Senate Bill 1964

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    Florida Senate - 1998                                  SB 1964

    By Senator Gutman





    34-1095-98

  1                      A bill to be entitled

  2         An act relating to criminal procedure; revising

  3         ch. 916, F.S., relating to mentally deficient

  4         and mentally ill defendants; amending s.

  5         916.10, F.S.; redesignating ch. 916, F.S., as

  6         the "Forensic Procedure Act"; amending s.

  7         916.105, F.S.; providing legislative intent

  8         with respect to the treatment of defendants who

  9         are guilty but insane; amending s. 916.106,

10         F.S.; revising definitions; amending s.

11         916.107, F.S.; providing for rights of

12         defendants who have been found guilty but

13         insane; amending s. 916.108, F.S.; providing

14         for the training of mental health experts;

15         amending s. 916.11, F.S.; providing for

16         appointing expert witnesses; transferring,

17         renumbering, and amending s. 916.16, F.S.;

18         providing for the committing court to retain

19         jurisdiction of a person committed under ch.

20         916, F.S.; transferring, renumbering, and

21         amending s. 916.175, F.S.; providing a penalty

22         for a person who escapes from involuntary

23         commitment; transferring, renumbering, and

24         amending s. 916.178, F.S.; prohibiting the

25         introduction or removal of certain articles

26         from a forensic facility; transferring and

27         renumbering s. 916.19, F.S., relating to

28         institutional security personnel; transferring

29         and renumbering s. 916.20, F.S., relating to

30         the authority of the Department of Health to

31         adopt rules with respect to ch. 916, F.S.;

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  1         creating s. 916.118, F.S.; providing

  2         definitions; creating s. 916.119, F.S.;

  3         providing for applicability; amending s.

  4         916.12, F.S.; providing for determining a

  5         person's mental competence to proceed; amending

  6         s. 916.13, F.S.; providing for involuntary

  7         commitment of a defendant adjudicated

  8         incompetent to proceed; amending s. 916.14,

  9         F.S.; providing that the statute of limitations

10         does not apply if a defendant is adjudicated

11         incompetent to proceed; amending s. 916.145,

12         F.S.; providing for dismissal of charges;

13         repealing s. 916.15, F.S., relating to the

14         involuntary commitment of a defendant

15         adjudicated not guilty by reason of insanity;

16         amending s. 916.17, F.S.; providing for the

17         conditional release of a defendant adjudicated

18         incompetent to proceed; creating s. 916.21,

19         F.S.; providing circumstances under which a

20         defendant may be found guilty but insane;

21         creating s. 916.22, F.S.; requiring that a

22         defendant give notice of intent to plead guilty

23         but insane; creating s. 916.23, F.S.; providing

24         for a mental examination of the defendant;

25         creating s. 916.24, F.S.; providing

26         requirements for the form of the verdict;

27         creating s. 916.25, F.S.; providing for entry

28         of a judgment of guilty but insane; providing

29         for notification of the victim; creating s.

30         916.26, F.S.; specifying circumstances under

31         which the court shall place a defendant under

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  1         the jurisdiction of the Forensic Security

  2         Review Board; providing for appealing such

  3         order; creating s. 916.27, F.S.; providing for

  4         commitment of a defendant to the Department of

  5         Health; providing a standard of proof for

  6         dispositional proceedings; creating s. 916.28,

  7         F.S.; providing for an order of discharge;

  8         creating s. 916.29, F.S.; providing for the

  9         conditional release of a defendant by the

10         Forensic Security Review Board; providing for

11         conditions of release; providing for revoking

12         such release; providing for application to the

13         board for discharge from or modification of the

14         order of conditional release; creating s.

15         916.31, F.S.; providing for the Forensic

16         Security Review Board to issue an order of

17         commitment; providing for application for

18         discharge or conditional release; creating s.

19         916.32, F.S.; providing for a hearing on

20         discharge, conditional release, or commitment;

21         specifying rights of the defendant at the

22         hearing; creating s. 916.33, F.S.; providing

23         for discharging the defendant from the

24         jurisdiction of the Forensic Security Review

25         Board; providing for review; creating s.

26         916.34, F.S.; providing requirements for the

27         court with respect to a crime committed by a

28         defendant under the jurisdiction of the board;

29         creating s. 916.35, F.S.; establishing the

30         Forensic Security Review Board within the

31         Department of Health; providing for the

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  1         Governor to appoint the members of the board;

  2         providing for terms of office; authorizing the

  3         payment of per diem expenses; providing for

  4         meetings of the board; providing for judicial

  5         review of an order of the board; creating s.

  6         916.37, F.S.; requiring the Department of

  7         Health to adopt rules for evaluating and

  8         treating defendants committed to the

  9         department; providing requirements for

10         conditional release plans; creating s. 916.38,

11         F.S.; authorizing the Forensic Security Review

12         Board to issue subpoenas; providing for

13         enforcement by the circuit court; creating s.

14         916.39, F.S.; authorizing a facility

15         administrator to apply for a leave of absence

16         on behalf of a defendant; requiring review by

17         the board; creating s. 916.41, F.S.; requiring

18         the state attorneys to file certain statistical

19         records with respect to cases in which the

20         defense of guilty but insane is asserted;

21         creating s. 916.42, F.S.; requiring the

22         Forensic Security Review Board to make certain

23         reports to the Governor and Legislature;

24         amending s. 40.29, F.S., relating to pay of

25         jurors and witnesses; conforming a

26         cross-reference to changes made by the act;

27         requesting the Supreme Court to adopt rules to

28         reflect the provisions of the act; providing

29         appropriations; providing for application of

30         the act; providing an effective date.

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

  2

  3         Section 1.  Section 916.10, Florida Statutes, is

  4  amended to read:

  5         916.10  Short title.--This chapter may be cited as the

  6  "Forensic Procedure Client Services Act."

  7         Section 2.  Section 916.105, Florida Statutes, is

  8  amended to read:

  9         916.105  Legislative intent.--

10         (1)  It is the intent of the Legislature that the

11  Department of Health and Rehabilitative Services establish,

12  locate, and maintain separate and secure facilities and

13  programs for the treatment of forensic clients who have been

14  found to be mentally retarded or mentally ill defendants, or

15  who are guilty but insane have been acquitted of crimes by

16  reason of insanity, and who, while still under the

17  jurisdiction of the committing court, are committed to the

18  department for mental retardation or mental health services as

19  incompetent to proceed under ss. 916.118-916.17 or, with

20  respect to forensic clients who are guilty but insane, are

21  committed to the department under the jurisdiction of the

22  Forensic Security Review Board for disposition under ss.

23  916.21-916.42 the provisions of this chapter.  The separate,

24  secure facilities designated by the department as forensic

25  facilities shall be sufficient to accommodate the number of

26  clients committed under the conditions noted above, except

27  those clients found by the department or the Forensic Security

28  Review Board to be appropriate for treatment in a community or

29  civil mental health treatment facility. Forensic Such

30  facilities shall be designed and administered so that ingress

31  and egress, together with other requirements of this chapter,

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  1  may be strictly controlled by staff responsible for security

  2  in order to protect the client, hospital personnel, other

  3  clients, and citizens in adjacent communities.

  4         (2)  It is further the intent of the Legislature that

  5  treatment programs for forensic clients who are found to be

  6  mentally retarded or mentally ill defendants and are

  7  involuntarily committed to certain mental retardation or

  8  mental health facilities, and who are still under the

  9  jurisdiction of the committing court, be provided in such a

10  manner, subject to security requirements and other mandates of

11  this chapter, as to ensure the rights of the said clients and

12  the protection of the public, as provided in this chapter.

13         (3)  It is the intent of the Legislature that

14  evaluation and treatment of mentally ill and mentally retarded

15  defendants be provided in community inpatient or outpatient

16  settings, in community residential facilities, or in civil,

17  nonforensic facilities, whenever this is a feasible

18  alternative to treatment in a state forensic facility.

19         Section 3.  Section 916.106, Florida Statutes, is

20  amended to read:

21         916.106  Definitions.--As used in For the purposes of

22  this chapter, the term:

23         (1)  "Chemical weapon" means any shell, cartridge,

24  bomb, gun, or other device capable of emitting

25  chloroacetophenone (CN), chlorobenzalmalononitrile (CS) or any

26  derivatives thereof in any form, or any other agent with

27  lacrimatory properties, and shall include products such as

28  that commonly known as "mace."

29         (2)  "Court" means the circuit court.

30         (2)(3)  "Department" means the Department of Health and

31  Rehabilitative Services.

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  1         (3)(4)  "Forensic client" or "patient" means any

  2  mentally retarded or mentally ill defendant, or any person

  3  found guilty but insane, person who is committed to the

  4  department or to the Forensic Security Review Board and placed

  5  into treatment as provided in this chapter. The terms apply to

  6  an adult or a juvenile who is prosecuted as an adult. and:

  7         (a)  Who has been determined to need treatment for a

  8  mental illness or mental retardation;

  9         (b)  Who has been found incompetent to stand trial or

10  incompetent for sentencing, has been acquitted of a criminal

11  offense by reason of insanity, has criminal charges pending,

12  or has been found guilty of a criminal offense but is not an

13  inmate of the Department of Corrections or any other

14  correctional facility; and

15         (c)  Who has been determined by the department to:

16         1.  Be dangerous to himself or herself or others; or

17         2.  Present a clear and present potential to escape.

18         (4)(5)  "Forensic facility" means a separate and secure

19  facility established within the department for the treatment

20  of forensic clients.  Such separate and secure facilities

21  shall be security-grade buildings located on grounds distinct

22  in location from other treatment facilities for persons who

23  are mentally ill. The Florida State Hospital may shall not be

24  required to maintain separate treatment facilities for

25  forensic clients mentally ill or mentally retarded persons

26  found incompetent for trial or acquitted of a criminal offense

27  by reason of insanity.

28         (5)(6)  "Institutional security personnel" means staff

29  members who meet or exceed the requirements of s. 943.13 and

30  who are responsible for providing security, for protection of

31  forensic clients and personnel, for the enforcement of rules,

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  1  for prevention and investigation of unauthorized activities,

  2  and for safeguarding the interests of citizens in the

  3  surrounding communities.

  4         (7)  "Mentally ill" means having an impairment of the

  5  emotional processes, of the ability to exercise conscious

  6  control of one's actions, or of the ability to perceive

  7  reality or to understand, which impairment substantially

  8  interferes with a person's ability to meet the ordinary

  9  demands of living, regardless of etiology; except that, for

10  the purposes of this chapter, the term does not include simple

11  intoxication, persons who are solely mentally retarded, or

12  conditions manifested only by antisocial behavior or drug

13  addiction.

14         (8)  "Mental retardation" means significantly

15  subaverage general intellectual functioning existing

16  concurrently with deficits in adaptive behavior and manifested

17  during the period from conception to age 18. "Significantly

18  subaverage general intellectual functioning," for the purpose

19  of this definition, means performance which is two or more

20  standard deviations from the mean score on a standardized

21  intelligence test specified in the rules of the department.

22  "Adaptive behavior," for the purpose of this definition, means

23  the effectiveness or degree with which an individual meets the

24  standards of personal independence and social responsibility

25  expected of the individual's age, cultural group, and

26  community.

27         Section 4.  Section 916.107, Florida Statutes, is

28  amended to read:

29         916.107  Rights of forensic clients.--

30         (1)  RIGHT TO INDIVIDUAL DIGNITY.--

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  1         (a)  The policy of the state is that the individual

  2  dignity of the patient shall be respected at all times and

  3  upon all occasions, including any occasion when the patient is

  4  detained, transported, or treated.  Persons who are mentally

  5  ill or mentally retarded and who are charged with, or who have

  6  been convicted of, committing criminal acts, or who have been

  7  found guilty but insane, shall receive appropriate treatment.

  8  In a criminal case involving a person who has been adjudicated

  9  incompetent to proceed stand trial or who has been found not

10  guilty but insane by reason of insanity, or who has otherwise

11  been found by the court to meet the criteria for involuntary

12  commitment, a jail may be used as an emergency facility for up

13  to 15 days after from the date the department receives a

14  completed copy of the commitment order containing the

15  documentation required by law Rules 3.212 and 3.217, Florida

16  Rules of Criminal Procedure.  In every case in which a

17  mentally ill or mentally retarded person is held in a jail,

18  evaluation and treatment shall be provided in the jail by the

19  local receiving facility, the patient's physician or clinical

20  psychologist, or any other mental health program available to

21  provide such treatment until the person is transferred to the

22  custody of the department.

23         (b)  Mentally ill or mentally retarded persons who are

24  committed to the department pursuant to this chapter and who

25  are initially placed in, or subsequently transferred to, a

26  civil mental health treatment facility shall have the same

27  rights as other persons committed to civil facilities as

28  described in part I of chapter 394, as long as they remain in

29  a civil facility.

30         (2)  RIGHT TO TREATMENT.--

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  1         (a)  The policy of the state is that the department

  2  shall not deny treatment of mental illness or mental

  3  retardation to any client and that no services shall not be

  4  delayed at a forensic mental health treatment facility because

  5  the client is unable to pay. However, every reasonable effort

  6  to collect appropriate reimbursement for the cost of providing

  7  mental health services to persons able to pay for the

  8  services, including reimbursement from insurance or other

  9  third-party payments, shall be made by forensic facilities and

10  jails that provide providing services pursuant to this chapter

11  and in accordance with the provisions of s. 402.33.

12         (b)  Each client who is a patient at a forensic

13  facility shall be given, at the time of admission and at

14  regular intervals thereafter, a physical examination, which

15  shall include screening for communicable disease by a health

16  practitioner authorized by law to give such screenings and

17  examinations.

18         (c)  Every patient committed pursuant to this chapter

19  act shall be afforded the opportunity to participate in

20  activities designed to enhance self-image and the beneficial

21  effects of other treatments, as determined by the facility.

22         (d)  Not more than 30 days after admission, each

23  patient shall have and receive, in writing, an individualized

24  treatment plan that which the patient has had an opportunity

25  to assist in preparing.

26         (3)  RIGHT TO EXPRESS AND INFORMED CONSENT.--

27         (a)  A person committed to the department pursuant to

28  this chapter act shall be asked to give express and informed

29  written consent for treatment. "Express and informed consent"

30  or "consent" means consent given voluntarily in writing after

31  a conscientious and sufficient explanation and disclosure of

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  1  the purpose of the proposed treatment, the common side effects

  2  of the treatment, if any, the expected duration of the

  3  treatment, and any alternative treatment available.  If a

  4  patient in a forensic facility refuses such treatment as is

  5  deemed necessary by the patient's multidisciplinary treatment

  6  team at the forensic facility for the appropriate care of the

  7  patient and the safety of the patient or others, such

  8  treatment may be provided under the following circumstances:

  9         1.  In an emergency situation in which there is

10  immediate danger to the safety of the patient or others, such

11  treatment may be provided upon the written order of a

12  physician for a period not to exceed 48 hours, excluding

13  weekends and legal holidays.  If, after the 48-hour period,

14  the patient has not given express and informed consent to the

15  treatment initially refused, the administrator of the forensic

16  facility shall, within 48 hours, excluding weekends and legal

17  holidays, petition the committing court or the circuit court

18  serving the county in which the facility is located, at the

19  option of the facility administrator, for an order authorizing

20  the continued treatment of the patient.  In the interim,

21  treatment may be continued without the consent of the patient

22  upon the continued written order of a physician who has

23  determined that the emergency situation continues to present a

24  danger to the safety of the patient or others.

25         2.  In a situation other than an emergency situation,

26  the administrator of the forensic facility shall petition the

27  court for an order authorizing the treatment of the patient.

28  The order shall allow such treatment for a period not to

29  exceed 90 days from the date of the entry of the order. Unless

30  the court is notified in writing that the patient has provided

31  express and informed consent in writing or that the patient

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  1  has been discharged by the committing court, the administrator

  2  shall, prior to the expiration of the initial 90-day order,

  3  petition the court for an order authorizing the continuation

  4  of treatment for another 90-day period.  This procedure shall

  5  be repeated until the patient provides consent or is

  6  discharged by the committing court.

  7         3.  At the hearing on the issue of whether the court

  8  should enter an order authorizing treatment for which a

  9  patient has refused to give express and informed consent, the

10  court shall determine by clear and convincing evidence that

11  the patient is mentally ill or mentally retarded as defined in

12  this chapter, that the treatment not consented to is essential

13  to the care of the patient, and that the treatment not

14  consented to is not experimental and does not present an

15  unreasonable risk of serious, hazardous, or irreversible side

16  effects.  In arriving at the substitute judgment decision, the

17  court must consider at least the following factors:

18         a.  The patient's expressed preference regarding

19  treatment;

20         b.  The probability of adverse side effects;

21         c.  The prognosis without treatment; and

22         d.  The prognosis with treatment.

23

24  The hearing shall be as convenient to the patient as may be

25  consistent with orderly procedure and shall be conducted in

26  physical settings not likely to be injurious to the patient's

27  condition. The court may appoint a master to preside at the

28  hearing. The patient or the patient's guardian, and his or her

29  representative, shall be provided with a copy of the petition

30  and the date, time, and location of the hearing. The patient

31  has the right to have an attorney represent him or her at the

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  1  hearing, and, if the patient is indigent, the court shall

  2  appoint the office of the public defender to represent the

  3  patient at the hearing.  The patient may testify or not, as he

  4  or she chooses, and has the right to cross-examine witnesses

  5  testifying on behalf of the facility and may present his or

  6  her own witnesses.

  7         (b)  In addition to the provisions of paragraph (a), in

  8  the case of surgical procedures requiring the use of a general

  9  anesthetic or electroconvulsive treatment or nonpsychiatric

10  medical procedures, and prior to performing the procedure,

11  written permission shall be obtained from the patient, if he

12  or she is legally competent, from the parent or guardian of a

13  minor patient, or from the guardian of an incompetent patient.

14  The administrator of the forensic facility or his or her

15  designated representative may, with the concurrence of the

16  patient's attending physician, authorize emergency surgical or

17  nonpsychiatric medical treatment if such treatment is deemed

18  lifesaving or for a situation threatening serious bodily harm

19  to the patient and permission of the patient or the patient's

20  guardian cannot be obtained.

21         (4)  QUALITY OF TREATMENT.--Each patient committed

22  pursuant to this chapter shall receive treatment suited to his

23  or her needs, which shall be administered skillfully, safely,

24  and humanely with full respect for the patient's dignity and

25  personal integrity.  Each patient shall receive such medical,

26  vocational, social, educational, and rehabilitative services

27  as the patient's condition requires to bring about an early

28  return to his or her community.  In order to achieve this

29  goal, the department is directed to coordinate its forensic

30  mental health and mental retardation programs with all other

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  1  programs of the department and other appropriate state

  2  agencies.

  3         (5)  COMMUNICATION, ABUSE REPORTING, AND VISITS.--

  4         (a)  Each patient committed pursuant to the provisions

  5  of this chapter has the right to communicate freely and

  6  privately with persons outside the facility unless it is

  7  determined that such communication is likely to be harmful to

  8  the patient or others.

  9         (b)  Each patient committed under the provisions of

10  this chapter shall be allowed to receive, send, and mail

11  sealed, unopened correspondence; and no patient's incoming or

12  outgoing correspondence shall be opened, delayed, held, or

13  censored by the facility unless there is reason to believe

14  that it contains items or substances which may be harmful to

15  the patient or others, in which case the administrator may

16  direct reasonable examination of such mail and may regulate

17  the disposition of such items or substances. "Correspondence"

18  does shall not include parcels or packages.  Forensic

19  facilities are authorized to promulgate reasonable rules to

20  provide for the inspection of parcels or packages and for the

21  removal of contraband items for health or security reasons

22  prior to the contents being given to a resident.

23         (c)  If a patient's right to communicate is restricted

24  by the administrator, written notice of such restriction shall

25  be served on the patient or the patient's guardian or

26  representatives, and such restriction shall be recorded on the

27  patient's clinical record with the reasons therefor. The

28  restriction of a patient's right to communicate shall be

29  reviewed at least every 90 days.

30         (d)  Each forensic facility shall establish reasonable

31  rules governing visitors, visiting hours, and the use of

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  1  telephones by patients in the least restrictive possible

  2  manner.

  3         (e)  Each patient committed pursuant to this chapter

  4  shall have ready access to a telephone in order to report an

  5  alleged abuse.  The facility or program staff shall verbally

  6  and in writing inform each patient of the procedure for

  7  reporting abuse.  A written copy of that procedure, including

  8  the telephone number of the abuse registry and reporting

  9  forms, shall be posted in plain view.

10         (f)  The department shall adopt rules providing a

11  procedure for reporting abuse.  Facility staff shall be

12  required, as a condition of employment, to become familiar

13  with the procedures for the reporting of abuse.

14         (6)  CARE AND CUSTODY OF PERSONAL EFFECTS OF

15  PATIENTS.--A patient's right to his or her clothing and

16  personal effects shall be respected.  The department by rule,

17  or the administrator of any facility by written institutional

18  policy, may declare certain items to be hazardous to the

19  welfare of patients or others or to the operation of the

20  facility.  Such items may be restricted from introduction into

21  the facility or may be restricted from being in a patient's

22  possession.  The administrator may take temporary custody of

23  such effects when required for medical and safety reasons.

24  Custody of such personal effects shall be recorded in the

25  patient's clinical record.

26         (7)  VOTING IN PUBLIC ELECTIONS.--A patient committed

27  pursuant to this chapter who is eligible to vote according to

28  the laws of the state has the right to vote in the primary and

29  general elections.  The department shall establish rules to

30  enable patients to obtain voter registration forms,

31  applications for absentee ballots, and absentee ballots.

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  1         (8)  CLINICAL RECORD; CONFIDENTIALITY.--A clinical

  2  record for each patient shall be maintained. The record shall

  3  include data pertaining to admission and such other

  4  information as may be required under rules of the department.

  5  Unless waived by express and informed consent by the patient

  6  or the patient's legal guardian or, if the patient is

  7  deceased, by the patient's personal representative or by that

  8  family member who stands next in line of intestate succession

  9  or except as otherwise provided in this subsection, the

10  clinical record is confidential and exempt from the provisions

11  of s. 119.07(1) and s. 24(a), Art. I of the State

12  Constitution.

13         (a)  Such clinical record may be released:

14         1.  To such persons and agencies as are designated by

15  the patient or the patient's legal guardian.

16         2.  To persons authorized by order of court.

17         3.  To a qualified researcher, as defined by rule; a

18  staff member of the facility; or an employee of the department

19  when the administrator of the facility or secretary of the

20  department deems it necessary for treatment of the patient,

21  maintenance of adequate records, compilation of treatment

22  data, or evaluation of programs.

23         4.  For statistical and research purposes if the

24  information is abstracted in such a way as to protect the

25  identity of individuals.

26         5.  If a patient receiving services pursuant to this

27  chapter has declared an intention to harm other persons;

28  however, only the declaration may be disclosed.

29         6.  To the parent of a mentally ill or mentally

30  retarded person who is committed to, or is being treated by, a

31  forensic mental health facility or program when such

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  1  information is limited to that person's treatment plan and

  2  current physical and mental condition. Release of such

  3  information shall be in accordance with the code of ethics of

  4  the profession involved.

  5         (b)  Notwithstanding other provisions of this

  6  subsection, the department may request or receive from or

  7  provide to any of the following entities client information to

  8  facilitate treatment, rehabilitation, and continuity of care

  9  of any forensic client:

10         1.  The Social Security Administration and the United

11  States Department of Veterans Affairs;

12         2.  Law enforcement agencies, state attorneys, public

13  defenders or other attorneys defending the patient, and judges

14  in regard to the patient's status;

15         3.  Jail personnel in the jail to which a client may be

16  returned; and

17         4.  Community agencies and others expected to provide

18  followup care to the patient upon his or her return to the

19  community.

20         (c)  The department shall may provide notice to any

21  patient's next of kin or first representative regarding any

22  serious medical illness or the death of the patient.

23         (d)1.  Any law enforcement agency, treatment facility,

24  or other governmental agency that receives information

25  pursuant to this subsection shall maintain the confidentiality

26  of such information except as otherwise provided herein.

27         2.  Any agency or private practitioner who acts in good

28  faith in releasing information pursuant to this subsection is

29  not subject to civil or criminal liability for such release.

30         (9)  HABEAS CORPUS.--

31

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  1         (a)  At any time, and without notice, a person detained

  2  by a facility, or a relative, friend, guardian,

  3  representative, or attorney on behalf of such person, may

  4  petition for a writ of habeas corpus to question the cause and

  5  legality of such detention and request that the circuit court

  6  issue a writ for release.  Each patient committed pursuant to

  7  this chapter shall receive a written notice of the right to

  8  petition for a writ of habeas corpus.

  9         (b)  A patient or the patient's guardian or

10  representatives may file a petition in the circuit court in

11  the county where the patient is committed alleging that the

12  patient is being unjustly denied a right or privilege granted

13  herein or that a procedure authorized herein is being abused.

14  Upon the filing of such a petition, the circuit court shall

15  have the authority to conduct a judicial inquiry and to issue

16  any appropriate order to correct an abuse of the provisions of

17  this chapter.

18         (10)  TRANSPORTATION.--

19         (a)  The sheriff shall consult with the governing board

20  of the county as to the most appropriate and cost-effective

21  means of transportation for forensic clients committed for

22  treatment.  Such consultation shall include, but is not

23  limited to, consideration of the cost to the county of

24  transportation performed by sheriff's department personnel as

25  opposed to transportation performed by other means and, if

26  sheriff's department personnel are to be used for

27  transportation, the effect such use will have, if any, on

28  service delivery levels of the sheriff's road patrol.  After

29  such consultation with the governing board of the county, the

30  sheriff shall determine the most appropriate and

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  1  cost-effective means of transportation for forensic clients

  2  committed for treatment.

  3         (b)  The governing board of each county may is

  4  authorized to contract with private transport companies for

  5  the transportation of such patients to and from a forensic

  6  facility.

  7         (c)  Any company that transports a patient pursuant to

  8  this section is considered an independent contractor and is

  9  solely liable for the safe and dignified transportation of the

10  patient. Any transport company that contracts with the

11  governing board of a county for the transport of patients as

12  provided for in this section shall be insured and provide no

13  less than $100,000 in liability insurance with respect to the

14  transportation of the patients.

15         (d)  Any company that contracts with a governing board

16  of a county to transport patients shall comply with the

17  applicable rules of the department to ensure the safety and

18  dignity of the patients.

19         (11)  LIABILITY FOR VIOLATIONS.--Any person who

20  violates or abuses any rights or privileges of a patient

21  provided by this chapter act is liable for damages as

22  determined by law.  Any person who acts in good faith in

23  complying with the provisions of this chapter act is immune

24  from civil or criminal liability for his or her actions in

25  connection with the admission, diagnosis, treatment, or

26  discharge of a patient to or from a facility.  However, this

27  subsection does not relieve any person from liability if the

28  person is negligent.

29         Section 5.  Section 916.108, Florida Statutes, is

30  amended to read:

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  1         916.108  Training of mental health experts.--The

  2  evaluation of defendants for competency to proceed stand trial

  3  or sanity at the time of the commission of the offense shall

  4  be conducted in such a way as to ensure uniform application of

  5  all applicable the criteria enumerated in Rules 3.210 and

  6  3.216, Florida Rules of Criminal Procedure.  The department

  7  shall develop, and may contract with accredited institutions:

  8         (1)  To provide:

  9         (a)  A plan for training community mental health

10  professionals to perform forensic evaluations and to

11  standardize the applicable criteria and procedures to be used

12  in these evaluations as provided in ss. 916.118-916.42.;

13         (b)  Clinical protocols and procedures based upon the

14  applicable criteria. of Rules 3.210 and 3.216, Florida Rules

15  of Criminal Procedure; and

16         (c)  Training for community mental health professionals

17  in the application of these protocols and procedures in

18  performing forensic evaluations and providing reports to the

19  courts.; and

20         (2)  To compile and maintain the necessary information

21  for evaluating the success of the forensic training this

22  program, including the number of persons trained, the cost of

23  operating the program, and the effect on the quality of

24  forensic evaluations as measured by appropriateness of

25  admissions to state forensic facilities and to community-based

26  care programs.

27         Section 6.  Section 916.11, Florida Statutes, is

28  amended to read:

29         916.11  Appointment of experts.--

30

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  1         (1)(a)  Semiannually, the department shall provide the

  2  courts with a list of mental health professionals who have

  3  completed approved training as experts.

  4         (b)  The court may appoint not no more than three or

  5  nor fewer than two experts to determine issues of the mental

  6  condition of a defendant in a criminal case, including the

  7  issues of competency to proceed stand trial, insanity, and

  8  involuntary hospitalization or placement.  The panel of

  9  experts may evaluate the defendant in jail or in another

10  appropriate local facility.

11         (c)  To the extent possible, at least one of the

12  appointed experts shall be either a state-employed

13  psychiatrist, psychologist, or physician if in the local

14  vicinity; a psychiatrist, psychologist, or physician

15  designated by the district alcohol, drug abuse, and mental

16  health program office; or a community mental health center

17  psychiatrist, psychologist, or physician.

18         (d)  If a defendant's suspected mental condition is

19  mental retardation, the court shall appoint the developmental

20  services program of the department of Health and

21  Rehabilitative Services to examine the defendant and determine

22  whether she or he meets the definition of "retardation" in s.

23  393.063 and, if so, whether she or he is competent to stand

24  trial.

25         (2)  Expert witnesses appointed by the court to

26  determine the mental condition of a defendant in a criminal

27  case shall be allowed reasonable fees for services rendered as

28  witnesses, which shall be paid by the county in which the

29  indictment was found or the information or affidavit was

30  filed. State employees shall be paid expenses pursuant to s.

31  112.061. The fees shall be taxed as costs in the case.

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  1         Section 7.  Section 916.16, Florida Statutes, is

  2  transferred, renumbered as section 916.111, Florida Statutes,

  3  and amended to read:

  4         916.111 916.16  Jurisdiction of committing court.--The

  5  committing court shall retain jurisdiction in the case of any

  6  patient hospitalized or, if retarded, admitted to retardation

  7  residential services under pursuant to this chapter.  No Such

  8  person may not be released except by order of the committing

  9  court. The administrative hearing examiner does not shall have

10  no jurisdiction to determine issues of continuing

11  hospitalization or release of any person admitted under

12  pursuant to this chapter.

13         Section 8.  Section 916.175, Florida Statutes, is

14  transferred, renumbered as section 916.112, Florida Statutes,

15  and amended to read:

16         916.112 916.175  Escape from treatment program;

17  penalty.--A client involuntarily committed to the department

18  under the provisions of this chapter who escapes or attempts

19  to escape from such involuntary commitment commits the

20  department is guilty of a felony of the second degree,

21  punishable as provided in s. 775.082, s. 775.083, or s.

22  775.084.

23         Section 9.  Section 916.178, Florida Statutes, is

24  transferred, renumbered as section 916.113, Florida Statutes,

25  and amended to read:

26         916.113 916.178  Introduction or removal of certain

27  articles unlawful; penalty.--

28         (1)(a)  Except as authorized by law or as specifically

29  authorized by the person in charge of a forensic facility, it

30  is unlawful to introduce into or upon the grounds of any

31  forensic facility under the supervision or control of the

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  1  department, or to take or attempt to take or send therefrom,

  2  any of the following articles, which are hereby declared to be

  3  contraband for the purposes of this section:

  4         1.  Any intoxicating beverage or beverage that which

  5  causes or may cause an intoxicating effect;

  6         2.  Any controlled substance as defined in chapter 893;

  7         3.  Any firearm or deadly weapon; or

  8         4.  Any other item items as determined by the

  9  department, and as designated by departmental rule or by the

10  administrator of any facility, and designated by written

11  institutional policies, to be hazardous to the welfare of

12  patients or the operation of the facility.

13         (b)  It is unlawful to transmit to, attempt to transmit

14  to, or cause or attempt to cause to be transmitted to or

15  received by any patient of any facility any article or thing

16  declared by this section to be contraband, at any place which

17  is outside of the grounds of such facility, except as

18  authorized by law or as specifically authorized by the person

19  in charge of such facility.

20         (2)(a)  All individuals or vehicles entering upon the

21  grounds of any forensic facility under the supervision or

22  control of the department are shall be subject to reasonable

23  search and seizure of any contraband materials introduced

24  thereon, for purpose of enforcement of this chapter.

25         (b)  These provisions shall be enforced by

26  institutional security personnel as defined in s. 916.106(5)

27  s. 916.106(6).

28         (c)  Whoever violates any provision of subparagraph

29  (1)(a)2. or subparagraph (1)(a)3. commits is guilty of a

30  felony of the third degree, punishable as provided in s.

31  775.082, s. 775.083, or s. 775.084.

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  1         Section 10.  Section 916.19, Florida Statutes, is

  2  transferred and renumbered as section 916.114, Florida

  3  Statutes.

  4         Section 11.  Section 916.20, Florida Statutes, is

  5  transferred and renumbered as section 916.115, Florida

  6  Statutes.

  7         Section 12.  Section 916.118, Florida Statutes, is

  8  created to read:

  9         916.118  Definitions.--As used in ss. 916.118-916.17,

10  the term:

11         (1)  "Mentally ill defendant" or "mentally retarded

12  defendant" means a person who is mentally ill, as defined in

13  subsection (2), or mentally retarded, as defined in subsection

14  (3), who is committed to the department, and who:

15         (a)  Has been determined to need treatment for mental

16  illness or mental retardation;

17         (b)  Has been found incompetent to proceed, has

18  criminal charges pending, or has pleaded nolo contendere to,

19  or been found guilty of, a criminal offense regardless of

20  adjudication, but is not an inmate of the Department of

21  Corrections or any other correctional facility; and

22         (c)  Has been determined by the department to:

23         1.  Be dangerous to himself or herself, or to others;

24  or

25         2.  Present a clear and present potential to escape.

26         (2)  "Mentally ill" means having an impairment of the

27  emotional processes, of the ability to exercise conscious

28  control of one's actions, or of the ability to perceive

29  reality or to understand, which impairment substantially

30  interferes with a person's ability to meet the ordinary

31  demands of living, regardless of etiology. For the purposes of

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  1  ss. 916.118-916.17, the term does not include simple

  2  intoxication, a person who is solely mentally retarded, or a

  3  condition that is manifested only by antisocial behavior or

  4  drug addiction.

  5         (3)  "Mentally retarded" means significantly subaverage

  6  general intellectual functioning, with concurrent deficits in

  7  adaptive behavior, which is manifested from birth until age

  8  18. For the purpose of this subsection, the phrase

  9  "significantly subaverage general intellectual functioning"

10  means performance at a level that is two or more standard

11  deviations below the mean score on a standardized intelligence

12  test specified by rule of the department. For this purpose of

13  this subsection, the phrase "adaptive behavior" means the

14  effectiveness or degree with which an individual meets the

15  standards of personal independence and social responsibility

16  expected of an individual of his or her age, cultural group,

17  and community.

18         Section 13.  Section 916.119, Florida Statutes, is

19  created to read:

20         916.119  Applicability of ss. 916.118-916.17.--Sections

21  916.118-916.17 apply to any mentally ill or mentally retarded

22  defendant defined in s. 916.118.

23         Section 14.  Section 916.12, Florida Statutes, is

24  amended to read:

25         916.12  Mental competence to proceed stand trial.--

26         (1)  A person is incompetent to proceed stand trial

27  within the meaning of ss. 916.118-916.17 this chapter if the

28  person does not have sufficient present ability to consult

29  with her or his lawyer with a reasonable degree of rational

30  understanding or if the person does not have a has no rational

31

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  1  and, as well as factual, understanding of the proceedings

  2  against her or him.

  3         (2)  A defendant who, because of psychotropic

  4  medication, is able to understand the nature of proceedings

  5  and assist in her or his defense shall not automatically be

  6  deemed incompetent to proceed stand trial simply because the

  7  defendant's satisfactory mental functioning is dependent upon

  8  such medication. As used in this subsection, the term

  9  "psychotropic medication" means any drug or compound used to

10  treat mental or emotional disorders affecting the mind,

11  behavior, intellectual functions, perception, moods, or

12  emotions and includes antipsychotic, antidepressant,

13  antimanic, and antianxiety drugs.

14         Section 15.  Section 916.13, Florida Statutes, is

15  amended to read:

16         916.13  Involuntary commitment of defendant adjudicated

17  incompetent to proceed stand trial or incompetent for

18  sentencing.--

19         (1)  CRITERIA.--Every defendant person adjudicated

20  incompetent to proceed stand trial or incompetent for

21  sentencing, pursuant to the applicable Florida Rules of

22  Criminal Procedure, may be involuntarily committed for

23  treatment upon a finding by the court of clear and convincing

24  evidence that:

25         (a)  The person is mentally ill and because of her or

26  his mental illness, or that the person is mentally retarded

27  and because of her or his mental retardation:

28         1.  The person is manifestly incapable of surviving

29  alone or with the help of willing and responsible family or

30  friends, including available alternative services, and,

31  without treatment, the person is likely to suffer from neglect

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  1  or refuse to care for herself or himself and such neglect or

  2  refusal poses a real and present threat of substantial harm to

  3  her or his well-being; or

  4         2.  There is a substantial likelihood that in the near

  5  future the person will inflict serious bodily harm on herself

  6  or himself or another person, as evidenced by recent behavior

  7  causing, attempting, or threatening such harm; and

  8         (b)  All available, less restrictive treatment

  9  alternatives, including treatment in community residential

10  facilities or community inpatient or outpatient settings,

11  which would offer an opportunity for improvement of the

12  person's condition have been judged to be inappropriate.

13         (2)  ADMISSION FOR TREATMENT TO A FORENSIC FACILITY.--

14         (a)  Every defendant person who has been adjudicated

15  incompetent to proceed stand trial or incompetent for

16  sentencing, and who meets the criteria for commitment to the

17  department under ss. 916.118-916.17 the provisions of this

18  chapter, shall be committed to the department, and the

19  department may retain and treat the defendant.  No later than

20  6 months after the date of commitment or at the end of any

21  period of extended commitment, or at any time the

22  administrator shall have determined that the defendant has

23  regained competency to proceed stand trial or no longer meets

24  the criteria for continued commitment, the administrator shall

25  file a report with the court pursuant to the applicable

26  Florida Rules of Criminal Procedure.

27         (b)  A defendant adjudicated incompetent to proceed

28  stand trial due to her or his mental retardation may be

29  ordered into a secure facility designated by the department

30  for retarded defendants.  The department may not transfer a

31  client from the secure facility to another residential setting

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  1  without first notifying the court; the department may transfer

  2  such defendant unless the department receives written

  3  objection to the transfer from the court within 30 days after

  4  receipt of the notice by the court.  A No retarded client may

  5  not be placed in the designated secure facility except by

  6  criminal court order. However, if criminal charges are

  7  subsequently dropped and the client is involuntarily admitted

  8  to retardation residential services, the placement at the

  9  secure facility may be continued if so ordered by the

10  committing court following a hearing with the same due process

11  requirements as set out in s. 393.11 for an initial

12  involuntary admission. Such court hearings shall be held at

13  least annually, with notice to the state attorney, and each

14  order of continuing placement shall be based on a finding that

15  the client is likely to physically injure others as specified

16  in s. 393.11 s. 393.11(1)(c)2. In no case may A client's

17  placement in a secure facility may not exceed the maximum

18  sentence for the crime for which she or he was charged.

19         Section 16.  Section 916.14, Florida Statutes, is

20  amended to read:

21         916.14  Statute of limitations; former jeopardy.--The

22  statute of limitations is shall not be applicable to criminal

23  charges dismissed because of the incompetency of the defendant

24  to proceed stand trial.  If a defendant is declared

25  incompetent to proceed stand trial during trial and afterwards

26  is declared competent to proceed stand trial, the defendant's

27  other, uncompleted trial does shall not constitute former

28  jeopardy.

29         Section 17.  Section 916.145, Florida Statutes, is

30  amended to read:

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  1         916.145  Adjudication of incompetency due to mental

  2  retardation; dismissal of charges.--The charges against any

  3  defendant adjudicated incompetent to proceed stand trial due

  4  to his or her mental retardation shall be dismissed if the

  5  defendant remains incompetent to proceed stand trial 2 years

  6  after such adjudication, unless the court in its order

  7  specifies its reasons for believing that the defendant will

  8  become competent to proceed stand trial and the time within

  9  which the defendant is expected to become competent to proceed

10  stand trial.

11         Section 18.  Section 916.15, Florida Statutes, is

12  repealed.

13         Section 19.  Section 916.17, Florida Statutes, is

14  amended to read:

15         916.17  Conditional release.--

16         (1)  The committing court may order a conditional

17  release of any defendant who has been committed under ss.

18  916.118-916.17 according to a finding of incompetency to stand

19  trial or an adjudication of not guilty by reason of insanity,

20  based on an approved plan for providing appropriate outpatient

21  care and treatment. If At such time as the administrator

22  determines that shall determine outpatient treatment of the

23  defendant is to be appropriate, she or he may file with the

24  court, with copies to all parties, a written plan for

25  outpatient treatment, including recommendations from qualified

26  professionals.  Such a plan may be submitted by the defendant.

27  The plan must shall include:

28         (a)  Special provisions for residential care or

29  adequate supervision of the defendant.

30         (b)  Provisions for outpatient mental health services.

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  1         (c)  If appropriate, recommendations for auxiliary

  2  services such as vocational training, educational services, or

  3  special medical care.

  4

  5  In its order of conditional release, the court shall specify

  6  the conditions of release based upon the release plan and

  7  shall direct the appropriate agencies or persons to submit

  8  periodic reports to the court regarding the defendant's

  9  compliance with the conditions of the release and progress in

10  treatment, with copies to all parties.

11         (2)  If at any time it appears that the defendant has

12  failed to comply with the conditions of release, that the

13  defendant's condition has deteriorated to the point that

14  inpatient care is required, or that the release conditions

15  should be modified, the court shall hold a hearing within 7

16  days and may modify the release conditions or order that the

17  defendant be returned to the department for further treatment.

18         (3)  If at any time it is determined after a hearing

19  that the defendant no longer requires court-supervised

20  followup care, the court shall terminate its jurisdiction in

21  the cause and discharge the defendant.

22         Section 20.  Section 916.21, Florida Statutes, is

23  created to read:

24         916.21  Guilty but insane; evidence.--

25         (1)  A defendant is guilty but insane if, because of a

26  mental disease or defect, the defendant:

27         (a)  Did not know what he or she was doing or did not

28  know the consequences of what he or she did; or

29         (b)  Knew what he or she was doing and knew the

30  consequences of what he or she did, but did not know it was

31  wrong.

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  1         (2)  As used in ss. 916.21-916.42, the term "mental

  2  disease or defect" does not include an abnormality manifested

  3  only by repeated criminal or otherwise antisocial conduct or

  4  any abnormality constituting solely a personality disorder.

  5         (3)  A mental disease or defect that constitutes

  6  insanity is an affirmative defense through which the defendant

  7  must assert and prove by clear and convincing evidence that,

  8  at the time the act constituting the criminal offense was

  9  committed, the defendant, as a result of a mental disease or

10  defect, was unable to appreciate the nature and effect of the

11  wrongfulness of the act.

12         Section 21.  Section 916.22, Florida Statutes, is

13  created to read:

14         916.22  Notice prerequisite to defense; content.--

15         (1)  A defendant may not introduce evidence on the

16  issue of insanity unless he or she gives notice of intent to

17  do so in the manner provided in subsection (2).

18         (2)  The defendant shall make a plea of not guilty and

19  shall file a written notice of intent to assert an insanity

20  defense under ss. 916.21-916.42. If the court finds just cause

21  for failure to file the notice at the time of making the plea,

22  notice may be filed at any time after the plea, but before

23  trial. If the defendant fails to file such notice, the

24  defendant may not introduce evidence for the establishment of

25  an insanity defense under ss. 916.21-916.42 unless the court,

26  in its discretion, permits such evidence to be introduced on

27  the basis that the defendant demonstrates just cause for

28  failure to file the notice.

29         Section 22.  Section 916.23, Florida Statutes, is

30  created to read:

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  1         916.23  Mental examination of defendant; notice

  2  required.--Upon the filing of the notice of intent to assert

  3  an insanity defense under ss. 916.21-916.42, the state may

  4  have at least one psychiatrist or licensed psychologist of its

  5  selection examine the defendant. The state must file notice

  6  with the court of its intention to have the defendant

  7  examined.

  8         Section 23.  Section 916.24, Florida Statutes, is

  9  created to read:

10         916.24  Form of verdict of guilty but insane.--When the

11  defendant is found guilty but insane under ss. 916.21-916.42,

12  the verdict and judgment must so state.

13         Section 24.  Section 916.25, Florida Statutes, is

14  created to read:

15         916.25  Entry of order; victim notification.--

16         (1)(a)  After entry of a judgment of guilty but insane,

17  the court shall, on the basis of the evidence given at the

18  trial, or at a separate hearing if requested by either party,

19  make an order of commitment to the department for custody,

20  care, and treatment; an order of conditional release, pending

21  a determination as to care and treatment upon an initial

22  hearing by the Forensic Security Review Board; or an order of

23  discharge, whichever is appropriate under ss. 916.21-916.42.

24         (b)  With respect to an order of commitment to the

25  department for custody, care, and treatment or an order of

26  conditional release pending determination by the board as to

27  care and treatment, the Forensic Security Review Board shall

28  determine the care and treatment of the defendant and has

29  jurisdiction for such purpose under ss. 916.21-916.42.

30

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  1         (c)  The committing court retains continuing

  2  jurisdiction over a defendant found guilty but insane until

  3  the court issues a final order of discharge.

  4         (2)  If the court makes an order of commitment to the

  5  department for custody, care, and treatment or an order of

  6  conditional release pending determination as to care and

  7  treatment upon an initial hearing by the Forensic Security

  8  Review Board, the court shall also:

  9         (a)  State on the record the offense for which the

10  defendant was charged.

11         (b)  Make specific findings in its order as to whether

12  there is a victim of the offense for which the defendant has

13  been found guilty but insane and, if so, whether the victim

14  wishes to be notified of any hearings by the Forensic Security

15  Review Board which concern the defendant or of any conditional

16  release of the defendant, discharge of the defendant, or

17  escape of the defendant from custody.

18         Section 25.  Section 916.26, Florida Statutes, is

19  created to read:

20         916.26  Order giving jurisdiction to the Forensic

21  Security Review Board; order of commitment or conditional

22  release; notice; appeal.--

23         (1)  Following the entry of a judgment under s. 916.24

24  and the dispositional determination under s. 916.25, the court

25  shall order that the defendant be placed under the

26  jurisdiction of the Forensic Security Review Board if the

27  court finds that:

28         (a)  The defendant was charged with a felony or was

29  charged with a misdemeanor committed during the course of a

30  criminal episode in which the defendant caused physical injury

31  or risk of physical injury to another;

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  1         (b)  By a preponderance of the evidence, the defendant

  2  is affected by a mental disease or defect and, because of such

  3  condition, is manifestly dangerous to others; and

  4         (c)  The defendant requires commitment to the

  5  department for custody, care, and treatment or conditional

  6  release pending determination as to care and treatment upon an

  7  initial hearing by the board under ss. 916.21-916.42.

  8         (2)  The determination as to whether the defendant

  9  should be committed to the department for custody, care, and

10  treatment or conditionally released pending determination as

11  to care and treatment upon an initial hearing by the board

12  under ss. 916.21-916.42 shall be made as follows:

13         (a)  If the court finds that the defendant is affected

14  by a mental disease or defect and, because of such condition,

15  is manifestly dangerous to others and is not a proper subject

16  for conditional release, the court shall order the person

17  committed to the department for custody, care, and treatment,

18  pending determination as to care and treatment upon an initial

19  hearing by the board in accordance with ss. 916.21-916.42.

20         (b)1.  If the court finds that the defendant is

21  affected by a mental disease or defect and, because of such

22  condition, is manifestly dangerous to others, but the

23  defendant can be adequately controlled with supervision and

24  treatment if conditionally released and that necessary

25  supervision and treatment are available, the court may order

26  the defendant conditionally released pending determination as

27  to care and treatment upon an initial hearing by the board,

28  subject to any supervisory orders of the court in the best

29  interests of justice, the protection of society, and the

30  welfare of the person.

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  1         2.  The court shall designate an appropriate person or

  2  state, county, or local agency to supervise the defendant upon

  3  release, subject to such conditions as the court directs in

  4  the order for conditional release. The court shall notify the

  5  supervisor of the designated agency and shall provide the

  6  supervisor an opportunity to be heard before the defendant is

  7  released to supervision.

  8         3.  After receiving an order entered under this

  9  paragraph, the court-designated supervisor shall assume

10  immediate supervision of the defendant pending the initial

11  board hearing. If, at the initial board hearing, the board

12  approves the court-designated supervisor and conditionally

13  releases the defendant as provided in s. 916.29, the

14  court-designated supervisor shall continue to supervise the

15  defendant pursuant to the direction of the board, and must

16  report in writing at least once each month to the board

17  concerning the defendant's compliance with the court's

18  conditions of release.

19         (3)  For purposes of ss. 916.21-916.42, a defendant who

20  is affected by a mental disease or defect that is in a state

21  of remission is considered to have a mental disease or defect

22  that requires supervision if the disease may, with reasonable

23  probability, occasionally become active and, when active,

24  render the defendant manifestly dangerous to others.

25         (4)  Before determining whether a person should be

26  conditionally released pending determination as to care and

27  treatment upon an initial hearing by the board, the court may

28  order evaluations, examinations, and compliance as provided in

29  ss. 916.21-916.42.

30         (5)  In making its determination as to whether a

31  defendant should be committed to the department for custody,

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  1  care, and treatment or conditionally released pending

  2  determination as to care and treatment upon an initial hearing

  3  by the board, the court's primary concern shall be the

  4  protection of the public.

  5         (6)  If the court conditionally releases the defendant

  6  pending determination as to care and treatment upon an initial

  7  hearing by the board, the court shall notify the board in

  8  writing of the court's order of conditional release, the

  9  supervisor designated, and all other conditions of release.

10  The defendant shall remain on conditional release pending an

11  initial hearing by the board in accordance with ss.

12  916.21-916.42. Upon compliance with this section and subject

13  to final discharge by the committing court, the board shall

14  assume jurisdiction over the defendant.

15         (7)  An order of the court under this section is a

16  final order and may be appealed by the defendant found guilty

17  but insane. The defendant is entitled, on appeal, to suitable

18  counsel. If the defendant is indigent, an attorney shall be

19  appointed to represent him or her.

20         (8)  Upon placing a defendant under the jurisdiction of

21  the board, the court shall notify the defendant of the right

22  to appeal and the right to a hearing before the board in

23  accordance with ss. 916.29(6) and 916.31(4).

24         Section 26.  Section 916.27, Florida Statutes, is

25  created to read:

26         916.27  Commitment to the department or conditional

27  release to the board; standard of proof.--

28         (1)  Following the entry of a judgment under s. 916.24

29  and the dispositional determination under s. 916.25, if the

30  court finds by a preponderance of the evidence that the

31  defendant is affected by a mental disease or defect and,

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  1  because of such condition, is manifestly dangerous to others

  2  and requires commitment to the department for custody, care,

  3  and treatment or conditional release to the board, the court

  4  shall make such disposition of the person under s. 916.26.

  5         (2)  Unless stated otherwise, the standard of proof in

  6  all dispositional proceedings under ss. 916.21-916.42 is a

  7  preponderance of the evidence.

  8         Section 27.  Section 916.28, Florida Statutes, is

  9  created to read:

10         916.28  Order of discharge.--Following the entry of a

11  judgment under s. 916.24 and the dispositional determination

12  under s. 916.25, if the court finds that the defendant is no

13  longer affected by a mental disease or defect or, if so

14  affected, is no longer manifestly dangerous to others and is

15  not in need of care, supervision, or treatment, the court

16  shall order the defendant discharged from custody.

17         Section 28.  Section 916.29, Florida Statutes, is

18  created to read:

19         916.29  Conditional release by Forensic Security Review

20  Board; supervision; termination, modification, or discharge;

21  hearing.--

22         (1)  The conditional release of a defendant by the

23  Forensic Security Review Board includes, but is not limited

24  to:

25         (a)  The monitoring of mental health treatment under

26  the supervisory order of the board.

27         (b)  The supervision of the board's conditions of

28  release under subsection (2).

29         (c)  The supervision of the court's conditions of

30  release under s. 916.26(2)(b).

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  1         (2)(a)  If the Forensic Security Review Board

  2  determines:

  3         1.  Upon its initial hearing:

  4         a.  That a defendant who has been committed by the

  5  court to the department under s. 916.26(2)(a) for custody,

  6  care, and treatment; or

  7         b.  That a defendant who has been conditionally

  8  released by the court pending board determination as to care

  9  and treatment;

10         2.  Upon any hearing, that a defendant who has been

11  committed by the board to the department for custody, care,

12  and treatment

13

14  is affected by a mental disease or defect and, because of such

15  condition, is manifestly dangerous to others but can be

16  adequately controlled with supervision and treatment if

17  conditionally released by the board, and that necessary

18  supervision and treatment are available, the board may order

19  such defendant conditionally released, subject to supervisory

20  orders of the board which are in the best interest of justice,

21  the protection of the public, and the welfare of the

22  defendant.

23         (b)  The board may designate any person or any state,

24  county, or local agency the board considers capable of

25  supervising the defendant's care and treatment upon release,

26  subject to conditions that the board and the committing court

27  directs in the conditional release order. If the defendant has

28  been conditionally released by the court pending an initial

29  hearing by the board, the board shall authorize the

30  court-designated supervisor at the initial hearing to continue

31  supervision, unless the defendant or the court-designated

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  1  supervisor demonstrates at the initial hearing that a

  2  different supervisor is necessary. The board shall notify the

  3  defendant or agency to whom care and treatment supervision is

  4  designated and shall provide such defendant or agency an

  5  opportunity to be heard before the release of the defendant to

  6  supervision.

  7         (c)  After receiving an order entered under this

  8  section, the designated supervisor shall assume supervision of

  9  the defendant pursuant to the direction of the board, and must

10  report in writing not less than once per month to the board

11  concerning the supervised defendant's compliance with the

12  board's conditions of release.

13         (d)  Subject to its duties to safeguard the best

14  interests of justice, the protection of society, and the

15  welfare of the defendant, the board shall make every

16  reasonable effort to assure continuity of supervision.

17         (3)  Conditions of release contained in orders entered

18  under this section and s. 916.26(2)(b) may be modified from

19  time to time, and a defendant's conditional release may be

20  terminated by order of the board.

21         (4)  For purposes of ss. 916.21-916.42, a defendant who

22  is affected by a mental disease or defect that is in a state

23  of remission is considered to have a mental disease or defect

24  requiring supervision when the disease may, with reasonable

25  probability, occasionally become active and, when active,

26  render the defendant manifestly dangerous to others. In such

27  case, the defendant may be continued on conditional release by

28  the board as provided in this section.

29         (5)(a)  As a condition of release, the board may

30  require the defendant to report to any state or local mental

31  health program for evaluation. Whenever medical, psychiatric,

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  1  or psychological treatment is recommended, the board may order

  2  the defendant, as a condition of release, to cooperate with

  3  and accept the treatment from the program.

  4         (b)  The program to which the defendant is referred for

  5  evaluation shall perform the evaluation and submit a written

  6  report of its findings to the board. If the program finds that

  7  treatment of the defendant is appropriate, it shall include

  8  its recommendations for treatment in the report to the board.

  9         (c)  Whenever treatment is provided by the program, it

10  shall furnish reports to the board on a regular basis

11  concerning the progress of the defendant.

12         (d)  Copies of all reports submitted to the board under

13  this section shall be furnished to the department, the

14  defendant, and the defendant's counsel. The confidentiality of

15  these reports shall be determined under s. 916.107(8).

16         (e)  The program shall comply with any other conditions

17  of release prescribed by order of the board under this section

18  or by order of the court under s. 916.26(2)(b).

19         (6)(a)  If, at any time while a defendant is

20  conditionally released under the jurisdiction of the board, it

21  appears to the board or its chairperson that the defendant has

22  violated the terms of his or her conditional release or that

23  the mental health of the defendant has changed, the board or

24  its chairperson may order the defendant returned to the

25  custody of the department for evaluation or treatment. A

26  written order of the board, or its chairperson on behalf of

27  the board, is sufficient warrant for any officer, as defined

28  in s. 943.10(4), to take the defendant into custody and

29  transport him or her as soon as practicable to the custody of

30  the department. Within 20 days after the return of the

31  defendant to the custody of the department, the board shall

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  1  conduct a hearing. Notice of the time and place of the hearing

  2  shall be given to the defendant and the defendant's attorney.

  3         (b)  The board may continue the defendant on

  4  conditional release or, if it finds by a preponderance of the

  5  evidence that the defendant is affected by a mental disease or

  6  defect and, because of such condition, is manifestly dangerous

  7  to others and cannot be adequately controlled if conditional

  8  release is continued, the board may order the defendant

  9  committed to the department for custody, care, and treatment.

10         (c)  The state must prove by a preponderance of the

11  evidence the defendant's unfitness for conditional release.

12         (d)  A defendant in custody as provided in this

13  subsection has the same rights as any defendant who appears

14  before the board under s. 916.32.

15         (7)  A community mental health program director, a

16  director of a facility providing treatment to a defendant on

17  conditional release, any officer as defined in s. 943.10(14),

18  or any person responsible for supervising a defendant on

19  conditional release may take a defendant on conditional

20  release into custody or request that the defendant be taken

21  into custody if there is reasonable cause to believe that the

22  defendant is manifestly dangerous to others because of a

23  mental disease or defect and that the defendant is in need of

24  immediate custody, care, or treatment. Any defendant taken

25  into custody under this subsection shall be transported and

26  held for not more than 15 days in a jail or other facility

27  before being transported to the department for custody, care,

28  and treatment. A defendant taken into custody under this

29  subsection has the same rights as any defendant who appears

30  before the board under s. 916.32.

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  1         (8)(a)  Any defendant conditionally released under the

  2  jurisdiction of the board may apply to the board for discharge

  3  from or modification of the order of conditional release on

  4  the grounds that the defendant is no longer affected by a

  5  mental disease or defect or, if still so affected, is no

  6  longer manifestly dangerous to others and no longer requires

  7  supervision, medication, care, or treatment.

  8         1.  If the application is for discharge from an order

  9  of conditional release, and if the board approves such

10  application, it shall be submitted to the committing court for

11  approval and final order of discharge.

12         2.  The applicant, at any hearing under this

13  subsection, must prove his or her fitness for discharge from

14  or modification of the order of conditional release by a

15  preponderance of the evidence.

16         3.  An application for discharge from or modification

17  of conditional release brought by any one defendant under this

18  subsection may not be filed more often than once every 6

19  months.

20         (b)  Upon application by any defendant, or by an agency

21  responsible for supervision or treatment pursuant to an order

22  of conditional release, the board shall conduct a hearing to

23  determine whether to continue, modify, or terminate the

24  defendant's conditions of release. The application must be

25  accompanied by a report that sets forth the supporting facts.

26         (9)  The board shall maintain and keep current the

27  medical, social, and criminal history of all defendants under

28  its jurisdiction. The confidentiality of records maintained by

29  the board shall be determined under s. 916.107(8).

30         (10)  In any determination as to whether a defendant

31  should be committed to the department, conditionally released,

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  1  or discharged, the primary concern shall be the protection of

  2  the public.

  3         Section 29.  Section 916.31, Florida Statutes, is

  4  created to read:

  5         916.31  Order of commitment; application for discharge

  6  or conditional release; release plan.--

  7         (1)  If the Forensic Security Review Board determines,

  8  upon its initial hearing or at any later hearing held under

  9  ss. 916.21-916.42, that a defendant over whom the court has

10  given the board jurisdiction under ss. 916.21-916.42 is

11  affected by a mental disease or defect and, because of such

12  condition, is manifestly dangerous to others and is not a

13  proper subject for conditional release, the board shall order

14  that the defendant be committed to the department for custody,

15  care, and treatment.

16         (2)(a)  If, at any time after the court or the board

17  has committed a defendant to the department for custody, care,

18  and treatment, the department is of the opinion:

19         1.  That the defendant is no longer affected by a

20  mental disease or defect or, if so affected, is no longer

21  manifestly dangerous to others, the department shall apply to

22  the board for an order of discharge, pending application to

23  and final order of the committing court.

24         2.  That the defendant continues to be affected by a

25  mental disease or defect and continues to be manifestly

26  dangerous to others, but that the defendant can be controlled

27  with proper care, medication, supervision, and treatment if

28  conditionally released, the department shall apply to the

29  board for an order of conditional release.

30         (b)  The application must be accompanied by a report

31  that sets forth the facts supporting the opinion of the

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  1  department. If the application is for conditional release, the

  2  application must also be accompanied by a verified

  3  conditional-release plan.

  4         (c)  The board shall hold a hearing on the application

  5  within 60 days after its receipt. Upon the conclusion of the

  6  hearing, the board shall notify the department and the

  7  committing court of its determinations.

  8         (3)  The state attorney may choose a psychiatrist or

  9  licensed psychologist to examine the defendant before the

10  initial hearing or before any later hearing on discharge or

11  conditional release. Written results of the examination must

12  be filed with the board and must include, but need not be

13  limited to, an opinion as to the mental condition of the

14  defendant; whether the defendant is affected by a mental

15  disease or defect and, because of such condition, is

16  manifestly dangerous to others; and whether the defendant can

17  be adequately controlled with treatment as a condition of

18  release.

19         (4)  Any defendant who has been committed to the

20  department for custody, care, and treatment, or any person who

21  is acting on such defendant's behalf, may apply to the board

22  for an order of conditional release or for an order of

23  discharge, pending application to and final order of the

24  committing court, upon the grounds that:

25         (a)  The defendant is no longer affected by a mental

26  disease or defect;

27         (b)  If so affected, the defendant is no longer

28  manifestly dangerous to others; or

29         (c)  The defendant continues to be affected by a mental

30  disease or defect and would continue to be manifestly

31  dangerous to others without treatment, but that the defendant

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  1  can be adequately controlled and given proper care and

  2  treatment if placed on conditional release.

  3         (5)  When application is made under subsection (4), the

  4  board shall require a report from the department. The report

  5  must be prepared and transmitted as provided in subsection

  6  (2). The defendant must prove his or her fitness for discharge

  7  or conditional release under the standards of subsection (4)

  8  by a preponderance of the evidence. However, if more than 2

  9  years have passed since the state had the burden of proof on

10  that issue, the state must bear the burden of proving by a

11  preponderance of the evidence the defendant's lack of fitness

12  for discharge or conditional release. An application for the

13  discharge or conditional release of any defendant committed to

14  the department for custody, care, and treatment may not be

15  filed more than once every 6 months, commencing on the date of

16  the defendant's initial board hearing.

17         (6)  The board is not required to hold a hearing on a

18  first application under subsection (4) any sooner than 90 days

19  after the initial hearing. However, any hearing that results

20  from a properly filed subsequent request must be held within

21  60 days after the date the application is filed.

22         (7)(a)  A defendant committed by the court under s.

23  916.26 to the department may not be held for custody, care,

24  and treatment for more than 90 days after the date of the

25  court's commitment order without an initial hearing before the

26  board to determine whether the person should be conditionally

27  released by the board or discharged, pending application to

28  and final order of the committing court.

29         (b)  A subsequent hearing to determine whether the

30  defendant should be conditionally released by the board or

31  discharged, pending application to and final order of the

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  1  committing court, must be held before the board prior to the

  2  defendant being held under the jurisdiction of the board for

  3  longer than 2 years.

  4         Section 30.  Section 916.32, Florida Statutes, is

  5  created to read:

  6         916.32  Hearings on discharge, conditional release,

  7  commitment, or modification; psychiatric reports; notice.--

  8         (1)  The Forensic Security Review Board shall conduct a

  9  hearing upon application for conditional release or for

10  modification or termination of conditional release filed under

11  s. 916.29; upon application for conditional release or

12  discharge from any commitment order filed under s. 916.31;

13  upon application for discharge from the jurisdiction of the

14  board, pending application to and final order of the

15  committing court, filed under s. 916.33; and upon application

16  filed as otherwise required by ss. 916.21-916.42, and shall

17  make findings and determinations on the issues before it.

18         (a)  If the board finds that the defendant is no longer

19  affected by a mental disease or defect or, if so affected, is

20  no longer manifestly dangerous to others, the board shall

21  order that the defendant be discharged from the jurisdiction

22  of the board. An order of the board to release a defendant

23  from the jurisdiction of the board shall be made pending

24  application to and final order of the committing court.

25         (b)  If the board finds that the defendant continues to

26  be affected by a mental disease or defect and is manifestly

27  dangerous to others, but can be adequately controlled if

28  conditionally released with treatment as a condition of

29  release, the board shall order the defendant conditionally

30  released as provided in s. 916.29, and the defendant shall

31  remain under conditional release until discharged by the

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  1  board, pending application to and final order of the

  2  committing court.

  3         (c)  If the board finds that the defendant has not

  4  recovered from a mental disease or defect and is manifestly

  5  dangerous to others and cannot adequately be controlled if

  6  conditionally released on supervision, the board shall order

  7  that the defendant be committed to the department for custody,

  8  care, and treatment.

  9         (2)  At any time the board may appoint a psychiatrist

10  or licensed psychologist to examine any defendant under the

11  jurisdiction of the board and to report to the board. A report

12  filed with the board pursuant to the examination must include,

13  but need not be limited to, an opinion as to the mental

14  condition of the defendant, whether the defendant is affected

15  by a mental disease or defect and because of such condition is

16  manifestly dangerous to others, and whether the defendant can

17  be adequately controlled with treatment as a condition of

18  release. To facilitate the examination of the defendant, the

19  board may order that the defendant be placed in the temporary

20  custody of any forensic facility or other suitable facility.

21         (3)  The board may make the findings and determinations

22  required by subsection (1) based upon the written reports

23  submitted under subsection (2). An examining psychiatrist or

24  licensed psychologist who submitted a report may be summoned

25  by the board to give testimony if any member of the board

26  desires further information. The board shall consider all

27  evidence available to it which is material, relevant, and

28  reliable regarding the issues before the board. Such evidence

29  may include, but need not be limited to, the record of trial,

30  the information supplied by the state attorney or any other

31  interested party including the defendant, any information

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  1  concerning the person's mental condition, and the entire

  2  psychiatric and criminal history of the defendant.

  3         (4)  The board shall furnish to the defendant, the

  4  defendant's attorney, the state attorney, and the committing

  5  court written notice of any hearing conducted under subsection

  6  (1) within a reasonable time before the hearing. The notice

  7  must include:

  8         (a)  The time, place, and location of the hearing.

  9         (b)  The nature of the hearing and the specific action

10  for which a hearing has been requested, the issues to be

11  considered at the hearing, and a reference to the particular

12  laws and rules involved.

13         (c)  A statement of the authority and jurisdiction

14  under which the hearing is to be held.

15         (d)  A statement of all rights under subsection (5).

16         (5)  At the hearing, the defendant has the right to:

17         (a)  Appear at all proceedings held under this section,

18  except deliberations by the board.

19         (b)  Cross-examine all witnesses who testify at the

20  hearing.

21         (c)  Subpoena witnesses and documents as provided in s.

22  916.38.

23         (d)  Be represented by an attorney, to consult with the

24  attorney before the hearing, and, if indigent, to have an

25  attorney appointed to represent him or her.

26         (e)  Examine all information, documents, and reports

27  that the board considers. All information, documents, and

28  reports shall be disclosed to the defendant for examination as

29  soon as such information, documents, and reports are available

30  to the board.

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  1         (6)  A record must be kept of all hearings before the

  2  board, except board deliberations.

  3         (7)  Upon the request of any party before the board, or

  4  on its own motion, the board may continue a hearing for a

  5  reasonable period, which may not exceed 60 days, to obtain

  6  additional information or testimony or for other good cause.

  7         (8)  Within 15 days after a hearing conducted under

  8  subsection (1), the board shall provide to the defendant, the

  9  defendant's attorney, the state attorney, and the committing

10  court written notice of the board's decision.

11         (9)  The standard of proof on all issues at hearings of

12  the board is a preponderance of the evidence.

13         (10)  If the board determines that the defendant is

14  indigent, the board shall appoint an attorney to represent him

15  or her.

16         (11)  The state attorney of the circuit from which the

17  defendant was committed shall represent the state at any

18  hearing before the board.

19         Section 31.  Section 916.33, Florida Statutes, is

20  created to read:

21         916.33  Discharge of defendant under jurisdiction of

22  Forensic Security Review Board; periodic status review.--

23         (1)  Any defendant who is under the jurisdiction of the

24  Forensic Security Review Board pursuant to ss. 916.21-916.42

25  shall be discharged, pending application to and final order of

26  the committing court, at such time as the board, upon a

27  hearing, finds by a preponderance of the evidence that the

28  defendant is no longer affected by a mental disease or defect

29  or, if so affected, is no longer manifestly dangerous to

30  others so as to require regular medical care, medication,

31  supervision, or treatment.

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  1         (2)  For purposes of subsection (1), a defendant

  2  affected by a mental disease or defect in a state of remission

  3  is considered to have a mental disease or defect. A defendant

  4  whose mental disease or defect may, with reasonable

  5  probability, occasionally become active and, when active,

  6  render the defendant manifestly dangerous to others may not be

  7  discharged. The defendant shall continue under such

  8  supervision and treatment as the board deems necessary for the

  9  protection of the public and the defendant.

10         (3)  Any defendant who is under the jurisdiction of the

11  board and who has spent 5 years on conditional release shall

12  be brought before the board for a hearing within 30 days

13  before the expiration of the 5-year period. The board shall

14  review the defendant's status and determine whether the

15  defendant should be discharged from the jurisdiction of the

16  board, pending application to and final order of the

17  committing court.

18         Section 32.  Section 916.34, Florida Statutes, is

19  created to read:

20         916.34  Commission of a crime by a defendant under the

21  jurisdiction of the Forensic Security Review Board; notice to

22  victim.--

23         (1)  When a defendant who is under the jurisdiction of

24  the Forensic Security Review Board commits another crime, the

25  court shall make the findings described in s. 916.25(2) with

26  respect to the additional crime.

27         (2)  If the court determines that a victim, including a

28  victim of the new crime, desires notification as described in

29  s. 916.25(2), the board shall make a reasonable effort to

30  provide such notification.

31

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  1         Section 33.  Section 916.35, Florida Statutes, is

  2  created to read:

  3         916.35  Forensic Security Review Board; judicial review

  4  or order; rulemaking authority.--

  5         (1)  There is established the Forensic Security Review

  6  Board, which shall be an autonomous body that is located

  7  within the Department of Health for administrative purposes

  8  only. The board shall be composed of nine members appointed by

  9  the Governor.

10         (2)  The board shall be composed of the following

11  members:

12         (a)  One psychiatrist who is experienced in the

13  criminal justice system and who is not otherwise employed

14  full-time by the department or a community mental health

15  program.

16         (b)  One licensed psychologist who is experienced in

17  the criminal justice system and who is not otherwise employed

18  full-time by the department or a community mental health

19  program.

20         (c)  A member who has substantial experience in the

21  processes of parole and probation.

22         (d)  Two members of the general public.

23         (e)  An attorney who has substantial experience in

24  criminal trial practice who is not a state attorney, assistant

25  state attorney, public defender, or assistant public defender.

26         (f)  A member who has substantial experience in

27  victims' issues.

28         (g)  One licensed mental health professional who is

29  experienced in the criminal justice system and not otherwise

30  employed full-time by the department or a community mental

31  health program.

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  1         (h)  One developmental services professional who has

  2  expertise in mental retardation.

  3         (3)  On the initial appointees, three members shall be

  4  appointed to terms of 2 years, three members shall be

  5  appointed to terms of 3 years, and three members shall be

  6  appointed to terms of 4 years. Thereafter, members of the

  7  board shall be appointed to terms of 4 years. Before the

  8  expiration of the term of a member, the Governor shall appoint

  9  a successor whose term shall begin on the following July 1. A

10  member is eligible for reappointment. If a vacancy occurs on

11  the board, the Governor shall appoint a member to the board

12  for the unexpired portion of the term.

13         (4)  Members of the board may not be compensated for

14  serving on the board but are entitled to reimbursement for

15  travel and per diem expenses under s. 112.061.

16         (5)  Subject to any applicable laws, the board may hire

17  employees to aid it in performing its duties.

18         (6)(a)  The board shall elect one of its members as

19  chairperson for a 1-year term and shall determine the duties

20  and powers of the chairperson.

21         (b)  Three members of the board constitute a quorum for

22  purposes of transacting business.

23         (7)  The board shall meet at least twice each month

24  unless the chairperson determines that there is not sufficient

25  business before the board to warrant a meeting at the

26  scheduled time. The board shall hold meetings at each of the

27  state's forensic hospitals, depending on the caseload and

28  presence of defendants in the area of each hospital who

29  require a hearing under this chapter. The board shall also

30  meet at other times and places at the call of the chairperson

31  or a majority of the members of the board.

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  1         (8)(a)  When a defendant is adversely affected or

  2  aggrieved by a final order of the board, the defendant is

  3  entitled to judicial review of the final order. The defendant

  4  is entitled to be represented by counsel and, if the defendant

  5  is indigent, an attorney shall be appointed to represent him

  6  or her.

  7         (b)  The order and the proceedings are subject to

  8  review by the circuit court upon a petition filed within 60

  9  days after issuance of the order for which review is sought.

10  The board shall submit to the court the record of the

11  proceeding or, if the defendant agrees, a shortened record.

12  The record must include a certified true copy of a tape

13  recording of the proceedings at any hearing held in accordance

14  with s. 916.32. A copy of the record transmitted to the court

15  shall be delivered to the defendant by the board.

16         (c)  The court may affirm, reverse, or remand the

17  order.

18         (d)  The filing of the petition does not stay the

19  board's order, but the board or the circuit court may order a

20  stay upon application and conditioned upon terms that are

21  deemed proper by the board or the circuit court.

22         (9)  The Forensic Security Review Board may adopt rules

23  to administer its policies, procedures, and other requirements

24  and to carry out its duties under this chapter.

25         Section 34.  Section 916.37, Florida Statutes, is

26  created to read:

27         916.37  Assignment of defendants committed to the

28  custody, care, and treatment of the department; release

29  plan.--

30         (1)  The department shall adopt rules for the

31  assignment of defendants who have been committed to the

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  1  department for custody, care, and treatment under ss.

  2  916.21-916.42 and shall adopt standards for evaluating and

  3  treating defendants.

  4         (2)  Whenever the Forensic Security Review Board

  5  requires the preparation of a predischarge or preconditional

  6  release plan before a hearing or as a condition of granting

  7  discharge or conditional release, the department shall prepare

  8  and submit the plan to the board and the committing court.

  9         (3)  In preparing a conditional release plan under

10  subsection (2), the department shall contract with a community

11  mental health program, another public agency, a private

12  corporation, or an individual to provide supervision and

13  treatment for the conditionally released defendant, pending

14  designation by the board at the hearing.

15         (4)  To ensure that the conditionally released

16  defendant's treatment plan is implemented, the department

17  shall allocate the funds necessary to the appropriate

18  treatment services in the community.

19         Section 35.  Section 916.38, Florida Statutes, is

20  created to read:

21         916.38  Subpoena power of the Forensic Security Review

22  Board.--

23         (1)  Upon the request of any party to a hearing before

24  the Forensic Security Review Board, the board or its

25  designated representative shall issue subpoenas requiring the

26  attendance and testimony of witnesses.

27         (2)  Upon the request of any party to a hearing before

28  the board and a proper showing of the general relevance and

29  reasonable scope of any documentary or physical evidence that

30  is sought, the board or its designated representative shall

31  issue subpoenas to produce such evidence.

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  1         (3)  Any witness who appears under subpoena, other than

  2  the parties to the hearing or a state officer or employee,

  3  shall receive fees and mileage as prescribed by law for a

  4  witness in a civil action. If the board or its designated

  5  representative certifies that the testimony of a witness is

  6  relevant and material, any person who has paid fees and

  7  mileage to that witness is entitled to reimbursement by the

  8  board.

  9         (4)  If any person fails to comply with a subpoena

10  issued under this section or if a party or witness refuses to

11  testify regarding any matter on which the party or witness may

12  be lawfully interrogated, the circuit court, on the

13  application of the board, its designated representative, or

14  the party requesting issuance of the subpoena, shall initiate

15  proceedings for contempt as in the case of disobedience of the

16  requirements of a subpoena issued by the court.

17         (5)  If any person, agency, or facility fails to comply

18  with an order of the board issued under subsection (2), the

19  circuit court, on application of the board or its designated

20  representative, shall initiate proceedings for contempt as in

21  the case of disobedience of the requirements of an order

22  issued by the court.

23         Section 36.  Section 916.39, Florida Statutes, is

24  created to read:

25         916.39  Leave of absence; application for board

26  consideration.--If, at any time after the confinement of a

27  defendant in a forensic facility or other treatment program

28  for custody, care, and treatment under s. 916.26(2)(a) or s.

29  916.31(1), the administrator of the facility or program is of

30  the opinion that a leave of absence from custody would be

31

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  1  therapeutic for the defendant, the administrator shall apply

  2  to the board for an order authorizing leave for up to 30 days.

  3         (1)  The application must include the purpose of the

  4  requested leave and facts showing that the defendant will not

  5  be dangerous to others while on leave; the defendant's current

  6  mental health status and diagnosis, escape history, frequency

  7  of temporary leaves of absence, and associated problems, if

  8  any; and the defendant's current medication orders.

  9         (2)  The board shall also consider departure and return

10  dates and times; the location of the defendant during the

11  leave period; persons with whom the defendant will associate

12  during the period; and persons who will be responsible for

13  supervising the defendant, including guardians, relatives, or

14  friends, and the defendant himself or herself.

15         (3)  If the application is granted, the defendant may

16  be permitted to leave the facility or program subject to any

17  other condition that the administrator or board deems

18  appropriate. Such condition may include screening for alcohol

19  or drug use.

20         Section 37.  Section 916.41, Florida Statutes, is

21  created to read:

22         916.41  Statistical records of assertions of mental

23  disease and defect as a defense.--Each state attorney shall

24  submit to the State Courts Administrator, in the manner

25  prescribed by the State Courts Administrator, statistical

26  records on cases in which the defense of guilty but insane is

27  asserted.

28         Section 38.  Section 916.42, Florida Statutes, is

29  created to read:

30         916.42  Annual report.--Not less than 30 days before

31  the opening of each regular session of the Legislature, the

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  1  Forensic Security Review Board shall file a written report

  2  with the Governor, the President of the Senate, the Speaker of

  3  the House of Representatives, and the minority leaders of each

  4  house which contains, but need not be limited to, a detailed

  5  analysis of the treatment services being rendered, the number

  6  of offenders in each program, the current status of each

  7  offender in the program, the criminal recidivism and

  8  revocation rates, and the costs involved in operating the

  9  programs.

10         Section 39.  Subsection (1) of section 40.29, Florida

11  Statutes, is amended to read:

12         40.29  Clerks to estimate amount for pay of jurors and

13  witnesses and make requisition.--

14         (1)  The clerk of the court in and for any county shall

15  make an estimate of the amount necessary during any quarterly

16  fiscal period beginning July 1 and during each succeeding

17  quarterly fiscal period for the payment by the state of:

18         (a)  Jurors in the circuit court and the county court;

19         (b)  Witnesses before the grand jury;

20         (c)  Witnesses summoned to appear for an investigation,

21  preliminary hearing, or trial in a criminal case when the

22  witnesses are summoned by a state attorney or on behalf of an

23  indigent defendant;

24         (d)  Mental health professionals who are appointed

25  pursuant to s. 394.473 and required in a court hearing

26  involving an indigent; and

27         (e)  Expert witnesses who are appointed pursuant to s.

28  916.11(3) and required in a court hearing involving an

29  indigent;

30

31

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  1  and shall forward each such estimate to the State Courts

  2  Administrator no later than the date scheduled by the State

  3  Courts Administrator. At the time of any forwarding of such

  4  estimate, the clerk of such court shall make a requisition

  5  upon the State Courts Administrator for the amount of such

  6  estimate; and the State Courts Administrator may reduce the

  7  amount if in his or her judgment the requisition is excessive.

  8         Section 40.  The Supreme Court is requested to amend

  9  the Florida Rules of Criminal Procedure as necessary to

10  reflect the provisions of this act.

11         Section 41.  (1)  The sum of $125,000 is appropriated

12  from the General Revenue Fund to the Forensic Security Review

13  Board for the operating expenses of the board and two staff

14  positions are authorized.

15         (2)  The sum of $250,000 is appropriated from the

16  General Revenue Fund to the Forensic Security Review Board for

17  per diem, travel, and other expenses that are incurred by the

18  members of the board.

19         Section 42.  This act applies to all persons who are

20  under court supervision on October 1, 1998, pursuant to an

21  adjudication of not guilty by reason of insanity.

22         Section 43.  This act shall take effect October 1,

23  1998.

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  1            *****************************************

  2                          SENATE SUMMARY

  3    Revises ch. 916, F.S., relating to mentally retarded or
      mentally ill defendants, to create the "Forensic
  4    Procedure Act." Establishes the Forensic Security Review
      Board to assume jurisdiction, upon court order, of a
  5    defendant who is found guilty but insane. Provides for
      the board to order that such defendant be committed to
  6    the Department of Health for custody, care, and
      treatment. Provides for an order of conditional release.
  7    Provides criteria, standards, and procedures for such
      proceedings. Provides standards of proof for hearings and
  8    for the rights of a defendant. Provides for conditional
      release plans. Provides for judicial review of an order
  9    of the Forensic Security Review Board. Authorizes the
      board to issue subpoenas. Requires that the state
10    attorneys file certain statistical records with respect
      to cases in which the defendant asserts the defense of
11    guilty but insane. Requests that the Supreme Court adopt
      rules to implement the act. Provides appropriations. (See
12    bill for details.)

13

14

15

16

17

18

19

20

21

22

23

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25

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27

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