CODING: Words stricken are deletions; words underlined are additions.
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Senator Gutman moved the following amendment:
SENATE AMENDMENT
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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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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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1 person for the most recent sexually violent offense.
2 (3) "Mental abnormality" means a congenital or
3 acquired condition affecting the emotional or volitional
4 capacity which predisposes the person to commit sexually
5 violent offenses in a degree such that the person constitutes
6 a menace to the health and safety of others.
7 (4) "Overt act" means any act that either causes harm
8 of a sexually violent nature or creates a reasonable
9 apprehension that such harm will occur.
10 (5) "Predatory" means acts directed toward another
11 person for the primary purpose of victimization.
12 (6) "Sexually motivated" means that one of the
13 purposes for which the defendant committed the crime was for
14 the purpose of the defendant's sexual gratification.
15 (7) "Sexually violent offense" means:
16 (a) Murder of any person as part of a sexual battery
17 in violation of s. 782.04(1)(a)2.;
18 (b) Sexual battery of any person in violation of s.
19 794.011;
20 (c) Lewd, lascivious, or indecent assault upon or act
21 upon or in the presence of a person in violation of s. 800.04;
22 (d) Procuring a person for prostitution in violation
23 of s. 796.03 or s. 796.04 and s. 787.01(3)(a);
24 (e) Purchasing or obtaining custody or control, or
25 offering to purchase or obtain custody or control, of a person
26 to engage in sexually explicit conduct as defined by s.
27 847.0145;
28 (f) Any conviction for a felony offense in effect at
29 any time before the effective date of this act that is
30 comparable to a sexually violent offense as defined in
31 paragraphs (a)-(e) or any federal conviction or conviction in
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1 another state for a felony offense that in this state would be
2 a sexually violent offense;
3 (g) An attempt, criminal solicitation, or conspiracy,
4 in violation of s. 777.04, of a sexually violent offense; or
5 (h) Any act that either at the time of sentencing or
6 adjudication for the offense or subsequently during civil
7 commitment proceedings under this act has been determined
8 beyond a reasonable doubt to have been sexually motivated.
9 (8) "Sexually violent predator" means any person who
10 has been convicted of or charged with a sexually violent
11 offense and who suffers from a mental abnormality or
12 personality disorder that makes the person likely to engage in
13 predatory acts of sexual violence if not confined in a secure
14 facility.
15 (9) "State attorney" means the state attorney for the
16 county where the person was charged for a sexually violent
17 offense most recently, or, upon request of this state
18 attorney, the Attorney General.
19 Section 4. Section 916.32, Florida Statutes, is
20 created to read:
21 916.32 Notice to state attorney of release of sexually
22 violent predator; immunity from liability.--
23 (1) When it appears that the person may meet the
24 criteria of a sexually violent predator, as defined in s.
25 916.31, the agency with jurisdiction shall give written notice
26 of that fact to the state attorney of the county 180 days
27 before:
28 (a) The anticipated release from total confinement
29 from the Department of Corrections or the Department of
30 Juvenile Justice of a person who has been convicted of a
31 sexually violent offense;
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1 (b) The anticipated release of a person who has been
2 charged with a sexually violent offense and who has been
3 determined to be incompetent to stand trial under s. 916.12;
4 (c) The anticipated release of a person who has been
5 adjudicated not guilty by reason of insanity of a sexually
6 violent offense and involuntarily committed under s. 916.15;
7 or
8 (d) The anticipated release from a juvenile
9 delinquency commitment program of a person found to have
10 committed a sexually violent offense as a juvenile.
11 (2) The agency with jurisdiction shall provide to the
12 state attorney all relevant information, including, but not
13 limited to:
14 (a) The person's name, identifying factors,
15 anticipated future residence, and offense history.
16 (b) A complete copy of the institutional records
17 compiled by the agency with jurisdiction relating to the
18 person and any out-of-state correctional records, if
19 available.
20 (c) All records relating to the psychological or
21 psychiatric evaluation and treatment of the person.
22 (3) The agency with jurisdiction and the state
23 attorney, and their employees and individuals contracting,
24 appointed, or volunteering to perform services, are immune
25 from liability for any good-faith conduct under this section.
26 Section 5. Section 916.33, Florida Statutes, is
27 created to read:
28 916.33 Petition; contents.--When it appears that a
29 person presently confined may be a sexually violent predator
30 or it appears that a person who is not presently confined but
31 who has previously been convicted of a sexually violent
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1 offense has committed a recent overt act and the state
2 attorney has determined that the person meets the definition
3 of a "sexually violent predator," the state attorney may file
4 a petition alleging that the person is a sexually violent
5 predator and stating sufficient facts to support the
6 allegation.
7 Section 6. Section 916.34, Florida Statutes, is
8 created to read:
9 916.34 Determination of probable cause; respondent
10 taken into custody; evaluation.--Upon the filing of a petition
11 under s. 916.33, the court shall make a nonadversarial
12 determination whether the petition sets forth sufficient
13 grounds to believe probable cause exists that the respondent
14 is a sexually violent predator. If the court finds probable
15 cause to believe that the respondent is a sexually violent
16 predator, the court shall direct that the respondent be taken
17 into custody and transferred to an appropriate secure
18 facility, for an evaluation as to whether the respondent is a
19 sexually violent predator. The evaluation shall be conducted
20 by a person who is professionally qualified to conduct such an
21 examination.
22 Section 7. Section 916.35, Florida Statutes, is
23 created to read:
24 916.35 Trial; counsel and experts; indigent persons;
25 jury.--
26 (1) Within 60 days after the filing of a petition
27 pursuant to s. 916.33, the court shall conduct a trial to
28 determine whether the person is a sexually violent predator.
29 The trial may be continued upon a showing of good cause by
30 either party or by the court on its own motion in the due
31 administration of justice and when the person will not be
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1 substantially prejudiced.
2 (2) At all adversarial proceedings under this act, the
3 person subject to this act shall be entitled to the assistance
4 of counsel and, if the person is indigent, the court shall
5 appoint the public defender or, if a conflict exists, other
6 counsel to assist the person. Whenever any person is subjected
7 to an examination under this act, the person may retain
8 qualified professionals to perform an examination of the
9 person on his or her own behalf. When the person wishes to be
10 examined by a qualified professional of his or her own choice,
11 the examiner shall be permitted to have reasonable access to
12 the person, for the purpose of the examination, and to all
13 relevant medical and psychological records and reports. In the
14 case of a person who is indigent, the court, upon the person's
15 request, shall assist the person in obtaining a qualified
16 professional to perform an examination or participate in the
17 trial on the person's behalf and shall order reasonable
18 compensation for such services as provided in s. 914.06.
19 (3) The person or the state attorney may demand, or
20 the court on its own motion may order, that the trial be held
21 before a jury of six persons. This demand for a trial by jury
22 shall be filed, in writing, or the order entered, at least 4
23 days before the trial. If no demand or order is made, the
24 trial shall be held before the court.
25 Section 8. Section 916.36, Florida Statutes, is
26 created to read:
27 916.36 Determination; commitment procedure;
28 mistrials.--
29 (1) The court or jury shall determine whether, beyond
30 a reasonable doubt, the person is a sexually violent predator.
31 When the determination is made by a jury, the verdict must be
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1 unanimous. Such determination may be appealed.
2 (2) If the court or jury determines that the person is
3 a sexually violent predator, the person shall be committed to
4 the custody of the Department of Children and Family Services
5 for control, care, and treatment until such time as the
6 person's mental abnormality or personality disorder has so
7 changed that the person is safe to be at large. Such control,
8 care, and treatment shall be provided at a facility operated
9 by the Department of Children and Family Services. At all
10 times, sexually violent predators who are committed for
11 control, care, and treatment by the Department of Children and
12 Family Services under this section shall be kept in a secure
13 facility segregated from patients who are not committed under
14 this section.
15 (3) If the court or jury is not satisfied beyond a
16 reasonable doubt that the person is a sexually violent
17 predator, the court shall direct the person's release. If a
18 mistrial is declared, the court shall direct that the person
19 be held at an appropriate secure facility until another trial
20 is conducted. Any subsequent trial following a mistrial must
21 be held within 60 days after the previous trial.
22 (4) If a person charged with a sexually violent
23 offense has been found incompetent to stand trial and is about
24 to be released pursuant to s. 916.13 or s. 916.17 and such
25 person's commitment is sought under subsection (2), the court
26 shall first hear evidence and determine whether the person did
27 commit the act or acts charged. The hearing on this issue must
28 comply with all the procedures specified in this section. In
29 addition, the rules of evidence applicable in criminal cases
30 shall apply, and all constitutional rights available to
31 defendants at a criminal trial, other than the right not to be
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1 tried while incompetent, shall apply. After hearing evidence
2 on this issue, the court shall make specific findings on
3 whether the person did commit the act or acts charged, the
4 extent to which the person's incompetence or developmental
5 disability affected the outcome of the hearing, including its
6 effect on the person's ability to consult with and assist
7 counsel and to testify on his or her own behalf, the extent to
8 which the evidence could be reconstructed without the
9 assistance of the person, and the strength of the
10 prosecution's case. If, after the conclusion of the hearing on
11 this issue, the court finds beyond a reasonable doubt that the
12 person did commit the act or acts charged, the court shall
13 enter a final order, appealable by the person, on that issue
14 and may proceed to consider whether the person should be
15 committed pursuant to this section.
16 Section 9. Section 916.37, Florida Statutes, is
17 created to read:
18 916.37 Annual examination.--Each person committed
19 under s. 916.36 shall have an examination of his or her mental
20 condition made once every year. The committed person may
21 retain a qualified professional to examine such person, and
22 the qualified professional shall have access to all records
23 concerning the person. If the committed person is indigent and
24 so requests, the court may appoint a qualified professional to
25 examine the person. This yearly report shall be provided to
26 the court that committed the person and to the state attorney.
27 The court shall conduct an annual review of the status of the
28 committed person. Nothing contained in this act shall prohibit
29 the person from otherwise petitioning the court for discharge
30 at this hearing.
31 Section 10. Section 916.38, Florida Statutes, is
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1 created to read:
2 916.38 Detention and commitment to conform to
3 constitutional requirements.--The involuntary detention or
4 commitment of persons under this act shall conform to
5 constitutional requirements for care and treatment.
6 Section 11. Section 916.39, Florida Statutes, is
7 created to read:
8 916.39 Petition for release; procedure.--
9 (1) If the Department of Children and Family Services
10 determines that the mental abnormality or personality disorder
11 of a person committed as a sexually violent predator has so
12 changed that the person is not likely to commit predatory acts
13 of sexual violence if released, the department shall authorize
14 the person to petition the court for release. The petition
15 shall be served upon the court and the state attorney. The
16 court, upon receipt of the petition for release, shall order a
17 hearing within 30 days. The state attorney shall represent the
18 state and shall have the right to have the committed person
19 examined by a qualified professional of the state attorney's
20 choice. The hearing shall be before a jury if demanded by
21 either the committed person or the state attorney. The burden
22 of proof shall be upon the state attorney to show beyond a
23 reasonable doubt that the committed person's mental
24 abnormality or personality disorder remains such that the
25 person is not safe to be at large, and that, if discharged,
26 the person is likely to commit predatory acts of sexual
27 violence.
28 (2) A person committed as a sexually violent predator
29 may petition the court for discharge without the approval of
30 the Department of Children and Family Services. The department
31 shall provide the committed person with an annual written
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1 notice of the person's right to petition the court for
2 discharge over the department's objection. The notice shall
3 contain a waiver of this right if the committed person does
4 not choose to petition the court. The department shall forward
5 the notice and signed waiver form or the committed person's
6 petition to the court with the annual report. If the committed
7 person files a petition for discharge over the department's
8 objection, the court shall review the petition to determine
9 whether there are reasonable grounds to support the petition.
10 If the court finds that the petition is based upon frivolous
11 grounds, it shall deny the petition without a hearing. If the
12 court finds that the petition is based upon reasonable
13 grounds, the court shall set a show cause hearing to determine
14 whether facts exist that warrant an adversarial hearing on
15 whether the committed person's condition has so changed that
16 he or she is safe to be discharged. The committed person has
17 the right to have an attorney present to represent the person
18 at the show cause hearing, but the committed person is not
19 entitled to be present at the show cause hearing. If the court
20 at the show cause hearing determines that probable cause
21 exists to believe that the committed person's mental
22 abnormality or personality disorder has so changed that the
23 person is safe to be at large and will not likely engage in
24 acts of sexual violence if discharged, then the court shall
25 set an adversarial hearing. At the adversarial hearing, the
26 committed person shall be entitled to be present and entitled
27 to the benefit of all constitutional protections that the
28 person was entitled to at the initial commitment proceeding.
29 The state attorney shall represent the state and shall have
30 the right to a trial by jury and to have the committed person
31 evaluated by experts chosen by the state. The committed person
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1 shall also have the right to have experts evaluate the person
2 on his or her own behalf, and the court shall appoint a
3 qualified professional if the person is indigent and requests
4 that an expert be appointed. The burden of proof at the
5 hearing shall be upon the state attorney to prove beyond a
6 reasonable doubt that the committed person's mental
7 abnormality or personality disorder remains such that the
8 person is not safe to be at large and, if released, is likely
9 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 Children and Family
14 Services and the court determined upon review of the petition,
15 or following a hearing, that the petition was frivolous or
16 that the committed person's condition had not so changed that
17 the person was safe to be at large, the court shall deny any
18 subsequent petition unless the petition contains facts upon
19 which a court could find the condition of the committed person
20 had so changed that a hearing was warranted. Upon receipt of a
21 first or subsequent petition from the committed person without
22 the department's approval, the court shall review the petition
23 and determine if the petition is based upon frivolous grounds
24 and, if so, shall 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 Children and Family Services is
29 responsible for all costs relating to the evaluation and
30 treatment of a person committed to the department's custody as
31 a sexually violent predator under any provision of this act.
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1 Reimbursement may be obtained by the department for the cost
2 of care and treatment of persons committed to the department's
3 custody as 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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1 committed as a sexually violent predator.--Prior to release of
2 a committed person under this act, the Department of Children
3 and Family Services shall give written notice of the release
4 of a person committed as a sexually violent predator to any
5 victim of the person's activities or crime who is alive and
6 whose address is known to the department or, if the victim is
7 deceased, to the victim's next of kin, if the address of the
8 next of kin is known to the department. Failure to notify is
9 not a reason for postponement of the release. Nothing in this
10 section creates a cause of action against the state or any
11 employee of the state or any agent or volunteer who helps make
12 this notification.
13 Section 14. Section 916.42, Florida Statutes, is
14 created to read:
15 916.42 Severability.--If any provision of this act or
16 the application thereof to any person or circumstance is held
17 invalid, the invalidity shall not affect other provisions or
18 applications of the act which can be given effect without the
19 invalid provision or application, and to this end the
20 provisions of this act are declared severable.
21 Section 15. Section 916.43, Florida Statutes, is
22 created to read:
23 916.43 Confidential or privileged information and
24 records.--In order to protect the public, relevant information
25 and records that are held by a governmental entity or are
26 otherwise confidential or privileged shall be released to the
27 agency with jurisdiction or the state attorney for the purpose
28 of meeting the notice requirement provided in s. 916.32 and
29 determining whether a person is or continues to be a sexually
30 violent predator. This section shall be part of and
31 supplemental to the provisions of ss. 916.30-916.42.
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1 Section 16. The Department of Children and Families
2 shall utilize existing facilities for this program, or may
3 contract with the Department of Corrections for facility and
4 security costs.
5 Section 17. There is hereby appropriated from the
6 General Revenue Fund in a lump sum to the Department of
7 Children and Families the sum of $3,400,000 and 50 full time
8 equivalent positions, and from the Grants and Donations Trust
9 Fund, $1,500,000 to the Department of Corrections for the
10 purpose of carrying out the provisions of this act. From the
11 funds appropriated to the Department of Children and Families,
12 the department may, at the counties request, reimburse
13 counties for the cost of no more than one examination of each
14 person subject to this act, provided that the department's
15 reimbursement for each examination shall not exceed the cost
16 to the department for examinations that it conducts of such
17 persons.
18 Section 18. This act shall take effect January 1 after
19 the year in which enacted.
20
21
22 ================ T I T L E A M E N D M E N T ===============
23 And the title is amended as follows:
24 Delete everything before the enacting clause
25
26 and insert:
27 A bill to be entitled
28 An act relating to sexual predators; creating
29 the "Jimmy Ryce Involuntary Civil Commitment
30 for Sexually Violent Predators' Treatment and
31 Care Act"; creating s. 916.30, F.S.; providing
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Amendment No.
1 findings and intent; creating s. 916.31, F.S.;
2 providing definitions; creating s. 916.32,
3 F.S.; requiring certain notice to the state
4 attorney of anticipated release of specified
5 persons who may meet the criteria for a
6 sexually violent predator; requiring provision
7 of certain records and information by the
8 agency with jurisdiction to the state attorney;
9 providing certain immunity from liability of
10 the agency with jurisdiction, the state
11 attorney, and their employees and service
12 providers; creating s. 916.33, F.S.; providing
13 for petition to have such person declared a
14 sexually violent predator; creating s. 916.34,
15 F.S.; providing for determination of probable
16 cause and taking respondent into custody;
17 providing for transfer of the respondent to a
18 secure facility for evaluation under specified
19 circumstances when the court finds probable
20 cause to believe that the respondent is a
21 sexually violent predator; creating s. 916.35,
22 F.S.; providing for trial on the issue of
23 whether a person is a sexually violent
24 predator; creating s. 916.36, F.S.; providing
25 for commitment of a person determined to be a
26 sexually violent predator; creating s. 916.37,
27 F.S.; requiring annual examination of persons
28 committed; creating s. 916.38, F.S.; requiring
29 detention and commitment to conform to
30 constitutional requirements; creating s.
31 916.39, F.S.; providing for petitions for
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1 release; creating s. 916.40, F.S.; providing
2 that the Department of Children and Family
3 Services is responsible for specified
4 evaluation and treatment costs; providing for
5 reimbursement; providing for court orders for
6 certain disclosures to the department by the
7 committed person of income and assets;
8 providing for imposition and assessment of
9 certain financial liabilities for payment of
10 daily subsistence and treatment costs based on
11 specified criteria; providing for notice and
12 contest of the assessment; providing for
13 survival of the order directing payment against
14 the person's estate; creating s. 916.41, F.S.;
15 providing for notice to victims; creating s.
16 916.42, F.S.; providing severability; creating
17 s. 916.43, F.S.; providing for access to
18 certain records; providing an effective date.
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