RULE 3.702. SENTENCING GUIDELINES (1994)

(a) Use. 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) Purpose and Construction. 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921.001(4) is superseded by the operation of this rule.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) Offense Severity Ranking. 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) General Rules and Definitions.

(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, which-ever 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 deter-mined, 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
921.0011(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 921.0011(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 775.087(2) while having in his
or her possession a firearm as defined in subsection 790.001(6) or a
destructive device as defined in subsection 790.001(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 775.087(2) while having in his or her
possession a semiautomatic weapon as defined in subsection
775.087(2) or a machine gun as defined in subsection 790.001(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 893.135, 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 775.0823(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 775.087(2)(a)(2) or subsections 775.0823(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 score-sheet.

(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

1993 Adoption. (d)(1) If sentences are imposed under
section 775.084 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.