Florida Senate - 2018 SB 392 By Senator Bracy 11-00279-18 2018392__ 1 A bill to be entitled 2 An act relating to juvenile justice; amending s. 3 985.556, F.S.; increasing the age of a child at which 4 a state attorney may, or is required to, request a 5 court to transfer the child to adult court for 6 criminal prosecution; amending s. 985.557, F.S.; 7 increasing the age of a child at which a state 8 attorney may, or is required to, file an information 9 against the child for prosecution as an adult; making 10 a technical change; reenacting s. 985.15(1), F.S., 11 relating to filing decisions, to incorporate the 12 amendment made to s. 985.556, F.S., in a reference 13 thereto; reenacting ss. 985.265(5) and 985.565(4), 14 F.S., relating to children in adult jails and 15 sentencing alternatives for juveniles prosecuted as 16 adults, respectively, to incorporate the amendments 17 made to ss. 985.556 and 985.557, F.S., in references 18 thereto; reenacting s. 985.26(2)(c), F.S., relating to 19 the length of detention, to incorporate the amendment 20 made to s. 985.557, F.S., in a reference thereto; 21 providing an effective date. 22 23 Be It Enacted by the Legislature of the State of Florida: 24 25 Section 1. Subsections (2) and (3) of section 985.556, 26 Florida Statutes, are amended to read: 27 985.556 Waiver of juvenile court jurisdiction; hearing.— 28 (2) INVOLUNTARY DISCRETIONARY WAIVER.—Except as provided in 29 subsection (3), the state attorney may file a motion requesting 30 the court to transfer the child for criminal prosecution if the 31 child was 15
14years of age or older at the time the alleged 32 delinquent act or violation of law was committed. 33 (3) INVOLUNTARY MANDATORY WAIVER.— 34 (a) If the child was 15 14years of age or older, and if 35 the child has been previously adjudicated delinquent for an act 36 classified as a felony, which adjudication was for the 37 commission of, attempt to commit, or conspiracy to commit 38 murder, sexual battery, armed or strong-armed robbery, 39 carjacking, home-invasion robbery, aggravated battery, 40 aggravated assault, or burglary with an assault or battery, and 41 the child is currently charged with a second or subsequent 42 violent crime against a person; or 43 (b) If the child was 15 14years of age or older at the 44 time of commission of a fourth or subsequent alleged felony 45 offense and the child was previously adjudicated delinquent or 46 had adjudication withheld for or was found to have committed, or 47 to have attempted or conspired to commit, three offenses that 48 are felony offenses if committed by an adult, and one or more of 49 such felony offenses involved the use or possession of a firearm 50 or violence against a person; 51 52 the state attorney shall request the court to transfer and 53 certify the child for prosecution as an adult or shall provide 54 written reasons to the court for not making such request, or 55 proceed under s. 985.557(1). Upon the state attorney’s request, 56 the court shall either enter an order transferring the case and 57 certifying the case for trial as if the child were an adult or 58 provide written reasons for not issuing such an order. 59 Section 2. Subsection (1) and paragraphs (a), (b), and (d) 60 of subsection (2) of section 985.557, Florida Statutes, are 61 amended to read: 62 985.557 Direct filing of an information; discretionary and 63 mandatory criteria.— 64 (1) DISCRETIONARY DIRECT FILE.— 65 (a) With respect to any child who was 14 or15 or 16 years 66 of age at the time the alleged offense was committed, the state 67 attorney may file an information when in the state attorney’s 68 judgment and discretion the public interest requires that adult 69 sanctions be considered or imposed and when the offense charged 70 is for the commission of, attempt to commit, or conspiracy to 71 commit: 72 1. Arson; 73 2. Sexual battery; 74 3. Robbery; 75 4. Kidnapping; 76 5. Aggravated child abuse; 77 6. Aggravated assault; 78 7. Aggravated stalking; 79 8. Murder; 80 9. Manslaughter; 81 10. Unlawful throwing, placing, or discharging of a 82 destructive device or bomb; 83 11. Armed burglary in violation of s. 810.02(2)(b) or 84 specified burglary of a dwelling or structure in violation of s. 85 810.02(2)(c), or burglary with an assault or battery in 86 violation of s. 810.02(2)(a); 87 12. Aggravated battery; 88 13. Any lewd or lascivious offense committed upon or in the 89 presence of a person less than 16 years of age; 90 14. Carrying, displaying, using, threatening, or attempting 91 to use a weapon or firearm during the commission of a felony; 92 15. Grand theft in violation of s. 812.014(2)(a); 93 16. Possessing or discharging any weapon or firearm on 94 school property in violation of s. 790.115; 95 17. Home invasion robbery; 96 18. Carjacking; or 97 19. Grand theft of a motor vehicle in violation of s. 98 812.014(2)(c)6. or grand theft of a motor vehicle valued at 99 $20,000 or more in violation of s. 812.014(2)(b) if the child 100 has a previous adjudication for grand theft of a motor vehicle 101 in violation of s. 812.014(2)(c)6. or s. 812.014(2)(b). 102 (b) With respect to any child who was 16 or17 years of age 103 at the time the alleged offense was committed, the state 104 attorney may file an information when in the state attorney’s 105 judgment and discretion the public interest requires that adult 106 sanctions be considered or imposed. However, the state attorney 107 may not file an information on a child charged with a 108 misdemeanor, unless the child has had at least two previous 109 adjudications or adjudications withheld for delinquent acts, one 110 of which involved an offense classified as a felony under state 111 law. 112 (2) MANDATORY DIRECT FILE.— 113 (a) With respect to any child who was 16 or17 years of age 114 at the time the alleged offense was committed, the state 115 attorney shall file an information if the child has been 116 previously adjudicated delinquent for an act classified as a 117 felony, which adjudication was for the commission of, attempt to 118 commit, or conspiracy to commit murder, sexual battery, armed or 119 strong-armed robbery, carjacking, home-invasion robbery, 120 aggravated battery, or aggravated assault, and the child is 121 currently charged with a second or subsequent violent crime 122 against a person. 123 (b) With respect to any child 16 or17 years of age at the 124 time an offense classified as a forcible felony, as defined in 125 s. 776.08, was committed, the state attorney shall file an 126 information if the child has previously been adjudicated 127 delinquent or had adjudication withheld for three acts 128 classified as felonies each of which occurred at least 45 days 129 apart from each other. This paragraph does not apply when the 130 state attorney has good cause to believe that exceptional 131 circumstances exist which preclude the just prosecution of the 132 juvenile in adult court. 133 (d)1. With respect to any child who was 16 or17 years of 134 age at the time the alleged offense was committed, the state 135 attorney shall file an information if the child has been charged 136 with committing or attempting to commit an offense listed in s. 137 775.087(2)(a)1.a.-p., and, during the commission of or attempt 138 to commit the offense, the child: 139 a. Actually possessed a firearm or destructive device, as 140 those terms are defined in s. 790.001. 141 b. Discharged a firearm or destructive device, as described 142 in s. 775.087(2)(a)2. 143 c. Discharged a firearm or destructive device, as described 144 in s. 775.087(2)(a)3., and, as a result of the discharge, death 145 or great bodily harm was inflicted upon any person. 146 2. Upon transfer, any child who is: 147 a. Charged under sub-subparagraph 1.a. and who has been 148 previously adjudicated or had adjudication withheld for a 149 forcible felony offense or any offense involving a firearm, or 150 who has been previously placed in a residential commitment 151 program, shall be subject to sentencing under s. 775.087(2)(a), 152 notwithstanding s. 985.565. 153 b. Charged under sub-subparagraph 1.b. or sub-subparagraph 154 1.c., shall be subject to sentencing under s. 775.087(2)(a), 155 notwithstanding s. 985.565. 156 3. Upon transfer, any child who is charged under this 157 paragraph, but who does not meet the requirements specified in 158 subparagraph 2., shall be sentenced under s. 985.565; however, 159 if the court imposes a juvenile sanction, the court must commit 160 the child to a high-risk or maximum-risk juvenile facility. 161 4. This paragraph shall not apply if the state attorney has 162 good cause to believe that exceptional circumstances exist that 163 preclude the just prosecution of the child in adult court. 164 5. The Department of Corrections shall make every 165 reasonable effort to ensure that any child 16 or 17 years of age166 who is convicted and sentenced under this paragraph be 167 completely separated such that there is no physical contact with 168 adult offenders in the facility, to the extent that it is 169 consistent with chapter 958. 170 Section 3. For the purpose of incorporating the amendment 171 made by this act to section 985.556, Florida Statutes, in a 172 reference thereto, subsection (1) of section 985.15, Florida 173 Statutes, is reenacted to read: 174 985.15 Filing decisions.— 175 (1) The state attorney may in all cases take action 176 independent of the action or lack of action of the juvenile 177 probation officer and shall determine the action that is in the 178 best interest of the public and the child. If the child meets 179 the criteria requiring prosecution as an adult under s. 985.556, 180 the state attorney shall request the court to transfer and 181 certify the child for prosecution as an adult or shall provide 182 written reasons to the court for not making such a request. In 183 all other cases, the state attorney may: 184 (a) File a petition for dependency; 185 (b) File a petition under chapter 984; 186 (c) File a petition for delinquency; 187 (d) File a petition for delinquency with a motion to 188 transfer and certify the child for prosecution as an adult; 189 (e) File an information under s. 985.557; 190 (f) Refer the case to a grand jury; 191 (g) Refer the child to a diversionary, pretrial 192 intervention, arbitration, or mediation program, or to some 193 other treatment or care program if such program commitment is 194 voluntarily accepted by the child or the child’s parents or 195 legal guardian; or 196 (h) Decline to file. 197 Section 4. For the purpose of incorporating the amendments 198 made by this act to sections 985.556 and 985.557, Florida 199 Statutes, in references thereto, subsection (5) of section 200 985.265, Florida Statutes, is reenacted to read: 201 985.265 Detention transfer and release; education; adult 202 jails.— 203 (5) The court shall order the delivery of a child to a jail 204 or other facility intended or used for the detention of adults: 205 (a) When the child has been transferred or indicted for 206 criminal prosecution as an adult under part X, except that the 207 court may not order or allow a child alleged to have committed a 208 misdemeanor who is being transferred for criminal prosecution 209 pursuant to either s. 985.556 or s. 985.557 to be detained or 210 held in a jail or other facility intended or used for the 211 detention of adults; however, such child may be held temporarily 212 in a detention facility; or 213 (b) When a child taken into custody in this state is wanted 214 by another jurisdiction for prosecution as an adult. 215 216 The child shall be housed separately from adult inmates to 217 prohibit a child from having regular contact with incarcerated 218 adults, including trusties. “Regular contact” means sight and 219 sound contact. Separation of children from adults shall permit 220 no more than haphazard or accidental contact. The receiving jail 221 or other facility shall contain a separate section for children 222 and shall have an adequate staff to supervise and monitor the 223 child’s activities at all times. Supervision and monitoring of 224 children includes physical observation and documented checks by 225 jail or receiving facility supervisory personnel at intervals 226 not to exceed 10 minutes. This subsection does not prohibit 227 placing two or more children in the same cell. Under no 228 circumstances shall a child be placed in the same cell with an 229 adult. 230 Section 5. For the purpose of incorporating the amendments 231 made by this act to sections 985.556 and 985.557, Florida 232 Statutes, in references thereto, subsection (4) of section 233 985.565, Florida Statutes, is reenacted to read: 234 985.565 Sentencing powers; procedures; alternatives for 235 juveniles prosecuted as adults.— 236 (4) SENTENCING ALTERNATIVES.— 237 (a) Adult sanctions.— 238 1. Cases prosecuted on indictment.—If the child is found to 239 have committed the offense punishable by death or life 240 imprisonment, the child shall be sentenced as an adult. If the 241 juvenile is not found to have committed the indictable offense 242 but is found to have committed a lesser included offense or any 243 other offense for which he or she was indicted as a part of the 244 criminal episode, the court may sentence as follows: 245 a. As an adult; 246 b. Under chapter 958; or 247 c. As a juvenile under this section. 248 2. Other cases.—If a child who has been transferred for 249 criminal prosecution pursuant to information or waiver of 250 juvenile court jurisdiction is found to have committed a 251 violation of state law or a lesser included offense for which he 252 or she was charged as a part of the criminal episode, the court 253 may sentence as follows: 254 a. As an adult; 255 b. Under chapter 958; or 256 c. As a juvenile under this section. 257 3. Notwithstanding any other provision to the contrary, if 258 the state attorney is required to file a motion to transfer and 259 certify the juvenile for prosecution as an adult under s. 260 985.556(3) and that motion is granted, or if the state attorney 261 is required to file an information under s. 985.557(2)(a) or 262 (b), the court must impose adult sanctions. 263 4. Any sentence imposing adult sanctions is presumed 264 appropriate, and the court is not required to set forth specific 265 findings or enumerate the criteria in this subsection as any 266 basis for its decision to impose adult sanctions. 267 5. When a child has been transferred for criminal 268 prosecution as an adult and has been found to have committed a 269 violation of state law, the disposition of the case may include 270 the enforcement of any restitution ordered in any juvenile 271 proceeding. 272 (b) Juvenile sanctions.—For juveniles transferred to adult 273 court but who do not qualify for such transfer under s. 274 985.556(3) or s. 985.557(2)(a) or (b), the court may impose 275 juvenile sanctions under this paragraph. If juvenile sentences 276 are imposed, the court shall, under this paragraph, adjudge the 277 child to have committed a delinquent act. Adjudication of 278 delinquency shall not be deemed a conviction, nor shall it 279 operate to impose any of the civil disabilities ordinarily 280 resulting from a conviction. The court shall impose an adult 281 sanction or a juvenile sanction and may not sentence the child 282 to a combination of adult and juvenile punishments. An adult 283 sanction or a juvenile sanction may include enforcement of an 284 order of restitution or probation previously ordered in any 285 juvenile proceeding. However, if the court imposes a juvenile 286 sanction and the department determines that the sanction is 287 unsuitable for the child, the department shall return custody of 288 the child to the sentencing court for further proceedings, 289 including the imposition of adult sanctions. Upon adjudicating a 290 child delinquent under subsection (1), the court may: 291 1. Place the child in a probation program under the 292 supervision of the department for an indeterminate period of 293 time until the child reaches the age of 19 years or sooner if 294 discharged by order of the court. 295 2. Commit the child to the department for treatment in an 296 appropriate program for children for an indeterminate period of 297 time until the child is 21 or sooner if discharged by the 298 department. The department shall notify the court of its intent 299 to discharge no later than 14 days prior to discharge. Failure 300 of the court to timely respond to the department’s notice shall 301 be considered approval for discharge. 302 3. Order disposition under ss. 985.435, 985.437, 985.439, 303 985.441, 985.45, and 985.455 as an alternative to youthful 304 offender or adult sentencing if the court determines not to 305 impose youthful offender or adult sanctions. 306 (c) Adult sanctions upon failure of juvenile sanctions.—If 307 a child proves not to be suitable to a commitment program, 308 juvenile probation program, or treatment program under paragraph 309 (b), the department shall provide the sentencing court with a 310 written report outlining the basis for its objections to the 311 juvenile sanction and shall simultaneously provide a copy of the 312 report to the state attorney and the defense counsel. The 313 department shall schedule a hearing within 30 days. Upon 314 hearing, the court may revoke the previous adjudication, impose 315 an adjudication of guilt, and impose any sentence which it may 316 lawfully impose, giving credit for all time spent by the child 317 in the department. The court may also classify the child as a 318 youthful offender under s. 958.04, if appropriate. For purposes 319 of this paragraph, a child may be found not suitable to a 320 commitment program, community control program, or treatment 321 program under paragraph (b) if the child commits a new violation 322 of law while under juvenile sanctions, if the child commits any 323 other violation of the conditions of juvenile sanctions, or if 324 the child’s actions are otherwise determined by the court to 325 demonstrate a failure of juvenile sanctions. 326 (d) Further proceedings heard in adult court.—When a child 327 is sentenced to juvenile sanctions, further proceedings 328 involving those sanctions shall continue to be heard in the 329 adult court. 330 (e) School attendance.—If the child is attending or is 331 eligible to attend public school and the court finds that the 332 victim or a sibling of the victim in the case is attending or 333 may attend the same school as the child, the court placement 334 order shall include a finding pursuant to the proceeding 335 described in s. 985.455(2), regardless of whether adjudication 336 is withheld. 337 338 It is the intent of the Legislature that the criteria and 339 guidelines in this subsection are mandatory and that a 340 determination of disposition under this subsection is subject to 341 the right of the child to appellate review under s. 985.534. 342 Section 6. For the purpose of incorporating the amendment 343 made by this act to section 985.557, Florida Statutes, in a 344 reference thereto, paragraph (c) of subsection (2) of section 345 985.26, Florida Statutes, is reenacted to read: 346 985.26 Length of detention.— 347 (2) 348 (c) A prolific juvenile offender under s. 985.255(1)(j) 349 shall be placed on nonsecure detention care with electronic 350 monitoring or in secure detention care under a special detention 351 order until disposition. If secure detention care is ordered by 352 the court, it must be authorized under this part and may not 353 exceed: 354 1. Twenty-one days unless an adjudicatory hearing for the 355 case has been commenced in good faith by the court or the period 356 is extended by the court pursuant to paragraph (b); or 357 2. Fifteen days after the entry of an order of 358 adjudication. 359 360 As used in this paragraph, the term “disposition” means a 361 declination to file under s. 985.15(1)(h), the entry of nolle 362 prosequi for the charges, the filing of an indictment under s. 363 985.56 or an information under s. 985.557, a dismissal of the 364 case, or an order of final disposition by the court. 365 Section 7. This act shall take effect July 1, 2018.