Senate Bill 0444

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    Florida Senate - 1998                                   SB 444

    By Senator Gutman





    34-255-98

  1                      A bill to be entitled

  2         An act relating to criminal mischief; amending

  3         s. 806.13, F.S., relating to criminal mischief

  4         offenses and penalties; providing for

  5         reclassification of a misdemeanor violation of

  6         the section involving less than a specified

  7         amount in property damage when the offender has

  8         one or more prior convictions under the

  9         section; providing legislative intent;

10         providing that a county or municipality is not

11         preempted by state law from establishing an

12         ordinance that prohibits the marking of

13         graffiti or other graffiti-related offenses and

14         penalizes such offenses with higher penalties

15         than those provided by state law or with

16         mandatory penalties; providing that the court

17         may not provide a disposition of the case which

18         is less severe than such higher or mandatory

19         penalties in certain juvenile proceedings for

20         violation of the ordinance; amending s. 901.15,

21         F.S., relating to circumstances for arrest

22         without a warrant; providing for such arrest

23         when there is probable cause to believe that

24         the person has committed criminal mischief or a

25         graffiti-related offense; providing an

26         effective date.

27

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

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    Florida Senate - 1998                                   SB 444
    34-255-98




  1         Section 1.  Subsection (1) of section 806.13, Florida

  2  Statutes, is amended, and subsection (7) is added to that

  3  section, to read:

  4         806.13  Criminal mischief; penalties; penalty for

  5  minor.--

  6         (1)(a)  A person commits the offense of criminal

  7  mischief if he or she willfully and maliciously injures or

  8  damages by any means any real or personal property belonging

  9  to another, including, but not limited to, the placement of

10  graffiti thereon or other acts of vandalism thereto.

11         (b)1.  If the damage to such property is $200 or less,

12  it is a misdemeanor of the second degree, punishable as

13  provided in s. 775.082 or s. 775.083.

14         2.  If the damage to such property is greater than $200

15  but less than $1,000, it is a misdemeanor of the first degree,

16  punishable as provided in s. 775.082 or s. 775.083.

17         3.  If the damage is $1,000 or greater, or if there is

18  interruption or impairment of a business operation or public

19  communication, transportation, supply of water, gas or power,

20  or other public service which costs $1,000 or more in labor

21  and supplies to restore, it is a felony of the third degree,

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

23  775.084.

24         4.  If the person has one or more previous convictions

25  for violating this subsection, the offense under subparagraph

26  1. or subparagraph 2. for which the person is charged shall be

27  reclassified as a felony of the third degree, punishable as

28  provided in s. 775.082, s. 775.083, or s. 775.084.

29         (7)  Because of the difficulty of confronting the

30  blight of graffiti, it is the intent of the Legislature that

31  municipalities and counties not be preempted by state law from

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    Florida Senate - 1998                                   SB 444
    34-255-98




  1  establishing ordinances that prohibit the marking of graffiti

  2  or other graffiti-related offenses.  Furthermore, as related

  3  to graffiti, such municipalities and counties are not

  4  preempted by state law from establishing higher penalties than

  5  those provided by state law and mandatory penalties when state

  6  law provides discretionary penalties.  Such higher and

  7  mandatory penalties include fines that do not exceed the

  8  amount specified in ss. 125.69 and 162.21, community service,

  9  restitution, and forfeiture.  Upon a finding that a juvenile

10  has violated a graffiti-related ordinance, a court acting

11  under chapter 39 may not provide a disposition of the case

12  which is less severe than any mandatory penalty prescribed by

13  municipal or county ordinance for such violation.

14         Section 2.  Subsection (7) of section 901.15, Florida

15  Statutes, is amended to read:

16         901.15  When arrest by officer without warrant is

17  lawful.--A law enforcement officer may arrest a person without

18  a warrant when:

19         (7)  There is probable cause to believe that the person

20  has committed:

21         (a)  An act of domestic violence, as defined in s.

22  741.28.;

23         (b)  Child abuse, as defined in s. 827.04(2) and (3).;

24  or

25         (c)  Any battery upon another person, as defined in s.

26  784.03.

27         (d)  An act of criminal mischief or a graffiti-related

28  offense as described in s. 806.13.

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30  With respect to an arrest for an act of domestic violence, the

31  decision to arrest shall not require consent of the victim or

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    Florida Senate - 1998                                   SB 444
    34-255-98




  1  consideration of the relationship of the parties. It is the

  2  public policy of this state to strongly discourage arrest and

  3  charges of both parties for domestic violence on each other

  4  and to encourage training of law enforcement and prosecutors

  5  in this area. A law enforcement officer who acts in good faith

  6  and exercises due care in making an arrest under this

  7  subsection, under s. 741.31(4) or s. 784.047, or pursuant to a

  8  foreign order of protection accorded full faith and credit

  9  pursuant to s. 741.315, is immune from civil liability that

10  otherwise might result by reason of his or her action.

11         Section 3.  This act shall take effect October 1, 1998.

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14                          SENATE SUMMARY

15    Provides that the offense of criminal mischief is a
      third-degree felony rather than a misdemeanor offense if
16    the offender has one or more prior convictions for
      committing criminal mischief. Provides that a county or
17    municipality may enact by ordinance penalties for
      graffiti-related offenses which exceed the penalties
18    provided under state law. Requires that a court impose
      the penalty provided under a county or municipal
19    ordinance for a graffiti-related offense under certain
      circumstances.
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