Senate Bill 2192c3

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    Florida Senate - 1999             CS for CS for CS for SB 2192

    By the Committees on Fiscal Policy; Judiciary; Children and
    Families; and Senator Klein




    309-2137-99

  1                      A bill to be entitled

  2         An act relating to civil commitment of sexually

  3         violent predators; providing a directive to the

  4         Division of Statutory Revision; transferring

  5         provisions relating to civil commitment of

  6         sexually violent predators to ch. 394, F.S.,

  7         relating to mental health; amending s. 27.51,

  8         F.S.; clarifying duty of the public defender to

  9         represent sexually violent predators who are

10         indigent; prohibiting a public defender from

11         representing such persons in civil actions and

12         administrative proceedings; renumbering and

13         amending s. 916.31, F.S.; conforming

14         cross-references; creating s. 394.911, F.S.;

15         declaring legislative intent with respect to

16         procedures to be used for commitment of

17         sexually violent predators; renumbering and

18         amending s. 916.32, F.S.; defining the term

19         "secretary"; redefining the term "sexually

20         violent offense" to revise the applicability of

21         the act; clarifying the term "total

22         confinement" for purposes of the act;

23         renumbering and amending s. 916.33, F.S.;

24         prescribing additional notice requirements;

25         requiring additional information; revising

26         composition of multidisciplinary teams;

27         providing for additional elements of assessment

28         of offenders; providing clarification on

29         assessments and recommendations to state

30         attorneys; creating s. 394.9135, F.S.;

31         prescribing procedures to be followed for

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  1         evaluation and filing petitions for offenders

  2         being immediately released from confinement;

  3         renumbering and amending s. 916.34, F.S.;

  4         revising requirements for filing a petition;

  5         renumbering and amending s. 916.35, F.S.;

  6         revising procedures relating to determination

  7         of probable cause; creating s. 394.9155, F.S.;

  8         providing rules of procedure and evidence;

  9         renumbering and amending s. 916.36, F.S.;

10         prescribing jury size in a trial to determine

11         whether a person is a sexually violent

12         predator; renumbering and amending s. 916.37,

13         F.S.; revising commitment procedures; providing

14         for payment for counsel and costs in cases

15         involving indigent defendants; renumbering and

16         amending s. 916.38, F.S.; conforming

17         cross-references; renumbering and amending s.

18         916.39, F.S.; conforming terminology;

19         renumbering and amending s. 916.40, F.S.;

20         revising procedures for petitioning for

21         release; renumbering and amending s. 916.41,

22         F.S.; revising guidelines relating to release

23         of records; renumbering and amending s. 916.42,

24         F.S.; conforming cross-references; renumbering

25         and amending s. 916.43, F.S.; conforming

26         cross-references; renumbering and amending s.

27         916.44, F.S.; conforming cross-references;

28         renumbering and amending s. 916.45, F.S.;

29         revising provision relating to applicability of

30         act; renumbering and amending s. 916.46, F.S.;

31         revising notice requirements upon release of

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  1         persons committed as sexually violent

  2         predators; renumbering and amending s. 916.47,

  3         F.S.; providing requirement to notify specified

  4         persons upon escape of person committed as

  5         sexually violent predators; renumbering and

  6         amending s. 916.48, F.S.; conforming

  7         cross-references; renumbering and amending s.

  8         916.49, F.S.; conforming cross-references;

  9         creating s. 394.930, F.S.; directing the

10         Department of Children and Family Services to

11         adopt certain rules; requiring the Department

12         of Corrections to produce quarterly reports;

13         requiring the Office of Program Policy Analysis

14         and Government Accountability to conduct a

15         study and report to the Legislature; providing

16         an effective date.

17

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

19

20         Section 1.  The Division of Statutory Revision is

21  requested to designate sections 394.910-394.930, Florida

22  Statutes, as part V of chapter 394, Florida Statutes, and to

23  entitle such part as "Involuntary Civil Commitment of Sexually

24  Violent Predators."

25         Section 2.  Subsection (1) of section 27.51, Florida

26  Statutes, is amended to read:

27         27.51  Duties of public defender.--

28         (1)  The public defender shall represent, without

29  additional compensation, any person who is determined by the

30  court to be indigent as provided in s. 27.52 and who is:

31         (a)  Under arrest for, or is charged with, a felony;

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  1         (b)  Under arrest for, or is charged with, a

  2  misdemeanor, a violation of chapter 316 which is punishable by

  3  imprisonment, criminal contempt, or a violation of a municipal

  4  or county ordinance in the county court, unless the court,

  5  prior to trial, files in the cause an order of no imprisonment

  6  which states that the defendant will not be imprisoned if he

  7  or she is convicted;

  8         (c)  Alleged to be a delinquent child pursuant to a

  9  petition filed before a circuit court; or

10         (d)  Sought by petition filed in such court to be

11  involuntarily placed as a mentally ill person or sexually

12  violent predator or involuntarily admitted to residential

13  services as a person with developmental disabilities. However,

14  a public defender does not have the authority to represent any

15  person who is a plaintiff in a civil action brought under the

16  Florida Rules of Civil Procedure, the Federal Rules of Civil

17  Procedure, or the Federal Statutes, or who is a petitioner in

18  an administrative proceeding challenging a rule under chapter

19  120, unless specifically authorized by statute.

20         Section 3.  Section 916.31, Florida Statutes, 1998

21  Supplement, is transferred, renumbered as section 394.910,

22  Florida Statutes, and amended to read:

23         394.910 916.31  Legislative findings and intent.--The

24  Legislature finds that a small but extremely dangerous number

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

26  disease or defect that renders them appropriate for

27  involuntary treatment under the Baker Act, part I of this

28  chapter ss. 394.451-394.4789, which is intended to provide

29  short-term treatment to individuals with serious mental

30  disorders and then return them to the community. In contrast

31  to persons appropriate for civil commitment under the Baker

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  1  Act, sexually violent predators generally have antisocial

  2  personality features which are unamenable to existing mental

  3  illness treatment modalities, and those features render them

  4  likely to engage in criminal, sexually violent behavior. The

  5  Legislature further finds that the likelihood of sexually

  6  violent predators engaging in repeat acts of predatory sexual

  7  violence is high. The existing involuntary commitment

  8  procedures under the Baker Act for the treatment and care of

  9  mentally ill persons are inadequate to address the risk these

10  sexually violent predators pose to society. The Legislature

11  further finds that the prognosis for rehabilitating sexually

12  violent predators in a prison setting is poor, the treatment

13  needs of this population are very long term, and the treatment

14  modalities for this population are very different from the

15  traditional treatment modalities for people appropriate for

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

17  the Legislature to create a civil commitment procedure for the

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

19         Section 4.  Section 394.911, Florida Statutes, is

20  created to read:

21         394.911  Legislative intent.--The Legislature intends

22  that persons who are subject to the civil commitment procedure

23  for sexually violent predators under this part be subject to

24  the procedures established in this part and not to the

25  provisions of part I of this chapter. Less restrictive

26  alternatives are not applicable to cases initiated under this

27  part.

28         Section 5.  Section 916.32, Florida Statutes, 1998

29  Supplement, is transferred, renumbered as section 394.912,

30  Florida Statutes, and amended to read:

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  1         394.912 916.32  Definitions.--As used in this part ss.

  2  916.31-916.49, the term:

  3         (1)  "Agency with jurisdiction" means the agency that

  4  releases, upon lawful order or authority, a person who is

  5  serving a sentence in the custody of the Department of

  6  Corrections, a person who was adjudicated delinquent and is

  7  committed to the custody of the Department of Juvenile

  8  Justice, or a person who was involuntarily committed to the

  9  custody of the Department of Children and Family Services upon

10  an adjudication of not guilty by reason of insanity.

11         (2)  "Convicted of a sexually violent offense" means a

12  person who has been:

13         (a)  Adjudicated guilty of a sexually violent offense

14  after a trial, guilty plea, or plea of nolo contendere;

15         (b)  Adjudicated not guilty by reason of insanity of a

16  sexually violent offense; or

17         (c)  Adjudicated delinquent of a sexually violent

18  offense after a trial, guilty plea, or plea of nolo

19  contendere.

20         (3)  "Department" means the Department of Children and

21  Family Services.

22         (4)  "Likely to engage in acts of sexual violence"

23  means the person's propensity to commit acts of sexual

24  violence is of such a degree as to pose a menace to the health

25  and safety of others.

26         (5)  "Mental abnormality" means a mental condition

27  affecting a person's emotional or volitional capacity which

28  predisposes the person to commit sexually violent offenses.

29         (6)  "Person" means an individual 18 years of age or

30  older who is a potential or actual subject of proceedings

31  under this part ss. 916.31-916.49.

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  1         (7)  "Secretary" means the Secretary of the Department

  2  of Children and Family Services.

  3         (8)(7)  "Sexually motivated" means that one of the

  4  purposes for which the defendant committed the crime was for

  5  sexual gratification.

  6         (9)(8)  "Sexually violent offense" means:

  7         (a)  Murder of a human being while engaged in sexual

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

  9         (b)  Kidnapping of a child under the age of 13 16 and,

10  in the course of that offense, committing:

11         1.  Sexual battery; or

12         2.  A lewd, lascivious, or indecent assault or act upon

13  or in the presence of the child;

14         (c)  Committing the offense of false imprisonment upon

15  a child under the age of 13 16 and, in the course of that

16  offense, committing:

17         1.  Sexual battery; or

18         2.  A lewd, lascivious, or indecent assault or act upon

19  or in the presence of the child;

20         (d)  Sexual battery in violation of s. 794.011;

21         (e)  Lewd, lascivious, or indecent assault or act upon

22  or in presence of the child in violation of s. 800.04;

23         (f)  An attempt, criminal solicitation, or conspiracy,

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

25         (g)  Any conviction for a felony offense in effect at

26  any time before October 1, 1998, which is comparable to a

27  sexually violent offense under paragraphs (a)-(f) or any

28  federal conviction or conviction in another state for a felony

29  offense that in this state would be a sexually violent

30  offense; or

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  1         (h)  Any criminal act that, either at the time of

  2  sentencing for the offense or subsequently during civil

  3  commitment proceedings under this part ss. 916.31-916.49, has

  4  been determined beyond a reasonable doubt to have been

  5  sexually motivated.

  6         (10)(9)  "Sexually violent predator" means any person

  7  who:

  8         (a)  Has been convicted of a sexually violent offense;

  9  and

10         (b)  Suffers from a mental abnormality or personality

11  disorder that makes the person likely to engage in acts of

12  sexual violence if not confined in a secure facility for

13  long-term control, care, and treatment.

14         (11)(10)  "Total confinement" means that the person is

15  currently being held in any physically secure facility being

16  operated or contractually operated for the Department of

17  Corrections, the Department of Juvenile Justice, or the

18  Department of Children and Family Services. A person shall

19  also be deemed to be in total confinement for applicability of

20  provisions under this part if the person is serving an

21  incarcerative sentence under the custody of the Department of

22  Corrections or the Department of Juvenile Justice and is being

23  held in any other secure facility for any reason.

24         Section 6.  Section 916.33, Florida Statutes, 1998

25  Supplement, is transferred, renumbered as section 394.913,

26  Florida Statutes, and amended to read:

27         394.913 916.33  Notice to state attorney and

28  multidisciplinary team of release of sexually violent

29  predator; establishing multidisciplinary teams; information to

30  be provided to multidisciplinary teams team.--

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  1         (1)  The agency with jurisdiction over a person who has

  2  been convicted of a sexually violent offense shall give

  3  written notice to the multidisciplinary team, and a copy to

  4  the state attorney of the circuit where that person was last

  5  convicted of a sexually violent offense. If the person has

  6  never been convicted of a sexually violent offense in this

  7  state but has been convicted of a sexually violent offense in

  8  another state or in federal court, the agency with

  9  jurisdiction shall give written notice to the

10  multidisciplinary team and a copy to the state attorney of the

11  circuit where the person was last convicted of any offense in

12  this state. If the person is being confined in this state

13  pursuant to interstate compact and has a prior or current

14  conviction for a sexually violent offense, the agency with

15  jurisdiction shall give written notice to the

16  multidisciplinary team and a copy to the state attorney of the

17  circuit where the person plans to reside upon release or, if

18  no residence in this state is planned, the state attorney in

19  the circuit where the facility from which the person to be

20  released is located. The written notice must be given to the

21  multidisciplinary team and the state attorney at least 365 180

22  days or, in the case of an adjudicated committed delinquent,

23  at least 90 days before:

24         (a)  The anticipated release from total confinement of

25  a person who has been convicted of a sexually violent offense,

26  except that in the case of persons who have been returned to

27  total confinement for no more than 90 days, written notice

28  must be given as soon as practicable following the person's

29  return to confinement; or

30

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  1         (b)  The anticipated hearing regarding possible release

  2  of a person who has been found not guilty by reason of

  3  insanity or mental incapacity of a sexually violent offense.

  4         (2)  The agency with jurisdiction shall provide the

  5  multidisciplinary team with the following information:

  6         (a)  The person's name; identifying characteristics;

  7  anticipated future residence; the type of supervision the

  8  person will receive in the community, if any; and the person's

  9  offense history; and

10         (b)  The person's criminal history, including police

11  reports, victim statements, presentence investigation reports,

12  post-sentence investigation reports, if available, and any

13  other documents containing facts of the person's criminal

14  incidents;

15         (c)  Mental health, mental status, and medical records,

16  including all clinical records and notes concerning the

17  person;

18         (d)(b)  Documentation of institutional adjustment and

19  any treatment received and, in the case of an adjudicated

20  delinquent committed to the Department of Juvenile Justice,

21  copies of the most recent performance plan and performance

22  summary; and.

23         (e)  If the person was returned to custody after a

24  period of supervision, documentation of adjustment during

25  supervision and any treatment received.

26

27  The provisions of this section are not jurisdictional, and

28  failure to comply with them in no way prevents the state

29  attorney from proceeding against a person otherwise subject to

30  the provisions of ss. 916.31-916.49.

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  1         (3)(a)  The secretary of Children and Family Services

  2  shall establish a multidisciplinary team or teams, which shall

  3  include two licensed psychiatrists or psychologists, or one

  4  licensed psychiatrist and one licensed psychologist,

  5  designated by the Secretary of Children and Family Services.

  6         (b)  Each team shall include, but is not limited to,

  7  two licensed psychiatrists or psychologists or one licensed

  8  psychiatrist and one licensed psychologist. The

  9  multidisciplinary team shall assess and evaluate each person

10  referred to the team. The assessment and evaluation shall

11  include a review of the person's institutional history and

12  treatment record, if any, the person's criminal background,

13  and any other factor that is relevant to the determination of

14  whether such person is a sexually violent predator.

15         (c)  Before recommending that a person meets the

16  definition of a sexually violent predator, the person must be

17  offered a personal interview. If the person agrees to

18  participate in a personal interview, at least one member of

19  the team who is a licensed psychiatrist or psychologist must

20  conduct a personal interview of the person. If the person

21  refuses to fully participate in a personal interview, the

22  multidisciplinary team may proceed with its recommendation

23  without a personal interview of the person.

24         (d)  The Attorney General's Office shall serve as legal

25  counsel to the multidisciplinary team.

26         (e)  The team, Within 45 days after receiving notice,

27  there shall be a written assessment as to assess whether the

28  person meets the definition of a sexually violent predator and

29  a written recommendation, which shall be provided to provide

30  the state attorney with its written assessment and

31  recommendation. The written recommendation shall be provided

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  1  by the Department of Children and Family Services and shall

  2  include the written report of the multidisciplinary team.

  3

  4  The provisions of this section are not jurisdictional, and

  5  failure to comply with them in no way prevents the state

  6  attorney from proceeding against a person otherwise subject to

  7  the provisions of this part.

  8         Section 7.  Section 394.9135, Florida Statutes, is

  9  created to read:

10         394.9135  Immediate releases from total confinement;

11  transfer of person to department; time limitations on

12  assessment, notification, and filing petition to hold in

13  custody; filing petition after release.--

14         (1)  If the anticipated release from total confinement

15  of a person who has been convicted of a sexually violent

16  offense becomes immediate for any reason, the agency with

17  jurisdiction shall upon immediate release from total

18  confinement transfer that person to the custody of the

19  Department of Children and Family Services to be held in an

20  appropriate secure facility.

21         (2)  Within 72 hours after transfer, the

22  multidisciplinary team shall assess whether the person meets

23  the definition of a sexually violent predator. If the

24  multidisciplinary team determines that the person does not

25  meet the definition of a sexually violent predator, that

26  person shall be immediately released. If the multidisciplinary

27  team determines that the person meets the definition of a

28  sexually violent predator, the team shall provide the state

29  attorney, as designated by s. 394.913, with its written

30  assessment and recommendation within the 72-hour period or, if

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  1  the 72-hour period ends on a weekend or holiday, within the

  2  next working day thereafter.

  3         (3)  Within 48 hours after receipt of the written

  4  assessment and recommendation from the multidisciplinary team,

  5  the state attorney, as designated in s. 394.913, may file a

  6  petition with the circuit court alleging that the person is a

  7  sexually violent predator and stating facts sufficient to

  8  support such allegation. If a petition is not filed within 48

  9  hours after receipt of the written assessment and

10  recommendation by the state attorney, the person shall be

11  immediately released. If a petition is filed pursuant to this

12  section and the judge determines that there is probable cause

13  to believe that the person is a sexually violent predator, the

14  judge shall order the person be maintained in custody and held

15  in an appropriate secure facility for further proceedings in

16  accordance with this part.

17         (4)  The provisions of this section are not

18  jurisdictional, and failure to comply with the time

19  limitations, which results in the release of a person who has

20  been convicted of a sexually violent offense, is not

21  dispositive of the case and does not prevent the state

22  attorney from proceeding against a person otherwise subject to

23  the provisions of this part.

24         Section 8.  Section 916.34, Florida Statutes, 1998

25  Supplement, is transferred, renumbered as section 394.914,

26  Florida Statutes, and amended to read:

27         394.914 916.34  Petition; time; contents.--Following

28  receipt of the written assessment and recommendation from the

29  multidisciplinary team, the state attorney, in accordance with

30  s. 394.913, in the judicial circuit where the person committed

31  the sexually violent offense may file a petition with the

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  1  circuit court alleging that the person is a sexually violent

  2  predator and stating facts sufficient to support such

  3  allegation. No fee shall be charged for the filing of a

  4  petition under this section.

  5         Section 9.  Section 916.35, Florida Statutes, 1998

  6  Supplement, is transferred, renumbered as section 394.915,

  7  Florida Statutes, and amended to read:

  8         394.915 916.35  Determination of probable cause;

  9  hearing; evaluation; respondent taken into custody; bail.--

10         (1)  When the state attorney files a petition seeking

11  to have a person declared a sexually violent predator, the

12  judge shall determine whether probable cause exists to believe

13  that the person named in the petition is a sexually violent

14  predator. If the judge determines that there is probable cause

15  to believe that the person is a sexually violent predator, the

16  judge shall order direct that the person remain in custody and

17  be immediately transferred to be taken into custody and held

18  in an appropriate secure facility if the person's

19  incarcerative sentence expires.

20         (2)  Upon the expiration of the incarcerative sentence

21  and before the release from custody of a person whom the

22  multidisciplinary team recommends for civil commitment, but

23  after the state attorney files a petition under s. 394.914 s.

24  916.33, the state attorney may further petition the court for

25  an adversarial probable cause hearing. The person shall be

26  provided with notice of, and an opportunity to appear in

27  person at, an adversarial hearing. At this hearing, the judge

28  shall:

29         (a)  Receive evidence and hear argument from the person

30  and the state attorney; and

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  1         (b)  Determine whether probable cause exists to believe

  2  that the person is a sexually violent predator.

  3         (3)  At the adversarial probable cause hearing, the

  4  person has the right to:

  5         (a)  Be represented by counsel;

  6         (b)  Present evidence;

  7         (c)  Cross-examine any witnesses who testify against

  8  the person; and

  9         (d)  View and copy all petitions and reports in the

10  court file.

11         (4)  If the court again concludes that there is

12  probable cause to believe that the person is a sexually

13  violent predator, the court shall order direct that the person

14  be held in an appropriate secure facility upon the expiration

15  of his or her incarcerative sentence in the county where the

16  petition was filed for an evaluation by a mental health

17  professional.

18         (5)  After a court finds probable cause to believe that

19  the person is a sexually violent predator, the person must be

20  held in custody in a secure facility without opportunity for

21  pretrial release or release during the trial proceedings.

22         Section 10.  Section 394.9155, Florida Statutes, is

23  created to read:

24         394.9155  Rules of procedure and evidence.--In all

25  civil commitment proceedings for sexually violent predators

26  under this part, the following shall apply.

27         (1)  The Florida Rules of Civil Procedure apply unless

28  otherwise specified in this part.

29         (2)  The Florida Rules of Evidence apply unless

30  otherwise specified in this part.

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  1         (3)  The psychotherapist-patient privilege under s.

  2  90.503 does not exist or apply for communications relevant to

  3  an issue in proceedings to involuntarily commit a person under

  4  this part.

  5         (4)  The court may consider evidence of prior behavior

  6  by a person who is subject to proceedings under this part if

  7  such evidence is relevant to proving that the person is a

  8  sexually violent predator.

  9         (5)  Hearsay evidence, including reports of a member of

10  the multidisciplinary team or reports produced on behalf of

11  the multidisciplinary team, is admissible in proceedings under

12  this part unless the court finds that such evidence is not

13  reliable. In a trial, however, hearsay evidence may not be

14  used as the sole basis for committing a person under this

15  part.

16         (6)  Rules adopted under s. 394.930 shall not

17  constitute:

18         (a)  An evidentiary predicate for the admission of any

19  physical evidence or testimony;

20         (b)  A basis for excluding or otherwise limiting the

21  presentation of any physical evidence or testimony in judicial

22  proceedings under this part; or

23         (c)  Elements of the cause of action that the state

24  needs to allege or prove in judicial proceedings under this

25  part.

26         (7)  If the person who is subject to proceedings under

27  this part refuses to be interviewed by or fully cooperate with

28  members of the multidisciplinary team or any state mental

29  health expert, the court may, in its discretion:

30         (a)  Order the person to allow members of the

31  multidisciplinary team and any state mental health experts to

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  1  review all mental health reports, tests, and evaluations by

  2  the person's mental health expert or experts; or

  3         (b)  Prohibit the person's mental health experts from

  4  testifying concerning mental health tests, evaluations, or

  5  examinations of the person.

  6

  7  The failure of any party to comply with such rules shall not

  8  constitute a defense in any judicial proceedings under this

  9  part.

10         Section 11.  Section 916.36, Florida Statutes, 1998

11  Supplement, is transferred, renumbered as section 394.916,

12  Florida Statutes, and amended to read:

13         394.916 916.36  Trial; counsel and experts; indigent

14  persons; jury.--

15         (1)  Within 30 days after the determination of probable

16  cause, the court shall conduct a trial to determine whether

17  the person is a sexually violent predator.

18         (2)  The trial may be continued upon the request of

19  either party and a showing of good cause, or by the court on

20  its own motion in the interests of justice, when the person

21  will not be substantially prejudiced.

22         (3)  At all adversarial proceedings under this act, the

23  person subject to this act is entitled to the assistance of

24  counsel, and, if the person is indigent, the court shall

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

26  counsel to assist the person.

27         (4)  If the person is subjected to a mental health

28  examination under this part chapter, the person also may

29  retain experts or mental health professionals to perform an

30  examination. If the person wishes to be examined by a

31  professional of the person's own choice, the examiner must be

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  1  provided reasonable access to the person, as well as to all

  2  relevant medical and mental health records and reports. In the

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

  4  request, shall determine whether such an examination is

  5  necessary. If the court determines that an examination is

  6  necessary, the court shall appoint a mental health

  7  professional and determine the reasonable compensation for the

  8  professional's services, which shall be paid by the state.

  9         (5)  The person or the state attorney has the right to

10  demand that the trial be before a jury of six members. A

11  demand for a jury trial must be filed, in writing, at least 5

12  days before the trial. If no demand is made, the trial shall

13  be to the court.

14         Section 12.  Section 916.37, Florida Statutes, 1998

15  Supplement, is transferred, renumbered as section 394.917,

16  Florida Statutes, and amended to read:

17         394.917 916.37  Determination; commitment procedure;

18  mistrials; housing; counsel and costs in indigent appellate

19  cases.--

20         (1)  The court or jury shall determine by clear and

21  convincing evidence whether the person is a sexually violent

22  predator. If the determination is made by a jury, the verdict

23  decision must be unanimous. If the jury is unable to reach a

24  unanimous verdict, the court must declare a mistrial and poll

25  the jury. If a majority of the jury would find the person is a

26  sexually violent predator If a majority of the jury finds that

27  the person is a sexually violent predator, but the decision is

28  not unanimous, the state attorney may refile the petition and

29  proceed according to the provisions of this part ss.

30  916.31-916.49. Any retrial must occur within 90 days after the

31  previous trial, unless the subsequent proceeding is continued

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  1  in accordance with s. 394.916(2) s. 916.36(2). The

  2  determination that a person is a sexually violent predator may

  3  be appealed.

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

  5  a sexually violent predator, upon the expiration of the

  6  incarcerative portion of all criminal sentences and

  7  disposition of any detainers other than detainers for

  8  deportation by the United States Immigration and

  9  Naturalization Service, the person shall be committed to the

10  custody of the Department of Children and Family Services for

11  control, care, and treatment until such time as the person's

12  mental abnormality or personality disorder has so changed that

13  it is safe for the person to be at large. At all times,

14  sexually violent predators who are committed for control,

15  care, and treatment by the Department of Children and Family

16  Services under this section shall be kept in a secure facility

17  segregated from patients who are not committed under this

18  section.

19         (3)  The public defender of the circuit in which a

20  person was determined to be a sexually violent predator shall

21  be appointed to represent the person on appeal. That public

22  defender may request the public defender who handles criminal

23  appeals for the circuit to represent the person on appeal in

24  the manner provided in s. 27.51(4). If the public defender is

25  unable to represent the person on appeal due to a conflict,

26  the court shall appoint other counsel, who shall be

27  compensated at a rate not less than that provided for

28  appointed counsel in criminal cases. Filing fees for indigent

29  appeals under this act are waived. Costs and fees related to

30  such appeals, including the amounts paid for records,

31  transcripts, and compensation of appointed counsel, shall be

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  1  authorized by the trial court and paid from state funds that

  2  are appropriated for such purposes.

  3         Section 13.  Section 916.38, Florida Statutes, 1998

  4  Supplement, is transferred, renumbered as section 394.918,

  5  Florida Statutes, and amended to read:

  6         394.918 916.38  Examinations; notice; court hearings

  7  for release of committed persons; burden of proof.--

  8         (1)  A person committed under this part ss.

  9  916.31-916.49 shall have an examination of his or her mental

10  condition once every year or more frequently at the court's

11  discretion. The person may retain or, if the person is

12  indigent and so requests, the court may appoint, a qualified

13  professional to examine the person. Such a professional shall

14  have access to all records concerning the person. The results

15  of the examination shall be provided to the court that

16  committed the person under this part ss. 916.31-916.49. Upon

17  receipt of the report, the court shall conduct a review of the

18  person's status.

19         (2)  The department shall provide the person with

20  annual written notice of the person's right to petition the

21  court for release over the objection of the director of the

22  facility where the person is housed. The notice must contain a

23  waiver of rights. The director of the facility shall forward

24  the notice and waiver form to the court.

25         (3)  The court shall hold a limited hearing to

26  determine whether there is probable cause to believe that the

27  person's condition has so changed that it is safe for the

28  person to be at large and that the person will not engage in

29  acts of sexual violence if discharged. The person has the

30  right to be represented by counsel at the probable cause

31  hearing, but the person is not entitled to be present. If the

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  1  court determines that there is probable cause to believe it is

  2  safe to release the person, the court shall set a trial before

  3  the court on the issue.

  4         (4)  At the trial before the court, the person is

  5  entitled to be present and is entitled to the benefit of all

  6  constitutional protections afforded the person at the initial

  7  trial, except for the right to a jury. The state attorney

  8  shall represent the state and has the right to have the person

  9  examined by professionals chosen by the state. At the hearing,

10  the state bears the burden of proving, by clear and convincing

11  evidence, that the person's mental condition remains such that

12  it is not safe for the person to be at large and that, if

13  released, the person is likely to engage in acts of sexual

14  violence.

15         Section 14.  Section 916.39, Florida Statutes, 1998

16  Supplement, is transferred, renumbered as section 394.919,

17  Florida Statutes, and amended to read:

18         394.919 916.39  Authorized petition for release;

19  procedure.--

20         (1)  If the secretary of Children and Family Services

21  or the secretary's designee at any time determines that the

22  person is not likely to commit acts of sexual violence if

23  conditionally discharged, the secretary or the secretary's

24  designee shall authorize the person to petition the court for

25  release.  The petition shall be served upon the court and the

26  state attorney. The court, upon receipt of such a petition,

27  shall order a trial before the court within 30 days, unless

28  continued for good cause.

29         (2)  The state attorney shall represent the state, and

30  has the right to have the person examined by professionals of

31  the state attorney's choice. The state bears the burden of

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  1  proving, by clear and convincing evidence, that the person's

  2  mental condition remains such that it is not safe for the

  3  person to be at large and that, if released, the person is

  4  likely to engage in acts of sexual violence.

  5         Section 15.  Section 916.40, Florida Statutes, 1998

  6  Supplement, is transferred, renumbered as section 394.920,

  7  Florida Statutes, and amended to read:

  8         394.920 916.40  Petition for release.--Sections

  9  916.31-916.49 do not prohibit A person is not prohibited from

10  filing a petition for discharge at any time after commitment

11  under this part. However, if the person has previously filed

12  such a petition without the approval of the secretary of

13  Children and Family Services or the secretary's designee and

14  the court determined that the petition was without merit, a

15  subsequent petition shall be denied unless the petition

16  contains facts upon which a court could find that the person's

17  condition has so changed that a probable cause hearing is

18  warranted.

19         Section 16.  Section 916.41, Florida Statutes, 1998

20  Supplement, is transferred, renumbered as section 394.921,

21  Florida Statutes, and amended to read:

22         394.921 916.41  Release of records to agencies,

23  multidisciplinary teams, and state attorney.--

24         (1)  In order to protect the public, relevant

25  information and records that are otherwise confidential or

26  privileged shall be released to the agency with having

27  jurisdiction, to a multidisciplinary team, or to the state

28  attorney for the purpose of meeting the notice requirements of

29  this part ss. 916.31-916.49 and determining whether a person

30  is or continues to be a sexually violent predator. A person,

31  agency, or entity receiving information under this section

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  1  which is confidential and exempt from the provisions of s.

  2  119.07(1) must maintain the confidentiality of that

  3  information. Such information does not lose its confidential

  4  status due to its release under this section.

  5         (2)  Psychological or psychiatric reports, drug and

  6  alcohol reports, treatment records, medical records, or victim

  7  impact statements that have been submitted to the court or

  8  admitted into evidence under this part ss. 916.31-916.49 shall

  9  be part of the record but shall be sealed and may be opened

10  only pursuant to a court order.

11         Section 17.  Section 916.42, Florida Statutes, 1998

12  Supplement, is transferred, renumbered as section 394.922,

13  Florida Statutes, and amended to read:

14         394.922 916.42  Constitutional requirements.--The

15  long-term control, care, and treatment of a person committed

16  under this part ss. 916.31-916.49 must conform to

17  constitutional requirements.

18         Section 18.  Section 916.43, Florida Statutes, 1998

19  Supplement, is transferred, renumbered as section 394.923,

20  Florida Statutes, and amended to read:

21         394.923 916.43  Immunity from civil liability.--The

22  agency with jurisdiction and its officers and employees; the

23  department and its officers and employees; members of the

24  multidisciplinary team; the state attorney and the state

25  attorney's employees; and those involved in the evaluation,

26  care, and treatment of sexually violent persons committed

27  under this part ss. 916.31-916.49 are immune from any civil

28  liability for good faith conduct under this part ss.

29  916.31-916.49.

30

31

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  1         Section 19.  Section 916.44, Florida Statutes, 1998

  2  Supplement, is transferred, renumbered as section 394.924,

  3  Florida Statutes, and amended to read:

  4         394.924 916.44  Severability.--If any section,

  5  subsection, or provision of this part ss. 916.31-916.49 is

  6  held to be unconstitutional or invalid by a court of competent

  7  jurisdiction, the remaining portions of this part ss.

  8  916.31-916.49 shall be unaffected because the Legislature

  9  declares that the provisions of this part ss. 916.31-916.49

10  are severable from each other.

11         Section 20.  Section 916.45, Florida Statutes, 1998

12  Supplement, is transferred, renumbered as section 394.925,

13  Florida Statutes, and amended to read:

14         394.925 916.45  Applicability of act.--This part

15  applies Sections 916.31-916.49 apply to all persons currently

16  in custody who have been convicted of a sexually violent

17  offense, as that term is defined in s. 394.912(9) s.

18  916.32(8), as well as to all persons convicted of a sexually

19  violent offense and sentenced to total confinement in the

20  future.

21         Section 21.  Section 916.46, Florida Statutes, 1998

22  Supplement, is transferred, renumbered as section 394.926,

23  Florida Statutes, and amended to read:

24         394.926 916.46  Notice to victims of release of persons

25  committed as sexually violent predators; notice to Department

26  of Corrections and Parole Commission.--

27         (1)  As soon as is practicable, the department shall

28  give written notice of the release of a person committed as a

29  sexually violent predator to any victim of the committed

30  person who is alive and whose address is known to the

31  department or, if the victim is deceased, to the victim's

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  1  family, if the family's address is known to the department.

  2  Failure to notify is not a reason for postponement of release.

  3  This section does not create a cause of action against the

  4  state or an employee of the state acting within the scope of

  5  the employee's employment as a result of the failure to notify

  6  pursuant to this part ss. 916.31-916.49.

  7         (2)  If a sexually violent predator who has an active

  8  or pending term of probation, community control, parole,

  9  conditional release, or other court-ordered or post-prison

10  release supervision is released from custody, the department

11  must immediately notify the Department of Corrections' Office

12  of Community Corrections in Tallahassee. The Parole Commission

13  must also be immediately notified of any releases of a

14  sexually violent predator who has an active or pending term of

15  parole, conditional release, or other post-prison release

16  supervision that is administered by the Parole Commission.

17         Section 22.  Section 916.47, Florida Statutes, 1998

18  Supplement, is transferred, renumbered as section 394.927,

19  Florida Statutes, and amended to read:

20         394.927 916.47  Escape while in lawful custody; notice

21  to victim; notice to the Department of Corrections and Parole

22  Commission.--

23         (1)  A person who is held in lawful custody pursuant to

24  a judicial finding of probable cause under s. 394.915 s.

25  916.35 or pursuant to a commitment as a sexually violent

26  predator under s. 394.916 s. 916.36 and who escapes or

27  attempts to escape while in such custody commits a felony of

28  the second degree, punishable as provided in s. 775.082, s.

29  775.083, or s. 775.084.

30         (2)  If a person who is held in custody pursuant to a

31  finding of probable cause or commitment as a sexually violent

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  1  predator escapes while in custody, the department shall

  2  immediately notify the victim in accordance with s. 394.926.

  3  The state attorney that filed the petition for civil

  4  commitment of the escapee must also be immediately notified by

  5  the department. If the escapee has an active or pending term

  6  of probation, community control, parole, conditional release,

  7  or other court-ordered or post-prison release supervision, the

  8  department shall also immediately notify the Department of

  9  Corrections' Office of Community Corrections in Tallahassee.

10  The Parole Commission shall also be immediately notified of an

11  escape if the escapee has an active or pending term of parole,

12  conditional release, or other post-prison release supervision

13  that is administered by the Parole Commission.

14         Section 23.  Section 916.48, Florida Statutes, 1998

15  Supplement, is transferred, renumbered as section 394.928,

16  Florida Statutes, and amended to read:

17         394.928 916.48  Subsistence fees and costs of

18  treatment.--

19         (1)  In recognition of the fact that persons committed

20  under this part ss. 916.31-916.49 may have sources of income

21  and assets, which may include bank accounts, inheritances,

22  real estate, social security payments, veteran's payments, and

23  other types of financial resources, and in recognition of the

24  fact that the daily subsistence cost and costs of treatment of

25  persons committed under this part ss. 916.31-916.49 are a

26  burden on the taxpayers of the state, each person so committed

27  shall:

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

29  disclose all revenue or assets to the department.

30         (b)  Pay from such income and assets, except where such

31  income is exempt by state or federal law, all or a fair

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  1  portion of the person's daily subsistence and treatment costs,

  2  based upon the person's ability to pay, the liability or

  3  potential liability of the person to the victim or the

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

  5  her dependents.

  6         (2)(a)  Any person who is directed to pay all or a fair

  7  portion of daily subsistence and treatment costs is entitled

  8  to reasonable advance notice of the assessment and shall be

  9  afforded an opportunity to present reasons for opposition to

10  the assessment.

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

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

13  against the estate of the person.

14         Section 24.  Section 916.49, Florida Statutes, 1998

15  Supplement, is transferred, renumbered as section 394.929,

16  Florida Statutes, and amended to read:

17         394.929 916.49  Department of Children and Family

18  Services responsible for costs.--The Department of Children

19  and Family Services is responsible for all costs relating to

20  the evaluation and treatment of persons committed to the

21  department's custody as sexually violent predators. A county

22  is not obligated to fund costs for psychological examinations,

23  expert witnesses, court-appointed counsel, or other costs

24  required by this part ss. 916.31-916.49. Other costs for

25  psychological examinations, expert witnesses, and

26  court-appointed counsel required by this part ss.

27  916.31-916.49 shall be paid from state funds appropriated by

28  general law.

29         Section 25.  Section 394.930, Florida Statutes, is

30  created to read:

31

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  1         394.930  Authority to adopt rules.--The Department of

  2  Children and Family Services shall adopt rules for:

  3         (1)  Procedures that must be followed by members of the

  4  multidisciplinary teams when assessing and evaluating persons

  5  subject to this part;

  6         (2)  The criteria that must exist in order for a

  7  multidisciplinary team to recommend to a state attorney that a

  8  petition should be filed to involuntarily commit a person

  9  under this part. The criteria shall include, but are not

10  limited to, whether:

11         (a)  The person has a propensity to engage in future

12  acts of sexual violence;

13         (b)  The person should be placed in a secure,

14  residential facility; and

15         (c)  The person needs long-term treatment and care.

16         (3)  The designation of secure facilities for sexually

17  violent predators who are subject to involuntary commitment

18  under this part;

19         (4)  The components of the basic treatment plan for all

20  committed persons under this part;

21         (5)  The protocol to inform a person that he or she is

22  being examined to determine whether he or she is a sexually

23  violent predator under this part.

24         Section 26.  Beginning July 1, 1999, the Department of

25  Corrections shall collect information and compile quarterly

26  reports with statistics profiling inmates released the

27  previous quarter who fit the criteria and were referred to the

28  Department of Children and Family Services pursuant to this

29  act. The quarterly reports must be produced beginning October

30  1, 1999. At a minimum, the information that must be collected

31  and compiled for inclusion in the reports includes: whether

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  1  the qualifying offense was the current offense or the prior

  2  offense; the most serious sexual offense; the total number of

  3  distinct victims of the sexual offense; whether the victim was

  4  known to the offender; whether the sexual act was consensual;

  5  whether the sexual act involved multiple victims; whether

  6  direct violence was involved in the sexual offense; the age of

  7  each victim at the time of the offense; the age of the

  8  offender at the time of the first sexual offense; whether a

  9  weapon was used; length of time since the most recent sexual

10  offense; and the total number of prior and current

11  sexual-offense convictions.

12         Section 27.  (1)  The Office of Program Policy Analysis

13  and Government Accountability shall conduct a study on the

14  implementation of this act by the Department of Children and

15  Family Services and shall report its findings and make

16  recommendations to the Legislature by March 1, 2000.

17         (2)  The study must include, but need not be limited

18  to, the following issues:

19         (a)  The procedures used in assigning persons to a

20  multidisciplinary team and in assigning a team to a case for

21  evaluation and assessment.

22         (b)  The activities performed by multidisciplinary

23  teams in conducting evaluations and assessments.

24         (c)  The average length of time between the referral of

25  a case by an agency with jurisdiction to the Department of

26  Children and Family Services and the department's

27  recommendation to the state attorney to file a petition or its

28  decision not to make a recommendation to the state attorney to

29  file a petition.

30         (d)  The number of cases referred to the Department of

31  Children and Family Services, the number of cases it

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  1  recommends to the state attorney for filing, and the number of

  2  cases that did not result in a recommendation to the state

  3  attorney to file a petition.

  4         (e)  A profile of the number of cases and the location

  5  of cases that are assigned to the persons who are serving as

  6  members of the multidisciplinary teams.

  7         (f)  From each of a sample of persons who are serving

  8  as members of a multidisciplinary team, the education,

  9  professional qualifications, prior work experience, prior and

10  current testimonies as an expert in criminal cases by type of

11  case, and number of cases for which he or she is currently

12  serving as a member of a multidisciplinary team.

13         Section 28.  This act shall take effect upon becoming a

14  law.

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                          CS/CS/SB 2192

  3

  4  Clarifies that public defenders are specifically designated as
    legal counsel for indigent persons who are subject to
  5  proceedings under the Jimmy Ryce Act.

  6  The definition of "total confinement" would be clarified.
    Persons who qualify for a referral to the Department of
  7  Children and Families because of a conviction for a sexually
    violent offense, may be temporarily housed in a local
  8  detention facility or other secure facility while technically
    serving an incarcerative sentence under the custody of the
  9  Department of Corrections (DOC) or Department of Juvenile
    Justice (DJJ).
10
    Explicitly states that a personal interview with the person
11  subject to the sexually violent predator civil commitment law
    is required. A personal interview would be offered to any
12  person who meets the definition of a sexually violent predator
    and is recommended by a multidisciplinary team to the state
13  attorney to be the subject of a petition for civil commitment.

14  Requires that the multidisciplinary team must evaluate and
    prepare a written assessment as to whether the person meets
15  the definition of a sexually violent predator and that the
    written recommendation must be provided by the Department of
16  Children and Family Services and State Attorney.

17  The court would expressly be allowed to consider evidence of
    prior behavior by a person who is subject to proceedings for
18  involuntary civil commitment if the evidence is relevant to
    proving the person is a sexually violent predator.
19
    States that hearsay evidence would be admissible unless the
20  court finds that such evidence is not reliable.

21  The evidence section created in this bill would clarify that
    the administrative rules promulgated pursuant to this bill are
22  not to be construed as creating an evidentiary predicate for
    the admission of any physical evidence or testimony in any
23  judicial proceedings under the Jimmy Ryce Act.

24  Places the state and the respondent (a person who is subject
    to possible civil commitment) on the same level with regard to
25  offering expert testimony.

26

27

28

29

30

31

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