Florida Senate - 2019                        COMMITTEE AMENDMENT
       Bill No. SB 876
                              LEGISLATIVE ACTION                        
                    Senate             .             House              

       The Committee on Criminal Justice (Powell) recommended the
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsections (1) and (2) of section 985.557,
    6  Florida Statutes, are amended to read
    7         985.557 Direct filing of an information; discretionary and
    8  mandatory criteria.—
   10         (a) With respect to any child who was 14 or 15 years of age
   11  at the time the alleged offense was committed, the state
   12  attorney may file an information when in the state attorney’s
   13  judgment and discretion the public interest requires that adult
   14  sanctions be considered or imposed and when the offense charged
   15  is for the commission of, or attempt to commit any of the
   16  following , or conspiracy to commit:
   17         1. Arson.;
   18         2. Sexual battery.;
   19         3. Robbery.;
   20         4. Kidnapping.;
   21         5. Aggravated child abuse.;
   22         6. Aggravated assault.;
   23         7. Aggravated stalking.;
   24         8. Murder.;
   25         9. Manslaughter.;
   26         10. Unlawful throwing, placing, or discharging of a
   27  destructive device or bomb.;
   28         11. Armed burglary in violation of s. 810.02(2)(b) or
   29  specified burglary of a dwelling or structure in violation of s.
   30  810.02(2)(c), or burglary with an assault or battery in
   31  violation of s. 810.02(2)(a).;
   32         12. Aggravated battery.;
   33         13. Any lewd or lascivious offense committed upon or in the
   34  presence of a person less than 16 years of age;
   35         14. Carrying, displaying, using, threatening, or attempting
   36  to use a weapon or firearm during the commission of a felony.;
   37         15. Grand theft in violation of s. 812.014(2)(a).;
   38         16. Possessing or discharging any weapon or firearm on
   39  school property in violation of s. 790.115.;
   40         17. Home invasion robbery.;
   41         18. Carjacking.; or
   42         19. Grand theft of a motor vehicle in violation of s.
   43  812.014(2)(c)6. or grand theft of a motor vehicle valued at
   44  $20,000 or more in violation of s. 812.014(2)(b) if the child
   45  has a previous adjudication for grand theft of a motor vehicle
   46  in violation of s. 812.014(2)(c)6. or s. 812.014(2)(b).
   47         (b) With respect to any child who was 16 or 17 years of age
   48  at the time the alleged offense was committed, the state
   49  attorney may file an information when in the state attorney’s
   50  judgment and discretion the public interest requires that adult
   51  sanctions be considered or imposed. However, the state attorney
   52  may not file an information on a child charged with a
   53  misdemeanor, unless the child has had at least two previous
   54  adjudications or adjudications withheld for delinquent acts, one
   55  of which involved an offense classified as a felony under state
   56  law.
   57         (2) DUE PROCESS HEARING BEFORE A JUDGE.—Notwithstanding any
   58  other law, and in all cases, any child charged with a crime
   59  shall have an evidentiary hearing, after the state attorney's
   60  filing of an information in adult court under this section.
   61         (a) The judge shall conduct the hearing within 30 days,
   62  excluding Saturdays, Sundays, and legal holidays, unless good
   63  cause is shown for a delay by the child or the child's attorney.
   64  The purpose of the hearing is for the court to determine whether
   65  it is necessary for protection of the community that the child
   66  is prosecuted in adult court. The judge shall consider:
   67         1.Evaluations and assessments completed by the department.
   68         2.The sophistication and maturity of the child, including:
   69         a.The effect, if any, of immaturity, impetuosity, or
   70  failure to appreciate risks and consequences on the child’s
   71  participation in the alleged offense.
   72         b.The child’s age, maturity, intellectual capacity, and
   73  mental and emotional health at the time of the alleged offense.
   74         c.The effect, if any, of characteristics attributable to
   75  the child’s youth on the child’s judgment.
   76         3.The record and previous history of the child, including:
   77         a.Previous contacts with the department, the Department of
   78  Corrections, the Department of Children and Families, other law
   79  enforcement agencies, and the courts.
   80         b.Prior periods of probation.
   81         c.Prior adjudications that the child committed a
   82  delinquent act or violation of law, with greater weight being
   83  given if the child has previously been found by a court to have
   84  committed a delinquent act or violation of law involving
   85  violence to persons.
   86         d.Prior commitments to institutions of the department, the
   87  Department of Corrections, or agencies under contract with
   88  either department.
   89         e.History of trauma, abuse or neglect, foster care
   90  placements, failed adoption, fetal alcohol syndrome, exposure to
   91  controlled substances at birth, and below-average intellectual
   92  functioning.
   93         f.Identification of the child as a student requiring
   94  exceptional student education or having previously received
   95  psychological services.
   96         4.The nature of the alleged offense and the child’s
   97  participation, including:
   98         a.Whether the alleged offense is punishable by death or
   99  life imprisonment.
  100         b.Whether the alleged offense was against persons or
  101  property.
  102         c.Whether the alleged offense is alleged to have been
  103  committed in an aggressive, violent, or premeditated manner.
  104         d.The extent of the child’s participation in the alleged
  105  offense.
  106         e.The effect, if any, of familial pressure or peer
  107  pressure on the child’s actions.
  108         5.The prospects for adequate protection of the public and
  109  the likelihood of reasonable rehabilitation of the child, if the
  110  child is found to have committed the alleged offense:
  111         a.By the use of procedures, services, and facilities
  112  currently available to the juvenile court.
  113         b.By the use of procedures, services, and facilities
  114  currently available to the adult court, including whether the
  115  lowest permissible sentence under the Criminal Punishment Code
  116  is a nonstate prison sanction.
  117         6.Whether the child could obtain habilitative or
  118  rehabilitative services available in the juvenile justice
  119  system.
  120         7.Whether the child could receive a sentence in juvenile
  121  court that would provide adequate safety and protection for the
  122  community.
  123         8.Whether the child’s best interests would be served by
  124  prosecuting the child in juvenile court.
  125         (b)The judge may consider any reports that may assist the
  126  court, including prior pre-disposition reports, psycho-social
  127  assessments, individualized educational programs (IEPs),
  128  developmental assessments, school records, abuse or neglect
  129  reports, home studies, protective investigations, and
  130  psychological and psychiatric evaluations. The child, the
  131  child’s parents or legal guardians, defense counsel, and the
  132  state attorney may examine these reports and question the
  133  parties responsible for creating them at the hearing.
  134         (c)The adult court shall retain jurisdiction unless the
  135  court finds by a preponderance of the evidence that the factors
  136  listed in paragraph (a) support returning the child to juvenile
  137  court.
  138         (d)The adult court shall render an order including
  139  specific findings of fact and the reasons for its decision. The
  140  prosecution and defense may seek immediate review of the order
  141  through interlocutory appeal. The order shall be reviewable on
  142  appeal under the Florida Rules of Appellate Procedure.
  143         (2) MANDATORY DIRECT FILE.—
  144         (a) With respect to any child who was 16 or 17 years of age
  145  at the time the alleged offense was committed, the state
  146  attorney shall file an information if the child has been
  147  previously adjudicated delinquent for an act classified as a
  148  felony, which adjudication was for the commission of, attempt to
  149  commit, or conspiracy to commit murder, sexual battery, armed or
  150  strong-armed robbery, carjacking, home-invasion robbery,
  151  aggravated battery, or aggravated assault, and the child is
  152  currently charged with a second or subsequent violent crime
  153  against a person.
  154         (b) With respect to any child 16 or 17 years of age at the
  155  time an offense classified as a forcible felony, as defined in
  156  s. 776.08, was committed, the state attorney shall file an
  157  information if the child has previously been adjudicated
  158  delinquent or had adjudication withheld for three acts
  159  classified as felonies each of which occurred at least 45 days
  160  apart from each other. This paragraph does not apply when the
  161  state attorney has good cause to believe that exceptional
  162  circumstances exist which preclude the just prosecution of the
  163  juvenile in adult court.
  164         (c) The state attorney must file an information if a child,
  165  regardless of the child’s age at the time the alleged offense
  166  was committed, is alleged to have committed an act that would be
  167  a violation of law if the child were an adult, that involves
  168  stealing a motor vehicle, including, but not limited to, a
  169  violation of s. 812.133, relating to carjacking, or s.
  170  812.014(2)(c)6., relating to grand theft of a motor vehicle, and
  171  while the child was in possession of the stolen motor vehicle
  172  the child caused serious bodily injury to or the death of a
  173  person who was not involved in the underlying offense. For
  174  purposes of this section, the driver and all willing passengers
  175  in the stolen motor vehicle at the time such serious bodily
  176  injury or death is inflicted shall also be subject to mandatory
  177  transfer to adult court. “Stolen motor vehicle,” for the
  178  purposes of this section, means a motor vehicle that has been
  179  the subject of any criminal wrongful taking. For purposes of
  180  this section, “willing passengers” means all willing passengers
  181  who have participated in the underlying offense.
  182         (d)1. With respect to any child who was 16 or 17 years of
  183  age at the time the alleged offense was committed, the state
  184  attorney shall file an information if the child has been charged
  185  with committing or attempting to commit an offense listed in s.
  186  775.087(2)(a)1.a.-p., and, during the commission of or attempt
  187  to commit the offense, the child:
  188         a. Actually possessed a firearm or destructive device, as
  189  those terms are defined in s. 790.001.
  190         b. Discharged a firearm or destructive device, as described
  191  in s. 775.087(2)(a)2.
  192         c. Discharged a firearm or destructive device, as described
  193  in s. 775.087(2)(a)3., and, as a result of the discharge, death
  194  or great bodily harm was inflicted upon any person.
  195         2. Upon transfer, any child who is:
  196         a. Charged under sub-subparagraph 1.a. and who has been
  197  previously adjudicated or had adjudication withheld for a
  198  forcible felony offense or any offense involving a firearm, or
  199  who has been previously placed in a residential commitment
  200  program, shall be subject to sentencing under s. 775.087(2)(a),
  201  notwithstanding s. 985.565.
  202         b. Charged under sub-subparagraph 1.b. or sub-subparagraph
  203  1.c., shall be subject to sentencing under s. 775.087(2)(a),
  204  notwithstanding s. 985.565.
  205         3. Upon transfer, any child who is charged under this
  206  paragraph, but who does not meet the requirements specified in
  207  subparagraph 2., shall be sentenced under s. 985.565; however,
  208  if the court imposes a juvenile sanction, the court must commit
  209  the child to a high-risk or maximum-risk juvenile facility.
  210         4. This paragraph shall not apply if the state attorney has
  211  good cause to believe that exceptional circumstances exist that
  212  preclude the just prosecution of the child in adult court.
  213         5. The Department of Corrections shall make every
  214  reasonable effort to ensure that any child 16 or 17 years of age
  215  who is convicted and sentenced under this paragraph be
  216  completely separated such that there is no physical contact with
  217  adult offenders in the facility, to the extent that it is
  218  consistent with chapter 958.
  219         Section 2. Subsection (5) of section 985.265, Florida
  220  Statutes, is amended to read
  221         985.265 Detention transfer and release; education; adult
  222  jails.—
  223         (5) The court shall order the delivery of a child to a jail
  224  or other facility intended or used for the detention of adults:
  225         (a) When the child has been transferred or indicted for
  226  criminal prosecution as an adult under part X, except that:
  227         1. The court may not order or allow a child alleged to have
  228  committed a misdemeanor who is being transferred for criminal
  229  prosecution pursuant to either s. 985.556 or s. 985.557 to be
  230  detained or held in a jail or other facility intended or used
  231  for the detention of adults; however, such child may be held
  232  temporarily in a detention facility; or
  233         2. A child who has been transferred for criminal
  234  prosecution as an adult pursuant to s. 985.557 shall not be held
  235  in a jail or other facility intended or used for the detention
  236  of adults prior to a court finding as a result of a hearing
  237  provided for in s. 985.557(2) that the child should be
  238  prosecuted as an adult; or
  239         (b) When a child taken into custody in this state is wanted
  240  by another jurisdiction for prosecution as an adult.
  242  The child shall be housed separately from adult inmates to
  243  prohibit a child from having regular contact with incarcerated
  244  adults, including trusties. “Regular contact” means sight and
  245  sound contact. Separation of children from adults shall permit
  246  no more than haphazard or accidental contact. The receiving jail
  247  or other facility shall contain a separate section for children
  248  and shall have an adequate staff to supervise and monitor the
  249  child’s activities at all times. Supervision and monitoring of
  250  children includes physical observation and documented checks by
  251  jail or receiving facility supervisory personnel at intervals
  252  not to exceed 10 minutes. This subsection does not prohibit
  253  placing two or more children in the same cell. Under no
  254  circumstances shall a child be placed in the same cell with an
  255  adult.
  256         Section 3. Paragraphs (a) and (b) of subsection (4) of
  257  section 985.565, Florida Statutes, are amended to read
  258         985.565 Sentencing powers; procedures; alternatives for
  259  juveniles prosecuted as adults.—
  261         (a) Adult sanctions.—
  262         1. Cases prosecuted on indictment.—If the child is found to
  263  have committed the offense punishable by death or life
  264  imprisonment, the child shall be sentenced as an adult. If the
  265  juvenile is not found to have committed the indictable offense
  266  but is found to have committed a lesser included offense or any
  267  other offense for which he or she was indicted as a part of the
  268  criminal episode, the court may sentence as follows:
  269         a. As an adult;
  270         b. Under chapter 958; or
  271         c. As a juvenile under this section.
  272         2. Other cases.—If a child who has been transferred for
  273  criminal prosecution pursuant to information or waiver of
  274  juvenile court jurisdiction is found to have committed a
  275  violation of state law or a lesser included offense for which he
  276  or she was charged as a part of the criminal episode, the court
  277  may sentence as follows:
  278         a. As an adult;
  279         b. Under chapter 958; or
  280         c. As a juvenile under this section.
  281         3. Notwithstanding any other provision to the contrary, if
  282  the state attorney is required to file a motion to transfer and
  283  certify the juvenile for prosecution as an adult under s.
  284  985.556(3) and that motion is granted, or if the state attorney
  285  is required to file an information under s. 985.557(2)(a) or
  286  (b), the court must impose adult sanctions.
  287         4. Any sentence imposing adult sanctions is presumed
  288  appropriate, and the court is not required to set forth specific
  289  findings or enumerate the criteria in this subsection as any
  290  basis for its decision to impose adult sanctions.
  291         5. When a child has been transferred for criminal
  292  prosecution as an adult and has been found to have committed a
  293  violation of state law, the disposition of the case may include
  294  the enforcement of any restitution ordered in any juvenile
  295  proceeding.
  296         (b) Juvenile sanctions.—For juveniles transferred to adult
  297  court but who do not qualify for such transfer under s.
  298  985.556(3) or s. 985.557(2)(a) or (b), the court may impose
  299  juvenile sanctions under this paragraph. If juvenile sentences
  300  are imposed, the court shall, under this paragraph, adjudge the
  301  child to have committed a delinquent act. Adjudication of
  302  delinquency shall not be deemed a conviction, nor shall it
  303  operate to impose any of the civil disabilities ordinarily
  304  resulting from a conviction. The court shall impose an adult
  305  sanction or a juvenile sanction and may not sentence the child
  306  to a combination of adult and juvenile punishments. An adult
  307  sanction or a juvenile sanction may include enforcement of an
  308  order of restitution or probation previously ordered in any
  309  juvenile proceeding. However, if the court imposes a juvenile
  310  sanction and the department determines that the sanction is
  311  unsuitable for the child, the department shall return custody of
  312  the child to the sentencing court for further proceedings,
  313  including the imposition of adult sanctions. Upon adjudicating a
  314  child delinquent under subsection (1), the court may:
  315         1. Place the child in a probation program under the
  316  supervision of the department for an indeterminate period of
  317  time until the child reaches the age of 19 years or sooner if
  318  discharged by order of the court.
  319         2. Commit the child to the department for treatment in an
  320  appropriate program for children for an indeterminate period of
  321  time until the child is 21 or sooner if discharged by the
  322  department. The department shall notify the court of its intent
  323  to discharge no later than 14 days prior to discharge. Failure
  324  of the court to timely respond to the department’s notice shall
  325  be considered approval for discharge.
  326         3. Order disposition under ss. 985.435, 985.437, 985.439,
  327  985.441, 985.45, and 985.455 as an alternative to youthful
  328  offender or adult sentencing if the court determines not to
  329  impose youthful offender or adult sanctions.
  331  It is the intent of the Legislature that the criteria and
  332  guidelines in this subsection are mandatory and that a
  333  determination of disposition under this subsection is subject to
  334  the right of the child to appellate review under s. 985.534.
  335         Section 4. This act shall take effect July 1, 2019.
  336  ================= T I T L E  A M E N D M E N T ================
  337  And the title is amended as follows:
  338         Delete everything before the enacting clause
  339  and insert:
  340                        A bill to be entitled                      
  341         An act relating to direct filing of an information;
  342         amending s. 985.557, F.S.; deleting references to the
  343         state attorney's discretion to direct file a juvenile;
  344         revising discretionary direct file criteria; deleting
  345         provisions for mandatory direct file; providing for an
  346         opportunity for a hearing to reverse a direct file;
  347         amending s. 985.265, F.S.; revising provisions
  348         concerning the housing of children held in detention;
  349         prohibiting a child who has been transferred to adult
  350         court for criminal prosecution pursuant to direct file
  351         from being held in a jail or other facility used for
  352         the detention of adults prior to a hearing to
  353         determine if the child should remain in adult court;
  354         amending s. 985.565, F.S.; conforming provisions to
  355         changes made by the act; providing an effective date.