HB 251

1
A bill to be entitled
2An act relating to high-risk offenders; providing a short
3title; amending s. 794.011, F.S., and reenacting
4subsections (3), (4), and (5), relating to persons
5committing sexual battery upon certain persons, to
6incorporate the amendment to s. 794.0115, F.S., in
7references thereto; prohibiting a prosecutor who charges a
8person with certain sexual battery violations from
9presenting or entering into certain plea bargains;
10providing that sexual predators who commit a sexual
11battery against certain victims shall be sentenced to life
12in prison without the possibility of parole or gain-time;
13amending s. 794.0115, F.S.; increasing the mandatory
14minimum sentence applicable to dangerous sexual felony
15offenders; amending s. 794.065, F.S.; providing for county
16or municipal ordinances relating to the residence of
17persons subject to registration as sexual offenders or
18designated as sexual predators; amending s. 1012.465,
19F.S.; revising provisions relating to background screening
20requirements for certain noninstructional school district
21employees and contractors; requiring annual screening;
22revising and providing definitions; providing for creation
23of the Statewide Background Screening Clearinghouse for
24background screening results for contractors; requiring
25disposal of such results after a specified time; providing
26for a statewide credential; providing requirements for
27renewal of the credential; providing rulemaking authority;
28requiring certain persons to inform their employer or the
29party with whom they are under contract and the Department
30of Education of a charge of a disqualifying offense within
31a specified period; providing criminal penalties;
32reenacting s. 1012.32(2)(a), (b), and (c), F.S., relating
33to qualifications of personnel, to incorporate the
34amendments to s. 1012.465, F.S., in references thereto;
35providing applicability; providing an effective date.
36
37Be It Enacted by the Legislature of the State of Florida:
38
39     Section 1.  This act may be cited as the "Sexual Predator
40Elimination Act."
41     Section 2.  Paragraph (a) of subsection (2) and paragraph
42(c) of subsection (8) of section 794.011, Florida Statutes, are
43amended, subsections (3), (4), and (5) are reenacted, and
44subsection (11) is added to that section, to read:
45     794.011  Sexual battery.--
46     (2)(a)  A person 18 years of age or older who commits
47sexual battery upon, or in an attempt to commit sexual battery
48injures the sexual organs of, a person less than 12 years of age
49commits a capital felony, punishable as provided in ss. 775.082
50and 921.141. Any prosecutor who charges a person with a
51violation of this paragraph shall not present or enter into with
52the accused any plea bargain for a term of less than life in
53prison without the possibility of parole or eligibility for
54gain-time.
55     (3)  A person who commits sexual battery upon a person 12
56years of age or older, without that person's consent, and in the
57process thereof uses or threatens to use a deadly weapon or uses
58actual physical force likely to cause serious personal injury
59commits a life felony, punishable as provided in s. 775.082, s.
60775.083, s. 775.084, or s. 794.0115.
61     (4)  A person who commits sexual battery upon a person 12
62years of age or older without that person's consent, under any
63of the following circumstances, commits a felony of the first
64degree, punishable as provided in s. 775.082, s. 775.083, s.
65775.084, or s. 794.0115:
66     (a)  When the victim is physically helpless to resist.
67     (b)  When the offender coerces the victim to submit by
68threatening to use force or violence likely to cause serious
69personal injury on the victim, and the victim reasonably
70believes that the offender has the present ability to execute
71the threat.
72     (c)  When the offender coerces the victim to submit by
73threatening to retaliate against the victim, or any other
74person, and the victim reasonably believes that the offender has
75the ability to execute the threat in the future.
76     (d)  When the offender, without the prior knowledge or
77consent of the victim, administers or has knowledge of someone
78else administering to the victim any narcotic, anesthetic, or
79other intoxicating substance which mentally or physically
80incapacitates the victim.
81     (e)  When the victim is mentally defective and the offender
82has reason to believe this or has actual knowledge of this fact.
83     (f)  When the victim is physically incapacitated.
84     (g)  When the offender is a law enforcement officer,
85correctional officer, or correctional probation officer as
86defined by s. 943.10(1), (2), (3), (6), (7), (8), or (9), who is
87certified under the provisions of s. 943.1395 or is an elected
88official exempt from such certification by virtue of s. 943.253,
89or any other person in a position of control or authority in a
90probation, community control, controlled release, detention,
91custodial, or similar setting, and such officer, official, or
92person is acting in such a manner as to lead the victim to
93reasonably believe that the offender is in a position of control
94or authority as an agent or employee of government.
95     (5)  A person who commits sexual battery upon a person 12
96years of age or older, without that person's consent, and in the
97process thereof does not use physical force and violence likely
98to cause serious personal injury commits a felony of the second
99degree, punishable as provided in s. 775.082, s. 775.083, s.
100775.084, or s. 794.0115.
101     (8)  Without regard to the willingness or consent of the
102victim, which is not a defense to prosecution under this
103subsection, a person who is in a position of familial or
104custodial authority to a person less than 18 years of age and
105who:
106     (c)  Engages in any act with that person while the person
107is less than 12 years of age which constitutes sexual battery
108under paragraph (1)(h), or in an attempt to commit sexual
109battery injures the sexual organs of such person commits a
110capital or life felony, punishable pursuant to subsection (2).
111     (11)  Notwithstanding any other provision of law, any
112person who has been designated as a sexual predator under s.
113775.21 who is convicted of an offense under this chapter upon a
114child under 12 years of age that is classified as a capital
115felony, a life felony, or a first degree felony and who was 18
116years of age or older at the time of the offense shall be
117sentenced to life in prison without the possibility of parole or
118eligibility for gain-time.
119     Section 3.  Subsection (2) of section 794.0115, Florida
120Statutes, is amended to read:
121     794.0115  Dangerous sexual felony offender; mandatory
122sentencing.--
123     (2)  Any person who is convicted of a violation of s.
124787.025; s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or
125(5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); or s.
126847.0145; or of any similar offense under a former designation,
127which offense the person committed when he or she was 18 years
128of age or older, and the person:
129     (a)  Caused serious personal injury to the victim as a
130result of the commission of the offense;
131     (b)  Used or threatened to use a deadly weapon during the
132commission of the offense;
133     (c)  Victimized more than one person during the course of
134the criminal episode applicable to the offense;
135     (d)  Committed the offense while under the jurisdiction of
136a court for a felony offense under the laws of this state, for
137an offense that is a felony in another jurisdiction, or for an
138offense that would be a felony if that offense were committed in
139this state; or
140     (e)  Has previously been convicted of a violation of s.
141787.025; s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or
142(5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); s.
143847.0145; of any offense under a former statutory designation
144which is similar in elements to an offense described in this
145paragraph; or of any offense that is a felony in another
146jurisdiction, or would be a felony if that offense were
147committed in this state, and which is similar in elements to an
148offense described in this paragraph,
149
150is a dangerous sexual felony offender, who must be sentenced to
151a mandatory minimum term of life in prison without the
152possibility of parole or eligibility for gain-time 25 years
153imprisonment up to, and including, life imprisonment.
154     Section 4.  Subsection (3) is added to section 794.065,
155Florida Statutes, to read:
156     794.065  Unlawful place of residence for persons convicted
157of certain sex offenses.--
158     (3)  No state law shall prevent a county or municipality
159from enacting an ordinance relating to the residence of persons
160subject to registration as sexual offenders under s. 943.0435 or
161designated as sexual predators under s. 775.21 that restricts
162the residence of such persons within its jurisdiction as it may
163deem appropriate to protect its citizens.
164     Section 5.  Section 1012.465, Florida Statutes, is amended
165to read:
166     1012.465  Background screening requirements for certain
167noninstructional school district employees and contractors;
168statewide clearinghouse.--
169     (1)  Noninstructional school district employees or
170contractual personnel who are permitted access on school grounds
171when students are present, who have direct contact with
172students, or who have access to or control of school funds must
173meet level 2 screening requirements as described in s. 1012.32.
174For purposes of this section, the terms "contractual personnel"
175and "contractor" shall include any vendor, individual, or entity
176under contract with the school board who receives remuneration
177for services performed for the school board but is not otherwise
178considered an employee of the school board. The terms also
179include any employee of a contractor who performs services for
180the school board under the contract.
181     (2)  Annually Every 5 years following employment or entry
182into a contract in a capacity described in subsection (1),
183unless otherwise provided in subsection (3), each person who is
184so employed or under contract with the school district must meet
185level 2 screening requirements as described in s. 1012.32, at
186which time the school district shall request the Department of
187Law Enforcement to forward the fingerprints to the Federal
188Bureau of Investigation for the level 2 screening, and the
189background screening results for persons under contract in a
190capacity as described in subsection (1) shall be stored in the
191statewide clearinghouse as provided under section (3). If, for
192any reason following employment or entry into a contract in a
193capacity described in subsection (1), the fingerprints of a
194person who is so employed or under contract with the school
195district are not retained by the Department of Law Enforcement
196under s. 1012.32(3)(a) and (b), the person must file a complete
197set of fingerprints with the district school superintendent of
198the employing or contracting school district. Upon submission of
199fingerprints for this purpose, the school district shall request
200the Department of Law Enforcement to forward the fingerprints to
201the Federal Bureau of Investigation for the level 2 screening,
202and the fingerprints shall be retained by the Department of Law
203Enforcement under s. 1012.32(3)(a) and (b) and, for persons
204under contract in a capacity as described in subsection (1),
205entered in the statewide clearinghouse database as provided
206under subsection (3). The cost of the state and federal criminal
207history check required by level 2 screening may be borne by the
208district school board, the contractor, or the person
209fingerprinted. Under penalty of perjury, each person who is
210employed or under contract in a capacity described in subsection
211(1) must agree to inform his or her employer or the party with
212whom he or she is under contract within 48 hours if convicted of
213any disqualifying offense while he or she is employed or under
214contract in that capacity.
215     (3)(a)  The Department of Education, in cooperation with
216the Department of Law Enforcement, shall create the Statewide
217Background Screening Clearinghouse that shall maintain a
218database of background screening results for contractual
219personnel screened under subsection (2) and for contractual
220personnel seeking background screening clearance prior to
221employment or entry into a contract in a capacity described in
222subsection (1). The Department of Education shall provide each
223contractor who passes the required level 2 screening with a
224statewide credential, bearing a photograph of the contractor,
225indicating that the contractor has passed the level 2 screening.
226The credential shall be valid for 1 year at the end of which
227time the contractor must reapply for a background screening as
228provided under section (2) without requiring additional
229fingerprints to be taken, except as provided in subsection (2).
230The credential shall be accepted in all counties and in lieu of
231the background screening that would be required of the
232individual under this section during the period that the
233credential is valid. The cost of the initial state and federal
234criminal history check required by level 2 screening may be
235borne by the district school board or the contractor. Screening
236results shall be disposed of after 12 months.
237     (b)  Each year, each person who is under such contract with
238the school district as described in subsection (1) must apply to
239the local school district to renew his or her credential. The
240local school district shall repeat the background screening
241process pursuant to paragraph (a) and, if the individual
242continues to meet level 2 screening requirements, issue a
243renewed credential valid for 1 year. The individual so engaged
244shall present the school district with his or her renewed
245credential at the first opportunity following the expiration of
246the individual's previous credential.
247     (c)  The Department of Education may adopt rules pursuant
248to ss. 120.536(1) and 120.54 to implement the provisions of this
249subsection.
250     (4)(3)  If it is found that a person who is employed or
251under contract in a capacity described in subsection (1) does
252not meet the level 2 requirements, the person shall be
253immediately suspended from working in that capacity and shall
254remain suspended until final resolution of any appeals.
255     (5)(a)  Each person who is employed or under contract in a
256capacity described in subsection (1) must agree as a condition
257of receiving the credential under subsection (3) to inform his
258or her employer or the party with whom he or she is under
259contract and the Department of Education within 48 hours if
260charged with any disqualifying offense while he or she is
261employed or under contract in that capacity.
262     (b)  A person who willfully fails to comply with paragraph
263(a) commits a felony of the third degree, punishable as provided
264in s. 775.082, s. 775.083, or s. 775.084.
265     Section 6.  For the purpose of incorporating the amendment
266made by this act to section 1012.465, Florida Statutes, in
267references thereto, paragraphs (a), (b), and (c) of subsection
268(2) of section 1012.32, Florida Statutes, are reenacted to read:
269     1012.32  Qualifications of personnel.--
270     (2)(a)  Instructional and noninstructional personnel who
271are hired or contracted to fill positions requiring direct
272contact with students in any district school system or
273university lab school shall, upon employment or engagement to
274provide services, undergo background screening as required under
275s. 1012.465 or s. 1012.56, whichever is applicable.
276     (b)  Instructional and noninstructional personnel who are
277hired or contracted to fill positions in any charter school and
278members of the governing board of any charter school, in
279compliance with s. 1002.33(12)(g), shall, upon employment,
280engagement of services, or appointment, undergo background
281screening as required under s. 1012.465 or s. 1012.56, whichever
282is applicable, by filing with the district school board for the
283school district in which the charter school is located a
284complete set of fingerprints taken by an authorized law
285enforcement agency or an employee of the school or school
286district who is trained to take fingerprints.
287     (c)  Instructional and noninstructional personnel who are
288hired or contracted to fill positions requiring direct contact
289with students in an alternative school that operates under
290contract with a district school system shall, upon employment or
291engagement to provide services, undergo background screening as
292required under s. 1012.465 or s. 1012.56, whichever is
293applicable, by filing with the district school board for the
294school district to which the alternative school is under
295contract a complete set of fingerprints taken by an authorized
296law enforcement agency or an employee of the school or school
297district who is trained to take fingerprints.
298
299Fingerprints shall be submitted to the Department of Law
300Enforcement for state processing and to the Federal Bureau of
301Investigation for federal processing. Persons subject to this
302subsection found through fingerprint processing to have been
303convicted of a crime involving moral turpitude shall not be
304employed, engaged to provide services, or serve in any position
305requiring direct contact with students. Probationary persons
306subject to this subsection terminated because of their criminal
307record have the right to appeal such decisions. The cost of the
308background screening may be borne by the district school board,
309the charter school, the employee, the contractor, or a person
310subject to this subsection.
311     Section 7.  The amendments to ss. 794.011 and 794.0115,
312Florida Statutes, by this act shall apply to offenses committed
313on or after the effective date of this act.
314     Section 8.  This act shall take effect upon becoming a law.


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