Florida Senate - 2018                                    SB 1218
       By Senator Brandes
       24-01048A-18                                          20181218__
    1                        A bill to be entitled                      
    2         An act relating to persons awaiting trial; amending s.
    3         903.046, F.S.; providing that a court is not required
    4         to consider the source of funds used to post bail or
    5         procure an appearance bond when determining whether to
    6         release a defendant on bail or other conditions when
    7         such funds are provided by a charitable bail fund;
    8         creating s. 907.042, F.S.; providing legislative
    9         findings; requiring the Department of Corrections to
   10         develop a risk assessment instrument; authorizing the
   11         department to use or modify an existing risk
   12         assessment instrument; requiring the department to
   13         develop or modify the risk assessment instrument by a
   14         certain date; specifying requirements for the use,
   15         implementation, and distribution of the risk
   16         assessment instrument; creating the Risk Assessment
   17         Pilot Program for a specified period; specifying the
   18         participating counties; requiring each participating
   19         county’s chief correctional officer to contract with
   20         the department to administer the risk assessment
   21         instrument for all persons arrested for felony
   22         violations; requiring each participating county to
   23         submit a report annually by a certain date to the
   24         department with specified information; requiring the
   25         department to compile the information of the findings
   26         from the participating counties and submit an annual
   27         report by a certain date to the Governor and the
   28         Legislature; authorizing the department, in
   29         consultation with specified persons, to adopt rules;
   30         reordering and amending s. 932.701, F.S.; defining the
   31         term “charitable bail fund”; amending s. 932.7055,
   32         F.S.; providing that certain proceeds from seized
   33         property which are deposited in a special law
   34         enforcement trust fund and interest from such proceeds
   35         may be used to establish and maintain a charitable
   36         bail fund, if such a bail fund is established by the
   37         county or municipality; amending ss. 210.095, 213.295,
   38         893.147, and 932.703, F.S.; conforming cross
   39         references; providing an effective date.
   41  Be It Enacted by the Legislature of the State of Florida:
   43         Section 1. Paragraph (f) of subsection (2) of section
   44  903.046, Florida Statutes, is amended to read:
   45         903.046 Purpose of and criteria for bail determination.—
   46         (2) When determining whether to release a defendant on bail
   47  or other conditions, and what that bail or those conditions may
   48  be, the court shall consider:
   49         (f) The source of funds used to post bail or procure an
   50  appearance bond, particularly whether the proffered funds, real
   51  property, property, or any proposed collateral or bond premium
   52  may be linked to or derived from the crime alleged to have been
   53  committed or from any other criminal or illicit activities. The
   54  burden of establishing the noninvolvement in or nonderivation
   55  from criminal or other illicit activity of such proffered funds,
   56  real property, property, or any proposed collateral or bond
   57  premium falls upon the defendant or other person proffering them
   58  to obtain the defendant’s release.
   60  This paragraph does not apply when the funds used to post the
   61  defendant’s bail or procure an appearance bond are provided by a
   62  charitable bail fund, as defined in s. 932.701.
   63         Section 2. Section 907.042, Florida Statutes, is created to
   64  read:
   65         907.042 Risk Assessment Pilot Program.—
   66         (1) LEGISLATIVE FINDINGS.—The Legislature finds that there
   67  is a need to use evidence-based methods to reduce recidivism.
   68  The Legislature finds that the use of actuarial instruments that
   69  classify offenders according to levels of risk to reoffend
   70  provides a more consistent and accurate assessment of an
   71  offender’s risk and needs. The Legislature also finds that
   72  research indicates that using accurate risk and needs assessment
   73  instruments to identify appropriate interventions and
   74  programming for offenders reduces recidivism.
   76         (a)The Department of Corrections shall develop a risk
   77  assessment instrument that conducts a criminogenic assessment
   78  for use in evaluating the proper placement and programming needs
   79  for a person who is arrested. The risk assessment instrument
   80  must consider, but need not be limited to, the following
   81  criteria:
   82         1. The nature and circumstances of the offense the person
   83  committed.
   84         2. The nature and extent of the person’s prior criminal
   85  history, if any.
   86         3. Any prior history of the person failing to appear in
   87  court.
   88         4.The person’s employment history, employability skills,
   89  and employment interests.
   90         5. The person’s educational, vocational, and technical
   91  training.
   92         6. The person’s background, including his or her family,
   93  home, and community environment.
   94         7. The person’s physical and mental health history,
   95  including any substance use.
   96         8. An evaluation of the person’s criminal thinking,
   97  criminal associates, and social awareness.
   98         (b)The Department of Corrections may use or modify an
   99  existing risk assessment instrument, if the instrument contains
  100  the criteria enumerated in paragraph (a).
  101         (c) The Department of Corrections shall complete the
  102  development or modification of a risk assessment instrument no
  103  later than March 1, 2019. The department may begin to implement
  104  the risk assessment instrument immediately upon completion.
  105  Implementation, including training all staff that will
  106  administer the risk assessment instrument, must be completed by
  107  June 30, 2019.
  108         (d) A representative of the county’s chief correctional
  109  officer shall administer the risk assessment instrument as early
  110  as reasonably possible after a person’s arrest, but no later
  111  than 10 business days after the arrest. If a person is released
  112  from jail pursuant to chapter 903 before the administration of
  113  the risk assessment instrument, the chief correctional officer,
  114  or his or her representative, must schedule and provide written
  115  notification of a date and time for the person to return to the
  116  jail for the administration of the risk assessment instrument.
  117  The date and time must be provided in writing upon the person’s
  118  pretrial release. The risk assessment instrument may be
  119  conducted by video teleconference.
  120         (e) A risk assessment instrument report must be made
  121  available to the person to whom the instrument is administered,
  122  his or her legal counsel, and the state attorney upon completion
  123  of the report. The Department of Corrections shall submit to the
  124  court the risk assessment instrument report, but the court may
  125  not review it without the consent of the person who is the
  126  subject of the report and his or her legal counsel.
  127         (3)CREATION.—Contingent upon appropriations and a contract
  128  with each participating county, it is the intent of the
  129  Legislature to establish a 3-year Risk Assessment Pilot Program
  130  to perform a risk assessment evaluation on all persons arrested
  131  for a felony in participating counties.
  132         (4) PARTICIPATING COUNTIES.—Participation in the pilot
  133  program is limited to Hillsborough, Pasco, and Pinellas
  134  Counties. Each participating county’s chief correctional officer
  135  shall enter into a 3-year contract with the Department of
  136  Corrections to administer risk assessments on all persons
  137  arrested for a felony violation in the county. Contracts shall
  138  be awarded on a first-come, first-served basis up to the maximum
  139  appropriation allowable for this purpose.
  141         (a) The participating counties shall use the risk
  142  assessment instrument as a tool for determining appropriate
  143  programming and sentencing with the goal of reducing recidivism.
  144         (b) Each county participating in the pilot program shall
  145  provide an annual report to the Department of Corrections by
  146  July 1 of each year of the pilot program which details the
  147  results of the administration of the risk assessment instrument,
  148  programming used for persons who received the assessment, and
  149  the success rate of such programming. The department shall
  150  compile the county reports and submit one annual report to the
  151  Governor, the President of the Senate, and the Speaker of the
  152  House of Representatives by October 1 of each year of the pilot
  153  program.
  154         (6)RULEMAKING.—The Department of Corrections, in
  155  consultation with a participating county’s chief correctional
  156  officer, chief judge, state attorney, and public defender, may
  157  adopt rules to administer this section.
  158         Section 3. Subsection (2) of section 932.701, Florida
  159  Statutes, is amended to read:
  160         932.701 Short title; definitions.—
  161         (2) As used in the Florida Contraband Forfeiture Act, the
  162  term:
  163         (f)(a) “Contraband article” means:
  164         1. Any controlled substance as defined in chapter 893 or
  165  any substance, device, paraphernalia, or currency or other means
  166  of exchange that was used, was attempted to be used, or was
  167  intended to be used in violation of any provision of chapter
  168  893, if the totality of the facts presented by the state is
  169  clearly sufficient to meet the state’s burden of establishing
  170  probable cause to believe that a nexus exists between the
  171  article seized and the narcotics activity, whether or not the
  172  use of the contraband article can be traced to a specific
  173  narcotics transaction.
  174         2. Any gambling paraphernalia, lottery tickets, money,
  175  currency, or other means of exchange which was used, was
  176  attempted, or intended to be used in violation of the gambling
  177  laws of the state.
  178         3. Any equipment, liquid or solid, which was being used, is
  179  being used, was attempted to be used, or intended to be used in
  180  violation of the beverage or tobacco laws of the state.
  181         4. Any motor fuel upon which the motor fuel tax has not
  182  been paid as required by law.
  183         5. Any personal property, including, but not limited to,
  184  any vessel, aircraft, item, object, tool, substance, device,
  185  weapon, machine, vehicle of any kind, money, securities, books,
  186  records, research, negotiable instruments, or currency, which
  187  was used or was attempted to be used as an instrumentality in
  188  the commission of, or in aiding or abetting in the commission
  189  of, any felony, whether or not comprising an element of the
  190  felony, or which is acquired by proceeds obtained as a result of
  191  a violation of the Florida Contraband Forfeiture Act.
  192         6. Any real property, including any right, title,
  193  leasehold, or other interest in the whole of any lot or tract of
  194  land, which was used, is being used, or was attempted to be used
  195  as an instrumentality in the commission of, or in aiding or
  196  abetting in the commission of, any felony, or which is acquired
  197  by proceeds obtained as a result of a violation of the Florida
  198  Contraband Forfeiture Act.
  199         7. Any personal property, including, but not limited to,
  200  equipment, money, securities, books, records, research,
  201  negotiable instruments, currency, or any vessel, aircraft, item,
  202  object, tool, substance, device, weapon, machine, or vehicle of
  203  any kind in the possession of or belonging to any person who
  204  takes aquaculture products in violation of s. 812.014(2)(c).
  205         8. Any motor vehicle offered for sale in violation of s.
  206  320.28.
  207         9. Any motor vehicle used during the course of committing
  208  an offense in violation of s. 322.34(9)(a).
  209         10. Any photograph, film, or other recorded image,
  210  including an image recorded on videotape, a compact disc,
  211  digital tape, or fixed disk, that is recorded in violation of s.
  212  810.145 and is possessed for the purpose of amusement,
  213  entertainment, sexual arousal, gratification, or profit, or for
  214  the purpose of degrading or abusing another person.
  215         11. Any real property, including any right, title,
  216  leasehold, or other interest in the whole of any lot or tract of
  217  land, which is acquired by proceeds obtained as a result of
  218  Medicaid fraud under s. 409.920 or s. 409.9201; any personal
  219  property, including, but not limited to, equipment, money,
  220  securities, books, records, research, negotiable instruments, or
  221  currency; or any vessel, aircraft, item, object, tool,
  222  substance, device, weapon, machine, or vehicle of any kind in
  223  the possession of or belonging to any person which is acquired
  224  by proceeds obtained as a result of Medicaid fraud under s.
  225  409.920 or s. 409.9201.
  226         12. Any personal property, including, but not limited to,
  227  any vehicle, item, object, tool, device, weapon, machine, money,
  228  security, book, or record, that is used or attempted to be used
  229  as an instrumentality in the commission of, or in aiding and
  230  abetting in the commission of, a person’s third or subsequent
  231  violation of s. 509.144, whether or not comprising an element of
  232  the offense.
  233         (b) “Bona fide lienholder” means the holder of a lien
  234  perfected pursuant to applicable law.
  235         (c) “Charitable bail fund” means a fund established and
  236  administered by a county or municipality which posts bail for
  237  indigent defendants.
  238         (i)(c) “Promptly proceed” means to file the complaint
  239  within 45 days after seizure.
  240         (e)(d) “Complaint” is a petition for forfeiture filed in
  241  the civil division of the circuit court by the seizing agency
  242  requesting the court to issue a judgment of forfeiture.
  243         (h)(e) “Person entitled to notice” means any owner, entity,
  244  bona fide lienholder, or person in possession of the property
  245  subject to forfeiture when seized, who is known to the seizing
  246  agency after a diligent search and inquiry.
  247         (a)(f) “Adversarial preliminary hearing” means a hearing in
  248  which the seizing agency is required to establish probable cause
  249  that the property subject to forfeiture was used in violation of
  250  the Florida Contraband Forfeiture Act.
  251         (g) “Forfeiture proceeding” means a hearing or trial in
  252  which the court or jury determines whether the subject property
  253  shall be forfeited.
  254         (d)(h) “Claimant” means any party who has proprietary
  255  interest in property subject to forfeiture and has standing to
  256  challenge such forfeiture, including owners, registered owners,
  257  bona fide lienholders, and titleholders.
  258         Section 4. Paragraph (a) of subsection (5) of section
  259  932.7055, Florida Statutes, is amended to read:
  260         932.7055 Disposition of liens and forfeited property.—
  261         (5)(a) If the seizing agency is a county or municipal
  262  agency, the remaining proceeds shall be deposited in a special
  263  law enforcement trust fund established by the board of county
  264  commissioners or the governing body of the municipality. Such
  265  proceeds and interest earned therefrom shall be used for school
  266  resource officer, crime prevention, safe neighborhood, drug
  267  abuse education and prevention programs; to establish and
  268  maintain a charitable bail fund, if the county or municipality
  269  establishes such a fund;, or for other law enforcement purposes,
  270  which include defraying the cost of protracted or complex
  271  investigations, providing additional equipment or expertise,
  272  purchasing automated external defibrillators for use in law
  273  enforcement vehicles, and providing matching funds to obtain
  274  federal grants. The proceeds and interest may not be used to
  275  meet normal operating expenses of the law enforcement agency.
  276         Section 5. Paragraph (f) of subsection (8) of section
  277  210.095, Florida Statutes, is amended to read:
  278         210.095 Mail order, Internet, and remote sales of tobacco
  279  products; age verification.—
  280         (8)
  281         (f) Any fixture, equipment, or other material or personal
  282  property on the premises of any person who, with the intent to
  283  defraud this state, mails or ships tobacco products into this
  284  state and fails to satisfy any of the requirements of this
  285  section is a contraband article as defined in s. 932.701 within
  286  the definition of s. 932.701(2)(a)3.
  287         Section 6. Subsection (4) of section 213.295, Florida
  288  Statutes, is amended to read:
  289         213.295 Automated sales suppression devices.—
  290         (4) An automated sales suppression device, a zapper,
  291  phantom-ware, or any device containing such device or software
  292  is a contraband article as defined in s. 932.701 provided in s.
  293  932.701(2)(a) and may be seized and forfeited pursuant to the
  294  Florida Contraband Forfeiture Act.
  295         Section 7. Subsection (4) of section 893.147, Florida
  296  Statutes, is amended to read:
  297         893.147 Use, possession, manufacture, delivery,
  298  transportation, advertisement, or retail sale of drug
  299  paraphernalia.—
  300         (4) TRANSPORTATION OF DRUG PARAPHERNALIA.—It is unlawful to
  301  use, possess with the intent to use, or manufacture with the
  302  intent to use drug paraphernalia, knowing or under circumstances
  303  in which one reasonably should know that it will be used to
  304  transport:
  305         (a) A controlled substance in violation of this chapter; or
  306         (b) Contraband as defined in s. 932.701(2)(f)1. s.
  307  932.701(2)(a)1.
  309  Any person who violates this subsection commits a felony of the
  310  third degree, punishable as provided in s. 775.082, s. 775.083,
  311  or s. 775.084.
  312         Section 8. Subsection (5) of section 932.703, Florida
  313  Statutes, is amended to read:
  314         932.703 Forfeiture of contraband article; exceptions.—
  315         (5) In any incident in which possession of any contraband
  316  article defined in s. 932.701 s. 932.701(2)(a) constitutes a
  317  felony, the vessel, motor vehicle, aircraft, other personal
  318  property, or real property in or on which such contraband
  319  article is located at the time of seizure shall be contraband
  320  subject to forfeiture. It shall be presumed in the manner
  321  provided in s. 90.302(2) that the vessel, motor vehicle,
  322  aircraft, other personal property, or real property in which or
  323  on which such contraband article is located at the time of
  324  seizure is being used or was attempted or intended to be used in
  325  a manner to facilitate the transportation, carriage, conveyance,
  326  concealment, receipt, possession, purchase, sale, barter,
  327  exchange, or giving away of a contraband article defined in s.
  328  932.701(2).
  329         Section 9. This act shall take effect upon becoming a law.