Florida Senate - 2020                                     SB 628
       
       
        
       By Senator Powell
       
       
       
       
       
       30-00513-20                                            2020628__
    1                        A bill to be entitled                      
    2         An act relating to prosecuting children as adults;
    3         amending s. 985.556, F.S.; deleting provisions under
    4         which a state attorney either must request a court to
    5         transfer and certify children of certain ages who
    6         commit specified crimes for prosecution as adults or
    7         must provide written reasons to the court for not
    8         making such a request, or proceed under certain
    9         provisions; amending s. 985.557, F.S.; revising the
   10         circumstances under which a state attorney may file an
   11         information in cases that involve children of certain
   12         ages who commit certain crimes; amending s. 985.56,
   13         F.S.; providing that children 14 years of age or
   14         older, rather than children of any age, who are
   15         charged with certain offenses are subject to the
   16         jurisdiction of the court until an indictment is
   17         returned by the grand jury; prohibiting the transfer
   18         to adult court for criminal prosecution of a child who
   19         commits an indictable offense and who has a pending
   20         competency hearing or who previously has been found
   21         incompetent and has not been restored to competency by
   22         a court until the child’s competency is restored;
   23         providing for the tolling of certain time limits;
   24         authorizing, rather than requiring, that a child who
   25         is found to have committed specified crimes be
   26         sentenced according to certain provisions; amending s.
   27         985.03, F.S.; conforming a cross-reference; amending
   28         s. 985.565, F.S.; conforming provisions to changes
   29         made by the act; reenacting ss. 985.15(1) and
   30         985.265(5), F.S., relating to filing decisions and
   31         detention transfer and release, education, and adult
   32         jails, respectively, to incorporate the amendment made
   33         to s. 985.556, F.S., in references thereto; reenacting
   34         s. 985.26(2)(c), F.S., relating to the length of
   35         detention, to incorporate the amendment to s. 985.56,
   36         F.S., in a reference thereto; providing an effective
   37         date.
   38          
   39  Be It Enacted by the Legislature of the State of Florida:
   40  
   41         Section 1. Subsections (2) and (3) of section 985.556,
   42  Florida Statutes, are amended, and subsection (1) of that
   43  section is republished, to read:
   44         985.556 Waiver of juvenile court jurisdiction; hearing.—
   45         (1) VOLUNTARY WAIVER.—The court shall transfer and certify
   46  a child’s criminal case for trial as an adult if the child is
   47  alleged to have committed a violation of law and, prior to the
   48  commencement of an adjudicatory hearing, the child, joined by a
   49  parent or, in the absence of a parent, by the guardian or
   50  guardian ad litem, demands in writing to be tried as an adult.
   51  Once a child has been transferred for criminal prosecution
   52  pursuant to a voluntary waiver hearing and has been found to
   53  have committed the presenting offense or a lesser included
   54  offense, the child shall be handled thereafter in every respect
   55  as an adult for any subsequent violation of state law, unless
   56  the court imposes juvenile sanctions under s. 985.565(4)(b).
   57         (2) INVOLUNTARY DISCRETIONARY WAIVER.—Except as provided in
   58  subsection (3), The state attorney may file a motion requesting
   59  the court to transfer the child for criminal prosecution if the
   60  child was 14 years of age or older at the time the alleged
   61  delinquent act or violation of law was committed.
   62         (3) INVOLUNTARY MANDATORY WAIVER.—
   63         (a) If the child was 14 years of age or older, and if the
   64  child has been previously adjudicated delinquent for an act
   65  classified as a felony, which adjudication was for the
   66  commission of, attempt to commit, or conspiracy to commit
   67  murder, sexual battery, armed or strong-armed robbery,
   68  carjacking, home-invasion robbery, aggravated battery,
   69  aggravated assault, or burglary with an assault or battery, and
   70  the child is currently charged with a second or subsequent
   71  violent crime against a person; or
   72         (b) If the child was 14 years of age or older at the time
   73  of commission of a fourth or subsequent alleged felony offense
   74  and the child was previously adjudicated delinquent or had
   75  adjudication withheld for or was found to have committed, or to
   76  have attempted or conspired to commit, three offenses that are
   77  felony offenses if committed by an adult, and one or more of
   78  such felony offenses involved the use or possession of a firearm
   79  or violence against a person;
   80  
   81  the state attorney shall request the court to transfer and
   82  certify the child for prosecution as an adult or shall provide
   83  written reasons to the court for not making such request, or
   84  proceed under s. 985.557(1). Upon the state attorney’s request,
   85  the court shall either enter an order transferring the case and
   86  certifying the case for trial as if the child were an adult or
   87  provide written reasons for not issuing such an order.
   88         Section 2. Section 985.557, Florida Statutes, is amended to
   89  read:
   90         985.557 Prosecuting children as adults Direct filing of an
   91  information; discretionary criteria.—
   92         (1) DISCRETIONARY PROSECUTION OF CHILDREN AS ADULTS DIRECT
   93  FILE.—
   94         (a) With respect to any child who was 14 or 15 years of age
   95  at the time the alleged offense was committed, the state
   96  attorney may file an information when in the state attorney’s
   97  judgment and discretion the public interest requires that adult
   98  sanctions be considered or imposed and when the offense charged
   99  is for the commission of, attempt to commit, or conspiracy to
  100  commit:
  101         1.Arson;
  102         2.Sexual battery;
  103         3.Robbery;
  104         4.Kidnapping;
  105         5.Aggravated child abuse;
  106         6.Aggravated assault;
  107         7.Aggravated stalking;
  108         8.Murder;
  109         9.Manslaughter;
  110         10.Unlawful throwing, placing, or discharging of a
  111  destructive device or bomb;
  112         11.Armed burglary in violation of s. 810.02(2)(b) or
  113  specified burglary of a dwelling or structure in violation of s.
  114  810.02(2)(c), or burglary with an assault or battery in
  115  violation of s. 810.02(2)(a);
  116         12.Aggravated battery;
  117         13.Any lewd or lascivious offense committed upon or in the
  118  presence of a person less than 16 years of age;
  119         14.Carrying, displaying, using, threatening, or attempting
  120  to use a weapon or firearm during the commission of a felony;
  121         15.Grand theft in violation of s. 812.014(2)(a);
  122         16.Possessing or discharging any weapon or firearm on
  123  school property in violation of s. 790.115;
  124         17.Home invasion robbery;
  125         18.Carjacking; or
  126         19.Grand theft of a motor vehicle in violation of s.
  127  812.014(2)(c)6. or grand theft of a motor vehicle valued at
  128  $20,000 or more in violation of s. 812.014(2)(b) if the child
  129  has a previous adjudication for grand theft of a motor vehicle
  130  in violation of s. 812.014(2)(c)6. or s. 812.014(2)(b).
  131         (b) With respect to any child who was 16 or 17 years of age
  132  at the time the alleged violent felony offense was committed,
  133  the state attorney may file an information when in the state
  134  attorney’s judgment and discretion the public interest requires
  135  that adult sanctions be considered or imposed. However, the
  136  state attorney may not file an information on a child charged
  137  with a misdemeanor, unless the child has had at least two
  138  previous adjudications or adjudications withheld for delinquent
  139  acts, one of which involved an offense classified as a violent
  140  felony under state law.
  141         (2) EFFECT OF PROSECUTION OF CHILDREN AS ADULTS DIRECT
  142  FILE.—
  143         (a) Once a child has been transferred for criminal
  144  prosecution pursuant to an information and has been found to
  145  have committed the presenting offense or a lesser included
  146  offense, the child shall be handled thereafter in every respect
  147  as if an adult for any subsequent violation of state law, unless
  148  the court imposes juvenile sanctions under s. 985.565.
  149         (b) When a child is transferred for criminal prosecution as
  150  an adult, the court shall immediately transfer and certify to
  151  the adult circuit court all felony cases pertaining to the
  152  child, for prosecution of the child as an adult, which have not
  153  yet resulted in a plea of guilty or nolo contendere or in which
  154  a finding of guilt has not been made. If a child is acquitted of
  155  all charged offenses or lesser included offenses contained in
  156  the original case transferred to adult court, all felony cases
  157  that were transferred to adult court as a result of this
  158  paragraph shall be subject to the same penalties to which such
  159  cases would have been subject before being transferred to adult
  160  court.
  161         (c) When a child has been transferred for criminal
  162  prosecution as an adult and has been found to have committed a
  163  violation of state law, the disposition of the case may be made
  164  under s. 985.565 and may include the enforcement of any
  165  restitution ordered in any juvenile proceeding.
  166         (3) CHARGES INCLUDED ON INFORMATION.—An information filed
  167  pursuant to this section may include all charges that are based
  168  on the same act, criminal episode, or transaction as the primary
  169  offenses.
  170         Section 3. Section 985.56, Florida Statutes, is amended to
  171  read:
  172         985.56 Indictment of a juvenile.—
  173         (1) A child 14 years of age or older of any age who is
  174  charged with a violation of state law punishable by death or by
  175  life imprisonment is subject to the jurisdiction of the court as
  176  set forth in s. 985.0301(2) unless and until an indictment on
  177  the charge is returned by the grand jury. When such indictment
  178  is returned, the petition for delinquency, if any, must be
  179  dismissed and the child must be tried and handled in every
  180  respect as an adult:
  181         (a) On the indictable offense punishable by death or by
  182  life imprisonment; and
  183         (b) On all other felonies or misdemeanors charged in the
  184  indictment which are based on the same act or transaction as the
  185  indictable offense punishable by death or by life imprisonment
  186  or on one or more acts or transactions connected with the
  187  offense punishable by death or by life imprisonment.
  188         (2) An adjudicatory hearing may not be held until 21 days
  189  after the child is taken into custody and charged with having
  190  committed an indictable offense punishable by death or by life
  191  imprisonment, unless the state attorney advises the court in
  192  writing that he or she does not intend to present the case to
  193  the grand jury, or has presented the case to the grand jury and
  194  the grand jury has not returned an indictment. If the court
  195  receives such a notice from the state attorney, or if the grand
  196  jury fails to act within the 21-day period, the court may
  197  proceed as otherwise authorized under this part.
  198         (3) Notwithstanding any other law, a child who commits an
  199  offense for which he or she may be indicted and who has a
  200  pending competency hearing in juvenile court or who previously
  201  has been found to be incompetent and has not been restored to
  202  competency by a court may not be transferred to adult court for
  203  criminal prosecution until the child’s competency is restored. A
  204  pending competency hearing or a finding of incompetency tolls
  205  the time limits in subsection (2). If the child is found to have
  206  committed the offense punishable by death or by life
  207  imprisonment, the child may shall be sentenced pursuant to s.
  208  985.565 as an adult. If the juvenile is not found to have
  209  committed the indictable offense but is found to have committed
  210  a lesser included offense or any other offense for which he or
  211  she was indicted as a part of the criminal episode, the court
  212  may sentence under s. 985.565.
  213         (4)(a) If Once a child has been indicted pursuant to this
  214  section and has been found to have committed any offense for
  215  which he or she was indicted as a part of the criminal episode,
  216  the child must shall be handled thereafter in every respect as
  217  if an adult for any subsequent violation of state law, unless
  218  the court imposes juvenile sanctions under s. 985.565.
  219         (b) If When a child has been indicted pursuant to this
  220  section, the court must shall immediately transfer and certify
  221  to the adult circuit court all felony cases pertaining to the
  222  child, for prosecution of the child as an adult, which have not
  223  yet resulted in a plea of guilty or nolo contendere or in which
  224  a finding of guilt has not been made. If the child is acquitted
  225  of all charged offenses or lesser included offenses contained in
  226  the indictment case, all felony cases that were transferred to
  227  adult court pursuant to this paragraph must shall be subject to
  228  the same penalties such cases were subject to before being
  229  transferred to adult court.
  230         Section 4. Subsection (54) of section 985.03, Florida
  231  Statutes, is amended to read:
  232         985.03 Definitions.—As used in this chapter, the term:
  233         (54) “Waiver hearing” means a hearing provided for under s.
  234  985.556(3) s. 985.556(4).
  235         Section 5. Paragraphs (a) and (b) of subsection (4) of
  236  section 985.565, Florida Statutes, are amended to read:
  237         985.565 Sentencing powers; procedures; alternatives for
  238  juveniles prosecuted as adults.—
  239         (4) SENTENCING ALTERNATIVES.—
  240         (a) Adult sanctions.—
  241         1. Cases prosecuted on indictment.—If the child is found to
  242  have committed the offense punishable by death or life
  243  imprisonment, the child shall be sentenced as an adult. If the
  244  juvenile is not found to have committed the indictable offense
  245  but is found to have committed a lesser included offense or any
  246  other offense for which he or she was indicted as a part of the
  247  criminal episode, the court may sentence as follows:
  248         a. As an adult;
  249         b. Under chapter 958; or
  250         c. As a juvenile under this section.
  251         2. Other cases.—If a child who has been transferred for
  252  criminal prosecution pursuant to information or waiver of
  253  juvenile court jurisdiction is found to have committed a
  254  violation of state law or a lesser included offense for which he
  255  or she was charged as a part of the criminal episode, the court
  256  may sentence as follows:
  257         a. As an adult;
  258         b. Under chapter 958; or
  259         c. As a juvenile under this section.
  260         3. Notwithstanding any other provision to the contrary, if
  261  the state attorney is required to file a motion to transfer and
  262  certify the juvenile for prosecution as an adult under s.
  263  985.556(3) and that motion is granted, the court must impose
  264  adult sanctions.
  265         4. Any sentence imposing adult sanctions is presumed
  266  appropriate, and the court is not required to set forth specific
  267  findings or enumerate the criteria in this subsection as any
  268  basis for its decision to impose adult sanctions.
  269         4.5. When a child has been transferred for criminal
  270  prosecution as an adult and has been found to have committed a
  271  violation of state law, the disposition of the case may include
  272  the enforcement of any restitution ordered in any juvenile
  273  proceeding.
  274         (b) Juvenile sanctions.—For juveniles transferred to adult
  275  court but who do not qualify for such transfer under s.
  276  985.556(3), the court may impose juvenile sanctions under this
  277  paragraph. If juvenile sentences are imposed, the court shall,
  278  under this paragraph, adjudge the child to have committed a
  279  delinquent act. Adjudication of delinquency may not be deemed a
  280  conviction, nor shall it operate to impose any of the civil
  281  disabilities ordinarily resulting from a conviction. The court
  282  shall impose an adult sanction or a juvenile sanction and may
  283  not sentence the child to a combination of adult and juvenile
  284  punishments. An adult sanction or a juvenile sanction may
  285  include enforcement of an order of restitution or probation
  286  previously ordered in any juvenile proceeding. However, if the
  287  court imposes a juvenile sanction and the department determines
  288  that the sanction is unsuitable for the child, the department
  289  shall return custody of the child to the sentencing court for
  290  further proceedings, including the imposition of adult
  291  sanctions. Upon adjudicating a child delinquent under subsection
  292  (1), the court may:
  293         1. Place the child in a probation program under the
  294  supervision of the department for an indeterminate period of
  295  time until the child reaches the age of 19 years or sooner if
  296  discharged by order of the court.
  297         2. Commit the child to the department for treatment in an
  298  appropriate program for children for an indeterminate period of
  299  time until the child is 21 or sooner if discharged by the
  300  department. The department shall notify the court of its intent
  301  to discharge no later than 14 days before discharge. Failure of
  302  the court to timely respond to the department’s notice shall be
  303  considered approval for discharge.
  304         3. Order disposition under ss. 985.435, 985.437, 985.439,
  305  985.441, 985.45, and 985.455 as an alternative to youthful
  306  offender or adult sentencing if the court determines not to
  307  impose youthful offender or adult sanctions.
  308  
  309  It is the intent of the Legislature that the criteria and
  310  guidelines in this subsection are mandatory and that a
  311  determination of disposition under this subsection is subject to
  312  the right of the child to appellate review under s. 985.534.
  313         Section 6. For the purpose of incorporating the amendment
  314  made by this act to section 985.556, Florida Statutes, in a
  315  reference thereto, subsection (1) of section 985.15, Florida
  316  Statutes, is reenacted to read:
  317         985.15 Filing decisions.—
  318         (1) The state attorney may in all cases take action
  319  independent of the action or lack of action of the juvenile
  320  probation officer and shall determine the action that is in the
  321  best interest of the public and the child. If the child meets
  322  the criteria requiring prosecution as an adult under s. 985.556,
  323  the state attorney shall request the court to transfer and
  324  certify the child for prosecution as an adult or shall provide
  325  written reasons to the court for not making such a request. In
  326  all other cases, the state attorney may:
  327         (a) File a petition for dependency;
  328         (b) File a petition under chapter 984;
  329         (c) File a petition for delinquency;
  330         (d) File a petition for delinquency with a motion to
  331  transfer and certify the child for prosecution as an adult;
  332         (e) File an information under s. 985.557;
  333         (f) Refer the case to a grand jury;
  334         (g) Refer the child to a diversionary, pretrial
  335  intervention, arbitration, or mediation program, or to some
  336  other treatment or care program if such program commitment is
  337  voluntarily accepted by the child or the child’s parents or
  338  legal guardian; or
  339         (h) Decline to file.
  340         Section 7. For the purpose of incorporating the amendment
  341  made by this act to section 985.556, Florida Statutes, in a
  342  reference thereto, subsection (5) of section 985.265, Florida
  343  Statutes, is reenacted to read:
  344         985.265 Detention transfer and release; education; adult
  345  jails.—
  346         (5) The court shall order the delivery of a child to a jail
  347  or other facility intended or used for the detention of adults:
  348         (a) When the child has been transferred or indicted for
  349  criminal prosecution as an adult under part X, except that the
  350  court may not order or allow a child alleged to have committed a
  351  misdemeanor who is being transferred for criminal prosecution
  352  pursuant to either s. 985.556 or s. 985.557 to be detained or
  353  held in a jail or other facility intended or used for the
  354  detention of adults; however, such child may be held temporarily
  355  in a detention facility; or
  356         (b) When a child taken into custody in this state is wanted
  357  by another jurisdiction for prosecution as an adult.
  358  
  359  The child shall be housed separately from adult inmates to
  360  prohibit a child from having regular contact with incarcerated
  361  adults, including trusties. “Regular contact” means sight and
  362  sound contact. Separation of children from adults shall permit
  363  no more than haphazard or accidental contact. The receiving jail
  364  or other facility shall contain a separate section for children
  365  and shall have an adequate staff to supervise and monitor the
  366  child’s activities at all times. Supervision and monitoring of
  367  children includes physical observation and documented checks by
  368  jail or receiving facility supervisory personnel at intervals
  369  not to exceed 10 minutes. This subsection does not prohibit
  370  placing two or more children in the same cell. Under no
  371  circumstances shall a child be placed in the same cell with an
  372  adult.
  373         Section 8. For the purpose of incorporating the amendment
  374  made by this act to section 985.56, Florida Statutes, in a
  375  reference thereto, paragraph (c) of subsection (2) of section
  376  985.26, Florida Statutes, is reenacted to read:
  377         985.26 Length of detention.—
  378         (2)
  379         (c) A prolific juvenile offender under s. 985.255(1)(f)
  380  shall be placed on supervised release detention care with
  381  electronic monitoring or in secure detention care under a
  382  special detention order until disposition. If secure detention
  383  care is ordered by the court, it must be authorized under this
  384  part and may not exceed:
  385         1. Twenty-one days unless an adjudicatory hearing for the
  386  case has been commenced in good faith by the court or the period
  387  is extended by the court pursuant to paragraph (b); or
  388         2. Fifteen days after the entry of an order of
  389  adjudication.
  390  
  391  As used in this paragraph, the term “disposition” means a
  392  declination to file under s. 985.15(1)(h), the entry of nolle
  393  prosequi for the charges, the filing of an indictment under s.
  394  985.56 or an information under s. 985.557, a dismissal of the
  395  case, or an order of final disposition by the court.
  396         Section 9. This act shall take effect July 1, 2020.