Senate Bill sb2010c1

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    Florida Senate - 2006                           CS for SB 2010

    By the Committee on Children and Families; and Senator Baker





    586-2032-06

  1                      A bill to be entitled

  2         An act relating to forensic treatment and

  3         training; amending s. 916.105, F.S.; revising

  4         legislative intent with respect to the

  5         treatment or training of defendants who are

  6         mentally ill, retarded, or autistic and are

  7         committed to the Agency for Persons with

  8         Disabilities; providing that it is the policy

  9         of the state to use restraint and seclusion

10         only as an emergency safety measure in response

11         to imminent danger; amending s. 916.106, F.S.;

12         providing and revising definitions; amending s.

13         916.107, F.S., relating to the rights of

14         forensic clients; conforming provisions to the

15         transfer of duties from the Developmental

16         Disabilities Program Office within the

17         Department of Children and Family Services to

18         the Agency for Persons with Disabilities;

19         revising provisions governing the involuntary

20         treatment of clients; requiring the

21         coordination of services between the

22         department, the agency, and the Department of

23         Corrections; amending s. 916.1075, F.S.;

24         revising definitions; revising certain

25         prohibitions on sexual misconduct involving

26         employees, volunteers, or interns of the

27         Department of Children and Family Services or

28         the Agency for Persons with Disabilities;

29         deleting an exemption; requiring that notice of

30         sexual misconduct be provided to the inspector

31         general of the agency or department; amending

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 1         s. 916.1081, F.S.; providing that an escape or

 2         an attempt to escape from a civil or forensic

 3         facility constitutes a second-degree felony;

 4         amending s. 916.1085, F.S.; providing for

 5         certain prohibitions concerning contraband

 6         articles to apply to facilities under the

 7         supervision or control of the Agency for

 8         Persons with Disabilities; conforming a

 9         cross-reference; amending s. 916.1091, F.S.;

10         authorizing the use of chemical weapons by

11         agency personnel; amending s. 916.1093, F.S.;

12         authorizing the agency to enter into contracts

13         and adopt rules; requiring that the department

14         and agency adopt rules pertaining to the use of

15         restraint and seclusion; amending s. 916.111,

16         F.S.; revising provisions governing the

17         training of mental health experts; amending s.

18         916.115, F.S.; requiring that the court appoint

19         experts to determine the mental condition of a

20         criminal defendant; requiring that the

21         Department of Children and Family Services

22         annually provide the courts with a list of

23         mental health professionals; amending s.

24         916.12, F.S.; revising provisions governing the

25         evaluation of a defendant's competence to

26         proceed; amending s. 916.13, F.S.; revising

27         conditions under which a defendant may be

28         involuntarily committed for treatment; amending

29         s. 916.145, F.S., relating to charges against a

30         defendant adjudicated incompetent; conforming

31         provisions to changes made by the act; amending

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 1         s. 916.15, F.S.; clarifying that the

 2         determination of not guilty by reason of

 3         insanity is made under the Florida Rules of

 4         Criminal Procedure; amending s. 916.16, F.S.;

 5         providing for the continuing jurisdiction of

 6         the court over a defendant involuntarily

 7         committed due to mental illness; amending s.

 8         916.17, F.S.; clarifying circumstances under

 9         which the court may order the conditional

10         release of a defendant; amending s. 916.301,

11         F.S.; requiring that certain evaluations be

12         conducted by qualified experts; requiring that

13         the Agency for Persons with Disabilities

14         provide the court with a list of available

15         retardation and autism professionals;

16         conforming provisions to the transfer of duties

17         from the Developmental Disabilities Program

18         Office within the Department of Children and

19         Family Services to the agency; amending s.

20         916.3012, F.S.; clarifying provisions governing

21         the determination of a defendant's mental

22         competence to proceed; amending s. 916.302,

23         F.S., relating to the involuntary commitment of

24         a defendant; conforming provisions to the

25         transfer of duties from the Developmental

26         Disabilities Program Office within the

27         Department of Children and Family Services to

28         the agency; requiring that the department and

29         agency submit an evaluation to the court before

30         the transfer of a defendant from one civil or

31         forensic facility to another; amending s.

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 1         916.3025, F.S.; clarifying that the committing

 2         court retains jurisdiction over a defendant

 3         placed on conditional release; providing for

 4         the transfer of continuing jurisdiction to

 5         another court where the defendant resides;

 6         amending s. 916.303, F.S.; clarifying

 7         provisions governing the dismissal of charges

 8         against a defendant found to be incompetent to

 9         proceed due to retardation or autism; amending

10         s. 916.304, F.S.; providing for the conditional

11         release of a defendant to a civil facility;

12         amending ss. 921.137 and 985.223, F.S.,

13         relating to provisions governing the imposition

14         of the death sentence upon a mentally retarded

15         defendant and the determination of incompetency

16         in cases involving juvenile delinquency;

17         conforming provisions to the transfer of duties

18         from the Developmental Disabilities Program

19         Office within the Department of Children and

20         Family Services to the Agency for Persons with

21         Disabilities; amending ss. 287.057, 408.036,

22         943.0585, and 943.059, F.S.; conforming

23         cross-references; providing an effective date.

24  

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

26  

27         Section 1.  Section 916.105, Florida Statutes, is

28  amended to read:

29         916.105  Legislative intent.--

30         (1)  It is the intent of the Legislature that the

31  Department of Children and Family Services and the Agency for

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 1  Persons with Disabilities, as appropriate, establish, locate,

 2  and maintain separate and secure forensic facilities and

 3  programs for the treatment or training of defendants who have

 4  been are charged with a felony and who have been found to be

 5  incompetent to proceed due to their mental illness, mental

 6  retardation, or autism, or who have been acquitted of a felony

 7  felonies by reason of insanity, and who, while still under the

 8  jurisdiction of the committing court, are committed to the

 9  department or agency under the provisions of this chapter.

10  Such The separate, secure facilities shall be sufficient to

11  accommodate the number of defendants committed under the

12  conditions noted above., Except for those defendants found by

13  the department or agency to be appropriate for treatment or

14  training in a civil treatment facility or program pursuant to

15  subsection (3), forensic. Such secure facilities shall be

16  designed and administered so that ingress and egress, together

17  with other requirements of this chapter, may be strictly

18  controlled by staff responsible for security in order to

19  protect the defendant, facility personnel, other clients, and

20  citizens in adjacent communities.

21         (2)  It is further the intent of the Legislature that

22  treatment or training programs for defendants who are found to

23  be mentally ill, retarded, or autistic and are involuntarily

24  committed to the department or agency, and who are still under

25  the jurisdiction of the committing court, be provided in such

26  a manner, subject to security requirements and other mandates

27  of this chapter, as to ensure the rights of the defendants as

28  provided in this chapter.

29         (3)  It is also the intent of the Legislature that

30  evaluation and services to defendants who are mentally ill,

31  retarded, or autistic be provided in community settings, in

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 1  community residential facilities, or in civil, nonforensic

 2  facilities, whenever this is a feasible alternative to

 3  treatment or training in a state forensic facility.

 4         (4)  It is the policy of this state that the use of

 5  restraint and seclusion on clients is justified only as an

 6  emergency safety measure to be used in response to imminent

 7  danger to the client or others. It is, therefore, the intent

 8  of the Legislature to achieve an ongoing reduction in the use

 9  of restraint and seclusion on persons who are committed to a

10  civil or forensic facility under this chapter.

11         Section 2.  Section 916.106, Florida Statutes, is

12  amended to read:

13         916.106  Definitions.--For the purposes of this

14  chapter:

15         (1)  "Agency" means the Agency for Persons with

16  Disabilities. The agency is responsible for training forensic

17  clients who are developmentally disabled due to mental

18  retardation or autism and have been determined incompetent to

19  proceed.

20         (2)(1)  "Autism" has the same meaning as in s. 393.063.

21  means a pervasive, neurologically based developmental

22  disability of extended duration which causes severe learning,

23  communication, and behavior disorders, with the age of onset

24  of autism occurring during infancy or childhood. Individuals

25  with autism exhibit impairment in reciprocal social

26  interaction, impairment in verbal and nonverbal communication

27  and imaginative ability, and a markedly restricted repertoire

28  of activities and interests.

29         (3)(2)  "Chemical weapon" means any shell, cartridge,

30  bomb, gun, or other device capable of emitting

31  chloroacetophenone (CN), chlorobenzalmalononitrile (CS) or any

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 1  derivatives thereof in any form, or any other agent with

 2  lacrimatory properties, and shall include products such as

 3  that commonly known as "mace."

 4         (4)(3)  "Civil facility" means:

 5         (a)  A mental health facility established within the

 6  department or by contract with the department to serve

 7  individuals committed pursuant to chapter 394 and those

 8  defendants committed pursuant to this chapter who do not

 9  require the security provided in a forensic facility; or.

10         (b)  An intermediate care facility for the

11  developmentally disabled, a foster care facility, a group home

12  facility, or a supported living setting, as defined in s.

13  393.063, designated by the agency to serve those defendants

14  who do not require the security provided in a forensic

15  facility.

16         (5)(4)  "Court" means the circuit court.

17         (6)  "Defendant" means an adult, or a juvenile who is

18  prosecuted as an adult, who has been arraigned and charged

19  with a felony offense under the laws of this state.

20         (7)(5)  "Department" means the Department of Children

21  and Family Services. The department is responsible for the

22  treatment of forensic clients who have been determined

23  incompetent to proceed due to mental illness or who have been

24  acquitted of a felony by reason of insanity.

25         (8)(6)  "Express and informed consent" or "consent"

26  means consent given voluntarily in writing after a

27  conscientious and sufficient explanation and disclosure of the

28  purpose of the proposed treatment, the common side effects of

29  the treatment, if any, the expected duration of the treatment,

30  and any alternative treatment available.

31  

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 1         (9)(7)  "Forensic client" or "client" means any

 2  defendant who has been is mentally ill, retarded, or autistic

 3  and who is committed to the department or agency pursuant to

 4  s. 916.13, s. 916.15, or s. 916.302. this chapter and:

 5         (a)  Who has been determined to need treatment for a

 6  mental illness or training for retardation or autism;

 7         (b)  Who has been found incompetent to proceed on a

 8  felony offense or has been acquitted of a felony offense by

 9  reason of insanity;

10         (c)  Who has been determined by the department to:

11         1.  Be dangerous to himself or herself or others; or

12         2.  Present a clear and present potential to escape;

13  and

14         (d)  Who is an adult or a juvenile prosecuted as an

15  adult.

16         (10)(8)  "Forensic facility" means a separate and

17  secure facility established within the department or agency to

18  serve forensic clients. A Such separate and secure facility

19  means a facilities shall be security-grade building for the

20  purpose of separately housing persons with mental illness from

21  persons with retardation or autism and separately housing

22  persons who have been involuntarily committed pursuant to this

23  chapter from nonforensic residents buildings located on

24  grounds distinct in location from other facilities for persons

25  who are mentally ill. The Florida State Hospital shall not be

26  required to maintain separate facilities for mentally ill,

27  retarded, or autistic defendants who are found incompetent to

28  proceed or who are acquitted of a criminal offense by reason

29  of insanity.

30         (11)(9)  "Incompetent to proceed" means unable to

31  proceed at any material stage of a criminal proceeding, which

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 1  shall include trial of the case, pretrial hearings involving

 2  questions of fact on which the defendant might be expected to

 3  testify, entry of a plea, proceedings for violation of

 4  probation or violation of community control, sentencing, and

 5  hearings on issues regarding a defendant's failure to comply

 6  with court orders or conditions or other matters in which the

 7  mental competence of the defendant is necessary for a just

 8  resolution of the issues being considered.

 9         (12)(10)  "Institutional security personnel" means the

10  staff of forensic facilities staff members who meet or exceed

11  the requirements of s. 943.13 and who are responsible for

12  providing security, protecting for protection of clients and

13  personnel, enforcing for the enforcement of rules, preventing

14  and investigating for prevention and investigation of

15  unauthorized activities, and for safeguarding the interests of

16  citizens in the surrounding communities.

17         (13)(11)  "Mental illness" means an impairment of the

18  emotional processes that exercise conscious control of one's

19  actions, or of the ability to perceive or understand reality,

20  which impairment substantially interferes with a defendant's

21  ability to meet the ordinary demands of living. For the

22  purposes of this chapter, the term does not apply to

23  defendants with mental retardation or autism who are solely

24  retarded or autistic, and does not include intoxication or

25  conditions manifested only by antisocial behavior or substance

26  abuse impairment.

27         (14)(a)  "Restraint" means a physical device, method,

28  or drug used to control behavior. A physical restraint is any

29  manual method or physical or mechanical device, material, or

30  equipment attached or adjacent to the individual's body so

31  

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 1  that he or she cannot easily remove the restraint and which

 2  restricts freedom of movement or normal access to one's body.

 3         (b)  A drug used as a restraint is a medication used to

 4  control the person's behavior or to restrict his or her

 5  freedom of movement. Physically holding a person during a

 6  procedure to forcibly administer such medication is a physical

 7  restraint.

 8         (c)  Restraint does not include physical devices, such

 9  as orthopedically prescribed appliances, surgical dressings

10  and bandages, supportive body bands, or other physical holding

11  when necessary for routine physical examinations and tests;

12  for purposes of orthopedic, surgical, or other similar medical

13  treatment; when used to provide support for the achievement of

14  functional body position or proper balance; or when used to

15  protect a person from falling out of bed.

16         (15)(12)  "Retardation" has the same meaning as in s.

17  393.063. means significantly subaverage general intellectual

18  functioning existing concurrently with deficits in adaptive

19  behavior and manifested during the period from conception to

20  age 18. "Significantly subaverage general intellectual

21  functioning," for the purpose of this definition, means

22  performance which is two or more standard deviations from the

23  mean score on a standardized intelligence test specified in

24  the rules of the department. "Adaptive behavior," for the

25  purpose of this definition, means the effectiveness or degree

26  with which an individual meets the standards of personal

27  independence and social responsibility expected of the

28  individual's age, cultural group, and community.

29         (16)  "Seclusion" means the physical segregation of a

30  person in any fashion or the involuntary isolation of a person

31  in a room or area from which the person is prevented from

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 1  leaving.  The prevention may be by physical barrier or by a

 2  staff member who is acting in a manner, or who is physically

 3  situated, so as to prevent the person from leaving the room or

 4  area. For purposes of this chapter, the term does not mean

 5  isolation due to a person's medical condition or symptoms, the

 6  confinement in state mental health treatment facilities to a

 7  bedroom or area during normal hours of sleep when there is not

 8  an active order for seclusion, or confinement during an

 9  emergency such as a riot or hostage situation when clients may

10  be temporarily placed in their rooms for their own safety.

11         (17)(13)  "Social service professional," for the

12  purposes of part III, means a person whose minimum

13  qualifications include a bachelor's degree and at least 2

14  years of social work, clinical practice, special education,

15  habilitation, or equivalent experience working directly with

16  persons with retardation, autism, or other developmental

17  disabilities.

18         Section 3.  Section 916.107, Florida Statutes, is

19  amended to read:

20         916.107  Rights of forensic clients.--

21         (1)  RIGHT TO INDIVIDUAL DIGNITY.--

22         (a)  The policy of the state is that the individual

23  dignity of the client shall be respected at all times and upon

24  all occasions, including any occasion when the forensic client

25  is detained, transported, or treated. Clients with mental

26  illness, retardation, or autism Defendants who are mentally

27  ill, retarded, or autistic and who are charged with committing

28  felonies shall receive appropriate treatment or training.  In

29  a criminal case involving a client defendant who has been

30  adjudicated incompetent to proceed or not guilty by reason of

31  insanity, a jail may be used as an emergency facility for up

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 1  to 15 days following from the date the department or agency

 2  receives a completed copy of the court commitment order

 3  containing all the documentation required by Rules 3.212 and

 4  3.217, Florida Rules of Criminal Procedure. For a forensic

 5  client defendant who is mentally ill, retarded, or autistic,

 6  who is held in a jail awaiting admission to a facility of the

 7  department or agency, and who has been adjudicated incompetent

 8  to proceed or not guilty by reason of insanity, evaluation and

 9  treatment or training may shall be provided in the jail by the

10  local community mental health provider public receiving

11  facility for mental health services, or by the developmental

12  disabilities services program for persons with retardation or

13  autism, the client's physician or psychologist, or any other

14  appropriate program until the client is transferred to a civil

15  or forensic facility the custody of the department.

16         (b)  Forensic clients Mentally ill, retarded, or

17  autistic defendants who are committed to the department

18  pursuant to this chapter and who are initially placed in, or

19  subsequently transferred to, a civil facility as described in

20  part I of chapter 394 or to a residential facility as

21  described in chapter 393 shall have the same rights as other

22  persons committed to these facilities for as long as they

23  remain there.

24         (2)  RIGHT TO TREATMENT.--

25         (a)  The policy of the state is that neither the

26  department nor the agency shall not deny treatment or training

27  to any client and that no services shall be delayed at a

28  facility because the forensic client is indigent pursuant to

29  s. 27.52 and presently unable to pay. However, every

30  reasonable effort to collect appropriate reimbursement for the

31  cost of providing services to clients able to pay for the

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 1  services, including reimbursement from insurance or other

 2  third-party payments, shall be made by facilities providing

 3  services pursuant to this chapter and in accordance with the

 4  provisions of s. 402.33.

 5         (b)  Each forensic client shall be given, at the time

 6  of admission and at regular intervals thereafter, a physical

 7  examination, which shall include screening for communicable

 8  disease by a health practitioner authorized by law to give

 9  such screenings and examinations.

10         (c)  Every forensic client committed pursuant to this

11  act shall be afforded the opportunity to participate in

12  activities designed to enhance self-image and the beneficial

13  effects of other treatments or training, as determined by the

14  facility.

15         (d)  Not more than 30 days after admission, each client

16  shall have and receive, in writing, an individualized

17  treatment or training plan which the client has had an

18  opportunity to assist in preparing.

19         (3)  RIGHT TO EXPRESS AND INFORMED CONSENT.--

20         (a)  A forensic client committed to the department

21  pursuant to this act shall be asked to give express and

22  informed written consent for treatment.  If a client in a

23  forensic facility refuses such treatment as is deemed

24  necessary and essential by the client's multidisciplinary

25  treatment team at the forensic facility for the appropriate

26  care of the client and the safety of the client or others,

27  such treatment may be provided under the following

28  circumstances:

29         1.  In an emergency situation in which there is

30  immediate danger to the safety of the client or others, such

31  treatment may be provided upon the written order of a

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 1  physician for a period not to exceed 48 hours, excluding

 2  weekends and legal holidays.  If, after the 48-hour period,

 3  the client has not given express and informed consent to the

 4  treatment initially refused, the administrator or designee of

 5  the civil or forensic facility shall, within 48 hours,

 6  excluding weekends and legal holidays, petition the committing

 7  court or the circuit court serving the county in which the

 8  facility is located, at the option of the facility

 9  administrator or designee, for an order authorizing the

10  continued treatment of the client.  In the interim, the need

11  for treatment shall be reviewed every 48 hours and may be

12  continued without the consent of the client upon the continued

13  written order of a physician who has determined that the

14  emergency situation continues to present a danger to the

15  safety of the client or others.

16         2.  In a situation other than an emergency situation,

17  the administrator or designee of the forensic facility shall

18  petition the court for an order authorizing necessary and

19  essential the treatment for to the client.  The order shall

20  allow such treatment for a period not to exceed 90 days

21  following from the date of the entry of the order. Unless the

22  court is notified in writing that the client has provided

23  express and informed consent in writing or that the client has

24  been discharged by the committing court, the administrator or

25  designee shall, prior to the expiration of the initial 90-day

26  order, petition the court for an order authorizing the

27  continuation of treatment for another 90-day period.  This

28  procedure shall be repeated until the client provides consent

29  or is discharged by the committing court.

30         3.  At the hearing on the issue of whether the court

31  should enter an order authorizing treatment for which a client

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 1  was unable or has refused to give express and informed

 2  consent, the court shall determine by clear and convincing

 3  evidence that the client has mental illness, retardation, or

 4  autism is mentally ill, retarded, or autistic as defined in

 5  this chapter, that the treatment not consented to is essential

 6  to the care of the client, and that the treatment not

 7  consented to is not experimental and does not present an

 8  unreasonable risk of serious, hazardous, or irreversible side

 9  effects.  In arriving at the substitute judgment decision, the

10  court must consider at least the following factors:

11         a.  The client's expressed preference regarding

12  treatment;

13         b.  The probability of adverse side effects;

14         c.  The prognosis without treatment; and

15         d.  The prognosis with treatment.

16  

17  The hearing shall be as convenient to the client as may be

18  consistent with orderly procedure and shall be conducted in

19  physical settings not likely to be injurious to the client's

20  condition. The court may appoint a general or special

21  magistrate to preside at the hearing. The client or the

22  client's guardian, and the representative, shall be provided

23  with a copy of the petition and the date, time, and location

24  of the hearing. The client has the right to have an attorney

25  represent him or her at the hearing, and, if the client is

26  indigent, the court shall appoint the office of the public

27  defender to represent the client at the hearing.  The client

28  may testify or not, as he or she chooses, and has the right to

29  cross-examine witnesses and may present his or her own

30  witnesses.

31  

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 1         (b)  In addition to the provisions of paragraph (a), in

 2  the case of surgical procedures requiring the use of a general

 3  anesthetic or electroconvulsive treatment or nonpsychiatric

 4  medical procedures, and prior to performing the procedure,

 5  written permission shall be obtained from the client, if the

 6  client is legally competent, from the parent or guardian of a

 7  minor client, or from the guardian of an incompetent client.

 8  The administrator or designee of the forensic facility or a

 9  designated representative may, with the concurrence of the

10  client's attending physician, authorize emergency surgical or

11  nonpsychiatric medical treatment if such treatment is deemed

12  lifesaving or for a situation threatening serious bodily harm

13  to the client and permission of the client or the client's

14  guardian could not cannot be obtained before provision of the

15  needed treatment.

16         (4)  QUALITY OF TREATMENT.--

17         (a)  Each forensic client committed pursuant to this

18  chapter shall receive treatment or training suited to the

19  client's needs, which shall be administered skillfully,

20  safely, and humanely with full respect for the client's

21  dignity and personal integrity.  Each client shall receive

22  such medical, vocational, social, educational, and

23  rehabilitative services as the client's condition requires to

24  bring about a return to court for disposition of charges or a

25  return to the community.  In order to achieve this goal, the

26  department and the agency shall coordinate their services with

27  each other, the Department of Corrections, is directed to

28  coordinate the services of the Mental Health Program Office

29  and the Developmental Disabilities Program Office with all

30  other programs of the department and other appropriate state

31  agencies.

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 1         (b)  Clients shall be free from the unnecessary use of

 2  restraint and seclusion. Restraints shall be employed only in

 3  emergencies or to protect the client or others from imminent

 4  injury. Restraint or seclusion may not be employed as

 5  punishment or for the convenience of staff. Any instance of

 6  the use of restraint or seclusion must be documented in the

 7  facility record of the client.

 8         (5)  COMMUNICATION, ABUSE REPORTING, AND VISITS.--

 9         (a)  Each forensic client committed pursuant to the

10  provisions of this chapter has the right to communicate freely

11  and privately with persons outside the facility unless it is

12  determined that such communication is likely to be harmful to

13  the client or others. Clients shall have the right to contact

14  and to receive communication from their attorneys at any

15  reasonable time.

16         (a)(b)  Each forensic client committed under the

17  provisions of this chapter shall be allowed to receive, send,

18  and mail sealed, unopened correspondence; and no client's

19  incoming or outgoing correspondence shall be opened, delayed,

20  held, or censored by the facility unless there is reason to

21  believe that it contains items or substances which may be

22  harmful to the client or others, in which case the

23  administrator or designee may direct reasonable examination of

24  such mail and may regulate the disposition of such items or

25  substances. "Correspondence" shall not include parcels or

26  packages.  Forensic facilities are authorized to promulgate

27  reasonable institutional policies to provide for the

28  inspection of parcels or packages and for the removal of

29  contraband items for health or security reasons prior to the

30  contents being given to a client.

31  

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 1         (b)(c)  If a client's right to communicate is

 2  restricted by the administrator, written notice of such

 3  restriction and the duration of the restriction shall be

 4  served on the client or his or her legal guardian or

 5  representatives, and such restriction shall be recorded on the

 6  client's clinical record with the reasons therefor. The

 7  restriction of a client's right to communicate shall be

 8  reviewed at least every 7 days.

 9         (c)(d)  Each forensic facility shall establish

10  reasonable institutional policies governing visitors, visiting

11  hours, and the use of telephones by clients in the least

12  restrictive manner possible.

13         (d)(e)  Each forensic client committed pursuant to this

14  chapter shall have ready access to a telephone in order to

15  report an alleged abuse.  The facility or program staff shall

16  orally and in writing inform each client of the procedure for

17  reporting abuse and shall present the information in a

18  language the client understands.  A written copy of that

19  procedure, including the telephone number of the central abuse

20  hotline and reporting forms, shall be posted in plain view.

21         (e)(f)  The department's or agency's forensic

22  facilities shall develop policies providing a procedure for

23  reporting abuse.  Facility staff shall be required, as a

24  condition of employment, to become familiar with the

25  procedures for the reporting of abuse.

26         (6)  CARE AND CUSTODY OF PERSONAL EFFECTS OF

27  CLIENTS.--A forensic client's right to possession of clothing

28  and personal effects shall be respected.  The department or

29  agency by rule, or the administrator of any forensic facility

30  by written institutional policy, may declare certain items to

31  be hazardous to the health or welfare of clients or others or

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 1  to the operation of the facility.  Such items may be

 2  restricted from introduction into the facility or may be

 3  restricted from being in a client's possession.  The

 4  administrator or designee may take temporary custody of such

 5  effects when required for medical and safety reasons.  Custody

 6  of such personal effects shall be recorded in the client's

 7  clinical record.

 8         (7)  VOTING IN PUBLIC ELECTIONS.--A forensic client

 9  committed pursuant to this chapter who is eligible to vote

10  according to the laws of the state has the right to vote in

11  the primary and general elections. The department and agency

12  shall establish rules to enable clients to obtain voter

13  registration forms, applications for absentee ballots, and

14  absentee ballots.

15         (8)  CLINICAL RECORD; CONFIDENTIALITY.--A clinical

16  record for each forensic client shall be maintained. The

17  record shall include data pertaining to admission and such

18  other information as may be required under rules of the

19  department or the agency. Unless waived by express and

20  informed consent of the client or the client's legal guardian

21  or, if the client is deceased, by the client's personal

22  representative or by that family member who stands next in

23  line of intestate succession or except as otherwise provided

24  in this subsection, the clinical record is confidential and

25  exempt from the provisions of s. 119.07(1) and s. 24(a), Art.

26  I of the State Constitution.

27         (a)  Such clinical record may be released:

28         1.  To such persons and agencies as are designated by

29  the client or the client's legal guardian.

30  

31  

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 1         2.  To persons authorized by order of court and to the

 2  client's counsel when the records are needed by the counsel

 3  for adequate representation.

 4         3.  To a qualified researcher, as defined by rule; a

 5  staff member of the facility; or an employee of the department

 6  or agency when the administrator of the facility, or secretary

 7  or director of the department or agency, deems it necessary

 8  for treatment of the client, maintenance of adequate records,

 9  compilation of treatment data, or evaluation of programs.

10         4.  For statistical and research purposes if the

11  information is abstracted in such a way as to protect the

12  identity of individuals.

13         5.  If a client receiving services pursuant to this

14  chapter has declared an intention to harm other persons. When

15  such a declaration has been made, the administrator shall

16  authorize the release of sufficient information to provide

17  adequate warning to the person threatened with harm by the

18  client, and to the committing court, the state attorney, and

19  the attorney representing the client.

20         6.  To the parent or next of kin of a client mentally

21  ill, retarded, or autistic person who is committed to, or is

22  being served by, a facility or program when such information

23  is limited to that person's service plan and current physical

24  and mental condition. Release of such information shall be in

25  accordance with the code of ethics of the profession involved

26  and must comply with all state and federal laws and

27  regulations pertaining to the release of personal health

28  information.

29         (b)  Notwithstanding other provisions of this

30  subsection, the department or agency may request or receive

31  from or provide to any of the following entities client

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 1  information to facilitate treatment, habilitation,

 2  rehabilitation, and continuity of care of any forensic client:

 3         1.  The Social Security Administration and the United

 4  States Department of Veterans Affairs;

 5         2.  Law enforcement agencies, state attorneys, defense

 6  attorneys, and judges in regard to the client's status;

 7         3.  Jail personnel in the jail in to which a client may

 8  be housed returned; and

 9         4.  Community agencies and others expected to provide

10  followup care to the client upon the client's return to the

11  community.

12         (c)  The department or agency may provide notice to any

13  client's next of kin or first representative regarding any

14  serious medical illness or the death of the client.

15         (d)1.  Any law enforcement agency, facility, or other

16  governmental agency that receives information pursuant to this

17  subsection shall maintain the confidentiality of such

18  information except as otherwise provided herein.

19         2.  Any agency or private practitioner who acts in good

20  faith in releasing information pursuant to this subsection is

21  not subject to civil or criminal liability for such release.

22         (9)  HABEAS CORPUS.--

23         (a)  At any time, and without notice, a forensic client

24  detained by a facility, or a relative, friend, guardian,

25  representative, or attorney on behalf of such client, may

26  petition for a writ of habeas corpus to question the cause and

27  legality of such detention and request that the committing

28  court issue a writ for release.  Each client committed

29  pursuant to this chapter shall receive a written notice of the

30  right to petition for a writ of habeas corpus.

31  

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 1         (b)  A client or his or her legal guardian or

 2  representatives or attorney may file a petition in the circuit

 3  court in the county where the client is committed alleging

 4  that the client is being unjustly denied a right or privilege

 5  granted herein or that a procedure authorized herein is being

 6  abused.  Upon the filing of such a petition, the circuit court

 7  shall have the authority to conduct a judicial inquiry and to

 8  issue any appropriate order to correct an abuse of the

 9  provisions of this chapter.

10         (10)  TRANSPORTATION.--

11         (a)  The sheriff shall consult with the governing board

12  of the county as to the most appropriate and cost-effective

13  means of transportation for forensic clients who have been

14  committed for treatment or training.  Such consultation shall

15  include, but is not limited to, consideration of the cost to

16  the county of transportation performed by sheriff's department

17  personnel as opposed to transportation performed by other

18  means and, if sheriff's department personnel are to be used

19  for transportation, the effect such use will have, if any, on

20  service delivery levels of the sheriff's road patrol. After

21  such consultation with the governing board of the county, the

22  sheriff shall determine the most appropriate and

23  cost-effective means of transportation for forensic clients

24  committed for treatment or training.

25         (b)  The governing board of each county is authorized

26  to contract with private transport companies for the

27  transportation of such clients to and from a facility.

28         (c)  Any company that transports a client pursuant to

29  this section is considered an independent contractor and is

30  solely liable for the safe and dignified transportation of the

31  client. Any transport company that contracts with the

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 1  governing board of a county for the transport of clients as

 2  provided for in this section shall be insured and provide no

 3  less than $100,000 in liability insurance with respect to the

 4  transportation of the clients.

 5         (d)  Any company that contracts with a governing board

 6  of a county to transport clients shall comply with the

 7  applicable rules of the department or agency to ensure the

 8  safety and dignity of the clients.

 9         (11)  LIABILITY FOR VIOLATIONS.--Any person who

10  violates or abuses any rights or privileges of a forensic

11  client in the custody of the department or agency which are

12  provided under this chapter shall be by this act is liable for

13  damages as determined by law.  Any person who acts in good

14  faith in complying with the provisions of this chapter act is

15  immune from civil or criminal liability for his or her actions

16  in connection with the admission, diagnosis, treatment,

17  training, or discharge of a client to or from a facility.

18  However, this subsection does not relieve any person from

19  liability if he or she is negligent.

20         Section 4.  Subsections (1), (2), (3), (4), and (5) of

21  section 916.1075, Florida Statutes, are amended to read:

22         916.1075  Sexual misconduct prohibited; reporting

23  required; penalties.--

24         (1)  As used in this section, the term:

25         (a)  "Covered person" means an "employee" includes any

26  paid staff member, volunteer, or intern of the department or

27  agency; any person under contract with the department or

28  agency; and any person providing care or support to a forensic

29  client on behalf of the department, the agency, or their its

30  providers.

31         (b)  "Sexual activity" means:

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 1         1.  Fondling the genital area, groin, inner thighs,

 2  buttocks, or breasts of a person.

 3         2.  The oral, anal, or vaginal penetration by or union

 4  with the sexual organ of another or the anal or vaginal

 5  penetration of another by any other object.

 6         3.  Intentionally touching in a lewd or lascivious

 7  manner the breasts, genitals, the genital area, or buttocks,

 8  or the clothing covering them, of a person, or forcing or

 9  enticing a person to touch the perpetrator.

10         4.  Intentionally masturbating in the presence of

11  another person.

12         5.  Intentionally exposing the genitals in a lewd or

13  lascivious manner in the presence of another person.

14         6.  Intentionally committing any other sexual act that

15  does not involve actual physical or sexual contact with the

16  victim, including, but not limited to, sadomasochistic abuse,

17  sexual bestiality, or the simulation of any act involving

18  sexual activity in the presence of a victim.

19         (c)  "Sexual misconduct" means any sexual activity

20  between a covered person an employee and a forensic client in

21  the custody of the department or agency, regardless of the

22  consent of the client. The term does not include an act done

23  for a bona fide medical purpose or an internal search

24  conducted in the lawful performance of duty by a covered

25  person an employee.

26         (2)  A covered person An employee who engages in sexual

27  misconduct with a forensic client who resides in a civil or

28  forensic facility commits a felony of the second degree,

29  punishable as provided in s. 775.082, s. 775.083, or s.

30  775.084. Such person An employee may be found guilty of

31  

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 1  violating this subsection without having committed the crime

 2  of sexual battery.

 3         (3)  The consent of a forensic the client to sexual

 4  activity is not a defense to prosecution under this section.

 5         (4)  This section does not apply to a covered person an

 6  employee who:

 7         (a)  Is legally married to the client; or

 8         (b)  Has no reason to believe that the person with whom

 9  the covered person employee engaged in sexual misconduct is a

10  client receiving services as described in subsection (2).

11         (5)  A covered person An employee who witnesses sexual

12  misconduct, or who otherwise knows or has reasonable cause to

13  suspect that a person has engaged in sexual misconduct, shall

14  immediately report the incident to the department's central

15  abuse hotline and to the appropriate local law enforcement

16  agency. The covered person Such employee shall also prepare,

17  date, and sign an independent report that specifically

18  describes the nature of the sexual misconduct, the location

19  and time of the incident, and the persons involved. For an

20  allegation pertaining to a forensic client committed to the

21  agency, the covered person employee shall deliver the report

22  to the supervisor or program director, who shall provide

23  copies to the agency's is responsible for providing copies to

24  the department's inspector general. For an allegation

25  pertaining to a forensic client committed to the department,

26  the covered person shall deliver the report to the supervisor

27  or program director, who shall provide copies to the

28  department's inspector general. The inspector general shall

29  immediately conduct an appropriate administrative

30  investigation, and, if there is probable cause to believe that

31  sexual misconduct has occurred, the inspector general shall

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 1  notify the state attorney in the circuit in which the incident

 2  occurred.

 3         Section 5.  Section 916.1081, Florida Statutes, is

 4  amended to read:

 5         916.1081  Escape from program; penalty.--

 6         (1)  A forensic client who is A defendant involuntarily

 7  committed to the department or agency, who is in the custody

 8  of the department or agency, and under the provisions of this

 9  chapter who escapes or attempts to escape from a civil or

10  forensic facility or program commits a felony of the second

11  degree, punishable as provided in s. 775.082, s. 775.083, or

12  s. 775.084.

13         (2)  A person who is involuntarily committed to the

14  department or the agency because of an active previous

15  sentence, who remains in the custody of the Department of

16  Corrections, and who escapes or attempts to escape from a

17  facility or program of the Department of Corrections commits a

18  felony of the second degree, punishable as provided in s.

19  944.40.

20         Section 6.  Subsection (1) and paragraph (b) of

21  subsection (2) of section 916.1085, Florida Statutes, are

22  amended to read:

23         916.1085  Introduction or removal of certain articles

24  unlawful; penalty.--

25         (1)(a)  Except as authorized by law or as specifically

26  authorized by the person in charge of a facility, it is

27  unlawful to introduce into or upon the grounds of any facility

28  under the supervision or control of the department or agency,

29  or to take or attempt to take or send therefrom, any of the

30  following articles, which are hereby declared to be contraband

31  for the purposes of this section:

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 1         1.  Any intoxicating beverage or beverage which causes

 2  or may cause an intoxicating effect;

 3         2.  Any controlled substance as defined in chapter 893;

 4         3.  Any firearm or deadly weapon; or

 5         4.  Any other item as determined by the department or

 6  the agency, and as designated by departmental rule or by the

 7  administrator of any facility, and designated by written

 8  institutional policies, to be hazardous to the welfare of

 9  clients patients or the operation of the facility.

10         (b)  It is unlawful to transmit to, attempt to transmit

11  to, or cause or attempt to cause to be transmitted to or

12  received by any client of any facility under the supervision

13  or control of the department or agency any article or thing

14  declared by this section to be contraband, at any place that

15  which is outside of the grounds of such facility, except as

16  authorized by law or as specifically authorized by the person

17  in charge of such facility.

18         (2)

19         (b)  These provisions shall be enforced by

20  institutional security personnel as defined in s. 916.106(12)

21  s. 916.106(10) or by a law enforcement officer as defined in

22  s. 943.10.

23         Section 7.  Section 916.1091, Florida Statutes, is

24  amended to read:

25         916.1091  Duties, functions, and powers of

26  institutional security personnel.--In case of emergency, and

27  when necessary to provide protection and security to any

28  client, to the personnel, equipment, buildings, or grounds of

29  a department or agency facility, or to citizens in the

30  surrounding community, institutional security personnel may,

31  when authorized by the administrator of the facility or her or

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 1  his designee when the administrator is not present, use a

 2  chemical weapon against a patient housed in a forensic

 3  facility. However, such weapon shall be used only to the

 4  extent necessary to provide such protection and security.

 5  Under no circumstances shall any such officer carry a chemical

 6  weapon on her or his person except during the period of the

 7  emergency for which its use was authorized.  All chemical

 8  weapons shall be placed in secure storage when their use is

 9  not authorized as provided in this section.

10         Section 8.  Section 916.1093, Florida Statutes, is

11  amended to read:

12         916.1093  Operation and administration; rules.--

13         (1)  The department or agency may is authorized to

14  enter into contracts and do such things as may be necessary

15  and incidental to assure compliance with and to carry out the

16  provisions of this chapter in accordance with the stated

17  legislative intent.

18         (2)  The department or agency may has authority to

19  adopt rules pursuant to ss. 120.536(1) and 120.54 to implement

20  the provisions of this chapter. Rules adopted under this

21  subsection must include provisions governing the use of

22  restraint and seclusion which are consistent with recognized

23  best practices and professional judgment; prohibit inherently

24  dangerous restraint or seclusion procedures; establish

25  limitations on the use and duration of restraint and

26  seclusion; establish measures to ensure the safety of program

27  participants and staff during an incident of restraint or

28  seclusion; establish procedures for staff to follow before,

29  during, and after incidents of restraint or seclusion;

30  establish professional qualifications of and training for

31  staff who may order or be engaged in the use of restraint or

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 1  seclusion; and establish mandatory reporting, data-collection,

 2  and data-dissemination procedures and requirements. Rules

 3  adopted under this subsection must require that each instance

 4  of the use of restraint or seclusion be documented in the

 5  facility's record of the client.

 6         Section 9.  Section 916.111, Florida Statutes, is

 7  amended to read:

 8         916.111  Training of mental health experts.--The

 9  evaluation of defendants for competency to proceed or for

10  sanity at the time of the commission of the offense shall be

11  conducted in such a way as to ensure uniform application of

12  the criteria enumerated in Rules 3.210 and 3.216, Florida

13  Rules of Criminal Procedure.  The department shall develop,

14  and may contract with accredited institutions:

15         (1)  To provide:

16         (a)  A plan for training community mental health

17  professionals to perform forensic evaluations and to

18  standardize the criteria and procedures to be used in these

19  evaluations;

20         (b)  Clinical protocols and procedures based upon the

21  criteria of Rules 3.210 and 3.216, Florida Rules of Criminal

22  Procedure; and

23         (c)  Training for community mental health professionals

24  in the application of these protocols and procedures in

25  performing forensic evaluations and providing reports to the

26  courts; and

27         (2)  To compile and maintain the necessary information

28  for evaluating the success of this program, including the

29  number of persons trained, the cost of operating the program,

30  and the effect on the quality of forensic evaluations as

31  

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 1  measured by appropriateness of admissions to state forensic

 2  facilities and to community-based care programs.

 3         Section 10.  Section 916.115, Florida Statutes, is

 4  amended to read:

 5         916.115  Appointment of experts.--

 6         (1)(a)  Annually, the department shall provide the

 7  courts with a list of mental health professionals who have

 8  completed approved training as experts.

 9         (b)  The court shall may appoint no more than three

10  experts to determine issues of the mental condition of a

11  defendant in a criminal case, including the issues of

12  competency to proceed, insanity, and involuntary

13  hospitalization or placement, and treatment. The panel of

14  experts An expert may evaluate the defendant in jail or in

15  another appropriate local facility or in a facility of the

16  Department of Corrections.

17         (a)(c)  To the extent possible, the an appointed

18  experts expert shall have completed forensic evaluator

19  training approved by the department and shall be either a

20  psychiatrist, licensed psychologist, or physician.

21         (b)  The department shall maintain and provide the

22  courts annually with a list of available mental health

23  professionals who have completed the approved training as

24  experts.

25         (2)  Expert witnesses appointed by the court to

26  evaluate the mental condition of a defendant in a criminal

27  case shall be allowed reasonable fees for services rendered as

28  evaluators of competence or sanity and as witnesses.

29         (a)1.  The court shall pay for any expert that it

30  appoints by court order, upon motion of counsel for the

31  defendant or the state or upon its own motion. If the defense

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 1  or the state retains an expert and waives the confidentiality

 2  of the expert's report, the court may pay for no more than two

 3  additional experts appointed by court order. If an expert

 4  appointed by the court upon motion of counsel for the

 5  defendant specifically to evaluate the competence of the

 6  defendant to proceed also addresses in his or her evaluation

 7  issues related to sanity as an affirmative defense, the court

 8  shall pay only for that portion of the expert's fees relating

 9  to the evaluation on competency to proceed, and the balance of

10  the fees shall be chargeable to the defense.

11         (a)2.  Pursuant to s. 29.006, the office of the public

12  defender shall pay for any expert retained by the office.

13         (b)3.  Pursuant to s. 29.005, the office of the state

14  attorney shall pay for any expert retained by the office and.

15  Notwithstanding subparagraph 1., the office of the state

16  attorney shall pay for any expert whom the office retains and

17  whom the office moves the court to appoint in order to ensure

18  that the expert has access to the defendant.

19         (c)4.  An expert retained by the defendant who is

20  represented by private counsel appointed under s. 27.5303

21  shall be paid by the Justice Administrative Commission.

22         (d)5.  An expert retained by a defendant who is

23  indigent for costs as determined by the court and who is

24  represented by private counsel, other than private counsel

25  appointed under s. 27.5303, on a fee or pro bono basis, or who

26  is representing himself or herself, shall be paid by the

27  Justice Administrative Commission from funds specifically

28  appropriated for these expenses.

29         (e)(b)  State employees shall be paid expenses pursuant

30  to s. 112.061.

31         (f)(c)  The fees shall be taxed as costs in the case.

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 1         (g)(d)  In order for an expert to be paid for the

 2  services rendered, the expert's report and testimony must

 3  explicitly address each of the factors and follow the

 4  procedures set out in this chapter and in the Florida Rules of

 5  Criminal Procedure.

 6         Section 11.  Subsections (1) and (2) of section 916.12,

 7  Florida Statutes, are amended to read:

 8         916.12  Mental competence to proceed.--

 9         (1)  A defendant is incompetent to proceed within the

10  meaning of this chapter if the defendant does not have

11  sufficient present ability to consult with her or his lawyer

12  with a reasonable degree of rational understanding or if the

13  defendant has no rational, as well as factual, understanding

14  of the proceedings against her or him.

15         (2)  Mental health experts appointed pursuant to s.

16  916.115 An expert shall first determine whether the defendant

17  person is mentally ill and, if so, consider the factors

18  related to the issue of whether the defendant meets the

19  criteria for competence to proceed as described in subsection

20  (1); that is, whether the defendant has sufficient present

21  ability to consult with counsel with a reasonable degree of

22  rational understanding and whether the defendant has a

23  rational, as well as factual, understanding of the pending

24  proceedings. A defendant must be evaluated by no fewer than

25  two experts before the court commits the defendant or takes

26  other action authorized by this chapter or the Florida Rules

27  of Criminal Procedure, except if one expert finds that the

28  defendant is incompetent to proceed and the parties stipulate

29  to that finding, the court may commit the defendant or take

30  other action authorized by this chapter or the rules without

31  further evaluation or hearing, or the court may appoint no

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 1  more than two additional experts to evaluate the defendant.

 2  Notwithstanding any stipulation by the state and the

 3  defendant, the court may require a hearing with testimony from

 4  the expert or experts before ordering the commitment of a

 5  defendant.

 6         Section 12.  Section 916.13, Florida Statutes, is

 7  amended to read:

 8         916.13  Involuntary commitment of defendant adjudicated

 9  incompetent.--

10         (1)  Every defendant who is charged with a felony and

11  who is adjudicated incompetent to proceed, pursuant to the

12  applicable Florida Rules of Criminal Procedure, may be

13  involuntarily committed for treatment upon a finding by the

14  court of clear and convincing evidence that:

15         (a)  The defendant is mentally ill and because of the

16  mental illness:

17         1.  The defendant is manifestly incapable of surviving

18  alone or with the help of willing and responsible family or

19  friends, including available alternative services, and,

20  without treatment, the defendant is likely to suffer from

21  neglect or refuse to care for herself or himself and such

22  neglect or refusal poses a real and present threat of

23  substantial harm to the defendant's well-being; or and

24         2.  There is a substantial likelihood that in the near

25  future the defendant will inflict serious bodily harm on

26  herself or himself or another person, as evidenced by recent

27  behavior causing, attempting, or threatening such harm;

28         (b)  All available, less restrictive treatment

29  alternatives, including treatment in community residential

30  facilities or community inpatient or outpatient settings,

31  which would offer an opportunity for improvement of the

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 1  defendant's condition have been judged to be inappropriate;

 2  and

 3         (c)  There is a substantial probability that the mental

 4  illness causing the defendant's incompetence will respond to

 5  treatment and the defendant will regain competency to proceed

 6  in the reasonably foreseeable future.

 7         (2)  A defendant who has been charged with a felony and

 8  who has been adjudicated incompetent to proceed due to mental

 9  illness, and who meets the criteria for involuntary commitment

10  to the department under the provisions of this chapter, may be

11  committed to the department, and the department shall retain

12  and treat the defendant.  No later than 6 months after the

13  date of admission and or at the end of any period of extended

14  commitment, or at any time the administrator or designee shall

15  have determined that the defendant has regained competency to

16  proceed or no longer meets the criteria for continued

17  commitment, the administrator or designee shall file a report

18  with the court pursuant to the applicable Florida Rules of

19  Criminal Procedure.

20         Section 13.  Section 916.145, Florida Statutes, is

21  amended to read:

22         916.145  Adjudication of incompetency due to mental

23  illness; Dismissal of charges.--The charges against any

24  defendant adjudicated incompetent to proceed due to the

25  defendant's mental illness shall be dismissed without

26  prejudice to the state if the defendant remains incompetent to

27  proceed 5 years after such determination, unless the court in

28  its order specifies its reasons for believing that the

29  defendant will become competent to proceed within the

30  foreseeable future and specifies the time within which the

31  defendant is expected to become competent to proceed. The

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 1  charges against the defendant are dismissed without prejudice

 2  to the state to refile the charges should the defendant be

 3  declared competent to proceed in the future.

 4         Section 14.  Section 916.15, Florida Statutes, is

 5  amended to read:

 6         916.15  Involuntary commitment of defendant adjudicated

 7  not guilty by reason of insanity.--

 8         (1)  The determination of whether a defendant is not

 9  guilty by reason of insanity shall be determined in accordance

10  with Rule 3.217, Florida Rules of Criminal Procedure.

11         (2)(1)  A defendant who is acquitted of criminal

12  charges because of a finding of not guilty by reason of

13  insanity may be involuntarily committed pursuant to such

14  finding if the defendant is mentally ill and, because of the

15  illness, is manifestly dangerous to himself or herself or

16  others.

17         (3)(2)  Every defendant acquitted of criminal charges

18  by reason of insanity and found to meet the criteria for

19  involuntary commitment may be committed and treated in

20  accordance with the provisions of this section and the

21  applicable Florida Rules of Criminal Procedure.  The

22  department shall admit a defendant so adjudicated to an

23  appropriate facility or program for treatment and shall retain

24  and treat such defendant.  No later than 6 months after the

25  date of admission, prior to the end of any period of extended

26  commitment, or at any time the administrator or designee shall

27  have determined that the defendant no longer meets the

28  criteria for continued commitment placement, the administrator

29  or designee shall file a report with the court pursuant to the

30  applicable Florida Rules of Criminal Procedure.

31  

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 1         (4)(3)  In all proceedings under this section

 2  subsection, both the defendant and the state shall have the

 3  right to a hearing before the committing court. Evidence at

 4  such hearing may be presented by the hospital administrator or

 5  the administrator's designee as well as by the state and the

 6  defendant. The defendant shall have the right to counsel at

 7  any such hearing. In the event that a defendant is determined

 8  to be indigent pursuant to s. 27.52, the public defender shall

 9  represent the defendant. The parties shall have access to the

10  defendant's records at the treating facilities and may

11  interview or depose personnel who have had contact with the

12  defendant at the treating facilities.

13         Section 15.  Section 916.16, Florida Statutes, is

14  amended to read:

15         916.16  Jurisdiction of committing court.--

16         (1)  The committing court shall retain jurisdiction

17  over in the case of any defendant involuntarily committed due

18  to a determination of incompetency hospitalized as incompetent

19  to proceed due to a mental illness or because of a finding of

20  not guilty by reason of insanity pursuant to this chapter. The

21  No such defendant may not be released except by order of the

22  committing court. An The administrative hearing examiner does

23  not shall have no jurisdiction to determine issues of

24  continuing commitment hospitalization or release of any

25  defendant involuntarily committed admitted pursuant to this

26  chapter.

27         (2)  The committing court shall retain jurisdiction in

28  the case of any defendant placed on conditional release

29  pursuant to s. 916.17. No Such defendant may not be released

30  from the conditions of release except by order of the

31  committing court.

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 1         Section 16.  Section 916.17, Florida Statutes, is

 2  amended to read:

 3         916.17  Conditional release.--

 4         (1)  Except for an inmate also currently serving a

 5  prison sentence, The committing court may order a conditional

 6  release of any defendant who has been found to be incompetent

 7  to proceed or not guilty by reason of insanity, based on an

 8  approved plan for providing appropriate outpatient care and

 9  treatment. the committing court may order a conditional

10  release of any defendant in lieu of an involuntary commitment

11  to a facility pursuant to s. 916.13 or s. 916.15 based upon an

12  approved plan for providing appropriate outpatient care and

13  treatment. Upon a recommendation that outpatient treatment of

14  the defendant is appropriate, a written plan for outpatient

15  treatment, including recommendations from qualified

16  professionals, must be filed with the court, with copies to

17  all parties.  Such a plan may also be submitted by the

18  defendant and filed with the court with copies to all parties.

19  The plan shall include:

20         (a)  Special provisions for residential care or

21  adequate supervision of the defendant.

22         (b)  Provisions for outpatient mental health services.

23         (c)  If appropriate, recommendations for auxiliary

24  services such as vocational training, educational services, or

25  special medical care.

26  

27  In its order of conditional release, the court shall specify

28  the conditions of release based upon the release plan and

29  shall direct the appropriate agencies or persons to submit

30  periodic reports to the court regarding the defendant's

31  

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 1  compliance with the conditions of the release and progress in

 2  treatment, with copies to all parties.

 3         (2)  Upon the filing of an affidavit or statement under

 4  oath by any person that the defendant has failed to comply

 5  with the conditions of release, that the defendant's condition

 6  has deteriorated to the point that inpatient care is required,

 7  or that the release conditions should be modified, the court

 8  shall hold a hearing within 7 days after receipt of the

 9  affidavit or statement under oath. After the hearing, the

10  court may modify the release conditions. The court may also

11  order that the defendant be returned to the department if it

12  is found, after the appointment and report of experts, that

13  the person meets the criteria for involuntary commitment under

14  s. 916.13 or s. 916.15 treatment.

15         (3)  If at any time it is determined after a hearing

16  that the defendant who has been conditionally released under

17  subsection (1) no longer requires court-supervised followup

18  care, the court shall terminate its jurisdiction in the cause

19  and discharge the defendant.

20         Section 17.  Section 916.301, Florida Statutes, is

21  amended to read:

22         916.301  Appointment of experts.--

23         (1)  All evaluations ordered by the court under this

24  part must be conducted by qualified experts who have expertise

25  in evaluating persons with retardation or autism. The agency

26  department shall maintain and provide the courts annually with

27  a list of available retardation and autism professionals who

28  are appropriately licensed and qualified to perform

29  evaluations of defendants alleged to be incompetent to proceed

30  due to retardation or autism. The courts may use professionals

31  from this list when appointing experts and ordering

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 1  evaluations under this part for defendants suspected of being

 2  retarded or autistic.

 3         (2)  If a defendant's suspected mental condition is

 4  retardation or autism, the court shall appoint a panel of

 5  experts consisting of: two experts, one of whom must be the

 6  developmental services program of the department, each of whom

 7  will evaluate whether the defendant meets the definition of

 8  retardation or autism and, if so, whether the defendant is

 9  competent to proceed.

10         (a)(3)  At least one, or at the request of any party,

11  two experts the court may appoint one additional expert to

12  evaluate the defendant. The expert appointed by the court will

13  evaluate whether the defendant meets the definition of

14  retardation or autism and, if so, whether the defendant is

15  competent to proceed.

16         (b)(4)  The developmental services program shall select

17  A psychologist selected by the agency who is licensed or

18  authorized by law to practice in this state, with experience

19  in evaluating persons suspected of having retardation or

20  autism, and a social service professional, with experience in

21  working with persons with retardation or autism to evaluate

22  the defendant.

23         1.(a)  The psychologist shall evaluate whether the

24  defendant meets the definition of retardation or autism and,

25  if so, whether the defendant is incompetent to proceed due to

26  retardation or autism.

27         2.(b)  The social service professional shall provide a

28  social and developmental history of the defendant.

29         (5)  All evaluations ordered by the court must be from

30  qualified experts with experience in evaluating persons with

31  retardation or autism.

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 1         (3)(6)  The panel of experts may examine the defendant

 2  in jail, in another appropriate local facility, in a facility

 3  of the Department of Corrections, or on an outpatient basis.

 4         (4)(7)  Experts Expert witnesses appointed by the court

 5  to evaluate the mental condition of a defendant in a criminal

 6  case shall be allowed reasonable fees for services rendered as

 7  evaluators and as witnesses, which shall be paid by the court.

 8  State employees shall be paid expenses pursuant to s. 112.061.

 9  The fees shall be taxed as costs in the case. In order for the

10  experts to be paid for the services rendered, the reports and

11  testimony must explicitly address each of the factors and

12  follow the procedures set out in this chapter and in the

13  Florida Rules of Criminal Procedure.

14         Section 18.  Subsections (1) and (2) of section

15  916.3012, Florida Statutes, are amended to read:

16         916.3012  Mental competence to proceed.--

17         (1)  A defendant whose suspected mental condition is

18  retardation or autism is incompetent to proceed within the

19  meaning of this chapter if the defendant does not have

20  sufficient present ability to consult with the defendant's

21  lawyer with a reasonable degree of rational understanding or

22  if the defendant has no rational, as well as factual,

23  understanding of the proceedings against the defendant.

24         (2)  The Experts in retardation or autism, appointed

25  pursuant to s. 916.301, shall first consider whether the

26  defendant meets the definition of retardation or autism and,

27  if so, consider the factors related to the issue of whether

28  the defendant meets the criteria for competence to proceed as

29  described in subsection(1); that is, whether the defendant has

30  sufficient present ability to consult with counsel with a

31  reasonable degree of rational understanding and whether the

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 1  defendant has a rational, as well as factual, understanding of

 2  the pending proceedings.

 3         Section 19.  Section 916.302, Florida Statutes, is

 4  amended to read:

 5         916.302  Involuntary commitment of defendant determined

 6  to be incompetent to proceed due to retardation or autism.--

 7         (1)  CRITERIA.--Every defendant who is charged with a

 8  felony and who is adjudicated found to be incompetent to

 9  proceed due to retardation or autism, pursuant to this chapter

10  and the applicable Florida Rules of Criminal Procedure, may be

11  involuntarily committed for training upon a finding by the

12  court of clear and convincing evidence that:

13         (a)  The defendant has retardation or autism is

14  retarded or autistic;

15         (b)  There is a substantial likelihood that in the near

16  future the defendant will inflict serious bodily harm on

17  himself or herself or another person, as evidenced by recent

18  behavior causing, attempting, or threatening such harm;

19         (c)  All available, less restrictive alternatives,

20  including services provided in community residential

21  facilities or other community settings, which would offer an

22  opportunity for improvement of the condition have been judged

23  to be inappropriate; and

24         (d)  There is a substantial probability that the

25  retardation or autism causing the defendant's incompetence

26  will respond to training and the defendant will regain

27  competency to proceed in the reasonably foreseeable future.

28         (2)  ADMISSION TO A FACILITY.--

29         (a)  A defendant who has been charged with a felony and

30  who is found to be incompetent to proceed due to retardation

31  or autism, and who meets the criteria for involuntary

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 1  commitment to the agency department under the provisions of

 2  this chapter, shall be committed to the agency department, and

 3  the agency department shall retain and provide appropriate

 4  training for serve the defendant. No later than 6 months after

 5  the date of admission or at the end of any period of extended

 6  commitment or at any time the administrator or designee shall

 7  have determined that the defendant has regained competency to

 8  proceed or no longer meets the criteria for continued

 9  commitment, the administrator or designee shall file a report

10  with the court pursuant to this chapter and the applicable

11  Florida Rules of Criminal Procedure.

12         (b)  A defendant determined to be incompetent to

13  proceed due to retardation or autism may be ordered by a

14  circuit court into a forensic secure facility designated by

15  the agency department for retarded or autistic defendants.

16         (c)  The agency department may transfer a defendant

17  from a designated forensic secure facility to another

18  designated forensic secure facility and must notify the court

19  of the transfer within 30 days after the transfer is

20  completed.

21         (d)  The agency department may not transfer a defendant

22  from a designated forensic secure facility to a civil

23  nonsecure facility without first notifying the court, and all

24  parties, 30 days before the proposed transfer. If the court

25  objects to the proposed transfer to a nonsecure facility, it

26  must send its written objection to the agency department. The

27  agency department may transfer the defendant unless it

28  receives the written objection from the court within 30 days

29  after the court's receipt of the notice of the proposed

30  transfer.

31         (3)  PLACEMENT OF DUALLY DIAGNOSED DEFENDANTS.--

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 1         (a)  If a defendant is both retarded or autistic and

 2  mentally ill, evaluations must address which condition is

 3  primarily affecting the defendant's competency to proceed.

 4  Referral of the defendant should be made to a civil or

 5  forensic the facility or program most appropriate to address

 6  the symptoms which are the cause of the defendant's

 7  incompetence.

 8         (b)  Transfer from one civil or forensic facility or

 9  program to another civil or forensic facility or program may

10  occur when, in the department's and agency's judgment, it is

11  in the defendant's best treatment or training interests. The

12  department and agency shall submit an evaluation and

13  justification for the transfer to the court. The court may

14  consult with an outside expert if necessary. Transfer will

15  require an amended order from the committing court.

16         Section 20.  Section 916.3025, Florida Statutes, is

17  amended to read:

18         916.3025  Jurisdiction of committing court.--

19         (1)  The committing court shall retain jurisdiction in

20  the case of any defendant found to be incompetent to proceed

21  due to retardation or autism and ordered into a forensic

22  secure facility designated by the agency department for

23  retarded or autistic defendants. A No defendant may not be

24  released except by the order of the committing court. An

25  administrative hearing examiner does not have jurisdiction to

26  determine issues of continuing commitment or release of any

27  defendant involuntarily committed pursuant to this chapter.

28         (2)  The committing court shall retain jurisdiction in

29  the case of any defendant placed on conditional release

30  pursuant to s. 916.304. No Such defendant may not be released

31  

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 1  from the conditions of release except by order of the

 2  committing court.

 3         (3)  The committing court shall consider a the petition

 4  to involuntarily admit a defendant whose charges have been

 5  dismissed to residential services provided by the agency

 6  department's developmental services program a person whose

 7  charges have been dismissed, and, when applicable, to continue

 8  secure placement of such person as provided in s. 916.303. The

 9  committing court shall retain jurisdiction over such person so

10  long as he or she remains in secure placement or is on

11  conditional release as provided in s. 916.304. However, upon

12  request the court may transfer continuing jurisdiction to the

13  court in the circuit where the defendant resides. The

14  defendant may not be released from an order for secure

15  placement except by order of the court.

16         Section 21.  Section 916.303, Florida Statutes, is

17  amended to read:

18         916.303  Determination of incompetency due to

19  retardation or autism; dismissal of charges.--

20         (1)  The charges against any defendant found to be

21  incompetent to proceed due to retardation or autism shall be

22  dismissed without prejudice to the state if the defendant

23  remains incompetent to proceed within a reasonable time after

24  such determination, not to exceed 2 years, unless the court in

25  its order specifies its reasons for believing that the

26  defendant will become competent to proceed within the

27  foreseeable future and specifies the time within which the

28  defendant is expected to become competent to proceed. The

29  charges may be refiled by the state if against the defendant

30  are dismissed without prejudice to the state to refile the

31  

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 1  charges should the defendant is be declared competent to

 2  proceed in the future.

 3         (2)(a)  If the charges are dismissed and if the

 4  defendant is considered to lack sufficient capacity to give

 5  express and informed consent to a voluntary application for

 6  services and lacks the basic survival and self-care skills to

 7  provide for his or her well-being or is likely to physically

 8  injure himself or herself or others if allowed to remain at

 9  liberty, the agency department, the state attorney, or the

10  defendant's attorney shall may apply to the committing court

11  to involuntarily admit the defendant to residential services

12  pursuant to s. 393.11.

13         (3)(b)  If the defendant is considered to need

14  involuntary residential services for reasons described in

15  subsection (2) under s. 393.11 and, further, there is a

16  substantial likelihood that the defendant will injure another

17  person or continues to present a danger of escape, and all

18  available less restrictive alternatives, including services in

19  community residential facilities or other community settings,

20  which would offer an opportunity for improvement of the

21  condition have been judged to be inappropriate, then the

22  agency person or entity filing the petition under s. 393.11,

23  the state attorney, or the defendant's counsel may request,

24  the petitioning commission, or the department may also

25  petition the committing court to continue the defendant's

26  placement in a secure facility or program pursuant to this

27  part section. Any placement so continued under this subsection

28  must be defendant involuntarily admitted under this paragraph

29  shall have his or her status reviewed by the court at least

30  annually at a hearing.  The annual review and hearing shall

31  determine whether the defendant continues to meet the criteria

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 1  described in this subsection for involuntary residential

 2  services and, if so, whether the defendant still requires

 3  involuntary placement in a secure facility or program because

 4  the court finds that the defendant is likely to physically

 5  injure others as specified in s. 393.11 and whether the

 6  defendant is receiving adequate care, treatment, habilitation,

 7  and rehabilitation, including psychotropic medication and

 8  behavioral programming.  Notice of the annual review and

 9  review hearing shall be given to the state attorney and to the

10  defendant's attorney.  In no instance may a defendant's

11  placement in a secure facility or program exceed the maximum

12  sentence for the crime for which the defendant was charged.

13         Section 22.  Section 916.304, Florida Statutes, is

14  amended to read:

15         916.304  Conditional release.--

16         (1)  Except for an inmate also currently serving a

17  prison sentence, the committing court may order a conditional

18  release of any defendant who has been found to be incompetent

19  to proceed due to retardation or autism, based on an approved

20  plan for providing continuing community-based training. The

21  committing criminal court may order a conditional release of

22  any defendant to a civil facility in lieu of an involuntary

23  commitment to a forensic facility pursuant to s. 916.302. Upon

24  a recommendation that community-based training for the

25  defendant is appropriate, a written plan for community-based

26  training, including recommendations from qualified

27  professionals, may be filed with the court, with copies to all

28  parties.  Such a plan may also be submitted by the defendant

29  and filed with the court, with copies to all parties. The plan

30  must shall include:

31  

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 1         (a)  Special provisions for residential care and

 2  adequate supervision of the defendant, including recommended

 3  location of placement.

 4         (b)  Recommendations for auxiliary services such as

 5  vocational training, psychological training, educational

 6  services, leisure services, and special medical care.

 7  

 8  In its order of conditional release, the court shall specify

 9  the conditions of release based upon the release plan and

10  shall direct the appropriate agencies or persons to submit

11  periodic reports to the courts regarding the defendant's

12  compliance with the conditions of the release and progress in

13  training, with copies to all parties.

14         (2)  Upon the filing of an affidavit or statement under

15  oath by any person that the defendant has failed to comply

16  with the conditions of release, that the defendant's condition

17  has deteriorated, or that the release conditions should be

18  modified, the court shall hold a hearing within 7 days after

19  receipt of the affidavit or statement under oath. With notice

20  to the court, the agency may detain a defendant in a forensic

21  facility until the hearing occurs. After the hearing, the

22  court may modify the release conditions. The court may also

23  order that the defendant be placed into more appropriate

24  programs for further training or may order the defendant to be

25  committed returned to a forensic facility involuntary

26  residential services of the department if it is found, after

27  the appointment and report of experts, that the defendant

28  meets the criteria for placement in a forensic facility

29  involuntary residential services.

30         (3)  If at any time it is determined after a hearing

31  that the defendant conditionally released under subsection (1)

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 1  no longer requires court-supervised followup care, the court

 2  shall terminate its jurisdiction in the cause and discharge

 3  the defendant.

 4         Section 23.  Section 921.137, Florida Statutes, is

 5  amended to read:

 6         921.137  Imposition of the death sentence upon a

 7  mentally retarded defendant with retardation prohibited.--

 8         (1)  As used in this section, the term "mental

 9  retardation" means significantly subaverage general

10  intellectual functioning existing concurrently with deficits

11  in adaptive behavior and manifested during the period from

12  conception to age 18. The term "significantly subaverage

13  general intellectual functioning," for the purpose of this

14  section, means performance that is two or more standard

15  deviations from the mean score on a standardized intelligence

16  test specified in the rules of the Agency for Persons with

17  Disabilities Department of Children and Family Services. The

18  term "adaptive behavior," for the purpose of this definition,

19  means the effectiveness or degree with which an individual

20  meets the standards of personal independence and social

21  responsibility expected of his or her age, cultural group, and

22  community. The Agency for Persons with Disabilities Department

23  of Children and Family Services shall adopt rules to specify

24  the standardized intelligence tests as provided in this

25  subsection.

26         (2)  A sentence of death may not be imposed upon a

27  defendant convicted of a capital felony if it is determined in

28  accordance with this section that the defendant has mental

29  retardation.

30         (3)  A defendant charged with a capital felony who

31  intends to raise mental retardation as a bar to the death

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 1  sentence must give notice of such intention in accordance with

 2  the rules of court governing notices of intent to offer expert

 3  testimony regarding mental health mitigation during the

 4  penalty phase of a capital trial.

 5         (4)  After a defendant who has given notice of his or

 6  her intention to raise mental retardation as a bar to the

 7  death sentence is convicted of a capital felony and an

 8  advisory jury has returned a recommended sentence of death,

 9  the defendant may file a motion to determine whether the

10  defendant has mental retardation. Upon receipt of the motion,

11  the court shall appoint two experts in the field of mental

12  retardation who shall evaluate the defendant and report their

13  findings to the court and all interested parties prior to the

14  final sentencing hearing. Notwithstanding s. 921.141 or s.

15  921.142, the final sentencing hearing shall be held without a

16  jury. At the final sentencing hearing, the court shall

17  consider the findings of the court-appointed experts and

18  consider the findings of any other expert which is offered by

19  the state or the defense on the issue of whether the defendant

20  has mental retardation. If the court finds, by clear and

21  convincing evidence, that the defendant has mental retardation

22  as defined in subsection (1), the court may not impose a

23  sentence of death and shall enter a written order that sets

24  forth with specificity the findings in support of the

25  determination.

26         (5)  If a defendant waives his or her right to a

27  recommended sentence by an advisory jury following a plea of

28  guilt or nolo contendere to a capital felony and adjudication

29  of guilt by the court, or following a jury finding of guilt of

30  a capital felony, upon acceptance of the waiver by the court,

31  a defendant who has given notice as required in subsection (3)

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 1  may file a motion for a determination of mental retardation.

 2  Upon granting the motion, the court shall proceed as provided

 3  in subsection (4).

 4         (6)  If, following a recommendation by an advisory jury

 5  that the defendant be sentenced to life imprisonment, the

 6  state intends to request the court to order that the defendant

 7  be sentenced to death, the state must inform the defendant of

 8  such request if the defendant has notified the court of his or

 9  her intent to raise mental retardation as a bar to the death

10  sentence. After receipt of the notice from the state, the

11  defendant may file a motion requesting a determination by the

12  court of whether the defendant has mental retardation. Upon

13  granting the motion, the court shall proceed as provided in

14  subsection (4).

15         (7)  The state may appeal, pursuant to s. 924.07, a

16  determination of mental retardation made under subsection (4).

17         (8)  This section does not apply to a defendant who was

18  sentenced to death prior to the effective date of this act.

19         Section 24.  Paragraphs (d), (e), (g), and (h) of

20  subsection (1), subsections (2), (3), and (4), paragraph (b)

21  of subsection (5), and paragraph (a) of subsection (6) of

22  section 985.223, Florida Statutes, are amended to read:

23         985.223  Incompetency in juvenile delinquency cases.--

24         (1)  If, at any time prior to or during a delinquency

25  case, the court has reason to believe that the child named in

26  the petition may be incompetent to proceed with the hearing,

27  the court on its own motion may, or on the motion of the

28  child's attorney or state attorney must, stay all proceedings

29  and order an evaluation of the child's mental condition.

30         (d)  For incompetency evaluations related to mental

31  illness, the Department of Children and Family Services shall

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 1  maintain and annually provide the courts with a list of

 2  available mental health professionals who have completed a

 3  training program approved by the Department of Children and

 4  Family Services to perform the evaluations.

 5         (e)  For incompetency evaluations related to mental

 6  retardation or autism, the court shall order the Agency for

 7  Persons with Disabilities Developmental Disabilities Program

 8  Office within the Department of Children and Family Services

 9  to examine the child to determine if the child meets the

10  definition of "retardation" or "autism" in s. 393.063 and, if

11  so, whether the child is competent to proceed with delinquency

12  proceedings.

13         (g)  Immediately upon the filing of the court order

14  finding a child incompetent to proceed, the clerk of the court

15  shall notify the Department of Children and Family Services

16  and the Agency for Persons with Disabilities and fax or hand

17  deliver to the department and to the agency of Children and

18  Family Services a referral packet that which includes, at a

19  minimum, the court order, the charging documents, the

20  petition, and the court-appointed evaluator's reports.

21         (h)  After placement of the child in the appropriate

22  setting, the Department of Children and Family Services in

23  consultation with the Agency for Persons with Disabilities, as

24  appropriate, must, within 30 days after placement of the

25  Department of Children and Family Services places the child,

26  prepare and submit to the court a treatment or training plan

27  for the child's restoration of competency. A copy of the

28  treatment plan must be served upon the child's attorney, the

29  state attorney, and the attorneys representing the Department

30  of Juvenile Justice.

31  

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 1         (2)  A child who is mentally ill or retarded, who is

 2  adjudicated incompetent to proceed, and who has committed a

 3  delinquent act or violation of law, either of which would be a

 4  felony if committed by an adult, must be committed to the

 5  Department of Children and Family Services for treatment or

 6  training. A child who has been adjudicated incompetent to

 7  proceed because of age or immaturity, or for any reason other

 8  than for mental illness or retardation or autism, must not be

 9  committed to the department or to the Department of Children

10  and Family Services for restoration-of-competency treatment or

11  training services. For purposes of this section, a child who

12  has committed a delinquent act or violation of law, either of

13  which would be a misdemeanor if committed by an adult, may not

14  be committed to the department or to the Department of

15  Children and Family Services for restoration-of-competency

16  treatment or training services.

17         (3)  If the court finds that a child has mental

18  illness, mental retardation, or autism is mentally ill or

19  retarded and adjudicates the child incompetent to proceed, the

20  court must also determine whether the child meets the criteria

21  for secure placement. A child may be placed in a secure

22  facility or program if the court makes a finding by clear and

23  convincing evidence that:

24         (a)  The child has mental illness is mentally ill and

25  because of the mental illness; or the child has mental

26  retardation or autism is mentally retarded and because of the

27  mental retardation or autism:

28         1.  The child is manifestly incapable of surviving with

29  the help of willing and responsible family or friends,

30  including available alternative services, and without

31  treatment or training the child is likely to either suffer

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 1  from neglect or refuse to care for self, and such neglect or

 2  refusal poses a real and present threat of substantial harm to

 3  the child's well-being; or

 4         2.  There is a substantial likelihood that in the near

 5  future the child will inflict serious bodily harm on self or

 6  others, as evidenced by recent behavior causing, attempting,

 7  or threatening such harm; and

 8         (b)  All available less restrictive alternatives,

 9  including treatment or training in community residential

10  facilities or community settings which would offer an

11  opportunity for improvement of the child's condition, are

12  inappropriate.

13         (4)  A child who is determined to have mental illness,

14  mental retardation, or autism be mentally ill or retarded, who

15  has been adjudicated incompetent to proceed, and who meets the

16  criteria set forth in subsection (3), must be committed to the

17  Department of Children and Family Services, and receive

18  treatment or training the Department of Children and Family

19  Services must treat or train the child in a secure facility or

20  program that which is the least restrictive alternative

21  consistent with public safety.  Any placement of a child to a

22  secure residential program must be separate from adult

23  forensic programs.  If the child attains competency, then

24  custody, case management, and supervision of the child will be

25  transferred to the department in order to continue delinquency

26  proceedings; however, the court retains authority to order the

27  Department of Children and Family Services to provide

28  continued treatment or training to maintain competency.

29         (a)  A child adjudicated incompetent due to mental

30  retardation or autism may be ordered into a secure program or

31  facility designated by the Department of Children and Family

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 1  Services for retarded children with mental retardation or

 2  autism.

 3         (b)  A child adjudicated incompetent due to mental

 4  illness may be ordered into a secure program or facility

 5  designated by the Department of Children and Family Services

 6  for mentally ill children.

 7         (c)  Whenever a child is placed in a secure residential

 8  facility, the department will provide transportation to the

 9  secure residential facility for admission and from the secure

10  residential facility upon discharge.

11         (d)  The purpose of the treatment or training is the

12  restoration of the child's competency to proceed.

13         (e)  The service provider must file a written report

14  with the court pursuant to the applicable Florida Rules of

15  Juvenile Procedure not later than 6 months after the date of

16  commitment, or at the end of any period of extended treatment

17  or training, and at any time the Department of Children and

18  Family Services, through its service provider determines the

19  child has attained competency or no longer meets the criteria

20  for secure placement, or at such shorter intervals as ordered

21  by the court. A copy of a written report evaluating the

22  child's competency must be filed by the provider with the

23  court and with the state attorney, the child's attorney, the

24  department, and the Department of Children and Family

25  Services.

26         (5)

27         (b)  Whenever the provider files a report with the

28  court informing the court that the child will never become

29  competent to proceed, the Department of Children and Family

30  Services will develop a discharge plan for the child prior to

31  any hearing determining whether the child will ever become

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 1  competent to proceed and send the. The Department of Children

 2  and Family Services must send the proposed discharge plan to

 3  the court, the state attorney, the child's attorney, and the

 4  attorneys representing the Department of Juvenile Justice. The

 5  provider will continue to provide services to the child until

 6  the court issues the order finding the child will never become

 7  competent to proceed.

 8         (6)(a)  If a child is determined to have mental

 9  illness, mental retardation, or autism be mentally ill or

10  retarded and is found to be incompetent to proceed but does

11  not meet the criteria set forth in subsection (3), the court

12  shall commit the child to the Department of Children and

13  Family Services and shall order the Department of Children and

14  Family Services to provide appropriate treatment and training

15  in the community. The purpose of the treatment or training is

16  the restoration of the child's competency to proceed.

17         Section 25.  Paragraph (b) of subsection (14) of

18  section 287.057, Florida Statutes, is amended to read:

19         287.057  Procurement of commodities or contractual

20  services.--

21         (14)

22         (b)  Notwithstanding paragraph (a), the Department of

23  Children and Family Services may enter into agreements, not to

24  exceed 20 years, with a private provider to finance, design,

25  and construct a forensic treatment facility, as defined in s.

26  916.106(10) s. 916.106(8), of at least 200 beds and to operate

27  all aspects of daily operations within the forensic treatment

28  facility. The selected contractor is authorized to sponsor the

29  issuance of tax-exempt certificates of participation or other

30  securities to finance the project, and the state is authorized

31  

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 1  to enter into a lease-purchase agreement for the forensic

 2  treatment facility. This paragraph expires July 1, 2006.

 3         Section 26.  Paragraph (r) of subsection (3) of section

 4  408.036, Florida Statutes, is amended to read:

 5         408.036  Projects subject to review; exemptions.--

 6         (3)  EXEMPTIONS.--Upon request, the following projects

 7  are subject to exemption from the provisions of subsection

 8  (1):

 9         (r)  For beds in state mental health treatment

10  facilities operated under s. 394.455(30) and state mental

11  health forensic facilities operated under chapter 916 s.

12  916.106(8).

13         Section 27.  Paragraph (a) of subsection (4) of section

14  943.0585, Florida Statutes, is amended to read:

15         943.0585  Court-ordered expunction of criminal history

16  records.--The courts of this state have jurisdiction over

17  their own procedures, including the maintenance, expunction,

18  and correction of judicial records containing criminal history

19  information to the extent such procedures are not inconsistent

20  with the conditions, responsibilities, and duties established

21  by this section. Any court of competent jurisdiction may order

22  a criminal justice agency to expunge the criminal history

23  record of a minor or an adult who complies with the

24  requirements of this section. The court shall not order a

25  criminal justice agency to expunge a criminal history record

26  until the person seeking to expunge a criminal history record

27  has applied for and received a certificate of eligibility for

28  expunction pursuant to subsection (2). A criminal history

29  record that relates to a violation of s. 393.135, s. 394.4593,

30  s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 817.034, s.

31  825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,

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 1  s. 847.0145, s. 893.135,  s. 916.1075, or a violation

 2  enumerated in s. 907.041 may not be expunged, without regard

 3  to whether adjudication was withheld, if the defendant was

 4  found guilty of or pled guilty or nolo contendere to the

 5  offense, or if the defendant, as a minor, was found to have

 6  committed, or pled guilty or nolo contendere to committing,

 7  the offense as a delinquent act. The court may only order

 8  expunction of a criminal history record pertaining to one

 9  arrest or one incident of alleged criminal activity, except as

10  provided in this section. The court may, at its sole

11  discretion, order the expunction of a criminal history record

12  pertaining to more than one arrest if the additional arrests

13  directly relate to the original arrest. If the court intends

14  to order the expunction of records pertaining to such

15  additional arrests, such intent must be specified in the

16  order. A criminal justice agency may not expunge any record

17  pertaining to such additional arrests if the order to expunge

18  does not articulate the intention of the court to expunge a

19  record pertaining to more than one arrest. This section does

20  not prevent the court from ordering the expunction of only a

21  portion of a criminal history record pertaining to one arrest

22  or one incident of alleged criminal activity. Notwithstanding

23  any law to the contrary, a criminal justice agency may comply

24  with laws, court orders, and official requests of other

25  jurisdictions relating to expunction, correction, or

26  confidential handling of criminal history records or

27  information derived therefrom. This section does not confer

28  any right to the expunction of any criminal history record,

29  and any request for expunction of a criminal history record

30  may be denied at the sole discretion of the court.

31  

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 1         (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

 2  criminal history record of a minor or an adult which is

 3  ordered expunged by a court of competent jurisdiction pursuant

 4  to this section must be physically destroyed or obliterated by

 5  any criminal justice agency having custody of such record;

 6  except that any criminal history record in the custody of the

 7  department must be retained in all cases. A criminal history

 8  record ordered expunged that is retained by the department is

 9  confidential and exempt from the provisions of s. 119.07(1)

10  and s. 24(a), Art. I of the State Constitution and not

11  available to any person or entity except upon order of a court

12  of competent jurisdiction. A criminal justice agency may

13  retain a notation indicating compliance with an order to

14  expunge.

15         (a)  The person who is the subject of a criminal

16  history record that is expunged under this section or under

17  other provisions of law, including former s. 893.14, former s.

18  901.33, and former s. 943.058, may lawfully deny or fail to

19  acknowledge the arrests covered by the expunged record, except

20  when the subject of the record:

21         1.  Is a candidate for employment with a criminal

22  justice agency;

23         2.  Is a defendant in a criminal prosecution;

24         3.  Concurrently or subsequently petitions for relief

25  under this section or s. 943.059;

26         4.  Is a candidate for admission to The Florida Bar;

27         5.  Is seeking to be employed or licensed by or to

28  contract with the Department of Children and Family Services

29  or the Department of Juvenile Justice or to be employed or

30  used by such contractor or licensee in a sensitive position

31  having direct contact with children, the developmentally

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 1  disabled, the aged, or the elderly as provided in s.

 2  110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.

 3  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4),

 4  chapter 916 s. 916.106(10) and (13), s. 985.407, or chapter

 5  400; or

 6         6.  Is seeking to be employed or licensed by the

 7  Department of Education, any district school board, any

 8  university laboratory school, any charter school, any private

 9  or parochial school, or any local governmental entity that

10  licenses child care facilities.

11         Section 28.  Paragraph (a) of subsection (4) of section

12  943.059, Florida Statutes, is amended to read:

13         943.059  Court-ordered sealing of criminal history

14  records.--The courts of this state shall continue to have

15  jurisdiction over their own procedures, including the

16  maintenance, sealing, and correction of judicial records

17  containing criminal history information to the extent such

18  procedures are not inconsistent with the conditions,

19  responsibilities, and duties established by this section. Any

20  court of competent jurisdiction may order a criminal justice

21  agency to seal the criminal history record of a minor or an

22  adult who complies with the requirements of this section. The

23  court shall not order a criminal justice agency to seal a

24  criminal history record until the person seeking to seal a

25  criminal history record has applied for and received a

26  certificate of eligibility for sealing pursuant to subsection

27  (2). A criminal history record that relates to a violation of

28  s. 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03,

29  s. 800.04, s. 817.034, s. 825.1025, s. 827.071, chapter 839,

30  s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.

31  916.1075, or a violation enumerated in s. 907.041 may not be

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 1  sealed, without regard to whether adjudication was withheld,

 2  if the defendant was found guilty of or pled guilty or nolo

 3  contendere to the offense, or if the defendant, as a minor,

 4  was found to have committed or pled guilty or nolo contendere

 5  to committing the offense as a delinquent act. The court may

 6  only order sealing of a criminal history record pertaining to

 7  one arrest or one incident of alleged criminal activity,

 8  except as provided in this section. The court may, at its sole

 9  discretion, order the sealing of a criminal history record

10  pertaining to more than one arrest if the additional arrests

11  directly relate to the original arrest. If the court intends

12  to order the sealing of records pertaining to such additional

13  arrests, such intent must be specified in the order. A

14  criminal justice agency may not seal any record pertaining to

15  such additional arrests if the order to seal does not

16  articulate the intention of the court to seal records

17  pertaining to more than one arrest. This section does not

18  prevent the court from ordering the sealing of only a portion

19  of a criminal history record pertaining to one arrest or one

20  incident of alleged criminal activity. Notwithstanding any law

21  to the contrary, a criminal justice agency may comply with

22  laws, court orders, and official requests of other

23  jurisdictions relating to sealing, correction, or confidential

24  handling of criminal history records or information derived

25  therefrom. This section does not confer any right to the

26  sealing of any criminal history record, and any request for

27  sealing a criminal history record may be denied at the sole

28  discretion of the court.

29         (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A

30  criminal history record of a minor or an adult which is

31  ordered sealed by a court of competent jurisdiction pursuant

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 1  to this section is confidential and exempt from the provisions

 2  of s. 119.07(1) and s. 24(a), Art. I of the State Constitution

 3  and is available only to the person who is the subject of the

 4  record, to the subject's attorney, to criminal justice

 5  agencies for their respective criminal justice purposes, or to

 6  those entities set forth in subparagraphs (a)1., 4., 5., and

 7  6. for their respective licensing and employment purposes.

 8         (a)  The subject of a criminal history record sealed

 9  under this section or under other provisions of law, including

10  former s. 893.14, former s. 901.33, and former s. 943.058, may

11  lawfully deny or fail to acknowledge the arrests covered by

12  the sealed record, except when the subject of the record:

13         1.  Is a candidate for employment with a criminal

14  justice agency;

15         2.  Is a defendant in a criminal prosecution;

16         3.  Concurrently or subsequently petitions for relief

17  under this section or s. 943.0585;

18         4.  Is a candidate for admission to The Florida Bar;

19         5.  Is seeking to be employed or licensed by or to

20  contract with the Department of Children and Family Services

21  or the Department of Juvenile Justice or to be employed or

22  used by such contractor or licensee in a sensitive position

23  having direct contact with children, the developmentally

24  disabled, the aged, or the elderly as provided in s.

25  110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.

26  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

27  415.103, chapter 916 s. 916.106(10) and (13), s. 985.407, or

28  chapter 400; or

29         6.  Is seeking to be employed or licensed by the

30  Department of Education, any district school board, any

31  university laboratory school, any charter school, any private

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 1  or parochial school, or any local governmental entity that

 2  licenses child care facilities.

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

 4  law.

 5  

 6          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 7                         Senate Bill 2010

 8                                 

 9  Restores a requirement that restrictions on a client's right
    to communicate be reviewed every seven days.
10  
    Adds definitions for "restraint" and "seclusion," provides
11  legislative intent regarding their use, and requires the
    Agency for Persons with Disabilities and the Department of
12  Children and Family Services to adopt rules regarding their
    use in forensic facilities.
13  
    Restores references to specific Rules of Criminal Procedure
14  regarding forensic commitments.

15  Restores a requirement that the Inspectors General of the
    Agency for Persons with Disabilities and the Department of
16  Children and Family Services notify the state attorney of
    sexual misconduct by employees.
17  
    Reinstates current law which provides that sexual misconduct
18  requires that the perpetrator must have knowledge that an
    individual is a forensic client.
19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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