HB 0451CS

CHAMBER ACTION




1The Criminal Justice Committee recommends the following:
2
3     Council/Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to forcible felony violators; creating the
7Anti-Murder Act; creating s. 903.0351, F.S.; denying bail
8or any form of pretrial release to forcible felony
9violators in certain circumstances; amending s. 948.06,
10F.S.; providing definitions; providing that forcible
11felony violators shall remain in custody pending the
12resolution of probation or community control violation
13hearings; providing exceptions; providing for hearings to
14determine the nature and probability of any danger that
15forcible felony violators pose to the community before
16release of violators following probation or community
17control violations; amending s. 921.0024, F.S.; revising
18Criminal Punishment Code computations to provide
19additional community sanction violation points when a
20community sanction violation is committed by a forcible
21felony violator; reenacting ss. 948.012(2)(b), 948.10(9),
22and 958.14, F.S., relating to split sentence of probation
23or community control and imprisonment, community control
24programs, and violation of probation or community control
25program, respectively, to incorporate the amendment to s.
26948.06, F.S., in references thereto; providing
27applicability; providing an effective date.
28
29Be It Enacted by the Legislature of the State of Florida:
30
31     Section 1.  This act may be cited as the "Anti-Murder Act."
32     Section 2.  Section 903.0351, Florida Statutes, is created
33to read:
34     903.0351  Bail or pretrial release not permitted for
35forcible felony violators.--A forcible felony violator as
36defined in s. 948.06 shall not be granted bail or any form of
37pretrial release prior to the resolution of the probation or
38community control violation hearing, unless the violation charge
39or arrest is based solely on failure to pay costs, fines, or
40restitution payments.
41     Section 3.  Subsection (4) of section 948.06, Florida
42Statutes, is amended, and subsection (8) is added to said
43section, to read:
44     948.06  Violation of probation or community control;
45revocation; modification; continuance; failure to pay
46restitution or cost of supervision.--
47     (4)  Notwithstanding any other provision of this section, a
48probationer or an offender in community control who is arrested
49for violating his or her probation or community control in a
50material respect may be taken before the court in the county or
51circuit in which the probationer or offender was arrested. That
52court shall advise him or her of such charge of a violation and,
53if such charge is admitted, shall cause him or her to be brought
54before the court which granted the probation or community
55control. If such violation is not admitted by the probationer or
56offender, the court may commit him or her or release him or her
57with or without bail to await further hearing. The court, as
58soon as is practicable, shall give the probationer or offender
59an opportunity to be fully heard on his or her behalf in person
60or by counsel. After such hearing, the court shall make findings
61of fact and forward the findings to the court which granted the
62probation or community control and to the probationer or
63offender or his or her attorney. The findings of fact by the
64hearing court are binding on the court which granted the
65probation or community control. Upon the probationer or offender
66being brought before it, the court which granted the probation
67or community control may revoke, modify, or continue the
68probation or community control or may place the probationer into
69community control as provided in this section. However, if any
70violation other than a failure to pay costs, fines, or
71restitution payments is alleged to have been committed by a
72forcible felony violator, as defined in subsection (8), the
73probationer or offender may not be released and may not be
74admitted to bail but shall be brought before the court that
75granted 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
78probationer or offender in community control who is a forcible
79felony violator. The provisions of this subsection shall control
80over any conflicting provision in subsections (1)-(7).
81     (b)  For purposes of this subsection and ss. 903.0351 and
82921.0024, the term:
83     1.  "Forcible felony violator" means a person who:
84     a.  Is on probation or community control related to the
85commission of a qualifying offense;
86     b.  Is on probation or community control for any offense
87committed on or after July 1, 2005, and has committed a
88qualifying offense; or
89     c.  Is on probation or community control for any offense
90committed on or after July 1, 2005, and is found to have
91violated that probation or community control by committing a
92qualifying offense.
93     2.  "Qualifying offense" means any of the following
94offenses committed on or after July 1, 2005:
95     a.  Any forcible felony as defined in s. 776.08, excluding
96offenses under s. 810.02(4);
97     b.  Any attempt to commit a forcible felony as defined in
98s. 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
101offense described in sub-subparagraphs a.-c. if that offense had
102been committed in this state.
103     (c)  In the case of a violation arising from any ground
104other than a failure to pay costs, fines, or restitution
105payments, a forcible felony violator shall remain in custody
106pending the resolution of the probation or community control
107violation. The court may not dismiss the probation or community
108control violation warrant pending against a forcible felony
109violator without holding a recorded hearing at which both the
110state and the violator are represented.
111     (d)  If the court determines that a forcible felony
112violator has violated any nonmonetary term of probation or
113community control, the court must revoke the probation or
114community control, must adjudge the probationer or offender
115guilty of the offense charged and proven or admitted, and shall
116sentence the probationer or offender as provided in s. 921.0024.
117     (e)  If the court imposes a prison sentence, this paragraph
118shall not apply. Before the court may release a forcible felony
119violator from custody or impose any nonstate prison sanction for
120violation of probation or community control, the court must hold
121a Danger to the Community hearing to determine the danger that
122the forcible felony violator poses to the community. The court
123must hold this hearing as soon as practicable following the
124violation or probation or community control hearing and may
125conduct the Danger to the Community hearing immediately after
126adjudicating the probationer or offender guilty of the
127violation.
128     1.  If the court determines, by a preponderance of the
129evidence, that a forcible felony violator poses a danger to the
130community, the court shall sentence the violator pursuant to s.
131921.0024, up to and including the statutory maximum, and shall
132neither consider the mitigating circumstances in s. 921.0026 nor
133otherwise depart downward from the sentencing guidelines.
134     2.  If the court finds, or the state stipulates, that the
135release of the forcible felony violator does not pose a danger
136to the community, the court may sentence the forcible felony
137violator according to s. 921.0024 and consider any mitigating
138circumstances provided in s. 921.0026. The court must enter a
139written order to make a finding that the forcible felony
140violator does not pose a danger to the community.
141     3.  In determining the danger posed by the defendant's
142release, the court may consider the nature and circumstances of
143the violation and any new offenses charged; the defendant's past
144and present conduct, including convictions of crimes; any record
145of arrests without conviction for crimes involving violence or
146sexual crimes; any other evidence of allegations of unlawful
147sexual conduct or the use of violence by the defendant; the
148defendant's family ties, length of residence in the community,
149employment history, and mental condition; the defendant's
150amenability to non-incarcerative sanctions based on his or her
151history and conduct during the probation or community control
152supervision from which the violation hearing arises and any
153other previous supervisions, including disciplinary records of
154previous incarcerations; the likelihood that the defendant will
155engage again in a criminal course of conduct; the weight of the
156evidence against the defendant; and any other facts the court
157considers relevant.
158     Section 4.  Paragraph (b) of subsection (1) of section
159921.0024, Florida Statutes, is amended to read:
160     921.0024  Criminal Punishment Code; worksheet computations;
161scoresheets.--
162     (1)
163     (b)  WORKSHEET KEY:
164
165Legal status points are assessed when any form of legal status
166existed at the time the offender committed an offense before the
167court for sentencing. Four (4) sentence points are assessed for
168an offender's legal status.
169
170Community sanction violation points are assessed when a
171community sanction violation is before the court for sentencing.
172Six (6) sentence points are assessed for each community sanction
173violation, and each successive community sanction violation,
174unless any of the following apply:; however,
175     1.  If the community sanction violation includes a new
176felony conviction before the sentencing court, twelve (12)
177community sanction violation points are assessed for the such
178violation, and for each successive community sanction violation
179involving a new felony conviction.
180     2.  If the community sanction violation is committed by a
181forcible felony violator as defined in s. 948.06(8)(b), but does
182not include a new felony conviction, twelve (12) community
183sanction violation points are assessed for the violation, and
184for each successive community sanction violation not involving a
185new felony conviction.
186     3.  If the community sanction violation is committed by a
187forcible felony violator as defined in s. 948.06(8)(b), and
188includes a new felony conviction before the sentencing court,
189twenty-four (24) community sanction violation points are
190assessed for the violation, and for each successive community
191sanction violation involving a new felony conviction.
192
193Multiple counts of community sanction violations before the
194sentencing court shall not be a basis for multiplying the
195assessment of community sanction violation points.
196
197Prior serious felony points: If the offender has a primary
198offense or any additional offense ranked in level 8, level 9, or
199level 10, and one or more prior serious felonies, a single
200assessment of 30 points shall be added. For purposes of this
201section, a prior serious felony is an offense in the offender's
202prior record that is ranked in level 8, level 9, or level 10
203under s. 921.0022 or s. 921.0023 and for which the offender is
204serving a sentence of confinement, supervision, or other
205sanction or for which the offender's date of release from
206confinement, supervision, or other sanction, whichever is later,
207is within 3 years before the date the primary offense or any
208additional offense was committed.
209
210Prior capital felony points: If the offender has one or more
211prior capital felonies in the offender's criminal record, points
212shall be added to the subtotal sentence points of the offender
213equal to twice the number of points the offender receives for
214the primary offense and any additional offense. A prior capital
215felony in the offender's criminal record is a previous capital
216felony offense for which the offender has entered a plea of nolo
217contendere or guilty or has been found guilty; or a felony in
218another jurisdiction which is a capital felony in that
219jurisdiction, or would be a capital felony if the offense were
220committed in this state.
221
222Possession of a firearm, semiautomatic firearm, or machine gun:
223If the offender is convicted of committing or attempting to
224commit any felony other than those enumerated in s. 775.087(2)
225while having in his or her possession: a firearm as defined in
226s. 790.001(6), an additional 18 sentence points are assessed; or
227if the offender is convicted of committing or attempting to
228commit any felony other than those enumerated in s. 775.087(3)
229while having in his or her possession a semiautomatic firearm as
230defined in s. 775.087(3) or a machine gun as defined in s.
231790.001(9), an additional 25 sentence points are assessed.
232
233Sentencing multipliers:
234
235Drug trafficking: If the primary offense is drug trafficking
236under s. 893.135, the subtotal sentence points are multiplied,
237at the discretion of the court, for a level 7 or level 8
238offense, by 1.5. The state attorney may move the sentencing
239court to reduce or suspend the sentence of a person convicted of
240a level 7 or level 8 offense, if the offender provides
241substantial assistance as described in s. 893.135(4).
242
243Law enforcement protection: If the primary offense is a
244violation of the Law Enforcement Protection Act under s.
245775.0823(2), the subtotal sentence points are multiplied by 2.5.
246If the primary offense is a violation of s. 775.0823(3), (4),
247(5), (6), (7), or (8), the subtotal sentence points are
248multiplied by 2.0. If the primary offense is a violation of s.
249784.07(3) or s. 775.0875(1), or of the Law Enforcement
250Protection Act under s. 775.0823(9) or (10), the subtotal
251sentence points are multiplied by 1.5.
252
253Grand theft of a motor vehicle: If the primary offense is grand
254theft of the third degree involving a motor vehicle and in the
255offender's prior record, there are three or more grand thefts of
256the third degree involving a motor vehicle, the subtotal
257sentence points are multiplied by 1.5.
258
259Offense related to a criminal street gang: If the offender is
260convicted of the primary offense and committed that offense for
261the purpose of benefiting, promoting, or furthering the
262interests of a criminal street gang as prohibited under s.
263874.04, the subtotal sentence points are multiplied by 1.5.
264
265Domestic violence in the presence of a child: If the offender is
266convicted of the primary offense and the primary offense is a
267crime of domestic violence, as defined in s. 741.28, which was
268committed in the presence of a child under 16 years of age who
269is a family or household member as defined in s. 741.28(3) with
270the victim or perpetrator, the subtotal sentence points are
271multiplied by 1.5.
272     Section 5.  For the purpose of incorporating the amendment
273to section 948.06, Florida Statutes, in a reference thereto,
274paragraph (b) of subsection (2) of section 948.012, Florida
275Statutes, is reenacted to read:
276     948.012  Split sentence of probation or community control
277and imprisonment.--
278     (2)  The court may also impose a split sentence whereby the
279defendant is sentenced to a term of probation which may be
280followed by a period of incarceration or, with respect to a
281felony, into community control, as follows:
282     (b)  If the offender does not meet the terms and conditions
283of probation or community control, the court may revoke, modify,
284or continue the probation or community control as provided in s.
285948.06. If the probation or community control is revoked, the
286court may impose any sentence that it could have imposed at the
287time the offender was placed on probation or community control.
288The court may not provide credit for time served for any portion
289of a probation or community control term toward a subsequent
290term of probation or community control. However, the court may
291not impose a subsequent term of probation or community control
292which, when combined with any amount of time served on preceding
293terms of probation or community control for offenses pending
294before the court for sentencing, would exceed the maximum
295penalty allowable as provided in s. 775.082. Such term of
296incarceration shall be served under applicable law or county
297ordinance governing service of sentences in state or county
298jurisdiction. This paragraph does not prohibit any other
299sanction provided by law.
300     Section 6.  For the purpose of incorporating the amendment
301to section 948.06, Florida Statutes, in a reference thereto,
302subsection (9) of section 948.10, Florida Statutes, is reenacted
303to read:
304     948.10  Community control programs.--
305     (9)  Procedures governing violations of community control
306shall be the same as those described in s. 948.06 with respect
307to probation.
308     Section 7.  For the purpose of incorporating the amendment
309to section 948.06, Florida Statutes, in a reference thereto,
310section 958.14, Florida Statutes, is reenacted to read:
311     958.14  Violation of probation or community control
312program.--A violation or alleged violation of probation or the
313terms of a community control program shall subject the youthful
314offender to the provisions of s. 948.06. However, no youthful
315offender shall be committed to the custody of the department for
316a substantive violation for a period longer than the maximum
317sentence for the offense for which he or she was found guilty,
318with credit for time served while incarcerated, or for a
319technical or nonsubstantive violation for a period longer than 6
320years or for a period longer than the maximum sentence for the
321offense for which he or she was found guilty, whichever is less,
322with credit for time served while incarcerated.
323     Section 8.  This act shall take effect July 1, 2005, and
324shall apply to offenses committed on or after that date.


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