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


H

Senator Gutman moved the following amendment:



                                                  SENATE AMENDMENT

    Bill No. CS/HB 3327, 2nd Eng.

    Amendment No.    

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11  Senator Gutman moved the following amendment:

12

13         Senate Amendment (with title amendment) 

14         Delete everything after the enacting clause

15

16  and insert:

17         Section 1.  This act shall be known and may be cited as

18  the "Jimmy Ryce Involuntary Civil Commitment for Sexually

19  Violent Predators' Treatment and Care Act."

20         Section 2.  Section 916.30, Florida Statutes, is

21  created to read:

22         916.30  Legislative findings and intent.--The

23  Legislature finds that a small but extremely dangerous number

24  of sexually violent predators exist who do not have a mental

25  disease or defect that renders them appropriate for

26  involuntary treatment under the Baker Act, ss.

27  394.451-394.4789, which is intended to provide short-term

28  treatment to individuals with serious mental disorders and

29  then return them to the community. In contrast to persons

30  appropriate for civil commitment under the Baker Act, sexually

31  violent predators generally have antisocial personality

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3327, 2nd Eng.

    Amendment No.    





 1  features which are unamenable to existing mental illness

 2  treatment modalities and those features render them likely to

 3  engage in criminal, sexually violent behavior. The Legislature

 4  further finds that the likelihood of sexually violent

 5  predators engaging in repeat acts of predatory sexual violence

 6  is high. The existing involuntary commitment procedures under

 7  the Baker Act for the treatment and care of mentally ill

 8  persons are inadequate to address the risk these sexually

 9  violent predators pose to society. The Legislature further

10  finds that the prognosis for rehabilitating sexually violent

11  predators in a prison setting is poor, the treatment needs of

12  this population are very long term, and the treatment

13  modalities for this population are very different than the

14  traditional treatment modalities for people appropriate for

15  commitment under the Baker Act. It is therefore the intent of

16  the Legislature to create a civil commitment procedure for the

17  long-term care and treatment of sexually violent predators.

18         Section 3.  Section 916.31, Florida Statutes, is

19  created to read:

20         916.31  Definitions.--As used in ss. 916.30-916.43, the

21  term:

22         (1)  "Agency with jurisdiction" means the agency with

23  the authority to direct the release of a person serving a

24  sentence in the custody of the Department of Corrections, a

25  person adjudicated delinquent and committed to the custody of

26  the Department of Juvenile Justice, or a person who was

27  involuntarily committed to the custody of the Department of

28  Children and Family Services upon an adjudication of not

29  guilty by reason of insanity.

30         (2)  "Court" means the circuit court which would have

31  adjudicated or sentenced, or did adjudicate or sentence, the

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3327, 2nd Eng.

    Amendment No.    





 1  person for the most recent sexually violent offense.

 2         (3)  "Department" means the Department of Health.

 3         (4)  "Mental abnormality" means a congenital or

 4  acquired condition affecting the emotional or volitional

 5  capacity which predisposes the person to commit sexually

 6  violent offenses in a degree such that the person constitutes

 7  a menace to the health and safety of others.

 8         (5)  "Overt act" means any act that either causes harm

 9  of a sexually violent nature or creates a reasonable

10  apprehension that such harm will occur.

11         (6)  "Predatory" means acts directed toward another

12  person for the primary purpose of victimization.

13         (7)  "Sexually motivated" means that one of the

14  purposes for which the defendant committed the crime was for

15  the purpose of the defendant's sexual gratification.

16         (8)  "Sexually violent offense" means:

17         (a)  Murder of any person as part of a sexual battery

18  in violation of s. 782.04(1)(a)2.;

19         (b)  Sexual battery of any person in violation of s.

20  794.011;

21         (c)  Lewd, lascivious, or indecent assault upon or act

22  upon or in the presence of a person in violation of s. 800.04;

23         (d)  Procuring a person for prostitution in violation

24  of s. 796.03 or s. 796.04 and s. 787.01(3)(a);

25         (e)  Purchasing or obtaining custody or control, or

26  offering to purchase or obtain custody or control, of a person

27  to engage in sexually explicit conduct as defined by s.

28  847.0145;

29         (f)  Any conviction for a felony offense in effect at

30  any time before the effective date of this act that is

31  comparable to a sexually violent offense as defined in

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3327, 2nd Eng.

    Amendment No.    





 1  paragraphs (a)-(e) or any federal conviction or conviction in

 2  another state for a felony offense that in this state would be

 3  a sexually violent offense;

 4         (g) An attempt, criminal solicitation, or conspiracy,

 5  in violation of s. 777.04, of a sexually violent offense; or

 6         (h)  Any act that either at the time of sentencing or

 7  adjudication for the offense or subsequently during civil

 8  commitment proceedings under this act has been determined

 9  beyond a reasonable doubt to have been sexually motivated.

10         (9)  "Sexually violent predator" means any person who

11  has been convicted of or charged with a sexually violent

12  offense and who suffers from a mental abnormality or

13  personality disorder that makes the person likely to engage in

14  predatory acts of sexual violence if not confined in a secure

15  facility.

16         (10)  "State attorney" means the state attorney for the

17  county where the person was charged for a sexually violent

18  offense most recently, or, upon request of this state

19  attorney, the Attorney General.

20         Section 4.  Section 916.32, Florida Statutes, is

21  created to read:

22         916.32  Notice to state attorney of release of sexually

23  violent predator; immunity from liability.--

24         (1)  When it appears that the person may meet the

25  criteria of a sexually violent predator, as defined in s.

26  916.31, the agency with jurisdiction shall give written notice

27  of that fact to the state attorney of the county 180 days

28  before:

29         (a)  The anticipated release from total confinement

30  from the Department of Corrections or the Department of

31  Juvenile Justice of a person who has been convicted of a

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3327, 2nd Eng.

    Amendment No.    





 1  sexually violent offense;

 2         (b)  The anticipated release of a person who has been

 3  charged with a sexually violent offense and who has been

 4  determined to be incompetent to stand trial under s. 916.12;

 5         (c)  The anticipated release of a person who has been

 6  adjudicated not guilty by reason of insanity of a sexually

 7  violent offense and involuntarily committed under s. 916.15;

 8  or

 9         (d)  The anticipated release from a juvenile

10  delinquency commitment program of a person found to have

11  committed a sexually violent offense as a juvenile.

12         (2)  The agency with jurisdiction shall provide to the

13  state attorney all relevant information, including, but not

14  limited to:

15         (a)  The person's name, identifying factors,

16  anticipated future residence, and offense history.

17         (b)  A complete copy of the institutional records

18  compiled by the agency with jurisdiction relating to the

19  person and any out-of-state correctional records, if

20  available.

21         (c)  All records relating to the psychological or

22  psychiatric evaluation and treatment of the person.

23         (3)  The agency with jurisdiction and the state

24  attorney, and their employees and individuals contracting,

25  appointed, or volunteering to perform services, are immune

26  from liability for any good-faith conduct under this section.

27         Section 5.  Section 916.33, Florida Statutes, is

28  created to read:

29         916.33  Petition; contents.--When it appears that a

30  person presently confined may be a sexually violent predator

31  or it appears that a person who is not presently confined but

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3327, 2nd Eng.

    Amendment No.    





 1  who has previously been convicted of a sexually violent

 2  offense has committed a recent overt act and the state

 3  attorney has determined that the person meets the definition

 4  of a "sexually violent predator," the state attorney may file

 5  a petition alleging that the person is a sexually violent

 6  predator and stating sufficient facts to support the

 7  allegation.

 8         Section 6.  Section 916.34, Florida Statutes, is

 9  created to read:

10         916.34  Determination of probable cause; respondent

11  taken into custody; evaluation.--Upon the filing of a petition

12  under s. 916.33, the court shall make a nonadversarial

13  determination whether the petition sets forth sufficient

14  grounds to believe probable cause exists that the respondent

15  is a sexually violent predator.  If the court finds probable

16  cause to believe that the respondent is a sexually violent

17  predator, the court shall direct that the respondent be taken

18  into custody and transferred to an appropriate secure

19  facility, for an evaluation as to whether the respondent is a

20  sexually violent predator.  The evaluation shall be conducted

21  by a person who is professionally qualified to conduct such an

22  examination.

23         Section 7.  Section 916.35, Florida Statutes, is

24  created to read:

25         916.35  Trial; counsel and experts; indigent persons;

26  jury.--

27         (1)  Within 45 days after the filing of a petition

28  pursuant to s. 916.33, the court shall conduct a trial to

29  determine whether the person is a sexually violent predator.

30  The trial may be continued upon a showing of good cause by

31  either party or by the court on its own motion in the due

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3327, 2nd Eng.

    Amendment No.    





 1  administration of justice and when the person will not be

 2  substantially prejudiced.

 3         (2)  At all adversarial proceedings under this act, the

 4  person subject to this act shall be entitled to the assistance

 5  of counsel and, if the person is indigent, the court shall

 6  appoint the public defender or, if a conflict exists, other

 7  counsel to assist the person. Whenever any person is subjected

 8  to an examination under this act, the person may retain

 9  qualified professionals to perform an examination of the

10  person on his or her own behalf. When the person wishes to be

11  examined by a qualified professional of his or her own choice,

12  the examiner shall be permitted to have reasonable access to

13  the person, for the purpose of the examination, and to all

14  relevant medical and psychological records and reports. In the

15  case of a person who is indigent, the court, upon the person's

16  request, shall assist the person in obtaining a qualified

17  professional to perform an examination or participate in the

18  trial on the person's behalf and shall order reasonable

19  compensation for such services as provided in s. 914.06.

20         (3)  The person or the state attorney may demand, or

21  the court on its own motion may order, that the trial be held

22  before a jury of six persons. This demand for a trial by jury

23  shall be filed, in writing, or the order entered, at least 4

24  days before the trial. If no demand or order is made, the

25  trial shall be held before the court.

26         Section 8.  Section 916.36, Florida Statutes, is

27  created to read:

28         916.36  Determination; commitment procedure;

29  mistrials.--

30         (1)  The court or jury shall determine whether, beyond

31  a reasonable doubt, the person is a sexually violent predator.

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3327, 2nd Eng.

    Amendment No.    





 1  When the determination is made by a jury, the verdict must be

 2  unanimous. Such determination may be appealed.

 3         (2)  If the court or jury determines that the person is

 4  a sexually violent predator, the person shall be committed to

 5  the custody of the department for control, care, and treatment

 6  until such time as it is safe for the person to be at large

 7  and the person has been ordered released pursuant to ss.

 8  916.30-916.49. Sexually violent predators committed for

 9  control, care, and treatment under ss. 916.30-916.49 shall be

10  kept in a secure facility operated by a private contractor.

11  The Department of Health shall contract with private

12  contractors for this purpose. A facility operated by a private

13  contractor and housing sexually violent predators shall be

14  operated exclusively to control, care for, and treat sexually

15  violent predators and shall only house violent predators.

16         (3)  If the court or jury is not satisfied beyond a

17  reasonable doubt that the person is a sexually violent

18  predator, the court shall direct the person's release. If a

19  mistrial is declared, the court shall direct that the person

20  be held at an appropriate secure facility until another trial

21  is conducted. Any subsequent trial following a mistrial must

22  be held within 60 days after the previous trial.

23         (4)  If a person charged with a sexually violent

24  offense has been found incompetent to stand trial and is about

25  to be released pursuant to s. 916.13 or s. 916.17 and such

26  person's commitment is sought under subsection (2), the court

27  shall first hear evidence and determine whether the person did

28  commit the act or acts charged. The hearing on this issue must

29  comply with all the procedures specified in this section. In

30  addition, the rules of evidence applicable in criminal cases

31  shall apply, and all constitutional rights available to

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3327, 2nd Eng.

    Amendment No.    





 1  defendants at a criminal trial, other than the right not to be

 2  tried while incompetent, shall apply. After hearing evidence

 3  on this issue, the court shall make specific findings on

 4  whether the person did commit the act or acts charged, the

 5  extent to which the person's incompetence or developmental

 6  disability affected the outcome of the hearing, including its

 7  effect on the person's ability to consult with and assist

 8  counsel and to testify on his or her own behalf, the extent to

 9  which the evidence could be reconstructed without the

10  assistance of the person, and the strength of the

11  prosecution's case. If, after the conclusion of the hearing on

12  this issue, the court finds beyond a reasonable doubt that the

13  person did commit the act or acts charged, the court shall

14  enter a final order, appealable by the person, on that issue

15  and may proceed to consider whether the person should be

16  committed pursuant to this section.

17         Section 9.  Section 916.37, Florida Statutes, is

18  created to read:

19         916.37  Annual examination.--Each person committed

20  under s. 916.36 shall have an examination of his or her mental

21  condition made once every year. The committed person may

22  retain a qualified professional to examine such person, and

23  the qualified professional shall have access to all records

24  concerning the person. If the committed person is indigent and

25  so requests, the court may appoint a qualified professional to

26  examine the person. This yearly report shall be provided to

27  the court that committed the person and to the state attorney.

28  The court shall conduct an annual review of the status of the

29  committed person. Nothing contained in this act shall prohibit

30  the person from otherwise petitioning the court for discharge

31  at this hearing.

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3327, 2nd Eng.

    Amendment No.    





 1         Section 10.  Section 916.38, Florida Statutes, is

 2  created to read:

 3         916.38  Detention and commitment to conform to

 4  constitutional requirements.--The involuntary detention or

 5  commitment of persons under this act shall conform to

 6  constitutional requirements for care and treatment.

 7         Section 11.  Section 916.39, Florida Statutes, is

 8  created to read:

 9         916.39  Petition for release; procedure.--

10         (1)  If the Secretary of Health or the secretary's

11  designee determines that the mental abnormality or personality

12  disorder of a person committed as a sexually violent predator

13  has so changed that the person is not likely to commit

14  predatory acts of sexual violence if released, the department

15  shall authorize the person to petition the court for release.

16  The petition shall be served upon the court and the state

17  attorney. The court, upon receipt of the petition for release,

18  shall order a hearing within 30 days. The state attorney shall

19  represent the state and shall have the right to have the

20  committed person examined by a qualified professional of the

21  state attorney's choice. The hearing shall be before a jury if

22  demanded by either the committed person or the state attorney.

23  The burden of proof shall be upon the state attorney to show

24  by clear and convincing evidence that the committed person's

25  mental abnormality or personality disorder remains such that

26  the person is not safe to be at large, and that, if

27  discharged, the person is likely to commit predatory acts of

28  sexual violence.

29         (2)  A person committed as a sexually violent predator

30  may petition the court for discharge without the approval of

31  the Department of Health. The department shall provide the

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3327, 2nd Eng.

    Amendment No.    





 1  committed person with an annual written notice of the person's

 2  right to petition the court for discharge over the

 3  department's objection. The notice shall contain a waiver of

 4  this right if the committed person does not choose to petition

 5  the court. The department shall forward the notice and signed

 6  waiver form or the committed person's petition to the court

 7  with the annual report. If the committed person files a

 8  petition for discharge over the department's objection, the

 9  court shall review the petition to determine whether there are

10  reasonable grounds to support the petition. If the court finds

11  that the petition is based upon frivolous grounds, it shall

12  deny the petition without a hearing. If the court finds that

13  the petition is based upon reasonable grounds, the court shall

14  set a show cause hearing to determine whether facts exist that

15  warrant an adversarial hearing on whether the committed

16  person's condition has so changed that he or she is safe to be

17  discharged. The committed person has the right to have an

18  attorney present to represent the person at the show cause

19  hearing, but the committed person is not entitled to be

20  present at the show cause hearing. If the court at the show

21  cause hearing determines that probable cause exists to believe

22  that the committed person's mental abnormality or personality

23  disorder has so changed that the person is safe to be at large

24  and will not likely engage in acts of sexual violence if

25  discharged, then the court shall set an adversarial hearing.

26  At the adversarial hearing, the committed person shall be

27  entitled to be present and entitled to the benefit of all

28  constitutional protections that the person was entitled to at

29  the initial commitment proceeding. The state attorney shall

30  represent the state and shall have the right to a trial by

31  jury and to have the committed person evaluated by experts

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3327, 2nd Eng.

    Amendment No.    





 1  chosen by the state. The committed person shall also have the

 2  right to have experts evaluate the person on his or her own

 3  behalf, and the court shall appoint a qualified professional

 4  if the person is indigent and requests that an expert be

 5  appointed. The burden of proof at the hearing shall be upon

 6  the state attorney to prove beyond a reasonable doubt that the

 7  committed person's mental abnormality or personality disorder

 8  remains such that the person is not safe to be at large and,

 9  if released, is likely to engage in acts of sexual violence.

10         (3)  Nothing in this act shall prohibit a person from

11  filing a petition for discharge at any time. However, if a

12  committed person has previously filed a petition for discharge

13  without the approval of the Department of Health and the court

14  determined upon review of the petition, or following a

15  hearing, that the petition was frivolous or that the committed

16  person's condition had not so changed that the person was safe

17  to be at large, the court shall deny any subsequent petition

18  unless the petition contains facts upon which a court could

19  find the condition of the committed person had so changed that

20  a hearing was warranted. Upon receipt of a first or subsequent

21  petition from the committed person without the department's

22  approval, the court shall review the petition and determine if

23  the petition is based upon frivolous grounds and, if so, shall

24  deny the petition without a hearing.

25         Section 12.  Section 916.40, Florida Statutes, is

26  created to read:

27         916.40  Costs.--

28         (1)  The Department of Health is responsible for all

29  costs relating to the evaluation and treatment of a person

30  committed to the department's custody as a sexually violent

31  predator under any provision of this act.  Reimbursement may

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3327, 2nd Eng.

    Amendment No.    





 1  be obtained by the department for the cost of care and

 2  treatment of persons committed to the department's custody as

 3  provided by law.

 4         (2)  In recognition of the fact that persons committed

 5  under this act may have sources of income and assets, which

 6  may include bank accounts, inheritances, real estate, social

 7  security payments, veteran's payments, and other types of

 8  financial resources, and in recognition of the fact that the

 9  daily subsistence costs and costs of treatment of persons

10  committed under this act are a burden on the taxpayers of the

11  state, each person so committed shall:

12         (a)  Upon order of the court committing the person,

13  disclose all revenue or assets to the department.

14         (b)  Pay from such income and assets, except when the

15  income or asset is exempt by state or federal law, all or a

16  fair portion of the person's daily subsistence and treatment

17  costs, based upon the person's ability to pay, the liability

18  or potential liability of the person to the victim or the

19  guardian or the estate of the victim, and the needs of his or

20  her dependents.

21         (3)(a)  Any person who is directed to pay all or a fair

22  portion of daily subsistence and treatment costs is entitled

23  to reasonable advance notice of the assessment and shall be

24  afforded an opportunity to present reasons for opposition to

25  the assessment.

26         (b)  An order directing payment of all or a fair

27  portion of a person's daily subsistence costs may survive

28  against the estate of the person.

29         Section 13.  Section 916.41, Florida Statutes, is

30  created to read:

31         916.41  Notice to victims of release of person

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3327, 2nd Eng.

    Amendment No.    





 1  committed as a sexually violent predator.--Prior to release of

 2  a committed person under this act, the Department of Health

 3  shall give written notice of the release of a person committed

 4  as a sexually violent predator to any victim of the person's

 5  activities or crime who is alive and whose address is known to

 6  the department or, if the victim is deceased, to the victim's

 7  next of kin, if the address of the next of kin is known to the

 8  department. Failure to notify is not a reason for postponement

 9  of the release. Nothing in this section creates a cause of

10  action against the state or any employee of the state or any

11  agent or volunteer who helps make this notification.

12         Section 14.  Section 916.42, Florida Statutes, is

13  created to read:

14         916.42  Severability.--If any provision of this act or

15  the application thereof to any person or circumstance is held

16  invalid, the invalidity shall not affect other provisions or

17  applications of the act which can be given effect without the

18  invalid provision or application, and to this end the

19  provisions of this act are declared severable.

20         Section 15.  Section 916.43, Florida Statutes, is

21  created to read:

22         916.43  Confidential or privileged information and

23  records.--In order to protect the public, relevant information

24  and records that are held by a governmental entity or are

25  otherwise confidential or privileged shall be released to the

26  agency with jurisdiction or the state attorney for the purpose

27  of meeting the notice requirement provided in s. 916.32 and

28  determining whether a person is or continues to be a sexually

29  violent predator. This section shall be part of and

30  supplemental to the provisions of ss. 916.30-916.42.

31         Section 16.    There is hereby appropriated from the

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3327, 2nd Eng.

    Amendment No.    





 1  General Revenue Fund in a lump sum to the Department of Health

 2  the sum of $3,400,000 and 50 full-time equivalent positions,

 3  and from the Grants and Donations Trust Fund, $1,500,000 to

 4  the Department of Health for the purpose of carrying out the

 5  provisions of this act. From the funds appropriated, the

 6  department may, at the counties request, reimburse counties

 7  for the cost of no more than one examination of each person

 8  subject to this act, provided that the department's

 9  reimbursement for each examination shall not exceed the cost

10  to the department for examinations that it conducts of such

11  persons.

12         Section 17.  This act shall take effect January 1,

13  1999.

14

15

16  ================ T I T L E   A M E N D M E N T ===============

17  And the title is amended as follows:

18         Delete everything before the enacting clause

19

20  and insert:

21                      A bill to be entitled

22         An act relating to sexual predators; creating

23         the "Jimmy Ryce Involuntary Civil Commitment

24         for Sexually Violent Predators' Treatment and

25         Care Act"; creating s. 916.30, F.S.; providing

26         findings and intent; creating s. 916.31, F.S.;

27         providing definitions; creating s. 916.32,

28         F.S.; requiring certain notice to the state

29         attorney of anticipated release of specified

30         persons who may meet the criteria for a

31         sexually violent predator; requiring provision

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3327, 2nd Eng.

    Amendment No.    





 1         of certain records and information by the

 2         agency with jurisdiction to the state attorney;

 3         providing certain immunity from liability of

 4         the agency with jurisdiction, the state

 5         attorney, and their employees and service

 6         providers; creating s. 916.33, F.S.; providing

 7         for petition to have such person declared a

 8         sexually violent predator; creating s. 916.34,

 9         F.S.; providing for determination of probable

10         cause and taking respondent into custody;

11         providing for transfer of the respondent to a

12         secure facility for evaluation under specified

13         circumstances when the court finds probable

14         cause to believe that the respondent is a

15         sexually violent predator; creating s. 916.35,

16         F.S.; providing for trial on the issue of

17         whether a person is a sexually violent

18         predator; creating s. 916.36, F.S.; providing

19         for commitment of a person determined to be a

20         sexually violent predator; creating s. 916.37,

21         F.S.; requiring annual examination of persons

22         committed; creating s. 916.38, F.S.; requiring

23         detention and commitment to conform to

24         constitutional requirements; creating s.

25         916.39, F.S.; providing for petitions for

26         release; creating s. 916.40, F.S.; providing

27         that the Department of Health is responsible

28         for specified evaluation and treatment costs;

29         providing for reimbursement; providing for

30         court orders for certain disclosures to the

31         department by the committed person of income

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3327, 2nd Eng.

    Amendment No.    





 1         and assets; providing for imposition and

 2         assessment of certain financial liabilities for

 3         payment of daily subsistence and treatment

 4         costs based on specified criteria; providing

 5         for notice and contest of the assessment;

 6         providing for survival of the order directing

 7         payment against the person's estate; creating

 8         s. 916.41, F.S.; providing for notice to

 9         victims; creating s. 916.42, F.S.; providing

10         severability; creating s. 916.43, F.S.;

11         providing for access to certain records;

12         providing appropriations; providing an

13         effective date.

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

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