Florida Senate - 2023                        COMMITTEE AMENDMENT
       Bill No. SB 528
       
       
       
       
       
       
                                Ì852262ÊÎ852262                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/27/2023           .                                
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       The Committee on Criminal Justice (Davis) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (7) of section 794.011, Florida
    6  Statutes, is amended to read:
    7         794.011 Sexual battery.—
    8         (7)(a) A person who is convicted of committing a sexual
    9  battery on or after October 1, 1992, is not eligible for basic
   10  gain-time under s. 944.275.
   11         (b)Notwithstanding paragraph (a), for sentences imposed
   12  for offenses committed on or after July 1, 2023, a person who is
   13  convicted of committing or attempting, soliciting, or conspiring
   14  to commit a sexual battery in violation of this section is not
   15  eligible for basic gain-time under s. 944.275.
   16         (c) This subsection may be cited as the “Junny Rios
   17  Martinez, Jr. Act of 1992.”
   18         Section 2. Paragraph (e) of subsection (4) of section
   19  944.275, Florida Statutes, is amended, and paragraph (b) of that
   20  subsection is republished, to read:
   21         944.275 Gain-time.—
   22         (4)
   23         (b) For each month in which an inmate works diligently,
   24  participates in training, uses time constructively, or otherwise
   25  engages in positive activities, the department may grant
   26  incentive gain-time in accordance with this paragraph. The rate
   27  of incentive gain-time in effect on the date the inmate
   28  committed the offense which resulted in his or her incarceration
   29  shall be the inmate’s rate of eligibility to earn incentive
   30  gain-time throughout the period of incarceration and shall not
   31  be altered by a subsequent change in the severity level of the
   32  offense for which the inmate was sentenced.
   33         1. For sentences imposed for offenses committed prior to
   34  January 1, 1994, up to 20 days of incentive gain-time may be
   35  granted. If granted, such gain-time shall be credited and
   36  applied monthly.
   37         2. For sentences imposed for offenses committed on or after
   38  January 1, 1994, and before October 1, 1995:
   39         a. For offenses ranked in offense severity levels 1 through
   40  7, under former s. 921.0012 or former s. 921.0013, up to 25 days
   41  of incentive gain-time may be granted. If granted, such gain
   42  time shall be credited and applied monthly.
   43         b. For offenses ranked in offense severity levels 8, 9, and
   44  10, under former s. 921.0012 or former s. 921.0013, up to 20
   45  days of incentive gain-time may be granted. If granted, such
   46  gain-time shall be credited and applied monthly.
   47         3. For sentences imposed for offenses committed on or after
   48  October 1, 1995, the department may grant up to 10 days per
   49  month of incentive gain-time.
   50         (e) 1. Notwithstanding subparagraph (b)3., for sentences
   51  imposed for offenses committed on or after October 1, 2014, and
   52  before July 1, 2023, the department may not grant incentive
   53  gain-time if the offense is a violation of s. 782.04(1)(a)2.c.;
   54  s. 787.01(3)(a)2. or 3.; s. 787.02(3)(a)2. or 3.; s. 794.011,
   55  excluding s. 794.011(10); s. 800.04; s. 825.1025; or s.
   56  847.0135(5).
   57         2. Notwithstanding subparagraph (b)3., for sentences
   58  imposed for offenses committed on or after July 1, 2023, the
   59  department may not grant incentive gain-time if the offense is
   60  for committing or attempting, soliciting, or conspiring to
   61  commit a violation of s. 782.04(1)(a)2.c.; s. 787.01(3)(a)2. or
   62  3.; s. 787.02(3)(a)2. or 3.; s. 794.011, excluding s.
   63  794.011(10); s. 800.04; s. 825.1025; or s. 847.0135(5).
   64         Section 3. Paragraph (e) of subsection (2) of section
   65  948.05, Florida Statutes, is amended, and paragraph (f) is added
   66  to that subsection, to read:
   67         948.05 Court to admonish or commend probationer or offender
   68  in community control; graduated incentives.—
   69         (2) The department shall implement a system of graduated
   70  incentives to promote compliance with the terms of supervision,
   71  encourage educational achievement and stable employment, and
   72  prioritize the highest levels of supervision for probationers or
   73  offenders presenting the greatest risk of recidivism.
   74         (e) A probationer or offender in community control who
   75  commits a subsequent violation of probation may forfeit any
   76  previously earned probation incentive, as determined appropriate
   77  by his or her probation officer.
   78         (f)A probationer or offender in community control who is
   79  placed under supervision for committing or attempting,
   80  soliciting, or conspiring to commit a violation of any felony
   81  offense described in s. 775.21(4)(a)1.a. or b. or s.
   82  943.0435(1)(h)1.a., or who qualifies as a violent felony
   83  offender of special concern under s. 948.06(8)(b) is not
   84  eligible for any reduction of his or her term of supervision
   85  under this section.
   86         Section 4. Section 948.30, Florida Statutes, is amended to
   87  read:
   88         948.30 Additional terms and conditions of probation or
   89  community control for certain sex offenses.—Conditions imposed
   90  pursuant to this section do not require oral pronouncement at
   91  the time of sentencing and shall be considered standard
   92  conditions of probation or community control for offenders
   93  specified in this section.
   94         (1) Effective for probationers or community controllees
   95  whose crime was committed on or after October 1, 1995, and who
   96  are placed under supervision for a violation of chapter 794, s.
   97  800.04, s. 827.071, s. 847.0135(5), or s. 847.0145, or whose
   98  crime was committed on or after July 1, 2021, and who are placed
   99  under supervision for a violation of s. 787.06(3)(b), (d), (f),
  100  or (g), or whose crime was committed on or after July 1, 2023,
  101  and who are placed under supervision for attempting, soliciting,
  102  or conspiring to commit a violation of s. 787.06(3)(b), (d),
  103  (f), or (g); chapter 794; s. 800.04; s. 827.071; s. 847.0135(5);
  104  or s. 847.0145, the court must impose the following conditions
  105  in addition to all other standard and special conditions
  106  imposed:
  107         (a) A mandatory curfew from 10 p.m. to 6 a.m. The court may
  108  designate another 8-hour period if the offender’s employment
  109  precludes the above specified time, and the alternative is
  110  recommended by the Department of Corrections. If the court
  111  determines that imposing a curfew would endanger the victim, the
  112  court may consider alternative sanctions.
  113         (b) If the victim was under the age of 18, a prohibition on
  114  living within 1,000 feet of a school, child care facility, park,
  115  playground, or other place where children regularly congregate,
  116  as prescribed by the court. The 1,000-foot distance shall be
  117  measured in a straight line from the offender’s place of
  118  residence to the nearest boundary line of the school, child care
  119  facility, park, playground, or other place where children
  120  congregate. The distance may not be measured by a pedestrian
  121  route or automobile route. A probationer or community controllee
  122  who is subject to this paragraph may not be forced to relocate
  123  and does not violate his or her probation or community control
  124  if he or she is living in a residence that meets the
  125  requirements of this paragraph and a school, child care
  126  facility, park, playground, or other place where children
  127  regularly congregate is subsequently established within 1,000
  128  feet of his or her residence.
  129         (c) Active participation in and successful completion of a
  130  sex offender treatment program with qualified practitioners
  131  specifically trained to treat sex offenders, at the
  132  probationer’s or community controllee’s own expense. If a
  133  qualified practitioner is not available within a 50-mile radius
  134  of the probationer’s or community controllee’s residence, the
  135  offender shall participate in other appropriate therapy.
  136         (d) A prohibition on any contact with the victim, directly
  137  or indirectly, including through a third person, unless approved
  138  by the victim, a qualified practitioner in the sexual offender
  139  treatment program, and the sentencing court.
  140         (e) If the victim was under the age of 18, a prohibition on
  141  contact with a child under the age of 18 except as provided in
  142  this paragraph. The court may approve supervised contact with a
  143  child under the age of 18 if the approval is based upon a
  144  recommendation for contact issued by a qualified practitioner
  145  who is basing the recommendation on a risk assessment. Further,
  146  the sex offender must be currently enrolled in or have
  147  successfully completed a sex offender therapy program. The court
  148  may not grant supervised contact with a child if the contact is
  149  not recommended by a qualified practitioner and may deny
  150  supervised contact with a child at any time. When considering
  151  whether to approve supervised contact with a child, the court
  152  must review and consider the following:
  153         1. A risk assessment completed by a qualified practitioner.
  154  The qualified practitioner must prepare a written report that
  155  must include the findings of the assessment and address each of
  156  the following components:
  157         a. The sex offender’s current legal status;
  158         b. The sex offender’s history of adult charges with
  159  apparent sexual motivation;
  160         c. The sex offender’s history of adult charges without
  161  apparent sexual motivation;
  162         d. The sex offender’s history of juvenile charges, whenever
  163  available;
  164         e. The sex offender’s offender treatment history, including
  165  consultations with the sex offender’s treating, or most recent
  166  treating, therapist;
  167         f. The sex offender’s current mental status;
  168         g. The sex offender’s mental health and substance abuse
  169  treatment history as provided by the Department of Corrections;
  170         h. The sex offender’s personal, social, educational, and
  171  work history;
  172         i. The results of current psychological testing of the sex
  173  offender if determined necessary by the qualified practitioner;
  174         j. A description of the proposed contact, including the
  175  location, frequency, duration, and supervisory arrangement;
  176         k. The child’s preference and relative comfort level with
  177  the proposed contact, when age appropriate;
  178         l. The parent’s or legal guardian’s preference regarding
  179  the proposed contact; and
  180         m. The qualified practitioner’s opinion, along with the
  181  basis for that opinion, as to whether the proposed contact would
  182  likely pose significant risk of emotional or physical harm to
  183  the child.
  184  
  185  The written report of the assessment must be given to the court;
  186         2. A recommendation made as a part of the risk assessment
  187  report as to whether supervised contact with the child should be
  188  approved;
  189         3. A written consent signed by the child’s parent or legal
  190  guardian, if the parent or legal guardian is not the sex
  191  offender, agreeing to the sex offender having supervised contact
  192  with the child after receiving full disclosure of the sex
  193  offender’s present legal status, past criminal history, and the
  194  results of the risk assessment. The court may not approve
  195  contact with the child if the parent or legal guardian refuses
  196  to give written consent for supervised contact;
  197         4. A safety plan prepared by the qualified practitioner,
  198  who provides treatment to the offender, in collaboration with
  199  the sex offender, the child’s parent or legal guardian, if the
  200  parent or legal guardian is not the sex offender, and the child,
  201  when age appropriate, which details the acceptable conditions of
  202  contact between the sex offender and the child. The safety plan
  203  must be reviewed and approved by the court; and
  204         5. Evidence that the child’s parent or legal guardian
  205  understands the need for and agrees to the safety plan and has
  206  agreed to provide, or to designate another adult to provide,
  207  constant supervision any time the child is in contact with the
  208  offender.
  209  
  210  The court may not appoint a person to conduct a risk assessment
  211  and may not accept a risk assessment from a person who has not
  212  demonstrated to the court that he or she has met the
  213  requirements of a qualified practitioner as defined in this
  214  section.
  215         (f) If the victim was under age 18, a prohibition on
  216  working for pay or as a volunteer at any place where children
  217  regularly congregate, including, but not limited to, schools,
  218  child care facilities, parks, playgrounds, pet stores,
  219  libraries, zoos, theme parks, and malls.
  220         (g) Unless otherwise indicated in the treatment plan
  221  provided by a qualified practitioner in the sexual offender
  222  treatment program, a prohibition on viewing, accessing, owning,
  223  or possessing any obscene, pornographic, or sexually stimulating
  224  visual or auditory material, including telephone, electronic
  225  media, computer programs, or computer services that are relevant
  226  to the offender’s deviant behavior pattern.
  227         (h) Effective for probationers and community controllees
  228  whose crime is committed on or after July 1, 2005, a prohibition
  229  on accessing the Internet or other computer services until a
  230  qualified practitioner in the offender’s sex offender treatment
  231  program, after a risk assessment is completed, approves and
  232  implements a safety plan for the offender’s accessing or using
  233  the Internet or other computer services.
  234         (i) A requirement that the probationer or community
  235  controllee must submit a specimen of blood or other approved
  236  biological specimen to the Department of Law Enforcement to be
  237  registered with the DNA data bank.
  238         (j) A requirement that the probationer or community
  239  controllee make restitution to the victim, as ordered by the
  240  court under s. 775.089, for all necessary medical and related
  241  professional services relating to physical, psychiatric, and
  242  psychological care.
  243         (k) Submission to a warrantless search by the community
  244  control or probation officer of the probationer’s or community
  245  controllee’s person, residence, or vehicle.
  246         (2) Effective for a probationer or community controllee
  247  whose crime was committed on or after October 1, 1997, and who
  248  is placed on community control or sex offender probation for a
  249  violation of chapter 794, s. 800.04, s. 827.071, s. 847.0135(5),
  250  or s. 847.0145, or whose crime was committed on or after July 1,
  251  2021, and who is placed on community control or sex offender
  252  probation for a violation of s. 787.06(3)(b), (d), (f), or (g),
  253  or whose crime was committed on or after July 1, 2023, and who
  254  is placed on community control or sex offender probation for
  255  attempting, soliciting, or conspiring to commit a violation of
  256  s. 787.06(3)(b), (d), (f), or (g); chapter 794; s. 800.04; s.
  257  827.071; s. 847.0135(5); or s. 847.0145, in addition to any
  258  other provision of this section, the court must impose the
  259  following conditions of probation or community control:
  260         (a) As part of a treatment program, participation at least
  261  annually in polygraph examinations to obtain information
  262  necessary for risk management and treatment and to reduce the
  263  sex offender’s denial mechanisms. A polygraph examination must
  264  be conducted by a polygrapher who is a member of a national or
  265  state polygraph association and who is certified as a
  266  postconviction sex offender polygrapher, where available, and
  267  shall be paid for by the probationer or community controllee.
  268  The results of the polygraph examination shall be provided to
  269  the probationer’s or community controllee’s probation officer
  270  and qualified practitioner and shall not be used as evidence in
  271  court to prove that a violation of community supervision has
  272  occurred.
  273         (b) Maintenance of a driving log and a prohibition against
  274  driving a motor vehicle alone without the prior approval of the
  275  supervising officer.
  276         (c) A prohibition against obtaining or using a post office
  277  box without the prior approval of the supervising officer.
  278         (d) If there was sexual contact, a submission to, at the
  279  probationer’s or community controllee’s expense, an HIV test
  280  with the results to be released to the victim or the victim’s
  281  parent or guardian.
  282         (e) Electronic monitoring when deemed necessary by the
  283  community control or probation officer and his or her
  284  supervisor, and ordered by the court at the recommendation of
  285  the Department of Corrections.
  286         (3) Effective for a probationer or community controllee
  287  whose crime was committed on or after September 1, 2005, and
  288  who:
  289         (a) Is placed on probation or community control for a
  290  violation of chapter 794;, s. 800.04(4), (5), or (6);, s.
  291  827.071;, or s. 847.0145, or is placed on probation or community
  292  control on or after July 1, 2023, for attempting, soliciting, or
  293  conspiring to commit a violation of chapter 794; s. 800.04(4),
  294  (5), or (6); s. 827.071; or s. 847.0145, and the unlawful sexual
  295  activity involved a victim 15 years of age or younger and the
  296  offender is 18 years of age or older;
  297         (b) Is designated a sexual predator pursuant to s. 775.21;
  298  or
  299         (c) Has previously been convicted of a violation of chapter
  300  794;, s. 800.04(4), (5), or (6);, s. 827.071;, or s. 847.0145
  301  and the unlawful sexual activity involved a victim 15 years of
  302  age or younger and the offender is 18 years of age or older,
  303  
  304  the court must order, in addition to any other provision of this
  305  section, mandatory electronic monitoring as a condition of the
  306  probation or community control supervision.
  307         (4) In addition to all other conditions imposed, for a
  308  probationer or community controllee who is subject to
  309  supervision for a crime that was committed on or after May 26,
  310  2010, and who has been convicted at any time of committing, or
  311  attempting, soliciting, or conspiring to commit, any of the
  312  criminal offenses listed in s. 943.0435(1)(h)1.a.(I), or a
  313  similar offense in another jurisdiction, against a victim who
  314  was under the age of 18 at the time of the offense; if the
  315  offender has not received a pardon for any felony or similar law
  316  of another jurisdiction necessary for the operation of this
  317  subsection, if a conviction of a felony or similar law of
  318  another jurisdiction necessary for the operation of this
  319  subsection has not been set aside in any postconviction
  320  proceeding, or if the offender has not been removed from the
  321  requirement to register as a sexual offender or sexual predator
  322  pursuant to s. 943.04354, the court must impose the following
  323  conditions:
  324         (a) A prohibition on visiting schools, child care
  325  facilities, parks, and playgrounds, without prior approval from
  326  the offender’s supervising officer. The court may also designate
  327  additional locations to protect a victim. The prohibition
  328  ordered under this paragraph does not prohibit the offender from
  329  visiting a school, child care facility, park, or playground for
  330  the sole purpose of attending a religious service as defined in
  331  s. 775.0861 or picking up or dropping off the offender’s
  332  children or grandchildren at a child care facility or school.
  333         (b) A prohibition on distributing candy or other items to
  334  children on Halloween; wearing a Santa Claus costume, or other
  335  costume to appeal to children, on or preceding Christmas;
  336  wearing an Easter Bunny costume, or other costume to appeal to
  337  children, on or preceding Easter; entertaining at children’s
  338  parties; or wearing a clown costume; without prior approval from
  339  the court.
  340         (5) Effective for a probationer or community controllee
  341  whose crime was committed on or after October 1, 2014, and who
  342  is placed on probation or community control for a violation of
  343  chapter 794, s. 800.04, s. 827.071, s. 847.0135(5), or s.
  344  847.0145, or whose crime was committed on or after July 1, 2023,
  345  and who is placed on probation or community control for
  346  attempting, soliciting, or conspiring to commit a violation of
  347  chapter 794, s. 800.04, s. 827.071, s. 847.0135(5), or s.
  348  847.0145, in addition to all other conditions imposed, the court
  349  must impose a condition prohibiting the probationer or community
  350  controllee from viewing, accessing, owning, or possessing any
  351  obscene, pornographic, or sexually stimulating visual or
  352  auditory material unless otherwise indicated in the treatment
  353  plan provided by a qualified practitioner in the sexual offender
  354  treatment program. Visual or auditory material includes, but is
  355  not limited to, telephone, electronic media, computer programs,
  356  and computer services.
  357         Section 5. This act shall take effect July 1, 2023.
  358  
  359  ================= T I T L E  A M E N D M E N T ================
  360  And the title is amended as follows:
  361         Delete everything before the enacting clause
  362  and insert:
  363                        A bill to be entitled                      
  364         An act relating to custody and supervision of
  365         specified offenders; amending s. 794.011, F.S.;
  366         excluding certain offenders from eligibility to
  367         receive basic gain-time; amending s. 944.275, F.S.;
  368         excluding certain offenders from eligibility to
  369         receive incentive gain-time; amending s. 948.05, F.S.;
  370         excluding certain offenders from eligibility for
  371         specified reductions to a term of supervision;
  372         amending s. 948.30, F.S.; requiring a court to impose
  373         additional conditions of supervision on specified
  374         offenders; providing an effective date.