Florida Senate - 2022                                    SB 1766
       By Senator Rouson
       19-01100A-22                                          20221766__
    1                        A bill to be entitled                      
    2         An act relating to conditions of pretrial release;
    3         amending s. 901.15, F.S.; providing an exception to
    4         warrantless arrest; creating s. 901.1502, F.S.;
    5         requiring an officer to issue a notice to appear
    6         rather than make a custodial arrest in certain
    7         circumstances; requiring persons receiving such
    8         notices to appear to be scheduled for a court
    9         appearance within a specified time period; amending s.
   10         903.046, F.S.; specifying that criminal defendants who
   11         are not charged with felony offenses are presumed to
   12         be entitled to release without monetary bail or bail
   13         with a monetary component to the conditions of their
   14         release; requiring that such defendants be released
   15         within a specified time period; providing requirements
   16         before a court may set or modify a condition of
   17         pretrial release that includes monetary bail or bail
   18         with a monetary component; providing requirements for
   19         monetary bail or bail with a monetary component;
   20         amending s. 903.047, F.S.; requiring that all pretrial
   21         releasees be enrolled in a specified notification
   22         system; amending s. 903.0471, F.S.; requiring a court
   23         to issue an arrest order if the court finds there is
   24         probable cause to believe that a defendant on pretrial
   25         release committed a specified offense; amending s.
   26         907.041, F.S.; conforming provisions to changes made
   27         by the act; revising the factors to be considered in
   28         determining whether a defendant charged with DUI
   29         manslaughter poses a threat of harm to the community
   30         for purposes of considering pretrial detention;
   31         providing an effective date.
   33  Be It Enacted by the Legislature of the State of Florida:
   35         Section 1. Subsection (1) of section 901.15, Florida
   36  Statutes, is amended to read:
   37         901.15 When arrest by officer without warrant is lawful.—A
   38  law enforcement officer may arrest a person without a warrant
   39  when:
   40         (1) Except as provided in s. 901.1502, the person has
   41  committed a felony or misdemeanor or violated a municipal or
   42  county ordinance in the presence of the officer. An arrest for
   43  the commission of a misdemeanor or the violation of a municipal
   44  or county ordinance shall be made immediately or in fresh
   45  pursuit.
   46         Section 2. Section 901.1502, Florida Statutes, is created
   47  to read:
   48         901.1502Notice to appear in lieu of arrest for certain
   49  violations.—
   50         (1)A law enforcement officer shall issue a notice to
   51  appear in lieu of making a custodial arrest to a person accused
   52  of a traffic violation or a nonviolent second degree misdemeanor
   53  offense if the person:
   54         (a)Verifies his or her identity;
   55         (b)Poses no obvious threat to the community or any person;
   56  and
   57         (c)Has no obvious physical or mental health issues that
   58  pose a risk to his or her own safety.
   59         (2)A person who receives a notice to appear under this
   60  section shall be scheduled to appear in court within 21 days
   61  after the date the notice is issued.
   62         Section 3. Section 903.046, Florida Statutes, is amended to
   63  read:
   64         903.046 Purpose of and criteria for bail determination.—
   65         (1) The purpose of a bail determination in criminal
   66  proceedings is to ensure the appearance of the criminal
   67  defendant at subsequent proceedings and to protect the community
   68  against unreasonable danger from the criminal defendant. A
   69  criminal defendant who is not charged with a felony offense is
   70  presumed to be entitled to release without monetary bail or bail
   71  with a monetary component to the conditions of his or her
   72  release.
   73         (2) When determining whether to release a defendant on bail
   74  or other conditions, and what that bail or those conditions may
   75  be, the court shall consider:
   76         (a) The nature and circumstances of the offense charged.
   77         (b) The weight of the evidence against the defendant.
   78         (c) The defendant’s family ties, length of residence in the
   79  community, employment history, financial resources, and mental
   80  condition.
   81         (d) The defendant’s past and present conduct, including any
   82  record of convictions, previous flight to avoid prosecution, or
   83  failure to appear at court proceedings. However, any defendant
   84  who had failed to appear on the day of any required court
   85  proceeding in the case at issue, but who had later voluntarily
   86  appeared or surrendered, shall not be eligible for a
   87  recognizance bond; and any defendant who failed to appear on the
   88  day of any required court proceeding in the case at issue and
   89  who was later arrested shall not be eligible for a recognizance
   90  bond or for any form of bond which does not require a monetary
   91  undertaking or commitment equal to or greater than $2,000 or
   92  twice the value of the monetary commitment or undertaking of the
   93  original bond, whichever is greater. Notwithstanding anything in
   94  this section, the court has discretion in determining conditions
   95  of release if the defendant proves circumstances beyond his or
   96  her control for the failure to appear. This section may not be
   97  construed as imposing additional duties or obligations on a
   98  governmental entity related to monetary bonds.
   99         (e) The nature and probability of danger which the
  100  defendant’s release poses to the community.
  101         (f) The source of funds used to post bail or procure an
  102  appearance bond, particularly whether the proffered funds, real
  103  property, property, or any proposed collateral or bond premium
  104  may be linked to or derived from the crime alleged to have been
  105  committed or from any other criminal or illicit activities. The
  106  burden of establishing the noninvolvement in or nonderivation
  107  from criminal or other illicit activity of such proffered funds,
  108  real property, property, or any proposed collateral or bond
  109  premium falls upon the defendant or other person proffering them
  110  to obtain the defendant’s release.
  111         (g) Whether the defendant is already on release pending
  112  resolution of another criminal proceeding or on probation,
  113  parole, or other release pending completion of a sentence.
  114         (h) The street value of any drug or controlled substance
  115  connected to or involved in the criminal charge. It is the
  116  finding and intent of the Legislature that crimes involving
  117  drugs and other controlled substances are of serious social
  118  concern, that the flight of defendants to avoid prosecution is
  119  of similar serious social concern, and that frequently such
  120  defendants are able to post monetary bail using the proceeds of
  121  their unlawful enterprises to defeat the social utility of
  122  pretrial bail. Therefore, the courts should carefully consider
  123  the utility and necessity of substantial bail in relation to the
  124  street value of the drugs or controlled substances involved.
  125         (i) The nature and probability of intimidation and danger
  126  to victims.
  127         (j) Whether there is probable cause to believe that the
  128  defendant committed a new crime while on pretrial release.
  129         (k) Any other facts that the court considers relevant.
  130         (l) Whether the crime charged is a violation of chapter 874
  131  or alleged to be subject to enhanced punishment under chapter
  132  874 or reclassification under s. 843.22. If any such violation
  133  is charged against a defendant or if the defendant is charged
  134  with a crime that is alleged to be subject to such enhancement
  135  or reclassification, he or she is not eligible for release on
  136  bail or surety bond until the first appearance on the case in
  137  order to ensure the full participation of the prosecutor and the
  138  protection of the public.
  139         (m) Whether the defendant, other than a defendant whose
  140  only criminal charge is a misdemeanor offense under chapter 316,
  141  is required to register as a sexual offender under s. 943.0435
  142  or a sexual predator under s. 775.21; and, if so, he or she is
  143  not eligible for release on bail or surety bond until the first
  144  appearance on the case in order to ensure the full participation
  145  of the prosecutor and the protection of the public.
  146         (3)A defendant who has not been charged with a felony
  147  offense shall be released without monetary bail or bail with a
  148  monetary component to the conditions of his or her release if he
  149  or she is otherwise entitled to pretrial release under
  150  subsection (2). Such defendant shall be released within 48 hours
  151  after his or her arrest.
  152         (4)(a)Before setting or modifying a condition of pretrial
  153  release that includes monetary bail or bail with a monetary
  154  component, the court shall conduct an inquiry into the
  155  defendant’s ability to post monetary bail or bail with a
  156  monetary component. Such inquiry shall allow the prosecutor,
  157  defense counsel, and defendant the opportunity to provide the
  158  court with information pertinent to the defendant’s ability to
  159  post monetary bail or bail with a monetary component. Such
  160  information may be provided by proffer and may include
  161  statements by the defendant’s relatives or other persons who are
  162  present at the hearing and have information about the
  163  defendant’s ability to post monetary bail or bail with a
  164  monetary component. All information shall be admissible if it is
  165  relevant and reliable, regardless of whether it would be
  166  admissible under the rules of evidence applicable at a criminal
  167  trial.
  168         (b)When the court determines that monetary bail is a
  169  necessary condition of pretrial release, the court shall make
  170  the following findings and state, together with sufficient
  171  supporting facts, on the record in open court, that:
  172         1.No other conditions of pretrial release, without
  173  monetary bail, will reasonably ensure the defendant’s appearance
  174  in court.
  175         2.The amount of monetary bail is not oppressive and is
  176  considerate of the defendant’s financial resources, and the
  177  defendant has the present ability to post the amount necessary
  178  to secure his or her pretrial release on bail.
  179         3.The defendant will comply with the other conditions of
  180  pretrial release.
  181         (5)When setting bail, there shall be a presumption that
  182  any conditions of pretrial release imposed shall be nonmonetary
  183  in nature, and the court shall impose the least restrictive
  184  conditions or combination of conditions necessary to reasonably
  185  ensure the defendant’s appearance in court. Such conditions or
  186  combination of conditions shall include conditions necessary to
  187  ensure that the defendant does not pose a real and present
  188  threat to the physical safety of any person. The court shall
  189  consider the defendant’s social and economic circumstances when
  190  setting conditions of pretrial release. The court shall require
  191  another hearing if a defendant remains in jail 48 hours after
  192  being offered pretrial release on monetary bail.
  193         Section 4. Subsection (2) of section 903.047, Florida
  194  Statutes, is amended to read:
  195         903.047 Conditions of pretrial release.—
  196         (2) Upon motion by the defendant when bail is set, or upon
  197  later motion properly noticed pursuant to law, the court may
  198  modify the condition required by paragraph (1)(b) if good cause
  199  is shown and the interests of justice so require. The victim
  200  shall be permitted to be heard at any proceeding in which such
  201  modification is considered, and the state attorney shall notify
  202  the victim of the provisions of this subsection and of the
  203  pendency of any such proceeding. Each defendant released shall
  204  be enrolled in e-Notify, the state’s court event notification
  205  system, to receive notification of upcoming court events.
  206         Section 5. Section 903.0471, Florida Statutes, is amended
  207  to read:
  208         903.0471 Violation of condition of pretrial release.
  209  Notwithstanding s. 907.041, a court may, on its own motion,
  210  revoke pretrial release and order pretrial detention if the
  211  court finds probable cause to believe that the defendant
  212  committed a new crime while on pretrial release. The court shall
  213  issue an arrest order if it finds there is probable cause to
  214  believe that the defendant on pretrial release committed an
  215  offense listed in s. 775.084(1)(b)1.
  216         Section 6. Subsection (1) and paragraphs (a), (b), and (c)
  217  of subsection (4) of section 907.041, Florida Statutes, are
  218  amended to read:
  219         907.041 Pretrial detention and release.—
  220         (1) LEGISLATIVE INTENT.—It is the policy of this state that
  221  persons committing serious felony criminal offenses, posing a
  222  threat to the safety of the community or the integrity of the
  223  judicial process, or failing to appear at trial be detained upon
  224  arrest. However, persons found to meet specified criteria shall
  225  be released under certain conditions until proceedings are
  226  concluded and adjudication has been determined. The Legislature
  227  finds that this policy of pretrial detention and release will
  228  assure the detention of those persons posing a threat to society
  229  while reducing the costs for incarceration by releasing, until
  230  trial, those persons not considered a danger to the community
  231  who meet certain criteria. It is the intent of the Legislature
  232  that the primary consideration be the protection of the
  233  community from risk of physical harm to persons.
  234         (4) PRETRIAL DETENTION.—
  235         (a) As used in this subsection, “dangerous crime” means a
  236  felony violation of any of the following:
  237         1. Arson;
  238         2. Aggravated assault;
  239         3. Aggravated battery;
  240         4. Illegal use of explosives;
  241         5. Child abuse or aggravated child abuse;
  242         6. Abuse of an elderly person or disabled adult, or
  243  aggravated abuse of an elderly person or disabled adult;
  244         7. Aircraft piracy;
  245         8. Kidnapping;
  246         9. Homicide;
  247         10. Manslaughter;
  248         11. Sexual battery;
  249         12. Robbery;
  250         13. Carjacking;
  251         14. Lewd, lascivious, or indecent assault or act upon or in
  252  presence of a child under the age of 16 years;
  253         15. Sexual activity with a child, who is 12 years of age or
  254  older but less than 18 years of age, by or at solicitation of
  255  person in familial or custodial authority;
  256         16. Burglary of a dwelling;
  257         17. Stalking and aggravated stalking;
  258         18. Act of domestic violence as defined in s. 741.28;
  259         19. Home invasion robbery;
  260         20. Act of terrorism as defined in s. 775.30;
  261         21. Manufacturing any substances in violation of chapter
  262  893;
  263         22. Attempting or conspiring to commit any such crime; and
  264         23. Human trafficking.
  265         (b) A No person charged with a dangerous crime may not
  266  shall be granted nonmonetary pretrial release at a first
  267  appearance hearing; however, the court shall retain the
  268  discretion to release an accused on electronic monitoring or on
  269  recognizance bond if the findings on the record of facts and
  270  circumstances warrant such a release.
  271         (c) The court may only order pretrial detention if it finds
  272  a substantial probability, based on a defendant’s past and
  273  present patterns of behavior, the criteria in s. 903.046, and
  274  any other relevant facts, that any of the following
  275  circumstances exist:
  276         1. The defendant has previously violated conditions of
  277  release and that no further conditions of release are reasonably
  278  likely to assure the defendant’s appearance at subsequent
  279  proceedings;
  280         2. The defendant, with the intent to obstruct the judicial
  281  process, has threatened, intimidated, or injured any victim,
  282  potential witness, juror, or judicial officer, or has attempted
  283  or conspired to do so, and that no condition of release will
  284  reasonably prevent the obstruction of the judicial process;
  285         3. The defendant is charged with trafficking in controlled
  286  substances as defined by s. 893.135, that there is a substantial
  287  probability that the defendant has committed the offense, and
  288  that no conditions of release will reasonably assure the
  289  defendant’s appearance at subsequent criminal proceedings;
  290         4. The defendant is charged with DUI manslaughter, as
  291  defined by s. 316.193, and that there is a substantial
  292  probability that the defendant committed the crime and that the
  293  defendant poses a threat of harm to the community; conditions
  294  that would support a finding by the court pursuant to this
  295  subparagraph that the defendant poses a threat of harm to the
  296  community include, but are not limited to, any of the following:
  297         a. The defendant has previously been convicted of any crime
  298  under s. 316.193, or of any crime in any other state or
  299  territory of the United States that is substantially similar to
  300  any crime under s. 316.193;
  301         b.The defendant was driving with a suspended driver
  302  license when the charged crime was committed; or
  303         b.c. The defendant has previously been found guilty of, or
  304  has had adjudication of guilt withheld for, driving while the
  305  defendant’s driver license was suspended or revoked in violation
  306  of s. 322.34;
  307         5. The defendant poses the threat of harm to the community.
  308  The court may so conclude, if it finds that the defendant is
  309  presently charged with a dangerous crime, that there is a
  310  substantial probability that the defendant committed such crime,
  311  that the factual circumstances of the crime indicate a disregard
  312  for the safety of the community, and that there are no
  313  conditions of release reasonably sufficient to protect the
  314  community from the risk of physical harm to persons;
  315         6. The defendant was on probation, parole, or other release
  316  pending completion of sentence or on pretrial release for a
  317  dangerous crime at the time the current offense was committed;
  318         7. The defendant has violated one or more conditions of
  319  pretrial release or bond for the offense currently before the
  320  court and the violation, in the discretion of the court,
  321  supports a finding that no conditions of release can reasonably
  322  protect the community from risk of physical harm to persons or
  323  assure the presence of the accused at trial; or
  324         8.a. The defendant has ever been sentenced pursuant to s.
  325  775.082(9) or s. 775.084 as a prison releasee reoffender,
  326  habitual violent felony offender, three-time violent felony
  327  offender, or violent career criminal, or the state attorney
  328  files a notice seeking that the defendant be sentenced pursuant
  329  to s. 775.082(9) or s. 775.084, as a prison releasee reoffender,
  330  habitual violent felony offender, three-time violent felony
  331  offender, or violent career criminal;
  332         b. There is a substantial probability that the defendant
  333  committed the offense; and
  334         c. There are no conditions of release that can reasonably
  335  protect the community from risk of physical harm or ensure the
  336  presence of the accused at trial.
  337         Section 7. This act shall take effect July 1, 2022.