RULE 3.704. THE CRIMINAL PUNISHMENT CODE

(a) Use. This rule is to be used in conjunction with the forms
located at rule 3.992. This rule implements the 1998 Criminal
Punishment Code, in compliance with chapter 921, Florida
Statutes. This rule applies to offenses committed on or after
October 1, 1998, or as otherwise required by law.

(b) Purpose and Construction. The purpose of the 1998
Criminal Punishment Code, and the principles it embodies, are set
out in subsection 921.002(1), Florida Statutes. Existing case law
construing the application of sentencing guidelines will continue as
precedent unless in conflict with the provisions of this rule or the
1998 Criminal Punishment Code.

(c) Offense Severity Ranking.
(1) Felony offenses subject to the 1998 Criminal
Punishment Code are listed in a single offense severity ranking
chart located at section 921.0022, Florida Statutes. 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, as determined by statute. 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 921.0022 are
assigned a severity level in accordance with section 921.0023,
Florida Statutes, 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; or

(E) a life felony within offense level 10.

An offense does not become unlisted and subject to the
provisions of section 921.0023 because of a reclassification of the
degree of felony under section 775.0845, section 775.087, section
775.0875, or section 794.023, Florida Statutes, or any other law
that provides an enhanced penalty for a felony offense.

(d) General Rules and Definitions.
(1) One or more Criminal Punishment Code scoresheets
must be prepared for each offender covering all offenses pending
before the court for sentencing, including offenses for which the
offender may qualify as an habitual felony offender, an habitual
violent felony offender, a violent career criminal, or a prison releasee
reoffender. The office of the prosecuting attorney must prepare the
scoresheets and present them to defense counsel for review as to
accuracy. If sentences are imposed under section 775.084, or
section 775.082(9), Florida Statutes, and the Criminal Punishment
Code, a scoresheet listing only those offenses sentenced under the
Criminal Punishment Code must be filed in addition to any
sentencing documents filed under section 775.084 or section
775.082(9).

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

(3) If an offender is before the court for sentencing for
more than 1 felony and the felonies were committed under more
than 1 version or revision of the guidelines or Criminal Punishment
Code, separate scoresheets must be prepared and used at
sentencing. The sentencing court may impose such sentence
concurrently or consecutively.

(4) The sentencing judge must 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 or
Criminal Punishment Code in effect on the beginning date of the
criminal activity.

(6) “Conviction” means a determination of guilt that is
the result of a plea or trial, regardless of whether adjudication is
withheld.

(7) “Primary offense” means the offense at conviction
pending before the court for sentencing for which the total sentence
points recommend a sanction that is as severe as, or more severe
than, the sanction recommended for any other offense committed
by the offender and pending before the court at sentencing. Only 1
count of 1 offense before the court for sentencing may be classified
as the primary offense.

(8) “Additional offense” means any offense other than
the primary offense for which an offender is convicted and which is
pending before the court for sentencing at the time of the primary
offense.

(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
must be scored in addition to any points scored for the sexual
contact or sexual penetration.

Victim injury must be scored for each victim physically
injured and for each offense resulting in physical injury whether
there are 1 or more victims. However, victim injury must not be
scored for an offense for which the offender has not been convicted.

Victim injury resulting from 1 or more capital offenses
before the court for sentencing must not be included upon any
scoresheet prepared for non-capital offenses also pending before the
court for sentencing. This does not prohibit the scoring of victim
injury as a result of the non-capital offense or offenses before the
court for sentencing.

(10) Unless specifically provided otherwise by statute,
attempts, conspiracies, and solicitations must be indicated in the
space provided on the Criminal Punishment Code scoresheet and
must be scored at 1 severity level below the completed offense.
Attempts, solicitations, and conspiracies of third-degree
felonies located in offense severity levels 1 and 2 must 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 must be scored as felonies 1 offense level beneath the
incomplete or inchoate offense.

(11) An increase in offense severity level may result from
a reclassification of felony degrees under sections 775.0845,
775.087, 775.0875, or 794.023, Florida Statutes. Any such
increase must be indicated in the space provided on the Criminal
Punishment Code scoresheet.

(12) A single assessment of 30 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 1 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 must be considered prior serious felonies.

(13) If the offender has 1 or more prior capital felonies,
points must 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 must be considered capital offenses for purposes of
operation of this section.

(14) “Prior record” refers to any conviction for an offense
committed by the offender prior to the commission of the primary
offense. Prior record includes 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 before the date of the commission of the primary offense
must not be 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 5 years before the date of the commission of the
primary offense must be 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 5 years before
the date of the primary offense must 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 5 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 must not be scored. Criminal history records
expunged or sealed under section 943.058, Florida Statutes, or
other provisions of law, including former sections 893.14 and
901.33, Florida Statutes, must be 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 must be resolved in favor of the offender and
disagreement as to the propriety of scoring specific entries in the
prior record must 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 must be scored as a misdemeanor.
When the degree of felony is ambiguous or the severity level cannot
be determined, the conviction must be scored at severity level 1.

(15) “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 must only be assessed once regardless of the
existence of more than 1 form of legal status at the time an offense
is committed or the number of offenses committed while under any
form of legal status.

(16) 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 must be assessed for each
violation or if the violation results from a new felony conviction, 12
community sanction violation points must be assessed. For
violations occurring on or after March 12, 2007, if the community
sanction violation that is not based upon a failure to pay fines,
costs, or restitution is committed by a violent felony offender of
special concern as defined in section 948.06, Florida Statutes, 12
community sanction violation points must be assessed or if the
violation results from a new felony conviction, 24 community
sanction points must 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 may not
be the basis for multiplying the assessment of community sanction
violation points.

(17) 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), Florida Statutes, while having in his or her
possession a firearm as defined in subsection 790.001(6), Florida
Statutes. 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), Florida Statutes,
while having in his or her possession a semiautomatic firearm as
defined in subsection 775.087(3), Florida Statutes, or a machine
gun as defined in subsection 790.001(9), Florida Statutes. Only 1
assessment of either 18 or 25 points can be made.

(18) “Subtotal sentence points” are the sum of the
primary offense points, the total additional offense points, the total
victim injury points, the total prior record points, any legal status
points, community sanction points, prior serious felony points,
prior capital felony points, and points for possession of a firearm or
semiautomatic weapon.
(19) If the primary offense is drug trafficking under
section 893.135, Florida Statutes, 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.

(20) If the primary offense is a violation of subsection
775.0823(2), (3), or (4), Florida Statutes, the subtotal sentence
points are multiplied by 2.5. If the primary offense is a violation of
subsection 775.0823(5), (6), (7), (8), or (9), Florida Statutes, the
subtotal sentence points are multiplied by 2.0. If the primary
offense is a violation of subsection 784.07(3) or 775.0875(1), Florida
Statutes, or subsection 775.0823(10) or (11), Florida Statutes, the
subtotal sentence points are multiplied by 1.5.

(21) If the primary offense is grand theft of the third
degree of a motor vehicle and the offender’s prior record includes 3
or more grand thefts of the third degree of a motor vehicle, the
subtotal sentence points are multiplied by 1.5.

(22) If the offender is found to have committed the
offense for the purpose of benefitting, promoting, or furthering the
interests of a criminal 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) If the primary offense is a crime of domestic violence
as defined in section 741.28, Florida Statutes, which was
committed in the presence of a child under 16 years of age who is a
family household member as defined in section 741.28(2), Florida
Statutes, with the victim or perpetrator, the subtotal sentence
points are multiplied by 1.5.

(24) (A) Adult on minor sex offense. The subtotal
sentence points are multiplied by 2.0 if:

(i) the offender was 18 years of age or older
and the victim was younger than 18 years of age at the time the
offender committed the primary offense; and
(ii) the primary offense was committed on or
after October 1, 2014, and is a violation of:

a. section 787.01(2) (kidnapping) or
787.02(2) (false imprisonment), Florida Statutes, if in the course of
committing the kidnapping or false imprisonment the defendant
committed a sexual battery under chapter 794, Florida Statutes, or
a lewd act under section 800.04 or 847.0135(5), Florida Statutes,
against the victim;

b. section 787.01(3)(a)2. or (3)(a)3.,
Florida Statutes, (kidnapping of a child under 13 with a sexual
battery or lewd act);

c. section 787.02(3)(a)2. or (3)(a)3.,
Florida Statutes, (false imprisonment of a child under 13 with a
sexual battery or lewd act);

d. section 794.011, Florida Statutes,
(sexual battery), excluding section 794.011(10);

e. section 800.04, Florida Statutes,
(lewd or lascivious offenses); or

f. section 847.0135(5), Florida
Statutes, (lewd or lascivious exhibition using a computer).

(B) Notwithstanding subdivision (d)(24)(A), the court
may not apply the multiplier and must sentence the defendant to
the statutory maximum sentence if applying the multiplier results
in the lowest permissible sentence exceeding the statutory
maximum sentence for the primary offense under chapter 775,
Florida Statutes.

(25) “Total sentence points” are the subtotal sentence
points or the enhanced subtotal sentence points.
(26) The lowest permissible sentence is the minimum
sentence that may be imposed by the trial court, absent a valid
reason for departure. The lowest permissible sentence is any
nonstate prison sanction in which the total sentence points equals
or is less than 44 points, unless the court determines within its
discretion that a prison sentence, which may be up to the statutory
maximums for the offenses committed, is appropriate. When the
total sentence points exceeds 44 points, the lowest permissible
sentence in prison months must be calculated by subtracting 28
points from the total sentence points and decreasing the remaining
total by 25 percent. The total sentence points must be calculated
only as a means of determining the lowest permissible sentence.
The maximum sentence for each individual felony offense is the
statutory maximum as provided in s. 775.082, Florida Statutes,
unless the lowest permissible sentence exceeds the statutory
maximum for that offense. If the lowest permissible sentence
exceeds the statutory maxmum for an individual felony offense, the
lowest permissible sentence replaces the statutory maximum and
must be imposed for that offense. Sentences for multiple felony
offenses may be imposed concurrently or consecutively, However,
any sentence to state prison must exceed 1 year. If the total
sentence points are greater than or equal to 363, the court may
sentence the offender to life imprisonment.

(27) The sentence imposed must be entered on the
scoresheet.

(28) For those offenses having a mandatory minimum
sentence, a scoresheet must be completed and the lowest
permissible sentence under the Code calculated. If the lowest
permissible sentence is less than the mandatory minimum
sentence, the mandatory minimum sentence takes precedence. If
the lowest permissible sentence exceeds the mandatory sentence,
the requirements of the Criminal Punishment Code and any
mandatory minimum penalties apply. Mandatory minimum
sentences must be recorded on the scoresheet.

(29) Any downward departure from the lowest
permissible sentence, as calculated according to the total sentence
points under section 921.0024, Florida Statutes, is prohibited
unless there are circumstances or factors that reasonably justify
the downward departure. Circumstances or factors that can be
considered include, but are not limited to, those listed in subsection
921.0026(2), Florida Statutes.

(A) If a sentencing judge imposes a sentence that
is below the lowest permissible sentence, it is a departure sentence
and must be accompanied by a written statement by the sentencing
court delineating the reasons for the departure, filed 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 filed by the court 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 Criminal Punishment
Code scoresheet.

(B) The written statement delineating the reasons
for departure must be made a part of the record. The written
statement, if it is a separate document, must accompany the
scoresheet required to be provided to the Department of Corrections
under subsection 921.0024(6), Florida Statutes.

If a split sentence is imposed, the total sanction (incarceration
and community control or probation) must not exceed the term
provided by general law or the maximum sentence under the
Criminal Punishment Code.

(30) If the lowest permissible sentence under the
criminal punishment code is a state prison sanction but the total
sentencing points do not exceed 48 points (or 54 points if 6 of those
points are for a violation of probation, community control, or other
community supervision that does not involve a new crime), the
court may sentence the defendant to probation, community control,
or community supervision with mandatory participation in a prison
diversion program, as provided for in section 921.00241, Florida
Statutes, if the defendant meets the requirements for that program
as set forth in section 921.00241, Florida Statutes.
(31) If the total sentence points equal 22 or less, the
court must sentence the offender to a nonstate prison sanction
unless it makes written findings that a nonstate prison sanction
could present a danger to the public. Unless there is a stipulation,
there must be a finding by the jury that a nonstate prison sanction
could present a danger to the public before the court may sentence
a defendant to prison under section 775.082(10), Florida Statutes.

(32) Sentences imposed after revocation of probation or
community control must be imposed according to the sentencing
law applicable at the time of the commission of the original offense.

Committee Note

The terms must and shall, as used in this rule, are mandatory
and not permissive.

2001 Amendment. 3.704(d)(14)(B). The definition of “prior
record” was amended to include juvenile dispositions of offenses
committed within 5 years prior to the date of the commission of the
primary offense. “Prior record” was previously defined to include
juvenile disposition of offenses committed within 3 years prior to
the date of the commission of the primary offense. This amendment
reflects the legislative change to section 921.0021, Florida Statutes,
effective July 1, 2001. This new definition of prior record applies to
primary offenses committed on or after July 1, 2001.

2023 Amendment. The Committee proposed the amendments
to subdivision (d)(26) based on the Court’s opinion in State v.
Gabriel, 314 So. 3d 1243 (Fla. 2021).