3.701. Sentencing Guidelines
(a) Use with Forms. This rule is to be used in conjunction
with forms 3.988(a)–(i).
(b) Statement of Purpose. The purpose of sentencing
guidelines is to establish a uniform set of standards
to guide the sentencing judge in the sentence
decision-making process. The guidelines represent
a synthesis of current sentencing theory and historic
sentencing practices throughout the state. Sentencing
guidelines are intended to eliminate
in the sentencing process by reducing the subjectivity
in interpreting specific offense-related and
offender-related criteria and in defining their relative
in the sentencing decision. The sentencing
guidelines embody the following principles:
(1) Sentencing should be neutral with respect to
race, gender, and social and economic status.
(2) The primary purpose of sentencing is to punish
the offender. Rehabilitation and other traditional
considerations continue to be desired goals of the
criminal justice system but must assume a subordinate
(3) The penalty imposed should be commensurate
with the severity of the convicted offense and the circumstances
surrounding the offense.
(4) The severity of the sanction should increase
with the length and nature of the offender’s criminal
(5) The sentence imposed by the sentencing judge
should reflect the length of time to be served, shortened
only by the application of gain time.
(6) While the sentencing guidelines are designed
to aid the judge in the sentencing decision and are not
intended to usurp judicial discretion, departures from the
presumptive sentences established
in the guidelines shall
be articulated in writing and made when circumstances
or factors reasonably justify the aggravation or mitigation
of the sentence. The level of proof necessary
facts supporting a departure from a sentence under the
guidelines is a preponderance of the evidence.
(7) Because the capacities of state and local correctional
facilities are finite, use of incarcerative sanctions
should be limited to those persons convicted
more serious offenses or those who have longer criminal
histories. To ensure such usage of finite resources,
sanctions used in sentencing convicted felons should
be the least restrictive necessary to achieve the purposes
of the sentence.
(c) Offense Categories. Offenses have been
grouped into 9 offense categories encompassing the
Category 1: Murder, manslaughter: Chapter
782 (except subsection 782.04(1)(a)), subsection
316.193(3)(c)3, and subsection 327.351(2).
Category 2: Sexual offenses: Section 775.22, chapters
794 and 800, section 826.04, and section 491.0112.
Category 3: Robbery: Section 812.13, and sections
812.133 and 812.135.
Category 4: Violent personal crimes: Section 231.06,
chapters 784 and 836, section 843.01, and subsection
Category 5: Burglary: Chapter 810, section 817.025,
and subsection 806.13(3).
Category 6: Thefts, forgery, fraud: Sections 192.037
and 206.56, chapters 322 and 409, section 370.142,
section 415.111, chapter 443, section 493.3175, sections
494.0018, 496.413, and 496.417, chapter 509,
subsection 517.301(1)(a), subsections 585.145(3) and
585.85(2), section 687.146, and chapters 812 (except
section 812.13), 815, 817, 831, and 832.
Category 7: Drugs: Section 499.005 and chapter 893.
Category 8: Weapons: Chapter 790 and section
Category 9: All other felony offenses.
(d) General Rules and Definitions.
(1) One guideline scoresheet shall be utilized for
each defendant covering all offenses pending before
the court for sentencing. The state attorney’s office
will prepare the scoresheets and present them to
defense counsel for review as to accuracy in all cases
unless the judge directs otherwise. The sentencing
judge shall approve all scoresheets.
(2) “Conviction” means a determination of guilt
resulting from plea or trial, regardless of whether
adjudication was withheld or whether imposition of
sentence was suspended.
(3) “Primary offense” is defined as the offense at
conviction that, when scored on the guidelines scoresheet,
recommends the most severe sanction. In the
case of multiple offenses, the primary offense is determined
in the following manner:
(A) A separate guidelines scoresheet shall be prepared
scoring each offense at conviction as the “primary
offense at conviction” with the other offenses at conviction
scored as “additional offenses at conviction.”
(B) The guidelines scoresheet that recommends
the most severe sentence range shall be the scoresheet
to be utilized by the sentencing judge pursuant to these
(4) All other offenses for which the offender is
convicted and that are pending before the court for
sentencing at the same time shall be scored as additional
offenses based on their degree and the number
of counts of each.
(5) “Prior record” refers to any past criminal conduct
on the part of the offender, resulting in conviction,
prior to the commission of the primary offense. Prior
record includes all prior Florida, federal, out-of-state,
military, and foreign convictions,
as well as convictions
for violation of municipal or county ordinances that
bring within the municipal or county code the violation
of a state statute or statutes. Provided, however, that:
(A) Entries in criminal histories that show no
disposition, disposition unknown, arrest only, or other
disposition shall not be scored.
(B) When scoring federal, foreign, military, or
out-of-state convictions, assign the score for the analogous
or parallel Florida statute.
(C) When unable to determine whether an
offense at conviction is a felony or a misdemeanor,
the offense should be scored as a misdemeanor. When
the degree of the felony is ambiguous or impossible to
determine, score the offense as a third-degree felony.
(D) Prior record shall include criminal traffic
offenses, which shall be scored as misdemeanors.
(E) Convictions that do not constitute violations
of a parallel or analogous state criminal statute shall
not be scored.
(F) An offender’s prior record shall not be
scored if the offender has maintained a conviction-free
record for a period of 10 consecutive years from the
most recent date of release from confinement,
or sanction, whichever is later, to the date of
the primary offense.
(G) All prior juvenile dispositions that are the
equivalent of convictions as defined in subdivision (d)(2),
occurring within 3 years of the commission of the primary
offense and that would have been criminal if committed
by an adult, shall be included in prior record.
(6) “Legal status at time of offense” is defined as
follows: Offenders on parole, probation, or community
control; offenders in custody serving a sentence;
escapees; fugitives who have fled to avoid prosecution
or who have failed to appear for a criminal judicial
proceeding or who have violated conditions of a supersedeas
bond; and offenders in pretrial intervention
or diversion programs. Legal status points are to be
assessed where these forms of legal constraint existed
at the time of the commission of offenses scored as
primary or additional
offenses at conviction. Legal
status points are to be assessed only once whether
there are one or more offenses at conviction.
(7) Victim injury shall be scored for each victim
physically injured during a criminal episode or transaction,
and for each count resulting in such injury
whether there are one or more victims.
(8) The recommended sentences provided in the
guideline grids are assumed to be appropriate for the
composite score of the offender. A range is provided
to permit some discretion. The permitted ranges
allow the sentencing judge additional discretion
the particular circumstances of a crime or defendant
make it appropriate to increase or decrease the recommended
sentence without the requirement of finding
reasonable justification to do so and without the
requirement of a written explanation.
(9) For those offenses having a mandatory penalty,
a scoresheet should be completed and the guideline
sentence calculated. If the recommended sentence
is less than the mandatory penalty, the mandatory
sentence takes precedence. If the guideline
exceeds the mandatory sentence, the guideline
should be imposed.
(10) If the composite score for a defendant charged
with a single offense indicates a guideline sentence
that exceeds the maximum sentence provided
for that offense, the statutory maximum sentence
should be imposed.
(11) Departures from the recommended or permitted
guideline sentence should be avoided unless
there are circumstances or factors that reasonably
justify aggravating or mitigating the sentence. Any
sentence outside the permitted guideline range must
be accompanied by a written statement delineating the
reasons for the departure. Reasons for deviating from
the guidelines shall not include factors relating to prior
arrests without conviction
or the instant offenses for
which convictions have not been obtained.
(12) A sentence must be imposed for each offense.
However, the total sentence cannot exceed the total
guideline sentence unless a written reason is given.
Where the offender is being sentenced for a capital
felony and other noncapital felonies that arose out of
the same criminal episode or transaction,
court may impose any sentence authorized by law
for the noncapital felonies.
(13) Community control is a form of intensive
supervised custody in the community involving
of the freedom of the offender. When community
control is imposed, it shall not exceed the term
provided by general law.
(14) Sentences imposed after revocation of probation
or community control must be in accordance
the guidelines. The sentence imposed after revocation
of probation or community control may be included
within the original cell (guidelines range) or may be
increased to the next higher cell (guidelines range)
without requiring a reason for departure.
(15) Categories 3, 5, and 6 contain an additional
factor to be scored under the heading of Prior Record:
Prior convictions for similar offenses. Prior convictions
scored under this factor should be calculated in
addition to the general prior record score. Scoring is
limited to prior felony convictions included within the
Sentencing Guidelines Commission Notes
(a) The operation of this rule is not intended to change the law
or requirements of proof as regards sentencing.
(b) These principles are binding on the sentencing court.
(c) Only 1 category is proper in any particular case. Category
9, “All Other Felony Offenses,” should be used only when the primary
offense at conviction is not included in another, more specific
category. The guidelines do not apply to capital felonies.
Inchoate offenses are included within the category of the offense
attempted, solicited, or conspired to, as modified by chapter 777.
The form appearing at Florida Rule of Criminal Procedure
3.988(a) has been revised to incorporate a point value for inclusion
in the prior record factor utilized in the determination of recommended
sentence by scoring each prior conviction under section
316.193, Florida Statutes (Supp. 1984), or section 316.1931, Florida
Statutes (Supp. 1984), or section 327.351, Florida Statutes (Supp.
1984), at a value of 32 points. This point value will be applied only
if the offender is convicted for a violation of section 316.193(3)(c)3,
Florida Statutes (Supp. 1986), or section 327.351, Florida Statutes
(Supp. 1984), if the operation of a motor vehicle or vessel by the
offender while intoxicated as defined in section 316.193(1), Florida
Statutes (Supp. 1986), or section 327.351(1), Florida Statutes (Supp.
1984), results in the death of any human being and the scoresheet
utilized in sentencing is the form appearing at Florida Rule of
Criminal Procedure 3.988(a). For purposes of determining a prior
conviction for a violation of the above enumerated statute, a prior
conviction for violation of section 316.1931 or section 316.193 or
former section 860.01 or former section 316.028, or a previous conviction
for any substantially similar alcohol-related or drug-related
traffic offense outside this state shall also be considered a prior
(d)(1) Ultimate responsibility for ensuring that scoresheets are
accurately prepared rests with the sentencing court. Due to ethical
considerations, defense counsel may not be compelled to submit a
scoresheet. Probation and parole officers may be directed to compile
guidelines scoresheets only when a presentence
has been ordered. The forms for calculating the guidelines are
(d)(2) This definition applies to both instant offense and prior
(d)(3) The proper offense category is identified on determination
of the primary offense. When the defendant is convicted of
violations of more than 1 unique statute, the offenses are to be
sorted by statutory degree.
(d)(4) No points shall be scored for lesser and included offenses.
In the event of multiple counts of the same distinct offense and
degree of felony being scored as primary offense, it shall be scored
as additional counts of the primary offense. All other offenses for
which the defendant is convicted that are pending before the court
for sentencing shall be scored as additional offenses.
(d)(5) Each separate prior felony and misdemeanor conviction
in an offender’s prior record that amounts to a violation of Florida
law shall be scored, unless discharged by the passage of time. Any
uncertainty in the scoring of the defendant’s prior record shall
be resolved in favor of the defendant, and disagreement
as to the
propriety of scoring specific entries in the prior record should be
resolved by the trial judge.
Prior record includes all offenses for which the defendant has
been found guilty, regardless of whether adjudication was withheld
or the record has been expunged.
Juvenile dispositions, with the exclusion of status offenses, are
included and considered along with adult convictions by operation
of this provision. However, each separate adjudication
from consideration if 3 years have passed between the date
and the commission of the instant offense.
For any offense where sentence was previously suspended pursuant
to the imposition of probation and such offense is now before
the court for sentencing, upon a revocation of that probation based
upon a subsequent criminal offense (which subsequent offense is
also before the court for sentencing at the same time), the earlier
offense shall be scored as “prior record” and not as “additional
(d)(7) This provision implements the intention of the commission
that points for victim injury be added for each victim injured
during a criminal transaction or episode. The injury need not be
an element of the crime for which the defendant is convicted, but
is limited to physical trauma. However, if the victim injury is the
result of a crime for which the defendant has been acquitted, it shall
not be scored.
(d)(8) The first guideline cell in each category (any nonstate
prison sanction) allows the court the flexibility to impose any lawful
term of probation with or without a period of incarceration
condition of probation, a county jail term alone, or any nonincarcerative
disposition. Any sentence may include the requirement
fine be paid. The sentences are found in forms 3.988(a)–(i).
(d)(10) If an offender is convicted under an enhancement statute,
the reclassified degree should be used as the basis for scoring
the primary offense in the appropriate category. If the offender is
sentenced under section 775.084 (habitual offender), the maximum
allowable sentence is increased as provided by the operation of that
statute. If the sentence imposed departs from the recommended
sentence, the provisions of (d)(11) shall apply.
(d)(11) A sentencing judge may depart from the recommended
sentence and impose a sentence within the permitted range without
giving reasons therefor. If a sentencing judge departs from the
permitted range, reasons for departure shall be articulated at the
time sentence is imposed. The written statement
shall be made a
part of the record, with sufficient specificity to inform all parties,
as well as the public, of the reasons for departure. The court is
prohibited from considering offenses for which the defendant has
not been convicted. Other factors, consistent and not in conflict
with the statement of purpose, may be considered and utilized by
the sentencing judge.
(d)(12) The sentencing court shall impose or suspend sentence
for each separate count, as convicted. The total sentence shall not
exceed the guideline sentence, unless the provisions of subdivision
(d)(11) are complied with.
If a split sentence is imposed (i.e., a combination of state prison
and probation supervision), the incarcerative portion imposed shall
not be less than the minimum of the guideline range nor exceed the
maximum of the range. The total sanction (incarceration and probation)
shall not exceed the term provided by general law.
(d)(13) Community control is a viable alternative for any state
prison sentence less than 24 months without requiring a reason
for departure. It is appropriate to impose a sentence of community
control to be followed by a term of probation. The total sanction
(community control and probation) shall not exceed the term provided
by general law.
Community control is not an alternative sanction from the recommended
range of any nonstate prison sanction unless the provisions
of rule 3.701(d)(11) are applied.
1991 Amendment. The purpose of the 1991 revision to rule
3.701(d)(6) is to clarify the original intent that legal constraint is
a status consideration and is not to be considered a function of the
number of offenses at conviction.
1991 Amendment. The purpose of the 1991 revision to rule
3.701(d)(7) is to provide consistency in the scoring of victim injury
by scoring each offense at conviction for which victim injury can
appropriately be scored, whether committed against a single or
1993 Amendments. Inchoate offenses are included within the
category of the offense attempted, solicited, or conspired to, as
modified by chapter 777. An attempt, solicitation, or conspiracy
to commit first-degree murder as defined in subsection 782.04(1)
(a) shall be scored in category 1. An attempt, solicitation, or conspiracy
to commit capital sexual battery as defined in subsection
794.011(2) shall be scored in category 2.