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 Fiscal Policy
BILL: CS/CS/SB 1036
INTRODUCER: Fiscal Policy Committee; Criminal Justice Committee; and Senator Ingoglia
SUBJECT: Reclassification of Criminal Penalties
DATE: February 28, 2024 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Cellon Stokes CJ Fav/CS
2. Atchley Harkness ACJ Favorable
3. Cellon Yeatman FP Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 1036 creates s. 775.0848, F.S., reclassifying felony offenses to the next higher level in
cases when:
A person has been previously convicted of a crime relating to the reentry to the United States
pursuant to 8 U.S.C. s. 1326; and
That person commits a felony offense after the federal conviction.
The bill also creates s. 908.12, F.S., providing similar reclassifications of criminal offenses when
a defendant is convicted of committing a misdemeanor or felony for the purpose of benefiting,
promoting, or furthering the interests of a transnational crime organization.
“Transnational crime organization” is defined as an organization that routinely facilitates the
international trafficking of drugs, humans, or weapons or the international smuggling of humans.
The bill may have a positive insignificant fiscal impact on the Department of Corrections due to
an increase in prison beds. See Section V. Fiscal Impact Statement.
The bill becomes effective October 1, 2024.
BILL: CS/CS/SB 1036 Page 2
II. Present Situation:
Recently, the Statewide Grand Jury recommended increases in criminal sentences for:
Aliens who have been removed from the State, unlawfully reentered, and subsequently
committed a new criminal offense;1 and
Persons who are proven to be a member of a transnational crime organization and who have
committed a related felony offense.2
Federal Law-Unlawful Reentry
Reentry to the United States by aliens3 who have been removed from the U.S. is addressed in
8 U.S.C.A. 1326 as follows:
Any alien who has been denied admission, excluded, deported, or removed or has departed
the United States while an order of exclusion, deportation, or removal is outstanding, and
thereafter
o Enters, attempts to enter, or is at any time found in, the United States...shall be fined
under Title 18, or imprisoned not more than 2 years, or both.
Any alien whose removal was subsequent to a conviction for the commission of three or
more misdemeanors involving drugs, crimes against the person, or both, or a felony (other
than an aggravated felony4), such alien shall be fined under Title 18, imprisoned not more
than 10 years, or both.
Any alien whose removal was subsequent to a conviction for commission of an aggravated
felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both.
The term “removal” includes any agreement in which an alien stipulates to removal during (or
not during) a criminal trial under either Federal or State law.5 The U.S. Department of Homeland
Security reports that in Fiscal Year 2022, 79,395 convicted criminals were removed from the
United States.6
1
Generally, under federal law any alien who has been denied admission, excluded, deported, or removed or has departed the
United States while an order of exclusion, deportation, or removal is outstanding, and thereafter enters, attempts to enter, or is
at any time found in, the United States, shall be fined or imprisoned, or both. 8 U.S.C.A. s. 1326.
2
Case No. SC 22-796, Florida Supreme Court, Fifth Presentment of the Twenty-First Statewide Grand Jury, November 17,
2023.
3
The term “alien” means any person not a citizen or national of the United States. 8 U.S.C.A. 1101(a)(3).
4
“Aggravated felony” is defined in 8 U.S.C.A. 1101(a)(43)(A)-(U). The term applies to a felony offense, whether in
violation of Federal or State law, and applies to such an offense in violation of the law of a foreign country for which the
term of imprisonment was completed within the previous 15 years. 8 U.S.C.A.1101(a).
5
8 U.S.C.A. 1326(b).
6
2022 Yearbook of Immigration Statistics, U.S. Department of Homeland Security, Office of Homeland Security Statistics,
2023, available at https://www.dhs.gov/sites/default/files/2023-
11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf (last visited January 21, 2024).
BILL: CS/CS/SB 1036 Page 3
Transnational Crime Organization
A “transnational crime organization” has been defined as an organization that routinely
facilitates the international trafficking of drugs, humans, or weapons, or the international
smuggling of humans.7
These organizations make money by smuggling humans from place to place, often across the
borders of other countries. It can be a lucrative business. For example, a 2010 report by the
United Nations Office on Drug Crime estimated that the smuggling of persons from Latin
America to the United States generated approximately $6.6 billion annually in illicit proceeds for
human smuggling networks.8 A report by the Homeland Security Operational Analysis Center9
estimates that the smuggling of unlawful migrants from Guatemala, Honduras, and El Salvador
generated between $200 million and $2.3 billion for human smugglers in 2017, however a lack
of reliable data contributes to substantial uncertainty in both estimates.10
The U.S. Department of Homeland Security (DHS) reports:
U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations
referred information in dozens of cases to Homeland Security Investigations (HSI), resulting
in the arrest of human traffickers and identification of trafficking victims. HSI initiated 1,373
criminal investigations related to sex trafficking and forced labor, leading to 3,655 arrests
and 638 convictions.11
In December, 2023, following an investigation by HSI, the Department of the Treasury’s
Office of Foreign Assets Control (OFAC) sanctioned the Malas Mañas transnational criminal
organization, a human smuggling and narcotics trafficking organization based in Sonora,
Mexico, along with two individuals in its support network.12
In August, 2023, the DHS and its federal partners, including the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF), announced the results of increased enforcement efforts to
stem the trafficking of firearms from the United States into Mexico for use by transnational
7
Although, as the Statewide Grand Jury presentment explains, these organizations may also be involved in financial crimes,
firearm and weapon smuggling, and a diverse list of criminal activity. Case No. SC 22-796, Florida Supreme Court, Fifth
Presentment of the Twenty-First Statewide Grand Jury, November 17, 2023. See also Another “Se Busca Información”
criminal target arrested; U.S. Customs and Border Protection, News Release, January 2, 2024, available at
https://www.cbp.gov/newsroom/local-media-release/another-se-busca-informaci-n-criminal-target-arrested (last visited
January 17, 2024).
8
The United Nations Office on Drugs and Crime, The Globalization of Crime: A Transnational Organized Crime Threat
Assessment available at https://www.unodc.org/documents/data-and-analysis/tocta/TOCTA_Report_2010_low_res.pdf (last
visited January 13, 2024).
9
Operated by the RAND Corporation on behalf of the U.S. Department of Homeland Security.
10
RAND Corporation News Release, Human Smuggling Via Central America Generates Hundreds of Millions of Dollars,
but Transnational Criminal Groups May Not Be Main Culprits, April 22, 2019, available at
https://www.rand.org/news/press/2019/04/22.html (last visited January 17, 2024).
11
U.S. Department of Homeland Security, DHS Center for Countering Human Trafficking Releases FY 2022 Annual Report,
January 31, 2023, available at https://www.dhs.gov/news/2023/01/31/dhs-center-countering-human-trafficking-releases-fy-
2022-annual-report (last visited January 19, 2024).
12
U.S. Department of Homeland Security, Following DHS Investigation, Treasury Sanctions Human Smuggling and Drug
Trafficking Organization Operating on Southwest Border, Press Release, December 14, 2023, available at
https://www.dhs.gov/news/2023/12/14/following-dhs-investigation-treasury-sanctions-human-smuggling-and-drug-
trafficking (last visited January 20, 2024).
BILL: CS/CS/SB 1036 Page 4
criminal organizations.13 The DHS has seized over twice as many firearms in Fiscal Year
2023 than it did in Fiscal Year 2022.14
Reclassification of Criminal Offenses and Enhancement of Penalties
Reclassification occurs when the Legislature increases the degree of a conviction. The
reclassification attaches at the time the charges are filed.15 Reclassification of a criminal
conviction from one degree to a higher degree stems from an express and explicit grant of
statutory authority.16
An example of a reclassification statute is s. 775.0863, F.S., Evidencing prejudice while
committing offense against person with mental or physical disability; reclassification. The statute
states in part:
The penalty for any felony or misdemeanor shall be reclassified as provided in this
subsection if the commission of such felony or misdemeanor evidences prejudice based on a
mental or physical disability of the victim:
o A misdemeanor of the second degree is reclassified to a misdemeanor of the first
degree.17
o A misdemeanor of the first degree is reclassified to a felony of the third degree.18
o A felony of the third degree is reclassified to a felony of the second degree.19
o A felony of the second degree is reclassified to a felony of the first degree.20
o A felony of the first degree is reclassified to a life felony.21
Penalty enhancements refer to the authority of a judge to impose a more severe sentence for a
convicted offense when certain factual findings are made.22
13
U.S. Department of Homeland Security, Press Release, September 1, 2023, DHS Announces Results of Coordinated
Enforcement to Interdict Southbound Firearms “Operation Without a Trace,” available at
https://www.dhs.gov/news/2023/09/01/dhs-announces-results-coordinated-enforcement-interdict-southbound-firearms (last
visited January 20, 2024).
14
Id.
15
Cooper v. State, 455 So.2d 588 (Fla. 1st DCA 1984); Jackson v. State, 515 So.2d 394 (Fla. 1st DCA 1987).
16
Cf. Spicer v. State, 615 So.2d 725, 726 (Fla. 2d DCA 1993) (reversing reclassification of robbery with a mask conviction
because “[p]enal statutes must be construed in terms of their literal meaning .... [I]f the legislature had intended section
775.0845 [Florida Statutes (1989)] to reclassify offenses, it would have so stated ....”).
17
A second degree misdemeanor in punishable by up to 60 days in the county jail and a $500 fine. A first degree
misdemeanor is punishable by up to 1 year in the county jail and a $1,000 fine. (Sections 775.082 and 775.083, F.S.).
18
A first degree misdemeanor is punishable by up to 1 year in the county jail and a $1,000 fine. A third degree felony is
punishable by up to 5 years imprisonment and a $5,000 fine. (Sections 775.082 and 775.083, F.S.).
19
A third degree felony is punishable by up to 5 years imprisonment and a $5,000 fine. A second degree felony is punishable
by up to 15 years imprisonment and a $10,000 fine. (Sections 775.082 and 775.083, F.S.).
20
A second degree felony is punishable by up to 15 years imprisonment and a $10,000 fine. A first degree felony is
punishable by up to 30 years to life imprisonment and a $10,000 fine. (Sections 775.082 and 775.083, F.S.).
21
A first degree felony is punishable by up to 30 years or when specifically provided by statute, life imprisonment, and a
$10,000 fine. A life felony is punishable by a term of imprisonment for life or by imprisonment for a term of years not
exceeding life imprisonment. (Sections 775.082 and 775.083, F.S.).
22
Cooper v. State, 455 So.2d 588 (Fla. 1st DCA 1984); Jackson v. State, 515 So.2d 394 (Fla. 1st DCA 1987).
BILL: CS/CS/SB 1036 Page 5
A good example of a penalty enhancement statute is the habitual felony offender law found in
s. 775.084(1)(a), F.S. “Habitual felony offender” means a defendant for whom the court may
impose an extended term of imprisonment if it finds that:
The defendant has previously been convicted of any combination of two or more felonies in
this state or other qualified offenses.
The felony for which the defendant is to be sentenced was committed:
o While the defendant was serving a prison sentence or other sentence, or court-ordered or
lawfully imposed supervision that is imposed as a result of a prior conviction for a felony
or other qualified offense; or
o Within 5 years of the date of the conviction of the defendant’s last prior felony or other
qualified offense, or within 5 years of the defendant's release from a prison sentence,
probation, community control, control release, conditional release, parole or court-
ordered or lawfully imposed supervision or other sentence that is imposed as a result of a
prior conviction for a felony or other qualified offense, whichever is later.
The felony for which the defendant is to be sentenced, and one of the two prior felony
convictions, is not a violation of s. 893.13, F.S., relating to the purchase or the possession of
a controlled substance.
The defendant has not received a pardon for any felony or other qualified offense that is
necessary for the operation of this law.
A conviction of a felony or other qualified offense necessary to the operation of this law has
not been set aside in any postconviction proceeding.
In a separate proceeding, if the court finds that the defendant meets the criteria for imposing such
sanction, the court must sentence the defendant as a habitual felony offender unless the court
finds that it is not necessary for the protection of the public. The court may sentence the habitual
felony offender as follows:
In the case of a life felony or a felony of the first degree, for life.
In the case of a felony of the second degree, for a term of years not exceeding 30.
In the case of a felony of the third degree, for a term of years not exceeding 10.23
III. Effect of Proposed Changes:
The bill creates two new sections of law relating to the reclassification of criminal penalties
under certain circumstances.
The bill creates s. 775.0848, F.S., reclassifying felony offenses to the next higher level in cases
when:
A person who has been previously convicted of a crime relating to the reentry to the United
States pursuant to 8 U.S.C. s. 1326; and
That person commits a felony offense after the federal conviction.
Such felony offense must be reclassified as follows:
A felony of the third degree is reclassified to a felony of the second degree.24
23
Sections 775.084(1)(a), (3)(a), and (4)(a), F.S.
24
A third degree felony is punishable by up to 5 years imprisonment and a $5,000 fine. A second degree felony is punishable
by up to 15 years imprisonment and a $10,000 fine. (Sections 775.082 and 775.083, F.S.).
BILL: CS/CS/SB 1036 Page 6
A felony of the second degree is reclassified to a felony of the first degree.25
A felony of the first degree is reclassified to a life felony.26
The bill also creates s. 908.12, F.S., providing similar reclassifications of criminal offenses when
a defendant is convicted of committing a misdemeanor or felony for the purpose of benefiting,
promoting, or furthering the interests of a transnational crime organization. The penalty for any
misdemeanor or felony may be reclassified as follows:
A misdemeanor of the second degree is reclassified to a misdemeanor of the first degree.27
A misdemeanor of the first degree is reclassified to a felony of the third degree.28
A felony of the third degree is reclassified to a felony of the second degree.29
A felony of the second degree is reclassified to a felony of the first degree.30
A felony of the first degree is reclassified to a life felony.31
“Transnational crime organization” is defined as an organization that routinely f