Senate Bill 1746c1

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    Florida Senate - 1999                           CS for SB 1746

    By the Committee on Criminal Justice and Senators Lee and
    Brown-Waite




    307-1876-99

  1                      A bill to be entitled

  2         An act relating to sentencing; creating the

  3         "Three-Strike Violent Felony Offender Act";

  4         amending s. 775.082, F.S.; redefining the term

  5         "prison releasee reoffender"; revising

  6         legislative intent; amending s. 775.084, F.S.,

  7         relating to sentencing of habitual felony

  8         offenders, habitual violent felony offenders,

  9         and violent career criminals; redefining the

10         terms "habitual felony offender" and "habitual

11         violent felony offender"; revising the

12         alternative time periods within which the

13         habitual felony offender or habitual violent

14         felony offender could have committed the felony

15         to be sentenced; providing that the felony to

16         be sentenced could have been committed either

17         while the defendant was serving a prison

18         sentence or other sentence, or within 5 years

19         of the defendant's release from a prison

20         sentence, probation, community control, or

21         other sentence, under specified circumstances

22         when the sentence was imposed as a result of a

23         prior conviction for a felony, enumerated

24         felony, or other qualified offense; removing

25         certain references to "commitment" and

26         otherwise conforming terminology; revising

27         criteria for a prior conviction or a prior

28         felony for purposes of sentencing as a habitual

29         felony offender, habitual violent offender, or

30         violent career criminal; providing that the

31         placing of a person on probation without an

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  1         adjudication of guilt shall be treated as a

  2         prior conviction regardless of when the

  3         subsequent offense was committed; removing

  4         certain requirements that, in order to be

  5         counted as a prior felony, the felony must have

  6         resulted in prior conviction sentenced

  7         separately from any other felony conviction

  8         counted as a prior felony; defining "three-time

  9         violent felony offender"; providing a category

10         of enumerated felony offenses within the

11         definition, including arson, sexual battery,

12         robbery, kidnapping, aggravated child abuse,

13         aggravated abuse of an elderly person or

14         disabled adult, aggravated assault, murder,

15         manslaughter, aggravated manslaughter of an

16         elderly person or disabled adult, aggravated

17         manslaughter of a child, unlawful throwing,

18         placing, or discharging of a destructive device

19         or bomb, armed burglary, aggravated battery,

20         aggravated stalking, or certain qualified

21         offenses; requiring the court to sentence a

22         defendant as a three-time violent felony

23         offender and impose certain mandatory minimum

24         terms of imprisonment under specified

25         circumstances when the defendant is to be

26         sentenced for committing, or conspiring or

27         attempting to commit, any of the enumerated

28         felony offenses and the defendant has

29         previously been convicted of committing, or

30         conspiring or attempting to commit, any two of

31         the enumerated felony offenses; providing

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    Florida Senate - 1999                           CS for SB 1746
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  1         penalties; providing procedures and criteria

  2         for court determination if the defendant is a

  3         three-time violent felony offender; providing

  4         for sentencing as a three-time violent felony

  5         offender; providing mandatory term of

  6         imprisonment for life when the three-time

  7         violent felony offense for which the defendant

  8         is to be sentenced is a felony punishable by

  9         life; providing mandatory prison term of 30

10         years when the three-time violent felony

11         offense is a first-degree felony; providing

12         mandatory prison term of 15 years when the

13         three-time violent felony offense is a

14         second-degree felony; providing mandatory

15         prison term of 5 years when the three-time

16         violent felony offense is a third-degree

17         felony; providing for construction; deleting

18         provisions relating to application of the

19         Criminal Punishment Code; requiring a

20         three-time violent felony offender to serve 100

21         percent of the court-imposed sentence;

22         providing for ineligibility of a three-time

23         violent felony offender for parole, control

24         release, or early release; amending ss. 784.07

25         and 784.08, F.S.; providing minimum terms of

26         imprisonment for persons convicted of

27         aggravated assault or aggravated battery of a

28         law enforcement officer or a person 65 years of

29         age or older; amending s. 790.235, F.S.,

30         relating to prohibitions against, and penalties

31         for, unlawful possession or other unlawful acts

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  1         involving a firearm, an electric weapon or

  2         device, or a concealed weapon by a violent

  3         career criminal; conforming cross-references to

  4         changes made by the act; creating s. 794.0115,

  5         F.S.; defining "repeat sexual batterer";

  6         providing within the definition a category of

  7         enumerated felony offenses in violation of s.

  8         794.011, F.S., relating to sexual battery;

  9         requiring the court to sentence a defendant as

10         a repeat sexual batterer and impose a 10-year

11         mandatory minimum term of imprisonment under

12         specified circumstances when the defendant is

13         to be sentenced for committing, or conspiring

14         or attempting to commit, any of the enumerated

15         felony violations of s. 794.011, F.S., and the

16         defendant has previously been convicted of

17         committing, or conspiring or attempting to

18         commit, any one of certain enumerated felony

19         offenses involving sexual battery; providing

20         penalties; providing procedures and criteria

21         for court determination if the defendant is a

22         repeat sexual batterer; providing for

23         sentencing as a repeat sexual batterer;

24         providing for construction; amending s.

25         794.011, F.S., to conform references to changes

26         made by the act; amending s. 893.135, F.S.;

27         redefining the offense of trafficking in

28         cannabis; defining the term "cannabis plant";

29         providing mandatory minimum prison terms and

30         mandatory fine amounts for trafficking in

31         cannabis, cocaine, illegal drugs,

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  1         phencyclidine, methaqualone, amphetamine, or

  2         flunitrazepam; providing for sentencing

  3         pursuant to the Criminal Punishment Code of

  4         offenders convicted of trafficking in specified

  5         quantities of cannabis; removing weight caps

  6         for various trafficking offenses; providing

  7         that an offender who is sentenced to a

  8         mandatory minimum term upon conviction of

  9         trafficking in specified quantities of

10         cannabis, cocaine, illegal drugs,

11         phencyclidine, methaqualone, amphetamine, or

12         flunitrazepam is not eligible for gain time or

13         certain discretionary early-release mechanisms

14         prior to serving the mandatory minimum

15         sentence; providing exceptions; providing

16         penalties; reenacting s. 397.451(7), F.S.,

17         relating to the prohibition against

18         dissemination of state funds to service

19         providers convicted of certain offenses, s.

20         782.04(4)(a), F.S., relating to murder, s.

21         893.1351(1), F.S., relating to lease or rent

22         for the purpose of trafficking in a controlled

23         substance, s. 903.133, F.S., relating to the

24         prohibition against bail on appeal for certain

25         felony convictions, s. 907.041(4)(b), F.S.,

26         relating to pretrial detention and release, s.

27         921.0022(3)(g), (h), and (i), F.S., relating to

28         the Criminal Punishment Code offense severity

29         ranking chart, s. 921.0024(1)(b), F.S.,

30         relating to the Criminal Punishment Code

31         worksheet computations and scoresheets, s.

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  1         921.142(2), F.S., relating to sentencing for

  2         capital drug trafficking felonies, s. 943.0585,

  3         F.S., relating to court-ordered expunction of

  4         criminal history records, and s. 943.059, F.S.,

  5         relating to court-ordered sealing of criminal

  6         history records, to incorporate said amendment

  7         in references; amending s. 943.0535, F.S.,

  8         relating to aliens and criminal records;

  9         requiring clerks of the courts to furnish

10         criminal records to United States immigration

11         officers; requiring state attorneys to assist

12         clerks of the courts in determining which

13         defendants are aliens; requiring the Governor

14         to place public service announcements

15         explaining the provisions of this act;

16         providing an effective date.

17

18         WHEREAS, in 1996, Florida had the highest violent crime

19  rate of any state in the nation, exceeding the national

20  average by 66 percent, and

21         WHEREAS, although this state possessed the highest

22  state violent crime rate in 1996 in the nation, the

23  incarceration rate in this state in 1996 was less than the

24  incarceration rate in at least eleven other states, all of

25  which had a lower violent crime rate than the rate in this

26  state, and

27         WHEREAS, since 1988, criminals in this state have

28  committed at least 1.6 million violent crimes against

29  Floridians and visitors to this state, and

30         WHEREAS, the per capita violent crime rate has

31  increased 86 percent in this state in the last 25 years, and

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    Florida Senate - 1999                           CS for SB 1746
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  1         WHEREAS, in fiscal year 1996-1997, over 16,000 violent

  2  felons in this state were sentenced to probation, community

  3  control, and other punishments that did not incarcerate the

  4  violent felon for the maximum prison term authorized by law,

  5  and

  6         WHEREAS, during that same fiscal year, fewer than 9,900

  7  violent felons were sentenced to prison, while during that

  8  same period criminals committed approximately 150,000 violent

  9  felonies, and

10         WHEREAS, in this state, as of June 30, 1997, more

11  violent felons were on probation, community control, control

12  release, or parole, than were in state prison, and

13         WHEREAS, in 1997, only 15.6 percent of all persons

14  convicted of a felony were sentenced to state prison, the

15  second-lowest rate of incarcerated felons since 1984, and

16         WHEREAS, the rate of incarcerated felons has declined

17  in seven out of the last eight years, and

18         WHEREAS, since fiscal year 1993-1994, the per capita

19  prison population rate in this state has increased 10 percent

20  and the proportion of violent offenders incarcerated in state

21  prison has increased 5 percent, and

22         WHEREAS, since 1995, the Florida Legislature has

23  enacted stronger criminal punishment laws, including requiring

24  all prisoners to serve 85 percent of their court-imposed

25  sentences, and

26         WHEREAS, since 1994, the violent crime rate in this

27  state has decreased 9.8 percent, and

28         WHEREAS, the Legislature previously has found that a

29  substantial and disproportionate number of serious crimes are

30  committed in this state by a relatively small number of repeat

31  and violent felony offenders, that priority should be given to

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    Florida Senate - 1999                           CS for SB 1746
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  1  the incarceration of career criminals for extended prison

  2  terms, and that, in the case of violent career criminals, such

  3  extended terms must include substantial minimum terms of

  4  imprisonment, and

  5         WHEREAS, as of June 30, 1997, only 71 designated

  6  "violent career criminals" have been sentenced to mandatory

  7  prison terms, out of a prison population of over 65,000 state

  8  inmates; and this number does not approach the true number of

  9  repeat violent felony offenders in this state, and

10         WHEREAS, to be sentenced as a "violent career

11  criminal," a felon must be convicted of at least four violent,

12  forcible, or serious felonies and must have served a prison

13  term, and

14         WHEREAS, current law does not require the courts to

15  impose mandatory prison terms on violent felons who commit

16  three violent felonies, and these three-time violent felony

17  offenders should be sentenced to mandatory maximum prison

18  terms to protect citizens of this state and visitors, and

19         WHEREAS, studies such as the recent report issued by

20  the National Center for Policy Analysis, "Does punishment

21  deter?," indicate that recent crime rates have declined

22  because of the increasing number of incarcerated felons, and

23         WHEREAS, since California enacted "three strike"

24  legislation in 1994 which requires courts to impose mandatory

25  prison terms on repeat felony offenders convicted of three

26  serious crimes, that state has experienced significant

27  reductions in violent crime and in overall crime rates, and

28         WHEREAS, a study by the RAND Corporation estimates that

29  the enforcement of this California legislation will reduce

30  serious crime in California committed by adults between 22 and

31  34 percent, and

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  1         WHEREAS, the enactment and enforcement of legislation

  2  in Florida which requires courts to impose mandatory prison

  3  terms on three-time violent felony offenders will improve

  4  public safety by incapacitating repeat offenders who are most

  5  likely to murder, rape, rob, or assault innocent victims in

  6  our communities, and

  7         WHEREAS, imposing mandatory prison terms on three-time

  8  violent felony offenders will prevent such offenders from

  9  committing more crimes in our communities, and likely

10  accelerate recent declines in the violent crime rate in this

11  state, NOW, THEREFORE,

12

13  Be It Enacted by the Legislature of the State of Florida:

14

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

16  Violent Felony Offender Act."

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

18  section 775.082, Florida Statutes, 1998 Supplement, are

19  amended to read.

20         775.082  Penalties; applicability of sentencing

21  structures; mandatory minimum sentences for certain

22  reoffenders previously released from prison.--

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

24  defendant who commits, or attempts to commit:

25         a.  Treason;

26         b.  Murder;

27         c.  Manslaughter;

28         d.  Sexual battery;

29         e.  Carjacking;

30         f.  Home-invasion robbery;

31         g.  Robbery;

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  1         h.  Arson;

  2         i.  Kidnapping;

  3         j.  Aggravated assault;

  4         k.  Aggravated battery;

  5         l.  Aggravated stalking;

  6         m.  Aircraft piracy;

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

  8  destructive device or bomb;

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

10  physical force or violence against an individual;

11         p.  Armed burglary;

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

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

14  827.03, or s. 827.071;

15

16  within 3 years of being released from a state correctional

17  facility operated by the Department of Corrections or a

18  private vendor.

19         2.  "Prison releasee reoffender" also means any

20  defendant who commits or attempts to commit any offense listed

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

22  prison sentence or on escape status from a state correctional

23  facility operated by the Department of Corrections or a

24  private vendor.

25         3.2.  If the state attorney determines that a defendant

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

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

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

29  state attorney that establishes by a preponderance of the

30  evidence that a defendant is a prison releasee reoffender as

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

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  1  sentencing under the sentencing guidelines and must be

  2  sentenced as follows:

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

  4  imprisonment for life;

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

  6  imprisonment of 30 years;

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

  8  imprisonment of 15 years; and

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

10  imprisonment of 5 years.

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

12  offenders previously released from prison who meet the

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

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

15  attorney determines that any of the following circumstances

16  exist:

17         a.  The prosecuting attorney does not have sufficient

18  evidence to prove the highest charge available;

19         b.  The testimony of a material witness cannot be

20  obtained;

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

22  the mandatory prison sentence and provides a written statement

23  to that effect; or

24         d.  other extenuating circumstances exist which

25  preclude the just prosecution of the offender, including

26  whether the victim recommends that the offender be sentenced

27  as provided in this subsection.

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

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

30  minimum prison sentence, the state attorney must explain the

31  sentencing deviation in writing and place such explanation in

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

  2  basis, each state attorney shall submit copies of deviation

  3  memoranda regarding offenses committed on or after the

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

  5  Florida Prosecuting Attorneys Association, Inc.  The

  6  association must maintain such information, and make such

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

  8  a 10-year period.

  9         Section 3.  Section 775.084, Florida Statutes, 1998

10  Supplement, is amended to read:

11         775.084  Violent career criminals; habitual felony

12  offenders and habitual violent felony offenders; three-time

13  violent felony offenders; definitions; procedure; enhanced

14  penalties or mandatory minimum prison terms.--

15         (1)  As used in this act:

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

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

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

19         1.  The defendant has previously been convicted of any

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

21  qualified offenses.

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

23  sentenced was committed:

24         a.  While the defendant was serving a prison sentence

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

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

27  conviction for a felony or other qualified offense; or

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

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

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

31  sentence, probation, community control, control release,

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  1  conditional release, parole or court-ordered or lawfully

  2  imposed supervision or other sentence that is commitment

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

  4  other qualified offense, whichever is later.

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

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

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

  8  possession of a controlled substance.

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

10  felony or other qualified offense that is necessary for the

11  operation of this paragraph.

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

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

14  aside in any postconviction proceeding.

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

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

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

18  that:

19         1.  The defendant has previously been convicted of a

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

21  or more of such convictions was for:

22         a.  Arson;

23         b.  Sexual battery;

24         c.  Robbery;

25         d.  Kidnapping;

26         e.  Aggravated child abuse;

27         f.  Aggravated abuse of an elderly person or disabled

28  adult;

29         g.  Aggravated assault;

30         h.  Murder;

31         i.  Manslaughter;

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  1         j.  Aggravated manslaughter of an elderly person or

  2  disabled adult;

  3         k.  Aggravated manslaughter of a child;

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

  5  destructive device or bomb;

  6         m.  Armed burglary;

  7         n.  Aggravated battery; or

  8         o.  Aggravated stalking.

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

10  sentenced was committed:

11         a.  While the defendant was serving a prison sentence

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

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

14  conviction for an enumerated felony; or

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

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

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

18  community control, control release, conditional release,

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

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

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

22         3.  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 paragraph.

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

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

27  proceeding.

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

29  defendant for whom the court must impose a mandatory minimum

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

31  finds that:

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  1         1.  The defendant has previously been convicted as an

  2  adult two or more times of a felony or an attempt or

  3  conspiracy to commit a felony and two or more of such

  4  convictions were for committing, or attempting or conspiring

  5  to commit, any of the following offenses or combination

  6  thereof:

  7         a.  Arson;

  8         b.  Sexual battery;

  9         c.  Robbery;

10         d.  Kidnapping;

11         e.  Aggravated child abuse;

12         f.  Aggravated abuse of an elderly person or disabled

13  adult;

14         g.  Aggravated assault;

15         h.  Murder;

16         i.  Manslaughter;

17         j.  Aggravated manslaughter of an elderly person or

18  disabled adult;

19         k.  Aggravated manslaughter of a child;

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

21  destructive device or bomb;

22         m.  Armed burglary;

23         n.  Aggravated battery;

24         o.  Aggravated stalking; or

25         p.  An offense that is in violation of a law of any

26  other jurisdiction if the elements of the offense are

27  substantially similar to the elements of any felony offense

28  enumerated in sub-subparagraphs a.-o., or an attempt or

29  conspiracy to commit any such felony offense.

30

31

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

  2  sentenced is one of the felonies enumerated in

  3  sub-subparagraphs 1.a.-o. and was committed:

  4         a.  While the defendant was serving a prison sentence

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

  6  for any offense enumerated in sub-subparagraphs 1.a.-p.; or

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

  8  the last prior offense enumerated in sub-subparagraphs

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

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

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

12  offense enumerated in sub-subparagraphs 1.a.-p., whichever is

13  later.

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

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

16  operation of this paragraph.

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

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

19  proceeding.

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

21  whom the court must impose imprisonment pursuant to paragraph

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

23         1.  The defendant has previously been convicted as an

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

25  other qualified offense that is:

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

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

28  and (4);

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

30  827.03(2);

31

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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

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

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

  3  evidence and shall be appealable to the extent normally

  4  applicable to similar findings.

  5         5.  For the purpose of identification of a habitual

  6  felony offender or a habitual violent felony offender, the

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

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

  9  1995, if the state attorney pursues a habitual felony offender

10  sanction or a habitual violent felony offender sanction

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

12  pursuant to this paragraph, determines that the defendant

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

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

15  felony offender or a habitual violent felony offender, subject

16  to imprisonment pursuant to this section unless the court

17  finds that such sentence is not necessary for the protection

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

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

20  a habitual felony offender or a habitual violent felony

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

22  transcript of orally stated reasons is permissible, if filed

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

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

25  Demographic Research of the Legislature the written reasons or

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

27  sentence a defendant as a habitual felony offender or a

28  habitual violent felony offender as provided in this

29  subparagraph.

30

31

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

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

  3  offender. The procedure shall be as follows:

  4         1.  The court shall obtain and consider a presentence

  5  investigation prior to the imposition of a sentence as a

  6  three-time violent felony offender.

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

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

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

10  allow the preparation of a submission on behalf of the

11  defendant.

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

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

14  confrontation, cross-examination, and representation by

15  counsel.

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

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

18  evidence and shall be appealable to the extent normally

19  applicable to similar findings.

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

21  violent felony offender, the court shall fingerprint the

22  defendant pursuant to s. 921.241.

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

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

25  violent felony offender sanction against the defendant and the

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

27  determines that the defendant meets the criteria under

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

29  sentence the defendant as a three-time violent felony

30  offender, subject to imprisonment pursuant to this section as

31  provided in paragraph (4)(c).

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

  2  determine whether the defendant is a violent career criminal

  3  with respect to a primary offense committed on or after

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

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

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

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

  8  allow the preparation of a submission on behalf of the

  9  defendant.

10         2.  All evidence presented shall be presented in open

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

12  and representation by counsel.

13         3.  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 only as provided in paragraph

16  (d)(c).

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

18  fingerprint the defendant pursuant to s. 921.241.

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

20  1995, if the state attorney pursues a violent career criminal

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

22  proceeding pursuant to this paragraph, determines that the

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

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

25  violent career criminal, subject to imprisonment pursuant to

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

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

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

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

30  the court shall provide written reasons; a written transcript

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

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

  2  court shall submit to the Office of Economic and Demographic

  3  Research of the Legislature the written reasons or transcripts

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

  5  defendant as a violent career criminal as provided in this

  6  subparagraph.

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

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

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

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

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

12  violent career criminal sentence is presumed appropriate and

13  no petition or motion for collateral or other postconviction

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

15  state or the defendant that such sentence is inappropriate,

16  inadequate, or excessive.

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

18  respect to both direct appeal and collateral review of violent

19  career criminal sentences, all claims of error or illegality

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

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

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

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

24  due diligence. Technical violations and mistakes at trials and

25  sentencing proceedings involving violent career criminals that

26  do not affect due process or fundamental fairness are not

27  appealable by either the state or the defendant.

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

29  resources, or employees of the state or its political

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

31  collateral proceedings based on violent career criminal

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  1  sentencing, except when such use is constitutionally or

  2  statutorily mandated.

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

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

  5  felony offender as follows:

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

  7  first degree, for life.

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

  9  term of years not exceeding 30.

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

11  term of years not exceeding 10.

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

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

14  violent felony offender as follows:

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

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

17  eligible for release for 15 years.

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

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

20  eligible for release for 10 years.

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

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

23  eligible for release for 5 years.

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

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

26  violent felony offender to a mandatory minimum term of

27  imprisonment, as follows:

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

29  term of imprisonment for life;

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

31  term of imprisonment of 30 years;

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

  2  term of imprisonment of 15 years; or

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

  4  term of imprisonment of 5 years.

  5         2.  Nothing in this subsection shall prevent a court

  6  from imposing a greater sentence of incarceration as

  7  authorized by law.

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

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

10  career criminal as follows:

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

12  first degree, for life.

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

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

15  of 30 years' imprisonment.

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

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

18  of 10 years' imprisonment.

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

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

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

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

23  habitual violent felony offender, or a violent career

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

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

26  this section.

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

28  the defendant is eligible for sentencing under this section,

29  the court shall make that determination as provided in

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

31

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

  2  be increased after such imposition.

  3         (g)  A sentence imposed under this section is not

  4  subject to s. 921.002.

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

  6  capital felonies, and a sentence authorized under this section

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

  8  capital felony.

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

10  persons sentenced as habitual felony offenders and persons

11  sentenced as habitual violent felony offenders.

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

13  habitual felony offender, a habitual violent felony offender,

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

15  by the Department of Corrections as provided in s.

16  944.275(4)(b).

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

18  1995, a defendant sentenced under this section as a violent

19  career criminal is not eligible for any form of discretionary

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

21  conditional medical release granted pursuant to s. 947.149.

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

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

24  violent felony offender shall be released only by expiration

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

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

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

28  the court-imposed sentence.

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

30  purposes of sentencing under this section, the felony must

31  have resulted in a conviction sentenced separately prior to

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  1  the current offense and sentenced separately from any other

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

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

  4  punishment for those crimes made punishable under this

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

  6  constitutes a general reference under the doctrine of

  7  incorporation by reference.

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

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

10  to read:

11         784.07  Assault or battery of law enforcement officers,

12  firefighters, emergency medical care providers, public transit

13  employees or agents, or other specified officers;

14  reclassification of offenses; minimum sentences.--

15         (2)  Whenever any person is charged with knowingly

16  committing an assault or battery upon a law enforcement

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

18  traffic accident investigation officer as described in s.

19  316.640, a traffic infraction enforcement officer as described

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

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

22  trustees of a community college, while the officer,

23  firefighter, emergency medical care provider, intake officer,

24  traffic accident investigation officer, traffic infraction

25  enforcement officer, parking enforcement specialist, public

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

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

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

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

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

31  Notwithstanding any other provision of law, any person

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  1  convicted of aggravated assault upon a law enforcement officer

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

  3  years.

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

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

  6  Notwithstanding any other provision of law, any person

  7  convicted of aggravated battery of a law enforcement officer

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

  9  years.

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

11  Statutes, is amended to read:

12         784.08  Assault or battery on persons 65 years of age

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

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

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

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

17  years pursuant to the Criminal Punishment Code and fined not

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

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

20  perform up to 500 hours of community service work.

21  Restitution and community service work shall be in addition to

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

23  lieu thereof.

24         Section 6.  Section 790.235, Florida Statutes, is

25  amended to read:

26         790.235  Possession of firearm by violent career

27  criminal unlawful; penalty.--

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

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

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

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

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  1  possession, or control any firearm or electric weapon or

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

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

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

  5  775.083, or s. 775.084.  A person convicted of a violation of

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

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

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

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

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

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

12  executive clemency, or conditional medical release under s.

13  947.149.

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

15  convictions necessary to meet the violent career criminal

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

17  felonies committed as an adult or adjudications of delinquency

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

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

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

21  adjudication of delinquency entered separately, prior to the

22  current offense, and sentenced or adjudicated separately from

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

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

25  civil rights and firearm authority have been restored.

26         Section 7.  Section 794.0115, Florida Statutes, is

27  created to read:

28         794.0115  Repeat sexual batterers; definition;

29  procedure; enhanced penalties.--

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

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

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

  2  if it finds that:

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

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

  5  or more of such convictions was for:

  6         1.  Any felony offense in violation of s.

  7  794.011(2)(b), (3), (4), or (5), or an attempt or conspiracy

  8  to commit the felony offense.

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

10  if the elements of the qualified offense are substantially

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

12  794.011(2)(b), (3), (4), or (5), or an attempt or conspiracy

13  to commit the felony offense.

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

15  sentenced is one of the felonies enumerated in subparagraph

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

17         1.  While the defendant was serving a prison sentence

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

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

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

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

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

23  sentence, probation, community control, or other sentence

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

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

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

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

28  operation of this subsection.

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

30  of this subsection has not been set aside in any

31  postconviction proceeding.

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

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

  3  procedure shall be as follows:

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

  5  investigation prior to the imposition of a sentence as a

  6  repeat sexual batterer.

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

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

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

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

11  the defendant.

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

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

14  confrontation, cross-examination, and representation by

15  counsel.

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

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

18  the evidence and shall be appealable to the extent normally

19  applicable to similar findings.

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

21  sexual batterer, the court shall fingerprint the defendant

22  pursuant to s. 921.241.

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

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

25  sexual batterer sanction against the defendant and the court,

26  in a separate proceeding pursuant to this subsection,

27  determines that the defendant meets the criteria under

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

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

30  imprisonment pursuant to this section as provided in

31  subsection (3).

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

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

  3  batterer to a mandatory minimum term of 10 years'

  4  imprisonment.

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

  6  from imposing a greater sentence of incarceration as

  7  authorized by law.

  8         Section 8.  Section 794.011, Florida Statutes, is

  9  amended to read:

10         794.011  Sexual battery.--

11         (1)  As used in this chapter:

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

13  voluntary consent and does not include coerced submission.

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

15  by the alleged victim to offer physical resistance to the

16  offender.

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

18  defect which renders a person temporarily or permanently

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

20         (c)  "Mentally incapacitated" means temporarily

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

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

23  intoxicating substance administered without his or her consent

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

25  or her consent.

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

27  offense in violation of a provision of this chapter.

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

29  or for any other reason physically unable to communicate

30  unwillingness to an act.

31

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

  2  threats of future physical punishment, kidnapping, false

  3  imprisonment or forcible confinement, or extortion.

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

  5  or pain, permanent disability, or permanent disfigurement.

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

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

  8  the anal or vaginal penetration of another by any other

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

10  for a bona fide medical purpose.

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

12  a sexual offense.

13         (j)  "Physically incapacitated" means bodily impaired

14  or handicapped and substantially limited in ability to resist

15  or flee.

16         (2)(a)  A person 18 years of age or older 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 capital felony, punishable as provided in ss.

20  775.082 and 921.141.

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

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

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

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

25  775.082, s. 775.083, or s. 775.084, or s. 794.0115.

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

27  12 years of age or older, without that person's consent, and

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

29  weapon or uses actual physical force likely to cause serious

30  personal injury commits a life felony, punishable as provided

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

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

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

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

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

  5  775.083, or s. 775.084, or s. 794.0115:

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

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

  8  threatening to use force or violence likely to cause serious

  9  personal injury on the victim, and the victim reasonably

10  believes that the offender has the present ability to execute

11  the threat.

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

13  threatening to retaliate against the victim, or any other

14  person, and the victim reasonably believes that the offender

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

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

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

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

19  other intoxicating substance which mentally or physically

20  incapacitates the victim.

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

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

23  this fact.

24         (f)  When the victim is physically incapacitated.

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

26  correctional officer, or correctional probation officer as

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

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

29  elected official exempt from such certification by virtue of

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

31  authority in a probation, community control, controlled

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

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

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

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

  5  government.

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

  7  12 years of age or older, without that person's consent, and

  8  in the process thereof does not use physical force and

  9  violence likely to cause serious personal injury commits a

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

11  775.082, s. 775.083, or s. 775.084, or s. 794.0115.

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

13  included in any sexual battery offense charged under

14  subsection (3) or subsection (4).

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

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

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

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

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

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

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

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

23  who:

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

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

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

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

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

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

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

31

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

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

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

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

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

  6  sexual battery injures the sexual organs of such person

  7  commits a capital or life felony, punishable pursuant to

  8  subsection (2).

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

10  acquiescence to a person reasonably believed by the victim to

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

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

13  actually in a position of control or authority if the

14  circumstances were such as to lead the victim to reasonably

15  believe that the person was in such a position.

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

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

18  or authority as an agent or employee of government of

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

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

21  s. 775.084.

22         Section 9.  Section 893.135, Florida Statutes, as

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

24  amended to read:

25         893.135  Trafficking; mandatory sentences; suspension

26  or reduction of sentences; conspiracy to engage in

27  trafficking.--

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

29  499 and notwithstanding the provisions of s. 893.13:

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

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

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  1  knowingly in actual or constructive possession of, in excess

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

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

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

  5  cannabis involved:

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

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

  8  2,000 cannabis plants, such person shall be sentenced pursuant

  9  to the Criminal Punishment Code and such sentence shall

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

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

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

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

14  10,000 cannabis plants, such person shall be sentenced

15  pursuant to the Criminal Punishment Code and such sentence

16  shall include a mandatory minimum term of imprisonment of 7

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

18  $50,000.

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

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

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

22  fine of $200,000.

23

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

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

26  has some readily observable evidence of root formation, such

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

28  plant severed from the cannabis plant is itself a cannabis

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

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

31  Callous tissue is not readily observable evidence of root

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

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

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

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

  5  conviction, the court shall impose the longest term of

  6  imprisonment provided for in this paragraph.

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

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

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

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

11  mixture containing cocaine, but less than 150 kilograms of

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

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

14  cocaine."  If the quantity involved:

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

16  person shall be sentenced pursuant to the Criminal Punishment

17  Code and such sentence shall include a mandatory minimum term

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

19  to pay a fine of $50,000.

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

21  person shall be sentenced pursuant to the Criminal Punishment

22  Code and such sentence shall include a mandatory minimum term

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

24  to pay a fine of $100,000.

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

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

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

28         2.  Any person who knowingly sells, purchases,

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

30  knowingly in actual or constructive possession of, 150

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

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

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

  3  convicted of the first degree felony of trafficking in cocaine

  4  under this subparagraph shall be punished by life imprisonment

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

  6  or ineligible for any form of discretionary early release

  7  except pardon or executive clemency or conditional medical

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

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

10  paragraph:

11         a.  The person intentionally killed an individual or

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

13  intentional killing of an individual and such killing was the

14  result; or

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

16  a natural, though not inevitable, lethal result,

17

18  such person commits the capital felony of trafficking in

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

20  Any person sentenced for a capital felony under this paragraph

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

22  subparagraph 1.

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

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

25  893.03(2)(a)4., and who knows that the probable result of such

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

27  importation of cocaine, a capital felony punishable as

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

29  a capital felony under this paragraph shall also be sentenced

30  to pay the maximum fine provided under subparagraph 1.

31

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  1         (c)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 any morphine, opium, oxycodone, hydrocodone,

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

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

  7  893.03(1)(b) or (2)(a), or 4 grams or more of any mixture

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

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

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

11  drugs."  If the quantity involved:

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

13  person shall be sentenced pursuant to the Criminal Punishment

14  Code and such sentence shall include a mandatory minimum term

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

16  to pay a fine of $50,000.

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

18  person shall be sentenced pursuant to the Criminal Punishment

19  Code and such sentence shall include a mandatory minimum term

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

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

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

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

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

25         2.  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, 30

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

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

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

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

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

  2  mixture containing any such substance, commits the first

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

  4  has been convicted of the first degree felony of trafficking

  5  in illegal drugs under this subparagraph shall be punished by

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

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

  8  discretionary early release except pardon or executive

  9  clemency or conditional medical release under s. 947.149.

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

11  committing any act specified in this paragraph:

12         a.  The person intentionally killed an individual or

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

14  intentional killing of an individual and such killing was the

15  result; or

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

17  a natural, though not inevitable, lethal result,

18

19  such person commits the capital felony of trafficking in

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

21  921.142.  Any person sentenced for a capital felony under this

22  paragraph shall also be sentenced to pay the maximum fine

23  provided under subparagraph 1.

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

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

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

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

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

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

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

31  person, commits capital importation of illegal drugs, a

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  1  capital felony punishable as provided in ss. 775.082 and

  2  921.142. Any person sentenced for a capital felony under this

  3  paragraph shall also be sentenced to pay the maximum fine

  4  provided under subparagraph 1.

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

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

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

  8  more of phencyclidine or of any mixture containing

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

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

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

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

13  person shall be sentenced pursuant to the Criminal Punishment

14  Code and such sentence shall include a mandatory minimum term

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

16  to pay a fine of $50,000.

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

18  person shall be sentenced pursuant to the Criminal Punishment

19  Code and such sentence shall include a mandatory minimum term

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

21  to pay a fine of $100,000.

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

23  person shall be sentenced to a mandatory minimum term of

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

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

26  grams or more of phencyclidine or of any mixture containing

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

28  that the probable result of such importation would be the

29  death of any person commits capital importation of

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

31  775.082 and 921.142. Any person sentenced for a capital felony

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  1  under this paragraph shall also be sentenced to pay the

  2  maximum fine provided under subparagraph 1.

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

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

  5  knowingly in actual or constructive possession of, 200 grams

  6  or more of methaqualone or of any mixture containing

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

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

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

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

11  such person shall be sentenced pursuant to the Criminal

12  Punishment Code and such sentence shall include a mandatory

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

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

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

16  such person shall be sentenced pursuant to the Criminal

17  Punishment Code and such sentence shall include a mandatory

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

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

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

21  kilograms, such person shall be sentenced to a mandatory

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

23  fine of $250,000.

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

25  kilograms or more of methaqualone or of any mixture containing

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

27  that the probable result of such importation would be the

28  death of any person commits capital importation of

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

30  775.082 and 921.142. Any person sentenced for a capital felony

31

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  1  under this paragraph shall also be sentenced to pay the

  2  maximum fine provided under subparagraph 1.

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

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

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

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

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

  8  mixture containing amphetamine or methamphetamine, or

  9  phenylacetone, phenylacetic acid, or ephedrine in conjunction

10  with other chemicals and equipment utilized in the manufacture

11  of amphetamine or methamphetamine, commits a felony of the

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

13  amphetamine."  If the quantity involved:

14         a.  Is 14 grams or more, but less than 28 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 3 years, and the defendant shall be ordered

18  to pay a fine of $50,000.

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

20  person shall be sentenced pursuant to the Criminal Punishment

21  Code and such sentence shall include a mandatory minimum term

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

23  to pay a fine of $100,000.

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

25  person shall be sentenced to a mandatory minimum term of

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

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

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

29  893.03(2)(c)2., or methamphetamine, as described in s.

30  893.03(2)(c)4., or of any mixture containing amphetamine or

31  methamphetamine, or phenylacetone, phenylacetic acid, or

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  1  ephedrine in conjunction with other chemicals and equipment

  2  utilized in the manufacture of amphetamine or methamphetamine,

  3  and who knows that the probable result of such importation

  4  would be the death of any person commits capital importation

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

  6  775.082 and 921.142. Any person sentenced for a capital felony

  7  under this paragraph shall also be sentenced to pay the

  8  maximum fine provided under subparagraph 1.

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

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

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

12  more of flunitrazepam or any mixture containing flunitrazepam

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

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

15  flunitrazepam."  If the quantity involved:

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

17  person shall be sentenced pursuant to the Criminal Punishment

18  Code and such sentence shall include a mandatory minimum term

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

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

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

22  person shall be sentenced pursuant to the Criminal Punishment

23  Code and such sentence shall include a mandatory minimum term

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

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

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

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

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

29         2.  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 30 kilograms

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  1  or more of flunitrazepam or any mixture containing

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

  3  first degree felony of trafficking in flunitrazepam.  A person

  4  who has been convicted of the first degree felony of

  5  trafficking in flunitrazepam under this subparagraph shall be

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

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

  8  discretionary early release except pardon or executive

  9  clemency or conditional medical release under s. 947.149.

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

11  committing any act specified in this paragraph:

12         a.  The person intentionally killed an individual or

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

14  intentional killing of an individual and such killing was the

15  result; or

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

17  a natural, though not inevitable, lethal result,

18

19  such person commits the capital felony of trafficking in

20  flunitrazepam, punishable as provided in ss. 775.082 and

21  921.142.  Any person sentenced for a capital felony under this

22  paragraph shall also be sentenced to pay the maximum fine

23  provided under subparagraph 1.

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

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

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

27  possess, any of the controlled substances listed in subsection

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

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

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

31  constructively possessed.

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

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

  3  section, adjudication of guilt or imposition of sentence shall

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

  5  be eligible for parole prior to serving the mandatory minimum

  6  term of imprisonment prescribed by this section. A person

  7  sentenced to a mandatory minimum term of imprisonment under

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

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

10  pardon or executive clemency or conditional medical release

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

12  of imprisonment.

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

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

15  convicted of a violation of this section and who provides

16  substantial assistance in the identification, arrest, or

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

18  coconspirators, or principals or of any other person engaged

19  in trafficking in controlled substances.  The arresting agency

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

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

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

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

24  judge finds that the defendant rendered such substantial

25  assistance.

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

27  confederates with another person to commit any act prohibited

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

29  punishable as if he or she had actually committed such

30  prohibited act. Nothing in this subsection shall be construed

31

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  1  to prohibit separate convictions and sentences for a violation

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

  3         Section 10.  For the purpose of incorporating the

  4  amendments made by this act to section 893.135, Florida

  5  Statutes, in references thereto, subsection (7) of section

  6  397.451, Florida Statutes, is reenacted to read:

  7         397.451  Background checks of service provider

  8  personnel who have direct contact with unmarried minor clients

  9  or clients who are developmentally disabled.--

10         (7)  DISQUALIFICATION FROM RECEIVING STATE

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

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

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

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

15  violation of s. 893.135 pertaining to trafficking in

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

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

18  possession or territory thereof, or any foreign jurisdiction

19  which is substantially similar in elements and penalties to a

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

21  director's civil rights have been restored.

22         Section 11.  For the purpose of incorporating the

23  amendments made by this act to section 893.135, Florida

24  Statutes, in references thereto, subsection (4) of section

25  782.04, Florida Statutes, 1998 Supplement, is reenacted to

26  read:

27         782.04  Murder.--

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

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

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

31  perpetrate, any felony other than any:

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

  2         (b)  Arson,

  3         (c)  Sexual battery,

  4         (d)  Robbery,

  5         (e)  Burglary,

  6         (f)  Kidnapping,

  7         (g)  Escape,

  8         (h)  Aggravated child abuse,

  9         (i)  Aggravated abuse of an elderly person or disabled

10  adult,

11         (j)  Aircraft piracy,

12         (k)  Unlawful throwing, placing, or discharging of a

13  destructive device or bomb,

14         (l)  Unlawful distribution of any substance controlled

15  under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4.,

16  or opium or any synthetic or natural salt, compound,

17  derivative, or preparation of opium by a person 18 years of

18  age or older, when such drug is proven to be the proximate

19  cause of the death of the user,

20         (m)  Carjacking,

21         (n)  Home-invasion robbery,

22         (o)  Aggravated stalking, or

23         (p)  Murder of another human being,

24

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

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

27  775.083, or s. 775.084.

28         Section 12.  For the purpose of incorporating the

29  amendments made by this act to section 893.135, Florida

30  Statutes, in references thereto, subsection (1) of section

31  893.1351, Florida Statutes, is reenacted to read:

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  1         893.1351  Lease or rent for the purpose of trafficking

  2  in a controlled substance.--

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

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

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

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

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

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

  9         Section 13.  For the purpose of incorporating the

10  amendments made by this act to section 893.135, Florida

11  Statutes, in references thereto, section 903.133, Florida

12  Statutes, is reenacted to read:

13         903.133  Bail on appeal; prohibited for certain felony

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

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

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

17  806.01, s. 893.13, or s. 893.135, or adjudged guilty of a

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

19  pending review either by posttrial motion or appeal.

20         Section 14.  For the purpose of incorporating the

21  amendments made by this act to section 893.135, Florida

22  Statutes, in references thereto, paragraph (b) of subsection

23  (4) of section 907.041, Florida Statutes, is reenacted to

24  read:

25         907.041  Pretrial detention and release.--

26         (4)  PRETRIAL DETENTION.--

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

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

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

30  any other relevant facts, that:

31

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  1         1.  The defendant has previously violated conditions of

  2  release and that no further conditions of release are

  3  reasonably likely to assure the defendant's appearance at

  4  subsequent proceedings;

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

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

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

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

  9  release will reasonably prevent the obstruction of the

10  judicial process;

11         3.  The defendant is charged with trafficking in

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

13  a substantial probability that the defendant has committed the

14  offense, and that no conditions of release will reasonably

15  assure the defendant's appearance at subsequent criminal

16  proceedings; or

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

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

19  defendant is presently charged with a dangerous crime, that

20  there is a substantial probability that the defendant

21  committed such crime, that the factual circumstances of the

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

23  and that there are no conditions of release reasonably

24  sufficient to protect the community from the risk of physical

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

26  least one of the following conditions is present:

27         a.  The defendant has previously been convicted of a

28  crime punishable by death or life imprisonment.

29         b.  The defendant has been convicted of a dangerous

30  crime within the 10 years immediately preceding the date of

31  his or her arrest for the crime presently charged.

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

  2  release pending completion of sentence or on pretrial release

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

  4         Section 15.  For the purpose of incorporating the

  5  amendments made by this act to section 893.135, Florida

  6  Statutes, in references thereto, paragraphs (g), (h), (i), and

  7  (j) of subsection (3) of section 921.0022, Florida Statutes,

  8  1998 Supplement, are reenacted to read:

  9         921.0022  Criminal Punishment Code; offense severity

10  ranking chart.--

11         (3)  OFFENSE SEVERITY RANKING CHART

12

13  Florida           Felony

14  Statute           Degree             Description

15

16                              (g)  LEVEL 7

17  316.193(3)(c)2.    3rd      DUI resulting in serious bodily

18                              injury.

19  327.35(3)(c)2.     3rd      Vessel BUI resulting in serious

20                              bodily injury.

21  409.920(2)         3rd      Medicaid provider fraud.

22  494.0018(2)        1st      Conviction of any violation of

23                              ss. 494.001-494.0077 in which the

24                              total money and property

25                              unlawfully obtained exceeded

26                              $50,000 and there were five or

27                              more victims.

28  782.051(3)         2nd      Attempted felony murder of a

29                              person by a person other than the

30                              perpetrator or the perpetrator of

31                              an attempted felony.

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

  2                              act, procurement, or culpable

  3                              negligence of another

  4                              (manslaughter).

  5  782.071            3rd      Killing of human being or viable

  6                              fetus by the operation of a motor

  7                              vehicle in a reckless manner

  8                              (vehicular homicide).

  9  782.072            3rd      Killing of a human being by the

10                              operation of a vessel in a

11                              reckless manner (vessel

12                              homicide).

13  784.045(1)(a)1.    2nd      Aggravated battery; intentionally

14                              causing great bodily harm or

15                              disfigurement.

16  784.045(1)(a)2.    2nd      Aggravated battery; using deadly

17                              weapon.

18  784.045(1)(b)      2nd      Aggravated battery; perpetrator

19                              aware victim pregnant.

20  784.048(4)         3rd      Aggravated stalking; violation of

21                              injunction or court order.

22  784.07(2)(d)       1st      Aggravated battery on law

23                              enforcement officer.

24  784.08(2)(a)       1st      Aggravated battery on a person 65

25                              years of age or older.

26  784.081(1)         1st      Aggravated battery on specified

27                              official or employee.

28  784.082(1)         1st      Aggravated battery by detained

29                              person on visitor or other

30                              detainee.

31

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  1  784.083(1)         1st      Aggravated battery on code

  2                              inspector.

  3  790.07(4)          1st      Specified weapons violation

  4                              subsequent to previous conviction

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

  6  790.16(1)          1st      Discharge of a machine gun under

  7                              specified circumstances.

  8  796.03             2nd      Procuring any person under 16

  9                              years for prostitution.

10  800.04             2nd      Handle, fondle, or assault child

11                              under 16 years in lewd,

12                              lascivious, or indecent manner.

13  806.01(2)          2nd      Maliciously damage structure by

14                              fire or explosive.

15  810.02(3)(a)       2nd      Burglary of occupied dwelling;

16                              unarmed; no assault or battery.

17  810.02(3)(b)       2nd      Burglary of unoccupied dwelling;

18                              unarmed; no assault or battery.

19  810.02(3)(d)       2nd      Burglary of occupied conveyance;

20                              unarmed; no assault or battery.

21  812.014(2)(a)      1st      Property stolen, valued at

22                              $100,000 or more; property stolen

23                              while causing other property

24                              damage; 1st degree grand theft.

25  812.019(2)         1st      Stolen property; initiates,

26                              organizes, plans, etc., the theft

27                              of property and traffics in

28                              stolen property.

29  812.133(2)(b)      1st      Carjacking; no firearm, deadly

30                              weapon, or other weapon.

31

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  1  825.102(3)(b)      2nd      Neglecting an elderly person or

  2                              disabled adult causing great

  3                              bodily harm, disability, or

  4                              disfigurement.

  5  825.1025(2)        2nd      Lewd or lascivious battery upon

  6                              an elderly person or disabled

  7                              adult.

  8  825.103(2)(b)      2nd      Exploiting an elderly person or

  9                              disabled adult and property is

10                              valued at $20,000 or more, but

11                              less than $100,000.

12  827.03(3)(b)       2nd      Neglect of a child causing great

13                              bodily harm, disability, or

14                              disfigurement.

15  827.04(4)          3rd      Impregnation of a child under 16

16                              years of age by person 21 years

17                              of age or older.

18  837.05(2)          3rd      Giving false information about

19                              alleged capital felony to a law

20                              enforcement officer.

21  872.06             2nd      Abuse of a dead human body.

22  893.13(1)(c)1.     1st      Sell, manufacture, or deliver

23                              cocaine (or other drug prohibited

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

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

26                              1,000 feet of a child care

27                              facility or school.

28

29

30

31

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

  2                              cocaine or other drug prohibited

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

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

  5                              1,000 feet of property used for

  6                              religious services or a specified

  7                              business site.

  8  893.13(4)(a)       1st      Deliver to minor cocaine (or

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

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

11  893.135(1)(a)1.    1st      Trafficking in cannabis, more

12                              than 50 lbs., less than 2,000

13                              lbs.

14  893.135

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

16                              28 grams, less than 200 grams.

17  893.135

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

19                              more than 4 grams, less than 14

20                              grams.

21  893.135

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

23                              more than 28 grams, less than 200

24                              grams.

25  893.135(1)(e)1.    1st      Trafficking in methaqualone, more

26                              than 200 grams, less than 5

27                              kilograms.

28  893.135(1)(f)1.    1st      Trafficking in amphetamine, more

29                              than 14 grams, less than 28

30                              grams.

31

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  1  893.135

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

  3                              grams or more, less than 14

  4                              grams.

  5                              (h)  LEVEL 8

  6  316.193

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

  8  327.35(3)(c)3.     2nd      Vessel BUI manslaughter.

  9  777.03(2)(a)       1st      Accessory after the fact, capital

10                              felony.

11  782.04(4)          2nd      Killing of human without design

12                              when engaged in act or attempt of

13                              any felony other than arson,

14                              sexual battery, robbery,

15                              burglary, kidnapping, aircraft

16                              piracy, or unlawfully discharging

17                              bomb.

18  782.051(2)         1st      Attempted felony murder while

19                              perpetrating or attempting to

20                              perpetrate a felony not

21                              enumerated in s. 782.04(3).

22  782.071(2)         2nd      Committing vehicular homicide and

23                              failing to render aid or give

24                              information.

25  782.072(2)         2nd      Committing vessel homicide and

26                              failing to render aid or give

27                              information.

28  790.161(3)         1st      Discharging a destructive device

29                              which results in bodily harm or

30                              property damage.

31

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  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

31

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

  2                              object in path of railroad

  3                              vehicle resulting in great bodily

  4                              harm.

  5  860.16             1st      Aircraft piracy.

  6  893.13(1)(b)       1st      Sell or deliver in excess of 10

  7                              grams of any substance specified

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

  9  893.13(2)(b)       1st      Purchase in excess of 10 grams of

10                              any substance specified in s.

11                              893.03(1)(a) or (b).

12  893.13(6)(c)       1st      Possess in excess of 10 grams of

13                              any substance specified in s.

14                              893.03(1)(a) or (b).

15  893.135(1)(a)2.    1st      Trafficking in cannabis, more

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

17                              lbs.

18  893.135

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

20                              200 grams, less than 400 grams.

21  893.135

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

23                              more than 14 grams, less than 28

24                              grams.

25  893.135

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

27                              more than 200 grams, less than

28                              400 grams.

29

30

31

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  1  893.135

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

  3                              than 5 kilograms, less than 25

  4                              kilograms.

  5  893.135

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

  7                              than 28 grams, less than 200

  8                              grams.

  9  893.135

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

11                              grams or more, less than 28

12                              grams.

13  895.03(1)          1st      Use or invest proceeds derived

14                              from pattern of racketeering

15                              activity.

16  895.03(2)          1st      Acquire or maintain through

17                              racketeering activity any

18                              interest in or control of any

19                              enterprise or real property.

20  895.03(3)          1st      Conduct or participate in any

21                              enterprise through pattern of

22                              racketeering activity.

23                              (i)  LEVEL 9

24  316.193

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

26                              render aid or give information.

27  782.04(1)          1st      Attempt, conspire, or solicit to

28                              commit premeditated murder.

29

30

31

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

  2                              connection with arson, sexual

  3                              battery, robbery, burglary, and

  4                              other specified felonies.

  5  782.051(1)         1st      Attempted felony murder while

  6                              perpetrating or attempting to

  7                              perpetrate a felony enumerated in

  8                              s. 782.04(3).

  9  782.07(2)          1st      Aggravated manslaughter of an

10                              elderly person or disabled adult.

11  782.07(3)          1st      Aggravated manslaughter of a

12                              child.

13  787.01(1)(a)1.     1st,PBL  Kidnapping; hold for ransom or

14                              reward or as a shield or hostage.

15  787.01(1)(a)2.     1st,PBL  Kidnapping with intent to commit

16                              or facilitate commission of any

17                              felony.

18  787.01(1)(a)4.     1st,PBL  Kidnapping with intent to

19                              interfere with performance of any

20                              governmental or political

21                              function.

22  787.02(3)(a)       1st      False imprisonment; child under

23                              age 13; perpetrator also commits

24                              child abuse, sexual battery,

25                              lewd, or lascivious act, etc.

26  790.161            1st      Attempted capital destructive

27                              device offense.

28  794.011(2)         1st      Attempted sexual battery; victim

29                              less than 12 years of age.

30

31

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  1  794.011(2)         Life     Sexual battery; offender younger

  2                              than 18 years and commits sexual

  3                              battery on a person less than 12

  4                              years.

  5  794.011(4)         1st      Sexual battery; victim 12 years

  6                              or older, certain circumstances.

  7  794.011(8)(b)      1st      Sexual battery; engage in sexual

  8                              conduct with minor 12 to 18 years

  9                              by person in familial or

10                              custodial authority.

11  812.13(2)(a)       1st,PBL  Robbery with firearm or other

12                              deadly weapon.

13  812.133(2)(a)      1st,PBL  Carjacking; firearm or other

14                              deadly weapon.

15  847.0145(1)        1st      Selling, or otherwise

16                              transferring custody or control,

17                              of a minor.

18  847.0145(2)        1st      Purchasing, or otherwise

19                              obtaining custody or control, of

20                              a minor.

21  859.01             1st      Poisoning food, drink, medicine,

22                              or water with intent to kill or

23                              injure another person.

24  893.135            1st      Attempted capital trafficking

25                              offense.

26  893.135(1)(a)3.    1st      Trafficking in cannabis, more

27                              than 10,000 lbs.

28  893.135

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

30                              400 grams, less than 150

31                              kilograms.

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  1  893.135

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

  3                              more than 28 grams, less than 30

  4                              kilograms.

  5  893.135

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

  7                              more than 400 grams.

  8  893.135

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

10                              than 25 kilograms.

11  893.135

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

13                              than 200 grams.

14                              (j)  LEVEL 10

15  782.04(2)          1st,PBL  Unlawful killing of human; act is

16                              homicide, unpremeditated.

17  787.01(1)(a)3.     1st,PBL  Kidnapping; inflict bodily harm

18                              upon or terrorize victim.

19  787.01(3)(a)       Life     Kidnapping; child under age 13,

20                              perpetrator also commits child

21                              abuse, sexual battery, lewd, or

22                              lascivious act, etc.

23  794.011(3)         Life     Sexual battery; victim 12 years

24                              or older, offender uses or

25                              threatens to use deadly weapon or

26                              physical force to cause serious

27                              injury.

28  876.32             1st      Treason against the state.

29         Section 16.  For the purpose of incorporating the

30  amendments made by this act to section 893.135, Florida

31  Statutes, in references thereto, paragraph (b) of subsection

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  1  (1) of section 921.0024, Florida Statutes, 1998 Supplement, is

  2  reenacted to read:

  3         921.0024  Criminal Punishment Code; worksheet

  4  computations; scoresheets.--

  5         (1)

  6                       (b)  WORKSHEET KEY:

  7

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

  9  existed at the time the offender committed an offense before

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

11  assessed for an offender's legal status.

12

13  Community sanction violation points are assessed when a

14  community sanction violation is before the court for

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

16  community sanction violation, and each successive community

17  sanction violation; however, if the community sanction

18  violation includes a new felony conviction before the

19  sentencing court, twelve (12) community sanction violation

20  points are assessed for such violation, and for each

21  successive community sanction violation involving a new felony

22  conviction. Multiple counts of community sanction violations

23  before the sentencing court shall not be a basis for

24  multiplying the assessment of community sanction violation

25  points.

26

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

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

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

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

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

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

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

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

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

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

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

  7  or any additional offense was committed.

  8

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

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

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

12  offender equal to twice the number of points the offender

13  receives for the primary offense and any additional offense.

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

15  previous capital felony offense for which the offender has

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

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

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

19  the offense were committed in this state.

20

21  Possession of a firearm, semiautomatic firearm, or machine

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

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

24  775.087(2) while having in his possession: a firearm as

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

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

27  attempting to commit any felony other than those enumerated in

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

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

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

31  assessed.

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  1

  2  Sentencing multipliers:

  3

  4  Drug trafficking:  If the primary offense is drug trafficking

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

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

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

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

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

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

11

12  Law enforcement protection:  If the primary offense is a

13  violation of the Law Enforcement Protection Act under s.

14  775.0823(2), the subtotal sentence points are multiplied by

15  2.5.  If the primary offense is a violation of s. 775.0823(3),

16  (4), (5), (6), (7), or (8), the subtotal sentence points are

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

18  784.07(3) or s. 775.0875(1), or of the Law Enforcement

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

20  sentence points are multiplied by 1.5.

21

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

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

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

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

26  subtotal sentence points are multiplied by 1.5.

27

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

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

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

31

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

  2  points are multiplied by 1.5.

  3

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

  5  is convicted of the primary offense and the primary offense is

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

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

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

  9  with the victim or perpetrator, the subtotal sentence points

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

11         Section 17.  For the purpose of incorporating the

12  amendments made by this act to section 893.135, Florida

13  Statutes, in references thereto, subsection (2) of section

14  921.142, Florida Statutes, is reenacted to read:

15         921.142  Sentence of death or life imprisonment for

16  capital drug trafficking felonies; further proceedings to

17  determine sentence.--

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

19  conviction or adjudication of guilt of a defendant of a

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

21  separate sentencing proceeding to determine whether the

22  defendant should be sentenced to death or life imprisonment as

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

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

25  practicable.  If, through impossibility or inability, the

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

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

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

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

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

31  defendant pleaded guilty, the sentencing proceeding shall be

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  1  conducted before a jury impaneled for that purpose, unless

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

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

  4  the nature of the crime and the character of the defendant and

  5  shall include matters relating to any of the aggravating or

  6  mitigating circumstances enumerated in subsections (6) and

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

  8  probative value may be received, regardless of its

  9  admissibility under the exclusionary rules of evidence,

10  provided the defendant is accorded a fair opportunity to rebut

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

12  construed to authorize the introduction of any evidence

13  secured in violation of the Constitution of the United States

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

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

16  present argument for or against sentence of death.

17         Section 18.  For the purpose of incorporating the

18  amendments made by this act to section 893.135, Florida

19  Statutes, in references thereto, section 943.0585, Florida

20  Statutes, 1998 Supplement, is reenacted to read:

21         943.0585  Court-ordered expunction of criminal history

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

23  their own procedures, including the maintenance, expunction,

24  and correction of judicial records containing criminal history

25  information to the extent such procedures are not inconsistent

26  with the conditions, responsibilities, and duties established

27  by this section.  Any court of competent jurisdiction may

28  order a criminal justice agency to expunge the criminal

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

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

31  criminal justice agency to expunge a criminal history record

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  1  until the person seeking to expunge a criminal history record

  2  has applied for and received a certificate of eligibility for

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

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

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

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

  7  without regard to whether adjudication was withheld, if the

  8  defendant was found guilty of or pled guilty or nolo

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

10  was found to have committed, or pled guilty or nolo contendere

11  to committing, the offense as a delinquent act. The court may

12  only order expunction of a criminal history record pertaining

13  to one arrest or one incident of alleged criminal activity,

14  except as provided in this section. The court may, at its sole

15  discretion, order the expunction of a criminal history record

16  pertaining to more than one arrest if the additional arrests

17  directly relate to the original arrest. If the court intends

18  to order the expunction of records pertaining to such

19  additional arrests, such intent must be specified in the

20  order. A criminal justice agency may not expunge any record

21  pertaining to such additional arrests if the order to expunge

22  does not articulate the intention of the court to expunge a

23  record pertaining to more than one arrest. This section does

24  not prevent the court from ordering the expunction of only a

25  portion of a criminal history record pertaining to one arrest

26  or one incident of alleged criminal activity.  Notwithstanding

27  any law to the contrary, a criminal justice agency may comply

28  with laws, court orders, and official requests of other

29  jurisdictions relating to expunction, correction, or

30  confidential handling of criminal history records or

31  information derived therefrom.  This section does not confer

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  1  any right to the expunction of any criminal history record,

  2  and any request for expunction of a criminal history record

  3  may be denied at the sole discretion of the court.

  4         (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY

  5  RECORD.--Each petition to a court to expunge a criminal

  6  history record is complete only when accompanied by:

  7         (a)  A certificate of eligibility for expunction issued

  8  by the department pursuant to subsection (2).

  9         (b)  The petitioner's sworn statement attesting that

10  the petitioner:

11         1.  Has never previously been adjudicated guilty of a

12  criminal offense or comparable ordinance violation or

13  adjudicated delinquent for committing a felony or a

14  misdemeanor specified in s. 943.051(3)(b).

15         2.  Has not been adjudicated guilty of, or adjudicated

16  delinquent for committing, any of the acts stemming from the

17  arrest or alleged criminal activity to which the petition

18  pertains.

19         3.  Has never secured a prior sealing or expunction of

20  a criminal history record under this section, former s.

21  893.14, former s. 901.33, or former s. 943.058, or from any

22  jurisdiction outside the state.

23         4.  Is eligible for such an expunction to the best of

24  his or her knowledge or belief and does not have any other

25  petition to expunge or any petition to seal pending before any

26  court.

27

28  Any person who knowingly provides false information on such

29  sworn statement to the court commits a felony of the third

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

31  s. 775.084.

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  1         (2)  CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior

  2  to petitioning the court to expunge a criminal history record,

  3  a person seeking to expunge a criminal history record shall

  4  apply to the department for a certificate of eligibility for

  5  expunction. The department shall, by rule adopted pursuant to

  6  chapter 120, establish procedures pertaining to the

  7  application for and issuance of certificates of eligibility

  8  for expunction. The department shall issue a certificate of

  9  eligibility for expunction to a person who is the subject of a

10  criminal history record if that person:

11         (a)  Has obtained, and submitted to the department, a

12  written, certified statement from the appropriate state

13  attorney or statewide prosecutor which indicates:

14         1.  That an indictment, information, or other charging

15  document was not filed or issued in the case.

16         2.  That an indictment, information, or other charging

17  document, if filed or issued in the case, was dismissed or

18  nolle prosequi by the state attorney or statewide prosecutor,

19  or was dismissed by a court of competent jurisdiction.

20         3.  That the criminal history record does not relate to

21  a violation of chapter 794, s. 800.04, s. 817.034, s. 827.071,

22  chapter 839, s. 893.135, or a violation enumerated in s.

23  907.041, where the defendant was found guilty of, or pled

24  guilty or nolo contendere to any such offense, or that the

25  defendant, as a minor, was found to have committed, or pled

26  guilty or nolo contendere to committing, such an offense as a

27  delinquent act, without regard to whether adjudication was

28  withheld.

29         (b)  Remits a $75 processing fee to the department for

30  placement in the Department of Law Enforcement Operating Trust

31  Fund, unless such fee is waived by the executive director.

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  1         (c)  Has submitted to the department a certified copy

  2  of the disposition of the charge to which the petition to

  3  expunge pertains.

  4         (d)  Has never previously been adjudicated guilty of a

  5  criminal offense or comparable ordinance violation or

  6  adjudicated delinquent for committing a felony or a

  7  misdemeanor specified in s. 943.051(3)(b).

  8         (e)  Has not been adjudicated guilty of, or adjudicated

  9  delinquent for committing, any of the acts stemming from the

10  arrest or alleged criminal activity to which the petition to

11  expunge pertains.

12         (f)  Has never secured a prior sealing or expunction of

13  a criminal history record under this section, former s.

14  893.14, former s. 901.33, or former s. 943.058.

15         (g)  Is no longer under court supervision applicable to

16  the disposition of the arrest or alleged criminal activity to

17  which the petition to expunge pertains.

18         (h)  Is not required to wait a minimum of 10 years

19  prior to being eligible for an expunction of such records

20  because all charges related to the arrest or criminal activity

21  to which the petition to expunge pertains were dismissed prior

22  to trial, adjudication, or the withholding of adjudication.

23  Otherwise, such criminal history record must be sealed under

24  this section, former s. 893.14, former s. 901.33, or former s.

25  943.058 for at least 10 years before such record is eligible

26  for expunction.

27         (3)  PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--

28         (a)  In judicial proceedings under this section, a copy

29  of the completed petition to expunge shall be served upon the

30  appropriate state attorney or the statewide prosecutor and

31  upon the arresting agency; however, it is not necessary to

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  1  make any agency other than the state a party. The appropriate

  2  state attorney or the statewide prosecutor and the arresting

  3  agency may respond to the court regarding the completed

  4  petition to expunge.

  5         (b)  If relief is granted by the court, the clerk of

  6  the court shall certify copies of the order to the appropriate

  7  state attorney or the statewide prosecutor and the arresting

  8  agency. The arresting agency is responsible for forwarding the

  9  order to any other agency to which the arresting agency

10  disseminated the criminal history record information to which

11  the order pertains. The department shall forward the order to

12  expunge to the Federal Bureau of Investigation. The clerk of

13  the court shall certify a copy of the order to any other

14  agency which the records of the court reflect has received the

15  criminal history record from the court.

16         (c)  For an order to expunge entered by a court prior

17  to July 1, 1992, the department shall notify the appropriate

18  state attorney or statewide prosecutor of an order to expunge

19  which is contrary to law because the person who is the subject

20  of the record has previously been convicted of a crime or

21  comparable ordinance violation or has had a prior criminal

22  history record sealed or expunged. Upon receipt of such

23  notice, the appropriate state attorney or statewide prosecutor

24  shall take action, within 60 days, to correct the record and

25  petition the court to void the order to expunge. The

26  department shall seal the record until such time as the order

27  is voided by the court.

28         (d)  On or after July 1, 1992, the department or any

29  other criminal justice agency is not required to act on an

30  order to expunge entered by a court when such order does not

31  comply with the requirements of this section. Upon receipt of

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  1  such an order, the department must notify the issuing court,

  2  the appropriate state attorney or statewide prosecutor, the

  3  petitioner or the petitioner's attorney, and the arresting

  4  agency of the reason for noncompliance. The appropriate state

  5  attorney or statewide prosecutor shall take action within 60

  6  days to correct the record and petition the court to void the

  7  order.  No cause of action, including contempt of court, shall

  8  arise against any criminal justice agency for failure to

  9  comply with an order to expunge when the petitioner for such

10  order failed to obtain the certificate of eligibility as

11  required by this section or such order does not otherwise

12  comply with the requirements of this section.

13         (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

14  criminal history record of a minor or an adult which is

15  ordered expunged by a court of competent jurisdiction pursuant

16  to this section must be physically destroyed or obliterated by

17  any criminal justice agency having custody of such record;

18  except that any criminal history record in the custody of the

19  department must be retained in all cases. A criminal history

20  record ordered expunged that is retained by the department is

21  confidential and exempt from the provisions of s. 119.07(1)

22  and s. 24(a), Art. I of the State Constitution and not

23  available to any person or entity except upon order of a court

24  of competent jurisdiction. A criminal justice agency may

25  retain a notation indicating compliance with an order to

26  expunge.

27         (a)  The person who is the subject of a criminal

28  history record that is expunged under this section or under

29  other provisions of law, including former s. 893.14, former s.

30  901.33, and former s. 943.058, may lawfully deny or fail to

31

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  1  acknowledge the arrests covered by the expunged record, except

  2  when the subject of the record:

  3         1.  Is a candidate for employment with a criminal

  4  justice agency;

  5         2.  Is a defendant in a criminal prosecution;

  6         3.  Concurrently or subsequently petitions for relief

  7  under this section or s. 943.059;

  8         4.  Is a candidate for admission to The Florida Bar;

  9         5.  Is seeking to be employed or licensed by or to

10  contract with the Department of Children and Family Services

11  or the Department of Juvenile Justice or to be employed or

12  used by such contractor or licensee in a sensitive position

13  having direct contact with children, the developmentally

14  disabled, the aged, or the elderly as provided in s.

15  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

16  402.302(8), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

17  415.1075(4), s. 985.407, or chapter 400; or

18         6.  Is seeking to be employed or licensed by the Office

19  of Teacher Education, Certification, Staff Development, and

20  Professional Practices of the Department of Education, any

21  district school board, or any local governmental entity that

22  licenses child care facilities.

23         (b)  Subject to the exceptions in paragraph (a), a

24  person who has been granted an expunction under this section,

25  former s. 893.14, former s. 901.33, or former s. 943.058 may

26  not be held under any provision of law of this state to commit

27  perjury or to be otherwise liable for giving a false statement

28  by reason of such person's failure to recite or acknowledge an

29  expunged criminal history record.

30         (c)  Information relating to the existence of an

31  expunged criminal history record which is provided in

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  1  accordance with paragraph (a) is confidential and exempt from

  2  the provisions of s. 119.07(1) and s. 24(a), Art. I of the

  3  State Constitution, except that the department shall disclose

  4  the existence of a criminal history record ordered expunged to

  5  the entities set forth in subparagraphs (a)1., 4., 5., and 6.

  6  for their respective licensing and employment purposes, and to

  7  criminal justice agencies for their respective criminal

  8  justice purposes.  It is unlawful for any employee of an

  9  entity set forth in subparagraph (a)1., subparagraph (a)4.,

10  subparagraph (a)5., or subparagraph (a)6. to disclose

11  information relating to the existence of an expunged criminal

12  history record of a person seeking employment or licensure

13  with such entity or contractor, except to the person to whom

14  the criminal history record relates or to persons having

15  direct responsibility for employment or licensure decisions.

16  Any person who violates this paragraph commits a misdemeanor

17  of the first degree, punishable as provided in s. 775.082 or

18  s. 775.083.

19         Section 19.  For the purpose of incorporating the

20  amendments made by this act to section 893.135, Florida

21  Statutes, in references thereto, section 943.059, Florida

22  Statutes, 1998 Supplement, is reenacted to read:

23         943.059  Court-ordered sealing of criminal history

24  records.--The courts of this state shall continue to have

25  jurisdiction over their own procedures, including the

26  maintenance, sealing, and correction of judicial records

27  containing criminal history information to the extent such

28  procedures are not inconsistent with the conditions,

29  responsibilities, and duties established by this section.  Any

30  court of competent jurisdiction may order a criminal justice

31  agency to seal the criminal history record of a minor or an

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  1  adult who complies with the requirements of this section.  The

  2  court shall not order a criminal justice agency to seal a

  3  criminal history record until the person seeking to seal a

  4  criminal history record has applied for and received a

  5  certificate of eligibility for sealing pursuant to subsection

  6  (2).  A criminal history record that relates to a violation of

  7  chapter 794, s. 800.04, s. 817.034, s. 827.071, chapter 839,

  8  s. 893.135, or a violation enumerated in s. 907.041 may not be

  9  sealed, without regard to whether adjudication was withheld,

10  if the defendant was found guilty of or pled guilty or nolo

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

12  was found to have committed or pled guilty or nolo contendere

13  to committing the offense as a delinquent act.  The court may

14  only order sealing of a criminal history record pertaining to

15  one arrest or one incident of alleged criminal activity,

16  except as provided in this section. The court may, at its sole

17  discretion, order the sealing of a criminal history record

18  pertaining to more than one arrest if the additional arrests

19  directly relate to the original arrest.  If the court intends

20  to order the sealing of records pertaining to such additional

21  arrests, such intent must be specified in the order.  A

22  criminal justice agency may not seal any record pertaining to

23  such additional arrests if the order to seal does not

24  articulate the intention of the court to seal records

25  pertaining to more than one arrest.  This section does not

26  prevent the court from ordering the sealing of only a portion

27  of a criminal history record pertaining to one arrest or one

28  incident of alleged criminal activity. Notwithstanding any law

29  to the contrary, a criminal justice agency may comply with

30  laws, court orders, and official requests of other

31  jurisdictions relating to sealing, correction, or confidential

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  1  handling of criminal history records or information derived

  2  therefrom.  This section does not confer any right to the

  3  sealing of any criminal history record, and any request for

  4  sealing a criminal history record may be denied at the sole

  5  discretion of the court.

  6         (1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each

  7  petition to a court to seal a criminal history record is

  8  complete only when accompanied by:

  9         (a)  A certificate of eligibility for sealing issued by

10  the department pursuant to subsection (2).

11         (b)  The petitioner's sworn statement attesting that

12  the petitioner:

13         1.  Has never previously been adjudicated guilty of a

14  criminal offense or comparable ordinance violation or

15  adjudicated delinquent for committing a felony or a

16  misdemeanor specified in s. 943.051(3)(b).

17         2.  Has not been adjudicated guilty of or adjudicated

18  delinquent for committing any of the acts stemming from the

19  arrest or alleged criminal activity to which the petition to

20  seal pertains.

21         3.  Has never secured a prior sealing or expunction of

22  a criminal history record under this section, former s.

23  893.14, former s. 901.33, former s. 943.058, or from any

24  jurisdiction outside the state.

25         4.  Is eligible for such a sealing to the best of his

26  or her knowledge or belief and does not have any other

27  petition to seal or any petition to expunge pending before any

28  court.

29

30  Any person who knowingly provides false information on such

31  sworn statement to the court commits a felony of the third

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

  2  s. 775.084.

  3         (2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to

  4  petitioning the court to seal a criminal history record, a

  5  person seeking to seal a criminal history record shall apply

  6  to the department for a certificate of eligibility for

  7  sealing.  The department shall, by rule adopted pursuant to

  8  chapter 120, establish procedures pertaining to the

  9  application for and issuance of certificates of eligibility

10  for sealing.  The department shall issue a certificate of

11  eligibility for sealing to a person who is the subject of a

12  criminal history record provided that such person:

13         (a)  Has submitted to the department a certified copy

14  of the disposition of the charge to which the petition to seal

15  pertains.

16         (b)  Remits a $75 processing fee to the department for

17  placement in the Department of Law Enforcement Operating Trust

18  Fund, unless such fee is waived by the executive director.

19         (c)  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         (d)  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 to

26  seal pertains.

27         (e)  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.

30

31

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  1         (f)  Is no longer under court supervision applicable to

  2  the disposition of the arrest or alleged criminal activity to

  3  which the petition to seal pertains.

  4         (3)  PROCESSING OF A PETITION OR ORDER TO SEAL.--

  5         (a)  In judicial proceedings under this section, a copy

  6  of the completed petition to seal shall be served upon the

  7  appropriate state attorney or the statewide prosecutor and

  8  upon the arresting agency; however, it is not necessary to

  9  make any agency other than the state a party.  The appropriate

10  state attorney or the statewide prosecutor and the arresting

11  agency may respond to the court regarding the completed

12  petition to seal.

13         (b)  If relief is granted by the court, the clerk of

14  the court shall certify copies of the order to the appropriate

15  state attorney or the statewide prosecutor and to the

16  arresting agency. The arresting agency is responsible for

17  forwarding the order to any other agency to which the

18  arresting agency disseminated the criminal history record

19  information to which the order pertains. The department shall

20  forward the order to seal to the Federal Bureau of

21  Investigation. The clerk of the court shall certify a copy of

22  the order to any other agency which the records of the court

23  reflect has received the criminal history record from the

24  court.

25         (c)  For an order to seal entered by a court prior to

26  July 1, 1992, the department shall notify the appropriate

27  state attorney or statewide prosecutor of any order to seal

28  which is contrary to law because the person who is the subject

29  of the record has previously been convicted of a crime or

30  comparable ordinance violation or has had a prior criminal

31  history record sealed or expunged.  Upon receipt of such

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  1  notice, the appropriate state attorney or statewide prosecutor

  2  shall take action, within 60 days, to correct the record and

  3  petition the court to void the order to seal.  The department

  4  shall seal the record until such time as the order is voided

  5  by the court.

  6         (d)  On or after July 1, 1992, the department or any

  7  other criminal justice agency is not required to act on an

  8  order to seal entered by a court when such order does not

  9  comply with the requirements of this section.  Upon receipt of

10  such an order, the department must notify the issuing court,

11  the appropriate state attorney or statewide prosecutor, the

12  petitioner or the petitioner's attorney, and the arresting

13  agency of the reason for noncompliance. The appropriate state

14  attorney or statewide prosecutor shall take action within 60

15  days to correct the record and petition the court to void the

16  order.  No cause of action, including contempt of court, shall

17  arise against any criminal justice agency for failure to

18  comply with an order to seal when the petitioner for such

19  order failed to obtain the certificate of eligibility as

20  required by this section or when such order does not comply

21  with the requirements of this section.

22         (e)  An order sealing a criminal history record

23  pursuant to this section does not require that such record be

24  surrendered to the court, and such record shall continue to be

25  maintained by the department and other criminal justice

26  agencies.

27         (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A

28  criminal history record of a minor or an adult which is

29  ordered sealed by a court of competent jurisdiction pursuant

30  to this section is confidential and exempt from the provisions

31  of s. 119.07(1) and s. 24(a), Art. I of the State Constitution

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  1  and is available only to the person who is the subject of the

  2  record, to the subject's attorney, to criminal justice

  3  agencies for their respective criminal justice purposes, or to

  4  those entities set forth in subparagraphs (a)1., 4., 5., and

  5  6. for their respective licensing and employment purposes.

  6         (a)  The subject of a criminal history record sealed

  7  under this section or under other provisions of law, including

  8  former s. 893.14, former s. 901.33, and former s. 943.058, may

  9  lawfully deny or fail to acknowledge the arrests covered by

10  the sealed record, except when the subject of the record:

11         1.  Is a candidate for employment with a criminal

12  justice agency;

13         2.  Is a defendant in a criminal prosecution;

14         3.  Concurrently or subsequently petitions for relief

15  under this section or s. 943.0585;

16         4.  Is a candidate for admission to The Florida Bar;

17         5.  Is seeking to be employed or licensed by or to

18  contract with the Department of Children and Family Services

19  or the Department of Juvenile Justice or to be employed or

20  used by such contractor or licensee in a sensitive position

21  having direct contact with children, the developmentally

22  disabled, the aged, or the elderly as provided in s.

23  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

24  402.302(8), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

25  415.103, s. 985.407, or chapter 400; or

26         6.  Is seeking to be employed or licensed by the Office

27  of Teacher Education, Certification, Staff Development, and

28  Professional Practices of the Department of Education, any

29  district school board, or any local governmental entity which

30  licenses child care facilities.

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  1         (b)  Subject to the exceptions in paragraph (a), a

  2  person who has been granted a sealing under this section,

  3  former s. 893.14, former s. 901.33, or former s. 943.058 may

  4  not be held under any provision of law of this state to commit

  5  perjury or to be otherwise liable for giving a false statement

  6  by reason of such person's failure to recite or acknowledge a

  7  sealed criminal history record.

  8         (c)  Information relating to the existence of a sealed

  9  criminal record provided in accordance with the provisions of

10  paragraph (a) is confidential and exempt from the provisions

11  of s. 119.07(1) and s. 24(a), Art. I of the State

12  Constitution, except that the department shall disclose the

13  sealed criminal history record to the entities set forth in

14  subparagraphs (a)1., 4., 5., and 6. for their respective

15  licensing and employment purposes. It is unlawful for any

16  employee of an entity set forth in subparagraph (a)1.,

17  subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6.

18  to disclose information relating to the existence of a sealed

19  criminal history record of a person seeking employment or

20  licensure with such entity or contractor, except to the person

21  to whom the criminal history record relates or to persons

22  having direct responsibility for employment or licensure

23  decisions.  Any person who violates the provisions of this

24  paragraph commits a misdemeanor of the first degree,

25  punishable as provided in s. 775.082 or s. 775.083.

26         Section 20.  Section 943.0535, Florida Statutes, is

27  amended to read:

28         943.0535  Aliens, criminal records.--Upon the official

29  request of the United States immigration officer in charge of

30  the territory or district in which is located any court

31  committing an alien, for the conviction of a felony or a

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  1  misdemeanor, to any state or county institution which is

  2  supported, wholly or in part, by public funds, It shall be the

  3  duty of the clerk of such court to furnish without charge a

  4  certified copy of the complaint, information, or indictment

  5  and the judgment and sentence and any other record pertaining

  6  to the case of any the convicted alien to the United States

  7  immigration officer in charge of the territory or district in

  8  which the court is located in every case in which an alien is

  9  convicted of a felony or misdemeanor or enters a plea of

10  guilty or nolo contendere to any felony or misdemeanor charge.

11  The state attorney shall assist the clerk of the court in

12  determining if a defendant that enters a plea or is convicted

13  is an alien.

14         Section 21.  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 22.  This act shall take effect July 1, 1999.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 1746

  3

  4  1     Provides for 3-year mandatory minimum terms for
          trafficking in cannabis, cocaine, "illegal drugs,"
  5        methaqualone, amphetamines and methamphetamines,
          phencyclidine, and flunitrazepam;
  6
    -     Lowers the threshold for trafficking in cannabis from 50
  7        pounds to 25 pounds;

  8  -     Provides for 7-year mandatory minimum terms for
          trafficking in cannabis, cocaine, methaqualone,
  9        amphetamines, and methamphetamines, phencyclidine, and
          flunitrazepam and a 15-year mandatory minimum term for
10        illegal drugs;

11  -     Removes the upper caps for weight ranges applicable to
          high-weight, first degree felony trafficking offenses;
12
    -     Provides that sentencing can be based upon the number of
13        cannabis plants, regardless of weight, which is
          conceptually similar to a former federal sentencing
14        scheme;

15  -     Defines "cannabis plant" and provides for how a court
          shall sentence cannabis trafficking offenses based upon
16        weight and number;

17  -     Provides that persons convicted of certain first degree
          felony trafficking offenses relating to trafficking in
18        cocaine, illegal drugs, and flunitrazepam, are
          ineligible for any form of gain-time.
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