Florida Senate - 2013                                    SB 1742
       
       
       
       By Senator Braynon
       
       
       
       
       36-00605-13                                           20131742__
    1                        A bill to be entitled                      
    2         An act relating to drug-dependent offenders; creating
    3         s. 948.205, F.S.; requiring the court to order an
    4         offender to submit to a professional diagnostic
    5         assessment under specified circumstances; providing
    6         circumstances in which the court may choose not to
    7         order a diagnostic assessment; specifying criteria to
    8         be used in determining whether an offender is drug
    9         dependent; requiring the court to place on the written
   10         record its reasons for not ordering a professional
   11         diagnostic assessment; clarifying the court’s
   12         authority to order drug testing or screening; defining
   13         terms; requiring the court to sentence an offender to
   14         special probation if the court finds that an offender
   15         is drug dependent and in need of treatment; requiring
   16         certain offenders to participate in a court-supervised
   17         drug treatment program; providing circumstances in
   18         which the court need not order the offender to
   19         participate in drug treatment; providing for the
   20         ineligibility of some offenders to be sentenced to
   21         special probation; requiring the court to consider all
   22         relevant circumstances in determining whether to
   23         sentence an offender to special probation and to place
   24         the reasons for its decision on the record; providing
   25         that an order sentencing an offender to special
   26         probation is not final until the state attorney has an
   27         opportunity to appeal the sentence; defining the term
   28         “person in need of treatment”; requiring a court to
   29         order a drug-dependent person who is ineligible for
   30         regular probation to be sentenced to a term of
   31         special-probation drug treatment; providing that an
   32         offender may be sentenced to special probation for up
   33         to 5 years; requiring the court to find certain facts
   34         before ordering special-probation drug treatment;
   35         requiring the court to consider certain factors in
   36         determining whether residential or nonresidential
   37         treatment is appropriate; providing the conditions for
   38         special probation imposed on the offender for
   39         participating in special probation; providing criteria
   40         that make an offender ineligible for special-probation
   41         drug treatment programs; requiring an offender who is
   42         placed on special probation to be immediately
   43         tranferred to the custody of a residential treatment
   44         facility licensed and approved by the Department of
   45         Children and Families and the Department of Health;
   46         providing that an offender be transferred to a prison
   47         for not more than 6 months if there is no vacancy at a
   48         residential treatment facility at the time of
   49         sentencing; providing that an offender complete his or
   50         her special probation in a nonresidential program
   51         after completing the residential placement; requiring
   52         the probation department or other appropriate agency
   53         designated by the court to monitor or supervise the
   54         offender’s special probation; requiring that the
   55         agencies report periodically to the court as to the
   56         offender’s progress in treatment and compliance with
   57         court-imposed terms and conditions; requiring the
   58         special-probation treatment provider to promptly
   59         report to the probation department or other
   60         appropriate agency all significant failures by the
   61         offender to comply with a court-imposed term or
   62         condition of special-probation drug treatment,
   63         including a positive drug or alcohol test or the
   64         unexcused failure to attend a required program event;
   65         providing penalties for an offender violating any term
   66         or condition of special probation; providing an
   67         exception; providing criteria for the court to
   68         consider in determining whether to revoke special
   69         probation; providing alternative sentences if the
   70         offender’s special probation is revoked; providing for
   71         additional terms and conditions with which the
   72         offender must comply if the court orders continued
   73         special probation; providing penalties for an offender
   74         refusing to submit to a drug test; specifying that
   75         certain persons may institute proceedings if they
   76         believes the offender has violated the terms or
   77         conditions of special probation; authorizing the court
   78         to temporarily incarcerate an offender under certain
   79         circumstances in order to motivate the offender to
   80         make satisfactory progress in the treatment program;
   81         requiring a participating offender to pay, to the
   82         extent determined possible, the cost of special
   83         probation drug treatment, as well as any fines, fees,
   84         penalties, or restitution applicable to the original
   85         offense; authorizing the court to temporarily suspend
   86         imposition of all or any portion of the term of
   87         treatment in a residential treatment facility to allow
   88         the offender to enter a nonresidential treatment
   89         program; providing criteria that may justify the
   90         transfer to a nonresidential treatment program;
   91         providing that a state attorney may object to a
   92         proposed transfer; providing that the court may
   93         permanently suspend the transfer of an offender to
   94         residential treatment if there has been satisfactory
   95         progress in treatment; requiring the court to order at
   96         least weekly drug and alcohol tests, appropriate
   97         curfews, and restrictions on movement if residential
   98         treatment is temporarily suspended; requiring
   99         notification to the court and state attorney under
  100         certain circumstances; providing for the revocation of
  101         special probation in certain circumstances;
  102         authorizing early discharge from special probation
  103         under specified circumstances; providing an effective
  104         date.
  105  
  106  Be It Enacted by the Legislature of the State of Florida:
  107  
  108         Section 1. Section 948.205, Florida Statutes, is created to
  109  read:
  110         948.205Special probation for drug-dependent offenders.—
  111         (1) DIAGNOSTIC ASSESSMENT.—The court shall order that each
  112  offender submit to a professional diagnostic assessment if:
  113         (a) There is a reasonable basis for the court to believe
  114  that an offender may be drug dependent;
  115         (b) The offender meets the eligibility criteria for
  116  consideration for ordering the offender to a special-probation
  117  drug treatment program; and
  118         (c) The offender is charged with:
  119         1. A crime that is subject to imprisonment; or
  120         2. A felony of the third degree if the offender has
  121  previously been convicted of a crime subject to imprisonment or
  122  which resulted in the imposition of a state prison term.
  123         (d)The court is not required to order a diagnostic
  124  assessment if the court is clearly convinced that such an
  125  assessment will not serve any useful purpose. If the court does
  126  not order a professional diagnostic assessment, the court shall
  127  place on the written record the reasons for its decision not to
  128  order the assessment.
  129         (e)This section does not limit a court’s authority to
  130  order drug testing or drug screening at any time.
  131         (2) DETERMINATION OF DRUG DEPENDENCY.—For the purposes of
  132  this section, the following factual circumstances establish a
  133  reasonable basis for the court to believe that an offender may
  134  be drug dependent:
  135         (a) The present offense involves the use or possession of a
  136  controlled substance;
  137         (b)The offender has previously been convicted of an
  138  offense involving the use or possession of a controlled
  139  substance, was admitted to pretrial intervention or supervisory
  140  treatment, or received a conditional discharge for a charge
  141  involving a controlled substance;
  142         (c)The offender has a pending charge in this or any other
  143  state court or a federal court involving the use or possession
  144  of a controlled substance;
  145         (d)The offender has at any time in the past received any
  146  form of drug treatment or counseling;
  147         (e)The offender appears to have been under the influence
  148  of a controlled substance during the commission of the present
  149  offense;
  150         (f) It reasonably appears that the offender’s present
  151  offense may have been committed to acquire property or moneys to
  152  purchase a controlled substance for the offender’s personal use;
  153         (g)The offender admits to the unlawful use or possession
  154  of a controlled substance within the 12 months preceding the
  155  arrest for the present offense;
  156         (h) The offender had a positive drug test within the past
  157  12 months; or
  158         (i) There is information, other than the circumstances
  159  enumerated in paragraphs (a) through (h), which indicates that
  160  the offender may be a drug-dependent offender or would otherwise
  161  benefit by undergoing a professional diagnostic assessment.
  162  
  163  A person who has completed his or her professional diagnostic
  164  assessment and has been found to be drug dependent shall be
  165  returned to the court to be ordered into special probation
  166  pursuant to subsection (3).
  167         (3)SENTENCE OF SPECIAL PROBATION FOR CERTAIN OFFENDERS.—
  168         (a)For the purposes of this section, the term “offender in
  169  need of treatment” means an offender who:
  170         1.The court has determined to be drug-dependent; and
  171         2.Has been convicted of:
  172         a.A crime subject to a presumption of imprisonment; or
  173         b.A felony of the third degree, if the offender has
  174  previously been convicted of a crime subject to a presumption of
  175  imprisonment or a crime that resulted in the imposition of a
  176  state prison term.
  177         (b)If an assessment finds that an offender is a drug
  178  dependent offender in need of treatment, the court shall
  179  sentence the offender to special probation to participate in a
  180  court-supervised drug treatment program, regardless of whether
  181  the offender has sought or consents to such drug treatment as a
  182  condition of a probation sentence.
  183         (c) The court shall order the offender to participate in
  184  special-probation drug treatment unless:
  185         1.The court finds that a sentence of imprisonment must be
  186  imposed, in which case a sentence of imprisonment shall be
  187  served first; or
  188         2.The court is clearly convinced that:
  189         a.The treatment, monitoring, and supervision services for
  190  drug-dependent offenders which are provided in prison are
  191  clinically adequate to address the offender’s drug dependency;
  192         b.The offender’s drug treatment needs would not be better
  193  addressed by sentencing the offender to special probation;
  194         c.Placing the offender on regular probation would pose a
  195  danger to the community; and
  196         d.A sentence of regular probation would not be consistent
  197  with law.
  198         (d)An offender is not eligible to be ordered to special
  199  probation if the offender is convicted of or adjudicated
  200  delinquent for:
  201         1.A felony of the first degree;
  202         2.A felony of the second or third degree involving sex
  203  crimes;
  204         3. A felony for which a mandatory minimum period of
  205  incarceration is prescribed under law; or
  206         4.An offense that involved the distribution or the
  207  conspiracy or attempt to distribute a controlled substance or
  208  controlled substance analog to a juvenile near or on school
  209  property.
  210         (e)In making the findings and determinations required
  211  under this section, the court shall consider all relevant
  212  circumstances; shall take judicial notice of any evidence,
  213  testimony, or information adduced at the trial, plea hearing, or
  214  other court proceedings; and shall consider the presentence
  215  report and the results of any professional diagnostic
  216  assessment. The court shall place on the written record the
  217  reasons for its decision.
  218         (f)If the court imposes a sentence of special probation,
  219  the sentence becomes final only after the state attorney has had
  220  10 days to appeal the sentence to the appropriate appellate
  221  court.
  222         (4)REHABILITATION PROGRAM FOR DRUG-DEPENDENT OFFENDERS;
  223  RESIDENTIAL PLACEMENTS.
  224         (a)A drug-dependent offender who is eligible for special
  225  probation drug treatment shall be sentenced to such probation.
  226  The court shall give priority to an offender who has requested
  227  special probation over an offender who is being considered by
  228  the court, on its own motion, for special probation. This
  229  paragraph does not prohibit an offender who is eligible for
  230  probation from requesting drug treatment as a condition of
  231  probation.
  232         (b)The court shall place the offender on special probation
  233  for a period of not less than 5 years.
  234         (c) Unless the offender is sentenced to nonresidential
  235  treatment under subsection (6), the offender shall initially be
  236  placed in a suitable residential treatment facility that has
  237  agreed to provide appropriate drug treatment services in
  238  accordance with the requirements of this section. Such
  239  residential facilities must be licensed and approved by the
  240  Department of Children and Families and the Department of
  241  Health.
  242         (d) In determining whether to sentence the offender to a
  243  residential-based or nonresidential special-probation drug
  244  treatment program, the court shall consider all relevant
  245  circumstances, and shall take judicial notice of the evidence,
  246  testimony, or information adduced at the trial, plea hearing, or
  247  other court proceedings. The court shall also consider the
  248  presentence report and the results of the professional
  249  diagnostic assessment to determine to what extent the offender
  250  is drug dependent and would benefit from residential or
  251  nonresidential treatment.
  252         (5) CONDITIONS OF SPECIAL PROBATION IN A RESIDENTIAL
  253  FACILITY.—As a condition of placing an offender in a residential
  254  special-probation drug treatment program, the offender shall:
  255         (a) Agree to reside only at a residential drug treatment
  256  program facility that is licensed and approved by the Department
  257  of Children and Families and the Department of Health;
  258         (b) Agree to comply with all treatment program rules and
  259  the requirements during the course of treatment;
  260         (c) Cooperate fully with the treatment provider and the
  261  provider’s staff; and
  262         (d) Comply with such other reasonable terms and conditions
  263  as may be required by the court or the department. Among the
  264  reasonable terms is the requirement that each offender submit to
  265  random, periodic urine testing for drugs throughout the period
  266  of special probation.
  267  
  268  Upon order of the court, the department shall immediately
  269  transfer the offender to the drug treatment facility. If the
  270  residential treatment facility cannot immediately accommodate
  271  the offender, the offender shall be temporarily incarcerated in
  272  a state prison to await a vacancy in the residential treatment
  273  facility. The term of such penal commitment may not exceed 6
  274  months.
  275         (6) NONRESIDENTIAL TREATMENT PROGRAMS.—
  276         (a)An offender may enter a nonresidential drug treatment
  277  program upon successful completion of the required residential
  278  treatment or, directly, in place of a residential program, if
  279  the court finds on the written record that:
  280         1.The professional conducting the diagnostic assessment
  281  has recommended in writing that the proposed course of
  282  nonresidential drug treatment services is clinically appropriate
  283  and adequate to address the offender’s drug treatment needs.
  284         2.No danger to the community would result from the
  285  offender participating in the proposed course of nonresidential
  286  treatment services.
  287         3.A suitable treatment provider is available, and has
  288  agreed, to provide clinically appropriate nonresidential drug
  289  treatment services.
  290         (b) If, after a period of 6 months of nonresidential drug
  291  treatment, the court finds that the offender has made
  292  satisfactory progress and that there is a substantial likelihood
  293  that the offender will successfully complete the nonresidential
  294  treatment program, the court shall give notice to the state
  295  attorney that the court may permanently suspend any further
  296  commitment of the offender to a residential drug treatment
  297  program and, instead, order the offender to a nonresidential
  298  drug treatment program. If the state attorney objects to the
  299  court’s decision to suspend the commitment of the offender to a
  300  residential treatment facility, the sentence of special
  301  probation does not become final until the state attorney has the
  302  opportunity to appeal the court’s decision.
  303         (c) This subsection does not limit the authority of the
  304  court at any other time during the term of special-probation
  305  drug treatment to order the offender to be committed to a
  306  residential or nonresidential treatment facility if the court
  307  determines that such treatment is clinically appropriate and
  308  necessary to address the offender’s present treatment needs.
  309         (d) If the court finds that an offender has made exemplary
  310  progress in the course of treatment, the court may, upon
  311  recommendation of the offender’s supervising probation officer
  312  or on the court’s own motion, give notice to the state attorney
  313  that the court may grant early discharge from a term of special
  314  probation provided that the offender:
  315         1.Has satisfactorily completed the treatment program
  316  ordered by the court;
  317         2.Has served at least 2 years of special probation;
  318         3.Did not commit a substantial violation of any term or
  319  condition of special probation, including, but not limited to, a
  320  positive urine test, within the preceding 12 months; and
  321         4.Is not likely to relapse or commit an offense if
  322  probation supervision and related services are discontinued.
  323         (7) COMPLIANCE WITH CONDITIONS; PENALTIES.—
  324         (a)The probation department or other appropriate agency
  325  designated by the court to monitor and supervise the offender’s
  326  special-probation drug treatment shall report periodically to
  327  the court as to the offender’s progress in treatment and
  328  compliance with court-imposed terms and conditions. The special
  329  probation treatment provider shall promptly report to the
  330  probation department any failure by the offender to comply with
  331  court-imposed terms or conditions of special probation,
  332  including a positive drug test or the unexcused failure by the
  333  offender to attend any session or activity required by the
  334  department or drug treatment provider. The probation department
  335  shall immediately notify the court and the state attorney of the
  336  offender’s noncompliance.
  337         (b)1.For a first violation of any term or condition of
  338  special-probation drug treatment or of any requirements of the
  339  course of treatment, the court, in its discretion, may
  340  permanently revoke the offender’s special probation.
  341         2.For a second violation of any term or condition of
  342  special probation or of any requirements of the course of
  343  treatment, the court may permanently revoke the offender’s
  344  special probation.
  345         (c) If the court finds that there is a substantial
  346  likelihood that the offender will successfully complete the drug
  347  treatment program if allowed to continue on special-probation
  348  treatment and is clearly convinced that no danger to the
  349  community will result from allowing the offender to continue,
  350  the court may order the offender to remain on special probation
  351  for treatment services. The court’s determination to allow the
  352  offender to continue on special probation following a second
  353  violation may be appealed by the state attorney.
  354         (d)In making its determination whether to revoke special
  355  probation drug treatment services, the court shall consider the
  356  nature and seriousness of the present infraction and any past
  357  infractions in relation to the offender’s overall progress in
  358  the course of nonresidential treatment. The court shall give
  359  added weight to the treatment provider’s recommendation as to
  360  whether the offender’s special probation should be permanently
  361  revoked or continued.
  362         (e)1.If the court permanently revokes the offender’s
  363  special probation, the court shall impose the sentence that
  364  might have been imposed or that was required to be imposed.
  365         2. If the court orders, or is required to impose, a term of
  366  imprisonment, the offender shall receive credit for any time
  367  served in custody or while awaiting placement in a treatment
  368  facility, and for each day during which the offender
  369  satisfactorily complied with the terms and conditions of special
  370  probation while committed to a residential treatment facility or
  371  while receiving nonresidential treatment. The court, in
  372  determining credit for time spent in a residential treatment
  373  facility, shall consider the recommendations of the treatment
  374  provider.
  375         (f)If the court allows the offender to continue on special
  376  probation, the court shall order the offender to comply with
  377  such additional terms and conditions necessary to deter and
  378  promptly detect any further violation, including, but not
  379  limited to, more frequent drug testing.
  380         (g)A legal proceeding to allege a violation of the terms
  381  or conditions of special probation may be initiated by a
  382  probation officer or the state attorney or on the court’s own
  383  motion. An offender who fails to comply with the terms of his or
  384  her special-probation program and who is thereafter sentenced to
  385  imprisonment in accordance with this section is ineligible for
  386  another entry into an intensive supervision program.
  387         (h)1.If an offender on special probation commits a second
  388  or subsequent violation of this section, the court may, in place
  389  of permanently revoking the offender’s special probation, impose
  390  a term of incarceration for a period of not less than 30 days
  391  but not more than 6 months, after which the offender’s term of
  392  special probation may be reinstated. In determining whether to
  393  order a period of incarceration in place of permanent
  394  revocation, the court shall consider the recommendations of the
  395  treatment provider with respect to the likelihood that such
  396  confinement would serve to motivate the offender to make
  397  satisfactory progress in treatment once special probation is
  398  reinstated.
  399         2.The short-term incarceration may occur only once with
  400  respect to any offender unless the court is clearly convinced
  401  that there are compelling and extraordinary reasons to justify
  402  reimposing this disposition with respect to the offender. Any
  403  such determination by the court to reimpose short-term
  404  incarceration may be appealed by the state attorney.
  405         (8)COSTS AND FEES.—
  406         (a)The court, as a condition of its order, and after
  407  considering the offender’s financial resources, may require the
  408  offender to pay all or a portion of his or her costs associated
  409  with his or her participation in the special-probation drug
  410  treatment program. Such a decision must be consistent with the
  411  offender’s ability to pay.
  412         (b)The court shall impose, as a condition of special
  413  probation, the fine, penalty, fee, or restitution applicable to
  414  the offense for which the offender was convicted or adjudicated
  415  delinquent.
  416         Section 2. This act shall take effect July 1, 2013.
  417