Florida Senate - 2018                                     SB 880
       
       
        
       By Senator Campbell
       
       
       
       
       
       38-01134-18                                            2018880__
    1                        A bill to be entitled                      
    2         An act relating to criminal justice; repealing s.
    3         843.085, F.S.; deleting a prohibition against wearing
    4         or displaying certain badges or indicia of authority
    5         of certain federal, state, county, or municipal
    6         agencies without authorization; deleting a prohibition
    7         against owning or operating a motor vehicle marked or
    8         identified with certain indicia of a criminal justice
    9         agency; deleting a prohibition against selling,
   10         transferring, or giving away an authorized badge of a
   11         criminal justice agency; deleting an exception;
   12         deleting a penalty; repealing s. 918.19, F.S.;
   13         deleting a requirement that the prosecuting attorney
   14         open the closing arguments after the closing of
   15         evidence in a criminal prosecution; deleting a
   16         provision authorizing the accused or the accused’s
   17         attorney to reply; deleting a provision authorizing
   18         the prosecuting attorney to reply in rebuttal;
   19         deleting a provision requiring such criminal
   20         procedures method to control under certain
   21         circumstances; repealing s. 922.095, F.S.; deleting a
   22         requirement that a person convicted and sentenced to
   23         death pursue all possible collateral remedies in state
   24         court in accordance with specified rules; repealing s.
   25         922.108, F.S.; deleting prohibitions against
   26         specifying a particular method of execution in a
   27         sentence of death and against reversing any sentence
   28         over the wording or form of the sentencing order;
   29         repealing s. 924.051, F.S.; deleting definitions of
   30         terms; deleting requirements that the terms and
   31         conditions of direct appeals and collateral review in
   32         criminal cases be strictly enforced; deleting
   33         provisions relating to legislative intent; amending s.
   34         925.12, F.S.; deleting provisions specifying that the
   35         Legislature intends that the Supreme Court adopt
   36         certain rules of procedure; deleting a provision
   37         relating to legislative intent; amending s. 948.01,
   38         F.S.; deleting a requirement that the Department of
   39         Corrections, in consultation with the Office of the
   40         State Courts Administrator, revise and make available
   41         uniform order of supervision forms annually or as
   42         necessary for the courts to use for persons placed on
   43         community supervision; amending s. 948.06, F.S.;
   44         deleting a provision authorizing a court to impose a
   45         sanction with a term of a certain duration upon the
   46         revocation or modification of probation or community
   47         control; amending s. 948.09, F.S.; deleting provisions
   48         authorizing the department, at its discretion, to
   49         require offenders under any form of supervision to
   50         submit to and pay for urinalysis testing; deleting a
   51         provision that makes a failure to make such payment
   52         grounds for revocation of supervision or removal from
   53         a pretrial intervention program; deleting an exemption
   54         to the payment requirement; deleting a requirement
   55         that the department establish a payment plan for all
   56         costs ordered by a court for collection by the
   57         department and a priority order for victim restitution
   58         payments over all other court-ordered payments;
   59         deleting a provision authorizing the department not to
   60         disburse cumulative amounts of less than a specified
   61         value to certain payees; amending s. 985.534, F.S.;
   62         conforming a cross-reference to changes made by the
   63         act; reenacting ss. 948.012(2)(b), 948.10(3),
   64         948.20(3), and 958.14, F.S., relating to split
   65         sentences of probation or community control and
   66         imprisonment, community control programs and home
   67         confinement, drug offender probation, and violation of
   68         probation or community control programs, respectively,
   69         to incorporate the amendment made to s. 948.06, F.S.,
   70         in references thereto; reenacting ss. 944.4731(2)(b)
   71         and (7)(b), 947.1405(2), 948.01(6), and 948.06(5),
   72         F.S., relating to the Addiction-Recovery Supervision
   73         Program, a conditional release program, when a court
   74         may place a defendant on probation or into community
   75         control, and failure to pay restitution or costs of
   76         supervision, respectively, to incorporate the
   77         amendment made to s. 948.09, F.S., in references
   78         thereto; providing an effective date.
   79          
   80  Be It Enacted by the Legislature of the State of Florida:
   81  
   82         Section 1. Section 843.085, Florida Statutes, is repealed.
   83         Section 2. Section 918.19, Florida Statutes, is repealed.
   84         Section 3. Section 922.095, Florida Statutes, is repealed.
   85         Section 4. Section 922.108, Florida Statutes, is repealed.
   86         Section 5. Section 924.051, Florida Statutes, is repealed.
   87         Section 6. Subsections (3) and (4) of section 925.12,
   88  Florida Statutes, are amended to read:
   89         925.12 DNA testing; defendants entering pleas.—
   90         (3)It is the intent of the Legislature that the Supreme
   91  Court adopt rules of procedure consistent with this section for
   92  a court, prior to the acceptance of a plea, to make an inquiry
   93  into the following matters:
   94         (a)Whether counsel for the defense has reviewed the
   95  discovery disclosed by the state and whether such discovery
   96  included a listing or description of physical items of evidence.
   97         (b)Whether the nature of the evidence against the
   98  defendant disclosed through discovery has been reviewed with the
   99  defendant.
  100         (c)Whether the defendant or counsel for the defendant is
  101  aware of any physical evidence disclosed by the state for which
  102  DNA testing may exonerate the defendant.
  103         (d)Whether the state is aware of any physical evidence for
  104  which DNA testing may exonerate the defendant.
  105         (4)It is the intent of the Legislature that the
  106  postponement of the proceedings by the court on the defendant’s
  107  behalf under subsection (2) constitute an extension attributable
  108  to the defendant for purposes of the defendant’s right to a
  109  speedy trial.
  110         Section 7. Subsection (1) of section 948.01, Florida
  111  Statutes, is amended to read:
  112         948.01 When court may place defendant on probation or into
  113  community control.—
  114         (1) Any state court having original jurisdiction of
  115  criminal actions may at a time to be determined by the court,
  116  with or without an adjudication of the guilt of the defendant,
  117  hear and determine the question of the probation of a defendant
  118  in a criminal case, except for an offense punishable by death,
  119  who has been found guilty by the verdict of a jury, has entered
  120  a plea of guilty or a plea of nolo contendere, or has been found
  121  guilty by the court trying the case without a jury.
  122         (a) If the court places the defendant on probation or into
  123  community control for a felony, the department shall provide
  124  immediate supervision by an officer employed in compliance with
  125  the minimum qualifications for officers as provided in s.
  126  943.13. A private entity may not provide probationary or
  127  supervision services to felony or misdemeanor offenders
  128  sentenced or placed on probation or other supervision by the
  129  circuit court.
  130         (b)The department, in consultation with the Office of the
  131  State Courts Administrator, shall revise and make available to
  132  the courts uniform order of supervision forms by July 1 of each
  133  year or as necessary. The courts shall use the uniform order of
  134  supervision forms provided by the department for all persons
  135  placed on community supervision.
  136         Section 8. Paragraph (f) of subsection (2) of section
  137  948.06, Florida Statutes, is amended to read:
  138         948.06 Violation of probation or community control;
  139  revocation; modification; continuance; failure to pay
  140  restitution or cost of supervision.—
  141         (2)
  142         (f)Notwithstanding s. 775.082, when a period of probation
  143  or community control has been tolled, upon revocation or
  144  modification of the probation or community control, the court
  145  may impose a sanction with a term that when combined with the
  146  amount of supervision served and tolled, exceeds the term
  147  permissible pursuant to s. 775.082 for a term up to the amount
  148  of the tolled period of supervision.
  149         Section 9. Subsections (5) and (6) of section 948.09,
  150  Florida Statutes, are amended to read:
  151         948.09 Payment for cost of supervision and other monetary
  152  obligations.—
  153         (5)In addition to any other required contributions, the
  154  department, at its discretion, may require offenders under any
  155  form of supervision to submit to and pay for urinalysis testing
  156  to identify drug usage as part of the rehabilitation program.
  157  Any failure to make such payment, or participate, may be
  158  considered a ground for revocation by the court, the Florida
  159  Commission on Offender Review, or the Control Release Authority,
  160  or for removal from the pretrial intervention program by the
  161  state attorney. The department may exempt a person from such
  162  payment if it determines that any of the factors specified in
  163  subsection (3) exist.
  164         (6)The department shall establish a payment plan for all
  165  costs ordered by the courts for collection by the department and
  166  a priority order for payments, except that victim restitution
  167  payments authorized under s. 948.03(1)(f) take precedence over
  168  all other court-ordered payments. The department is not required
  169  to disburse cumulative amounts of less than $10 to individual
  170  payees established on this payment plan.
  171         Section 10. Subsection (1) of section 985.534, Florida
  172  Statutes, is amended to read:
  173         985.534 Appeal.—
  174         (1) An appeal from an order of the court affecting a party
  175  to a case involving a child under this chapter may be taken to
  176  the appropriate district court of appeal within the time and in
  177  the manner prescribed by s. 924.051 and the Florida Rules of
  178  Appellate Procedure by:
  179         (a) Any child, and any parent or legal guardian or
  180  custodian of any child.
  181         (b) The state, which may appeal from:
  182         1. An order dismissing a petition or any section thereof;
  183         2. An order granting a new adjudicatory hearing;
  184         3. An order arresting judgment;
  185         4. A ruling on a question of law when the child is
  186  adjudicated delinquent and appeals from the judgment;
  187         5. The disposition, on the ground that it is illegal;
  188         6. A judgment discharging a child on habeas corpus;
  189         7. An order adjudicating a child insane under the Florida
  190  Rules of Juvenile Procedure; and
  191         8. All other preadjudicatory hearings, except that the
  192  state may not take more than one appeal under this subsection in
  193  any case.
  194  
  195  In the case of an appeal by the state, the notice of appeal
  196  shall be filed by the appropriate state attorney or his or her
  197  authorized assistant under s. 27.18. Such an appeal shall embody
  198  all assignments of error in each preadjudicatory hearing order
  199  that the state seeks to have reviewed. The state shall pay all
  200  costs of the appeal except for the child’s attorney’s fee.
  201         Section 11. For the purpose of incorporating the amendment
  202  made by this act to section 948.06, Florida Statutes, in a
  203  reference thereto, paragraph (b) of subsection (2) of section
  204  948.012, Florida Statutes, is reenacted to read:
  205         948.012 Split sentence of probation or community control
  206  and imprisonment.—
  207         (2) The court may also impose a split sentence whereby the
  208  defendant is sentenced to a term of probation which may be
  209  followed by a period of incarceration or, with respect to a
  210  felony, into community control, as follows:
  211         (b) If the offender does not meet the terms and conditions
  212  of probation or community control, the court may revoke, modify,
  213  or continue the probation or community control as provided in s.
  214  948.06. If the probation or community control is revoked, the
  215  court may impose any sentence that it could have imposed at the
  216  time the offender was placed on probation or community control.
  217  The court may not provide credit for time served for any portion
  218  of a probation or community control term toward a subsequent
  219  term of probation or community control. However, the court may
  220  not impose a subsequent term of probation or community control
  221  which, when combined with any amount of time served on preceding
  222  terms of probation or community control for offenses pending
  223  before the court for sentencing, would exceed the maximum
  224  penalty allowable as provided in s. 775.082. Such term of
  225  incarceration shall be served under applicable law or county
  226  ordinance governing service of sentences in state or county
  227  jurisdiction. This paragraph does not prohibit any other
  228  sanction provided by law.
  229         Section 12. For the purpose of incorporating the amendment
  230  made by this act to section 948.06, Florida Statutes, in a
  231  reference thereto, subsection (3) of section 948.10, Florida
  232  Statutes, is reenacted to read:
  233         948.10 Community control programs; home confinement.—
  234         (3) Procedures governing violations of community control
  235  are the same as those described in s. 948.06 with respect to
  236  probation.
  237         Section 13. For the purpose of incorporating the amendment
  238  made by this act to section 948.06, Florida Statutes, in a
  239  reference thereto, subsection (3) of section 948.20, Florida
  240  Statutes, is reenacted to read:
  241         948.20 Drug offender probation.—
  242         (3) Offenders placed on drug offender probation are subject
  243  to revocation of probation as provided in s. 948.06.
  244         Section 14. For the purpose of incorporating the amendment
  245  made by this act to section 948.06, Florida Statutes, in a
  246  reference thereto, section 958.14, Florida Statutes, is
  247  reenacted to read:
  248         958.14 Violation of probation or community control
  249  program.—A violation or alleged violation of probation or the
  250  terms of a community control program shall subject the youthful
  251  offender to the provisions of s. 948.06. However, no youthful
  252  offender shall be committed to the custody of the department for
  253  a substantive violation for a period longer than the maximum
  254  sentence for the offense for which he or she was found guilty,
  255  with credit for time served while incarcerated, or for a
  256  technical or nonsubstantive violation for a period longer than 6
  257  years or for a period longer than the maximum sentence for the
  258  offense for which he or she was found guilty, whichever is less,
  259  with credit for time served while incarcerated.
  260         Section 15. For the purpose of incorporating the amendment
  261  made by this act to section 948.09, Florida Statutes, in a
  262  reference thereto, paragraph (b) of subsection (2) and paragraph
  263  (b) of subsection (7) of section 944.4731, Florida Statutes, are
  264  reenacted to read:
  265         944.4731 Addiction-Recovery Supervision Program.—
  266         (2)
  267         (b) An offender released under addiction-recovery
  268  supervision shall be subject to specified terms and conditions,
  269  including payment of the costs of supervision under s. 948.09
  270  and any other court-ordered payments, such as child support and
  271  restitution. If an offender has received a term of probation or
  272  community control to be served after release from incarceration,
  273  the period of probation or community control may not be
  274  substituted for addiction-recovery supervision and shall follow
  275  the term of addiction-recovery supervision. A panel of not fewer
  276  than two commissioners shall establish the terms and conditions
  277  of supervision, and the terms and conditions must be included in
  278  the supervision order. In setting the terms and conditions of
  279  supervision, the commission shall weigh heavily the program
  280  requirements, including, but not limited to, work at paid
  281  employment while participating in treatment and traveling
  282  restrictions. The commission shall also determine whether an
  283  offender violates the terms and conditions of supervision and
  284  whether a violation warrants revocation of addiction-recovery
  285  supervision pursuant to s. 947.141. The commission shall review
  286  the offender’s record for the purpose of establishing the terms
  287  and conditions of supervision. The commission may impose any
  288  special conditions it considers warranted from its review of the
  289  record. The length of supervision may not exceed the maximum
  290  penalty imposed by the court.
  291         (7) While participating in a substance abuse transition
  292  housing program, an offender shall:
  293         (b) Pay fees to defray program costs, costs of supervision
  294  required under s. 948.09, and any restitution or obligations for
  295  child support.
  296         Section 16. For the purpose of incorporating the amendment
  297  made by this act to section 948.09, Florida Statutes, in a
  298  reference thereto, subsection (2) of section 947.1405, Florida
  299  Statutes, is reenacted to read:
  300         947.1405 Conditional release program.—
  301         (2) Any inmate who:
  302         (a) Is convicted of a crime committed on or after October
  303  1, 1988, and before January 1, 1994, and any inmate who is
  304  convicted of a crime committed on or after January 1, 1994,
  305  which crime is or was contained in category 1, category 2,
  306  category 3, or category 4 of Rule 3.701 and Rule 3.988, Florida
  307  Rules of Criminal Procedure (1993), and who has served at least
  308  one prior felony commitment at a state or federal correctional
  309  institution;
  310         (b) Is sentenced as a habitual or violent habitual offender
  311  or a violent career criminal pursuant to s. 775.084; or
  312         (c) Is found to be a sexual predator under s. 775.21 or
  313  former s. 775.23,
  314  
  315  shall, upon reaching the tentative release date or provisional
  316  release date, whichever is earlier, as established by the
  317  Department of Corrections, be released under supervision subject
  318  to specified terms and conditions, including payment of the cost
  319  of supervision pursuant to s. 948.09. Such supervision shall be
  320  applicable to all sentences within the overall term of sentences
  321  if an inmate’s overall term of sentences includes one or more
  322  sentences that are eligible for conditional release supervision
  323  as provided herein. Effective July 1, 1994, and applicable for
  324  offenses committed on or after that date, the commission may
  325  require, as a condition of conditional release, that the
  326  releasee make payment of the debt due and owing to a county or
  327  municipal detention facility under s. 951.032 for medical care,
  328  treatment, hospitalization, or transportation received by the
  329  releasee while in that detention facility. The commission, in
  330  determining whether to order such repayment and the amount of
  331  such repayment, shall consider the amount of the debt, whether
  332  there was any fault of the institution for the medical expenses
  333  incurred, the financial resources of the releasee, the present
  334  and potential future financial needs and earning ability of the
  335  releasee, and dependents, and other appropriate factors. If any
  336  inmate placed on conditional release supervision is also subject
  337  to probation or community control, resulting from a probationary
  338  or community control split sentence within the overall term of
  339  sentences, the Department of Corrections shall supervise such
  340  person according to the conditions imposed by the court and the
  341  commission shall defer to such supervision. If the court revokes
  342  probation or community control and resentences the offender to a
  343  term of incarceration, such revocation also constitutes a
  344  sufficient basis for the revocation of the conditional release
  345  supervision on any nonprobationary or noncommunity control
  346  sentence without further hearing by the commission. If any such
  347  supervision on any nonprobationary or noncommunity control
  348  sentence is revoked, such revocation may result in a forfeiture
  349  of all gain-time, and the commission may revoke the resulting
  350  deferred conditional release supervision or take other action it
  351  considers appropriate. If the term of conditional release
  352  supervision exceeds that of the probation or community control,
  353  then, upon expiration of the probation or community control,
  354  authority for the supervision shall revert to the commission and
  355  the supervision shall be subject to the conditions imposed by
  356  the commission. A panel of no fewer than two commissioners shall
  357  establish the terms and conditions of any such release. If the
  358  offense was a controlled substance violation, the conditions
  359  shall include a requirement that the offender submit to random
  360  substance abuse testing intermittently throughout the term of
  361  conditional release supervision, upon the direction of the
  362  correctional probation officer as defined in s. 943.10(3). The
  363  commission shall also determine whether the terms and conditions
  364  of such release have been violated and whether such violation
  365  warrants revocation of the conditional release.
  366         Section 17. For the purpose of incorporating the amendment
  367  made by this act to section 948.09, Florida Statutes, in a
  368  reference thereto, subsection (6) of section 948.01, Florida
  369  Statutes, is reenacted to read:
  370         948.01 When court may place defendant on probation or into
  371  community control.—
  372         (6) When the court, under any of the foregoing subsections,
  373  places a defendant on probation or into community control, it
  374  may specify that the defendant serve all or part of the
  375  probationary or community control period in a community
  376  residential or nonresidential facility under the jurisdiction of
  377  the Department of Corrections or the Department of Children and
  378  Families or any public or private entity providing such
  379  services, and it shall require the payment prescribed in s.
  380  948.09.
  381         Section 18. For the purpose of incorporating the amendment
  382  made by this act to section 948.09, Florida Statutes, in a
  383  reference thereto, subsection (5) of section 948.06, Florida
  384  Statutes, is reenacted to read:
  385         948.06 Violation of probation or community control;
  386  revocation; modification; continuance; failure to pay
  387  restitution or cost of supervision.—
  388         (5) In any hearing in which the failure of a probationer or
  389  offender in community control to pay restitution or the cost of
  390  supervision as provided in s. 948.09, as directed, is
  391  established by the state, if the probationer or offender asserts
  392  his or her inability to pay restitution or the cost of
  393  supervision, it is incumbent upon the probationer or offender to
  394  prove by clear and convincing evidence that he or she does not
  395  have the present resources available to pay restitution or the
  396  cost of supervision despite sufficient bona fide efforts legally
  397  to acquire the resources to do so. If the probationer or
  398  offender cannot pay restitution or the cost of supervision
  399  despite sufficient bona fide efforts, the court shall consider
  400  alternate measures of punishment other than imprisonment. Only
  401  if alternate measures are not adequate to meet the state’s
  402  interests in punishment and deterrence may the court imprison a
  403  probationer or offender in community control who has
  404  demonstrated sufficient bona fide efforts to pay restitution or
  405  the cost of supervision.
  406         Section 19. This act shall take effect upon becoming a law.