CODING: Words stricken are deletions; words underlined are additions.


H

Senator Gutman moved the following amendment:



                                                  SENATE AMENDMENT

    Bill No. CS for CS for SB 646

    Amendment No.    

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11  Senator Gutman moved the following amendment:

12

13         Senate Amendment (with title amendment) 

14         Delete everything after the enacting clause

15

16  and insert:

17         Section 1.  This act shall be known and may be cited as

18  the "Jimmy Ryce Involuntary Civil Commitment for Sexually

19  Violent Predators' Treatment and Care Act."

20         Section 2.  Section 916.30, Florida Statutes, is

21  created to read:

22         916.30  Legislative findings and intent.--The

23  Legislature finds that a small but extremely dangerous number

24  of sexually violent predators exist who do not have a mental

25  disease or defect that renders them appropriate for

26  involuntary treatment under the Baker Act, ss.

27  394.451-394.4789, which is intended to provide short-term

28  treatment to individuals with serious mental disorders and

29  then return them to the community. In contrast to persons

30  appropriate for civil commitment under the Baker Act, sexually

31  violent predators generally have antisocial personality

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 1  features which are unamenable to existing mental illness

 2  treatment modalities and those features render them likely to

 3  engage in criminal, sexually violent behavior. The Legislature

 4  further finds that the likelihood of sexually violent

 5  predators engaging in repeat acts of predatory sexual violence

 6  is high. The existing involuntary commitment procedures under

 7  the Baker Act for the treatment and care of mentally ill

 8  persons are inadequate to address the risk these sexually

 9  violent predators pose to society. The Legislature further

10  finds that the prognosis for rehabilitating sexually violent

11  predators in a prison setting is poor, the treatment needs of

12  this population are very long term, and the treatment

13  modalities for this population are very different than the

14  traditional treatment modalities for people appropriate for

15  commitment under the Baker Act. It is therefore the intent of

16  the Legislature to create a civil commitment procedure for the

17  long-term care and treatment of sexually violent predators.

18         Section 3.  Section 916.31, Florida Statutes, is

19  created to read:

20         916.31  Definitions.--As used in ss. 916.30-916.43, the

21  term:

22         (1)  "Agency with jurisdiction" means the agency with

23  the authority to direct the release of a person serving a

24  sentence in the custody of the Department of Corrections, a

25  person adjudicated delinquent and committed to the custody of

26  the Department of Juvenile Justice, or a person who was

27  involuntarily committed to the custody of the Department of

28  Children and Family Services upon an adjudication of not

29  guilty by reason of insanity.

30         (2)  "Court" means the circuit court which would have

31  adjudicated or sentenced, or did adjudicate or sentence, the

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 1  person for the most recent sexually violent offense.

 2         (3)  "Mental abnormality" means a congenital or

 3  acquired condition affecting the emotional or volitional

 4  capacity which predisposes the person to commit sexually

 5  violent offenses in a degree such that the person constitutes

 6  a menace to the health and safety of others.

 7         (4)  "Overt act" means any act that either causes harm

 8  of a sexually violent nature or creates a reasonable

 9  apprehension that such harm will occur.

10         (5)  "Predatory" means acts directed toward another

11  person for the primary purpose of victimization.

12         (6)  "Sexually motivated" means that one of the

13  purposes for which the defendant committed the crime was for

14  the purpose of the defendant's sexual gratification.

15         (7)  "Sexually violent offense" means:

16         (a)  Murder of any person as part of a sexual battery

17  in violation of s. 782.04(1)(a)2.;

18         (b)  Sexual battery of any person in violation of s.

19  794.011;

20         (c)  Lewd, lascivious, or indecent assault upon or act

21  upon or in the presence of a person in violation of s. 800.04;

22         (d)  Procuring a person for prostitution in violation

23  of s. 796.03 or s. 796.04 and s. 787.01(3)(a);

24         (e)  Purchasing or obtaining custody or control, or

25  offering to purchase or obtain custody or control, of a person

26  to engage in sexually explicit conduct as defined by s.

27  847.0145;

28         (f)  Any conviction for a felony offense in effect at

29  any time before the effective date of this act that is

30  comparable to a sexually violent offense as defined in

31  paragraphs (a)-(e) or any federal conviction or conviction in

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 1  another state for a felony offense that in this state would be

 2  a sexually violent offense;

 3         (g) An attempt, criminal solicitation, or conspiracy,

 4  in violation of s. 777.04, of a sexually violent offense; or

 5         (h)  Any act that either at the time of sentencing or

 6  adjudication for the offense or subsequently during civil

 7  commitment proceedings under this act has been determined

 8  beyond a reasonable doubt to have been sexually motivated.

 9         (8)  "Sexually violent predator" means any person who

10  has been convicted of or charged with a sexually violent

11  offense and who suffers from a mental abnormality or

12  personality disorder that makes the person likely to engage in

13  predatory acts of sexual violence if not confined in a secure

14  facility.

15         (9)  "State attorney" means the state attorney for the

16  county where the person was charged for a sexually violent

17  offense most recently, or, upon request of this state

18  attorney, the Attorney General.

19         Section 4.  Section 916.32, Florida Statutes, is

20  created to read:

21         916.32  Notice to state attorney of release of sexually

22  violent predator; immunity from liability.--

23         (1)  When it appears that the person may meet the

24  criteria of a sexually violent predator, as defined in s.

25  916.31, the agency with jurisdiction shall give written notice

26  of that fact to the state attorney of the county 180 days

27  before:

28         (a)  The anticipated release from total confinement

29  from the Department of Corrections or the Department of

30  Juvenile Justice of a person who has been convicted of a

31  sexually violent offense;

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 1         (b)  The anticipated release of a person who has been

 2  charged with a sexually violent offense and who has been

 3  determined to be incompetent to stand trial under s. 916.12;

 4         (c)  The anticipated release of a person who has been

 5  adjudicated not guilty by reason of insanity of a sexually

 6  violent offense and involuntarily committed under s. 916.15;

 7  or

 8         (d)  The anticipated release from a juvenile

 9  delinquency commitment program of a person found to have

10  committed a sexually violent offense as a juvenile.

11         (2)  The agency with jurisdiction shall provide to the

12  state attorney all relevant information, including, but not

13  limited to:

14         (a)  The person's name, identifying factors,

15  anticipated future residence, and offense history.

16         (b)  A complete copy of the institutional records

17  compiled by the agency with jurisdiction relating to the

18  person and any out-of-state correctional records, if

19  available.

20         (c)  All records relating to the psychological or

21  psychiatric evaluation and treatment of the person.

22         (3)  The agency with jurisdiction and the state

23  attorney, and their employees and individuals contracting,

24  appointed, or volunteering to perform services, are immune

25  from liability for any good-faith conduct under this section.

26         Section 5.  Section 916.33, Florida Statutes, is

27  created to read:

28         916.33  Petition; contents.--When it appears that a

29  person presently confined may be a sexually violent predator

30  or it appears that a person who is not presently confined but

31  who has previously been convicted of a sexually violent

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 1  offense has committed a recent overt act and the state

 2  attorney has determined that the person meets the definition

 3  of a "sexually violent predator," the state attorney may file

 4  a petition alleging that the person is a sexually violent

 5  predator and stating sufficient facts to support the

 6  allegation.

 7         Section 6.  Section 916.34, Florida Statutes, is

 8  created to read:

 9         916.34  Determination of probable cause; respondent

10  taken into custody; evaluation.--Upon the filing of a petition

11  under s. 916.33, the court shall make a nonadversarial

12  determination whether the petition sets forth sufficient

13  grounds to believe probable cause exists that the respondent

14  is a sexually violent predator.  If the court finds probable

15  cause to believe that the respondent is a sexually violent

16  predator, the court shall direct that the respondent be taken

17  into custody and transferred to an appropriate secure

18  facility, for an evaluation as to whether the respondent is a

19  sexually violent predator.  The evaluation shall be conducted

20  by a person who is professionally qualified to conduct such an

21  examination.

22         Section 7.  Section 916.35, Florida Statutes, is

23  created to read:

24         916.35  Trial; counsel and experts; indigent persons;

25  jury.--

26         (1)  Within 60 days after the filing of a petition

27  pursuant to s. 916.33, the court shall conduct a trial to

28  determine whether the person is a sexually violent predator.

29  The trial may be continued upon a showing of good cause by

30  either party or by the court on its own motion in the due

31  administration of justice and when the person will not be

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 1  substantially prejudiced.

 2         (2)  At all adversarial proceedings under this act, the

 3  person subject to this act shall be entitled to the assistance

 4  of counsel and, if the person is indigent, the court shall

 5  appoint the public defender or, if a conflict exists, other

 6  counsel to assist the person. Whenever any person is subjected

 7  to an examination under this act, the person may retain

 8  qualified professionals to perform an examination of the

 9  person on his or her own behalf. When the person wishes to be

10  examined by a qualified professional of his or her own choice,

11  the examiner shall be permitted to have reasonable access to

12  the person, for the purpose of the examination, and to all

13  relevant medical and psychological records and reports. In the

14  case of a person who is indigent, the court, upon the person's

15  request, shall assist the person in obtaining a qualified

16  professional to perform an examination or participate in the

17  trial on the person's behalf and shall order reasonable

18  compensation for such services as provided in s. 914.06.

19         (3)  The person or the state attorney may demand, or

20  the court on its own motion may order, that the trial be held

21  before a jury of six persons. This demand for a trial by jury

22  shall be filed, in writing, or the order entered, at least 4

23  days before the trial. If no demand or order is made, the

24  trial shall be held before the court.

25         Section 8.  Section 916.36, Florida Statutes, is

26  created to read:

27         916.36  Determination; commitment procedure;

28  mistrials.--

29         (1)  The court or jury shall determine whether, beyond

30  a reasonable doubt, the person is a sexually violent predator.

31  When the determination is made by a jury, the verdict must be

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 1  unanimous. Such determination may be appealed.

 2         (2)  If the court or jury determines that the person is

 3  a sexually violent predator, the person shall be committed to

 4  the custody of the Department of Children and Family Services

 5  for control, care, and treatment until such time as the

 6  person's mental abnormality or personality disorder has so

 7  changed that the person is safe to be at large. Such control,

 8  care, and treatment shall be provided at a facility operated

 9  by the Department of Children and Family Services. At all

10  times, sexually violent predators who are committed for

11  control, care, and treatment by the Department of Children and

12  Family Services under this section shall be kept in a secure

13  facility segregated from patients who are not committed under

14  this section.

15         (3)  If the court or jury is not satisfied beyond a

16  reasonable doubt that the person is a sexually violent

17  predator, the court shall direct the person's release. If a

18  mistrial is declared, the court shall direct that the person

19  be held at an appropriate secure facility until another trial

20  is conducted. Any subsequent trial following a mistrial must

21  be held within 60 days after the previous trial.

22         (4)  If a person charged with a sexually violent

23  offense has been found incompetent to stand trial and is about

24  to be released pursuant to s. 916.13 or s. 916.17 and such

25  person's commitment is sought under subsection (2), the court

26  shall first hear evidence and determine whether the person did

27  commit the act or acts charged. The hearing on this issue must

28  comply with all the procedures specified in this section. In

29  addition, the rules of evidence applicable in criminal cases

30  shall apply, and all constitutional rights available to

31  defendants at a criminal trial, other than the right not to be

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 1  tried while incompetent, shall apply. After hearing evidence

 2  on this issue, the court shall make specific findings on

 3  whether the person did commit the act or acts charged, the

 4  extent to which the person's incompetence or developmental

 5  disability affected the outcome of the hearing, including its

 6  effect on the person's ability to consult with and assist

 7  counsel and to testify on his or her own behalf, the extent to

 8  which the evidence could be reconstructed without the

 9  assistance of the person, and the strength of the

10  prosecution's case. If, after the conclusion of the hearing on

11  this issue, the court finds beyond a reasonable doubt that the

12  person did commit the act or acts charged, the court shall

13  enter a final order, appealable by the person, on that issue

14  and may proceed to consider whether the person should be

15  committed pursuant to this section.

16         Section 9.  Section 916.37, Florida Statutes, is

17  created to read:

18         916.37  Annual examination.--Each person committed

19  under s. 916.36 shall have an examination of his or her mental

20  condition made once every year. The committed person may

21  retain a qualified professional to examine such person, and

22  the qualified professional shall have access to all records

23  concerning the person. If the committed person is indigent and

24  so requests, the court may appoint a qualified professional to

25  examine the person. This yearly report shall be provided to

26  the court that committed the person and to the state attorney.

27  The court shall conduct an annual review of the status of the

28  committed person. Nothing contained in this act shall prohibit

29  the person from otherwise petitioning the court for discharge

30  at this hearing.

31         Section 10.  Section 916.38, Florida Statutes, is

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 1  created to read:

 2         916.38  Detention and commitment to conform to

 3  constitutional requirements.--The involuntary detention or

 4  commitment of persons under this act shall conform to

 5  constitutional requirements for care and treatment.

 6         Section 11.  Section 916.39, Florida Statutes, is

 7  created to read:

 8         916.39  Petition for release; procedure.--

 9         (1)  If the Department of Children and Family Services

10  determines that the mental abnormality or personality disorder

11  of a person committed as a sexually violent predator has so

12  changed that the person is not likely to commit predatory acts

13  of sexual violence if released, the department shall authorize

14  the person to petition the court for release. The petition

15  shall be served upon the court and the state attorney. The

16  court, upon receipt of the petition for release, shall order a

17  hearing within 30 days. The state attorney shall represent the

18  state and shall have the right to have the committed person

19  examined by a qualified professional of the state attorney's

20  choice. The hearing shall be before a jury if demanded by

21  either the committed person or the state attorney. The burden

22  of proof shall be upon the state attorney to show beyond a

23  reasonable doubt that the committed person's mental

24  abnormality or personality disorder remains such that the

25  person is not safe to be at large, and that, if discharged,

26  the person is likely to commit predatory acts of sexual

27  violence.

28         (2)  A person committed as a sexually violent predator

29  may petition the court for discharge without the approval of

30  the Department of Children and Family Services. The department

31  shall provide the committed person with an annual written

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 1  notice of the person's right to petition the court for

 2  discharge over the department's objection. The notice shall

 3  contain a waiver of this right if the committed person does

 4  not choose to petition the court. The department shall forward

 5  the notice and signed waiver form or the committed person's

 6  petition to the court with the annual report. If the committed

 7  person files a petition for discharge over the department's

 8  objection, the court shall review the petition to determine

 9  whether there are reasonable grounds to support the petition.

10  If the court finds that the petition is based upon frivolous

11  grounds, it shall deny the petition without a hearing. If the

12  court finds that the petition is based upon reasonable

13  grounds, the court shall set a show cause hearing to determine

14  whether facts exist that warrant an adversarial hearing on

15  whether the committed person's condition has so changed that

16  he or she is safe to be discharged. The committed person has

17  the right to have an attorney present to represent the person

18  at the show cause hearing, but the committed person is not

19  entitled to be present at the show cause hearing. If the court

20  at the show cause hearing determines that probable cause

21  exists to believe that the committed person's mental

22  abnormality or personality disorder has so changed that the

23  person is safe to be at large and will not likely engage in

24  acts of sexual violence if discharged, then the court shall

25  set an adversarial hearing. At the adversarial hearing, the

26  committed person shall be entitled to be present and entitled

27  to the benefit of all constitutional protections that the

28  person was entitled to at the initial commitment proceeding.

29  The state attorney shall represent the state and shall have

30  the right to a trial by jury and to have the committed person

31  evaluated by experts chosen by the state. The committed person

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 1  shall also have the right to have experts evaluate the person

 2  on his or her own behalf, and the court shall appoint a

 3  qualified professional if the person is indigent and requests

 4  that an expert be appointed. The burden of proof at the

 5  hearing shall be upon the state attorney to prove beyond a

 6  reasonable doubt that the committed person's mental

 7  abnormality or personality disorder remains such that the

 8  person is not safe to be at large and, if released, is likely

 9  to engage in acts of sexual violence.

10         (3)  Nothing in this act shall prohibit a person from

11  filing a petition for discharge at any time. However, if a

12  committed person has previously filed a petition for discharge

13  without the approval of the Department of Children and Family

14  Services and the court determined upon review of the petition,

15  or following a hearing, that the petition was frivolous or

16  that the committed person's condition had not so changed that

17  the person was safe to be at large, the court shall deny any

18  subsequent petition unless the petition contains facts upon

19  which a court could find the condition of the committed person

20  had so changed that a hearing was warranted. Upon receipt of a

21  first or subsequent petition from the committed person without

22  the department's approval, the court shall review the petition

23  and determine if the petition is based upon frivolous grounds

24  and, if so, shall deny the petition without a hearing.

25         Section 12.  Section 916.40, Florida Statutes, is

26  created to read:

27         916.40  Costs.--

28         (1)  The Department of Children and Family Services is

29  responsible for all costs relating to the evaluation and

30  treatment of a person committed to the department's custody as

31  a sexually violent predator under any provision of this act.

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 1  Reimbursement may be obtained by the department for the cost

 2  of care and treatment of persons committed to the department's

 3  custody as provided by law.

 4         (2)  In recognition of the fact that persons committed

 5  under this act may have sources of income and assets, which

 6  may include bank accounts, inheritances, real estate, social

 7  security payments, veteran's payments, and other types of

 8  financial resources, and in recognition of the fact that the

 9  daily subsistence costs and costs of treatment of persons

10  committed under this act are a burden on the taxpayers of the

11  state, each person so committed shall:

12         (a)  Upon order of the court committing the person,

13  disclose all revenue or assets to the department.

14         (b)  Pay from such income and assets, except when the

15  income or asset is exempt by state or federal law, all or a

16  fair portion of the person's daily subsistence and treatment

17  costs, based upon the person's ability to pay, the liability

18  or potential liability of the person to the victim or the

19  guardian or the estate of the victim, and the needs of his or

20  her dependents.

21         (3)(a)  Any person who is directed to pay all or a fair

22  portion of daily subsistence and treatment costs is entitled

23  to reasonable advance notice of the assessment and shall be

24  afforded an opportunity to present reasons for opposition to

25  the assessment.

26         (b)  An order directing payment of all or a fair

27  portion of a person's daily subsistence costs may survive

28  against the estate of the person.

29         Section 13.  Section 916.41, Florida Statutes, is

30  created to read:

31         916.41  Notice to victims of release of person

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 1  committed as a sexually violent predator.--Prior to release of

 2  a committed person under this act, the Department of Children

 3  and Family Services shall give written notice of the release

 4  of a person committed as a sexually violent predator to any

 5  victim of the person's activities or crime who is alive and

 6  whose address is known to the department or, if the victim is

 7  deceased, to the victim's next of kin, if the address of the

 8  next of kin is known to the department. Failure to notify is

 9  not a reason for postponement of the release. Nothing in this

10  section creates a cause of action against the state or any

11  employee of the state or any agent or volunteer who helps make

12  this notification.

13         Section 14.  Section 916.42, Florida Statutes, is

14  created to read:

15         916.42  Severability.--If any provision of this act or

16  the application thereof to any person or circumstance is held

17  invalid, the invalidity shall not affect other provisions or

18  applications of the act which can be given effect without the

19  invalid provision or application, and to this end the

20  provisions of this act are declared severable.

21         Section 15.  Section 916.43, Florida Statutes, is

22  created to read:

23         916.43  Confidential or privileged information and

24  records.--In order to protect the public, relevant information

25  and records that are held by a governmental entity or are

26  otherwise confidential or privileged shall be released to the

27  agency with jurisdiction or the state attorney for the purpose

28  of meeting the notice requirement provided in s. 916.32 and

29  determining whether a person is or continues to be a sexually

30  violent predator. This section shall be part of and

31  supplemental to the provisions of ss. 916.30-916.42.

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 1         Section 16.  The Department of Children and Families

 2  shall utilize existing facilities for this program, or may

 3  contract with the Department of Corrections for facility and

 4  security costs.

 5         Section 17.    There is hereby appropriated from the

 6  General Revenue Fund in a lump sum to the Department of

 7  Children and Families the sum of $3,400,000 and 50 full time

 8  equivalent positions, and from the Grants and Donations Trust

 9  Fund, $1,500,000 to the Department of Corrections for the

10  purpose of carrying out the provisions of this act.  From the

11  funds appropriated to the Department of Children and Families,

12  the department may, at the counties request, reimburse

13  counties for the cost of no more than one examination of each

14  person subject to this act, provided that the department's

15  reimbursement for each examination shall not exceed the cost

16  to the department for examinations that it conducts of such

17  persons.

18         Section 18.  This act shall take effect January 1 after

19  the year in which enacted.

20

21

22  ================ T I T L E   A M E N D M E N T ===============

23  And the title is amended as follows:

24         Delete everything before the enacting clause

25

26  and insert:

27                      A bill to be entitled

28         An act relating to sexual predators; creating

29         the "Jimmy Ryce Involuntary Civil Commitment

30         for Sexually Violent Predators' Treatment and

31         Care Act"; creating s. 916.30, F.S.; providing

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 1         findings and intent; creating s. 916.31, F.S.;

 2         providing definitions; creating s. 916.32,

 3         F.S.; requiring certain notice to the state

 4         attorney of anticipated release of specified

 5         persons who may meet the criteria for a

 6         sexually violent predator; requiring provision

 7         of certain records and information by the

 8         agency with jurisdiction to the state attorney;

 9         providing certain immunity from liability of

10         the agency with jurisdiction, the state

11         attorney, and their employees and service

12         providers; creating s. 916.33, F.S.; providing

13         for petition to have such person declared a

14         sexually violent predator; creating s. 916.34,

15         F.S.; providing for determination of probable

16         cause and taking respondent into custody;

17         providing for transfer of the respondent to a

18         secure facility for evaluation under specified

19         circumstances when the court finds probable

20         cause to believe that the respondent is a

21         sexually violent predator; creating s. 916.35,

22         F.S.; providing for trial on the issue of

23         whether a person is a sexually violent

24         predator; creating s. 916.36, F.S.; providing

25         for commitment of a person determined to be a

26         sexually violent predator; creating s. 916.37,

27         F.S.; requiring annual examination of persons

28         committed; creating s. 916.38, F.S.; requiring

29         detention and commitment to conform to

30         constitutional requirements; creating s.

31         916.39, F.S.; providing for petitions for

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for SB 646

    Amendment No.    





 1         release; creating s. 916.40, F.S.; providing

 2         that the Department of Children and Family

 3         Services is responsible for specified

 4         evaluation and treatment costs; providing for

 5         reimbursement; providing for court orders for

 6         certain disclosures to the department by the

 7         committed person of income and assets;

 8         providing for imposition and assessment of

 9         certain financial liabilities for payment of

10         daily subsistence and treatment costs based on

11         specified criteria; providing for notice and

12         contest of the assessment; providing for

13         survival of the order directing payment against

14         the person's estate; creating s. 916.41, F.S.;

15         providing for notice to victims; creating s.

16         916.42, F.S.; providing severability; creating

17         s. 916.43, F.S.; providing for access to

18         certain records; providing an effective date.

19

20

21

22

23

24

25

26

27

28

29

30

31

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