Senate Bill 2212

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    Florida Senate - 2000                                  SB 2212

    By the Committee on Criminal Justice





    307-372C-00

  1                      A bill to be entitled

  2         An act relating to the Department of

  3         Corrections; providing legislative intent with

  4         respect to the release of information to the

  5         public which concerns persons under community

  6         supervision by the Department of Corrections;

  7         requiring the Department of Corrections to

  8         update such information; providing requirements

  9         with respect to the equipment provided to

10         probation officers by the Department of

11         Corrections; requiring the department to submit

12         an information technology plan to the

13         Legislature; amending s. 121.021, F.S.;

14         including certain correctional probation

15         officers within the Special Risk Class of that

16         system; amending s. 121.0515, F.S.; specifying

17         criteria for inclusion of correctional

18         probation officers in that class; providing for

19         inclusion of probation and parole circuit and

20         deputy circuit administrators in that class;

21         providing a finding of important state

22         interest; amending s. 775.089, F.S.; requiring

23         that payments collected from offenders be

24         applied toward victim restitution before

25         satisfying other financial obligations of the

26         offender; amending s. 948.01, F.S.; providing

27         that an offender who is convicted of or has

28         adjudication withheld for specified offenses

29         may not be placed on probation or community

30         control; prohibiting the court from continuing

31         community control or probation for an offender

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  1         whom the court finds has committed an offense

  2         that is the same or similar to the original

  3         offense; amending s. 948.03, F.S.; providing

  4         additional requirements for offenders placed in

  5         community control; providing requirements for

  6         polygraph examinations; amending s. 948.032,

  7         F.S.; requiring that restitution be a condition

  8         of community control; providing requirements

  9         for the court in determining whether to revoke

10         an offender's community control; amending s.

11         948.04, F.S.; providing requirements for the

12         supervision of offenders placed on community

13         control; amending s. 948.06, F.S.; prohibiting

14         the court from continuing community control or

15         probation for an offender whom the court finds

16         has committed an offense that is the same or

17         similar to the original offense; amending s.

18         948.11, F.S.; requiring the Department of

19         Corrections to electronically monitor

20         offenders; providing an effective date.

21

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

23

24         Section 1.  It is the intent of the Legislature to make

25  information regarding offenders who are under community

26  supervision by the Department of Corrections easily accessible

27  to the public. For offenders who are being supervised in the

28  community by the department, except persons being supervised

29  under a pretrial intervention program, the Department of

30  Corrections must compile and provide the names, current

31  addresses, and offense convictions, regardless of

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  1  adjudication, in a format that is reasonably accessible to the

  2  public. The department shall also make the photographs of such

  3  offenders accessible to the public. Any information that is

  4  provided to the public must be updated within 30 days after

  5  the department becomes aware of any change in the information

  6  concerning or the status of an offender. The provision of such

  7  information must be accomplished within existing resources of

  8  the department. Upon the discharge of an offender from

  9  supervision for any reason, the department shall remove the

10  information from the compilation of information concerning

11  offenders that are under community supervision by the

12  Department of Corrections within 30 days after the department

13  becomes aware of the discharge.

14         Section 2.  Within existing resources and as funding is

15  provided, the Department of Corrections should provide

16  correctional probation officers with the use of radios and

17  cellular telephones to enhance the adequacy of supervision of

18  offenders and to protect officer safety when it is deemed

19  appropriate and as such equipment is available, as delineated

20  by rules adopted by the department.

21         Section 3.  A probation officer who requests to carry a

22  firearm while on duty shall carry a firearm issued by the

23  Department of Corrections. Such officers must be qualified to

24  carry the department-issued firearms as required by the

25  Criminal Justice Standards and Training Commission and the

26  Department of Corrections. The Department of Corrections shall

27  begin efforts to implement this section on its effective date,

28  but shall fully implement this section by July 1, 2002. Until

29  this section has been fully implemented, the Department of

30  Corrections may allow probation officers to carry firearms in

31  accordance with the laws, administrative rules, or

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  1  departmental policies in existence at the time this section

  2  takes effect.

  3         Section 4.  The Department of Corrections shall submit

  4  to the Legislature an information technology plan by March 1,

  5  2001, identifying the current and future needs for computer

  6  equipment, software, and other equipment that can increase the

  7  efficiency of probation officers.

  8         Section 5.  Paragraph (b) of subsection (15) of section

  9  121.021, Florida Statutes, is amended to read:

10         121.021  Definitions.--The following words and phrases

11  as used in this chapter have the respective meanings set forth

12  unless a different meaning is plainly required by the context:

13         (15)

14         (b)  Effective October 1, 1978, "special risk member"

15  means a member of the Florida Retirement System who is

16  designated as a special risk member by the division in

17  accordance with s. 121.0515.  Such member must be employed as

18  a law enforcement officer, a firefighter, or a correctional

19  officer and must meet certain other special criteria as set

20  forth in s. 121.0515. Effective January 1, 2001, the term

21  "special risk member" also includes any member who is employed

22  as a correctional probation officer and meets the special

23  criteria set forth in s. 121.0515(2)(e).

24         Section 6.  Subsection (2) of section 121.0515, Florida

25  Statutes, is amended to read:

26         121.0515  Special risk membership; criteria;

27  designation and removal of classification; credits for past

28  service and prior service; retention of special risk normal

29  retirement date.--

30         (2)  CRITERIA.--A member, to be designated as a special

31  risk member, must meet the following criteria:

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  1         (a)  The member must be employed as a law enforcement

  2  officer and be certified, or required to be certified, in

  3  compliance with s. 943.1395; however, sheriffs and elected

  4  police chiefs shall be excluded from meeting the certification

  5  requirements of this paragraph.  In addition, the member's

  6  duties and responsibilities must include the pursuit,

  7  apprehension, and arrest of law violators or suspected law

  8  violators; or the member must be an active member of a bomb

  9  disposal unit whose primary responsibility is the location,

10  handling, and disposal of explosive devices; or the member

11  must be the supervisor or command officer of a member or

12  members who have such responsibilities. However,

13  administrative support personnel, including, but not limited

14  to, those whose primary duties and responsibilities are in

15  accounting, purchasing, legal, and personnel, shall not be

16  included;

17         (b)  The member must be employed as a firefighter and

18  be certified, or required to be certified, in compliance with

19  s. 633.35 and be employed solely within the fire department of

20  the employer or agency of state government.  In addition, the

21  member's duties and responsibilities must include on-the-scene

22  fighting of fires or direct supervision of firefighting units,

23  or the member must be the supervisor or command officer of a

24  member or members who have such responsibilities; provided,

25  however, administrative support personnel, including, but not

26  limited to, those whose primary duties and responsibilities

27  are in accounting, purchasing, legal, and personnel, shall not

28  be included;

29         (c)  The member must be employed as a correctional

30  officer and be certified, or required to be certified, in

31  compliance with s. 943.1395.  In addition, the member's

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  1  primary duties and responsibilities must be the custody, and

  2  physical restraint when necessary, of prisoners or inmates

  3  within a prison, jail, or other criminal detention facility,

  4  or while on work detail outside the facility, or while being

  5  transported; or the member must be the supervisor or command

  6  officer of a member or members who have such responsibilities;

  7  provided, however, administrative support personnel,

  8  including, but not limited to, those whose primary duties and

  9  responsibilities are in accounting, purchasing, legal, and

10  personnel, shall not be included; however, superintendents and

11  assistant superintendents shall participate in the Special

12  Risk Class; or

13         (d)  The member must be employed by a licensed Advance

14  Life Support (ALS) or Basic Life Support (BLS) employer as an

15  emergency medical technician or a paramedic and be certified

16  in compliance with s. 401.27.  In addition, the member's

17  primary duties and responsibilities must include on-the-scene

18  emergency medical care.  However, administrative support

19  personnel, including, but not limited to, those whose primary

20  responsibilities are in accounting, purchasing, legal, and

21  personnel, shall not be included; or.

22         (e)  The member must be employed as a correctional

23  probation officer and be certified, or required to be

24  certified, in compliance with s. 943.1395.  In addition, the

25  member's primary duties and responsibilities must be the

26  supervised custody, surveillance, control, investigation, and

27  counseling of assigned inmates, probationers, parolees, or

28  community controllees within institutions or the community; or

29  the member must be the supervisor of a member or members who

30  have such responsibilities. However, administrative support

31  personnel, including, but not limited to, those whose primary

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  1  duties and responsibilities are in accounting, purchasing,

  2  legal, and personnel, shall not be included; however,

  3  probation and parole circuit and deputy circuit administrators

  4  shall participate in the Special Risk Class.

  5         Section 7.  The Legislature finds that a proper and

  6  legitimate state purpose is served when employees and retirees

  7  of the state and of its political subdivisions, and the

  8  dependents, survivors, and beneficiaries of such employees and

  9  retirees, are extended the basic protections afforded by

10  governmental retirement systems that provide fair and adequate

11  benefits and that are managed, administered, and funded in an

12  actuarially sound manner, as required by Section 14 of Article

13  X of the State Constitution and part VII of chapter 112,

14  Florida Statutes. Therefore, the Legislature determines and

15  declares that the provisions of sections 5 through 7 of this

16  act fulfill an important state interest.

17         Section 8.  Subsection (11) of section 775.089, Florida

18  Statutes, is amended to read:

19         775.089  Restitution.--

20         (11)(a)  The court may order the clerk of the court to

21  collect and dispense restitution payments in any case.

22         (b)  The court may order the Department of Corrections

23  to collect and dispense restitution and other payments from

24  persons remanded to its custody or supervision. If the

25  Department of Corrections collects other payments from

26  offenders or inmates in addition to restitution payments, such

27  as cost-of-supervision, court costs, fines, or subsistence

28  payments, any moneys collected must be applied first toward

29  completely satisfying victim restitution before the payments

30  by the offender or inmate may be applied toward any other

31

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  1  financial obligation related to the offender's or inmate's

  2  crime, prosecution, or sentence.

  3         Section 9.  Subsections (10) and (11) of section

  4  948.01, Florida Statutes, are amended to read:

  5         948.01  When court may place defendant on probation or

  6  into community control.--

  7         (10)  An offender may not be placed on probation or in

  8  community control if:

  9         (a)  Convicted of or adjudication withheld for:

10         1.  Murder pursuant to s. 782.04;

11         2.  Attempted felony murder pursuant to s. 782.051(1)

12  or (2);

13         3.  Aggravated manslaughter pursuant to s. 782.07(2) or

14  (3);

15         4.  Vehicular homicide pursuant to s. 782.071(2) or s.

16  316.193(3)(c)3.;

17         5.  Vessel homicide pursuant to s. 782.072(2) or s.

18  327.35(3)(c)3.;

19         6.  Aggravated assault pursuant to s. 784.021;

20         7.  Aggravated battery pursuant to s. 784.045;

21         8.  Aggravated stalking pursuant to s. 784.048(3), (4),

22  or (5);

23         9.  Kidnapping pursuant to s. 787.01;

24         10.  False imprisonment of a child under the age of 13

25  pursuant to s. 787.02(3);

26         11.  Making, possessing, throwing, projecting, placing,

27  or discharging any destructive device, or threat to do so,

28  pursuant to s. 790.161(2), (3), or (4); s. 790.1615(2); s.

29  790.162; s. 790.163; or s. 790.164;

30         12.  Sexual battery or attempted sexual battery

31  pursuant to ch. 794;

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  1         13.  Lewd or lascivious offenses committed upon or in

  2  the presence of a child under 16 years of age;

  3         14.  Arson pursuant to s. 806.01 or s. 806.031;

  4         15.  Armed burglary or burglary with an assault or

  5  battery pursuant to s. 830.02(2) or (3);

  6         16.  Robbery or attempted robbery pursuant to s. 812.13

  7  or s. 812.131(2)(a);

  8         17.  Carjacking pursuant to s. 812.133;

  9         18.  Home-invasion robbery pursuant to s. 812.135;

10         19.  Aggravated child abuse pursuant to s. 827.03(2);

11  or

12         20.  Aircraft piracy pursuant to s. 860.16; a forcible

13  felony as defined in s. 776.08, and

14         (b)  Previously convicted of or adjudication withheld

15  for an offense listed in paragraph (a) a forcible felony as

16  defined in s. 776.08.

17

18  Nothing in this subsection prohibits placement of certain

19  inmates on community control pursuant to s. 947.1747. For the

20  purposes of this subsection, a forcible felony does not

21  include manslaughter or burglary.

22         (11)  The court may also impose a split sentence

23  whereby the defendant is sentenced to a term of probation

24  which may be followed by a period of incarceration or, with

25  respect to a felony, into community control, as follows:

26         (a)  If the offender meets the terms and conditions of

27  probation or community control, any term of incarceration may

28  be modified by court order to eliminate the term of

29  incarceration.

30         (b)  If the offender does not meet the terms and

31  conditions of probation or community control, the court may

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  1  revoke, modify, or continue the probation or community control

  2  as provided in s. 948.06. An offender on community control who

  3  has been found by the court to have committed a subsequent

  4  offense that is the same or substantially similar to the

  5  offense for which the offender was originally sentenced to

  6  community control may not be continued on community control,

  7  given a new sentence of community control or any form of

  8  probation, or released from supervision without the imposition

  9  of an incarcerative sentence, unless the offender has served

10  his or her statutory maximum sentence under s. 775.082 or as

11  otherwise authorized by law. For purposes of this section, a

12  time-served sentence does not constitute the imposition of an

13  incarcerative sentence. However, if the offender is under

14  supervision for an offense ranked as level 1 or level 2 under

15  the Criminal Punishment Code, the court may use its discretion

16  in sentencing the offender for a violation of his or her

17  community control. For purposes of this section, the term

18  "substantially similar offense" means any offense that is

19  proscribed within the same statutory chapter as the offense

20  for which the offender was originally sentenced to community

21  control, including those sections of chapter 777 applicable

22  thereto. If the probation or community control is revoked, the

23  court may impose any sentence that it could have imposed at

24  the time the offender was placed on probation or community

25  control. The court may not provide credit for time served for

26  any portion of a probation or community control term toward a

27  subsequent term of probation or community control. However,

28  the court may not impose a subsequent term of probation or

29  community control which, when combined with any amount of time

30  served on preceding terms of probation or community control

31  for offenses pending before the court for sentencing, would

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  1  exceed the maximum penalty allowable as provided in s.

  2  775.082. Such term of incarceration shall be served under

  3  applicable law or county ordinance governing service of

  4  sentences in state or county jurisdiction. This paragraph does

  5  not prohibit any other sanction provided by law.

  6         Section 10.  Subsections (1), (2), (3), and (5) of

  7  section 948.03, Florida Statutes, are amended to read:

  8         948.03  Terms and conditions of probation or community

  9  control.--

10         (1)  The court shall determine the terms and conditions

11  of probation or community control.  Conditions specified in

12  paragraphs (a) through and including (n) (m) do not require

13  oral pronouncement at the time of sentencing and may be

14  considered standard conditions of probation. Conditions

15  specified in paragraphs (a) through and including (n) (m) and

16  (2)(a) do not require oral pronouncement at sentencing and may

17  be considered standard conditions of community control.  These

18  conditions may include among them the following, that the

19  probationer or offender in community control shall:

20         (a)  Report to the probation officers and parole

21  supervisors as directed.

22         (b)  Permit such probation officers supervisors to

23  visit him or her at his or her home or elsewhere.

24         (c)  Work faithfully at suitable employment insofar as

25  may be possible.

26         (d)  Remain within a specified place.

27         (e)  Make reparation or restitution to the aggrieved

28  party for the damage or loss caused by his or her offense in

29  an amount to be determined by the court.  The court shall make

30  such reparation or restitution a condition of probation,

31  unless it determines that clear and compelling reasons exist

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  1  to the contrary. If the court does not order restitution, or

  2  orders restitution of only a portion of the damages, as

  3  provided in s. 775.089, it shall state on the record in detail

  4  the reasons therefor.

  5         (f)  Effective July 1, 1994, and applicable for

  6  offenses committed on or after that date, make payment of the

  7  debt due and owing to a county or municipal detention facility

  8  under s. 951.032 for medical care, treatment, hospitalization,

  9  or transportation received by the felony probationer while in

10  that detention facility. The court, in determining whether to

11  order such repayment and the amount of such repayment, shall

12  consider the amount of the debt, whether there was any fault

13  of the institution for the medical expenses incurred, the

14  financial resources of the felony probationer, the present and

15  potential future financial needs and earning ability of the

16  probationer, and dependents, and other appropriate factors.

17         (g)  Support his or her legal dependents to the best of

18  his or her ability.

19         (h)  Make payment of the debt due and owing to the

20  state under s. 960.17, subject to modification based on change

21  of circumstances.

22         (i)  Pay any application fee assessed under s.

23  27.52(1)(c) and attorney's fees and costs assessed under s.

24  938.29, subject to modification based on change of

25  circumstances.

26         (j)  Not associate with persons engaged in criminal

27  activities or violate any law.

28         (k)1.  Submit to random testing as directed by the

29  correctional probation officer or the professional staff of

30  the treatment center where he or she is receiving treatment to

31  determine the presence or use of alcohol or controlled

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  1  substances. The offender shall pay the costs for drug testing,

  2  unless the offender meets any of the criteria set forth in s.

  3  948.09(3).

  4         2.  If the offense was a controlled substance violation

  5  and the period of probation immediately follows a period of

  6  incarceration in the state correction system, the conditions

  7  shall include a requirement that the offender submit to random

  8  substance abuse testing intermittently throughout the term of

  9  supervision, upon the direction of the correctional probation

10  officer as defined in s. 943.10(3).

11         (l)  Be prohibited from possessing, carrying, or owning

12  any firearm unless authorized by the court and consented to by

13  the probation officer.

14         (m)  Be prohibited from using intoxicants to excess or

15  possessing any drugs or narcotics unless prescribed by a

16  physician. The probationer or community controllee shall not

17  knowingly visit places where intoxicants, drugs, or other

18  dangerous substances are unlawfully sold, dispensed, or used.

19         (n)  Promptly submit to the taking of a digitized

20  photograph at the request of a probation officer.

21         (o)(n)  Attend an HIV/AIDS awareness program consisting

22  of a class of not less than 2 hours or more than 4 hours in

23  length, the cost for which shall be paid by the offender, if

24  such a program is available in the county of the offender's

25  residence.

26         (p)(o)  Pay not more than $1 per month during the term

27  of probation or community control to a nonprofit organization

28  established for the sole purpose of supplementing the

29  rehabilitative efforts of the Department of Corrections.

30

31

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  1         (2)(a)  The court shall require intensive supervision

  2  and surveillance for an offender placed into community

  3  control, which may include but is not limited to:

  4         1.  Specified contact with the parole and probation

  5  officer.

  6         2.  Confinement to an agreed-upon residence during

  7  hours away from employment and public service activities.

  8         3.  Mandatory public service.

  9         4.  Supervision by the Department of Corrections by

10  means of an electronic monitoring device or system.

11         (b)  For an offender placed on criminal quarantine

12  community control, the court shall require:

13         1.  Electronic monitoring 24 hours per day.

14         2.  Confinement to a designated residence during

15  designated hours.

16         (3)(a)1.  The Department of Corrections may, At the

17  direction of the sentencing court, the Department of

18  Corrections shall its discretion, electronically monitor an

19  offender sentenced to community control.

20         2.  The Department of Corrections shall electronically

21  monitor an offender sentenced to criminal quarantine community

22  control 24 hours per day.

23         (b)  Any offender placed on community control who

24  violates the terms and conditions of community control and is

25  restored to community control may be supervised by means of an

26  electronic monitoring device or system.

27         (c)  For those offenders being electronically

28  monitored, the Department of Corrections shall develop

29  procedures to determine, investigate, and report the

30  offender's noncompliance with the terms and conditions of

31

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  1  sentence 24 hours per day.  All reports of noncompliance shall

  2  be immediately investigated by a community control officer.

  3         (d)  The Department of Corrections may contract with

  4  local law enforcement agencies to assist in the location and

  5  apprehension of offenders who are in noncompliance as reported

  6  by the electronic monitoring system. This contract is intended

  7  to provide the department a means for providing immediate

  8  investigation of noncompliance reports, especially after

  9  normal office hours.

10         (5)  Conditions imposed pursuant to this subsection, as

11  specified in paragraphs (a) and (b), do not require oral

12  pronouncement at the time of sentencing and shall be

13  considered standard conditions of probation or community

14  control for offenders specified in this subsection.

15         (a)  Effective for probationers or community

16  controllees whose crime was committed on or after October 1,

17  1995, and who are placed under supervision for violation of

18  chapter 794, s. 800.04, s. 827.071, or s. 847.0145, the court

19  must impose the following conditions in addition to all other

20  standard and special conditions imposed:

21         1.  A mandatory curfew from 10 p.m. to 6 a.m. The court

22  may designate another 8-hour period if the offender's

23  employment precludes the above specified time, and such

24  alternative is recommended by the Department of Corrections.

25  If the court determines that imposing a curfew would endanger

26  the victim or any potential victim, the court may consider

27  alternative sanctions.

28         2.  If the victim was under the age of 18, a

29  prohibition on living within 1,000 feet of a school, day care

30  center, park, playground, or other place where children

31  regularly congregate, as prescribed by the court.

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  1         3.  Active participation in and successful completion

  2  of a sex offender treatment program with therapists

  3  specifically trained to treat sex offenders, at the

  4  probationer's or community controllee's own expense. If a

  5  specially trained therapist is not available within a 50-mile

  6  radius of the probationer's or community controllee's

  7  residence, the offender shall participate in other appropriate

  8  therapy.

  9         4.  A prohibition on any contact with the victim,

10  directly or indirectly, including through a third person,

11  unless approved by the victim, the offender's therapist, and

12  the sentencing court.

13         5.  If the victim was under the age of 18, a

14  prohibition, until successful completion of a sex offender

15  treatment program, on unsupervised contact with a child under

16  the age of 18, unless authorized by the sentencing court

17  without another adult present who is responsible for the

18  child's welfare, has been advised of the crime, and is

19  approved by the sentencing court.

20         6.  If the victim was under age 18, a prohibition on

21  working for pay or as a volunteer at any school, day care

22  center, park, playground, or other place where children

23  regularly congregate.

24         7.  Unless otherwise indicated in the treatment plan

25  provided by the sexual offender treatment program, a

26  prohibition on viewing, owning, or possessing any obscene,

27  pornographic, or sexually stimulating visual or auditory

28  material, including telephone, electronic media, computer

29  programs, or computer services that are relevant to the

30  offender's deviant behavior pattern.

31

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  1         8.  A requirement that the probationer or community

  2  controllee must submit two specimens of blood to the Florida

  3  Department of Law Enforcement to be registered with the DNA

  4  data bank.

  5         9.  A requirement that the probationer or community

  6  controllee make restitution to the victim, as ordered by the

  7  court under s. 775.089, for all necessary medical and related

  8  professional services relating to physical, psychiatric, and

  9  psychological care.

10         10.  Submission to a warrantless search by the

11  community control or probation officer of the probationer's or

12  community controllee's person, residence, or vehicle.

13         (b)  Effective for a probationer or community

14  controllee whose crime was committed on or after October 1,

15  1997, and who is placed on sex offender probation or sex

16  offender community control for a violation of chapter 794, s.

17  800.04, s. 827.071, or s. 847.0145, in addition to any other

18  provision of this subsection, the court must impose the

19  following conditions of probation or community control:

20         1.  As part of a treatment program, participation at

21  least annually in polygraph examinations by polygraphers who

22  are specifically trained to polygraph sex offenders to obtain

23  information necessary for risk management and treatment and to

24  reduce the sex offender's denial mechanisms. A polygraph

25  examination must be conducted by a polygrapher trained

26  specifically in the use of the polygraph for the monitoring of

27  sex offenders, where available, and shall be paid by the sex

28  offender. The results of the polygraph examination shall not

29  be used as evidence in court to prove that a violation of

30  probation or community control community supervision has

31  occurred.

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  1         2.  Maintenance of a driving log and a prohibition

  2  against driving a motor vehicle alone without the prior

  3  approval of the supervising officer.

  4         3.  A prohibition against obtaining or using a post

  5  office box without the prior approval of the supervising

  6  officer.

  7         4.  If there was sexual contact, a submission to, at

  8  the probationer's or community controllee's expense, an HIV

  9  test with the results to be released to the victim and/or the

10  victim's parent or guardian.

11         5.  Electronic monitoring when deemed necessary by the

12  community control or probation officer and his or her

13  supervisor, and ordered by the court at the recommendation of

14  the Department of Corrections.

15         Section 11.  Section 948.032, Florida Statutes, is

16  amended to read:

17         948.032  Condition of probation or community control;

18  restitution.--If a defendant is placed on probation or

19  community control, any restitution ordered under s. 775.089

20  shall be a condition of the probation or community control.

21  The court may revoke probation or community control if the

22  defendant fails to comply with the order.  In determining

23  whether to revoke probation or community control, the court

24  shall consider the defendant's employment status, earning

25  ability, and financial resources; the willfulness of the

26  defendant's failure to pay; and any other special

27  circumstances that may have a bearing on the defendant's

28  ability to pay.

29         Section 12.  Section 948.04, Florida Statutes, is

30  amended to read:

31

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  1         948.04  Period of probation; duty of probationer or

  2  offender on community control; early termination.--

  3         (1)  Defendants found guilty of felonies who are placed

  4  on probation shall be under supervision not to exceed 2 years

  5  unless otherwise specified by the court.  No defendant placed

  6  on probation pursuant to s. 948.01(6) or s. 948.034 is subject

  7  to the probation limitations of this subsection.  A defendant

  8  who is placed on probation or community control for a

  9  violation of chapter 794 or chapter 827 is subject to the

10  maximum level of supervision provided by the supervising

11  agency or as otherwise directed by the sentencing court

12  pursuant to s. 948.03, and that supervision shall continue

13  through the full term of the court-imposed probation or

14  community control.

15         (2)  Upon the termination of the period of probation,

16  the probationer shall be released from probation and is not

17  liable to sentence for the offense for which probation was

18  allowed. During the period of probation or community control,

19  the probationer or offender on community control shall perform

20  the terms and conditions of his or her probation or community

21  control.

22         (3)  If a the probationer has performed satisfactorily,

23  has not been found in violation of any terms or conditions of

24  supervision, and has met all financial sanctions imposed by

25  the court, including, but not limited to, fines, court costs,

26  and restitution, the Department of Corrections may recommend

27  early termination of probation to the court at any time before

28  the scheduled termination date.

29         Section 13.  Subsections (1) and (4) of section 948.06,

30  Florida Statutes, are amended to read:

31

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  1         948.06  Violation of probation or community control;

  2  revocation; modification; continuance; failure to pay

  3  restitution or cost of supervision.--

  4         (1)  Whenever within the period of probation or

  5  community control there are reasonable grounds to believe that

  6  a probationer or offender in community control has violated

  7  his or her probation or community control in a material

  8  respect, any law enforcement officer who is aware of the

  9  probationary or community control status of the probationer or

10  offender in community control or any parole or probation

11  officer supervisor may arrest or request any county or

12  municipal law enforcement officer to arrest such probationer

13  or offender without warrant wherever found and forthwith

14  return him or her to the court granting such probation or

15  community control. Any committing magistrate may issue a

16  warrant, upon the facts being made known to him or her by

17  affidavit of one having knowledge of such facts, for the

18  arrest of the probationer or offender, returnable forthwith

19  before the court granting such probation or community control.

20  Any parole or probation officer supervisor, any officer

21  authorized to serve criminal process, or any peace officer of

22  this state is authorized to serve and execute such warrant.

23  The court, upon the probationer or offender being brought

24  before it, shall advise him or her of such charge of violation

25  and, if such charge is admitted to be true, may forthwith

26  revoke, modify, or continue the probation or community control

27  or place the probationer into a community control program. If

28  probation or community control is revoked, the court shall

29  adjudge the probationer or offender guilty of the offense

30  charged and proven or admitted, unless he or she has

31  previously been adjudged guilty, and impose any sentence which

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  1  it might have originally imposed before placing the

  2  probationer on probation or the offender into community

  3  control. If such violation of probation or community control

  4  is not admitted by the probationer or offender, the court may

  5  commit him or her or release him or her with or without bail

  6  to await further hearing, or it may dismiss the charge of

  7  probation or community control violation. If such charge is

  8  not at that time admitted by the probationer or offender and

  9  if it is not dismissed, the court, as soon as may be

10  practicable, shall give the probationer or offender an

11  opportunity to be fully heard on his or her behalf in person

12  or by counsel. After such hearing, the court may revoke,

13  modify, or continue the probation or community control or

14  place the probationer into community control. An offender on

15  community control who has been found by the court to have

16  committed a subsequent offense that is the same or

17  substantially similar to the offense or offenses for which the

18  offender was originally sentenced to community control may not

19  be continued on community control, given a new sentence of

20  community control or any form of probation, or be released

21  from supervision without the imposition of an incarcerative

22  sentence, unless the offender has served his or her statutory

23  maximum sentence under s. 775.082 or as otherwise authorized

24  by law. For purposes of this section, a time-served sentence

25  does not constitute the imposition of an incarcerative

26  sentence. However, if the offender is under supervision for an

27  offense ranked as level 1 or level 2 under the Criminal

28  Punishment Code, the court may use its discretion in

29  sentencing the offender for a violation of his or her

30  community control. For purposes of this section, the term

31  "substantially similar offense" means any offense that is

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  1  proscribed within the same statutory chapter as the offense

  2  for which the offender was originally sentenced to community

  3  control, including those sections of chapter 777 applicable

  4  thereto. If such probation or community control is revoked,

  5  the court shall adjudge the probationer or offender guilty of

  6  the offense charged and proven or admitted, unless he or she

  7  has previously been adjudged guilty, and impose any sentence

  8  which it might have originally imposed before placing the

  9  probationer or offender on probation or into community

10  control.

11         (4)  Notwithstanding any other provision of this

12  section, a probationer or an offender in community control who

13  is arrested for violating his or her probation or community

14  control in a material respect may be taken before the court in

15  the county or circuit in which the probationer or offender was

16  arrested. That court shall advise him or her of such charge of

17  a violation and, if such charge is admitted, shall cause him

18  or her to be brought before the court which granted the

19  probation or community control. If such violation is not

20  admitted by the probationer or offender, the court may commit

21  him or her or release him or her with or without bail to await

22  further hearing. The court, as soon as is practicable, shall

23  give the probationer or offender an opportunity to be fully

24  heard on his or her behalf in person or by counsel. After such

25  hearing, the court shall make findings of fact and forward the

26  findings to the court which granted the probation or community

27  control and to the probationer or offender or his or her

28  attorney. The findings of fact by the hearing court are

29  binding on the court which granted the probation or community

30  control.  Upon the probationer or offender being brought

31  before it, the court which granted the probation or community

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  1  control may revoke, modify, or continue the probation or

  2  community control or may place the probationer into community

  3  control as provided in this section. A court may not place an

  4  offender on a lesser form of supervision through a

  5  modification or imposition of a new sentence after a

  6  revocation if it finds an offender has violated his or her

  7  community supervision in any material respect. In addition, a

  8  court may not terminate an offender's community supervision as

  9  a result of an offender's violation without imposing a further

10  penalty, unless the person has served his or her statutory

11  maximum sentence under s. 775.082 or as otherwise authorized

12  by law. For purposes of this section, a time-served sentence

13  does not constitute a further penalty.

14         Section 14.  Section 948.11, Florida Statutes, is

15  amended to read:

16         948.11  Electronic monitoring devices.--

17         (1)  Pursuant to chapter 287, the department shall

18  issue a request for proposal for electronic monitoring devices

19  to be utilized by the department for purposes of electronic

20  monitoring under this section or any other section of law

21  which authorizes electronic monitoring. Electronic monitoring

22  devices certified for use by the department must be licensed

23  by the FCC, must be capable of maintaining full operation on a

24  backup power source for 8 hours, and must meet such other

25  necessary and vital specifications as may be set by the

26  department for tamper-alert, efficient, and economical usage.

27  The provisions of this section do not apply to passive

28  devices.

29         (2)  The Department of Corrections must maintain the

30  capability to electronically monitor offenders through

31  radio-frequency devices and global-positioning-system devices

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  1  as funding is provided by the Legislature. Options for

  2  electronic monitoring of offenders should be maintained for

  3  use by sentencing courts to maximize public safety and to make

  4  the appropriate monitoring of offenders as cost efficient as

  5  possible.

  6         Section 15.  This act shall take effect October 1,

  7  2000, except that this section and section 3 of this act shall

  8  take effect upon becoming a law and sections 5 through 7 of

  9  this act shall take effect January 1, 2001.

10

11            *****************************************

12                          SENATE SUMMARY

13    Requires that the Department of Corrections make
      information on offenders who are under community
14    supervision available to the public and to update such
      information. Includes correctional probation officers in
15    the Special Risk Class of the Florida Retirement System
      if they meet prescribed criteria. Includes probation and
16    parole regional administrators in the Special Risk Class.
      Requires that payments collected from offenders be
17    applied toward victim restitution before such payments
      are used to satisfy other financial obligations of the
18    offender. Provides that an offender who is convicted of
      or has adjudication withheld for specified offenses may
19    not be placed on probation or community control.
      Prohibits the court from continuing community control or
20    probation for an offender whom the court finds has
      committed an offense that is the same or similar to the
21    original offense. Requires that restitution be a
      condition of community control. Requires that the
22    Department of Corrections electronically monitor
      offenders on community control. (See bill for details.)
23

24

25

26

27

28

29

30

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