The Florida Senate

985.233  Sentencing powers; procedures; alternatives for juveniles prosecuted as adults.--

(1)  POWERS OF DISPOSITION.--

(a)  A child who is found to have committed a violation of law may, as an alternative to adult dispositions, be committed to the department for treatment in an appropriate program for children outside the adult correctional system or be placed on juvenile probation.

(b)  In determining whether to impose juvenile sanctions instead of adult sanctions, the court shall consider the following criteria:

1.  The seriousness of the offense to the community and whether the community would best be protected by juvenile or adult sanctions.

2.  Whether the offense was committed in an aggressive, violent, premeditated, or willful manner.

3.  Whether the offense was against persons or against property, with greater weight being given to offenses against persons, especially if personal injury resulted.

4.  The sophistication and maturity of the offender.

5.  The record and previous history of the offender, including:

a.  Previous contacts with the Department of Corrections, the Department of Juvenile Justice, the former Department of Health and Rehabilitative Services, the Department of Children and Family Services, law enforcement agencies, and the courts.

b.  Prior periods of probation.

c.  Prior adjudications that the offender committed a delinquent act or violation of law as a child.

d.  Prior commitments to the Department of Juvenile Justice, the former Department of Health and Rehabilitative Services, the Department of Children and Family Services, or other facilities or institutions.

6.  The prospects for adequate protection of the public and the likelihood of deterrence and reasonable rehabilitation of the offender if assigned to services and facilities of the Department of Juvenile Justice.

7.  Whether the Department of Juvenile Justice has appropriate programs, facilities, and services immediately available.

8.  Whether adult sanctions would provide more appropriate punishment and deterrence to further violations of law than the imposition of juvenile sanctions.

(2)  PRESENTENCE INVESTIGATION REPORT.--

(a)  Upon a plea of guilty, the court may refer the case to the department for investigation and recommendation as to the suitability of its programs for the child.

(b)  Upon completion of the presentence investigation report, it must be made available to the child's counsel and the state attorney by the department prior to the sentencing hearing.

(3)  SENTENCING HEARING.--

(a)  At the sentencing hearing the court shall receive and consider a presentence investigation report by the Department of Corrections regarding the suitability of the offender for disposition as an adult or as a juvenile. The presentence investigation report must include a comments section prepared by the Department of Juvenile Justice, with its recommendations as to disposition. This report requirement may be waived by the offender.

(b)  After considering the presentence investigation report, the court shall give all parties present at the hearing an opportunity to comment on the issue of sentence and any proposed rehabilitative plan. Parties to the case include the parent, guardian, or legal custodian of the offender; the offender's counsel; the state attorney; representatives of the Department of Corrections and the Department of Juvenile Justice; the victim or victim's representative; representatives of the school system; and the law enforcement officers involved in the case.

(c)  The court may receive and consider any other relevant and material evidence, including other reports, written or oral, in its effort to determine the action to be taken with regard to the child, and may rely upon such evidence to the extent of its probative value even if the evidence would not be competent in an adjudicatory hearing.

(d)  The court shall notify any victim of the offense of the hearing and shall notify, or subpoena if appropriate, the parents, guardians, or legal custodians of the child to attend the disposition hearing.

(4)  SENTENCING ALTERNATIVES.--

(a)  Sentencing to adult sanctions.--

1.  Cases prosecuted on indictment.--If the child is found to have committed the offense punishable by death or life imprisonment, the child shall be sentenced as an adult. If the juvenile is not found to have committed the indictable offense but is found to have committed a lesser included offense or any other offense for which he or she was indicted as a part of the criminal episode, the court may sentence as follows:

a.  As an adult;

b.  Pursuant to chapter 958; or

c.  As a juvenile pursuant to this section.

2.  Other cases.--If a child who has been transferred for criminal prosecution pursuant to information or waiver of juvenile court jurisdiction is found to have committed a violation of state law or a lesser included offense for which he or she was charged as a part of the criminal episode, the court may sentence as follows:

a.  As an adult;

b.  Pursuant to chapter 958; or

c.  As a juvenile pursuant to this section.

3.  Notwithstanding any other provision to the contrary, if the state attorney is required to file a motion to transfer and certify the juvenile for prosecution as an adult pursuant to s. 985.226(2)(b) and that motion is granted, or if the state attorney is required to file an information pursuant to s. 985.227(2)(a) or (b), the court must impose adult sanctions.

4.  Any sentence imposing adult sanctions is presumed appropriate, and the court is not required to set forth specific findings or enumerate the criteria in this subsection as any basis for its decision to impose adult sanctions.

5.  When a child has been transferred for criminal prosecution as an adult and has been found to have committed a violation of state law, the disposition of the case may include the enforcement of any restitution ordered in any juvenile proceeding.

(b)  Sentencing to juvenile sanctions.--For juveniles transferred to adult court but who do not qualify for such transfer pursuant to s. 985.226(2)(b) or s. 985.227(2)(a) or (b), the court may impose juvenile sanctions under this paragraph. If juvenile sentences are imposed, the court shall, pursuant to this paragraph, adjudge the child to have committed a delinquent act. Adjudication of delinquency shall not be deemed a conviction, nor shall it operate to impose any of the civil disabilities ordinarily resulting from a conviction. The court shall impose an adult sanction or a juvenile sanction and may not sentence the child to a combination of adult and juvenile punishments. An adult sanction or a juvenile sanction may include enforcement of an order of restitution or probation previously ordered in any juvenile proceeding. However, if the court imposes a juvenile sanction and the department determines that the sanction is unsuitable for the child, the department shall return custody of the child to the sentencing court for further proceedings, including the imposition of adult sanctions. Upon adjudicating a child delinquent under subsection (1), the court may:

1.  Place the child in a probation program under the supervision of the department for an indeterminate period of time until the child reaches the age of 19 years or sooner if discharged by order of the court.

2.  Commit the child to the department for treatment in an appropriate program for children for an indeterminate period of time until the child is 21 or sooner if discharged by the department. The department shall notify the court of its intent to discharge no later than 14 days prior to discharge. Failure of the court to timely respond to the department's notice shall be considered approval for discharge.

3.  Order disposition pursuant to s. 985.231 as an alternative to youthful offender or adult sentencing if the court determines not to impose youthful offender or adult sanctions.

(c)  Imposition of adult sanctions upon failure of juvenile sanctions.--If a child proves not to be suitable to a commitment program, in a juvenile probation program, or treatment program under the provisions of paragraph (b), the department shall provide the sentencing court with a written report outlining the basis for its objections to the juvenile sanction and shall simultaneously provide a copy of the report to the state attorney and the defense counsel. The department shall schedule a hearing within 30 days. Upon hearing, the court may revoke the previous adjudication, impose an adjudication of guilt, and impose any sentence which it may lawfully impose, giving credit for all time spent by the child in the department. The court may also classify the child as a youthful offender pursuant to s. 958.04, if appropriate. For purposes of this paragraph, a child may be found not suitable to a commitment program, community control program, or treatment program under the provisions of paragraph (b) if the child commits a new violation of law while under juvenile sanctions, if the child commits any other violation of the conditions of juvenile sanctions, or if the child's actions are otherwise determined by the court to demonstrate a failure of juvenile sanctions.

¹(d)  Recoupment of cost of care in juvenile justice facilities.--

1.  When the court orders commitment of a child to the Department of Juvenile Justice for treatment in any of the department's programs for children, the court shall order the parents of such child to pay fees in the amount of $5 per day that the child is under the care or supervision of the department in order to partially offset the cost of the care, support, maintenance, and other usual and ordinary obligations of parents to provide for the needs of their children, unless the court makes a finding on the record that the parent or legal guardian of the child is indigent.

2.  Prior to commitment, the department shall provide the court with information concerning the actual cost of care in the recommended residential commitment level and concerning the ability of the parent or guardian of the child to pay specified fees. If the court makes a finding of indigency, the parent or guardian shall pay to the department a nominal subsistence fee of $2 per day that the child is committed outside the home or $1 per day if the child is otherwise supervised in lieu of other fees related to the parent's obligation for the child's cost of care. The nominal subsistence fee may only be waived or reduced if the court makes a finding that such payment would constitute a significant financial hardship. Such finding shall be in writing and shall contain a detailed description of the facts that led the court to make both the finding of indigency and the finding of significant financial hardship.

3.  In addition, the court may reduce the fees or waive the fees as to each parent or guardian if the court makes a finding on the record that the parent or guardian was the victim of the delinquent act or violation of law for which the child is subject to commitment under this section and that the parent or guardian has cooperated in the investigation and prosecution of the offense. When the order affects the guardianship estate, a certified copy of the order shall be delivered to the judge having jurisdiction of the guardianship estate.

4.  All orders committing a child to a residential commitment program shall include specific findings as to what fees are ordered, reduced, or waived. If the court fails to enter an order as required by this paragraph, it shall be presumed that the court intended the parent or guardian to pay fees to the department in an amount of $5 per day related to the care, support, and maintenance of the child. With regard to a child who reaches the age of 18 prior to the disposition hearing, the court may elect to direct an order required by this paragraph to such child, rather than the parent or guardian. With regard to a child who reaches the age of 18 while in the custody of the department, the court may, upon proper motion of any party, hold a hearing as to whether any party should be further obligated respecting the payment of fees.

5.  The clerk of the circuit court shall act as a depository for these fees. Upon each payment received, the clerk of the circuit court shall receive a fee from the total payment of 3 percent of any payment made except that no fee shall be less than $1 nor more than $5 per payment made. This fee shall serve as a service charge for the administration, management, and maintenance of each payment. At the end of each month, the clerk of the circuit court shall send all money collected under this section to the state Grants and Donations Trust Fund.

6.  The parent or guardian shall provide to the department the parent or guardian's name, address, social security number, date of birth, and driver's license number or identification card number and sufficient financial information for the department to be able to determine the parent or guardian's ability to pay. If the parent or guardian refuses to provide the department with any identifying information or financial information, the court shall order the parent to comply and may pursue contempt of court sanctions for failure to comply.

7.  The department may employ a collection agency for the purpose of receiving, collecting, and managing the payment of unpaid and delinquent fees. The collection agency must be registered and in good standing under chapter 559. The department may pay to the collection agency a fee from the amount collected under the claim or may authorize the agency to deduct the fee from the amount collected. The department may also pay for collection services from available authorized funds. The Department of Juvenile Justice shall provide to the payor documentation of any amounts paid by the payor to the Department of Juvenile Justice on behalf of the child. All payments received by the department pursuant to this subsection shall be deposited in the state Grants and Donations Trust Fund.

8.  Neither the court nor the department may extend the child's length of stay in commitment care solely for the purpose of collecting fees.

(e)  Further proceedings heard in adult court.--When a child is sentenced to juvenile sanctions, further proceedings involving those sanctions shall continue to be heard in the adult court.

(f)  School attendance.--If the child is attending or is eligible to attend public school and the court finds that the victim or a sibling of the victim in the case is attending or may attend the same school as the child, the court placement order shall include a finding pursuant to the proceeding described in s. 985.23(1)(d).

It is the intent of the Legislature that the criteria and guidelines in this subsection are mandatory and that a determination of disposition under this subsection is subject to the right of the child to appellate review under s. 985.234.

History.--s. 1, ch. 97-69; s. 41, ch. 97-238; s. 3, ch. 2000-119; s. 13, ch. 2000-134; s. 32, ch. 2000-135; ss. 26, 27, ch. 2001-125.

¹Note.--Section 26, ch. 2001-125, provides for retroactive operation to July 1, 2000.