Florida Senate - 2020                              CS for SB 346
       
       
        
       By the Committee on Criminal Justice; and Senators Bradley,
       Brandes, Perry, Diaz, Gruters, Bracy, and Rouson
       
       
       
       
       591-01351-20                                           2020346c1
    1                        A bill to be entitled                      
    2         An act relating to criminal justice; amending s.
    3         893.13, F.S.; prohibiting the imprisonment for longer
    4         than a certain time for persons who possess, purchase,
    5         or possess with the intent to purchase less than a
    6         specified amount of a controlled substance; providing
    7         exceptions; amending s. 893.135, F.S.; authorizing a
    8         court to impose a sentence other than a mandatory
    9         minimum term of imprisonment and mandatory fine for a
   10         person convicted of trafficking if the court makes
   11         certain findings on the record; creating s. 900.06,
   12         F.S.; defining terms and specifying covered offenses;
   13         requiring that a custodial interrogation conducted at
   14         a place of detention in connection with certain
   15         offenses be electronically recorded in its entirety;
   16         requiring law enforcement officers who do not comply
   17         with the electronic recording requirement or who
   18         conduct custodial interrogations at a location other
   19         than a place of detention to prepare a specified
   20         report; providing exceptions to the electronic
   21         recording requirement; requiring a court to consider a
   22         law enforcement officer’s failure to comply with the
   23         electronic recording requirement in determining the
   24         admissibility of a statement, unless an exception
   25         applies; requiring a court, upon the request of a
   26         defendant, to give certain cautionary instructions to
   27         a jury under certain circumstances; providing immunity
   28         from civil liability to law enforcement agencies that
   29         enforce certain rules; providing that a cause of
   30         action is not created against a law enforcement
   31         officer; amending s. 961.03, F.S.; revising the
   32         circumstances under which a wrongfully incarcerated
   33         person must file a petition with the court to
   34         determine eligibility for compensation; authorizing
   35         certain persons to petition the court to determine
   36         eligibility for compensation within a specified
   37         timeframe; amending s. 961.04, F.S.; revising the
   38         circumstances under which a wrongfully incarcerated
   39         person is eligible for compensation; amending s.
   40         893.03, F.S.; conforming a cross-reference; reenacting
   41         ss. 961.02(4) and 961.03(1)(a), (2), (3), and (4),
   42         F.S., all relating to eligibility for compensation for
   43         wrongfully incarcerated persons; providing an
   44         effective date.
   45          
   46  Be It Enacted by the Legislature of the State of Florida:
   47  
   48         Section 1. Present subsection (10) of section 893.13,
   49  Florida Statutes, is redesignated as subsection (11), and a new
   50  subsection (10) is added to that section, to read:
   51         893.13 Prohibited acts; penalties.—
   52         (10) Notwithstanding any provision of this section or any
   53  other law relating to the punishment for possessing, purchasing,
   54  or possessing with the intent to purchase a controlled
   55  substance, a person who possesses, purchases, or possesses with
   56  the intent to purchase less than 2 grams of a controlled
   57  substance, other than fentanyl or any substance or mixture
   58  described in s. 893.135(1)(c)4.a.(I)-(VII), may not be
   59  imprisoned for a term longer than 12 months.
   60         Section 2. Present subsections (6) and (7) of section
   61  893.135, Florida Statutes, are redesignated as subsections (7)
   62  and (8), respectively, and a new subsection (6) is added to that
   63  section, to read:
   64         893.135 Trafficking; mandatory sentences; suspension or
   65  reduction of sentences; conspiracy to engage in trafficking.—
   66         (6) Notwithstanding any provision of this section, a court
   67  may impose a sentence for a violation of this section other than
   68  the mandatory minimum term of imprisonment and mandatory fine if
   69  the court finds on the record that all of the following
   70  circumstances exist:
   71         (a)The defendant has no prior conviction for a forcible
   72  felony as defined in s. 776.08.
   73         (b)The defendant did not use violence or credible threats
   74  of violence, or possess a firearm or other dangerous weapon, or
   75  induce another participant to use violence or credible threats
   76  of violence, in connection with the offense.
   77         (c)The offense did not result in the death of or serious
   78  bodily injury to any person.
   79         (d)The defendant was not an organizer, leader, manager, or
   80  supervisor of others in the offense and was not engaged in a
   81  continuing criminal enterprise as defined in s. 893.20.
   82         (e)At the time of the sentencing hearing or earlier, the
   83  defendant has truthfully provided to the state all information
   84  and evidence that he or she possesses concerning the offense or
   85  offenses that were part of the same course of conduct or of a
   86  common scheme or plan.
   87         (f)The defendant has not previously benefited from the
   88  application of this subsection.
   89  
   90  A court may not apply this subsection to an offense under this
   91  section which carries a mandatory minimum term of imprisonment
   92  of 25 years.
   93         Section 3. Section 900.06, Florida Statutes, is created to
   94  read:
   95         900.06Recording of custodial interrogations for certain
   96  offenses.—
   97         (1) As used in this section, the term:
   98         (a) “Custodial interrogation” means questioning or other
   99  conduct by a law enforcement officer which is reasonably likely
  100  to elicit an incriminating response from an individual and which
  101  occurs under circumstances in which a reasonable individual in
  102  the same circumstances would consider himself or herself to be
  103  in the custody of a law enforcement agency.
  104         (b) “Electronic recording” means an audio recording or an
  105  audio and video recording that accurately records a custodial
  106  interrogation.
  107         (c)“Covered offense” includes:
  108         1. Arson.
  109         2. Sexual battery.
  110         3. Robbery.
  111         4. Kidnapping.
  112         5. Aggravated child abuse.
  113         6. Aggravated abuse of an elderly person or disabled adult.
  114         7. Aggravated assault with a deadly weapon.
  115         8. Murder.
  116         9. Manslaughter.
  117         10. Aggravated manslaughter of an elderly person or
  118  disabled adult.
  119         11. Aggravated manslaughter of a child.
  120         12. The unlawful throwing, placing, or discharging of a
  121  destructive device or bomb.
  122         13. Armed burglary.
  123         14. Aggravated battery.
  124         15. Aggravated stalking.
  125         16. Home-invasion robbery.
  126         17. Carjacking.
  127         (d) “Place of detention” means a police station, sheriff’s
  128  office, correctional facility, prisoner holding facility, county
  129  detention facility, or other governmental facility where an
  130  individual may be held in connection with a criminal charge that
  131  has been or may be filed against the individual.
  132         (e) “Statement” means a communication that is oral,
  133  written, electronic, nonverbal, or in sign language.
  134         (2)(a) A custodial interrogation at a place of detention,
  135  including the giving of a required warning, the advisement of
  136  the rights of the individual being questioned, and the waiver of
  137  any rights by the individual, must be electronically recorded in
  138  its entirety if the interrogation is related to a covered
  139  offense.
  140         (b) If a law enforcement officer conducts a custodial
  141  interrogation at a place of detention without electronically
  142  recording the interrogation, the officer must prepare a written
  143  report explaining why he or she did not record the
  144  interrogation.
  145         (c) As soon as practicable, a law enforcement officer who
  146  conducts a custodial interrogation at a location other than a
  147  place of detention shall prepare a written report explaining the
  148  circumstances of the interrogation and summarizing the custodial
  149  interrogation process and the individual’s statements.
  150         (d) Paragraph (a) does not apply:
  151         1. If an unforeseen equipment malfunction prevents
  152  recording the custodial interrogation in its entirety;
  153         2. If a suspect refuses to participate in a custodial
  154  interrogation if his or her statements are to be electronically
  155  recorded;
  156         3. If an equipment operator error prevents recording the
  157  custodial interrogation in its entirety;
  158         4. If the statement is made spontaneously and not in
  159  response to a custodial interrogation question;
  160         5. If the statement is made during the processing of the
  161  arrest of a suspect;
  162         6. If the custodial interrogation occurs when the law
  163  enforcement officer participating in the interrogation does not
  164  have any knowledge of facts and circumstances that would lead an
  165  officer to reasonably believe that the individual being
  166  interrogated may have committed a covered offense;
  167         7. If the law enforcement officer conducting the custodial
  168  interrogation reasonably believes that making an electronic
  169  recording would jeopardize the safety of the officer, the
  170  individual being interrogated, or others; or
  171         8. If the custodial interrogation is conducted outside of
  172  this state.
  173         (3) Unless a court finds that one or more of the
  174  circumstances specified in paragraph (2)(d) apply, the court
  175  must consider the circumstances of an interrogation conducted by
  176  a law enforcement officer in which he or she did not
  177  electronically record all or part of a custodial interrogation
  178  in determining whether a statement made during the interrogation
  179  is admissible. If the court admits into evidence a statement
  180  made during a custodial interrogation that was not
  181  electronically recorded as required under paragraph (2)(a), the
  182  court must, upon request of the defendant, give cautionary
  183  instructions to the jury regarding the law enforcement officer’s
  184  failure to comply with that requirement.
  185         (4) A law enforcement agency in this state which has
  186  enforced rules adopted pursuant to this section which are
  187  reasonably designed to ensure compliance with the requirements
  188  of this section is not subject to civil liability for damages
  189  arising from a violation of this section. This section does not
  190  create a cause of action against a law enforcement officer.
  191         Section 4. Paragraph (b) of subsection (1) of section
  192  961.03, Florida Statutes, is amended to read:
  193         961.03 Determination of status as a wrongfully incarcerated
  194  person; determination of eligibility for compensation.—
  195         (1)
  196         (b) The person must file the petition with the court:
  197         1. Within 2 years 90 days after the order vacating a
  198  conviction and sentence becomes final and the criminal charges
  199  against the person are dismissed if the person’s conviction and
  200  sentence is vacated, or the person is retried and found not
  201  guilty, on or after July 1, 2008. If a person had a claim
  202  dismissed or did not file a claim because of the former 90-day
  203  petition filing period under this subparagraph, he or she may
  204  file a petition with the court within 2 years after July 1,
  205  2020.
  206         2. By July 1, 2010, if the person’s conviction and sentence
  207  was vacated by an order that became final before prior to July
  208  1, 2008.
  209         Section 5. Section 961.04, Florida Statutes, is amended to
  210  read:
  211         961.04 Eligibility for compensation for wrongful
  212  incarceration.—A wrongfully incarcerated person is not eligible
  213  for compensation under the act if any of the following apply:
  214         (1) Before the person’s wrongful conviction and
  215  incarceration, the person was convicted of, or pled guilty or
  216  nolo contendere to, regardless of adjudication, any violent
  217  felony, or a crime committed in another jurisdiction the
  218  elements of which would constitute a violent felony in this
  219  state, or a crime committed against the United States which is
  220  designated a violent felony, excluding any delinquency
  221  disposition;
  222         (2) Before the person’s wrongful conviction and
  223  incarceration, the person was convicted of, or pled guilty or
  224  nolo contendere to, regardless of adjudication, more than one
  225  felony that is not a violent felony, or more than one crime
  226  committed in another jurisdiction, the elements of which would
  227  constitute a felony in this state, or more than one crime
  228  committed against the United States which is designated a
  229  felony, excluding any delinquency disposition;
  230         (1)(3) During the person’s wrongful incarceration, the
  231  person was convicted of, or pled guilty or nolo contendere to,
  232  regardless of adjudication, any violent felony.;
  233         (2)(4) During the person’s wrongful incarceration, the
  234  person was convicted of, or pled guilty or nolo contendere to,
  235  regardless of adjudication, more than one felony that is not a
  236  violent felony.; or
  237         (3)(5) During the person’s wrongful incarceration, the
  238  person was also serving a concurrent sentence for another felony
  239  for which the person was not wrongfully convicted.
  240         Section 6. Paragraph (c) of subsection (3) of section
  241  893.03, Florida Statutes, is amended to read:
  242         893.03 Standards and schedules.—The substances enumerated
  243  in this section are controlled by this chapter. The controlled
  244  substances listed or to be listed in Schedules I, II, III, IV,
  245  and V are included by whatever official, common, usual,
  246  chemical, trade name, or class designated. The provisions of
  247  this section shall not be construed to include within any of the
  248  schedules contained in this section any excluded drugs listed
  249  within the purview of 21 C.F.R. s. 1308.22, styled “Excluded
  250  Substances”; 21 C.F.R. s. 1308.24, styled “Exempt Chemical
  251  Preparations”; 21 C.F.R. s. 1308.32, styled “Exempted
  252  Prescription Products”; or 21 C.F.R. s. 1308.34, styled “Exempt
  253  Anabolic Steroid Products.”
  254         (3) SCHEDULE III.—A substance in Schedule III has a
  255  potential for abuse less than the substances contained in
  256  Schedules I and II and has a currently accepted medical use in
  257  treatment in the United States, and abuse of the substance may
  258  lead to moderate or low physical dependence or high
  259  psychological dependence or, in the case of anabolic steroids,
  260  may lead to physical damage. The following substances are
  261  controlled in Schedule III:
  262         (c) Unless specifically excepted or unless listed in
  263  another schedule, any material, compound, mixture, or
  264  preparation containing limited quantities of any of the
  265  following controlled substances or any salts thereof:
  266         1. Not more than 1.8 grams of codeine per 100 milliliters
  267  or not more than 90 milligrams per dosage unit, with an equal or
  268  greater quantity of an isoquinoline alkaloid of opium.
  269         2. Not more than 1.8 grams of codeine per 100 milliliters
  270  or not more than 90 milligrams per dosage unit, with recognized
  271  therapeutic amounts of one or more active ingredients which are
  272  not controlled substances.
  273         3. Not more than 300 milligrams of hydrocodone per 100
  274  milliliters or not more than 15 milligrams per dosage unit, with
  275  a fourfold or greater quantity of an isoquinoline alkaloid of
  276  opium.
  277         4. Not more than 300 milligrams of hydrocodone per 100
  278  milliliters or not more than 15 milligrams per dosage unit, with
  279  recognized therapeutic amounts of one or more active ingredients
  280  that are not controlled substances.
  281         5. Not more than 1.8 grams of dihydrocodeine per 100
  282  milliliters or not more than 90 milligrams per dosage unit, with
  283  recognized therapeutic amounts of one or more active ingredients
  284  which are not controlled substances.
  285         6. Not more than 300 milligrams of ethylmorphine per 100
  286  milliliters or not more than 15 milligrams per dosage unit, with
  287  one or more active, nonnarcotic ingredients in recognized
  288  therapeutic amounts.
  289         7. Not more than 50 milligrams of morphine per 100
  290  milliliters or per 100 grams, with recognized therapeutic
  291  amounts of one or more active ingredients which are not
  292  controlled substances.
  293  
  294  For purposes of charging a person with a violation of s. 893.135
  295  involving any controlled substance described in subparagraph 3.
  296  or subparagraph 4., the controlled substance is a Schedule III
  297  controlled substance pursuant to this paragraph but the weight
  298  of the controlled substance per milliliters or per dosage unit
  299  is not relevant to the charging of a violation of s. 893.135.
  300  The weight of the controlled substance shall be determined
  301  pursuant to s. 893.135(7) s. 893.135(6).
  302         Section 7. For the purpose of incorporating the amendment
  303  made by this act to section 961.04, Florida Statutes, in a
  304  reference thereto, subsection (4) of section 961.02, Florida
  305  Statutes, is reenacted to read:
  306         961.02 Definitions.—As used in ss. 961.01-961.07, the term:
  307         (4) “Eligible for compensation” means that a person meets
  308  the definition of the term “wrongfully incarcerated person” and
  309  is not disqualified from seeking compensation under the criteria
  310  prescribed in s. 961.04.
  311         Section 8. For the purpose of incorporating the amendments
  312  made by this act to section 961.04, Florida Statutes, in
  313  references thereto, paragraph (a) of subsection (1) and
  314  subsections (2), (3), and (4) of section 961.03, Florida
  315  Statutes, are reenacted to read:
  316         961.03 Determination of status as a wrongfully incarcerated
  317  person; determination of eligibility for compensation.—
  318         (1)(a) In order to meet the definition of a “wrongfully
  319  incarcerated person” and “eligible for compensation,” upon entry
  320  of an order, based upon exonerating evidence, vacating a
  321  conviction and sentence, a person must set forth the claim of
  322  wrongful incarceration under oath and with particularity by
  323  filing a petition with the original sentencing court, with a
  324  copy of the petition and proper notice to the prosecuting
  325  authority in the underlying felony for which the person was
  326  incarcerated. At a minimum, the petition must:
  327         1. State that verifiable and substantial evidence of actual
  328  innocence exists and state with particularity the nature and
  329  significance of the verifiable and substantial evidence of
  330  actual innocence; and
  331         2. State that the person is not disqualified, under the
  332  provisions of s. 961.04, from seeking compensation under this
  333  act.
  334         (2) The prosecuting authority must respond to the petition
  335  within 30 days. The prosecuting authority may respond:
  336         (a) By certifying to the court that, based upon the
  337  petition and verifiable and substantial evidence of actual
  338  innocence, no further criminal proceedings in the case at bar
  339  can or will be initiated by the prosecuting authority, that no
  340  questions of fact remain as to the petitioner’s wrongful
  341  incarceration, and that the petitioner is not ineligible from
  342  seeking compensation under the provisions of s. 961.04; or
  343         (b) By contesting the nature, significance, or effect of
  344  the evidence of actual innocence, the facts related to the
  345  petitioner’s alleged wrongful incarceration, or whether the
  346  petitioner is ineligible from seeking compensation under the
  347  provisions of s. 961.04.
  348         (3) If the prosecuting authority responds as set forth in
  349  paragraph (2)(a), the original sentencing court, based upon the
  350  evidence of actual innocence, the prosecuting authority’s
  351  certification, and upon the court’s finding that the petitioner
  352  has presented clear and convincing evidence that the petitioner
  353  committed neither the act nor the offense that served as the
  354  basis for the conviction and incarceration, and that the
  355  petitioner did not aid, abet, or act as an accomplice to a
  356  person who committed the act or offense, shall certify to the
  357  department that the petitioner is a wrongfully incarcerated
  358  person as defined by this act. Based upon the prosecuting
  359  authority’s certification, the court shall also certify to the
  360  department that the petitioner is eligible for compensation
  361  under the provisions of s. 961.04.
  362         (4)(a) If the prosecuting authority responds as set forth
  363  in paragraph (2)(b), the original sentencing court shall make a
  364  determination from the pleadings and supporting documentation
  365  whether, by a preponderance of the evidence, the petitioner is
  366  ineligible for compensation under the provisions of s. 961.04,
  367  regardless of his or her claim of wrongful incarceration. If the
  368  court finds the petitioner ineligible under the provisions of s.
  369  961.04, it shall dismiss the petition.
  370         (b) If the prosecuting authority responds as set forth in
  371  paragraph (2)(b), and the court determines that the petitioner
  372  is eligible under the provisions of s. 961.04, but the
  373  prosecuting authority contests the nature, significance or
  374  effect of the evidence of actual innocence, or the facts related
  375  to the petitioner’s alleged wrongful incarceration, the court
  376  shall set forth its findings and transfer the petition by
  377  electronic means through the division’s website to the division
  378  for findings of fact and a recommended determination of whether
  379  the petitioner has established that he or she is a wrongfully
  380  incarcerated person who is eligible for compensation under this
  381  act.
  382         Section 9. This act shall take effect July 1, 2020.