HB88 Alabama 2020 Session

Under existing law, a judge may sentence a defendant convicted for a criminal offense to a split sentence under certain circumstances

Under existing law, a defendant sentenced to a split sentence is required to serve the remainder of the original sentence if his or her probation is revoked

This bill would provide that a judge may use his or her discretion in determining the length of sentence a defendant must serve if his or her probation is revoked

This bill would also revise the implementation date for truth-in-sentencing

This bill would also make nonsubstantive, technical revisions to update the existing code language to current style

Relating to crimes and offenses; to amend Section 15-18-8, as last amended by Act 2019-344, 2019 Regular Session, Code of Alabama 1975, to provide that a judge may use discretion in the length of sentence a defendant must serve if his or her probation is revoked; to amend Sections 12-25-34, 12-25-34.2, and 12-25-36, Code of Alabama 1975, to revise the implementation date for truth-in-sentencing; and to make nonsubstantive, technical revisions to update the existing code language to current style.

Section 1

Section 15-18-8, as last amended by Act 2019-344, 2019 Regular Session, Code of Alabama 1975, is amended to read as follows:

§15-18-8.

(a) When a defendant is convicted of an offense, other than a sex offense involving a child as defined in Section 15-20A-4(26), that constitutes a Class A or Class B felony offense, and receives a sentence of 20 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the case is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he or she may order any of the following:

(1) That a defendant convicted of a Class A or Class B felony be confined in a prison, jail-type institution, or treatment institution for a period not exceeding three years in cases where the imposed sentence is not more than 15 years be confined in a prison, jail-type institution, or treatment institution for a period not exceeding three years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary, and that the defendant be placed on probation for such a period and upon such terms as the determined by the court deems best.

(2) That a defendant convicted of a Class A, or Class B, or Class C felony with an imposed sentence of greater than 15 years but not more than 20 years be confined in a prison, jail-type institution, or treatment institution for a period of three to five years for Class A or Class B felony convictions and for a period of three years for Class C felony convictions, during which the offender shall not be eligible for parole or release because of deduction from sentence for good behavior under the Alabama Correctional Incentive Time Act, and, that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary, and that the defendant be placed on probation for the a period and upon the terms as determined by the court deems best.

This subsection shall not be construed to impose the responsibility for offenders sentenced to a Department of Corrections facility upon a local confinement facility not operated by the Department of Corrections.

(3) That a defendant convicted of a Class C felony with an imposed sentence of greater than 15 years but not more than 20 years be confined in a prison, jail-type institution, or treatment institution for a period of three years, that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary, and that the defendant be placed on probation for the period and upon terms determined by the court.

(4) Unless a defendant is sentenced to probation, drug court, or a pretrial diversion program, that a defendant convicted of a Class C felony where the imposed sentence is not greater than 15 years be confined in a prison, jail-type institution, treatment institution, or community corrections program for a period not exceeding two years, that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary, and that the defendant be placed on probation for a period not exceeding three years and upon terms determined by the court.

(b) (5)(1) Unless a defendant is sentenced to probation, drug court, or a pretrial diversion program, when that a defendant is convicted of an offense that constitutes a Class C or D felony offense and receives a where the imposed sentence of is not more than 15 years, the judge presiding over the case shall order that the convicted defendant be confined in a prison, jail-type institution, treatment institution, or community corrections program for a Class C felony offense or in a consenting community corrections program for a Class D felony offense, except as provided in subsection (e), for a period not exceeding two years in cases where the imposed sentence is not more than 15 years, and, that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary, and that the defendant be placed on probation for a period not exceeding three years and upon such terms as determined by the court deems best.

(2) In all cases when it is shown that a defendant has been previously convicted of any three or more felonies or has been previously convicted of any two or more felonies that are Class A or Class B felonies, and after such convictions has committed a Class D felony, upon conviction, he or she must be punished for a Class C felony. This subsection shall not be construed to impose the responsibility for offenders sentenced to a Department of Corrections facility upon a local confinement facility not operated by the Department of Corrections.

(6) That a defendant convicted of a misdemeanor, the execution of the sentence may be suspended notwithstanding any provision of the law to the contrary and the defendant be placed on probation for the period not exceeding two years and upon terms determined by the court.

(b) Subsection (a) shall not be construed to require a local confinement facility, not operated by the Department of Corrections, to be responsible for housing offenders sentenced to the Department of Corrections.

(c) Nothing in this section shall be construed as superseding the sentencing requirements set forth and adopted by the Legislature as prescribed by the Alabama Sentencing Commission's Sentencing Standards.

(d) In counties or jurisdictions where no community corrections program exists or resources from a community investment are not complete, a county or jurisdiction may enter into a compact or contract with another county or other counties to create a multi-jurisdiction community corrections facility that meets the needs and resources of each county or jurisdiction or enter into a compact or contract with a county or jurisdiction that has a community corrections program to provide services, as provided in and pursuant to Article 9 of this chapter.

(e) If no community corrections program exists within a county or jurisdiction or an existing program has reached the maximum participation level established by its community punishment and corrections plan as provided in Section 15-18-172, and no alternative program options are available under subsection (e) of Section 15-18-172, a defendant convicted of an offense that constitutes a Class D felony may be sentenced to high-intensity probation under the supervision of the Board of Pardons and Paroles in lieu of community corrections.

(f) Probation may not be granted for a sex offense involving a child as defined in Section 15-20A-4(26), which constitutes a Class A or B felony. Otherwise, probation may be granted whether the offense is punishable by fine or imprisonment or both. If an offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to in lieu of imprisonment. Probation may be limited to one or more counts or indictments, but, in the absence of express limitation, shall extend to the entire sentence and judgment.

(g) (g)(1) Regardless of whether the defendant has begun serving the minimum period of confinement ordered under the provisions of subsection (a) or (b), if the imposed sentence is not more than 20 years, the court shall retain jurisdiction and authority throughout that period to suspend that portion of the minimum sentence that remains and place the defendant on probation, notwithstanding any provision of the law to the contrary, and the court may revoke or modify any condition of probation or may change the period of probation.

(2) If a defendant's probation is revoked, and the defendant was sentenced pursuant to subsection (a), the sentencing judge shall have the discretion to determine the length of the revocation sentence.

(h) While incarcerated or on probation and among the conditions thereof of probation, the defendant may be required to do any of the following:

(1) To pay a fine in one or several sums;.

(2) To make pay restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had; and.

(3) To provide for the support of any persons for whose support he or she is legally responsible.

(i) Except as otherwise provided pursuant to Section 15-18-64, the defendant's liability for any fine or other punishment imposed as to which probation is granted shall be fully discharged by the fulfillment of the terms and conditions of probation.

(j) During any term of probation, the defendant shall report to the probation authorities at such the time and place as directed by the judge imposing the sentence.

(k) No defendant serving a minimum period of confinement ordered under the provisions of subsection (a) or (b) shall be entitled to parole or to deductions from his or her sentence under the Alabama Correctional Incentive Time Act, during the minimum period of confinement so ordered; provided, however, that this subsection shall not be construed to prohibit application of the Alabama Correctional Incentive Time Act to any period of confinement which may be required after the defendant has served such the minimum period.

(l) When a defendant is convicted of a misdemeanor of convicted of a municipal ordinance, the judge presiding over the case may impose a sentence in accordance with Section 13A-5-7. The court may order a portion of the sentence to be suspended and the defendant be placed on probation for such a period not exceeding two years and upon such terms as the court deems best."

Section 2

Sections 12-25-34, 12-25-34.2, and 12-25-36, Code of Alabama 1975, are amended as follows:

§12-25-34.

(a) Statewide voluntary sentencing standards shall be developed and presented to the Legislature in stages over a three-year period as follows:

(1) By July 31, 2003, the commission shall develop and distribute to all sentencing judges a reference manual analyzing historical sentencing practices by duration of sentence and disposition of felony offenders in Alabama. The reference manual shall indicate those types of offenders historically most likely to be sentenced to punishments other than active incarceration where alternatives to active incarceration are available.

(2) Concurrently with the development and distribution of the reference manual, the commission shall develop and begin testing worksheets and voluntary sentencing standards in selected circuits for selected felony offenses.

(3) The commission shall develop and present the initial voluntary sentencing standards to the Legislature before or during the 2006 Regular Session. These standards shall be introduced in the 2006 Regular Session and shall become effective on October 1 following the 2006 Regular Session, if approved by an act of the Legislature passed during that session. The initial voluntary sentencing standards based on sentences imposed shall apply to convictions for felony offenses sentenced on or after October 1, 2006, and committed before the effective date of the voluntary truth-in-sentencing standards.

(4) The commission shall develop and present truth-in-sentencing standards to the Legislature before or during the 2020 2026 Regular Session. These standards shall be introduced in the 2020 2026 Regular Session and shall become effective on October 1 following the 2020 2026 Regular Session, if approved by an act of the Legislature. The voluntary truth-in-sentencing standards shall apply only to felony offenses committed on or after the effective date of these standards.

(b) Recommended sentence ranges shall be established by standards that are based on historical sentencing practices, adjusted to achieve sentencing goals as established in Rule 26 of the Alabama Rules of Criminal Procedure, this chapter, and Section 12-25-31.

(c) Voluntary sentencing standards shall take into account and include statewide historically based sentence ranges, including all applicable statutory minimums and sentence enhancement provisions, including the Habitual Felony Offender Act, with adjustments made to reflect current sentencing policies. No additional penalties pursuant to any sentence enhancement statute shall apply to sentences imposed based on the voluntary sentencing standards.

(d) Commencing with the 2013 Regular Session, any modifications to the initial voluntary sentencing standards made by the commission shall be contained in the annual report presented to the Governor, the Legislature, the Chief Justice, and the Attorney General. An annual report containing proposed modifications shall be presented to the Governor, the Legislature, the Chief Justice, and the Attorney General at least forty-five days prior to each regular session of the Legislature. The modifications presented for nonviolent offenses shall become effective on October 1 following the legislative session in which the modifications were presented unless rejected by an act of the Legislature enacted by bill during the legislative session. The modifications presented for violent offenses shall become effective on October following the legislative session in which the modifications were presented, if approved by an act of the Legislature enacted by bill during the legislative session in which the modifications were presented.

§12-25-34.2.

(a) For the purposes of this section, the following words shall have the following meanings:

(1) AGGRAVATING FACTORS. Substantial and compelling reasons justifying an exceptional sentence whereby the sentencing court may impose a departure sentence above the presumptive sentence recommendation for an offense. Aggravating factors may result in dispositional or sentence range departures, or both, and shall be stated on the record by the court.

(2) DEPARTURE. A sentence which departs from the presumptive sentence recommendation for an offender.

(3) DISPOSITION. The part of the sentencing courts presumptive sentence recommendation other than sentence length.

(4) DISPOSITIONAL DEPARTURE. A sentence which departs from the presumptive sentence recommendation for disposition of sentence.

(5) MITIGATING FACTORS. Substantial and compelling reasons justifying an exceptional sentence whereby the sentencing court may impose a departure sentence below the presumptive sentence recommendation for an offense. Mitigating factors may result in disposition or sentence range departures, or both, and shall be stated on the record by the court.

(6) NONVIOLENT OFFENSES. As defined in Section 12-25-32.

(7) PRESUMPTIVE SENTENCE RECOMMENDATION. The recommended sentence range and disposition provided in the sentencing standards.

(8) SENTENCE RANGE. The sentencing court's discretionary range of length of sentence as provided and recommended in the presumptive sentencing recommendation.

(9) SENTENCE RANGE DEPARTURE. A sentence which departs from the presumptive sentence recommendation as to the sentence range.

(10) VIOLENT OFFENSES. As defined in Section 12-25-32.

(b) The voluntary sentencing standards as provided for in Section 12-25-34, as applied to nonviolent offenses shall become presumptive sentencing standards effective October 1, 2013, to the extent the modification adopted by the Alabama Sentencing Commission become effective October 1, 2013. The standards shall be applied by the courts in sentencing subject to departures as provided herein. To accomplish this purpose as to the existing initial voluntary sentencing standards, the Alabama Sentencing Commission shall adopt modifications to the standards, worksheets, and instructions to the extent necessary to implement this provision including, but not limited to, defining aggravating and mitigating factors that allow for departure from the presumptive sentencing recommendations. The commission's modifications shall be presented to the Legislature in the commission's annual report within the first five legislative days of the 2013 Regular Session.

(c) The voluntary sentencing standards as provided for in Section 12-25-34, as applied to the offenses of Robbery III pursuant to Section 13A-8-43 and Assault II pursuant to Section 13A-6-21, shall become presumptive sentencing standards offenses effective October 1, 2021, to the extent the modifications adopted by the Alabama Sentencing Commission become effective October 1, 2021. The standards shall be applied by the courts in sentencing subject to departures as provided in this section. To accomplish this purpose as to the existing initial voluntary sentencing standards, the Alabama Sentencing Commission shall adopt modifications to the standards, worksheets, and instructions to the extent necessary to implement this provision including, but not limited to, defining aggravating and mitigating factors that allow for departure from the presumptive sentencing recommendations. The commission's modifications shall be presented to the Legislature in the commission's annual report at least 45 days prior to the 2021 Regular Session.

(c) (d) Durational and dispositional departures from the presumptive sentencing standards shall be subject to appellate review. Along with the modifications provided for in subsection (b), the Alabama Sentencing Commission shall recommend a narrowly defined scope of appellate review applicable to departures from presumptive sentencing recommendations. The scope of appellate review shall become effective upon approval by an act of the Legislature enacted by bill.

§12-25-36.

This section and Sections 12-25-37 and 12-25-38 shall apply only after development and legislative approval of the proposed truth-in-sentencing standards submitted in 2020 2026. When a judge sentences based on the voluntary truth-in-sentencing standards, all of the following rules shall apply:

(1) Sentences imposed based on voluntary truth-in-sentencing standards pursuant to this article shall not be subject to any other provision of law concerning the duration of sentence.

(2) Sentences imposed based on the voluntary truth-in-sentencing standards shall include both a minimum and an extended term of sentence including a period of post-release supervision. The minimum sentence and the extended sentence shall be specified in the judgment of the court for those sentences that are imposed in compliance with the voluntary truth-in-sentencing standards. Sentence dispositions may include active incarceration, intermediate punishment, unsupervised probation, or a minimum punishment as specified in the voluntary truth-in-sentencing standards.

(3) The minimum term of sentence shall be consistent with the sentence range recommended in the voluntary truth-in-sentencing standards for the worksheet score of an offender. No offender sentenced to incarceration may be released from incarceration before the expiration date of the minimum term of sentence.

(4) The extended term of sentence shall be a period of time equal to 120 percent of the minimum term, rounded to the next highest month, plus a one-year period of post-release supervision.

(5) The amount of time an offender shall be incarcerated on the extended term of sentence shall be determined by the Department of Corrections pursuant to rules and regulations established by the Department of Corrections governing an offender's conduct after conviction and sentence.

(6) No sentence of active incarceration may be suspended.

(7) For any disposition of sentence less than active incarceration as defined in paragraph a. of subdivision (2) of Section 12-25-32, the court shall retain jurisdiction to modify sentence disposition of sentence."

Section 3

This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.