SB 1398                                          First Engrossed
       
       
       
       
       
       
       
       
       20111398e1
       
    1                        A bill to be entitled                      
    2         An act relating to the judiciary; repealing s. 25.051,
    3         F.S., relating to regular terms of the Supreme Court;
    4         repealing s. 26.21, F.S., relating to terms of the
    5         circuit courts; repealing s. 26.22, F.S., relating to
    6         terms of the First Judicial Circuit; repealing s.
    7         26.23, F.S., relating to terms of the Second Judicial
    8         Circuit; repealing s. 26.24, F.S., relating to terms
    9         of the Third Judicial Circuit; repealing s. 26.25,
   10         F.S., relating to terms of the Fourth Judicial
   11         Circuit; repealing s. 26.26, F.S., relating to terms
   12         of the Fifth Judicial Circuit; repealing s. 26.27,
   13         F.S., relating to terms of the Sixth Judicial Circuit;
   14         repealing s. 26.28, F.S., relating to terms of the
   15         Seventh Judicial Circuit; repealing s. 26.29, F.S.,
   16         relating to terms of the Eighth Judicial Circuit;
   17         repealing s. 26.30, F.S., relating to terms of the
   18         Ninth Judicial Circuit; repealing s. 26.31, F.S.,
   19         relating to terms of the Tenth Judicial Circuit;
   20         repealing s. 26.32, F.S., relating to terms of the
   21         Eleventh Judicial Circuit; repealing s. 26.33, F.S.,
   22         relating to terms of the Twelfth Judicial Circuit;
   23         repealing s. 26.34, F.S., relating to terms of the
   24         Thirteenth Judicial Circuit; repealing s. 26.35, F.S.,
   25         relating to terms of the Fourteenth Judicial Circuit;
   26         repealing s. 26.36, F.S., relating to terms of the
   27         Fifteenth Judicial Circuit; repealing s. 26.361, F.S.,
   28         relating to terms of the Sixteenth Judicial Circuit;
   29         repealing s. 26.362, F.S., relating to terms of the
   30         Seventeenth Judicial Circuit; repealing s. 26.363,
   31         F.S., relating to terms of the Eighteenth Judicial
   32         Circuit; repealing s. 26.364, F.S., relating to terms
   33         of the Nineteenth Judicial Circuit; repealing s.
   34         26.365, F.S., relating to terms of the Twentieth
   35         Judicial Circuit; repealing s. 26.37, F.S., relating
   36         to requiring a judge to attend the first day of each
   37         term of the circuit court; repealing s. 26.38, F.S.,
   38         relating to a requirement for a judge to state a
   39         reason for nonattendance; repealing s. 26.39, F.S.,
   40         relating to penalty for nonattendance of judge;
   41         repealing s. 26.40, F.S., relating to adjournment of
   42         the circuit court upon nonattendance of the judge;
   43         repealing s. 26.42, F.S., relating to calling all
   44         cases on the docket at the end of each term; repealing
   45         s. 35.10, F.S., relating to regular terms of the
   46         district courts of appeal; repealing s. 35.11, F.S.,
   47         relating to special terms of the district courts of
   48         appeal; repealing s. 907.05, F.S., relating to a
   49         requirement that criminal trials be heard in the term
   50         of court prior to civil cases; repealing s. 907.055,
   51         F.S., relating to a requirement that persons in
   52         custody be arraigned and tried in the term of court
   53         unless good cause is shown; amending ss. 26.46, 27.04,
   54         30.12, 30.15, 34.13, 35.05, and 38.23, F.S.;
   55         conforming provisions to changes made by the act;
   56         creating s. 43.43, F.S.; allowing the Supreme Court to
   57         set terms of court for the Supreme Court, district
   58         courts of appeal, and circuit courts; creating s.
   59         43.44, F.S.; providing that appellate courts may
   60         withdraw a mandate within 120 days after its issuance;
   61         amending ss. 112.19, 206.215, 450.121, 831.10, 831.17,
   62         877.08, 902.19, 903.32, 905.01, 905.09, 905.095,
   63         914.03, 924.065, and 932.47, F.S.; conforming
   64         provisions to changes made by the act; providing a
   65         short title; defining terms; requiring state, county,
   66         municipal, and other law enforcement agencies that
   67         conduct lineups to follow certain specified
   68         procedures; requiring the eyewitness to sign an
   69         acknowledgement that he or she received the
   70         instructions about the lineup procedures from the law
   71         enforcement agency; specifying remedies for failing to
   72         adhere to the eyewitness identification procedures;
   73         requiring the Criminal Justice Standards and Training
   74         Commission to create educational materials and conduct
   75         training programs on how to conduct lineups in
   76         compliance with the act; providing effective dates.
   77  
   78  Be It Enacted by the Legislature of the State of Florida:
   79  
   80         Section 1. Sections 25.051, 26.21, 26.22, 26.23, 26.24,
   81  26.25, 26.26, 26.27, 26.28, 26.29, 26.30, 26.31, 26.32, 26.33,
   82  26.34, 26.35, 26.36, 26.361, 26.362, 26.363, 26.364, 26.365,
   83  26.37, 26.38, 26.39, 26.40, 26.42, 35.10, 35.11, 907.05, and
   84  907.055, Florida Statutes, are repealed.
   85         Section 2. Section 26.46, Florida Statutes, is amended to
   86  read:
   87         26.46 Jurisdiction of resident judge after assignment.—When
   88  a circuit judge is assigned to another circuit, none of the
   89  circuit judges in such other circuit shall, because of such
   90  assignment, be deprived of or affected in his or her
   91  jurisdiction other than to the extent essential so as not to
   92  conflict with the authority of the temporarily assigned circuit
   93  judge as to the particular case or cases or class of cases, or
   94  in presiding at the particular term or part of term named or
   95  specified in the assignment.
   96         Section 3. Section 27.04, Florida Statutes, is amended to
   97  read:
   98         27.04 Summoning and examining witnesses for state.—The
   99  state attorney shall have summoned all witnesses required on
  100  behalf of the state; and he or she is allowed the process of his
  101  or her court to summon witnesses from throughout the state to
  102  appear before the state attorney in or out of term time at such
  103  convenient places in the state attorney’s judicial circuit and
  104  at such convenient times as may be designated in the summons, to
  105  testify before him or her as to any violation of the law upon
  106  which they may be interrogated, and he or she is empowered to
  107  administer oaths to all witnesses summoned to testify by the
  108  process of his or her court or who may voluntarily appear before
  109  the state attorney to testify as to any violation or violations
  110  of the law.
  111         Section 4. Section 30.12, Florida Statutes, is amended to
  112  read:
  113         30.12 Power to appoint sheriff.—Whenever any sheriff in the
  114  state shall fail to attend, in person or by deputy, any term of
  115  the circuit court or county court of the county, from sickness,
  116  death, or other cause, the judge attending said court may
  117  appoint an interim a sheriff, who shall assume all the
  118  responsibilities, perform all the duties, and receive the same
  119  compensation as if he or she had been duly appointed sheriff,
  120  for only the said term of nonattendance court and no longer.
  121         Section 5. Paragraph (c) of subsection (1) of section
  122  30.15, Florida Statutes, is amended to read:
  123         30.15 Powers, duties, and obligations.—
  124         (1) Sheriffs, in their respective counties, in person or by
  125  deputy, shall:
  126         (c) Attend all sessions terms of the circuit court and
  127  county court held in their counties.
  128         Section 6. Subsection (2) of section 34.13, Florida
  129  Statutes, is amended to read:
  130         34.13 Method of prosecution.—
  131         (2) Upon the finding of indictments by the grand jury for
  132  crimes cognizable by the county court, the clerk of the court,
  133  without any order therefor, shall docket the same on the trial
  134  docket of the county court on or before the first day of its
  135  next succeeding term.
  136         Section 7. Subsection (2) of section 35.05, Florida
  137  Statutes, is amended to read:
  138         35.05 Headquarters.—
  139         (2) A district court of appeal may designate other
  140  locations within its district as branch headquarters for the
  141  conduct of the business of the court in special or regular term
  142  and as the official headquarters of its officers or employees
  143  pursuant to s. 112.061.
  144         Section 8. Section 38.23, Florida Statutes, is amended to
  145  read:
  146         38.23 Contempt Contempts defined.—A refusal to obey any
  147  legal order, mandate or decree, made or given by any judge
  148  either in term time or in vacation relative to any of the
  149  business of said court, after due notice thereof, shall be
  150  considered a contempt, and punished accordingly. But nothing
  151  said or written, or published, in vacation, to or of any judge,
  152  or of any decision made by a judge, shall in any case be
  153  construed to be a contempt.
  154         Section 9. Section 43.43, Florida Statutes, is created to
  155  read:
  156         43.43 Terms of courts.—The Supreme Court may establish
  157  terms of court for the Supreme Court, the district courts of
  158  appeal, and the circuit courts; may provide that district courts
  159  and circuit courts may establish their own terms of court; or
  160  may dispense with terms of court.
  161         Section 10. Section 43.44, Florida Statutes, is created to
  162  read:
  163         43.44 Mandate of an appeals court.—An appellate court has
  164  the jurisdiction and power, as the circumstances and justice of
  165  the case may require, to reconsider, revise, reform, or modify
  166  its own judgments for the purpose of making the same accord with
  167  law and justice. Accordingly, an appellate court has the power
  168  to recall its own mandate for the purpose of enabling it to
  169  exercise such jurisdiction and power in a proper case. A mandate
  170  may not be recalled more than 120 days after it is filed with
  171  the lower tribunal.
  172         Section 11. Paragraph (b) of subsection (1) of section
  173  112.19, Florida Statutes, is amended to read:
  174         112.19 Law enforcement, correctional, and correctional
  175  probation officers; death benefits.—
  176         (1) Whenever used in this section, the term:
  177         (b) “Law enforcement, correctional, or correctional
  178  probation officer” means any officer as defined in s. 943.10(14)
  179  or employee of the state or any political subdivision of the
  180  state, including any law enforcement officer, correctional
  181  officer, correctional probation officer, state attorney
  182  investigator, or public defender investigator, whose duties
  183  require such officer or employee to investigate, pursue,
  184  apprehend, arrest, transport, or maintain custody of persons who
  185  are charged with, suspected of committing, or convicted of a
  186  crime; and the term includes any member of a bomb disposal unit
  187  whose primary responsibility is the location, handling, and
  188  disposal of explosive devices. The term also includes any full
  189  time officer or employee of the state or any political
  190  subdivision of the state, certified pursuant to chapter 943,
  191  whose duties require such officer to serve process or to attend
  192  session terms of a circuit or county court as bailiff.
  193         Section 12. Subsection (2) of section 206.215, Florida
  194  Statutes, is amended to read:
  195         206.215 Costs and expenses of proceedings.—
  196         (2) The clerks of the courts performing duties under the
  197  provisions aforesaid shall receive the same fees as prescribed
  198  by the general law for the performance of similar duties, and
  199  witnesses attending any investigation pursuant to subpoena shall
  200  receive the same mileage and per diem as if attending as a
  201  witness before the circuit court in term time.
  202         Section 13. Subsection (4) of section 450.121, Florida
  203  Statutes, is amended to read:
  204         450.121 Enforcement of Child Labor Law.—
  205         (4) Grand juries shall have inquisitorial powers to
  206  investigate violations of this chapter; also, trial court judges
  207  shall specially charge the grand jury, at the beginning of each
  208  term of the court, to investigate violations of this chapter.
  209         Section 14. Section 831.10, Florida Statutes, is amended to
  210  read:
  211         831.10 Second conviction of uttering forged bills.—Whoever,
  212  having been convicted of the offense mentioned in s. 831.09 is
  213  again convicted of the like offense committed after the former
  214  conviction, and whoever is at the same term of the court
  215  convicted upon three distinct charges of such offense, shall be
  216  deemed a common utterer of counterfeit bills, and shall be
  217  punished as provided in s. 775.084.
  218         Section 15. Section 831.17, Florida Statutes, is amended to
  219  read:
  220         831.17 Violation of s. 831.16; second or subsequent
  221  conviction.—Whoever having been convicted of either of the
  222  offenses mentioned in s. 831.16, is again convicted of either of
  223  the same offenses, committed after the former conviction, and
  224  whoever is at the same term of the court convicted upon three
  225  distinct charges of said offenses, commits a felony of the
  226  second degree, punishable as provided in s. 775.082, s. 775.083,
  227  or s. 775.084.
  228         Section 16. Subsection (4) of section 877.08, Florida
  229  Statutes, is amended to read:
  230         877.08 Coin-operated vending machines and parking meters;
  231  defined; prohibited acts, penalties.—
  232         (4) Whoever violates the provisions of subsection (3) a
  233  second or subsequent time commits, and is convicted of such
  234  second separate offense, either at the same term or a subsequent
  235  term of court, shall be guilty of a felony of the third degree,
  236  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  237         Section 17. Subsection (1) of section 902.19, Florida
  238  Statutes, is amended to read:
  239         902.19 When prosecutor liable for costs.—
  240         (1) When a person makes a complaint before a county court
  241  judge that a crime has been committed and is recognized by the
  242  county court judge to appear before at the next term of the
  243  court having jurisdiction to give evidence of the crime and
  244  fails to appear, the person shall be liable for all costs
  245  occasioned by his or her complaint, and the county court judge
  246  may enter obtain a judgment and execution for the costs as in
  247  other cases.
  248         Section 18. Subsection (2) of section 903.32, Florida
  249  Statutes, is amended to read:
  250         903.32 Defects in bond.—
  251         (2) If no day, or an impossible day, is stated in a bond
  252  for the defendant’s appearance before a trial court judge for a
  253  hearing or trial, the defendant shall be bound to appear 10 days
  254  after receipt of notice to appear by the defendant, the
  255  defendant’s counsel, or any surety on the undertaking. If no
  256  day, or an impossible day, is stated in a bond for the
  257  defendant’s appearance for trial, the defendant shall be bound
  258  to appear on the first day of the next term of court that will
  259  commence more than 3 days after the undertaking is given.
  260         Section 19. Section 905.01, Florida Statutes, is amended to
  261  read:
  262         905.01 Number and procurement of grand jury; replacement of
  263  member; term of grand jury.—
  264         (1) The grand jury shall consist of not fewer than 15 nor
  265  more than 21 persons. The provisions of law governing the
  266  qualifications, disqualifications, excusals, drawing, summoning,
  267  supplying deficiencies, compensation, and procurement of petit
  268  jurors apply to grand jurors. In addition, an elected public
  269  official is not eligible for service on a grand jury.
  270         (2) The chief judge of any circuit court may provide for
  271  the replacement of any grand juror who, for good cause, is
  272  unable to complete the term of the grand jury. Such replacement
  273  shall be made by appropriate order of the chief judge from the
  274  list of prospective jurors from which the grand juror to be
  275  replaced was selected.
  276         (3) The chief judge of each any circuit court shall
  277  regularly order may dispense with the convening of the grand
  278  jury for a at any term of 6 months court by filing a written
  279  order with the clerk of court directing that a grand jury not be
  280  summoned.
  281         Section 20. Section 905.09, Florida Statutes, is amended to
  282  read:
  283         905.09 Discharge and recall of grand jury.—A grand jury
  284  that has been dismissed may be recalled at any time during the
  285  same term of the grand jury court.
  286         Section 21. Section 905.095, Florida Statutes, is amended
  287  to read:
  288         905.095 Extension of grand jury term.—Upon petition of the
  289  state attorney or the foreperson of the grand jury acting on
  290  behalf of a majority of the grand jurors, the circuit court may
  291  extend the term of a grand jury impaneled under this chapter
  292  beyond the term of court in which it was originally impaneled. A
  293  grand jury whose term has been extended as provided herein shall
  294  have the same composition and the same powers and duties it had
  295  during its original term. In the event the term of the grand
  296  jury is extended under this section, it shall be extended for a
  297  time certain, not to exceed a total of 90 days, and only for the
  298  purpose of concluding one or more specified investigative
  299  matters initiated during its original term.
  300         Section 22. Section 914.03, Florida Statutes, is amended to
  301  read:
  302         914.03 Attendance of witnesses.—A witness summoned by a
  303  grand jury or in a criminal case shall remain in attendance
  304  until excused by the grand jury. A witness summoned in a
  305  criminal case shall remain in attendance until excused by the
  306  court. A witness who departs without permission of the court
  307  shall be in criminal contempt of court. A witness shall attend
  308  each succeeding term of court until the case is terminated.
  309         Section 23. Subsection (2) of section 924.065, Florida
  310  Statutes, is amended to read:
  311         924.065 Denial of motion for new trial or arrest of
  312  judgment; appeal bond; supersedeas.—
  313         (2) An appeal shall not be a supersedeas to the execution
  314  of the judgment, sentence, or order until the appellant has
  315  entered into a bond with at least two sureties to secure the
  316  payment of the judgment, fine, and any future costs that may be
  317  adjudged by the appellate court. The bond shall be conditioned
  318  on the appellant’s personally answering and abiding by the final
  319  order, sentence, or judgment of the appellate court and, if the
  320  action is remanded, on the appellant’s appearing before at the
  321  next term of the court in which the case was originally
  322  determined and not departing without leave of court.
  323         Section 24. Section 932.47, Florida Statutes, is amended to
  324  read:
  325         932.47 Informations filed by prosecuting attorneys.
  326  Informations may be filed by the prosecuting attorney of the
  327  circuit court with the clerk of the circuit court in vacation or
  328  in term without leave of the court first being obtained.
  329         Section 25. Eyewitness identification.—
  330         (1) SHORT TITLE.—This section may be cited as the
  331  “Eyewitness Identification Reform Act.”
  332         (2) DEFINITIONS.—As used in this section, the term:
  333         (a) “Eyewitness” means a person whose identification by
  334  sight of another person may be relevant in a criminal
  335  proceeding.
  336         (b) “Filler” means a person or a photograph of a person who
  337  is not suspected of an offense but is included in a lineup.
  338         (c) “Independent administrator” means a person who is not
  339  participating in the investigation of a criminal offense and is
  340  unaware of which person in the lineup is the suspect.
  341         (d) “Lineup” means a photo lineup or live lineup.
  342         (e) “Lineup administrator” means the person who conducts a
  343  lineup.
  344         (f) “Live lineup” means a procedure in which a group of
  345  people is displayed to an eyewitness for the purpose of
  346  determining if the eyewitness is able to identify the
  347  perpetrator of a crime.
  348         (g) “Photo lineup” means a procedure in which an array of
  349  photographs is displayed to an eyewitness for the purpose of
  350  determining if the eyewitness is able to identify the
  351  perpetrator of a crime.
  352         (3) EYEWITNESS IDENTIFICATION PROCEDURES.—Lineups conducted
  353  in this state by state, county, municipal, and other law
  354  enforcement agencies must meet all of the following
  355  requirements:
  356         (a) A lineup must be conducted by an independent
  357  administrator. In lieu of using an independent administrator, a
  358  photo lineup eyewitness identification procedure may be
  359  conducted using an alternative method specified and approved by
  360  the Criminal Justice Standards and Training Commission. Any
  361  alternative method must be carefully structured to achieve
  362  neutral administration and to prevent the administrator from
  363  knowing which photograph is being presented to the eyewitness
  364  during the identification procedure. Alternative methods may
  365  include any of the following:
  366         1. Automated computer programs that can automatically
  367  administer the photo lineup directly to an eyewitness and
  368  prevent the lineup administrator from seeing which photo the
  369  witness is viewing until after the procedure is completed.
  370         2. A procedure in which photographs are placed in folders,
  371  randomly numbered, and shuffled and then presented to an
  372  eyewitness such that the administrator cannot see or track which
  373  photograph is being presented to the witness until after the
  374  procedure is completed.
  375         3. Any other procedure that achieves neutral administration
  376  and prevents the administrator from knowing which photograph is
  377  being presented to the eyewitness during the identification
  378  procedure.
  379         (b) Before a lineup, the eyewitness shall be instructed
  380  that:
  381         1. The perpetrator might or might not be in the lineup;
  382         2. The lineup administrator does not know the suspect’s
  383  identity, except that this instruction need not be given when a
  384  specified and approved alternative method of neutral
  385  administration is utilized;
  386         3. The eyewitness should not feel compelled to make an
  387  identification;
  388         4. It is as important to exclude innocent persons as it is
  389  to identify the perpetrator; and
  390         5. The investigation will continue with or without an
  391  identification.
  392  
  393  The eyewitness shall acknowledge, in writing, having received a
  394  copy of the lineup instructions. If the eyewitness refuses to
  395  sign a document acknowledging receipt of the instructions, the
  396  lineup administrator shall document the refusal of the
  397  eyewitness to sign the writing and then sign the acknowledgement
  398  himself or herself.
  399         (4) REMEDIES.—All of the following remedies are available
  400  as consequence of a person not complying with the requirements
  401  of this section:
  402         (a)1. A failure on the part of a person to comply with any
  403  requirement of this section shall be considered by the court
  404  when adjudicating motions to suppress eyewitness identification.
  405         2. A failure on the part of a person to comply with any
  406  requirement of this section is admissible in support of claims
  407  of eyewitness misidentification, as long as such evidence is
  408  otherwise admissible.
  409         (b) When evidence of compliance or noncompliance with the
  410  requirements of this section has been presented at trial, the
  411  jury shall be instructed that it may consider credible evidence
  412  of compliance or noncompliance to determine the reliability of
  413  eyewitness identifications.
  414         (5) EDUCATION AND TRAINING.—The Criminal Justice Standards
  415  and Training Commission, in consultation with the Department of
  416  Law Enforcement, shall create educational materials and conduct
  417  training programs on how to conduct lineups in compliance with
  418  this section.
  419         Section 26. (1) Sections 1 through 24 of this act shall
  420  take effect January 1, 2012.
  421         (2) Section 25 of this act shall take effect October 1,
  422  2011.
  423         Section 27. Except as otherwise expressly provided in this
  424  act, this act shall take effect October 1, 2011.