Opinion
No. SC21-891
03-24-2022
IN RE: AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.992.
Judge Debra J. Riva, Chair, Criminal Court Steering Committee, Sarasota, Florida, and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner Hon. Carlos J. Martinez and Maria E. Lauredo on behalf of the Florida Public Defender Association, Inc., Miami, Florida, Responding with comments
Judge Debra J. Riva, Chair, Criminal Court Steering Committee, Sarasota, Florida, and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner
Hon. Carlos J. Martinez and Maria E. Lauredo on behalf of the Florida Public Defender Association, Inc., Miami, Florida, Responding with comments
PER CURIAM. This matter is before the Court for consideration of proposed amendments to Florida Rule of Criminal Procedure 3.992. We have jurisdiction. See art. V, § 2(a), Fla. Const. The Criminal Court Steering Committee (CCSC) filed a report proposing amendments to rule 3.992 (Criminal Punishment Code Scoresheets). The CCSC's report was in response to a referral from the Court to propose amendments to the rule in accordance with the Court's recent decision in State v. Gabriel , 314 So. 3d 1243, 1252 (Fla. 2021) (concluding that "under section 921.0024(2), the LPS [lowest permissible sentence] is an individual minimum sentence where there are multiple convictions subject to sentencing on a single scoresheet"). The CCSC and the Court previously published the proposal for comment. The CCSC submitted an amended report, which was published by the Court and received one comment.
Having considered the amended proposal, the comment, and the Committee's response, the Court hereby amends rule 3.992 with additional modifications to the amended proposal. Specifically, under the sentence computation heading, in the third box, additional language is added to explain that the lowest permissible sentence is imposed if it is higher than the statutory maximum for an individual felony offense pursuant to Gabriel , and a detailed calculation is added to explain how to total the maximum sentence for each felony offense before the court for sentencing.
The CCSC's amended proposal does not fully resolve the concerns identified by this Court in Gabriel . In Gabriel , on the single line titled "maximum sentence in years," the trial judge entered "25 years," the collective statutory maximum for the three offenses before the court for sentencing. 314 So. 3d at 1251 n.6. As noted by this Court in Gabriel , this single line suggested one collective maximum sentence when there were multiple convictions subject to sentencing. Further, the language in the third box stating that "[t]he maximum sentence is up to the statutory maximum for the primary and any additional offenses as provided in s. 775.082, F.S., unless the lowest permissible sentence (LPS) under the Code exceeds the statutory maximum" created ambiguity regarding the trial court's individual consideration of each offense's statutory maximum sentence for purposes of determining whether it was exceeded by the LPS. The CCSC's response suggests that the purpose of the single line titled "maximum sentence in years" in the third box under the sentence computation heading is to assist the trial court in accurately advising a defendant of the maximum prison exposure prior to entering a plea. We believe that the amendments reflected in appendix A to this opinion clarify the calculation for determining a defendant's total maximum sentence when there are multiple offenses before the court for sentencing. For purposes of illustrating its use, we applied the amendments to rule 3.992 to Gabriel's case in appendix B to this opinion.
Accordingly, we amend Florida Rule of Criminal Procedure 3.992 as reflected in appendix A to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments to the rule shall become effective immediately. Because the amendments were significantly altered from the version that was previously published for comment, interested persons shall have seventy-five days from the date of this opinion in which to file comments with the Court.
All comments must be filed with the Court on or before June 7, 2022, with a certificate of service verifying that a copy has been served on the Committee Chair, Honorable Debra J. Riva, Twelfth Judicial Circuit, P.O. Box 48927, Sarasota, Florida 34230-5927, driva@jud12.flcourts.org, and on the OSCA Staff Liaison to the Committee, Bart Schneider, 500 S. Duval Street, Tallahassee, Florida 32399, schneidb@flcourts.org, 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 June 28, 2022, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal , Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur.
APPENDIX A APPENDIX B
The maximum sentence for each individual felony offense is the statutory maximum as provided in s. 775.082, F.S., unless the lowest permissible sentence listed above exceeds the statutory maximum for that offense. If the lowest permissible sentence exceeds the statutory maximum for an individual felony offense, the lowest permissible sentence replaces the statutory maximum and must be imposed for that offense.See State v. Gabriel, 314 So.3d 1243 (Fla. 2021). Sentences for multiple felony offenses may be imposed concurrently or consecutively. If total sentence points are greater than or equal to 363, a life sentence may be imposed.
Primary offense: Attempted robbery with a firearm 15 years Description Maximum sentence in years Additional offense: Resisting officer with violence 8.93 years Description Maximum sentence in years Additional offense: Aggravated assault with a firearm 8.93 years Description Maximum sentence in years Additional offense: ________________________________________________ __________________________ Description Maximum sentence in years Total maximum sentence in years for all counts above if consecutive sentences imposed: 32.86 years