Florida Senate - 2021                              CS for SB 640
       
       
        
       By the Committee on Criminal Justice; and Senators Powell and
       Farmer
       
       
       
       
       591-02932A-21                                          2021640c1
    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         985.565, F.S.; authorizing, rather than requiring, a
   28         child to be sentenced as an adult if the child is
   29         found to have committed an offense punishable by death
   30         or life imprisonment; conforming provisions to changes
   31         made by the act; amending s. 985.03, F.S.; conforming
   32         a cross-reference; reenacting s. 985.265(5), F.S.,
   33         relating to detention transfer and release, education,
   34         and adult jails, to incorporate the amendments made to
   35         ss. 985.556 and 985.557, F.S., in references thereto;
   36         reenacting s. 985.15(1), F.S., relating to filing
   37         decisions, to incorporate the amendments made to ss.
   38         985.556 and 985.557, F.S., in references thereto;
   39         reenacting s. 985.26(2)(c), F.S., relating to the
   40         length of detention, to incorporate the amendments
   41         made to ss. 985.557 and 985.56, F.S., in references
   42         thereto; providing an effective date.
   43          
   44  Be It Enacted by the Legislature of the State of Florida:
   45  
   46         Section 1. Subsections (2) and (3) of section 985.556,
   47  Florida Statutes, are amended, and subsection (1) of that
   48  section is republished, to read:
   49         985.556 Waiver of juvenile court jurisdiction; hearing.—
   50         (1) VOLUNTARY WAIVER.—The court shall transfer and certify
   51  a child’s criminal case for trial as an adult if the child is
   52  alleged to have committed a violation of law and, prior to the
   53  commencement of an adjudicatory hearing, the child, joined by a
   54  parent or, in the absence of a parent, by the guardian or
   55  guardian ad litem, demands in writing to be tried as an adult.
   56  Once a child has been transferred for criminal prosecution
   57  pursuant to a voluntary waiver hearing and has been found to
   58  have committed the presenting offense or a lesser included
   59  offense, the child shall be handled thereafter in every respect
   60  as an adult for any subsequent violation of state law, unless
   61  the court imposes juvenile sanctions under s. 985.565(4)(b).
   62         (2) INVOLUNTARY DISCRETIONARY WAIVER.—Except as provided in
   63  subsection (3), The state attorney may file a motion requesting
   64  the court to transfer the child for criminal prosecution if the
   65  child was 14 years of age or older at the time the alleged
   66  delinquent act or violation of law was committed.
   67         (3) INVOLUNTARY MANDATORY WAIVER.—
   68         (a) If the child was 14 years of age or older, and if the
   69  child has been previously adjudicated delinquent for an act
   70  classified as a felony, which adjudication was for the
   71  commission of, attempt to commit, or conspiracy to commit
   72  murder, sexual battery, armed or strong-armed robbery,
   73  carjacking, home-invasion robbery, aggravated battery,
   74  aggravated assault, or burglary with an assault or battery, and
   75  the child is currently charged with a second or subsequent
   76  violent crime against a person; or
   77         (b) If the child was 14 years of age or older at the time
   78  of commission of a fourth or subsequent alleged felony offense
   79  and the child was previously adjudicated delinquent or had
   80  adjudication withheld for or was found to have committed, or to
   81  have attempted or conspired to commit, three offenses that are
   82  felony offenses if committed by an adult, and one or more of
   83  such felony offenses involved the use or possession of a firearm
   84  or violence against a person;
   85  
   86  the state attorney shall request the court to transfer and
   87  certify the child for prosecution as an adult or shall provide
   88  written reasons to the court for not making such request, or
   89  proceed under s. 985.557(1). Upon the state attorney’s request,
   90  the court shall either enter an order transferring the case and
   91  certifying the case for trial as if the child were an adult or
   92  provide written reasons for not issuing such an order.
   93         Section 2. Section 985.557, Florida Statutes, is amended to
   94  read:
   95         985.557 Prosecuting children as adults Direct filing of an
   96  information; discretionary criteria.—
   97         (1) DISCRETIONARY PROSECUTION OF CHILDREN AS ADULTS DIRECT
   98  FILE.—
   99         (a) With respect to any child who was 14 or 15 years of age
  100  at the time the alleged offense was committed, the state
  101  attorney may file an information when in the state attorney’s
  102  judgment and discretion the public interest requires that adult
  103  sanctions be considered or imposed and when the offense charged
  104  is for the commission of, attempt to commit, or conspiracy to
  105  commit:
  106         1.Arson;
  107         2.Sexual battery;
  108         3.Robbery;
  109         4.Kidnapping;
  110         5.Aggravated child abuse;
  111         6.Aggravated assault;
  112         7.Aggravated stalking;
  113         8.Murder;
  114         9.Manslaughter;
  115         10.Unlawful throwing, placing, or discharging of a
  116  destructive device or bomb;
  117         11.Armed burglary in violation of s. 810.02(2)(b) or
  118  specified burglary of a dwelling or structure in violation of s.
  119  810.02(2)(c), or burglary with an assault or battery in
  120  violation of s. 810.02(2)(a);
  121         12.Aggravated battery;
  122         13.Any lewd or lascivious offense committed upon or in the
  123  presence of a person less than 16 years of age;
  124         14.Carrying, displaying, using, threatening, or attempting
  125  to use a weapon or firearm during the commission of a felony;
  126         15.Grand theft in violation of s. 812.014(2)(a);
  127         16.Possessing or discharging any weapon or firearm on
  128  school property in violation of s. 790.115;
  129         17.Home invasion robbery;
  130         18.Carjacking; or
  131         19.Grand theft of a motor vehicle in violation of s.
  132  812.014(2)(c)6. or grand theft of a motor vehicle valued at
  133  $20,000 or more in violation of s. 812.014(2)(b) if the child
  134  has a previous adjudication for grand theft of a motor vehicle
  135  in violation of s. 812.014(2)(c)6. or s. 812.014(2)(b).
  136         (b) With respect to any child who was 16 or 17 years of age
  137  at the time the alleged forcible felony, as defined in s.
  138  776.08, offense was committed, the state attorney may file an
  139  information when in the state attorney’s judgment and discretion
  140  the public interest requires that adult sanctions be considered
  141  or imposed. However, the state attorney may not file an
  142  information on a child charged with a misdemeanor, unless the
  143  child has had at least two previous adjudications or
  144  adjudications withheld for delinquent acts, one of which
  145  involved an offense classified as a forcible felony under state
  146  law.
  147         (2) EFFECT OF PROSECUTION OF CHILDREN AS ADULTS DIRECT
  148  FILE.—
  149         (a) Once a child has been transferred for criminal
  150  prosecution pursuant to an information and has been found to
  151  have committed the presenting offense or a lesser included
  152  offense, the child shall be handled thereafter in every respect
  153  as if an adult for any subsequent violation of state law, unless
  154  the court imposes juvenile sanctions under s. 985.565.
  155         (b) When a child is transferred for criminal prosecution as
  156  an adult, the court shall immediately transfer and certify to
  157  the adult circuit court all felony cases pertaining to the
  158  child, for prosecution of the child as an adult, which have not
  159  yet resulted in a plea of guilty or nolo contendere or in which
  160  a finding of guilt has not been made. If a child is acquitted of
  161  all charged offenses or lesser included offenses contained in
  162  the original case transferred to adult court, all felony cases
  163  that were transferred to adult court as a result of this
  164  paragraph shall be subject to the same penalties to which such
  165  cases would have been subject before being transferred to adult
  166  court.
  167         (c) When a child has been transferred for criminal
  168  prosecution as an adult and has been found to have committed a
  169  violation of state law, the disposition of the case may be made
  170  under s. 985.565 and may include the enforcement of any
  171  restitution ordered in any juvenile proceeding.
  172         (3) CHARGES INCLUDED ON INFORMATION.—An information filed
  173  pursuant to this section may include all charges that are based
  174  on the same act, criminal episode, or transaction as the primary
  175  offenses.
  176         Section 3. Section 985.56, Florida Statutes, is amended to
  177  read:
  178         985.56 Indictment of a juvenile.—
  179         (1) A child 14 years of age or older of any age who is
  180  charged with a violation of state law punishable by death or by
  181  life imprisonment is subject to the jurisdiction of the court as
  182  set forth in s. 985.0301(2) unless and until an indictment on
  183  the charge is returned by the grand jury. When such indictment
  184  is returned, the petition for delinquency, if any, must be
  185  dismissed and the child must be tried and handled in every
  186  respect as an adult:
  187         (a) On the indictable offense punishable by death or by
  188  life imprisonment; and
  189         (b) On all other felonies or misdemeanors charged in the
  190  indictment which are based on the same act or transaction as the
  191  indictable offense punishable by death or by life imprisonment
  192  or on one or more acts or transactions connected with the
  193  offense punishable by death or by life imprisonment.
  194         (2) An adjudicatory hearing may not be held until 21 days
  195  after the child is taken into custody and charged with having
  196  committed an indictable offense punishable by death or by life
  197  imprisonment, unless the state attorney advises the court in
  198  writing that he or she does not intend to present the case to
  199  the grand jury, or has presented the case to the grand jury and
  200  the grand jury has not returned an indictment. If the court
  201  receives such a notice from the state attorney, or if the grand
  202  jury fails to act within the 21-day period, the court may
  203  proceed as otherwise authorized under this part.
  204         (3) Notwithstanding any other law, a child who commits an
  205  offense for which he or she may be indicted and who has a
  206  pending competency hearing in juvenile court or who previously
  207  has been found to be incompetent and has not been restored to
  208  competency by a court may not be transferred to adult court for
  209  criminal prosecution until the child’s competency is restored. A
  210  pending competency hearing or a finding of incompetency tolls
  211  the time limits in subsection (2). If the child is found to have
  212  committed the offense punishable by death or by life
  213  imprisonment, the child may shall be sentenced pursuant to s.
  214  985.565 as an adult. If the juvenile is not found to have
  215  committed the indictable offense but is found to have committed
  216  a lesser included offense or any other offense for which he or
  217  she was indicted as a part of the criminal episode, the court
  218  may sentence under s. 985.565.
  219         (4)(a) If Once a child has been indicted pursuant to this
  220  section and has been found to have committed any offense for
  221  which he or she was indicted as a part of the criminal episode,
  222  the child must shall be handled thereafter in every respect as
  223  if an adult for any subsequent violation of state law, unless
  224  the court imposes juvenile sanctions under s. 985.565.
  225         (b) If When a child has been indicted pursuant to this
  226  section, the court must shall immediately transfer and certify
  227  to the adult circuit court all felony cases pertaining to the
  228  child, for prosecution of the child as an adult, which have not
  229  yet resulted in a plea of guilty or nolo contendere or in which
  230  a finding of guilt has not been made. If the child is acquitted
  231  of all charged offenses or lesser included offenses contained in
  232  the indictment case, all felony cases that were transferred to
  233  adult court pursuant to this paragraph must shall be subject to
  234  the same penalties such cases were subject to before being
  235  transferred to adult court.
  236         Section 4. Paragraphs (a) and (b) of subsection (4) of
  237  section 985.565, Florida Statutes, are amended to read:
  238         985.565 Sentencing powers; procedures; alternatives for
  239  juveniles prosecuted as adults.—
  240         (4) SENTENCING ALTERNATIVES.—
  241         (a) Adult sanctions.—
  242         1. Cases prosecuted on indictment.—If the child is found to
  243  have committed the offense punishable by death or life
  244  imprisonment, the child may shall be sentenced as an adult. If
  245  the juvenile is not found to have committed the indictable
  246  offense but is found to have committed a lesser included offense
  247  or any other offense for which he or she was indicted as a part
  248  of the criminal episode, the court may sentence as follows:
  249         a. As an adult;
  250         b. Under chapter 958; or
  251         c. As a juvenile under this section.
  252         2. Other cases.—If a child who has been transferred for
  253  criminal prosecution pursuant to information or waiver of
  254  juvenile court jurisdiction is found to have committed a
  255  violation of state law or a lesser included offense for which he
  256  or she was charged as a part of the criminal episode, the court
  257  may sentence as follows:
  258         a. As an adult;
  259         b. Under chapter 958; or
  260         c. As a juvenile under this section.
  261         3. Notwithstanding any other provision to the contrary, if
  262  the state attorney is required to file a motion to transfer and
  263  certify the juvenile for prosecution as an adult under s.
  264  985.556(3) and that motion is granted, the court must impose
  265  adult sanctions.
  266         4. Any sentence imposing adult sanctions is presumed
  267  appropriate, and the court is not required to set forth specific
  268  findings or enumerate the criteria in this subsection as any
  269  basis for its decision to impose adult sanctions.
  270         4.5. When a child has been transferred for criminal
  271  prosecution as an adult and has been found to have committed a
  272  violation of state law, the disposition of the case may include
  273  the enforcement of any restitution ordered in any juvenile
  274  proceeding.
  275         (b) Juvenile sanctions.—For juveniles transferred to adult
  276  court but who do not qualify for such transfer under s.
  277  985.556(3), the court may impose juvenile sanctions under this
  278  paragraph. If juvenile sentences are imposed, the court shall,
  279  under this paragraph, adjudge the child to have committed a
  280  delinquent act. Adjudication of delinquency may not be deemed a
  281  conviction, nor shall it operate to impose any of the civil
  282  disabilities ordinarily resulting from a conviction. The court
  283  shall impose an adult sanction or a juvenile sanction and may
  284  not sentence the child to a combination of adult and juvenile
  285  punishments. An adult sanction or a juvenile sanction may
  286  include enforcement of an order of restitution or probation
  287  previously ordered in any juvenile proceeding. However, if the
  288  court imposes a juvenile sanction and the department determines
  289  that the sanction is unsuitable for the child, the department
  290  shall return custody of the child to the sentencing court for
  291  further proceedings, including the imposition of adult
  292  sanctions. Upon adjudicating a child delinquent under subsection
  293  (1), the court may:
  294         1. Place the child in a probation program under the
  295  supervision of the department for an indeterminate period of
  296  time until the child reaches the age of 19 years or sooner if
  297  discharged by order of the court.
  298         2. Commit the child to the department for treatment in an
  299  appropriate program for children for an indeterminate period of
  300  time until the child is 21 or sooner if discharged by the
  301  department. The department shall notify the court of its intent
  302  to discharge no later than 14 days before discharge. Failure of
  303  the court to timely respond to the department’s notice shall be
  304  considered approval for discharge.
  305         3. Order disposition under ss. 985.435, 985.437, 985.439,
  306  985.441, 985.45, and 985.455 as an alternative to youthful
  307  offender or adult sentencing if the court determines not to
  308  impose youthful offender or adult sanctions.
  309  
  310  It is the intent of the Legislature that the criteria and
  311  guidelines in this subsection are mandatory and that a
  312  determination of disposition under this subsection is subject to
  313  the right of the child to appellate review under s. 985.534.
  314         Section 5. Subsection (54) of section 985.03, Florida
  315  Statutes, is amended to read:
  316         985.03 Definitions.—As used in this chapter, the term:
  317         (54) “Waiver hearing” means a hearing provided for under s.
  318  985.556(3) s. 985.556(4).
  319         Section 6. For the purpose of incorporating the amendments
  320  made by this act to sections 985.556 and 985.557, Florida
  321  Statutes, in references thereto, subsection (5) of section
  322  985.265, Florida Statutes, is reenacted to read:
  323         985.265 Detention transfer and release; education; adult
  324  jails.—
  325         (5) The court shall order the delivery of a child to a jail
  326  or other facility intended or used for the detention of adults:
  327         (a) When the child has been transferred or indicted for
  328  criminal prosecution as an adult under part X, except that the
  329  court may not order or allow a child alleged to have committed a
  330  misdemeanor who is being transferred for criminal prosecution
  331  pursuant to either s. 985.556 or s. 985.557 to be detained or
  332  held in a jail or other facility intended or used for the
  333  detention of adults; however, such child may be held temporarily
  334  in a detention facility; or
  335         (b) When a child taken into custody in this state is wanted
  336  by another jurisdiction for prosecution as an adult.
  337  
  338  The child shall be housed separately from adult inmates to
  339  prohibit a child from having regular contact with incarcerated
  340  adults, including trusties. “Regular contact” means sight and
  341  sound contact. Separation of children from adults shall permit
  342  no more than haphazard or accidental contact. The receiving jail
  343  or other facility shall contain a separate section for children
  344  and shall have an adequate staff to supervise and monitor the
  345  child’s activities at all times. Supervision and monitoring of
  346  children includes physical observation and documented checks by
  347  jail or receiving facility supervisory personnel at intervals
  348  not to exceed 10 minutes. This subsection does not prohibit
  349  placing two or more children in the same cell. Under no
  350  circumstances shall a child be placed in the same cell with an
  351  adult.
  352         Section 7. For the purpose of incorporating the amendments
  353  made by this act to sections 985.556 and 985.557, Florida
  354  Statutes, in references thereto, subsection (1) of section
  355  985.15, Florida Statutes, is reenacted to read:
  356         985.15 Filing decisions.—
  357         (1) The state attorney may in all cases take action
  358  independent of the action or lack of action of the juvenile
  359  probation officer and shall determine the action that is in the
  360  best interest of the public and the child. If the child meets
  361  the criteria requiring prosecution as an adult under s. 985.556,
  362  the state attorney shall request the court to transfer and
  363  certify the child for prosecution as an adult or shall provide
  364  written reasons to the court for not making such a request. In
  365  all other cases, the state attorney may:
  366         (a) File a petition for dependency;
  367         (b) File a petition under chapter 984;
  368         (c) File a petition for delinquency;
  369         (d) File a petition for delinquency with a motion to
  370  transfer and certify the child for prosecution as an adult;
  371         (e) File an information under s. 985.557;
  372         (f) Refer the case to a grand jury;
  373         (g) Refer the child to a diversionary, pretrial
  374  intervention, arbitration, or mediation program, or to some
  375  other treatment or care program if such program commitment is
  376  voluntarily accepted by the child or the child’s parents or
  377  legal guardian; or
  378         (h) Decline to file.
  379         Section 8. For the purpose of incorporating the amendments
  380  made by this act to sections 985.557 and 985.56, Florida
  381  Statutes, in references thereto, paragraph (c) of subsection (2)
  382  of section 985.26, Florida Statutes, is reenacted to read:
  383         985.26 Length of detention.—
  384         (2)
  385         (c) A prolific juvenile offender under s. 985.255(1)(f)
  386  shall be placed on supervised release detention care with
  387  electronic monitoring or in secure detention care under a
  388  special detention order until disposition. If secure detention
  389  care is ordered by the court, it must be authorized under this
  390  part and may not exceed:
  391         1. Twenty-one days unless an adjudicatory hearing for the
  392  case has been commenced in good faith by the court or the period
  393  is extended by the court pursuant to paragraph (b); or
  394         2. Fifteen days after the entry of an order of
  395  adjudication.
  396  
  397  As used in this paragraph, the term “disposition” means a
  398  declination to file under s. 985.15(1)(h), the entry of nolle
  399  prosequi for the charges, the filing of an indictment under s.
  400  985.56 or an information under s. 985.557, a dismissal of the
  401  case, or an order of final disposition by the court.
  402         Section 9. This act shall take effect July 1, 2021.