Florida Senate - 2020                       CS for CS for SB 346
       
       
        
       By the Committees on Appropriations; and Criminal Justice; and
       Senators Bradley, Brandes, Perry, Diaz, Gruters, Bracy, Rouson,
       Berman, Taddeo, and Stewart
       
       
       
       576-02294-20                                           2020346c2
    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 the 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 specified
   20         reports; 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 chapter 921, any provision of this
   53  section, or any other law relating to the punishment for
   54  possessing, purchasing, or possessing with the intent to
   55  purchase a controlled substance, a person who possesses,
   56  purchases, or possesses with the intent to purchase less than 2
   57  grams of a controlled substance, other than fentanyl or any
   58  substance or mixture described in s. 893.135(1)(c)4.a.(I)-(VII),
   59  may not be 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)“Covered offense” includes:
   99         1. Arson.
  100         2. Sexual battery.
  101         3. Robbery.
  102         4. Kidnapping.
  103         5. Aggravated child abuse.
  104         6. Aggravated abuse of an elderly person or a disabled
  105  adult.
  106         7. Aggravated assault with a deadly weapon.
  107         8. Murder.
  108         9. Manslaughter.
  109         10. Aggravated manslaughter of an elderly person or a
  110  disabled adult.
  111         11. Aggravated manslaughter of a child.
  112         12. The unlawful throwing, placing, or discharging of a
  113  destructive device or bomb.
  114         13. Armed burglary.
  115         14. Aggravated battery.
  116         15. Aggravated stalking.
  117         16. Home-invasion robbery.
  118         17. Carjacking.
  119         (b) “Custodial interrogation” means questioning or other
  120  conduct by a law enforcement officer which is reasonably likely
  121  to elicit an incriminating response from an individual and which
  122  occurs under circumstances in which a reasonable individual in
  123  the same circumstances would consider himself or herself to be
  124  in the custody of a law enforcement agency.
  125         (c) “Electronic recording” means an audio recording or an
  126  audio and video recording that accurately records a custodial
  127  interrogation.
  128         (d) “Place of detention” means a police station, sheriff’s
  129  office, correctional facility, prisoner holding facility, county
  130  detention facility, or other governmental facility where an
  131  individual may be held in connection with a criminal charge that
  132  has been or may be filed against the individual.
  133         (e) “Statement” means a communication that is oral,
  134  written, electronic, nonverbal, or in sign language.
  135         (2)(a) A custodial interrogation at a place of detention,
  136  including the giving of a required warning, the advisement of
  137  the rights of the individual being questioned, and the waiver of
  138  any rights by the individual, must be electronically recorded in
  139  its entirety if the interrogation is related to a covered
  140  offense.
  141         (b) If a law enforcement officer conducts a custodial
  142  interrogation at a place of detention without electronically
  143  recording the interrogation, the officer must prepare a written
  144  report explaining why he or she did not record the
  145  interrogation.
  146         (c) As soon as practicable, a law enforcement officer who
  147  conducts a custodial interrogation at a location other than a
  148  place of detention shall prepare a written report explaining the
  149  circumstances of the interrogation and summarizing the custodial
  150  interrogation process and the individual’s statements.
  151         (d) Paragraph (a) does not apply:
  152         1. If an unforeseen equipment malfunction prevents the
  153  recording of the custodial interrogation in its entirety;
  154         2. If a suspect refuses to participate in a custodial
  155  interrogation if his or her statements are to be electronically
  156  recorded;
  157         3. If an equipment operator error prevents the recording of
  158  the custodial interrogation in its entirety;
  159         4. If the statement is made spontaneously and not in
  160  response to a custodial interrogation question;
  161         5. If the statement is made during the processing of the
  162  arrest of a suspect;
  163         6. If the custodial interrogation occurs when the law
  164  enforcement officer participating in the interrogation does not
  165  have any knowledge of facts and circumstances that would lead an
  166  officer to reasonably believe that the individual being
  167  interrogated may have committed a covered offense;
  168         7. If the law enforcement officer conducting the custodial
  169  interrogation reasonably believes that making an electronic
  170  recording would jeopardize the safety of the officer, the
  171  individual being interrogated, or others; or
  172         8. If the custodial interrogation is conducted outside of
  173  this state.
  174         (3) Unless a court finds that one or more of the
  175  circumstances specified in paragraph (2)(d) apply, the court
  176  must consider the circumstances of an interrogation conducted by
  177  a law enforcement officer in which he or she did not
  178  electronically record all or part of a custodial interrogation
  179  in determining whether a statement made during the interrogation
  180  is admissible. If the court admits into evidence a statement
  181  made during a custodial interrogation that was not
  182  electronically recorded as required under paragraph (2)(a), the
  183  court must, upon request of the defendant, give cautionary
  184  instructions to the jury regarding the law enforcement officer’s
  185  failure to comply with that requirement.
  186         (4) A law enforcement agency in this state which has
  187  enforced rules adopted pursuant to this section which are
  188  reasonably designed to ensure compliance with the requirements
  189  of this section is not subject to civil liability for damages
  190  arising from a violation of this section. This section does not
  191  create a cause of action against a law enforcement officer.
  192         Section 4. Paragraph (b) of subsection (1) of section
  193  961.03, Florida Statutes, is amended to read:
  194         961.03 Determination of status as a wrongfully incarcerated
  195  person; determination of eligibility for compensation.—
  196         (1)
  197         (b) The person must file the petition with the court:
  198         1. Within 2 years 90 days after the order vacating a
  199  conviction and sentence becomes final and the criminal charges
  200  against the person are dismissed or the person is retried and
  201  found not guilty, if the person’s conviction was and sentence is
  202  vacated on or after July 1, 2008. A person may file a petition
  203  with the court within 2 years after July 1, 2020, if the person
  204  had a claim dismissed or did not file a claim because the date
  205  when the criminal charges against the person were dismissed or
  206  the person was acquitted upon retrial occurred more than 90 days
  207  after the date when the order vacating the conviction or
  208  sentence became final, and the state of the law before July 1,
  209  2020, would have barred the claim or made the claim appear to be
  210  futile.
  211         2. By July 1, 2010, if the person’s conviction and sentence
  212  was vacated by an order that became final before prior to July
  213  1, 2008.
  214         Section 5. Section 961.04, Florida Statutes, is amended to
  215  read:
  216         961.04 Eligibility for compensation for wrongful
  217  incarceration.—A wrongfully incarcerated person is not eligible
  218  for compensation under the act if any of the following apply:
  219         (1) Before the person’s wrongful conviction and
  220  incarceration, the person was convicted of, or pled guilty or
  221  nolo contendere to, regardless of adjudication, any violent
  222  felony, or a crime committed in another jurisdiction the
  223  elements of which would constitute a violent felony in this
  224  state, or a crime committed against the United States which is
  225  designated a violent felony, excluding any delinquency
  226  disposition;
  227         (2) Before the person’s wrongful conviction and
  228  incarceration, the person was convicted of, or pled guilty or
  229  nolo contendere to, regardless of adjudication, more than one
  230  felony that is not a violent felony, or more than one crime
  231  committed in another jurisdiction, the elements of which would
  232  constitute a felony in this state, or more than one crime
  233  committed against the United States which is designated a
  234  felony, excluding any delinquency disposition;
  235         (1)(3) During the person’s wrongful incarceration, the
  236  person was convicted of, or pled guilty or nolo contendere to,
  237  regardless of adjudication, any violent felony.;
  238         (2)(4) During the person’s wrongful incarceration, the
  239  person was convicted of, or pled guilty or nolo contendere to,
  240  regardless of adjudication, more than one felony that is not a
  241  violent felony.; or
  242         (3)(5) During the person’s wrongful incarceration, the
  243  person was also serving a concurrent sentence for another felony
  244  for which the person was not wrongfully convicted.
  245         Section 6. Paragraph (c) of subsection (3) of section
  246  893.03, Florida Statutes, is amended to read:
  247         893.03 Standards and schedules.—The substances enumerated
  248  in this section are controlled by this chapter. The controlled
  249  substances listed or to be listed in Schedules I, II, III, IV,
  250  and V are included by whatever official, common, usual,
  251  chemical, trade name, or class designated. The provisions of
  252  this section shall not be construed to include within any of the
  253  schedules contained in this section any excluded drugs listed
  254  within the purview of 21 C.F.R. s. 1308.22, styled “Excluded
  255  Substances”; 21 C.F.R. s. 1308.24, styled “Exempt Chemical
  256  Preparations”; 21 C.F.R. s. 1308.32, styled “Exempted
  257  Prescription Products”; or 21 C.F.R. s. 1308.34, styled “Exempt
  258  Anabolic Steroid Products.”
  259         (3) SCHEDULE III.—A substance in Schedule III has a
  260  potential for abuse less than the substances contained in
  261  Schedules I and II and has a currently accepted medical use in
  262  treatment in the United States, and abuse of the substance may
  263  lead to moderate or low physical dependence or high
  264  psychological dependence or, in the case of anabolic steroids,
  265  may lead to physical damage. The following substances are
  266  controlled in Schedule III:
  267         (c) Unless specifically excepted or unless listed in
  268  another schedule, any material, compound, mixture, or
  269  preparation containing limited quantities of any of the
  270  following controlled substances or any salts thereof:
  271         1. Not more than 1.8 grams of codeine per 100 milliliters
  272  or not more than 90 milligrams per dosage unit, with an equal or
  273  greater quantity of an isoquinoline alkaloid of opium.
  274         2. Not more than 1.8 grams of codeine per 100 milliliters
  275  or not more than 90 milligrams per dosage unit, with recognized
  276  therapeutic amounts of one or more active ingredients which are
  277  not controlled substances.
  278         3. Not more than 300 milligrams of hydrocodone per 100
  279  milliliters or not more than 15 milligrams per dosage unit, with
  280  a fourfold or greater quantity of an isoquinoline alkaloid of
  281  opium.
  282         4. Not more than 300 milligrams of hydrocodone per 100
  283  milliliters or not more than 15 milligrams per dosage unit, with
  284  recognized therapeutic amounts of one or more active ingredients
  285  that are not controlled substances.
  286         5. Not more than 1.8 grams of dihydrocodeine per 100
  287  milliliters or not more than 90 milligrams per dosage unit, with
  288  recognized therapeutic amounts of one or more active ingredients
  289  which are not controlled substances.
  290         6. Not more than 300 milligrams of ethylmorphine per 100
  291  milliliters or not more than 15 milligrams per dosage unit, with
  292  one or more active, nonnarcotic ingredients in recognized
  293  therapeutic amounts.
  294         7. Not more than 50 milligrams of morphine per 100
  295  milliliters or per 100 grams, with recognized therapeutic
  296  amounts of one or more active ingredients which are not
  297  controlled substances.
  298  
  299  For purposes of charging a person with a violation of s. 893.135
  300  involving any controlled substance described in subparagraph 3.
  301  or subparagraph 4., the controlled substance is a Schedule III
  302  controlled substance pursuant to this paragraph but the weight
  303  of the controlled substance per milliliters or per dosage unit
  304  is not relevant to the charging of a violation of s. 893.135.
  305  The weight of the controlled substance shall be determined
  306  pursuant to s. 893.135(7) s. 893.135(6).
  307         Section 7. For the purpose of incorporating the amendment
  308  made by this act to section 961.04, Florida Statutes, in a
  309  reference thereto, subsection (4) of section 961.02, Florida
  310  Statutes, is reenacted to read:
  311         961.02 Definitions.—As used in ss. 961.01-961.07, the term:
  312         (4) “Eligible for compensation” means that a person meets
  313  the definition of the term “wrongfully incarcerated person” and
  314  is not disqualified from seeking compensation under the criteria
  315  prescribed in s. 961.04.
  316         Section 8. For the purpose of incorporating the amendments
  317  made by this act to section 961.04, Florida Statutes, in
  318  references thereto, paragraph (a) of subsection (1) and
  319  subsections (2), (3), and (4) of section 961.03, Florida
  320  Statutes, are reenacted to read:
  321         961.03 Determination of status as a wrongfully incarcerated
  322  person; determination of eligibility for compensation.—
  323         (1)(a) In order to meet the definition of a “wrongfully
  324  incarcerated person” and “eligible for compensation,” upon entry
  325  of an order, based upon exonerating evidence, vacating a
  326  conviction and sentence, a person must set forth the claim of
  327  wrongful incarceration under oath and with particularity by
  328  filing a petition with the original sentencing court, with a
  329  copy of the petition and proper notice to the prosecuting
  330  authority in the underlying felony for which the person was
  331  incarcerated. At a minimum, the petition must:
  332         1. State that verifiable and substantial evidence of actual
  333  innocence exists and state with particularity the nature and
  334  significance of the verifiable and substantial evidence of
  335  actual innocence; and
  336         2. State that the person is not disqualified, under the
  337  provisions of s. 961.04, from seeking compensation under this
  338  act.
  339         (2) The prosecuting authority must respond to the petition
  340  within 30 days. The prosecuting authority may respond:
  341         (a) By certifying to the court that, based upon the
  342  petition and verifiable and substantial evidence of actual
  343  innocence, no further criminal proceedings in the case at bar
  344  can or will be initiated by the prosecuting authority, that no
  345  questions of fact remain as to the petitioner’s wrongful
  346  incarceration, and that the petitioner is not ineligible from
  347  seeking compensation under the provisions of s. 961.04; or
  348         (b) By contesting the nature, significance, or effect of
  349  the evidence of actual innocence, the facts related to the
  350  petitioner’s alleged wrongful incarceration, or whether the
  351  petitioner is ineligible from seeking compensation under the
  352  provisions of s. 961.04.
  353         (3) If the prosecuting authority responds as set forth in
  354  paragraph (2)(a), the original sentencing court, based upon the
  355  evidence of actual innocence, the prosecuting authority’s
  356  certification, and upon the court’s finding that the petitioner
  357  has presented clear and convincing evidence that the petitioner
  358  committed neither the act nor the offense that served as the
  359  basis for the conviction and incarceration, and that the
  360  petitioner did not aid, abet, or act as an accomplice to a
  361  person who committed the act or offense, shall certify to the
  362  department that the petitioner is a wrongfully incarcerated
  363  person as defined by this act. Based upon the prosecuting
  364  authority’s certification, the court shall also certify to the
  365  department that the petitioner is eligible for compensation
  366  under the provisions of s. 961.04.
  367         (4)(a) If the prosecuting authority responds as set forth
  368  in paragraph (2)(b), the original sentencing court shall make a
  369  determination from the pleadings and supporting documentation
  370  whether, by a preponderance of the evidence, the petitioner is
  371  ineligible for compensation under the provisions of s. 961.04,
  372  regardless of his or her claim of wrongful incarceration. If the
  373  court finds the petitioner ineligible under the provisions of s.
  374  961.04, it shall dismiss the petition.
  375         (b) If the prosecuting authority responds as set forth in
  376  paragraph (2)(b), and the court determines that the petitioner
  377  is eligible under the provisions of s. 961.04, but the
  378  prosecuting authority contests the nature, significance or
  379  effect of the evidence of actual innocence, or the facts related
  380  to the petitioner’s alleged wrongful incarceration, the court
  381  shall set forth its findings and transfer the petition by
  382  electronic means through the division’s website to the division
  383  for findings of fact and a recommended determination of whether
  384  the petitioner has established that he or she is a wrongfully
  385  incarcerated person who is eligible for compensation under this
  386  act.
  387         Section 9. This act shall take effect July 1, 2020.