CS for CS for SB 522                             First Engrossed
       
       
       
       
       
       
       
       
       2014522e1
       
    1                        A bill to be entitled                      
    2         An act relating to involuntary civil commitment of
    3         sexually violent predators; amending s. 394.912, F.S.;
    4         redefining terms; creating s. 394.9125, F.S.;
    5         authorizing and requiring a state attorney to refer
    6         certain persons for civil commitment under certain
    7         circumstances; requiring the state attorney to notify
    8         county and municipal jails of a referral within a
    9         specified timeframe; authorizing the state attorney to
   10         file a petition requesting that a person be taken into
   11         custody for civil commitment proceedings; requiring a
   12         judge to order a person into custody for civil
   13         commitment proceedings upon making specified findings;
   14         amending s. 394.913, F.S.; requiring the agency with
   15         jurisdiction over a person who has been convicted of a
   16         sexually violent offense to give written notice to the
   17         multidisciplinary team as soon as practicable after
   18         receipt into custody of such person in a county or
   19         municipal jail facility; requiring the
   20         multidisciplinary team to prioritize assessments based
   21         on release dates; authorizing the multidisciplinary
   22         team to consult with law enforcement agencies and
   23         victim advocate groups as part of the assessment and
   24         evaluation process; authorizing a clinical evaluation;
   25         requiring a second clinical evaluation under certain
   26         circumstances; requiring the multidisciplinary team to
   27         proceed without a personal interview under certain
   28         circumstances; requiring the multidisciplinary team to
   29         provide the state attorney with a written assessment
   30         and recommendation as to whether a person meets the
   31         definition of a sexually violent predator within
   32         specified timeframes; requiring the Department of
   33         Children and Families to recommend that the state
   34         attorney file a civil commitment petition under
   35         certain circumstances; requiring the department to
   36         send the recommendation and assessment to the state
   37         attorney for further review; requiring the
   38         multidisciplinary team to reexamine the case under
   39         certain circumstances; requiring the multidisciplinary
   40         team to give equal consideration to an attempt,
   41         criminal solicitation, or conspiracy to commit certain
   42         offenses as it does to the commission of such
   43         offenses; conforming provisions to changes made by the
   44         act; amending s. 394.9135, F.S.; providing for certain
   45         released persons to be taken into custody by the
   46         Department of Children and Families; authorizing the
   47         state attorney to file, within a specific timeframe, a
   48         petition alleging that a person released from a local
   49         detention facility was not referred as required before
   50         release because of a mistake, oversight, or
   51         intentional act or was referred for commitment
   52         consideration but released rather than transferred to
   53         custody, as required, due to a mistake, oversight, or
   54         intentional act; requiring a judge to order that a
   55         person so released be taken into custody and delivered
   56         to an appropriate secure facility under certain
   57         circumstances; amending s. 394.914, F.S.; authorizing
   58         the state attorney to file a petition for civil
   59         commitment regardless of the multidisciplinary team’s
   60         recommendation; amending s. 394.918, F.S.; authorizing
   61         the petitioner and respondent to present evidence at a
   62         civil commitment probable cause hearing; amending s.
   63         394.926, F.S.; requiring the department to provide
   64         written notice of placement of a person in the
   65         department’s custody to a victim of such person;
   66         requiring the department to notify the Department of
   67         Corrections, the Department of Law Enforcement, and
   68         the sheriff of the county in which such person intends
   69         to reside of the release of a sexually violent
   70         predator or a person who is in custody; requiring the
   71         Department of Children and Families to enroll certain
   72         persons in an arrest notification program and to
   73         notify the state attorney upon receiving an arrest
   74         alert; amending s. 394.931, F.S.; requiring the
   75         Department of Corrections to collect recidivism
   76         information and include the information in their
   77         annual report; amending s. 943.053, F.S.; requiring
   78         the Department of Law Enforcement to provide the
   79         Department of Children and Families access to the
   80         arrest notification program; providing for
   81         severability; providing an effective date.
   82          
   83  Be It Enacted by the Legislature of the State of Florida:
   84  
   85         Section 1. Subsections (1), (3), (7), and (11) of section
   86  394.912, Florida Statutes, are amended, and paragraph (i) is
   87  added to subsection (9) of that section, to read:
   88         394.912 Definitions.—As used in this part, the term:
   89         (1) “Agency with jurisdiction” means the entity agency that
   90  releases, upon lawful order or authority, a person who is
   91  serving a sentence in the custody of the Department of
   92  Corrections, a person who was adjudicated delinquent and is
   93  committed to the custody of the Department of Juvenile Justice,
   94  or a person who was involuntarily committed to the custody of
   95  the Department of Children and Families Family Services upon an
   96  adjudication of not guilty by reason of insanity, or a person
   97  who is serving a sentence in a county or municipal jail for a
   98  sexually violent offense as defined in paragraph (9)(i).
   99         (3) “Department” means the Department of Children and
  100  Families Family Services.
  101         (7) “Secretary” means the secretary of the Department of
  102  Children and Families Family Services.
  103         (9) “Sexually violent offense” means:
  104         (i) A criminal offense in which the state attorney refers a
  105  person to the department for civil commitment proceedings
  106  pursuant to s. 394.9125.
  107         (11) “Total confinement” means that the person is currently
  108  being held in any physically secure facility being operated or
  109  contractually operated for the Department of Corrections, the
  110  Department of Juvenile Justice, or the Department of Children
  111  and Families Family Services. A person shall also be deemed to
  112  be in total confinement for applicability of provisions under
  113  this part if:
  114         (a) The person is serving an incarcerative sentence under
  115  the custody of the Department of Corrections or the Department
  116  of Juvenile Justice and is being held in any other secure
  117  facility for any reason;
  118         (b) The person is serving a sentence in a county or
  119  municipal jail for a sexually violent offense as defined in
  120  paragraph (9)(i); or
  121         (c) A court or the agency with jurisdiction determines that
  122  the person who is being held should have been lawfully released
  123  at an earlier date and that the provisions of this part would
  124  have been applicable to the person on the date that he or she
  125  should have been lawfully released.
  126         Section 2. Section 394.9125, Florida Statutes, is created
  127  to read:
  128         394.9125 State attorney; authority to refer a person for
  129  civil commitment.—
  130         (1) A state attorney shall refer a person to the department
  131  for civil commitment proceedings if:
  132         (a) The state attorney receives an arrest alert on the
  133  person pursuant to s. 394.926(4); and
  134         (b) The person is subsequently sentenced to a term of
  135  imprisonment in a county or municipal jail for any criminal
  136  offense.
  137         (2) A state attorney may refer a person to the department
  138  for civil commitment proceedings if the person:
  139         (a) Is required to register as a sexual offender pursuant
  140  to s. 943.0435;
  141         (b) Has previously been convicted of a sexually violent
  142  offense as defined in s. 394.912(9)(a)-(h); and
  143         (c) Has been sentenced to a term of imprisonment in a
  144  county or municipal jail for any criminal offense.
  145         (3) A state attorney who refers a person for civil
  146  commitment pursuant to subsection (1) or subsection (2) shall
  147  notify the county or municipal jail to which the person has been
  148  sentenced within 24 hours after the referral is made.
  149         (4)(a) If a person is sentenced to a term of imprisonment
  150  in a county or municipal jail but is not subsequently totally
  151  confined in the jail due to receiving credit for time served,
  152  the state attorney may file a petition with the circuit court
  153  within 120 hours after such person’s sentencing proceeding
  154  requesting the court to order such person into the department’s
  155  custody for purposes of initiating civil commitment proceedings.
  156         (b) If the judge determines that there is probable cause to
  157  believe that the person should have been referred to the
  158  department pursuant to subsection (1) or subsection (2) but that
  159  the referral was not made because the person was not totally
  160  confined in a county or municipal jail due to receiving credit
  161  for time served, the judge shall order that the person be taken
  162  into custody and delivered to the custody of the department for
  163  civil commitment proceedings.
  164         Section 3. Section 394.913, Florida Statutes, is amended to
  165  read:
  166         394.913 Notice to state attorney and multidisciplinary team
  167  of release of sexually violent predator; establishing
  168  multidisciplinary teams; information to be provided to
  169  multidisciplinary teams.—
  170         (1) The agency with jurisdiction over a person who has been
  171  convicted of a sexually violent offense shall give written
  172  notice to the multidisciplinary team, and shall provide a copy
  173  of the notice to the state attorney of the circuit in which
  174  where that person was last convicted of a sexually violent
  175  offense. If the person has never been convicted of a sexually
  176  violent offense in this state but has been convicted of a
  177  sexually violent offense in another state or in federal court,
  178  the agency with jurisdiction shall give written notice to the
  179  multidisciplinary team and a copy to the state attorney of the
  180  circuit in which where the person was last convicted of any
  181  offense in this state. If the person is being confined in this
  182  state pursuant to interstate compact and has a prior or current
  183  conviction for a sexually violent offense, the agency with
  184  jurisdiction shall give written notice to the multidisciplinary
  185  team and shall provide a copy to the state attorney of the
  186  circuit in which where the person plans to reside upon release
  187  or, if no residence in this state is planned, the state attorney
  188  in the circuit in which where the facility from which the person
  189  to be released is located. Except as provided in s. 394.9135,
  190  the written notice must be given:
  191         (a) At least 545 days before prior to the anticipated
  192  release from total confinement of a person serving a sentence in
  193  the custody of the Department of Corrections, except that in the
  194  case of a person persons who is are totally confined for a
  195  period of less than 545 days, written notice must be given as
  196  soon as practicable;
  197         (b) At least 180 days before prior to the anticipated
  198  release from residential commitment of a person committed to the
  199  custody of the Department of Juvenile Justice, except that in
  200  the case of a person persons who is are committed to a low or
  201  moderate risk facility, written notice must be given as soon as
  202  practicable; or
  203         (c) At least 180 days before prior to the anticipated
  204  hearing regarding possible release of a person committed to the
  205  custody of the department who has been found not guilty by
  206  reason of insanity or mental incapacity of a sexually violent
  207  offense; or.
  208         (d) At least 180 days before the anticipated release from
  209  total confinement of a person serving a sentence in a county or
  210  municipal jail, except that in the case of a person who is
  211  totally confined for a period of less than 180 days, written
  212  notice must be given as soon as practicable.
  213         (2) The agency having jurisdiction shall provide the
  214  multidisciplinary team with the following information:
  215         (a) The person’s name; identifying characteristics;
  216  anticipated future residence; the type of supervision the person
  217  will receive in the community, if any; and the person’s offense
  218  history;
  219         (b) The person’s criminal history, including police
  220  reports, victim statements, presentence investigation reports,
  221  postsentence investigation reports, if available, and any other
  222  documents containing facts of the person’s criminal incidents or
  223  indicating whether the criminal incidents included sexual acts
  224  or were sexually motivated;
  225         (c) Mental health, mental status, and medical records,
  226  including all clinical records and notes concerning the person;
  227         (d) Documentation of institutional adjustment and any
  228  treatment received and, in the case of an adjudicated delinquent
  229  committed to the Department of Juvenile Justice, copies of the
  230  most recent performance plan and performance summary; and
  231         (e) If the person was returned to custody after a period of
  232  supervision, documentation of adjustment during supervision and
  233  any treatment received.
  234         (3)(a) The secretary or his or her designee shall establish
  235  a multidisciplinary team or teams.
  236         (b) Each team shall include, but need is not be limited to,
  237  two licensed psychiatrists or psychologists or one licensed
  238  psychiatrist and one licensed psychologist.
  239         (c) The multidisciplinary team shall assess and evaluate
  240  each person referred to the team. The multidisciplinary team
  241  shall prioritize the assessment and evaluation of persons
  242  referred under subsection (1) based upon the person’s scheduled
  243  release date. The assessment and evaluation must shall include a
  244  review of the person’s institutional history and treatment
  245  record, if any, the person’s criminal background, and any other
  246  factor that is relevant to the determination of whether the such
  247  person is a sexually violent predator.
  248         (d) The multidisciplinary team may consult with law
  249  enforcement agencies and victim advocate groups during the
  250  assessment and evaluation process. A clinical evaluation of the
  251  person may be conducted. A second clinical evaluation must be
  252  conducted if a member of the multidisciplinary team questions
  253  the conclusion of the first clinical evaluation. All members of
  254  the multidisciplinary team shall review, at a minimum, the
  255  information provided in subsection (2) and any clinical
  256  evaluation before making a recommendation pursuant to paragraph
  257  (f).
  258         (e)(c) Before recommending that a person meets the
  259  definition of a sexually violent predator, the person must be
  260  offered a personal interview. If the person agrees to
  261  participate in a personal interview, at least one member of the
  262  team who is a licensed psychiatrist or psychologist must conduct
  263  a personal interview of the person. If the person refuses to
  264  fully participate in a personal interview, the multidisciplinary
  265  team shall may proceed with its recommendation without the a
  266  personal interview of the person.
  267         (f) The multidisciplinary team shall complete all clinical
  268  evaluations and provide the state attorney a written assessment
  269  and recommendation as to whether the person meets the definition
  270  of a sexually violent predator at least 1 month before the
  271  person’s scheduled release date from the Department of
  272  Corrections, the Department of Juvenile Justice, or the
  273  Department of Children and Families. The multidisciplinary team
  274  shall complete all clinical evaluations and provide the state
  275  attorney a written assessment and recommendation as to whether
  276  the person meets the definition of a sexually violent predator
  277  at least 24 hours before the person’s scheduled release date
  278  from a county or municipal jail.
  279         1. The department must recommend that the state attorney
  280  file a petition for civil commitment if at least two members of
  281  the multidisciplinary team determine that the person meets the
  282  definition of a sexually violent predator.
  283         2. When the department determines that a person who has
  284  received a clinical evaluation does or does not meet the
  285  definition of a sexually violent predator, the written
  286  assessment and recommendation shall be sent to the state
  287  attorney. If the state attorney questions, in writing, the
  288  determination that the person does or does not meet the
  289  definition of a sexually violent predator, the multidisciplinary
  290  team must reexamine the case before a final written assessment
  291  and recommendation is provided to the state attorney.
  292         (g)(d) The Attorney General’s Office shall serve as legal
  293  counsel to the multidisciplinary team.
  294         (e)1. Within 180 days after receiving notice, there shall
  295  be a written assessment as to whether the person meets the
  296  definition of a sexually violent predator and a written
  297  recommendation, which shall be provided to the state attorney.
  298  The written recommendation shall be provided by the Department
  299  of Children and Family Services and shall include the written
  300  report of the multidisciplinary team.
  301         2. Notwithstanding subparagraph 1., in the case of a person
  302  for whom the written assessment and recommendation has not been
  303  completed at least 365 days before his or her release from total
  304  confinement, the department shall prioritize the assessment of
  305  that person based upon the person’s release date.
  306         (4) The multidisciplinary team shall give equal
  307  consideration in the evaluation and assessment of an offender
  308  whose sexually violent offense was an attempt, criminal
  309  solicitation, or conspiracy, in violation of s. 777.04, to
  310  commit a sexually violent offense enumerated in s. 394.912(9) as
  311  it does in the evaluation and assessment of an offender who
  312  completed such an enumerated sexually violent offense. A rule or
  313  policy may not be established which reduces the level of
  314  consideration because the sexually violent offense was an
  315  attempt, criminal solicitation, or conspiracy.
  316         (5)(4)The provisions of This section is are not
  317  jurisdictional, and failure to comply with it them in no way
  318  prevents the state attorney from proceeding against a person
  319  otherwise subject to the provisions of this part.
  320         Section 4. Section 394.9135, Florida Statutes, is amended
  321  to read:
  322         394.9135 Immediate releases from total confinement;
  323  transfer of person to department; time limitations on
  324  assessment, notification, and filing petition to hold in
  325  custody; filing petition after release; order into custody of
  326  department after release.—
  327         (1)(a) If the anticipated release from total confinement of
  328  a person who has been convicted of a sexually violent offense
  329  becomes immediate for any reason, the agency with jurisdiction
  330  shall upon immediate release from total confinement transfer
  331  that person to the custody of the department of Children and
  332  Family Services to be held in an appropriate secure facility.
  333         (b) If a person who committed a sexually violent offense
  334  and who is serving an incarcerative sentence under the custody
  335  of the Department of Corrections, the Department of Juvenile
  336  Justice, or a local detention facility, or who is committed to
  337  the custody of the department due to an adjudication of not
  338  guilty by reason of insanity is released, the state attorney, as
  339  designated in s. 394.913, may file a petition with the circuit
  340  court within 120 hours after the person’s release alleging that:
  341         1. Section 394.9125, s. 394.913, or this section requires
  342  that the person be referred for consideration for civil
  343  commitment before release and the person was not referred
  344  because of a mistake, oversight, or intentional act; or
  345         2. The person was referred for commitment consideration
  346  but, through a mistake, oversight, or intentional act, was
  347  released rather than transferred to the custody of the
  348  Department of Children and Families as required by this part.
  349  
  350  If the judge determines that there is probable cause to believe
  351  that the person was released in contravention of s. 394.913 or
  352  this section, the judge shall order the person to be taken into
  353  custody and delivered to an appropriate secure facility
  354  designated by the Department of Children and Families.
  355         (2) Within 72 hours after transfer pursuant to paragraph
  356  (1)(a) or receipt into the department’s custody pursuant to
  357  paragraph (1)(b) or s. 394.9125(4), the multidisciplinary team
  358  shall assess whether the person meets the definition of a
  359  sexually violent predator. If the multidisciplinary team
  360  determines that the person does not meet the definition of a
  361  sexually violent predator, that person shall be immediately
  362  released. If at least two members of the multidisciplinary team,
  363  after all clinical evaluations have been conducted, determine
  364  determines that the person meets the definition of a sexually
  365  violent predator, the team shall provide the state attorney, as
  366  designated by s. 394.913, with its written assessment and
  367  recommendation within the 72-hour period or, if the 72-hour
  368  period ends after 5 p.m. on a working day or on a weekend or
  369  holiday, within the next working day thereafter.
  370         (3) Within 48 hours after receipt of the written assessment
  371  and recommendation from the multidisciplinary team, the state
  372  attorney, as designated in s. 394.913, may file a petition with
  373  the circuit court alleging that the person is a sexually violent
  374  predator and stating facts sufficient to support the such
  375  allegation. If a petition is not filed within 48 hours after
  376  receipt of the written assessment and recommendation by the
  377  state attorney, the person shall be immediately released, except
  378  that, if the 48-hour period ends after 5 p.m. on a working day
  379  or on a weekend or holiday, the petition may be filed on the
  380  next working day without resulting in the person’s release. If a
  381  petition is filed pursuant to this section and the judge
  382  determines that there is probable cause to believe that the
  383  person is a sexually violent predator, the judge shall order
  384  that the person be maintained in custody and held in an
  385  appropriate secure facility for further proceedings in
  386  accordance with this part.
  387         (4) The provisions of This section is are not
  388  jurisdictional, and failure to comply with the time limitations,
  389  which results in the release of a person who has been convicted
  390  of a sexually violent offense, is not dispositive of the case
  391  and does not prevent the state attorney from proceeding against
  392  a person otherwise subject to the provisions of this part.
  393         Section 5. Section 394.914, Florida Statutes, is amended to
  394  read:
  395         394.914 Petition; contents.—After Following receipt from
  396  the multidisciplinary team of the written assessment and
  397  positive or negative recommendation as to whether the person
  398  meets the definition of a sexually violent predator from the
  399  multidisciplinary team, the state attorney, in accordance with
  400  s. 394.913, may file a petition with the circuit court alleging
  401  that the person is a sexually violent predator and stating facts
  402  sufficient to support such allegation. A No fee may not shall be
  403  charged for the filing of a petition under this section.
  404         Section 6. Subsection (3) of section 394.918, Florida
  405  Statutes, is amended to read:
  406         394.918 Examinations; notice; court hearings for release of
  407  committed persons; burden of proof.—
  408         (3) The court shall hold a limited hearing to determine
  409  whether there is probable cause to believe that the person’s
  410  condition has so changed that it is safe for the person to be at
  411  large and that the person will not engage in acts of sexual
  412  violence if discharged. The person has the right to be
  413  represented by counsel at the probable cause hearing and the
  414  right, but the person is not entitled to be present. Both the
  415  petitioner and the respondent may present evidence that the
  416  court may weigh and consider. If the court determines that there
  417  is probable cause to believe it is safe to release the person,
  418  the court shall set a trial before the court on the issue.
  419         Section 7. Section 394.926, Florida Statutes, is amended to
  420  read:
  421         394.926 Notice to victims and others of release of persons
  422  in the custody of the department committed as sexually violent
  423  predators; notice to Department of Corrections and Parole
  424  Commission.—
  425         (1) As soon as is practicable, the department shall give
  426  written notice of the release of a person in the custody of the
  427  department committed as a sexually violent predator to any
  428  victim of the committed person who is alive and whose address is
  429  known to the department or, if the victim is deceased, to the
  430  victim’s family, if the family’s address is known to the
  431  department. Failure to notify is not a reason for postponement
  432  of release. This section does not create a cause of action
  433  against the state or an employee of the state acting within the
  434  scope of the employee’s employment as a result of the failure to
  435  notify pursuant to this part.
  436         (2) If a person in the custody of the department sexually
  437  violent predator who has an active or pending term of probation,
  438  community control, parole, conditional release, or other court
  439  ordered or postprison release supervision is released from
  440  custody, the department must immediately notify the Department
  441  of Corrections’ Office of Community Corrections in Tallahassee.
  442  The Parole Commission must also be immediately notified of any
  443  releases of a person sexually violent predator who has an active
  444  or pending term of parole, conditional release, or other
  445  postprison release supervision that is administered by the
  446  Parole Commission.
  447         (3) If a person in the custody of the department is
  448  released, the department must notify the Department of Law
  449  Enforcement and the sheriff of the county in which the person
  450  intends to reside, or if unknown, the sheriff of the county in
  451  which the person was last convicted.
  452         (4)(a) The department, in conjunction with the Department
  453  of Law Enforcement, shall enroll and maintain a sexually violent
  454  offender in the arrest notification program through the Florida
  455  Criminal Justice Network maintained by the Department of Law
  456  Enforcement upon such offender’s release from the department’s
  457  custody. Upon receiving an alert that a sexually violent
  458  offender has been arrested for a criminal offense subsequent to
  459  his or her release, the department must immediately notify the
  460  state attorney of the circuit in which the arrest occurred.
  461         (b) As used in this subsection, the term “sexually violent
  462  offender” means a person who has been committed to the
  463  department as a sexually violent predator or who has been in the
  464  department’s custody based upon a court finding of probable
  465  cause to believe the person is a sexually violent predator.
  466         Section 8. Section 394.931, Florida Statutes, is amended to
  467  read:
  468         394.931 Quarterly and annual reports.—Beginning July 1,
  469  1999, The Department of Corrections shall collect information
  470  and compile quarterly reports with statistics profiling inmates
  471  released the previous quarter who fit the criteria and were
  472  referred to the Department of Children and Families Family
  473  Services pursuant to this act. The quarterly reports must be
  474  produced beginning October 1, 1999. At a minimum, the
  475  information that must be collected and compiled for inclusion in
  476  the reports includes: whether the qualifying offense was the
  477  current offense or the prior offense; the offender’s most
  478  serious sexual offense; the total number of distinct victims of
  479  the sexual offense; whether the victim was known to the
  480  offender; whether the sexual act was consensual; whether the
  481  sexual act involved multiple victims; whether direct violence
  482  was involved in the sexual offense; the age of each victim at
  483  the time of the offense; the age of the offender at the time of
  484  the first sexual offense; whether a weapon was used; length of
  485  time since the most recent sexual offense; and the total number
  486  of prior and current sexual offense sexual-offense convictions.
  487  The Department of Corrections shall compile recidivism data on
  488  those referred, detained, or committed to the department. The
  489  data shall be included in the Department of Corrections’ annual
  490  report In addition, the department of Children and Family
  491  Services shall implement a long-term study to determine the
  492  overall efficacy of the provisions of this part.
  493         Section 9. Subsection (14) is added to section 943.053,
  494  Florida Statutes, to read:
  495         943.053 Dissemination of criminal justice information;
  496  fees.—
  497         (14) Notwithstanding any other law, the department shall
  498  provide to the Sexually Violent Predator Program within the
  499  Department of Children and Families online access to the arrest
  500  notification program through the Florida Criminal Justice
  501  Network to be used solely in support of the duties of the
  502  Department of Children and Families as provided in s.
  503  394.926(4).
  504         Section 10. If any provision of this act or its application
  505  to any person or circumstance is held invalid, the invalidity
  506  does not affect other provisions or applications of this act
  507  which can be given effect without the invalid provision or
  508  application, and to this end the provisions of this act are
  509  severable.
  510         Section 11. This act shall take effect July 1, 2014.