CODING: Words stricken are deletions; words underlined are additions.
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Senator Gutman moved the following amendment:
SENATE AMENDMENT
Bill No. CS/HB 3327, 2nd Eng.
Amendment No.
CHAMBER ACTION
Senate House
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11 Senator Gutman moved the following amendment:
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13 Senate Amendment (with title amendment)
14 Delete everything after the enacting clause
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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.
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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.
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