RULE 3.703. SENTENCING GUIDELINES (1994 AS AMENDED)

(a) Use. This rule is to be used in conjunction with the forms
located at rule 3.991. This rule implements the 1994 sentencing
guidelines, as amended, in strict accordance with chapter 921,
Florida Statutes. This rule applies to offenses committed on or after
October 1, 1995, or as otherwise indicated.

(b) Purpose and Construction. The purpose of the 1994
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superseded by the operation of this rule.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.

(1) Felony offenses subject to the 1994 sentencing
guidelines, as amended, 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.
The numerical statutory reference in the left column of the chart
and the felony degree designations in the middle column of the
chart determine whether felony offenses are specifically listed in the
offense severity ranking chart and the appropriate severity level.
The language in the right column is merely descriptive.

(2) Felony offenses not listed in section 921.0012 are to
be assigned a severity level in accordance with section 921.0013, as
follows:

(A) A felony of the third degree within offense level
1.

(B) A felony of the second degree within offense
level 4.
(C) A felony of the first degree within offense level
7.

(D) A felony of the first degree punishable by life
within offense level 9.

(E) A life felony within offense level 10.

An offense does not become unlisted and subject to the
provisions of section 921.0013, because of a reclassification of the
degree of felony pursuant to section 775.0845, section 775.087,
section 775.0875 or section 794.023.

(d) General Rules and Definitions.

(1) One or more sentencing guidelines scoresheets shall
be prepared for each offender covering all offenses pending before
the court for sentencing, including offenses for which the offender
has been adjudicated an habitual felony offender, an habitual
violent felony offender or violent career criminal. The office of the
state attorney or the Department of Corrections, or both where
appropriate, will prepare the scoresheets and present them to
defense counsel for review as to accuracy. The Department of
Corrections shall prepare sentencing guidelines scoresheets if the
offender is alleged to have violated probation or community control
and revocation is recommended.

(2) One scoresheet shall be prepared for all offenses
committed under any single version or revision of the guidelines,
pending before the court for sentencing.

(3) If an offender is before the court for sentencing for
more than one felony and the felonies were committed under more
than one version or revision of the guidelines, separate scoresheets
must be prepared and used at sentencing. The sentencing court
may impose such sentence concurrently or consecutively.

(4) The sentencing judge shall review the scoresheet for
accuracy and sign it.
(5) Felonies, except capital felonies, with continuing
dates of enterprise are to be sentenced under the guidelines in
effect on the beginning date of the criminal activity.

(6) “Conviction” means a determination of guilt
resulting from plea or trial, regardless of whether adjudication was
withheld or whether imposition of sentence was suspended.

(7) “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.

(8) “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.

(9) “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. Except as otherwise provided by law, the
sexual penetration and sexual contact points will be scored as
follows. Sexual penetration points are scored if an offense pending
before the court for sentencing involves sexual penetration. Sexual
contact points are scored if an offense pending before the court for
sentencing involves sexual contact, but no penetration. 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 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, victim injury shall not be scored for
an offense for which the offender has not been convicted.

Victim injury resultant from one or more capital felonies before
the court for sentencing is not to be included upon any scoresheet
prepared for non-capital felonies also pending before the court for
sentencing. This in no way prohibits the scoring of victim injury as
a result from the non-capital felonies before the court for
sentencing.

(10) Unless specifically provided otherwise by statute,
attempts, conspiracies, and solicitations are indicated in the space
provided on the guidelines scoresheet and are scored at one severity
level below the completed offense.

Attempts, solicitations, and conspiracies of third-degree
felonies located in offense severity levels 1 and 2 are to be scored as
misdemeanors. Attempts, solicitations, and conspiracies of third-
degree felonies located in offense severity levels 3, 4, 5, 6, 7, 8, 9,
and 10 are to be scored as felonies one offense level beneath the
incomplete or inchoate offense.

(11) An increase in offense severity level may result from
a reclassification of felony degrees pursuant to sections 775.0845,
775.087, 775.0875, or 794.023. Any such increase should be
indicated in the space provided on the sentencing guidelines
scoresheet.

(12) A single assessment of thirty prior serious felony
points is added if the offender has a primary offense or any
additional offense ranked in level 8, 9, or 10 and one or more prior
serious felonies. A “prior serious felony” is an offense in the
offender’s prior record ranked in level 8, 9, or 10 and for which the
offender is serving a sentence of confinement, supervision or other
sanction or for which the offender’s date of release from
confinement, supervision or other sanction, whichever is later is
within 3 years before the date the primary offense or any additional
offenses were committed. Out of state convictions wherein the
analogous or parallel Florida offenses are located in offense severity
level 8, 9, or 10 are to be considered prior serious felonies.

(13) If the offender has one or more prior capital felonies,
points shall be added to the subtotal sentence points of the offender
equal to twice the number of points the offender receives for the
primary offense and any additional offense. Out-of-state convictions
wherein the analogous or parallel Florida offenses are capital
offenses are to be considered capital offenses for purposes of
operation of this section.

(14) “Total offense score” is the sum of the sentence
points for primary offense, any additional offenses and victim
injury.

(15) “Prior record” refers to any conviction for an offense
committed by the offender prior to the commission of the primary
offense, excluding any additional offenses pending before the court
for sentencing. Prior record shall include convictions for offenses
committed by the offender 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 offender 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 offender 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 offender more than 3 years prior
to the date of the primary offense are to be scored as prior record if
the offender 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 are not scored. Criminal history records expunged
or sealed under section 943.058 or other provisions of law,
including former sections 893.14 and 901.33, are scored as prior
record where the offender whose record has been expunged or
sealed is before the court for sentencing.

(D) Any uncertainty in the scoring of the offender’s
prior record shall be resolved in favor of the offender 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.

(16) “Legal status points” are assessed when an offender:

(A) Escapes from incarceration;

(B) Flees to avoid prosecution;

(C) Fails to appear for a criminal proceeding;

(D) Violates any condition of a supersedeas bond;

(E) Is incarcerated;

(F) Is under any form of a pretrial intervention or
diversion program; or

(G) Is under any form of court-imposed or post-
prison release community supervision and 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.

(17) Community sanction violation points occur when
the offender is found to have violated a condition of:

(A) Probation;

(B) Community Control; or

(C) Pretrial Intervention or diversion.

Community sanction violation points are assessed when a
community sanction violation is before the court for sentencing. Six
community sanction violation points shall be assessed for each
violation or if the violation results from a new felony conviction, 12
community sanction violation points shall be assessed. Where there
are multiple violations, points may be assessed only for each
successive violation that follows a continuation of supervision, or
modification or revocation of the community sanction before the
court for sentencing and are not to be assessed for violation of
several conditions of a single community sanction. Multiple counts
of community sanction violations before the sentencing court shall
not be the basis for multiplying the assessment of community
sanction violation points.

(18) “Total prior record score” is the sum of all sentence
points for prior record.

(19) Possession of a firearm, semiautomatic firearm, or a
machine gun during the commission or attempt to commit a crime
will result in additional sentence points. Eighteen sentence points
are assessed if 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 firearm as
defined in subsection 790.001(6). Twenty-five sentence points are
assessed if the offender is convicted of committing or attempting to
commit any felony other than those enumerated in subsection
775.087(3) while having in his or her possession a semiautomatic
firearm as defined in subsection 775.087(3) or a machine gun as
defined in subsection 790.001(9). Only one assessment of either 18
or 25 points shall apply.

(20) “Subtotal sentence points” are the sum of the total
offense score, the total prior record score, any legal status points,
community sanction points, prior serious felony points, prior capital
felony points or points for possession of a firearm or semi-automatic
weapon.

(21) If the primary offense is drug trafficking under
section 893.135 ranked in offense severity level 7 or 8, the subtotal
sentence points may be multiplied, at the discretion of the
sentencing court, by a factor of 1.5.

(22) If the primary offense is a violation of the Law
Enforcement Protection Act under subsection 775.0823(2), the
subtotal sentence points are multiplied by a factor of 2.5. If the
primary offense is a violation of subsection 775.0823(3), (4), (5), (6),
(7), or (8) the subtotal sentence points are multiplied by a factor of
2.0. If the primary offense is a violation of the Law Enforcement
Protection Act under subsection 775.0823(9) or (10) or section
784.07(3) or section 775.0875(1), the subtotal sentence points are
multiplied by a factor of 1.5.

(23) If the primary offense is grand theft of the third
degree of a motor vehicle and the offender’s prior record includes
three or more grand thefts of the third degree of a motor vehicle, the
subtotal sentence points are multiplied by 1.5.

(24) If the offender is found to be a member of a criminal
street gang pursuant to section 874.04, at the time of the
commission of the primary offense, the subtotal sentence points are
multiplied by 1.5.

(25) If the primary offense is determined to be a crime of
domestic violence as defined in section 741.28 and to have been
committed in the presence of a child who is related by blood or
marriage to the victim or perpetrator and who is under the age of
16, the subtotal sentence points are multiplied, at the discretion of
the court, by 1.5.
(26) “Total sentence points” are the subtotal sentence
points or the enhanced subtotal sentence points.

(27) “Presumptive sentence” is determined by the total
sentence points. A person sentenced for a felony committed on or
after July 1, 1997, who has at least one prior felony conviction and
whose recommended sentence is any nonstate prison sanction may
be sentenced to community control or a term of incarceration not to
exceed 22 months. A person sentenced for a felony committed on or
after July 1, 1997, who has at least one prior felony conviction and
whose minimum recommended sentence is less than 22 months in
state prison may be sentenced to a term of incarceration not to
exceed 22 months.

In all other cases, if the total sentence points are less than or
equal to 40, the recommended sentence, absent a departure, shall
not be state prison. The court may impose any nonstate prison
sanction authorized by law, including community control. However,
the sentencing court may increase sentence points less than or
equal to 40 by up to and including 15% 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% 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.

If the total sentence points are equal to or greater than
363, the court may sentence the offender to life imprisonment.
(28) If the recommended sentence under the sentencing
guidelines exceeds the maximum sentence authorized for the
pending felony offenses, the guidelines sentence must be imposed,
absent a departure. Such downward departure must be equal to or
less than the maximum sentence authorized by section 775.082.

(29) 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.

(30) 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%,
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 7 days after 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 7 days after 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).

(31) 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.

(32) 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

1996 Amendments.

(a) This portion was amended to show that the earliest
offense date to which this rule applies is October 1, 1995 and that
all subsequent changes are incorporated. It is intended that
Committee Notes will be used to indicate effective dates of changes.

(c) This amendment applies to offenses committed on or
after October 1, 1996.
(d)(9) The 1996 Legislature created two crimes for which sexual
penetration or sexual contact points are not scored. That exception
applies to offenses committed on or after October 1, 1996 pursuant
to section 872.06, Florida Statutes or section 944.35(3)(b)2, Florida
Statutes.

(d)(12) The amendment applies to offenses committed on or
after October 1, 1996.

(d)(13) The amendment applies on or after October 1, 1996.

(d)(17) This amendment, which applies on or after October
1, 1996, clarifies when points may be assessed for multiple
violations. It also incorporates legislative changes that indicate that
multiple assessments may not be made for multiple counts of
community sanction violations.

(d)(24) The amendment applies to crimes committed on or
after October 1, 1996.

1997 Amendments.

(d)(25) The amendment applies to crimes committed on or
after October 1, 1997.