Florida Senate - 2020                                     SB 464
       
       
        
       By Senator Wright
       
       
       
       
       
       14-00444B-20                                           2020464__
    1                        A bill to be entitled                      
    2         An act relating to certain defendants with mental
    3         illness; amending s. 394.658, F.S.; exempting certain
    4         fiscally constrained counties from local match
    5         requirements for specified grants; amending s.
    6         916.105, F.S.; providing legislative intent; creating
    7         s. 916.135, F.S.; defining the terms “misdemeanor
    8         court” and “misdemeanor defendant”; encouraging
    9         communities to apply for specified grants to establish
   10         misdemeanor mental health jail diversion programs;
   11         outlining a suggested process for such programs;
   12         authorizing the court to refer a misdemeanor defendant
   13         charged with a misdemeanor crime for certain
   14         evaluation or assessment if a party or the court
   15         raises a concern regarding the misdemeanor defendant’s
   16         competency to proceed due to a mental disorder;
   17         requiring the tolling of speedy trial periods and the
   18         following of certain provisions if a professional
   19         certificate is issued; authorizing the court to hold
   20         an evidentiary hearing to make a certain determination
   21         by clear and convincing evidence; authorizing the
   22         court to execute certain orders to require the
   23         misdemeanor defendant to complete a mental health
   24         assessment under certain circumstances; authorizing
   25         the state attorney to consider dismissal of the
   26         charges upon a misdemeanor defendant’s successful
   27         completion of all treatment recommendations from a
   28         mental health assessment; authorizing the court to
   29         exhaust therapeutic intervention before a misdemeanor
   30         defendant is returned to jail; providing an effective
   31         date.
   32          
   33  Be It Enacted by the Legislature of the State of Florida:
   34  
   35         Section 1. Subsection (2) of section 394.658, Florida
   36  Statutes, is amended to read:
   37         394.658 Criminal Justice, Mental Health, and Substance
   38  Abuse Reinvestment Grant Program requirements.—
   39         (2)(a) As used in this subsection, the term “available
   40  resources” includes in-kind contributions from participating
   41  counties.
   42         (b) A 1-year planning grant may not be awarded unless the
   43  applicant county makes available resources in an amount equal to
   44  the total amount of the grant. A planning grant may not be used
   45  to supplant funding for existing programs. For fiscally
   46  constrained counties, the available resources may be at 50
   47  percent of the total amount of the grant, except that fiscally
   48  constrained counties that are awarded reinvestment grants to
   49  establish programs to divert misdemeanor defendants with mental
   50  disorders from jails to community-based treatment pursuant to s.
   51  916.135 may not be required to provide local matching funds.
   52         (c) A 3-year implementation or expansion grant may not be
   53  awarded unless the applicant county or consortium of counties
   54  makes available resources equal to the total amount of the
   55  grant. For fiscally constrained counties, the available
   56  resources may be at 50 percent of the total amount of the grant,
   57  except that fiscally constrained counties that are awarded
   58  reinvestment grants to establish programs to divert misdemeanor
   59  defendants with mental disorders from jails to community-based
   60  treatment pursuant to s. 916.135 may not be required to provide
   61  local matching funds. This match shall be used for expansion of
   62  services and may not supplant existing funds for services. An
   63  implementation or expansion grant must support the
   64  implementation of new services or the expansion of services and
   65  may not be used to supplant existing services.
   66         Section 2. Present subsection (4) of section 916.105,
   67  Florida Statutes, is renumbered as subsection (5), and a new
   68  subsection (4) and subsections (6) and (7) are added to that
   69  section, to read:
   70         916.105 Legislative intent.—
   71         (4)It is the intent of the Legislature that a defendant
   72  who is charged with a misdemeanor or an ordinance violation and
   73  who has a mental disorder, intellectual disability, or autism be
   74  evaluated and provided services in a community setting.
   75         (6)It is the intent of the Legislature that law
   76  enforcement agencies in this state provide law enforcement
   77  officers with crisis intervention team training.
   78         (7)It is the intent of the Legislature that all
   79  communities in this state be encouraged to apply for Criminal
   80  Justice, Mental Health, and Substance Abuse Reinvestment Grants
   81  pursuant to s. 394.656 to establish programs for defendants who
   82  are charged with misdemeanors or ordinance violations and who
   83  have mental disorders to divert these persons from jails to
   84  community-based treatment to increase public safety, improve the
   85  accessibility of treatment services, and avert increased
   86  spending on criminal justice.
   87         Section 3. Section 916.135, Florida Statutes, is created to
   88  read:
   89         916.135Misdemeanor mental health diversion and competency
   90  program.—
   91         (1)As used in this section, the term:
   92         (a)“Misdemeanor court” means the county court or any court
   93  presiding over misdemeanors or ordinance violations under the
   94  laws of this state or any of its political subdivisions.
   95         (b)“Misdemeanor defendant” means an adult who has been
   96  charged by law enforcement or the state attorney with a
   97  misdemeanor offense or an ordinance violation under the laws of
   98  this state or any of its political subdivisions.
   99         (2)Communities desiring to establish programs to divert
  100  clinically appropriate misdemeanor defendants from jails to
  101  treatment are encouraged to apply for Criminal Justice, Mental
  102  Health, and Substance Abuse Reinvestment Grants pursuant to s.
  103  394.656 for the purpose of obtaining funds to plan, implement,
  104  or expand such programs. This section provides a model process
  105  for diverting such misdemeanor defendants to treatment, but this
  106  process may be modified according to each community’s particular
  107  resources. Communities that obtain grants pursuant to s. 394.658
  108  must adhere to the processes in this section to the extent that
  109  local resources are available to do so.
  110         (3)Within 24 hours after a misdemeanor defendant is booked
  111  into a jail, the jail’s corrections or medical staff may screen
  112  the misdemeanor defendant using a standardized validated mental
  113  health screening instrument to determine if there is an
  114  indication of a mental disorder. If there is an indication of a
  115  mental disorder, the misdemeanor defendant may be promptly
  116  evaluated for involuntary commitment under the Baker Act by a
  117  qualified mental health professional. In conducting this
  118  evaluation, the qualified mental health professional may
  119  evaluate the misdemeanor defendant as though he or she were at
  120  liberty in the community and may not rely on the person’s
  121  incarcerated status to defeat a finding of imminent danger under
  122  the Baker Act criteria.
  123         (a)If the evaluation demonstrates that the misdemeanor
  124  defendant meets the criteria for involuntary examination under
  125  the Baker Act, the mental health professional may issue a
  126  professional certificate referring the misdemeanor defendant to
  127  a qualified crisis stabilization unit.
  128         (b)Upon the issuance of a professional certificate, the
  129  misdemeanor defendant must be transported within 72 hours to a
  130  qualified crisis stabilization unit for further evaluation under
  131  the Baker Act pursuant to the professional certificate. Such
  132  transport may be made with a hold for jail custody notation so
  133  that the qualified crisis stabilization unit may only release
  134  the misdemeanor defendant back to jail custody. Alternatively,
  135  the misdemeanor court may request on its transport order that
  136  the misdemeanor defendant be transported back to appear before
  137  the misdemeanor court, depending upon the outcome of the
  138  evaluation at the qualified crisis stabilization unit and the
  139  misdemeanor court’s availability of other resources and
  140  diversion programs.
  141         (c)Once at the designated receiving facility, the
  142  misdemeanor defendant may be assessed and evaluated to determine
  143  whether he or she meets the criteria for involuntary commitment
  144  or involuntary outpatient treatment under the Baker Act. If
  145  either set of criteria is met, the crisis stabilization unit
  146  staff or staff at the local mental health treatment center may
  147  forward to the misdemeanor court a discharge plan or an
  148  outpatient treatment plan, as appropriate, as soon as the plan
  149  is developed. If the misdemeanor defendant is found not to meet
  150  either set of criteria, the qualified crisis stabilization unit
  151  staff or staff at the local mental health treatment center may
  152  issue an outpatient treatment plan and forward it promptly to
  153  the misdemeanor court, or may notify the misdemeanor court that
  154  no treatment is necessary.
  155         (d)Upon receipt of a discharge plan or an outpatient
  156  treatment plan, the misdemeanor court may consider releasing the
  157  misdemeanor defendant on his or her own recognizance on the
  158  condition that he or she comply fully with the discharge plan or
  159  outpatient treatment plan.
  160         (e)If no professional certificate is issued under
  161  paragraph (a), but the misdemeanor defendant has been found to
  162  have a mental disorder, the misdemeanor court must order that
  163  the misdemeanor defendant be assessed for outpatient treatment.
  164  This assessment may be completed by a local mental health
  165  treatment center. This assessment may be completed by jail
  166  medical staff, at the jail via tele-assessment by the local
  167  mental health treatment center, by transport of the misdemeanor
  168  defendant to and from the local mental health treatment center
  169  by the sheriff or jail authorities, or by release of the
  170  misdemeanor defendant on his or her own recognizance on the
  171  conditions that the assessment be completed at the local mental
  172  health treatment center within 48 hours after his or her release
  173  and that all treatment recommendations must be followed. If the
  174  assessment results in an outpatient treatment plan, and the
  175  misdemeanor defendant has not already been released, the
  176  misdemeanor defendant may be released on his or her own
  177  recognizance on the condition that all treatment recommendations
  178  must be followed.
  179         (f)If the misdemeanor defendant is released from the
  180  custody of the jail on pretrial release at any point before
  181  completion of the process in this section, evaluation or
  182  assessment of the misdemeanor defendant under this section by a
  183  qualified mental health professional may be initiated at any
  184  time by order of the misdemeanor court at the request of either
  185  party or on the misdemeanor court’s own motion. If this process
  186  results in the creation of a discharge plan by a qualified
  187  crisis stabilization unit or an outpatient treatment plan by the
  188  local mental health treatment center, the misdemeanor court may
  189  set as a condition of the misdemeanor defendant’s continued
  190  pretrial release compliance with all terms of the discharge plan
  191  or outpatient treatment plan.
  192         (4)(a)1.At any stage of the criminal proceedings, if a
  193  party or the misdemeanor court raises a concern regarding a
  194  misdemeanor defendant’s competency to proceed due to a mental
  195  disorder, the misdemeanor court may appoint a qualified mental
  196  health professional to evaluate the misdemeanor defendant for
  197  issuance of a professional certificate under the Baker Act. If
  198  the jail has agreed to permit its medical staff to be used for
  199  this purpose, the misdemeanor court may order jail medical staff
  200  to conduct this evaluation.
  201         2.If a professional certificate is issued, the speedy
  202  trial period is tolled immediately until the misdemeanor court
  203  finds the misdemeanor defendant either to have completed all
  204  treatment that has been mandated under the Baker Act or to no
  205  longer be subject to any mandatory treatment under the Baker
  206  Act, and the parties may follow the procedures in paragraph
  207  (3)(b), adjusting such procedures according to the
  208  jurisdiction’s available resources and preferred procedures.
  209         (b)If the qualified mental health professional finds that
  210  the misdemeanor defendant does not meet the criteria for
  211  issuance of a professional certificate under the Baker Act, then
  212  the professional or another qualified community-based mental
  213  health professional may evaluate the misdemeanor defendant
  214  regarding the criteria in this paragraph, and may promptly issue
  215  a report to the misdemeanor court regarding the evaluation.
  216  Following issuance of the report, the misdemeanor court may
  217  promptly hold an evidentiary hearing to determine whether clear
  218  and convincing evidence exists to conclude that the misdemeanor
  219  defendant meets any one or more of the following criteria:
  220         1.The misdemeanor defendant is manifestly incapable of
  221  surviving alone or without the help of willing, able, and
  222  responsible family or friends, including available alternative
  223  services, and without treatment the misdemeanor defendant is
  224  likely to suffer from neglect or refuse to care for himself or
  225  herself and such neglect or refusal poses a real and present
  226  threat of substantial harm to the misdemeanor defendant’s well
  227  being.
  228         2.There is a substantial likelihood that in the near
  229  future the misdemeanor defendant will inflict serious harm on
  230  himself or herself or another person, as evidenced by recent
  231  behavior, actions, or omissions causing, attempting, or
  232  threatening such harm. Such harm includes, but is not limited
  233  to, significant property damage.
  234         3.There is a substantial likelihood that a mental disorder
  235  played a central role in the behavior leading to the misdemeanor
  236  defendant’s current arrest or there is a substantial likelihood
  237  that a mental disorder will lead to repeated future arrests for
  238  criminal behavior if the misdemeanor defendant does not receive
  239  treatment.
  240         (c)If the misdemeanor court concludes that any of the
  241  criteria in paragraph (b) are met, it must immediately enter an
  242  order tolling the speedy trial period in the case and requiring
  243  the misdemeanor defendant to appear within 48 hours at the
  244  nearest local mental health treatment center to submit to a full
  245  mental health assessment. If the misdemeanor defendant is in
  246  jail custody, the misdemeanor court may execute an order
  247  directing the sheriff or jail authorities to transport the
  248  misdemeanor defendant to and from the local mental health
  249  treatment center for purposes of having the assessment
  250  completed. Alternatively, a tele-assessment may be completed at
  251  the jail by the local mental health treatment center, or the
  252  misdemeanor court may release the misdemeanor defendant on his
  253  or her own recognizance on the condition that he or she report
  254  for the assessment within 48 hours after release.
  255         (d)The results of the assessment may immediately be
  256  relayed to the misdemeanor court, which may provide the results
  257  to counsel for the state and defense. The misdemeanor court may
  258  then enter an order setting or amending the conditions of the
  259  misdemeanor defendant’s pretrial release to compel the
  260  misdemeanor defendant to comply with all recommendations for
  261  treatment from the assessment. The misdemeanor defendant must be
  262  advised in the order that failure to comply with the order may
  263  result in the issuance of a warrant revoking the misdemeanor
  264  defendant’s pretrial release and directing the sheriff to arrest
  265  and return the misdemeanor defendant to the jail.
  266         (e)If the misdemeanor court concludes that none of the
  267  criteria in paragraph (b) are met, the misdemeanor defendant may
  268  elect to pursue a traditional competency evaluation pursuant to
  269  Rule 3.210, Florida Rules of Criminal Procedure, or may invoke
  270  any other rights or procedures available in misdemeanor and
  271  ordinance violation cases.
  272         (5)Upon the misdemeanor defendant’s successful completion
  273  of all treatment recommendations from any mental health
  274  evaluation or assessment completed pursuant to this section, the
  275  state attorney may consider dismissal of the charges. If
  276  dismissal is deemed inappropriate by the state attorney, the
  277  parties may consider referral of the misdemeanor defendant’s
  278  case to mental health court or another available mental health
  279  diversion program. Alternatively, the misdemeanor defendant may
  280  avail himself or herself of the Florida Rules of Criminal
  281  Procedure to contest the misdemeanor charges.
  282         (6)If the misdemeanor defendant fails to comply with any
  283  aspect of his or her discharge or outpatient treatment plan
  284  under this section, the misdemeanor court may exhaust
  285  therapeutic interventions aimed at improving compliance before
  286  considering returning the misdemeanor defendant to the jail.
  287         Section 4. This act shall take effect July 1, 2020.