House Bill 0121e3

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                                        CS/HB 121, Third Engrossed



  1                      A bill to be entitled

  2         An act relating to sentencing; creating the

  3         "Three-Strike Violent Felony Offender Act";

  4         amending s. 775.082, F.S.; redefining the term

  5         "prison releasee reoffender"; revising

  6         legislative intent; amending s. 775.084, F.S.,

  7         relating to sentencing of habitual felony

  8         offenders, habitual violent felony offenders,

  9         and violent career criminals; redefining the

10         terms "habitual felony offender," "habitual

11         violent felony offender" and "violent career

12         criminal"; revising the alternative time

13         periods within which the habitual felony

14         offender, habitual violent felony offender, or

15         violent career criminal could have committed

16         the felony to be sentenced; providing that the

17         felony to be sentenced could have been

18         committed either while the defendant was

19         serving a prison sentence or other sentence or

20         supervision, or within 5 years of the

21         defendant's release from a prison sentence,

22         probation, community control, or supervision or

23         other sentence, under specified circumstances

24         when the sentence was imposed as a result of a

25         prior conviction for a felony, enumerated

26         felony, or other qualified offense; removing

27         certain references to "commitment" and

28         otherwise conforming terminology; providing

29         that the placing of a person on probation

30         without an adjudication of guilt shall be

31         treated as a prior conviction regardless of


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                                        CS/HB 121, Third Engrossed



  1         when the subsequent offense was committed;

  2         defining "three-time violent felony offender";

  3         providing a category of enumerated felony

  4         offenses within the definition; requiring the

  5         court to sentence a defendant as a three-time

  6         violent felony offender and impose certain

  7         mandatory minimum terms of imprisonment under

  8         specified circumstances when the defendant is

  9         to be sentenced for committing or attempting to

10         commit, any of the enumerated felony offenses

11         and the defendant has previously been convicted

12         of committing or attempting to commit, any two

13         of the enumerated felony offenses; providing

14         penalties; providing procedures and criteria

15         for court determination if the defendant is a

16         three-time violent felony offender; providing

17         for sentencing as a three-time violent felony

18         offender; providing mandatory term of

19         imprisonment for life when the three-time

20         violent felony offense for which the defendant

21         is to be sentenced is a felony punishable by

22         life; providing mandatory prison term of 30

23         years when the three-time violent felony

24         offense is a first degree felony; providing

25         mandatory prison term of 15 years when the

26         three-time violent felony offense is a second

27         degree felony; providing mandatory prison term

28         of 5 years when the three-time violent felony

29         offense is a third degree felony; providing for

30         construction; providing for ineligibility of a

31         three-time violent felony offender for parole,


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                                        CS/HB 121, Third Engrossed



  1         control release, or early release; amending ss.

  2         784.07 and 784.08, F.S.; providing minimum

  3         terms of imprisonment for persons convicted of

  4         aggravated assault or aggravated battery of a

  5         law enforcement officer or a person 65 years of

  6         age or older; amending s. 790.235, F.S.,

  7         relating to prohibitions against, and penalties

  8         for, unlawful possession or other unlawful acts

  9         involving firearm, electric weapon or device,

10         or concealed weapon by a violent career

11         criminal; conforming cross references to

12         changes made by the act; creating s. 794.0115,

13         F.S.; defining "repeat sexual batterer";

14         providing within the definition a category of

15         enumerated felony offenses in violation of s.

16         794.011, F.S., relating to sexual battery;

17         requiring the court to sentence a defendant as

18         a repeat sexual batterer and impose a 10-year

19         mandatory minimum term of imprisonment under

20         specified circumstances when the defendant is

21         to be sentenced for committing or attempting to

22         commit, any of the enumerated felony violations

23         of s. 794.011, F.S., and the defendant has

24         previously been convicted of committing or

25         attempting to commit, any one of certain

26         enumerated felony offenses involving sexual

27         battery; providing penalties; providing

28         procedures and criteria for court determination

29         if the defendant is a repeat sexual batterer;

30         providing for sentencing as a repeat sexual

31         batterer; providing for construction; amending


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                                        CS/HB 121, Third Engrossed



  1         s. 794.011, F.S., to conform references to

  2         changes made by the act; amending s. 893.135,

  3         F.S.; defining the term "cannabis plant";

  4         providing mandatory minimum prison terms and

  5         mandatory fine amounts for trafficking in

  6         cannabis, cocaine, illegal drugs,

  7         phencyclidine, methaqualone, amphetamine, or

  8         flunitrazepam; providing for sentencing

  9         pursuant to the Criminal Punishment Code of

10         offenders convicted of trafficking in specified

11         quantities of cannabis; removing weight caps

12         for various trafficking offenses; providing

13         that an offender who is sentenced to a

14         mandatory minimum term upon conviction of

15         trafficking in specified quantities of

16         cannabis, cocaine, illegal drugs,

17         phencyclidine, methaqualone, amphetamine, or

18         flunitrazepam is not eligible for certain

19         discretionary early-release mechanisms prior to

20         serving the mandatory minimum sentence;

21         providing exceptions; providing penalties;

22         reenacting s. 397.451(7), F.S., relating to the

23         prohibition against dissemination of state

24         funds to service providers convicted of certain

25         offenses, s. 782.04(4)(a), F.S., relating to

26         murder, s. 893.1351(1), F.S., relating to lease

27         or rent for the purpose of trafficking in a

28         controlled substance, s. 903.133, F.S.,

29         relating to the prohibition against bail on

30         appeal for certain felony convictions, s.

31         907.041(4)(b), F.S., relating to pretrial


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                                        CS/HB 121, Third Engrossed



  1         detention and release, s. 921.0022(3)(g), (h),

  2         and (i), F.S., relating to the Criminal

  3         Punishment Code offense severity ranking chart,

  4         s. 921.0024(1)(b), F.S., relating to the

  5         Criminal Punishment Code worksheet computations

  6         and scoresheets, s. 921.142(2), F.S., relating

  7         to sentencing for capital drug trafficking

  8         felonies, s. 943.0585, F.S., relating to

  9         court-ordered expunction of criminal history

10         records, and s. 943.059, F.S., relating to

11         court-ordered sealing of criminal history

12         records, to incorporate said amendment in

13         references; amending s. 943.0535, F.S.,

14         relating to aliens and criminal records;

15         requiring clerk of the courts to furnish

16         criminal records to United States immigration

17         officers; requiring state attorney to assist

18         clerk of the courts in determining which

19         defendants are aliens; requiring the Governor

20         to place public service announcements

21         explaining the provisions of this act; amending

22         s. 810, F.S.; redefining the term "conveyance"

23         for purposes of ch. 810, F.S., to include a

24         railroad vehicle; providing an effective date.

25

26         WHEREAS, in 1996, Florida had the highest violent crime

27  rate of any state in the nation, exceeding the national

28  average by 66 percent, and

29         WHEREAS, although this state possessed the highest

30  state violent crime rate in 1996 in the nation, the

31  incarceration rate in this state in 1996 was less than the


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                                        CS/HB 121, Third Engrossed



  1  incarceration rate in at least eleven other states, all of

  2  which had a lower violent crime rate than the rate in this

  3  state, and

  4         WHEREAS, since 1988, criminals in this state have

  5  committed at least 1.6 million violent crimes against

  6  Floridians and visitors to this state, and

  7         WHEREAS, the per capita violent crime rate has

  8  increased 86 percent in this state in the last 25 years, and

  9         WHEREAS, in fiscal year 1996-1997, over 16,000 violent

10  felons in this state were sentenced to probation, community

11  control, and other punishments that did not incarcerate the

12  violent felon for the maximum prison term authorized by law,

13  and

14         WHEREAS, during that same fiscal year, less than 9,900

15  violent felons were sentenced to prison, while during that

16  same period criminals committed approximately 150,000 violent

17  felonies, and

18         WHEREAS, in this state, as of June 30, 1997, more

19  violent felons were on probation, community control, control

20  release, or parole, than were in state prison, and

21         WHEREAS, in 1997, only 15.6 percent of all persons

22  convicted of a felony were sentenced to state prison, the

23  second lowest rate of incarcerated felons since 1984, and

24         WHEREAS, the rate of incarcerated felons has declined

25  seven out of the last eight years, and

26         WHEREAS, since fiscal year 1993-1994, the per capita

27  prison population rate in this state has increased 10 percent

28  and the proportion of violent offenders incarcerated in state

29  prison has increased 5 percent, and

30         WHEREAS, since 1995, the Florida Legislature has

31  enacted stronger criminal punishment laws, including requiring


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                                        CS/HB 121, Third Engrossed



  1  all prisoners to serve 85 percent of their court-imposed

  2  sentences, and

  3         WHEREAS, since 1994, the violent crime rate in this

  4  state has decreased 9.8 percent, and

  5         WHEREAS, the Legislature previously has found that a

  6  substantial and disproportionate number of serious crimes are

  7  committed in this state by a relatively small number of repeat

  8  and violent felony offenders, that priority should be given to

  9  the incarceration of career criminals for extended prison

10  terms, and that, in the case of violent career criminals, such

11  extended terms must include substantial minimum terms of

12  imprisonment, and

13         WHEREAS, as of June 30, 1997, only 71 designated

14  "violent career criminals" have been sentenced to mandatory

15  prison terms, out of a prison population of over 65,000 state

16  inmates; and this number does not approach the true number of

17  repeat violent felony offenders in this state, and

18         WHEREAS, to be sentenced as a "violent career

19  criminal," a felon must be convicted of at least four violent,

20  forcible, or serious felonies and must have served a prison

21  term, and

22         WHEREAS, current law does not require the courts to

23  impose mandatory prison terms on violent felons who commit

24  three violent felonies, and these three-time violent felony

25  offenders should be sentenced to mandatory maximum prison

26  terms to protect citizens of this state and visitors, and

27         WHEREAS, studies such as the recent report issued by

28  the National Center for Policy Analysis, "Does punishment

29  deter?", indicate that recent crime rates have declined

30  because of the increasing number of incarcerated felons, and

31


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                                        CS/HB 121, Third Engrossed



  1         WHEREAS, since California enacted "three strike"

  2  legislation in 1994 that requires courts to impose mandatory

  3  prison terms on repeat felony offenders convicted of three

  4  serious crimes, that state has experienced significant

  5  reductions in violent crime, and overall crime rates, and

  6         WHEREAS, a study by the RAND Corporation estimates that

  7  the enforcement of this California legislation will reduce

  8  serious crime in California committed by adults between 22 and

  9  34 percent, and

10         WHEREAS, the enactment and enforcement of legislation

11  in Florida that requires courts to impose mandatory prison

12  terms on three-time violent felony offenders will improve

13  public safety by incapacitating repeat offenders who are most

14  likely to murder, rape, rob, or assault innocent victims in

15  our communities, and

16         WHEREAS, imposing mandatory prison terms on three-time

17  violent felony offenders will prevent such offenders from

18  committing more crimes in our communities, and likely

19  accelerate recent declines in the violent crime rate in this

20  state, NOW, THEREFORE,

21

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

23

24         Section 1.  This act may be cited as the "Three-Strike

25  Violent Felony Offender Act."

26         Section 2.  Paragraphs (a) and (d) of subsection (9) of

27  section 775.082, Florida Statutes, 1998 Supplement, are

28  amended to read.

29         775.082  Penalties; applicability of sentencing

30  structures; mandatory minimum sentences for certain

31  reoffenders previously released from prison.--


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                                        CS/HB 121, Third Engrossed



  1         (9)(a)1.  "Prison releasee reoffender" means any

  2  defendant who commits, or attempts to commit:

  3         a.  Treason;

  4         b.  Murder;

  5         c.  Manslaughter;

  6         d.  Sexual battery;

  7         e.  Carjacking;

  8         f.  Home-invasion robbery;

  9         g.  Robbery;

10         h.  Arson;

11         i.  Kidnapping;

12         j.  Aggravated assault with a deadly weapon;

13         k.  Aggravated battery;

14         l.  Aggravated stalking;

15         m.  Aircraft piracy;

16         n.  Unlawful throwing, placing, or discharging of a

17  destructive device or bomb;

18         o.  Any felony that involves the use or threat of

19  physical force or violence against an individual;

20         p.  Armed burglary;

21         q.  Burglary of an occupied structure or dwelling; or

22         r.  Any felony violation of s. 790.07, s. 800.04, s.

23  827.03, or s. 827.071;

24

25  within 3 years of being released from a state correctional

26  facility operated by the Department of Corrections or a

27  private vendor.

28         2.  "Prison releasee reoffender" also means any

29  defendant who commits or attempts to commit any offense listed

30  in subparagraph (a)1.a.-r. while the defendant was serving a

31  prison sentence or on escape status from a state correctional


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                                        CS/HB 121, Third Engrossed



  1  facility operated by the Department of Corrections or a

  2  private vendor.

  3         3.2.  If the state attorney determines that a defendant

  4  is a prison releasee reoffender as defined in subparagraph 1.,

  5  the state attorney may seek to have the court sentence the

  6  defendant as a prison releasee reoffender. Upon proof from the

  7  state attorney that establishes by a preponderance of the

  8  evidence that a defendant is a prison releasee reoffender as

  9  defined in this section, such defendant is not eligible for

10  sentencing under the sentencing guidelines and must be

11  sentenced as follows:

12         a.  For a felony punishable by life, by a term of

13  imprisonment for life;

14         b.  For a felony of the first degree, by a term of

15  imprisonment of 30 years;

16         c.  For a felony of the second degree, by a term of

17  imprisonment of 15 years; and

18         d.  For a felony of the third degree, by a term of

19  imprisonment of 5 years.

20         (d)1.  It is the intent of the Legislature that

21  offenders previously released from prison who meet the

22  criteria in paragraph (a) be punished to the fullest extent of

23  the law and as provided in this subsection, unless the state

24  attorney determines that any of the following circumstances

25  exist:

26         a.  The prosecuting attorney does not have sufficient

27  evidence to prove the highest charge available;

28         b.  The testimony of a material witness cannot be

29  obtained;

30

31


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                                        CS/HB 121, Third Engrossed



  1         c.  The victim does not want the offender to receive

  2  the mandatory prison sentence and provides a written statement

  3  to that effect; or

  4         d.  other extenuating circumstances exist which

  5  preclude the just prosecution of the offender, including

  6  whether the victim recommends that the offender not be

  7  sentenced as provided in this subsection.

  8         2.  For every case in which the offender meets the

  9  criteria in paragraph (a) and does not receive the mandatory

10  minimum prison sentence, the state attorney must explain the

11  sentencing deviation in writing and place such explanation in

12  the case file maintained by the state attorney. On a quarterly

13  basis, each state attorney shall submit copies of deviation

14  memoranda regarding offenses committed on or after the

15  effective date of this subsection, to the president of the

16  Florida Prosecuting Attorneys Association, Inc.  The

17  association must maintain such information, and make such

18  information available to the public upon request, for at least

19  a 10-year period.

20         Section 3.  Section 775.084, Florida Statutes, 1998

21  Supplement, is amended to read:

22         775.084  Violent career criminals; habitual felony

23  offenders and habitual violent felony offenders; three-time

24  violent felony offenders; definitions; procedure; enhanced

25  penalties or mandatory minimum prison terms.--

26         (1)  As used in this act:

27         (a)  "Habitual felony offender" means a defendant for

28  whom the court may impose an extended term of imprisonment, as

29  provided in paragraph (4)(a), if it finds that:

30

31


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                                        CS/HB 121, Third Engrossed



  1         1.  The defendant has previously been convicted of any

  2  combination of two or more felonies in this state or other

  3  qualified offenses.

  4         2.  The felony for which the defendant is to be

  5  sentenced was committed:

  6         a.  While the defendant was serving a prison sentence

  7  or other sentence, or court-ordered or lawfully imposed

  8  supervision that is commitment imposed as a result of a prior

  9  conviction for a felony or other qualified offense; or

10         b.  Within 5 years of the date of the conviction of the

11  defendant's last prior felony or other qualified offense, or

12  within 5 years of the defendant's release from a prison

13  sentence, probation, community control, control release,

14  conditional release, parole or court-ordered or lawfully

15  imposed supervision or other sentence that is commitment

16  imposed as a result of a prior conviction for a felony or

17  other qualified offense, whichever is later.

18         3.  The felony for which the defendant is to be

19  sentenced, and one of the two prior felony convictions, is not

20  a violation of s. 893.13 relating to the purchase or the

21  possession of a controlled substance.

22         4.  The defendant has not received a pardon for any

23  felony or other qualified offense that is necessary for the

24  operation of this paragraph.

25         5.  A conviction of a felony or other qualified offense

26  necessary to the operation of this paragraph has not been set

27  aside in any postconviction proceeding.

28         (b)  "Habitual violent felony offender" means a

29  defendant for whom the court may impose an extended term of

30  imprisonment, as provided in paragraph (4)(b), if it finds

31  that:


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                                        CS/HB 121, Third Engrossed



  1         1.  The defendant has previously been convicted of a

  2  felony or an attempt or conspiracy to commit a felony and one

  3  or more of such convictions was for:

  4         a.  Arson;

  5         b.  Sexual battery;

  6         c.  Robbery;

  7         d.  Kidnapping;

  8         e.  Aggravated child abuse;

  9         f.  Aggravated abuse of an elderly person or disabled

10  adult;

11         g.  Aggravated assault with a deadly weapon;

12         h.  Murder;

13         i.  Manslaughter;

14         j.  Aggravated manslaughter of an elderly person or

15  disabled adult;

16         k.  Aggravated manslaughter of a child;

17         l.  Unlawful throwing, placing, or discharging of a

18  destructive device or bomb;

19         m.  Armed burglary;

20         n.  Aggravated battery; or

21         o.  Aggravated stalking.

22         2.  The felony for which the defendant is to be

23  sentenced was committed:

24         a.  While the defendant was serving a prison sentence

25  or other sentence, or court-ordered or lawfully imposed

26  supervision that is commitment imposed as a result of a prior

27  conviction for an enumerated felony; or

28         b.  Within 5 years of the date of the conviction of the

29  last prior enumerated felony, or within 5 years of the

30  defendant's release from a prison sentence, probation,

31  community control, control release, conditional release,


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                                        CS/HB 121, Third Engrossed



  1  parole, or court-ordered or lawfully imposed supervision or

  2  other sentence that is commitment imposed as a result of a

  3  prior conviction for an enumerated felony, whichever is later.

  4         3.  The defendant has not received a pardon on the

  5  ground of innocence for any crime that is necessary for the

  6  operation of this paragraph.

  7         4.  A conviction of a crime necessary to the operation

  8  of this paragraph has not been set aside in any postconviction

  9  proceeding.

10         (c)  "Three-time violent felony offender" means a

11  defendant for whom the court must impose a mandatory minimum

12  term of imprisonment, as provided in paragraph (4)(c), if it

13  finds that:

14         1.  The defendant has previously been convicted as an

15  adult two or more times of a felony, or an attempt to commit a

16  felony, and two or more of such convictions were for

17  committing, or attempting to commit, any of the following

18  offenses or combination thereof:

19         a.  Arson;

20         b.  Sexual battery;

21         c.  Robbery;

22         d.  Kidnapping;

23         e.  Aggravated child abuse;

24         f.  Aggravated abuse of an elderly person or disabled

25  adult;

26         g.  Aggravated assault with a deadly weapon;

27         h.  Murder;

28         i.  Manslaughter;

29         j.  Aggravated manslaughter of an elderly person or

30  disabled adult;

31         k.  Aggravated manslaughter of a child;


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                                        CS/HB 121, Third Engrossed



  1         l.  Unlawful throwing, placing, or discharging of a

  2  destructive device or bomb;

  3         m.  Armed burglary;

  4         n.  Aggravated battery;

  5         o.  Aggravated stalking;

  6         p.  Home invasion/robbery;

  7         q.  Carjacking; or

  8         r.  An offense which is in violation of a law of any

  9  other jurisdiction if the elements of the offense are

10  substantially similar to the elements of any felony offense

11  enumerated in sub-subparagraphs a.-q., or an attempt to commit

12  any such felony offense.

13         2.  The felony for which the defendant is to be

14  sentenced is one of the felonies enumerated in

15  sub-subparagraphs 1.a.-q. and was committed:

16         a.  While the defendant was serving a prison sentence

17  or other sentence imposed as a result of a prior conviction

18  for any offense enumerated in sub-subparagraphs 1.a.-r.; or

19         b.  Within 5 years after the date of the conviction of

20  the last prior offense enumerated in sub-subparagraphs

21  1.a.-r., or within 5 years after the defendant's release from

22  a prison sentence, probation, community control, or other

23  sentence imposed as a result of a prior conviction for any

24  offense enumerated in sub-subparagraphs 1.a.-r., whichever is

25  later.

26         3.  The defendant has not received a pardon on the

27  ground of innocence for any crime that is necessary for the

28  operation of this paragraph.

29         4.  A conviction of a crime necessary to the operation

30  of this paragraph has not been set aside in any postconviction

31  proceeding.


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                                        CS/HB 121, Third Engrossed



  1         (d)(c)  "Violent career criminal" means a defendant for

  2  whom the court must impose imprisonment pursuant to paragraph

  3  (4)(d)(c), if it finds that:

  4         1.  The defendant has previously been convicted as an

  5  adult three or more times for an offense in this state or

  6  other qualified offense that is:

  7         a.  Any forcible felony, as described in s. 776.08;

  8         b.  Aggravated stalking, as described in s. 784.048(3)

  9  and (4);

10         c.  Aggravated child abuse, as described in s.

11  827.03(2);

12         d.  Aggravated abuse of an elderly person or disabled

13  adult, as described in s. 825.102(2);

14         e.  Lewd, lascivious, or indecent conduct, as described

15  in s. 800.04;

16         f.  Escape, as described in s. 944.40; or

17         g.  A felony violation of chapter 790 involving the use

18  or possession of a firearm.

19         2.  The defendant has been incarcerated in a state

20  prison or a federal prison.

21         3.  The primary felony offense for which the defendant

22  is to be sentenced is a felony enumerated in subparagraph 1.

23  and was committed on or after October 1, 1995, and:

24         a.  While the defendant was serving a prison sentence

25  or other sentence, or court-ordered or lawfully imposed

26  supervision that is commitment imposed as a result of a prior

27  conviction for an enumerated felony; or

28         b.  Within 5 years after the conviction of the last

29  prior enumerated felony, or within 5 years after the

30  defendant's release from a prison sentence, probation,

31  community control, control release, conditional release,


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                                        CS/HB 121, Third Engrossed



  1  parole, or court-ordered or lawfully imposed supervision or

  2  other sentence that is commitment imposed as a result of a

  3  prior conviction for an enumerated felony, whichever is later.

  4         4.  The defendant has not received a pardon for any

  5  felony or other qualified offense that is necessary for the

  6  operation of this paragraph.

  7         5.  A conviction of a felony or other qualified offense

  8  necessary to the operation of this paragraph has not been set

  9  aside in any postconviction proceeding.

10         (e)(d)  "Qualified offense" means any offense,

11  substantially similar in elements and penalties to an offense

12  in this state, which is in violation of a law of any other

13  jurisdiction, whether that of another state, the District of

14  Columbia, the United States or any possession or territory

15  thereof, or any foreign jurisdiction, that was punishable

16  under the law of such jurisdiction at the time of its

17  commission by the defendant by death or imprisonment exceeding

18  1 year.

19         (2)  For the purposes of this section, the placing of a

20  person on probation or community control without an

21  adjudication of guilt shall be treated as a prior conviction

22  if the subsequent offense for which the person is to be

23  sentenced was committed during such period of probation or

24  community control.

25         (3)(a)  In a separate proceeding, the court shall

26  determine if the defendant is a habitual felony offender or a

27  habitual violent felony offender. The procedure shall be as

28  follows:

29         1.  The court shall obtain and consider a presentence

30  investigation prior to the imposition of a sentence as a

31


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                                        CS/HB 121, Third Engrossed



  1  habitual felony offender or a habitual violent felony

  2  offender.

  3         2.  Written notice shall be served on the defendant and

  4  the defendant's attorney a sufficient time prior to the entry

  5  of a plea or prior to the imposition of sentence in order to

  6  allow the preparation of a submission on behalf of the

  7  defendant.

  8         3.  Except as provided in subparagraph 1., all evidence

  9  presented shall be presented in open court with full rights of

10  confrontation, cross-examination, and representation by

11  counsel.

12         4.  Each of the findings required as the basis for such

13  sentence shall be found to exist by a preponderance of the

14  evidence and shall be appealable to the extent normally

15  applicable to similar findings.

16         5.  For the purpose of identification of a habitual

17  felony offender or a habitual violent felony offender, the

18  court shall fingerprint the defendant pursuant to s. 921.241.

19         6.  For an offense committed on or after October 1,

20  1995, if the state attorney pursues a habitual felony offender

21  sanction or a habitual violent felony offender sanction

22  against the defendant and the court, in a separate proceeding

23  pursuant to this paragraph, determines that the defendant

24  meets the criteria under subsection (1) for imposing such

25  sanction, the court must sentence the defendant as a habitual

26  felony offender or a habitual violent felony offender, subject

27  to imprisonment pursuant to this section unless the court

28  finds that such sentence is not necessary for the protection

29  of the public.  If the court finds that it is not necessary

30  for the protection of the public to sentence the defendant as

31  a habitual felony offender or a habitual violent felony


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                                        CS/HB 121, Third Engrossed



  1  offender, the court shall provide written reasons; a written

  2  transcript of orally stated reasons is permissible, if filed

  3  by the court within 7 days after the date of sentencing. Each

  4  month, the court shall submit to the Office of Economic and

  5  Demographic Research of the Legislature the written reasons or

  6  transcripts in each case in which the court determines not to

  7  sentence a defendant as a habitual felony offender or a

  8  habitual violent felony offender as provided in this

  9  subparagraph.

10         (b)  In a separate proceeding, the court shall

11  determine if the defendant is a three-time violent felony

12  offender. The procedure shall be as follows:

13         1.  The court shall obtain and consider a presentence

14  investigation prior to the imposition of a sentence as a

15  three-time violent felony offender.

16         2.  Written notice shall be served on the defendant and

17  the defendant's attorney a sufficient time prior to the entry

18  of a plea or prior to the imposition of sentence in order to

19  allow the preparation of a submission on behalf of the

20  defendant.

21         3.  Except as provided in subparagraph 1., all evidence

22  presented shall be presented in open court with full rights of

23  confrontation, cross-examination, and representation by

24  counsel.

25         4.  Each of the findings required as the basis for such

26  sentence shall be found to exist by a preponderance of the

27  evidence and shall be appealable to the extent normally

28  applicable to similar findings.

29         5.  For the purpose of identification of a three-time

30  violent felony offender, the court shall fingerprint the

31  defendant pursuant to s. 921.241.


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                                        CS/HB 121, Third Engrossed



  1         6.  For an offense committed on or after the effective

  2  date of this act, if the state attorney pursues a three-time

  3  violent felony offender sanction against the defendant and the

  4  court, in a separate proceeding pursuant to this paragraph,

  5  determines that the defendant meets the criteria under

  6  subsection (1) for imposing such sanction, the court must

  7  sentence the defendant as a three-time violent felony

  8  offender, subject to imprisonment pursuant to this section as

  9  provided in paragraph (4)(c).

10         (c)(b)  In a separate proceeding, the court shall

11  determine whether the defendant is a violent career criminal

12  with respect to a primary offense committed on or after

13  October 1, 1995.  The procedure shall be as follows:

14         1.  Written notice shall be served on the defendant and

15  the defendant's attorney a sufficient time prior to the entry

16  of a plea or prior to the imposition of sentence in order to

17  allow the preparation of a submission on behalf of the

18  defendant.

19         2.  All evidence presented shall be presented in open

20  court with full rights of confrontation, cross-examination,

21  and representation by counsel.

22         3.  Each of the findings required as the basis for such

23  sentence shall be found to exist by a preponderance of the

24  evidence and shall be appealable only as provided in paragraph

25  (d)(c).

26         4.  For the purpose of identification, the court shall

27  fingerprint the defendant pursuant to s. 921.241.

28         5.  For an offense committed on or after October 1,

29  1995, if the state attorney pursues a violent career criminal

30  sanction against the defendant and the court, in a separate

31  proceeding pursuant to this paragraph, determines that the


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                                        CS/HB 121, Third Engrossed



  1  defendant meets the criteria under subsection (1) for imposing

  2  such sanction, the court must sentence the defendant as a

  3  violent career criminal, subject to imprisonment pursuant to

  4  this section unless the court finds that such sentence is not

  5  necessary for the protection of the public.  If the court

  6  finds that it is not necessary for the protection of the

  7  public to sentence the defendant as a violent career criminal,

  8  the court shall provide written reasons; a written transcript

  9  of orally stated reasons is permissible, if filed by the court

10  within 7 days after the date of sentencing. Each month, the

11  court shall submit to the Office of Economic and Demographic

12  Research of the Legislature the written reasons or transcripts

13  in each case in which the court determines not to sentence a

14  defendant as a violent career criminal as provided in this

15  subparagraph.

16         (d)(c)1.  A person sentenced under paragraph (4)(d)(c)

17  as a violent career criminal has the right of direct appeal,

18  and either the state or the defendant may petition the trial

19  court to vacate an illegal sentence at any time. However, the

20  determination of the trial court to impose or not to impose a

21  violent career criminal sentence is presumed appropriate and

22  no petition or motion for collateral or other postconviction

23  relief may be considered based on an allegation either by the

24  state or the defendant that such sentence is inappropriate,

25  inadequate, or excessive.

26         2.  It is the intent of the Legislature that, with

27  respect to both direct appeal and collateral review of violent

28  career criminal sentences, all claims of error or illegality

29  be raised at the first opportunity and that no claim should be

30  filed more than 2 years after the judgment and sentence became

31  final, unless it is established that the basis for the claim


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                                        CS/HB 121, Third Engrossed



  1  could not have been ascertained at the time by the exercise of

  2  due diligence. Technical violations and mistakes at trials and

  3  sentencing proceedings involving violent career criminals that

  4  do not affect due process or fundamental fairness are not

  5  appealable by either the state or the defendant.

  6         3.  It is the intent of the Legislature that no funds,

  7  resources, or employees of the state or its political

  8  subdivisions be used, directly or indirectly, in appellate or

  9  collateral proceedings based on violent career criminal

10  sentencing, except when such use is constitutionally or

11  statutorily mandated.

12         (4)(a)  The court, in conformity with the procedure

13  established in paragraph (3)(a), may sentence the habitual

14  felony offender as follows:

15         1.  In the case of a life felony or a felony of the

16  first degree, for life.

17         2.  In the case of a felony of the second degree, for a

18  term of years not exceeding 30.

19         3.  In the case of a felony of the third degree, for a

20  term of years not exceeding 10.

21         (b)  The court, in conformity with the procedure

22  established in paragraph (3)(a), may sentence the habitual

23  violent felony offender as follows:

24         1.  In the case of a life felony or a felony of the

25  first degree, for life, and such offender shall not be

26  eligible for release for 15 years.

27         2.  In the case of a felony of the second degree, for a

28  term of years not exceeding 30, and such offender shall not be

29  eligible for release for 10 years.

30

31


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                                        CS/HB 121, Third Engrossed



  1         3.  In the case of a felony of the third degree, for a

  2  term of years not exceeding 10, and such offender shall not be

  3  eligible for release for 5 years.

  4         (c)1.  The court, in conformity with the procedure

  5  established in paragraph (3)(b), must sentence the three-time

  6  violent felony offender to a mandatory minimum term of

  7  imprisonment, as follows:

  8         a.  In the case of a felony punishable by life, to a

  9  term of imprisonment for life;

10         b.  In the case of a felony of the first degree, to a

11  term of imprisonment of 30 years;

12         c.  In the case of a felony of the second degree, to a

13  term of imprisonment of 15 years; or

14         d.  In the case of a felony of the third degree, to a

15  term of imprisonment of 5 years.

16         2.  Nothing in this subsection shall prevent a court

17  from imposing a greater sentence of incarceration as

18  authorized by law.

19         (d)(c)  The court, in conformity with the procedure

20  established in paragraph (3)(c)(b), shall sentence the violent

21  career criminal as follows:

22         1.  In the case of a life felony or a felony of the

23  first degree, for life.

24         2.  In the case of a felony of the second degree, for a

25  term of years not exceeding 40, with a mandatory minimum term

26  of 30 years' imprisonment.

27         3.  In the case of a felony of the third degree, for a

28  term of years not exceeding 15, with a mandatory minimum term

29  of 10 years' imprisonment.

30         (e)(d)  If the court finds, pursuant to paragraph

31  (3)(a) or paragraph (3)(c)(b), that it is not necessary for


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                                        CS/HB 121, Third Engrossed



  1  the protection of the public to sentence a defendant who meets

  2  the criteria for sentencing as a habitual felony offender, a

  3  habitual violent felony offender, or a violent career

  4  criminal, with respect to an offense committed on or after

  5  October 1, 1995, sentence shall be imposed without regard to

  6  this section.

  7         (f)(e)  At any time when it appears to the court that

  8  the defendant is eligible for sentencing under this section,

  9  the court shall make that determination as provided in

10  paragraph (3)(a), or paragraph (3)(b), or paragraph (3)(c).

11         (g)(f)  A sentence imposed under this section shall not

12  be increased after such imposition.

13         (h)(g)  A sentence imposed under this section is not

14  subject to s. 921.002.

15         (i)(h)  The provisions of this section do not apply to

16  capital felonies, and a sentence authorized under this section

17  does not preclude the imposition of the death penalty for a

18  capital felony.

19         (j)(i)  The provisions of s. 947.1405 shall apply to

20  persons sentenced as habitual felony offenders and persons

21  sentenced as habitual violent felony offenders.

22         (k)(j)1.  A defendant sentenced under this section as a

23  habitual felony offender, a habitual violent felony offender,

24  or a violent career criminal is eligible for gain-time granted

25  by the Department of Corrections as provided in s.

26  944.275(4)(b).

27         2.  For an offense committed on or after October 1,

28  1995, a defendant sentenced under this section as a violent

29  career criminal is not eligible for any form of discretionary

30  early release, other than pardon or executive clemency, or

31  conditional medical release granted pursuant to s. 947.149.


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                                        CS/HB 121, Third Engrossed



  1         3.  For an offense committed on or after July 1, 1999,

  2  a defendant sentenced under this section as a three-time

  3  violent felony offender shall be released only by expiration

  4  of sentence and shall not be eligible for parole, control

  5  release, or any form of early release.

  6         (5)  In order to be counted as a prior felony for

  7  purposes of sentencing under this section, the felony must

  8  have resulted in a conviction sentenced separately prior to

  9  the current offense and sentenced separately from any other

10  felony conviction that is to be counted as a prior felony.

11         (6)  The purpose of this section is to provide uniform

12  punishment for those crimes made punishable under this

13  section, and to this end, a reference to this section

14  constitutes a general reference under the doctrine of

15  incorporation by reference.

16         Section 4.  Paragraphs (c) and (d) of subsection (2) of

17  section 784.07, Florida Statutes, 1998 Supplement, are amended

18  to read:

19         784.07  Assault or battery of law enforcement officers,

20  firefighters, emergency medical care providers, public transit

21  employees or agents, or other specified officers;

22  reclassification of offenses; minimum sentences.--

23         (2)  Whenever any person is charged with knowingly

24  committing an assault or battery upon a law enforcement

25  officer, a firefighter, an emergency medical care provider, a

26  traffic accident investigation officer as described in s.

27  316.640, a traffic infraction enforcement officer as described

28  in s. 318.141, a parking enforcement specialist as defined in

29  s. 316.640, or a security officer employed by the board of

30  trustees of a community college, while the officer,

31  firefighter, emergency medical care provider, intake officer,


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                                        CS/HB 121, Third Engrossed



  1  traffic accident investigation officer, traffic infraction

  2  enforcement officer, parking enforcement specialist, public

  3  transit employee or agent, or security officer is engaged in

  4  the lawful performance of his or her duties, the offense for

  5  which the person is charged shall be reclassified as follows:

  6         (c)  In the case of aggravated assault, from a felony

  7  of the third degree to a felony of the second degree.

  8  Notwithstanding any other provision of law, any person

  9  convicted of aggravated assault upon a law enforcement officer

10  shall be sentenced to a minimum term of imprisonment of 3

11  years.

12         (d)  In the case of aggravated battery, from a felony

13  of the second degree to a felony of the first degree.

14  Notwithstanding any other provision of law, any person

15  convicted of aggravated battery of a law enforcement officer

16  shall be sentenced to a minimum term of imprisonment of 5

17  years.

18         Section 5.  Subsection (1) of section 784.08, Florida

19  Statutes, is amended to read:

20         784.08  Assault or battery on persons 65 years of age

21  or older; reclassification of offenses; minimum sentence.--

22         (1)  A person who is convicted of an aggravated assault

23  or aggravated battery upon a person 65 years of age or older

24  shall be sentenced to a minimum term of imprisonment of 3

25  years pursuant to the Criminal Punishment Code and fined not

26  more than $10,000 and shall also be ordered by the sentencing

27  judge to make restitution to the victim of such offense and to

28  perform up to 500 hours of community service work.

29  Restitution and community service work shall be in addition to

30  any fine or sentence which may be imposed and shall not be in

31  lieu thereof.


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                                        CS/HB 121, Third Engrossed



  1         Section 6.  Section 790.235, Florida Statutes, is

  2  amended to read:

  3         790.235  Possession of firearm by violent career

  4  criminal unlawful; penalty.--

  5         (1)  Any person who meets the violent career criminal

  6  criteria under s. 775.084(1)(d)(c), regardless of whether such

  7  person is or has previously been sentenced as a violent career

  8  criminal, who owns or has in his or her care, custody,

  9  possession, or control any firearm or electric weapon or

10  device, or carries a concealed weapon, including a tear gas

11  gun or chemical weapon or device, commits a felony of the

12  first degree, punishable as provided in s. 775.082, s.

13  775.083, or s. 775.084.  A person convicted of a violation of

14  this section shall be sentenced to a mandatory minimum of 15

15  years' imprisonment; however, if the person would be sentenced

16  to a longer term of imprisonment under s. 775.084(4)(d)(c),

17  the person must be sentenced under that provision.  A person

18  convicted of a violation of this section is not eligible for

19  any form of discretionary early release, other than pardon,

20  executive clemency, or conditional medical release under s.

21  947.149.

22         (2)  For purposes of this section, the previous felony

23  convictions necessary to meet the violent career criminal

24  criteria under s. 775.084(1)(d)(c) may be convictions for

25  felonies committed as an adult or adjudications of delinquency

26  for felonies committed as a juvenile.  In order to be counted

27  as a prior felony for purposes of this section, the felony

28  must have resulted in a conviction sentenced separately, or an

29  adjudication of delinquency entered separately, prior to the

30  current offense, and sentenced or adjudicated separately from

31  any other felony that is to be counted as a prior felony.


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                                        CS/HB 121, Third Engrossed



  1         (3)  This section shall not apply to a person whose

  2  civil rights and firearm authority have been restored.

  3         Section 7.  Section 794.0115, Florida Statutes, is

  4  created to read:

  5         794.0115  Repeat sexual batterers; definition;

  6  procedure; enhanced penalties.--

  7         (1)  As used in this act, "repeat sexual batterer"

  8  means a defendant for whom the court must impose a mandatory

  9  minimum term of imprisonment, as provided in subsection (3),

10  if it finds that:

11         (a)  The defendant has previously been convicted of a

12  felony or an attempt or conspiracy to commit a felony and one

13  or more of such convictions was for:

14         1.  Any felony offense in violation of s.

15  794.011(2)(b), (3), (4), or (5), or an attempt or conspiracy

16  to commit the felony offense.

17         2.  A qualified offense as defined in s. 775.084(1)(e),

18  if the elements of the qualified offense are substantially

19  similar to the elements of a felony offense in violation of s.

20  794.011(2)(b), (3), (4), or (5), or an attempt or conspiracy

21  to commit the felony offense.

22         (b)  The felony for which the defendant is to be

23  sentenced is one of the felonies enumerated in subparagraph

24  (a)1. or 2. and was committed:

25         1.  While the defendant was serving a prison sentence

26  or other sentence imposed as a result of a prior conviction

27  for any offense enumerated in subparagraph (a)1. or 2.; or

28         2.  Within 10 years after the date of the conviction of

29  the last prior offense enumerated in subparagraph (a)1. or 2.,

30  or within 10 years after the defendant's release from a prison

31  sentence, probation, community control, or other sentence


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                                        CS/HB 121, Third Engrossed



  1  imposed as a result of a prior conviction for any offense

  2  enumerated in subparagraph (a)1. or 2., whichever is later.

  3         (c)  The defendant has not received a pardon on the

  4  ground of innocence for any crime that is necessary for the

  5  operation of this subsection.

  6         (d)  A conviction of a crime necessary to the operation

  7  of this subsection has not been set aside in any

  8  postconviction proceeding.

  9         (2)  In a separate proceeding, the court shall

10  determine if the defendant is a repeat sexual batterer. The

11  procedure shall be as follows:

12         (a)  The court shall obtain and consider a presentence

13  investigation prior to the imposition of a sentence as a

14  repeat sexual batterer.

15         (b)  Written notice shall be served on the defendant

16  and the defendant's attorney a sufficient time prior to the

17  entry of a plea or prior to the imposition of sentence in

18  order to allow the preparation of a submission on behalf of

19  the defendant.

20         (c)  Except as provided in paragraph (a), all evidence

21  presented shall be presented in open court with full rights of

22  confrontation, cross-examination, and representation by

23  counsel.

24         (d)  Each of the findings required as the basis for

25  such sentence shall be found to exist by a preponderance of

26  the evidence and shall be appealable to the extent normally

27  applicable to similar findings.

28         (e)  For the purpose of identification of a repeat

29  sexual batterer, the court shall fingerprint the defendant

30  pursuant to s. 921.241.

31


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                                        CS/HB 121, Third Engrossed



  1         (f)  For an offense committed on or after the effective

  2  date of this act, if the state attorney pursues a repeat

  3  sexual batterer sanction against the defendant and the court,

  4  in a separate proceeding pursuant to this subsection,

  5  determines that the defendant meets the criteria under

  6  subsection (1) for imposing such sanction, the court must

  7  sentence the defendant as a repeat sexual batterer, subject to

  8  imprisonment pursuant to this section as provided in

  9  subsection (3).

10         (3)(a)  The court, in conformity with the procedure

11  established in subsection (2), must sentence the repeat sexual

12  batterer to a mandatory minimum term of 10 years'

13  imprisonment.

14         (b)  Nothing in this subsection shall prevent a court

15  from imposing a greater sentence of incarceration as

16  authorized by law.

17         Section 8.  Section 794.011, Florida Statutes, is

18  amended to read:

19         794.011  Sexual battery.--

20         (1)  As used in this chapter:

21         (a)  "Consent" means intelligent, knowing, and

22  voluntary consent and does not include coerced submission.

23  "Consent" shall not be deemed or construed to mean the failure

24  by the alleged victim to offer physical resistance to the

25  offender.

26         (b)  "Mentally defective" means a mental disease or

27  defect which renders a person temporarily or permanently

28  incapable of appraising the nature of his or her conduct.

29         (c)  "Mentally incapacitated" means temporarily

30  incapable of appraising or controlling a person's own conduct

31  due to the influence of a narcotic, anesthetic, or


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                                        CS/HB 121, Third Engrossed



  1  intoxicating substance administered without his or her consent

  2  or due to any other act committed upon that person without his

  3  or her consent.

  4         (d)  "Offender" means a person accused of a sexual

  5  offense in violation of a provision of this chapter.

  6         (e)  "Physically helpless" means unconscious, asleep,

  7  or for any other reason physically unable to communicate

  8  unwillingness to an act.

  9         (f)  "Retaliation" includes, but is not limited to,

10  threats of future physical punishment, kidnapping, false

11  imprisonment or forcible confinement, or extortion.

12         (g)  "Serious personal injury" means great bodily harm

13  or pain, permanent disability, or permanent disfigurement.

14         (h)  "Sexual battery" means oral, anal, or vaginal

15  penetration by, or union with, the sexual organ of another or

16  the anal or vaginal penetration of another by any other

17  object; however, sexual battery does not include an act done

18  for a bona fide medical purpose.

19         (i)  "Victim" means a person who has been the object of

20  a sexual offense.

21         (j)  "Physically incapacitated" means bodily impaired

22  or handicapped and substantially limited in ability to resist

23  or flee.

24         (2)(a)  A person 18 years of age or older who commits

25  sexual battery upon, or in an attempt to commit sexual battery

26  injures the sexual organs of, a person less than 12 years of

27  age commits a capital felony, punishable as provided in ss.

28  775.082 and 921.141.

29         (b)  A person less than 18 years of age who commits

30  sexual battery upon, or in an attempt to commit sexual battery

31  injures the sexual organs of, a person less than 12 years of


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                                        CS/HB 121, Third Engrossed



  1  age commits a life felony, punishable as provided in s.

  2  775.082, s. 775.083, or s. 775.084, or s. 794.0115.

  3         (3)  A person who commits sexual battery upon a person

  4  12 years of age or older, without that person's consent, and

  5  in the process thereof uses or threatens to use a deadly

  6  weapon or uses actual physical force likely to cause serious

  7  personal injury commits a life felony, punishable as provided

  8  in s. 775.082, s. 775.083, or s. 775.084, or s. 794.0115.

  9         (4)  A person who commits sexual battery upon a person

10  12 years of age or older without that person's consent, under

11  any of the following circumstances, commits a felony of the

12  first degree, punishable as provided in s. 775.082, s.

13  775.083, or s. 775.084, or s. 794.0115:

14         (a)  When the victim is physically helpless to resist.

15         (b)  When the offender coerces the victim to submit by

16  threatening to use force or violence likely to cause serious

17  personal injury on the victim, and the victim reasonably

18  believes that the offender has the present ability to execute

19  the threat.

20         (c)  When the offender coerces the victim to submit by

21  threatening to retaliate against the victim, or any other

22  person, and the victim reasonably believes that the offender

23  has the ability to execute the threat in the future.

24         (d)  When the offender, without the prior knowledge or

25  consent of the victim, administers or has knowledge of someone

26  else administering to the victim any narcotic, anesthetic, or

27  other intoxicating substance which mentally or physically

28  incapacitates the victim.

29         (e)  When the victim is mentally defective and the

30  offender has reason to believe this or has actual knowledge of

31  this fact.


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                                        CS/HB 121, Third Engrossed



  1         (f)  When the victim is physically incapacitated.

  2         (g)  When the offender is a law enforcement officer,

  3  correctional officer, or correctional probation officer as

  4  defined by s. 943.10(1), (2), (3), (6), (7), (8), or (9), who

  5  is certified under the provisions of s. 943.1395 or is an

  6  elected official exempt from such certification by virtue of

  7  s. 943.253, or any other person in a position of control or

  8  authority in a probation, community control, controlled

  9  release, detention, custodial, or similar setting, and such

10  officer, official, or person is acting in such a manner as to

11  lead the victim to reasonably believe that the offender is in

12  a position of control or authority as an agent or employee of

13  government.

14         (5)  A person who commits sexual battery upon a person

15  12 years of age or older, without that person's consent, and

16  in the process thereof does not use physical force and

17  violence likely to cause serious personal injury commits a

18  felony of the second degree, punishable as provided in s.

19  775.082, s. 775.083, or s. 775.084, or s. 794.0115.

20         (6)  The offense described in subsection (5) is

21  included in any sexual battery offense charged under

22  subsection (3) or subsection (4).

23         (7)  A person who is convicted of committing a sexual

24  battery on or after October 1, 1992, is not eligible for basic

25  gain-time under s. 944.275.  This subsection may be cited as

26  the "Junny Rios-Martinez, Jr. Act of 1992."

27         (8)  Without regard to the willingness or consent of

28  the victim, which is not a defense to prosecution under this

29  subsection, a person who is in a position of familial or

30  custodial authority to a person less than 18 years of age and

31  who:


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                                        CS/HB 121, Third Engrossed



  1         (a)  Solicits that person to engage in any act which

  2  would constitute sexual battery under paragraph (1)(h) commits

  3  a felony of the third degree, punishable as provided in s.

  4  775.082, s. 775.083, or s. 775.084.

  5         (b)  Engages in any act with that person while the

  6  person is 12 years of age or older but less than 18 years of

  7  age which constitutes sexual battery under paragraph (1)(h)

  8  commits a felony of the first degree, punishable as provided

  9  in s. 775.082, s. 775.083, or s. 775.084.

10         (c)  Engages in any act with that person while the

11  person is less than 12 years of age which constitutes sexual

12  battery under paragraph (1)(h), or in an attempt to commit

13  sexual battery injures the sexual organs of such person

14  commits a capital or life felony, punishable pursuant to

15  subsection (2).

16         (9)  For prosecution under paragraph (4)(g),

17  acquiescence to a person reasonably believed by the victim to

18  be in a position of authority or control does not constitute

19  consent, and it is not a defense that the perpetrator was not

20  actually in a position of control or authority if the

21  circumstances were such as to lead the victim to reasonably

22  believe that the person was in such a position.

23         (10)  Any person who falsely accuses any person listed

24  in paragraph (4)(g) or other person in a position of control

25  or authority as an agent or employee of government of

26  violating paragraph (4)(g) is guilty of a felony of the third

27  degree, punishable as provided in s. 775.082, s. 775.083, or

28  s. 775.084.

29         Section 9.  Section 893.135, Florida Statutes, as

30  amended by section 23 of chapter 97-194, Laws of Florida, is

31  amended to read:


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                                        CS/HB 121, Third Engrossed



  1         893.135  Trafficking; mandatory sentences; suspension

  2  or reduction of sentences; conspiracy to engage in

  3  trafficking.--

  4         (1)  Except as authorized in this chapter or in chapter

  5  499 and notwithstanding the provisions of s. 893.13:

  6         (a)  Any person who knowingly sells, purchases,

  7  manufactures, delivers, or brings into this state, or who is

  8  knowingly in actual or constructive possession of, in excess

  9  of 25 50 pounds of cannabis, or 300 or more cannabis plants,

10  commits a felony of the first degree, which felony shall be

11  known as "trafficking in cannabis." If the quantity of

12  cannabis involved:

13         1.  Is in excess of 25 50 pounds, but less than 2,000

14  pounds, or is 300 or more cannabis plants, but not more than

15  2,000 cannabis plants, such person shall be sentenced pursuant

16  to the Criminal Punishment Code and such sentence shall

17  include a mandatory minimum term of imprisonment of 3 years,

18  and the defendant shall be ordered to pay a fine of $25,000.

19         2.  Is 2,000 pounds or more, but less than 10,000

20  pounds, or is 2,000 or more cannabis plants, but not more than

21  10,000 cannabis plants, such person shall be sentenced

22  pursuant to the Criminal Punishment Code and such sentence

23  shall include a mandatory minimum term of imprisonment of 7

24  years, and the defendant shall be ordered to pay a fine of

25  $50,000.

26         3.  Is 10,000 pounds or more, or is 10,000 or more

27  cannabis plants, such person shall be sentenced to a mandatory

28  minimum term of imprisonment of 15 calendar years and pay a

29  fine of $200,000.

30

31


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                                        CS/HB 121, Third Engrossed



  1  For the purpose of this paragraph, a plant, including, but not

  2  limited to, a seedling or cutting, is a "cannabis plant" if it

  3  has some readily observable evidence of root formation, such

  4  as root hairs. To determine if a piece or part of a cannabis

  5  plant severed from the cannabis plant is itself a cannabis

  6  plant, the severed piece or part must have some readily

  7  observable evidence of root formation, such as root hairs.

  8  Callous tissue is not readily observable evidence of root

  9  formation. The viability and sex of a plant and the fact that

10  the plant may or may not be a dead harvested plant are not

11  relevant in determining if the plant is a "cannabis plant" or

12  in the charging of an offense under this paragraph. Upon

13  conviction, the court shall impose the longest term of

14  imprisonment provided for in this paragraph.

15         (b)1.  Any person who knowingly sells, purchases,

16  manufactures, delivers, or brings into this state, or who is

17  knowingly in actual or constructive possession of, 28 grams or

18  more of cocaine, as described in s. 893.03(2)(a)4., or of any

19  mixture containing cocaine, but less than 150 kilograms of

20  cocaine or any such mixture, commits a felony of the first

21  degree, which felony shall be known as "trafficking in

22  cocaine."  If the quantity involved:

23         a.  Is 28 grams or more, but less than 200 grams, such

24  person shall be sentenced pursuant to the Criminal Punishment

25  Code and such sentence shall include a mandatory minimum term

26  of imprisonment of 3 years, and the defendant shall be ordered

27  to pay a fine of $50,000.

28         b.  Is 200 grams or more, but less than 400 grams, such

29  person shall be sentenced pursuant to the Criminal Punishment

30  Code and such sentence shall include a mandatory minimum term

31


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                                        CS/HB 121, Third Engrossed



  1  of imprisonment of 7 years, and the defendant shall be ordered

  2  to pay a fine of $100,000.

  3         c.  Is 400 grams or more, but less than 150 kilograms,

  4  such person shall be sentenced to a mandatory minimum term of

  5  imprisonment of 15 calendar years and pay a fine of $250,000.

  6         2.  Any person who knowingly sells, purchases,

  7  manufactures, delivers, or brings into this state, or who is

  8  knowingly in actual or constructive possession of, 150

  9  kilograms or more, but less than 300 kilograms, of cocaine, as

10  described in s. 893.03(2)(a)4., commits the first degree

11  felony of trafficking in cocaine. A person who has been

12  convicted of the first degree felony of trafficking in cocaine

13  under this subparagraph shall be punished by life imprisonment

14  and is ineligible for any form of discretionary early release

15  except pardon or executive clemency or conditional medical

16  release under s. 947.149. However, if the court determines

17  that, in addition to committing any act specified in this

18  paragraph:

19         a.  The person intentionally killed an individual or

20  counseled, commanded, induced, procured, or caused the

21  intentional killing of an individual and such killing was the

22  result; or

23         b.  The person's conduct in committing that act led to

24  a natural, though not inevitable, lethal result,

25

26  such person commits the capital felony of trafficking in

27  cocaine, punishable as provided in ss. 775.082 and 921.142.

28  Any person sentenced for a capital felony under this paragraph

29  shall also be sentenced to pay the maximum fine provided under

30  subparagraph 1.

31


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                                        CS/HB 121, Third Engrossed



  1         3.  Any person who knowingly brings into this state 300

  2  kilograms or more of cocaine, as described in s.

  3  893.03(2)(a)4., and who knows that the probable result of such

  4  importation would be the death of any person, commits capital

  5  importation of cocaine, a capital felony punishable as

  6  provided in ss. 775.082 and 921.142. Any person sentenced for

  7  a capital felony under this paragraph shall also be sentenced

  8  to pay the maximum fine provided under subparagraph 1.

  9         (c)1.  Any person who knowingly sells, purchases,

10  manufactures, delivers, or brings into this state, or who is

11  knowingly in actual or constructive possession of, 4 grams or

12  more of any morphine, opium, oxycodone, hydrocodone,

13  hydromorphone, or any salt, derivative, isomer, or salt of an

14  isomer thereof, including heroin, as described in s.

15  893.03(1)(b) or (2)(a), or 4 grams or more of any mixture

16  containing any such substance, but less than 30 kilograms of

17  such substance or mixture, commits a felony of the first

18  degree, which felony shall be known as "trafficking in illegal

19  drugs."  If the quantity involved:

20         a.  Is 4 grams or more, but less than 14 grams, such

21  person shall be sentenced pursuant to the Criminal Punishment

22  Code and such sentence shall include a mandatory minimum term

23  of imprisonment of 3 years, and the defendant shall be ordered

24  to pay a fine of $50,000.

25         b.  Is 14 grams or more, but less than 28 grams, such

26  person shall be sentenced pursuant to the Criminal Punishment

27  Code and such sentence shall include a mandatory minimum term

28  of imprisonment of 15 years, and the defendant shall be

29  ordered to pay a fine of $100,000.

30

31


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                                        CS/HB 121, Third Engrossed



  1         c.  Is 28 grams or more, but less than 30 kilograms,

  2  such person shall be sentenced to a mandatory minimum term of

  3  imprisonment of 25 calendar years and pay a fine of $500,000.

  4         2.  Any person who knowingly sells, purchases,

  5  manufactures, delivers, or brings into this state, or who is

  6  knowingly in actual or constructive possession of, 30

  7  kilograms or more, but less than 60 kilograms, of any

  8  morphine, opium, oxycodone, hydrocodone, hydromorphone, or any

  9  salt, derivative, isomer, or salt of an isomer thereof,

10  including heroin, as described in s. 893.03(1)(b) or (2)(a),

11  or 30 kilograms or more, but less than 60 kilograms, of any

12  mixture containing any such substance, commits the first

13  degree felony of trafficking in illegal drugs. A person who

14  has been convicted of the first degree felony of trafficking

15  in illegal drugs under this subparagraph shall be punished by

16  life imprisonment and is ineligible for any form of

17  discretionary early release except pardon or executive

18  clemency or conditional medical release under s. 947.149.

19  However, if the court determines that, in addition to

20  committing any act specified in this paragraph:

21         a.  The person intentionally killed an individual or

22  counseled, commanded, induced, procured, or caused the

23  intentional killing of an individual and such killing was the

24  result; or

25         b.  The person's conduct in committing that act led to

26  a natural, though not inevitable, lethal result,

27

28  such person commits the capital felony of trafficking in

29  illegal drugs, punishable as provided in ss. 775.082 and

30  921.142.  Any person sentenced for a capital felony under this

31


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                                        CS/HB 121, Third Engrossed



  1  paragraph shall also be sentenced to pay the maximum fine

  2  provided under subparagraph 1.

  3         3.  Any person who knowingly brings into this state 60

  4  kilograms or more of any morphine, opium, oxycodone,

  5  hydrocodone, hydromorphone, or any salt, derivative, isomer,

  6  or salt of an isomer thereof, including heroin, as described

  7  in s. 893.03(1)(b) or (2)(a), or 60 kilograms or more of any

  8  mixture containing any such substance, and who knows that the

  9  probable result of such importation would be the death of any

10  person, commits capital importation of illegal drugs, a

11  capital felony punishable as provided in ss. 775.082 and

12  921.142. Any person sentenced for a capital felony under this

13  paragraph shall also be sentenced to pay the maximum fine

14  provided under subparagraph 1.

15         (d)1.  Any person who knowingly sells, purchases,

16  manufactures, delivers, or brings into this state, or who is

17  knowingly in actual or constructive possession of, 28 grams or

18  more of phencyclidine or of any mixture containing

19  phencyclidine, as described in s. 893.03(2)(b), commits a

20  felony of the first degree, which felony shall be known as

21  "trafficking in phencyclidine." If the quantity involved:

22         a.  Is 28 grams or more, but less than 200 grams, such

23  person shall be sentenced pursuant to the Criminal Punishment

24  Code and such sentence shall include a mandatory minimum term

25  of imprisonment of 3 years, and the defendant shall be ordered

26  to pay a fine of $50,000.

27         b.  Is 200 grams or more, but less than 400 grams, such

28  person shall be sentenced pursuant to the Criminal Punishment

29  Code and such sentence shall include a mandatory minimum term

30  of imprisonment of 7 years, and the defendant shall be ordered

31  to pay a fine of $100,000.


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                                        CS/HB 121, Third Engrossed



  1         c.  Is 400 grams or more, but less than 800 grams, such

  2  person shall be sentenced to a mandatory minimum term of

  3  imprisonment of 15 calendar years and pay a fine of $250,000.

  4         2.  Any person who knowingly brings into this state 800

  5  grams or more of phencyclidine or of any mixture containing

  6  phencyclidine, as described in s. 893.03(2)(b), and who knows

  7  that the probable result of such importation would be the

  8  death of any person commits capital importation of

  9  phencyclidine, a capital felony punishable as provided in ss.

10  775.082 and 921.142. Any person sentenced for a capital felony

11  under this paragraph shall also be sentenced to pay the

12  maximum fine provided under subparagraph 1.

13         (e)1.  Any person who knowingly sells, purchases,

14  manufactures, delivers, or brings into this state, or who is

15  knowingly in actual or constructive possession of, 200 grams

16  or more of methaqualone or of any mixture containing

17  methaqualone, as described in s. 893.03(1)(d), commits a

18  felony of the first degree, which felony shall be known as

19  "trafficking in methaqualone." If the quantity involved:

20         a.  Is 200 grams or more, but less than 5 kilograms,

21  such person shall be sentenced pursuant to the Criminal

22  Punishment Code and such sentence shall include a mandatory

23  minimum term of imprisonment of 3 years, and the defendant

24  shall be ordered to pay a fine of $50,000.

25         b.  Is 5 kilograms or more, but less than 25 kilograms,

26  such person shall be sentenced pursuant to the Criminal

27  Punishment Code and such sentence shall include a mandatory

28  minimum term of imprisonment of 7 years, and the defendant

29  shall be ordered to pay a fine of $100,000.

30         c.  Is 25 kilograms or more, but less than 50

31  kilograms, such person shall be sentenced to a mandatory


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                                        CS/HB 121, Third Engrossed



  1  minimum term of imprisonment of 15 calendar years and pay a

  2  fine of $250,000.

  3         2.  Any person who knowingly brings into this state 50

  4  kilograms or more of methaqualone or of any mixture containing

  5  methaqualone, as described in s. 893.03(1)(d), and who knows

  6  that the probable result of such importation would be the

  7  death of any person commits capital importation of

  8  methaqualone, a capital felony punishable as provided in ss.

  9  775.082 and 921.142. Any person sentenced for a capital felony

10  under this paragraph shall also be sentenced to pay the

11  maximum fine provided under subparagraph 1.

12         (f)1.  Any person who knowingly sells, purchases,

13  manufactures, delivers, or brings into this state, or who is

14  knowingly in actual or constructive possession of, 14 grams or

15  more of amphetamine, as described in s. 893.03(2)(c)2., or

16  methamphetamine, as described in s. 893.03(2)(c)4., or of any

17  mixture containing amphetamine or methamphetamine, or

18  phenylacetone, phenylacetic acid, or ephedrine in conjunction

19  with other chemicals and equipment utilized in the manufacture

20  of amphetamine or methamphetamine, commits a felony of the

21  first degree, which felony shall be known as "trafficking in

22  amphetamine."  If the quantity involved:

23         a.  Is 14 grams or more, but less than 28 grams, such

24  person shall be sentenced pursuant to the Criminal Punishment

25  Code and such sentence shall include a mandatory minimum term

26  of imprisonment of 3 years, and the defendant shall be ordered

27  to pay a fine of $50,000.

28         b.  Is 28 grams or more, but less than 200 grams, such

29  person shall be sentenced pursuant to the Criminal Punishment

30  Code and such sentence shall include a mandatory minimum term

31


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                                        CS/HB 121, Third Engrossed



  1  of imprisonment of 7 years and the defendant shall be ordered

  2  to pay a fine of $100,000.

  3         c.  Is 200 grams or more, but less than 400 grams, such

  4  person shall be sentenced to a mandatory minimum term of

  5  imprisonment of 15 calendar years and pay a fine of $250,000.

  6         2.  Any person who knowingly brings into this state 400

  7  grams or more of amphetamine, as described in s.

  8  893.03(2)(c)2., or methamphetamine, as described in s.

  9  893.03(2)(c)4., or of any mixture containing amphetamine or

10  methamphetamine, or phenylacetone, phenylacetic acid, or

11  ephedrine in conjunction with other chemicals and equipment

12  utilized in the manufacture of amphetamine or methamphetamine,

13  and who knows that the probable result of such importation

14  would be the death of any person commits capital importation

15  of amphetamine, a capital felony punishable as provided in ss.

16  775.082 and 921.142. Any person sentenced for a capital felony

17  under this paragraph shall also be sentenced to pay the

18  maximum fine provided under subparagraph 1.

19         (g)1.  Any person who knowingly sells, purchases,

20  manufactures, delivers, or brings into this state, or who is

21  knowingly in actual or constructive possession of, 4 grams or

22  more of flunitrazepam or any mixture containing flunitrazepam

23  as described in s. 893.03(1)(a) commits a felony of the first

24  degree, which felony shall be known as "trafficking in

25  flunitrazepam."  If the quantity involved:

26         a.  Is 4 grams or more but less than 14 grams, such

27  person shall be sentenced pursuant to the Criminal Punishment

28  Code and such sentence shall include a mandatory minimum term

29  of imprisonment of 3 years and the defendant shall be ordered

30  to sentencing guidelines and pay a fine of $50,000.

31


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                                        CS/HB 121, Third Engrossed



  1         b.  Is 14 grams or more but less than 28 grams, such

  2  person shall be sentenced pursuant to the Criminal Punishment

  3  Code and such sentence shall include a mandatory minimum term

  4  of imprisonment of 7 years, and the defendant shall be ordered

  5  to sentencing guidelines and pay a fine of $100,000.

  6         c.  Is 28 grams or more but less than 30 kilograms,

  7  such person shall be sentenced to a mandatory minimum term of

  8  imprisonment of 25 calendar years and pay a fine of $500,000.

  9         2.  Any person who knowingly sells, purchases,

10  manufactures, delivers, or brings into this state or who is

11  knowingly in actual or constructive possession of 30 kilograms

12  or more of flunitrazepam or any mixture containing

13  flunitrazepam as described in s. 893.03(1)(a) commits the

14  first degree felony of trafficking in flunitrazepam.  A person

15  who has been convicted of the first degree felony of

16  trafficking in flunitrazepam under this subparagraph shall be

17  punished by life imprisonment and is ineligible for any form

18  of discretionary early release except pardon or executive

19  clemency or conditional medical release under s. 947.149.

20  However, if the court determines that, in addition to

21  committing any act specified in this paragraph:

22         a.  The person intentionally killed an individual or

23  counseled, commanded, induced, procured, or caused the

24  intentional killing of an individual and such killing was the

25  result; or

26         b.  The person's conduct in committing that act led to

27  a natural, though not inevitable, lethal result,

28

29  such person commits the capital felony of trafficking in

30  flunitrazepam, punishable as provided in ss. 775.082 and

31  921.142.  Any person sentenced for a capital felony under this


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                                        CS/HB 121, Third Engrossed



  1  paragraph shall also be sentenced to pay the maximum fine

  2  provided under subparagraph 1.

  3         (2)  A person acts knowingly under subsection (1) if

  4  that person intends to sell, purchase, manufacture, deliver,

  5  or bring into this state, or to actually or constructively

  6  possess, any of the controlled substances listed in subsection

  7  (1), regardless of which controlled substance listed in

  8  subsection (1) is in fact sold, purchased, manufactured,

  9  delivered, or brought into this state, or actually or

10  constructively possessed.

11         (3)  Notwithstanding the provisions of s. 948.01, with

12  respect to any person who is found to have violated this

13  section, adjudication of guilt or imposition of sentence shall

14  not be suspended, deferred, or withheld, nor shall such person

15  be eligible for parole prior to serving the mandatory minimum

16  term of imprisonment prescribed by this section. A person

17  sentenced to a mandatory minimum term of imprisonment under

18  this section is not eligible for any form of discretionary

19  early release, except pardon or executive clemency or

20  conditional medical release under s. 947.149, prior to serving

21  the mandatory minimum term of imprisonment.

22         (4)  The state attorney may move the sentencing court

23  to reduce or suspend the sentence of any person who is

24  convicted of a violation of this section and who provides

25  substantial assistance in the identification, arrest, or

26  conviction of any of that person's accomplices, accessories,

27  coconspirators, or principals or of any other person engaged

28  in trafficking in controlled substances.  The arresting agency

29  shall be given an opportunity to be heard in aggravation or

30  mitigation in reference to any such motion.  Upon good cause

31  shown, the motion may be filed and heard in camera.  The judge


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                                        CS/HB 121, Third Engrossed



  1  hearing the motion may reduce or suspend the sentence if the

  2  judge finds that the defendant rendered such substantial

  3  assistance.

  4         (5)  Any person who agrees, conspires, combines, or

  5  confederates with another person to commit any act prohibited

  6  by subsection (1) commits a felony of the first degree and is

  7  punishable as if he or she had actually committed such

  8  prohibited act. Nothing in this subsection shall be construed

  9  to prohibit separate convictions and sentences for a violation

10  of this subsection and any violation of subsection (1).

11         Section 10.  For the purpose of incorporating the

12  amendment to section 893.135, Florida Statutes, in references

13  thereto, the following sections or subdivisions of Florida

14  Statutes, or Florida Statutes, 1998 Supplement, are reenacted

15  to read:

16         397.451  Background checks of service provider

17  personnel who have direct contact with unmarried minor clients

18  or clients who are developmentally disabled.--

19         (7)  DISQUALIFICATION FROM RECEIVING STATE

20  FUNDS.--State funds may not be disseminated to any service

21  provider owned or operated by an owner or director who has

22  been convicted of, has entered a plea of guilty or nolo

23  contendere to, or has had adjudication withheld for, a

24  violation of s. 893.135 pertaining to trafficking in

25  controlled substances, or a violation of the law of another

26  state, the District of Columbia, the United States or any

27  possession or territory thereof, or any foreign jurisdiction

28  which is substantially similar in elements and penalties to a

29  trafficking offense in this state, unless the owner's or

30  director's civil rights have been restored.

31         782.04  Murder.--


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                                        CS/HB 121, Third Engrossed



  1         (4)  The unlawful killing of a human being, when

  2  perpetrated without any design to effect death, by a person

  3  engaged in the perpetration of, or in the attempt to

  4  perpetrate, any felony other than any:

  5         (a)  Trafficking offense prohibited by s. 893.135(1),

  6

  7  is murder in the third degree and constitutes a felony of the

  8  second degree, punishable as provided in s. 775.082, s.

  9  775.083, or s. 775.084.

10         893.1351  Lease or rent for the purpose of trafficking

11  in a controlled substance.--

12         (1)  A person may not lease or rent any place,

13  structure, or part thereof, trailer, or other conveyance, with

14  the knowledge that such place, structure, trailer, or

15  conveyance will be used for the purpose of trafficking in a

16  controlled substance, as provided in s. 893.135, or the sale

17  of a controlled substance, as provided in s. 893.13.

18         903.133  Bail on appeal; prohibited for certain felony

19  convictions.--Notwithstanding the provisions of s. 903.132, no

20  person adjudged guilty of a felony of the first degree for a

21  violation of s. 782.04(2) or (3), s. 787.01, s. 794.011(4), s.

22  806.01, s. 893.13, or s. 893.135, or adjudged guilty of a

23  violation of s. 794.011(2) or (3), shall be admitted to bail

24  pending review either by posttrial motion or appeal.

25         907.041  Pretrial detention and release.--

26         (4)  PRETRIAL DETENTION.--

27         (b)  The court may order pretrial detention if it finds

28  a substantial probability, based on a defendant's past and

29  present patterns of behavior, the criteria in s. 903.046, and

30  any other relevant facts, that:

31


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                                        CS/HB 121, Third Engrossed



  1         1.  The defendant has previously violated conditions of

  2  release and that no further conditions of release are

  3  reasonably likely to assure the defendant's appearance at

  4  subsequent proceedings;

  5         2.  The defendant, with the intent to obstruct the

  6  judicial process, has threatened, intimidated, or injured any

  7  victim, potential witness, juror, or judicial officer, or has

  8  attempted or conspired to do so, and that no condition of

  9  release will reasonably prevent the obstruction of the

10  judicial process;

11         3.  The defendant is charged with trafficking in

12  controlled substances as defined by s. 893.135, that there is

13  a substantial probability that the defendant has committed the

14  offense, and that no conditions of release will reasonably

15  assure the defendant's appearance at subsequent criminal

16  proceedings; or

17         4.  The defendant poses the threat of harm to the

18  community.  The court may so conclude if it finds that the

19  defendant is presently charged with a dangerous crime, that

20  there is a substantial probability that the defendant

21  committed such crime, that the factual circumstances of the

22  crime indicate a disregard for the safety of the community,

23  and that there are no conditions of release reasonably

24  sufficient to protect the community from the risk of physical

25  harm to persons. In addition, the court must find that at

26  least one of the following conditions is present:

27         a.  The defendant has previously been convicted of a

28  crime punishable by death or life imprisonment.

29         b.  The defendant has been convicted of a dangerous

30  crime within the 10 years immediately preceding the date of

31  his or her arrest for the crime presently charged.


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                                        CS/HB 121, Third Engrossed



  1         c.  The defendant is on probation, parole, or other

  2  release pending completion of sentence or on pretrial release

  3  for a dangerous crime at the time of the current arrest.

  4         921.0022  Criminal Punishment Code; offense severity

  5  ranking chart.--

  6         (3)  OFFENSE SEVERITY RANKING CHART

  7

  8  Florida           Felony

  9  Statute           Degree             Description

10

11                              (g)  LEVEL 7

12  316.193(3)(c)2.    3rd      DUI resulting in serious bodily

13                              injury.

14  327.35(3)(c)2.     3rd      Vessel BUI resulting in serious

15                              bodily injury.

16  409.920(2)         3rd      Medicaid provider fraud.

17  494.0018(2)        1st      Conviction of any violation of

18                              ss. 494.001-494.0077 in which the

19                              total money and property

20                              unlawfully obtained exceeded

21                              $50,000 and there were five or

22                              more victims.

23  782.051(3)         2nd      Attempted felony murder of a

24                              person by a person other than the

25                              perpetrator or the perpetrator of

26                              an attempted felony.

27  782.07(1)          2nd      Killing of a human being by the

28                              act, procurement, or culpable

29                              negligence of another

30                              (manslaughter).

31


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                                        CS/HB 121, Third Engrossed



  1  782.071            3rd      Killing of human being or viable

  2                              fetus by the operation of a motor

  3                              vehicle in a reckless manner

  4                              (vehicular homicide).

  5  782.072            3rd      Killing of a human being by the

  6                              operation of a vessel in a

  7                              reckless manner (vessel

  8                              homicide).

  9  784.045(1)(a)1.    2nd      Aggravated battery; intentionally

10                              causing great bodily harm or

11                              disfigurement.

12  784.045(1)(a)2.    2nd      Aggravated battery; using deadly

13                              weapon.

14  784.045(1)(b)      2nd      Aggravated battery; perpetrator

15                              aware victim pregnant.

16  784.048(4)         3rd      Aggravated stalking; violation of

17                              injunction or court order.

18  784.07(2)(d)       1st      Aggravated battery on law

19                              enforcement officer.

20  784.08(2)(a)       1st      Aggravated battery on a person 65

21                              years of age or older.

22  784.081(1)         1st      Aggravated battery on specified

23                              official or employee.

24  784.082(1)         1st      Aggravated battery by detained

25                              person on visitor or other

26                              detainee.

27  784.083(1)         1st      Aggravated battery on code

28                              inspector.

29  790.07(4)          1st      Specified weapons violation

30                              subsequent to previous conviction

31                              of s. 790.07(1) or (2).


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                                        CS/HB 121, Third Engrossed



  1  790.16(1)          1st      Discharge of a machine gun under

  2                              specified circumstances.

  3  796.03             2nd      Procuring any person under 16

  4                              years for prostitution.

  5  800.04             2nd      Handle, fondle, or assault child

  6                              under 16 years in lewd,

  7                              lascivious, or indecent manner.

  8  806.01(2)          2nd      Maliciously damage structure by

  9                              fire or explosive.

10  810.02(3)(a)       2nd      Burglary of occupied dwelling;

11                              unarmed; no assault or battery.

12  810.02(3)(b)       2nd      Burglary of unoccupied dwelling;

13                              unarmed; no assault or battery.

14  810.02(3)(d)       2nd      Burglary of occupied conveyance;

15                              unarmed; no assault or battery.

16  812.014(2)(a)      1st      Property stolen, valued at

17                              $100,000 or more; property stolen

18                              while causing other property

19                              damage; 1st degree grand theft.

20  812.019(2)         1st      Stolen property; initiates,

21                              organizes, plans, etc., the theft

22                              of property and traffics in

23                              stolen property.

24  812.133(2)(b)      1st      Carjacking; no firearm, deadly

25                              weapon, or other weapon.

26  825.102(3)(b)      2nd      Neglecting an elderly person or

27                              disabled adult causing great

28                              bodily harm, disability, or

29                              disfigurement.

30

31


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                                        CS/HB 121, Third Engrossed



  1  825.1025(2)        2nd      Lewd or lascivious battery upon

  2                              an elderly person or disabled

  3                              adult.

  4  825.103(2)(b)      2nd      Exploiting an elderly person or

  5                              disabled adult and property is

  6                              valued at $20,000 or more, but

  7                              less than $100,000.

  8  827.03(3)(b)       2nd      Neglect of a child causing great

  9                              bodily harm, disability, or

10                              disfigurement.

11  827.04(4)          3rd      Impregnation of a child under 16

12                              years of age by person 21 years

13                              of age or older.

14  837.05(2)          3rd      Giving false information about

15                              alleged capital felony to a law

16                              enforcement officer.

17  872.06             2nd      Abuse of a dead human body.

18  893.13(1)(c)1.     1st      Sell, manufacture, or deliver

19                              cocaine (or other drug prohibited

20                              under s. 893.03(1)(a), (1)(b),

21                              (1)(d), (2)(a), or (2)(b)) within

22                              1,000 feet of a child care

23                              facility or school.

24  893.13(1)(e)       1st      Sell, manufacture, or deliver

25                              cocaine or other drug prohibited

26                              under s. 893.03(1)(a), (1)(b),

27                              (1)(d), (2)(a), or (2)(b), within

28                              1,000 feet of property used for

29                              religious services or a specified

30                              business site.

31


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                                        CS/HB 121, Third Engrossed



  1  893.13(4)(a)       1st      Deliver to minor cocaine (or

  2                              other s. 893.03(1)(a), (1)(b),

  3                              (1)(d), (2)(a), or (2)(b) drugs).

  4  893.135(1)(a)1.    1st      Trafficking in cannabis, more

  5                              than 50 lbs., less than 2,000

  6                              lbs.

  7  893.135

  8   (1)(b)1.a.        1st      Trafficking in cocaine, more than

  9                              28 grams, less than 200 grams.

10  893.135

11   (1)(c)1.a.        1st      Trafficking in illegal drugs,

12                              more than 4 grams, less than 14

13                              grams.

14  893.135

15   (1)(d)1.          1st      Trafficking in phencyclidine,

16                              more than 28 grams, less than 200

17                              grams.

18  893.135(1)(e)1.    1st      Trafficking in methaqualone, more

19                              than 200 grams, less than 5

20                              kilograms.

21  893.135(1)(f)1.    1st      Trafficking in amphetamine, more

22                              than 14 grams, less than 28

23                              grams.

24  893.135

25   (1)(g)1.a.        1st      Trafficking in flunitrazepam, 4

26                              grams or more, less than 14

27                              grams.

28                              (h)  LEVEL 8

29  316.193

30   (3)(c)3.a.        2nd      DUI manslaughter.

31  327.35(3)(c)3.     2nd      Vessel BUI manslaughter.


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                                        CS/HB 121, Third Engrossed



  1  777.03(2)(a)       1st      Accessory after the fact, capital

  2                              felony.

  3  782.04(4)          2nd      Killing of human without design

  4                              when engaged in act or attempt of

  5                              any felony other than arson,

  6                              sexual battery, robbery,

  7                              burglary, kidnapping, aircraft

  8                              piracy, or unlawfully discharging

  9                              bomb.

10  782.051(2)         1st      Attempted felony murder while

11                              perpetrating or attempting to

12                              perpetrate a felony not

13                              enumerated in s. 782.04(3).

14  782.071(2)         2nd      Committing vehicular homicide and

15                              failing to render aid or give

16                              information.

17  782.072(2)         2nd      Committing vessel homicide and

18                              failing to render aid or give

19                              information.

20  790.161(3)         1st      Discharging a destructive device

21                              which results in bodily harm or

22                              property damage.

23  794.011(5)         2nd      Sexual battery, victim 12 years

24                              or over, offender does not use

25                              physical force likely to cause

26                              serious injury.

27  806.01(1)          1st      Maliciously damage dwelling or

28                              structure by fire or explosive,

29                              believing person in structure.

30  810.02(2)(a)       1st,PBL  Burglary with assault or battery.

31


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                                        CS/HB 121, Third Engrossed



  1  810.02(2)(b)       1st,PBL  Burglary; armed with explosives

  2                              or dangerous weapon.

  3  810.02(2)(c)       1st      Burglary of a dwelling or

  4                              structure causing structural

  5                              damage or $1,000 or more property

  6                              damage.

  7  812.13(2)(b)       1st      Robbery with a weapon.

  8  812.135(2)         1st      Home-invasion robbery.

  9  825.102(2)         2nd      Aggravated abuse of an elderly

10                              person or disabled adult.

11  825.103(2)(a)      1st      Exploiting an elderly person or

12                              disabled adult and property is

13                              valued at $100,000 or more.

14  827.03(2)          2nd      Aggravated child abuse.

15  837.02(2)          2nd      Perjury in official proceedings

16                              relating to prosecution of a

17                              capital felony.

18  837.021(2)         2nd      Making contradictory statements

19                              in official proceedings relating

20                              to prosecution of a capital

21                              felony.

22  860.121(2)(c)      1st      Shooting at or throwing any

23                              object in path of railroad

24                              vehicle resulting in great bodily

25                              harm.

26  860.16             1st      Aircraft piracy.

27  893.13(1)(b)       1st      Sell or deliver in excess of 10

28                              grams of any substance specified

29                              in s. 893.03(1)(a) or (b).

30

31


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                                        CS/HB 121, Third Engrossed



  1  893.13(2)(b)       1st      Purchase in excess of 10 grams of

  2                              any substance specified in s.

  3                              893.03(1)(a) or (b).

  4  893.13(6)(c)       1st      Possess in excess of 10 grams of

  5                              any substance specified in s.

  6                              893.03(1)(a) or (b).

  7  893.135(1)(a)2.    1st      Trafficking in cannabis, more

  8                              than 2,000 lbs., less than 10,000

  9                              lbs.

10  893.135

11   (1)(b)1.b.        1st      Trafficking in cocaine, more than

12                              200 grams, less than 400 grams.

13  893.135

14   (1)(c)1.b.        1st      Trafficking in illegal drugs,

15                              more than 14 grams, less than 28

16                              grams.

17  893.135

18   (1)(d)1.b.        1st      Trafficking in phencyclidine,

19                              more than 200 grams, less than

20                              400 grams.

21  893.135

22   (1)(e)1.b.        1st      Trafficking in methaqualone, more

23                              than 5 kilograms, less than 25

24                              kilograms.

25  893.135

26   (1)(f)1.b.        1st      Trafficking in amphetamine, more

27                              than 28 grams, less than 200

28                              grams.

29

30

31


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                                        CS/HB 121, Third Engrossed



  1  893.135

  2  (1)(g)1.b.         1st      Trafficking in flunitrazepam, 14

  3                              grams or more, less than 28

  4                              grams.

  5  895.03(1)          1st      Use or invest proceeds derived

  6                              from pattern of racketeering

  7                              activity.

  8  895.03(2)          1st      Acquire or maintain through

  9                              racketeering activity any

10                              interest in or control of any

11                              enterprise or real property.

12  895.03(3)          1st      Conduct or participate in any

13                              enterprise through pattern of

14                              racketeering activity.

15                              (i)  LEVEL 9

16  316.193

17   (3)(c)3.b.        1st      DUI manslaughter; failing to

18                              render aid or give information.

19  782.04(1)          1st      Attempt, conspire, or solicit to

20                              commit premeditated murder.

21  782.04(3)          1st,PBL   Accomplice to murder in

22                              connection with arson, sexual

23                              battery, robbery, burglary, and

24                              other specified felonies.

25  782.051(1)         1st      Attempted felony murder while

26                              perpetrating or attempting to

27                              perpetrate a felony enumerated in

28                              s. 782.04(3).

29  782.07(2)          1st      Aggravated manslaughter of an

30                              elderly person or disabled adult.

31


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                                        CS/HB 121, Third Engrossed



  1  782.07(3)          1st      Aggravated manslaughter of a

  2                              child.

  3  787.01(1)(a)1.     1st,PBL  Kidnapping; hold for ransom or

  4                              reward or as a shield or hostage.

  5  787.01(1)(a)2.     1st,PBL  Kidnapping with intent to commit

  6                              or facilitate commission of any

  7                              felony.

  8  787.01(1)(a)4.     1st,PBL  Kidnapping with intent to

  9                              interfere with performance of any

10                              governmental or political

11                              function.

12  787.02(3)(a)       1st      False imprisonment; child under

13                              age 13; perpetrator also commits

14                              child abuse, sexual battery,

15                              lewd, or lascivious act, etc.

16  790.161            1st      Attempted capital destructive

17                              device offense.

18  794.011(2)         1st      Attempted sexual battery; victim

19                              less than 12 years of age.

20  794.011(2)         Life     Sexual battery; offender younger

21                              than 18 years and commits sexual

22                              battery on a person less than 12

23                              years.

24  794.011(4)         1st      Sexual battery; victim 12 years

25                              or older, certain circumstances.

26  794.011(8)(b)      1st      Sexual battery; engage in sexual

27                              conduct with minor 12 to 18 years

28                              by person in familial or

29                              custodial authority.

30  812.13(2)(a)       1st,PBL  Robbery with firearm or other

31                              deadly weapon.


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                                        CS/HB 121, Third Engrossed



  1  812.133(2)(a)      1st,PBL  Carjacking; firearm or other

  2                              deadly weapon.

  3  847.0145(1)        1st      Selling, or otherwise

  4                              transferring custody or control,

  5                              of a minor.

  6  847.0145(2)        1st      Purchasing, or otherwise

  7                              obtaining custody or control, of

  8                              a minor.

  9  859.01             1st      Poisoning food, drink, medicine,

10                              or water with intent to kill or

11                              injure another person.

12  893.135            1st      Attempted capital trafficking

13                              offense.

14  893.135(1)(a)3.    1st      Trafficking in cannabis, more

15                              than 10,000 lbs.

16  893.135

17   (1)(b)1.c.        1st      Trafficking in cocaine, more than

18                              400 grams, less than 150

19                              kilograms.

20  893.135

21   (1)(c)1.c.        1st      Trafficking in illegal drugs,

22                              more than 28 grams, less than 30

23                              kilograms.

24  893.135

25   (1)(d)1.c.        1st      Trafficking in phencyclidine,

26                              more than 400 grams.

27  893.135

28   (1)(e)1.c.        1st      Trafficking in methaqualone, more

29                              than 25 kilograms.

30

31


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                                        CS/HB 121, Third Engrossed



  1  893.135

  2   (1)(f)1.c.        1st      Trafficking in amphetamine, more

  3                              than 200 grams.

  4                              (j)  LEVEL 10

  5  782.04(2)          1st,PBL  Unlawful killing of human; act is

  6                              homicide, unpremeditated.

  7  787.01(1)(a)3.     1st,PBL  Kidnapping; inflict bodily harm

  8                              upon or terrorize victim.

  9  787.01(3)(a)       Life     Kidnapping; child under age 13,

10                              perpetrator also commits child

11                              abuse, sexual battery, lewd, or

12                              lascivious act, etc.

13  794.011(3)         Life     Sexual battery; victim 12 years

14                              or older, offender uses or

15                              threatens to use deadly weapon or

16                              physical force to cause serious

17                              injury.

18  876.32             1st      Treason against the state.

19         921.0024  Criminal Punishment Code; worksheet

20  computations; scoresheets.--

21         (1)

22                       (b)  WORKSHEET KEY:

23

24  Legal status points are assessed when any form of legal status

25  existed at the time the offender committed an offense before

26  the court for sentencing. Four (4) sentence points are

27  assessed for an offender's legal status.

28

29  Community sanction violation points are assessed when a

30  community sanction violation is before the court for

31  sentencing.  Six (6) sentence points are assessed for each


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                                        CS/HB 121, Third Engrossed



  1  community sanction violation, and each successive community

  2  sanction violation; however, if the community sanction

  3  violation includes a new felony conviction before the

  4  sentencing court, twelve (12) community sanction violation

  5  points are assessed for such violation, and for each

  6  successive community sanction violation involving a new felony

  7  conviction. Multiple counts of community sanction violations

  8  before the sentencing court shall not be a basis for

  9  multiplying the assessment of community sanction violation

10  points.

11

12  Prior serious felony points: If the offender has a primary

13  offense or any additional offense ranked in level 8, level 9,

14  or level 10, and one or more prior serious felonies, a single

15  assessment of 30 points shall be added. For purposes of this

16  section, a prior serious felony is an offense in the

17  offender's prior record that is ranked in level 8, level 9, or

18  level 10 under s. 921.0022 or s. 921.0023 and for which the

19  offender is serving a sentence of confinement, supervision, or

20  other sanction or for which the offender's date of release

21  from confinement, supervision, or other sanction, whichever is

22  later, is within 3 years before the date the primary offense

23  or any additional offense was committed.

24

25  Prior capital felony points:  If the offender has one or more

26  prior capital felonies in the offender's criminal record,

27  points shall be added to the subtotal sentence points of the

28  offender equal to twice the number of points the offender

29  receives for the primary offense and any additional offense.

30  A prior capital felony in the offender's criminal record is a

31  previous capital felony offense for which the offender has


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                                        CS/HB 121, Third Engrossed



  1  entered a plea of nolo contendere or guilty or has been found

  2  guilty; or a felony in another jurisdiction which is a capital

  3  felony in that jurisdiction, or would be a capital felony if

  4  the offense were committed in this state.

  5

  6  Possession of a firearm, semiautomatic firearm, or machine

  7  gun:  If the offender is convicted of committing or attempting

  8  to commit any felony other than those enumerated in s.

  9  775.087(2) while having in his possession: a firearm as

10  defined in s. 790.001(6), an additional 18 sentence points are

11  assessed; or if the offender is convicted of committing or

12  attempting to commit any felony other than those enumerated in

13  s. 775.087(3) while having in his possession a semiautomatic

14  firearm as defined in s. 775.087(3) or a machine gun as

15  defined in s. 790.001(9), an additional 25 sentence points are

16  assessed.

17

18  Sentencing multipliers:

19

20  Drug trafficking:  If the primary offense is drug trafficking

21  under s. 893.135, the subtotal sentence points are multiplied,

22  at the discretion of the court, for a level 7 or level 8

23  offense, by 1.5.  The state attorney may move the sentencing

24  court to reduce or suspend the sentence of a person convicted

25  of a level 7 or level 8 offense, if the offender provides

26  substantial assistance as described in s. 893.135(4).

27

28  Law enforcement protection:  If the primary offense is a

29  violation of the Law Enforcement Protection Act under s.

30  775.0823(2), the subtotal sentence points are multiplied by

31  2.5.  If the primary offense is a violation of s. 775.0823(3),


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                                        CS/HB 121, Third Engrossed



  1  (4), (5), (6), (7), or (8), the subtotal sentence points are

  2  multiplied by 2.0. If the primary offense is a violation of s.

  3  784.07(3) or s. 775.0875(1), or of the Law Enforcement

  4  Protection Act under s. 775.0823(9) or (10), the subtotal

  5  sentence points are multiplied by 1.5.

  6

  7  Grand theft of a motor vehicle:  If the primary offense is

  8  grand theft of the third degree involving a motor vehicle and

  9  in the offender's prior record, there are three or more grand

10  thefts of the third degree involving a motor vehicle, the

11  subtotal sentence points are multiplied by 1.5.

12

13  Criminal street gang member:  If the offender is convicted of

14  the primary offense and is found to have been a member of a

15  criminal street gang at the time of the commission of the

16  primary offense pursuant to s. 874.04, the subtotal sentence

17  points are multiplied by 1.5.

18

19  Domestic violence in the presence of a child:  If the offender

20  is convicted of the primary offense and the primary offense is

21  a crime of domestic violence, as defined in s. 741.28, which

22  was committed in the presence of a child under 16 years of age

23  who is a family household member as defined in s. 741.28(2)

24  with the victim or perpetrator, the subtotal sentence points

25  are multiplied, at the discretion of the court, by 1.5.

26         921.142  Sentence of death or life imprisonment for

27  capital drug trafficking felonies; further proceedings to

28  determine sentence.--

29         (2)  SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.--Upon

30  conviction or adjudication of guilt of a defendant of a

31  capital felony under s. 893.135, the court shall conduct a


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                                        CS/HB 121, Third Engrossed



  1  separate sentencing proceeding to determine whether the

  2  defendant should be sentenced to death or life imprisonment as

  3  authorized by s. 775.082.  The proceeding shall be conducted

  4  by the trial judge before the trial jury as soon as

  5  practicable.  If, through impossibility or inability, the

  6  trial jury is unable to reconvene for a hearing on the issue

  7  of penalty, having determined the guilt of the accused, the

  8  trial judge may summon a special juror or jurors as provided

  9  in chapter 913 to determine the issue of the imposition of the

10  penalty.  If the trial jury has been waived, or if the

11  defendant pleaded guilty, the sentencing proceeding shall be

12  conducted before a jury impaneled for that purpose, unless

13  waived by the defendant.  In the proceeding, evidence may be

14  presented as to any matter that the court deems relevant to

15  the nature of the crime and the character of the defendant and

16  shall include matters relating to any of the aggravating or

17  mitigating circumstances enumerated in subsections (6) and

18  (7).  Any such evidence which the court deems to have

19  probative value may be received, regardless of its

20  admissibility under the exclusionary rules of evidence,

21  provided the defendant is accorded a fair opportunity to rebut

22  any hearsay statements.  However, this subsection shall not be

23  construed to authorize the introduction of any evidence

24  secured in violation of the Constitution of the United States

25  or the Constitution of the State of Florida. The state and the

26  defendant or the defendant's counsel shall be permitted to

27  present argument for or against sentence of death.

28         943.0585  Court-ordered expunction of criminal history

29  records.--The courts of this state have jurisdiction over

30  their own procedures, including the maintenance, expunction,

31  and correction of judicial records containing criminal history


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                                        CS/HB 121, Third Engrossed



  1  information to the extent such procedures are not inconsistent

  2  with the conditions, responsibilities, and duties established

  3  by this section.  Any court of competent jurisdiction may

  4  order a criminal justice agency to expunge the criminal

  5  history record of a minor or an adult who complies with the

  6  requirements of this section.  The court shall not order a

  7  criminal justice agency to expunge a criminal history record

  8  until the person seeking to expunge a criminal history record

  9  has applied for and received a certificate of eligibility for

10  expunction pursuant to subsection (2).  A criminal history

11  record that relates to a violation of chapter 794, s. 800.04,

12  s. 817.034, s. 827.071, chapter 839, s. 893.135, or a

13  violation enumerated in s. 907.041 may not be expunged,

14  without regard to whether adjudication was withheld, if the

15  defendant was found guilty of or pled guilty or nolo

16  contendere to the offense, or if the defendant, as a minor,

17  was found to have committed, or pled guilty or nolo contendere

18  to committing, the offense as a delinquent act. The court may

19  only order expunction of a criminal history record pertaining

20  to one arrest or one incident of alleged criminal activity,

21  except as provided in this section. The court may, at its sole

22  discretion, order the expunction of a criminal history record

23  pertaining to more than one arrest if the additional arrests

24  directly relate to the original arrest. If the court intends

25  to order the expunction of records pertaining to such

26  additional arrests, such intent must be specified in the

27  order. A criminal justice agency may not expunge any record

28  pertaining to such additional arrests if the order to expunge

29  does not articulate the intention of the court to expunge a

30  record pertaining to more than one arrest. This section does

31  not prevent the court from ordering the expunction of only a


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                                        CS/HB 121, Third Engrossed



  1  portion of a criminal history record pertaining to one arrest

  2  or one incident of alleged criminal activity.  Notwithstanding

  3  any law to the contrary, a criminal justice agency may comply

  4  with laws, court orders, and official requests of other

  5  jurisdictions relating to expunction, correction, or

  6  confidential handling of criminal history records or

  7  information derived therefrom.  This section does not confer

  8  any right to the expunction of any criminal history record,

  9  and any request for expunction of a criminal history record

10  may be denied at the sole discretion of the court.

11         (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY

12  RECORD.--Each petition to a court to expunge a criminal

13  history record is complete only when accompanied by:

14         (a)  A certificate of eligibility for expunction issued

15  by the department pursuant to subsection (2).

16         (b)  The petitioner's sworn statement attesting that

17  the petitioner:

18         1.  Has never previously been adjudicated guilty of a

19  criminal offense or comparable ordinance violation or

20  adjudicated delinquent for committing a felony or a

21  misdemeanor specified in s. 943.051(3)(b).

22         2.  Has not been adjudicated guilty of, or adjudicated

23  delinquent for committing, any of the acts stemming from the

24  arrest or alleged criminal activity to which the petition

25  pertains.

26         3.  Has never secured a prior sealing or expunction of

27  a criminal history record under this section, former s.

28  893.14, former s. 901.33, or former s. 943.058, or from any

29  jurisdiction outside the state.

30         4.  Is eligible for such an expunction to the best of

31  his or her knowledge or belief and does not have any other


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                                        CS/HB 121, Third Engrossed



  1  petition to expunge or any petition to seal pending before any

  2  court.

  3

  4  Any person who knowingly provides false information on such

  5  sworn statement to the court commits a felony of the third

  6  degree, punishable as provided in s. 775.082, s. 775.083, or

  7  s. 775.084.

  8         (2)  CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior

  9  to petitioning the court to expunge a criminal history record,

10  a person seeking to expunge a criminal history record shall

11  apply to the department for a certificate of eligibility for

12  expunction. The department shall, by rule adopted pursuant to

13  chapter 120, establish procedures pertaining to the

14  application for and issuance of certificates of eligibility

15  for expunction. The department shall issue a certificate of

16  eligibility for expunction to a person who is the subject of a

17  criminal history record if that person:

18         (a)  Has obtained, and submitted to the department, a

19  written, certified statement from the appropriate state

20  attorney or statewide prosecutor which indicates:

21         1.  That an indictment, information, or other charging

22  document was not filed or issued in the case.

23         2.  That an indictment, information, or other charging

24  document, if filed or issued in the case, was dismissed or

25  nolle prosequi by the state attorney or statewide prosecutor,

26  or was dismissed by a court of competent jurisdiction.

27         3.  That the criminal history record does not relate to

28  a violation of chapter 794, s. 800.04, s. 817.034, s. 827.071,

29  chapter 839, s. 893.135, or a violation enumerated in s.

30  907.041, where the defendant was found guilty of, or pled

31  guilty or nolo contendere to any such offense, or that the


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                                        CS/HB 121, Third Engrossed



  1  defendant, as a minor, was found to have committed, or pled

  2  guilty or nolo contendere to committing, such an offense as a

  3  delinquent act, without regard to whether adjudication was

  4  withheld.

  5         (b)  Remits a $75 processing fee to the department for

  6  placement in the Department of Law Enforcement Operating Trust

  7  Fund, unless such fee is waived by the executive director.

  8         (c)  Has submitted to the department a certified copy

  9  of the disposition of the charge to which the petition to

10  expunge pertains.

11         (d)  Has never previously been adjudicated guilty of a

12  criminal offense or comparable ordinance violation or

13  adjudicated delinquent for committing a felony or a

14  misdemeanor specified in s. 943.051(3)(b).

15         (e)  Has not been adjudicated guilty of, or adjudicated

16  delinquent for committing, any of the acts stemming from the

17  arrest or alleged criminal activity to which the petition to

18  expunge pertains.

19         (f)  Has never secured a prior sealing or expunction of

20  a criminal history record under this section, former s.

21  893.14, former s. 901.33, or former s. 943.058.

22         (g)  Is no longer under court supervision applicable to

23  the disposition of the arrest or alleged criminal activity to

24  which the petition to expunge pertains.

25         (h)  Is not required to wait a minimum of 10 years

26  prior to being eligible for an expunction of such records

27  because all charges related to the arrest or criminal activity

28  to which the petition to expunge pertains were dismissed prior

29  to trial, adjudication, or the withholding of adjudication.

30  Otherwise, such criminal history record must be sealed under

31  this section, former s. 893.14, former s. 901.33, or former s.


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                                        CS/HB 121, Third Engrossed



  1  943.058 for at least 10 years before such record is eligible

  2  for expunction.

  3         (3)  PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--

  4         (a)  In judicial proceedings under this section, a copy

  5  of the completed petition to expunge shall be served upon the

  6  appropriate state attorney or the statewide prosecutor and

  7  upon the arresting agency; however, it is not necessary to

  8  make any agency other than the state a party. The appropriate

  9  state attorney or the statewide prosecutor and the arresting

10  agency may respond to the court regarding the completed

11  petition to expunge.

12         (b)  If relief is granted by the court, the clerk of

13  the court shall certify copies of the order to the appropriate

14  state attorney or the statewide prosecutor and the arresting

15  agency. The arresting agency is responsible for forwarding the

16  order to any other agency to which the arresting agency

17  disseminated the criminal history record information to which

18  the order pertains. The department shall forward the order to

19  expunge to the Federal Bureau of Investigation. The clerk of

20  the court shall certify a copy of the order to any other

21  agency which the records of the court reflect has received the

22  criminal history record from the court.

23         (c)  For an order to expunge entered by a court prior

24  to July 1, 1992, the department shall notify the appropriate

25  state attorney or statewide prosecutor of an order to expunge

26  which is contrary to law because the person who is the subject

27  of the record has previously been convicted of a crime or

28  comparable ordinance violation or has had a prior criminal

29  history record sealed or expunged. Upon receipt of such

30  notice, the appropriate state attorney or statewide prosecutor

31  shall take action, within 60 days, to correct the record and


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                                        CS/HB 121, Third Engrossed



  1  petition the court to void the order to expunge. The

  2  department shall seal the record until such time as the order

  3  is voided by the court.

  4         (d)  On or after July 1, 1992, the department or any

  5  other criminal justice agency is not required to act on an

  6  order to expunge entered by a court when such order does not

  7  comply with the requirements of this section. Upon receipt of

  8  such an order, the department must notify the issuing court,

  9  the appropriate state attorney or statewide prosecutor, the

10  petitioner or the petitioner's attorney, and the arresting

11  agency of the reason for noncompliance. The appropriate state

12  attorney or statewide prosecutor shall take action within 60

13  days to correct the record and petition the court to void the

14  order.  No cause of action, including contempt of court, shall

15  arise against any criminal justice agency for failure to

16  comply with an order to expunge when the petitioner for such

17  order failed to obtain the certificate of eligibility as

18  required by this section or such order does not otherwise

19  comply with the requirements of this section.

20         (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

21  criminal history record of a minor or an adult which is

22  ordered expunged by a court of competent jurisdiction pursuant

23  to this section must be physically destroyed or obliterated by

24  any criminal justice agency having custody of such record;

25  except that any criminal history record in the custody of the

26  department must be retained in all cases. A criminal history

27  record ordered expunged that is retained by the department is

28  confidential and exempt from the provisions of s. 119.07(1)

29  and s. 24(a), Art. I of the State Constitution and not

30  available to any person or entity except upon order of a court

31  of competent jurisdiction. A criminal justice agency may


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                                        CS/HB 121, Third Engrossed



  1  retain a notation indicating compliance with an order to

  2  expunge.

  3         (a)  The person who is the subject of a criminal

  4  history record that is expunged under this section or under

  5  other provisions of law, including former s. 893.14, former s.

  6  901.33, and former s. 943.058, may lawfully deny or fail to

  7  acknowledge the arrests covered by the expunged record, except

  8  when the subject of the record:

  9         1.  Is a candidate for employment with a criminal

10  justice agency;

11         2.  Is a defendant in a criminal prosecution;

12         3.  Concurrently or subsequently petitions for relief

13  under this section or s. 943.059;

14         4.  Is a candidate for admission to The Florida Bar;

15         5.  Is seeking to be employed or licensed by or to

16  contract with the Department of Children and Family Services

17  or the Department of Juvenile Justice or to be employed or

18  used by such contractor or licensee in a sensitive position

19  having direct contact with children, the developmentally

20  disabled, the aged, or the elderly as provided in s.

21  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

22  402.302(8), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

23  415.1075(4), s. 985.407, or chapter 400; or

24         6.  Is seeking to be employed or licensed by the Office

25  of Teacher Education, Certification, Staff Development, and

26  Professional Practices of the Department of Education, any

27  district school board, or any local governmental entity that

28  licenses child care facilities.

29         (b)  Subject to the exceptions in paragraph (a), a

30  person who has been granted an expunction under this section,

31  former s. 893.14, former s. 901.33, or former s. 943.058 may


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                                        CS/HB 121, Third Engrossed



  1  not be held under any provision of law of this state to commit

  2  perjury or to be otherwise liable for giving a false statement

  3  by reason of such person's failure to recite or acknowledge an

  4  expunged criminal history record.

  5         (c)  Information relating to the existence of an

  6  expunged criminal history record which is provided in

  7  accordance with paragraph (a) is confidential and exempt from

  8  the provisions of s. 119.07(1) and s. 24(a), Art. I of the

  9  State Constitution, except that the department shall disclose

10  the existence of a criminal history record ordered expunged to

11  the entities set forth in subparagraphs (a)1., 4., 5., and 6.

12  for their respective licensing and employment purposes, and to

13  criminal justice agencies for their respective criminal

14  justice purposes.  It is unlawful for any employee of an

15  entity set forth in subparagraph (a)1., subparagraph (a)4.,

16  subparagraph (a)5., or subparagraph (a)6. to disclose

17  information relating to the existence of an expunged criminal

18  history record of a person seeking employment or licensure

19  with such entity or contractor, except to the person to whom

20  the criminal history record relates or to persons having

21  direct responsibility for employment or licensure decisions.

22  Any person who violates this paragraph commits a misdemeanor

23  of the first degree, punishable as provided in s. 775.082 or

24  s. 775.083.

25         943.059  Court-ordered sealing of criminal history

26  records.--The courts of this state shall continue to have

27  jurisdiction over their own procedures, including the

28  maintenance, sealing, and correction of judicial records

29  containing criminal history information to the extent such

30  procedures are not inconsistent with the conditions,

31  responsibilities, and duties established by this section.  Any


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                                        CS/HB 121, Third Engrossed



  1  court of competent jurisdiction may order a criminal justice

  2  agency to seal the criminal history record of a minor or an

  3  adult who complies with the requirements of this section.  The

  4  court shall not order a criminal justice agency to seal a

  5  criminal history record until the person seeking to seal a

  6  criminal history record has applied for and received a

  7  certificate of eligibility for sealing pursuant to subsection

  8  (2).  A criminal history record that relates to a violation of

  9  chapter 794, s. 800.04, s. 817.034, s. 827.071, chapter 839,

10  s. 893.135, or a violation enumerated in s. 907.041 may not be

11  sealed, without regard to whether adjudication was withheld,

12  if the defendant was found guilty of or pled guilty or nolo

13  contendere to the offense, or if the defendant, as a minor,

14  was found to have committed or pled guilty or nolo contendere

15  to committing the offense as a delinquent act.  The court may

16  only order sealing of a criminal history record pertaining to

17  one arrest or one incident of alleged criminal activity,

18  except as provided in this section. The court may, at its sole

19  discretion, order the sealing of a criminal history record

20  pertaining to more than one arrest if the additional arrests

21  directly relate to the original arrest.  If the court intends

22  to order the sealing of records pertaining to such additional

23  arrests, such intent must be specified in the order.  A

24  criminal justice agency may not seal any record pertaining to

25  such additional arrests if the order to seal does not

26  articulate the intention of the court to seal records

27  pertaining to more than one arrest.  This section does not

28  prevent the court from ordering the sealing of only a portion

29  of a criminal history record pertaining to one arrest or one

30  incident of alleged criminal activity. Notwithstanding any law

31  to the contrary, a criminal justice agency may comply with


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                                        CS/HB 121, Third Engrossed



  1  laws, court orders, and official requests of other

  2  jurisdictions relating to sealing, correction, or confidential

  3  handling of criminal history records or information derived

  4  therefrom.  This section does not confer any right to the

  5  sealing of any criminal history record, and any request for

  6  sealing a criminal history record may be denied at the sole

  7  discretion of the court.

  8         (1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each

  9  petition to a court to seal a criminal history record is

10  complete only when accompanied by:

11         (a)  A certificate of eligibility for sealing issued by

12  the department pursuant to subsection (2).

13         (b)  The petitioner's sworn statement attesting that

14  the petitioner:

15         1.  Has never previously been adjudicated guilty of a

16  criminal offense or comparable ordinance violation or

17  adjudicated delinquent for committing a felony or a

18  misdemeanor specified in s. 943.051(3)(b).

19         2.  Has not been adjudicated guilty of or adjudicated

20  delinquent for committing any of the acts stemming from the

21  arrest or alleged criminal activity to which the petition to

22  seal pertains.

23         3.  Has never secured a prior sealing or expunction of

24  a criminal history record under this section, former s.

25  893.14, former s. 901.33, former s. 943.058, or from any

26  jurisdiction outside the state.

27         4.  Is eligible for such a sealing to the best of his

28  or her knowledge or belief and does not have any other

29  petition to seal or any petition to expunge pending before any

30  court.

31


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                                        CS/HB 121, Third Engrossed



  1  Any person who knowingly provides false information on such

  2  sworn statement to the court commits a felony of the third

  3  degree, punishable as provided in s. 775.082, s. 775.083, or

  4  s. 775.084.

  5         (2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to

  6  petitioning the court to seal a criminal history record, a

  7  person seeking to seal a criminal history record shall apply

  8  to the department for a certificate of eligibility for

  9  sealing.  The department shall, by rule adopted pursuant to

10  chapter 120, establish procedures pertaining to the

11  application for and issuance of certificates of eligibility

12  for sealing.  The department shall issue a certificate of

13  eligibility for sealing to a person who is the subject of a

14  criminal history record provided that such person:

15         (a)  Has submitted to the department a certified copy

16  of the disposition of the charge to which the petition to seal

17  pertains.

18         (b)  Remits a $75 processing fee to the department for

19  placement in the Department of Law Enforcement Operating Trust

20  Fund, unless such fee is waived by the executive director.

21         (c)  Has never previously been adjudicated guilty of a

22  criminal offense or comparable ordinance violation or

23  adjudicated delinquent for committing a felony or a

24  misdemeanor specified in s. 943.051(3)(b).

25         (d)  Has not been adjudicated guilty of or adjudicated

26  delinquent for committing any of the acts stemming from the

27  arrest or alleged criminal activity to which the petition to

28  seal pertains.

29         (e)  Has never secured a prior sealing or expunction of

30  a criminal history record under this section, former s.

31  893.14, former s. 901.33, or former s. 943.058.


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                                        CS/HB 121, Third Engrossed



  1         (f)  Is no longer under court supervision applicable to

  2  the disposition of the arrest or alleged criminal activity to

  3  which the petition to seal pertains.

  4         (3)  PROCESSING OF A PETITION OR ORDER TO SEAL.--

  5         (a)  In judicial proceedings under this section, a copy

  6  of the completed petition to seal shall be served upon the

  7  appropriate state attorney or the statewide prosecutor and

  8  upon the arresting agency; however, it is not necessary to

  9  make any agency other than the state a party.  The appropriate

10  state attorney or the statewide prosecutor and the arresting

11  agency may respond to the court regarding the completed

12  petition to seal.

13         (b)  If relief is granted by the court, the clerk of

14  the court shall certify copies of the order to the appropriate

15  state attorney or the statewide prosecutor and to the

16  arresting agency. The arresting agency is responsible for

17  forwarding the order to any other agency to which the

18  arresting agency disseminated the criminal history record

19  information to which the order pertains. The department shall

20  forward the order to seal to the Federal Bureau of

21  Investigation. The clerk of the court shall certify a copy of

22  the order to any other agency which the records of the court

23  reflect has received the criminal history record from the

24  court.

25         (c)  For an order to seal entered by a court prior to

26  July 1, 1992, the department shall notify the appropriate

27  state attorney or statewide prosecutor of any order to seal

28  which is contrary to law because the person who is the subject

29  of the record has previously been convicted of a crime or

30  comparable ordinance violation or has had a prior criminal

31  history record sealed or expunged.  Upon receipt of such


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                                        CS/HB 121, Third Engrossed



  1  notice, the appropriate state attorney or statewide prosecutor

  2  shall take action, within 60 days, to correct the record and

  3  petition the court to void the order to seal.  The department

  4  shall seal the record until such time as the order is voided

  5  by the court.

  6         (d)  On or after July 1, 1992, the department or any

  7  other criminal justice agency is not required to act on an

  8  order to seal entered by a court when such order does not

  9  comply with the requirements of this section.  Upon receipt of

10  such an order, the department must notify the issuing court,

11  the appropriate state attorney or statewide prosecutor, the

12  petitioner or the petitioner's attorney, and the arresting

13  agency of the reason for noncompliance. The appropriate state

14  attorney or statewide prosecutor shall take action within 60

15  days to correct the record and petition the court to void the

16  order.  No cause of action, including contempt of court, shall

17  arise against any criminal justice agency for failure to

18  comply with an order to seal when the petitioner for such

19  order failed to obtain the certificate of eligibility as

20  required by this section or when such order does not comply

21  with the requirements of this section.

22         (e)  An order sealing a criminal history record

23  pursuant to this section does not require that such record be

24  surrendered to the court, and such record shall continue to be

25  maintained by the department and other criminal justice

26  agencies.

27         (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A

28  criminal history record of a minor or an adult which is

29  ordered sealed by a court of competent jurisdiction pursuant

30  to this section is confidential and exempt from the provisions

31  of s. 119.07(1) and s. 24(a), Art. I of the State Constitution


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                                        CS/HB 121, Third Engrossed



  1  and is available only to the person who is the subject of the

  2  record, to the subject's attorney, to criminal justice

  3  agencies for their respective criminal justice purposes, or to

  4  those entities set forth in subparagraphs (a)1., 4., 5., and

  5  6. for their respective licensing and employment purposes.

  6         (a)  The subject of a criminal history record sealed

  7  under this section or under other provisions of law, including

  8  former s. 893.14, former s. 901.33, and former s. 943.058, may

  9  lawfully deny or fail to acknowledge the arrests covered by

10  the sealed record, except when the subject of the record:

11         1.  Is a candidate for employment with a criminal

12  justice agency;

13         2.  Is a defendant in a criminal prosecution;

14         3.  Concurrently or subsequently petitions for relief

15  under this section or s. 943.0585;

16         4.  Is a candidate for admission to The Florida Bar;

17         5.  Is seeking to be employed or licensed by or to

18  contract with the Department of Children and Family Services

19  or the Department of Juvenile Justice or to be employed or

20  used by such contractor or licensee in a sensitive position

21  having direct contact with children, the developmentally

22  disabled, the aged, or the elderly as provided in s.

23  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

24  402.302(8), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

25  415.103, s. 985.407, or chapter 400; or

26         6.  Is seeking to be employed or licensed by the Office

27  of Teacher Education, Certification, Staff Development, and

28  Professional Practices of the Department of Education, any

29  district school board, or any local governmental entity which

30  licenses child care facilities.

31


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                                        CS/HB 121, Third Engrossed



  1         (b)  Subject to the exceptions in paragraph (a), a

  2  person who has been granted a sealing under this section,

  3  former s. 893.14, former s. 901.33, or former s. 943.058 may

  4  not be held under any provision of law of this state to commit

  5  perjury or to be otherwise liable for giving a false statement

  6  by reason of such person's failure to recite or acknowledge a

  7  sealed criminal history record.

  8         (c)  Information relating to the existence of a sealed

  9  criminal record provided in accordance with the provisions of

10  paragraph (a) is confidential and exempt from the provisions

11  of s. 119.07(1) and s. 24(a), Art. I of the State

12  Constitution, except that the department shall disclose the

13  sealed criminal history record to the entities set forth in

14  subparagraphs (a)1., 4., 5., and 6. for their respective

15  licensing and employment purposes. It is unlawful for any

16  employee of an entity set forth in subparagraph (a)1.,

17  subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6.

18  to disclose information relating to the existence of a sealed

19  criminal history record of a person seeking employment or

20  licensure with such entity or contractor, except to the person

21  to whom the criminal history record relates or to persons

22  having direct responsibility for employment or licensure

23  decisions.  Any person who violates the provisions of this

24  paragraph commits a misdemeanor of the first degree,

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

26         Section 11.  Section 943.0535, Florida Statutes, is

27  amended to read:

28         943.0535  Aliens, criminal records.--Upon the official

29  request of the United States immigration officer in charge of

30  the territory or district in which is located any court

31  committing an alien, for the conviction of a felony or a


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                                        CS/HB 121, Third Engrossed



  1  misdemeanor, to any state or county institution which is

  2  supported, wholly or in part, by public funds, It shall be the

  3  duty of the clerk of such court to furnish without charge a

  4  certified copy of the complaint, information, or indictment

  5  and the judgment and sentence and any other record pertaining

  6  to the case of any the convicted alien to the United States

  7  immigration officer in charge of the territory or district in

  8  which the court is located in every case in which an alien is

  9  convicted of a felony or misdemeanor or enters a plea of

10  guilty or nolo contendere to any felony or misdemeanor charge.

11  The state attorney shall assist the clerk of the court in

12  determining if a defendant entering a plea or is convicted is

13  an alien.

14         Section 12.  In order to inform the public and to deter

15  and prevent crime in the state, the Executive Office of the

16  Governor shall place public service announcements in visible

17  local media throughout the state explaining the penalties

18  provided in this act.

19         Section 13.  Subsection (3) of section 810.011, Florida

20  Statutes, is amended to read:

21         810.011  Definitions.--As used in this chapter:

22         (3)  "Conveyance" means any motor vehicle, ship,

23  vessel, railroad vehicle or car, trailer, aircraft, or

24  sleeping car; and "to enter a conveyance" includes taking

25  apart any portion of the conveyance.  However, during the time

26  of a state of emergency declared by executive order or

27  proclamation of the Governor under chapter 252 and within the

28  area covered by such executive order or proclamation and for

29  purposes of ss. 810.02 and 810.08 only, the term "conveyance"

30  means a motor vehicle, ship, vessel, railroad vehicle or car,

31


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                                        CS/HB 121, Third Engrossed



  1  trailer, aircraft, or sleeping car or such portions thereof as

  2  exist.

  3         Section 14.  This act shall take effect July 1, 1999.

  4

  5

  6

  7

  8

  9

10

11

12

13

14

15

16

17

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