Senate Bill sb0146er

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  1                                 

  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 and certain arrested persons

  7         pending a probation-violation hearing or

  8         community-control-violation hearing; providing

  9         exceptions; amending s. 948.06, F.S.; providing

10         definitions; providing that certain alleged

11         violations of probation or community control by

12         violent felony offenders of special concern and

13         certain arrested persons require a hearing and

14         require the alleged offenders to remain in

15         custody pending hearing; requiring findings by

16         the court and a decision on revocation of

17         probation or community control; creating s.

18         948.064, F.S.; providing for notification to

19         the criminal justice system of an offender's

20         status as a violent felony offender of special

21         concern or other specified offender; amending

22         s. 921.0024, F.S.; revising the worksheet

23         computations of the Criminal Punishment Code to

24         provide additional community sanction violation

25         points for certain community sanction

26         violations committed by violent felony

27         offenders of special concern; reenacting ss.

28         948.012(2)(b), 948.10(9), and 958.14, F.S.,

29         relating to split sentence of probation or

30         community control and imprisonment, community

31         control programs, and violation of probation or


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 1         community control, respectively, to incorporate

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

 3         thereto; requiring a report on implementation

 4         of this act; providing appropriations and

 5         authorizing an additional full-time equivalent

 6         position; providing for severability; providing

 7         an effective date.

 8  

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

10  

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

12  Act."

13         Section 2.  Section 903.0351, Florida Statutes, is

14  created to read:

15         903.0351  Restrictions on pretrial release pending

16  probation-violation hearing or community-control-violation

17  hearing.--

18         (1)  In the instance of an alleged violation of felony

19  probation or community control, bail or any other form of

20  pretrial release shall not be granted prior to the resolution

21  of the probation-violation hearing or the

22  community-control-violation hearing to:

23         (a)  A violent felony offender of special concern as

24  defined in s. 948.06;

25         (b)  A person who is on felony probation or community

26  control for any offense committed on or after the effective

27  date of this act and who is arrested for a qualifying offense

28  as defined in s. 948.06(8)(c); or

29         (c)  A person who is on felony probation or community

30  control and has previously been found by a court to be a

31  habitual violent felony offender as defined in s.


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 1  775.084(1)(b), a three-time violent felony offender as defined

 2  in s. 775.084(1)(c), or a sexual predator under s. 775.21, and

 3  who is arrested for committing a qualifying offense as defined

 4  in s. 948.06(8)(c) on or after the effective date of this act.

 5         (2)  Subsection (1) shall not apply where the alleged

 6  violation of felony probation or community control is based

 7  solely on the probationer or offender's failure to pay costs

 8  or fines or make restitution payments.

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

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

11  section, to read:

12         948.06  Violation of probation or community control;

13  revocation; modification; continuance; failure to pay

14  restitution or cost of supervision.--

15         (4)  Notwithstanding any other provision of this

16  section, a felony probationer or an offender in community

17  control who is arrested for violating his or her probation or

18  community control in a material respect may be taken before

19  the court in the county or circuit in which the probationer or

20  offender was arrested. That court shall advise him or her of

21  the such charge of a violation and, if such charge is

22  admitted, shall cause him or her to be brought before the

23  court that which granted the probation or community control.

24  If the such violation is not admitted by the probationer or

25  offender, the court may commit him or her or release him or

26  her with or without bail to await further hearing. However, if

27  the probationer or offender is under supervision for any

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

29  (6), s. 827.071, or s. 847.0145, or is a registered sexual

30  predator or a registered sexual offender, or is under

31  supervision for a criminal offense for which he or she would


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 1  meet the registration criteria in s. 775.21, s. 943.0435, or

 2  s. 944.607 but for the effective date of those sections, the

 3  court must make a finding that the probationer or offender is

 4  not a danger to the public prior to release with or without

 5  bail. In determining the danger posed by the offender's or

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

 7  circumstances of the violation and any new offenses charged;

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

 9  including convictions of crimes; any record of arrests without

10  conviction for crimes involving violence or sexual crimes; any

11  other evidence of allegations of unlawful sexual conduct or

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

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

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

15  his or her history and conduct during the probation or

16  community control supervision from which the violation arises

17  and any other previous supervisions, including disciplinary

18  records of previous incarcerations; the likelihood that the

19  offender or probationer will engage again in a criminal course

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

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

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

23  probationer or offender an opportunity to be fully heard on

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

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

26  findings to the court that which granted the probation or

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

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

29  binding on the court that which granted the probation or

30  community control. Upon the probationer or offender being

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


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

 2  probation or community control or may place the probationer

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

 4  the probationer or offender shall not be released and shall

 5  not be admitted to bail, but shall be brought before the court

 6  that granted the probation or community control if any

 7  violation of felony probation or community control other than

 8  a failure to pay costs or fines or make restitution payments

 9  is alleged to have been committed by:

10         (a)  A violent felony offender of special concern, as

11  defined in this section;

12         (b)  A person who is on felony probation or community

13  control for any offense committed on or after the effective

14  date of this act and who is arrested for a qualifying offense

15  as defined in this section; or

16         (c)  A person who is on felony probation or community

17  control and has previously been found by a court to be a

18  habitual violent felony offender as defined in s.

19  775.084(1)(b), a three-time violent felony offender as defined

20  in s. 775.084(1)(c), or a sexual predator under s. 775.21, and

21  who is arrested for committing a qualifying offense as defined

22  in this section on or after the effective date of this act.

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

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

25  requirements regarding a probationer or offender in community

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

27  The provisions of this subsection shall control over any

28  conflicting provisions in subsections (1)-(7). For purposes of

29  this subsection, the term "convicted" means a determination of

30  guilt which is the result of a trial or the entry of a plea of

31  


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 1  guilty or nolo contendere, regardless of whether adjudication

 2  is withheld.

 3         (b)  For purposes of this section and ss. 903.0351,

 4  948.064, and 921.0024, the term "violent felony offender of

 5  special concern" means a person who is on:

 6         1.  Felony probation or community control related to

 7  the commission of a qualifying offense committed on or after

 8  the effective date of this act;

 9         2.  Felony probation or community control for any

10  offense committed on or after the effective date of this act,

11  and has previously been convicted of a qualifying offense;

12         3.  Felony probation or community control for any

13  offense committed on or after the effective date of this act,

14  and is found to have violated that probation or community

15  control by committing a qualifying offense;

16         4.  Felony probation or community control and has

17  previously been found by a court to be a habitual violent

18  felony offender as defined in s. 775.084(1)(b) and has

19  committed a qualifying offense on or after the effective date

20  of this act;

21         5.  Felony probation or community control and has

22  previously been found by a court to be a three-time violent

23  felony offender as defined in s. 775.084(1)(c) and has

24  committed a qualifying offense on or after the effective date

25  of this act; or

26         6.  Felony probation or community control and has

27  previously been found by a court to be a sexual predator under

28  s. 775.21 and has committed a qualifying offense on or after

29  the effective date of this act.

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

31  offense" means any of the following:


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

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

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

 4  787.025(2)(b) or (c).

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

 6  attempted felony murder under s. 782.051, or manslaughter

 7  under s. 782.07.

 8         3.  Aggravated battery or attempted aggravated battery

 9  under s. 784.045.

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

11  794.011(2), (3), (4), or (8)(b) or (c).

12         5.  Lewd or lascivious battery or attempted lewd or

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

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

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

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

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

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

19  invasion robbery or attempted home invasion robbery under s.

20  812.135.

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

22  of an elderly or disabled person or attempted lewd or

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

24  disabled person under s. 825.1025.

25         8.  Sexual performance by a child or attempted sexual

26  performance by a child under s. 827.071.

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

28  transmission of child pornography under s. 847.0137, or

29  selling or buying of minors under s. 847.0145.

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

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


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 1         12.  Any burglary offense or attempted burglary offense

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

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

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

 5         14.  Aggravated assault under s. 784.021.

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

 7  or (7).

 8         16.  Aircraft piracy under s. 860.16.

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

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

11         18.  Treason under s. 876.32.

12         19.  Any offense committed in another jurisdiction

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

14  offense had been committed in this state.

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

16  or community control other than a failure to pay costs, fines,

17  or restitution, the following individuals shall remain in

18  custody pending the resolution of the probation or community

19  control violation:

20         1.  A violent felony offender of special concern, as

21  defined in this section;

22         2.  A person who is on felony probation or community

23  control for any offense committed on or after the effective

24  date of this act and who is arrested for a qualifying offense

25  as defined in this section; or

26         3.  A person who is on felony probation or community

27  control and has previously been found by a court to be a

28  habitual violent felony offender as defined in s.

29  775.084(1)(b), a three-time violent felony offender as defined

30  in s. 775.084(1)(c), or a sexual predator under s. 775.21, and

31  


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 1  who is arrested for committing a qualifying offense as defined

 2  in this section on or after the effective date of this act.

 3  

 4  The court shall not dismiss the probation or community control

 5  violation warrant pending against an offender enumerated in

 6  this paragraph without holding a recorded

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

 8  offender are represented.

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

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

11  offender of special concern has committed a violation of

12  probation or community control other than a failure to pay

13  costs, fines, or restitution, the court shall:

14         1.  Make written findings as to whether or not the

15  violent felony offender of special concern poses a danger to

16  the community. In determining the danger to the community

17  posed by the offender's release, the court shall base its

18  findings on one or more of the following:

19         a.  The nature and circumstances of the violation and

20  any new offenses charged.

21         b.  The offender's present conduct, including criminal

22  convictions.

23         c.  The offender's amenability to nonincarcerative

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

25  probation or community control supervision from which the

26  violation hearing arises and any other previous supervisions,

27  including disciplinary records of previous incarcerations.

28         d.  The weight of the evidence against the offender.

29         e.  Any other facts the court considers relevant.

30         2.  Decide whether to revoke the probation or community

31  control.


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 1         a.  If the court has found that a violent felony

 2  offender of special concern poses a danger to the community,

 3  the court shall revoke probation and shall sentence the

 4  offender up to the statutory maximum, or longer if permitted

 5  by law.

 6         b.  If the court has found that a violent felony

 7  offender of special concern does not pose a danger to the

 8  community, the court 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.

11         Section 4.  Section 948.064, Florida Statutes, is

12  created to read:

13         948.064  Notification of status as a violent felony

14  offender of special concern.--

15         (1)  To facilitate the information available to the

16  court at first appearance hearings and at all subsequent

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

18  defined in s. 948.06, the Department of Corrections shall, no

19  later than October 1, 2007, develop a system for identifying

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

21  Department of Law Enforcement's Criminal Justice Intranet a

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

23  who are under community supervision.

24         (2)  The county where the arrested person is booked

25  shall provide the following information to the court at the

26  time of the first appearance:

27         (a)  State and national criminal history information;

28         (b)  All criminal justice information available in the

29  Florida Crime Information Center and the National Crime

30  Information Center; and

31  


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 1         (c)  Notice that the arrested person meets the

 2  requirement for restrictions on pretrial release pending the

 3  probation-violation hearing or community-control-violation

 4  hearing in s. 903.0351(1)(b).

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

 6  dissemination of critical information by creating and

 7  maintaining an automated system to provide the information as

 8  specified in this section to the court with the jurisdiction

 9  to conduct the hearings.

10         (4)  The state attorney, or the statewide prosecutor if

11  applicable, shall advise the court at each critical stage in

12  the judicial process, at which the state attorney or statewide

13  prosecutor is represented, whether an alleged or convicted

14  offender is a violent felony offender of special concern; a

15  person who is on felony probation or community control for any

16  offense committed on or after the effective date of this act

17  and who is arrested for a qualifying offense; or a person who

18  is on felony probation or community control and has previously

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

20  as defined in s. 775.084(1)(b), a three-time violent felony

21  offender as defined in s. 775.084(1)(c), or a sexual predator

22  under s. 775.21, and who is arrested for committing a

23  qualifying offense on or after the effective date of this act.

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

25  921.0024, Florida Statutes, is amended to read:

26         921.0024  Criminal Punishment Code; worksheet

27  computations; scoresheets.--

28         (1)

29  

30                       (b)  WORKSHEET KEY:

31  


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

 2  existed at the time the offender committed an offense before

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

 4  assessed for an offender's legal status.

 5  

 6  Community sanction violation points are assessed when a

 7  community sanction violation is before the court for

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

 9  community sanction violation, and each successive community

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

11  however,

12         1.  If the community sanction violation includes a new

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

14  community sanction violation points are assessed for the such

15  violation, and for each successive community sanction

16  violation involving a new felony conviction.

17         2.  If the community sanction violation is committed by

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

19  948.06:

20         a.  Twelve (12) community sanction violation points are

21  assessed for the violation and for each successive violation

22  of felony probation or community control where:

23         (I)  The violation does not include a new felony

24  conviction; and

25         (II)  The community sanction violation is not based

26  solely on the probationer or offender's failure to pay costs

27  or fines or make restitution payments.

28         b.  Twenty-four (24) community sanction violation

29  points are assessed for the violation and for each successive

30  violation of felony probation or community control where the

31  violation includes a new felony conviction.


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 1  

 2  Multiple counts of community sanction violations before the

 3  sentencing court shall not be a basis for multiplying the

 4  assessment of community sanction violation points.

 5  

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

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

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

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

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

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

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

13  which the offender is serving a sentence of confinement,

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

15  date of release from confinement, supervision, or other

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

17  date the primary offense or any additional offense was

18  committed.

19  

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

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

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

23  offender equal to twice the number of points the offender

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

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

26  previous capital felony offense for which the offender has

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

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

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

30  the offense were committed in this state.

31  


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 1  Possession of a firearm, semiautomatic firearm, or machine

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

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

 4  775.087(2) while having in his or her possession: a firearm as

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

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

 7  of committing or attempting to commit any felony other than

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

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

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

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

12  

13  Sentencing multipliers:

14  

15  Drug trafficking: If the primary offense is drug trafficking

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

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

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

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

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

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

22  

23  Law enforcement protection: If the primary offense is a

24  violation of the Law Enforcement Protection Act under s.

25  775.0823(2), the subtotal sentence points are multiplied by

26  2.5.  If the primary offense is a violation of s. 775.0823(3),

27  (4), (5), (6), (7), or (8), the subtotal sentence points are

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

29  784.07(3) or s. 775.0875(1), or of the Law Enforcement

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

31  sentence points are multiplied by 1.5.


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 1  

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

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

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

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

 6  subtotal sentence points are multiplied by 1.5.

 7  

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

 9  convicted of the primary offense and committed that offense

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

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

12  874.04, the subtotal sentence points are multiplied by 1.5.

13  

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

15  is convicted of the primary offense and the primary offense is

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

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

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

19  with the victim or perpetrator, the subtotal sentence points

20  are multiplied by 1.5.

21         Section 6.  For the purpose of incorporating the

22  amendment made by this act to section 948.06, Florida

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

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

25  read:

26         948.012  Split sentence of probation or community

27  control and imprisonment.--

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

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

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

31  felony, into community control, as follows:


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

 2  conditions of probation or community control, the court may

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

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

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

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

 7  probation or community control. The court may not provide

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

 9  community control term toward a subsequent term of probation

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

11  subsequent term of probation or community control which, when

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

13  probation or community control for offenses pending before the

14  court for sentencing, would exceed the maximum penalty

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

16  incarceration shall be served under applicable law or county

17  ordinance governing service of sentences in state or county

18  jurisdiction. This paragraph does not prohibit any other

19  sanction provided by law.

20         Section 7.  For the purpose of incorporating the

21  amendment made by this act to section 948.06, Florida

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

23  948.10, Florida Statutes, is reenacted to read:

24         948.10  Community control programs.--

25         (9)  Procedures governing violations of community

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

27  respect to probation.

28         Section 8.  For the purpose of incorporating the

29  amendment made by this act to section 948.06, Florida

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

31  Statutes, is reenacted to read:


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 1         958.14  Violation of probation or community control

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

 3  terms of a community control program shall subject the

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

 5  youthful offender shall be committed to the custody of the

 6  department for a substantive violation for a period longer

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

 8  was found guilty, with credit for time served while

 9  incarcerated, or for a technical or nonsubstantive violation

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

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

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

13  while incarcerated.

14         Section 9.  (1)  The Department of Corrections shall

15  coordinate preparation of a report on implementation of the

16  Anti-Murder Act and shall submit the report to the Governor,

17  the President of the Senate, and the Speaker of the House of

18  Representatives no later than February 1, 2008.

19         (2)  The department shall convene the participation of,

20  and coordinate preparation of the report with, representatives

21  of:

22         (a)  The Office of the State Courts Administrator on

23  behalf of the state courts system;

24         (b)  The Florida Prosecuting Attorneys Association;

25         (c)  The Florida Public Defender Association;

26         (d)  The Florida Association of Criminal Defense

27  Lawyers; and

28         (e)  Any other units of government, organizations, or

29  entities which the department considers necessary.

30         (3)  At a minimum, the report must identify any legal,

31  fiscal, or administrative impediments to full implementation


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 1  of this act and recommend any legislative action related to

 2  implementation of this act.

 3         Section 10.  The sums of $39,906 in recurring funds and

 4  $221,526 in nonrecurring funds are appropriated from the

 5  General Revenue Fund to the Office of State Courts

 6  Administrator for the 2006-2007 fiscal year for the purpose of

 7  implementing the provisions of this act, and one full-time

 8  equivalent position and associated rate of 53,093 are

 9  authorized. The sum of $46,330 in recurring funds is

10  appropriated from the General Revenue Fund to the Office of

11  State Courts Administrator for the 2007-2008 fiscal year.

12         Section 11.  The sum of $158,756 in recurring funds is

13  appropriated from the General Revenue Fund to the Department

14  of Corrections for operating costs for the 2006-2007 fiscal

15  year. The sum of $316,180 in recurring funds is appropriated

16  from the General Revenue Fund to the Department of Corrections

17  for operating costs for the 2007-2008 fiscal year.

18         Section 12.  If any provision of this act or its

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

20  invalidity does not affect other provisions or applications of

21  the act which can be given effect without the invalid

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

23  this act are severable.

24         Section 13.  This act shall take effect upon becoming a

25  law.

26  

27  

28  

29  

30  

31  


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