| 1 | A bill to be entitled |
| 2 | An act relating to violent felony offenders; providing a |
| 3 | short title; creating s. 903.0351, F.S.; prohibiting bail |
| 4 | or other pretrial release for specified violent felony |
| 5 | offenders of special concern without a hearing; amending |
| 6 | s. 948.06, F.S.; providing definitions; providing that |
| 7 | certain alleged violations of probation or community |
| 8 | control by violent felony offenders of special concern |
| 9 | require hearings and require the alleged offenders to |
| 10 | remain in custody pending hearing; providing requirements |
| 11 | for such hearings; amending s. 921.0024, F.S.; revising |
| 12 | Criminal Punishment Code worksheet computations to provide |
| 13 | additional community sanction violation points for certain |
| 14 | community sanction violations committed by violent felony |
| 15 | offenders of special concern; reenacting ss. |
| 16 | 948.012(2)(b), 948.10(9), and 958.14, F.S., relating to |
| 17 | split sentence of probation or community control and |
| 18 | imprisonment, community control programs, and violation of |
| 19 | probation or community control, respectively, to |
| 20 | incorporate the amendment to s. 948.06, F.S., in |
| 21 | references thereto; providing an effective date. |
| 22 |
|
| 23 | Be It Enacted by the Legislature of the State of Florida: |
| 24 |
|
| 25 | Section 1. This act may be cited as the "Anti-Murder Act." |
| 26 | Section 2. Section 903.0351, Florida Statutes, is created |
| 27 | to read: |
| 28 | 903.0351 Violent felony offenders of special concern; |
| 29 | pretrial release hearing required.--A violent felony offender of |
| 30 | special concern, as defined in s. 948.06, who has been arrested |
| 31 | for an alleged violation of probation or community control shall |
| 32 | not be granted bail or any other form of pretrial release prior |
| 33 | to the resolution of the probation or community control |
| 34 | violation hearing, unless the violation charge or arrest is |
| 35 | based solely on failure to pay costs, fines, or restitution |
| 36 | payments. |
| 37 | Section 3. Subsection (4) of section 948.06, Florida |
| 38 | Statutes, is amended, and subsection (8) is added to that |
| 39 | section, to read: |
| 40 | 948.06 Violation of probation or community control; |
| 41 | revocation; modification; continuance; failure to pay |
| 42 | restitution or cost of supervision.-- |
| 43 | (4) Notwithstanding any other provision of this section, a |
| 44 | probationer or an offender in community control who is arrested |
| 45 | for violating his or her probation or community control in a |
| 46 | material respect may be taken before the court in the county or |
| 47 | circuit in which the probationer or offender was arrested. That |
| 48 | court shall advise him or her of such charge of a violation and, |
| 49 | if such charge is admitted, shall cause him or her to be brought |
| 50 | before the court which granted the probation or community |
| 51 | control. If such violation is not admitted by the probationer or |
| 52 | offender, the court may commit him or her or release him or her |
| 53 | with or without bail to await further hearing. However, if the |
| 54 | probationer or offender is under supervision for any criminal |
| 55 | offense proscribed in chapter 794, s. 800.04(4), (5), (6), s. |
| 56 | 827.071, or s. 847.0145, or is a registered sexual predator or a |
| 57 | registered sexual offender, or is under supervision for a |
| 58 | criminal offense for which he or she would meet the registration |
| 59 | criteria in s. 775.21, s. 943.0435, or s. 944.607 but for the |
| 60 | effective date of those sections, the court must make a finding |
| 61 | that the probationer or offender is not a danger to the public |
| 62 | prior to release with or without bail. In determining the danger |
| 63 | posed by the offender's or probationer's release, the court may |
| 64 | consider the nature and circumstances of the violation and any |
| 65 | new offenses charged; the offender's or probationer's past and |
| 66 | present conduct, including convictions of crimes; any record of |
| 67 | arrests without conviction for crimes involving violence or |
| 68 | sexual crimes; any other evidence of allegations of unlawful |
| 69 | sexual conduct or the use of violence by the offender or |
| 70 | probationer; the offender's or probationer's family ties, length |
| 71 | of residence in the community, employment history, and mental |
| 72 | condition; his or her history and conduct during the probation |
| 73 | or community control supervision from which the violation arises |
| 74 | and any other previous supervisions, including disciplinary |
| 75 | records of previous incarcerations; the likelihood that the |
| 76 | offender or probationer will engage again in a criminal course |
| 77 | of conduct; the weight of the evidence against the offender or |
| 78 | probationer; and any other facts the court considers relevant. |
| 79 | The court, as soon as is practicable, shall give the probationer |
| 80 | or offender an opportunity to be fully heard on his or her |
| 81 | behalf in person or by counsel. After such hearing, the court |
| 82 | shall make findings of fact and forward the findings to the |
| 83 | court which granted the probation or community control and to |
| 84 | the probationer or offender or his or her attorney. The findings |
| 85 | of fact by the hearing court are binding on the court which |
| 86 | granted the probation or community control. Upon the probationer |
| 87 | or offender being brought before it, the court which granted the |
| 88 | probation or community control may revoke, modify, or continue |
| 89 | the probation or community control or may place the probationer |
| 90 | into community control as provided in this section. However, if |
| 91 | any violation other than a failure to pay costs, fines, or |
| 92 | restitution payments is alleged to have been committed by a |
| 93 | violent felony offender of special concern, as defined in this |
| 94 | section, the probationer or offender shall not be released and |
| 95 | shall not be admitted to bail, but shall be brought before the |
| 96 | court that granted the probation or community control. |
| 97 | (8)(a) In addition to complying with the provisions of |
| 98 | subsections (1)-(7), a probationer or offender in community |
| 99 | control who is a violent felony offender of special concern |
| 100 | shall comply with this subsection. The provisions of this |
| 101 | subsection shall control over any conflicting provisions in |
| 102 | subsections (1)-(7). |
| 103 | (b) For purposes of this section and ss. 903.0351 and |
| 104 | 921.0024, the term "violent felony offender of special concern" |
| 105 | means a person who is on: |
| 106 | 1. Probation or community control related to the |
| 107 | commission of a qualifying offense committed on or after July 1, |
| 108 | 2007; |
| 109 | 2. Probation or community control for any offense |
| 110 | committed on or after July 1, 2007, and has previously been |
| 111 | convicted of or had adjudication withheld for a qualifying |
| 112 | offense; |
| 113 | 3. Probation or community control for any offense |
| 114 | committed on or after July 1, 2007, and is found to have |
| 115 | violated that probation or community control by committing a |
| 116 | qualifying offense; |
| 117 | 4. Probation or community control and has previously been |
| 118 | found by a court to be a habitual violent felony offender as |
| 119 | defined in s. 775.084(1)(b) and has committed a qualifying |
| 120 | offense on or after July 1, 2007; |
| 121 | 5. Probation or community control and has previously been |
| 122 | found by a court to be a three-time violent felony offender as |
| 123 | defined in s. 775.084(1)(c) and has committed a qualifying |
| 124 | offense on or after July 1, 2007; or |
| 125 | 6. Probation or community control and has previously been |
| 126 | found by a court to be a sexual predator under s. 775.21 and has |
| 127 | committed a qualifying offense on or after July 1, 2007. |
| 128 | (c) For purposes of this section, the term "qualifying |
| 129 | offense" means any of the following: |
| 130 | 1. Kidnapping or attempted kidnapping under s. 787.01, |
| 131 | false imprisonment of a child under the age of 13 under s. |
| 132 | 787.02(3), or luring or enticing a child under s. 787.025. |
| 133 | 2. Murder or attempted murder under s. 782.04, attempted |
| 134 | felony murder under s. 782.051, or manslaughter under s. 782.07. |
| 135 | 3. Aggravated battery or attempted aggravated battery |
| 136 | under s. 784.045. |
| 137 | 4. Sexual battery or attempted sexual battery under s. |
| 138 | 794.011(2), (3), or (4). |
| 139 | 5. Lewd or lascivious battery or attempted lewd or |
| 140 | lascivious battery under s. 800.04(4) or lewd or lascivious |
| 141 | molestation under s. 800.04(5)(b). |
| 142 | 6. Robbery or attempted robbery under s. 812.13, |
| 143 | carjacking under s. 812.133, or home invasion robbery under s. |
| 144 | 812.135. |
| 145 | 7. Lewd or lascivious offense upon or in the presence of |
| 146 | an elderly or disabled person or attempted lewd or lascivious |
| 147 | offense upon or in the presence of an elderly or disabled person |
| 148 | under s. 825.1025. |
| 149 | 8. Sexual performance by a child or attempted sexual |
| 150 | performance by a child under s. 827.071. |
| 151 | 9. Computer pornography under s. 847.0135(2) or (3), |
| 152 | transmission of child pornography under s. 847.0137, or selling |
| 153 | or buying of minors under s. 847.0145. |
| 154 | 10. Poisoning food or water under s. 859.01. |
| 155 | 11. Abuse of a dead human body under s. 872.06. |
| 156 | 12. Any burglary offense or attempted burglary offense |
| 157 | that is either a first or second degree felony under s. |
| 158 | 810.02(2) or (3). |
| 159 | 13. Arson or attempted arson under s. 806.01(1). |
| 160 | 14. Aggravated assault under s. 784.021. |
| 161 | 15. Aggravated stalking under s. 784.048(3), (4), (5), or |
| 162 | (7). |
| 163 | 16. Aircraft piracy under s. 860.16. |
| 164 | 17. Unlawful throwing, placing, or discharging of a |
| 165 | destructive device or bomb under s. 790.161(2), (3), or (4). |
| 166 | 18. Treason under s. 876.32. |
| 167 | 19. Any offense committed in another jurisdiction that |
| 168 | would be an offense listed in this paragraph if that offense had |
| 169 | been committed in this state. |
| 170 | (d) In the case of an alleged violation of probation or |
| 171 | community control by a violent felony offender of special |
| 172 | concern, other than a failure to pay costs, fines, or |
| 173 | restitution, the offender shall remain in custody pending the |
| 174 | resolution of the probation or community control violation. The |
| 175 | court shall not dismiss the probation or community control |
| 176 | violation warrant pending against a violent felony offender of |
| 177 | special concern without holding a recorded violation of |
| 178 | probation hearing at which both the state and the offender are |
| 179 | represented. |
| 180 | (e) If the court, after conducting the hearing required by |
| 181 | paragraph (d), determines that a violent felony offender of |
| 182 | special concern has committed a violation of probation or |
| 183 | community control other than a failure to pay costs, fines, or |
| 184 | restitution, the court shall decide whether to revoke the |
| 185 | probation or community control. |
| 186 | 1. If the court determines, by a preponderance of the |
| 187 | evidence, that a violent felony offender of special concern |
| 188 | poses a danger to the community, the court shall revoke |
| 189 | probation or community control and shall sentence the offender |
| 190 | under s. 921.0024 up to the statutory maximum. |
| 191 | 2. In determining the danger to the community posed by the |
| 192 | offender's release, the court may consider: |
| 193 | a. The nature and circumstances of the violation and any |
| 194 | new offenses charged. |
| 195 | b. The offender's past and present conduct, including |
| 196 | criminal convictions. |
| 197 | c. The offender's family ties, length of residence in the |
| 198 | community, employment history, and mental condition. |
| 199 | d. The offender's amenability to nonincarcerative |
| 200 | sanctions based on his or her history and conduct during the |
| 201 | probation or community control supervision from which the |
| 202 | violation hearing arises and any other previous supervisions, |
| 203 | including disciplinary records of previous incarcerations. |
| 204 | e. The likelihood that the offender will engage again in a |
| 205 | criminal course of conduct. |
| 206 | f. The weight of the evidence against the offender. |
| 207 | g. Any other facts the court considers relevant. |
| 208 | 3. The court must enter a written order in support of its |
| 209 | finding. |
| 210 | Section 4. Paragraph (b) of subsection (1) of section |
| 211 | 921.0024, Florida Statutes, is amended to read: |
| 212 | 921.0024 Criminal Punishment Code; worksheet computations; |
| 213 | scoresheets.-- |
| 214 | (1) |
| 215 | (b) WORKSHEET KEY: |
| 216 |
|
| 217 | Legal status points are assessed when any form of legal status |
| 218 | existed at the time the offender committed an offense before the |
| 219 | court for sentencing. Four (4) sentence points are assessed for |
| 220 | an offender's legal status. |
| 221 |
|
| 222 | Community sanction violation points are assessed when a |
| 223 | community sanction violation is before the court for sentencing. |
| 224 | Six (6) sentence points are assessed for each community sanction |
| 225 | violation, and each successive community sanction violation, |
| 226 | unless any of the following apply:; however, |
| 227 | 1. If the community sanction violation includes a new |
| 228 | felony conviction before the sentencing court, twelve (12) |
| 229 | community sanction violation points are assessed for the such |
| 230 | violation, and for each successive community sanction violation |
| 231 | involving a new felony conviction. |
| 232 | 2. If the community sanction violation is committed by a |
| 233 | violent felony offender of special concern as defined in s. |
| 234 | 948.06, but does not include a new felony conviction, nine (9) |
| 235 | community sanction violation points are assessed for the |
| 236 | violation and for each successive community sanction violation |
| 237 | not involving a new felony conviction. |
| 238 | 3. If the community sanction violation is committed by a |
| 239 | violent felony offender of special concern as defined in s. |
| 240 | 948.06, and includes a new felony conviction before the |
| 241 | sentencing court, eighteen (18) community sanction violation |
| 242 | points are assessed for the violation and for each successive |
| 243 | community sanction violation involving a new felony conviction. |
| 244 |
|
| 245 | Multiple counts of community sanction violations before the |
| 246 | sentencing court shall not be a basis for multiplying the |
| 247 | assessment of community sanction violation points. |
| 248 |
|
| 249 | Prior serious felony points: If the offender has a primary |
| 250 | offense or any additional offense ranked in level 8, level 9, or |
| 251 | level 10, and one or more prior serious felonies, a single |
| 252 | assessment of thirty (30) 30 points shall be added. For purposes |
| 253 | of this section, a prior serious felony is an offense in the |
| 254 | offender's prior record that is ranked in level 8, level 9, or |
| 255 | level 10 under s. 921.0022 or s. 921.0023 and for which the |
| 256 | offender is serving a sentence of confinement, supervision, or |
| 257 | other sanction or for which the offender's date of release from |
| 258 | confinement, supervision, or other sanction, whichever is later, |
| 259 | is within 3 years before the date the primary offense or any |
| 260 | additional offense was committed. |
| 261 |
|
| 262 | Prior capital felony points: If the offender has one or more |
| 263 | prior capital felonies in the offender's criminal record, points |
| 264 | shall be added to the subtotal sentence points of the offender |
| 265 | equal to twice the number of points the offender receives for |
| 266 | the primary offense and any additional offense. A prior capital |
| 267 | felony in the offender's criminal record is a previous capital |
| 268 | felony offense for which the offender has entered a plea of nolo |
| 269 | contendere or guilty or has been found guilty; or a felony in |
| 270 | another jurisdiction which is a capital felony in that |
| 271 | jurisdiction, or would be a capital felony if the offense were |
| 272 | committed in this state. |
| 273 |
|
| 274 | Possession of a firearm, semiautomatic firearm, or machine gun: |
| 275 | If the offender is convicted of committing or attempting to |
| 276 | commit any felony other than those enumerated in s. 775.087(2) |
| 277 | while having in his or her possession: a firearm as defined in |
| 278 | s. 790.001(6), an additional eighteen (18) 18 sentence points |
| 279 | are assessed; or if the offender is convicted of committing or |
| 280 | attempting to commit any felony other than those enumerated in |
| 281 | s. 775.087(3) while having in his or her possession a |
| 282 | semiautomatic firearm as defined in s. 775.087(3) or a machine |
| 283 | gun as defined in s. 790.001(9), an additional twenty-five (25) |
| 284 | 25 sentence points are assessed. |
| 285 |
|
| 286 | Sentencing multipliers: |
| 287 |
|
| 288 | Drug trafficking: If the primary offense is drug trafficking |
| 289 | under s. 893.135, the subtotal sentence points are multiplied, |
| 290 | at the discretion of the court, for a level 7 or level 8 |
| 291 | offense, by 1.5. The state attorney may move the sentencing |
| 292 | court to reduce or suspend the sentence of a person convicted of |
| 293 | a level 7 or level 8 offense, if the offender provides |
| 294 | substantial assistance as described in s. 893.135(4). |
| 295 |
|
| 296 | Law enforcement protection: If the primary offense is a |
| 297 | violation of the Law Enforcement Protection Act under s. |
| 298 | 775.0823(2), the subtotal sentence points are multiplied by 2.5. |
| 299 | If the primary offense is a violation of s. 775.0823(3), (4), |
| 300 | (5), (6), (7), or (8), the subtotal sentence points are |
| 301 | multiplied by 2.0. If the primary offense is a violation of s. |
| 302 | 784.07(3) or s. 775.0875(1), or of the Law Enforcement |
| 303 | Protection Act under s. 775.0823(9) or (10), the subtotal |
| 304 | sentence points are multiplied by 1.5. |
| 305 |
|
| 306 | Grand theft of a motor vehicle: If the primary offense is grand |
| 307 | theft of the third degree involving a motor vehicle and in the |
| 308 | offender's prior record, there are three or more grand thefts of |
| 309 | the third degree involving a motor vehicle, the subtotal |
| 310 | sentence points are multiplied by 1.5. |
| 311 |
|
| 312 | Offense related to a criminal street gang: If the offender is |
| 313 | convicted of the primary offense and committed that offense for |
| 314 | the purpose of benefiting, promoting, or furthering the |
| 315 | interests of a criminal street gang as prohibited under s. |
| 316 | 874.04, the subtotal sentence points are multiplied by 1.5. |
| 317 |
|
| 318 | Domestic violence in the presence of a child: If the offender is |
| 319 | convicted of the primary offense and the primary offense is a |
| 320 | crime of domestic violence, as defined in s. 741.28, which was |
| 321 | committed in the presence of a child under 16 years of age who |
| 322 | is a family or household member as defined in s. 741.28(3) with |
| 323 | the victim or perpetrator, the subtotal sentence points are |
| 324 | multiplied by 1.5. |
| 325 | Section 5. For the purpose of incorporating the amendment |
| 326 | made by this act to section 948.06, Florida Statutes, in a |
| 327 | reference thereto, paragraph (b) of subsection (2) of section |
| 328 | 948.012, Florida Statutes, is reenacted to read: |
| 329 | 948.012 Split sentence of probation or community control |
| 330 | and imprisonment.-- |
| 331 | (2) The court may also impose a split sentence whereby the |
| 332 | defendant is sentenced to a term of probation which may be |
| 333 | followed by a period of incarceration or, with respect to a |
| 334 | felony, into community control, as follows: |
| 335 | (b) If the offender does not meet the terms and conditions |
| 336 | of probation or community control, the court may revoke, modify, |
| 337 | or continue the probation or community control as provided in s. |
| 338 | 948.06. If the probation or community control is revoked, the |
| 339 | court may impose any sentence that it could have imposed at the |
| 340 | time the offender was placed on probation or community control. |
| 341 | The court may not provide credit for time served for any portion |
| 342 | of a probation or community control term toward a subsequent |
| 343 | term of probation or community control. However, the court may |
| 344 | not impose a subsequent term of probation or community control |
| 345 | which, when combined with any amount of time served on preceding |
| 346 | terms of probation or community control for offenses pending |
| 347 | before the court for sentencing, would exceed the maximum |
| 348 | penalty allowable as provided in s. 775.082. Such term of |
| 349 | incarceration shall be served under applicable law or county |
| 350 | ordinance governing service of sentences in state or county |
| 351 | jurisdiction. This paragraph does not prohibit any other |
| 352 | sanction provided by law. |
| 353 | Section 6. For the purpose of incorporating the amendment |
| 354 | made by this act to section 948.06, Florida Statutes, in a |
| 355 | reference thereto, subsection (9) of section 948.10, Florida |
| 356 | Statutes, is reenacted to read: |
| 357 | 948.10 Community control programs.-- |
| 358 | (9) Procedures governing violations of community control |
| 359 | shall be the same as those described in s. 948.06 with respect |
| 360 | to probation. |
| 361 | Section 7. For the purpose of incorporating the amendment |
| 362 | made by this act to section 948.06, Florida Statutes, in a |
| 363 | reference thereto, section 958.14, Florida Statutes, is |
| 364 | reenacted to read: |
| 365 | 958.14 Violation of probation or community control |
| 366 | program.--A violation or alleged violation of probation or the |
| 367 | terms of a community control program shall subject the youthful |
| 368 | offender to the provisions of s. 948.06. However, no youthful |
| 369 | offender shall be committed to the custody of the department for |
| 370 | a substantive violation for a period longer than the maximum |
| 371 | sentence for the offense for which he or she was found guilty, |
| 372 | with credit for time served while incarcerated, or for a |
| 373 | technical or nonsubstantive violation for a period longer than 6 |
| 374 | years or for a period longer than the maximum sentence for the |
| 375 | offense for which he or she was found guilty, whichever is less, |
| 376 | with credit for time served while incarcerated. |
| 377 | Section 8. This act shall take effect July 1, 2007. |