Florida Senate - 2021 SB 236
By Senator Book
32-00234-21 2021236__
1 A bill to be entitled
2 An act relating to pretrial detention; amending s.
3 907.041, F.S.; providing legislative findings;
4 requiring a court to order pretrial detention of a
5 person charged with a dangerous crime if the court
6 makes specified findings; providing an effective date.
7
8 Be It Enacted by the Legislature of the State of Florida:
9
10 Section 1. Subsection (4) of section 907.041, Florida
11 Statutes, is amended to read:
12 907.041 Pretrial detention and release.—
13 (4) PRETRIAL DETENTION.—
14 (a) As used in this subsection, “dangerous crime” means any
15 of the following:
16 1. Arson;
17 2. Aggravated assault;
18 3. Aggravated battery;
19 4. Illegal use of explosives;
20 5. Child abuse or aggravated child abuse;
21 6. Abuse of an elderly person or disabled adult, or
22 aggravated abuse of an elderly person or disabled adult;
23 7. Aircraft piracy;
24 8. Kidnapping;
25 9. Homicide;
26 10. Manslaughter;
27 11. Sexual battery;
28 12. Robbery;
29 13. Carjacking;
30 14. Lewd, lascivious, or indecent assault or act upon or in
31 presence of a child under the age of 16 years;
32 15. Sexual activity with a child, who is 12 years of age or
33 older but less than 18 years of age, by or at solicitation of
34 person in familial or custodial authority;
35 16. Burglary of a dwelling;
36 17. Stalking and aggravated stalking;
37 18. Act of domestic violence as defined in s. 741.28;
38 19. Home invasion robbery;
39 20. Act of terrorism as defined in s. 775.30;
40 21. Manufacturing any substances in violation of chapter
41 893;
42 22. Attempting or conspiring to commit any such crime; and
43 23. Human trafficking.
44 (b) No person charged with a dangerous crime shall be
45 granted nonmonetary pretrial release at a first appearance
46 hearing; however, the court shall retain the discretion to
47 release an accused on electronic monitoring or on recognizance
48 bond if the findings on the record of facts and circumstances
49 warrant such a release.
50 (c) The court may order pretrial detention if it finds a
51 substantial probability, based on a defendant’s past and present
52 patterns of behavior, the criteria in s. 903.046, and any other
53 relevant facts, that any of the following circumstances exist:
54 1. The defendant has previously violated conditions of
55 release and that no further conditions of release are reasonably
56 likely to assure the defendant’s appearance at subsequent
57 proceedings;
58 2. The defendant, with the intent to obstruct the judicial
59 process, has threatened, intimidated, or injured any victim,
60 potential witness, juror, or judicial officer, or has attempted
61 or conspired to do so, and that no condition of release will
62 reasonably prevent the obstruction of the judicial process;
63 3. The defendant is charged with trafficking in controlled
64 substances as defined by s. 893.135, that there is a substantial
65 probability that the defendant has committed the offense, and
66 that no conditions of release will reasonably assure the
67 defendant’s appearance at subsequent criminal proceedings;
68 4. The defendant is charged with DUI manslaughter, as
69 defined by s. 316.193, and that there is a substantial
70 probability that the defendant committed the crime and that the
71 defendant poses a threat of harm to the community; conditions
72 that would support a finding by the court pursuant to this
73 subparagraph that the defendant poses a threat of harm to the
74 community include, but are not limited to, any of the following:
75 a. The defendant has previously been convicted of any crime
76 under s. 316.193, or of any crime in any other state or
77 territory of the United States that is substantially similar to
78 any crime under s. 316.193;
79 b. The defendant was driving with a suspended driver
80 license when the charged crime was committed; or
81 c. The defendant has previously been found guilty of, or
82 has had adjudication of guilt withheld for, driving while the
83 defendant’s driver license was suspended or revoked in violation
84 of s. 322.34;
85 5. The defendant poses the threat of harm to the community.
86 The court may so conclude, if it finds that the defendant is
87 presently charged with a dangerous crime, that there is a
88 substantial probability that the defendant committed such crime,
89 that the factual circumstances of the crime indicate a disregard
90 for the safety of the community, and that there are no
91 conditions of release reasonably sufficient to protect the
92 community from the risk of physical harm to persons;
93 6. The defendant was on probation, parole, or other release
94 pending completion of sentence or on pretrial release for a
95 dangerous crime at the time the current offense was committed;
96 7. The defendant has violated one or more conditions of
97 pretrial release or bond for the offense currently before the
98 court and the violation, in the discretion of the court,
99 supports a finding that no conditions of release can reasonably
100 protect the community from risk of physical harm to persons or
101 assure the presence of the accused at trial; or
102 8.a. The defendant has ever been sentenced pursuant to s.
103 775.082(9) or s. 775.084 as a prison releasee reoffender,
104 habitual violent felony offender, three-time violent felony
105 offender, or violent career criminal, or the state attorney
106 files a notice seeking that the defendant be sentenced pursuant
107 to s. 775.082(9) or s. 775.084, as a prison releasee reoffender,
108 habitual violent felony offender, three-time violent felony
109 offender, or violent career criminal;
110 b. There is a substantial probability that the defendant
111 committed the offense; and
112 c. There are no conditions of release that can reasonably
113 protect the community from risk of physical harm or ensure the
114 presence of the accused at trial.
115 (d) When a person charged with a crime for which pretrial
116 detention could be ordered is arrested, the arresting agency
117 shall promptly notify the state attorney of the arrest and shall
118 provide the state attorney with such information as the
119 arresting agency has obtained relative to:
120 1. The nature and circumstances of the offense charged;
121 2. The nature of any physical evidence seized and the
122 contents of any statements obtained from the defendant or any
123 witness;
124 3. The defendant’s family ties, residence, employment,
125 financial condition, and mental condition; and
126 4. The defendant’s past conduct and present conduct,
127 including any record of convictions, previous flight to avoid
128 prosecution, or failure to appear at court proceedings.
129 (e) When a person charged with a crime for which pretrial
130 detention could be ordered is arrested, the arresting agency may
131 detain such defendant, prior to the filing by the state attorney
132 of a motion seeking pretrial detention, for a period not to
133 exceed 24 hours.
134 (f) The pretrial detention hearing shall be held within 5
135 days of the filing by the state attorney of a complaint to seek
136 pretrial detention. The defendant may request a continuance. No
137 continuance shall be for longer than 5 days unless there are
138 extenuating circumstances. The defendant may be detained pending
139 the hearing. The state attorney shall be entitled to one
140 continuance for good cause.
141 (g) The state attorney has the burden of showing the need
142 for pretrial detention.
143 (h) The defendant is entitled to be represented by counsel,
144 to present witnesses and evidence, and to cross-examine
145 witnesses. The court may admit relevant evidence without
146 complying with the rules of evidence, but evidence secured in
147 violation of the United States Constitution or the Constitution
148 of the State of Florida shall not be admissible. No testimony by
149 the defendant shall be admissible to prove guilt at any other
150 judicial proceeding, but such testimony may be admitted in an
151 action for perjury, based upon the defendant’s statements made
152 at the pretrial detention hearing, or for impeachment.
153 (i) The pretrial detention order of the court shall be
154 based solely upon evidence produced at the hearing and shall
155 contain findings of fact and conclusions of law to support it.
156 The order shall be made either in writing or orally on the
157 record. The court shall render its findings within 24 hours of
158 the pretrial detention hearing.
159 (j) A defendant convicted at trial following the issuance
160 of a pretrial detention order shall have credited to his or her
161 sentence, if imprisonment is imposed, the time the defendant was
162 held under the order, pursuant to s. 921.161.
163 (k) The defendant shall be entitled to dissolution of the
164 pretrial detention order whenever the court finds that a
165 subsequent event has eliminated the basis for detention.
166 (l) The Legislature finds that a person who manufactures
167 any substances in violation of chapter 893 poses a threat of
168 harm to the community and that the factual circumstances of such
169 a crime indicate a disregard for the safety of the community.
170 The court shall order pretrial detention if the court finds that
171 there is a substantial probability that a defendant charged with
172 manufacturing any substances in violation of chapter 893
173 committed such a crime and if the court finds that there are no
174 conditions of release reasonably sufficient to protect the
175 community from the risk of physical harm to persons.
176 (m) The Legislature finds that a defendant charged with a
177 dangerous crime who has been previously convicted of such a
178 crime poses a threat of harm to the community and that the
179 factual circumstances of such crimes indicate a disregard for
180 the safety of the community. The court shall order pretrial
181 detention if the court finds that there is a substantial
182 probability that a defendant charged with a dangerous crime
183 committed such a crime and if the court finds that there are no
184 conditions of release reasonably sufficient to protect the
185 community from the risk of physical harm to persons.
186 Section 2. This act shall take effect October 1, 2021.