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House Bill 1671

Florida House of Representatives - 1997 HB 1671 By Representative Murman 1 A bill to be entitled 2 An act relating to sexual predators; providing 3 a short title; creating s. 916.30, F.S.; 4 providing findings and intent; creating s. 5 916.31, F.S.; defining terms; creating s. 6 916.32, F.S.; requiring notice of release from 7 custody of a person alleged to be a sexually 8 violent predator; providing for evaluation of 9 such person; creating s. 916.33, F.S.; 10 providing for petition to have such person 11 declared a sexually violent predator; creating 12 s. 916.34, F.S.; providing for determination of 13 probable cause, hearings, taking such person 14 into custody; creating s. 916.35, F.S.; 15 providing for trial on issue of whether person 16 is a sexually violent predator; creating s. 17 916.36, F.S.; providing for commitment of a 18 person determined to be a sexually violent 19 predator; creating s. 916.37, F.S.; requiring 20 annual examination of persons committed; 21 creating s. 916.38, F.S.; requiring detention 22 and commitment to conform to constitutional 23 requirements; creating s. 916.39, F.S.; 24 providing for petitions for release; creating 25 s. 916.40, F.S.; requiring certain findings 26 before conditional release to a 27 less-restrictive form of treatment; creating s. 28 916.41, F.S.; authorizing conditional release 29 to a less-restrictive form of treatment; 30 creating s. 916.42, F.S.; requiring certain 31 findings before conditional release; providing 1 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 for conditions and annual review; creating s. 2 916.43, F.S.; providing for revocation or 3 modification of less-restrictive treatment; 4 creating s. 916.44, F.S.; providing that the 5 Department of Children and Family Services is 6 responsible for costs; creating s. 916.45, 7 F.S.; providing for notice to victims; creating 8 s. 916.46, F.S.; providing severability; 9 creating s. 916.47, F.S.; providing for access 10 to certain records; providing an effective 11 date. 12 13 Be It Enacted by the Legislature of the State of Florida: 14 15 Section 1. This act may be cited as "The Sexually 16 Violent Predator Treatment Act." 17 Section 2. Section 916.30, Florida Statutes, is 18 created to read: 19 916.30 Legislative findings and intent.--The 20 Legislature finds that a small but extremely dangerous number 21 of sexually violent predators exist who do not have a mental 22 disease or defect that renders them appropriate for 23 involuntary treatment under the "Baker Act," ss. 24 394.453-394.4788, which is intended to provide short-term 25 hospital treatment to individuals with serious mental 26 disorders and then return them to the community. In contrast 27 to persons appropriate for commitment under the Baker Act, 28 sexually violent predators generally have antisocial 29 personality features that are unamenable to existing mental 30 illness treatment modalities, and those features render them 31 likely to engage in criminal sexually violent behavior. The 2 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 Legislature further finds that the likelihood of sexually 2 violent predators engaging in repeat acts of predatory sexual 3 violence is high. The existing procedures under the Baker Act 4 for involuntary commitment and treatment for mentally ill 5 persons are inadequate to address the risk these sexually 6 violent predators pose to society. The Legislature further 7 finds that the prognosis for rehabilitating sexually violent 8 predators in a prison setting is poor, the treatment needs of 9 this population are very long term, and the treatment 10 modalities for this population are very different than the 11 traditional treatment modalities for people appropriate for 12 commitment under the Baker Act. It is therefore the intent of 13 the Legislature to create a civil commitment procedure for the 14 long-term care and treatment of sexually violent predators. 15 Section 3. Section 916.31, Florida Statutes, is 16 created to read: 17 916.31 Definitions.--As used in ss. 916.30-916.47, the 18 term: 19 (1) "Agency with jurisdiction" means the agency that 20 releases upon lawful order or authority a person serving a 21 sentence in the custody of the Department of Corrections, a 22 person adjudicated delinquent and committed to the custody of 23 the Department of Juvenile Justice, or a person who was 24 involuntarily committed to the custody of the Department of 25 Children and Family Services upon an adjudication of not 26 guilty by reason of insanity. 27 (2) "Court" means the circuit court that most recently 28 sentenced the sexually violent offender in a criminal case or 29 the circuit court in the location where the sexually violent 30 offender resides or proposes to reside upon release from 31 custody or commitment. 3 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 (3) "Less-restrictive alternative" means court-ordered 2 treatment in a setting less restrictive than total 3 confinement. 4 (4) "Likely to engage in predatory acts of sexual 5 violence" means that the person more probably than not will 6 engage in such acts. Such likelihood must be evidenced by a 7 recent overt act if the person is not totally confined at the 8 time the petition is filed under s. 916.33. 9 (5) "Mental abnormality" means a congenital or 10 acquired condition affecting the emotional or volitional 11 capacity which predisposes the person to commit sexually 12 violent offenses in a degree such that the person constitutes 13 a menace to the health and safety of others. 14 (6) "Predatory" means that acts were directed towards 15 strangers or individuals with whom relationships have been 16 established or promoted for the primary purpose of 17 victimization. 18 (7) "Recent overt act" means any act that has either 19 caused harm of a sexually violent nature or creates a 20 reasonable apprehension of such harm. 21 (8) "Respondent" means the person alleged to be a 22 sexually violent offender in a petition filed by the state 23 attorney. 24 (9) "Sexually violent offense" means: 25 (a) Murder of a human being while engaged in sexual 26 battery in violation of s. 782.04(1)(a)2.; 27 (b) Kidnapping of a child under the age of 13 and, in 28 the course of that offense, committing: 29 1. Sexual battery; 30 2. A lewd, lascivious, or indecent assault or act upon 31 or in the presence of the child; or 4 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 3. A violation of s. 796.03 or s. 796.04, relating to 2 prostitution, upon the child; in violation of s. 787.01(3)(a); 3 (c) Committing the offense of false imprisonment upon 4 a child under the age of 13 and, in the course of that 5 offense, committing: 6 1. Sexual battery; 7 2. A lewd, lascivious or indecent assault or act upon 8 or in the presence of the child; or 9 3. A violation of s. 796.03 or s. 796.04, relating to 10 prostitution, upon the child in violation of s. 787.02(3)(a); 11 (d) Sexual battery in violation of s. 794.011; 12 (e) Procuring a person under the age of 18 for 13 prostitution in violation of s. 796.03; 14 (f) Lewd, lascivious, or indecent assault or act upon 15 or in presence of child in violation of s. 800.04; 16 (g) Purchasing or obtaining custody or control of a 17 minor, or offering to purchase or obtain custody or control of 18 a minor, to engage in sexually explicit conduct as defined by 19 s. 847.0145(2); 20 (h) Any conviction for a felony offense in effect at 21 any time before the effective date of this act that is 22 comparable to a sexually violent offense as defined in 23 paragraphs (a)-(g) or any federal conviction or conviction in 24 another state for a felony offense that in this state would be 25 a sexually violent offense; 26 (i) An attempt, criminal solicitation, or conspiracy, 27 in violation of s. 777.04, of a sexually violent offense; or 28 (j) Any act that either at the time of sentencing for 29 the offense or subsequently during civil commitment 30 proceedings under this act has been determined beyond a 31 reasonable doubt to have been sexually motivated. 5 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 (10) "Sexually violent predator" means any person who 2 has been convicted of or charged with a sexually violent 3 offense and who suffers from a mental abnormality or 4 personality disorder that makes the person likely to engage in 5 predatory acts of sexual violence if not confined in a secure 6 facility. 7 Section 4. Section 916.32, Florida Statutes, is 8 created to read: 9 916.32 Notice to state attorney and multidisciplinary 10 team of release of sexually violent predator; immunity from 11 liability; establishing multidisciplinary team.-- 12 (1) When it appears that the person may meet the 13 criteria of a sexually violent predator, the agency with 14 jurisdiction shall give written notice of that fact to the 15 state attorney of the county where that person was charged and 16 the multidisciplinary team established under subsection (4) 90 17 days before: 18 (a) The anticipated discharge from the custody of the 19 Department of Corrections of a person who has been convicted 20 of a sexually violent offense; 21 (b) The anticipated release from a juvenile 22 delinquency commitment program of a person found to have 23 committed a sexually violent offense as a juvenile; 24 (c) The anticipated release of a person who has been 25 charged with a sexually violent offense and who has been 26 determined to be incompetent to stand trial under s. 916.12; 27 or 28 (d) The anticipated release of a person who has been 29 adjudicated not guilty by reason of insanity of a sexually 30 violent offense and involuntarily committed under s. 916.15. 31 6 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 (2) The agency with jurisdiction shall provide the 2 state attorney and multidisciplinary team all relevant 3 information, including, but not limited to: 4 (a) The person's name, identifying factors, 5 anticipated future residence, and offense history; 6 (b) A complete copy of the institutional records 7 compiled by the agency with jurisdiction relating to the 8 person and any out-of-state correctional records, if 9 available; 10 (c) All records relating to the psychological or 11 psychiatric evaluation and treatment of the person; and 12 (d) A current mental health evaluation or mental 13 health records review. 14 (3) The agency with jurisdiction and the state 15 attorney and their employees and individuals contracting, 16 appointed, or volunteering to perform services are immune from 17 liability for any good-faith conduct under this section. 18 (4) The Secretary of the Department of Children and 19 Family Services shall establish a multidisciplinary team, 20 which may include individuals from other state agencies, to 21 review available records of each person referred to such team 22 under subsection (1). The team, within 30 days after 23 receiving notice, shall assess whether or not the person meets 24 the definition of a sexually violent predator. The team shall 25 provide the state attorney with its written assessment within 26 60 days after it received notice. 27 Section 5. Section 916.33, Florida Statutes, is 28 created to read: 29 916.33 Petition; time; contents.--When it appears that 30 a person presently confined may be a sexually violent 31 predator, or it appears that a person who is not presently 7 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 confined but who has previously been convicted of a sexually 2 violent offense has committed a recent overt act and the state 3 attorney has determined that the person meets the definition 4 of a sexually violent predator, the state attorney may file a 5 petition alleging that the person is a sexually violent 6 predator. The petition must state sufficient facts to support 7 such allegation. 8 Section 6. Section 916.34, Florida Statutes, is 9 created to read: 10 916.34 Determination of probable cause; hearing; 11 evaluation; respondent taken into custody.-- 12 (1) Upon the filing of a petition under s. 916.33, the 13 court shall make a nonadversary determination whether the 14 petition sets forth sufficient grounds to believe probable 15 cause exists that the respondent is a sexually violent 16 predator. If a preliminary determination of probable cause is 17 made, the court shall direct that the respondent be taken into 18 custody. 19 (2) Within 72 hours after a respondent is taken into 20 custody under subsection (1), the respondent shall be provided 21 with notice of, and an opportunity to appear in person at, an 22 adversary probable-cause hearing. At this hearing, the court 23 shall verify the respondent's identity and find whether 24 probable cause exists to believe that the respondent is a 25 sexually violent predator. The state may rely upon the 26 petition and supplement the petition with additional evidence 27 or live testimony. 28 (3) At the adversary probable-cause hearing, the 29 respondent shall have the right to be represented by counsel, 30 to present evidence on the respondent's behalf, to 31 8 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 cross-examine witnesses and to view and copy all petitions and 2 reports in the court file. 3 (4) If at the conclusion of the hearing the court 4 finds probable cause to believe that the respondent is a 5 sexually violent predator, the court shall direct that the 6 respondent be transferred to an appropriate secure facility, 7 including, but not limited to, a county jail, for an 8 evaluation as to whether the respondent is a sexually violent 9 predator. The evaluation shall be conducted by a person who is 10 professionally qualified to conduct such an examination. 11 Section 7. Section 916.35, Florida Statutes, is 12 created to read: 13 916.35 Trial; counsel and experts; indigent persons; 14 jury.-- 15 (1) Within 60 days after the completion of an 16 adversary probable-cause hearing, the court shall conduct a 17 trial to determine whether the respondent is a sexually 18 violent predator. The trial may be continued upon a showing of 19 good cause by either party, or by the court on its own motion 20 in the due administration of justice and when the respondent 21 will not be substantially prejudiced. 22 (2) Beginning with the adversary probable-cause 23 hearing, a respondent is entitled to the assistance of counsel 24 at all stages of the proceedings, and, if the respondent is 25 indigent, the court shall appoint the public defender or, if a 26 conflict exists, other counsel to represent the respondent. 27 Whenever a respondent is subjected to an examination under 28 this section, the respondent may retain experts or 29 professional persons to perform an examination on his or her 30 own behalf. When the respondent wishes to be examined by a 31 qualified expert or professional person of the respondent's 9 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 choice, such examiner shall have reasonable access to the 2 respondent for the purpose of performing the examination, as 3 well as to all relevant medical and psychological records and 4 reports. In the case of a respondent who is indigent, the 5 court, upon the respondent's request and upon a finding that 6 expert services are necessary, shall order reasonable 7 compensation for such services as provided in s. 914.06. 8 (3) The respondent or the state attorney may demand, 9 or the court on its own motion may order, that the trial be 10 before a jury of six persons. Such demand for a jury trial 11 shall be filed, in writing, or such order entered, at least 4 12 days before the trial. If no demand or order is made, the 13 trial shall be before the court. 14 Section 8. Section 916.36, Florida Statutes, is 15 created to read: 16 916.36 Determination; commitment procedure; 17 interagency agreements; mistrials. 18 (1) The court or jury shall determine beyond a 19 reasonable doubt whether, the respondent is a sexually violent 20 predator. When the determination is made by a jury, the 21 verdict must be unanimous. Such determination may be 22 appealed. 23 (2) When the court or jury determines that the 24 respondent is a sexually violent predator, the respondent 25 shall be committed to the custody of the Department of 26 Children and Family Services for control, care, and treatment 27 until such time as the respondent's mental abnormality or 28 personality disorder has so changed that the respondent is 29 safe to be at large or to be placed in a less-restrictive 30 alternative under s. 916.40. Such control, care, and treatment 31 shall be provided at a facility operated by the Department of 10 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 Children and Family Services. At all times, sexually violent 2 predators who are committed for control, care, and treatment 3 by the Department of Children and Family Services under this 4 section shall be kept in a secure facility segregated from 5 patients who are not committed under this section. 6 (3) The Department of Children and Family Services is 7 authorized to enter into an interagency agreement with the 8 Department of Corrections for the confinement of sexually 9 violent predators. Such persons who are in the confinement of 10 the Department of Corrections under an interagency agreement 11 shall be housed and managed separately from criminal offenders 12 sentenced to the custody of the Department of Corrections and, 13 except for occasional instances of supervised incidental 14 contact, shall be segregated from such offenders. 15 (4) If the court or jury is not satisfied beyond a 16 reasonable doubt that the person is a sexually violent 17 predator, the court shall direct the person's release. If a 18 mistrial is declared, the court shall direct that the person 19 be held at an appropriate secure facility, including, but not 20 limited to, a county jail, until another trial is conducted. 21 Any subsequent trial following a mistrial must be held within 22 90 days of the previous trial unless such subsequent trial is 23 continued as provided in the Florida Rules of Criminal 24 Procedure. 25 (5) If the respondent has been found incompetent to 26 stand trial and is about to be released pursuant to s. 916.13 27 or s. 916.17 and such person's commitment is sought under 28 subsection (1), the court shall first hear evidence and 29 determine whether the respondent did commit the act or acts 30 charged. The hearing on this issue must comply with all the 31 procedures specified in this section. In addition, the rules 11 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 of evidence applicable in criminal cases shall apply, and all 2 constitutional rights available to defendants at criminal 3 trials, other than the right not to be tried while 4 incompetent, shall apply. After hearing evidence on this 5 issue, the court shall make specific findings on whether the 6 person did commit the act or acts charged, the extent to which 7 the person's incompetence or developmental disability affected 8 the outcome of the hearing, including its effect on the 9 person's ability to consult with and assist counsel and to 10 testify on such person's own behalf, the extent to which the 11 evidence could be reconstructed without the assistance of the 12 person, and the strength of the prosecution's case. If, after 13 the conclusion of the hearing on this issue, the court finds 14 beyond a reasonable doubt that the person did commit the act 15 or acts charged, the court shall enter a final order, 16 appealable by the person, on that issue and may proceed to 17 consider whether the person should be committed pursuant to 18 this section. 19 Section 9. Section 916.37, Florida Statutes, is 20 created to read: 21 916.37 Annual examinations.--Each sexually violent 22 predator committed under s. 916.36 shall have an examination 23 of his or her mental condition made annually. The report shall 24 include consideration of whether conditional release to a 25 less-restrictive alternative is in the best interest of the 26 person and will adequately protect the community. The 27 committed person may retain a qualified professional person to 28 examine such person, and the expert or professional person 29 shall have access to all records concerning the person. If the 30 committed person is indigent and so requests, the court may 31 appoint a qualified professional person to examine the person. 12 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 The yearly report shall be provided to the court that 2 committed the person and the state attorney. The court shall 3 conduct an annual review of the status of the committed 4 person. 5 Section 10. Section 916.38, Florida Statutes, is 6 created to read: 7 916.38 Detention and commitment to conform to 8 constitutional requirements.--The involuntary detention or 9 commitment of sexually violent predators must conform to 10 constitutional requirements for care and treatment. 11 Section 11. Section 916.39, Florida Statutes, is 12 created to read: 13 916.39 Petition for release; procedure.-- 14 (1) If the Department of Children and Family Services 15 determines that the mental abnormality or personality disorder 16 of a person committed as a sexually violent predator has so 17 changed that the person is not likely to commit predatory acts 18 of sexual violence if conditionally released to a 19 less-restrictive alternative or unconditionally discharged, 20 the department shall authorize the person to petition the 21 court for release. The petition shall be served upon the court 22 and the state attorney. The court, upon receipt of the 23 petition for release to a less-restrictive alternative or 24 unconditional discharge, shall order a hearing within 45 days. 25 The state attorney shall represent the state and shall have 26 the right to have the committed person examined by an expert 27 of the state attorney's choice. The hearing shall be before a 28 jury if demanded by either the committed person or the state 29 attorney. The burden of proof shall be upon the state attorney 30 to show beyond a reasonable doubt that the committed person's 31 mental abnormality or personality disorder remains such that 13 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 the person is not safe to be at large and that if discharged 2 is likely to commit predatory acts of sexual violence. 3 (2) At any time, a person committed as a sexually 4 violent predator may petition the court for conditional 5 release to a less-restrictive alternative or unconditional 6 discharge without the approval of the Department of Children 7 and Family Services. The department shall provide the 8 committed person with an annual written notice of the person's 9 right to petition the court for conditional release to a 10 less-restrictive alternative or unconditional discharge over 11 the department's objection. The notice shall contain a waiver 12 of rights. The department shall forward the notice and waiver 13 form to the court with the annual report. If the person files 14 a petition for conditional release to a less-restrictive 15 alternative or unconditional discharge over the department's 16 objection, the court shall review the petition to determine 17 whether there are reasonable grounds to support the petition. 18 If the court finds that the petition is based upon frivolous 19 grounds, it shall deny the petition without a hearing. If the 20 court finds that the petition is based upon reasonable 21 grounds, the court shall set a show-cause hearing to determine 22 whether facts exist that warrant an adversary hearing on 23 whether the committed person's condition has so changed that 24 he or she is safe to be conditionally released to a 25 less-restrictive alternative or unconditionally discharged. 26 The committed person has the right to have an attorney 27 represent him or her at the show-cause hearing, but the person 28 is not entitled to be present at the show-cause hearing. If 29 the court at the show-cause hearing determines that probable 30 cause exists to believe that the committed person's mental 31 abnormality or personality disorder has so changed that the 14 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 person is not likely to engage in predatory acts of sexual 2 violence if conditionally released to a less-restrictive 3 alternative or unconditionally discharged, the court shall set 4 an adversary hearing on the issue. At the adversary hearing, 5 the committed person shall be entitled to be present and to 6 the benefit of all constitutional protections that were 7 afforded to the person at the initial commitment proceeding. 8 The state attorney shall represent the state and shall have a 9 right to a jury trial and to have the committed person 10 evaluated by experts chosen by the state. The committed 11 person shall also have the right to have experts evaluate him 12 or her on his or her behalf, and the court shall appoint an 13 expert if the person is indigent and requests an appointment. 14 The burden of proof at the hearing shall be upon the state 15 attorney to prove beyond a reasonable doubt that the committed 16 person's mental abnormality or personality disorder remains 17 such that the person is likely to engage in predatory acts of 18 sexual violence if conditionally released to a 19 less-restrictive alternative or unconditionally discharged. 20 (3) If a committed person has previously filed a 21 petition for release to a less-restrictive alternative or for 22 unconditional discharge without the approval of the Department 23 of Children and Family Services and the court determined upon 24 review of the petition, or following a hearing, that the 25 petition was frivolous or that the committed person's 26 condition had not so changed that the person was safe to be at 27 large, the court shall deny any subsequent petition unless the 28 petition contains facts upon which a court could find the 29 condition of the petitioner had so changed that a hearing was 30 warranted. 31 15 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 (4) The jurisdiction of the court over a person 2 committed as a sexually violent predator continues until such 3 time as the person is unconditionally discharged. 4 Section 12. Section 916.40, Florida Statutes, is 5 created to read: 6 916.40 Conditional release to less-restrictive 7 alternative; findings.--Before the court may enter an order 8 directing conditional release to a less-restrictive 9 alternative for a person committed as a sexually violent 10 predator, it must find the following: 11 (1) The person will be treated by a treatment provider 12 who is qualified in this state to provide such treatment; 13 (2) The treatment provider has presented a specific 14 course of treatment, has agreed to assume responsibility for 15 such treatment, has agreed to report progress to the court 16 regularly, and will report violations immediately to the 17 court, the state attorney, and the sheriff of the county where 18 the less-restrictive alternative is located; 19 (3) Housing exists that is sufficiently secure to 20 protect the community and the person and the treatment 21 provider has agreed in writing to accept the person, to 22 provide the level of security required by the court, and 23 immediately to report to the court, the state attorney, and 24 the sheriff if the person leaves the housing to which he or 25 she has been assigned without authorization; 26 (4) The person is willing to comply with the course of 27 treatment presented by the treatment provider and all 28 requirements imposed by the treatment provider and by the 29 court; and 30 (5) The person is willing to comply with all 31 supervision requirements imposed by the court. 16 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 Section 13. Section 916.41, Florida Statutes, is 2 created to read: 3 916.41 Conditional release to less restrictive 4 alternative.-- 5 (1) Upon the conclusion of the evidence in an 6 adversary hearing held under s. 916.39, if the court finds 7 that there is no legally sufficient evidentiary basis for a 8 reasonable jury to find that the conditions set forth in s. 9 916.40 have been met, the court shall grant a motion by the 10 state for a judgment as a matter of law on the issue of 11 conditional release to a less-restrictive alternative. 12 (2) Whenever the issue of conditional release to a 13 less-restrictive alternative is submitted to the jury, the 14 court shall instruct the jury to return a verdict in 15 substantially the following form: Has the state proved beyond 16 a reasonable doubt that the proposed less-restrictive 17 alternative is not in the best interests of (name of the 18 committed person) or will not adequately protect the 19 community? Answer: Yes or No. 20 Section 14. Section 916.42, Florida Statutes, is 21 created to read: 22 916.42 Conditional release to less-restrictive 23 environment; judgment; conditions; annual review.-- 24 (1) If the court or jury determines that conditional 25 release to a less-restrictive alternative is in the best 26 interest of the committed person and will adequately protect 27 the community and the court determines that the minimum 28 conditions set forth in s. 916.40 are met, the court shall 29 enter judgment and direct a conditional release. 30 (2) The court shall impose any additional conditions 31 necessary to ensure compliance with treatment and to protect 17 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 the community. If the court finds that conditions do not 2 exist that will both ensure compliance by the committed person 3 with treatment and protect the community, the person shall be 4 remanded to the custody of the Department of Children and 5 Family Services for control, care, and treatment in a secure 6 facility. 7 (3) If the service provider designated to provide 8 inpatient or outpatient treatment or to monitor or supervise 9 any other terms and conditions of a committed person's 10 placement in a less-restrictive alternative is other than the 11 Department of Children and Family Services or the Department 12 of Corrections, the service provider so designated must agree 13 in writing to provide such treatment. 14 (4) Before authorizing any release to a 15 less-restrictive alternative, the court shall impose such 16 conditions upon the committed person as are necessary to 17 ensure the safety of the community. The court shall order the 18 Department of Children and Family Services to investigate the 19 less-restrictive alternative and recommend any additional 20 conditions to the court. Conditions shall include, but are not 21 limited to, the following: specification of residence, 22 prohibition of contact with potential or past victims, 23 prohibition of alcohol and other drug use, participation in a 24 specific course of inpatient or outpatient treatment that may 25 include monitoring by the use of polygraph and plethysmograph, 26 community supervision, a requirement that the person remain 27 within the state unless he or she receives prior authorization 28 by the court, and any additional conditions that the court 29 determines are in the best interest of the person or others. 30 A copy of the conditions of release shall be given to the 31 18 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 conditionally released person and to any designated service 2 providers. 3 (5) Any service provider designated to provide 4 inpatient or outpatient treatment shall monthly, or as 5 otherwise directed by the court, submit to the court, to the 6 Department of Children and Family Services facility from which 7 the committed person was released, and to the state attorney 8 of the county in which the person was found to be a sexually 9 violent predator a report stating whether the person is 10 complying with the terms and conditions of the conditional 11 release to a less-restrictive alternative. 12 (6) Each committed person released to a 13 less-restrictive alternative shall have his or her case 14 reviewed by the court that released him or her no later than 1 15 year after such release and annually thereafter until the 16 person is unconditionally discharged. Review may occur more 17 frequently if the court, in its discretion on its own motion 18 or on motion of the conditionally released person, the 19 Department of Children and Family Services, or the state 20 attorney, so determines. The sole question to be determined 21 by the court is whether the person shall continue to be 22 conditionally released to a less-restrictive alternative. The 23 court in making its determination shall be aided by the 24 periodic reports filed pursuant to subsection (5) and the 25 opinions of experts from the Department of Children and Family 26 Services and of other experts. 27 Section 15. Section 916.43, Florida Statutes, is 28 created to read: 29 916.43 Conditional release to less-restrictive 30 alternative; hearing on revocation or modification; authority 31 to apprehend conditionally released person.-- 19 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 (1) Any service provider or the state attorney may 2 petition the court, or the court on its own motion may 3 schedule an immediate hearing, for the purpose of revoking or 4 modifying the terms of a person's conditional release to a 5 less-restrictive alternative if the petitioner or the court 6 believes the conditionally released person is not complying 7 with the terms and conditions of his or her release or is in 8 need of additional care and treatment. 9 (2) If the state attorney or the court, based upon 10 information received by them, reasonably believes that a 11 conditionally released person is not complying with the terms 12 and conditions of his or her conditional release to a 13 less-restrictive alternative, the court may order that the 14 conditionally released person be apprehended and taken into 15 custody until a hearing is held to determine the facts and 16 whether or not the person's conditional release should be 17 revoked or modified. The court shall be notified following 18 the apprehension of the person's apprehension before the close 19 of the next judicial day. Both the state attorney and the 20 conditionally released person have the right to request an 21 immediate mental examination of the conditionally released 22 person. If the conditionally released person is indigent, the 23 court shall, upon request, assist him or her in obtaining a 24 qualified expert or professional person to conduct the 25 examination. 26 (3) The court, upon receiving notification of the 27 conditionally released person's apprehension, shall promptly 28 schedule a hearing. The issue to be determined is whether the 29 state has proven by a preponderance of the evidence that the 30 conditionally released person did not comply with the terms 31 and conditions of his or her release. Hearsay evidence is 20 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 admissible if the court finds it otherwise reliable. At the 2 hearing, the court shall determine whether the person shall 3 continue to be conditionally released on the same or modified 4 conditions or whether his or her conditional release shall be 5 revoked and he or she shall be committed to total confinement. 6 Section 16. Section 916.44, Florida Statutes, is 7 created to read: 8 916.44 Department of Children and Family Services 9 responsible for costs.--The Department of Children and Family 10 Services is responsible for all costs relating to the 11 evaluation and treatment of persons committed to the 12 department's custody as sexually violent predators. 13 Section 17. Section 916.45, Florida Statutes, is 14 created to read: 15 916.45 Notice to victims of release of persons 16 committed as sexually violent predators.--As soon as is 17 practicable, the Department of Children and Family Services 18 shall give written notice of the release of a person committed 19 as a sexually violent predator to any victim of the committed 20 person who is alive and whose address is known to the 21 department or, if the victim is deceased, to the victim's 22 family, if the family's address is known to the department. 23 Failure to notify is not a reason for postponement of release. 24 Nothing in this section creates a cause of action against the 25 state or an employee of the state acting within the scope of 26 the employee's employment as a result of the failure to notify 27 pursuant to this action. 28 Section 18. Section 916.46, Florida Statutes, is 29 created to read: 30 916.46 Severability.--If any provision of this act or 31 its application to any person or circumstance is held invalid, 21 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1671 583-122-97 1 the invalidity shall not affect other provisions or 2 applications of the act which can be given effect without the 3 invalid provisions or application and, to this end, the 4 provisions of this act are severable. 5 Section 19. Section 916.47, Florida Statutes, is 6 created to read: 7 916.47 Confidential or privileged information and 8 records.--In order to protect the public, relevant information 9 and records that are held by a governmental entity are 10 otherwise confidential or privileged shall be released to the 11 agency with jurisdiction or the state attorney for the purpose 12 of meeting the notice requirement provided in s. 916.32 and 13 determining whether a person is or continues to be a sexually 14 violent predator. This section shall be part of and 15 supplemental to the provisions of ss. 916.30-916.45. 16 Section 20. This act shall take effect July 1, 1997. 17 18 ***************************************** 19 SENATE SUMMARY 20 Establishes a procedure under which persons who meet the criteria for classification as sexually violent 21 predators, but who do not qualify for hospitalization under the Baker Act, may be committed to the Department 22 of Children and Family Services for treatment. Provides for conditional release to less-restrictive forms of 23 treatment and for final, unconditional release. 24 25 26 27 28 29 30 31 22