Florida Senate - 2009 SB 1586
By Senator Wise
5-01499-09 20091586__
1 A bill to be entitled
2 An act relating to state attorneys; amending s.
3 27.366, F.S.; deleting a provision that requires each
4 state attorney to report why a case-qualified
5 defendant did not receive the mandatory minimum prison
6 sentence in cases involving the possession or use of a
7 weapon; amending s. 775.082, F.S.; deleting a
8 provision that requires each state attorney to report
9 why a case-qualified defendant did not receive the
10 mandatory minimum prison sentence in cases involving
11 certain specified offenses; repealing s. 775.08401,
12 F.S., relating to criteria to be used when state
13 attorneys decide to pursue habitual felony offenders
14 or habitual violent felony offenders; repealing s.
15 775.087(5), relating to a provision that requires each
16 state attorney to report why a case-qualified
17 defendant did not receive the mandatory minimum prison
18 sentence in cases involving certain specified
19 offenses; amending s. 903.286, F.S.; requiring the
20 clerk of the court to withhold sufficient funds to pay
21 any unpaid costs of prosecution from the return of a
22 cash bond posted on behalf of a criminal defendant by
23 a person other than a bail bond agent; amending s.
24 938.27, F.S.; providing that persons whose cases are
25 disposed of under any diversionary alternative are
26 liable for payment of the costs of prosecution;
27 deleting provisions regarding the burden of
28 establishing financial resources of the defendant;
29 requiring the clerk of court to separately record each
30 assessment and payment of costs of prosecution;
31 requiring the clerk to prepare a monthly report to the
32 state attorney's office of the recorded assessments
33 and payments; amending s. 943.0585, F.S.; requiring a
34 person to remit a processing fee to the state
35 attorney’s office in order to receive a certificate of
36 eligibility for expunction of a criminal history
37 record; amending s. 943.059, F.S.; requiring a person
38 to remit a processing fee to the state attorney’s
39 office in order to receive a certificate of
40 eligibility for sealing a criminal history record;
41 repealing s. 985.557(4), F.S., relating to direct-file
42 policies and guidelines for juveniles; amending s.
43 775.0843, F.S.; conforming a cross-reference;
44 providing an effective date.
45
46 Be It Enacted by the Legislature of the State of Florida:
47
48 Section 1. Section 27.366, Florida Statutes, is amended to
49 read:
50 27.366 Legislative intent and policy in cases meeting
51 criteria of s. 775.087(2) and (3); report.—
52 (1) It is the intent of the Legislature that convicted
53 criminal offenders who meet the criteria in s. 775.087(2) and
54 (3) be sentenced to the minimum mandatory prison terms provided
55 herein. It is the intent of the Legislature to establish zero
56 tolerance of criminals who use, threaten to use, or avail
57 themselves of firearms in order to commit crimes and thereby
58 demonstrate their lack of value for human life. It is also the
59 intent of the Legislature that prosecutors should appropriately
60 exercise their discretion in those cases in which the offenders'
61 possession of the firearm is incidental to the commission of a
62 crime and not used in furtherance of the crime, used in order to
63 commit the crime, or used in preparation to commit the crime.
64 For every case in which the offender meets the criteria in this
65 act and does not receive the mandatory minimum prison sentence,
66 the state attorney must explain the sentencing deviation in
67 writing and place such explanation in the case file maintained
68 by the state attorney. On a quarterly basis, each state attorney
69 shall submit copies of deviation memoranda regarding offenses
70 committed on or after the effective date of this act to the
71 President of the Florida Prosecuting Attorneys Association, Inc.
72 The association must maintain such information and make such
73 information available to the public upon request for at least a
74 10-year period.
75 (2) Effective July 1, 2000, each state attorney shall
76 annually report to the Speaker of the House of Representatives,
77 the President of the Senate, and the Executive Office of the
78 Governor regarding the prosecution and sentencing of offenders
79 who met the criteria in s. 775.087(2) and (3). The report must
80 categorize the defendants by age, gender, race, and ethnicity.
81 Cases in which a final disposition has not yet been reached
82 shall be reported in a subsequent annual report.
83 Section 2. Paragraph (d) of subsection (9) of section
84 775.082, Florida Statutes, is amended to read:
85 775.082 Penalties; applicability of sentencing structures;
86 mandatory minimum sentences for certain reoffenders previously
87 released from prison.—
88 (9)
89 (d)1. It is the intent of the Legislature that offenders
90 previously released from prison who meet the criteria in
91 paragraph (a) be punished to the fullest extent of the law and
92 as provided in this subsection, unless the state attorney
93 determines that extenuating circumstances exist which preclude
94 the just prosecution of the offender, including whether the
95 victim recommends that the offender not be sentenced as provided
96 in this subsection.
97 2. For every case in which the offender meets the criteria
98 in paragraph (a) and does not receive the mandatory minimum
99 prison sentence, the state attorney must explain the sentencing
100 deviation in writing and place such explanation in the case file
101 maintained by the state attorney. On an annual basis, each state
102 attorney shall submit copies of deviation memoranda regarding
103 offenses committed on or after the effective date of this
104 subsection, to the president of the Florida Prosecuting
105 Attorneys Association, Inc. The association must maintain such
106 information, and make such information available to the public
107 upon request, for at least a 10-year period.
108 Section 3. Section 775.08401, Florida Statutes, is
109 repealed.
110 Section 4. Subsection (5) of section 775.087, Florida
111 Statutes, is repealed.
112 Section 5. Subsection (1) of section 903.286, Florida
113 Statutes, is amended to read:
114 903.286 Return of cash bond; requirement to withhold unpaid
115 fines, fees, court costs; cash bond forms.—
116 (1) Notwithstanding s. 903.31(2), the clerk of the court
117 shall withhold from the return of a cash bond posted on behalf
118 of a criminal defendant by a person other than a bail bond agent
119 licensed pursuant to chapter 648 sufficient funds to pay any
120 unpaid court fees, court costs, costs of prosecution, and
121 criminal penalties. If sufficient funds are not available to pay
122 all unpaid court fees, court costs, costs of prosecution, and
123 criminal penalties, the clerk of the court shall immediately
124 obtain payment from the defendant or enroll the defendant in a
125 payment plan pursuant to s. 28.246.
126 Section 6. Section 938.27, Florida Statutes, is amended to
127 read:
128 938.27 Judgment for costs on conviction and disposition.—
129 (1) In all criminal and violation-of-probation or
130 community-control cases, convicted persons and persons whose
131 cases are disposed of under any diversionary alternative are
132 liable for payment of the costs of prosecution, including
133 investigative costs incurred by law enforcement agencies, by
134 fire departments for arson investigations, and by investigations
135 of the Department of Financial Services or the Office of
136 Financial Regulation of the Financial Services Commission, if
137 requested by such agencies. The court shall include these costs
138 in every judgment rendered against the convicted person. For
139 purposes of this section, “convicted” means a determination of
140 guilt, or of violation of probation or community control, which
141 is a result of a plea, trial, or violation proceeding,
142 regardless of whether adjudication is withheld.
143 (2)(a) The court shall impose the costs of prosecution and
144 investigation notwithstanding the defendant's present ability to
145 pay. The court shall require the defendant to pay the costs
146 within a specified period or in specified installments.
147 (b) The end of such period or the last such installment
148 shall not be later than:
149 1. The end of the period of probation or community control,
150 if probation or community control is ordered;
151 2. Five years after the end of the term of imprisonment
152 imposed, if the court does not order probation or community
153 control; or
154 3. Five years after the date of sentencing in any other
155 case.
156 However, in no event shall the obligation to pay any unpaid
157 amounts expire if not paid in full within the period specified
158 in this paragraph.
159 (c) If not otherwise provided by the court under this
160 section, costs shall be paid immediately.
161 (3) If a defendant is placed on probation or community
162 control, payment of any costs under this section shall be a
163 condition of such probation or community control. The court may
164 revoke probation or community control if the defendant fails to
165 pay these costs.
166 (4) Any dispute as to the proper amount or type of costs
167 shall be resolved by the court by the preponderance of the
168 evidence. The burden of demonstrating the amount of costs
169 incurred is on the state attorney. The burden of demonstrating
170 the financial resources of the defendant and the financial needs
171 of the defendant is on the defendant. The burden of
172 demonstrating such other matters as the court deems appropriate
173 is upon the party designated by the court as justice requires.
174 (5) Any default in payment of costs may be collected by any
175 means authorized by law for enforcement of a judgment.
176 (6) The clerk of the court shall collect and dispense cost
177 payments in any case. The clerk of court shall separately record
178 each assessment and the payment of costs of prosecution. Costs
179 of prosecution must be assessed with respect to each case number
180 before the court. The clerk shall provide a monthly report to
181 the state attorney's office of the assessments and payments
182 recorded.
183 (7) Investigative costs that are recovered shall be
184 returned to the appropriate investigative agency that incurred
185 the expense. Such costs include actual expenses incurred in
186 conducting the investigation and prosecution of the criminal
187 case; however, costs may also include the salaries of permanent
188 employees. Any investigative costs recovered on behalf of a
189 state agency must be remitted to the Department of Revenue for
190 deposit in the agency operating trust fund, and a report of the
191 payment must be sent to the agency, except that any
192 investigative costs recovered on behalf of the Department of Law
193 Enforcement shall be deposited in the department's Forfeiture
194 and Investigative Support Trust Fund under s. 943.362.
195 (8) Costs for the state attorney shall be set in all cases
196 at no less than $50 per case when a misdemeanor or criminal
197 traffic offense is charged and no less than $100 per case when a
198 felony offense is charged, including a proceeding in which the
199 underlying offense is a violation of probation or community
200 control. The court may set a higher amount upon a showing of
201 sufficient proof of higher costs incurred. Costs recovered on
202 behalf of the state attorney under this section shall be
203 deposited into the state attorney's grants and donations trust
204 fund to be used during the fiscal year in which the funds are
205 collected, or in any subsequent fiscal year, for actual expenses
206 incurred in investigating and prosecuting criminal cases, which
207 may include the salaries of permanent employees, or for any
208 other purpose authorized by the Legislature.
209 Section 7. Present paragraphs (c) through (h) of subsection
210 (2) of section 943.0585, Florida Statutes, are redesignated as
211 paragraphs (d) through (i), respectively, and a new paragraph
212 (c) is added to that subsection, to read:
213 943.0585 Court-ordered expunction of criminal history
214 records.—The courts of this state have jurisdiction over their
215 own procedures, including the maintenance, expunction, and
216 correction of judicial records containing criminal history
217 information to the extent such procedures are not inconsistent
218 with the conditions, responsibilities, and duties established by
219 this section. Any court of competent jurisdiction may order a
220 criminal justice agency to expunge the criminal history record
221 of a minor or an adult who complies with the requirements of
222 this section. The court shall not order a criminal justice
223 agency to expunge a criminal history record until the person
224 seeking to expunge a criminal history record has applied for and
225 received a certificate of eligibility for expunction pursuant to
226 subsection (2). A criminal history record that relates to a
227 violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
228 s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
229 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
230 893.135, s. 916.1075, a violation enumerated in s. 907.041, or
231 any violation specified as a predicate offense for registration
232 as a sexual predator pursuant to s. 775.21, without regard to
233 whether that offense alone is sufficient to require such
234 registration, or for registration as a sexual offender pursuant
235 to s. 943.0435, may not be expunged, without regard to whether
236 adjudication was withheld, if the defendant was found guilty of
237 or pled guilty or nolo contendere to the offense, or if the
238 defendant, as a minor, was found to have committed, or pled
239 guilty or nolo contendere to committing, the offense as a
240 delinquent act. The court may only order expunction of a
241 criminal history record pertaining to one arrest or one incident
242 of alleged criminal activity, except as provided in this
243 section. The court may, at its sole discretion, order the
244 expunction of a criminal history record pertaining to more than
245 one arrest if the additional arrests directly relate to the
246 original arrest. If the court intends to order the expunction of
247 records pertaining to such additional arrests, such intent must
248 be specified in the order. A criminal justice agency may not
249 expunge any record pertaining to such additional arrests if the
250 order to expunge does not articulate the intention of the court
251 to expunge a record pertaining to more than one arrest. This
252 section does not prevent the court from ordering the expunction
253 of only a portion of a criminal history record pertaining to one
254 arrest or one incident of alleged criminal activity.
255 Notwithstanding any law to the contrary, a criminal justice
256 agency may comply with laws, court orders, and official requests
257 of other jurisdictions relating to expunction, correction, or
258 confidential handling of criminal history records or information
259 derived therefrom. This section does not confer any right to the
260 expunction of any criminal history record, and any request for
261 expunction of a criminal history record may be denied at the
262 sole discretion of the court.
263 (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
264 petitioning the court to expunge a criminal history record, a
265 person seeking to expunge a criminal history record shall apply
266 to the department for a certificate of eligibility for
267 expunction. The department shall, by rule adopted pursuant to
268 chapter 120, establish procedures pertaining to the application
269 for and issuance of certificates of eligibility for expunction.
270 A certificate of eligibility for expunction is valid for 12
271 months after the date stamped on the certificate when issued by
272 the department. After that time, the petitioner must reapply to
273 the department for a new certificate of eligibility. Eligibility
274 for a renewed certification of eligibility must be based on the
275 status of the applicant and the law in effect at the time of the
276 renewal application. The department shall issue a certificate of
277 eligibility for expunction to a person who is the subject of a
278 criminal history record if that person:
279 (c) Remits a $75 processing fee to the state attorney’s
280 office to be deposited into the state attorney’s grants and
281 donations trust fund unless the fee is waived by the state
282 attorney.
283 Section 8. Present paragraphs (c) through (f) of subsection
284 (2) of section 943.059, Florida Statutes, are redesignated as
285 paragraphs (d) through (g), respectively, and a new paragraph
286 (c) is added to that subsection, to read:
287 943.059 Court-ordered sealing of criminal history records.
288 The courts of this state shall continue to have jurisdiction
289 over their own procedures, including the maintenance, sealing,
290 and correction of judicial records containing criminal history
291 information to the extent such procedures are not inconsistent
292 with the conditions, responsibilities, and duties established by
293 this section. Any court of competent jurisdiction may order a
294 criminal justice agency to seal the criminal history record of a
295 minor or an adult who complies with the requirements of this
296 section. The court shall not order a criminal justice agency to
297 seal a criminal history record until the person seeking to seal
298 a criminal history record has applied for and received a
299 certificate of eligibility for sealing pursuant to subsection
300 (2). A criminal history record that relates to a violation of s.
301 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
302 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
303 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
304 916.1075, a violation enumerated in s. 907.041, or any violation
305 specified as a predicate offense for registration as a sexual
306 predator pursuant to s. 775.21, without regard to whether that
307 offense alone is sufficient to require such registration, or for
308 registration as a sexual offender pursuant to s. 943.0435, may
309 not be sealed, without regard to whether adjudication was
310 withheld, if the defendant was found guilty of or pled guilty or
311 nolo contendere to the offense, or if the defendant, as a minor,
312 was found to have committed or pled guilty or nolo contendere to
313 committing the offense as a delinquent act. The court may only
314 order sealing of a criminal history record pertaining to one
315 arrest or one incident of alleged criminal activity, except as
316 provided in this section. The court may, at its sole discretion,
317 order the sealing of a criminal history record pertaining to
318 more than one arrest if the additional arrests directly relate
319 to the original arrest. If the court intends to order the
320 sealing of records pertaining to such additional arrests, such
321 intent must be specified in the order. A criminal justice agency
322 may not seal any record pertaining to such additional arrests if
323 the order to seal does not articulate the intention of the court
324 to seal records pertaining to more than one arrest. This section
325 does not prevent the court from ordering the sealing of only a
326 portion of a criminal history record pertaining to one arrest or
327 one incident of alleged criminal activity. Notwithstanding any
328 law to the contrary, a criminal justice agency may comply with
329 laws, court orders, and official requests of other jurisdictions
330 relating to sealing, correction, or confidential handling of
331 criminal history records or information derived therefrom. This
332 section does not confer any right to the sealing of any criminal
333 history record, and any request for sealing a criminal history
334 record may be denied at the sole discretion of the court.
335 (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.—Prior to
336 petitioning the court to seal a criminal history record, a
337 person seeking to seal a criminal history record shall apply to
338 the department for a certificate of eligibility for sealing. The
339 department shall, by rule adopted pursuant to chapter 120,
340 establish procedures pertaining to the application for and
341 issuance of certificates of eligibility for sealing. A
342 certificate of eligibility for sealing is valid for 12 months
343 after the date stamped on the certificate when issued by the
344 department. After that time, the petitioner must reapply to the
345 department for a new certificate of eligibility. Eligibility for
346 a renewed certification of eligibility must be based on the
347 status of the applicant and the law in effect at the time of the
348 renewal application. The department shall issue a certificate of
349 eligibility for sealing to a person who is the subject of a
350 criminal history record provided that such person:
351 (c) Remits a $75 processing fee to the state attorney’s
352 office to be deposited into the state attorney’s grants and
353 donations trust fund unless the fee is waived by the state
354 attorney.
355 Section 9. Subsection (4) of section 985.557, Florida
356 Statutes, is repealed.
357 Section 10. Subsection (5) of section 775.0843, Florida
358 Statutes, is amended to read:
359 775.0843 Policies to be adopted for career criminal cases.—
360 (5) Each career criminal apprehension program shall
361 concentrate on the identification and arrest of career criminals
362 and the support of subsequent prosecution. The determination of
363 which suspected felony offenders shall be the subject of career
364 criminal apprehension efforts shall be made in accordance with
365 written target selection criteria selected by the individual law
366 enforcement agency and state attorney consistent with the
367 provisions of this section and s. ss. 775.08401 and 775.0842.
368 Section 11. This act shall take effect July 1, 2009.