Senate Bill 2192e2

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







    CS for CS for CS for SB 2192                  Second Engrossed



  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


                                  1

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






    CS for CS for CS for SB 2192                  Second Engrossed



  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


                                  2

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






    CS for CS for CS for SB 2192                  Second Engrossed



  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; requiring

16         the Criminal Justice Estimating Conference to

17         continually develop official projections

18         relating to the number of discharges and

19         commitments; providing an effective date.

20

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

22

23         Section 1.  The Division of Statutory Revision is

24  requested to designate sections 394.910-394.930, Florida

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

26  entitle such part as "Involuntary Civil Commitment of Sexually

27  Violent Predators."

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

29  Statutes, is amended to read:

30         27.51  Duties of public defender.--

31


                                  3

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






    CS for CS for CS for SB 2192                  Second Engrossed



  1         (1)  The public defender shall represent, without

  2  additional compensation, any person who is determined by the

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

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

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

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

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

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

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

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

11  or she is convicted;

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

13  petition filed before a circuit court; or

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

15  involuntarily placed as a mentally ill person or sexually

16  violent predator or involuntarily admitted to residential

17  services as a person with developmental disabilities. However,

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

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

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

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

22  an administrative proceeding challenging a rule under chapter

23  120, unless specifically authorized by statute.

24         Section 3.  Section 916.31, Florida Statutes, 1998

25  Supplement, is transferred, renumbered as section 394.910,

26  Florida Statutes, and amended to read:

27         394.910 916.31  Legislative findings and intent.--The

28  Legislature finds that a small but extremely dangerous number

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

30  disease or defect that renders them appropriate for

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


                                  4

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






    CS for CS for CS for SB 2192                  Second Engrossed



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

  2  short-term treatment to individuals with serious mental

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

  4  to persons appropriate for civil commitment under the Baker

  5  Act, sexually violent predators generally have antisocial

  6  personality features which are unamenable to existing mental

  7  illness treatment modalities, and those features render them

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

  9  Legislature further finds that the likelihood of sexually

10  violent predators engaging in repeat acts of predatory sexual

11  violence is high. The existing involuntary commitment

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

13  mentally ill persons are inadequate to address the risk these

14  sexually violent predators pose to society. The Legislature

15  further finds that the prognosis for rehabilitating sexually

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

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

18  modalities for this population are very different from the

19  traditional treatment modalities for people appropriate for

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

21  the Legislature to create a civil commitment procedure for the

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

23         Section 4.  Section 394.911, Florida Statutes, is

24  created to read:

25         394.911  Legislative intent.--The Legislature intends

26  that persons who are subject to the civil commitment procedure

27  for sexually violent predators under this part be subject to

28  the procedures established in this part and not to the

29  provisions of part I of this chapter. Less restrictive

30  alternatives are not applicable to cases initiated under this

31  part.


                                  5

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






    CS for CS for CS for SB 2192                  Second Engrossed



  1         Section 5.  Section 916.32, Florida Statutes, 1998

  2  Supplement, is transferred, renumbered as section 394.912,

  3  Florida Statutes, and amended to read:

  4         394.912 916.32  Definitions.--As used in this part ss.

  5  916.31-916.49, the term:

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

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

  8  serving a sentence in the custody of the Department of

  9  Corrections, a person who was adjudicated delinquent and is

10  committed to the custody of the Department of Juvenile

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

12  custody of the Department of Children and Family Services upon

13  an adjudication of not guilty by reason of insanity.

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

15  person who has been:

16         (a)  Adjudicated guilty of a sexually violent offense

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

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

19  sexually violent offense; or

20         (c)  Adjudicated delinquent of a sexually violent

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

22  contendere.

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

24  Family Services.

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

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

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

28  and safety of others.

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

30  affecting a person's emotional or volitional capacity which

31  predisposes the person to commit sexually violent offenses.


                                  6

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






    CS for CS for CS for SB 2192                  Second Engrossed



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

  2  older who is a potential or actual subject of proceedings

  3  under this part ss. 916.31-916.49.

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

  5  of Children and Family Services.

  6         (8)(7)  "Sexually motivated" means that one of the

  7  purposes for which the defendant committed the crime was for

  8  sexual gratification.

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

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

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

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

13  in the course of that offense, committing:

14         1.  Sexual battery; or

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

16  or in the presence of the child;

17         (c)  Committing the offense of false imprisonment upon

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

19  offense, committing:

20         1.  Sexual battery; or

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

22  or in the presence of the child;

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

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

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

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

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

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

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

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

31  federal conviction or conviction in another state for a felony


                                  7

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






    CS for CS for CS for SB 2192                  Second Engrossed



  1  offense that in this state would be a sexually violent

  2  offense; or

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

  4  sentencing for the offense or subsequently during civil

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

  6  been determined beyond a reasonable doubt to have been

  7  sexually motivated.

  8         (10)(9)  "Sexually violent predator" means any person

  9  who:

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

11  and

12         (b)  Suffers from a mental abnormality or personality

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

14  sexual violence if not confined in a secure facility for

15  long-term control, care, and treatment.

16         (11)(10)  "Total confinement" means that the person is

17  currently being held in any physically secure facility being

18  operated or contractually operated for the Department of

19  Corrections, the Department of Juvenile Justice, or the

20  Department of Children and Family Services. A person shall

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

22  provisions under this part if the person is serving an

23  incarcerative sentence under the custody of the Department of

24  Corrections or the Department of Juvenile Justice and is being

25  held in any other secure facility for any reason.

26         Section 6.  Section 916.33, Florida Statutes, 1998

27  Supplement, is transferred, renumbered as section 394.913,

28  Florida Statutes, and amended to read:

29         394.913 916.33  Notice to state attorney and

30  multidisciplinary team of release of sexually violent

31


                                  8

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






    CS for CS for CS for SB 2192                  Second Engrossed



  1  predator; establishing multidisciplinary teams; information to

  2  be provided to multidisciplinary teams team.--

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

  4  been convicted of a sexually violent offense shall give

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

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

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

  8  never been convicted of a sexually violent offense in this

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

10  another state or in federal court, the agency with

11  jurisdiction shall give written notice to the

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

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

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

15  pursuant to interstate compact and has a prior or current

16  conviction for a sexually violent offense, the agency with

17  jurisdiction shall give written notice to the

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

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

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

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

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

23  multidisciplinary team and the state attorney at least 365 180

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

25  at least 90 days before:

26         (a)  The anticipated release from total confinement of

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

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

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

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

31  return to confinement; or


                                  9

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






    CS for CS for CS for SB 2192                  Second Engrossed



  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.

31


                                  10

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






    CS for CS for CS for SB 2192                  Second Engrossed



  1         (3)(a)  The secretary or his or her designee of

  2  Children and Family Services shall establish a

  3  multidisciplinary team or teams, which shall include two

  4  licensed psychiatrists or psychologists, or one licensed

  5  psychiatrist and one licensed psychologist, designated by the

  6  Secretary of Children and Family Services.

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

  8  two licensed psychiatrists or psychologists or one licensed

  9  psychiatrist and one licensed psychologist. The

10  multidisciplinary team shall assess and evaluate each person

11  referred to the team. The assessment and evaluation shall

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

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

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

15  whether such person is a sexually violent predator.

16         (c)  Before recommending that a person meets the

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

18  offered a personal interview. If the person agrees to

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

20  the team who is a licensed psychiatrist or psychologist must

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

22  refuses to fully participate in a personal interview, the

23  multidisciplinary team may proceed with its recommendation

24  without a personal interview of the person.

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

26  counsel to the multidisciplinary team.

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

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

29  person meets the definition of a sexually violent predator and

30  a written recommendation, which shall be provided to provide

31  the state attorney with its written assessment and


                                  11

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






    CS for CS for CS for SB 2192                  Second Engrossed



  1  recommendation. The written recommendation shall be provided

  2  by the Department of Children and Family Services and shall

  3  include the written report of the multidisciplinary team.

  4

  5  The provisions of this section are not jurisdictional, and

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

  7  attorney from proceeding against a person otherwise subject to

  8  the provisions of this part.

  9         Section 7.  Section 394.9135, Florida Statutes, is

10  created to read:

11         394.9135  Immediate releases from total confinement;

12  transfer of person to department; time limitations on

13  assessment, notification, and filing petition to hold in

14  custody; filing petition after release.--

15         (1)  If the anticipated release from total confinement

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

17  offense becomes immediate for any reason, the agency with

18  jurisdiction shall upon immediate release from total

19  confinement transfer that person to the custody of the

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

21  appropriate secure facility.

22         (2)  Within 72 hours after transfer, the

23  multidisciplinary team shall assess whether the person meets

24  the definition of a sexually violent predator. If the

25  multidisciplinary team determines that the person does not

26  meet the definition of a sexually violent predator, that

27  person shall be immediately released. If the multidisciplinary

28  team determines that the person meets the definition of a

29  sexually violent predator, the team shall provide the state

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

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


                                  12

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






    CS for CS for CS for SB 2192                  Second Engrossed



  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


                                  13

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






    CS for CS for CS for SB 2192                  Second Engrossed



  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 court may conduct an adversarial probable cause

25  hearing if it determines such hearing is necessary state

26  attorney may further petition the court for an adversarial

27  probable cause hearing. The court shall only consider whether

28  to have an adversarial probable cause hearing in cases where

29  the failure to begin a trial is not the result of any delay

30  caused by the respondent. The person shall be provided with

31


                                  14

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






    CS for CS for CS for SB 2192                  Second Engrossed



  1  notice of, and an opportunity to appear in person at, an

  2  adversarial hearing. At this hearing, the judge shall:

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

  4  and the state attorney; and

  5         (b)  Determine whether probable cause exists to believe

  6  that the person is a sexually violent predator.

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

  8  person has the right to:

  9         (a)  Be represented by counsel;

10         (b)  Present evidence;

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

12  the person; and

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

14  court file.

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

16  probable cause to believe that the person is a sexually

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

18  be held in an appropriate secure facility upon the expiration

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

20  petition was filed for an evaluation by a mental health

21  professional.

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

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

24  held in custody in a secure facility without opportunity for

25  pretrial release or release during the trial proceedings.

26         Section 10.  Section 394.9155, Florida Statutes, is

27  created to read:

28         394.9155  Rules of procedure and evidence.--In all

29  civil commitment proceedings for sexually violent predators

30  under this part, the following shall apply.

31


                                  15

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






    CS for CS for CS for SB 2192                  Second Engrossed



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

  2  otherwise specified in this part.

  3         (2)  The Florida Rules of Evidence apply unless

  4  otherwise specified in this part.

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

  6  90.503 does not exist or apply for communications relevant to

  7  an issue in proceedings to involuntarily commit a person under

  8  this part.

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

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

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

12  sexually violent predator.

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

14  the multidisciplinary team or reports produced on behalf of

15  the multidisciplinary team, is admissible in proceedings under

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

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

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

19  part.

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

21  constitute:

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

23  physical evidence or testimony;

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

25  presentation of any physical evidence or testimony in judicial

26  proceedings under this part; or

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

28  needs to allege or prove in judicial proceedings under this

29  part.

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

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


                                  16

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






    CS for CS for CS for SB 2192                  Second Engrossed



  1  members of the multidisciplinary team or any state mental

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

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

  4  multidisciplinary team and any state mental health experts to

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

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

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

  8  testifying concerning mental health tests, evaluations, or

  9  examinations of the person.

10

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

12  constitute a defense in any judicial proceedings under this

13  part.

14         Section 11.  Section 916.36, Florida Statutes, 1998

15  Supplement, is transferred, renumbered as section 394.916,

16  Florida Statutes, and amended to read:

17         394.916 916.36  Trial; counsel and experts; indigent

18  persons; jury.--

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

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

21  the person is a sexually violent predator.

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

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

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

25  will not be substantially prejudiced.

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

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

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

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

30  counsel to assist the person.

31


                                  17

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






    CS for CS for CS for SB 2192                  Second Engrossed



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

  2  examination under this part chapter, the person also may

  3  retain experts or mental health professionals to perform an

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

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

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

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

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

  9  request, shall determine whether such an examination is

10  necessary. If the court determines that an examination is

11  necessary, the court shall appoint a mental health

12  professional and determine the reasonable compensation for the

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

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

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

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

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

18  be to the court.

19         Section 12.  Section 916.37, Florida Statutes, 1998

20  Supplement, is transferred, renumbered as section 394.917,

21  Florida Statutes, and amended to read:

22         394.917 916.37  Determination; commitment procedure;

23  mistrials; housing; counsel and costs in indigent appellate

24  cases.--

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

26  convincing evidence whether the person is a sexually violent

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

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

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

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

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


                                  18

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






    CS for CS for CS for SB 2192                  Second Engrossed



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

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

  3  proceed according to the provisions of this part ss.

  4  916.31-916.49. Any retrial must occur within 90 days after the

  5  previous trial, unless the subsequent proceeding is continued

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

  7  determination that a person is a sexually violent predator may

  8  be appealed.

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

10  a sexually violent predator, upon the expiration of the

11  incarcerative portion of all criminal sentences and

12  disposition of any detainers other than detainers for

13  deportation by the United States Immigration and

14  Naturalization Service, the person shall be committed to the

15  custody of the Department of Children and Family Services for

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

17  mental abnormality or personality disorder has so changed that

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

19  sexually violent predators who are committed for control,

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

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

22  segregated from patients who are not committed under this

23  section.

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

25  person was determined to be a sexually violent predator shall

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

27  defender may request the public defender who handles criminal

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

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

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

31  the court shall appoint other counsel, who shall be


                                  19

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






    CS for CS for CS for SB 2192                  Second Engrossed



  1  compensated at a rate not less than that provided for

  2  appointed counsel in criminal cases. Filing fees for indigent

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

  4  such appeals, including the amounts paid for records,

  5  transcripts, and compensation of appointed counsel, shall be

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

  7  are appropriated for such purposes.

  8         Section 13.  Section 916.38, Florida Statutes, 1998

  9  Supplement, is transferred, renumbered as section 394.918,

10  Florida Statutes, and amended to read:

11         394.918 916.38  Examinations; notice; court hearings

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

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

14  916.31-916.49 shall have an examination of his or her mental

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

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

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

18  professional to examine the person. Such a professional shall

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

20  of the examination shall be provided to the court that

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

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

23  person's status.

24         (2)  The department shall provide the person with

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

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

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

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

29  the notice and waiver form to the court.

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

31  determine whether there is probable cause to believe that the


                                  20

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






    CS for CS for CS for SB 2192                  Second Engrossed



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

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

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

  4  right to be represented by counsel at the probable cause

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

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

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

  8  the court on the issue.

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

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

11  constitutional protections afforded the person at the initial

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

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

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

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

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

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

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

19  violence.

20         Section 14.  Section 916.39, Florida Statutes, 1998

21  Supplement, is transferred, renumbered as section 394.919,

22  Florida Statutes, and amended to read:

23         394.919 916.39  Authorized petition for release;

24  procedure.--

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

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

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

28  conditionally discharged, the secretary or the secretary's

29  designee shall authorize the person to petition the court for

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

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


                                  21

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






    CS for CS for CS for SB 2192                  Second Engrossed



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

  2  continued for good cause.

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

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

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

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

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

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

  9  likely to engage in acts of sexual violence.

10         Section 15.  Section 916.40, Florida Statutes, 1998

11  Supplement, is transferred, renumbered as section 394.920,

12  Florida Statutes, and amended to read:

13         394.920 916.40  Petition for release.--Sections

14  916.31-916.49 do not prohibit A person is not prohibited from

15  filing a petition for discharge at any time after commitment

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

17  such a petition without the approval of the secretary of

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

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

20  subsequent petition shall be denied unless the petition

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

22  condition has so changed that a probable cause hearing is

23  warranted.

24         Section 16.  Section 916.41, Florida Statutes, 1998

25  Supplement, is transferred, renumbered as section 394.921,

26  Florida Statutes, and amended to read:

27         394.921 916.41  Release of records to agencies,

28  multidisciplinary teams, and state attorney.--

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

30  information and records that are otherwise confidential or

31  privileged shall be released to the agency with having


                                  22

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






    CS for CS for CS for SB 2192                  Second Engrossed



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

  2  attorney for the purpose of meeting the notice requirements of

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

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

  5  agency, or entity receiving information under this section

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

  7  119.07(1) must maintain the confidentiality of that

  8  information. Such information does not lose its confidential

  9  status due to its release under this section.

10         (2)  Psychological or psychiatric reports, drug and

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

12  impact statements that have been submitted to the court or

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

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

15  only pursuant to a court order.

16         Section 17.  Section 916.42, Florida Statutes, 1998

17  Supplement, is transferred, renumbered as section 394.922,

18  Florida Statutes, and amended to read:

19         394.922 916.42  Constitutional requirements.--The

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

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

22  constitutional requirements.

23         Section 18.  Section 916.43, Florida Statutes, 1998

24  Supplement, is transferred, renumbered as section 394.923,

25  Florida Statutes, and amended to read:

26         394.923 916.43  Immunity from civil liability.--The

27  agency with jurisdiction and its officers and employees; the

28  department and its officers and employees; members of the

29  multidisciplinary team; the state attorney and the state

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

31  care, and treatment of sexually violent persons committed


                                  23

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






    CS for CS for CS for SB 2192                  Second Engrossed



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

  2  liability for good faith conduct under this part ss.

  3  916.31-916.49.

  4         Section 19.  Section 916.44, Florida Statutes, 1998

  5  Supplement, is transferred, renumbered as section 394.924,

  6  Florida Statutes, and amended to read:

  7         394.924 916.44  Severability.--If any section,

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

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

10  jurisdiction, the remaining portions of this part ss.

11  916.31-916.49 shall be unaffected because the Legislature

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

13  are severable from each other.

14         Section 20.  Section 916.45, Florida Statutes, 1998

15  Supplement, is transferred, renumbered as section 394.925,

16  Florida Statutes, and amended to read:

17         394.925 916.45  Applicability of act.--This part

18  applies Sections 916.31-916.49 apply to all persons currently

19  in custody who have been convicted of a sexually violent

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

21  916.32(8), as well as to all persons convicted of a sexually

22  violent offense and sentenced to total confinement in the

23  future.

24         Section 21.  Section 916.46, Florida Statutes, 1998

25  Supplement, is transferred, renumbered as section 394.926,

26  Florida Statutes, and amended to read:

27         394.926 916.46  Notice to victims of release of persons

28  committed as sexually violent predators; notice to Department

29  of Corrections and Parole Commission.--

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

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


                                  24

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






    CS for CS for CS for SB 2192                  Second Engrossed



  1  sexually violent predator to any victim of the committed

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

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

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

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

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

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

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

  9  pursuant to this part ss. 916.31-916.49.

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

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

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

13  release supervision is released from custody, the department

14  must immediately notify the Department of Corrections' Office

15  of Community Corrections in Tallahassee. The Parole Commission

16  must also be immediately notified of any releases of a

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

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

19  supervision that is administered by the Parole Commission.

20         Section 22.  Section 916.47, Florida Statutes, 1998

21  Supplement, is transferred, renumbered as section 394.927,

22  Florida Statutes, and amended to read:

23         394.927 916.47  Escape while in lawful custody; notice

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

25  Commission.--

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

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

28  916.35 or pursuant to a commitment as a sexually violent

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

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

31


                                  25

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






    CS for CS for CS for SB 2192                  Second Engrossed



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

  2  775.083, or s. 775.084.

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

  4  finding of probable cause or commitment as a sexually violent

  5  predator escapes while in custody, the department shall

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

  7  The state attorney that filed the petition for civil

  8  commitment of the escapee must also be immediately notified by

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

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

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

12  department shall also immediately notify the Department of

13  Corrections' Office of Community Corrections in Tallahassee.

14  The Parole Commission shall also be immediately notified of an

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

16  conditional release, or other post-prison release supervision

17  that is administered by the Parole Commission.

18         Section 23.  Section 916.48, Florida Statutes, 1998

19  Supplement, is transferred, renumbered as section 394.928,

20  Florida Statutes, and amended to read:

21         394.928 916.48  Subsistence fees and costs of

22  treatment.--

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

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

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

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

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

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

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

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

31  shall:


                                  26

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






    CS for CS for CS for SB 2192                  Second Engrossed



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

  2  disclose all revenue or assets to the department.

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

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

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

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

  7  potential liability of the person to the victim or the

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

  9  her dependents.

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

11  portion of daily subsistence and treatment costs is entitled

12  to reasonable advance notice of the assessment and shall be

13  afforded an opportunity to present reasons for opposition to

14  the assessment.

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

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

17  against the estate of the person.

18         Section 24.  Section 916.49, Florida Statutes, 1998

19  Supplement, is transferred, renumbered as section 394.929,

20  Florida Statutes, and amended to read:

21         394.929 916.49  Department of Children and Family

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

23  and Family Services is responsible for all costs relating to

24  the evaluation and treatment of persons committed to the

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

26  is not obligated to fund costs for psychological examinations,

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

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

29  psychological examinations, expert witnesses, and

30  court-appointed counsel required by this part ss.

31


                                  27

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






    CS for CS for CS for SB 2192                  Second Engrossed



  1  916.31-916.49 shall be paid from state funds appropriated by

  2  general law.

  3         Section 25.  Section 394.930, Florida Statutes, is

  4  created to read:

  5         394.930  Authority to adopt rules.--The Department of

  6  Children and Family Services shall adopt rules for:

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

  8  multidisciplinary teams when assessing and evaluating persons

  9  subject to this part;

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

11  multidisciplinary team to recommend to a state attorney that a

12  petition should be filed to involuntarily commit a person

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

14  limited to, whether:

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

16  acts of sexual violence;

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

18  residential facility; and

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

20         (3)  The designation of secure facilities for sexually

21  violent predators who are subject to involuntary commitment

22  under this part;

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

24  committed persons under this part;

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

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

27  violent predator under this part.

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

29  Corrections shall collect information and compile quarterly

30  reports with statistics profiling inmates released the

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


                                  28

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






    CS for CS for CS for SB 2192                  Second Engrossed



  1  Department of Children and Family Services pursuant to this

  2  act. The quarterly reports must be produced beginning October

  3  1, 1999. At a minimum, the information that must be collected

  4  and compiled for inclusion in the reports includes: whether

  5  the qualifying offense was the current offense or the prior

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

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

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

  9  whether the sexual act involved multiple victims; whether

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

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

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

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

14  offense; and the total number of prior and current

15  sexual-offense convictions.

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

17  and Government Accountability shall conduct a study on the

18  implementation of this act by the Department of Children and

19  Family Services and shall report its findings and make

20  recommendations to the Legislature by March 1, 2000.

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

22  to, the following issues:

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

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

25  evaluation and assessment.

26         (b)  The activities performed by multidisciplinary

27  teams in conducting evaluations and assessments.

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

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

30  Children and Family Services and the department's

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


                                  29

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






    CS for CS for CS for SB 2192                  Second Engrossed



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

  2  file a petition.

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

  4  Children and Family Services, the number of cases it

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

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

  7  attorney to file a petition.

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

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

10  members of the multidisciplinary teams.

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

12  as members of a multidisciplinary team, the education,

13  professional qualifications, prior work experience, prior and

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

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

16  serving as a member of a multidisciplinary team.

17         Section 28.  The Criminal Justice Estimating

18  Conference, created under chapter 216, Florida Statutes, shall

19  continually develop official information relating to the

20  number of eligible discharges and the projected number of

21  civil commitments pursuant to the civil proceedings provided

22  in the Jimmy Ryce Act of 1998 under part V of chapter 394,

23  Florida Statutes.

24         Section 29.  This act shall take effect upon becoming a

25  law.

26

27

28

29

30

31


                                  30