have been instructed as to the conditions of probation, you shall be released from custody if you are in custody, and if you are at liberty on bond, the sureties thereon shall stand discharged from liability. (This paragraph applies only if section 1 or section 2 is checked.)
It is further ordered that the clerk of this court file this order in the clerk's office and provide certified copies of same to the officer for use in compliance with the requirements of law.
DONE AND ORDERED, on. . . . .(date). . . . . .
__________
Judge
I acknowledge receipt of a certified copy of this order. The conditions have been explained to me and I agree to abide by them.
. . . . .(date). . . . . Probationer __________ Instructed by __________
Original: Clerk of the Court
Certified Copies: Probationer
Florida Department of Corrections,
Probation and Parole Services
(f) Form for Community Control.
In the ___ Court
of _____ County, Florida
Case Number _____
State of Florida
v.
__________
Defendant
ORDER OF COMMUNITY CONTROL
This cause coming on this day to be heard before me, and you, the defendant, _____, being now present before me, and you having
(check one)
— entered a plea of guilty to
— entered a plea of nolo contendere to
— been found guilty by jury verdict of
— been found guilty by the court trying the case without a jury of the offense(s) of _______
______________________________
______________________________
SECTION 1: Judgment Of Guilt
— The court hereby adjudges you to be guilty of the above offense(s).
Now, therefore, it is ordered and adjudged that you be placed on community control for a period of ___ under the supervision of the Department of Corrections, subject to Florida law.
SECTION 2: Order Withholding Adjudication
— Now, therefore, it is ordered and adjudged that the adjudication of guilt is hereby withheld and that you be placed on Community Control for a period of ___ under the supervision of the Department of Corrections, subject to Florida law.
SECTION 3: Community Control During Portion Of Sentence
It is hereby ordered and adjudged that you be
— committed to the Department of Corrections
— confined in the County Jail
for a term of ___ with credit for ___ jail time. After you have served ___ of the term, you shall be placed on community control for a period of ___ under the supervision of the Department of Corrections, subject to Florida law.
— confined in the County Jail
for a term of _____ with credit for _____ jail time, as a special condition of community control.
It is further ordered that you shall comply with the following conditions of community control during the community control period.
(1) Not later than the fifth day of each month, you will make a full and truthful report to your officer on the form provided for that purpose.
(2) You will pay the State of Florida the amount of $_____ per month toward the cost of your supervision, unless otherwise waived in compliance with Florida Statutes.
(3) You will not change your residence or employment or leave the county of your residence without first procuring the consent of your officer.
(4) You will not possess, carry, or own any firearm. You will not possess, carry, or own other weapons without first procuring the consent of your officer.
(5) You will live without violating the law. A conviction in a court of law shall not be necessary for such a violation to constitute a violation of your community control.
(6) You will not associate with any person engaged in any criminal activity.
(7) You will not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician. Nor will you visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used.
(8) You will work diligently at a lawful occupation, advise your employer of your community control status, and support any dependents to the best of your ability as directed by your officer.
(9) You will promptly and truthfully answer all inquiries directed to you by the court or your officer and allow your officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions your officer may give you.
(10) You will report to your officer at least 4 times a week, or, if unemployed full time, daily.
(11) You will perform ___ hours of public service work as directed by your officer.
(12) You will remain confined to your approved residence except for one half hour before and after your approved employment, public service work, or any other special activities approved by your officer.
(13) You will pay restitution, costs, and/or fees in accordance with the attached orders.
(14) You will report in person within 72 hours of your release from confinement to the probation office in _____ County, Florida, unless otherwise instructed by your officer. (This condition applies only if section 3 on the previous page is checked.) Otherwise, you must report immediately to the probation office located at _____.
SPECIAL CONDITIONS
— You must undergo a (drug/alcohol) evaluation, and if treatment is deemed necessary, you must successfully complete the treatment.
— You must undergo a mental health evaluation, and if treatment is deemed necessary, you must successfully complete the treatment.
— You will submit to urinalysis, breathalyzer, or blood tests at any time requested by your officer, or the professional staff of any treatment center where you are receiving treatment, to determine possible use of alcohol, drugs, or controlled substances. You shall be required to pay for the tests unless payment is waived by your officer.
— You will not associate with _____ during the period of community control.
— You will not associate with other criminal gang members or associates, except as authorized by law enforcement officials, prosecutorial authorities, or the court, for the purpose of aiding in the investigation of criminal activity.
— You will not contact _____ during the period of community control.
— You will maintain an hourly accounting of all your activities on a daily log which you will submit to your officer on request.
— You will participate in self-improvement programs as determined by the court or your officer.
— You will submit to electronic monitoring of your whereabouts as required by the Florida Department of Corrections.
— You will attend and successfully complete an approved batterers' intervention program.
— Other _______
____________________
(Use the space below for additional conditions as necessary.)
You are hereby placed on notice that the court may at any time rescind or modify any of the conditions of your community control, or may extend the period of community control as authorized by law, or may discharge you from further supervision or return you to a program of regular probation supervision. If you violate any of the conditions and sanctions of your community control, you may be arrested, and the court may adjudicate you guilty if adjudication of guilt was withheld, revoke your community control, and impose any sentence that it might have imposed before placing you on community control.
It is further ordered that when you have reported to your officer and have been instructed as to the conditions of community control, you shall be released from custody if you are in custody, and if you are at liberty on bond, the sureties thereon shall stand discharged from liability. (This paragraph applies only if section 1 or section 2 is checked.)
It is further ordered that the clerk of this court file this order in the clerk's office, and forthwith provide certified copies of same to the officer for use in compliance with the requirements of law.
DONE AND ORDERED, on. . . . .(date). . . . . .
__________
Judge
I acknowledge receipt of a certified copy of this order. The conditions have been explained to me and I agree to abide by them.
. . . . .(date). . . . . .
Community controller __________
Instructed by __________
Original: Clerk of the Court
Certified Copies: Community Controlee
Florida Department of Corrections,
Probation and Parole Services