Senate Bill sb0146c1

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    Florida Senate - 2007                            CS for SB 146

    By the Committee on Criminal Justice; and Senator Dockery





    591-1860-07

  1                      A bill to be entitled

  2         An act relating to violent felony offenders;

  3         providing a short title; creating s. 903.0351,

  4         F.S.; prohibiting bail or other pretrial

  5         release for specified violent felony offenders

  6         of special concern without a hearing; amending

  7         s. 948.06, F.S.; providing definitions;

  8         providing that certain alleged violations of

  9         probation or community control by violent

10         felony offenders of special concern require

11         hearings and require the alleged offenders to

12         remain in custody pending hearing; providing

13         requirements for such hearings; creating s.

14         948.064, F.S.; providing for notification to

15         the criminal justice system of an offender's

16         status as a violent felony offender of special

17         concern; amending s. 921.0024, F.S.; revising

18         the worksheet computations of the Criminal

19         Punishment Code to provide additional community

20         sanction violation points for certain community

21         sanction violations committed by violent felony

22         offenders of special concern; reenacting ss.

23         948.012(2)(b), 948.10(9), and 958.14, F.S.,

24         relating to split sentence of probation or

25         community control and imprisonment, community

26         control programs, and violation of probation or

27         community control, respectively, to incorporate

28         the amendment to s. 948.06, F.S., in references

29         thereto; providing for severability; providing

30         an effective date.

31  

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

 2  

 3         Section 1.  This act may be cited as the "Anti-Murder

 4  Act."

 5         Section 2.  Section 903.0351, Florida Statutes, is

 6  created to read:

 7         903.0351  Violent felony offenders of special concern;

 8  pretrial release hearing required.--A violent felony offender

 9  of special concern, as defined in s. 948.06, who has been

10  arrested for an alleged violation of probation or community

11  control shall not be granted bail or any other form of

12  pretrial release prior to the resolution of the probation or

13  community control violation hearing, unless the violation

14  charge or arrest is based solely on the offender's failure to

15  pay costs or fines or make restitution payments.

16         Section 3.  Subsection (4) of section 948.06, Florida

17  Statutes, is amended, and subsection (8) is added to that

18  section, to read:

19         948.06  Violation of probation or community control;

20  revocation; modification; continuance; failure to pay

21  restitution or cost of supervision.--

22         (4)  Notwithstanding any other provision of this

23  section, a probationer or an offender in community control who

24  is arrested for violating his or her probation or community

25  control in a material respect may be taken before the court in

26  the county or circuit in which the probationer or offender was

27  arrested. That court shall advise him or her of the such

28  charge of a violation and, if such charge is admitted, shall

29  cause him or her to be brought before the court that which

30  granted the probation or community control. If the such

31  violation is not admitted by the probationer or offender, the

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 1  court may commit him or her or release him or her with or

 2  without bail to await further hearing. However, if the

 3  probationer or offender is under supervision for any criminal

 4  offense proscribed in chapter 794, s. 800.04(4), (5), (6), s.

 5  827.071, or s. 847.0145, or is a registered sexual predator or

 6  a registered sexual offender, or is under supervision for a

 7  criminal offense for which he or she would meet the

 8  registration criteria in s. 775.21, s. 943.0435, or s. 944.607

 9  but for the effective date of those sections, the court must

10  make a finding that the probationer or offender is not a

11  danger to the public prior to release with or without bail. In

12  determining the danger posed by the offender's or

13  probationer's release, the court may consider the nature and

14  circumstances of the violation and any new offenses charged;

15  the offender's or probationer's past and present conduct,

16  including convictions of crimes; any record of arrests without

17  conviction for crimes involving violence or sexual crimes; any

18  other evidence of allegations of unlawful sexual conduct or

19  the use of violence by the offender or probationer; the

20  offender's or probationer's family ties, length of residence

21  in the community, employment history, and mental condition;

22  his or her history and conduct during the probation or

23  community control supervision from which the violation arises

24  and any other previous supervisions, including disciplinary

25  records of previous incarcerations; the likelihood that the

26  offender or probationer will engage again in a criminal course

27  of conduct; the weight of the evidence against the offender or

28  probationer; and any other facts the court considers relevant.

29  The court, as soon as is practicable, shall give the

30  probationer or offender an opportunity to be fully heard on

31  his or her behalf in person or by counsel. After the such

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 1  hearing, the court shall make findings of fact and forward the

 2  findings to the court that which granted the probation or

 3  community control and to the probationer or offender or his or

 4  her attorney. The findings of fact by the hearing court are

 5  binding on the court that which granted the probation or

 6  community control. Upon the probationer or offender being

 7  brought before it, the court that which granted the probation

 8  or community control may revoke, modify, or continue the

 9  probation or community control or may place the probationer

10  into community control as provided in this section. However,

11  if any violation other than a failure to pay costs or fines or

12  make restitution payments is alleged to have been committed by

13  a violent felony offender of special concern, as defined in

14  this section, the probationer or offender shall not be

15  released and shall not be admitted to bail, but shall be

16  brought before the court that granted the probation or

17  community control.

18         (8)(a)  In addition to complying with the provisions of

19  subsections (1)-(7), this subsection provides further

20  requirements regarding a probationer or offender in community

21  control who is a violent felony offender of special concern.

22  The provisions of this subsection shall control over any

23  conflicting provisions in subsections (1)-(7).

24         (b)  For purposes of this subsection and ss. 903.0351,

25  948.064, and 921.0024, the term "violent felony offender of

26  special concern" means a person who is on:

27         1.  Probation or community control related to the

28  commission of a qualifying offense committed on or after the

29  effective date of this act;

30         2.  Probation or community control for any offense

31  committed on or after the effective date of this act, and has

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 1  previously been convicted of or had adjudication withheld for

 2  a qualifying offense;

 3         3.  Probation or community control for any offense

 4  committed on or after the effective date of this act, and is

 5  found to have violated that probation or community control by

 6  committing a qualifying offense;

 7         4.  Probation or community control and has previously

 8  been found by a court to be a habitual violent felony offender

 9  as defined in s. 775.084(1)(b) and has committed a qualifying

10  offense on or after the effective date of this act;

11         5.  Probation or community control and has previously

12  been found by a court to be a three-time violent felony

13  offender as defined in s. 775.084(1)(c) and has committed a

14  qualifying offense on or after the effective date of this act;

15  or

16         6.  Probation or community control and has previously

17  been found by a court to be a sexual predator under s. 775.21

18  and has committed a qualifying offense on or after the

19  effective date of this act.

20         (c)  For purposes of this section, the term "qualifying

21  offense" means any of the following:

22         1.  Kidnapping or attempted kidnapping under s. 787.01,

23  false imprisonment of a child under the age of 13 under s.

24  787.02(3), or luring or enticing a child under s.

25  787.025(2)(b) or (c).

26         2.  Murder or attempted murder under s. 782.04,

27  attempted felony murder under s. 782.051, or manslaughter

28  under s. 782.07.

29         3.  Aggravated battery or attempted aggravated battery

30  under s. 784.045.

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 1         4.  Sexual battery or attempted sexual battery under s.

 2  794.011(2), (3), (4), or (8)(b) or (c).

 3         5.  Lewd or lascivious battery or attempted lewd or

 4  lascivious battery under s. 800.04(4), lewd or lascivious

 5  molestation under s. 800.04(5)(b) or (c)2., lewd or lascivious

 6  conduct under s. 800.04(6)(b), or lewd or lascivious

 7  exhibition under s. 800.04(7)(c).

 8         6.  Robbery or attempted robbery under s. 812.13,

 9  carjacking or attempted carjacking under s. 812.133, or home

10  invasion robbery or attempted home invasion robbery under s.

11  812.135.

12         7.  Lewd or lascivious offense upon or in the presence

13  of an elderly or disabled person or attempted lewd or

14  lascivious offense upon or in the presence of an elderly or

15  disabled person under s. 825.1025.

16         8.  Sexual performance by a child or attempted sexual

17  performance by a child under s. 827.071.

18         9.  Computer pornography under s. 847.0135(2) or (3),

19  transmission of child pornography under s. 847.0137, or

20  selling or buying of minors under s. 847.0145.

21         10.  Poisoning food or water under s. 859.01.

22         11.  Abuse of a dead human body under s. 872.06.

23         12.  Any burglary offense or attempted burglary offense

24  that is either a first-degree felony or second-degree felony

25  under s. 810.02(2) or (3).

26         13.  Arson or attempted arson under s. 806.01(1).

27         14.  Aggravated assault under s. 784.021.

28         15.  Aggravated stalking under s. 784.048(3), (4), (5),

29  or (7).

30         16.  Aircraft piracy under s. 860.16.

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 1         17.  Unlawful throwing, placing, or discharging of a

 2  destructive device or bomb under s. 790.161(2), (3), or (4).

 3         18.  Treason under s. 876.32.

 4         19.  Any offense committed in another jurisdiction

 5  which would be an offense listed in this paragraph if that

 6  offense had been committed in this state.

 7         (d)  In the case of an alleged violation of probation

 8  or community control by a violent felony offender of special

 9  concern, other than a failure to pay costs, fines, or

10  restitution, the offender shall remain in custody pending the

11  resolution of the probation or community control violation.

12  The court shall not dismiss the probation or community control

13  violation warrant pending against a violent felony offender of

14  special concern without holding a recorded

15  violation-of-probation hearing at which both the state and the

16  offender are represented.

17         (e)  If the court, after conducting the hearing

18  required by paragraph (d), determines that a violent felony

19  offender of special concern has committed a violation of

20  probation or community control other than a failure to pay

21  costs, fines, or restitution, the court shall decide whether

22  to revoke the probation or community control.

23         1.  If the court determines, by a preponderance of the

24  evidence, that a violent felony offender of special concern

25  poses a danger to the community, the court shall revoke

26  probation or community control and shall sentence the offender

27  under s. 921.0024 up to the statutory maximum, or longer if

28  permitted by law.

29         2.  In determining the danger to the community posed by

30  the offender's release, the court may consider:

31  

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 1         a.  The nature and circumstances of the violation and

 2  any new offenses charged.

 3         b.  The offender's past and present conduct, including

 4  criminal convictions.

 5         c.  The offender's family ties, length of residence in

 6  the community, employment history, and mental condition.

 7         d.  The offender's amenability to nonincarcerative

 8  sanctions based on his or her history and conduct during the

 9  probation or community control supervision from which the

10  violation hearing arises and any other previous supervisions,

11  including disciplinary records of previous incarcerations.

12         e.  The likelihood that the offender will engage again

13  in a criminal course of conduct.

14         f.  The weight of the evidence against the offender.

15         g.  Any other facts the court considers relevant.

16         3.  The court must enter a written order in support of

17  its finding.

18         Section 4.  Section 948.064, Florida Statutes, is

19  created to read:

20         948.064  Notification of status as a violent felony

21  offender of special concern.--

22         (1)  To facilitate the information available to the

23  court at first appearance hearings and at all subsequent

24  hearings for "violent felony offenders of special concern," as

25  defined in s. 948.06, the department shall, no later than

26  October 1, 2007, develop a system for identifying the

27  offenders in the department's database and post on the

28  Department of Law Enforcement's Criminal Justice Intranet a

29  listing of all "violent felony offenders of special concern"

30  who are under community supervision.

31  

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 1         (2)  The county jail in the county where the arrested

 2  person is booked shall insure that state and national criminal

 3  history information and all criminal justice information

 4  available in the Florida Crime Information Center and the

 5  National Crime Information Center is provided to the court at

 6  the time of the first appearance.

 7         (3)  The courts shall assist the department's

 8  dissemination of critical information by creating and

 9  maintaining an automated system to provide the information as

10  specified in this section to the court with the jurisdiction

11  to conduct the hearings.

12         Section 5.  Paragraph (b) of subsection (1) of section

13  921.0024, Florida Statutes, is amended to read:

14         921.0024  Criminal Punishment Code; worksheet

15  computations; scoresheets.--

16         (1)

17  

18                       (b)  WORKSHEET KEY:

19  

20  Legal status points are assessed when any form of legal status

21  existed at the time the offender committed an offense before

22  the court for sentencing. Four (4) sentence points are

23  assessed for an offender's legal status.

24  

25  Community sanction violation points are assessed when a

26  community sanction violation is before the court for

27  sentencing.  Six (6) sentence points are assessed for each

28  community sanction violation, and each successive community

29  sanction violation, unless any of the following apply:;

30  however,

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 1         1.  If the community sanction violation includes a new

 2  felony conviction before the sentencing court, twelve (12)

 3  community sanction violation points are assessed for the such

 4  violation, and for each successive community sanction

 5  violation involving a new felony conviction.

 6         2.  If the community sanction violation is committed by

 7  a violent felony offender of special concern as defined in s.

 8  948.06, but does not include a new felony conviction, twelve

 9  (12) community sanction violation points are assessed for the

10  violation and for each successive community sanction violation

11  not involving a new felony conviction.

12         3.  If the community sanction violation is committed by

13  a violent felony offender of special concern as defined in s.

14  948.06, and includes a new felony conviction before the

15  sentencing court, twenty-four (24) community sanction

16  violation points are assessed for the violation and for each

17  successive community sanction violation involving a new felony

18  conviction.

19  

20  Multiple counts of community sanction violations before the

21  sentencing court shall not be a basis for multiplying the

22  assessment of community sanction violation points.

23  

24  Prior serious felony points: If the offender has a primary

25  offense or any additional offense ranked in level 8, level 9,

26  or level 10, and one or more prior serious felonies, a single

27  assessment of thirty (30) 30 points shall be added. For

28  purposes of this section, a prior serious felony is an offense

29  in the offender's prior record that is ranked in level 8,

30  level 9, or level 10 under s. 921.0022 or s. 921.0023 and for

31  which the offender is serving a sentence of confinement,

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 1  supervision, or other sanction or for which the offender's

 2  date of release from confinement, supervision, or other

 3  sanction, whichever is later, is within 3 years before the

 4  date the primary offense or any additional offense was

 5  committed.

 6  

 7  Prior capital felony points:  If the offender has one or more

 8  prior capital felonies in the offender's criminal record,

 9  points shall be added to the subtotal sentence points of the

10  offender equal to twice the number of points the offender

11  receives for the primary offense and any additional offense. A

12  prior capital felony in the offender's criminal record is a

13  previous capital felony offense for which the offender has

14  entered a plea of nolo contendere or guilty or has been found

15  guilty; or a felony in another jurisdiction which is a capital

16  felony in that jurisdiction, or would be a capital felony if

17  the offense were committed in this state.

18  

19  Possession of a firearm, semiautomatic firearm, or machine

20  gun:  If the offender is convicted of committing or attempting

21  to commit any felony other than those enumerated in s.

22  775.087(2) while having in his or her possession: a firearm as

23  defined in s. 790.001(6), an additional eighteen (18) 18

24  sentence points are assessed; or if the offender is convicted

25  of committing or attempting to commit any felony other than

26  those enumerated in s. 775.087(3) while having in his or her

27  possession a semiautomatic firearm as defined in s. 775.087(3)

28  or a machine gun as defined in s. 790.001(9), an additional

29  twenty-five (25) 25 sentence points are assessed.

30  

31  Sentencing multipliers:

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 1  

 2  Drug trafficking: If the primary offense is drug trafficking

 3  under s. 893.135, the subtotal sentence points are multiplied,

 4  at the discretion of the court, for a level 7 or level 8

 5  offense, by 1.5.  The state attorney may move the sentencing

 6  court to reduce or suspend the sentence of a person convicted

 7  of a level 7 or level 8 offense, if the offender provides

 8  substantial assistance as described in s. 893.135(4).

 9  

10  Law enforcement protection: If the primary offense is a

11  violation of the Law Enforcement Protection Act under s.

12  775.0823(2), the subtotal sentence points are multiplied by

13  2.5.  If the primary offense is a violation of s. 775.0823(3),

14  (4), (5), (6), (7), or (8), the subtotal sentence points are

15  multiplied by 2.0. If the primary offense is a violation of s.

16  784.07(3) or s. 775.0875(1), or of the Law Enforcement

17  Protection Act under s. 775.0823(9) or (10), the subtotal

18  sentence points are multiplied by 1.5.

19  

20  Grand theft of a motor vehicle: If the primary offense is

21  grand theft of the third degree involving a motor vehicle and

22  in the offender's prior record, there are three or more grand

23  thefts of the third degree involving a motor vehicle, the

24  subtotal sentence points are multiplied by 1.5.

25  

26  Offense related to a criminal street gang: If the offender is

27  convicted of the primary offense and committed that offense

28  for the purpose of benefiting, promoting, or furthering the

29  interests of a criminal street gang as prohibited under s.

30  874.04, the subtotal sentence points are multiplied by 1.5.

31  

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 1  Domestic violence in the presence of a child: If the offender

 2  is convicted of the primary offense and the primary offense is

 3  a crime of domestic violence, as defined in s. 741.28, which

 4  was committed in the presence of a child under 16 years of age

 5  who is a family or household member as defined in s. 741.28(3)

 6  with the victim or perpetrator, the subtotal sentence points

 7  are multiplied by 1.5.

 8         Section 6.  For the purpose of incorporating the

 9  amendment made by this act to section 948.06, Florida

10  Statutes, in a reference thereto, paragraph (b) of subsection

11  (2) of section 948.012, Florida Statutes, is reenacted to

12  read:

13         948.012  Split sentence of probation or community

14  control and imprisonment.--

15         (2)  The court may also impose a split sentence whereby

16  the defendant is sentenced to a term of probation which may be

17  followed by a period of incarceration or, with respect to a

18  felony, into community control, as follows:

19         (b)  If the offender does not meet the terms and

20  conditions of probation or community control, the court may

21  revoke, modify, or continue the probation or community control

22  as provided in s. 948.06. If the probation or community

23  control is revoked, the court may impose any sentence that it

24  could have imposed at the time the offender was placed on

25  probation or community control. The court may not provide

26  credit for time served for any portion of a probation or

27  community control term toward a subsequent term of probation

28  or community control. However, the court may not impose a

29  subsequent term of probation or community control which, when

30  combined with any amount of time served on preceding terms of

31  probation or community control for offenses pending before the

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 1  court for sentencing, would exceed the maximum penalty

 2  allowable as provided in s. 775.082. Such term of

 3  incarceration shall be served under applicable law or county

 4  ordinance governing service of sentences in state or county

 5  jurisdiction. This paragraph does not prohibit any other

 6  sanction provided by law.

 7         Section 7.  For the purpose of incorporating the

 8  amendment made by this act to section 948.06, Florida

 9  Statutes, in a reference thereto, subsection (9) of section

10  948.10, Florida Statutes, is reenacted to read:

11         948.10  Community control programs.--

12         (9)  Procedures governing violations of community

13  control shall be the same as those described in s. 948.06 with

14  respect to probation.

15         Section 8.  For the purpose of incorporating the

16  amendment made by this act to section 948.06, Florida

17  Statutes, in a reference thereto, section 958.14, Florida

18  Statutes, is reenacted to read:

19         958.14  Violation of probation or community control

20  program.--A violation or alleged violation of probation or the

21  terms of a community control program shall subject the

22  youthful offender to the provisions of s. 948.06. However, no

23  youthful offender shall be committed to the custody of the

24  department for a substantive violation for a period longer

25  than the maximum sentence for the offense for which he or she

26  was found guilty, with credit for time served while

27  incarcerated, or for a technical or nonsubstantive violation

28  for a period longer than 6 years or for a period longer than

29  the maximum sentence for the offense for which he or she was

30  found guilty, whichever is less, with credit for time served

31  while incarcerated.

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 1         Section 9.  If any provision of this act or its

 2  application to any person or circumstance is held invalid, the

 3  invalidity does not affect other provisions or applications of

 4  the act which can be given effect without the invalid

 5  provision or application, and to this end the provisions of

 6  this act are severable.

 7         Section 10.  This act shall take effect upon becoming a

 8  law.

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 146

 3                                 

 4  1.   Added the following qualifying offenses:

 5       -    Attempted kidnapping, attempted carjacking,
              attempted home invasion robbery, attempted lewd or
 6            lascivious offense upon or in the presence of an
              elderly or disabled person.
 7  
         -    Custodial sexual battery  s. 794.011(8)(b) and (c) .
 8  
         -    Lewd or lascivious conduct under s. 800.04(6)(b),
 9            F.S.,  and lewd or lascivious exhibition under
              800.04(7)(c), F.S. These are lewd and lascivious
10            violations committed by an adult upon a minor. The
              bill only includes lewd and lascivious battery,
11            whether committed by either a minor or an adult.

12  2.   Deleted the misdemeanor offense of luring and enticing a
         child under s. 787.025(2)(a).
13  
    3.   Added new section creating s. 948.064, F.S., which
14       establishes responsibilities for notifying the court of
         an offender's status as a violent felony offender of
15       special concern.

16  4.   Community Sanction Violation Points:

17       -    Increased the community sanction violation points
              assessed against a violent felony offender of
18            special concern who commits a technical or
              misdemeanor violation to 12 (from 9 in the bill and
19            6 under current law).

20       -    Increased the community sanction violation points
              assessed against a violent felony offender of
21            special concern who commits a new felony offense to
              24 (from 18 in the bill and 12 under current law).
22  
    5.   Provided for possibility of sentencing over the maximum
23       sentence for the offense if the total points exceed the
         maximum sentence.
24  
    6.   Added a severability clause so that if any part of the
25       act is declared invalid, the remainder will still be
         effective.
26  
    7.   Changed effective date from July 1 to "upon becoming a
27       law."

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