Senate Bill 0646c1

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    Florida Senate - 1998                            CS for SB 646

    By the Committee on Criminal Justice and Senators Gutman,
    Horne, Klein and Diaz-Balart




    307-1151-98

  1                      A bill to be entitled

  2         An act relating to sexually violent predators;

  3         amending s. 916.10, F.S.; providing a short

  4         title; creating s. 916.30, F.S.; providing a

  5         short title; creating s. 916.31, F.S.;

  6         providing legislative findings and intent;

  7         creating s. 916.32, F.S.; defining terms;

  8         creating s. 916.33, F.S.; requiring notice of

  9         release from custody of a person alleged to be

10         a sexually violent predator; providing for

11         evaluation of such person; creating s. 916.34,

12         F.S.; providing for petition to have such

13         person declared a sexually violent predator;

14         creating s. 916.35, F.S.; providing for

15         determination of probable cause, for hearings,

16         and for taking such person into custody;

17         creating s. 916.36, F.S.; providing for trial

18         on the issue of whether such person is a

19         sexually violent predator; creating s. 916.37,

20         F.S.; providing for commitment of a person

21         determined to be a sexually violent predator;

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

23         examinations of persons committed; creating s.

24         916.39, F.S.; providing for petitions for

25         release; creating s. 916.40, F.S.; authorizing

26         petition for release; creating s. 916.41, F.S.;

27         providing for access to certain records;

28         creating s. 916.42, F.S.; requiring detention

29         and commitment to conform to constitutional

30         requirements; creating s. 916.43, F.S.;

31         providing immunity from civil liability;

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  1         creating s. 916.44; providing severability;

  2         creating s. 916.45, F.S.; providing for

  3         retrospective and prospective application;

  4         creating s. 916.46, F.S.; providing for notice

  5         to victims; creating s. 916.47, F.S.;

  6         penalizing escape; creating s. 916.48, F.S.;

  7         authorizing subsistence fees and costs;

  8         creating s. 916.49, F.S.; providing that the

  9         Department of Children and Family Services is

10         responsible for costs; providing an effective

11         date.

12

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

14

15         Section 1.  The Division of Statutory Revision of the

16  Joint Legislative Management Committee shall change the name

17  of chapter 916, Florida Statutes, from "Mentally Deficient and

18  Mentally Ill Defendants" to "Mentally Deficient and Mentally

19  Ill Defendants; Civil Commitment of Sexually Violent

20  Predators."

21         Section 2.  Section 916.10, Florida Statutes, is

22  amended to read:

23         916.10  Short title.--Sections 916.10-916.20 This

24  chapter may be cited as the "Forensic Client Services Act."

25         Section 3.  Section 916.30, Florida Statutes, is

26  created to read:

27         916.30  Sections 916.30-916.49 may be cited as the "The

28  Jimmy Ryce Act of 1998."

29         Section 4.  Section 916.31, Florida Statutes, is

30  created to read:

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  1         916.31  Legislative findings and intent.--The

  2  Legislature finds that a mentally abnormal and extremely

  3  dangerous group of sexually violent predators exists and

  4  requires involuntary civil commitment for long-term control,

  5  care, and treatment. The Legislature further finds that the

  6  likelihood that sexually violent predators will engage in

  7  repeat acts of sexual violence, if not treated for their

  8  mental conditions, is significant. Because the existing civil

  9  commitment process under the Baker Act is inadequate to

10  address the special needs of sexually violent predators and

11  the risks that they present to society, the Legislature

12  determines that a separate involuntary civil commitment

13  process for the long-term control, care, and treatment of

14  sexually violent predators is necessary. The Legislature also

15  determines that, because of the nature of the mental

16  conditions from which sexually violent predators suffer and

17  the dangers they present, it is necessary to house

18  involuntarily committed sexually violent predators in an

19  environment separate from persons involuntarily committed

20  under traditional civil commitment statutes.

21         Section 5.  Section 916.32, Florida Statutes, is

22  created to read:

23         916.32  Definitions.--As used in ss. 916.30-916.47, the

24  term:

25         (1)  "Agency with jurisdiction" means the agency that

26  releases, upon lawful order or authority, a person serving a

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

28  person adjudicated delinquent and committed to the custody of

29  the Department of Juvenile Justice or a person who was

30  involuntarily committed to the custody of the Department of

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  1  Children and Family Services upon an adjudication of not

  2  guilty by reason of insanity.

  3         (2)  "Convicted of a sexually violent offense" means a

  4  person who has been:

  5         (a)  Adjudicated guilty of a sexually violent offense

  6  after a trial, guilty plea, or plea of nolo contendere;

  7         (b)  Adjudicated not guilty by reason of insanity of a

  8  sexually violent offense; or

  9         (c)  Adjudicated delinquent of a sexually violent

10  offense after a trial, guilty plea, or plea of nolo

11  contendere.

12         (3)  "Department" means the Department of Children and

13  Family Services.

14         (4)  "Likely to engage in acts of sexual violence"

15  means the person's propensity to commit acts of sexual

16  violence is of such a degree as to pose a menace to the health

17  and safety of others.

18         (5)  "Mental abnormality" means a mental condition

19  affecting a person's emotional or volitional capacity which

20  predisposes the person to commit sexually violent offenses.

21         (6)  "Person" means an individual 18 years of age or

22  older who is a potential or actual subject of proceedings

23  under this act.

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

25  purposes for which the defendant committed the crime was for

26  sexual gratification.

27         (8)  "Sexually violent offense" means:

28         (a)  Murder of a human being while engaged in sexual

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

30         (b)  Kidnapping of a child under the age of 16 and, in

31  the course of that offense, committing:

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  1         1.  Sexual battery; or

  2         2.  A lewd, lascivious, or indecent assault or act upon

  3  or in the presence of the child;

  4         (c)  Committing the offense of false imprisonment upon

  5  a child under the age of 16 and, in the course of that

  6  offense, committing:

  7         1.  Sexual battery; or

  8         2.  A lewd, lascivious or indecent assault or act upon

  9  or in the presence of the child;

10         (d)  Sexual battery in violation of s. 794.011;

11         (e)  Lewd, lascivious, or indecent assault or act upon

12  or in presence of the child in violation of s. 800.04;

13         (f)  An attempt, criminal solicitation, or conspiracy,

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

15         (g)  Any conviction for a felony offense in effect at

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

17  comparable to a sexually violent offense under paragraphs

18  (a)-(f) or any federal conviction or conviction in another

19  state for a felony offense that in this state would be a

20  sexually violent offense; or

21         (h)  Any criminal act that, either at the time of

22  sentencing for the offense or subsequently during civil

23  commitment proceedings under this act, has been determined

24  beyond a reasonable doubt to have been sexually motivated.

25         (9)  "Sexually violent predator" means any person who:

26         (a)  Has been convicted of a sexually violent offense;

27  and

28         (b)  Suffers from a mental abnormality or personality

29  disorder that makes the person likely to engage in acts of

30  sexual violence if not confined in a secure facility for

31  long-term control, care, and treatment.

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  1         Section 6.  Section 916.33, Florida Statutes, is

  2  created to read:

  3         916.33  Notice to state attorney and multidisciplinary

  4  team of release of sexually violent predator; establishing

  5  multidisciplinary team.--

  6         (1)  The agency having jurisdiction over a person who

  7  has been convicted of a sexually violent offense shall give

  8  written notice, to the state attorney of the circuit where

  9  that person was last convicted of a sexually violent offense,

10  180 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 having jurisdiction shall provide the

21  state attorney with the following information:

22         (a)  The person's name, identifying characteristics,

23  anticipated future residence, and offense history; and

24         (b)  Documentation of institutional adjustment and any

25  treatment received.

26

27  The provisions of this section are not jurisdictional, and

28  failure to comply with them in no way prevents the state

29  attorney from proceeding against a person otherwise subject to

30  the provisions of this act.

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  1         (3)  The secretary of the department shall establish a

  2  multidisciplinary team, which may include individuals from

  3  other state agencies, to review available records of each

  4  person referred to such team under subsection (1). The team,

  5  within 30 days after receiving notice, shall assess whether

  6  the person meets the definition of a sexually violent

  7  predator. The team shall provide the state attorney with its

  8  written assessment within 60 days after it has received

  9  notice.

10         Section 7.  Section 916.34, Florida Statutes, is

11  created to read:

12         916.34  Petition; time; contents.--When a

13  multidisciplinary team determines that a person meets this

14  act's definition of a sexually violent predator, the state

15  attorney in the judicial circuit where the person committed

16  the sexually violent offense may file a petition with the

17  circuit court alleging that the person is a sexually violent

18  predator and stating facts sufficient to support such

19  allegation.

20         Section 8.  Section 916.35, Florida Statutes, is

21  created to read:

22         916.35  Determination of probable cause; hearing;

23  evaluation; respondent taken into custody; bail.--

24         (1)  When the state attorney files a petition seeking

25  to have a person declared a sexually violent predator, the

26  judge shall determine whether probable cause exists to believe

27  that the person named in the petition is a sexually violent

28  predator. If the judge determines that there is probable cause

29  to believe that the person is a sexually violent predator, the

30  judge shall direct that the person be taken into custody and

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  1  held in a county jail or a detention facility in the county

  2  where the petition was filed.

  3         (2)  Within 72 hours after a person is taken into

  4  custody pursuant to subsection (1), the person shall be

  5  provided with notice of, and an opportunity to appear in

  6  person at, an adversary hearing to contest the judge's

  7  probably cause determination. At this hearing, the judge

  8  shall:

  9         (a)  Receive evidence and hear argument from the person

10  and the state attorney; and

11         (b)  Determine whether probably cause exists to believe

12  that the person is a sexually violent predator.

13         (3)  At the probable cause hearing, the person has the

14  right to:

15         (a)  Be represented by counsel;

16         (b)  Present evidence;

17         (c)  Cross-examine any witnesses who testify against

18  the person; and

19         (d)  View and copy all petitions and reports in the

20  court file.

21         (4)  If the court again concludes that there is

22  probable cause to believe that the person is a sexually

23  violent predator, the court shall direct that the person be

24  held in a county jail or a detention facility in the county

25  where the petition was filed for an evaluation by a mental

26  health professional.

27         (5)  After a court finds probable cause to believe that

28  the person is a sexually violent predator, the person must be

29  held in custody in a secure facility without opportunity for

30  pretrial release.

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  1         Section 9.  Section 916.36, Florida Statutes, is

  2  created to read:

  3         916.36  Trial; counsel and experts; indigent persons;

  4  jury.--

  5         (1)  Within 60 days after the completion of the

  6  probable cause hearing, the court shall conduct a trial to

  7  determine whether the person is a sexually violent predator.

  8         (2)  The trial may be continued upon the request of

  9  either party and a showing of good cause, or by the court on

10  its own motion in the interests of justice, when the person

11  will not be substantially prejudiced.

12         (3)  The person is entitled to the assistance of

13  counsel and, if the person is indigent, the court shall

14  appoint counsel to assist the person.

15         (4)  If the person is subjected to a mental health

16  examination under this chapter, the person also may retain

17  experts or mental health professionals to perform an

18  examination. If the person wishes to be examined by a

19  professional of the person's own choice, the examiner must be

20  provided reasonable access to the person, as well as to all

21  relevant medical and mental health records and reports. In the

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

23  request, shall determine whether such an examination is

24  necessary. If the court determines that an examination is

25  necessary, the court shall appoint a mental health

26  professional and determine the reasonable compensation for the

27  professional's services.

28         (5)  The person or the state attorney has the right to

29  demand that the trial be before a jury. A demand for a jury

30  trial must be filed, in writing, at least 5 days before the

31  trial. If no demand is made, the trial shall be to the court.

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  1         Section 10.  Section 916.37, Florida Statutes, is

  2  created to read:

  3         916.37  Determination; commitment procedure; mistrials;

  4  housing.--

  5         (1)  The court or jury shall determine by clear and

  6  convincing evidence whether the person is a sexually violent

  7  predator. If the determination is made by a jury, the decision

  8  must be unanimous. If a majority of the jury finds that the

  9  person is a sexually violent predator, but the decision is not

10  unanimous, the state attorney may refile the petition and

11  proceed according to the provisions of this act. Any retrial

12  must occur within 90 days after the previous trial, unless the

13  subsequent proceeding is continued in accordance with s.

14  916.36(2). The determination that a person is a sexually

15  violent predator may be appealed.

16         (2)  If the judge, in a trial to the court, or at least

17  half of the jury finds that the person is not a sexually

18  violent predator, the court shall direct that the person be

19  released.

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

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

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

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

24  and the person has been ordered released pursuant to this act.

25         (4)  Persons committed for control, care, and treatment

26  under this act shall be kept in a secure facility and shall be

27  segregated from all other patients under the supervision of

28  the department.

29         (5)  Persons committed for control, care, and treatment

30  under this act may be housed in a correctional mental health

31  facility operated by the Department of Corrections or a

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  1  private correctional contractor, so long as they are kept

  2  separate from persons in correctional custody, to the greatest

  3  extent practicable.

  4         Section 11.  Section 916.38, Florida Statutes, is

  5  created to read:

  6         916.38  Examinations.--

  7         (1)  A person committed under this act shall have an

  8  examination of the person's mental condition once every 3

  9  years or more frequently at the court's discretion. The person

10  may retain or, if the person is indigent and so requests, the

11  court may appoint, a qualified professional to examine the

12  person. Such a professional shall have access to all records

13  concerning the person. The results of the examination shall be

14  provided to the court that committed the person under this

15  act. Upon receipt of the report, the court shall conduct a

16  review of the person's status.

17         (2)  The department shall provide the person with

18  annual written notice of the person's right to petition the

19  court for release over the objection of the director of the

20  facility where the person is housed. The notice must contain a

21  waiver of rights. The director of the facility shall forward

22  the notice and waiver form to the court.

23         (3)  The court shall hold a limited hearing to

24  determine whether there is probable cause to believe that the

25  person's condition has so changed that it is safe for the

26  person to be at large and that the person will not engage in

27  acts of sexual violence if discharged. The person has the

28  right to be represented by counsel at the probable cause

29  hearing, but the person is not entitled to be present. If the

30  court determines that there is probable cause to believe it is

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  1  safe to release the person, the court shall set a trial before

  2  the court on the issue.

  3         (4)  At the trial before the court, the person is

  4  entitled to be present and is entitled to the benefit of all

  5  constitutional protections afforded the person at the initial

  6  trial, except for the right to a jury. The state attorney

  7  shall represent the state and has the right to have the person

  8  examined by professionals chosen by the state. At the hearing

  9  the state bears the burden of proving, by clear and convincing

10  evidence, that the person's mental condition remains such that

11  it is not safe for the person to be at large and that, if

12  released, the person is likely to engage in acts of sexual

13  violence.

14         Section 12.  Section 916.39, Florida Statutes, is

15  created to read:

16         916.39  Authorized petition for release; procedure.--

17         (1)  If the secretary of the department or the

18  secretary's designee at any time determines that the person's

19  mental condition has so changed that the person is not likely

20  to commit acts of sexual violence if conditionally discharged,

21  the secretary or the secretary's designee shall authorize the

22  person to petition the court for release. The petition shall

23  be served upon the court and the state attorney. The court,

24  upon receipt of such a petition, shall order a trial before

25  the court within 30 days, unless continued for good cause.

26         (2)  The state attorney shall represent the state, and

27  has the right to have the person examined by professionals of

28  the state attorney's choice. The state bears the burden of

29  proving, by clear and convincing evidence, that the person's

30  mental condition remains such that it is not safe for the

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  1  person to be at large and that, if released, the person is

  2  likely to engage in acts of sexual violence.

  3         Section 13.  Section 916.40, Florida Statutes, is

  4  created to read:

  5         916.40  Petition for release.--Nothing in this act

  6  shall prohibit a person from filing a petition for discharge

  7  at any time. However, if the person has previously filed such

  8  a petition without the approval of the secretary of the

  9  department or the secretary's designee and the court

10  determined that the petition was without merit, a subsequent

11  petition shall be denied unless the petition contains facts

12  upon which a court could find that the person's condition has

13  so changed that a probable cause hearing is warranted.

14         Section 14.  Section 916.41, Florida Statutes, is

15  created to read:

16         916.41  Release of records to state attorney.--

17         (1)  In order to protect the public, relevant

18  information and records that are otherwise confidential or

19  privileged shall be released to the agency having jurisdiction

20  or the state attorney for the purpose of meeting the notice

21  requirements of this act and determining whether a person is

22  or continues to be a sexually violent predator.

23         (2)  Psychological or psychiatric reports, drug and

24  alcohol reports, treatment records, medical records, or victim

25  impact statements that have been submitted to the court or

26  admitted into evidence under this act shall be part of the

27  record, but shall be sealed and may be opened only pursuant to

28  a court order.

29         Section 15.  Section 916.42, Florida Statutes, is

30  created to read:

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  1         916.42  Constitutional requirements.--The long-term

  2  control, care, and treatment of a person committed under this

  3  act must conform to constitutional requirements.

  4         Section 16.  Section 916.43, Florida Statutes, is

  5  created to read:

  6         916.43  Immunity from civil liability.--The agency with

  7  jurisdiction and its officers and employees; the department

  8  and its officers and employees; the state attorney and the

  9  state attorney's employees; and those involved in the

10  evaluation, care, and treatment of sexually violent persons

11  committed under this act, are immune from any civil liability

12  for good-faith conduct under the act.

13         Section 17.  Section 916.44, Florida Statutes, is

14  created to read:

15         916.44  Severability.--If any section, subsection, or

16  provision of this act is held to be unconstitutional or

17  invalid by a court of competent jurisdiction, the remaining

18  portions of the act shall be unaffected because the

19  Legislature declares that the provisions of this act are

20  severable from each other.

21         Section 18.  Section 916.45, Florida Statutes, is

22  created to read:

23         916.45  Applicability of act.--This act applies to all

24  persons currently in custody who have been convicted of a

25  sexually violent offense, as that term is defined in s.

26  916.32(8), as well as to all persons convicted of a sexually

27  violent offense in the future.

28         Section 19.  Section 916.46, Florida Statutes, is

29  created to read:

30         916.46  Notice to victims of release of persons

31  committed as sexually violent predators.--As soon as is

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  1  practicable, the department shall give written notice of the

  2  release of a person committed as a sexually violent predator

  3  to any victim of the committed person who is alive and whose

  4  address is known to the department or, if the victim is

  5  deceased, to the victim's family, if the family's address is

  6  known to the department. Failure to notify is not a reason for

  7  postponement of release. Nothing in this section creates a

  8  cause of action against the state or an employee of the state

  9  acting within the scope of the employee's employment as a

10  result of the failure to notify pursuant to this act.

11         Section 20.  Section 916.47, Florida Statutes, is

12  created to read:

13         916.47  Escape while in lawful custody.--A person who

14  is held in lawful custody pursuant to a judicial finding of

15  probably cause under s. 916.35 or pursuant to a commitment as

16  a sexually violent predator under s. 916.36 and who escapes or

17  attempts to escape while in such custody commits a felony of

18  the second degree, punishable as provided in s. 775.082, s.

19  775.083, or s. 775.084.

20         Section 21.  Section 916.48, Florida Statutes, is

21  created to read:

22         916.48  Subsistence fees and costs of treatment.--

23         (1)  In recognition of the fact that persons committed

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

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

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

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

28  daily subsistence cost and costs of treatment of persons

29  committed under this act is a burden on the taxpayers of the

30  state, each person so committed shall:

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

  2  disclose all revenue or assets to the department.

  3         (b)  Pay from such income and assets, except where such

  4  income is exempt by state or federal law, all or a fair

  5  portion of the person's daily subsistence and treatment costs,

  6  based upon the person's ability to pay, the liability or

  7  potential liability of the person to the victim or the

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

  9  her dependents.

10         (2)(a)  Any person who is directed to pay all or a fair

11  portion of daily subsistence and treatment costs is entitled

12  to reasonable advance notice of the assessment and shall be

13  afforded an opportunity to present reasons for opposition to

14  the assessment.

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

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

17  against the estate of the person.

18         Section 22.  Section 916.49, Florida Statutes, is

19  created to read:

20         916.49  Department of Children and Family Services

21  responsible for costs.--The Department of Children and Family

22  Services is responsible for all costs relating to the

23  evaluation and treatment of persons committed to the

24  department's custody as sexually violent predators.

25         Section 23.  This act shall take effect July 1, 1998.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 646

  3

  4  -    Renames Chapter 916.

  5  -    Provides for the citing of s. 916.10-916.20, F.S., by the
         short title, "Forensic Client Services Act."
  6
    -    Deletes references to the Attorney General as the state's
  7       counsel in proceedings for the civil commitment of
         sexually violent predators, and substitutes references to
  8       the state attorney.

  9  -    Adds further definitions.

10  -    Deletes from the definition of "sexually violent offense"
         sexual battery against multiple perpetrators and
11       prostitution offenses, and requires a conviction or
         adjudication of delinquency.
12
    -    Requires that the person subject to civil commitment
13       proceedings be 18 years of age or older.

14  -    Requires that the state prove, by clear and convincing
         evidence, that the person is a sexually violent predator.
15
    -    Provides for retrial where the majority of the jury finds
16       a person to be a sexually violent predator, and
         prescribes that the retrial shall occur within 90 days of
17       the previous trial, unless the trial is continued.

18  -    Authorizes sexually violent predators to be confined in a
         mental health facility operated by the Department of
19       Corrections or a private contractor.

20  -    Requires that, every three years there must be a mental
         health examination of a person confined as a sexually
21       violent predator, as well as a court hearing of the
         person's status.
22
    -    Requires that, the Department of Children and Family
23       Services provide written notice to a sexually violent
         predator of the person's right to petition for release
24       over the objection of the director of the facility.

25  -    Authorizes the Secretary of the Department of Children
         and Family Services to petition the court for release of
26       a sexually violent predator when it is determined the
         person is not likely to commit acts of sexual violence if
27       discharged. A trial shall be ordered with 30 days of the
         court's receipt of the petition. The state must prove, by
28       clear and convincing evidence, that the person, if
         discharged, is a threat to the public and likely to
29       engage in acts of sexual violence.

30  -    Provides that a sexually violent predator may petition
         for discharge at any time, but restricts subsequent
31       petitions to new facts.

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






    Florida Senate - 1998                            CS for SB 646
    307-1151-98




  1  -    Provides that custody, care, and treatment of sexually
         violent predators shall meet constitutional requirements.
  2
    -    Provides immunity from civil liability for good faith
  3       conduct of the state attorney and the state attorney's
         employees.
  4
    -    Provides for severability of provisions declared
  5       unconstitutional.

  6  -    Provides that the act applies to any person who meets the
         definition of a sexually violent predator, regardless of
  7       the date the sexually violent offense was committed.

  8  -    Provides that victims shall be notified of the release of
         a sexually violent predator from civil commitment, and
  9       that failure to meet the notification requirements does
         not create a cause of action against the state or
10       employees acting within the scope of their employment.

11  -    Authorizes the court committing a person to civil
         confinement as a sexually violent predator to require
12       that the person pay some or all of the daily subsistence
         costs and treatment costs, subject to certain exceptions.
13
    -    Provides that the Department of Children and Family
14       Services is responsible for all costs relating to the
         evaluation and treatment of persons committed to the
15       department's custody as sexually violent predators.

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

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