| 1 | A bill to be entitled |
| 2 | An act relating to state attorneys; amending s. 27.366, |
| 3 | F.S.; deleting a provision that requires each state |
| 4 | attorney to report why a case-qualified defendant did not |
| 5 | receive the mandatory minimum prison sentence in cases |
| 6 | involving the possession or use of a weapon; amending s. |
| 7 | 775.082, F.S.; deleting a provision that requires each |
| 8 | state attorney to report why a case-qualified defendant |
| 9 | did not receive the mandatory minimum prison sentence in |
| 10 | cases involving certain specified offenses; repealing s. |
| 11 | 775.08401, F.S., relating to criteria to be used when |
| 12 | state attorneys decide to pursue habitual felony |
| 13 | offenders, habitual violent felony offenders, or violent |
| 14 | career criminals; repealing s. 775.087(5), relating to a |
| 15 | provision that requires each state attorney to report why |
| 16 | a case-qualified defendant did not receive the mandatory |
| 17 | minimum prison sentence in cases involving certain |
| 18 | specified offenses; amending s. 903.286, F.S.; requiring |
| 19 | the clerk of the court to withhold sufficient funds to pay |
| 20 | any unpaid costs of prosecution from the return of a cash |
| 21 | bond posted on behalf of a criminal defendant by a person |
| 22 | other than a bail bond agent; amending s. 938.27, F.S.; |
| 23 | providing that persons whose cases are disposed of under |
| 24 | any diversionary alternative are liable for payment of the |
| 25 | costs of prosecution; deleting provisions regarding the |
| 26 | burden of establishing financial resources of the |
| 27 | defendant; requiring the clerk of court to separately |
| 28 | record each assessment and payment of costs of |
| 29 | prosecution; requiring the clerk to prepare a monthly |
| 30 | report to the state attorney's office of the recorded |
| 31 | assessments and payments; amending s. 943.0585, F.S.; |
| 32 | requiring a person to remit a processing fee to the state |
| 33 | attorney's office in order to receive a certificate of |
| 34 | eligibility for expunction of a criminal history record; |
| 35 | conforming cross-references; amending s. 943.059, F.S.; |
| 36 | requiring a person to remit a processing fee to the state |
| 37 | attorney's office in order to receive a certificate of |
| 38 | eligibility for sealing a criminal history record; |
| 39 | repealing s. 985.557(4), F.S., relating to direct-file |
| 40 | policies and guidelines for juveniles; amending s. |
| 41 | 775.0843, F.S.; conforming a cross-reference; providing an |
| 42 | effective date. |
| 43 |
|
| 44 | Be It Enacted by the Legislature of the State of Florida: |
| 45 |
|
| 46 | Section 1. Section 27.366, Florida Statutes, is amended to |
| 47 | read: |
| 48 | 27.366 Legislative intent and policy in cases meeting |
| 49 | criteria of s. 775.087(2) and (3); report.- |
| 50 | (1) It is the intent of the Legislature that convicted |
| 51 | criminal offenders who meet the criteria in s. 775.087(2) and |
| 52 | (3) be sentenced to the minimum mandatory prison terms provided |
| 53 | therein herein. It is the intent of the Legislature to establish |
| 54 | zero tolerance of criminals who use, threaten to use, or avail |
| 55 | themselves of firearms in order to commit crimes and thereby |
| 56 | demonstrate their lack of value for human life. It is also the |
| 57 | intent of the Legislature that prosecutors should appropriately |
| 58 | exercise their discretion in those cases in which the offenders' |
| 59 | possession of the firearm is incidental to the commission of a |
| 60 | crime and not used in furtherance of the crime, used in order to |
| 61 | commit the crime, or used in preparation to commit the crime. |
| 62 | For every case in which the offender meets the criteria in this |
| 63 | act and does not receive the mandatory minimum prison sentence, |
| 64 | the state attorney must explain the sentencing deviation in |
| 65 | writing and place such explanation in the case file maintained |
| 66 | by the state attorney. On a quarterly basis, each state attorney |
| 67 | shall submit copies of deviation memoranda regarding offenses |
| 68 | committed on or after the effective date of this act to the |
| 69 | President of the Florida Prosecuting Attorneys Association, Inc. |
| 70 | The association must maintain such information and make such |
| 71 | information available to the public upon request for at least a |
| 72 | 10-year period. |
| 73 | (2) Effective July 1, 2000, each state attorney shall |
| 74 | annually report to the Speaker of the House of Representatives, |
| 75 | the President of the Senate, and the Executive Office of the |
| 76 | Governor regarding the prosecution and sentencing of offenders |
| 77 | who met the criteria in s. 775.087(2) and (3). The report must |
| 78 | categorize the defendants by age, gender, race, and ethnicity. |
| 79 | Cases in which a final disposition has not yet been reached |
| 80 | shall be reported in a subsequent annual report. |
| 81 | Section 2. Paragraph (d) of subsection (9) of section |
| 82 | 775.082, Florida Statutes, is amended to read: |
| 83 | 775.082 Penalties; applicability of sentencing structures; |
| 84 | mandatory minimum sentences for certain reoffenders previously |
| 85 | released from prison.- |
| 86 | (9) |
| 87 | (d)1. It is the intent of the Legislature that offenders |
| 88 | previously released from prison who meet the criteria in |
| 89 | paragraph (a) be punished to the fullest extent of the law and |
| 90 | as provided in this subsection, unless the state attorney |
| 91 | determines that extenuating circumstances exist which preclude |
| 92 | the just prosecution of the offender, including whether the |
| 93 | victim recommends that the offender not be sentenced as provided |
| 94 | in this subsection. |
| 95 | 2. For every case in which the offender meets the criteria |
| 96 | in paragraph (a) and does not receive the mandatory minimum |
| 97 | prison sentence, the state attorney must explain the sentencing |
| 98 | deviation in writing and place such explanation in the case file |
| 99 | maintained by the state attorney. On an annual basis, each state |
| 100 | attorney shall submit copies of deviation memoranda regarding |
| 101 | offenses committed on or after the effective date of this |
| 102 | subsection, to the president of the Florida Prosecuting |
| 103 | Attorneys Association, Inc. The association must maintain such |
| 104 | information, and make such information available to the public |
| 105 | upon request, for at least a 10-year period. |
| 106 | Section 3. Section 775.08401, Florida Statutes, is |
| 107 | repealed. |
| 108 | Section 4. Subsection (5) of section 775.087, Florida |
| 109 | Statutes, is repealed. |
| 110 | Section 5. Subsection (1) of section 903.286, Florida |
| 111 | Statutes, is amended to read: |
| 112 | 903.286 Return of cash bond; requirement to withhold |
| 113 | unpaid fines, fees, court costs; cash bond forms.- |
| 114 | (1) Notwithstanding s. 903.31(2), the clerk of the court |
| 115 | shall withhold from the return of a cash bond posted on behalf |
| 116 | of a criminal defendant by a person other than a bail bond agent |
| 117 | licensed pursuant to chapter 648 sufficient funds to pay any |
| 118 | unpaid court fees, court costs, costs of prosecution, and |
| 119 | criminal penalties. If sufficient funds are not available to pay |
| 120 | all unpaid court fees, court costs, costs of prosecution, and |
| 121 | criminal penalties, the clerk of the court shall immediately |
| 122 | obtain payment from the defendant or enroll the defendant in a |
| 123 | payment plan pursuant to s. 28.246. |
| 124 | Section 6. Section 938.27, Florida Statutes, is amended to |
| 125 | read: |
| 126 | 938.27 Judgment for costs on conviction and disposition.- |
| 127 | (1) In all criminal and violation-of-probation or |
| 128 | community-control cases, convicted persons and persons whose |
| 129 | cases are disposed of under any diversionary alternative are |
| 130 | liable for payment of the costs of prosecution, including |
| 131 | investigative costs incurred by law enforcement agencies, by |
| 132 | fire departments for arson investigations, and by investigations |
| 133 | of the Department of Financial Services or the Office of |
| 134 | Financial Regulation of the Financial Services Commission, if |
| 135 | requested by such agencies. The court shall include these costs |
| 136 | in every judgment rendered against the convicted person. For |
| 137 | purposes of this section, "convicted" means a determination of |
| 138 | guilt, or of violation of probation or community control, which |
| 139 | is a result of a plea, trial, or violation proceeding, |
| 140 | regardless of whether adjudication is withheld. |
| 141 | (2)(a) The court shall impose the costs of prosecution and |
| 142 | investigation notwithstanding the defendant's present ability to |
| 143 | pay. The court shall require the defendant to pay the costs |
| 144 | within a specified period or in specified installments. |
| 145 | (b) The end of such period or the last such installment |
| 146 | shall not be later than: |
| 147 | 1. The end of the period of probation or community |
| 148 | control, if probation or community control is ordered; |
| 149 | 2. Five years after the end of the term of imprisonment |
| 150 | imposed, if the court does not order probation or community |
| 151 | control; or |
| 152 | 3. Five years after the date of sentencing in any other |
| 153 | case. |
| 154 |
|
| 155 | However, in no event shall the obligation to pay any unpaid |
| 156 | amounts expire if not paid in full within the period specified |
| 157 | in this paragraph. |
| 158 | (c) If not otherwise provided by the court under this |
| 159 | section, costs shall be paid immediately. |
| 160 | (3) If a defendant is placed on probation or community |
| 161 | control, payment of any costs under this section shall be a |
| 162 | condition of such probation or community control. The court may |
| 163 | revoke probation or community control if the defendant fails to |
| 164 | pay these costs. |
| 165 | (4) Any dispute as to the proper amount or type of costs |
| 166 | shall be resolved by the court by the preponderance of the |
| 167 | evidence. The burden of demonstrating the amount of costs |
| 168 | incurred is on the state attorney. The burden of demonstrating |
| 169 | the financial resources of the defendant and the financial needs |
| 170 | of the defendant is on the defendant. The burden of |
| 171 | demonstrating such other matters as the court deems appropriate |
| 172 | is upon the party designated by the court as justice requires. |
| 173 | (5) Any default in payment of costs may be collected by |
| 174 | any means authorized by law for enforcement of a judgment. |
| 175 | (6) The clerk of the court shall collect and dispense cost |
| 176 | payments in any case. The clerk of court shall separately record |
| 177 | each assessment and the payment of costs of prosecution. Costs |
| 178 | of prosecution must be assessed with respect to each case number |
| 179 | before the court. The clerk shall provide a monthly report to |
| 180 | the state attorney's office of the assessments and payments |
| 181 | recorded. |
| 182 | (7) Investigative costs that are recovered shall be |
| 183 | returned to the appropriate investigative agency that incurred |
| 184 | the expense. Such costs include actual expenses incurred in |
| 185 | conducting the investigation and prosecution of the criminal |
| 186 | case; however, costs may also include the salaries of permanent |
| 187 | employees. Any investigative costs recovered on behalf of a |
| 188 | state agency must be remitted to the Department of Revenue for |
| 189 | deposit in the agency operating trust fund, and a report of the |
| 190 | payment must be sent to the agency, except that any |
| 191 | investigative costs recovered on behalf of the Department of Law |
| 192 | Enforcement shall be deposited in the department's Forfeiture |
| 193 | and Investigative Support Trust Fund under s. 943.362. |
| 194 | (8) Costs for the state attorney shall be set in all cases |
| 195 | at no less than $50 per case when a misdemeanor or criminal |
| 196 | traffic offense is charged and no less than $100 per case when a |
| 197 | felony offense is charged, including a proceeding in which the |
| 198 | underlying offense is a violation of probation or community |
| 199 | control. The court may set a higher amount upon a showing of |
| 200 | sufficient proof of higher costs incurred. Costs recovered on |
| 201 | behalf of the state attorney under this section shall be |
| 202 | deposited into the state attorney's grants and donations trust |
| 203 | fund to be used during the fiscal year in which the funds are |
| 204 | collected, or in any subsequent fiscal year, for actual expenses |
| 205 | incurred in investigating and prosecuting criminal cases, which |
| 206 | may include the salaries of permanent employees, or for any |
| 207 | other purpose authorized by the Legislature. |
| 208 | Section 7. Paragraph (b) of subsection (1) of section |
| 209 | 943.0585, Florida Statutes, is amended, present paragraphs (c) |
| 210 | through (h) of subsection (2) of that section are redesignated |
| 211 | as paragraphs (d) through (i), respectively, a new paragraph (c) |
| 212 | is added to that subsection, and present paragraph (f) of that |
| 213 | subsection is amended, to read: |
| 214 | 943.0585 Court-ordered expunction of criminal history |
| 215 | records.-The courts of this state have jurisdiction over their |
| 216 | own procedures, including the maintenance, expunction, and |
| 217 | correction of judicial records containing criminal history |
| 218 | information to the extent such procedures are not inconsistent |
| 219 | with the conditions, responsibilities, and duties established by |
| 220 | this section. Any court of competent jurisdiction may order a |
| 221 | criminal justice agency to expunge the criminal history record |
| 222 | of a minor or an adult who complies with the requirements of |
| 223 | this section. The court shall not order a criminal justice |
| 224 | agency to expunge a criminal history record until the person |
| 225 | seeking to expunge a criminal history record has applied for and |
| 226 | received a certificate of eligibility for expunction pursuant to |
| 227 | subsection (2). A criminal history record that relates to a |
| 228 | violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, |
| 229 | s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. |
| 230 | 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. |
| 231 | 893.135, s. 916.1075, a violation enumerated in s. 907.041, or |
| 232 | any violation specified as a predicate offense for registration |
| 233 | as a sexual predator pursuant to s. 775.21, without regard to |
| 234 | whether that offense alone is sufficient to require such |
| 235 | registration, or for registration as a sexual offender pursuant |
| 236 | to s. 943.0435, may not be expunged, without regard to whether |
| 237 | adjudication was withheld, if the defendant was found guilty of |
| 238 | or pled guilty or nolo contendere to the offense, or if the |
| 239 | defendant, as a minor, was found to have committed, or pled |
| 240 | guilty or nolo contendere to committing, the offense as a |
| 241 | delinquent act. The court may only order expunction of a |
| 242 | criminal history record pertaining to one arrest or one incident |
| 243 | of alleged criminal activity, except as provided in this |
| 244 | section. The court may, at its sole discretion, order the |
| 245 | expunction of a criminal history record pertaining to more than |
| 246 | one arrest if the additional arrests directly relate to the |
| 247 | original arrest. If the court intends to order the expunction of |
| 248 | records pertaining to such additional arrests, such intent must |
| 249 | be specified in the order. A criminal justice agency may not |
| 250 | expunge any record pertaining to such additional arrests if the |
| 251 | order to expunge does not articulate the intention of the court |
| 252 | to expunge a record pertaining to more than one arrest. This |
| 253 | section does not prevent the court from ordering the expunction |
| 254 | of only a portion of a criminal history record pertaining to one |
| 255 | arrest or one incident of alleged criminal activity. |
| 256 | Notwithstanding any law to the contrary, a criminal justice |
| 257 | agency may comply with laws, court orders, and official requests |
| 258 | of other jurisdictions relating to expunction, correction, or |
| 259 | confidential handling of criminal history records or information |
| 260 | derived therefrom. This section does not confer any right to the |
| 261 | expunction of any criminal history record, and any request for |
| 262 | expunction of a criminal history record may be denied at the |
| 263 | sole discretion of the court. |
| 264 | (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.-Each |
| 265 | petition to a court to expunge a criminal history record is |
| 266 | complete only when accompanied by: |
| 267 | (b) The petitioner's sworn statement attesting that the |
| 268 | petitioner: |
| 269 | 1. Has never, prior to the date on which the petition is |
| 270 | filed, been adjudicated guilty of a criminal offense or |
| 271 | comparable ordinance violation, or been adjudicated delinquent |
| 272 | for committing any felony or a misdemeanor specified in s. |
| 273 | 943.051(3)(b). |
| 274 | 2. Has not been adjudicated guilty of, or adjudicated |
| 275 | delinquent for committing, any of the acts stemming from the |
| 276 | arrest or alleged criminal activity to which the petition |
| 277 | pertains. |
| 278 | 3. Has never secured a prior sealing or expunction of a |
| 279 | criminal history record under this section, former s. 893.14, |
| 280 | former s. 901.33, or former s. 943.058, or from any jurisdiction |
| 281 | outside the state, unless expunction is sought of a criminal |
| 282 | history record previously sealed for 10 years pursuant to |
| 283 | paragraph (2)(i)(h) and the record is otherwise eligible for |
| 284 | expunction. |
| 285 | 4. Is eligible for such an expunction to the best of his |
| 286 | or her knowledge or belief and does not have any other petition |
| 287 | to expunge or any petition to seal pending before any court. |
| 288 |
|
| 289 | Any person who knowingly provides false information on such |
| 290 | sworn statement to the court commits a felony of the third |
| 291 | degree, punishable as provided in s. 775.082, s. 775.083, or s. |
| 292 | 775.084. |
| 293 | (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.-Prior to |
| 294 | petitioning the court to expunge a criminal history record, a |
| 295 | person seeking to expunge a criminal history record shall apply |
| 296 | to the department for a certificate of eligibility for |
| 297 | expunction. The department shall, by rule adopted pursuant to |
| 298 | chapter 120, establish procedures pertaining to the application |
| 299 | for and issuance of certificates of eligibility for expunction. |
| 300 | A certificate of eligibility for expunction is valid for 12 |
| 301 | months after the date stamped on the certificate when issued by |
| 302 | the department. After that time, the petitioner must reapply to |
| 303 | the department for a new certificate of eligibility. Eligibility |
| 304 | for a renewed certification of eligibility must be based on the |
| 305 | status of the applicant and the law in effect at the time of the |
| 306 | renewal application. The department shall issue a certificate of |
| 307 | eligibility for expunction to a person who is the subject of a |
| 308 | criminal history record if that person: |
| 309 | (c) Remits a $75 processing fee to the state attorney's |
| 310 | office to be deposited into the state attorney's grants and |
| 311 | donations trust fund unless the fee is waived by the state |
| 312 | attorney. |
| 313 | (g)(f) Has never secured a prior sealing or expunction of |
| 314 | a criminal history record under this section, former s. 893.14, |
| 315 | former s. 901.33, or former s. 943.058, unless expunction is |
| 316 | sought of a criminal history record previously sealed for 10 |
| 317 | years pursuant to paragraph (i) (h) and the record is otherwise |
| 318 | eligible for expunction. |
| 319 | Section 8. Present paragraphs (c) through (f) of |
| 320 | subsection (2) of section 943.059, Florida Statutes, are |
| 321 | redesignated as paragraphs (d) through (g), respectively, and a |
| 322 | new paragraph (c) is added to that subsection, to read: |
| 323 | 943.059 Court-ordered sealing of criminal history |
| 324 | records.-The courts of this state shall continue to have |
| 325 | jurisdiction over their own procedures, including the |
| 326 | maintenance, sealing, and correction of judicial records |
| 327 | containing criminal history information to the extent such |
| 328 | procedures are not inconsistent with the conditions, |
| 329 | responsibilities, and duties established by this section. Any |
| 330 | court of competent jurisdiction may order a criminal justice |
| 331 | agency to seal the criminal history record of a minor or an |
| 332 | adult who complies with the requirements of this section. The |
| 333 | court shall not order a criminal justice agency to seal a |
| 334 | criminal history record until the person seeking to seal a |
| 335 | criminal history record has applied for and received a |
| 336 | certificate of eligibility for sealing pursuant to subsection |
| 337 | (2). A criminal history record that relates to a violation of s. |
| 338 | 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s. |
| 339 | 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter |
| 340 | 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. |
| 341 | 916.1075, a violation enumerated in s. 907.041, or any violation |
| 342 | specified as a predicate offense for registration as a sexual |
| 343 | predator pursuant to s. 775.21, without regard to whether that |
| 344 | offense alone is sufficient to require such registration, or for |
| 345 | registration as a sexual offender pursuant to s. 943.0435, may |
| 346 | not be sealed, without regard to whether adjudication was |
| 347 | withheld, if the defendant was found guilty of or pled guilty or |
| 348 | nolo contendere to the offense, or if the defendant, as a minor, |
| 349 | was found to have committed or pled guilty or nolo contendere to |
| 350 | committing the offense as a delinquent act. The court may only |
| 351 | order sealing of a criminal history record pertaining to one |
| 352 | arrest or one incident of alleged criminal activity, except as |
| 353 | provided in this section. The court may, at its sole discretion, |
| 354 | order the sealing of a criminal history record pertaining to |
| 355 | more than one arrest if the additional arrests directly relate |
| 356 | to the original arrest. If the court intends to order the |
| 357 | sealing of records pertaining to such additional arrests, such |
| 358 | intent must be specified in the order. A criminal justice agency |
| 359 | may not seal any record pertaining to such additional arrests if |
| 360 | the order to seal does not articulate the intention of the court |
| 361 | to seal records pertaining to more than one arrest. This section |
| 362 | does not prevent the court from ordering the sealing of only a |
| 363 | portion of a criminal history record pertaining to one arrest or |
| 364 | one incident of alleged criminal activity. Notwithstanding any |
| 365 | law to the contrary, a criminal justice agency may comply with |
| 366 | laws, court orders, and official requests of other jurisdictions |
| 367 | relating to sealing, correction, or confidential handling of |
| 368 | criminal history records or information derived therefrom. This |
| 369 | section does not confer any right to the sealing of any criminal |
| 370 | history record, and any request for sealing a criminal history |
| 371 | record may be denied at the sole discretion of the court. |
| 372 | (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.-Prior to |
| 373 | petitioning the court to seal a criminal history record, a |
| 374 | person seeking to seal a criminal history record shall apply to |
| 375 | the department for a certificate of eligibility for sealing. The |
| 376 | department shall, by rule adopted pursuant to chapter 120, |
| 377 | establish procedures pertaining to the application for and |
| 378 | issuance of certificates of eligibility for sealing. A |
| 379 | certificate of eligibility for sealing is valid for 12 months |
| 380 | after the date stamped on the certificate when issued by the |
| 381 | department. After that time, the petitioner must reapply to the |
| 382 | department for a new certificate of eligibility. Eligibility for |
| 383 | a renewed certification of eligibility must be based on the |
| 384 | status of the applicant and the law in effect at the time of the |
| 385 | renewal application. The department shall issue a certificate of |
| 386 | eligibility for sealing to a person who is the subject of a |
| 387 | criminal history record provided that such person: |
| 388 | (c) Remits a $75 processing fee to the state attorney's |
| 389 | office to be deposited into the state attorney's grants and |
| 390 | donations trust fund unless the fee is waived by the state |
| 391 | attorney. |
| 392 | Section 9. Subsection (4) of section 985.557, Florida |
| 393 | Statutes, is repealed. |
| 394 | Section 10. Subsection (5) of section 775.0843, Florida |
| 395 | Statutes, is amended to read: |
| 396 | 775.0843 Policies to be adopted for career criminal |
| 397 | cases.- |
| 398 | (5) Each career criminal apprehension program shall |
| 399 | concentrate on the identification and arrest of career criminals |
| 400 | and the support of subsequent prosecution. The determination of |
| 401 | which suspected felony offenders shall be the subject of career |
| 402 | criminal apprehension efforts shall be made in accordance with |
| 403 | written target selection criteria selected by the individual law |
| 404 | enforcement agency and state attorney consistent with the |
| 405 | provisions of this section and s. ss. 775.08401 and 775.0842. |
| 406 | Section 11. This act shall take effect July 1, 2010. |