Florida Senate - 2012                       CS for CS for SB 964
       
       
       
       By the Committees on Children, Families, and Elder Affairs; and
       Criminal Justice; and Senators Benacquisto, Gaetz, Lynn, and
       Hays
       
       
       586-03232-12                                           2012964c2
    1                        A bill to be entitled                      
    2         An act relating to protection of minors; providing a
    3         short title; amending s. 775.21, F.S.; requiring a
    4         person convicted of a second or subsequent violation
    5         of a specified video voyeurism provision to register
    6         as a sexual offender if the victim of the violation
    7         was a minor; amending s. 827.071, F.S.; providing that
    8         if more than one child is involved in a violation of
    9         provisions prohibiting sexual performance by a child,
   10         a separate offense may be charged for each child;
   11         amending s. 943.0435, F.S.; requiring a person
   12         convicted of a video voyeurism violation to register
   13         as a sexual offender if the victim of the violation
   14         was a minor; amending ss. 944.606 and 944.607, F.S.;
   15         redefining the term “sexual offender”; amending s.
   16         810.145, F.S.; revising the definition of the term
   17         “place and time when a person has a reasonable
   18         expectation of privacy” to include the interior of a
   19         residential dwelling; increasing the classification of
   20         specified video voyeurism offenses involving minors;
   21         amending s. 921.0022, F.S.; ranking a violation of s.
   22         810.145(8)(b), F.S., above its default value for
   23         purposes of the offense severity ranking chart of the
   24         Criminal Punishment Code; providing an effective date.
   25  
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   28         Section 1. This act may be cited as the “Protect Our
   29  Children Act.”
   30         Section 2. Paragraph (a) of subsection (4) of section
   31  775.21, Florida Statutes, is amended to read:
   32         775.21 The Florida Sexual Predators Act.—
   33         (4) SEXUAL PREDATOR CRITERIA.—
   34         (a) For a current offense committed on or after October 1,
   35  1993, upon conviction, an offender shall be designated as a
   36  “sexual predator” under subsection (5), and subject to
   37  registration under subsection (6) and community and public
   38  notification under subsection (7) if:
   39         1. The felony is:
   40         a. A capital, life, or first-degree felony violation, or
   41  any attempt thereof, of s. 787.01 or s. 787.02, where the victim
   42  is a minor and the defendant is not the victim’s parent or
   43  guardian, or s. 794.011, s. 800.04, or s. 847.0145, or a
   44  violation of a similar law of another jurisdiction; or
   45         b. Any felony violation, or any attempt thereof, of s.
   46  787.01, s. 787.02, or s. 787.025(2)(c), where the victim is a
   47  minor and the defendant is not the victim’s parent or guardian;
   48  s. 794.011, excluding s. 794.011(10); s. 794.05; s. 796.03; s.
   49  796.035; s. 800.04; s. 810.145(8); s. 825.1025(2)(b); s.
   50  827.071; s. 847.0135(5); s. 847.0145; or s. 985.701(1); or a
   51  violation of a similar law of another jurisdiction, and the
   52  offender has previously been convicted of or found to have
   53  committed, or has pled nolo contendere or guilty to, regardless
   54  of adjudication, any violation of s. 787.01, s. 787.02, or s.
   55  787.025(2)(c), where the victim is a minor and the defendant is
   56  not the victim’s parent or guardian; s. 794.011, excluding s.
   57  794.011(10); s. 794.05; s. 796.03; s. 796.035; s. 800.04; s.
   58  810.145(8); s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135,
   59  excluding s. 847.0135(6); s. 847.0145; or s. 985.701(1); or a
   60  violation of a similar law of another jurisdiction;
   61         2. The offender has not received a pardon for any felony or
   62  similar law of another jurisdiction that is necessary for the
   63  operation of this paragraph; and
   64         3. A conviction of a felony or similar law of another
   65  jurisdiction necessary to the operation of this paragraph has
   66  not been set aside in any postconviction proceeding.
   67         Section 3. Paragraph (a) of subsection (5) of section
   68  827.071, Florida Statutes, is amended to read:
   69         827.071 Sexual performance by a child; penalties.—
   70         (5)(a) It is unlawful for any person to knowingly possess,
   71  control, or intentionally view a photograph, motion picture,
   72  exhibition, show, representation, image, data, computer
   73  depiction, or other presentation which, in whole or in part, he
   74  or she knows to include any sexual conduct by a child. The
   75  possession, control, or intentional viewing of each such
   76  photograph, motion picture, exhibition, show, image, data,
   77  computer depiction, representation, or presentation is a
   78  separate offense. If a photograph, motion picture, exhibition,
   79  show, representation, image, data, computer depiction, or other
   80  presentation includes sexual conduct by more than one child, a
   81  separate offense may be charged for each such child in each such
   82  photograph, motion picture, exhibition, show, representation,
   83  image, data, computer depiction, or other presentation. A person
   84  who violates this subsection commits a felony of the third
   85  degree, punishable as provided in s. 775.082, s. 775.083, or s.
   86  775.084.
   87         Section 4. Paragraph (a) of subsection (1) of section
   88  943.0435, Florida Statutes, is amended to read:
   89         943.0435 Sexual offenders required to register with the
   90  department; penalty.—
   91         (1) As used in this section, the term:
   92         (a)1. “Sexual offender” means a person who meets the
   93  criteria in sub-subparagraph a., sub-subparagraph b., sub
   94  subparagraph c., or sub-subparagraph d., as follows:
   95         a.(I) Has been convicted of committing, or attempting,
   96  soliciting, or conspiring to commit, any of the criminal
   97  offenses proscribed in the following statutes in this state or
   98  similar offenses in another jurisdiction: s. 787.01, s. 787.02,
   99  or s. 787.025(2)(c), where the victim is a minor and the
  100  defendant is not the victim’s parent or guardian; s. 794.011,
  101  excluding s. 794.011(10); s. 794.05; s. 796.03; s. 796.035; s.
  102  800.04; s. 810.145(8); s. 825.1025; s. 827.071; s. 847.0133; s.
  103  847.0135, excluding s. 847.0135(6); s. 847.0137; s. 847.0138; s.
  104  847.0145; or s. 985.701(1); or any similar offense committed in
  105  this state which has been redesignated from a former statute
  106  number to one of those listed in this sub-sub-subparagraph; and
  107         (II) Has been released on or after October 1, 1997, from
  108  the sanction imposed for any conviction of an offense described
  109  in sub-sub-subparagraph (I). For purposes of sub-sub
  110  subparagraph (I), a sanction imposed in this state or in any
  111  other jurisdiction includes, but is not limited to, a fine,
  112  probation, community control, parole, conditional release,
  113  control release, or incarceration in a state prison, federal
  114  prison, private correctional facility, or local detention
  115  facility;
  116         b. Establishes or maintains a residence in this state and
  117  who has not been designated as a sexual predator by a court of
  118  this state but who has been designated as a sexual predator, as
  119  a sexually violent predator, or by another sexual offender
  120  designation in another state or jurisdiction and was, as a
  121  result of such designation, subjected to registration or
  122  community or public notification, or both, or would be if the
  123  person were a resident of that state or jurisdiction, without
  124  regard to whether the person otherwise meets the criteria for
  125  registration as a sexual offender;
  126         c. Establishes or maintains a residence in this state who
  127  is in the custody or control of, or under the supervision of,
  128  any other state or jurisdiction as a result of a conviction for
  129  committing, or attempting, soliciting, or conspiring to commit,
  130  any of the criminal offenses proscribed in the following
  131  statutes or similar offense in another jurisdiction: s. 787.01,
  132  s. 787.02, or s. 787.025(2)(c), where the victim is a minor and
  133  the defendant is not the victim’s parent or guardian; s.
  134  794.011, excluding s. 794.011(10); s. 794.05; s. 796.03; s.
  135  796.035; s. 800.04; s. 810.145(8); s. 825.1025; s. 827.071; s.
  136  847.0133; s. 847.0135, excluding s. 847.0135(6); s. 847.0137; s.
  137  847.0138; s. 847.0145; or s. 985.701(1); or any similar offense
  138  committed in this state which has been redesignated from a
  139  former statute number to one of those listed in this sub
  140  subparagraph; or
  141         d. On or after July 1, 2007, has been adjudicated
  142  delinquent for committing, or attempting, soliciting, or
  143  conspiring to commit, any of the criminal offenses proscribed in
  144  the following statutes in this state or similar offenses in
  145  another jurisdiction when the juvenile was 14 years of age or
  146  older at the time of the offense:
  147         (I) Section 794.011, excluding s. 794.011(10);
  148         (II) Section 800.04(4)(b) where the victim is under 12
  149  years of age or where the court finds sexual activity by the use
  150  of force or coercion;
  151         (III) Section 800.04(5)(c)1. where the court finds
  152  molestation involving unclothed genitals; or
  153         (IV) Section 800.04(5)(d) where the court finds the use of
  154  force or coercion and unclothed genitals.
  155         2. For all qualifying offenses listed in sub-subparagraph
  156  (1)(a)1.d., the court shall make a written finding of the age of
  157  the offender at the time of the offense.
  158  
  159  For each violation of a qualifying offense listed in this
  160  subsection, the court shall make a written finding of the age of
  161  the victim at the time of the offense. For a violation of s.
  162  800.04(4), the court shall additionally make a written finding
  163  indicating that the offense did or did not involve sexual
  164  activity and indicating that the offense did or did not involve
  165  force or coercion. For a violation of s. 800.04(5), the court
  166  shall additionally make a written finding that the offense did
  167  or did not involve unclothed genitals or genital area and that
  168  the offense did or did not involve the use of force or coercion.
  169         Section 5. Paragraph (b) of subsection (1) of section
  170  944.606, Florida Statutes, is amended to read:
  171         944.606 Sexual offenders; notification upon release.—
  172         (1) As used in this section:
  173         (b) “Sexual offender” means a person who has been convicted
  174  of committing, or attempting, soliciting, or conspiring to
  175  commit, any of the criminal offenses proscribed in the following
  176  statutes in this state or similar offenses in another
  177  jurisdiction: s. 787.01, s. 787.02, or s. 787.025(2)(c), where
  178  the victim is a minor and the defendant is not the victim’s
  179  parent or guardian; s. 794.011, excluding s. 794.011(10); s.
  180  794.05; s. 796.03; s. 796.035; s. 800.04; s. 810.145(8); s.
  181  825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s.
  182  847.0135(6); s. 847.0137; s. 847.0138; s. 847.0145; or s.
  183  985.701(1); or any similar offense committed in this state which
  184  has been redesignated from a former statute number to one of
  185  those listed in this subsection, when the department has
  186  received verified information regarding such conviction; an
  187  offender’s computerized criminal history record is not, in and
  188  of itself, verified information.
  189         Section 6. Paragraph (a) of subsection (1) of section
  190  944.607, Florida Statutes, is amended to read:
  191         944.607 Notification to Department of Law Enforcement of
  192  information on sexual offenders.—
  193         (1) As used in this section, the term:
  194         (a) “Sexual offender” means a person who is in the custody
  195  or control of, or under the supervision of, the department or is
  196  in the custody of a private correctional facility:
  197         1. On or after October 1, 1997, as a result of a conviction
  198  for committing, or attempting, soliciting, or conspiring to
  199  commit, any of the criminal offenses proscribed in the following
  200  statutes in this state or similar offenses in another
  201  jurisdiction: s. 787.01, s. 787.02, or s. 787.025(2)(c), where
  202  the victim is a minor and the defendant is not the victim’s
  203  parent or guardian; s. 794.011, excluding s. 794.011(10); s.
  204  794.05; s. 796.03; s. 796.035; s. 800.04; s. 810.145(8); s.
  205  825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s.
  206  847.0135(6); s. 847.0137; s. 847.0138; s. 847.0145; or s.
  207  985.701(1); or any similar offense committed in this state which
  208  has been redesignated from a former statute number to one of
  209  those listed in this paragraph; or
  210  2. Who establishes or maintains a residence in this state and
  211  who has not been designated as a sexual predator by a court of
  212  this state but who has been designated as a sexual predator, as
  213  a sexually violent predator, or by another sexual offender
  214  designation in another state or jurisdiction and was, as a
  215  result of such designation, subjected to registration or
  216  community or public notification, or both, or would be if the
  217  person were a resident of that state or jurisdiction, without
  218  regard as to whether the person otherwise meets the criteria for
  219  registration as a sexual offender.
  220         Section 7. Paragraph (c) of subsection (1) and subsection
  221  (8) of section 810.145, Florida Statutes, are amended to read:
  222         810.145 Video voyeurism.—
  223         (1) As used in this section, the term:
  224         (c) “Place and time when a person has a reasonable
  225  expectation of privacy” means a place and time when a reasonable
  226  person would believe that he or she could fully disrobe in
  227  privacy, without being concerned that the person’s undressing
  228  was being viewed, recorded, or broadcasted by another,
  229  including, but not limited to, the interior of a residential
  230  dwelling, bathroom, changing room, fitting room, dressing room,
  231  or tanning booth.
  232         (8)(a) A person who is:
  233         1. Eighteen years of age or older who is responsible for
  234  the welfare of a child younger than 16 years of age, regardless
  235  of whether the person knows or has reason to know the age of the
  236  child, and who commits an offense under this section against
  237  that child;
  238         2. Eighteen years of age or older who is employed at a
  239  private school as defined in s. 1002.01; a school as defined in
  240  s. 1003.01; or a voluntary prekindergarten education program as
  241  described in s. 1002.53(3)(a), (b), or (c) and who commits an
  242  offense under this section against a student of the private
  243  school, school, or voluntary prekindergarten education program;
  244  or
  245         3. Twenty-four years of age or older who commits an offense
  246  under this section against a child younger than 16 years of age,
  247  regardless of whether the person knows or has reason to know the
  248  age of the child
  249  
  250  commits a felony of the second third degree, punishable as
  251  provided in s. 775.082, s. 775.083, or s. 775.084.
  252         (b) A person who violates this subsection and who has
  253  previously been convicted of or adjudicated delinquent for any
  254  violation of this section commits a felony of the second degree,
  255  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  256         Section 8. Paragraph (f) of subsection (3) of section
  257  921.0022, Florida Statutes, is amended to read:
  258         921.0022 Criminal Punishment Code; offense severity ranking
  259  chart.—
  260         (3) OFFENSE SEVERITY RANKING CHART
  261         (f) LEVEL 6
  262  FloridaStatute   FelonyDegree                Description                 
  263  316.193(2)(b)      3rd   Felony DUI, 4th or subsequent conviction.   
  264  499.0051(3)        2nd   Knowing forgery of pedigree papers.         
  265  499.0051(4)        2nd   Knowing purchase or receipt of prescription drug from unauthorized person.
  266  499.0051(5)        2nd   Knowing sale or transfer of prescription drug to unauthorized person.
  267  775.0875(1)        3rd   Taking firearm from law enforcement officer.
  268  784.021(1)(a)      3rd   Aggravated assault; deadly weapon without intent to kill.
  269  784.021(1)(b)      3rd   Aggravated assault; intent to commit felony.
  270  784.041            3rd   Felony battery; domestic battery by strangulation.
  271  784.048(3)         3rd   Aggravated stalking; credible threat.       
  272  784.048(5)         3rd   Aggravated stalking of person under 16.     
  273  784.07(2)(c)       2nd   Aggravated assault on law enforcement officer.
  274  784.074(1)(b)      2nd   Aggravated assault on sexually violent predators facility staff.
  275  784.08(2)(b)       2nd   Aggravated assault on a person 65 years of age or older.
  276  784.081(2)         2nd   Aggravated assault on specified official or employee.
  277  784.082(2)         2nd   Aggravated assault by detained person on visitor or other detainee.
  278  784.083(2)         2nd   Aggravated assault on code inspector.       
  279  787.02(2)          3rd   False imprisonment; restraining with purpose other than those in s. 787.01.
  280  790.115(2)(d)      2nd   Discharging firearm or weapon on school property.
  281  790.161(2)         2nd   Make, possess, or throw destructive device with intent to do bodily harm or damage property.
  282  790.164(1)         2nd   False report of deadly explosive, weapon of mass destruction, or act of arson or violence to state property.
  283  790.19             2nd   Shooting or throwing deadly missiles into dwellings, vessels, or vehicles.
  284  794.011(8)(a)      3rd   Solicitation of minor to participate in sexual activity by custodial adult.
  285  794.05(1)          2nd   Unlawful sexual activity with specified minor.
  286  800.04(5)(d)       3rd   Lewd or lascivious molestation; victim 12 years of age or older but less than 16 years; offender less than 18 years.
  287  800.04(6)(b)       2nd   Lewd or lascivious conduct; offender 18 years of age or older.
  288  806.031(2)         2nd   Arson resulting in great bodily harm to firefighter or any other person.
  289  810.02(3)(c)       2nd   Burglary of occupied structure; unarmed; no assault or battery.
  290  810.145(8)(b)      2nd   Video voyeurism; certain minor victims; 2nd or subsequent offense.
  291  812.014(2)(b)1.    2nd   Property stolen $20,000 or more, but less than $100,000, grand theft in 2nd degree.
  292  812.014(6)         2nd   Theft; property stolen $3,000 or more; coordination of others.
  293  812.015(9)(a)      2nd   Retail theft; property stolen $300 or more; second or subsequent conviction.
  294  812.015(9)(b)      2nd   Retail theft; property stolen $3,000 or more; coordination of others.
  295  812.13(2)(c)       2nd   Robbery, no firearm or other weapon (strong-arm robbery).
  296  817.034(4)(a)1.    1st   Communications fraud, value greater than $50,000.
  297  817.4821(5)        2nd   Possess cloning paraphernalia with intent to create cloned cellular telephones.
  298  825.102(1)         3rd   Abuse of an elderly person or disabled adult.
  299  825.102(3)(c)      3rd   Neglect of an elderly person or disabled adult.
  300  825.1025(3)        3rd   Lewd or lascivious molestation of an elderly person or disabled adult.
  301  825.103(2)(c)      3rd   Exploiting an elderly person or disabled adult and property is valued at less than $20,000.
  302  827.03(1)          3rd   Abuse of a child.                           
  303  827.03(3)(c)       3rd   Neglect of a child.                         
  304  827.071(2) & (3)   2nd   Use or induce a child in a sexual performance, or promote or direct such performance.
  305  836.05             2nd   Threats; extortion.                         
  306  836.10             2nd   Written threats to kill or do bodily injury.
  307  843.12             3rd   Aids or assists person to escape.           
  308  847.011            3rd   Distributing, offering to distribute, or possessing with intent to distribute obscene materials depicting minors.
  309  847.012            3rd   Knowingly using a minor in the production of materials harmful to minors.
  310  847.0135(2)        3rd   Facilitates sexual conduct of or with a minor or the visual depiction of such conduct.
  311  914.23             2nd   Retaliation against a witness, victim, or informant, with bodily injury.
  312  944.35(3)(a)2.     3rd   Committing malicious battery upon or inflicting cruel or inhuman treatment on an inmate or offender on community supervision, resulting in great bodily harm.
  313  944.40             2nd   Escapes.                                    
  314  944.46             3rd   Harboring, concealing, aiding escaped prisoners.
  315  944.47(1)(a)5.     2nd   Introduction of contraband (firearm, weapon, or explosive) into correctional facility.
  316  951.22(1)          3rd   Intoxicating drug, firearm, or weapon introduced into county facility.
  317         Section 9. This act shall take effect October 1, 2012.