Florida Senate - 2019                                     SB 876
       
       
        
       By Senator Powell
       
       
       
       
       
       30-00879-19                                            2019876__
    1                        A bill to be entitled                      
    2         An act relating to juvenile justice; amending s.
    3         985.557, F.S.; authorizing a child transferred to
    4         adult court under certain provisions, or the child’s
    5         defense counsel, to request in writing a hearing for a
    6         certain determination; requiring a judge to conduct
    7         the hearing within a certain timeframe after the
    8         filing of the request; providing an exception;
    9         requiring the judge to consider specified factors;
   10         authorizing the judge to consider specified records;
   11         providing for the right of specified persons at the
   12         hearing to examine the records and question the
   13         persons who created the records; requiring the adult
   14         court to retain jurisdiction unless the court finds by
   15         a preponderance of the evidence that certain factors
   16         support returning the child to juvenile court;
   17         requiring the adult court to render an order on its
   18         decision; providing for review on appeal; providing an
   19         effective date.
   20          
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. Section 985.557, Florida Statutes, is amended to
   24  read:
   25         985.557 Direct filing of an information; discretionary and
   26  mandatory criteria.—
   27         (1) DISCRETIONARY DIRECT FILE.—
   28         (a) With respect to any child who was 14 or 15 years of age
   29  at the time the alleged offense was committed, the state
   30  attorney may file an information when in the state attorney’s
   31  judgment and discretion the public interest requires that adult
   32  sanctions be considered or imposed and when the offense charged
   33  is for the commission of, attempt to commit, or conspiracy to
   34  commit any of the following:
   35         1. Arson.;
   36         2. Sexual battery.;
   37         3. Robbery.;
   38         4. Kidnapping.;
   39         5. Aggravated child abuse.;
   40         6. Aggravated assault.;
   41         7. Aggravated stalking.;
   42         8. Murder.;
   43         9. Manslaughter.;
   44         10. Unlawful throwing, placing, or discharging of a
   45  destructive device or bomb.;
   46         11. Armed burglary in violation of s. 810.02(2)(b) or
   47  specified burglary of a dwelling or structure in violation of s.
   48  810.02(2)(c), or burglary with an assault or battery in
   49  violation of s. 810.02(2)(a).;
   50         12. Aggravated battery.;
   51         13. Any lewd or lascivious offense committed upon or in the
   52  presence of a person less than 16 years of age.;
   53         14. Carrying, displaying, using, threatening, or attempting
   54  to use a weapon or firearm during the commission of a felony.;
   55         15. Grand theft in violation of s. 812.014(2)(a).;
   56         16. Possessing or discharging any weapon or firearm on
   57  school property in violation of s. 790.115.;
   58         17. Home invasion robbery.;
   59         18. Carjacking.; or
   60         19. Grand theft of a motor vehicle in violation of s.
   61  812.014(2)(c)6. or grand theft of a motor vehicle valued at
   62  $20,000 or more in violation of s. 812.014(2)(b) if the child
   63  has a previous adjudication for grand theft of a motor vehicle
   64  in violation of s. 812.014(2)(c)6. or s. 812.014(2)(b).
   65         (b) With respect to any child who was 16 or 17 years of age
   66  at the time the alleged offense was committed, the state
   67  attorney may file an information when in the state attorney’s
   68  judgment and discretion the public interest requires that adult
   69  sanctions be considered or imposed. However, the state attorney
   70  may not file an information on a child charged with a
   71  misdemeanor, unless the child has had at least two previous
   72  adjudications or adjudications withheld for delinquent acts, one
   73  of which involved an offense classified as a felony under state
   74  law.
   75         (2) MANDATORY DIRECT FILE.—
   76         (a) With respect to any child who was 16 or 17 years of age
   77  at the time the alleged offense was committed, the state
   78  attorney shall file an information if the child has been
   79  previously adjudicated delinquent for an act classified as a
   80  felony, which adjudication was for the commission of, attempt to
   81  commit, or conspiracy to commit murder, sexual battery, armed or
   82  strong-armed robbery, carjacking, home-invasion robbery,
   83  aggravated battery, or aggravated assault, and the child is
   84  currently charged with a second or subsequent violent crime
   85  against a person.
   86         (b) With respect to any child 16 or 17 years of age at the
   87  time an offense classified as a forcible felony, as defined in
   88  s. 776.08, was committed, the state attorney shall file an
   89  information if the child has previously been adjudicated
   90  delinquent or had adjudication withheld for three acts
   91  classified as felonies each of which occurred at least 45 days
   92  apart from each other. This paragraph does not apply when the
   93  state attorney has good cause to believe that exceptional
   94  circumstances exist which preclude the just prosecution of the
   95  juvenile in adult court.
   96         (c) The state attorney must file an information if a child,
   97  regardless of the child’s age at the time the alleged offense
   98  was committed, is alleged to have committed an act that would be
   99  a violation of law if the child were an adult, that involves
  100  stealing a motor vehicle, including, but not limited to, a
  101  violation of s. 812.133, relating to carjacking, or s.
  102  812.014(2)(c)6., relating to grand theft of a motor vehicle, and
  103  while the child was in possession of the stolen motor vehicle
  104  the child caused serious bodily injury to or the death of a
  105  person who was not involved in the underlying offense. For
  106  purposes of this section, the driver and all willing passengers
  107  in the stolen motor vehicle at the time such serious bodily
  108  injury or death is inflicted shall also be subject to mandatory
  109  transfer to adult court. “Stolen motor vehicle,” for the
  110  purposes of this section, means a motor vehicle that has been
  111  the subject of any criminal wrongful taking. For purposes of
  112  this section, “willing passengers” means all willing passengers
  113  who have participated in the underlying offense.
  114         (d)1. With respect to any child who was 16 or 17 years of
  115  age at the time the alleged offense was committed, the state
  116  attorney shall file an information if the child has been charged
  117  with committing or attempting to commit an offense listed in s.
  118  775.087(2)(a)1.a.-p., and, during the commission of or attempt
  119  to commit the offense, the child:
  120         a. Actually possessed a firearm or destructive device, as
  121  those terms are defined in s. 790.001.
  122         b. Discharged a firearm or destructive device, as described
  123  in s. 775.087(2)(a)2.
  124         c. Discharged a firearm or destructive device, as described
  125  in s. 775.087(2)(a)3., and, as a result of the discharge, death
  126  or great bodily harm was inflicted upon any person.
  127         2. Upon transfer, any child who is:
  128         a. Charged under sub-subparagraph 1.a. and who has been
  129  previously adjudicated or had adjudication withheld for a
  130  forcible felony offense or any offense involving a firearm, or
  131  who has been previously placed in a residential commitment
  132  program, shall be subject to sentencing under s. 775.087(2)(a),
  133  notwithstanding s. 985.565.
  134         b. Charged under sub-subparagraph 1.b. or sub-subparagraph
  135  1.c., shall be subject to sentencing under s. 775.087(2)(a),
  136  notwithstanding s. 985.565.
  137         3. Upon transfer, any child who is charged under this
  138  paragraph, but who does not meet the requirements specified in
  139  subparagraph 2., shall be sentenced under s. 985.565; however,
  140  if the court imposes a juvenile sanction, the court must commit
  141  the child to a high-risk or maximum-risk juvenile facility.
  142         4. This paragraph shall not apply if the state attorney has
  143  good cause to believe that exceptional circumstances exist that
  144  preclude the just prosecution of the child in adult court.
  145         5. The Department of Corrections shall make every
  146  reasonable effort to ensure that any child 16 or 17 years of age
  147  who is convicted and sentenced under this paragraph be
  148  completely separated such that there is no physical contact with
  149  adult offenders in the facility, to the extent that it is
  150  consistent with chapter 958.
  151         (3) EFFECT OF DIRECT FILE.—
  152         (a) Once a child has been transferred for criminal
  153  prosecution pursuant to an information and has been found to
  154  have committed the presenting offense or a lesser included
  155  offense, the child shall be handled thereafter in every respect
  156  as if an adult for any subsequent violation of state law, unless
  157  the court imposes juvenile sanctions under s. 985.565.
  158         (b) When a child is transferred for criminal prosecution as
  159  an adult, the court shall immediately transfer and certify to
  160  the adult circuit court all felony cases pertaining to the
  161  child, for prosecution of the child as an adult, which have not
  162  yet resulted in a plea of guilty or nolo contendere or in which
  163  a finding of guilt has not been made. If a child is acquitted of
  164  all charged offenses or lesser included offenses contained in
  165  the original case transferred to adult court, all felony cases
  166  that were transferred to adult court as a result of this
  167  paragraph shall be subject to the same penalties to which such
  168  cases would have been subject before being transferred to adult
  169  court.
  170         (c) When a child has been transferred for criminal
  171  prosecution as an adult and has been found to have committed a
  172  violation of state law, the disposition of the case may be made
  173  under s. 985.565 and may include the enforcement of any
  174  restitution ordered in any juvenile proceeding.
  175         (4) CHARGES INCLUDED ON INFORMATION.—An information filed
  176  pursuant to this section may include all charges that are based
  177  on the same act, criminal episode, or transaction as the primary
  178  offenses.
  179         (5)HEARING BEFORE JUDGE.—A child who is transferred to
  180  adult court under this section or s. 985.56, or the child’s
  181  defense counsel, may request in writing a hearing to determine
  182  whether the child must remain in adult court.
  183         (a)The judge shall conduct the hearing within 30 days,
  184  excluding weekends and legal holidays, after the filing of the
  185  request, unless good cause is shown for a delay. The purpose of
  186  the hearing is for the court to determine whether it is
  187  necessary for protection of the community that the child is
  188  prosecuted in adult court. The judge shall consider all of the
  189  following:
  190         1.The recommendation of the department, through review and
  191  consideration of the recommendations of the department’s
  192  caseworker.
  193         2.The sophistication and maturity of the child, including:
  194         a.The effect, if any, of immaturity, impetuosity, or
  195  failure to appreciate risks and consequences on the child’s
  196  participation in the offense.
  197         b.The child’s age, maturity, intellectual capacity, and
  198  mental and emotional health at the time of the offense.
  199         c.The effect, if any, of characteristics attributable to
  200  the child’s youth on the child’s judgment.
  201         3.The record and history of the child, including:
  202         a.Prior contacts with the department, the Department of
  203  Corrections, the Department of Children and Families, other law
  204  enforcement agencies, or the courts.
  205         b.Prior periods of probation.
  206         c.Prior adjudications that the child committed a
  207  delinquent act or violation of law, with greater weight being
  208  given if the child has previously been found by a court to have
  209  committed a delinquent act or violation of law involving
  210  violence to persons.
  211         d.Prior commitments to institutions of the department, the
  212  Department of Corrections, or agencies under contract with
  213  either department.
  214         e.Patterns of criminality or patterns of escalation.
  215         f.History of trauma, abuse or neglect, foster care
  216  placements, failed adoption, fetal alcohol syndrome, exposure to
  217  controlled substances at birth, or below-average intellectual
  218  functioning.
  219         g.Identification of the child as a student requiring
  220  exceptional student education or having previously received
  221  psychological services.
  222         h.Whether the child has previously been convicted and
  223  sentenced as an adult.
  224         4.The nature of the alleged offense and the child’s
  225  participation, including:
  226         a.Whether the offense is punishable by death or life
  227  imprisonment.
  228         b.Whether the offense was against persons or property.
  229         c.Whether the offense is alleged to have been committed in
  230  an aggressive, violent, or premeditated manner.
  231         d.The extent of the child’s alleged participation in the
  232  offense.
  233         e.The effect, if any, of familial pressure or peer
  234  pressure on the child’s actions.
  235         5.The prospects for adequate protection of the public and
  236  the likelihood of reasonable rehabilitation of the child, if the
  237  child is found to have committed the alleged offense:
  238         a.By the use of procedures, services, and facilities
  239  currently available to the juvenile court.
  240         b.By the use of procedures, services, and facilities
  241  currently available to the adult court, including whether the
  242  lowest permissible sentence under the Criminal Punishment Code
  243  is a nonstate prison sanction.
  244         6.Cost-effective alternatives available to divert the
  245  child from the criminal justice system and the juvenile justice
  246  system and offer rehabilitative services for the child.
  247         7.Whether the child could obtain habilitative or
  248  rehabilitative services available in the juvenile justice
  249  system.
  250         8.Whether the child could receive a sentence in juvenile
  251  court that would provide adequate safety and protection for the
  252  community.
  253         9.Whether the child’s best interests would be served by
  254  prosecuting the child in juvenile court.
  255         (b)The judge may consider any reports that may assist him
  256  or her, including prior pre-disposition reports, psycho-social
  257  assessments, individualized educational programs, developmental
  258  assessments, school records, abuse or neglect reports, home
  259  studies, protective investigations, or psychological or
  260  psychiatric evaluations. The child, the child’s parents or legal
  261  guardians, the child’s defense counsel, and the state attorney
  262  have the right to examine these records and to question the
  263  parties responsible for creating them at the hearing.
  264         (c)The adult court shall retain jurisdiction unless the
  265  court finds by a preponderance of the evidence that the factors
  266  listed in subsection (a) support returning the child to juvenile
  267  court.
  268         (d)The adult court shall render an order including
  269  specific findings of fact and the reasons for its decision. The
  270  order is reviewable on appeal under s. 985.534 and the Florida
  271  Rules of Appellate Procedure.
  272         Section 2. This act shall take effect July 1, 2019.