Florida Senate - 2021                                     SB 640
       
       
        
       By Senator Powell
       
       
       
       
       
       30-00642-21                                            2021640__
    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 must either request a court to
    5         transfer and certify children of certain ages who
    6         commit specified crimes for prosecution as adults or
    7         provide written reasons to the court for not making
    8         such a request, or must 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         of a child to adult court for criminal prosecution of
   19         an indictable offense until the child’s competency has
   20         been restored, if the child has a pending competency
   21         hearing or previously has been found incompetent and
   22         has not been restored to competency by a court;
   23         providing for the tolling of certain time limits;
   24         authorizing, rather than requiring, a child who is
   25         found to have committed specified crimes to 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 s. 985.265(5), F.S.,
   30         relating to detention transfer and release, education,
   31         and adult jails, to incorporate the amendments made to
   32         ss. 985.556 and 985.557, F.S., in references thereto;
   33         reenacting s. 985.15(1), F.S., relating to filing
   34         decisions, to incorporate the amendments made to ss.
   35         985.556 and 985.557, F.S., in references thereto;
   36         reenacting s. 985.26(2)(c), F.S., relating to the
   37         length of detention, to incorporate the amendments
   38         made to ss. 985.557 and 985.56, F.S., in references
   39         thereto; providing an effective date.
   40          
   41  Be It Enacted by the Legislature of the State of Florida:
   42  
   43         Section 1. Subsections (2) and (3) of section 985.556,
   44  Florida Statutes, are amended, and subsection (1) of that
   45  section is republished, to read:
   46         985.556 Waiver of juvenile court jurisdiction; hearing.—
   47         (1) VOLUNTARY WAIVER.—The court shall transfer and certify
   48  a child’s criminal case for trial as an adult if the child is
   49  alleged to have committed a violation of law and, prior to the
   50  commencement of an adjudicatory hearing, the child, joined by a
   51  parent or, in the absence of a parent, by the guardian or
   52  guardian ad litem, demands in writing to be tried as an adult.
   53  Once a child has been transferred for criminal prosecution
   54  pursuant to a voluntary waiver hearing and has been found to
   55  have committed the presenting offense or a lesser included
   56  offense, the child shall be handled thereafter in every respect
   57  as an adult for any subsequent violation of state law, unless
   58  the court imposes juvenile sanctions under s. 985.565(4)(b).
   59         (2) INVOLUNTARY DISCRETIONARY WAIVER.—Except as provided in
   60  subsection (3), The state attorney may file a motion requesting
   61  the court to transfer the child for criminal prosecution if the
   62  child was 14 years of age or older at the time the alleged
   63  delinquent act or violation of law was committed.
   64         (3) INVOLUNTARY MANDATORY WAIVER.—
   65         (a) If the child was 14 years of age or older, and if the
   66  child has been previously adjudicated delinquent for an act
   67  classified as a felony, which adjudication was for the
   68  commission of, attempt to commit, or conspiracy to commit
   69  murder, sexual battery, armed or strong-armed robbery,
   70  carjacking, home-invasion robbery, aggravated battery,
   71  aggravated assault, or burglary with an assault or battery, and
   72  the child is currently charged with a second or subsequent
   73  violent crime against a person; or
   74         (b) If the child was 14 years of age or older at the time
   75  of commission of a fourth or subsequent alleged felony offense
   76  and the child was previously adjudicated delinquent or had
   77  adjudication withheld for or was found to have committed, or to
   78  have attempted or conspired to commit, three offenses that are
   79  felony offenses if committed by an adult, and one or more of
   80  such felony offenses involved the use or possession of a firearm
   81  or violence against a person;
   82  
   83  the state attorney shall request the court to transfer and
   84  certify the child for prosecution as an adult or shall provide
   85  written reasons to the court for not making such request, or
   86  proceed under s. 985.557(1). Upon the state attorney’s request,
   87  the court shall either enter an order transferring the case and
   88  certifying the case for trial as if the child were an adult or
   89  provide written reasons for not issuing such an order.
   90         Section 2. Section 985.557, Florida Statutes, is amended to
   91  read:
   92         985.557 Prosecuting children as adults Direct filing of an
   93  information; discretionary criteria.—
   94         (1) DISCRETIONARY PROSECUTION OF CHILDREN AS ADULTS DIRECT
   95  FILE.—
   96         (a) With respect to any child who was 14 or 15 years of age
   97  at the time the alleged offense was committed, the state
   98  attorney may file an information when in the state attorney’s
   99  judgment and discretion the public interest requires that adult
  100  sanctions be considered or imposed and when the offense charged
  101  is for the commission of, attempt to commit, or conspiracy to
  102  commit:
  103         1.Arson;
  104         2.Sexual battery;
  105         3.Robbery;
  106         4.Kidnapping;
  107         5.Aggravated child abuse;
  108         6.Aggravated assault;
  109         7.Aggravated stalking;
  110         8.Murder;
  111         9.Manslaughter;
  112         10.Unlawful throwing, placing, or discharging of a
  113  destructive device or bomb;
  114         11.Armed burglary in violation of s. 810.02(2)(b) or
  115  specified burglary of a dwelling or structure in violation of s.
  116  810.02(2)(c), or burglary with an assault or battery in
  117  violation of s. 810.02(2)(a);
  118         12.Aggravated battery;
  119         13.Any lewd or lascivious offense committed upon or in the
  120  presence of a person less than 16 years of age;
  121         14.Carrying, displaying, using, threatening, or attempting
  122  to use a weapon or firearm during the commission of a felony;
  123         15.Grand theft in violation of s. 812.014(2)(a);
  124         16.Possessing or discharging any weapon or firearm on
  125  school property in violation of s. 790.115;
  126         17.Home invasion robbery;
  127         18.Carjacking; or
  128         19.Grand theft of a motor vehicle in violation of s.
  129  812.014(2)(c)6. or grand theft of a motor vehicle valued at
  130  $20,000 or more in violation of s. 812.014(2)(b) if the child
  131  has a previous adjudication for grand theft of a motor vehicle
  132  in violation of s. 812.014(2)(c)6. or s. 812.014(2)(b).
  133         (b) With respect to any child who was 16 or 17 years of age
  134  at the time the alleged violent felony offense was committed,
  135  the state attorney may file an information when in the state
  136  attorney’s judgment and discretion the public interest requires
  137  that adult sanctions be considered or imposed. However, the
  138  state attorney may not file an information on a child charged
  139  with a misdemeanor, unless the child has had at least two
  140  previous adjudications or adjudications withheld for delinquent
  141  acts, one of which involved an offense classified as a violent
  142  felony under state law.
  143         (2) EFFECT OF PROSECUTION OF CHILDREN AS ADULTS DIRECT
  144  FILE.—
  145         (a) Once a child has been transferred for criminal
  146  prosecution pursuant to an information and has been found to
  147  have committed the presenting offense or a lesser included
  148  offense, the child shall be handled thereafter in every respect
  149  as if an adult for any subsequent violation of state law, unless
  150  the court imposes juvenile sanctions under s. 985.565.
  151         (b) When a child is transferred for criminal prosecution as
  152  an adult, the court shall immediately transfer and certify to
  153  the adult circuit court all felony cases pertaining to the
  154  child, for prosecution of the child as an adult, which have not
  155  yet resulted in a plea of guilty or nolo contendere or in which
  156  a finding of guilt has not been made. If a child is acquitted of
  157  all charged offenses or lesser included offenses contained in
  158  the original case transferred to adult court, all felony cases
  159  that were transferred to adult court as a result of this
  160  paragraph shall be subject to the same penalties to which such
  161  cases would have been subject before being transferred to adult
  162  court.
  163         (c) When a child has been transferred for criminal
  164  prosecution as an adult and has been found to have committed a
  165  violation of state law, the disposition of the case may be made
  166  under s. 985.565 and may include the enforcement of any
  167  restitution ordered in any juvenile proceeding.
  168         (3) CHARGES INCLUDED ON INFORMATION.—An information filed
  169  pursuant to this section may include all charges that are based
  170  on the same act, criminal episode, or transaction as the primary
  171  offenses.
  172         Section 3. Section 985.56, Florida Statutes, is amended to
  173  read:
  174         985.56 Indictment of a juvenile.—
  175         (1) A child 14 years of age or older of any age who is
  176  charged with a violation of state law punishable by death or by
  177  life imprisonment is subject to the jurisdiction of the court as
  178  set forth in s. 985.0301(2) unless and until an indictment on
  179  the charge is returned by the grand jury. When such indictment
  180  is returned, the petition for delinquency, if any, must be
  181  dismissed and the child must be tried and handled in every
  182  respect as an adult:
  183         (a) On the indictable offense punishable by death or by
  184  life imprisonment; and
  185         (b) On all other felonies or misdemeanors charged in the
  186  indictment which are based on the same act or transaction as the
  187  indictable offense punishable by death or by life imprisonment
  188  or on one or more acts or transactions connected with the
  189  offense punishable by death or by life imprisonment.
  190         (2) An adjudicatory hearing may not be held until 21 days
  191  after the child is taken into custody and charged with having
  192  committed an indictable offense punishable by death or by life
  193  imprisonment, unless the state attorney advises the court in
  194  writing that he or she does not intend to present the case to
  195  the grand jury, or has presented the case to the grand jury and
  196  the grand jury has not returned an indictment. If the court
  197  receives such a notice from the state attorney, or if the grand
  198  jury fails to act within the 21-day period, the court may
  199  proceed as otherwise authorized under this part.
  200         (3) Notwithstanding any other law, a child who commits an
  201  offense for which he or she may be indicted and who has a
  202  pending competency hearing in juvenile court or who previously
  203  has been found to be incompetent and has not been restored to
  204  competency by a court may not be transferred to adult court for
  205  criminal prosecution until the child’s competency is restored. A
  206  pending competency hearing or a finding of incompetency tolls
  207  the time limits in subsection (2). If the child is found to have
  208  committed the offense punishable by death or by life
  209  imprisonment, the child may shall be sentenced pursuant to s.
  210  985.565 as an adult. If the juvenile is not found to have
  211  committed the indictable offense but is found to have committed
  212  a lesser included offense or any other offense for which he or
  213  she was indicted as a part of the criminal episode, the court
  214  may sentence under s. 985.565.
  215         (4)(a) If Once a child has been indicted pursuant to this
  216  section and has been found to have committed any offense for
  217  which he or she was indicted as a part of the criminal episode,
  218  the child must shall be handled thereafter in every respect as
  219  if an adult for any subsequent violation of state law, unless
  220  the court imposes juvenile sanctions under s. 985.565.
  221         (b) If When a child has been indicted pursuant to this
  222  section, the court must shall immediately transfer and certify
  223  to the adult circuit court all felony cases pertaining to the
  224  child, for prosecution of the child as an adult, which have not
  225  yet resulted in a plea of guilty or nolo contendere or in which
  226  a finding of guilt has not been made. If the child is acquitted
  227  of all charged offenses or lesser included offenses contained in
  228  the indictment case, all felony cases that were transferred to
  229  adult court pursuant to this paragraph must shall be subject to
  230  the same penalties such cases were subject to before being
  231  transferred to adult court.
  232         Section 4. Subsection (54) of section 985.03, Florida
  233  Statutes, is amended to read:
  234         985.03 Definitions.—As used in this chapter, the term:
  235         (54) “Waiver hearing” means a hearing provided for under s.
  236  985.556(3) s. 985.556(4).
  237         Section 5. Paragraphs (a) and (b) of subsection (4) of
  238  section 985.565, Florida Statutes, are amended to read:
  239         985.565 Sentencing powers; procedures; alternatives for
  240  juveniles prosecuted as adults.—
  241         (4) SENTENCING ALTERNATIVES.—
  242         (a) Adult sanctions.—
  243         1. Cases prosecuted on indictment.—If the child is found to
  244  have committed the offense punishable by death or life
  245  imprisonment, the child shall be sentenced as an adult. If the
  246  juvenile is not found to have committed the indictable offense
  247  but is found to have committed a lesser included offense or any
  248  other offense for which he or she was indicted as a part of the
  249  criminal episode, the court may sentence as follows:
  250         a. As an adult;
  251         b. Under chapter 958; or
  252         c. As a juvenile under this section.
  253         2. Other cases.—If a child who has been transferred for
  254  criminal prosecution pursuant to information or waiver of
  255  juvenile court jurisdiction is found to have committed a
  256  violation of state law or a lesser included offense for which he
  257  or she was charged as a part of the criminal episode, the court
  258  may sentence as follows:
  259         a. As an adult;
  260         b. Under chapter 958; or
  261         c. As a juvenile under this section.
  262         3. Notwithstanding any other provision to the contrary, if
  263  the state attorney is required to file a motion to transfer and
  264  certify the juvenile for prosecution as an adult under s.
  265  985.556(3) and that motion is granted, the court must impose
  266  adult sanctions.
  267         4. Any sentence imposing adult sanctions is presumed
  268  appropriate, and the court is not required to set forth specific
  269  findings or enumerate the criteria in this subsection as any
  270  basis for its decision to impose adult sanctions.
  271         4.5. When a child has been transferred for criminal
  272  prosecution as an adult and has been found to have committed a
  273  violation of state law, the disposition of the case may include
  274  the enforcement of any restitution ordered in any juvenile
  275  proceeding.
  276         (b) Juvenile sanctions.—For juveniles transferred to adult
  277  court but who do not qualify for such transfer under s.
  278  985.556(3), the court may impose juvenile sanctions under this
  279  paragraph. If juvenile sentences are imposed, the court shall,
  280  under this paragraph, adjudge the child to have committed a
  281  delinquent act. Adjudication of delinquency may not be deemed a
  282  conviction, nor shall it operate to impose any of the civil
  283  disabilities ordinarily resulting from a conviction. The court
  284  shall impose an adult sanction or a juvenile sanction and may
  285  not sentence the child to a combination of adult and juvenile
  286  punishments. An adult sanction or a juvenile sanction may
  287  include enforcement of an order of restitution or probation
  288  previously ordered in any juvenile proceeding. However, if the
  289  court imposes a juvenile sanction and the department determines
  290  that the sanction is unsuitable for the child, the department
  291  shall return custody of the child to the sentencing court for
  292  further proceedings, including the imposition of adult
  293  sanctions. Upon adjudicating a child delinquent under subsection
  294  (1), the court may:
  295         1. Place the child in a probation program under the
  296  supervision of the department for an indeterminate period of
  297  time until the child reaches the age of 19 years or sooner if
  298  discharged by order of the court.
  299         2. Commit the child to the department for treatment in an
  300  appropriate program for children for an indeterminate period of
  301  time until the child is 21 or sooner if discharged by the
  302  department. The department shall notify the court of its intent
  303  to discharge no later than 14 days before discharge. Failure of
  304  the court to timely respond to the department’s notice shall be
  305  considered approval for discharge.
  306         3. Order disposition under ss. 985.435, 985.437, 985.439,
  307  985.441, 985.45, and 985.455 as an alternative to youthful
  308  offender or adult sentencing if the court determines not to
  309  impose youthful offender or adult sanctions.
  310  
  311  It is the intent of the Legislature that the criteria and
  312  guidelines in this subsection are mandatory and that a
  313  determination of disposition under this subsection is subject to
  314  the right of the child to appellate review under s. 985.534.
  315         Section 6. For the purpose of incorporating the amendments
  316  made by this act to sections 985.556 and 985.557, Florida
  317  Statutes, in references thereto, subsection (5) of section
  318  985.265, Florida Statutes, is reenacted to read:
  319         985.265 Detention transfer and release; education; adult
  320  jails.—
  321         (5) The court shall order the delivery of a child to a jail
  322  or other facility intended or used for the detention of adults:
  323         (a) When the child has been transferred or indicted for
  324  criminal prosecution as an adult under part X, except that the
  325  court may not order or allow a child alleged to have committed a
  326  misdemeanor who is being transferred for criminal prosecution
  327  pursuant to either s. 985.556 or s. 985.557 to be detained or
  328  held in a jail or other facility intended or used for the
  329  detention of adults; however, such child may be held temporarily
  330  in a detention facility; or
  331         (b) When a child taken into custody in this state is wanted
  332  by another jurisdiction for prosecution as an adult.
  333  
  334  The child shall be housed separately from adult inmates to
  335  prohibit a child from having regular contact with incarcerated
  336  adults, including trusties. “Regular contact” means sight and
  337  sound contact. Separation of children from adults shall permit
  338  no more than haphazard or accidental contact. The receiving jail
  339  or other facility shall contain a separate section for children
  340  and shall have an adequate staff to supervise and monitor the
  341  child’s activities at all times. Supervision and monitoring of
  342  children includes physical observation and documented checks by
  343  jail or receiving facility supervisory personnel at intervals
  344  not to exceed 10 minutes. This subsection does not prohibit
  345  placing two or more children in the same cell. Under no
  346  circumstances shall a child be placed in the same cell with an
  347  adult.
  348         Section 7. For the purpose of incorporating the amendments
  349  made by this act to sections 985.556 and 985.557, Florida
  350  Statutes, in references thereto, subsection (1) of section
  351  985.15, Florida Statutes, is reenacted to read:
  352         985.15 Filing decisions.—
  353         (1) The state attorney may in all cases take action
  354  independent of the action or lack of action of the juvenile
  355  probation officer and shall determine the action that is in the
  356  best interest of the public and the child. If the child meets
  357  the criteria requiring prosecution as an adult under s. 985.556,
  358  the state attorney shall request the court to transfer and
  359  certify the child for prosecution as an adult or shall provide
  360  written reasons to the court for not making such a request. In
  361  all other cases, the state attorney may:
  362         (a) File a petition for dependency;
  363         (b) File a petition under chapter 984;
  364         (c) File a petition for delinquency;
  365         (d) File a petition for delinquency with a motion to
  366  transfer and certify the child for prosecution as an adult;
  367         (e) File an information under s. 985.557;
  368         (f) Refer the case to a grand jury;
  369         (g) Refer the child to a diversionary, pretrial
  370  intervention, arbitration, or mediation program, or to some
  371  other treatment or care program if such program commitment is
  372  voluntarily accepted by the child or the child’s parents or
  373  legal guardian; or
  374         (h) Decline to file.
  375         Section 8. For the purpose of incorporating the amendments
  376  made by this act to sections 985.557 and 985.56, Florida
  377  Statutes, in references thereto, paragraph (c) of subsection (2)
  378  of section 985.26, Florida Statutes, is reenacted to read:
  379         985.26 Length of detention.—
  380         (2)
  381         (c) A prolific juvenile offender under s. 985.255(1)(f)
  382  shall be placed on supervised release detention care with
  383  electronic monitoring or in secure detention care under a
  384  special detention order until disposition. If secure detention
  385  care is ordered by the court, it must be authorized under this
  386  part and may not exceed:
  387         1. Twenty-one days unless an adjudicatory hearing for the
  388  case has been commenced in good faith by the court or the period
  389  is extended by the court pursuant to paragraph (b); or
  390         2. Fifteen days after the entry of an order of
  391  adjudication.
  392  
  393  As used in this paragraph, the term “disposition” means a
  394  declination to file under s. 985.15(1)(h), the entry of nolle
  395  prosequi for the charges, the filing of an indictment under s.
  396  985.56 or an information under s. 985.557, a dismissal of the
  397  case, or an order of final disposition by the court.
  398         Section 9. This act shall take effect July 1, 2021.