House Bill 0121er
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  1
  2         An act relating to sentencing; creating the
  3         "Three-Strike Violent Felony Offender Act";
  4         amending s. 775.082, F.S.; redefining the term
  5         "prison releasee reoffender"; revising
  6         legislative intent; amending s. 775.084, F.S.,
  7         relating to sentencing of habitual felony
  8         offenders, habitual violent felony offenders,
  9         and violent career criminals; redefining the
10         terms "habitual felony offender," "habitual
11         violent felony offender" and "violent career
12         criminal"; revising the alternative time
13         periods within which the habitual felony
14         offender, habitual violent felony offender, or
15         violent career criminal could have committed
16         the felony to be sentenced; providing that the
17         felony to be sentenced could have been
18         committed either while the defendant was
19         serving a prison sentence or other sentence or
20         supervision, or within 5 years of the
21         defendant's release from a prison sentence,
22         probation, community control, or supervision or
23         other sentence, under specified circumstances
24         when the sentence was imposed as a result of a
25         prior conviction for a felony, enumerated
26         felony, or other qualified offense; removing
27         certain references to "commitment" and
28         otherwise conforming terminology; providing
29         that the placing of a person on probation
30         without an adjudication of guilt shall be
31         treated as a prior conviction regardless of
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  1         when the subsequent offense was committed;
  2         defining "three-time violent felony offender";
  3         providing a category of enumerated felony
  4         offenses within the definition; requiring the
  5         court to sentence a defendant as a three-time
  6         violent felony offender and impose certain
  7         mandatory minimum terms of imprisonment under
  8         specified circumstances when the defendant is
  9         to be sentenced for committing or attempting to
10         commit, any of the enumerated felony offenses
11         and the defendant has previously been convicted
12         of committing or attempting to commit, any two
13         of the enumerated felony offenses; providing
14         penalties; providing procedures and criteria
15         for court determination if the defendant is a
16         three-time violent felony offender; providing
17         for sentencing as a three-time violent felony
18         offender; providing mandatory term of
19         imprisonment for life when the three-time
20         violent felony offense for which the defendant
21         is to be sentenced is a felony punishable by
22         life; providing mandatory prison term of 30
23         years when the three-time violent felony
24         offense is a first degree felony; providing
25         mandatory prison term of 15 years when the
26         three-time violent felony offense is a second
27         degree felony; providing mandatory prison term
28         of 5 years when the three-time violent felony
29         offense is a third degree felony; providing for
30         construction; providing for ineligibility of a
31         three-time violent felony offender for parole,
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  1         control release, or early release; amending ss.
  2         784.07 and 784.08, F.S.; providing minimum
  3         terms of imprisonment for persons convicted of
  4         aggravated assault or aggravated battery of a
  5         law enforcement officer or a person 65 years of
  6         age or older; amending s. 790.235, F.S.,
  7         relating to prohibitions against, and penalties
  8         for, unlawful possession or other unlawful acts
  9         involving firearm, electric weapon or device,
10         or concealed weapon by a violent career
11         criminal; conforming cross references to
12         changes made by the act; creating s. 794.0115,
13         F.S.; defining "repeat sexual batterer";
14         providing within the definition a category of
15         enumerated felony offenses in violation of s.
16         794.011, F.S., relating to sexual battery;
17         requiring the court to sentence a defendant as
18         a repeat sexual batterer and impose a 10-year
19         mandatory minimum term of imprisonment under
20         specified circumstances when the defendant is
21         to be sentenced for committing or attempting to
22         commit, any of the enumerated felony violations
23         of s. 794.011, F.S., and the defendant has
24         previously been convicted of committing or
25         attempting to commit, any one of certain
26         enumerated felony offenses involving sexual
27         battery; providing penalties; providing
28         procedures and criteria for court determination
29         if the defendant is a repeat sexual batterer;
30         providing for sentencing as a repeat sexual
31         batterer; providing for construction; amending
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  1         s. 794.011, F.S., to conform references to
  2         changes made by the act; amending s. 893.135,
  3         F.S.; defining the term "cannabis plant";
  4         providing mandatory minimum prison terms and
  5         mandatory fine amounts for trafficking in
  6         cannabis, cocaine, illegal drugs,
  7         phencyclidine, methaqualone, amphetamine, or
  8         flunitrazepam; providing for sentencing
  9         pursuant to the Criminal Punishment Code of
10         offenders convicted of trafficking in specified
11         quantities of cannabis; removing weight caps
12         for various trafficking offenses; providing
13         that an offender who is sentenced to a
14         mandatory minimum term upon conviction of
15         trafficking in specified quantities of
16         cannabis, cocaine, illegal drugs,
17         phencyclidine, methaqualone, amphetamine, or
18         flunitrazepam is not eligible for certain
19         discretionary early-release mechanisms prior to
20         serving the mandatory minimum sentence;
21         providing exceptions; providing penalties;
22         reenacting s. 397.451(7), F.S., relating to the
23         prohibition against dissemination of state
24         funds to service providers convicted of certain
25         offenses, s. 782.04(4)(a), F.S., relating to
26         murder, s. 893.1351(1), F.S., relating to lease
27         or rent for the purpose of trafficking in a
28         controlled substance, s. 903.133, F.S.,
29         relating to the prohibition against bail on
30         appeal for certain felony convictions, s.
31         907.041(4)(b), F.S., relating to pretrial
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  1         detention and release, s. 921.0022(3)(g), (h),
  2         and (i), F.S., relating to the Criminal
  3         Punishment Code offense severity ranking chart,
  4         s. 921.0024(1)(b), F.S., relating to the
  5         Criminal Punishment Code worksheet computations
  6         and scoresheets, s. 921.142(2), F.S., relating
  7         to sentencing for capital drug trafficking
  8         felonies, s. 943.0585, F.S., relating to
  9         court-ordered expunction of criminal history
10         records, and s. 943.059, F.S., relating to
11         court-ordered sealing of criminal history
12         records, to incorporate said amendment in
13         references; amending s. 943.0535, F.S.,
14         relating to aliens and criminal records;
15         requiring clerk of the courts to furnish
16         criminal records to United States immigration
17         officers; requiring state attorney to assist
18         clerk of the courts in determining which
19         defendants are aliens; requiring the Governor
20         to place public service announcements
21         explaining the provisions of this act; amending
22         s. 810, F.S.; redefining the term "conveyance"
23         for purposes of ch. 810, F.S., to include a
24         railroad vehicle; providing an effective date.
25
26         WHEREAS, in 1996, Florida had the highest violent crime
27  rate of any state in the nation, exceeding the national
28  average by 66 percent, and
29         WHEREAS, although this state possessed the highest
30  state violent crime rate in 1996 in the nation, the
31  incarceration rate in this state in 1996 was less than the
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  1  incarceration rate in at least eleven other states, all of
  2  which had a lower violent crime rate than the rate in this
  3  state, and
  4         WHEREAS, since 1988, criminals in this state have
  5  committed at least 1.6 million violent crimes against
  6  Floridians and visitors to this state, and
  7         WHEREAS, the per capita violent crime rate has
  8  increased 86 percent in this state in the last 25 years, and
  9         WHEREAS, in fiscal year 1996-1997, over 16,000 violent
10  felons in this state were sentenced to probation, community
11  control, and other punishments that did not incarcerate the
12  violent felon for the maximum prison term authorized by law,
13  and
14         WHEREAS, during that same fiscal year, less than 9,900
15  violent felons were sentenced to prison, while during that
16  same period criminals committed approximately 150,000 violent
17  felonies, and
18         WHEREAS, in this state, as of June 30, 1997, more
19  violent felons were on probation, community control, control
20  release, or parole, than were in state prison, and
21         WHEREAS, in 1997, only 15.6 percent of all persons
22  convicted of a felony were sentenced to state prison, the
23  second lowest rate of incarcerated felons since 1984, and
24         WHEREAS, the rate of incarcerated felons has declined
25  seven out of the last eight years, and
26         WHEREAS, since fiscal year 1993-1994, the per capita
27  prison population rate in this state has increased 10 percent
28  and the proportion of violent offenders incarcerated in state
29  prison has increased 5 percent, and
30         WHEREAS, since 1995, the Florida Legislature has
31  enacted stronger criminal punishment laws, including requiring
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  1  all prisoners to serve 85 percent of their court-imposed
  2  sentences, and
  3         WHEREAS, since 1994, the violent crime rate in this
  4  state has decreased 9.8 percent, and
  5         WHEREAS, the Legislature previously has found that a
  6  substantial and disproportionate number of serious crimes are
  7  committed in this state by a relatively small number of repeat
  8  and violent felony offenders, that priority should be given to
  9  the incarceration of career criminals for extended prison
10  terms, and that, in the case of violent career criminals, such
11  extended terms must include substantial minimum terms of
12  imprisonment, and
13         WHEREAS, as of June 30, 1997, only 71 designated
14  "violent career criminals" have been sentenced to mandatory
15  prison terms, out of a prison population of over 65,000 state
16  inmates; and this number does not approach the true number of
17  repeat violent felony offenders in this state, and
18         WHEREAS, to be sentenced as a "violent career
19  criminal," a felon must be convicted of at least four violent,
20  forcible, or serious felonies and must have served a prison
21  term, and
22         WHEREAS, current law does not require the courts to
23  impose mandatory prison terms on violent felons who commit
24  three violent felonies, and these three-time violent felony
25  offenders should be sentenced to mandatory maximum prison
26  terms to protect citizens of this state and visitors, and
27         WHEREAS, studies such as the recent report issued by
28  the National Center for Policy Analysis, "Does punishment
29  deter?", indicate that recent crime rates have declined
30  because of the increasing number of incarcerated felons, and
31
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  1         WHEREAS, since California enacted "three strike"
  2  legislation in 1994 that requires courts to impose mandatory
  3  prison terms on repeat felony offenders convicted of three
  4  serious crimes, that state has experienced significant
  5  reductions in violent crime, and overall crime rates, and
  6         WHEREAS, a study by the RAND Corporation estimates that
  7  the enforcement of this California legislation will reduce
  8  serious crime in California committed by adults between 22 and
  9  34 percent, and
10         WHEREAS, the enactment and enforcement of legislation
11  in Florida that requires courts to impose mandatory prison
12  terms on three-time violent felony offenders will improve
13  public safety by incapacitating repeat offenders who are most
14  likely to murder, rape, rob, or assault innocent victims in
15  our communities, and
16         WHEREAS, imposing mandatory prison terms on three-time
17  violent felony offenders will prevent such offenders from
18  committing more crimes in our communities, and likely
19  accelerate recent declines in the violent crime rate in this
20  state, NOW, THEREFORE,
21
22  Be It Enacted by the Legislature of the State of Florida:
23
24         Section 1.  This act may be cited as the "Three-Strike
25  Violent Felony Offender Act."
26         Section 2.  Paragraphs (a) and (d) of subsection (9) of
27  section 775.082, Florida Statutes, 1998 Supplement, are
28  amended to read.
29         775.082  Penalties; applicability of sentencing
30  structures; mandatory minimum sentences for certain
31  reoffenders previously released from prison.--
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  1         (9)(a)1.  "Prison releasee reoffender" means any
  2  defendant who commits, or attempts to commit:
  3         a.  Treason;
  4         b.  Murder;
  5         c.  Manslaughter;
  6         d.  Sexual battery;
  7         e.  Carjacking;
  8         f.  Home-invasion robbery;
  9         g.  Robbery;
10         h.  Arson;
11         i.  Kidnapping;
12         j.  Aggravated assault with a deadly weapon;
13         k.  Aggravated battery;
14         l.  Aggravated stalking;
15         m.  Aircraft piracy;
16         n.  Unlawful throwing, placing, or discharging of a
17  destructive device or bomb;
18         o.  Any felony that involves the use or threat of
19  physical force or violence against an individual;
20         p.  Armed burglary;
21         q.  Burglary of an occupied structure or dwelling; or
22         r.  Any felony violation of s. 790.07, s. 800.04, s.
23  827.03, or s. 827.071;
24
25  within 3 years of being released from a state correctional
26  facility operated by the Department of Corrections or a
27  private vendor.
28         2.  "Prison releasee reoffender" also means any
29  defendant who commits or attempts to commit any offense listed
30  in subparagraph (a)1.a.-r. while the defendant was serving a
31  prison sentence or on escape status from a state correctional
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  1  facility operated by the Department of Corrections or a
  2  private vendor.
  3         3.2.  If the state attorney determines that a defendant
  4  is a prison releasee reoffender as defined in subparagraph 1.,
  5  the state attorney may seek to have the court sentence the
  6  defendant as a prison releasee reoffender. Upon proof from the
  7  state attorney that establishes by a preponderance of the
  8  evidence that a defendant is a prison releasee reoffender as
  9  defined in this section, such defendant is not eligible for
10  sentencing under the sentencing guidelines and must be
11  sentenced as follows:
12         a.  For a felony punishable by life, by a term of
13  imprisonment for life;
14         b.  For a felony of the first degree, by a term of
15  imprisonment of 30 years;
16         c.  For a felony of the second degree, by a term of
17  imprisonment of 15 years; and
18         d.  For a felony of the third degree, by a term of
19  imprisonment of 5 years.
20         (d)1.  It is the intent of the Legislature that
21  offenders previously released from prison who meet the
22  criteria in paragraph (a) be punished to the fullest extent of
23  the law and as provided in this subsection, unless the state
24  attorney determines that any of the following circumstances
25  exist:
26         a.  The prosecuting attorney does not have sufficient
27  evidence to prove the highest charge available;
28         b.  The testimony of a material witness cannot be
29  obtained;
30
31
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  1         c.  The victim does not want the offender to receive
  2  the mandatory prison sentence and provides a written statement
  3  to that effect; or
  4         d.  other extenuating circumstances exist which
  5  preclude the just prosecution of the offender, including
  6  whether the victim recommends that the offender not be
  7  sentenced as provided in this subsection.
  8         2.  For every case in which the offender meets the
  9  criteria in paragraph (a) and does not receive the mandatory
10  minimum prison sentence, the state attorney must explain the
11  sentencing deviation in writing and place such explanation in
12  the case file maintained by the state attorney. On a quarterly
13  basis, each state attorney shall submit copies of deviation
14  memoranda regarding offenses committed on or after the
15  effective date of this subsection, to the president of the
16  Florida Prosecuting Attorneys Association, Inc.  The
17  association must maintain such information, and make such
18  information available to the public upon request, for at least
19  a 10-year period.
20         Section 3.  Section 775.084, Florida Statutes, 1998
21  Supplement, is amended to read:
22         775.084  Violent career criminals; habitual felony
23  offenders and habitual violent felony offenders; three-time
24  violent felony offenders; definitions; procedure; enhanced
25  penalties or mandatory minimum prison terms.--
26         (1)  As used in this act:
27         (a)  "Habitual felony offender" means a defendant for
28  whom the court may impose an extended term of imprisonment, as
29  provided in paragraph (4)(a), if it finds that:
30
31
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  1         1.  The defendant has previously been convicted of any
  2  combination of two or more felonies in this state or other
  3  qualified offenses.
  4         2.  The felony for which the defendant is to be
  5  sentenced was committed:
  6         a.  While the defendant was serving a prison sentence
  7  or other sentence, or court-ordered or lawfully imposed
  8  supervision that is commitment imposed as a result of a prior
  9  conviction for a felony or other qualified offense; or
10         b.  Within 5 years of the date of the conviction of the
11  defendant's last prior felony or other qualified offense, or
12  within 5 years of the defendant's release from a prison
13  sentence, probation, community control, control release,
14  conditional release, parole or court-ordered or lawfully
15  imposed supervision or other sentence that is commitment
16  imposed as a result of a prior conviction for a felony or
17  other qualified offense, whichever is later.
18         3.  The felony for which the defendant is to be
19  sentenced, and one of the two prior felony convictions, is not
20  a violation of s. 893.13 relating to the purchase or the
21  possession of a controlled substance.
22         4.  The defendant has not received a pardon for any
23  felony or other qualified offense that is necessary for the
24  operation of this paragraph.
25         5.  A conviction of a felony or other qualified offense
26  necessary to the operation of this paragraph has not been set
27  aside in any postconviction proceeding.
28         (b)  "Habitual violent felony offender" means a
29  defendant for whom the court may impose an extended term of
30  imprisonment, as provided in paragraph (4)(b), if it finds
31  that:
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  1         1.  The defendant has previously been convicted of a
  2  felony or an attempt or conspiracy to commit a felony and one
  3  or more of such convictions was for:
  4         a.  Arson;
  5         b.  Sexual battery;
  6         c.  Robbery;
  7         d.  Kidnapping;
  8         e.  Aggravated child abuse;
  9         f.  Aggravated abuse of an elderly person or disabled
10  adult;
11         g.  Aggravated assault with a deadly weapon;
12         h.  Murder;
13         i.  Manslaughter;
14         j.  Aggravated manslaughter of an elderly person or
15  disabled adult;
16         k.  Aggravated manslaughter of a child;
17         l.  Unlawful throwing, placing, or discharging of a
18  destructive device or bomb;
19         m.  Armed burglary;
20         n.  Aggravated battery; or
21         o.  Aggravated stalking.
22         2.  The felony for which the defendant is to be
23  sentenced was committed:
24         a.  While the defendant was serving a prison sentence
25  or other sentence, or court-ordered or lawfully imposed
26  supervision that is commitment imposed as a result of a prior
27  conviction for an enumerated felony; or
28         b.  Within 5 years of the date of the conviction of the
29  last prior enumerated felony, or within 5 years of the
30  defendant's release from a prison sentence, probation,
31  community control, control release, conditional release,
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  1  parole, or court-ordered or lawfully imposed supervision or
  2  other sentence that is commitment imposed as a result of a
  3  prior conviction for an enumerated felony, whichever is later.
  4         3.  The defendant has not received a pardon on the
  5  ground of innocence for any crime that is necessary for the
  6  operation of this paragraph.
  7         4.  A conviction of a crime necessary to the operation
  8  of this paragraph has not been set aside in any postconviction
  9  proceeding.
10         (c)  "Three-time violent felony offender" means a
11  defendant for whom the court must impose a mandatory minimum
12  term of imprisonment, as provided in paragraph (4)(c), if it
13  finds that:
14         1.  The defendant has previously been convicted as an
15  adult two or more times of a felony, or an attempt to commit a
16  felony, and two or more of such convictions were for
17  committing, or attempting to commit, any of the following
18  offenses or combination thereof:
19         a.  Arson;
20         b.  Sexual battery;
21         c.  Robbery;
22         d.  Kidnapping;
23         e.  Aggravated child abuse;
24         f.  Aggravated abuse of an elderly person or disabled
25  adult;
26         g.  Aggravated assault with a deadly weapon;
27         h.  Murder;
28         i.  Manslaughter;
29         j.  Aggravated manslaughter of an elderly person or
30  disabled adult;
31         k.  Aggravated manslaughter of a child;
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  1         l.  Unlawful throwing, placing, or discharging of a
  2  destructive device or bomb;
  3         m.  Armed burglary;
  4         n.  Aggravated battery;
  5         o.  Aggravated stalking;
  6         p.  Home invasion/robbery;
  7         q.  Carjacking; or
  8         r.  An offense which is in violation of a law of any
  9  other jurisdiction if the elements of the offense are
10  substantially similar to the elements of any felony offense
11  enumerated in sub-subparagraphs a.-q., or an attempt to commit
12  any such felony offense.
13         2.  The felony for which the defendant is to be
14  sentenced is one of the felonies enumerated in
15  sub-subparagraphs 1.a.-q. and was committed:
16         a.  While the defendant was serving a prison sentence
17  or other sentence imposed as a result of a prior conviction
18  for any offense enumerated in sub-subparagraphs 1.a.-r.; or
19         b.  Within 5 years after the date of the conviction of
20  the last prior offense enumerated in sub-subparagraphs
21  1.a.-r., or within 5 years after the defendant's release from
22  a prison sentence, probation, community control, or other
23  sentence imposed as a result of a prior conviction for any
24  offense enumerated in sub-subparagraphs 1.a.-r., whichever is
25  later.
26         3.  The defendant has not received a pardon on the
27  ground of innocence for any crime that is necessary for the
28  operation of this paragraph.
29         4.  A conviction of a crime necessary to the operation
30  of this paragraph has not been set aside in any postconviction
31  proceeding.
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  1         (d)(c)  "Violent career criminal" means a defendant for
  2  whom the court must impose imprisonment pursuant to paragraph
  3  (4)(d)(c), if it finds that:
  4         1.  The defendant has previously been convicted as an
  5  adult three or more times for an offense in this state or
  6  other qualified offense that is:
  7         a.  Any forcible felony, as described in s. 776.08;
  8         b.  Aggravated stalking, as described in s. 784.048(3)
  9  and (4);
10         c.  Aggravated child abuse, as described in s.
11  827.03(2);
12         d.  Aggravated abuse of an elderly person or disabled
13  adult, as described in s. 825.102(2);
14         e.  Lewd, lascivious, or indecent conduct, as described
15  in s. 800.04;
16         f.  Escape, as described in s. 944.40; or
17         g.  A felony violation of chapter 790 involving the use
18  or possession of a firearm.
19         2.  The defendant has been incarcerated in a state
20  prison or a federal prison.
21         3.  The primary felony offense for which the defendant
22  is to be sentenced is a felony enumerated in subparagraph 1.
23  and was committed on or after October 1, 1995, and:
24         a.  While the defendant was serving a prison sentence
25  or other sentence, or court-ordered or lawfully imposed
26  supervision that is commitment imposed as a result of a prior
27  conviction for an enumerated felony; or
28         b.  Within 5 years after the conviction of the last
29  prior enumerated felony, or within 5 years after the
30  defendant's release from a prison sentence, probation,
31  community control, control release, conditional release,
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  1  parole, or court-ordered or lawfully imposed supervision or
  2  other sentence that is commitment imposed as a result of a
  3  prior conviction for an enumerated felony, whichever is later.
  4         4.  The defendant has not received a pardon for any
  5  felony or other qualified offense that is necessary for the
  6  operation of this paragraph.
  7         5.  A conviction of a felony or other qualified offense
  8  necessary to the operation of this paragraph has not been set
  9  aside in any postconviction proceeding.
10         (e)(d)  "Qualified offense" means any offense,
11  substantially similar in elements and penalties to an offense
12  in this state, which is in violation of a law of any other
13  jurisdiction, whether that of another state, the District of
14  Columbia, the United States or any possession or territory
15  thereof, or any foreign jurisdiction, that was punishable
16  under the law of such jurisdiction at the time of its
17  commission by the defendant by death or imprisonment exceeding
18  1 year.
19         (2)  For the purposes of this section, the placing of a
20  person on probation or community control without an
21  adjudication of guilt shall be treated as a prior conviction
22  if the subsequent offense for which the person is to be
23  sentenced was committed during such period of probation or
24  community control.
25         (3)(a)  In a separate proceeding, the court shall
26  determine if the defendant is a habitual felony offender or a
27  habitual violent felony offender. The procedure shall be as
28  follows:
29         1.  The court shall obtain and consider a presentence
30  investigation prior to the imposition of a sentence as a
31
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  1  habitual felony offender or a habitual violent felony
  2  offender.
  3         2.  Written notice shall be served on the defendant and
  4  the defendant's attorney a sufficient time prior to the entry
  5  of a plea or prior to the imposition of sentence in order to
  6  allow the preparation of a submission on behalf of the
  7  defendant.
  8         3.  Except as provided in subparagraph 1., all evidence
  9  presented shall be presented in open court with full rights of
10  confrontation, cross-examination, and representation by
11  counsel.
12         4.  Each of the findings required as the basis for such
13  sentence shall be found to exist by a preponderance of the
14  evidence and shall be appealable to the extent normally
15  applicable to similar findings.
16         5.  For the purpose of identification of a habitual
17  felony offender or a habitual violent felony offender, the
18  court shall fingerprint the defendant pursuant to s. 921.241.
19         6.  For an offense committed on or after October 1,
20  1995, if the state attorney pursues a habitual felony offender
21  sanction or a habitual violent felony offender sanction
22  against the defendant and the court, in a separate proceeding
23  pursuant to this paragraph, determines that the defendant
24  meets the criteria under subsection (1) for imposing such
25  sanction, the court must sentence the defendant as a habitual
26  felony offender or a habitual violent felony offender, subject
27  to imprisonment pursuant to this section unless the court
28  finds that such sentence is not necessary for the protection
29  of the public.  If the court finds that it is not necessary
30  for the protection of the public to sentence the defendant as
31  a habitual felony offender or a habitual violent felony
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  1  offender, the court shall provide written reasons; a written
  2  transcript of orally stated reasons is permissible, if filed
  3  by the court within 7 days after the date of sentencing. Each
  4  month, the court shall submit to the Office of Economic and
  5  Demographic Research of the Legislature the written reasons or
  6  transcripts in each case in which the court determines not to
  7  sentence a defendant as a habitual felony offender or a
  8  habitual violent felony offender as provided in this
  9  subparagraph.
10         (b)  In a separate proceeding, the court shall
11  determine if the defendant is a three-time violent felony
12  offender. The procedure shall be as follows:
13         1.  The court shall obtain and consider a presentence
14  investigation prior to the imposition of a sentence as a
15  three-time violent felony offender.
16         2.  Written notice shall be served on the defendant and
17  the defendant's attorney a sufficient time prior to the entry
18  of a plea or prior to the imposition of sentence in order to
19  allow the preparation of a submission on behalf of the
20  defendant.
21         3.  Except as provided in subparagraph 1., all evidence
22  presented shall be presented in open court with full rights of
23  confrontation, cross-examination, and representation by
24  counsel.
25         4.  Each of the findings required as the basis for such
26  sentence shall be found to exist by a preponderance of the
27  evidence and shall be appealable to the extent normally
28  applicable to similar findings.
29         5.  For the purpose of identification of a three-time
30  violent felony offender, the court shall fingerprint the
31  defendant pursuant to s. 921.241.
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  1         6.  For an offense committed on or after the effective
  2  date of this act, if the state attorney pursues a three-time
  3  violent felony offender sanction against the defendant and the
  4  court, in a separate proceeding pursuant to this paragraph,
  5  determines that the defendant meets the criteria under
  6  subsection (1) for imposing such sanction, the court must
  7  sentence the defendant as a three-time violent felony
  8  offender, subject to imprisonment pursuant to this section as
  9  provided in paragraph (4)(c).
10         (c)(b)  In a separate proceeding, the court shall
11  determine whether the defendant is a violent career criminal
12  with respect to a primary offense committed on or after
13  October 1, 1995.  The procedure shall be as follows:
14         1.  Written notice shall be served on the defendant and
15  the defendant's attorney a sufficient time prior to the entry
16  of a plea or prior to the imposition of sentence in order to
17  allow the preparation of a submission on behalf of the
18  defendant.
19         2.  All evidence presented shall be presented in open
20  court with full rights of confrontation, cross-examination,
21  and representation by counsel.
22         3.  Each of the findings required as the basis for such
23  sentence shall be found to exist by a preponderance of the
24  evidence and shall be appealable only as provided in paragraph
25  (d)(c).
26         4.  For the purpose of identification, the court shall
27  fingerprint the defendant pursuant to s. 921.241.
28         5.  For an offense committed on or after October 1,
29  1995, if the state attorney pursues a violent career criminal
30  sanction against the defendant and the court, in a separate
31  proceeding pursuant to this paragraph, determines that the
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  1  defendant meets the criteria under subsection (1) for imposing
  2  such sanction, the court must sentence the defendant as a
  3  violent career criminal, subject to imprisonment pursuant to
  4  this section unless the court finds that such sentence is not
  5  necessary for the protection of the public.  If the court
  6  finds that it is not necessary for the protection of the
  7  public to sentence the defendant as a violent career criminal,
  8  the court shall provide written reasons; a written transcript
  9  of orally stated reasons is permissible, if filed by the court
10  within 7 days after the date of sentencing. Each month, the
11  court shall submit to the Office of Economic and Demographic
12  Research of the Legislature the written reasons or transcripts
13  in each case in which the court determines not to sentence a
14  defendant as a violent career criminal as provided in this
15  subparagraph.
16         (d)(c)1.  A person sentenced under paragraph (4)(d)(c)
17  as a violent career criminal has the right of direct appeal,
18  and either the state or the defendant may petition the trial
19  court to vacate an illegal sentence at any time. However, the
20  determination of the trial court to impose or not to impose a
21  violent career criminal sentence is presumed appropriate and
22  no petition or motion for collateral or other postconviction
23  relief may be considered based on an allegation either by the
24  state or the defendant that such sentence is inappropriate,
25  inadequate, or excessive.
26         2.  It is the intent of the Legislature that, with
27  respect to both direct appeal and collateral review of violent
28  career criminal sentences, all claims of error or illegality
29  be raised at the first opportunity and that no claim should be
30  filed more than 2 years after the judgment and sentence became
31  final, unless it is established that the basis for the claim
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  1  could not have been ascertained at the time by the exercise of
  2  due diligence. Technical violations and mistakes at trials and
  3  sentencing proceedings involving violent career criminals that
  4  do not affect due process or fundamental fairness are not
  5  appealable by either the state or the defendant.
  6         3.  It is the intent of the Legislature that no funds,
  7  resources, or employees of the state or its political
  8  subdivisions be used, directly or indirectly, in appellate or
  9  collateral proceedings based on violent career criminal
10  sentencing, except when such use is constitutionally or
11  statutorily mandated.
12         (4)(a)  The court, in conformity with the procedure
13  established in paragraph (3)(a), may sentence the habitual
14  felony offender as follows:
15         1.  In the case of a life felony or a felony of the
16  first degree, for life.
17         2.  In the case of a felony of the second degree, for a
18  term of years not exceeding 30.
19         3.  In the case of a felony of the third degree, for a
20  term of years not exceeding 10.
21         (b)  The court, in conformity with the procedure
22  established in paragraph (3)(a), may sentence the habitual
23  violent felony offender as follows:
24         1.  In the case of a life felony or a felony of the
25  first degree, for life, and such offender shall not be
26  eligible for release for 15 years.
27         2.  In the case of a felony of the second degree, for a
28  term of years not exceeding 30, and such offender shall not be
29  eligible for release for 10 years.
30
31
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  1         3.  In the case of a felony of the third degree, for a
  2  term of years not exceeding 10, and such offender shall not be
  3  eligible for release for 5 years.
  4         (c)1.  The court, in conformity with the procedure
  5  established in paragraph (3)(b), must sentence the three-time
  6  violent felony offender to a mandatory minimum term of
  7  imprisonment, as follows:
  8         a.  In the case of a felony punishable by life, to a
  9  term of imprisonment for life;
10         b.  In the case of a felony of the first degree, to a
11  term of imprisonment of 30 years;
12         c.  In the case of a felony of the second degree, to a
13  term of imprisonment of 15 years; or
14         d.  In the case of a felony of the third degree, to a
15  term of imprisonment of 5 years.
16         2.  Nothing in this subsection shall prevent a court
17  from imposing a greater sentence of incarceration as
18  authorized by law.
19         (d)(c)  The court, in conformity with the procedure
20  established in paragraph (3)(c)(b), shall sentence the violent
21  career criminal as follows:
22         1.  In the case of a life felony or a felony of the
23  first degree, for life.
24         2.  In the case of a felony of the second degree, for a
25  term of years not exceeding 40, with a mandatory minimum term
26  of 30 years' imprisonment.
27         3.  In the case of a felony of the third degree, for a
28  term of years not exceeding 15, with a mandatory minimum term
29  of 10 years' imprisonment.
30         (e)(d)  If the court finds, pursuant to paragraph
31  (3)(a) or paragraph (3)(c)(b), that it is not necessary for
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  1  the protection of the public to sentence a defendant who meets
  2  the criteria for sentencing as a habitual felony offender, a
  3  habitual violent felony offender, or a violent career
  4  criminal, with respect to an offense committed on or after
  5  October 1, 1995, sentence shall be imposed without regard to
  6  this section.
  7         (f)(e)  At any time when it appears to the court that
  8  the defendant is eligible for sentencing under this section,
  9  the court shall make that determination as provided in
10  paragraph (3)(a), or paragraph (3)(b), or paragraph (3)(c).
11         (g)(f)  A sentence imposed under this section shall not
12  be increased after such imposition.
13         (h)(g)  A sentence imposed under this section is not
14  subject to s. 921.002.
15         (i)(h)  The provisions of this section do not apply to
16  capital felonies, and a sentence authorized under this section
17  does not preclude the imposition of the death penalty for a
18  capital felony.
19         (j)(i)  The provisions of s. 947.1405 shall apply to
20  persons sentenced as habitual felony offenders and persons
21  sentenced as habitual violent felony offenders.
22         (k)(j)1.  A defendant sentenced under this section as a
23  habitual felony offender, a habitual violent felony offender,
24  or a violent career criminal is eligible for gain-time granted
25  by the Department of Corrections as provided in s.
26  944.275(4)(b).
27         2.  For an offense committed on or after October 1,
28  1995, a defendant sentenced under this section as a violent
29  career criminal is not eligible for any form of discretionary
30  early release, other than pardon or executive clemency, or
31  conditional medical release granted pursuant to s. 947.149.
                                  24
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  1         3.  For an offense committed on or after July 1, 1999,
  2  a defendant sentenced under this section as a three-time
  3  violent felony offender shall be released only by expiration
  4  of sentence and shall not be eligible for parole, control
  5  release, or any form of early release.
  6         (5)  In order to be counted as a prior felony for
  7  purposes of sentencing under this section, the felony must
  8  have resulted in a conviction sentenced separately prior to
  9  the current offense and sentenced separately from any other
10  felony conviction that is to be counted as a prior felony.
11         (6)  The purpose of this section is to provide uniform
12  punishment for those crimes made punishable under this
13  section, and to this end, a reference to this section
14  constitutes a general reference under the doctrine of
15  incorporation by reference.
16         Section 4.  Paragraphs (c) and (d) of subsection (2) of
17  section 784.07, Florida Statutes, 1998 Supplement, are amended
18  to read:
19         784.07  Assault or battery of law enforcement officers,
20  firefighters, emergency medical care providers, public transit
21  employees or agents, or other specified officers;
22  reclassification of offenses; minimum sentences.--
23         (2)  Whenever any person is charged with knowingly
24  committing an assault or battery upon a law enforcement
25  officer, a firefighter, an emergency medical care provider, a
26  traffic accident investigation officer as described in s.
27  316.640, a traffic infraction enforcement officer as described
28  in s. 318.141, a parking enforcement specialist as defined in
29  s. 316.640, or a security officer employed by the board of
30  trustees of a community college, while the officer,
31  firefighter, emergency medical care provider, intake officer,
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  1  traffic accident investigation officer, traffic infraction
  2  enforcement officer, parking enforcement specialist, public
  3  transit employee or agent, or security officer is engaged in
  4  the lawful performance of his or her duties, the offense for
  5  which the person is charged shall be reclassified as follows:
  6         (c)  In the case of aggravated assault, from a felony
  7  of the third degree to a felony of the second degree.
  8  Notwithstanding any other provision of law, any person
  9  convicted of aggravated assault upon a law enforcement officer
10  shall be sentenced to a minimum term of imprisonment of 3
11  years.
12         (d)  In the case of aggravated battery, from a felony
13  of the second degree to a felony of the first degree.
14  Notwithstanding any other provision of law, any person
15  convicted of aggravated battery of a law enforcement officer
16  shall be sentenced to a minimum term of imprisonment of 5
17  years.
18         Section 5.  Subsection (1) of section 784.08, Florida
19  Statutes, is amended to read:
20         784.08  Assault or battery on persons 65 years of age
21  or older; reclassification of offenses; minimum sentence.--
22         (1)  A person who is convicted of an aggravated assault
23  or aggravated battery upon a person 65 years of age or older
24  shall be sentenced to a minimum term of imprisonment of 3
25  years pursuant to the Criminal Punishment Code and fined not
26  more than $10,000 and shall also be ordered by the sentencing
27  judge to make restitution to the victim of such offense and to
28  perform up to 500 hours of community service work.
29  Restitution and community service work shall be in addition to
30  any fine or sentence which may be imposed and shall not be in
31  lieu thereof.
                                  26
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  1         Section 6.  Section 790.235, Florida Statutes, is
  2  amended to read:
  3         790.235  Possession of firearm by violent career
  4  criminal unlawful; penalty.--
  5         (1)  Any person who meets the violent career criminal
  6  criteria under s. 775.084(1)(d)(c), regardless of whether such
  7  person is or has previously been sentenced as a violent career
  8  criminal, who owns or has in his or her care, custody,
  9  possession, or control any firearm or electric weapon or
10  device, or carries a concealed weapon, including a tear gas
11  gun or chemical weapon or device, commits a felony of the
12  first degree, punishable as provided in s. 775.082, s.
13  775.083, or s. 775.084.  A person convicted of a violation of
14  this section shall be sentenced to a mandatory minimum of 15
15  years' imprisonment; however, if the person would be sentenced
16  to a longer term of imprisonment under s. 775.084(4)(d)(c),
17  the person must be sentenced under that provision.  A person
18  convicted of a violation of this section is not eligible for
19  any form of discretionary early release, other than pardon,
20  executive clemency, or conditional medical release under s.
21  947.149.
22         (2)  For purposes of this section, the previous felony
23  convictions necessary to meet the violent career criminal
24  criteria under s. 775.084(1)(d)(c) may be convictions for
25  felonies committed as an adult or adjudications of delinquency
26  for felonies committed as a juvenile.  In order to be counted
27  as a prior felony for purposes of this section, the felony
28  must have resulted in a conviction sentenced separately, or an
29  adjudication of delinquency entered separately, prior to the
30  current offense, and sentenced or adjudicated separately from
31  any other felony that is to be counted as a prior felony.
                                  27
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  1         (3)  This section shall not apply to a person whose
  2  civil rights and firearm authority have been restored.
  3         Section 7.  Section 794.0115, Florida Statutes, is
  4  created to read:
  5         794.0115  Repeat sexual batterers; definition;
  6  procedure; enhanced penalties.--
  7         (1)  As used in this act, "repeat sexual batterer"
  8  means a defendant for whom the court must impose a mandatory
  9  minimum term of imprisonment, as provided in subsection (3),
10  if it finds that:
11         (a)  The defendant has previously been convicted of a
12  felony or an attempt or conspiracy to commit a felony and one
13  or more of such convictions was for:
14         1.  Any felony offense in violation of s.
15  794.011(2)(b), (3), (4), or (5), or an attempt or conspiracy
16  to commit the felony offense.
17         2.  A qualified offense as defined in s. 775.084(1)(e),
18  if the elements of the qualified offense are substantially
19  similar to the elements of a felony offense in violation of s.
20  794.011(2)(b), (3), (4), or (5), or an attempt or conspiracy
21  to commit the felony offense.
22         (b)  The felony for which the defendant is to be
23  sentenced is one of the felonies enumerated in subparagraph
24  (a)1. or 2. and was committed:
25         1.  While the defendant was serving a prison sentence
26  or other sentence imposed as a result of a prior conviction
27  for any offense enumerated in subparagraph (a)1. or 2.; or
28         2.  Within 10 years after the date of the conviction of
29  the last prior offense enumerated in subparagraph (a)1. or 2.,
30  or within 10 years after the defendant's release from a prison
31  sentence, probation, community control, or other sentence
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  1  imposed as a result of a prior conviction for any offense
  2  enumerated in subparagraph (a)1. or 2., whichever is later.
  3         (c)  The defendant has not received a pardon on the
  4  ground of innocence for any crime that is necessary for the
  5  operation of this subsection.
  6         (d)  A conviction of a crime necessary to the operation
  7  of this subsection has not been set aside in any
  8  postconviction proceeding.
  9         (2)  In a separate proceeding, the court shall
10  determine if the defendant is a repeat sexual batterer. The
11  procedure shall be as follows:
12         (a)  The court shall obtain and consider a presentence
13  investigation prior to the imposition of a sentence as a
14  repeat sexual batterer.
15         (b)  Written notice shall be served on the defendant
16  and the defendant's attorney a sufficient time prior to the
17  entry of a plea or prior to the imposition of sentence in
18  order to allow the preparation of a submission on behalf of
19  the defendant.
20         (c)  Except as provided in paragraph (a), all evidence
21  presented shall be presented in open court with full rights of
22  confrontation, cross-examination, and representation by
23  counsel.
24         (d)  Each of the findings required as the basis for
25  such sentence shall be found to exist by a preponderance of
26  the evidence and shall be appealable to the extent normally
27  applicable to similar findings.
28         (e)  For the purpose of identification of a repeat
29  sexual batterer, the court shall fingerprint the defendant
30  pursuant to s. 921.241.
31
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  1         (f)  For an offense committed on or after the effective
  2  date of this act, if the state attorney pursues a repeat
  3  sexual batterer sanction against the defendant and the court,
  4  in a separate proceeding pursuant to this subsection,
  5  determines that the defendant meets the criteria under
  6  subsection (1) for imposing such sanction, the court must
  7  sentence the defendant as a repeat sexual batterer, subject to
  8  imprisonment pursuant to this section as provided in
  9  subsection (3).
10         (3)(a)  The court, in conformity with the procedure
11  established in subsection (2), must sentence the repeat sexual
12  batterer to a mandatory minimum term of 10 years'
13  imprisonment.
14         (b)  Nothing in this subsection shall prevent a court
15  from imposing a greater sentence of incarceration as
16  authorized by law.
17         Section 8.  Section 794.011, Florida Statutes, is
18  amended to read:
19         794.011  Sexual battery.--
20         (1)  As used in this chapter:
21         (a)  "Consent" means intelligent, knowing, and
22  voluntary consent and does not include coerced submission.
23  "Consent" shall not be deemed or construed to mean the failure
24  by the alleged victim to offer physical resistance to the
25  offender.
26         (b)  "Mentally defective" means a mental disease or
27  defect which renders a person temporarily or permanently
28  incapable of appraising the nature of his or her conduct.
29         (c)  "Mentally incapacitated" means temporarily
30  incapable of appraising or controlling a person's own conduct
31  due to the influence of a narcotic, anesthetic, or
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  1  intoxicating substance administered without his or her consent
  2  or due to any other act committed upon that person without his
  3  or her consent.
  4         (d)  "Offender" means a person accused of a sexual
  5  offense in violation of a provision of this chapter.
  6         (e)  "Physically helpless" means unconscious, asleep,
  7  or for any other reason physically unable to communicate
  8  unwillingness to an act.
  9         (f)  "Retaliation" includes, but is not limited to,
10  threats of future physical punishment, kidnapping, false
11  imprisonment or forcible confinement, or extortion.
12         (g)  "Serious personal injury" means great bodily harm
13  or pain, permanent disability, or permanent disfigurement.
14         (h)  "Sexual battery" means oral, anal, or vaginal
15  penetration by, or union with, the sexual organ of another or
16  the anal or vaginal penetration of another by any other
17  object; however, sexual battery does not include an act done
18  for a bona fide medical purpose.
19         (i)  "Victim" means a person who has been the object of
20  a sexual offense.
21         (j)  "Physically incapacitated" means bodily impaired
22  or handicapped and substantially limited in ability to resist
23  or flee.
24         (2)(a)  A person 18 years of age or older who commits
25  sexual battery upon, or in an attempt to commit sexual battery
26  injures the sexual organs of, a person less than 12 years of
27  age commits a capital felony, punishable as provided in ss.
28  775.082 and 921.141.
29         (b)  A person less than 18 years of age who commits
30  sexual battery upon, or in an attempt to commit sexual battery
31  injures the sexual organs of, a person less than 12 years of
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  1  age commits a life felony, punishable as provided in s.
  2  775.082, s. 775.083, or s. 775.084, or s. 794.0115.
  3         (3)  A person who commits sexual battery upon a person
  4  12 years of age or older, without that person's consent, and
  5  in the process thereof uses or threatens to use a deadly
  6  weapon or uses actual physical force likely to cause serious
  7  personal injury commits a life felony, punishable as provided
  8  in s. 775.082, s. 775.083, or s. 775.084, or s. 794.0115.
  9         (4)  A person who commits sexual battery upon a person
10  12 years of age or older without that person's consent, under
11  any of the following circumstances, commits a felony of the
12  first degree, punishable as provided in s. 775.082, s.
13  775.083, or s. 775.084, or s. 794.0115:
14         (a)  When the victim is physically helpless to resist.
15         (b)  When the offender coerces the victim to submit by
16  threatening to use force or violence likely to cause serious
17  personal injury on the victim, and the victim reasonably
18  believes that the offender has the present ability to execute
19  the threat.
20         (c)  When the offender coerces the victim to submit by
21  threatening to retaliate against the victim, or any other
22  person, and the victim reasonably believes that the offender
23  has the ability to execute the threat in the future.
24         (d)  When the offender, without the prior knowledge or
25  consent of the victim, administers or has knowledge of someone
26  else administering to the victim any narcotic, anesthetic, or
27  other intoxicating substance which mentally or physically
28  incapacitates the victim.
29         (e)  When the victim is mentally defective and the
30  offender has reason to believe this or has actual knowledge of
31  this fact.
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  1         (f)  When the victim is physically incapacitated.
  2         (g)  When the offender is a law enforcement officer,
  3  correctional officer, or correctional probation officer as
  4  defined by s. 943.10(1), (2), (3), (6), (7), (8), or (9), who
  5  is certified under the provisions of s. 943.1395 or is an
  6  elected official exempt from such certification by virtue of
  7  s. 943.253, or any other person in a position of control or
  8  authority in a probation, community control, controlled
  9  release, detention, custodial, or similar setting, and such
10  officer, official, or person is acting in such a manner as to
11  lead the victim to reasonably believe that the offender is in
12  a position of control or authority as an agent or employee of
13  government.
14         (5)  A person who commits sexual battery upon a person
15  12 years of age or older, without that person's consent, and
16  in the process thereof does not use physical force and
17  violence likely to cause serious personal injury commits a
18  felony of the second degree, punishable as provided in s.
19  775.082, s. 775.083, or s. 775.084, or s. 794.0115.
20         (6)  The offense described in subsection (5) is
21  included in any sexual battery offense charged under
22  subsection (3) or subsection (4).
23         (7)  A person who is convicted of committing a sexual
24  battery on or after October 1, 1992, is not eligible for basic
25  gain-time under s. 944.275.  This subsection may be cited as
26  the "Junny Rios-Martinez, Jr. Act of 1992."
27         (8)  Without regard to the willingness or consent of
28  the victim, which is not a defense to prosecution under this
29  subsection, a person who is in a position of familial or
30  custodial authority to a person less than 18 years of age and
31  who:
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  1         (a)  Solicits that person to engage in any act which
  2  would constitute sexual battery under paragraph (1)(h) commits
  3  a felony of the third degree, punishable as provided in s.
  4  775.082, s. 775.083, or s. 775.084.
  5         (b)  Engages in any act with that person while the
  6  person is 12 years of age or older but less than 18 years of
  7  age which constitutes sexual battery under paragraph (1)(h)
  8  commits a felony of the first degree, punishable as provided
  9  in s. 775.082, s. 775.083, or s. 775.084.
10         (c)  Engages in any act with that person while the
11  person is less than 12 years of age which constitutes sexual
12  battery under paragraph (1)(h), or in an attempt to commit
13  sexual battery injures the sexual organs of such person
14  commits a capital or life felony, punishable pursuant to
15  subsection (2).
16         (9)  For prosecution under paragraph (4)(g),
17  acquiescence to a person reasonably believed by the victim to
18  be in a position of authority or control does not constitute
19  consent, and it is not a defense that the perpetrator was not
20  actually in a position of control or authority if the
21  circumstances were such as to lead the victim to reasonably
22  believe that the person was in such a position.
23         (10)  Any person who falsely accuses any person listed
24  in paragraph (4)(g) or other person in a position of control
25  or authority as an agent or employee of government of
26  violating paragraph (4)(g) is guilty of a felony of the third
27  degree, punishable as provided in s. 775.082, s. 775.083, or
28  s. 775.084.
29         Section 9.  Section 893.135, Florida Statutes, as
30  amended by section 23 of chapter 97-194, Laws of Florida, is
31  amended to read:
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  1         893.135  Trafficking; mandatory sentences; suspension
  2  or reduction of sentences; conspiracy to engage in
  3  trafficking.--
  4         (1)  Except as authorized in this chapter or in chapter
  5  499 and notwithstanding the provisions of s. 893.13:
  6         (a)  Any person who knowingly sells, purchases,
  7  manufactures, delivers, or brings into this state, or who is
  8  knowingly in actual or constructive possession of, in excess
  9  of 25 50 pounds of cannabis, or 300 or more cannabis plants,
10  commits a felony of the first degree, which felony shall be
11  known as "trafficking in cannabis." If the quantity of
12  cannabis involved:
13         1.  Is in excess of 25 50 pounds, but less than 2,000
14  pounds, or is 300 or more cannabis plants, but not more than
15  2,000 cannabis plants, such person shall be sentenced pursuant
16  to the Criminal Punishment Code and such sentence shall
17  include a mandatory minimum term of imprisonment of 3 years,
18  and the defendant shall be ordered to pay a fine of $25,000.
19         2.  Is 2,000 pounds or more, but less than 10,000
20  pounds, or is 2,000 or more cannabis plants, but not more than
21  10,000 cannabis plants, such person shall be sentenced
22  pursuant to the Criminal Punishment Code and such sentence
23  shall include a mandatory minimum term of imprisonment of 7
24  years, and the defendant shall be ordered to pay a fine of
25  $50,000.
26         3.  Is 10,000 pounds or more, or is 10,000 or more
27  cannabis plants, such person shall be sentenced to a mandatory
28  minimum term of imprisonment of 15 calendar years and pay a
29  fine of $200,000.
30
31
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  1  For the purpose of this paragraph, a plant, including, but not
  2  limited to, a seedling or cutting, is a "cannabis plant" if it
  3  has some readily observable evidence of root formation, such
  4  as root hairs. To determine if a piece or part of a cannabis
  5  plant severed from the cannabis plant is itself a cannabis
  6  plant, the severed piece or part must have some readily
  7  observable evidence of root formation, such as root hairs.
  8  Callous tissue is not readily observable evidence of root
  9  formation. The viability and sex of a plant and the fact that
10  the plant may or may not be a dead harvested plant are not
11  relevant in determining if the plant is a "cannabis plant" or
12  in the charging of an offense under this paragraph. Upon
13  conviction, the court shall impose the longest term of
14  imprisonment provided for in this paragraph.
15         (b)1.  Any person who knowingly sells, purchases,
16  manufactures, delivers, or brings into this state, or who is
17  knowingly in actual or constructive possession of, 28 grams or
18  more of cocaine, as described in s. 893.03(2)(a)4., or of any
19  mixture containing cocaine, but less than 150 kilograms of
20  cocaine or any such mixture, commits a felony of the first
21  degree, which felony shall be known as "trafficking in
22  cocaine."  If the quantity involved:
23         a.  Is 28 grams or more, but less than 200 grams, such
24  person shall be sentenced pursuant to the Criminal Punishment
25  Code and such sentence shall include a mandatory minimum term
26  of imprisonment of 3 years, and the defendant shall be ordered
27  to pay a fine of $50,000.
28         b.  Is 200 grams or more, but less than 400 grams, such
29  person shall be sentenced pursuant to the Criminal Punishment
30  Code and such sentence shall include a mandatory minimum term
31
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  1  of imprisonment of 7 years, and the defendant shall be ordered
  2  to pay a fine of $100,000.
  3         c.  Is 400 grams or more, but less than 150 kilograms,
  4  such person shall be sentenced to a mandatory minimum term of
  5  imprisonment of 15 calendar years and pay a fine of $250,000.
  6         2.  Any person who knowingly sells, purchases,
  7  manufactures, delivers, or brings into this state, or who is
  8  knowingly in actual or constructive possession of, 150
  9  kilograms or more, but less than 300 kilograms, of cocaine, as
10  described in s. 893.03(2)(a)4., commits the first degree
11  felony of trafficking in cocaine. A person who has been
12  convicted of the first degree felony of trafficking in cocaine
13  under this subparagraph shall be punished by life imprisonment
14  and is ineligible for any form of discretionary early release
15  except pardon or executive clemency or conditional medical
16  release under s. 947.149. However, if the court determines
17  that, in addition to committing any act specified in this
18  paragraph:
19         a.  The person intentionally killed an individual or
20  counseled, commanded, induced, procured, or caused the
21  intentional killing of an individual and such killing was the
22  result; or
23         b.  The person's conduct in committing that act led to
24  a natural, though not inevitable, lethal result,
25
26  such person commits the capital felony of trafficking in
27  cocaine, punishable as provided in ss. 775.082 and 921.142.
28  Any person sentenced for a capital felony under this paragraph
29  shall also be sentenced to pay the maximum fine provided under
30  subparagraph 1.
31
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  1         3.  Any person who knowingly brings into this state 300
  2  kilograms or more of cocaine, as described in s.
  3  893.03(2)(a)4., and who knows that the probable result of such
  4  importation would be the death of any person, commits capital
  5  importation of cocaine, a capital felony punishable as
  6  provided in ss. 775.082 and 921.142. Any person sentenced for
  7  a capital felony under this paragraph shall also be sentenced
  8  to pay the maximum fine provided under subparagraph 1.
  9         (c)1.  Any person who knowingly sells, purchases,
10  manufactures, delivers, or brings into this state, or who is
11  knowingly in actual or constructive possession of, 4 grams or
12  more of any morphine, opium, oxycodone, hydrocodone,
13  hydromorphone, or any salt, derivative, isomer, or salt of an
14  isomer thereof, including heroin, as described in s.
15  893.03(1)(b) or (2)(a), or 4 grams or more of any mixture
16  containing any such substance, but less than 30 kilograms of
17  such substance or mixture, commits a felony of the first
18  degree, which felony shall be known as "trafficking in illegal
19  drugs."  If the quantity involved:
20         a.  Is 4 grams or more, but less than 14 grams, such
21  person shall be sentenced pursuant to the Criminal Punishment
22  Code and such sentence shall include a mandatory minimum term
23  of imprisonment of 3 years, and the defendant shall be ordered
24  to pay a fine of $50,000.
25         b.  Is 14 grams or more, but less than 28 grams, such
26  person shall be sentenced pursuant to the Criminal Punishment
27  Code and such sentence shall include a mandatory minimum term
28  of imprisonment of 15 years, and the defendant shall be
29  ordered to pay a fine of $100,000.
30
31
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  1         c.  Is 28 grams or more, but less than 30 kilograms,
  2  such person shall be sentenced to a mandatory minimum term of
  3  imprisonment of 25 calendar years and pay a fine of $500,000.
  4         2.  Any person who knowingly sells, purchases,
  5  manufactures, delivers, or brings into this state, or who is
  6  knowingly in actual or constructive possession of, 30
  7  kilograms or more, but less than 60 kilograms, of any
  8  morphine, opium, oxycodone, hydrocodone, hydromorphone, or any
  9  salt, derivative, isomer, or salt of an isomer thereof,
10  including heroin, as described in s. 893.03(1)(b) or (2)(a),
11  or 30 kilograms or more, but less than 60 kilograms, of any
12  mixture containing any such substance, commits the first
13  degree felony of trafficking in illegal drugs. A person who
14  has been convicted of the first degree felony of trafficking
15  in illegal drugs under this subparagraph shall be punished by
16  life imprisonment and is ineligible for any form of
17  discretionary early release except pardon or executive
18  clemency or conditional medical release under s. 947.149.
19  However, if the court determines that, in addition to
20  committing any act specified in this paragraph:
21         a.  The person intentionally killed an individual or
22  counseled, commanded, induced, procured, or caused the
23  intentional killing of an individual and such killing was the
24  result; or
25         b.  The person's conduct in committing that act led to
26  a natural, though not inevitable, lethal result,
27
28  such person commits the capital felony of trafficking in
29  illegal drugs, punishable as provided in ss. 775.082 and
30  921.142.  Any person sentenced for a capital felony under this
31
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  1  paragraph shall also be sentenced to pay the maximum fine
  2  provided under subparagraph 1.
  3         3.  Any person who knowingly brings into this state 60
  4  kilograms or more of any morphine, opium, oxycodone,
  5  hydrocodone, hydromorphone, or any salt, derivative, isomer,
  6  or salt of an isomer thereof, including heroin, as described
  7  in s. 893.03(1)(b) or (2)(a), or 60 kilograms or more of any
  8  mixture containing any such substance, and who knows that the
  9  probable result of such importation would be the death of any
10  person, commits capital importation of illegal drugs, a
11  capital felony punishable as provided in ss. 775.082 and
12  921.142. Any person sentenced for a capital felony under this
13  paragraph shall also be sentenced to pay the maximum fine
14  provided under subparagraph 1.
15         (d)1.  Any person who knowingly sells, purchases,
16  manufactures, delivers, or brings into this state, or who is
17  knowingly in actual or constructive possession of, 28 grams or
18  more of phencyclidine or of any mixture containing
19  phencyclidine, as described in s. 893.03(2)(b), commits a
20  felony of the first degree, which felony shall be known as
21  "trafficking in phencyclidine." If the quantity involved:
22         a.  Is 28 grams or more, but less than 200 grams, such
23  person shall be sentenced pursuant to the Criminal Punishment
24  Code and such sentence shall include a mandatory minimum term
25  of imprisonment of 3 years, and the defendant shall be ordered
26  to pay a fine of $50,000.
27         b.  Is 200 grams or more, but less than 400 grams, such
28  person shall be sentenced pursuant to the Criminal Punishment
29  Code and such sentence shall include a mandatory minimum term
30  of imprisonment of 7 years, and the defendant shall be ordered
31  to pay a fine of $100,000.
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  1         c.  Is 400 grams or more, but less than 800 grams, such
  2  person shall be sentenced to a mandatory minimum term of
  3  imprisonment of 15 calendar years and pay a fine of $250,000.
  4         2.  Any person who knowingly brings into this state 800
  5  grams or more of phencyclidine or of any mixture containing
  6  phencyclidine, as described in s. 893.03(2)(b), and who knows
  7  that the probable result of such importation would be the
  8  death of any person commits capital importation of
  9  phencyclidine, a capital felony punishable as provided in ss.
10  775.082 and 921.142. Any person sentenced for a capital felony
11  under this paragraph shall also be sentenced to pay the
12  maximum fine provided under subparagraph 1.
13         (e)1.  Any person who knowingly sells, purchases,
14  manufactures, delivers, or brings into this state, or who is
15  knowingly in actual or constructive possession of, 200 grams
16  or more of methaqualone or of any mixture containing
17  methaqualone, as described in s. 893.03(1)(d), commits a
18  felony of the first degree, which felony shall be known as
19  "trafficking in methaqualone." If the quantity involved:
20         a.  Is 200 grams or more, but less than 5 kilograms,
21  such person shall be sentenced pursuant to the Criminal
22  Punishment Code and such sentence shall include a mandatory
23  minimum term of imprisonment of 3 years, and the defendant
24  shall be ordered to pay a fine of $50,000.
25         b.  Is 5 kilograms or more, but less than 25 kilograms,
26  such person shall be sentenced pursuant to the Criminal
27  Punishment Code and such sentence shall include a mandatory
28  minimum term of imprisonment of 7 years, and the defendant
29  shall be ordered to pay a fine of $100,000.
30         c.  Is 25 kilograms or more, but less than 50
31  kilograms, such person shall be sentenced to a mandatory
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  1  minimum term of imprisonment of 15 calendar years and pay a
  2  fine of $250,000.
  3         2.  Any person who knowingly brings into this state 50
  4  kilograms or more of methaqualone or of any mixture containing
  5  methaqualone, as described in s. 893.03(1)(d), and who knows
  6  that the probable result of such importation would be the
  7  death of any person commits capital importation of
  8  methaqualone, a capital felony punishable as provided in ss.
  9  775.082 and 921.142. Any person sentenced for a capital felony
10  under this paragraph shall also be sentenced to pay the
11  maximum fine provided under subparagraph 1.
12         (f)1.  Any person who knowingly sells, purchases,
13  manufactures, delivers, or brings into this state, or who is
14  knowingly in actual or constructive possession of, 14 grams or
15  more of amphetamine, as described in s. 893.03(2)(c)2., or
16  methamphetamine, as described in s. 893.03(2)(c)4., or of any
17  mixture containing amphetamine or methamphetamine, or
18  phenylacetone, phenylacetic acid, or ephedrine in conjunction
19  with other chemicals and equipment utilized in the manufacture
20  of amphetamine or methamphetamine, commits a felony of the
21  first degree, which felony shall be known as "trafficking in
22  amphetamine."  If the quantity involved:
23         a.  Is 14 grams or more, but less than 28 grams, such
24  person shall be sentenced pursuant to the Criminal Punishment
25  Code and such sentence shall include a mandatory minimum term
26  of imprisonment of 3 years, and the defendant shall be ordered
27  to pay a fine of $50,000.
28         b.  Is 28 grams or more, but less than 200 grams, such
29  person shall be sentenced pursuant to the Criminal Punishment
30  Code and such sentence shall include a mandatory minimum term
31
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  1  of imprisonment of 7 years and the defendant shall be ordered
  2  to pay a fine of $100,000.
  3         c.  Is 200 grams or more, but less than 400 grams, such
  4  person shall be sentenced to a mandatory minimum term of
  5  imprisonment of 15 calendar years and pay a fine of $250,000.
  6         2.  Any person who knowingly brings into this state 400
  7  grams or more of amphetamine, as described in s.
  8  893.03(2)(c)2., or methamphetamine, as described in s.
  9  893.03(2)(c)4., or of any mixture containing amphetamine or
10  methamphetamine, or phenylacetone, phenylacetic acid, or
11  ephedrine in conjunction with other chemicals and equipment
12  utilized in the manufacture of amphetamine or methamphetamine,
13  and who knows that the probable result of such importation
14  would be the death of any person commits capital importation
15  of amphetamine, a capital felony punishable as provided in ss.
16  775.082 and 921.142. Any person sentenced for a capital felony
17  under this paragraph shall also be sentenced to pay the
18  maximum fine provided under subparagraph 1.
19         (g)1.  Any person who knowingly sells, purchases,
20  manufactures, delivers, or brings into this state, or who is
21  knowingly in actual or constructive possession of, 4 grams or
22  more of flunitrazepam or any mixture containing flunitrazepam
23  as described in s. 893.03(1)(a) commits a felony of the first
24  degree, which felony shall be known as "trafficking in
25  flunitrazepam."  If the quantity involved:
26         a.  Is 4 grams or more but less than 14 grams, such
27  person shall be sentenced pursuant to the Criminal Punishment
28  Code and such sentence shall include a mandatory minimum term
29  of imprisonment of 3 years and the defendant shall be ordered
30  to sentencing guidelines and pay a fine of $50,000.
31
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  1         b.  Is 14 grams or more but less than 28 grams, such
  2  person shall be sentenced pursuant to the Criminal Punishment
  3  Code and such sentence shall include a mandatory minimum term
  4  of imprisonment of 7 years, and the defendant shall be ordered
  5  to sentencing guidelines and pay a fine of $100,000.
  6         c.  Is 28 grams or more but less than 30 kilograms,
  7  such person shall be sentenced to a mandatory minimum term of
  8  imprisonment of 25 calendar years and pay a fine of $500,000.
  9         2.  Any person who knowingly sells, purchases,
10  manufactures, delivers, or brings into this state or who is
11  knowingly in actual or constructive possession of 30 kilograms
12  or more of flunitrazepam or any mixture containing
13  flunitrazepam as described in s. 893.03(1)(a) commits the
14  first degree felony of trafficking in flunitrazepam.  A person
15  who has been convicted of the first degree felony of
16  trafficking in flunitrazepam under this subparagraph shall be
17  punished by life imprisonment and is ineligible for any form
18  of discretionary early release except pardon or executive
19  clemency or conditional medical release under s. 947.149.
20  However, if the court determines that, in addition to
21  committing any act specified in this paragraph:
22         a.  The person intentionally killed an individual or
23  counseled, commanded, induced, procured, or caused the
24  intentional killing of an individual and such killing was the
25  result; or
26         b.  The person's conduct in committing that act led to
27  a natural, though not inevitable, lethal result,
28
29  such person commits the capital felony of trafficking in
30  flunitrazepam, punishable as provided in ss. 775.082 and
31  921.142.  Any person sentenced for a capital felony under this
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  1  paragraph shall also be sentenced to pay the maximum fine
  2  provided under subparagraph 1.
  3         (2)  A person acts knowingly under subsection (1) if
  4  that person intends to sell, purchase, manufacture, deliver,
  5  or bring into this state, or to actually or constructively
  6  possess, any of the controlled substances listed in subsection
  7  (1), regardless of which controlled substance listed in
  8  subsection (1) is in fact sold, purchased, manufactured,
  9  delivered, or brought into this state, or actually or
10  constructively possessed.
11         (3)  Notwithstanding the provisions of s. 948.01, with
12  respect to any person who is found to have violated this
13  section, adjudication of guilt or imposition of sentence shall
14  not be suspended, deferred, or withheld, nor shall such person
15  be eligible for parole prior to serving the mandatory minimum
16  term of imprisonment prescribed by this section. A person
17  sentenced to a mandatory minimum term of imprisonment under
18  this section is not eligible for any form of discretionary
19  early release, except pardon or executive clemency or
20  conditional medical release under s. 947.149, prior to serving
21  the mandatory minimum term of imprisonment.
22         (4)  The state attorney may move the sentencing court
23  to reduce or suspend the sentence of any person who is
24  convicted of a violation of this section and who provides
25  substantial assistance in the identification, arrest, or
26  conviction of any of that person's accomplices, accessories,
27  coconspirators, or principals or of any other person engaged
28  in trafficking in controlled substances.  The arresting agency
29  shall be given an opportunity to be heard in aggravation or
30  mitigation in reference to any such motion.  Upon good cause
31  shown, the motion may be filed and heard in camera.  The judge
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  1  hearing the motion may reduce or suspend the sentence if the
  2  judge finds that the defendant rendered such substantial
  3  assistance.
  4         (5)  Any person who agrees, conspires, combines, or
  5  confederates with another person to commit any act prohibited
  6  by subsection (1) commits a felony of the first degree and is
  7  punishable as if he or she had actually committed such
  8  prohibited act. Nothing in this subsection shall be construed
  9  to prohibit separate convictions and sentences for a violation
10  of this subsection and any violation of subsection (1).
11         Section 10.  For the purpose of incorporating the
12  amendment to section 893.135, Florida Statutes, in references
13  thereto, the following sections or subdivisions of Florida
14  Statutes, or Florida Statutes, 1998 Supplement, are reenacted
15  to read:
16         397.451  Background checks of service provider
17  personnel who have direct contact with unmarried minor clients
18  or clients who are developmentally disabled.--
19         (7)  DISQUALIFICATION FROM RECEIVING STATE
20  FUNDS.--State funds may not be disseminated to any service
21  provider owned or operated by an owner or director who has
22  been convicted of, has entered a plea of guilty or nolo
23  contendere to, or has had adjudication withheld for, a
24  violation of s. 893.135 pertaining to trafficking in
25  controlled substances, or a violation of the law of another
26  state, the District of Columbia, the United States or any
27  possession or territory thereof, or any foreign jurisdiction
28  which is substantially similar in elements and penalties to a
29  trafficking offense in this state, unless the owner's or
30  director's civil rights have been restored.
31         782.04  Murder.--
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  1         (4)  The unlawful killing of a human being, when
  2  perpetrated without any design to effect death, by a person
  3  engaged in the perpetration of, or in the attempt to
  4  perpetrate, any felony other than any:
  5         (a)  Trafficking offense prohibited by s. 893.135(1),
  6
  7  is murder in the third degree and constitutes a felony of the
  8  second degree, punishable as provided in s. 775.082, s.
  9  775.083, or s. 775.084.
10         893.1351  Lease or rent for the purpose of trafficking
11  in a controlled substance.--
12         (1)  A person may not lease or rent any place,
13  structure, or part thereof, trailer, or other conveyance, with
14  the knowledge that such place, structure, trailer, or
15  conveyance will be used for the purpose of trafficking in a
16  controlled substance, as provided in s. 893.135, or the sale
17  of a controlled substance, as provided in s. 893.13.
18         903.133  Bail on appeal; prohibited for certain felony
19  convictions.--Notwithstanding the provisions of s. 903.132, no
20  person adjudged guilty of a felony of the first degree for a
21  violation of s. 782.04(2) or (3), s. 787.01, s. 794.011(4), s.
22  806.01, s. 893.13, or s. 893.135, or adjudged guilty of a
23  violation of s. 794.011(2) or (3), shall be admitted to bail
24  pending review either by posttrial motion or appeal.
25         907.041  Pretrial detention and release.--
26         (4)  PRETRIAL DETENTION.--
27         (b)  The court may order pretrial detention if it finds
28  a substantial probability, based on a defendant's past and
29  present patterns of behavior, the criteria in s. 903.046, and
30  any other relevant facts, that:
31
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  1         1.  The defendant has previously violated conditions of
  2  release and that no further conditions of release are
  3  reasonably likely to assure the defendant's appearance at
  4  subsequent proceedings;
  5         2.  The defendant, with the intent to obstruct the
  6  judicial process, has threatened, intimidated, or injured any
  7  victim, potential witness, juror, or judicial officer, or has
  8  attempted or conspired to do so, and that no condition of
  9  release will reasonably prevent the obstruction of the
10  judicial process;
11         3.  The defendant is charged with trafficking in
12  controlled substances as defined by s. 893.135, that there is
13  a substantial probability that the defendant has committed the
14  offense, and that no conditions of release will reasonably
15  assure the defendant's appearance at subsequent criminal
16  proceedings; or
17         4.  The defendant poses the threat of harm to the
18  community.  The court may so conclude if it finds that the
19  defendant is presently charged with a dangerous crime, that
20  there is a substantial probability that the defendant
21  committed such crime, that the factual circumstances of the
22  crime indicate a disregard for the safety of the community,
23  and that there are no conditions of release reasonably
24  sufficient to protect the community from the risk of physical
25  harm to persons. In addition, the court must find that at
26  least one of the following conditions is present:
27         a.  The defendant has previously been convicted of a
28  crime punishable by death or life imprisonment.
29         b.  The defendant has been convicted of a dangerous
30  crime within the 10 years immediately preceding the date of
31  his or her arrest for the crime presently charged.
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  1         c.  The defendant is on probation, parole, or other
  2  release pending completion of sentence or on pretrial release
  3  for a dangerous crime at the time of the current arrest.
  4         921.0022  Criminal Punishment Code; offense severity
  5  ranking chart.--
  6         (3)  OFFENSE SEVERITY RANKING CHART
  7
  8  Florida           Felony
  9  Statute           Degree             Description
10
11                              (g)  LEVEL 7
12  316.193(3)(c)2.    3rd      DUI resulting in serious bodily
13                              injury.
14  327.35(3)(c)2.     3rd      Vessel BUI resulting in serious
15                              bodily injury.
16  409.920(2)         3rd      Medicaid provider fraud.
17  494.0018(2)        1st      Conviction of any violation of
18                              ss. 494.001-494.0077 in which the
19                              total money and property
20                              unlawfully obtained exceeded
21                              $50,000 and there were five or
22                              more victims.
23  782.051(3)         2nd      Attempted felony murder of a
24                              person by a person other than the
25                              perpetrator or the perpetrator of
26                              an attempted felony.
27  782.07(1)          2nd      Killing of a human being by the
28                              act, procurement, or culpable
29                              negligence of another
30                              (manslaughter).
31
                                  49
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  1  782.071            3rd      Killing of human being or viable
  2                              fetus by the operation of a motor
  3                              vehicle in a reckless manner
  4                              (vehicular homicide).
  5  782.072            3rd      Killing of a human being by the
  6                              operation of a vessel in a
  7                              reckless manner (vessel
  8                              homicide).
  9  784.045(1)(a)1.    2nd      Aggravated battery; intentionally
10                              causing great bodily harm or
11                              disfigurement.
12  784.045(1)(a)2.    2nd      Aggravated battery; using deadly
13                              weapon.
14  784.045(1)(b)      2nd      Aggravated battery; perpetrator
15                              aware victim pregnant.
16  784.048(4)         3rd      Aggravated stalking; violation of
17                              injunction or court order.
18  784.07(2)(d)       1st      Aggravated battery on law
19                              enforcement officer.
20  784.08(2)(a)       1st      Aggravated battery on a person 65
21                              years of age or older.
22  784.081(1)         1st      Aggravated battery on specified
23                              official or employee.
24  784.082(1)         1st      Aggravated battery by detained
25                              person on visitor or other
26                              detainee.
27  784.083(1)         1st      Aggravated battery on code
28                              inspector.
29  790.07(4)          1st      Specified weapons violation
30                              subsequent to previous conviction
31                              of s. 790.07(1) or (2).
                                  50
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  1  790.16(1)          1st      Discharge of a machine gun under
  2                              specified circumstances.
  3  796.03             2nd      Procuring any person under 16
  4                              years for prostitution.
  5  800.04             2nd      Handle, fondle, or assault child
  6                              under 16 years in lewd,
  7                              lascivious, or indecent manner.
  8  806.01(2)          2nd      Maliciously damage structure by
  9                              fire or explosive.
10  810.02(3)(a)       2nd      Burglary of occupied dwelling;
11                              unarmed; no assault or battery.
12  810.02(3)(b)       2nd      Burglary of unoccupied dwelling;
13                              unarmed; no assault or battery.
14  810.02(3)(d)       2nd      Burglary of occupied conveyance;
15                              unarmed; no assault or battery.
16  812.014(2)(a)      1st      Property stolen, valued at
17                              $100,000 or more; property stolen
18                              while causing other property
19                              damage; 1st degree grand theft.
20  812.019(2)         1st      Stolen property; initiates,
21                              organizes, plans, etc., the theft
22                              of property and traffics in
23                              stolen property.
24  812.133(2)(b)      1st      Carjacking; no firearm, deadly
25                              weapon, or other weapon.
26  825.102(3)(b)      2nd      Neglecting an elderly person or
27                              disabled adult causing great
28                              bodily harm, disability, or
29                              disfigurement.
30
31
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  1  825.1025(2)        2nd      Lewd or lascivious battery upon
  2                              an elderly person or disabled
  3                              adult.
  4  825.103(2)(b)      2nd      Exploiting an elderly person or
  5                              disabled adult and property is
  6                              valued at $20,000 or more, but
  7                              less than $100,000.
  8  827.03(3)(b)       2nd      Neglect of a child causing great
  9                              bodily harm, disability, or
10                              disfigurement.
11  827.04(4)          3rd      Impregnation of a child under 16
12                              years of age by person 21 years
13                              of age or older.
14  837.05(2)          3rd      Giving false information about
15                              alleged capital felony to a law
16                              enforcement officer.
17  872.06             2nd      Abuse of a dead human body.
18  893.13(1)(c)1.     1st      Sell, manufacture, or deliver
19                              cocaine (or other drug prohibited
20                              under s. 893.03(1)(a), (1)(b),
21                              (1)(d), (2)(a), or (2)(b)) within
22                              1,000 feet of a child care
23                              facility or school.
24  893.13(1)(e)       1st      Sell, manufacture, or deliver
25                              cocaine or other drug prohibited
26                              under s. 893.03(1)(a), (1)(b),
27                              (1)(d), (2)(a), or (2)(b), within
28                              1,000 feet of property used for
29                              religious services or a specified
30                              business site.
31
                                  52
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  1  893.13(4)(a)       1st      Deliver to minor cocaine (or
  2                              other s. 893.03(1)(a), (1)(b),
  3                              (1)(d), (2)(a), or (2)(b) drugs).
  4  893.135(1)(a)1.    1st      Trafficking in cannabis, more
  5                              than 50 lbs., less than 2,000
  6                              lbs.
  7  893.135
  8   (1)(b)1.a.        1st      Trafficking in cocaine, more than
  9                              28 grams, less than 200 grams.
10  893.135
11   (1)(c)1.a.        1st      Trafficking in illegal drugs,
12                              more than 4 grams, less than 14
13                              grams.
14  893.135
15   (1)(d)1.          1st      Trafficking in phencyclidine,
16                              more than 28 grams, less than 200
17                              grams.
18  893.135(1)(e)1.    1st      Trafficking in methaqualone, more
19                              than 200 grams, less than 5
20                              kilograms.
21  893.135(1)(f)1.    1st      Trafficking in amphetamine, more
22                              than 14 grams, less than 28
23                              grams.
24  893.135
25   (1)(g)1.a.        1st      Trafficking in flunitrazepam, 4
26                              grams or more, less than 14
27                              grams.
28                              (h)  LEVEL 8
29  316.193
30   (3)(c)3.a.        2nd      DUI manslaughter.
31  327.35(3)(c)3.     2nd      Vessel BUI manslaughter.
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  1  777.03(2)(a)       1st      Accessory after the fact, capital
  2                              felony.
  3  782.04(4)          2nd      Killing of human without design
  4                              when engaged in act or attempt of
  5                              any felony other than arson,
  6                              sexual battery, robbery,
  7                              burglary, kidnapping, aircraft
  8                              piracy, or unlawfully discharging
  9                              bomb.
10  782.051(2)         1st      Attempted felony murder while
11                              perpetrating or attempting to
12                              perpetrate a felony not
13                              enumerated in s. 782.04(3).
14  782.071(2)         2nd      Committing vehicular homicide and
15                              failing to render aid or give
16                              information.
17  782.072(2)         2nd      Committing vessel homicide and
18                              failing to render aid or give
19                              information.
20  790.161(3)         1st      Discharging a destructive device
21                              which results in bodily harm or
22                              property damage.
23  794.011(5)         2nd      Sexual battery, victim 12 years
24                              or over, offender does not use
25                              physical force likely to cause
26                              serious injury.
27  806.01(1)          1st      Maliciously damage dwelling or
28                              structure by fire or explosive,
29                              believing person in structure.
30  810.02(2)(a)       1st,PBL  Burglary with assault or battery.
31
                                  54
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  1  810.02(2)(b)       1st,PBL  Burglary; armed with explosives
  2                              or dangerous weapon.
  3  810.02(2)(c)       1st      Burglary of a dwelling or
  4                              structure causing structural
  5                              damage or $1,000 or more property
  6                              damage.
  7  812.13(2)(b)       1st      Robbery with a weapon.
  8  812.135(2)         1st      Home-invasion robbery.
  9  825.102(2)         2nd      Aggravated abuse of an elderly
10                              person or disabled adult.
11  825.103(2)(a)      1st      Exploiting an elderly person or
12                              disabled adult and property is
13                              valued at $100,000 or more.
14  827.03(2)          2nd      Aggravated child abuse.
15  837.02(2)          2nd      Perjury in official proceedings
16                              relating to prosecution of a
17                              capital felony.
18  837.021(2)         2nd      Making contradictory statements
19                              in official proceedings relating
20                              to prosecution of a capital
21                              felony.
22  860.121(2)(c)      1st      Shooting at or throwing any
23                              object in path of railroad
24                              vehicle resulting in great bodily
25                              harm.
26  860.16             1st      Aircraft piracy.
27  893.13(1)(b)       1st      Sell or deliver in excess of 10
28                              grams of any substance specified
29                              in s. 893.03(1)(a) or (b).
30
31
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  1  893.13(2)(b)       1st      Purchase in excess of 10 grams of
  2                              any substance specified in s.
  3                              893.03(1)(a) or (b).
  4  893.13(6)(c)       1st      Possess in excess of 10 grams of
  5                              any substance specified in s.
  6                              893.03(1)(a) or (b).
  7  893.135(1)(a)2.    1st      Trafficking in cannabis, more
  8                              than 2,000 lbs., less than 10,000
  9                              lbs.
10  893.135
11   (1)(b)1.b.        1st      Trafficking in cocaine, more than
12                              200 grams, less than 400 grams.
13  893.135
14   (1)(c)1.b.        1st      Trafficking in illegal drugs,
15                              more than 14 grams, less than 28
16                              grams.
17  893.135
18   (1)(d)1.b.        1st      Trafficking in phencyclidine,
19                              more than 200 grams, less than
20                              400 grams.
21  893.135
22   (1)(e)1.b.        1st      Trafficking in methaqualone, more
23                              than 5 kilograms, less than 25
24                              kilograms.
25  893.135
26   (1)(f)1.b.        1st      Trafficking in amphetamine, more
27                              than 28 grams, less than 200
28                              grams.
29
30
31
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  1  893.135
  2  (1)(g)1.b.         1st      Trafficking in flunitrazepam, 14
  3                              grams or more, less than 28
  4                              grams.
  5  895.03(1)          1st      Use or invest proceeds derived
  6                              from pattern of racketeering
  7                              activity.
  8  895.03(2)          1st      Acquire or maintain through
  9                              racketeering activity any
10                              interest in or control of any
11                              enterprise or real property.
12  895.03(3)          1st      Conduct or participate in any
13                              enterprise through pattern of
14                              racketeering activity.
15                              (i)  LEVEL 9
16  316.193
17   (3)(c)3.b.        1st      DUI manslaughter; failing to
18                              render aid or give information.
19  782.04(1)          1st      Attempt, conspire, or solicit to
20                              commit premeditated murder.
21  782.04(3)          1st,PBL   Accomplice to murder in
22                              connection with arson, sexual
23                              battery, robbery, burglary, and
24                              other specified felonies.
25  782.051(1)         1st      Attempted felony murder while
26                              perpetrating or attempting to
27                              perpetrate a felony enumerated in
28                              s. 782.04(3).
29  782.07(2)          1st      Aggravated manslaughter of an
30                              elderly person or disabled adult.
31
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  1  782.07(3)          1st      Aggravated manslaughter of a
  2                              child.
  3  787.01(1)(a)1.     1st,PBL  Kidnapping; hold for ransom or
  4                              reward or as a shield or hostage.
  5  787.01(1)(a)2.     1st,PBL  Kidnapping with intent to commit
  6                              or facilitate commission of any
  7                              felony.
  8  787.01(1)(a)4.     1st,PBL  Kidnapping with intent to
  9                              interfere with performance of any
10                              governmental or political
11                              function.
12  787.02(3)(a)       1st      False imprisonment; child under
13                              age 13; perpetrator also commits
14                              child abuse, sexual battery,
15                              lewd, or lascivious act, etc.
16  790.161            1st      Attempted capital destructive
17                              device offense.
18  794.011(2)         1st      Attempted sexual battery; victim
19                              less than 12 years of age.
20  794.011(2)         Life     Sexual battery; offender younger
21                              than 18 years and commits sexual
22                              battery on a person less than 12
23                              years.
24  794.011(4)         1st      Sexual battery; victim 12 years
25                              or older, certain circumstances.
26  794.011(8)(b)      1st      Sexual battery; engage in sexual
27                              conduct with minor 12 to 18 years
28                              by person in familial or
29                              custodial authority.
30  812.13(2)(a)       1st,PBL  Robbery with firearm or other
31                              deadly weapon.
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  1  812.133(2)(a)      1st,PBL  Carjacking; firearm or other
  2                              deadly weapon.
  3  847.0145(1)        1st      Selling, or otherwise
  4                              transferring custody or control,
  5                              of a minor.
  6  847.0145(2)        1st      Purchasing, or otherwise
  7                              obtaining custody or control, of
  8                              a minor.
  9  859.01             1st      Poisoning food, drink, medicine,
10                              or water with intent to kill or
11                              injure another person.
12  893.135            1st      Attempted capital trafficking
13                              offense.
14  893.135(1)(a)3.    1st      Trafficking in cannabis, more
15                              than 10,000 lbs.
16  893.135
17   (1)(b)1.c.        1st      Trafficking in cocaine, more than
18                              400 grams, less than 150
19                              kilograms.
20  893.135
21   (1)(c)1.c.        1st      Trafficking in illegal drugs,
22                              more than 28 grams, less than 30
23                              kilograms.
24  893.135
25   (1)(d)1.c.        1st      Trafficking in phencyclidine,
26                              more than 400 grams.
27  893.135
28   (1)(e)1.c.        1st      Trafficking in methaqualone, more
29                              than 25 kilograms.
30
31
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  1  893.135
  2   (1)(f)1.c.        1st      Trafficking in amphetamine, more
  3                              than 200 grams.
  4                              (j)  LEVEL 10
  5  782.04(2)          1st,PBL  Unlawful killing of human; act is
  6                              homicide, unpremeditated.
  7  787.01(1)(a)3.     1st,PBL  Kidnapping; inflict bodily harm
  8                              upon or terrorize victim.
  9  787.01(3)(a)       Life     Kidnapping; child under age 13,
10                              perpetrator also commits child
11                              abuse, sexual battery, lewd, or
12                              lascivious act, etc.
13  794.011(3)         Life     Sexual battery; victim 12 years
14                              or older, offender uses or
15                              threatens to use deadly weapon or
16                              physical force to cause serious
17                              injury.
18  876.32             1st      Treason against the state.
19         921.0024  Criminal Punishment Code; worksheet
20  computations; scoresheets.--
21         (1)
22                       (b)  WORKSHEET KEY:
23
24  Legal status points are assessed when any form of legal status
25  existed at the time the offender committed an offense before
26  the court for sentencing. Four (4) sentence points are
27  assessed for an offender's legal status.
28
29  Community sanction violation points are assessed when a
30  community sanction violation is before the court for
31  sentencing.  Six (6) sentence points are assessed for each
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  1  community sanction violation, and each successive community
  2  sanction violation; however, if the community sanction
  3  violation includes a new felony conviction before the
  4  sentencing court, twelve (12) community sanction violation
  5  points are assessed for such violation, and for each
  6  successive community sanction violation involving a new felony
  7  conviction. Multiple counts of community sanction violations
  8  before the sentencing court shall not be a basis for
  9  multiplying the assessment of community sanction violation
10  points.
11
12  Prior serious felony points: If the offender has a primary
13  offense or any additional offense ranked in level 8, level 9,
14  or level 10, and one or more prior serious felonies, a single
15  assessment of 30 points shall be added. For purposes of this
16  section, a prior serious felony is an offense in the
17  offender's prior record that is ranked in level 8, level 9, or
18  level 10 under s. 921.0022 or s. 921.0023 and for which the
19  offender is serving a sentence of confinement, supervision, or
20  other sanction or for which the offender's date of release
21  from confinement, supervision, or other sanction, whichever is
22  later, is within 3 years before the date the primary offense
23  or any additional offense was committed.
24
25  Prior capital felony points:  If the offender has one or more
26  prior capital felonies in the offender's criminal record,
27  points shall be added to the subtotal sentence points of the
28  offender equal to twice the number of points the offender
29  receives for the primary offense and any additional offense.
30  A prior capital felony in the offender's criminal record is a
31  previous capital felony offense for which the offender has
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  1  entered a plea of nolo contendere or guilty or has been found
  2  guilty; or a felony in another jurisdiction which is a capital
  3  felony in that jurisdiction, or would be a capital felony if
  4  the offense were committed in this state.
  5
  6  Possession of a firearm, semiautomatic firearm, or machine
  7  gun:  If the offender is convicted of committing or attempting
  8  to commit any felony other than those enumerated in s.
  9  775.087(2) while having in his possession: a firearm as
10  defined in s. 790.001(6), an additional 18 sentence points are
11  assessed; or if the offender is convicted of committing or
12  attempting to commit any felony other than those enumerated in
13  s. 775.087(3) while having in his possession a semiautomatic
14  firearm as defined in s. 775.087(3) or a machine gun as
15  defined in s. 790.001(9), an additional 25 sentence points are
16  assessed.
17
18  Sentencing multipliers:
19
20  Drug trafficking:  If the primary offense is drug trafficking
21  under s. 893.135, the subtotal sentence points are multiplied,
22  at the discretion of the court, for a level 7 or level 8
23  offense, by 1.5.  The state attorney may move the sentencing
24  court to reduce or suspend the sentence of a person convicted
25  of a level 7 or level 8 offense, if the offender provides
26  substantial assistance as described in s. 893.135(4).
27
28  Law enforcement protection:  If the primary offense is a
29  violation of the Law Enforcement Protection Act under s.
30  775.0823(2), the subtotal sentence points are multiplied by
31  2.5.  If the primary offense is a violation of s. 775.0823(3),
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  1  (4), (5), (6), (7), or (8), the subtotal sentence points are
  2  multiplied by 2.0. If the primary offense is a violation of s.
  3  784.07(3) or s. 775.0875(1), or of the Law Enforcement
  4  Protection Act under s. 775.0823(9) or (10), the subtotal
  5  sentence points are multiplied by 1.5.
  6
  7  Grand theft of a motor vehicle:  If the primary offense is
  8  grand theft of the third degree involving a motor vehicle and
  9  in the offender's prior record, there are three or more grand
10  thefts of the third degree involving a motor vehicle, the
11  subtotal sentence points are multiplied by 1.5.
12
13  Criminal street gang member:  If the offender is convicted of
14  the primary offense and is found to have been a member of a
15  criminal street gang at the time of the commission of the
16  primary offense pursuant to s. 874.04, the subtotal sentence
17  points are multiplied by 1.5.
18
19  Domestic violence in the presence of a child:  If the offender
20  is convicted of the primary offense and the primary offense is
21  a crime of domestic violence, as defined in s. 741.28, which
22  was committed in the presence of a child under 16 years of age
23  who is a family household member as defined in s. 741.28(2)
24  with the victim or perpetrator, the subtotal sentence points
25  are multiplied, at the discretion of the court, by 1.5.
26         921.142  Sentence of death or life imprisonment for
27  capital drug trafficking felonies; further proceedings to
28  determine sentence.--
29         (2)  SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.--Upon
30  conviction or adjudication of guilt of a defendant of a
31  capital felony under s. 893.135, the court shall conduct a
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  1  separate sentencing proceeding to determine whether the
  2  defendant should be sentenced to death or life imprisonment as
  3  authorized by s. 775.082.  The proceeding shall be conducted
  4  by the trial judge before the trial jury as soon as
  5  practicable.  If, through impossibility or inability, the
  6  trial jury is unable to reconvene for a hearing on the issue
  7  of penalty, having determined the guilt of the accused, the
  8  trial judge may summon a special juror or jurors as provided
  9  in chapter 913 to determine the issue of the imposition of the
10  penalty.  If the trial jury has been waived, or if the
11  defendant pleaded guilty, the sentencing proceeding shall be
12  conducted before a jury impaneled for that purpose, unless
13  waived by the defendant.  In the proceeding, evidence may be
14  presented as to any matter that the court deems relevant to
15  the nature of the crime and the character of the defendant and
16  shall include matters relating to any of the aggravating or
17  mitigating circumstances enumerated in subsections (6) and
18  (7).  Any such evidence which the court deems to have
19  probative value may be received, regardless of its
20  admissibility under the exclusionary rules of evidence,
21  provided the defendant is accorded a fair opportunity to rebut
22  any hearsay statements.  However, this subsection shall not be
23  construed to authorize the introduction of any evidence
24  secured in violation of the Constitution of the United States
25  or the Constitution of the State of Florida. The state and the
26  defendant or the defendant's counsel shall be permitted to
27  present argument for or against sentence of death.
28         943.0585  Court-ordered expunction of criminal history
29  records.--The courts of this state have jurisdiction over
30  their own procedures, including the maintenance, expunction,
31  and correction of judicial records containing criminal history
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  1  information to the extent such procedures are not inconsistent
  2  with the conditions, responsibilities, and duties established
  3  by this section.  Any court of competent jurisdiction may
  4  order a criminal justice agency to expunge the criminal
  5  history record of a minor or an adult who complies with the
  6  requirements of this section.  The court shall not order a
  7  criminal justice agency to expunge a criminal history record
  8  until the person seeking to expunge a criminal history record
  9  has applied for and received a certificate of eligibility for
10  expunction pursuant to subsection (2).  A criminal history
11  record that relates to a violation of chapter 794, s. 800.04,
12  s. 817.034, s. 827.071, chapter 839, s. 893.135, or a
13  violation enumerated in s. 907.041 may not be expunged,
14  without regard to whether adjudication was withheld, if the
15  defendant was found guilty of or pled guilty or nolo
16  contendere to the offense, or if the defendant, as a minor,
17  was found to have committed, or pled guilty or nolo contendere
18  to committing, the offense as a delinquent act. The court may
19  only order expunction of a criminal history record pertaining
20  to one arrest or one incident of alleged criminal activity,
21  except as provided in this section. The court may, at its sole
22  discretion, order the expunction of a criminal history record
23  pertaining to more than one arrest if the additional arrests
24  directly relate to the original arrest. If the court intends
25  to order the expunction of records pertaining to such
26  additional arrests, such intent must be specified in the
27  order. A criminal justice agency may not expunge any record
28  pertaining to such additional arrests if the order to expunge
29  does not articulate the intention of the court to expunge a
30  record pertaining to more than one arrest. This section does
31  not prevent the court from ordering the expunction of only a
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  1  portion of a criminal history record pertaining to one arrest
  2  or one incident of alleged criminal activity.  Notwithstanding
  3  any law to the contrary, a criminal justice agency may comply
  4  with laws, court orders, and official requests of other
  5  jurisdictions relating to expunction, correction, or
  6  confidential handling of criminal history records or
  7  information derived therefrom.  This section does not confer
  8  any right to the expunction of any criminal history record,
  9  and any request for expunction of a criminal history record
10  may be denied at the sole discretion of the court.
11         (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY
12  RECORD.--Each petition to a court to expunge a criminal
13  history record is complete only when accompanied by:
14         (a)  A certificate of eligibility for expunction issued
15  by the department pursuant to subsection (2).
16         (b)  The petitioner's sworn statement attesting that
17  the petitioner:
18         1.  Has never previously been adjudicated guilty of a
19  criminal offense or comparable ordinance violation or
20  adjudicated delinquent for committing a felony or a
21  misdemeanor specified in s. 943.051(3)(b).
22         2.  Has not been adjudicated guilty of, or adjudicated
23  delinquent for committing, any of the acts stemming from the
24  arrest or alleged criminal activity to which the petition
25  pertains.
26         3.  Has never secured a prior sealing or expunction of
27  a criminal history record under this section, former s.
28  893.14, former s. 901.33, or former s. 943.058, or from any
29  jurisdiction outside the state.
30         4.  Is eligible for such an expunction to the best of
31  his or her knowledge or belief and does not have any other
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  1  petition to expunge or any petition to seal pending before any
  2  court.
  3
  4  Any person who knowingly provides false information on such
  5  sworn statement to the court commits a felony of the third
  6  degree, punishable as provided in s. 775.082, s. 775.083, or
  7  s. 775.084.
  8         (2)  CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior
  9  to petitioning the court to expunge a criminal history record,
10  a person seeking to expunge a criminal history record shall
11  apply to the department for a certificate of eligibility for
12  expunction. The department shall, by rule adopted pursuant to
13  chapter 120, establish procedures pertaining to the
14  application for and issuance of certificates of eligibility
15  for expunction. The department shall issue a certificate of
16  eligibility for expunction to a person who is the subject of a
17  criminal history record if that person:
18         (a)  Has obtained, and submitted to the department, a
19  written, certified statement from the appropriate state
20  attorney or statewide prosecutor which indicates:
21         1.  That an indictment, information, or other charging
22  document was not filed or issued in the case.
23         2.  That an indictment, information, or other charging
24  document, if filed or issued in the case, was dismissed or
25  nolle prosequi by the state attorney or statewide prosecutor,
26  or was dismissed by a court of competent jurisdiction.
27         3.  That the criminal history record does not relate to
28  a violation of chapter 794, s. 800.04, s. 817.034, s. 827.071,
29  chapter 839, s. 893.135, or a violation enumerated in s.
30  907.041, where the defendant was found guilty of, or pled
31  guilty or nolo contendere to any such offense, or that the
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  1  defendant, as a minor, was found to have committed, or pled
  2  guilty or nolo contendere to committing, such an offense as a
  3  delinquent act, without regard to whether adjudication was
  4  withheld.
  5         (b)  Remits a $75 processing fee to the department for
  6  placement in the Department of Law Enforcement Operating Trust
  7  Fund, unless such fee is waived by the executive director.
  8         (c)  Has submitted to the department a certified copy
  9  of the disposition of the charge to which the petition to
10  expunge pertains.
11         (d)  Has never previously been adjudicated guilty of a
12  criminal offense or comparable ordinance violation or
13  adjudicated delinquent for committing a felony or a
14  misdemeanor specified in s. 943.051(3)(b).
15         (e)  Has not been adjudicated guilty of, or adjudicated
16  delinquent for committing, any of the acts stemming from the
17  arrest or alleged criminal activity to which the petition to
18  expunge pertains.
19         (f)  Has never secured a prior sealing or expunction of
20  a criminal history record under this section, former s.
21  893.14, former s. 901.33, or former s. 943.058.
22         (g)  Is no longer under court supervision applicable to
23  the disposition of the arrest or alleged criminal activity to
24  which the petition to expunge pertains.
25         (h)  Is not required to wait a minimum of 10 years
26  prior to being eligible for an expunction of such records
27  because all charges related to the arrest or criminal activity
28  to which the petition to expunge pertains were dismissed prior
29  to trial, adjudication, or the withholding of adjudication.
30  Otherwise, such criminal history record must be sealed under
31  this section, former s. 893.14, former s. 901.33, or former s.
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  1  943.058 for at least 10 years before such record is eligible
  2  for expunction.
  3         (3)  PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--
  4         (a)  In judicial proceedings under this section, a copy
  5  of the completed petition to expunge shall be served upon the
  6  appropriate state attorney or the statewide prosecutor and
  7  upon the arresting agency; however, it is not necessary to
  8  make any agency other than the state a party. The appropriate
  9  state attorney or the statewide prosecutor and the arresting
10  agency may respond to the court regarding the completed
11  petition to expunge.
12         (b)  If relief is granted by the court, the clerk of
13  the court shall certify copies of the order to the appropriate
14  state attorney or the statewide prosecutor and the arresting
15  agency. The arresting agency is responsible for forwarding the
16  order to any other agency to which the arresting agency
17  disseminated the criminal history record information to which
18  the order pertains. The department shall forward the order to
19  expunge to the Federal Bureau of Investigation. The clerk of
20  the court shall certify a copy of the order to any other
21  agency which the records of the court reflect has received the
22  criminal history record from the court.
23         (c)  For an order to expunge entered by a court prior
24  to July 1, 1992, the department shall notify the appropriate
25  state attorney or statewide prosecutor of an order to expunge
26  which is contrary to law because the person who is the subject
27  of the record has previously been convicted of a crime or
28  comparable ordinance violation or has had a prior criminal
29  history record sealed or expunged. Upon receipt of such
30  notice, the appropriate state attorney or statewide prosecutor
31  shall take action, within 60 days, to correct the record and
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  1  petition the court to void the order to expunge. The
  2  department shall seal the record until such time as the order
  3  is voided by the court.
  4         (d)  On or after July 1, 1992, the department or any
  5  other criminal justice agency is not required to act on an
  6  order to expunge entered by a court when such order does not
  7  comply with the requirements of this section. Upon receipt of
  8  such an order, the department must notify the issuing court,
  9  the appropriate state attorney or statewide prosecutor, the
10  petitioner or the petitioner's attorney, and the arresting
11  agency of the reason for noncompliance. The appropriate state
12  attorney or statewide prosecutor shall take action within 60
13  days to correct the record and petition the court to void the
14  order.  No cause of action, including contempt of court, shall
15  arise against any criminal justice agency for failure to
16  comply with an order to expunge when the petitioner for such
17  order failed to obtain the certificate of eligibility as
18  required by this section or such order does not otherwise
19  comply with the requirements of this section.
20         (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any
21  criminal history record of a minor or an adult which is
22  ordered expunged by a court of competent jurisdiction pursuant
23  to this section must be physically destroyed or obliterated by
24  any criminal justice agency having custody of such record;
25  except that any criminal history record in the custody of the
26  department must be retained in all cases. A criminal history
27  record ordered expunged that is retained by the department is
28  confidential and exempt from the provisions of s. 119.07(1)
29  and s. 24(a), Art. I of the State Constitution and not
30  available to any person or entity except upon order of a court
31  of competent jurisdiction. A criminal justice agency may
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  1  retain a notation indicating compliance with an order to
  2  expunge.
  3         (a)  The person who is the subject of a criminal
  4  history record that is expunged under this section or under
  5  other provisions of law, including former s. 893.14, former s.
  6  901.33, and former s. 943.058, may lawfully deny or fail to
  7  acknowledge the arrests covered by the expunged record, except
  8  when the subject of the record:
  9         1.  Is a candidate for employment with a criminal
10  justice agency;
11         2.  Is a defendant in a criminal prosecution;
12         3.  Concurrently or subsequently petitions for relief
13  under this section or s. 943.059;
14         4.  Is a candidate for admission to The Florida Bar;
15         5.  Is seeking to be employed or licensed by or to
16  contract with the Department of Children and Family Services
17  or the Department of Juvenile Justice or to be employed or
18  used by such contractor or licensee in a sensitive position
19  having direct contact with children, the developmentally
20  disabled, the aged, or the elderly as provided in s.
21  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.
22  402.302(8), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.
23  415.1075(4), s. 985.407, or chapter 400; or
24         6.  Is seeking to be employed or licensed by the Office
25  of Teacher Education, Certification, Staff Development, and
26  Professional Practices of the Department of Education, any
27  district school board, or any local governmental entity that
28  licenses child care facilities.
29         (b)  Subject to the exceptions in paragraph (a), a
30  person who has been granted an expunction under this section,
31  former s. 893.14, former s. 901.33, or former s. 943.058 may
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  1  not be held under any provision of law of this state to commit
  2  perjury or to be otherwise liable for giving a false statement
  3  by reason of such person's failure to recite or acknowledge an
  4  expunged criminal history record.
  5         (c)  Information relating to the existence of an
  6  expunged criminal history record which is provided in
  7  accordance with paragraph (a) is confidential and exempt from
  8  the provisions of s. 119.07(1) and s. 24(a), Art. I of the
  9  State Constitution, except that the department shall disclose
10  the existence of a criminal history record ordered expunged to
11  the entities set forth in subparagraphs (a)1., 4., 5., and 6.
12  for their respective licensing and employment purposes, and to
13  criminal justice agencies for their respective criminal
14  justice purposes.  It is unlawful for any employee of an
15  entity set forth in subparagraph (a)1., subparagraph (a)4.,
16  subparagraph (a)5., or subparagraph (a)6. to disclose
17  information relating to the existence of an expunged criminal
18  history record of a person seeking employment or licensure
19  with such entity or contractor, except to the person to whom
20  the criminal history record relates or to persons having
21  direct responsibility for employment or licensure decisions.
22  Any person who violates this paragraph commits a misdemeanor
23  of the first degree, punishable as provided in s. 775.082 or
24  s. 775.083.
25         943.059  Court-ordered sealing of criminal history
26  records.--The courts of this state shall continue to have
27  jurisdiction over their own procedures, including the
28  maintenance, sealing, and correction of judicial records
29  containing criminal history information to the extent such
30  procedures are not inconsistent with the conditions,
31  responsibilities, and duties established by this section.  Any
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  1  court of competent jurisdiction may order a criminal justice
  2  agency to seal the criminal history record of a minor or an
  3  adult who complies with the requirements of this section.  The
  4  court shall not order a criminal justice agency to seal a
  5  criminal history record until the person seeking to seal a
  6  criminal history record has applied for and received a
  7  certificate of eligibility for sealing pursuant to subsection
  8  (2).  A criminal history record that relates to a violation of
  9  chapter 794, s. 800.04, s. 817.034, s. 827.071, chapter 839,
10  s. 893.135, or a violation enumerated in s. 907.041 may not be
11  sealed, without regard to whether adjudication was withheld,
12  if the defendant was found guilty of or pled guilty or nolo
13  contendere to the offense, or if the defendant, as a minor,
14  was found to have committed or pled guilty or nolo contendere
15  to committing the offense as a delinquent act.  The court may
16  only order sealing of a criminal history record pertaining to
17  one arrest or one incident of alleged criminal activity,
18  except as provided in this section. The court may, at its sole
19  discretion, order the sealing of a criminal history record
20  pertaining to more than one arrest if the additional arrests
21  directly relate to the original arrest.  If the court intends
22  to order the sealing of records pertaining to such additional
23  arrests, such intent must be specified in the order.  A
24  criminal justice agency may not seal any record pertaining to
25  such additional arrests if the order to seal does not
26  articulate the intention of the court to seal records
27  pertaining to more than one arrest.  This section does not
28  prevent the court from ordering the sealing of only a portion
29  of a criminal history record pertaining to one arrest or one
30  incident of alleged criminal activity. Notwithstanding any law
31  to the contrary, a criminal justice agency may comply with
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  1  laws, court orders, and official requests of other
  2  jurisdictions relating to sealing, correction, or confidential
  3  handling of criminal history records or information derived
  4  therefrom.  This section does not confer any right to the
  5  sealing of any criminal history record, and any request for
  6  sealing a criminal history record may be denied at the sole
  7  discretion of the court.
  8         (1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each
  9  petition to a court to seal a criminal history record is
10  complete only when accompanied by:
11         (a)  A certificate of eligibility for sealing issued by
12  the department pursuant to subsection (2).
13         (b)  The petitioner's sworn statement attesting that
14  the petitioner:
15         1.  Has never previously been adjudicated guilty of a
16  criminal offense or comparable ordinance violation or
17  adjudicated delinquent for committing a felony or a
18  misdemeanor specified in s. 943.051(3)(b).
19         2.  Has not been adjudicated guilty of or adjudicated
20  delinquent for committing any of the acts stemming from the
21  arrest or alleged criminal activity to which the petition to
22  seal pertains.
23         3.  Has never secured a prior sealing or expunction of
24  a criminal history record under this section, former s.
25  893.14, former s. 901.33, former s. 943.058, or from any
26  jurisdiction outside the state.
27         4.  Is eligible for such a sealing to the best of his
28  or her knowledge or belief and does not have any other
29  petition to seal or any petition to expunge pending before any
30  court.
31
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  1  Any person who knowingly provides false information on such
  2  sworn statement to the court commits a felony of the third
  3  degree, punishable as provided in s. 775.082, s. 775.083, or
  4  s. 775.084.
  5         (2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to
  6  petitioning the court to seal a criminal history record, a
  7  person seeking to seal a criminal history record shall apply
  8  to the department for a certificate of eligibility for
  9  sealing.  The department shall, by rule adopted pursuant to
10  chapter 120, establish procedures pertaining to the
11  application for and issuance of certificates of eligibility
12  for sealing.  The department shall issue a certificate of
13  eligibility for sealing to a person who is the subject of a
14  criminal history record provided that such person:
15         (a)  Has submitted to the department a certified copy
16  of the disposition of the charge to which the petition to seal
17  pertains.
18         (b)  Remits a $75 processing fee to the department for
19  placement in the Department of Law Enforcement Operating Trust
20  Fund, unless such fee is waived by the executive director.
21         (c)  Has never previously been adjudicated guilty of a
22  criminal offense or comparable ordinance violation or
23  adjudicated delinquent for committing a felony or a
24  misdemeanor specified in s. 943.051(3)(b).
25         (d)  Has not been adjudicated guilty of or adjudicated
26  delinquent for committing any of the acts stemming from the
27  arrest or alleged criminal activity to which the petition to
28  seal pertains.
29         (e)  Has never secured a prior sealing or expunction of
30  a criminal history record under this section, former s.
31  893.14, former s. 901.33, or former s. 943.058.
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  1         (f)  Is no longer under court supervision applicable to
  2  the disposition of the arrest or alleged criminal activity to
  3  which the petition to seal pertains.
  4         (3)  PROCESSING OF A PETITION OR ORDER TO SEAL.--
  5         (a)  In judicial proceedings under this section, a copy
  6  of the completed petition to seal shall be served upon the
  7  appropriate state attorney or the statewide prosecutor and
  8  upon the arresting agency; however, it is not necessary to
  9  make any agency other than the state a party.  The appropriate
10  state attorney or the statewide prosecutor and the arresting
11  agency may respond to the court regarding the completed
12  petition to seal.
13         (b)  If relief is granted by the court, the clerk of
14  the court shall certify copies of the order to the appropriate
15  state attorney or the statewide prosecutor and to the
16  arresting agency. The arresting agency is responsible for
17  forwarding the order to any other agency to which the
18  arresting agency disseminated the criminal history record
19  information to which the order pertains. The department shall
20  forward the order to seal to the Federal Bureau of
21  Investigation. The clerk of the court shall certify a copy of
22  the order to any other agency which the records of the court
23  reflect has received the criminal history record from the
24  court.
25         (c)  For an order to seal entered by a court prior to
26  July 1, 1992, the department shall notify the appropriate
27  state attorney or statewide prosecutor of any order to seal
28  which is contrary to law because the person who is the subject
29  of the record has previously been convicted of a crime or
30  comparable ordinance violation or has had a prior criminal
31  history record sealed or expunged.  Upon receipt of such
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  1  notice, the appropriate state attorney or statewide prosecutor
  2  shall take action, within 60 days, to correct the record and
  3  petition the court to void the order to seal.  The department
  4  shall seal the record until such time as the order is voided
  5  by the court.
  6         (d)  On or after July 1, 1992, the department or any
  7  other criminal justice agency is not required to act on an
  8  order to seal entered by a court when such order does not
  9  comply with the requirements of this section.  Upon receipt of
10  such an order, the department must notify the issuing court,
11  the appropriate state attorney or statewide prosecutor, the
12  petitioner or the petitioner's attorney, and the arresting
13  agency of the reason for noncompliance. The appropriate state
14  attorney or statewide prosecutor shall take action within 60
15  days to correct the record and petition the court to void the
16  order.  No cause of action, including contempt of court, shall
17  arise against any criminal justice agency for failure to
18  comply with an order to seal when the petitioner for such
19  order failed to obtain the certificate of eligibility as
20  required by this section or when such order does not comply
21  with the requirements of this section.
22         (e)  An order sealing a criminal history record
23  pursuant to this section does not require that such record be
24  surrendered to the court, and such record shall continue to be
25  maintained by the department and other criminal justice
26  agencies.
27         (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A
28  criminal history record of a minor or an adult which is
29  ordered sealed by a court of competent jurisdiction pursuant
30  to this section is confidential and exempt from the provisions
31  of s. 119.07(1) and s. 24(a), Art. I of the State Constitution
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  1  and is available only to the person who is the subject of the
  2  record, to the subject's attorney, to criminal justice
  3  agencies for their respective criminal justice purposes, or to
  4  those entities set forth in subparagraphs (a)1., 4., 5., and
  5  6. for their respective licensing and employment purposes.
  6         (a)  The subject of a criminal history record sealed
  7  under this section or under other provisions of law, including
  8  former s. 893.14, former s. 901.33, and former s. 943.058, may
  9  lawfully deny or fail to acknowledge the arrests covered by
10  the sealed record, except when the subject of the record:
11         1.  Is a candidate for employment with a criminal
12  justice agency;
13         2.  Is a defendant in a criminal prosecution;
14         3.  Concurrently or subsequently petitions for relief
15  under this section or s. 943.0585;
16         4.  Is a candidate for admission to The Florida Bar;
17         5.  Is seeking to be employed or licensed by or to
18  contract with the Department of Children and Family Services
19  or the Department of Juvenile Justice or to be employed or
20  used by such contractor or licensee in a sensitive position
21  having direct contact with children, the developmentally
22  disabled, the aged, or the elderly as provided in s.
23  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.
24  402.302(8), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.
25  415.103, s. 985.407, or chapter 400; or
26         6.  Is seeking to be employed or licensed by the Office
27  of Teacher Education, Certification, Staff Development, and
28  Professional Practices of the Department of Education, any
29  district school board, or any local governmental entity which
30  licenses child care facilities.
31
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  1         (b)  Subject to the exceptions in paragraph (a), a
  2  person who has been granted a sealing under this section,
  3  former s. 893.14, former s. 901.33, or former s. 943.058 may
  4  not be held under any provision of law of this state to commit
  5  perjury or to be otherwise liable for giving a false statement
  6  by reason of such person's failure to recite or acknowledge a
  7  sealed criminal history record.
  8         (c)  Information relating to the existence of a sealed
  9  criminal record provided in accordance with the provisions of
10  paragraph (a) is confidential and exempt from the provisions
11  of s. 119.07(1) and s. 24(a), Art. I of the State
12  Constitution, except that the department shall disclose the
13  sealed criminal history record to the entities set forth in
14  subparagraphs (a)1., 4., 5., and 6. for their respective
15  licensing and employment purposes. It is unlawful for any
16  employee of an entity set forth in subparagraph (a)1.,
17  subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6.
18  to disclose information relating to the existence of a sealed
19  criminal history record of a person seeking employment or
20  licensure with such entity or contractor, except to the person
21  to whom the criminal history record relates or to persons
22  having direct responsibility for employment or licensure
23  decisions.  Any person who violates the provisions of this
24  paragraph commits a misdemeanor of the first degree,
25  punishable as provided in s. 775.082 or s. 775.083.
26         Section 11.  Section 943.0535, Florida Statutes, is
27  amended to read:
28         943.0535  Aliens, criminal records.--Upon the official
29  request of the United States immigration officer in charge of
30  the territory or district in which is located any court
31  committing an alien, for the conviction of a felony or a
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  1  misdemeanor, to any state or county institution which is
  2  supported, wholly or in part, by public funds, It shall be the
  3  duty of the clerk of such court to furnish without charge a
  4  certified copy of the complaint, information, or indictment
  5  and the judgment and sentence and any other record pertaining
  6  to the case of any the convicted alien to the United States
  7  immigration officer in charge of the territory or district in
  8  which the court is located in every case in which an alien is
  9  convicted of a felony or misdemeanor or enters a plea of
10  guilty or nolo contendere to any felony or misdemeanor charge.
11  The state attorney shall assist the clerk of the court in
12  determining if a defendant entering a plea or is convicted is
13  an alien.
14         Section 12.  In order to inform the public and to deter
15  and prevent crime in the state, the Executive Office of the
16  Governor shall place public service announcements in visible
17  local media throughout the state explaining the penalties
18  provided in this act.
19         Section 13.  Subsection (3) of section 810.011, Florida
20  Statutes, is amended to read:
21         810.011  Definitions.--As used in this chapter:
22         (3)  "Conveyance" means any motor vehicle, ship,
23  vessel, railroad vehicle or car, trailer, aircraft, or
24  sleeping car; and "to enter a conveyance" includes taking
25  apart any portion of the conveyance.  However, during the time
26  of a state of emergency declared by executive order or
27  proclamation of the Governor under chapter 252 and within the
28  area covered by such executive order or proclamation and for
29  purposes of ss. 810.02 and 810.08 only, the term "conveyance"
30  means a motor vehicle, ship, vessel, railroad vehicle or car,
31
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  1  trailer, aircraft, or sleeping car or such portions thereof as
  2  exist.
  3         Section 14.  This act shall take effect July 1, 1999.
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