RULE 3.701. SENTENCING GUIDELINES

(a) Use with Forms. This rule is to be used in conjunction
with forms 3.988(a)–(i).

(b) Statement of Purpose. The purpose of sentencing
guidelines is to establish a uniform set of standards to guide the
sentencing judge in the sentence decision-making process. The
guidelines represent a synthesis of current sentencing theory and
historic sentencing practices throughout the state. Sentencing
guidelines are intended to eliminate unwarranted variation in the
sentencing process by reducing the subjectivity in interpreting
specific offense-related and offender-related criteria and in defining
their relative importance in the sentencing decision. The sentencing
guidelines embody the following principles:

(1) Sentencing should be neutral with respect to race,
gender, and social and economic status.

(2) The primary purpose of sentencing is to punish the
offender. Rehabilitation and other traditional considerations
continue to be desired goals of the criminal justice system but must
assume a subordinate role.
(3) The penalty imposed should be commensurate with
the severity of the convicted offense and the circumstances
surrounding the offense.

(4) The severity of the sanction should increase with
the length and nature of the offender’s criminal history.

(5) The sentence imposed by the sentencing judge
should reflect the length of time to be served, shortened only by the
application of gain time.

(6) While the sentencing guidelines are designed to aid
the judge in the sentencing decision and are not intended to usurp
judicial discretion, departures from the presumptive sentences
established in the guidelines shall be articulated in writing and
made when circumstances or factors reasonably justify the
aggravation or mitigation of the sentence. The level of proof
necessary to establish facts supporting a departure from a sentence
under the guidelines is a preponderance of the evidence.

(7) Because the capacities of state and local
correctional facilities are finite, use of incarcerative sanctions
should be limited to those persons convicted of more serious
offenses or those who have longer criminal histories. To ensure
such usage of finite resources, sanctions used in sentencing
convicted felons should be the least restrictive necessary to achieve
the purposes of the sentence.

(c) Offense Categories. Offenses have been grouped into 9
offense categories encompassing the following statutes:

Category 1: Murder, manslaughter: Chapter 782 (except
subsection 782.04(1)(a)), subsection 316.193(3)(c)3, and subsection
327.351(2).

Category 2: Sexual offenses: Section 775.22, chapters 794 and
800, section 826.04, and section 491.0112.

Category 3: Robbery: Section 812.13, and sections 812.133
and 812.135.
Category 4: Violent personal crimes: Section 231.06, chapters
784 and 836, section 843.01, and subsection 381.411(4).

Category 5: Burglary: Chapter 810, section 817.025, and
subsection 806.13(3).

Category 6: Thefts, forgery, fraud: Sections 192.037 and
206.56, chapters 322 and 409, section 370.142, section 415.111,
chapter 443, section 493.3175, sections 494.0018, 496.413, and
496.417, chapter 509, subsection 517.301(1)(a), subsections
585.145(3) and 585.85(2), section 687.146, and chapters 812
(except section 812.13), 815, 817, 831, and 832.

Category 7: Drugs: Section 499.005 and chapter 893.

Category 8: Weapons: Chapter 790 and section 944.40.

Category 9: All other felony offenses.

(d) General Rules and Definitions.

(1) One guideline scoresheet shall be utilized for each
defendant covering all offenses pending before the court for
sentencing. The state attorney’s office will prepare the scoresheets
and present them to defense counsel for review as to accuracy in all
cases unless the judge directs otherwise. The sentencing judge shall
approve all scoresheets.

(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 defined as the offense at
conviction that, when scored on the guidelines scoresheet,
recommends the most severe sanction. In the case of multiple
offenses, the primary offense is determined in the following manner:

(A) A separate guidelines scoresheet shall be
prepared scoring each offense at conviction as the “primary offense
at conviction” with the other offenses at conviction scored as
“additional offenses at conviction.”

(B) The guidelines scoresheet that recommends
the most severe sentence range shall be the scoresheet to be
utilized by the sentencing judge pursuant to these guidelines.

(4) All other offenses for which the offender is convicted
and that are pending before the court for sentencing at the same
time shall be scored as additional offenses based on their degree
and the number of counts of each.

(5) “Prior record” refers to any past criminal conduct on
the part of the offender, resulting in conviction, prior to the
commission of the primary offense. Prior record includes all prior
Florida, federal, out-of-state, military, and foreign convictions, as
well as convictions for violation of municipal or county ordinances
that bring within the municipal or county code the violation of a
state statute or statutes. Provided, however, that:

(A) Entries in criminal histories that show no
disposition, disposition unknown, arrest only, or other
nonconviction disposition shall not be scored.

(B) When scoring federal, foreign, military, or out-
of-state convictions, assign the score for the analogous or parallel
Florida statute.

(C) When unable to determine whether an offense
at conviction is a felony or a misdemeanor, the offense should be
scored as a misdemeanor. When the degree of the felony is
ambiguous or impossible to determine, score the offense as a third-
degree felony.

(D) Prior record shall include criminal traffic
offenses, which shall be scored as misdemeanors.

(E) Convictions that do not constitute violations of
a parallel or analogous state criminal statute shall not be scored.
(F) An offender’s prior record shall not be scored if
the offender has maintained a conviction-free record for a period of
10 consecutive years from the most recent date of release from
confinement, supervision, or sanction, whichever is later, to the
date of the primary offense.

(G) All prior juvenile dispositions that are the
equivalent of convictions as defined in subdivision (d)(2), occurring
within 3 years of the commission of the primary offense and that
would have been criminal if committed by an adult, shall be
included in prior record.

(6) “Legal status at time of offense” is defined as
follows: Offenders on parole, probation, or community control;
offenders in custody serving a sentence; escapees; fugitives who
have fled to avoid prosecution or who have failed to appear for a
criminal judicial proceeding or who have violated conditions of a
supersedeas bond; and offenders in pretrial intervention or
diversion programs. Legal status points are to be assessed where
these forms of legal constraint existed at the time of the commission
of offenses scored as primary or additional offenses at conviction.
Legal status points are to be assessed only once whether there are
one or more offenses at conviction.

(7) Victim injury shall be scored for each victim
physically injured during a criminal episode or transaction, and for
each count resulting in such injury whether there are one or more
victims.

(8) The recommended sentences provided in the
guideline grids are assumed to be appropriate for the composite
score of the offender. A range is provided to permit some discretion.
The permitted ranges allow the sentencing judge additional
discretion when the particular circumstances of a crime or
defendant make it appropriate to increase or decrease the
recommended sentence without the requirement of finding
reasonable justification to do so and without the requirement of a
written explanation.
(9) For those offenses having a mandatory penalty, a
scoresheet should be completed and the guideline sentence
calculated. If the recommended sentence is less than the mandatory
penalty, the mandatory sentence takes precedence. If the guideline
sentence exceeds the mandatory sentence, the guideline sentence
should be imposed.

(10) If the composite score for a defendant charged with
a single offense indicates a guideline sentence that exceeds the
maximum sentence provided by statute for that offense, the
statutory maximum sentence should be imposed.

(11) Departures from the recommended or permitted
guideline sentence should be avoided unless there are
circumstances or factors that reasonably justify aggravating or
mitigating the sentence. Any sentence outside the permitted
guideline range must be accompanied by a written statement
delineating the reasons for the departure. Reasons for deviating
from the guidelines shall not include factors relating to prior arrests
without conviction or the instant offenses for which convictions
have not been obtained.

(12) A sentence must be imposed for each offense.
However, the total sentence cannot exceed the total guideline
sentence unless a written reason is given. Where the offender is
being sentenced for a capital felony and other noncapital felonies
that arose out of the same criminal episode or transaction, the
sentencing court may impose any sentence authorized by law for
the noncapital felonies.

(13) Community control is a form of intensive supervised
custody in the community involving restriction of the freedom of the
offender. When community control is imposed, it shall not exceed
the term provided by general law.

(14) 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.

(15) Categories 3, 5, and 6 contain an additional factor
to be scored under the heading of Prior Record: Prior convictions for
similar offenses. Prior convictions scored under this factor should
be calculated in addition to the general prior record score. Scoring
is limited to prior felony convictions included within the category.

Sentencing Guidelines Commission Notes

1988 Amendments.

(a) The operation of this rule is not intended to change the
law or requirements of proof as regards sentencing.

(b) These principles are binding on the sentencing court.

(c) Only 1 category is proper in any particular case. Category
9, “All Other Felony Offenses,” should be used only when the
primary offense at conviction is not included in another, more
specific category. The guidelines do not apply to capital felonies.

Inchoate offenses are included within the category of the
offense attempted, solicited, or conspired to, as modified by chapter
777.

The form appearing at Florida Rule of Criminal Procedure
3.988(a) has been revised to incorporate a point value for inclusion
in the prior record factor 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 32 points. This point
value will be applied only if the offender is convicted for a violation
of section 316.193(3)(c)3, Florida Statutes (Supp. 1986), or section
327.351, Florida Statutes (Supp. 1984), if the operation of a motor
vehicle or vessel by the offender while intoxicated as defined in
section 316.193(1), Florida Statutes (Supp. 1986), or section
327.351(1), Florida Statutes (Supp. 1984), results in the death of
any human being and the scoresheet utilized in sentencing is the
form appearing at Florida Rule of Criminal Procedure 3.988(a). For
purposes of determining a prior conviction for a violation of the
above enumerated statute, 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 a prior conviction.

(d)(1) Ultimate responsibility for ensuring that scoresheets are
accurately prepared rests with the sentencing court. Due to ethical
considerations, defense counsel may not be compelled to submit a
scoresheet. Probation and parole officers may be directed to compile
guidelines scoresheets only when a presentence investigation has
been ordered. The forms for calculating the guidelines are forms
3.988(a)–(i).

(d)(2) This definition applies to both instant offense and prior
record scoring.

(d)(3) The proper offense category is identified on determination
of the primary offense. When the defendant is convicted of
violations of more than 1 unique statute, the offenses are to be
sorted by statutory degree.

(d)(4) No points shall be scored for lesser and included
offenses. In the event of multiple counts of the same distinct offense
and degree of felony being scored as primary offense, it shall be
scored as additional counts of the primary offense. All other
offenses for which the defendant is convicted that are pending
before the court for sentencing shall be scored as additional
offenses.

(d)(5) Each separate prior felony and misdemeanor conviction
in an offender’s prior record that amounts to a violation of Florida
law shall be scored, unless discharged by the passage of time. 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 should be
resolved by the trial judge.
Prior record includes all offenses for which the defendant has
been found guilty, regardless of whether adjudication was withheld
or the record has been expunged.

Juvenile dispositions, with the exclusion of status offenses,
are included and considered along with adult convictions by
operation of this provision. However, each separate adjudication is
discharged from consideration if 3 years have passed between the
date of disposition and the commission of the instant offense.

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.”

(d)(7) This provision implements the intention of the
commission that points for victim injury be added for each victim
injured during a criminal transaction or episode. The injury need
not be an element of the crime for which the defendant is convicted,
but is limited to physical trauma. However, if the victim injury is
the result of a crime for which the defendant has been acquitted, it
shall not be scored.

(d)(8) The first guideline cell in each category (any nonstate
prison sanction) allows the court 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 the
requirement that a fine be paid. The sentences are found in forms
3.988(a)–(i).

(d)(10) If an offender is convicted under an enhancement
statute, the reclassified degree should be used as the basis for
scoring the primary offense in the appropriate category. If the
offender is sentenced under section 775.084 (habitual offender), the
maximum allowable sentence is increased as provided by the
operation of that statute. If the sentence imposed departs from the
recommended sentence, the provisions of (d)(11) shall apply.

(d)(11) A sentencing judge may depart from the
recommended sentence and impose a sentence within the permitted
range without giving reasons therefor. If a sentencing judge departs
from the permitted range, reasons for departure shall be articulated
at the time sentence is imposed. The written statement shall be
made a part of the record, with sufficient specificity to inform all
parties, as well as the public, of the reasons for departure. The
court is prohibited from considering offenses for which the
defendant has not been convicted. Other factors, consistent and not
in conflict with the statement of purpose, may be considered and
utilized by the sentencing judge.

(d)(12) The sentencing court shall impose or suspend
sentence for each separate count, as convicted. The total sentence
shall not exceed the guideline sentence, unless the provisions of
subdivision (d)(11) are complied with.

If a split sentence is imposed (i.e., a combination of state
prison and probation supervision), the incarcerative portion
imposed shall not be less than the minimum of the guideline range
nor exceed the maximum of the range. The total sanction
(incarceration and probation) shall not exceed the term provided by
general law.

(d)(13) Community control is a viable alternative for any
state prison sentence less than 24 months without requiring a
reason for departure. 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.

Community control is not an alternative sanction from the
recommended range of any nonstate prison sanction unless the
provisions of rule 3.701(d)(11) are applied.

1991 Amendment. The purpose of the 1991 revision to rule
3.701(d)(6) is to clarify the original intent that legal constraint is a
status consideration and is not to be considered a function of the
number of offenses at conviction.

1991 Amendment. The purpose of the 1991 revision to rule
3.701(d)(7) is to provide consistency in the scoring of victim injury
by scoring each offense at conviction for which victim injury can
appropriately be scored, whether committed against a single or
multiple victims.

1993 Amendments. Inchoate offenses are included within the
category of the offense attempted, solicited, or conspired to, as
modified by chapter 777. An attempt, solicitation, or conspiracy to
commit first-degree murder as defined in subsection 782.04(1)(a)
shall be scored in category 1. An attempt, solicitation, or conspiracy
to commit capital sexual battery as defined in subsection
794.011(2) shall be scored in category 2.