SB 314 First Engrossed
2016314e1
1 A bill to be entitled
2 An act relating to direct filing of juveniles;
3 amending s. 985.556, F.S.; deleting provisions
4 relating to the involuntary mandatory waiver of
5 children by a state attorney; amending s. 985.557,
6 F.S.; requiring a state attorney to document in
7 writing specified information; requiring the state
8 attorney to submit specified collected information to
9 the Department of Juvenile Justice; deleting
10 provisions relating to the mandatory direct filing of
11 children to adult court; prohibiting the transfer to
12 adult court of a child found to be incompetent under
13 certain circumstances; requiring the department to
14 collect specified information beginning on a certain
15 date; requiring the department to work with the Office
16 of Program Policy Analysis and Government
17 Accountability to generate a report of specified
18 information; requiring the department to submit
19 reports to the Governor and the Legislature by
20 specified dates; amending ss. 985.03, 985.04, 985.15,
21 and 985.565, F.S.; conforming provisions to changes
22 made by the act; reenacting s. 985.265(5), F.S.,
23 relating to juvenile detention transfer and release
24 and education, and adult jails, to incorporate the
25 amendments made to ss. 985.556 and 985.557, F.S., in a
26 reference thereto; providing an effective date.
27
28 Be It Enacted by the Legislature of the State of Florida:
29
30 Section 1. Subsections (2) and (3) of section 985.556,
31 Florida Statutes, are amended, and present subsections (4) and
32 (5) of that section are redesignated as subsections (3) and (4),
33 respectively, to read:
34 985.556 Waiver of juvenile court jurisdiction; hearing.—
35 (2) INVOLUNTARY DISCRETIONARY WAIVER.—Except as provided in
36 subsection (3), The state attorney may file a motion requesting
37 the court to transfer the child for criminal prosecution if the
38 child was 14 years of age or older at the time the alleged
39 delinquent act or violation of law was committed.
40 (3) INVOLUNTARY MANDATORY WAIVER.—
41 (a) If the child was 14 years of age or older, and if the
42 child has been previously adjudicated delinquent for an act
43 classified as a felony, which adjudication was for the
44 commission of, attempt to commit, or conspiracy to commit
45 murder, sexual battery, armed or strong-armed robbery,
46 carjacking, home-invasion robbery, aggravated battery,
47 aggravated assault, or burglary with an assault or battery, and
48 the child is currently charged with a second or subsequent
49 violent crime against a person; or
50 (b) If the child was 14 years of age or older at the time
51 of commission of a fourth or subsequent alleged felony offense
52 and the child was previously adjudicated delinquent or had
53 adjudication withheld for or was found to have committed, or to
54 have attempted or conspired to commit, three offenses that are
55 felony offenses if committed by an adult, and one or more of
56 such felony offenses involved the use or possession of a firearm
57 or violence against a person;
58
59 the state attorney shall request the court to transfer and
60 certify the child for prosecution as an adult or shall provide
61 written reasons to the court for not making such request, or
62 proceed under s. 985.557(1). Upon the state attorney’s request,
63 the court shall either enter an order transferring the case and
64 certifying the case for trial as if the child were an adult or
65 provide written reasons for not issuing such an order.
66 Section 2. Paragraph (c) is added to subsection (1) of
67 section 985.557, Florida Statutes, present subsection (2) of
68 that section is amended, present subsections (3) and (4) of that
69 section are redesignated as subsections (2) and (3),
70 respectively, and a new subsection (4) and subsection (5) are
71 added to that section, to read:
72 985.557 Direct filing of an information; discretionary and
73 mandatory criteria.—
74 (1) DISCRETIONARY DIRECT FILE.—
75 (c)1. A decision under this section to transfer a child to
76 adult court for criminal prosecution, or a decision not to
77 transfer a child eligible for direct file, shall be documented
78 in writing by the state attorney in charge of the case and be
79 signed by the child’s defense attorney or, if the child is not
80 represented by counsel, by the child’s parent or guardian. The
81 document shall be filed with the court at the disposition of the
82 case. The state attorney shall include the following information
83 in the written decision:
84 a. Whether adult codefendants were involved in the case.
85 b. The length of time the child spent in jail awaiting
86 disposition.
87 c. Whether any discovery has been conducted on the case at
88 the time of transfer.
89 d. Whether the child waived the right to go to trial.
90 e. If the decision to transfer or not to transfer resulted
91 in a plea agreement, the details of the plea agreement,
92 including previous plea offers made by the state but not
93 accepted by the child, and any conditions placed on the plea
94 offer.
95 f. Whether the prosecutor allowed the judge to sentence the
96 child to a disposition other than what the prosecutor was
97 offering in exchange for the child not being transferred to
98 adult court.
99 g. Whether the child had to waive statutory limits on
100 secure detention in order to avoid a direct file transfer, and,
101 if available, the amount of time the child who waived secure
102 detention limits actually spent in secure detention.
103 2. On or before the 15th of each month, the state attorney
104 in each judicial circuit shall collect the information specified
105 in subparagraph 1. for all cases disposed of the previous month
106 and submit that documentation to the department for data
107 collection.
108 (2) MANDATORY DIRECT FILE.—
109 (a) With respect to any child who was 16 or 17 years of age
110 at the time the alleged offense was committed, the state
111 attorney shall file an information if the child has been
112 previously adjudicated delinquent for an act classified as a
113 felony, which adjudication was for the commission of, attempt to
114 commit, or conspiracy to commit murder, sexual battery, armed or
115 strong-armed robbery, carjacking, home-invasion robbery,
116 aggravated battery, or aggravated assault, and the child is
117 currently charged with a second or subsequent violent crime
118 against a person.
119 (b) With respect to any child 16 or 17 years of age at the
120 time an offense classified as a forcible felony, as defined in
121 s. 776.08, was committed, the state attorney shall file an
122 information if the child has previously been adjudicated
123 delinquent or had adjudication withheld for three acts
124 classified as felonies each of which occurred at least 45 days
125 apart from each other. This paragraph does not apply when the
126 state attorney has good cause to believe that exceptional
127 circumstances exist which preclude the just prosecution of the
128 juvenile in adult court.
129 (c) The state attorney must file an information if a child,
130 regardless of the child’s age at the time the alleged offense
131 was committed, is alleged to have committed an act that would be
132 a violation of law if the child were an adult, that involves
133 stealing a motor vehicle, including, but not limited to, a
134 violation of s. 812.133, relating to carjacking, or s.
135 812.014(2)(c)6., relating to grand theft of a motor vehicle, and
136 while the child was in possession of the stolen motor vehicle
137 the child caused serious bodily injury to or the death of a
138 person who was not involved in the underlying offense. For
139 purposes of this section, the driver and all willing passengers
140 in the stolen motor vehicle at the time such serious bodily
141 injury or death is inflicted shall also be subject to mandatory
142 transfer to adult court. “Stolen motor vehicle,” for the
143 purposes of this section, means a motor vehicle that has been
144 the subject of any criminal wrongful taking. For purposes of
145 this section, “willing passengers” means all willing passengers
146 who have participated in the underlying offense.
147 (d)1. With respect to any child who was 16 or 17 years of
148 age at the time the alleged offense was committed, the state
149 attorney shall file an information if the child has been charged
150 with committing or attempting to commit an offense listed in s.
151 775.087(2)(a)1.a.-q., and, during the commission of or attempt
152 to commit the offense, the child:
153 a. Actually possessed a firearm or destructive device, as
154 those terms are defined in s. 790.001.
155 b. Discharged a firearm or destructive device, as described
156 in s. 775.087(2)(a)2.
157 c. Discharged a firearm or destructive device, as described
158 in s. 775.087(2)(a)3., and, as a result of the discharge, death
159 or great bodily harm was inflicted upon any person.
160 2. Upon transfer, any child who is:
161 a. Charged under sub-subparagraph 1.a. and who has been
162 previously adjudicated or had adjudication withheld for a
163 forcible felony offense or any offense involving a firearm, or
164 who has been previously placed in a residential commitment
165 program, shall be subject to sentencing under s. 775.087(2)(a),
166 notwithstanding s. 985.565.
167 b. Charged under sub-subparagraph 1.b. or sub-subparagraph
168 1.c., shall be subject to sentencing under s. 775.087(2)(a),
169 notwithstanding s. 985.565.
170 3. Upon transfer, any child who is charged under this
171 paragraph, but who does not meet the requirements specified in
172 subparagraph 2., shall be sentenced under s. 985.565; however,
173 if the court imposes a juvenile sanction, the court must commit
174 the child to a high-risk or maximum-risk juvenile facility.
175 4. This paragraph shall not apply if the state attorney has
176 good cause to believe that exceptional circumstances exist that
177 preclude the just prosecution of the child in adult court.
178 5. The Department of Corrections shall make every
179 reasonable effort to ensure that any child 16 or 17 years of age
180 who is convicted and sentenced under this paragraph be
181 completely separated such that there is no physical contact with
182 adult offenders in the facility, to the extent that it is
183 consistent with chapter 958.
184 (4) TRANSFER PROHIBITION.—Notwithstanding any other law, a
185 child who is eligible for direct file and who has previously
186 been found to be incompetent but has not been restored to
187 competency by a court may not be transferred to adult court for
188 criminal prosecution. A transferred child who is found to be
189 incompetent must be returned to the jurisdiction of the juvenile
190 court.
191 (5) DATA COLLECTION RELATING TO DIRECT FILE.—
192 (a) Beginning January 1, 2017, the department shall collect
193 data relating to children who qualify for direct file under this
194 section and s. 985.556 regardless of the outcome of the case,
195 including, but not limited to:
196 1. Age.
197 2. Race and ethnicity.
198 3. Gender.
199 4. Circuit and county of residence.
200 5. Circuit and county of offense.
201 6. Prior adjudicated offenses.
202 7. Prior periods of probation.
203 8. Previous contacts with law enforcement agencies or the
204 court which result in a civil citation, arrest, or charges being
205 filed with the state.
206 9. Initial charges.
207 10. Charges at disposition.
208 11. Whether child codefendants were involved who were
209 transferred to adult court.
210 12. Whether the child was represented by counsel.
211 13. Risk assessment instrument score.
212 14. The child’s medical, mental health, substance abuse, or
213 trauma history.
214 15. The child’s history of mental impairment or disability
215 related accommodations.
216 16. The child’s history of abuse or neglect.
217 17. The child’s history of foster care placements,
218 including the number of prior placements.
219 18. Whether the child has below-average intellectual
220 functioning.
221 19. Whether the child has received mental health services
222 or treatment.
223 20. Whether the child has been the subject of a child-in
224 need-of-services or families-in-need-of-services petition or a
225 dependency petition.
226 21. Whether the child was transferred for criminal
227 prosecution as an adult.
228 22. The case resolution in juvenile court.
229 23. The case resolution in adult court.
230 24. Whether the child was represented by counsel or whether
231 the child waived counsel.
232 25. Information generated by the office of the state
233 attorney in each judicial circuit under subparagraph (1)(c)1.
234 (b) Beginning January 1, 2017, for a child transferred for
235 criminal prosecution as an adult, the department shall also
236 collect:
237 1. Disposition data, including, but not limited to, whether
238 the child received adult sanctions, juvenile sanctions, or
239 diversion and, if sentenced to prison, the length of the prison
240 sentence or the enhanced sentence; and
241 2. Whether the child was previously found incompetent to
242 proceed in juvenile court.
243 (c) For every juvenile case transferred between July 1,
244 2015, and June 30, 2016, the department shall work with the
245 Office of Program Policy Analysis and Government Accountability
246 to generate a report analyzing the aggregated data. The
247 department must provide this report to the Governor, the
248 President of the Senate, and the Speaker of the House of
249 Representatives by January 31, 2017.
250 (d) The department must work with the Office of Program
251 Policy Analysis and Government Accountability to generate a
252 report analyzing the aggregated data under paragraphs (a) and
253 (b) on an annual basis. The department must provide this report
254 to the Governor, the President of the Senate, and the Speaker of
255 the House of Representatives no later than January 31 of the
256 following calendar year.
257 Section 3. Subsection (54) of section 985.03, Florida
258 Statutes, is amended to read:
259 985.03 Definitions.—As used in this chapter, the term:
260 (54) “Waiver hearing” means a hearing provided for under s.
261 985.556 s. 985.556(4).
262 Section 4. Subsection (2) of section 985.04, Florida
263 Statutes, is amended to read:
264 985.04 Oaths; records; confidential information.—
265 (2) Notwithstanding any other provisions of this chapter,
266 the name, photograph, address, and crime or arrest report of a
267 child:
268 (a) Taken into custody if the child has been taken into
269 custody by a law enforcement officer for a violation of law
270 which, if committed by an adult, would be a felony;
271 (b) Found by a court to have committed three or more
272 violations of law which, if committed by an adult, would be
273 misdemeanors;
274 (c) Transferred to the adult system under s. 985.557,
275 indicted under s. 985.56, or waived under s. 985.556;
276 (d) Taken into custody by a law enforcement officer for a
277 violation of law subject to s. 985.557(2)(b) or (d); or
278 (d)(e) Transferred to the adult system but sentenced to the
279 juvenile system under s. 985.565
280
281 shall not be considered confidential and exempt from s.
282 119.07(1) solely because of the child’s age.
283 Section 5. Subsection (1) of section 985.15, Florida
284 Statutes, is amended to read:
285 985.15 Filing decisions.—
286 (1) The state attorney may in all cases take action
287 independent of the action or lack of action of the juvenile
288 probation officer and shall determine the action that is in the
289 best interest of the public and the child. If the child meets
290 the criteria requiring prosecution as an adult under s. 985.556,
291 the state attorney shall request the court to transfer and
292 certify the child for prosecution as an adult or shall provide
293 written reasons to the court for not making such a request. In
294 all other cases, The state attorney may:
295 (a) File a petition for dependency;
296 (b) File a petition under chapter 984;
297 (c) File a petition for delinquency;
298 (d) File a petition for delinquency with a motion to
299 transfer and certify the child for prosecution as an adult;
300 (e) File an information under s. 985.557;
301 (f) Refer the case to a grand jury;
302 (g) Refer the child to a diversionary, pretrial
303 intervention, arbitration, or mediation program, or to some
304 other treatment or care program if such program commitment is
305 voluntarily accepted by the child or the child’s parents or
306 legal guardian; or
307 (h) Decline to file.
308 Section 6. Paragraphs (a) and (b) of subsection (4) of
309 section 985.565, Florida Statutes, are amended to read:
310 985.565 Sentencing powers; procedures; alternatives for
311 juveniles prosecuted as adults.—
312 (4) SENTENCING ALTERNATIVES.—
313 (a) Adult sanctions.—
314 1. Cases prosecuted on indictment.—If the child is found to
315 have committed the offense punishable by death or life
316 imprisonment, the child shall be sentenced as an adult. If the
317 juvenile is not found to have committed the indictable offense
318 but is found to have committed a lesser included offense or any
319 other offense for which he or she was indicted as a part of the
320 criminal episode, the court may sentence as follows:
321 a. As an adult;
322 b. Under chapter 958; or
323 c. As a juvenile under this section.
324 2. Other cases.—If a child who has been transferred for
325 criminal prosecution pursuant to information or waiver of
326 juvenile court jurisdiction is found to have committed a
327 violation of state law or a lesser included offense for which he
328 or she was charged as a part of the criminal episode, the court
329 may sentence as follows:
330 a. As an adult;
331 b. Under chapter 958; or
332 c. As a juvenile under this section.
333 3. Notwithstanding any other provision to the contrary, if
334 the state attorney is required to file a motion to transfer and
335 certify the juvenile for prosecution as an adult under s.
336 985.556(3) and that motion is granted, or if the state attorney
337 is required to file an information under s. 985.557(2)(a) or
338 (b), the court must impose adult sanctions.
339 3.4. Any sentence imposing adult sanctions is presumed
340 appropriate, and the court is not required to set forth specific
341 findings or enumerate the criteria in this subsection as any
342 basis for its decision to impose adult sanctions.
343 4.5. When a child has been transferred for criminal
344 prosecution as an adult and has been found to have committed a
345 violation of state law, the disposition of the case may include
346 the enforcement of any restitution ordered in any juvenile
347 proceeding.
348 (b) Juvenile sanctions.—For juveniles transferred to adult
349 court but who do not qualify for such transfer under s.
350 985.556(3) or s. 985.557(2)(a) or (b), The court may impose
351 juvenile sanctions under this paragraph for juveniles
352 transferred to adult court. If juvenile sentences are imposed,
353 the court shall, under this paragraph, adjudge the child to have
354 committed a delinquent act. Adjudication of delinquency shall
355 not be deemed a conviction, nor shall it operate to impose any
356 of the civil disabilities ordinarily resulting from a
357 conviction. The court shall impose an adult sanction or a
358 juvenile sanction and may not sentence the child to a
359 combination of adult and juvenile punishments. An adult sanction
360 or a juvenile sanction may include enforcement of an order of
361 restitution or probation previously ordered in any juvenile
362 proceeding. However, if the court imposes a juvenile sanction
363 and the department determines that the sanction is unsuitable
364 for the child, the department shall return custody of the child
365 to the sentencing court for further proceedings, including the
366 imposition of adult sanctions. Upon adjudicating a child
367 delinquent under subsection (1), the court may:
368 1. Place the child in a probation program under the
369 supervision of the department for an indeterminate period of
370 time until the child reaches the age of 19 years or sooner if
371 discharged by order of the court.
372 2. Commit the child to the department for treatment in an
373 appropriate program for children for an indeterminate period of
374 time until the child is 21 or sooner if discharged by the
375 department. The department shall notify the court of its intent
376 to discharge no later than 14 days prior to discharge. Failure
377 of the court to timely respond to the department’s notice shall
378 be considered approval for discharge.
379 3. Order disposition under ss. 985.435, 985.437, 985.439,
380 985.441, 985.45, and 985.455 as an alternative to youthful
381 offender or adult sentencing if the court determines not to
382 impose youthful offender or adult sanctions.
383
384 It is the intent of the Legislature that the criteria and
385 guidelines in this subsection are mandatory and that a
386 determination of disposition under this subsection is subject to
387 the right of the child to appellate review under s. 985.534.
388 Section 7. For the purpose of incorporating the amendment
389 made by this act to sections 985.556 and 985.557, Florida
390 Statutes, in a reference thereto, subsection (5) of section
391 985.265, Florida Statutes, is reenacted to read:
392 985.265 Detention transfer and release; education; adult
393 jails.—
394 (5) The court shall order the delivery of a child to a jail
395 or other facility intended or used for the detention of adults:
396 (a) When the child has been transferred or indicted for
397 criminal prosecution as an adult under part X, except that the
398 court may not order or allow a child alleged to have committed a
399 misdemeanor who is being transferred for criminal prosecution
400 pursuant to either s. 985.556 or s. 985.557 to be detained or
401 held in a jail or other facility intended or used for the
402 detention of adults; however, such child may be held temporarily
403 in a detention facility; or
404 (b) When a child taken into custody in this state is wanted
405 by another jurisdiction for prosecution as an adult.
406
407 The child shall be housed separately from adult inmates to
408 prohibit a child from having regular contact with incarcerated
409 adults, including trusties. “Regular contact” means sight and
410 sound contact. Separation of children from adults shall permit
411 no more than haphazard or accidental contact. The receiving jail
412 or other facility shall contain a separate section for children
413 and shall have an adequate staff to supervise and monitor the
414 child’s activities at all times. Supervision and monitoring of
415 children includes physical observation and documented checks by
416 jail or receiving facility supervisory personnel at intervals
417 not to exceed 10 minutes. This subsection does not prohibit
418 placing two or more children in the same cell. Under no
419 circumstances shall a child be placed in the same cell with an
420 adult.
421 Section 8. This act shall take effect July 1, 2016.