Florida Senate - 2019 CS for SB 876
By the Committee on Criminal Justice; and Senator Powell
1 A bill to be entitled
2 An act relating to direct filing of an information;
3 amending s. 985.265, F.S.; revising provisions
4 concerning the housing of children held in detention;
5 prohibiting a child who has been transferred to adult
6 court for criminal prosecution pursuant to direct file
7 from being held in a jail or other facility used for
8 the detention of adults prior to a hearing to
9 determine if the child should remain in adult court;
10 amending s. 985.557, F.S.; deleting references to the
11 state attorney’s discretion to direct file a juvenile;
12 revising discretionary direct file criteria; deleting
13 provisions for mandatory direct file; providing for an
14 opportunity for a hearing to reverse a direct file;
15 amending s. 985.565, F.S.; conforming provisions to
16 changes made by the act; reenacting ss. 985.15(1),
17 985.26(2)(c), and 985.556(3), F.S., relating to filing
18 decisions, length of detention, and involuntary
19 mandatory waiver, respectively, to incorporate the
20 amendment made to s. 985.557, F.S., in references
21 thereto; providing an effective date.
23 Be It Enacted by the Legislature of the State of Florida:
25 Section 1. Subsection (5) of section 985.265, Florida
26 Statutes, is amended to read
27 985.265 Detention transfer and release; education; adult
29 (5) The court shall order the delivery of a child to a jail
30 or other facility intended or used for the detention of adults:
31 (a) When the child has been transferred or indicted for
32 criminal prosecution as an adult under part X, except that:
33 1. The court may not order or allow a child alleged to have
34 committed a misdemeanor who is being transferred for criminal
35 prosecution pursuant to either s. 985.556 or s. 985.557 to be
36 detained or held in a jail or other facility intended or used
37 for the detention of adults; however, such child may be held
38 temporarily in a detention facility; or
39 2. A child who has been transferred for criminal
40 prosecution as an adult pursuant to s. 985.557 shall not be held
41 in a jail or other facility intended or used for the detention
42 of adults prior to a court finding as a result of a hearing
43 provided for in s. 985.557(2) that the child should be
44 prosecuted as an adult; or
45 (b) When a child taken into custody in this state is wanted
46 by another jurisdiction for prosecution as an adult.
48 The child shall be housed separately from adult inmates to
49 prohibit a child from having regular contact with incarcerated
50 adults, including trusties. “Regular contact” means sight and
51 sound contact. Separation of children from adults shall permit
52 no more than haphazard or accidental contact. The receiving jail
53 or other facility shall contain a separate section for children
54 and shall have an adequate staff to supervise and monitor the
55 child’s activities at all times. Supervision and monitoring of
56 children includes physical observation and documented checks by
57 jail or receiving facility supervisory personnel at intervals
58 not to exceed 10 minutes. This subsection does not prohibit
59 placing two or more children in the same cell. Under no
60 circumstances shall a child be placed in the same cell with an
62 Section 2. Subsection (1) and present subsection (2) of
63 section 985.557, Florida Statutes, are amended, and a new
64 subsection (2) is added to that section, to read:
65 985.557 Direct filing of an information; discretionary
66 mandatory criteria.—
67 (1) DISCRETIONARY DIRECT FILE.—
68 (a) With respect to any child who was 14 or 15 years of age
69 at the time the alleged offense was committed, the state
70 attorney may file an information when in the state attorney’s
71 judgment and discretion the public interest requires that adult
72 sanctions be considered or imposed and when the offense charged
73 is for the commission of, or attempt to commit any of the
74 following , or conspiracy to commit:
75 1. Arson. ;
76 2. Sexual battery. ;
77 3. Robbery. ;
78 4. Kidnapping. ;
79 5. Aggravated child abuse. ;
80 6. Aggravated assault. ;
81 7. Aggravated stalking. ;
82 8. Murder. ;
83 9. Manslaughter. ;
84 10. Unlawful throwing, placing, or discharging of a
85 destructive device or bomb. ;
86 11. Armed burglary in violation of s. 810.02(2)(b) or
87 specified burglary of a dwelling or structure in violation of s.
88 810.02(2)(c), or burglary with an assault or battery in
89 violation of s. 810.02(2)(a). ;
90 12. Aggravated battery. ;
91 13. Any lewd or lascivious offense committed upon or in the
92 presence of a person less than 16 years of age ;
93 14. Carrying, displaying, using, threatening, or attempting
94 to use a weapon or firearm during the commission of a felony. ;
95 15. Grand theft in violation of s. 812.014(2)(a). ;
96 16. Possessing or discharging any weapon or firearm on
97 school property in violation of s. 790.115. ;
98 17. Home invasion robbery. ;
99 18. Carjacking. ; or
100 19. Grand theft of a motor vehicle in violation of s.
101 812.014(2)(c)6. or grand theft of a motor vehicle valued at
102 $20,000 or more in violation of s. 812.014(2)(b) if the child
103 has a previous adjudication for grand theft of a motor vehicle
104 in violation of s. 812.014(2)(c)6. or s. 812.014(2)(b).
105 (b) With respect to any child who was 16 or 17 years of age
106 at the time the alleged offense was committed, the state
107 attorney may file an information when in the state attorney’s
108 judgment and discretion the public interest requires that adult
109 sanctions be considered or imposed. However, the state attorney
110 may not file an information on a child charged with a
111 misdemeanor, unless the child has had at least two previous
112 adjudications or adjudications withheld for delinquent acts, one
113 of which involved an offense classified as a felony under state
115 (2) DUE PROCESS HEARING BEFORE A JUDGE.—Notwithstanding any
116 other law, and in all cases, any child charged with a crime
117 shall have an evidentiary hearing, after the state attorney’s
118 filing of an information in adult court under this section.
119 (a) The judge shall conduct the hearing within 30 days,
120 excluding Saturdays, Sundays, and legal holidays, unless good
121 cause is shown for a delay by the child or the child’s attorney.
122 The purpose of the hearing is for the court to determine whether
123 it is necessary for protection of the community that the child
124 is prosecuted in adult court. The judge shall consider all of
125 the following:
126 1. Evaluations and assessments completed by the department.
127 2. The sophistication and maturity of the child, including:
128 a. The effect, if any, of immaturity, impetuosity, or
129 failure to appreciate risks and consequences on the child’s
130 participation in the alleged offense.
131 b. The child’s age, maturity, intellectual capacity, and
132 mental and emotional health at the time of the alleged offense.
133 c. The effect, if any, of characteristics attributable to
134 the child’s youth on the child’s judgment.
135 3. The record and previous history of the child, including:
136 a. Previous contacts with the department, the Department of
137 Corrections, the Department of Children and Families, other law
138 enforcement agencies, and the courts.
139 b. Prior periods of probation.
140 c. Prior adjudications that the child committed a
141 delinquent act or violation of law, with greater weight being
142 given if the child has previously been found by a court to have
143 committed a delinquent act or violation of law involving
144 violence to persons.
145 d. Prior commitments to institutions of the department, the
146 Department of Corrections, or agencies under contract with
147 either department.
148 e. History of trauma, abuse or neglect, foster care
149 placements, failed adoption, fetal alcohol syndrome, exposure to
150 controlled substances at birth, and below-average intellectual
152 f. Identification of the child as a student requiring
153 exceptional student education or having previously received
154 psychological services.
155 4. The nature of the alleged offense and the child’s
156 participation, including:
157 a. Whether the alleged offense is punishable by death or
158 life imprisonment.
159 b. Whether the alleged offense was against persons or
161 c. Whether the alleged offense is alleged to have been
162 committed in an aggressive, violent, or premeditated manner.
163 d. The extent of the child’s participation in the alleged
165 e. The effect, if any, of familial pressure or peer
166 pressure on the child’s actions.
167 5. The prospects for adequate protection of the public and
168 the likelihood of reasonable rehabilitation of the child, if the
169 child is found to have committed the alleged offense:
170 a. By the use of procedures, services, and facilities
171 currently available to the juvenile court.
172 b. By the use of procedures, services, and facilities
173 currently available to the adult court, including whether the
174 lowest permissible sentence under the Criminal Punishment Code
175 is a nonstate prison sanction.
176 6. Whether the child could obtain habilitative or
177 rehabilitative services available in the juvenile justice
179 7. Whether the child could receive a sentence in juvenile
180 court that would provide adequate safety and protection for the
182 8. Whether the child’s best interests would be served by
183 prosecuting the child in juvenile court.
184 (b) The judge may consider any reports that may assist the
185 court, including prior pre-disposition reports, psycho-social
186 assessments, individualized educational programs (IEPs),
187 developmental assessments, school records, abuse or neglect
188 reports, home studies, protective investigations, and
189 psychological and psychiatric evaluations. The child, the
190 child’s parents or legal guardians, defense counsel, and the
191 state attorney may examine these reports and question the
192 parties responsible for creating them at the hearing.
193 (c) The adult court shall retain jurisdiction unless the
194 court finds by a preponderance of the evidence that the factors
195 listed in paragraph (a) support returning the child to juvenile
197 (d) The adult court shall render an order including
198 specific findings of fact and the reasons for its decision. The
199 prosecution and defense may seek immediate review of the order
200 through interlocutory appeal. The order shall be reviewable on
201 appeal under the Florida Rules of Appellate Procedure.
202 (2) MANDATORY DIRECT FILE.—
203 (a) With respect to any child who was 16 or 17 years of age
204 at the time the alleged offense was committed, the state
205 attorney shall file an information if the child has been
206 previously adjudicated delinquent for an act classified as a
207 felony, which adjudication was for the commission of, attempt to
208 commit, or conspiracy to commit murder, sexual battery, armed or
209 strong-armed robbery, carjacking, home-invasion robbery,
210 aggravated battery, or aggravated assault, and the child is
211 currently charged with a second or subsequent violent crime
212 against a person.
213 (b) With respect to any child 16 or 17 years of age at the
214 time an offense classified as a forcible felony, as defined in
215 s. 776.08, was committed, the state attorney shall file an
216 information if the child has previously been adjudicated
217 delinquent or had adjudication withheld for three acts
218 classified as felonies each of which occurred at least 45 days
219 apart from each other. This paragraph does not apply when the
220 state attorney has good cause to believe that exceptional
221 circumstances exist which preclude the just prosecution of the
222 juvenile in adult court.
223 (c) The state attorney must file an information if a child,
224 regardless of the child’s age at the time the alleged offense
225 was committed, is alleged to have committed an act that would be
226 a violation of law if the child were an adult, that involves
227 stealing a motor vehicle, including, but not limited to, a
228 violation of s. 812.133, relating to carjacking, or s.
229 812.014(2)(c)6., relating to grand theft of a motor vehicle, and
230 while the child was in possession of the stolen motor vehicle
231 the child caused serious bodily injury to or the death of a
232 person who was not involved in the underlying offense. For
233 purposes of this section, the driver and all willing passengers
234 in the stolen motor vehicle at the time such serious bodily
235 injury or death is inflicted shall also be subject to mandatory
236 transfer to adult court. “Stolen motor vehicle,” for the
237 purposes of this section, means a motor vehicle that has been
238 the subject of any criminal wrongful taking. For purposes of
239 this section, “willing passengers” means all willing passengers
240 who have participated in the underlying offense.
241 (d)1. With respect to any child who was 16 or 17 years of
242 age at the time the alleged offense was committed, the state
243 attorney shall file an information if the child has been charged
244 with committing or attempting to commit an offense listed in s.
245 775.087(2)(a)1.a.-p., and, during the commission of or attempt
246 to commit the offense, the child:
247 a. Actually possessed a firearm or destructive device, as
248 those terms are defined in s. 790.001.
249 b. Discharged a firearm or destructive device, as described
250 in s. 775.087(2)(a)2.
251 c. Discharged a firearm or destructive device, as described
252 in s. 775.087(2)(a)3., and, as a result of the discharge, death
253 or great bodily harm was inflicted upon any person.
254 2. Upon transfer, any child who is:
255 a. Charged under sub-subparagraph 1.a. and who has been
256 previously adjudicated or had adjudication withheld for a
257 forcible felony offense or any offense involving a firearm, or
258 who has been previously placed in a residential commitment
259 program, shall be subject to sentencing under s. 775.087(2)(a),
260 notwithstanding s. 985.565.
261 b. Charged under sub-subparagraph 1.b. or sub-subparagraph
262 1.c., shall be subject to sentencing under s. 775.087(2)(a),
263 notwithstanding s. 985.565.
264 3. Upon transfer, any child who is charged under this
265 paragraph, but who does not meet the requirements specified in
266 subparagraph 2., shall be sentenced under s. 985.565; however,
267 if the court imposes a juvenile sanction, the court must commit
268 the child to a high-risk or maximum-risk juvenile facility.
269 4. This paragraph shall not apply if the state attorney has
270 good cause to believe that exceptional circumstances exist that
271 preclude the just prosecution of the child in adult court.
272 5. The Department of Corrections shall make every
273 reasonable effort to ensure that any child 16 or 17 years of age
274 who is convicted and sentenced under this paragraph be
275 completely separated such that there is no physical contact with
276 adult offenders in the facility, to the extent that it is
277 consistent with chapter 958.
278 Section 3. Paragraphs (a) and (b) of subsection (4) of
279 section 985.565, Florida Statutes, are amended to read
280 985.565 Sentencing powers; procedures; alternatives for
281 juveniles prosecuted as adults.—
282 (4) SENTENCING ALTERNATIVES.—
283 (a) Adult sanctions.—
284 1. Cases prosecuted on indictment.—If the child is found to
285 have committed the offense punishable by death or life
286 imprisonment, the child shall be sentenced as an adult. If the
287 juvenile is not found to have committed the indictable offense
288 but is found to have committed a lesser included offense or any
289 other offense for which he or she was indicted as a part of the
290 criminal episode, the court may sentence as follows:
291 a. As an adult;
292 b. Under chapter 958; or
293 c. As a juvenile under this section.
294 2. Other cases.—If a child who has been transferred for
295 criminal prosecution pursuant to information or waiver of
296 juvenile court jurisdiction is found to have committed a
297 violation of state law or a lesser included offense for which he
298 or she was charged as a part of the criminal episode, the court
299 may sentence as follows:
300 a. As an adult;
301 b. Under chapter 958; or
302 c. As a juvenile under this section.
303 3. Notwithstanding any other provision to the contrary, if
304 the state attorney is required to file a motion to transfer and
305 certify the juvenile for prosecution as an adult under s.
306 985.556(3) and that motion is granted , or if the state attorney
307 is required to file an information under s. 985.557(2)(a) or
308 (b), the court must impose adult sanctions.
309 4. Any sentence imposing adult sanctions is presumed
310 appropriate, and the court is not required to set forth specific
311 findings or enumerate the criteria in this subsection as any
312 basis for its decision to impose adult sanctions.
313 5. When a child has been transferred for criminal
314 prosecution as an adult and has been found to have committed a
315 violation of state law, the disposition of the case may include
316 the enforcement of any restitution ordered in any juvenile
318 (b) Juvenile sanctions.—For juveniles transferred to adult
319 court but who do not qualify for such transfer under s.
320 985.556(3) or s. 985.557(2)(a) or (b), the court may impose
321 juvenile sanctions under this paragraph. If juvenile sentences
322 are imposed, the court shall, under this paragraph, adjudge the
323 child to have committed a delinquent act. Adjudication of
324 delinquency shall not be deemed a conviction, nor shall it
325 operate to impose any of the civil disabilities ordinarily
326 resulting from a conviction. The court shall impose an adult
327 sanction or a juvenile sanction and may not sentence the child
328 to a combination of adult and juvenile punishments. An adult
329 sanction or a juvenile sanction may include enforcement of an
330 order of restitution or probation previously ordered in any
331 juvenile proceeding. However, if the court imposes a juvenile
332 sanction and the department determines that the sanction is
333 unsuitable for the child, the department shall return custody of
334 the child to the sentencing court for further proceedings,
335 including the imposition of adult sanctions. Upon adjudicating a
336 child delinquent under subsection (1), the court may:
337 1. Place the child in a probation program under the
338 supervision of the department for an indeterminate period of
339 time until the child reaches the age of 19 years or sooner if
340 discharged by order of the court.
341 2. Commit the child to the department for treatment in an
342 appropriate program for children for an indeterminate period of
343 time until the child is 21 or sooner if discharged by the
344 department. The department shall notify the court of its intent
345 to discharge no later than 14 days prior to discharge. Failure
346 of the court to timely respond to the department’s notice shall
347 be considered approval for discharge.
348 3. Order disposition under ss. 985.435, 985.437, 985.439,
349 985.441, 985.45, and 985.455 as an alternative to youthful
350 offender or adult sentencing if the court determines not to
351 impose youthful offender or adult sanctions.
353 It is the intent of the Legislature that the criteria and
354 guidelines in this subsection are mandatory and that a
355 determination of disposition under this subsection is subject to
356 the right of the child to appellate review under s. 985.534.
357 Section 4. For the purpose of incorporating the amendment
358 made by this act to section 985.557, Florida Statutes, in a
359 reference thereto, subsection (1) of section 985.15, Florida
360 Statutes, is reenacted to read:
361 985.15 Filing decisions.—
362 (1) The state attorney may in all cases take action
363 independent of the action or lack of action of the juvenile
364 probation officer and shall determine the action that is in the
365 best interest of the public and the child. If the child meets
366 the criteria requiring prosecution as an adult under s. 985.556,
367 the state attorney shall request the court to transfer and
368 certify the child for prosecution as an adult or shall provide
369 written reasons to the court for not making such a request. In
370 all other cases, the state attorney may:
371 (a) File a petition for dependency;
372 (b) File a petition under chapter 984;
373 (c) File a petition for delinquency;
374 (d) File a petition for delinquency with a motion to
375 transfer and certify the child for prosecution as an adult;
376 (e) File an information under s. 985.557;
377 (f) Refer the case to a grand jury;
378 (g) Refer the child to a diversionary, pretrial
379 intervention, arbitration, or mediation program, or to some
380 other treatment or care program if such program commitment is
381 voluntarily accepted by the child or the child’s parents or
382 legal guardian; or
383 (h) Decline to file.
384 Section 5. For the purpose of incorporating the amendment
385 made by this act to section 985.557, Florida Statutes, in a
386 reference thereto, paragraph (c) of subsection (2) of section
387 985.26, Florida Statutes, is reenacted to read:
388 985.26 Length of detention.—
390 (c) A prolific juvenile offender under s. 985.255(1)(j)
391 shall be placed on nonsecure detention care with electronic
392 monitoring or in secure detention care under a special detention
393 order until disposition. If secure detention care is ordered by
394 the court, it must be authorized under this part and may not
396 1. Twenty-one days unless an adjudicatory hearing for the
397 case has been commenced in good faith by the court or the period
398 is extended by the court pursuant to paragraph (b); or
399 2. Fifteen days after the entry of an order of
402 As used in this paragraph, the term “disposition” means a
403 declination to file under s. 985.15(1)(h), the entry of nolle
404 prosequi for the charges, the filing of an indictment under s.
405 985.56 or an information under s. 985.557, a dismissal of the
406 case, or an order of final disposition by the court.
407 Section 6. For the purpose of incorporating the amendment
408 made by this act to section 985.557, Florida Statutes, in a
409 reference thereto, subsection (3) of section 985.556, Florida
410 Statutes, is reenacted to read:
411 985.556 Waiver of juvenile court jurisdiction; hearing.—
412 (3) INVOLUNTARY MANDATORY WAIVER.—
413 (a) If the child was 14 years of age or older, and if the
414 child has been previously adjudicated delinquent for an act
415 classified as a felony, which adjudication was for the
416 commission of, attempt to commit, or conspiracy to commit
417 murder, sexual battery, armed or strong-armed robbery,
418 carjacking, home-invasion robbery, aggravated battery,
419 aggravated assault, or burglary with an assault or battery, and
420 the child is currently charged with a second or subsequent
421 violent crime against a person; or
422 (b) If the child was 14 years of age or older at the time
423 of commission of a fourth or subsequent alleged felony offense
424 and the child was previously adjudicated delinquent or had
425 adjudication withheld for or was found to have committed, or to
426 have attempted or conspired to commit, three offenses that are
427 felony offenses if committed by an adult, and one or more of
428 such felony offenses involved the use or possession of a firearm
429 or violence against a person;
431 the state attorney shall request the court to transfer and
432 certify the child for prosecution as an adult or shall provide
433 written reasons to the court for not making such request, or
434 proceed under s. 985.557(1). Upon the state attorney’s request,
435 the court shall either enter an order transferring the case and
436 certifying the case for trial as if the child were an adult or
437 provide written reasons for not issuing such an order.
438 Section 7. This act shall take effect July 1, 2019.