Florida Senate - 2010                                     SB 296
       
       
       
       By Senator Wise
       
       
       
       
       5-00407-10                                             2010296__
    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  
  157  However, in no event shall the obligation to pay any unpaid
  158  amounts expire if not paid in full within the period specified
  159  in this paragraph.
  160         (c) If not otherwise provided by the court under this
  161  section, costs shall be paid immediately.
  162         (3) If a defendant is placed on probation or community
  163  control, payment of any costs under this section shall be a
  164  condition of such probation or community control. The court may
  165  revoke probation or community control if the defendant fails to
  166  pay these costs.
  167         (4) Any dispute as to the proper amount or type of costs
  168  shall be resolved by the court by the preponderance of the
  169  evidence. The burden of demonstrating the amount of costs
  170  incurred is on the state attorney. The burden of demonstrating
  171  the financial resources of the defendant and the financial needs
  172  of the defendant is on the defendant. The burden of
  173  demonstrating such other matters as the court deems appropriate
  174  is upon the party designated by the court as justice requires.
  175         (5) Any default in payment of costs may be collected by any
  176  means authorized by law for enforcement of a judgment.
  177         (6) The clerk of the court shall collect and dispense cost
  178  payments in any case. The clerk of court shall separately record
  179  each assessment and the payment of costs of prosecution. Costs
  180  of prosecution must be assessed with respect to each case number
  181  before the court. The clerk shall provide a monthly report to
  182  the state attorney’s office of the assessments and payments
  183  recorded.
  184         (7) Investigative costs that are recovered shall be
  185  returned to the appropriate investigative agency that incurred
  186  the expense. Such costs include actual expenses incurred in
  187  conducting the investigation and prosecution of the criminal
  188  case; however, costs may also include the salaries of permanent
  189  employees. Any investigative costs recovered on behalf of a
  190  state agency must be remitted to the Department of Revenue for
  191  deposit in the agency operating trust fund, and a report of the
  192  payment must be sent to the agency, except that any
  193  investigative costs recovered on behalf of the Department of Law
  194  Enforcement shall be deposited in the department’s Forfeiture
  195  and Investigative Support Trust Fund under s. 943.362.
  196         (8) Costs for the state attorney shall be set in all cases
  197  at no less than $50 per case when a misdemeanor or criminal
  198  traffic offense is charged and no less than $100 per case when a
  199  felony offense is charged, including a proceeding in which the
  200  underlying offense is a violation of probation or community
  201  control. The court may set a higher amount upon a showing of
  202  sufficient proof of higher costs incurred. Costs recovered on
  203  behalf of the state attorney under this section shall be
  204  deposited into the state attorney’s grants and donations trust
  205  fund to be used during the fiscal year in which the funds are
  206  collected, or in any subsequent fiscal year, for actual expenses
  207  incurred in investigating and prosecuting criminal cases, which
  208  may include the salaries of permanent employees, or for any
  209  other purpose authorized by the Legislature.
  210         Section 7. Present paragraphs (c) through (h) of subsection
  211  (2) of section 943.0585, Florida Statutes, are redesignated as
  212  paragraphs (d) through (i), respectively, and a new paragraph
  213  (c) is added to that subsection, to read:
  214         943.0585 Court-ordered expunction of criminal history
  215  records.—The courts of this state have jurisdiction over their
  216  own procedures, including the maintenance, expunction, and
  217  correction of judicial records containing criminal history
  218  information to the extent such procedures are not inconsistent
  219  with the conditions, responsibilities, and duties established by
  220  this section. Any court of competent jurisdiction may order a
  221  criminal justice agency to expunge the criminal history record
  222  of a minor or an adult who complies with the requirements of
  223  this section. The court shall not order a criminal justice
  224  agency to expunge a criminal history record until the person
  225  seeking to expunge a criminal history record has applied for and
  226  received a certificate of eligibility for expunction pursuant to
  227  subsection (2). A criminal history record that relates to a
  228  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  229  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
  230  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
  231  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
  232  any violation specified as a predicate offense for registration
  233  as a sexual predator pursuant to s. 775.21, without regard to
  234  whether that offense alone is sufficient to require such
  235  registration, or for registration as a sexual offender pursuant
  236  to s. 943.0435, may not be expunged, without regard to whether
  237  adjudication was withheld, if the defendant was found guilty of
  238  or pled guilty or nolo contendere to the offense, or if the
  239  defendant, as a minor, was found to have committed, or pled
  240  guilty or nolo contendere to committing, the offense as a
  241  delinquent act. The court may only order expunction of a
  242  criminal history record pertaining to one arrest or one incident
  243  of alleged criminal activity, except as provided in this
  244  section. The court may, at its sole discretion, order the
  245  expunction of a criminal history record pertaining to more than
  246  one arrest if the additional arrests directly relate to the
  247  original arrest. If the court intends to order the expunction of
  248  records pertaining to such additional arrests, such intent must
  249  be specified in the order. A criminal justice agency may not
  250  expunge any record pertaining to such additional arrests if the
  251  order to expunge does not articulate the intention of the court
  252  to expunge a record pertaining to more than one arrest. This
  253  section does not prevent the court from ordering the expunction
  254  of only a portion of a criminal history record pertaining to one
  255  arrest or one incident of alleged criminal activity.
  256  Notwithstanding any law to the contrary, a criminal justice
  257  agency may comply with laws, court orders, and official requests
  258  of other jurisdictions relating to expunction, correction, or
  259  confidential handling of criminal history records or information
  260  derived therefrom. This section does not confer any right to the
  261  expunction of any criminal history record, and any request for
  262  expunction of a criminal history record may be denied at the
  263  sole discretion of the court.
  264         (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
  265  petitioning the court to expunge a criminal history record, a
  266  person seeking to expunge a criminal history record shall apply
  267  to the department for a certificate of eligibility for
  268  expunction. The department shall, by rule adopted pursuant to
  269  chapter 120, establish procedures pertaining to the application
  270  for and issuance of certificates of eligibility for expunction.
  271  A certificate of eligibility for expunction is valid for 12
  272  months after the date stamped on the certificate when issued by
  273  the department. After that time, the petitioner must reapply to
  274  the department for a new certificate of eligibility. Eligibility
  275  for a renewed certification of eligibility must be based on the
  276  status of the applicant and the law in effect at the time of the
  277  renewal application. The department shall issue a certificate of
  278  eligibility for expunction to a person who is the subject of a
  279  criminal history record if that person:
  280         (c)Remits a $75 processing fee to the state attorney’s
  281  office to be deposited into the state attorney’s grants and
  282  donations trust fund unless the fee is waived by the state
  283  attorney.
  284         Section 8. Present paragraphs (c) through (f) of subsection
  285  (2) of section 943.059, Florida Statutes, are redesignated as
  286  paragraphs (d) through (g), respectively, and a new paragraph
  287  (c) is added to that subsection, to read:
  288         943.059 Court-ordered sealing of criminal history records.
  289  The courts of this state shall continue to have jurisdiction
  290  over their own procedures, including the maintenance, sealing,
  291  and correction of judicial records containing criminal history
  292  information to the extent such procedures are not inconsistent
  293  with the conditions, responsibilities, and duties established by
  294  this section. Any court of competent jurisdiction may order a
  295  criminal justice agency to seal the criminal history record of a
  296  minor or an adult who complies with the requirements of this
  297  section. The court shall not order a criminal justice agency to
  298  seal a criminal history record until the person seeking to seal
  299  a criminal history record has applied for and received a
  300  certificate of eligibility for sealing pursuant to subsection
  301  (2). A criminal history record that relates to a violation of s.
  302  393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
  303  800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
  304  839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
  305  916.1075, a violation enumerated in s. 907.041, or any violation
  306  specified as a predicate offense for registration as a sexual
  307  predator pursuant to s. 775.21, without regard to whether that
  308  offense alone is sufficient to require such registration, or for
  309  registration as a sexual offender pursuant to s. 943.0435, may
  310  not be sealed, without regard to whether adjudication was
  311  withheld, if the defendant was found guilty of or pled guilty or
  312  nolo contendere to the offense, or if the defendant, as a minor,
  313  was found to have committed or pled guilty or nolo contendere to
  314  committing the offense as a delinquent act. The court may only
  315  order sealing of a criminal history record pertaining to one
  316  arrest or one incident of alleged criminal activity, except as
  317  provided in this section. The court may, at its sole discretion,
  318  order the sealing of a criminal history record pertaining to
  319  more than one arrest if the additional arrests directly relate
  320  to the original arrest. If the court intends to order the
  321  sealing of records pertaining to such additional arrests, such
  322  intent must be specified in the order. A criminal justice agency
  323  may not seal any record pertaining to such additional arrests if
  324  the order to seal does not articulate the intention of the court
  325  to seal records pertaining to more than one arrest. This section
  326  does not prevent the court from ordering the sealing of only a
  327  portion of a criminal history record pertaining to one arrest or
  328  one incident of alleged criminal activity. Notwithstanding any
  329  law to the contrary, a criminal justice agency may comply with
  330  laws, court orders, and official requests of other jurisdictions
  331  relating to sealing, correction, or confidential handling of
  332  criminal history records or information derived therefrom. This
  333  section does not confer any right to the sealing of any criminal
  334  history record, and any request for sealing a criminal history
  335  record may be denied at the sole discretion of the court.
  336         (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.—Prior to
  337  petitioning the court to seal a criminal history record, a
  338  person seeking to seal a criminal history record shall apply to
  339  the department for a certificate of eligibility for sealing. The
  340  department shall, by rule adopted pursuant to chapter 120,
  341  establish procedures pertaining to the application for and
  342  issuance of certificates of eligibility for sealing. A
  343  certificate of eligibility for sealing is valid for 12 months
  344  after the date stamped on the certificate when issued by the
  345  department. After that time, the petitioner must reapply to the
  346  department for a new certificate of eligibility. Eligibility for
  347  a renewed certification of eligibility must be based on the
  348  status of the applicant and the law in effect at the time of the
  349  renewal application. The department shall issue a certificate of
  350  eligibility for sealing to a person who is the subject of a
  351  criminal history record provided that such person:
  352         (c)Remits a $75 processing fee to the state attorney’s
  353  office to be deposited into the state attorney’s grants and
  354  donations trust fund unless the fee is waived by the state
  355  attorney.
  356         Section 9. Subsection (4) of section 985.557, Florida
  357  Statutes, is repealed.
  358         Section 10. Subsection (5) of section 775.0843, Florida
  359  Statutes, is amended to read:
  360         775.0843 Policies to be adopted for career criminal cases.—
  361         (5) Each career criminal apprehension program shall
  362  concentrate on the identification and arrest of career criminals
  363  and the support of subsequent prosecution. The determination of
  364  which suspected felony offenders shall be the subject of career
  365  criminal apprehension efforts shall be made in accordance with
  366  written target selection criteria selected by the individual law
  367  enforcement agency and state attorney consistent with the
  368  provisions of this section and s. ss. 775.08401 and 775.0842.
  369         Section 11. This act shall take effect July 1, 2010.