Senate Bill 1214

CODING: Words stricken are deletions; words underlined are additions.



    Florida Senate - 1998                                  SB 1214

    By Senator Crist





    20-1162-98                                              See HB

  1                      A bill to be entitled

  2         An act relating to offenders under correctional

  3         supervision; amending s. 948.03, F.S., relating

  4         to probation and community control; requiring

  5         probationers and community controllees on

  6         supervision for controlled substance violations

  7         or certain firearm offenses to submit to random

  8         searches without a warrant; prohibiting a

  9         probationer or community controllee from having

10         "contact," as defined, with the victim unless

11         authorized by the court; reenacting s.

12         947.23(6), F.S., relating to action of Parole

13         Commission upon arrest of parolee, s.

14         948.001(5), F.S., relating to definition of

15         "probation" with respect to chapter 948, F.S.,

16         and s. 958.03(4), F.S., relating to definition

17         of "probation" with respect to specified

18         provisions in chapter 958, F.S., to incorporate

19         said amendment in references; amending s.

20         948.06, F.S., relating to violations of

21         probation or community control; authorizing law

22         enforcement officers and probation or community

23         control officers to search without a warrant,

24         or request search without a warrant of, the

25         person, residence, or property of probationers

26         and community controllees under certain

27         circumstances; prohibiting the exclusion or

28         suppression of evidence from trials for

29         subsequent offenses by offenders on probation,

30         community control, or parole, or from hearings

31         for violation of probation, community control,

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    Florida Senate - 1998                                  SB 1214
    20-1162-98                                              See HB




  1         or parole, under certain circumstances when

  2         there was reasonable suspicion to believe that

  3         at the time of the search the offender violated

  4         the law or the terms of probation, community

  5         control, or parole; providing an exception with

  6         respect to offenders on probation, community

  7         control, or parole for substance violations or

  8         certain firearms offenses; prohibiting the

  9         exclusion or suppression of evidence from

10         hearings for violation of supervision of

11         offenders on probation, community control, or

12         parole for controlled substance violations or

13         certain firearm offenses when such exclusion or

14         suppression is based solely on insufficient

15         suspicion or reason to believe a violation by

16         the offender occurred, under certain

17         circumstances; reenacting s. 948.01(9),

18         (11)(b), and (13)(b), F.S., relating to

19         circumstances when a court may place a

20         defendant on probation or into community

21         control, and s. 958.14, F.S., relating to

22         violation of probation or community control

23         program, to incorporate said amendment in

24         references; providing an effective date.

25

26         WHEREAS, the Legislature finds that over 42 percent of

27  offenders on community supervision with the Department of

28  Corrections have been under such supervision previously and

29  have reoffended, and

30         WHEREAS, the Legislature finds that offenders on

31  community supervision require closer supervision to adequately

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    Florida Senate - 1998                                  SB 1214
    20-1162-98                                              See HB




  1  protect the public from offenders on community supervision,

  2  and

  3         WHEREAS, the Legislature further finds that, in order

  4  to ensure the effectiveness of community supervision programs,

  5  it is necessary that officers be given greater authority to

  6  search offenders on community supervision to the extent

  7  allowed under the United States Constitution as interpreted by

  8  the United States Supreme Court, and

  9         WHEREAS, in Griffin v. Wisconsin, 483 U.S. 868, 875

10  (1987), the United States Supreme Court noted that recent

11  research suggests that more intensive supervision can reduce

12  recidivism, and that the importance of supervision has grown

13  as probation has become an increasingly common sentence for

14  those convicted of serious crimes, NOW, THEREFORE,

15

16  Be It Enacted by the Legislature of the State of Florida:

17

18         Section 1.  Subsection (1) of section 948.03, Florida

19  Statutes, is amended to read:

20         948.03  Terms and conditions of probation or community

21  control.--

22         (1)  The court shall determine the terms and conditions

23  of probation or community control.  Conditions specified in

24  paragraphs (a) through and including (p) (m) do not require

25  oral pronouncement at the time of sentencing and may be

26  considered standard conditions of probation. Conditions

27  specified in paragraphs (a) through and including (p) (m) and

28  (2)(a) do not require oral pronouncement at sentencing and may

29  be considered standard conditions of community control.  These

30  conditions may include among them the following, that the

31  probationer or offender in community control shall:

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    Florida Senate - 1998                                  SB 1214
    20-1162-98                                              See HB




  1         (a)  Report to the probation and parole supervisors as

  2  directed.

  3         (b)  Permit such supervisors to visit him or her at his

  4  or her home or elsewhere.

  5         (c)  Work faithfully at suitable employment insofar as

  6  may be possible.

  7         (d)  Remain within a specified place.

  8         (e)  Make reparation or restitution to the aggrieved

  9  party for the damage or loss caused by his or her offense in

10  an amount to be determined by the court.  The court shall make

11  such reparation or restitution a condition of probation,

12  unless it determines that clear and compelling reasons exist

13  to the contrary. If the court does not order restitution, or

14  orders restitution of only a portion of the damages, as

15  provided in s. 775.089, it shall state on the record in detail

16  the reasons therefor.

17         (f)  Effective July 1, 1994, and applicable for

18  offenses committed on or after that date, make payment of the

19  debt due and owing to a county or municipal detention facility

20  under s. 951.032 for medical care, treatment, hospitalization,

21  or transportation received by the felony probationer while in

22  that detention facility. The court, in determining whether to

23  order such repayment and the amount of such repayment, shall

24  consider the amount of the debt, whether there was any fault

25  of the institution for the medical expenses incurred, the

26  financial resources of the felony probationer, the present and

27  potential future financial needs and earning ability of the

28  probationer, and dependents, and other appropriate factors.

29         (g)  Support his or her legal dependents to the best of

30  his or her ability.

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    Florida Senate - 1998                                  SB 1214
    20-1162-98                                              See HB




  1         (h)  Make payment of the debt due and owing to the

  2  state under s. 960.17, subject to modification based on change

  3  of circumstances.

  4         (i)  Pay any application fee assessed under s.

  5  27.52(1)(c) and attorney's fees and costs assessed under s.

  6  938.29, subject to modification based on change of

  7  circumstances.

  8         (j)  Not associate with persons engaged in criminal

  9  activities.

10         (k)1.  Submit to random testing as directed by the

11  correctional probation officer or the professional staff of

12  the treatment center where he or she is receiving treatment to

13  determine the presence or use of alcohol or controlled

14  substances.

15         2.  If the offense was a controlled substance violation

16  and the period of probation immediately follows a period of

17  incarceration in the state correction system, the conditions

18  shall include a requirement that the offender submit to random

19  substance abuse testing intermittently throughout the term of

20  supervision, upon the direction of the correctional probation

21  officer as defined in s. 943.10(3).

22         (l)  Be prohibited from possessing, carrying, or owning

23  any firearm unless authorized by the court and consented to by

24  the probation officer.

25         (m)  Be prohibited from using intoxicants to excess or

26  possessing any drugs or narcotics unless prescribed by a

27  physician. The probationer or community controllee shall not

28  knowingly visit places where intoxicants, drugs, or other

29  dangerous substances are unlawfully sold, dispensed, or used.

30         (n)  If the offense was a controlled substance

31  violation or an offense involving the possession or use of a

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    Florida Senate - 1998                                  SB 1214
    20-1162-98                                              See HB




  1  firearm, submit to warrantless, random searches of his or her

  2  person, property, and residence as requested by the

  3  supervising probation officer.

  4         (o)  For offenses involving victims, not have contact

  5  with the victim unless otherwise authorized by the court.  If

  6  the court authorizes the defendant to have contact with the

  7  victim, over the objection of the victim or state attorney,

  8  the court shall state on the record in detail the reasons

  9  therefor. For purposes of this paragraph, "contact" means

10  being physically in the presence of the victim in any manner

11  which is intentional, or oral or written communication to the

12  victim by any means. Contact is established by the conduct of

13  the defendant, or by anyone acting at the direction of the

14  defendant. It shall be the duty of the defendant to leave

15  immediately the presence of the victim under any circumstance

16  when incidental or unintended contact takes place.

17         (p)  Consent to search of his or her person, property,

18  and residence as requested by the supervising probation

19  officer.

20         (q)(n)  Attend an HIV/AIDS awareness program consisting

21  of a class of not less than 2 hours or more than 4 hours in

22  length, the cost for which shall be paid by the offender, if

23  such a program is available in the county of the offender's

24  residence.

25         (r)(o)  Pay not more than $1 per month during the term

26  of probation or community control to a nonprofit organization

27  established for the sole purpose of supplementing the

28  rehabilitative efforts of the Department of Corrections.

29         Section 2.  For the purpose of incorporating the

30  amendment made by this act to section 948.03, Florida

31

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    Florida Senate - 1998                                  SB 1214
    20-1162-98                                              See HB




  1  Statutes, in a reference thereto, subsection (6) of section

  2  947.23, Florida Statutes, is reenacted to read:

  3         947.23  Action of commission upon arrest of parolee.--

  4         (6)  Within a reasonable time after the hearing, the

  5  commissioner, commissioners, or duly authorized representative

  6  of the commission who conducted the hearing shall make

  7  findings of fact in regard to the alleged parole violation.

  8         (a)  If the hearing was conducted by three or more

  9  commissioners, a majority of them shall enter an order

10  determining whether the charges of parole violation have been

11  sustained, based on the findings of fact made by them.  By

12  such order they shall revoke the parole and return the parolee

13  to prison to serve the sentence theretofore imposed upon her

14  or him, reinstate the original order of parole, order the

15  placement of the parolee into a community control program as

16  set forth in s. 948.03, or enter such other order as is

17  proper.

18         (b)  If the hearing was conducted by one or two

19  commissioners or a duly authorized representative of the

20  commission, at least two commissioners shall enter an order

21  determining whether or not the charges of parole violation

22  have been sustained, based on the findings of fact made by the

23  commissioner, commissioners, or duly authorized representative

24  of the commission.  The commissioners, by such order, shall

25  revoke the parole and return the parolee to prison to serve

26  the sentence theretofore imposed upon her or him, reinstate

27  the original order of parole, order the placement of the

28  parolee into a community control program as set forth in s.

29  948.03, or enter such other order as is proper.

30         (c)  If the disposition after the revocation hearing is

31  to place the parolee into a community control program, the

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    Florida Senate - 1998                                  SB 1214
    20-1162-98                                              See HB




  1  commission shall be guided by the procedures and requirements

  2  provided in chapter 948 which apply to the courts regarding

  3  the development and implementation of community control.

  4

  5  However, any decision to revoke parole shall be based on a

  6  violation of a term or condition specifically enumerated in

  7  the parole release order.  In a case in which parole is

  8  revoked, the majority of the commission or the two

  9  commissioners shall make a written statement of the evidence

10  relied on and the reasons for revoking parole.

11         Section 3.  For the purpose of incorporating the

12  amendment made by this act to section 948.03, Florida

13  Statutes, in a reference thereto, subsection (5) of section

14  948.001, Florida Statutes, is reenacted to read:

15         948.001  Definitions.--As used in this chapter, the

16  term:

17         (5)  "Probation" means a form of community supervision

18  requiring specified contacts with parole and probation

19  officers and other terms and conditions as provided in s.

20  948.03.

21         Section 4.  For the purpose of incorporating the

22  amendment made by this act to section 948.03, Florida

23  Statutes, in a reference thereto, subsection (4) of section

24  958.03, Florida Statutes, is reenacted to read:

25         958.03  Definitions.--As used in this act:

26         (4)  "Probation" means a form of community supervision

27  requiring specified contacts with parole and probation

28  officers and other terms and conditions as provided in s.

29  948.03.

30

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    Florida Senate - 1998                                  SB 1214
    20-1162-98                                              See HB




  1         Section 5.  Subsection (1) of section 948.06, Florida

  2  Statutes, is amended, and subsections (8) and (9) are added to

  3  said section, to read:

  4         948.06  Violation of probation or community control;

  5  revocation; modification; continuance; failure to pay

  6  restitution or cost of supervision.--

  7         (1)  Whenever within the period of probation or

  8  community control there are reasonable grounds to believe that

  9  a probationer or offender in community control has violated

10  his or her probation or community control, any law enforcement

11  officer who is aware of the probationary or community control

12  status of the probationer or offender in community control or

13  any parole or probation supervisor may search without a

14  warrant, or request any county or municipal law enforcement

15  officer to search without a warrant, such probationer or

16  offender or such probationer's or offender's residence or

17  property. Whenever within the period of probation or community

18  control there are reasonable grounds to believe that a

19  probationer or offender in community control has violated his

20  or her probation or community control in a material respect,

21  any law enforcement officer who is aware of the probationary

22  or community control status of the probationer or offender in

23  community control or any parole or probation supervisor may

24  arrest or request any county or municipal law enforcement

25  officer to arrest such probationer or offender without warrant

26  wherever found and forthwith return him or her to the court

27  granting such probation or community control. Any committing

28  magistrate may issue a warrant, upon the facts being made

29  known to him or her by affidavit of one having knowledge of

30  such facts, for the arrest of the probationer or offender,

31  returnable forthwith before the court granting such probation

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    Florida Senate - 1998                                  SB 1214
    20-1162-98                                              See HB




  1  or community control. Any parole or probation supervisor, any

  2  officer authorized to serve criminal process, or any peace

  3  officer of this state is authorized to serve and execute such

  4  warrant. The court, upon the probationer or offender being

  5  brought before it, shall advise him or her of such charge of

  6  violation and, if such charge is admitted to be true, may

  7  forthwith revoke, modify, or continue the probation or

  8  community control or place the probationer into a community

  9  control program. If probation or community control is revoked,

10  the court shall adjudge the probationer or offender guilty of

11  the offense charged and proven or admitted, unless he or she

12  has previously been adjudged guilty, and impose any sentence

13  which it might have originally imposed before placing the

14  probationer on probation or the offender into community

15  control. If such violation of probation or community control

16  is not admitted by the probationer or offender, the court may

17  commit him or her or release him or her with or without bail

18  to await further hearing, or it may dismiss the charge of

19  probation or community control violation. If such charge is

20  not at that time admitted by the probationer or offender and

21  if it is not dismissed, the court, as soon as may be

22  practicable, shall give the probationer or offender an

23  opportunity to be fully heard on his or her behalf in person

24  or by counsel. After such hearing, the court may revoke,

25  modify, or continue the probation or community control or

26  place the probationer into community control. If such

27  probation or community control is revoked, the court shall

28  adjudge the probationer or offender guilty of the offense

29  charged and proven or admitted, unless he or she has

30  previously been adjudged guilty, and impose any sentence which

31  it might have originally imposed before placing the

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    Florida Senate - 1998                                  SB 1214
    20-1162-98                                              See HB




  1  probationer or offender on probation or into community

  2  control.

  3         (8)  Evidence may not be excluded or suppressed from

  4  the trial of a new substantive offense if:

  5         (a)  The defendant has previously been convicted of a

  6  felony;

  7         (b)  The defendant was on probation or community

  8  control at the time of the offense;

  9         (c)  The defendant was subject to random searches, as a

10  condition of supervision, at the time the search was

11  conducted; and

12         (d)  The search was conducted when there was reasonable

13  suspicion to believe that the defendant was in violation of

14  the law or in violation of the terms of probation, community

15  control, or parole.

16         (9)  Evidence may not be excluded or suppressed from a

17  hearing for a violation of probation, community control, or

18  parole, if the search was conducted when there was reasonable

19  suspicion to believe that the offender was in violation of the

20  law or in violation of the terms of probation, community

21  control, or parole. However, in any case where the defendant

22  was on probation, community control, or parole for a

23  controlled substance violation, or for an offense involving

24  the possession or use of a firearm, and at the time the search

25  was conducted the defendant was subject to random searches as

26  a condition of supervision, evidence may not be excluded or

27  suppressed from a hearing for a violation of supervision if

28  the sole basis for the exclusion or suppression of evidence is

29  that the search was conducted without sufficient suspicion or

30  reasonable grounds to believe that the defendant was in

31

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    Florida Senate - 1998                                  SB 1214
    20-1162-98                                              See HB




  1  violation of the law or in violation of the terms of

  2  supervision.

  3         Section 6.  For the purpose of incorporating the

  4  amendment made by this act to section 948.06, Florida

  5  Statutes, in references thereto, subsection (9), paragraph (b)

  6  of subsection (11), and paragraph (b) of subsection (13) of

  7  section 948.01, Florida Statutes, are reenacted to read:

  8         948.01  When court may place defendant on probation or

  9  into community control.--

10         (9)  Procedures governing violations of community

11  control shall be the same as those described in s. 948.06 with

12  respect to probation.

13         (11)  The court may also impose a split sentence

14  whereby the defendant is sentenced to a term of probation

15  which may be followed by a period of incarceration or, with

16  respect to a felony, into community control, as follows:

17         (b)  If the offender does not meet the terms and

18  conditions of probation or community control, the court may

19  revoke, modify, or continue the probation or community control

20  as provided in s. 948.06. If the probation or community

21  control is revoked, the court may impose any sentence that it

22  could have imposed at the time the offender was placed on

23  probation or community control. The court may not provide

24  credit for time served for any portion of a probation or

25  community control term toward a subsequent term of probation

26  or community control. However, the court may not impose a

27  subsequent term of probation or community control which, when

28  combined with any amount of time served on preceding terms of

29  probation or community control for offenses pending before the

30  court for sentencing, would exceed the maximum penalty

31  allowable as provided in s. 775.082. Such term of

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    Florida Senate - 1998                                  SB 1214
    20-1162-98                                              See HB




  1  incarceration shall be served under applicable law or county

  2  ordinance governing service of sentences in state or county

  3  jurisdiction. This paragraph does not prohibit any other

  4  sanction provided by law.

  5         (13)  If it appears to the court upon a hearing that

  6  the defendant is a chronic substance abuser whose criminal

  7  conduct is a violation of chapter 893, the court may either

  8  adjudge the defendant guilty or stay and withhold the

  9  adjudication of guilt; and, in either case, it may stay and

10  withhold the imposition of sentence and place the defendant on

11  drug offender probation.

12         (b)  Offenders placed on drug offender probation are

13  subject to revocation of probation as provided in s. 948.06.

14         Section 7.  For the purpose of incorporating the

15  amendment made by this act to section 948.06, Florida

16  Statutes, in a reference thereto, section 958.14, Florida

17  Statutes, is reenacted to read:

18         958.14  Violation of probation or community control

19  program.--A violation or alleged violation of probation or the

20  terms of a community control program shall subject the

21  youthful offender to the provisions of s. 948.06(1).  However,

22  no youthful offender shall be committed to the custody of the

23  department for a substantive violation for a period longer

24  than the maximum sentence for the offense for which he or she

25  was found guilty, with credit for time served while

26  incarcerated, or for a technical or nonsubstantive violation

27  for a period longer than 6 years or for a period longer than

28  the maximum sentence for the offense for which he or she was

29  found guilty, whichever is less, with credit for time served

30  while incarcerated.

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    Florida Senate - 1998                                  SB 1214
    20-1162-98                                              See HB




  1         Section 8.  This act shall take effect July 1 of the

  2  year in which enacted.

  3

  4            *****************************************

  5                       LEGISLATIVE SUMMARY

  6
      Requires probationers and community controllees on
  7    supervision for controlled substance violations or
      certain offenses involving firearms to submit to random
  8    searches without a warrant. Prohibits contact by an
      offender with the victim, unless authorized by the court,
  9    as a standard condition of probation or community
      control. Authorizes certain searches of the person,
10    residence, or property of a probationer or community
      controllee. Prohibits the exclusion or suppression of
11    evidence from trials for subsequent offenses by offenders
      on probation, community control, or parole, or from
12    hearings for violations of probation, community control,
      or parole, under certain circumstances when there was
13    reasonable suspicion to believe that the offender
      violated the law or the terms of probation, community
14    control, or parole. Provides an exception with respect to
      offenders under supervision for controlled substance
15    violations or certain firearms offenses. Prohibits
      suppression of evidence in hearings for a violation of
16    supervision by such offenders when the suppression is
      based solely on insufficient suspicion or reason to
17    believe a violation of law or the terms of supervision
      occurred, under certain circumstances.
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