The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Criminal Justice
BILL: SB 210
INTRODUCER: Senator Brandes
SUBJECT: Sentencing
DATE: February 15, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Erickson Jones CJ Favorable
2. AP
3. RC
I. Summary:
SB 210 reduces the mandatory minimum penalties imposed upon a prison releasee reoffender (a
category of repeat offenders) under s. 775.082(9), F.S. These changes are also applied
retroactively. The bill provides a process for resentencing. Further, the bill removes a provision
of law that prohibits a prison releasee reoffender from any form of early release.
The Legislature’s Office of Economic and Demographic Research preliminarily estimates that
the bill will have a “negative significant” prison bed impact (a decrease of more than 25 prison
beds). The Department of Corrections indicates it would need one full time, temporary position,
funded for no more than one year, and significant programming changes. Total costs for the
position and programming changes is $150,370 ($58,941 recurring and $91,429 non-recurring).
See Section V. Fiscal Impact Statement.
The bill takes effect July 1, 2021.
II. Present Situation:
Prison Releasee Reoffender (s. 775.082(9), F.S.)
Section 775.082(9), F.S., provides that a judge must sentence a person as a “prison releasee
reoffender” if the defendant has committed or attempted to commit any of the following
enumerated offenses within 3 years after being released from a Florida state or private
correctional facility, a county detention facility following incarceration for an offense for which
the sentence pronounced was a prison sentence, or a correctional institution of another state, the
District of Columbia, the United States, any possession or territory of the United States, or any
foreign jurisdiction, following incarceration for an offense for which the sentence is punishable
by more than 1 year:
 Treason;
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 Murder;
 Manslaughter;
 Sexual battery;
 Carjacking;
 Home-invasion robbery;
 Robbery;
 Arson;
 Kidnapping;
 Aggravated assault with deadly weapon;
 Aggravated battery;
 Aggravated stalking;
 Aircraft piracy;
 Unlawful throwing, placing, or discharging of a destructive device or bomb;
 Any felony that involves the use or threat of physical force or violence against an individual;
 Armed burglary;
 Burglary of a dwelling or an occupied structure;
 Any violation of s. 790.07, F.S. (felons in possession of firearms);
 Any violation of s. 800.04, F.S. (lewd or lascivious act in the presence of a child);
 Any violation of s. 827.03, F.S. (abuse, aggravated abuse and neglect of a child);
 Any violation of s. 827.071, F.S. (sexual performance by a child); or
 Any violation of s. 847.013(5), F.S. (prohibited computer transmissions constituting lewd
exhibition).1
A judge must also sentence a defendant as a “prison releasee reoffender” if the defendant
committed or attempted to commit any of the previously-described offenses while the defendant
was serving a prison sentence or on escape status from a Florida state or private correctional
facility or while the defendant was on escape status from a correctional institution of another
state, the District of Columbia, the United States, any possession or territory of the United States,
or any foreign jurisdiction, following incarceration for an offense for which the sentence is
punishable by more than 1 year in this state.2
If the state attorney determines that a defendant is a prison releasee reoffender, the state attorney
may seek to have the court sentence the defendant as a prison releasee reoffender. Upon proof
from the state attorney that establishes by a preponderance of the evidence that a defendant is a
prison releasee reoffender, such defendant is not eligible for sentencing under the sentencing
guidelines and must be sentenced as follows:
 For a felony punishable by life,3 by a term of imprisonment for life;
 For a first degree felony,4 by a term of imprisonment of 30 years;
 For a second degree felony5, by a term of imprisonment of 15 years; and
1
Section 775.082(9)(a)1., F.S.
2
Section 775.082(9)(a)2., F.S.
3
For example, a capital felony is generally punishable by death or life imprisonment, a life felony is generally punishable by
life imprisonment or by a term of imprisonment not exceeding 40 years, and a first degree felony may be punishable by a
term of years not exceeding life imprisonment when specifically provided by statute. Section 775.082, F.S.
4
The maximum term of imprisonment for a first degree felony is generally 30 years imprisonment. Section 775.082, F.S.
5
The maximum term of imprisonment for a second degree felony is 15 years imprisonment. Section 775.082, F.S.
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 For a third degree felony,6 by a term of imprisonment of 5 years.7
A person sentenced as a prison releasee reoffender can be released only by expiration of sentence
and is not be eligible for parole, control release, or any form of early release. A prison releasee
reoffender must also serve 100 percent of the court-imposed sentence.8
The prison releasee reoffender provisions provide legislative intent that prison releasee
reoffenders “be punished to the fullest extent of the law” unless the prosecuting attorney does not
have sufficient evidence to prove the highest charge available, the testimony of material witness
cannot be obtained, the victim provides a written statement that he or she does not want the
offender to receive a mandatory sentence, or other extenuating circumstances exist which
preclude the just prosecution of the offender.9
For every case in which the offender meets the prison releasee reoffender criteria and does not
receive the mandatory minimum prison sentence, the state attorney must explain the sentencing
deviation in writing and place such explanation in the case file maintained by the state attorney.10
Constitutional and Statutory Savings Clauses
Until recently, Article X, Section 9 of the State Constitution (Florida’s constitutional savings
clause) expressly prohibited any repeal or amendment of a criminal statute that affected
prosecution or punishment for any crime previously committed, and therefore, the Florida
Legislature was “powerless to lessen penalties for past transgressions; to do so would require
constitutional revision.”11
In 2018, Florida voters adopted the following amendment to Article X, Section 9 of the State
Constitution:
Repeal or amendment of a criminal statute shall not affect prosecution or punishment for
any crime previously committed before such repeal.
Revised Article X, Section 9 of the State Constitution only prohibits applying the repeal of a
criminal statute to any crime committed before such repeal if this retroactive application “affects
prosecution.” The revised constitutional savings clause does not expressly prohibit retroactive
application of a repeal that does not affect prosecution, a repeal that affects punishment, or an
amendment of a criminal statute that affects prosecution or punishment.
The elimination of the expressed prohibition on certain retroactive applications is not a directive
to the Legislature to retroactively apply what was formerly prohibited. As the Florida Supreme
6
The maximum term of imprisonment for a third degree felony is 5 years imprisonment. Section 775.082, F.S.
7
Section 775.082(9)(a)3., F.S.
8
Section 775.082(9)(b), F.S. Section 775.082(9), F.S., does not prevent a court from imposing a greater sentence of
incarceration as authorized by law, pursuant to s. 775.084, F.S., or any other provision of law. Section 775.082(9)(c), F.S.
9
Section 775.082(9)(d)1., F.S.
10
Section 775.082(9)(d)2., F.S.
11
Comment, Today’s Law and Yesterday’s Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U. Pa.
L. Rev. 120, 129 (1972).
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Court recently stated: “… [T]here will no longer be any provision in the Florida Constitution that
would prohibit the Legislature from applying an amended criminal statute retroactively to
pending prosecutions or sentences. However, nothing in our constitution does or will require the
Legislature to do so, and the repeal of the prohibition will not require that they do so.”12
In 2019, the Legislature created s. 775.022, F.S., a general savings statute for criminal statutes.
The statute defines a “criminal statute” as a statute, whether substantive or procedural, dealing in
any way with a crime or its punishment, defining a crime or a defense to a crime, or providing
for the punishment of a crime.13
The statute specifies legislative intent to preclude:
 Application of the common law doctrine of abatement to a reenactment or an amendment of
a criminal statute; and
 Construction of a reenactment or amendment as a repeal or an implied repeal14 of a criminal
statute for purposes of Article X, Section 9 of the State Constitution (Florida’s constitutional
savings clause).15
The statute also states that, except as expressly provided in an act of the Legislature or as
provided in two specified exceptions, the reenactment or amendment of a criminal statute
operates prospectively and does not affect or abate any of the following:
 The prior operation of the statute or a prosecution or enforcement under the criminal statute;
 A violation of the criminal statute based on any act or omission occurring before the effective
date of the act; and
 A prior penalty, prior forfeiture, or prior punishment incurred or imposed under the statute.16
The first exception is a retroactive amelioration exception that provides that if a penalty,
forfeiture, or punishment for a violation of a criminal statute is reduced by a reenactment or an
amendment of a criminal statute, the penalty, forfeiture, or punishment, if not already imposed,
must be imposed according to the statute as amended.17 This means the penalty, forfeiture, or
punishment reduction must be imposed retroactively if the sentence has not been imposed,
including the situation in which the sentence is imposed after the effective date of the
amendment. However, nothing in the general savings statute precludes the Legislature from
providing for a more extensive retroactive application either to legislation in the future or
legislation that was enacted prior to the effective date of the general savings statute. This is
because the general savings statute specifically provides for a legislative exception to the default
position of prospectivity. The Legislature only has to “expressly provide” for this retroactive
application.18
12
Jimenez v. Jones, 261 So.3d 502, 504 (Fla. 2018).
13
Section 775.022(2), F.S.
14
The Florida Supreme Court previously indicated that the “standard [is] that implied repeals are disfavored and should only
be found in cases where there is a ‘positive repugnancy’ between the two statutes or ‘clear legislative intent’ indicating that
the Legislature intended the repeal[.]” Flo-Sun, Inc. v. Kirk, 783 So.2d 1029, 1036 (Fla. 2001).
15
Section 775.022(1), F.S.
16
Section 775.022(3), F.S.
17
Section 775.022(4), F.S.
18
Section 775.022(3), F.S.
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The second exception relates to defenses and provides that the general savings statute does not
limit the retroactive effect of any defense to a criminal statute enacted or amended by the
Legislature to any criminal case that has not yet reached final judgment.19
III. Effect of Proposed Changes:
The bill amends s. 775.082(9), F.S., to reduce mandatory penalties applicable to a prison releasee
reoffender. A prison releasee reoffender must be sentenced as follows:
 For a felony punishable by life, to a term of 25 years (current law requires life
imprisonment);
 For a first degree felony, to a term of imprisonment of 20 years (current law requires 30
years);
 For a second degree felony, to a term of imprisonment of 10 years (current law requires 15
years); and
 For a third degree felony, to a term of imprisonment of 3 years (current law requires 5 years).
The bill provides for retroactive application of the previously-described penalty changes to:
 A person who qualified as a prison releasee reoffender before July 1, 2021 (referred to in the
bill as “former 775.082(9)”), and who was not sentenced as a prison releasee reoffender
before July 1, 2021; and
 A person who qualified as a prison releasee reoffender before July 1, 2021, who was
sentenced as such before July 1, 2021, to a mandatory minimum term of imprisonment
pursuant to former s. 775.082(9), F.S., and who is serving such mandatory minimum term of
imprisonment on or after July 1, 2021.
A person who qualified as a prison releasee reoffender before July 1, 2021, and who was not
sentenced as a prison releasee reoffender before July 1, 2021, must be sentenced as provided in
the bill (see previous description of changes to penalties).
A person who qualified as a prison releasee reoffender before July 1, 2021, who was sentenced
as such before July 1, 2021, to a mandatory minimum term of imprisonment pursuant to former
s. 775.082(9), F.S., and who is serving such mandatory minimum term of imprisonment on or
after July 1, 2021, must be resentenced in the following manner:
 The Department of Corrections must notify this person of his or her eligibility to request a
sentence review hearing.
 The person seeking sentence review may submit an application to the court of original
jurisdiction requesting that a sentence review hearing be held. The sentencing court retains
original jurisdiction for the duration of the sentence for this purpose.
 A person who is eligible for this sentence review hearing is entitled to representation by legal
counsel. If the person is indigent and unable to employ counsel, the court must appoint
counsel under s. 27.52, F.S. Determination of indigence and costs of representation is as
provided in ss. 27.52 and 938.29, F.S.
 Upon receiving an application from an eligible person, the court of original jurisdiction must
hold a sentence review hearing to determine if the eligible person meets the criteria for
resentencing. If the court determines at the sentence review hearing that the eligible person
19
Section 775.022(5), F.S.
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meets such criteria, the court must resentence the person as provided in the bill (see previous
description of changes to penalties); however, the new sentence may not exceed the person’s
original sentence with credit for time served. If the court determines that such person does
not meet the criteria for resentencing, the court must provide written reasons why such
person does not meet such criteria.
 A person resentenced as previously described is eligible to receive any gain-time pursuant to
s. 944.275, F.S., he or she was previously ineligible to receive under former s. 775.082(9),
F.S.
Because the bill expressly provides for retroactive application of the changes the bill makes, the
bill has provided a legislative exception to the default position of prospectivity.
The bill modifies s. 775.082(9)(a)3., F.S., which currently provides that “upon proof from the
state attorney that establishes by a preponderance of the evidence that a defendant is a prison
releasee reoffender as defined in this section, such defendant is not eligible for sentencing under
the sentencing guidelines and must be sentenced” under the penalties specified in s. 775.082(9),
F.S. The bi