CODING: Words stricken are deletions; words underlined are additions.
SENATE AMENDMENT
Bill No. CS/HB 3327, 2nd Eng.
Amendment No.
CHAMBER ACTION
Senate House
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11 Senators Gutman and Klein moved the following substitute for
12 amendment (362116):
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14 Senate Amendment (with title amendment)
15 On page 2, line 2, through page 17, line 9, delete all
16 of those lines
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18 and insert:
19 916.31 Legislative findings and intent.--The
20 Legislature finds that a small but extremely dangerous number
21 of sexually violent predators exist who do not have a mental
22 disease or defect that renders them appropriate for
23 involuntary treatment under the Baker Act, ss.
24 394.451-394.4789, which is intended to provide short-term
25 treatment to individuals with serious mental disorders and
26 then return them to the community. In contrast to persons
27 appropriate for civil commitment under the Baker Act, sexually
28 violent predators generally have antisocial personality
29 features which are unamenable to existing mental illness
30 treatment modalities and those features render them likely to
31 engage in criminal, sexually violent behavior. The Legislature
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SENATE AMENDMENT
Bill No. CS/HB 3327, 2nd Eng.
Amendment No.
1 further finds that the likelihood of sexually violent
2 predators engaging in repeat acts of predatory sexual violence
3 is high. The existing involuntary commitment procedures under
4 the Baker Act for the treatment and care of mentally ill
5 persons are inadequate to address the risk these sexually
6 violent predators pose to society. The Legislature further
7 finds that the prognosis for rehabilitating sexually violent
8 predators in a prison setting is poor, the treatment needs of
9 this population are very long term, and the treatment
10 modalities for this population are very different than the
11 traditional treatment modalities for people appropriate for
12 commitment under the Baker Act. It is therefore the intent of
13 the Legislature to create a civil commitment procedure for the
14 long-term care and treatment of sexually violent predators.
15 Section 5. Section 916.32, Florida Statutes, is
16 created to read:
17 916.32 Definitions.--As used in ss. 916.30-916.49, the
18 term:
19 (1) "Agency with jurisdiction" means the agency that
20 releases, upon lawful order or authority, a person serving a
21 sentence in the custody of the Department of Corrections, a
22 person adjudicated delinquent and committed to the custody of
23 the Department of Juvenile Justice or a person who was
24 involuntarily committed to the custody of the Department of
25 Children and Family Services upon an adjudication of not
26 guilty by reason of insanity.
27 (2) "Convicted of a sexually violent offense" means a
28 person who has been:
29 (a) Adjudicated guilty of a sexually violent offense
30 after a trial, guilty plea, or plea of nolo contendere;
31 (b) Adjudicated not guilty by reason of insanity of a
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SENATE AMENDMENT
Bill No. CS/HB 3327, 2nd Eng.
Amendment No.
1 sexually violent offense; or
2 (c) Adjudicated delinquent of a sexually violent
3 offense after a trial, guilty plea, or plea of nolo
4 contendere.
5 (3) "Department" means the Department of Children and
6 Family Services.
7 (4) "Likely to engage in acts of sexual violence"
8 means the person's propensity to commit acts of sexual
9 violence is of such a degree as to pose a menace to the health
10 and safety of others.
11 (5) "Mental abnormality" means a mental condition
12 affecting a person's emotional or volitional capacity which
13 predisposes the person to commit sexually violent offenses.
14 (6) "Person" means an individual 18 years of age or
15 older who is a potential or actual subject of proceedings
16 under ss. 916.30-916.49.
17 (7) "Sexually motivated" means that one of the
18 purposes for which the defendant committed the crime was for
19 sexual gratification.
20 (8) "Sexually violent offense" means:
21 (a) Murder of a human being while engaged in sexual
22 battery in violation of s. 782.04(1)(a)2.;
23 (b) Kidnapping of a child under the age of 16 and, in
24 the course of that offense, committing:
25 1. Sexual battery; or
26 2. A lewd, lascivious, or indecent assault or act upon
27 or in the presence of the child;
28 (c) Committing the offense of false imprisonment upon
29 a child under the age of 16 and, in the course of that
30 offense, committing:
31 1. Sexual battery; or
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Bill No. CS/HB 3327, 2nd Eng.
Amendment No.
1 2. A lewd, lascivious or indecent assault or act upon
2 or in the presence of the child;
3 (d) Sexual battery in violation of s. 794.011;
4 (e) Lewd, lascivious, or indecent assault or act upon
5 or in presence of the child in violation of s. 800.04;
6 (f) An attempt, criminal solicitation, or conspiracy,
7 in violation of s. 777.04, of a sexually violent offense;
8 (g) Any conviction for a felony offense in effect at
9 any time before October 1, 1998, which is comparable to a
10 sexually violent offense under paragraphs (a)-(f) or any
11 federal conviction or conviction in another state for a felony
12 offense that in this state would be a sexually violent
13 offense; or
14 (h) Any criminal act that, either at the time of
15 sentencing for the offense or subsequently during civil
16 commitment proceedings under ss. 916.30-916.49, has been
17 determined beyond a reasonable doubt to have been sexually
18 motivated.
19 (9) "Sexually violent predator" means any person who:
20 (a) Has been convicted of a sexually violent offense;
21 and
22 (b) Suffers from a mental abnormality or personality
23 disorder that makes the person likely to engage in acts of
24 sexual violence if not confined in a secure facility for
25 long-term control, care, and treatment.
26 (10) "Total confinement" means that the person is
27 currently being held in any physically secure facility being
28 operated or contractually operated for the Department of
29 Corrections, the Department of Juvenile Justice, or the
30 Department of Children and Family Services.
31 Section 6. Section 916.33, Florida Statutes, is
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Bill No. CS/HB 3327, 2nd Eng.
Amendment No.
1 created to read:
2 916.33 Notice to state attorney and multidisciplinary
3 team of release of sexually violent predator; establishing
4 multidisciplinary team.--
5 (1) The agency with jurisdiction over a person who has
6 been convicted of a sexually violent offense shall give
7 written notice to the multidisciplinary team, and a copy to
8 the state attorney of the circuit where that person was last
9 convicted of a sexually violent offense, 180 days or, in the
10 case of an adjudicated committed delinquent, 90 days before:
11 (a) The anticipated release from total confinement of
12 a person who has been convicted of a sexually violent offense,
13 except that in the case of persons who have been returned to
14 confinement for no more than 90 days, written notice must be
15 given as soon as practicable following the person's return to
16 confinement; or
17 (b) The anticipated hearing regarding possible release
18 of a person who has been found not guilty by reason of
19 insanity or mental incapacity of a sexually violent offense.
20 (2) The agency with jurisdiction shall provide the
21 multidisciplinary team with the following information:
22 (a) The person's name; identifying characteristics;
23 anticipated future residence; the type of supervision the
24 person will receive in the community, if any; and the person's
25 offense history; and
26 (b) Documentation of institutional adjustment and any
27 treatment received and, in the case of an adjudicated
28 delinquent committed to the Department of Juvenile Justice,
29 copies of the most recent performance plan and performance
30 summary.
31
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Bill No. CS/HB 3327, 2nd Eng.
Amendment No.
1 The provisions of this section are not jurisdictional, and
2 failure to comply with them in no way prevents the state
3 attorney from proceeding against a person otherwise subject to
4 the provisions of ss. 916.30-916.49.
5 (3) The Secretary of Children and Family Services
6 shall establish a multidisciplinary team, which shall include
7 two licensed psychiatrists or psychologists, or one licensed
8 psychiatrist and one licensed psychologist, designated by the
9 Secretary of Children and Family Services. The Attorney
10 General's Office shall serve as legal counsel to the
11 multidisciplinary team. The team, within 45 days after
12 receiving notice, shall assess whether the person meets the
13 definition of a sexually violent predator and provide the
14 state attorney with its written assessment and recommendation.
15 Section 7. Section 916.34, Florida Statutes, is
16 created to read:
17 916.34 Petition; time; contents.--Following receipt of
18 the written assessment and recommendation from the
19 multidisciplinary team, the state attorney in the judicial
20 circuit where the person committed the sexually violent
21 offense may file a petition with the circuit court alleging
22 that the person is a sexually violent predator and stating
23 facts sufficient to support such allegation.
24 Section 8. Section 916.35, Florida Statutes, is
25 created to read:
26 916.35 Determination of probable cause; hearing;
27 evaluation; respondent taken into custody; bail.--
28 (1) When the state attorney files a petition seeking
29 to have a person declared a sexually violent predator, the
30 judge shall determine whether probable cause exists to believe
31 that the person named in the petition is a sexually violent
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Bill No. CS/HB 3327, 2nd Eng.
Amendment No.
1 predator. If the judge determines that there is probable cause
2 to believe that the person is a sexually violent predator, the
3 judge shall direct that the person be taken into custody and
4 held in an appropriate secure facility.
5 (2) Before the release from custody of a person whom
6 the multidisciplinary team recommends for civil commitment,
7 but after the state attorney files a petition under s. 916.33,
8 the state attorney may further petition the court for an
9 adversarial probable cause hearing. The person shall be
10 provided with notice of, and an opportunity to appear in
11 person at, an adversary hearing. At this hearing, the judge
12 shall:
13 (a) Receive evidence and hear argument from the person
14 and the state attorney; and
15 (b) Determine whether probable cause exists to believe
16 that the person is a sexually violent predator.
17 (3) At the probable cause hearing, the person has the
18 right to:
19 (a) Be represented by counsel;
20 (b) Present evidence;
21 (c) Cross-examine any witnesses who testify against
22 the person; and
23 (d) View and copy all petitions and reports in the
24 court file.
25 (4) If the court again concludes that there is
26 probable cause to believe that the person is a sexually
27 violent predator, the court shall direct that the person be
28 held in an appropriate secure facility in the county where the
29 petition was filed for an evaluation by a mental health
30 professional.
31 (5) After a court finds probable cause to believe that
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SENATE AMENDMENT
Bill No. CS/HB 3327, 2nd Eng.
Amendment No.
1 the person is a sexually violent predator, the person must be
2 held in custody in a secure facility without opportunity for
3 pretrial release or release during the trial proceedings.
4 Section 9. Section 916.36, Florida Statutes, is
5 created to read:
6 916.36 Trial; counsel and experts; indigent persons;
7 jury.--
8 (1) Within 30 days after the determination of probable
9 cause, the court shall conduct a trial to determine whether
10 the person is a sexually violent predator.
11 (2) The trial may be continued upon the request of
12 either party and a showing of good cause, or by the court on
13 its own motion in the interests of justice, when the person
14 will not be substantially prejudiced.
15 (3) At all adversarial proceedings under this act, the
16 person subject to this act is entitled to the assistance of
17 counsel, and, if the person is indigent, the court shall
18 appoint the public defender or, if a conflict exists, other
19 counsel to assist the person.
20 (4) If the person is subjected to a mental health
21 examination under this chapter, the person also may retain
22 experts or mental health professionals to perform an
23 examination. If the person wishes to be examined by a
24 professional of the person's own choice, the examiner must be
25 provided reasonable access to the person, as well as to all
26 relevant medical and mental health records and reports. In the
27 case of a person who is indigent, the court, upon the person's
28 request, shall determine whether such an examination is
29 necessary. If the court determines that an examination is
30 necessary, the court shall appoint a mental health
31 professional and determine the reasonable compensation for the
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Bill No. CS/HB 3327, 2nd Eng.
Amendment No.
1 professional's services.
2 (5) The person or the state attorney has the right to
3 demand that the trial be before a jury. A demand for a jury
4 trial must be filed, in writing, at least 5 days before the
5 trial. If no demand is made, the trial shall be to the court.
6 Section 10. Section 916.37, Florida Statutes, is
7 created to read:
8 916.37 Determination; commitment procedure; mistrials;
9 housing.--
10 (1) The court or jury shall determine by clear and
11 convincing evidence whether the person is a sexually violent
12 predator. If the determination is made by a jury, the decision
13 must be unanimous. If a majority of the jury finds that the
14 person is a sexually violent predator, but the decision is not
15 unanimous, the state attorney may refile the petition and
16 proceed according to the provisions of ss. 916.30-916.49. Any
17 retrial must occur within 90 days after the previous trial,
18 unless the subsequent proceeding is continued in accordance
19 with s. 916.36(2). The determination that a person is a
20 sexually violent predator may be appealed.
21 (2) If the court or jury determines that the person is
22 a sexually violent predator, the person shall be committed to
23 the custody of the Department of Children and Family Services
24 for control, care, and treatment until such time as the
25 person's mental abnormality or personality disorder has so
26 changed that it is safe for the person to be at large. At all
27 times, sexually violent predators who are committed for
28 control, care, and treatment by the Department of Children and
29 Family Services under this section shall be kept in a secure
30 facility segregated from patients who are not committed under
31 this section.
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Bill No. CS/HB 3327, 2nd Eng.
Amendment No.
1 Section 11. Section 916.38, Florida Statutes, is
2 created to read:
3 916.38 Examinations.--
4 (1) A person committed under ss. 916.30-916.49 shall
5 have an examination of his or her mental condition once every
6 year or more frequently at the court's discretion. The person
7 may retain or, if the person is indigent and so requests, the
8 court may appoint, a qualified professional to examine the
9 person. Such a professional shall have access to all records
10 concerning the person. The results of the examination shall be
11 provided to the court that committed the person under ss.
12 916.30-916.49. Upon receipt of the report, the court shall
13 conduct a review of the person's status.
14 (2) The department shall provide the person with
15 annual written notice of the person's right to petition the
16 court for release over the objection of the director of the
17 facility where the person is housed. The notice must contain a
18 waiver of rights. The director of the facility shall forward
19 the notice and waiver form to the court.
20 (3) The court shall hold a limited hearing to
21 determine whether there is probable cause to believe that the
22 person's condition has so changed that it is safe for the
23 person to be at large and that the person will not engage in
24 acts of sexual violence if discharged. The person has the
25 right to be represented by counsel at the probable cause
26 hearing, but the person is not entitled to be present. If the
27 court determines that there is probable cause to believe it is
28 safe to release the person, the court shall set a trial before
29 the court on the issue.
30 (4) At the trial before the court, the person is
31 entitled to be present and is entitled to the benefit of all
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Bill No. CS/HB 3327, 2nd Eng.
Amendment No.
1 constitutional protections afforded the person at the initial
2 trial, except for the right to a jury. The state attorney
3 shall represent the state and has the right to have the person
4 examined by professionals chosen by the state. At the hearing
5 the state bears the burden of proving, by clear and convincing
6 evidence, that the person's mental condition remains such that
7 it is not safe for the person to be at large and that, if
8 released, the person is likely to engage in acts of sexual
9 violence.
10 Section 12. Section 916.39, Florida Statutes, is
11 created to read:
12 916.39 Authorized petition for release; procedure.--
13 (1) If the Secretary of Children and Family Services
14 or the secretary's designee at any time determines that the
15 person is not likely to commit acts of sexual violence if
16 conditionally discharged, the secretary or the secretary's
17 designee shall authorize the person to petition the court for
18 release. The petition shall be served upon the court and the
19 state attorney. The court, upon receipt of such a petition,
20 shall order a trial before the court within 30 days, unless
21 continued for good cause.
22 (2) The state attorney shall represent the state, and
23 has the right to have the person examined by professionals of
24 the state attorney's choice. The state bears the burden of
25 proving, by clear and convincing evidence, that the person's
26 mental condition remains such that it is not safe for the
27 person to be at large and that, if released, the person is
28 likely to engage in acts of sexual violence.
29 Section 13. Section 916.40, Florida Statutes, is
30 created to read:
31 916.40 Petition for release.--Sections 916.30-916.49
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Bill No. CS/HB 3327, 2nd Eng.
Amendment No.
1 do not prohibit a person from filing a petition for discharge
2 at any time. However, if the person has previously filed such
3 a petition without the approval of the Secretary of Children
4 and Family Services or the secretary's designee and the court
5 determined that the petition was without merit, a subsequent
6 petition shall be denied unless the petition contains facts
7 upon which a court could find that the person's condition has
8 so changed that a probable-cause hearing is warranted.
9 Section 14. Section 916.41, Florida Statutes, is
10 created to read:
11 916.41 Release of records to state attorney.--
12 (1) In order to protect the public, relevant
13 information and records that are otherwise confidential or
14 privileged shall be released to the agency having jurisdiction
15 or to the state attorney for the purpose of meeting the notice
16 requirements of ss. 916.30-916.49 and determining whether a
17 person is or continues to be a sexually violent predator.
18 (2) Psychological or psychiatric reports, drug and
19 alcohol reports, treatment records, medical records, or victim
20 impact statements that have been submitted to the court or
21 admitted into evidence under ss. 916.30-916.49 shall be part
22 of the record, but shall be sealed and may be opened only
23 pursuant to a court order.
24 Section 15. Section 916.42, Florida Statutes, is
25 created to read:
26 916.42 Constitutional requirements.--The long-term
27 control, care, and treatment of a person committed under ss.
28 916.30-916.49 must conform to constitutional requirements.
29 Section 16. Section 916.43, Florida Statutes, is
30 created to read:
31 916.43 Immunity from civil liability.--The agency with
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SENATE AMENDMENT
Bill No. CS/HB 3327, 2nd Eng.
Amendment No.
1 jurisdiction and its officers and employees; the department
2 and its officers and employees; members of the
3 multidisciplinary team; the state attorney and the state
4 attorney's employees; and those involved in the evaluation,
5 care, and treatment of sexually violent persons committed
6 under ss. 916.30-916.49, are immune from any civil liability
7 for good-faith conduct under ss. 916.30-916.49.
8 Section 17. Section 916.44, Florida Statutes, is
9 created to read:
10 916.44 Severability.--If any section, subsection, or
11 provision of ss. 916.30-916.49 is held to be unconstitutional
12 or invalid by a court of competent jurisdiction, the remaining
13 portions of ss. 916.30-916.49 shall be unaffected because the
14 Legislature declares that the provisions of ss. 916.30-916.49
15 are severable from each other.
16 Section 18. Section 916.45, Florida Statutes, is
17 created to read:
18 916.45 Applicability of act.--Sections 916.30-916.49
19 apply to all persons currently in custody who have been
20 convicted of a sexually violent offense, as that term is
21 defined in s. 916.32(8), as well as to all persons convicted
22 of a sexually violent offense in the future.
23 Section 19. Section 916.46, Florida Statutes, is
24 created to read:
25 916.46 Notice to victims of release of persons
26 committed as sexually violent predators.--As soon as is
27 practicable, the department shall give written notice of the
28 release of a person committed as a sexually violent predator
29 to any victim of the committed person who is alive and whose
30 address is known to the department or, if the victim is
31 deceased, to the victim's family, if the family's address is
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Bill No. CS/HB 3327, 2nd Eng.
Amendment No.
1 known to the department. Failure to notify is not a reason for
2 postponement of release. This section does not create a cause
3 of action against the state or an employee of the state acting
4 within the scope of the employee's employment as a result of
5 the failure to notify pursuant to ss. 916.30-916.49.
6 Section 20. Section 916.47, Florida Statutes, is
7 created to read:
8 916.47 Escape while in lawful custody.--A person who
9 is held in lawful custody pursuant to a judicial finding of
10 probable cause under s. 916.35 or pursuant to a commitment as
11 a sexually violent predator under s. 916.36 and who escapes or
12 attempts to escape while in such custody commits a felony of
13 the second degree, punishable as provided in s. 775.082, s.
14 775.083, or s. 775.084.
15 Section 21. Section 916.48, Florida Statutes, is
16 created to read:
17 916.48 Subsistence fees and costs of treatment.--
18 (1) In recognition of the fact that persons committed
19 under ss. 916.30-916.49 may have sources of income and assets,
20 which may include bank accounts, inheritances, real estate,
21 social security payments, veteran's payments, and other types
22 of financial resources, and in recognition of the fact that
23 the daily subsistence cost and costs of treatment of persons
24 committed under ss. 916.30-916.49 are a burden on the
25 taxpayers of the state, each person so committed shall:
26 (a) Upon order of the court committing the person,
27 disclose all revenue or assets to the department.
28 (b) Pay from such income and assets, except where such
29 income is exempt by state or federal law, all or a fair
30 portion of the person's daily subsistence and treatment costs,
31 based upon the person's ability to pay, the liability or
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Bill No. CS/HB 3327, 2nd Eng.
Amendment No.
1 potential liability of the person to the victim or the
2 guardian or the estate of the victim, and the needs of his or
3 her dependents.
4 (2)(a) Any person who is directed to pay all or a fair
5 portion of daily subsistence and treatment costs is entitled
6 to reasonable advance notice of the assessment and shall be
7 afforded an opportunity to present reasons for opposition to
8 the assessment.
9 (b) An order directing payment of all or a fair
10 portion of a person's daily subsistence costs may survive
11 against the estate of the person.
12 Section 22. Section 916.49, Florida Statutes, is
13 created to read:
14 916.49 Department of Children and Family Services
15 responsible for costs.--The Department of Children and Family
16 Services is responsible for all costs relating to the
17 evaluation and treatment of persons committed to the
18 department's custody as sexually violent predators. A county
19 is not obligated to fund costs for psychological examinations,
20 expert witnesses, court-appointed counsel, or other costs
21 required by ss. 916.30-916.49. Other costs for psychological
22 examinations, expert witnesses, and court-appointed counsel
23 required by ss. 916.30-916.49 shall be paid from state funds
24 appropriated by general law.
25 Section 23. The Department of Children and Family
26 Services may contract with a private entity or state agency
27 for use of and operations of facilities to comply with the
28 requirements of this act. The Department of Children and
29 Family Services may also contract with the Correctional
30 Privatization Commission as defined in chapter 957 to issue a
31 request for proposals and monitor contract compliance for
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Bill No. CS/HB 3327, 2nd Eng.
Amendment No.
1 these services.
2 Section 24. There is hereby appropriated from the
3 General Revenue Fund in a lump sum to the Department of
4 Children and Family Services the sum of $4,900,000, of which
5 $1,500,000 is from nonrecurring funds, and 50 full-time
6 equivalent positions and from the Grants and Donations Trust
7 Fund, $1,500,000 to the Department of Corrections for the
8 purpose of carrying out the provisions of this act. From the
9 funds appropriated to the Department of Children and Family
10 Services, the department shall, at the counties' request,
11 reimburse counties for the cost of no more than one
12 examination of each person subject to this act, provided that
13 the department's reimbursement for each examination shall not
14 exceed the cost to the department for examinations that it
15 conducts of such persons.
16
17
18 ================ T I T L E A M E N D M E N T ===============
19 And the title is amended as follows:
20 On page 19, lines 4 and 5, delete those lines
21
22 and insert:
23 monitoring contract compliance; providing for
24 appropriation of funds; providing for 50
25 full-time equivalent positions; providing an
26 effective date.
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