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





                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    

                            CHAMBER ACTION
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10                                                                

11  Senator Lee moved the following amendment:

12

13         Senate Amendment (with title amendment) 

14         Delete everything after the enacting clause

15

16  and insert:

17         Section 1.  This act may be cited as the "Three-Strike

18  Violent Felony Offender Act."

19         Section 2.  Paragraphs (a) and (d) of subsection (9) of

20  section 775.082, Florida Statutes, 1998 Supplement, are

21  amended to read.

22         775.082  Penalties; applicability of sentencing

23  structures; mandatory minimum sentences for certain

24  reoffenders previously released from prison.--

25         (9)(a)1.  "Prison releasee reoffender" means any

26  defendant who commits, or attempts to commit:

27         a.  Treason;

28         b.  Murder;

29         c.  Manslaughter;

30         d.  Sexual battery;

31         e.  Carjacking;

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 1         f.  Home-invasion robbery;

 2         g.  Robbery;

 3         h.  Arson;

 4         i.  Kidnapping;

 5         j.  Aggravated assault with a deadly weapon;

 6         k.  Aggravated battery;

 7         l.  Aggravated stalking;

 8         m.  Aircraft piracy;

 9         n.  Unlawful throwing, placing, or discharging of a

10  destructive device or bomb;

11         o.  Any felony that involves the use or threat of

12  physical force or violence against an individual;

13         p.  Armed burglary;

14         q.  Burglary of an occupied structure or dwelling; or

15         r.  Any felony violation of s. 790.07, s. 800.04, s.

16  827.03, or s. 827.071;

17

18  within 3 years of being released from a state correctional

19  facility operated by the Department of Corrections or a

20  private vendor.

21         2.  "Prison releasee reoffender" also means any

22  defendant who commits or attempts to commit any offense listed

23  in subparagraph (a)1.a.-r. while the defendant was serving a

24  prison sentence or on escape status from a state correctional

25  facility operated by the Department of Corrections or a

26  private vendor.

27         3.2.  If the state attorney determines that a defendant

28  is a prison releasee reoffender as defined in subparagraph 1.,

29  the state attorney may seek to have the court sentence the

30  defendant as a prison releasee reoffender. Upon proof from the

31  state attorney that establishes by a preponderance of the

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  evidence that a defendant is a prison releasee reoffender as

 2  defined in this section, such defendant is not eligible for

 3  sentencing under the sentencing guidelines and must be

 4  sentenced as follows:

 5         a.  For a felony punishable by life, by a term of

 6  imprisonment for life;

 7         b.  For a felony of the first degree, by a term of

 8  imprisonment of 30 years;

 9         c.  For a felony of the second degree, by a term of

10  imprisonment of 15 years; and

11         d.  For a felony of the third degree, by a term of

12  imprisonment of 5 years.

13         (d)1.  It is the intent of the Legislature that

14  offenders previously released from prison who meet the

15  criteria in paragraph (a) be punished to the fullest extent of

16  the law and as provided in this subsection, unless the state

17  attorney determines that any of the following circumstances

18  exist:

19         a.  The prosecuting attorney does not have sufficient

20  evidence to prove the highest charge available;

21         b.  The testimony of a material witness cannot be

22  obtained;

23         c.  The victim does not want the offender to receive

24  the mandatory prison sentence and provides a written statement

25  to that effect; or

26         d.  other extenuating circumstances exist which

27  preclude the just prosecution of the offender, including

28  whether the victim recommends that the offender be sentenced

29  as provided in this subsection.

30         2.  For every case in which the offender meets the

31  criteria in paragraph (a) and does not receive the mandatory

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 1  minimum prison sentence, the state attorney must explain the

 2  sentencing deviation in writing and place such explanation in

 3  the case file maintained by the state attorney. On a quarterly

 4  basis, each state attorney shall submit copies of deviation

 5  memoranda regarding offenses committed on or after the

 6  effective date of this subsection, to the president of the

 7  Florida Prosecuting Attorneys Association, Inc.  The

 8  association must maintain such information, and make such

 9  information available to the public upon request, for at least

10  a 10-year period.

11         Section 3.  Section 775.084, Florida Statutes, 1998

12  Supplement, is amended to read:

13         775.084  Violent career criminals; habitual felony

14  offenders and habitual violent felony offenders; three-time

15  violent felony offenders; definitions; procedure; enhanced

16  penalties or mandatory minimum prison terms.--

17         (1)  As used in this act:

18         (a)  "Habitual felony offender" means a defendant for

19  whom the court may impose an extended term of imprisonment, as

20  provided in paragraph (4)(a), if it finds that:

21         1.  The defendant has previously been convicted of any

22  combination of two or more felonies in this state or other

23  qualified offenses.

24         2.  The felony for which the defendant is to be

25  sentenced was committed:

26         a.  While the defendant was serving a prison sentence

27  or other sentence, or court-ordered or lawfully imposed

28  supervision that is commitment imposed as a result of a prior

29  conviction for a felony or other qualified offense; or

30         b.  Within 5 years of the date of the conviction of the

31  defendant's last prior felony or other qualified offense, or

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

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 1  within 5 years of the defendant's release from a prison

 2  sentence, probation, community control, control release,

 3  conditional release, parole or court-ordered or lawfully

 4  imposed supervision or other sentence that is commitment

 5  imposed as a result of a prior conviction for a felony or

 6  other qualified offense, whichever is later.

 7         3.  The felony for which the defendant is to be

 8  sentenced, and one of the two prior felony convictions, is not

 9  a violation of s. 893.13 relating to the purchase or the

10  possession of a controlled substance.

11         4.  The defendant has not received a pardon for any

12  felony or other qualified offense that is necessary for the

13  operation of this paragraph.

14         5.  A conviction of a felony or other qualified offense

15  necessary to the operation of this paragraph has not been set

16  aside in any postconviction proceeding.

17         (b)  "Habitual violent felony offender" means a

18  defendant for whom the court may impose an extended term of

19  imprisonment, as provided in paragraph (4)(b), if it finds

20  that:

21         1.  The defendant has previously been convicted of a

22  felony or an attempt or conspiracy to commit a felony and one

23  or more of such convictions was for:

24         a.  Arson;

25         b.  Sexual battery;

26         c.  Robbery;

27         d.  Kidnapping;

28         e.  Aggravated child abuse;

29         f.  Aggravated abuse of an elderly person or disabled

30  adult;

31         g.  Aggravated assault with a deadly weapon;

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 1         h.  Murder;

 2         i.  Manslaughter;

 3         j.  Aggravated manslaughter of an elderly person or

 4  disabled adult;

 5         k.  Aggravated manslaughter of a child;

 6         l.  Unlawful throwing, placing, or discharging of a

 7  destructive device or bomb;

 8         m.  Armed burglary;

 9         n.  Aggravated battery; or

10         o.  Aggravated stalking.

11         2.  The felony for which the defendant is to be

12  sentenced was committed:

13         a.  While the defendant was serving a prison sentence

14  or other sentence, or court-ordered or lawfully imposed

15  supervision that is commitment imposed as a result of a prior

16  conviction for an enumerated felony; or

17         b.  Within 5 years of the date of the conviction of the

18  last prior enumerated felony, or within 5 years of the

19  defendant's release from a prison sentence, probation,

20  community control, control release, conditional release,

21  parole, or court-ordered or lawfully imposed supervision or

22  other sentence that is commitment imposed as a result of a

23  prior conviction for an enumerated felony, whichever is later.

24         3.  The defendant has not received a pardon on the

25  ground of innocence for any crime that is necessary for the

26  operation of this paragraph.

27         4.  A conviction of a crime necessary to the operation

28  of this paragraph has not been set aside in any postconviction

29  proceeding.

30         (c)  "Three-time violent felony offender" means a

31  defendant for whom the court must impose a mandatory minimum

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    Amendment No.    





 1  term of imprisonment, as provided in paragraph (4)(c), if it

 2  finds that:

 3         1.  The defendant has previously been convicted as an

 4  adult two or more times of a felony, or an attempt to commit a

 5  felony, and two or more of such convictions were for

 6  committing, or attempting to commit, any of the following

 7  offenses or combination therof:

 8         a.  Arson;

 9         b.  Sexual battery;

10         c.  Robbery;

11         d.  Kidnapping;

12         e.  Aggravated child abuse;

13         f.  Aggravated abuse of an elderly person or disabled

14  adult;

15         g.  Aggravated assault with a deadly weapon;

16         h.  Murder;

17         i.  Manslaughter;

18         j.  Aggravated manslaughter of an elderly person or

19  disabled adult;

20         k.  Aggravated manslaughter of a child;

21         l.  Unlawful throwing, placing, or discharging of a

22  destructive device or bomb;

23         m.  Armed burglary;

24         n.  Aggravated battery;

25         o.  Aggravated stalking;

26         p.  Home invasion/robbery;

27         q.  Carjacking; or

28         r.  An offense which is in violation of a law of any

29  other jurisdiction if the elements of the offense are

30  substantially similar to the elements of any felony offense

31  enumerated in sub-subparagraphs a.-q., or an attempt to commit

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    Amendment No.    





 1  any such felony offense.

 2         2.  The felony for which the defendant is to be

 3  sentenced is one of the felonies enumerated in

 4  sub-subparagraphs 1.a.-q. and was committed:

 5         a.  While the defendant was serving a prison sentence

 6  or other sentence imposed as a result of a prior conviction

 7  for any offense enumerated in sub-subparagraphs 1.a.-r.; or

 8         b.  Within 5 years after the date of the conviction of

 9  the last prior offense enumerated in sub-subparagraphs

10  1.a.-r., or within 5 years after the defendant's release from

11  a prison sentence, probation, community control, or other

12  sentence imposed as a result of a prior conviction for any

13  offense enumerated in sub-subparagraphs 1.a.-r., whichever is

14  later.

15         3.  The defendant has not received a pardon on the

16  ground of innocence for any crime that is necessary for the

17  operation of this paragraph.

18         4.  A conviction of a crime necessary to the operation

19  of this paragraph has not been set aside in any postconviction

20  proceeding.

21         (d)(c)  "Violent career criminal" means a defendant for

22  whom the court must impose imprisonment pursuant to paragraph

23  (4)(d)(c), if it finds that:

24         1.  The defendant has previously been convicted as an

25  adult three or more times for an offense in this state or

26  other qualified offense that is:

27         a.  Any forcible felony, as described in s. 776.08;

28         b.  Aggravated stalking, as described in s. 784.048(3)

29  and (4);

30         c.  Aggravated child abuse, as described in s.

31  827.03(2);

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 1         d.  Aggravated abuse of an elderly person or disabled

 2  adult, as described in s. 825.102(2);

 3         e.  Lewd, lascivious, or indecent conduct, as described

 4  in s. 800.04;

 5         f.  Escape, as described in s. 944.40; or

 6         g.  A felony violation of chapter 790 involving the use

 7  or possession of a firearm.

 8         2.  The defendant has been incarcerated in a state

 9  prison or a federal prison.

10         3.  The primary felony offense for which the defendant

11  is to be sentenced is a felony enumerated in subparagraph 1.

12  and was committed on or after October 1, 1995, and:

13         a.  While the defendant was serving a prison sentence

14  or other sentence, or court-ordered or lawfully imposed

15  supervision that is commitment imposed as a result of a prior

16  conviction for an enumerated felony; or

17         b.  Within 5 years after the conviction of the last

18  prior enumerated felony, or within 5 years after the

19  defendant's release from a prison sentence, probation,

20  community control, control release, conditional release,

21  parole, or court-ordered or lawfully imposed supervision or

22  other sentence that is commitment imposed as a result of a

23  prior conviction for an enumerated felony, whichever is later.

24         4.  The defendant has not received a pardon for any

25  felony or other qualified offense that is necessary for the

26  operation of this paragraph.

27         5.  A conviction of a felony or other qualified offense

28  necessary to the operation of this paragraph has not been set

29  aside in any postconviction proceeding.

30         (e)(d)  "Qualified offense" means any offense,

31  substantially similar in elements and penalties to an offense

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 1  in this state, which is in violation of a law of any other

 2  jurisdiction, whether that of another state, the District of

 3  Columbia, the United States or any possession or territory

 4  thereof, or any foreign jurisdiction, that was punishable

 5  under the law of such jurisdiction at the time of its

 6  commission by the defendant by death or imprisonment exceeding

 7  1 year.

 8         (2)  For the purposes of this section, the placing of a

 9  person on probation or community control without an

10  adjudication of guilt shall be treated as a prior conviction

11  if the subsequent offense for which the person is to be

12  sentenced was committed during such period of probation or

13  community control.

14         (3)(a)  In a separate proceeding, the court shall

15  determine if the defendant is a habitual felony offender or a

16  habitual violent felony offender. The procedure shall be as

17  follows:

18         1.  The court shall obtain and consider a presentence

19  investigation prior to the imposition of a sentence as a

20  habitual felony offender or a habitual violent felony

21  offender.

22         2.  Written notice shall be served on the defendant and

23  the defendant's attorney a sufficient time prior to the entry

24  of a plea or prior to the imposition of sentence in order to

25  allow the preparation of a submission on behalf of the

26  defendant.

27         3.  Except as provided in subparagraph 1., all evidence

28  presented shall be presented in open court with full rights of

29  confrontation, cross-examination, and representation by

30  counsel.

31         4.  Each of the findings required as the basis for such

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 1  sentence shall be found to exist by a preponderance of the

 2  evidence and shall be appealable to the extent normally

 3  applicable to similar findings.

 4         5.  For the purpose of identification of a habitual

 5  felony offender or a habitual violent felony offender, the

 6  court shall fingerprint the defendant pursuant to s. 921.241.

 7         6.  For an offense committed on or after October 1,

 8  1995, if the state attorney pursues a habitual felony offender

 9  sanction or a habitual violent felony offender sanction

10  against the defendant and the court, in a separate proceeding

11  pursuant to this paragraph, determines that the defendant

12  meets the criteria under subsection (1) for imposing such

13  sanction, the court must sentence the defendant as a habitual

14  felony offender or a habitual violent felony offender, subject

15  to imprisonment pursuant to this section unless the court

16  finds that such sentence is not necessary for the protection

17  of the public.  If the court finds that it is not necessary

18  for the protection of the public to sentence the defendant as

19  a habitual felony offender or a habitual violent felony

20  offender, the court shall provide written reasons; a written

21  transcript of orally stated reasons is permissible, if filed

22  by the court within 7 days after the date of sentencing. Each

23  month, the court shall submit to the Office of Economic and

24  Demographic Research of the Legislature the written reasons or

25  transcripts in each case in which the court determines not to

26  sentence a defendant as a habitual felony offender or a

27  habitual violent felony offender as provided in this

28  subparagraph.

29         (b)  In a separate proceeding, the court shall

30  determine if the defendant is a three-time violent felony

31  offender. The procedure shall be as follows:

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1         1.  The court shall obtain and consider a presentence

 2  investigation prior to the imposition of a sentence as a

 3  three-time violent felony offender.

 4         2.  Written notice shall be served on the defendant and

 5  the defendant's attorney a sufficient time prior to the entry

 6  of a plea or prior to the imposition of sentence in order to

 7  allow the preparation of a submission on behalf of the

 8  defendant.

 9         3.  Except as provided in subparagraph 1., all evidence

10  presented shall be presented in open court with full rights of

11  confrontation, cross-examination, and representation by

12  counsel.

13         4.  Each of the findings required as the basis for such

14  sentence shall be found to exist by a preponderance of the

15  evidence and shall be appealable to the extent normally

16  applicable to similar findings.

17         5.  For the purpose of identification of a three-time

18  violent felony offender, the court shall fingerprint the

19  defendant pursuant to s. 921.241.

20         6.  For an offense committed on or after the effective

21  date of this act, if the state attorney pursues a three-time

22  violent felony offender sanction against the defendant and the

23  court, in a separate proceeding pursuant to this paragraph,

24  determines that the defendant meets the criteria under

25  subsection (1) for imposing such sanction, the court must

26  sentence the defendant as a three-time violent felony

27  offender, subject to imprisonment pursuant to this section as

28  provided in paragraph (4)(c).

29         (c)(b)  In a separate proceeding, the court shall

30  determine whether the defendant is a violent career criminal

31  with respect to a primary offense committed on or after

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 1  October 1, 1995.  The procedure shall be as follows:

 2         1.  Written notice shall be served on the defendant and

 3  the defendant's attorney a sufficient time prior to the entry

 4  of a plea or prior to the imposition of sentence in order to

 5  allow the preparation of a submission on behalf of the

 6  defendant.

 7         2.  All evidence presented shall be presented in open

 8  court with full rights of confrontation, cross-examination,

 9  and representation by counsel.

10         3.  Each of the findings required as the basis for such

11  sentence shall be found to exist by a preponderance of the

12  evidence and shall be appealable only as provided in paragraph

13  (d)(c).

14         4.  For the purpose of identification, the court shall

15  fingerprint the defendant pursuant to s. 921.241.

16         5.  For an offense committed on or after October 1,

17  1995, if the state attorney pursues a violent career criminal

18  sanction against the defendant and the court, in a separate

19  proceeding pursuant to this paragraph, determines that the

20  defendant meets the criteria under subsection (1) for imposing

21  such sanction, the court must sentence the defendant as a

22  violent career criminal, subject to imprisonment pursuant to

23  this section unless the court finds that such sentence is not

24  necessary for the protection of the public.  If the court

25  finds that it is not necessary for the protection of the

26  public to sentence the defendant as a violent career criminal,

27  the court shall provide written reasons; a written transcript

28  of orally stated reasons is permissible, if filed by the court

29  within 7 days after the date of sentencing. Each month, the

30  court shall submit to the Office of Economic and Demographic

31  Research of the Legislature the written reasons or transcripts

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 1  in each case in which the court determines not to sentence a

 2  defendant as a violent career criminal as provided in this

 3  subparagraph.

 4         (d)(c)1.  A person sentenced under paragraph (4)(d)(c)

 5  as a violent career criminal has the right of direct appeal,

 6  and either the state or the defendant may petition the trial

 7  court to vacate an illegal sentence at any time. However, the

 8  determination of the trial court to impose or not to impose a

 9  violent career criminal sentence is presumed appropriate and

10  no petition or motion for collateral or other postconviction

11  relief may be considered based on an allegation either by the

12  state or the defendant that such sentence is inappropriate,

13  inadequate, or excessive.

14         2.  It is the intent of the Legislature that, with

15  respect to both direct appeal and collateral review of violent

16  career criminal sentences, all claims of error or illegality

17  be raised at the first opportunity and that no claim should be

18  filed more than 2 years after the judgment and sentence became

19  final, unless it is established that the basis for the claim

20  could not have been ascertained at the time by the exercise of

21  due diligence. Technical violations and mistakes at trials and

22  sentencing proceedings involving violent career criminals that

23  do not affect due process or fundamental fairness are not

24  appealable by either the state or the defendant.

25         3.  It is the intent of the Legislature that no funds,

26  resources, or employees of the state or its political

27  subdivisions be used, directly or indirectly, in appellate or

28  collateral proceedings based on violent career criminal

29  sentencing, except when such use is constitutionally or

30  statutorily mandated.

31         (4)(a)  The court, in conformity with the procedure

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 1  established in paragraph (3)(a), may sentence the habitual

 2  felony offender as follows:

 3         1.  In the case of a life felony or a felony of the

 4  first degree, for life.

 5         2.  In the case of a felony of the second degree, for a

 6  term of years not exceeding 30.

 7         3.  In the case of a felony of the third degree, for a

 8  term of years not exceeding 10.

 9         (b)  The court, in conformity with the procedure

10  established in paragraph (3)(a), may sentence the habitual

11  violent felony offender as follows:

12         1.  In the case of a life felony or a felony of the

13  first degree, for life, and such offender shall not be

14  eligible for release for 15 years.

15         2.  In the case of a felony of the second degree, for a

16  term of years not exceeding 30, and such offender shall not be

17  eligible for release for 10 years.

18         3.  In the case of a felony of the third degree, for a

19  term of years not exceeding 10, and such offender shall not be

20  eligible for release for 5 years.

21         (c)1.  The court, in conformity with the procedure

22  established in paragraph (3)(c), must sentence the three-time

23  violent felony offender to a mandatory minimum term of

24  imprisonment, as follows:

25         a.  In the case of a felony punishable by life, to a

26  term of imprisonment for life;

27         b.  In the case of a felony of the first degree, to a

28  term of imprisonment of 30 years;

29         c.  In the case of a felony of the second degree, to a

30  term of imprisonment of 15 years; or

31         d.  In the case of a felony of the third degree, to a

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 1  term of imprisonment of 5 years.

 2         2.  Nothing in this subsection shall prevent a court

 3  from imposing a greater sentence of incarceration as

 4  authorized by law.

 5         (d)(c)  The court, in conformity with the procedure

 6  established in paragraph (3)(c)(b), shall sentence the violent

 7  career criminal as follows:

 8         1.  In the case of a life felony or a felony of the

 9  first degree, for life.

10         2.  In the case of a felony of the second degree, for a

11  term of years not exceeding 40, with a mandatory minimum term

12  of 30 years' imprisonment.

13         3.  In the case of a felony of the third degree, for a

14  term of years not exceeding 15, with a mandatory minimum term

15  of 10 years' imprisonment.

16         (e)(d)  If the court finds, pursuant to paragraph

17  (3)(a) or paragraph (3)(c)(b), that it is not necessary for

18  the protection of the public to sentence a defendant who meets

19  the criteria for sentencing as a habitual felony offender, a

20  habitual violent felony offender, or a violent career

21  criminal, with respect to an offense committed on or after

22  October 1, 1995, sentence shall be imposed without regard to

23  this section.

24         (f)(e)  At any time when it appears to the court that

25  the defendant is eligible for sentencing under this section,

26  the court shall make that determination as provided in

27  paragraph (3)(a), or paragraph (3)(b), or paragraph (3)(c).

28         (g)(f)  A sentence imposed under this section shall not

29  be increased after such imposition.

30         (h)(g)  A sentence imposed under this section is not

31  subject to s. 921.002.

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    Amendment No.    





 1         (i)(h)  The provisions of this section do not apply to

 2  capital felonies, and a sentence authorized under this section

 3  does not preclude the imposition of the death penalty for a

 4  capital felony.

 5         (j)(i)  The provisions of s. 947.1405 shall apply to

 6  persons sentenced as habitual felony offenders and persons

 7  sentenced as habitual violent felony offenders.

 8         (k)(j)1.  A defendant sentenced under this section as a

 9  habitual felony offender, a habitual violent felony offender,

10  or a violent career criminal is eligible for gain-time granted

11  by the Department of Corrections as provided in s.

12  944.275(4)(b).

13         2.  For an offense committed on or after October 1,

14  1995, a defendant sentenced under this section as a violent

15  career criminal is not eligible for any form of discretionary

16  early release, other than pardon or executive clemency, or

17  conditional medical release granted pursuant to s. 947.149.

18         3.  For an offense committed on or after July 1, 1999,

19  a defendant sentenced under this section as a three-time

20  violent felony offender shall be released only be expiration

21  of sentence and shall not be eligible for parole, control

22  release, or any form of early release. Any person sentenced as

23  a three-time violent felony offender must serve 100 percent of

24  the court-imposed sentence.

25         (5)  In order to be counted as a prior felony for

26  purposes of sentencing under this section, the felony must

27  have resulted in a conviction sentenced separately prior to

28  the current offense and sentenced separately from any other

29  felony conviction that is to be counted as a prior felony.

30         (6)  The purpose of this section is to provide uniform

31  punishment for those crimes made punishable under this

                                  17
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  section, and to this end, a reference to this section

 2  constitutes a general reference under the doctrine of

 3  incorporation by reference.

 4         Section 4.  Paragraphs (c) and (d) of subsection (2) of

 5  section 784.07, Florida Statutes, 1998 Supplement, are amended

 6  to read:

 7         784.07  Assault or battery of law enforcement officers,

 8  firefighters, emergency medical care providers, public transit

 9  employees or agents, or other specified officers;

10  reclassification of offenses; minimum sentences.--

11         (2)  Whenever any person is charged with knowingly

12  committing an assault or battery upon a law enforcement

13  officer, a firefighter, an emergency medical care provider, a

14  traffic accident investigation officer as described in s.

15  316.640, a traffic infraction enforcement officer as described

16  in s. 318.141, a parking enforcement specialist as defined in

17  s. 316.640, or a security officer employed by the board of

18  trustees of a community college, while the officer,

19  firefighter, emergency medical care provider, intake officer,

20  traffic accident investigation officer, traffic infraction

21  enforcement officer, parking enforcement specialist, public

22  transit employee or agent, or security officer is engaged in

23  the lawful performance of his or her duties, the offense for

24  which the person is charged shall be reclassified as follows:

25         (c)  In the case of aggravated assault, from a felony

26  of the third degree to a felony of the second degree.

27  Notwithstanding any other provision of law, any person

28  convicted of aggravated assault upon a law enforcement officer

29  shall be sentenced to a minimum term of imprisonment of 3

30  years.

31         (d)  In the case of aggravated battery, from a felony

                                  18
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  of the second degree to a felony of the first degree.

 2  Notwithstanding any other provision of law, any person

 3  convicted of aggravated battery of a law enforcement officer

 4  shall be sentenced to a minimum term of imprisonment of 5

 5  years.

 6         Section 5.  Subsection (1) of section 784.08, Florida

 7  Statutes, is amended to read:

 8         784.08  Assault or battery on persons 65 years of age

 9  or older; reclassification of offenses; minimum sentence.--

10         (1)  A person who is convicted of an aggravated assault

11  or aggravated battery upon a person 65 years of age or older

12  shall be sentenced to a minimum term of imprisonment of 3

13  years pursuant to the Criminal Punishment Code and fined not

14  more than $10,000 and shall also be ordered by the sentencing

15  judge to make restitution to the victim of such offense and to

16  perform up to 500 hours of community service work.

17  Restitution and community service work shall be in addition to

18  any fine or sentence which may be imposed and shall not be in

19  lieu thereof.

20         Section 6.  Section 790.235, Florida Statutes, is

21  amended to read:

22         790.235  Possession of firearm by violent career

23  criminal unlawful; penalty.--

24         (1)  Any person who meets the violent career criminal

25  criteria under s. 775.084(1)(d)(c), regardless of whether such

26  person is or has previously been sentenced as a violent career

27  criminal, who owns or has in his or her care, custody,

28  possession, or control any firearm or electric weapon or

29  device, or carries a concealed weapon, including a tear gas

30  gun or chemical weapon or device, commits a felony of the

31  first degree, punishable as provided in s. 775.082, s.

                                  19
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  775.083, or s. 775.084.  A person convicted of a violation of

 2  this section shall be sentenced to a mandatory minimum of 15

 3  years' imprisonment; however, if the person would be sentenced

 4  to a longer term of imprisonment under s. 775.084(4)(d)(c),

 5  the person must be sentenced under that provision.  A person

 6  convicted of a violation of this section is not eligible for

 7  any form of discretionary early release, other than pardon,

 8  executive clemency, or conditional medical release under s.

 9  947.149.

10         (2)  For purposes of this section, the previous felony

11  convictions necessary to meet the violent career criminal

12  criteria under s. 775.084(1)(d)(c) may be convictions for

13  felonies committed as an adult or adjudications of delinquency

14  for felonies committed as a juvenile.  In order to be counted

15  as a prior felony for purposes of this section, the felony

16  must have resulted in a conviction sentenced separately, or an

17  adjudication of delinquency entered separately, prior to the

18  current offense, and sentenced or adjudicated separately from

19  any other felony that is to be counted as a prior felony.

20         (3)  This section shall not apply to a person whose

21  civil rights and firearm authority have been restored.

22         Section 7.  Section 794.0115, Florida Statutes, is

23  created to read:

24         794.0115  Repeat sexual batterers; definition;

25  procedure; enhanced penalties.--

26         (1)  As used in this act, "repeat sexual batterer"

27  means a defendant for whom the court must impose a mandatory

28  minimum term of imprisonment, as provided in subsection (3),

29  if it finds that:

30         (a)  The defendant has previously been convicted of a

31  felony or an attempt or conspiracy to commit a felony and one

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  or more of such convictions was for:

 2         1.  Any felony offense in violation of s.

 3  794.011(2)(b), (3), (4), or (5), or an attempt or conspiracy

 4  to commit the felony offense.

 5         2.  A qualified offense as defined in s. 775.084(1)(e),

 6  if the elements of the qualified offense are substantially

 7  similar to the elements of a felony offense in violation of s.

 8  794.011(2)(b), (3), (4), or (5), or an attempt or conspiracy

 9  to commit the felony offense.

10         (b)  The felony for which the defendant is to be

11  sentenced is one of the felonies enumerated in subparagraph

12  (a)1. or 2. and was committed:

13         1.  While the defendant was serving a prison sentence

14  or other sentence imposed as a result of a prior conviction

15  for any offense enumerated in subparagraph (a)1. or 2.; or

16         2.  Within 10 years after the date of the conviction of

17  the last prior offense enumerated in subparagraph (a)1. or 2.,

18  or within 10 years after the defendant's release from a prison

19  sentence, probation, community control, or other sentence

20  imposed as a result of a prior conviction for any offense

21  enumerated in subparagraph (a)1. or 2., whichever is later.

22         (c)  The defendant has not received a pardon on the

23  ground of innocence for any crime that is necessary for the

24  operation of this subsection.

25         (d)  A conviction of a crime necessary to the operation

26  of this subsection has not been set aside in any

27  postconviction proceeding.

28         (2)  In a separate proceeding, the court shall

29  determine if the defendant is a repeat sexual batterer. The

30  procedure shall be as follows:

31         (a)  The court shall obtain and consider a presentence

                                  21
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  investigation prior to the imposition of a sentence as a

 2  repeat sexual batterer.

 3         (b)  Written notice shall be served on the defendant

 4  and the defendant's attorney a sufficient time prior to the

 5  entry of a plea or prior to the imposition of sentence in

 6  order to allow the preparation of a submission on behalf of

 7  the defendant.

 8         (c)  Except as provided in paragraph (a), all evidence

 9  presented shall be presented in open court with full rights of

10  confrontation, cross-examination, and representation by

11  counsel.

12         (d)  Each of the findings required as the basis for

13  such sentence shall be found to exist by a preponderance of

14  the evidence and shall be appealable to the extent normally

15  applicable to similar findings.

16         (e)  For the purpose of identification of a repeat

17  sexual batterer, the court shall fingerprint the defendant

18  pursuant to s. 921.241.

19         (f)  For an offense committed on or after the effective

20  date of this act, if the state attorney pursues a repeat

21  sexual batterer sanction against the defendant and the court,

22  in a separate proceeding pursuant to this subsection,

23  determines that the defendant meets the criteria under

24  subsection (1) for imposing such sanction, the court must

25  sentence the defendant as a repeat sexual batterer, subject to

26  imprisonment pursuant to this section as provided in

27  subsection (3).

28         (3)(a)  The court, in conformity with the procedure

29  established in subsection (2), must sentence the repeat sexual

30  batterer to a mandatory minimum term of 10 years'

31  imprisonment.

                                  22
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1         (b)  Nothing in this subsection shall prevent a court

 2  from imposing a greater sentence of incarceration as

 3  authorized by law.

 4         Section 8.  Section 794.011, Florida Statutes, is

 5  amended to read:

 6         794.011  Sexual battery.--

 7         (1)  As used in this chapter:

 8         (a)  "Consent" means intelligent, knowing, and

 9  voluntary consent and does not include coerced submission.

10  "Consent" shall not be deemed or construed to mean the failure

11  by the alleged victim to offer physical resistance to the

12  offender.

13         (b)  "Mentally defective" means a mental disease or

14  defect which renders a person temporarily or permanently

15  incapable of appraising the nature of his or her conduct.

16         (c)  "Mentally incapacitated" means temporarily

17  incapable of appraising or controlling a person's own conduct

18  due to the influence of a narcotic, anesthetic, or

19  intoxicating substance administered without his or her consent

20  or due to any other act committed upon that person without his

21  or her consent.

22         (d)  "Offender" means a person accused of a sexual

23  offense in violation of a provision of this chapter.

24         (e)  "Physically helpless" means unconscious, asleep,

25  or for any other reason physically unable to communicate

26  unwillingness to an act.

27         (f)  "Retaliation" includes, but is not limited to,

28  threats of future physical punishment, kidnapping, false

29  imprisonment or forcible confinement, or extortion.

30         (g)  "Serious personal injury" means great bodily harm

31  or pain, permanent disability, or permanent disfigurement.

                                  23
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1         (h)  "Sexual battery" means oral, anal, or vaginal

 2  penetration by, or union with, the sexual organ of another or

 3  the anal or vaginal penetration of another by any other

 4  object; however, sexual battery does not include an act done

 5  for a bona fide medical purpose.

 6         (i)  "Victim" means a person who has been the object of

 7  a sexual offense.

 8         (j)  "Physically incapacitated" means bodily impaired

 9  or handicapped and substantially limited in ability to resist

10  or flee.

11         (2)(a)  A person 18 years of age or older who commits

12  sexual battery upon, or in an attempt to commit sexual battery

13  injures the sexual organs of, a person less than 12 years of

14  age commits a capital felony, punishable as provided in ss.

15  775.082 and 921.141.

16         (b)  A person less than 18 years of age who commits

17  sexual battery upon, or in an attempt to commit sexual battery

18  injures the sexual organs of, a person less than 12 years of

19  age commits a life felony, punishable as provided in s.

20  775.082, s. 775.083, or s. 775.084, or s. 794.0115.

21         (3)  A person who commits sexual battery upon a person

22  12 years of age or older, without that person's consent, and

23  in the process thereof uses or threatens to use a deadly

24  weapon or uses actual physical force likely to cause serious

25  personal injury commits a life felony, punishable as provided

26  in s. 775.082, s. 775.083, or s. 775.084, or s. 794.0115.

27         (4)  A person who commits sexual battery upon a person

28  12 years of age or older without that person's consent, under

29  any of the following circumstances, commits a felony of the

30  first degree, punishable as provided in s. 775.082, s.

31  775.083, or s. 775.084, or s. 794.0115:

                                  24
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1         (a)  When the victim is physically helpless to resist.

 2         (b)  When the offender coerces the victim to submit by

 3  threatening to use force or violence likely to cause serious

 4  personal injury on the victim, and the victim reasonably

 5  believes that the offender has the present ability to execute

 6  the threat.

 7         (c)  When the offender coerces the victim to submit by

 8  threatening to retaliate against the victim, or any other

 9  person, and the victim reasonably believes that the offender

10  has the ability to execute the threat in the future.

11         (d)  When the offender, without the prior knowledge or

12  consent of the victim, administers or has knowledge of someone

13  else administering to the victim any narcotic, anesthetic, or

14  other intoxicating substance which mentally or physically

15  incapacitates the victim.

16         (e)  When the victim is mentally defective and the

17  offender has reason to believe this or has actual knowledge of

18  this fact.

19         (f)  When the victim is physically incapacitated.

20         (g)  When the offender is a law enforcement officer,

21  correctional officer, or correctional probation officer as

22  defined by s. 943.10(1), (2), (3), (6), (7), (8), or (9), who

23  is certified under the provisions of s. 943.1395 or is an

24  elected official exempt from such certification by virtue of

25  s. 943.253, or any other person in a position of control or

26  authority in a probation, community control, controlled

27  release, detention, custodial, or similar setting, and such

28  officer, official, or person is acting in such a manner as to

29  lead the victim to reasonably believe that the offender is in

30  a position of control or authority as an agent or employee of

31  government.

                                  25
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1         (5)  A person who commits sexual battery upon a person

 2  12 years of age or older, without that person's consent, and

 3  in the process thereof does not use physical force and

 4  violence likely to cause serious personal injury commits a

 5  felony of the second degree, punishable as provided in s.

 6  775.082, s. 775.083, or s. 775.084, or s. 794.0115.

 7         (6)  The offense described in subsection (5) is

 8  included in any sexual battery offense charged under

 9  subsection (3) or subsection (4).

10         (7)  A person who is convicted of committing a sexual

11  battery on or after October 1, 1992, is not eligible for basic

12  gain-time under s. 944.275.  This subsection may be cited as

13  the "Junny Rios-Martinez, Jr. Act of 1992."

14         (8)  Without regard to the willingness or consent of

15  the victim, which is not a defense to prosecution under this

16  subsection, a person who is in a position of familial or

17  custodial authority to a person less than 18 years of age and

18  who:

19         (a)  Solicits that person to engage in any act which

20  would constitute sexual battery under paragraph (1)(h) commits

21  a felony of the third degree, punishable as provided in s.

22  775.082, s. 775.083, or s. 775.084.

23         (b)  Engages in any act with that person while the

24  person is 12 years of age or older but less than 18 years of

25  age which constitutes sexual battery under paragraph (1)(h)

26  commits a felony of the first degree, punishable as provided

27  in s. 775.082, s. 775.083, or s. 775.084.

28         (c)  Engages in any act with that person while the

29  person is less than 12 years of age which constitutes sexual

30  battery under paragraph (1)(h), or in an attempt to commit

31  sexual battery injures the sexual organs of such person

                                  26
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  commits a capital or life felony, punishable pursuant to

 2  subsection (2).

 3         (9)  For prosecution under paragraph (4)(g),

 4  acquiescence to a person reasonably believed by the victim to

 5  be in a position of authority or control does not constitute

 6  consent, and it is not a defense that the perpetrator was not

 7  actually in a position of control or authority if the

 8  circumstances were such as to lead the victim to reasonably

 9  believe that the person was in such a position.

10         (10)  Any person who falsely accuses any person listed

11  in paragraph (4)(g) or other person in a position of control

12  or authority as an agent or employee of government of

13  violating paragraph (4)(g) is guilty of a felony of the third

14  degree, punishable as provided in s. 775.082, s. 775.083, or

15  s. 775.084.

16         Section 9.  Section 893.135, Florida Statutes, as

17  amended by section 23 of chapter 97-194, Laws of Florida, is

18  amended to read:

19         893.135  Trafficking; mandatory sentences; suspension

20  or reduction of sentences; conspiracy to engage in

21  trafficking.--

22         (1)  Except as authorized in this chapter or in chapter

23  499 and notwithstanding the provisions of s. 893.13:

24         (a)  Any person who knowingly sells, purchases,

25  manufactures, delivers, or brings into this state, or who is

26  knowingly in actual or constructive possession of, in excess

27  of 25 50 pounds of cannabis, or 300 or more cannabis plants,

28  commits a felony of the first degree, which felony shall be

29  known as "trafficking in cannabis." If the quantity of

30  cannabis involved:

31         1.  Is in excess of 25 50 pounds, but less than 2,000

                                  27
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  pounds, or is 300 or more cannabis plants, but not more than

 2  2,000 cannabis plants, such person shall be sentenced pursuant

 3  to the Criminal Punishment Code and such sentence shall

 4  include a mandatory minimum term of imprisonment of 3 years,

 5  and the defendant shall be ordered to pay a fine of $25,000.

 6         2.  Is 2,000 pounds or more, but less than 10,000

 7  pounds, or is 2,000 or more cannabis plants, but not more than

 8  10,000 cannabis plants, such person shall be sentenced

 9  pursuant to the Criminal Punishment Code and such sentence

10  shall include a mandatory minimum term of imprisonment of 7

11  years, and the defendant shall be ordered to pay a fine of

12  $50,000.

13         3.  Is 10,000 pounds or more, or is 10,000 or more

14  cannabis plants, such person shall be sentenced to a mandatory

15  minimum term of imprisonment of 15 calendar years and pay a

16  fine of $200,000.

17

18  For the purpose of this paragraph, a plant, including, but not

19  limited to, a seedling or cutting, is a "cannabis plant" if it

20  has some readily observable evidence of root formation, such

21  as root hairs. To determine if a piece or part of a cannabis

22  plant severed from the cannabis plant is itself a cannabis

23  plant, the severed piece or part must have some readily

24  observable evidence of root formation, such as root hairs.

25  Callous tissue is not readily observable evidence of root

26  formation. The viability and sex of a plant and the fact that

27  the plant may or may not be a dead harvested plant are not

28  relevant in determining if the plant is a "cannabis plant" or

29  in the charging of an offense under this paragraph. Upon

30  conviction, the court shall impose the longest term of

31  imprisonment provided for in this paragraph.

                                  28
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1         (b)1.  Any person who knowingly sells, purchases,

 2  manufactures, delivers, or brings into this state, or who is

 3  knowingly in actual or constructive possession of, 28 grams or

 4  more of cocaine, as described in s. 893.03(2)(a)4., or of any

 5  mixture containing cocaine, but less than 150 kilograms of

 6  cocaine or any such mixture, commits a felony of the first

 7  degree, which felony shall be known as "trafficking in

 8  cocaine."  If the quantity involved:

 9         a.  Is 28 grams or more, but less than 200 grams, such

10  person shall be sentenced pursuant to the Criminal Punishment

11  Code and such sentence shall include a mandatory minimum term

12  of imprisonment of 3 years, and the defendant shall be ordered

13  to pay a fine of $50,000.

14         b.  Is 200 grams or more, but less than 400 grams, such

15  person shall be sentenced pursuant to the Criminal Punishment

16  Code and such sentence shall include a mandatory minimum term

17  of imprisonment of 7 years, and the defendant shall be ordered

18  to pay a fine of $100,000.

19         c.  Is 400 grams or more, but less than 150 kilograms,

20  such person shall be sentenced to a mandatory minimum term of

21  imprisonment of 15 calendar years and pay a fine of $250,000.

22         2.  Any person who knowingly sells, purchases,

23  manufactures, delivers, or brings into this state, or who is

24  knowingly in actual or constructive possession of, 150

25  kilograms or more, but less than 300 kilograms, of cocaine, as

26  described in s. 893.03(2)(a)4., commits the first degree

27  felony of trafficking in cocaine. A person who has been

28  convicted of the first degree felony of trafficking in cocaine

29  under this subparagraph shall be punished by life imprisonment

30  and is not eligible for any form of gain time under s. 944.275

31  or ineligible for any form of discretionary early release

                                  29
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  except pardon or executive clemency or conditional medical

 2  release under s. 947.149. However, if the court determines

 3  that, in addition to committing any act specified in this

 4  paragraph:

 5         a.  The person intentionally killed an individual or

 6  counseled, commanded, induced, procured, or caused the

 7  intentional killing of an individual and such killing was the

 8  result; or

 9         b.  The person's conduct in committing that act led to

10  a natural, though not inevitable, lethal result,

11

12  such person commits the capital felony of trafficking in

13  cocaine, punishable as provided in ss. 775.082 and 921.142.

14  Any person sentenced for a capital felony under this paragraph

15  shall also be sentenced to pay the maximum fine provided under

16  subparagraph 1.

17         3.  Any person who knowingly brings into this state 300

18  kilograms or more of cocaine, as described in s.

19  893.03(2)(a)4., and who knows that the probable result of such

20  importation would be the death of any person, commits capital

21  importation of cocaine, a capital felony punishable as

22  provided in ss. 775.082 and 921.142. Any person sentenced for

23  a capital felony under this paragraph shall also be sentenced

24  to pay the maximum fine provided under subparagraph 1.

25         (c)1.  Any person who knowingly sells, purchases,

26  manufactures, delivers, or brings into this state, or who is

27  knowingly in actual or constructive possession of, 4 grams or

28  more of any morphine, opium, oxycodone, hydrocodone,

29  hydromorphone, or any salt, derivative, isomer, or salt of an

30  isomer thereof, including heroin, as described in s.

31  893.03(1)(b) or (2)(a), or 4 grams or more of any mixture

                                  30
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  containing any such substance, but less than 30 kilograms of

 2  such substance or mixture, commits a felony of the first

 3  degree, which felony shall be known as "trafficking in illegal

 4  drugs."  If the quantity involved:

 5         a.  Is 4 grams or more, but less than 14 grams, such

 6  person shall be sentenced pursuant to the Criminal Punishment

 7  Code and such sentence shall include a mandatory minimum term

 8  of imprisonment of 3 years, and the defendant shall be ordered

 9  to pay a fine of $50,000.

10         b.  Is 14 grams or more, but less than 28 grams, such

11  person shall be sentenced pursuant to the Criminal Punishment

12  Code and such sentence shall include a mandatory minimum term

13  of imprisonment of 15 years, and the defendant shall be

14  ordered to pay a fine of $100,000.

15         c.  Is 28 grams or more, but less than 30 kilograms,

16  such person shall be sentenced to a mandatory minimum term of

17  imprisonment of 25 calendar years and pay a fine of $500,000.

18         2.  Any person who knowingly sells, purchases,

19  manufactures, delivers, or brings into this state, or who is

20  knowingly in actual or constructive possession of, 30

21  kilograms or more, but less than 60 kilograms, of any

22  morphine, opium, oxycodone, hydrocodone, hydromorphone, or any

23  salt, derivative, isomer, or salt of an isomer thereof,

24  including heroin, as described in s. 893.03(1)(b) or (2)(a),

25  or 30 kilograms or more, but less than 60 kilograms, of any

26  mixture containing any such substance, commits the first

27  degree felony of trafficking in illegal drugs. A person who

28  has been convicted of the first degree felony of trafficking

29  in illegal drugs under this subparagraph shall be punished by

30  life imprisonment and is not eligible for any form of gain

31  time under s. 944.275 or ineligible for any form of

                                  31
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  discretionary early release except pardon or executive

 2  clemency or conditional medical release under s. 947.149.

 3  However, if the court determines that, in addition to

 4  committing any act specified in this paragraph:

 5         a.  The person intentionally killed an individual or

 6  counseled, commanded, induced, procured, or caused the

 7  intentional killing of an individual and such killing was the

 8  result; or

 9         b.  The person's conduct in committing that act led to

10  a natural, though not inevitable, lethal result,

11

12  such person commits the capital felony of trafficking in

13  illegal drugs, punishable as provided in ss. 775.082 and

14  921.142.  Any person sentenced for a capital felony under this

15  paragraph shall also be sentenced to pay the maximum fine

16  provided under subparagraph 1.

17         3.  Any person who knowingly brings into this state 60

18  kilograms or more of any morphine, opium, oxycodone,

19  hydrocodone, hydromorphone, or any salt, derivative, isomer,

20  or salt of an isomer thereof, including heroin, as described

21  in s. 893.03(1)(b) or (2)(a), or 60 kilograms or more of any

22  mixture containing any such substance, and who knows that the

23  probable result of such importation would be the death of any

24  person, commits capital importation of illegal drugs, a

25  capital felony punishable as provided in ss. 775.082 and

26  921.142. Any person sentenced for a capital felony under this

27  paragraph shall also be sentenced to pay the maximum fine

28  provided under subparagraph 1.

29         (d)1.  Any person who knowingly sells, purchases,

30  manufactures, delivers, or brings into this state, or who is

31  knowingly in actual or constructive possession of, 28 grams or

                                  32
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  more of phencyclidine or of any mixture containing

 2  phencyclidine, as described in s. 893.03(2)(b), commits a

 3  felony of the first degree, which felony shall be known as

 4  "trafficking in phencyclidine." If the quantity involved:

 5         a.  Is 28 grams or more, but less than 200 grams, such

 6  person shall be sentenced pursuant to the Criminal Punishment

 7  Code and such sentence shall include a mandatory minimum term

 8  of imprisonment of 3 years, and the defendant shall be ordered

 9  to pay a fine of $50,000.

10         b.  Is 200 grams or more, but less than 400 grams, such

11  person shall be sentenced pursuant to the Criminal Punishment

12  Code and such sentence shall include a mandatory minimum term

13  of imprisonment of 7 years, and the defendant shall be ordered

14  to pay a fine of $100,000.

15         c.  Is 400 grams or more, but less than 800 grams, such

16  person shall be sentenced to a mandatory minimum term of

17  imprisonment of 15 calendar years and pay a fine of $250,000.

18         2.  Any person who knowingly brings into this state 800

19  grams or more of phencyclidine or of any mixture containing

20  phencyclidine, as described in s. 893.03(2)(b), and who knows

21  that the probable result of such importation would be the

22  death of any person commits capital importation of

23  phencyclidine, a capital felony punishable as provided in ss.

24  775.082 and 921.142. Any person sentenced for a capital felony

25  under this paragraph shall also be sentenced to pay the

26  maximum fine provided under subparagraph 1.

27         (e)1.  Any person who knowingly sells, purchases,

28  manufactures, delivers, or brings into this state, or who is

29  knowingly in actual or constructive possession of, 200 grams

30  or more of methaqualone or of any mixture containing

31  methaqualone, as described in s. 893.03(1)(d), commits a

                                  33
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  felony of the first degree, which felony shall be known as

 2  "trafficking in methaqualone." If the quantity involved:

 3         a.  Is 200 grams or more, but less than 5 kilograms,

 4  such person shall be sentenced pursuant to the Criminal

 5  Punishment Code and such sentence shall include a mandatory

 6  minimum term of imprisonment of 3 years, and the defendant

 7  shall be ordered to pay a fine of $50,000.

 8         b.  Is 5 kilograms or more, but less than 25 kilograms,

 9  such person shall be sentenced pursuant to the Criminal

10  Punishment Code and such sentence shall include a mandatory

11  minimum term of imprisonment of 7 years, and the defendant

12  shall be ordered to pay a fine of $100,000.

13         c.  Is 25 kilograms or more, but less than 50

14  kilograms, such person shall be sentenced to a mandatory

15  minimum term of imprisonment of 15 calendar years and pay a

16  fine of $250,000.

17         2.  Any person who knowingly brings into this state 50

18  kilograms or more of methaqualone or of any mixture containing

19  methaqualone, as described in s. 893.03(1)(d), and who knows

20  that the probable result of such importation would be the

21  death of any person commits capital importation of

22  methaqualone, a capital felony punishable as provided in ss.

23  775.082 and 921.142. Any person sentenced for a capital felony

24  under this paragraph shall also be sentenced to pay the

25  maximum fine provided under subparagraph 1.

26         (f)1.  Any person who knowingly sells, purchases,

27  manufactures, delivers, or brings into this state, or who is

28  knowingly in actual or constructive possession of, 14 grams or

29  more of amphetamine, as described in s. 893.03(2)(c)2., or

30  methamphetamine, as described in s. 893.03(2)(c)4., or of any

31  mixture containing amphetamine or methamphetamine, or

                                  34
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  phenylacetone, phenylacetic acid, or ephedrine in conjunction

 2  with other chemicals and equipment utilized in the manufacture

 3  of amphetamine or methamphetamine, commits a felony of the

 4  first degree, which felony shall be known as "trafficking in

 5  amphetamine."  If the quantity involved:

 6         a.  Is 14 grams or more, but less than 28 grams, such

 7  person shall be sentenced pursuant to the Criminal Punishment

 8  Code and such sentence shall include a mandatory minimum term

 9  of imprisonment of 3 years, and the defendant shall be ordered

10  to pay a fine of $50,000.

11         b.  Is 28 grams or more, but less than 200 grams, such

12  person shall be sentenced pursuant to the Criminal Punishment

13  Code and such sentence shall include a mandatory minimum term

14  of imprisonment of 7 years and the defendant shall be ordered

15  to pay a fine of $100,000.

16         c.  Is 200 grams or more, but less than 400 grams, such

17  person shall be sentenced to a mandatory minimum term of

18  imprisonment of 15 calendar years and pay a fine of $250,000.

19         2.  Any person who knowingly brings into this state 400

20  grams or more of amphetamine, as described in s.

21  893.03(2)(c)2., or methamphetamine, as described in s.

22  893.03(2)(c)4., or of any mixture containing amphetamine or

23  methamphetamine, or phenylacetone, phenylacetic acid, or

24  ephedrine in conjunction with other chemicals and equipment

25  utilized in the manufacture of amphetamine or methamphetamine,

26  and who knows that the probable result of such importation

27  would be the death of any person commits capital importation

28  of amphetamine, a capital felony punishable as provided in ss.

29  775.082 and 921.142. Any person sentenced for a capital felony

30  under this paragraph shall also be sentenced to pay the

31  maximum fine provided under subparagraph 1.

                                  35
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1         (g)1.  Any person who knowingly sells, purchases,

 2  manufactures, delivers, or brings into this state, or who is

 3  knowingly in actual or constructive possession of, 4 grams or

 4  more of flunitrazepam or any mixture containing flunitrazepam

 5  as described in s. 893.03(1)(a) commits a felony of the first

 6  degree, which felony shall be known as "trafficking in

 7  flunitrazepam."  If the quantity involved:

 8         a.  Is 4 grams or more but less than 14 grams, such

 9  person shall be sentenced pursuant to the Criminal Punishment

10  Code and such sentence shall include a mandatory minimum term

11  of imprisonment of 3 years and the defendant shall be ordered

12  to sentencing guidelines and pay a fine of $50,000.

13         b.  Is 14 grams or more but less than 28 grams, such

14  person shall be sentenced pursuant to the Criminal Punishment

15  Code and such sentence shall include a mandatory minimum term

16  of imprisonment of 7 years, and the defendant shall be ordered

17  to sentencing guidelines and pay a fine of $100,000.

18         c.  Is 28 grams or more but less than 30 kilograms,

19  such person shall be sentenced to a mandatory minimum term of

20  imprisonment of 25 calendar years and pay a fine of $500,000.

21         2.  Any person who knowingly sells, purchases,

22  manufactures, delivers, or brings into this state or who is

23  knowingly in actual or constructive possession of 30 kilograms

24  or more of flunitrazepam or any mixture containing

25  flunitrazepam as described in s. 893.03(1)(a) commits the

26  first degree felony of trafficking in flunitrazepam.  A person

27  who has been convicted of the first degree felony of

28  trafficking in flunitrazepam under this subparagraph shall be

29  punished by life imprisonment and is not eligible for any form

30  of gain time under s. 944.275 or ineligible for any form of

31  discretionary early release except pardon or executive

                                  36
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  clemency or conditional medical release under s. 947.149.

 2  However, if the court determines that, in addition to

 3  committing any act specified in this paragraph:

 4         a.  The person intentionally killed an individual or

 5  counseled, commanded, induced, procured, or caused the

 6  intentional killing of an individual and such killing was the

 7  result; or

 8         b.  The person's conduct in committing that act led to

 9  a natural, though not inevitable, lethal result,

10

11  such person commits the capital felony of trafficking in

12  flunitrazepam, punishable as provided in ss. 775.082 and

13  921.142.  Any person sentenced for a capital felony under this

14  paragraph shall also be sentenced to pay the maximum fine

15  provided under subparagraph 1.

16         (2)  A person acts knowingly under subsection (1) if

17  that person intends to sell, purchase, manufacture, deliver,

18  or bring into this state, or to actually or constructively

19  possess, any of the controlled substances listed in subsection

20  (1), regardless of which controlled substance listed in

21  subsection (1) is in fact sold, purchased, manufactured,

22  delivered, or brought into this state, or actually or

23  constructively possessed.

24         (3)  Notwithstanding the provisions of s. 948.01, with

25  respect to any person who is found to have violated this

26  section, adjudication of guilt or imposition of sentence shall

27  not be suspended, deferred, or withheld, nor shall such person

28  be eligible for parole prior to serving the mandatory minimum

29  term of imprisonment prescribed by this section. A person

30  sentenced to a mandatory minimum term of imprisonment under

31  this section is not eligible for any form of gain time under

                                  37
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  s. 944.275 or any form of discretionary early release, except

 2  pardon or executive clemency or conditional medical release

 3  under s. 947.149, prior to serving the mandatory minimum term

 4  of imprisonment.

 5         (4)  The state attorney may move the sentencing court

 6  to reduce or suspend the sentence of any person who is

 7  convicted of a violation of this section and who provides

 8  substantial assistance in the identification, arrest, or

 9  conviction of any of that person's accomplices, accessories,

10  coconspirators, or principals or of any other person engaged

11  in trafficking in controlled substances.  The arresting agency

12  shall be given an opportunity to be heard in aggravation or

13  mitigation in reference to any such motion.  Upon good cause

14  shown, the motion may be filed and heard in camera.  The judge

15  hearing the motion may reduce or suspend the sentence if the

16  judge finds that the defendant rendered such substantial

17  assistance.

18         (5)  Any person who agrees, conspires, combines, or

19  confederates with another person to commit any act prohibited

20  by subsection (1) commits a felony of the first degree and is

21  punishable as if he or she had actually committed such

22  prohibited act. Nothing in this subsection shall be construed

23  to prohibit separate convictions and sentences for a violation

24  of this subsection and any violation of subsection (1).

25         Section 10.  For the purpose of incorporating the

26  amendment to section 893.135, Florida Statutes, in references

27  thereto, the following sections or subdivisions of Florida

28  Statutes, or Florida Statutes, 1998 Supplement, are reenacted

29  to read:

30         397.451  Background checks of service provider

31  personnel who have direct contact with unmarried minor clients

                                  38
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  or clients who are developmentally disabled.--

 2         (7)  DISQUALIFICATION FROM RECEIVING STATE

 3  FUNDS.--State funds may not be disseminated to any service

 4  provider owned or operated by an owner or director who has

 5  been convicted of, has entered a plea of guilty or nolo

 6  contendere to, or has had adjudication withheld for, a

 7  violation of s. 893.135 pertaining to trafficking in

 8  controlled substances, or a violation of the law of another

 9  state, the District of Columbia, the United States or any

10  possession or territory thereof, or any foreign jurisdiction

11  which is substantially similar in elements and penalties to a

12  trafficking offense in this state, unless the owner's or

13  director's civil rights have been restored.

14         782.04  Murder.--

15         (4)  The unlawful killing of a human being, when

16  perpetrated without any design to effect death, by a person

17  engaged in the perpetration of, or in the attempt to

18  perpetrate, any felony other than any:

19         (a)  Trafficking offense prohibited by s. 893.135(1),

20

21  is murder in the third degree and constitutes a felony of the

22  second degree, punishable as provided in s. 775.082, s.

23  775.083, or s. 775.084.

24         893.1351  Lease or rent for the purpose of trafficking

25  in a controlled substance.--

26         (1)  A person may not lease or rent any place,

27  structure, or part thereof, trailer, or other conveyance, with

28  the knowledge that such place, structure, trailer, or

29  conveyance will be used for the purpose of trafficking in a

30  controlled substance, as provided in s. 893.135, or the sale

31  of a controlled substance, as provided in s. 893.13.

                                  39
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1         903.133  Bail on appeal; prohibited for certain felony

 2  convictions.--Notwithstanding the provisions of s. 903.132, no

 3  person adjudged guilty of a felony of the first degree for a

 4  violation of s. 782.04(2) or (3), s. 787.01, s. 794.011(4), s.

 5  806.01, s. 893.13, or s. 893.135, or adjudged guilty of a

 6  violation of s. 794.011(2) or (3), shall be admitted to bail

 7  pending review either by posttrial motion or appeal.

 8         907.041  Pretrial detention and release.--

 9         (4)  PRETRIAL DETENTION.--

10         (b)  The court may order pretrial detention if it finds

11  a substantial probability, based on a defendant's past and

12  present patterns of behavior, the criteria in s. 903.046, and

13  any other relevant facts, that:

14         1.  The defendant has previously violated conditions of

15  release and that no further conditions of release are

16  reasonably likely to assure the defendant's appearance at

17  subsequent proceedings;

18         2.  The defendant, with the intent to obstruct the

19  judicial process, has threatened, intimidated, or injured any

20  victim, potential witness, juror, or judicial officer, or has

21  attempted or conspired to do so, and that no condition of

22  release will reasonably prevent the obstruction of the

23  judicial process;

24         3.  The defendant is charged with trafficking in

25  controlled substances as defined by s. 893.135, that there is

26  a substantial probability that the defendant has committed the

27  offense, and that no conditions of release will reasonably

28  assure the defendant's appearance at subsequent criminal

29  proceedings; or

30         4.  The defendant poses the threat of harm to the

31  community.  The court may so conclude if it finds that the

                                  40
    5:03 PM   04/27/99                               s1746.cj23.0b




                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  defendant is presently charged with a dangerous crime, that

 2  there is a substantial probability that the defendant

 3  committed such crime, that the factual circumstances of the

 4  crime indicate a disregard for the safety of the community,

 5  and that there are no conditions of release reasonably

 6  sufficient to protect the community from the risk of physical

 7  harm to persons. In addition, the court must find that at

 8  least one of the following conditions is present:

 9         a.  The defendant has previously been convicted of a

10  crime punishable by death or life imprisonment.

11         b.  The defendant has been convicted of a dangerous

12  crime within the 10 years immediately preceding the date of

13  his or her arrest for the crime presently charged.

14         c.  The defendant is on probation, parole, or other

15  release pending completion of sentence or on pretrial release

16  for a dangerous crime at the time of the current arrest.

17         921.0022  Criminal Punishment Code; offense severity

18  ranking chart.--

19         (3)  OFFENSE SEVERITY RANKING CHART

20

21  Florida           Felony

22  Statute           Degree             Description

23

24                              (g)  LEVEL 7

25  316.193(3)(c)2.    3rd      DUI resulting in serious bodily

26                              injury.

27  327.35(3)(c)2.     3rd      Vessel BUI resulting in serious

28                              bodily injury.

29  409.920(2)         3rd      Medicaid provider fraud.

30  494.0018(2)        1st      Conviction of any violation of

31                              ss. 494.001-494.0077 in which the

                                  41
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1                              total money and property

 2                              unlawfully obtained exceeded

 3                              $50,000 and there were five or

 4                              more victims.

 5  782.051(3)         2nd      Attempted felony murder of a

 6                              person by a person other than the

 7                              perpetrator or the perpetrator of

 8                              an attempted felony.

 9  782.07(1)          2nd      Killing of a human being by the

10                              act, procurement, or culpable

11                              negligence of another

12                              (manslaughter).

13  782.071            3rd      Killing of human being or viable

14                              fetus by the operation of a motor

15                              vehicle in a reckless manner

16                              (vehicular homicide).

17  782.072            3rd      Killing of a human being by the

18                              operation of a vessel in a

19                              reckless manner (vessel

20                              homicide).

21  784.045(1)(a)1.    2nd      Aggravated battery; intentionally

22                              causing great bodily harm or

23                              disfigurement.

24  784.045(1)(a)2.    2nd      Aggravated battery; using deadly

25                              weapon.

26  784.045(1)(b)      2nd      Aggravated battery; perpetrator

27                              aware victim pregnant.

28  784.048(4)         3rd      Aggravated stalking; violation of

29                              injunction or court order.

30  784.07(2)(d)       1st      Aggravated battery on law

31                              enforcement officer.

                                  42
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  784.08(2)(a)       1st      Aggravated battery on a person 65

 2                              years of age or older.

 3  784.081(1)         1st      Aggravated battery on specified

 4                              official or employee.

 5  784.082(1)         1st      Aggravated battery by detained

 6                              person on visitor or other

 7                              detainee.

 8  784.083(1)         1st      Aggravated battery on code

 9                              inspector.

10  790.07(4)          1st      Specified weapons violation

11                              subsequent to previous conviction

12                              of s. 790.07(1) or (2).

13  790.16(1)          1st      Discharge of a machine gun under

14                              specified circumstances.

15  796.03             2nd      Procuring any person under 16

16                              years for prostitution.

17  800.04             2nd      Handle, fondle, or assault child

18                              under 16 years in lewd,

19                              lascivious, or indecent manner.

20  806.01(2)          2nd      Maliciously damage structure by

21                              fire or explosive.

22  810.02(3)(a)       2nd      Burglary of occupied dwelling;

23                              unarmed; no assault or battery.

24  810.02(3)(b)       2nd      Burglary of unoccupied dwelling;

25                              unarmed; no assault or battery.

26  810.02(3)(d)       2nd      Burglary of occupied conveyance;

27                              unarmed; no assault or battery.

28  812.014(2)(a)      1st      Property stolen, valued at

29                              $100,000 or more; property stolen

30                              while causing other property

31                              damage; 1st degree grand theft.

                                  43
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  812.019(2)         1st      Stolen property; initiates,

 2                              organizes, plans, etc., the theft

 3                              of property and traffics in

 4                              stolen property.

 5  812.133(2)(b)      1st      Carjacking; no firearm, deadly

 6                              weapon, or other weapon.

 7  825.102(3)(b)      2nd      Neglecting an elderly person or

 8                              disabled adult causing great

 9                              bodily harm, disability, or

10                              disfigurement.

11  825.1025(2)        2nd      Lewd or lascivious battery upon

12                              an elderly person or disabled

13                              adult.

14  825.103(2)(b)      2nd      Exploiting an elderly person or

15                              disabled adult and property is

16                              valued at $20,000 or more, but

17                              less than $100,000.

18  827.03(3)(b)       2nd      Neglect of a child causing great

19                              bodily harm, disability, or

20                              disfigurement.

21  827.04(4)          3rd      Impregnation of a child under 16

22                              years of age by person 21 years

23                              of age or older.

24  837.05(2)          3rd      Giving false information about

25                              alleged capital felony to a law

26                              enforcement officer.

27  872.06             2nd      Abuse of a dead human body.

28  893.13(1)(c)1.     1st      Sell, manufacture, or deliver

29                              cocaine (or other drug prohibited

30                              under s. 893.03(1)(a), (1)(b),

31                              (1)(d), (2)(a), or (2)(b)) within

                                  44
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1                              1,000 feet of a child care

 2                              facility or school.

 3  893.13(1)(e)       1st      Sell, manufacture, or deliver

 4                              cocaine or other drug prohibited

 5                              under s. 893.03(1)(a), (1)(b),

 6                              (1)(d), (2)(a), or (2)(b), within

 7                              1,000 feet of property used for

 8                              religious services or a specified

 9                              business site.

10  893.13(4)(a)       1st      Deliver to minor cocaine (or

11                              other s. 893.03(1)(a), (1)(b),

12                              (1)(d), (2)(a), or (2)(b) drugs).

13  893.135(1)(a)1.    1st      Trafficking in cannabis, more

14                              than 50 lbs., less than 2,000

15                              lbs.

16  893.135

17   (1)(b)1.a.        1st      Trafficking in cocaine, more than

18                              28 grams, less than 200 grams.

19  893.135

20   (1)(c)1.a.        1st      Trafficking in illegal drugs,

21                              more than 4 grams, less than 14

22                              grams.

23  893.135

24   (1)(d)1.          1st      Trafficking in phencyclidine,

25                              more than 28 grams, less than 200

26                              grams.

27  893.135(1)(e)1.    1st      Trafficking in methaqualone, more

28                              than 200 grams, less than 5

29                              kilograms.

30  893.135(1)(f)1.    1st      Trafficking in amphetamine, more

31                              than 14 grams, less than 28

                                  45
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1                              grams.

 2  893.135

 3   (1)(g)1.a.        1st      Trafficking in flunitrazepam, 4

 4                              grams or more, less than 14

 5                              grams.

 6                              (h)  LEVEL 8

 7  316.193

 8   (3)(c)3.a.        2nd      DUI manslaughter.

 9  327.35(3)(c)3.     2nd      Vessel BUI manslaughter.

10  777.03(2)(a)       1st      Accessory after the fact, capital

11                              felony.

12  782.04(4)          2nd      Killing of human without design

13                              when engaged in act or attempt of

14                              any felony other than arson,

15                              sexual battery, robbery,

16                              burglary, kidnapping, aircraft

17                              piracy, or unlawfully discharging

18                              bomb.

19  782.051(2)         1st      Attempted felony murder while

20                              perpetrating or attempting to

21                              perpetrate a felony not

22                              enumerated in s. 782.04(3).

23  782.071(2)         2nd      Committing vehicular homicide and

24                              failing to render aid or give

25                              information.

26  782.072(2)         2nd      Committing vessel homicide and

27                              failing to render aid or give

28                              information.

29  790.161(3)         1st      Discharging a destructive device

30                              which results in bodily harm or

31                              property damage.

                                  46
    5:03 PM   04/27/99                               s1746.cj23.0b




                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  794.011(5)         2nd      Sexual battery, victim 12 years

 2                              or over, offender does not use

 3                              physical force likely to cause

 4                              serious injury.

 5  806.01(1)          1st      Maliciously damage dwelling or

 6                              structure by fire or explosive,

 7                              believing person in structure.

 8  810.02(2)(a)       1st,PBL  Burglary with assault or battery.

 9  810.02(2)(b)       1st,PBL  Burglary; armed with explosives

10                              or dangerous weapon.

11  810.02(2)(c)       1st      Burglary of a dwelling or

12                              structure causing structural

13                              damage or $1,000 or more property

14                              damage.

15  812.13(2)(b)       1st      Robbery with a weapon.

16  812.135(2)         1st      Home-invasion robbery.

17  825.102(2)         2nd      Aggravated abuse of an elderly

18                              person or disabled adult.

19  825.103(2)(a)      1st      Exploiting an elderly person or

20                              disabled adult and property is

21                              valued at $100,000 or more.

22  827.03(2)          2nd      Aggravated child abuse.

23  837.02(2)          2nd      Perjury in official proceedings

24                              relating to prosecution of a

25                              capital felony.

26  837.021(2)         2nd      Making contradictory statements

27                              in official proceedings relating

28                              to prosecution of a capital

29                              felony.

30  860.121(2)(c)      1st      Shooting at or throwing any

31                              object in path of railroad

                                  47
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1                              vehicle resulting in great bodily

 2                              harm.

 3  860.16             1st      Aircraft piracy.

 4  893.13(1)(b)       1st      Sell or deliver in excess of 10

 5                              grams of any substance specified

 6                              in s. 893.03(1)(a) or (b).

 7  893.13(2)(b)       1st      Purchase in excess of 10 grams of

 8                              any substance specified in s.

 9                              893.03(1)(a) or (b).

10  893.13(6)(c)       1st      Possess in excess of 10 grams of

11                              any substance specified in s.

12                              893.03(1)(a) or (b).

13  893.135(1)(a)2.    1st      Trafficking in cannabis, more

14                              than 2,000 lbs., less than 10,000

15                              lbs.

16  893.135

17   (1)(b)1.b.        1st      Trafficking in cocaine, more than

18                              200 grams, less than 400 grams.

19  893.135

20   (1)(c)1.b.        1st      Trafficking in illegal drugs,

21                              more than 14 grams, less than 28

22                              grams.

23  893.135

24   (1)(d)1.b.        1st      Trafficking in phencyclidine,

25                              more than 200 grams, less than

26                              400 grams.

27  893.135

28   (1)(e)1.b.        1st      Trafficking in methaqualone, more

29                              than 5 kilograms, less than 25

30                              kilograms.

31

                                  48
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  893.135

 2   (1)(f)1.b.        1st      Trafficking in amphetamine, more

 3                              than 28 grams, less than 200

 4                              grams.

 5  893.135

 6  (1)(g)1.b.         1st      Trafficking in flunitrazepam, 14

 7                              grams or more, less than 28

 8                              grams.

 9  895.03(1)          1st      Use or invest proceeds derived

10                              from pattern of racketeering

11                              activity.

12  895.03(2)          1st      Acquire or maintain through

13                              racketeering activity any

14                              interest in or control of any

15                              enterprise or real property.

16  895.03(3)          1st      Conduct or participate in any

17                              enterprise through pattern of

18                              racketeering activity.

19                              (i)  LEVEL 9

20  316.193

21   (3)(c)3.b.        1st      DUI manslaughter; failing to

22                              render aid or give information.

23  782.04(1)          1st      Attempt, conspire, or solicit to

24                              commit premeditated murder.

25  782.04(3)          1st,PBL   Accomplice to murder in

26                              connection with arson, sexual

27                              battery, robbery, burglary, and

28                              other specified felonies.

29  782.051(1)         1st      Attempted felony murder while

30                              perpetrating or attempting to

31                              perpetrate a felony enumerated in

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1                              s. 782.04(3).

 2  782.07(2)          1st      Aggravated manslaughter of an

 3                              elderly person or disabled adult.

 4  782.07(3)          1st      Aggravated manslaughter of a

 5                              child.

 6  787.01(1)(a)1.     1st,PBL  Kidnapping; hold for ransom or

 7                              reward or as a shield or hostage.

 8  787.01(1)(a)2.     1st,PBL  Kidnapping with intent to commit

 9                              or facilitate commission of any

10                              felony.

11  787.01(1)(a)4.     1st,PBL  Kidnapping with intent to

12                              interfere with performance of any

13                              governmental or political

14                              function.

15  787.02(3)(a)       1st      False imprisonment; child under

16                              age 13; perpetrator also commits

17                              child abuse, sexual battery,

18                              lewd, or lascivious act, etc.

19  790.161            1st      Attempted capital destructive

20                              device offense.

21  794.011(2)         1st      Attempted sexual battery; victim

22                              less than 12 years of age.

23  794.011(2)         Life     Sexual battery; offender younger

24                              than 18 years and commits sexual

25                              battery on a person less than 12

26                              years.

27  794.011(4)         1st      Sexual battery; victim 12 years

28                              or older, certain circumstances.

29  794.011(8)(b)      1st      Sexual battery; engage in sexual

30                              conduct with minor 12 to 18 years

31                              by person in familial or

                                  50
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1                              custodial authority.

 2  812.13(2)(a)       1st,PBL  Robbery with firearm or other

 3                              deadly weapon.

 4  812.133(2)(a)      1st,PBL  Carjacking; firearm or other

 5                              deadly weapon.

 6  847.0145(1)        1st      Selling, or otherwise

 7                              transferring custody or control,

 8                              of a minor.

 9  847.0145(2)        1st      Purchasing, or otherwise

10                              obtaining custody or control, of

11                              a minor.

12  859.01             1st      Poisoning food, drink, medicine,

13                              or water with intent to kill or

14                              injure another person.

15  893.135            1st      Attempted capital trafficking

16                              offense.

17  893.135(1)(a)3.    1st      Trafficking in cannabis, more

18                              than 10,000 lbs.

19  893.135

20   (1)(b)1.c.        1st      Trafficking in cocaine, more than

21                              400 grams, less than 150

22                              kilograms.

23  893.135

24   (1)(c)1.c.        1st      Trafficking in illegal drugs,

25                              more than 28 grams, less than 30

26                              kilograms.

27  893.135

28   (1)(d)1.c.        1st      Trafficking in phencyclidine,

29                              more than 400 grams.

30  893.135

31   (1)(e)1.c.        1st      Trafficking in methaqualone, more

                                  51
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1                              than 25 kilograms.

 2  893.135

 3   (1)(f)1.c.        1st      Trafficking in amphetamine, more

 4                              than 200 grams.

 5                              (j)  LEVEL 10

 6  782.04(2)          1st,PBL  Unlawful killing of human; act is

 7                              homicide, unpremeditated.

 8  787.01(1)(a)3.     1st,PBL  Kidnapping; inflict bodily harm

 9                              upon or terrorize victim.

10  787.01(3)(a)       Life     Kidnapping; child under age 13,

11                              perpetrator also commits child

12                              abuse, sexual battery, lewd, or

13                              lascivious act, etc.

14  794.011(3)         Life     Sexual battery; victim 12 years

15                              or older, offender uses or

16                              threatens to use deadly weapon or

17                              physical force to cause serious

18                              injury.

19  876.32             1st      Treason against the state.

20         921.0024  Criminal Punishment Code; worksheet

21  computations; scoresheets.--

22         (1)

23                       (b)  WORKSHEET KEY:

24

25  Legal status points are assessed when any form of legal status

26  existed at the time the offender committed an offense before

27  the court for sentencing. Four (4) sentence points are

28  assessed for an offender's legal status.

29

30  Community sanction violation points are assessed when a

31  community sanction violation is before the court for

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  sentencing.  Six (6) sentence points are assessed for each

 2  community sanction violation, and each successive community

 3  sanction violation; however, if the community sanction

 4  violation includes a new felony conviction before the

 5  sentencing court, twelve (12) community sanction violation

 6  points are assessed for such violation, and for each

 7  successive community sanction violation involving a new felony

 8  conviction. Multiple counts of community sanction violations

 9  before the sentencing court shall not be a basis for

10  multiplying the assessment of community sanction violation

11  points.

12

13  Prior serious felony points: If the offender has a primary

14  offense or any additional offense ranked in level 8, level 9,

15  or level 10, and one or more prior serious felonies, a single

16  assessment of 30 points shall be added. For purposes of this

17  section, a prior serious felony is an offense in the

18  offender's prior record that is ranked in level 8, level 9, or

19  level 10 under s. 921.0022 or s. 921.0023 and for which the

20  offender is serving a sentence of confinement, supervision, or

21  other sanction or for which the offender's date of release

22  from confinement, supervision, or other sanction, whichever is

23  later, is within 3 years before the date the primary offense

24  or any additional offense was committed.

25

26  Prior capital felony points:  If the offender has one or more

27  prior capital felonies in the offender's criminal record,

28  points shall be added to the subtotal sentence points of the

29  offender equal to twice the number of points the offender

30  receives for the primary offense and any additional offense.

31  A prior capital felony in the offender's criminal record is a

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  previous capital felony offense for which the offender has

 2  entered a plea of nolo contendere or guilty or has been found

 3  guilty; or a felony in another jurisdiction which is a capital

 4  felony in that jurisdiction, or would be a capital felony if

 5  the offense were committed in this state.

 6

 7  Possession of a firearm, semiautomatic firearm, or machine

 8  gun:  If the offender is convicted of committing or attempting

 9  to commit any felony other than those enumerated in s.

10  775.087(2) while having in his possession: a firearm as

11  defined in s. 790.001(6), an additional 18 sentence points are

12  assessed; or if the offender is convicted of committing or

13  attempting to commit any felony other than those enumerated in

14  s. 775.087(3) while having in his possession a semiautomatic

15  firearm as defined in s. 775.087(3) or a machine gun as

16  defined in s. 790.001(9), an additional 25 sentence points are

17  assessed.

18

19  Sentencing multipliers:

20

21  Drug trafficking:  If the primary offense is drug trafficking

22  under s. 893.135, the subtotal sentence points are multiplied,

23  at the discretion of the court, for a level 7 or level 8

24  offense, by 1.5.  The state attorney may move the sentencing

25  court to reduce or suspend the sentence of a person convicted

26  of a level 7 or level 8 offense, if the offender provides

27  substantial assistance as described in s. 893.135(4).

28

29  Law enforcement protection:  If the primary offense is a

30  violation of the Law Enforcement Protection Act under s.

31  775.0823(2), the subtotal sentence points are multiplied by

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  2.5.  If the primary offense is a violation of s. 775.0823(3),

 2  (4), (5), (6), (7), or (8), the subtotal sentence points are

 3  multiplied by 2.0. If the primary offense is a violation of s.

 4  784.07(3) or s. 775.0875(1), or of the Law Enforcement

 5  Protection Act under s. 775.0823(9) or (10), the subtotal

 6  sentence points are multiplied by 1.5.

 7

 8  Grand theft of a motor vehicle:  If the primary offense is

 9  grand theft of the third degree involving a motor vehicle and

10  in the offender's prior record, there are three or more grand

11  thefts of the third degree involving a motor vehicle, the

12  subtotal sentence points are multiplied by 1.5.

13

14  Criminal street gang member:  If the offender is convicted of

15  the primary offense and is found to have been a member of a

16  criminal street gang at the time of the commission of the

17  primary offense pursuant to s. 874.04, the subtotal sentence

18  points are multiplied by 1.5.

19

20  Domestic violence in the presence of a child:  If the offender

21  is convicted of the primary offense and the primary offense is

22  a crime of domestic violence, as defined in s. 741.28, which

23  was committed in the presence of a child under 16 years of age

24  who is a family household member as defined in s. 741.28(2)

25  with the victim or perpetrator, the subtotal sentence points

26  are multiplied, at the discretion of the court, by 1.5.

27         921.142  Sentence of death or life imprisonment for

28  capital drug trafficking felonies; further proceedings to

29  determine sentence.--

30         (2)  SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.--Upon

31  conviction or adjudication of guilt of a defendant of a

                                  55
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  capital felony under s. 893.135, the court shall conduct a

 2  separate sentencing proceeding to determine whether the

 3  defendant should be sentenced to death or life imprisonment as

 4  authorized by s. 775.082.  The proceeding shall be conducted

 5  by the trial judge before the trial jury as soon as

 6  practicable.  If, through impossibility or inability, the

 7  trial jury is unable to reconvene for a hearing on the issue

 8  of penalty, having determined the guilt of the accused, the

 9  trial judge may summon a special juror or jurors as provided

10  in chapter 913 to determine the issue of the imposition of the

11  penalty.  If the trial jury has been waived, or if the

12  defendant pleaded guilty, the sentencing proceeding shall be

13  conducted before a jury impaneled for that purpose, unless

14  waived by the defendant.  In the proceeding, evidence may be

15  presented as to any matter that the court deems relevant to

16  the nature of the crime and the character of the defendant and

17  shall include matters relating to any of the aggravating or

18  mitigating circumstances enumerated in subsections (6) and

19  (7).  Any such evidence which the court deems to have

20  probative value may be received, regardless of its

21  admissibility under the exclusionary rules of evidence,

22  provided the defendant is accorded a fair opportunity to rebut

23  any hearsay statements.  However, this subsection shall not be

24  construed to authorize the introduction of any evidence

25  secured in violation of the Constitution of the United States

26  or the Constitution of the State of Florida. The state and the

27  defendant or the defendant's counsel shall be permitted to

28  present argument for or against sentence of death.

29         943.0585  Court-ordered expunction of criminal history

30  records.--The courts of this state have jurisdiction over

31  their own procedures, including the maintenance, expunction,

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  and correction of judicial records containing criminal history

 2  information to the extent such procedures are not inconsistent

 3  with the conditions, responsibilities, and duties established

 4  by this section.  Any court of competent jurisdiction may

 5  order a criminal justice agency to expunge the criminal

 6  history record of a minor or an adult who complies with the

 7  requirements of this section.  The court shall not order a

 8  criminal justice agency to expunge a criminal history record

 9  until the person seeking to expunge a criminal history record

10  has applied for and received a certificate of eligibility for

11  expunction pursuant to subsection (2).  A criminal history

12  record that relates to a violation of chapter 794, s. 800.04,

13  s. 817.034, s. 827.071, chapter 839, s. 893.135, or a

14  violation enumerated in s. 907.041 may not be expunged,

15  without regard to whether adjudication was withheld, if the

16  defendant was found guilty of or pled guilty or nolo

17  contendere to the offense, or if the defendant, as a minor,

18  was found to have committed, or pled guilty or nolo contendere

19  to committing, the offense as a delinquent act. The court may

20  only order expunction of a criminal history record pertaining

21  to one arrest or one incident of alleged criminal activity,

22  except as provided in this section. The court may, at its sole

23  discretion, order the expunction of a criminal history record

24  pertaining to more than one arrest if the additional arrests

25  directly relate to the original arrest. If the court intends

26  to order the expunction of records pertaining to such

27  additional arrests, such intent must be specified in the

28  order. A criminal justice agency may not expunge any record

29  pertaining to such additional arrests if the order to expunge

30  does not articulate the intention of the court to expunge a

31  record pertaining to more than one arrest. This section does

                                  57
    5:03 PM   04/27/99                               s1746.cj23.0b




                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  not prevent the court from ordering the expunction of only a

 2  portion of a criminal history record pertaining to one arrest

 3  or one incident of alleged criminal activity.  Notwithstanding

 4  any law to the contrary, a criminal justice agency may comply

 5  with laws, court orders, and official requests of other

 6  jurisdictions relating to expunction, correction, or

 7  confidential handling of criminal history records or

 8  information derived therefrom.  This section does not confer

 9  any right to the expunction of any criminal history record,

10  and any request for expunction of a criminal history record

11  may be denied at the sole discretion of the court.

12         (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY

13  RECORD.--Each petition to a court to expunge a criminal

14  history record is complete only when accompanied by:

15         (a)  A certificate of eligibility for expunction issued

16  by the department pursuant to subsection (2).

17         (b)  The petitioner's sworn statement attesting that

18  the petitioner:

19         1.  Has never previously been adjudicated guilty of a

20  criminal offense or comparable ordinance violation or

21  adjudicated delinquent for committing a felony or a

22  misdemeanor specified in s. 943.051(3)(b).

23         2.  Has not been adjudicated guilty of, or adjudicated

24  delinquent for committing, any of the acts stemming from the

25  arrest or alleged criminal activity to which the petition

26  pertains.

27         3.  Has never secured a prior sealing or expunction of

28  a criminal history record under this section, former s.

29  893.14, former s. 901.33, or former s. 943.058, or from any

30  jurisdiction outside the state.

31         4.  Is eligible for such an expunction to the best of

                                  58
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  his or her knowledge or belief and does not have any other

 2  petition to expunge or any petition to seal pending before any

 3  court.

 4

 5  Any person who knowingly provides false information on such

 6  sworn statement to the court commits a felony of the third

 7  degree, punishable as provided in s. 775.082, s. 775.083, or

 8  s. 775.084.

 9         (2)  CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior

10  to petitioning the court to expunge a criminal history record,

11  a person seeking to expunge a criminal history record shall

12  apply to the department for a certificate of eligibility for

13  expunction. The department shall, by rule adopted pursuant to

14  chapter 120, establish procedures pertaining to the

15  application for and issuance of certificates of eligibility

16  for expunction. The department shall issue a certificate of

17  eligibility for expunction to a person who is the subject of a

18  criminal history record if that person:

19         (a)  Has obtained, and submitted to the department, a

20  written, certified statement from the appropriate state

21  attorney or statewide prosecutor which indicates:

22         1.  That an indictment, information, or other charging

23  document was not filed or issued in the case.

24         2.  That an indictment, information, or other charging

25  document, if filed or issued in the case, was dismissed or

26  nolle prosequi by the state attorney or statewide prosecutor,

27  or was dismissed by a court of competent jurisdiction.

28         3.  That the criminal history record does not relate to

29  a violation of chapter 794, s. 800.04, s. 817.034, s. 827.071,

30  chapter 839, s. 893.135, or a violation enumerated in s.

31  907.041, where the defendant was found guilty of, or pled

                                  59
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  guilty or nolo contendere to any such offense, or that the

 2  defendant, as a minor, was found to have committed, or pled

 3  guilty or nolo contendere to committing, such an offense as a

 4  delinquent act, without regard to whether adjudication was

 5  withheld.

 6         (b)  Remits a $75 processing fee to the department for

 7  placement in the Department of Law Enforcement Operating Trust

 8  Fund, unless such fee is waived by the executive director.

 9         (c)  Has submitted to the department a certified copy

10  of the disposition of the charge to which the petition to

11  expunge pertains.

12         (d)  Has never previously been adjudicated guilty of a

13  criminal offense or comparable ordinance violation or

14  adjudicated delinquent for committing a felony or a

15  misdemeanor specified in s. 943.051(3)(b).

16         (e)  Has not been adjudicated guilty of, or adjudicated

17  delinquent for committing, any of the acts stemming from the

18  arrest or alleged criminal activity to which the petition to

19  expunge pertains.

20         (f)  Has never secured a prior sealing or expunction of

21  a criminal history record under this section, former s.

22  893.14, former s. 901.33, or former s. 943.058.

23         (g)  Is no longer under court supervision applicable to

24  the disposition of the arrest or alleged criminal activity to

25  which the petition to expunge pertains.

26         (h)  Is not required to wait a minimum of 10 years

27  prior to being eligible for an expunction of such records

28  because all charges related to the arrest or criminal activity

29  to which the petition to expunge pertains were dismissed prior

30  to trial, adjudication, or the withholding of adjudication.

31  Otherwise, such criminal history record must be sealed under

                                  60
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  this section, former s. 893.14, former s. 901.33, or former s.

 2  943.058 for at least 10 years before such record is eligible

 3  for expunction.

 4         (3)  PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--

 5         (a)  In judicial proceedings under this section, a copy

 6  of the completed petition to expunge 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 expunge.

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 the arresting

16  agency. The arresting agency is responsible for forwarding the

17  order to any other agency to which the arresting agency

18  disseminated the criminal history record information to which

19  the order pertains. The department shall forward the order to

20  expunge to the Federal Bureau of Investigation. The clerk of

21  the court shall certify a copy of the order to any other

22  agency which the records of the court reflect has received the

23  criminal history record from the court.

24         (c)  For an order to expunge entered by a court prior

25  to July 1, 1992, the department shall notify the appropriate

26  state attorney or statewide prosecutor of an order to expunge

27  which is contrary to law because the person who is the subject

28  of the record has previously been convicted of a crime or

29  comparable ordinance violation or has had a prior criminal

30  history record sealed or expunged. Upon receipt of such

31  notice, the appropriate state attorney or statewide prosecutor

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  shall take action, within 60 days, to correct the record and

 2  petition the court to void the order to expunge. The

 3  department shall seal the record until such time as the order

 4  is voided by the court.

 5         (d)  On or after July 1, 1992, the department or any

 6  other criminal justice agency is not required to act on an

 7  order to expunge entered by a court when such order does not

 8  comply with the requirements of this section. Upon receipt of

 9  such an order, the department must notify the issuing court,

10  the appropriate state attorney or statewide prosecutor, the

11  petitioner or the petitioner's attorney, and the arresting

12  agency of the reason for noncompliance. The appropriate state

13  attorney or statewide prosecutor shall take action within 60

14  days to correct the record and petition the court to void the

15  order.  No cause of action, including contempt of court, shall

16  arise against any criminal justice agency for failure to

17  comply with an order to expunge when the petitioner for such

18  order failed to obtain the certificate of eligibility as

19  required by this section or such order does not otherwise

20  comply with the requirements of this section.

21         (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

22  criminal history record of a minor or an adult which is

23  ordered expunged by a court of competent jurisdiction pursuant

24  to this section must be physically destroyed or obliterated by

25  any criminal justice agency having custody of such record;

26  except that any criminal history record in the custody of the

27  department must be retained in all cases. A criminal history

28  record ordered expunged that is retained by the department is

29  confidential and exempt from the provisions of s. 119.07(1)

30  and s. 24(a), Art. I of the State Constitution and not

31  available to any person or entity except upon order of a court

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  of competent jurisdiction. A criminal justice agency may

 2  retain a notation indicating compliance with an order to

 3  expunge.

 4         (a)  The person who is the subject of a criminal

 5  history record that is expunged under this section or under

 6  other provisions of law, including former s. 893.14, former s.

 7  901.33, and former s. 943.058, may lawfully deny or fail to

 8  acknowledge the arrests covered by the expunged record, except

 9  when the subject of the record:

10         1.  Is a candidate for employment with a criminal

11  justice agency;

12         2.  Is a defendant in a criminal prosecution;

13         3.  Concurrently or subsequently petitions for relief

14  under this section or s. 943.059;

15         4.  Is a candidate for admission to The Florida Bar;

16         5.  Is seeking to be employed or licensed by or to

17  contract with the Department of Children and Family Services

18  or the Department of Juvenile Justice or to be employed or

19  used by such contractor or licensee in a sensitive position

20  having direct contact with children, the developmentally

21  disabled, the aged, or the elderly as provided in s.

22  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

23  402.302(8), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

24  415.1075(4), s. 985.407, or chapter 400; or

25         6.  Is seeking to be employed or licensed by the Office

26  of Teacher Education, Certification, Staff Development, and

27  Professional Practices of the Department of Education, any

28  district school board, or any local governmental entity that

29  licenses child care facilities.

30         (b)  Subject to the exceptions in paragraph (a), a

31  person who has been granted an expunction under this section,

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  former s. 893.14, former s. 901.33, or former s. 943.058 may

 2  not be held under any provision of law of this state to commit

 3  perjury or to be otherwise liable for giving a false statement

 4  by reason of such person's failure to recite or acknowledge an

 5  expunged criminal history record.

 6         (c)  Information relating to the existence of an

 7  expunged criminal history record which is provided in

 8  accordance with paragraph (a) is confidential and exempt from

 9  the provisions of s. 119.07(1) and s. 24(a), Art. I of the

10  State Constitution, except that the department shall disclose

11  the existence of a criminal history record ordered expunged to

12  the entities set forth in subparagraphs (a)1., 4., 5., and 6.

13  for their respective licensing and employment purposes, and to

14  criminal justice agencies for their respective criminal

15  justice purposes.  It is unlawful for any employee of an

16  entity set forth in subparagraph (a)1., subparagraph (a)4.,

17  subparagraph (a)5., or subparagraph (a)6. to disclose

18  information relating to the existence of an expunged criminal

19  history record of a person seeking employment or licensure

20  with such entity or contractor, except to the person to whom

21  the criminal history record relates or to persons having

22  direct responsibility for employment or licensure decisions.

23  Any person who violates this paragraph commits a misdemeanor

24  of the first degree, punishable as provided in s. 775.082 or

25  s. 775.083.

26         943.059  Court-ordered sealing of criminal history

27  records.--The courts of this state shall continue to have

28  jurisdiction over their own procedures, including the

29  maintenance, sealing, and correction of judicial records

30  containing criminal history information to the extent such

31  procedures are not inconsistent with the conditions,

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  responsibilities, and duties established by this section.  Any

 2  court of competent jurisdiction may order a criminal justice

 3  agency to seal the criminal history record of a minor or an

 4  adult who complies with the requirements of this section.  The

 5  court shall not order a criminal justice agency to seal a

 6  criminal history record until the person seeking to seal a

 7  criminal history record has applied for and received a

 8  certificate of eligibility for sealing pursuant to subsection

 9  (2).  A criminal history record that relates to a violation of

10  chapter 794, s. 800.04, s. 817.034, s. 827.071, chapter 839,

11  s. 893.135, or a violation enumerated in s. 907.041 may not be

12  sealed, without regard to whether adjudication was withheld,

13  if the defendant was found guilty of or pled guilty or nolo

14  contendere to the offense, or if the defendant, as a minor,

15  was found to have committed or pled guilty or nolo contendere

16  to committing the offense as a delinquent act.  The court may

17  only order sealing of a criminal history record pertaining to

18  one arrest or one incident of alleged criminal activity,

19  except as provided in this section. The court may, at its sole

20  discretion, order the sealing of a criminal history record

21  pertaining to more than one arrest if the additional arrests

22  directly relate to the original arrest.  If the court intends

23  to order the sealing of records pertaining to such additional

24  arrests, such intent must be specified in the order.  A

25  criminal justice agency may not seal any record pertaining to

26  such additional arrests if the order to seal does not

27  articulate the intention of the court to seal records

28  pertaining to more than one arrest.  This section does not

29  prevent the court from ordering the sealing of only a portion

30  of a criminal history record pertaining to one arrest or one

31  incident of alleged criminal activity. Notwithstanding any law

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  to the contrary, a criminal justice agency may comply with

 2  laws, court orders, and official requests of other

 3  jurisdictions relating to sealing, correction, or confidential

 4  handling of criminal history records or information derived

 5  therefrom.  This section does not confer any right to the

 6  sealing of any criminal history record, and any request for

 7  sealing a criminal history record may be denied at the sole

 8  discretion of the court.

 9         (1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each

10  petition to a court to seal a criminal history record is

11  complete only when accompanied by:

12         (a)  A certificate of eligibility for sealing issued by

13  the department pursuant to subsection (2).

14         (b)  The petitioner's sworn statement attesting that

15  the petitioner:

16         1.  Has never previously been adjudicated guilty of a

17  criminal offense or comparable ordinance violation or

18  adjudicated delinquent for committing a felony or a

19  misdemeanor specified in s. 943.051(3)(b).

20         2.  Has not been adjudicated guilty of or adjudicated

21  delinquent for committing any of the acts stemming from the

22  arrest or alleged criminal activity to which the petition to

23  seal pertains.

24         3.  Has never secured a prior sealing or expunction of

25  a criminal history record under this section, former s.

26  893.14, former s. 901.33, former s. 943.058, or from any

27  jurisdiction outside the state.

28         4.  Is eligible for such a sealing to the best of his

29  or her knowledge or belief and does not have any other

30  petition to seal or any petition to expunge pending before any

31  court.

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1

 2  Any person who knowingly provides false information on such

 3  sworn statement to the court commits a felony of the third

 4  degree, punishable as provided in s. 775.082, s. 775.083, or

 5  s. 775.084.

 6         (2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to

 7  petitioning the court to seal a criminal history record, a

 8  person seeking to seal a criminal history record shall apply

 9  to the department for a certificate of eligibility for

10  sealing.  The department shall, by rule adopted pursuant to

11  chapter 120, establish procedures pertaining to the

12  application for and issuance of certificates of eligibility

13  for sealing.  The department shall issue a certificate of

14  eligibility for sealing to a person who is the subject of a

15  criminal history record provided that such person:

16         (a)  Has submitted to the department a certified copy

17  of the disposition of the charge to which the petition to seal

18  pertains.

19         (b)  Remits a $75 processing fee to the department for

20  placement in the Department of Law Enforcement Operating Trust

21  Fund, unless such fee is waived by the executive director.

22         (c)  Has never previously been adjudicated guilty of a

23  criminal offense or comparable ordinance violation or

24  adjudicated delinquent for committing a felony or a

25  misdemeanor specified in s. 943.051(3)(b).

26         (d)  Has not been adjudicated guilty of or adjudicated

27  delinquent for committing any of the acts stemming from the

28  arrest or alleged criminal activity to which the petition to

29  seal pertains.

30         (e)  Has never secured a prior sealing or expunction of

31  a criminal history record under this section, former s.

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  893.14, former s. 901.33, or former s. 943.058.

 2         (f)  Is no longer under court supervision applicable to

 3  the disposition of the arrest or alleged criminal activity to

 4  which the petition to seal pertains.

 5         (3)  PROCESSING OF A PETITION OR ORDER TO SEAL.--

 6         (a)  In judicial proceedings under this section, a copy

 7  of the completed petition to seal shall be served upon the

 8  appropriate state attorney or the statewide prosecutor and

 9  upon the arresting agency; however, it is not necessary to

10  make any agency other than the state a party.  The appropriate

11  state attorney or the statewide prosecutor and the arresting

12  agency may respond to the court regarding the completed

13  petition to seal.

14         (b)  If relief is granted by the court, the clerk of

15  the court shall certify copies of the order to the appropriate

16  state attorney or the statewide prosecutor and to the

17  arresting agency. The arresting agency is responsible for

18  forwarding the order to any other agency to which the

19  arresting agency disseminated the criminal history record

20  information to which the order pertains. The department shall

21  forward the order to seal to the Federal Bureau of

22  Investigation. The clerk of the court shall certify a copy of

23  the order to any other agency which the records of the court

24  reflect has received the criminal history record from the

25  court.

26         (c)  For an order to seal entered by a court prior to

27  July 1, 1992, the department shall notify the appropriate

28  state attorney or statewide prosecutor of any order to seal

29  which is contrary to law because the person who is the subject

30  of the record has previously been convicted of a crime or

31  comparable ordinance violation or has had a prior criminal

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  history record sealed or expunged.  Upon receipt of such

 2  notice, the appropriate state attorney or statewide prosecutor

 3  shall take action, within 60 days, to correct the record and

 4  petition the court to void the order to seal.  The department

 5  shall seal the record until such time as the order is voided

 6  by the court.

 7         (d)  On or after July 1, 1992, the department or any

 8  other criminal justice agency is not required to act on an

 9  order to seal entered by a court when such order does not

10  comply with the requirements of this section.  Upon receipt of

11  such an order, the department must notify the issuing court,

12  the appropriate state attorney or statewide prosecutor, the

13  petitioner or the petitioner's attorney, and the arresting

14  agency of the reason for noncompliance. The appropriate state

15  attorney or statewide prosecutor shall take action within 60

16  days to correct the record and petition the court to void the

17  order.  No cause of action, including contempt of court, shall

18  arise against any criminal justice agency for failure to

19  comply with an order to seal when the petitioner for such

20  order failed to obtain the certificate of eligibility as

21  required by this section or when such order does not comply

22  with the requirements of this section.

23         (e)  An order sealing a criminal history record

24  pursuant to this section does not require that such record be

25  surrendered to the court, and such record shall continue to be

26  maintained by the department and other criminal justice

27  agencies.

28         (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A

29  criminal history record of a minor or an adult which is

30  ordered sealed by a court of competent jurisdiction pursuant

31  to this section is confidential and exempt from the provisions

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  of s. 119.07(1) and s. 24(a), Art. I of the State Constitution

 2  and is available only to the person who is the subject of the

 3  record, to the subject's attorney, to criminal justice

 4  agencies for their respective criminal justice purposes, or to

 5  those entities set forth in subparagraphs (a)1., 4., 5., and

 6  6. for their respective licensing and employment purposes.

 7         (a)  The subject of a criminal history record sealed

 8  under this section or under other provisions of law, including

 9  former s. 893.14, former s. 901.33, and former s. 943.058, may

10  lawfully deny or fail to acknowledge the arrests covered by

11  the sealed record, except when the subject of the record:

12         1.  Is a candidate for employment with a criminal

13  justice agency;

14         2.  Is a defendant in a criminal prosecution;

15         3.  Concurrently or subsequently petitions for relief

16  under this section or s. 943.0585;

17         4.  Is a candidate for admission to The Florida Bar;

18         5.  Is seeking to be employed or licensed by or to

19  contract with the Department of Children and Family Services

20  or the Department of Juvenile Justice or to be employed or

21  used by such contractor or licensee in a sensitive position

22  having direct contact with children, the developmentally

23  disabled, the aged, or the elderly as provided in s.

24  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

25  402.302(8), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

26  415.103, s. 985.407, or chapter 400; or

27         6.  Is seeking to be employed or licensed by the Office

28  of Teacher Education, Certification, Staff Development, and

29  Professional Practices of the Department of Education, any

30  district school board, or any local governmental entity which

31  licenses child care facilities.

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 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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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 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  trailer, aircraft, or sleeping car or such portions thereof as

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  exist.

 2         Section 14.  This act shall take effect July 1, 1999.

 3

 4

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

 6  And the title is amended as follows:

 7         Delete everything before the enacting clause

 8

 9  and insert:

10                  A bill to be entitled

11         An act relating to sentencing; creating the

12         "Three-Strike Violent Felony Offender Act";

13         amending s. 775.082, F.S.; redefining the term

14         "prison releasee reoffender"; revising

15         legislative intent; amending s. 775.084, F.S.,

16         relating to sentencing of habitual felony

17         offenders, habitual violent felony offenders,

18         and violent career criminals; redefining the

19         terms "habitual felony offender," "habitual

20         violent felony offender" and "violent career

21         criminal"; revising the alternative time

22         periods within which the habitual felony

23         offender, habitual violent felony offender, or

24         violent career criminal could have committed

25         the felony to be sentenced; providing that the

26         felony to be sentenced could have been

27         committed either while the defendant was

28         serving a prison sentence or other sentence or

29         supervision, or within 5 years of the

30         defendant's release from a prison sentence,

31         probation, community control, or supervision or

                                  73
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1         other sentence, under specified circumstances

 2         when the sentence was imposed as a result of a

 3         prior conviction for a felony, enumerated

 4         felony, or other qualified offense; removing

 5         certain references to "commitment" and

 6         otherwise conforming terminology; providing

 7         that the placing of a person on probation

 8         without an adjudication of guilt shall be

 9         treated as a prior conviction regardless of

10         when the subsequent offense was committed;

11         defining "three-time violent felony offender";

12         providing a category of enumerated felony

13         offenses within the definition; requiring the

14         court to sentence a defendant as a three-time

15         violent felony offender and impose certain

16         mandatory minimum terms of imprisonment under

17         specified circumstances when the defendant is

18         to be sentenced for committing or attempting to

19         commit, any of the enumerated felony offenses

20         and the defendant has previously been convicted

21         of committing or attempting to commit, any two

22         of the enumerated felony offenses; providing

23         penalties; providing procedures and criteria

24         for court determination if the defendant is a

25         three-time violent felony offender; providing

26         for sentencing as a three-time violent felony

27         offender; providing mandatory term of

28         imprisonment for life when the three-time

29         violent felony offense for which the defendant

30         is to be sentenced is a felony punishable by

31         life; providing mandatory prison term of 30

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1         years when the three-time violent felony

 2         offense is a first degree felony; providing

 3         mandatory prison term of 15 years when the

 4         three-time violent felony offense is a second

 5         degree felony; providing mandatory prison term

 6         of 5 years when the three-time violent felony

 7         offense is a third degree felony; providing for

 8         construction; requiring a three-time violent

 9         felony offender to serve 100 percent of the

10         court-imposed sentence; providing for

11         ineligibility of a three-time violent felony

12         offender for parole, control release, or early

13         release; amending ss. 784.07 and 784.08, F.S.;

14         providing minimum terms of imprisonment for

15         persons convicted of aggravated assault or

16         aggravated battery of a law enforcement officer

17         or a person 65 years of age or older; amending

18         s. 790.235, F.S., relating to prohibitions

19         against, and penalties for, unlawful possession

20         or other unlawful acts involving firearm,

21         electric weapon or device, or concealed weapon

22         by a violent career criminal; conforming cross

23         references to changes made by the act; creating

24         s. 794.0115, F.S.; defining "repeat sexual

25         batterer"; providing within the definition a

26         category of enumerated felony offenses in

27         violation of s. 794.011, F.S., relating to

28         sexual battery; requiring the court to sentence

29         a defendant as a repeat sexual batterer and

30         impose a 10-year mandatory minimum term of

31         imprisonment under specified circumstances when

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1         the defendant is to be sentenced for committing

 2         or attempting to commit, any of the enumerated

 3         felony violations of s. 794.011, F.S., and the

 4         defendant has previously been convicted of

 5         committing or attempting to commit, any one of

 6         certain enumerated felony offenses involving

 7         sexual battery; providing penalties; providing

 8         procedures and criteria for court determination

 9         if the defendant is a repeat sexual batterer;

10         providing for sentencing as a repeat sexual

11         batterer; providing for construction; amending

12         s. 794.011, F.S., to conform references to

13         changes made by the act; amending s. 893.135,

14         F.S.; defining the term "cannabis plant";

15         providing mandatory minimum prison terms and

16         mandatory fine amounts for trafficking in

17         cannabis, cocaine, illegal drugs,

18         phencyclidine, methaqualone, amphetamine, or

19         flunitrazepam; providing for sentencing

20         pursuant to the Criminal Punishment Code of

21         offenders convicted of trafficking in specified

22         quantities of cannabis; removing weight caps

23         for various trafficking offenses; providing

24         that an offender who is sentenced to a

25         mandatory minimum term upon conviction of

26         trafficking in specified quantities of

27         cannabis, cocaine, illegal drugs,

28         phencyclidine, methaqualone, amphetamine, or

29         flunitrazepam is not eligible for gain time or

30         certain discretionary early-release mechanisms

31         prior to serving the mandatory minimum

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1         sentence; providing exceptions; providing

 2         penalties; reenacting s. 397.451(7), F.S.,

 3         relating to the prohibition against

 4         dissemination of state funds to service

 5         providers convicted of certain offenses, s.

 6         782.04(4)(a), F.S., relating to murder, s.

 7         893.1351(1), F.S., relating to lease or rent

 8         for the purpose of trafficking in a controlled

 9         substance, s. 903.133, F.S., relating to the

10         prohibition against bail on appeal for certain

11         felony convictions, s. 907.041(4)(b), F.S.,

12         relating to pretrial detention and release, s.

13         921.0022(3)(g), (h), and (i), F.S., relating to

14         the Criminal Punishment Code offense severity

15         ranking chart, s. 921.0024(1)(b), F.S.,

16         relating to the Criminal Punishment Code

17         worksheet computations and scoresheets, s.

18         921.142(2), F.S., relating to sentencing for

19         capital drug trafficking felonies, s. 943.0585,

20         F.S., relating to court-ordered expunction of

21         criminal history records, and s. 943.059, F.S.,

22         relating to court-ordered sealing of criminal

23         history records, to incorporate said amendment

24         in references; amending s. 943.0535, F.S.,

25         relating to aliens and criminal records;

26         requiring clerk of the courts to furnish

27         criminal records to United States immigration

28         officers; requiring state attorney to assist

29         clerk of the courts in determining which

30         defendants are aliens; requiring the Governor

31         to place public service announcements

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1         explaining the provisions of this act; amending

 2         s. 810, F.S.; redefining the term "conveyance"

 3         for purposes of ch. 810, F.S., to include a

 4         railroad vehicle; providing an effective date.

 5

 6         WHEREAS, in 1996, Florida had the highest violent crime

 7  rate of any state in the nation, exceeding the national

 8  average by 66 percent, and

 9         WHEREAS, although this state possessed the highest

10  state violent crime rate in 1996 in the nation, the

11  incarceration rate in this state in 1996 was less than the

12  incarceration rate in at least eleven other states, all of

13  which had a lower violent crime rate than the rate in this

14  state, and

15         WHEREAS, since 1988, criminals in this state have

16  committed at least 1.6 million violent crimes against

17  Floridians and visitors to this state, and

18         WHEREAS, the per capita violent crime rate has

19  increased 86 percent in this state in the last 25 years, and

20         WHEREAS, in fiscal year 1996-1997, over 16,000 violent

21  felons in this state were sentenced to probation, community

22  control, and other punishments that did not incarcerate the

23  violent felon for the maximum prison term authorized by law,

24  and

25         WHEREAS, during that same fiscal year, less than 9,900

26  violent felons were sentenced to prison, while during that

27  same period criminals committed approximately 150,000 violent

28  felonies, and

29         WHEREAS, in this state, as of June 30, 1997, more

30  violent felons were on probation, community control, control

31  release, or parole, than were in state prison, and

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1         WHEREAS, in 1997, only 15.6 percent of all persons

 2  convicted of a felony were sentenced to state prison, the

 3  second lowest rate of incarcerated felons since 1984, and

 4         WHEREAS, the rate of incarcerated felons has declined

 5  seven out of the last eight years, and

 6         WHEREAS, since fiscal year 1993-1994, the per capita

 7  prison population rate in this state has increased 10 percent

 8  and the proportion of violent offenders incarcerated in state

 9  prison has increased 5 percent, and

10         WHEREAS, since 1995, the Florida Legislature has

11  enacted stronger criminal punishment laws, including requiring

12  all prisoners to serve 85 percent of their court-imposed

13  sentences, and

14         WHEREAS, since 1994, the violent crime rate in this

15  state has decreased 9.8 percent, and

16         WHEREAS, the Legislature previously has found that a

17  substantial and disproportionate number of serious crimes are

18  committed in this state by a relatively small number of repeat

19  and violent felony offenders, that priority should be given to

20  the incarceration of career criminals for extended prison

21  terms, and that, in the case of violent career criminals, such

22  extended terms must include substantial minimum terms of

23  imprisonment, and

24         WHEREAS, as of June 30, 1997, only 71 designated

25  "violent career criminals" have been sentenced to mandatory

26  prison terms, out of a prison population of over 65,000 state

27  inmates; and this number does not approach the true number of

28  repeat violent felony offenders in this state, and

29         WHEREAS, to be sentenced as a "violent career

30  criminal," a felon must be convicted of at least four violent,

31  forcible, or serious felonies and must have served a prison

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1746

    Amendment No.    





 1  term, and

 2         WHEREAS, current law does not require the courts to

 3  impose mandatory prison terms on violent felons who commit

 4  three violent felonies, and these three-time violent felony

 5  offenders should be sentenced to mandatory maximum prison

 6  terms to protect citizens of this state and visitors, and

 7         WHEREAS, studies such as the recent report issued by

 8  the National Center for Policy Analysis, "Does punishment

 9  deter?", indicate that recent crime rates have declined

10  because of the increasing number of incarcerated felons, and

11         WHEREAS, since California enacted "three strike"

12  legislation in 1994 that requires courts to impose mandatory

13  prison terms on repeat felony offenders convicted of three

14  serious crimes, that state has experienced significant

15  reductions in violent crime, and overall crime rates, and

16         WHEREAS, a study by the RAND Corporation estimates that

17  the enforcement of this California legislation will reduce

18  serious crime in California committed by adults between 22 and

19  34 percent, and

20         WHEREAS, the enactment and enforcement of legislation

21  in Florida that requires courts to impose mandatory prison

22  terms on three-time violent felony offenders will improve

23  public safety by incapacitating repeat offenders who are most

24  likely to murder, rape, rob, or assault innocent victims in

25  our communities, and

26         WHEREAS, imposing mandatory prison terms on three-time

27  violent felony offenders will prevent such offenders from

28  committing more crimes in our communities, and likely

29  accelerate recent declines in the violent crime rate in this

30  state, NOW, THEREFORE,

31

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