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 |
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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 |
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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 |
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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 |
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233 | Sentencing multipliers: |
234 |
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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 |
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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 |
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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 |
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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 |
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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. |