| 1 | The Criminal Justice Committee recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to forcible felony violators; creating the |
| 7 | Anti-Murder Act; creating s. 903.0351, F.S.; denying bail |
| 8 | or any form of pretrial release to forcible felony |
| 9 | violators in certain circumstances; amending s. 948.06, |
| 10 | F.S.; providing definitions; providing that forcible |
| 11 | felony violators shall remain in custody pending the |
| 12 | resolution of probation or community control violation |
| 13 | hearings; providing exceptions; providing for hearings to |
| 14 | determine the nature and probability of any danger that |
| 15 | forcible felony violators pose to the community before |
| 16 | release of violators following probation or community |
| 17 | control violations; amending s. 921.0024, F.S.; revising |
| 18 | Criminal Punishment Code computations to provide |
| 19 | additional community sanction violation points when a |
| 20 | community sanction violation is committed by a forcible |
| 21 | felony violator; reenacting ss. 948.012(2)(b), 948.10(9), |
| 22 | and 958.14, F.S., relating to split sentence of probation |
| 23 | or community control and imprisonment, community control |
| 24 | programs, and violation of probation or community control |
| 25 | program, respectively, to incorporate the amendment to s. |
| 26 | 948.06, F.S., in references thereto; providing |
| 27 | applicability; providing an effective date. |
| 28 |
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| 29 | Be It Enacted by the Legislature of the State of Florida: |
| 30 |
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| 31 | Section 1. This act may be cited as the "Anti-Murder Act." |
| 32 | Section 2. Section 903.0351, Florida Statutes, is created |
| 33 | to read: |
| 34 | 903.0351 Bail or pretrial release not permitted for |
| 35 | forcible felony violators.--A forcible felony violator as |
| 36 | defined in s. 948.06 shall not be granted bail or any form of |
| 37 | pretrial release prior to the resolution of the probation or |
| 38 | community control violation hearing, unless the violation charge |
| 39 | or arrest is based solely on failure to pay costs, fines, or |
| 40 | restitution payments. |
| 41 | Section 3. Subsection (4) of section 948.06, Florida |
| 42 | Statutes, is amended, and subsection (8) is added to said |
| 43 | section, to read: |
| 44 | 948.06 Violation of probation or community control; |
| 45 | revocation; modification; continuance; failure to pay |
| 46 | restitution or cost of supervision.-- |
| 47 | (4) Notwithstanding any other provision of this section, a |
| 48 | probationer or an offender in community control who is arrested |
| 49 | for violating his or her probation or community control in a |
| 50 | material respect may be taken before the court in the county or |
| 51 | circuit in which the probationer or offender was arrested. That |
| 52 | court shall advise him or her of such charge of a violation and, |
| 53 | if such charge is admitted, shall cause him or her to be brought |
| 54 | before the court which granted the probation or community |
| 55 | control. If such violation is not admitted by the probationer or |
| 56 | offender, the court may commit him or her or release him or her |
| 57 | with or without bail to await further hearing. The court, as |
| 58 | soon as is practicable, shall give the probationer or offender |
| 59 | an opportunity to be fully heard on his or her behalf in person |
| 60 | or by counsel. After such hearing, the court shall make findings |
| 61 | of fact and forward the findings to the court which granted the |
| 62 | probation or community control and to the probationer or |
| 63 | offender or his or her attorney. The findings of fact by the |
| 64 | hearing court are binding on the court which granted the |
| 65 | probation or community control. Upon the probationer or offender |
| 66 | being brought before it, the court which granted the probation |
| 67 | or community control may revoke, modify, or continue the |
| 68 | probation or community control or may place the probationer into |
| 69 | community control as provided in this section. However, if any |
| 70 | violation other than a failure to pay costs, fines, or |
| 71 | restitution payments is alleged to have been committed by a |
| 72 | forcible felony violator, as defined in subsection (8), the |
| 73 | probationer or offender may not be released and may not be |
| 74 | admitted to bail but shall be brought before the court that |
| 75 | granted the probation or community control. |
| 76 | (8)(a) In addition to the provisions of subsections (1)- |
| 77 | (7), this subsection provides further requirements regarding a |
| 78 | probationer or offender in community control who is a forcible |
| 79 | felony violator. The provisions of this subsection shall control |
| 80 | over any conflicting provision in subsections (1)-(7). |
| 81 | (b) For purposes of this subsection and ss. 903.0351 and |
| 82 | 921.0024, the term: |
| 83 | 1. "Forcible felony violator" means a person who: |
| 84 | a. Is on probation or community control related to the |
| 85 | commission of a qualifying offense; |
| 86 | b. Is on probation or community control for any offense |
| 87 | committed on or after July 1, 2005, and has committed a |
| 88 | qualifying offense; or |
| 89 | c. Is on probation or community control for any offense |
| 90 | committed on or after July 1, 2005, and is found to have |
| 91 | violated that probation or community control by committing a |
| 92 | qualifying offense. |
| 93 | 2. "Qualifying offense" means any of the following |
| 94 | offenses committed on or after July 1, 2005: |
| 95 | a. Any forcible felony as defined in s. 776.08, excluding |
| 96 | offenses under s. 810.02(4); |
| 97 | b. Any attempt to commit a forcible felony as defined in |
| 98 | s. 776.08, excluding offenses under s. 810.02(4); |
| 99 | c. Any offense under s. 800.04; or |
| 100 | d. Any offense in another jurisdiction that would be an |
| 101 | offense described in sub-subparagraphs a.-c. if that offense had |
| 102 | been committed in this state. |
| 103 | (c) In the case of a violation arising from any ground |
| 104 | other than a failure to pay costs, fines, or restitution |
| 105 | payments, a forcible felony violator shall remain in custody |
| 106 | pending the resolution of the probation or community control |
| 107 | violation. The court may not dismiss the probation or community |
| 108 | control violation warrant pending against a forcible felony |
| 109 | violator without holding a recorded hearing at which both the |
| 110 | state and the violator are represented. |
| 111 | (d) If the court determines that a forcible felony |
| 112 | violator has violated any nonmonetary term of probation or |
| 113 | community control, the court must revoke the probation or |
| 114 | community control, must adjudge the probationer or offender |
| 115 | guilty of the offense charged and proven or admitted, and shall |
| 116 | sentence the probationer or offender as provided in s. 921.0024. |
| 117 | (e) If the court imposes a prison sentence, this paragraph |
| 118 | shall not apply. Before the court may release a forcible felony |
| 119 | violator from custody or impose any nonstate prison sanction for |
| 120 | violation of probation or community control, the court must hold |
| 121 | a Danger to the Community hearing to determine the danger that |
| 122 | the forcible felony violator poses to the community. The court |
| 123 | must hold this hearing as soon as practicable following the |
| 124 | violation or probation or community control hearing and may |
| 125 | conduct the Danger to the Community hearing immediately after |
| 126 | adjudicating the probationer or offender guilty of the |
| 127 | violation. |
| 128 | 1. If the court determines, by a preponderance of the |
| 129 | evidence, that a forcible felony violator poses a danger to the |
| 130 | community, the court shall sentence the violator pursuant to s. |
| 131 | 921.0024, up to and including the statutory maximum, and shall |
| 132 | neither consider the mitigating circumstances in s. 921.0026 nor |
| 133 | otherwise depart downward from the sentencing guidelines. |
| 134 | 2. If the court finds, or the state stipulates, that the |
| 135 | release of the forcible felony violator does not pose a danger |
| 136 | to the community, the court may sentence the forcible felony |
| 137 | violator according to s. 921.0024 and consider any mitigating |
| 138 | circumstances provided in s. 921.0026. The court must enter a |
| 139 | written order to make a finding that the forcible felony |
| 140 | violator does not pose a danger to the community. |
| 141 | 3. In determining the danger posed by the defendant's |
| 142 | release, the court may consider the nature and circumstances of |
| 143 | the violation and any new offenses charged; the defendant's past |
| 144 | and present conduct, including convictions of crimes; any record |
| 145 | of arrests without conviction for crimes involving violence or |
| 146 | sexual crimes; any other evidence of allegations of unlawful |
| 147 | sexual conduct or the use of violence by the defendant; the |
| 148 | defendant's family ties, length of residence in the community, |
| 149 | employment history, and mental condition; the defendant's |
| 150 | amenability to non-incarcerative sanctions based on his or her |
| 151 | history and conduct during the probation or community control |
| 152 | supervision from which the violation hearing arises and any |
| 153 | other previous supervisions, including disciplinary records of |
| 154 | previous incarcerations; the likelihood that the defendant will |
| 155 | engage again in a criminal course of conduct; the weight of the |
| 156 | evidence against the defendant; and any other facts the court |
| 157 | considers relevant. |
| 158 | Section 4. Paragraph (b) of subsection (1) of section |
| 159 | 921.0024, Florida Statutes, is amended to read: |
| 160 | 921.0024 Criminal Punishment Code; worksheet computations; |
| 161 | scoresheets.-- |
| 162 | (1) |
| 163 | (b) WORKSHEET KEY: |
| 164 |
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| 165 | Legal status points are assessed when any form of legal status |
| 166 | existed at the time the offender committed an offense before the |
| 167 | court for sentencing. Four (4) sentence points are assessed for |
| 168 | an offender's legal status. |
| 169 |
|
| 170 | Community sanction violation points are assessed when a |
| 171 | community sanction violation is before the court for sentencing. |
| 172 | Six (6) sentence points are assessed for each community sanction |
| 173 | violation, and each successive community sanction violation, |
| 174 | unless any of the following apply:; however, |
| 175 | 1. If the community sanction violation includes a new |
| 176 | felony conviction before the sentencing court, twelve (12) |
| 177 | community sanction violation points are assessed for the such |
| 178 | violation, and for each successive community sanction violation |
| 179 | involving a new felony conviction. |
| 180 | 2. If the community sanction violation is committed by a |
| 181 | forcible felony violator as defined in s. 948.06(8)(b), but does |
| 182 | not include a new felony conviction, twelve (12) community |
| 183 | sanction violation points are assessed for the violation, and |
| 184 | for each successive community sanction violation not involving a |
| 185 | new felony conviction. |
| 186 | 3. If the community sanction violation is committed by a |
| 187 | forcible felony violator as defined in s. 948.06(8)(b), and |
| 188 | includes a new felony conviction before the sentencing court, |
| 189 | twenty-four (24) community sanction violation points are |
| 190 | assessed for the violation, and for each successive community |
| 191 | sanction violation involving a new felony conviction. |
| 192 |
|
| 193 | Multiple counts of community sanction violations before the |
| 194 | sentencing court shall not be a basis for multiplying the |
| 195 | assessment of community sanction violation points. |
| 196 |
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| 197 | Prior serious felony points: If the offender has a primary |
| 198 | offense or any additional offense ranked in level 8, level 9, or |
| 199 | level 10, and one or more prior serious felonies, a single |
| 200 | assessment of 30 points shall be added. For purposes of this |
| 201 | section, a prior serious felony is an offense in the offender's |
| 202 | prior record that is ranked in level 8, level 9, or level 10 |
| 203 | under s. 921.0022 or s. 921.0023 and for which the offender is |
| 204 | serving a sentence of confinement, supervision, or other |
| 205 | sanction or for which the offender's date of release from |
| 206 | confinement, supervision, or other sanction, whichever is later, |
| 207 | is within 3 years before the date the primary offense or any |
| 208 | additional offense was committed. |
| 209 |
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| 210 | Prior capital felony points: If the offender has one or more |
| 211 | prior capital felonies in the offender's criminal record, points |
| 212 | shall be added to the subtotal sentence points of the offender |
| 213 | equal to twice the number of points the offender receives for |
| 214 | the primary offense and any additional offense. A prior capital |
| 215 | felony in the offender's criminal record is a previous capital |
| 216 | felony offense for which the offender has entered a plea of nolo |
| 217 | contendere or guilty or has been found guilty; or a felony in |
| 218 | another jurisdiction which is a capital felony in that |
| 219 | jurisdiction, or would be a capital felony if the offense were |
| 220 | committed in this state. |
| 221 |
|
| 222 | Possession of a firearm, semiautomatic firearm, or machine gun: |
| 223 | If the offender is convicted of committing or attempting to |
| 224 | commit any felony other than those enumerated in s. 775.087(2) |
| 225 | while having in his or her possession: a firearm as defined in |
| 226 | s. 790.001(6), an additional 18 sentence points are assessed; or |
| 227 | if the offender is convicted of committing or attempting to |
| 228 | commit any felony other than those enumerated in s. 775.087(3) |
| 229 | while having in his or her possession a semiautomatic firearm as |
| 230 | defined in s. 775.087(3) or a machine gun as defined in s. |
| 231 | 790.001(9), an additional 25 sentence points are assessed. |
| 232 |
|
| 233 | Sentencing multipliers: |
| 234 |
|
| 235 | Drug trafficking: If the primary offense is drug trafficking |
| 236 | under s. 893.135, the subtotal sentence points are multiplied, |
| 237 | at the discretion of the court, for a level 7 or level 8 |
| 238 | offense, by 1.5. The state attorney may move the sentencing |
| 239 | court to reduce or suspend the sentence of a person convicted of |
| 240 | a level 7 or level 8 offense, if the offender provides |
| 241 | substantial assistance as described in s. 893.135(4). |
| 242 |
|
| 243 | Law enforcement protection: If the primary offense is a |
| 244 | violation of the Law Enforcement Protection Act under s. |
| 245 | 775.0823(2), the subtotal sentence points are multiplied by 2.5. |
| 246 | If the primary offense is a violation of s. 775.0823(3), (4), |
| 247 | (5), (6), (7), or (8), the subtotal sentence points are |
| 248 | multiplied by 2.0. If the primary offense is a violation of s. |
| 249 | 784.07(3) or s. 775.0875(1), or of the Law Enforcement |
| 250 | Protection Act under s. 775.0823(9) or (10), the subtotal |
| 251 | sentence points are multiplied by 1.5. |
| 252 |
|
| 253 | Grand theft of a motor vehicle: If the primary offense is grand |
| 254 | theft of the third degree involving a motor vehicle and in the |
| 255 | offender's prior record, there are three or more grand thefts of |
| 256 | the third degree involving a motor vehicle, the subtotal |
| 257 | sentence points are multiplied by 1.5. |
| 258 |
|
| 259 | Offense related to a criminal street gang: If the offender is |
| 260 | convicted of the primary offense and committed that offense for |
| 261 | the purpose of benefiting, promoting, or furthering the |
| 262 | interests of a criminal street gang as prohibited under s. |
| 263 | 874.04, the subtotal sentence points are multiplied by 1.5. |
| 264 |
|
| 265 | Domestic violence in the presence of a child: If the offender is |
| 266 | convicted of the primary offense and the primary offense is a |
| 267 | crime of domestic violence, as defined in s. 741.28, which was |
| 268 | committed in the presence of a child under 16 years of age who |
| 269 | is a family or household member as defined in s. 741.28(3) with |
| 270 | the victim or perpetrator, the subtotal sentence points are |
| 271 | multiplied by 1.5. |
| 272 | Section 5. For the purpose of incorporating the amendment |
| 273 | to section 948.06, Florida Statutes, in a reference thereto, |
| 274 | paragraph (b) of subsection (2) of section 948.012, Florida |
| 275 | Statutes, is reenacted to read: |
| 276 | 948.012 Split sentence of probation or community control |
| 277 | and imprisonment.-- |
| 278 | (2) The court may also impose a split sentence whereby the |
| 279 | defendant is sentenced to a term of probation which may be |
| 280 | followed by a period of incarceration or, with respect to a |
| 281 | felony, into community control, as follows: |
| 282 | (b) If the offender does not meet the terms and conditions |
| 283 | of probation or community control, the court may revoke, modify, |
| 284 | or continue the probation or community control as provided in s. |
| 285 | 948.06. If the probation or community control is revoked, the |
| 286 | court may impose any sentence that it could have imposed at the |
| 287 | time the offender was placed on probation or community control. |
| 288 | The court may not provide credit for time served for any portion |
| 289 | of a probation or community control term toward a subsequent |
| 290 | term of probation or community control. However, the court may |
| 291 | not impose a subsequent term of probation or community control |
| 292 | which, when combined with any amount of time served on preceding |
| 293 | terms of probation or community control for offenses pending |
| 294 | before the court for sentencing, would exceed the maximum |
| 295 | penalty allowable as provided in s. 775.082. Such term of |
| 296 | incarceration shall be served under applicable law or county |
| 297 | ordinance governing service of sentences in state or county |
| 298 | jurisdiction. This paragraph does not prohibit any other |
| 299 | sanction provided by law. |
| 300 | Section 6. For the purpose of incorporating the amendment |
| 301 | to section 948.06, Florida Statutes, in a reference thereto, |
| 302 | subsection (9) of section 948.10, Florida Statutes, is reenacted |
| 303 | to read: |
| 304 | 948.10 Community control programs.-- |
| 305 | (9) Procedures governing violations of community control |
| 306 | shall be the same as those described in s. 948.06 with respect |
| 307 | to probation. |
| 308 | Section 7. For the purpose of incorporating the amendment |
| 309 | to section 948.06, Florida Statutes, in a reference thereto, |
| 310 | section 958.14, Florida Statutes, is reenacted to read: |
| 311 | 958.14 Violation of probation or community control |
| 312 | program.--A violation or alleged violation of probation or the |
| 313 | terms of a community control program shall subject the youthful |
| 314 | offender to the provisions of s. 948.06. However, no youthful |
| 315 | offender shall be committed to the custody of the department for |
| 316 | a substantive violation for a period longer than the maximum |
| 317 | sentence for the offense for which he or she was found guilty, |
| 318 | with credit for time served while incarcerated, or for a |
| 319 | technical or nonsubstantive violation for a period longer than 6 |
| 320 | years or for a period longer than the maximum sentence for the |
| 321 | offense for which he or she was found guilty, whichever is less, |
| 322 | with credit for time served while incarcerated. |
| 323 | Section 8. This act shall take effect July 1, 2005, and |
| 324 | shall apply to offenses committed on or after that date. |