Senate Bill 1614c1

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    Florida Senate - 1999                           CS for SB 1614

    By the Committee on Criminal Justice and Senator Brown-Waite





    307-1760D-99

  1                      A bill to be entitled

  2         An act relating to sentencing; amending s.

  3         893.135, F.S.; redefining the offense of

  4         trafficking in cannabis; defining the term

  5         "cannabis plant"; providing mandatory minimum

  6         prison terms and mandatory fine amounts for

  7         trafficking in cannabis, cocaine, illegal

  8         drugs, phencyclidine, methaqualone,

  9         amphetamine, or flunitrazepam; providing for

10         sentencing pursuant to the Criminal Punishment

11         Code of offenders convicted of trafficking in

12         specified quantities of cannabis; removing

13         weight caps for various trafficking offenses;

14         providing that an offender who is sentenced to

15         a mandatory minimum term upon conviction of

16         trafficking in specified quantities of

17         cannabis, cocaine, illegal drugs,

18         phencyclidine, methaqualone, amphetamine, or

19         flunitrazepam is not eligible for gain time or

20         certain discretionary early-release mechanisms

21         prior to serving the mandatory minimum

22         sentence; providing exceptions; providing

23         penalties; amending s. 921.0024, F.S., relating

24         to the worksheet computations for the Criminal

25         Punishment Code; revising requirements for the

26         court in applying a sentencing multiplier for

27         drug-trafficking offenses; authorizing state

28         attorneys to reduce or suspend any trafficking

29         offense if substantial assistance is provided;

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

31         prohibition against dissemination of state

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  1         funds to service providers convicted of certain

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

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

  4         or rent for the purpose of trafficking in a

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

  6         relating to the prohibition against bail on

  7         appeal for certain felony convictions, s.

  8         907.041(4)(b), F.S., relating to pretrial

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

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

11         Punishment Code offense severity ranking chart,

12         s. 921.142(2), F.S., relating to sentencing for

13         capital drug trafficking felonies, s. 943.0585,

14         F.S., relating to court-ordered expunction of

15         criminal history records, and s. 943.059, F.S.,

16         relating to court-ordered sealing of criminal

17         history records, to incorporate the amendment

18         in references; providing an effective date.

19

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

21

22         Section 1.  Section 893.135, Florida Statutes, as

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

24  amended to read:

25         893.135  Trafficking; mandatory sentences; suspension

26  or reduction of sentences; conspiracy to engage in

27  trafficking.--

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

29  499 and notwithstanding the provisions of s. 893.13:

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

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

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  1  knowingly in actual or constructive possession of, in excess

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

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

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

  5  cannabis involved:

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

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

  8  2,000 cannabis plants, such person shall be sentenced pursuant

  9  to the Criminal Punishment Code and such sentence shall

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

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

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

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

14  10,000 cannabis plants, such person shall be sentenced

15  pursuant to the Criminal Punishment Code and such sentence

16  shall include a mandatory minimum term of imprisonment of 7

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

18  $50,000.

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

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

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

22  fine of $200,000.

23

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

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

26  has some readily observable evidence of root formation, such

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

28  plant severed from the cannabis plant is itself a cannabis

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

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

31  Callous tissue is not readily observable evidence of root

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

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

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

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

  5  conviction, the court shall impose the longest term of

  6  imprisonment provided for in this paragraph.

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

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

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

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

11  mixture containing cocaine, but less than 150 kilograms of

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

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

14  cocaine."  If the quantity involved:

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

16  person shall be sentenced pursuant to the Criminal Punishment

17  Code and such sentence shall include a mandatory minimum term

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

19  to pay a fine of $50,000.

20         b.  Is 200 grams or more, but less than 400 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 7 years, and the defendant shall be ordered

24  to pay a fine of $100,000.

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

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

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

28         2.  Any person who knowingly sells, purchases,

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

30  knowingly in actual or constructive possession of, 150

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

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

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

  3  convicted of the first degree felony of trafficking in cocaine

  4  under this subparagraph shall be punished by life imprisonment

  5  and is not eligible for any form of gain time under s. 944.275

  6  or ineligible for any form of discretionary early release

  7  except pardon or executive clemency or conditional medical

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

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

10  paragraph:

11         a.  The person intentionally killed an individual or

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

13  intentional killing of an individual and such killing was the

14  result; or

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

16  a natural, though not inevitable, lethal result,

17

18  such person commits the capital felony of trafficking in

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

20  Any person sentenced for a capital felony under this paragraph

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

22  subparagraph 1.

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

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

25  893.03(2)(a)4., and who knows that the probable result of such

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

27  importation of cocaine, a capital felony punishable as

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

29  a capital felony under this paragraph shall also be sentenced

30  to pay the maximum fine provided under subparagraph 1.

31

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

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

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

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

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

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

  7  893.03(1)(b) or (2)(a), or 4 grams or more of any mixture

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

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

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

11  drugs."  If the quantity involved:

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

13  person shall be sentenced pursuant to the Criminal Punishment

14  Code and such sentence shall include a mandatory minimum term

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

16  to pay a fine of $50,000.

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

18  person shall be sentenced pursuant to the Criminal Punishment

19  Code and such sentence shall include a mandatory minimum term

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

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

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

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

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

25         2.  Any person who knowingly sells, purchases,

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

27  knowingly in actual or constructive possession of, 30

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

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

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

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

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

  2  mixture containing any such substance, commits the first

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

  4  has been convicted of the first degree felony of trafficking

  5  in illegal drugs under this subparagraph shall be punished by

  6  life imprisonment and is not eligible for any form of gain

  7  time under s. 944.275 or ineligible for any form of

  8  discretionary early release except pardon or executive

  9  clemency or conditional medical release under s. 947.149.

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

11  committing any act specified in this paragraph:

12         a.  The person intentionally killed an individual or

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

14  intentional killing of an individual and such killing was the

15  result; or

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

17  a natural, though not inevitable, lethal result,

18

19  such person commits the capital felony of trafficking in

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

21  921.142.  Any person sentenced for a capital felony under this

22  paragraph shall also be sentenced to pay the maximum fine

23  provided under subparagraph 1.

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

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

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

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

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

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

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

31  person, commits capital importation of illegal drugs, a

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  1  capital felony punishable as provided in ss. 775.082 and

  2  921.142. Any person sentenced for a capital felony under this

  3  paragraph shall also be sentenced to pay the maximum fine

  4  provided under subparagraph 1.

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

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

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

  8  more of phencyclidine or of any mixture containing

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

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

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

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

13  person shall be sentenced pursuant to the Criminal Punishment

14  Code and such sentence shall include a mandatory minimum term

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

16  to pay a fine of $50,000.

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

18  person shall be sentenced pursuant to the Criminal Punishment

19  Code and such sentence shall include a mandatory minimum term

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

21  to pay a fine of $100,000.

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

23  person shall be sentenced to a mandatory minimum term of

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

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

26  grams or more of phencyclidine or of any mixture containing

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

28  that the probable result of such importation would be the

29  death of any person commits capital importation of

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

31  775.082 and 921.142. Any person sentenced for a capital felony

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  1  under this paragraph shall also be sentenced to pay the

  2  maximum fine provided under subparagraph 1.

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

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

  5  knowingly in actual or constructive possession of, 200 grams

  6  or more of methaqualone or of any mixture containing

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

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

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

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

11  such person shall be sentenced pursuant to the Criminal

12  Punishment Code and such sentence shall include a mandatory

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

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

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

16  such person shall be sentenced pursuant to the Criminal

17  Punishment Code and such sentence shall include a mandatory

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

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

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

21  kilograms, such person shall be sentenced to a mandatory

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

23  fine of $250,000.

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

25  kilograms or more of methaqualone or of any mixture containing

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

27  that the probable result of such importation would be the

28  death of any person commits capital importation of

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

30  775.082 and 921.142. Any person sentenced for a capital felony

31

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  1  under this paragraph shall also be sentenced to pay the

  2  maximum fine provided under subparagraph 1.

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

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

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

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

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

  8  mixture containing amphetamine or methamphetamine, or

  9  phenylacetone, phenylacetic acid, or ephedrine in conjunction

10  with other chemicals and equipment utilized in the manufacture

11  of amphetamine or methamphetamine, commits a felony of the

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

13  amphetamine."  If the quantity involved:

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

15  person shall be sentenced pursuant to the Criminal Punishment

16  Code and such sentence shall include a mandatory minimum term

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

18  to pay a fine of $50,000.

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

20  person shall be sentenced pursuant to the Criminal Punishment

21  Code and such sentence shall include a mandatory minimum term

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

23  to pay a fine of $100,000.

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

25  person shall be sentenced to a mandatory minimum term of

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

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

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

29  893.03(2)(c)2., or methamphetamine, as described in s.

30  893.03(2)(c)4., or of any mixture containing amphetamine or

31  methamphetamine, or phenylacetone, phenylacetic acid, or

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  1  ephedrine in conjunction with other chemicals and equipment

  2  utilized in the manufacture of amphetamine or methamphetamine,

  3  and who knows that the probable result of such importation

  4  would be the death of any person commits capital importation

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

  6  775.082 and 921.142. Any person sentenced for a capital felony

  7  under this paragraph shall also be sentenced to pay the

  8  maximum fine provided under subparagraph 1.

  9         (g)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 flunitrazepam or any mixture containing flunitrazepam

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

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

15  flunitrazepam."  If the quantity involved:

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

17  person shall be sentenced pursuant to the Criminal Punishment

18  Code and such sentence shall include a mandatory minimum term

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

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

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

22  person shall be sentenced pursuant to the Criminal Punishment

23  Code and such sentence shall include a mandatory minimum term

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

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

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

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

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

29         2.  Any person who knowingly sells, purchases,

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

31  knowingly in actual or constructive possession of 30 kilograms

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  1  or more of flunitrazepam or any mixture containing

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

  3  first degree felony of trafficking in flunitrazepam.  A person

  4  who has been convicted of the first degree felony of

  5  trafficking in flunitrazepam under this subparagraph shall be

  6  punished by life imprisonment and is not eligible for any form

  7  of gain time under s. 944.275 or ineligible for any form of

  8  discretionary early release except pardon or executive

  9  clemency or conditional medical release under s. 947.149.

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

11  committing any act specified in this paragraph:

12         a.  The person intentionally killed an individual or

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

14  intentional killing of an individual and such killing was the

15  result; or

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

17  a natural, though not inevitable, lethal result,

18

19  such person commits the capital felony of trafficking in

20  flunitrazepam, punishable as provided in ss. 775.082 and

21  921.142.  Any person sentenced for a capital felony under this

22  paragraph shall also be sentenced to pay the maximum fine

23  provided under subparagraph 1.

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

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

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

27  possess, any of the controlled substances listed in subsection

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

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

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

31  constructively possessed.

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

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

  3  section, adjudication of guilt or imposition of sentence shall

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

  5  be eligible for parole prior to serving the mandatory minimum

  6  term of imprisonment prescribed by this section. A person

  7  sentenced to a mandatory minimum term of imprisonment under

  8  this section is not eligible for any form of gain time under

  9  s. 944.275 or any form of discretionary early release, except

10  pardon or executive clemency or conditional medical release

11  under s. 947.149, prior to serving the mandatory minimum term

12  of imprisonment.

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

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

15  convicted of a violation of this section and who provides

16  substantial assistance in the identification, arrest, or

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

18  coconspirators, or principals or of any other person engaged

19  in trafficking in controlled substances.  The arresting agency

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

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

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

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

24  judge finds that the defendant rendered such substantial

25  assistance.

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

27  confederates with another person to commit any act prohibited

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

29  punishable as if he or she had actually committed such

30  prohibited act. Nothing in this subsection shall be construed

31

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  1  to prohibit separate convictions and sentences for a violation

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

  3         Section 2.  Paragraph (b) of subsection (1) of section

  4  921.0024, Florida Statutes, 1998 Supplement, is amended to

  5  read:

  6         921.0024  Criminal Punishment Code; worksheet

  7  computations; scoresheets.--

  8         (1)

  9                       (b)  WORKSHEET KEY:

10

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

12  existed at the time the offender committed an offense before

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

14  assessed for an offender's legal status.

15

16  Community sanction violation points are assessed when a

17  community sanction violation is before the court for

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

19  community sanction violation, and each successive community

20  sanction violation; however, if the community sanction

21  violation includes a new felony conviction before the

22  sentencing court, twelve (12) community sanction violation

23  points are assessed for such violation, and for each

24  successive community sanction violation involving a new felony

25  conviction. Multiple counts of community sanction violations

26  before the sentencing court shall not be a basis for

27  multiplying the assessment of community sanction violation

28  points.

29

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

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

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

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

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

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

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

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

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

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

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

10  or any additional offense was committed.

11

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

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

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

15  offender equal to twice the number of points the offender

16  receives for the primary offense and any additional offense.

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

18  previous capital felony offense for which the offender has

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

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

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

22  the offense were committed in this state.

23

24  Possession of a firearm, semiautomatic firearm, or machine

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

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

27  775.087(2) while having in his possession: a firearm as

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

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

30  attempting to commit any felony other than those enumerated in

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

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

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

  3  assessed.

  4

  5  Sentencing multipliers:

  6

  7  Drug trafficking:  If the primary offense is any

  8  drug-trafficking offense drug trafficking under s. 893.135,

  9  the subtotal sentence points shall be are multiplied, at the

10  discretion of the court, for a level 7 or level 8 offense, by

11  1.5.  The state attorney may move the sentencing court to

12  reduce or suspend the sentence of a person convicted of any

13  drug-trafficking offense under s. 893.135 a level 7 or level 8

14  offense, if the offender provides substantial assistance as

15  described in s. 893.135(4).

16

17  Law enforcement protection:  If the primary offense is a

18  violation of the Law Enforcement Protection Act under s.

19  775.0823(2), the subtotal sentence points are multiplied by

20  2.5.  If the primary offense is a violation of s. 775.0823(3),

21  (4), (5), (6), (7), or (8), the subtotal sentence points are

22  multiplied by 2.0. If the primary offense is a violation of s.

23  784.07(3) or s. 775.0875(1), or of the Law Enforcement

24  Protection Act under s. 775.0823(9) or (10), the subtotal

25  sentence points are multiplied by 1.5.

26

27  Grand theft of a motor vehicle:  If the primary offense is

28  grand theft of the third degree involving a motor vehicle and

29  in the offender's prior record, there are three or more grand

30  thefts of the third degree involving a motor vehicle, the

31  subtotal sentence points are multiplied by 1.5.

                                  16

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  1

  2  Criminal street gang member:  If the offender is convicted of

  3  the primary offense and is found to have been a member of a

  4  criminal street gang at the time of the commission of the

  5  primary offense pursuant to s. 874.04, the subtotal sentence

  6  points are multiplied by 1.5.

  7

  8  Domestic violence in the presence of a child:  If the offender

  9  is convicted of the primary offense and the primary offense is

10  a crime of domestic violence, as defined in s. 741.28, which

11  was committed in the presence of a child under 16 years of age

12  who is a family household member as defined in s. 741.28(2)

13  with the victim or perpetrator, the subtotal sentence points

14  are multiplied, at the discretion of the court, by 1.5.

15         Section 3.  For the purpose of incorporating the

16  amendments made by this act to section 893.135, Florida

17  Statutes, in references thereto, subsection (7) of section

18  397.451, Florida Statutes, is reenacted to read:

19         397.451  Background checks of service provider

20  personnel who have direct contact with unmarried minor clients

21  or clients who are developmentally disabled.--

22         (7)  DISQUALIFICATION FROM RECEIVING STATE

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

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

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

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

27  violation of s. 893.135 pertaining to trafficking in

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

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

30  possession or territory thereof, or any foreign jurisdiction

31  which is substantially similar in elements and penalties to a

                                  17

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

  2  director's civil rights have been restored.

  3         Section 4.  For the purpose of incorporating the

  4  amendments made by this act to section 893.135, Florida

  5  Statutes, in references thereto, subsection (4) of section

  6  782.04, Florida Statutes, 1998 Supplement, is reenacted to

  7  read:

  8         782.04  Murder.--

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

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

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

12  perpetrate, any felony other than any:

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

14         (b)  Arson,

15         (c)  Sexual battery,

16         (d)  Robbery,

17         (e)  Burglary,

18         (f)  Kidnapping,

19         (g)  Escape,

20         (h)  Aggravated child abuse,

21         (i)  Aggravated abuse of an elderly person or disabled

22  adult,

23         (j)  Aircraft piracy,

24         (k)  Unlawful throwing, placing, or discharging of a

25  destructive device or bomb,

26         (l)  Unlawful distribution of any substance controlled

27  under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4.,

28  or opium or any synthetic or natural salt, compound,

29  derivative, or preparation of opium by a person 18 years of

30  age or older, when such drug is proven to be the proximate

31  cause of the death of the user,

                                  18

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  1         (m)  Carjacking,

  2         (n)  Home-invasion robbery,

  3         (o)  Aggravated stalking, or

  4         (p)  Murder of another human being,

  5

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

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

  8  775.083, or s. 775.084.

  9         Section 5.  For the purpose of incorporating the

10  amendments made by this act to section 893.135, Florida

11  Statutes, in references thereto, subsection (1) of section

12  893.1351, Florida Statutes, is reenacted to read:

13         893.1351  Lease or rent for the purpose of trafficking

14  in a controlled substance.--

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

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

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

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

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

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

21         Section 6.  For the purpose of incorporating the

22  amendments made by this act to section 893.135, Florida

23  Statutes, in references thereto, section 903.133, Florida

24  Statutes, is reenacted to read:

25         903.133  Bail on appeal; prohibited for certain felony

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

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

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

29  806.01, s. 893.13, or s. 893.135, or adjudged guilty of a

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

31  pending review either by posttrial motion or appeal.

                                  19

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  1         Section 7.  For the purpose of incorporating the

  2  amendments made by this act to section 893.135, Florida

  3  Statutes, in references thereto, paragraph (b) of subsection

  4  (4) of section 907.041, Florida Statutes, is reenacted to

  5  read:

  6         907.041  Pretrial detention and release.--

  7         (4)  PRETRIAL DETENTION.--

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

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

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

11  any other relevant facts, that:

12         1.  The defendant has previously violated conditions of

13  release and that no further conditions of release are

14  reasonably likely to assure the defendant's appearance at

15  subsequent proceedings;

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

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

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

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

20  release will reasonably prevent the obstruction of the

21  judicial process;

22         3.  The defendant is charged with trafficking in

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

24  a substantial probability that the defendant has committed the

25  offense, and that no conditions of release will reasonably

26  assure the defendant's appearance at subsequent criminal

27  proceedings; or

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

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

30  defendant is presently charged with a dangerous crime, that

31  there is a substantial probability that the defendant

                                  20

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  1  committed such crime, that the factual circumstances of the

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

  3  and that there are no conditions of release reasonably

  4  sufficient to protect the community from the risk of physical

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

  6  least one of the following conditions is present:

  7         a.  The defendant has previously been convicted of a

  8  crime punishable by death or life imprisonment.

  9         b.  The defendant has been convicted of a dangerous

10  crime within the 10 years immediately preceding the date of

11  his or her arrest for the crime presently charged.

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

13  release pending completion of sentence or on pretrial release

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

15         Section 8.  For the purpose of incorporating the

16  amendments made by this act to section 893.135, Florida

17  Statutes, in references thereto, paragraphs (g), (h), (i), and

18  (j) of subsection (3) of section 921.0022, Florida Statutes,

19  1998 Supplement, are reenacted to read:

20         921.0022  Criminal Punishment Code; offense severity

21  ranking chart.--

22         (3)  OFFENSE SEVERITY RANKING CHART

23

24  Florida           Felony

25  Statute           Degree             Description

26

27                              (g)  LEVEL 7

28  316.193(3)(c)2.    3rd      DUI resulting in serious bodily

29                              injury.

30  327.35(3)(c)2.     3rd      Vessel BUI resulting in serious

31                              bodily injury.

                                  21

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  1  409.920(2)         3rd      Medicaid provider fraud.

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

  3                              ss. 494.001-494.0077 in which the

  4                              total money and property

  5                              unlawfully obtained exceeded

  6                              $50,000 and there were five or

  7                              more victims.

  8  782.051(3)         2nd      Attempted felony murder of a

  9                              person by a person other than the

10                              perpetrator or the perpetrator of

11                              an attempted felony.

12  782.07(1)          2nd      Killing of a human being by the

13                              act, procurement, or culpable

14                              negligence of another

15                              (manslaughter).

16  782.071            3rd      Killing of human being or viable

17                              fetus by the operation of a motor

18                              vehicle in a reckless manner

19                              (vehicular homicide).

20  782.072            3rd      Killing of a human being by the

21                              operation of a vessel in a

22                              reckless manner (vessel

23                              homicide).

24  784.045(1)(a)1.    2nd      Aggravated battery; intentionally

25                              causing great bodily harm or

26                              disfigurement.

27  784.045(1)(a)2.    2nd      Aggravated battery; using deadly

28                              weapon.

29  784.045(1)(b)      2nd      Aggravated battery; perpetrator

30                              aware victim pregnant.

31

                                  22

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  1  784.048(4)         3rd      Aggravated stalking; violation of

  2                              injunction or court order.

  3  784.07(2)(d)       1st      Aggravated battery on law

  4                              enforcement officer.

  5  784.08(2)(a)       1st      Aggravated battery on a person 65

  6                              years of age or older.

  7  784.081(1)         1st      Aggravated battery on specified

  8                              official or employee.

  9  784.082(1)         1st      Aggravated battery by detained

10                              person on visitor or other

11                              detainee.

12  784.083(1)         1st      Aggravated battery on code

13                              inspector.

14  790.07(4)          1st      Specified weapons violation

15                              subsequent to previous conviction

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

17  790.16(1)          1st      Discharge of a machine gun under

18                              specified circumstances.

19  796.03             2nd      Procuring any person under 16

20                              years for prostitution.

21  800.04             2nd      Handle, fondle, or assault child

22                              under 16 years in lewd,

23                              lascivious, or indecent manner.

24  806.01(2)          2nd      Maliciously damage structure by

25                              fire or explosive.

26  810.02(3)(a)       2nd      Burglary of occupied dwelling;

27                              unarmed; no assault or battery.

28  810.02(3)(b)       2nd      Burglary of unoccupied dwelling;

29                              unarmed; no assault or battery.

30  810.02(3)(d)       2nd      Burglary of occupied conveyance;

31                              unarmed; no assault or battery.

                                  23

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

  2                              $100,000 or more; property stolen

  3                              while causing other property

  4                              damage; 1st degree grand theft.

  5  812.019(2)         1st      Stolen property; initiates,

  6                              organizes, plans, etc., the theft

  7                              of property and traffics in

  8                              stolen property.

  9  812.133(2)(b)      1st      Carjacking; no firearm, deadly

10                              weapon, or other weapon.

11  825.102(3)(b)      2nd      Neglecting an elderly person or

12                              disabled adult causing great

13                              bodily harm, disability, or

14                              disfigurement.

15  825.1025(2)        2nd      Lewd or lascivious battery upon

16                              an elderly person or disabled

17                              adult.

18  825.103(2)(b)      2nd      Exploiting an elderly person or

19                              disabled adult and property is

20                              valued at $20,000 or more, but

21                              less than $100,000.

22  827.03(3)(b)       2nd      Neglect of a child causing great

23                              bodily harm, disability, or

24                              disfigurement.

25  827.04(4)          3rd      Impregnation of a child under 16

26                              years of age by person 21 years

27                              of age or older.

28  837.05(2)          3rd      Giving false information about

29                              alleged capital felony to a law

30                              enforcement officer.

31  872.06             2nd      Abuse of a dead human body.

                                  24

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

  2                              cocaine (or other drug prohibited

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

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

  5                              1,000 feet of a child care

  6                              facility or school.

  7  893.13(1)(e)       1st      Sell, manufacture, or deliver

  8                              cocaine or other drug prohibited

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

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

11                              1,000 feet of property used for

12                              religious services or a specified

13                              business site.

14  893.13(4)(a)       1st      Deliver to minor cocaine (or

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

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

17  893.135(1)(a)1.    1st      Trafficking in cannabis, more

18                              than 50 lbs., less than 2,000

19                              lbs.

20  893.135

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

22                              28 grams, less than 200 grams.

23  893.135

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

25                              more than 4 grams, less than 14

26                              grams.

27  893.135

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

29                              more than 28 grams, less than 200

30                              grams.

31

                                  25

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

  2                              than 200 grams, less than 5

  3                              kilograms.

  4  893.135(1)(f)1.    1st      Trafficking in amphetamine, more

  5                              than 14 grams, less than 28

  6                              grams.

  7  893.135

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

  9                              grams or more, less than 14

10                              grams.

11                              (h)  LEVEL 8

12  316.193

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

14  327.35(3)(c)3.     2nd      Vessel BUI manslaughter.

15  777.03(2)(a)       1st      Accessory after the fact, capital

16                              felony.

17  782.04(4)          2nd      Killing of human without design

18                              when engaged in act or attempt of

19                              any felony other than arson,

20                              sexual battery, robbery,

21                              burglary, kidnapping, aircraft

22                              piracy, or unlawfully discharging

23                              bomb.

24  782.051(2)         1st      Attempted felony murder while

25                              perpetrating or attempting to

26                              perpetrate a felony not

27                              enumerated in s. 782.04(3).

28  782.071(2)         2nd      Committing vehicular homicide and

29                              failing to render aid or give

30                              information.

31

                                  26

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  1  782.072(2)         2nd      Committing vessel homicide and

  2                              failing to render aid or give

  3                              information.

  4  790.161(3)         1st      Discharging a destructive device

  5                              which results in bodily harm or

  6                              property damage.

  7  794.011(5)         2nd      Sexual battery, victim 12 years

  8                              or over, offender does not use

  9                              physical force likely to cause

10                              serious injury.

11  806.01(1)          1st      Maliciously damage dwelling or

12                              structure by fire or explosive,

13                              believing person in structure.

14  810.02(2)(a)       1st,PBL  Burglary with assault or battery.

15  810.02(2)(b)       1st,PBL  Burglary; armed with explosives

16                              or dangerous weapon.

17  810.02(2)(c)       1st      Burglary of a dwelling or

18                              structure causing structural

19                              damage or $1,000 or more property

20                              damage.

21  812.13(2)(b)       1st      Robbery with a weapon.

22  812.135(2)         1st      Home-invasion robbery.

23  825.102(2)         2nd      Aggravated abuse of an elderly

24                              person or disabled adult.

25  825.103(2)(a)      1st      Exploiting an elderly person or

26                              disabled adult and property is

27                              valued at $100,000 or more.

28  827.03(2)          2nd      Aggravated child abuse.

29  837.02(2)          2nd      Perjury in official proceedings

30                              relating to prosecution of a

31                              capital felony.

                                  27

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  1  837.021(2)         2nd      Making contradictory statements

  2                              in official proceedings relating

  3                              to prosecution of a capital

  4                              felony.

  5  860.121(2)(c)      1st      Shooting at or throwing any

  6                              object in path of railroad

  7                              vehicle resulting in great bodily

  8                              harm.

  9  860.16             1st      Aircraft piracy.

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

11                              grams of any substance specified

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

13  893.13(2)(b)       1st      Purchase in excess of 10 grams of

14                              any substance specified in s.

15                              893.03(1)(a) or (b).

16  893.13(6)(c)       1st      Possess in excess of 10 grams of

17                              any substance specified in s.

18                              893.03(1)(a) or (b).

19  893.135(1)(a)2.    1st      Trafficking in cannabis, more

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

21                              lbs.

22  893.135

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

24                              200 grams, less than 400 grams.

25  893.135

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

27                              more than 14 grams, less than 28

28                              grams.

29

30

31

                                  28

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  1  893.135

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

  3                              more than 200 grams, less than

  4                              400 grams.

  5  893.135

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

  7                              than 5 kilograms, less than 25

  8                              kilograms.

  9  893.135

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

11                              than 28 grams, less than 200

12                              grams.

13  893.135

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

15                              grams or more, less than 28

16                              grams.

17  895.03(1)          1st      Use or invest proceeds derived

18                              from pattern of racketeering

19                              activity.

20  895.03(2)          1st      Acquire or maintain through

21                              racketeering activity any

22                              interest in or control of any

23                              enterprise or real property.

24  895.03(3)          1st      Conduct or participate in any

25                              enterprise through pattern of

26                              racketeering activity.

27                              (i)  LEVEL 9

28  316.193

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

30                              render aid or give information.

31

                                  29

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

  2                              commit premeditated murder.

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

  4                              connection with arson, sexual

  5                              battery, robbery, burglary, and

  6                              other specified felonies.

  7  782.051(1)         1st      Attempted felony murder while

  8                              perpetrating or attempting to

  9                              perpetrate a felony enumerated in

10                              s. 782.04(3).

11  782.07(2)          1st      Aggravated manslaughter of an

12                              elderly person or disabled adult.

13  782.07(3)          1st      Aggravated manslaughter of a

14                              child.

15  787.01(1)(a)1.     1st,PBL  Kidnapping; hold for ransom or

16                              reward or as a shield or hostage.

17  787.01(1)(a)2.     1st,PBL  Kidnapping with intent to commit

18                              or facilitate commission of any

19                              felony.

20  787.01(1)(a)4.     1st,PBL  Kidnapping with intent to

21                              interfere with performance of any

22                              governmental or political

23                              function.

24  787.02(3)(a)       1st      False imprisonment; child under

25                              age 13; perpetrator also commits

26                              child abuse, sexual battery,

27                              lewd, or lascivious act, etc.

28  790.161            1st      Attempted capital destructive

29                              device offense.

30  794.011(2)         1st      Attempted sexual battery; victim

31                              less than 12 years of age.

                                  30

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  1  794.011(2)         Life     Sexual battery; offender younger

  2                              than 18 years and commits sexual

  3                              battery on a person less than 12

  4                              years.

  5  794.011(4)         1st      Sexual battery; victim 12 years

  6                              or older, certain circumstances.

  7  794.011(8)(b)      1st      Sexual battery; engage in sexual

  8                              conduct with minor 12 to 18 years

  9                              by person in familial or

10                              custodial authority.

11  812.13(2)(a)       1st,PBL  Robbery with firearm or other

12                              deadly weapon.

13  812.133(2)(a)      1st,PBL  Carjacking; firearm or other

14                              deadly weapon.

15  847.0145(1)        1st      Selling, or otherwise

16                              transferring custody or control,

17                              of a minor.

18  847.0145(2)        1st      Purchasing, or otherwise

19                              obtaining custody or control, of

20                              a minor.

21  859.01             1st      Poisoning food, drink, medicine,

22                              or water with intent to kill or

23                              injure another person.

24  893.135            1st      Attempted capital trafficking

25                              offense.

26  893.135(1)(a)3.    1st      Trafficking in cannabis, more

27                              than 10,000 lbs.

28  893.135

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

30                              400 grams, less than 150

31                              kilograms.

                                  31

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  1  893.135

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

  3                              more than 28 grams, less than 30

  4                              kilograms.

  5  893.135

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

  7                              more than 400 grams.

  8  893.135

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

10                              than 25 kilograms.

11  893.135

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

13                              than 200 grams.

14                              (j)  LEVEL 10

15  782.04(2)          1st,PBL  Unlawful killing of human; act is

16                              homicide, unpremeditated.

17  787.01(1)(a)3.     1st,PBL  Kidnapping; inflict bodily harm

18                              upon or terrorize victim.

19  787.01(3)(a)       Life     Kidnapping; child under age 13,

20                              perpetrator also commits child

21                              abuse, sexual battery, lewd, or

22                              lascivious act, etc.

23  794.011(3)         Life     Sexual battery; victim 12 years

24                              or older, offender uses or

25                              threatens to use deadly weapon or

26                              physical force to cause serious

27                              injury.

28  876.32             1st      Treason against the state.

29         Section 9.  For the purpose of incorporating the

30  amendments made by this act to section 893.135, Florida

31

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  1  Statutes, in references thereto, subsection (2) of section

  2  921.142, Florida Statutes, is reenacted to read:

  3         921.142  Sentence of death or life imprisonment for

  4  capital drug trafficking felonies; further proceedings to

  5  determine sentence.--

  6         (2)  SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.--Upon

  7  conviction or adjudication of guilt of a defendant of a

  8  capital felony under s. 893.135, the court shall conduct a

  9  separate sentencing proceeding to determine whether the

10  defendant should be sentenced to death or life imprisonment as

11  authorized by s. 775.082.  The proceeding shall be conducted

12  by the trial judge before the trial jury as soon as

13  practicable.  If, through impossibility or inability, the

14  trial jury is unable to reconvene for a hearing on the issue

15  of penalty, having determined the guilt of the accused, the

16  trial judge may summon a special juror or jurors as provided

17  in chapter 913 to determine the issue of the imposition of the

18  penalty.  If the trial jury has been waived, or if the

19  defendant pleaded guilty, the sentencing proceeding shall be

20  conducted before a jury impaneled for that purpose, unless

21  waived by the defendant.  In the proceeding, evidence may be

22  presented as to any matter that the court deems relevant to

23  the nature of the crime and the character of the defendant and

24  shall include matters relating to any of the aggravating or

25  mitigating circumstances enumerated in subsections (6) and

26  (7).  Any such evidence which the court deems to have

27  probative value may be received, regardless of its

28  admissibility under the exclusionary rules of evidence,

29  provided the defendant is accorded a fair opportunity to rebut

30  any hearsay statements.  However, this subsection shall not be

31  construed to authorize the introduction of any evidence

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  1  secured in violation of the Constitution of the United States

  2  or the Constitution of the State of Florida. The state and the

  3  defendant or the defendant's counsel shall be permitted to

  4  present argument for or against sentence of death.

  5         Section 10.  For the purpose of incorporating the

  6  amendments made by this act to section 893.135, Florida

  7  Statutes, in references thereto, section 943.0585, Florida

  8  Statutes, 1998 Supplement, is reenacted to read:

  9         943.0585  Court-ordered expunction of criminal history

10  records.--The courts of this state have jurisdiction over

11  their own procedures, including the maintenance, expunction,

12  and correction of judicial records containing criminal history

13  information to the extent such procedures are not inconsistent

14  with the conditions, responsibilities, and duties established

15  by this section.  Any court of competent jurisdiction may

16  order a criminal justice agency to expunge the criminal

17  history record of a minor or an adult who complies with the

18  requirements of this section.  The court shall not order a

19  criminal justice agency to expunge a criminal history record

20  until the person seeking to expunge a criminal history record

21  has applied for and received a certificate of eligibility for

22  expunction pursuant to subsection (2).  A criminal history

23  record that relates to a violation of chapter 794, s. 800.04,

24  s. 817.034, s. 827.071, chapter 839, s. 893.135, or a

25  violation enumerated in s. 907.041 may not be expunged,

26  without regard to whether adjudication was withheld, if the

27  defendant was found guilty of or pled guilty or nolo

28  contendere to the offense, or if the defendant, as a minor,

29  was found to have committed, or pled guilty or nolo contendere

30  to committing, the offense as a delinquent act. The court may

31  only order expunction of a criminal history record pertaining

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  1  to one arrest or one incident of alleged criminal activity,

  2  except as provided in this section. The court may, at its sole

  3  discretion, order the expunction of a criminal history record

  4  pertaining to more than one arrest if the additional arrests

  5  directly relate to the original arrest. If the court intends

  6  to order the expunction of records pertaining to such

  7  additional arrests, such intent must be specified in the

  8  order. A criminal justice agency may not expunge any record

  9  pertaining to such additional arrests if the order to expunge

10  does not articulate the intention of the court to expunge a

11  record pertaining to more than one arrest. This section does

12  not prevent the court from ordering the expunction of only a

13  portion of a criminal history record pertaining to one arrest

14  or one incident of alleged criminal activity.  Notwithstanding

15  any law to the contrary, a criminal justice agency may comply

16  with laws, court orders, and official requests of other

17  jurisdictions relating to expunction, correction, or

18  confidential handling of criminal history records or

19  information derived therefrom.  This section does not confer

20  any right to the expunction of any criminal history record,

21  and any request for expunction of a criminal history record

22  may be denied at the sole discretion of the court.

23         (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY

24  RECORD.--Each petition to a court to expunge a criminal

25  history record is complete only when accompanied by:

26         (a)  A certificate of eligibility for expunction issued

27  by the department pursuant to subsection (2).

28         (b)  The petitioner's sworn statement attesting that

29  the petitioner:

30         1.  Has never previously been adjudicated guilty of a

31  criminal offense or comparable ordinance violation or

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  1  adjudicated delinquent for committing a felony or a

  2  misdemeanor specified in s. 943.051(3)(b).

  3         2.  Has not been adjudicated guilty of, or adjudicated

  4  delinquent for committing, any of the acts stemming from the

  5  arrest or alleged criminal activity to which the petition

  6  pertains.

  7         3.  Has never secured a prior sealing or expunction of

  8  a criminal history record under this section, former s.

  9  893.14, former s. 901.33, or former s. 943.058, or from any

10  jurisdiction outside the state.

11         4.  Is eligible for such an expunction to the best of

12  his or her knowledge or belief and does not have any other

13  petition to expunge or any petition to seal pending before any

14  court.

15

16  Any person who knowingly provides false information on such

17  sworn statement to the court commits a felony of the third

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

19  s. 775.084.

20         (2)  CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior

21  to petitioning the court to expunge a criminal history record,

22  a person seeking to expunge a criminal history record shall

23  apply to the department for a certificate of eligibility for

24  expunction. The department shall, by rule adopted pursuant to

25  chapter 120, establish procedures pertaining to the

26  application for and issuance of certificates of eligibility

27  for expunction. The department shall issue a certificate of

28  eligibility for expunction to a person who is the subject of a

29  criminal history record if that person:

30

31

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  1         (a)  Has obtained, and submitted to the department, a

  2  written, certified statement from the appropriate state

  3  attorney or statewide prosecutor which indicates:

  4         1.  That an indictment, information, or other charging

  5  document was not filed or issued in the case.

  6         2.  That an indictment, information, or other charging

  7  document, if filed or issued in the case, was dismissed or

  8  nolle prosequi by the state attorney or statewide prosecutor,

  9  or was dismissed by a court of competent jurisdiction.

10         3.  That the criminal history record does not relate to

11  a violation of chapter 794, s. 800.04, s. 817.034, s. 827.071,

12  chapter 839, s. 893.135, or a violation enumerated in s.

13  907.041, where the defendant was found guilty of, or pled

14  guilty or nolo contendere to any such offense, or that the

15  defendant, as a minor, was found to have committed, or pled

16  guilty or nolo contendere to committing, such an offense as a

17  delinquent act, without regard to whether adjudication was

18  withheld.

19         (b)  Remits a $75 processing fee to the department for

20  placement in the Department of Law Enforcement Operating Trust

21  Fund, unless such fee is waived by the executive director.

22         (c)  Has submitted to the department a certified copy

23  of the disposition of the charge to which the petition to

24  expunge pertains.

25         (d)  Has never previously been adjudicated guilty of a

26  criminal offense or comparable ordinance violation or

27  adjudicated delinquent for committing a felony or a

28  misdemeanor specified in s. 943.051(3)(b).

29         (e)  Has not been adjudicated guilty of, or adjudicated

30  delinquent for committing, any of the acts stemming from the

31

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  1  arrest or alleged criminal activity to which the petition to

  2  expunge pertains.

  3         (f)  Has never secured a prior sealing or expunction of

  4  a criminal history record under this section, former s.

  5  893.14, former s. 901.33, or former s. 943.058.

  6         (g)  Is no longer under court supervision applicable to

  7  the disposition of the arrest or alleged criminal activity to

  8  which the petition to expunge pertains.

  9         (h)  Is not required to wait a minimum of 10 years

10  prior to being eligible for an expunction of such records

11  because all charges related to the arrest or criminal activity

12  to which the petition to expunge pertains were dismissed prior

13  to trial, adjudication, or the withholding of adjudication.

14  Otherwise, such criminal history record must be sealed under

15  this section, former s. 893.14, former s. 901.33, or former s.

16  943.058 for at least 10 years before such record is eligible

17  for expunction.

18         (3)  PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--

19         (a)  In judicial proceedings under this section, a copy

20  of the completed petition to expunge shall be served upon the

21  appropriate state attorney or the statewide prosecutor and

22  upon the arresting agency; however, it is not necessary to

23  make any agency other than the state a party. The appropriate

24  state attorney or the statewide prosecutor and the arresting

25  agency may respond to the court regarding the completed

26  petition to expunge.

27         (b)  If relief is granted by the court, the clerk of

28  the court shall certify copies of the order to the appropriate

29  state attorney or the statewide prosecutor and the arresting

30  agency. The arresting agency is responsible for forwarding the

31  order to any other agency to which the arresting agency

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  1  disseminated the criminal history record information to which

  2  the order pertains. The department shall forward the order to

  3  expunge to the Federal Bureau of Investigation. The clerk of

  4  the court shall certify a copy of the order to any other

  5  agency which the records of the court reflect has received the

  6  criminal history record from the court.

  7         (c)  For an order to expunge entered by a court prior

  8  to July 1, 1992, the department shall notify the appropriate

  9  state attorney or statewide prosecutor of an order to expunge

10  which is contrary to law because the person who is the subject

11  of the record has previously been convicted of a crime or

12  comparable ordinance violation or has had a prior criminal

13  history record sealed or expunged. Upon receipt of such

14  notice, the appropriate state attorney or statewide prosecutor

15  shall take action, within 60 days, to correct the record and

16  petition the court to void the order to expunge. The

17  department shall seal the record until such time as the order

18  is voided by the court.

19         (d)  On or after July 1, 1992, the department or any

20  other criminal justice agency is not required to act on an

21  order to expunge entered by a court when such order does not

22  comply with the requirements of this section. Upon receipt of

23  such an order, the department must notify the issuing court,

24  the appropriate state attorney or statewide prosecutor, the

25  petitioner or the petitioner's attorney, and the arresting

26  agency of the reason for noncompliance. The appropriate state

27  attorney or statewide prosecutor shall take action within 60

28  days to correct the record and petition the court to void the

29  order.  No cause of action, including contempt of court, shall

30  arise against any criminal justice agency for failure to

31  comply with an order to expunge when the petitioner for such

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  1  order failed to obtain the certificate of eligibility as

  2  required by this section or such order does not otherwise

  3  comply with the requirements of this section.

  4         (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

  5  criminal history record of a minor or an adult which is

  6  ordered expunged by a court of competent jurisdiction pursuant

  7  to this section must be physically destroyed or obliterated by

  8  any criminal justice agency having custody of such record;

  9  except that any criminal history record in the custody of the

10  department must be retained in all cases. A criminal history

11  record ordered expunged that is retained by the department is

12  confidential and exempt from the provisions of s. 119.07(1)

13  and s. 24(a), Art. I of the State Constitution and not

14  available to any person or entity except upon order of a court

15  of competent jurisdiction. A criminal justice agency may

16  retain a notation indicating compliance with an order to

17  expunge.

18         (a)  The person who is the subject of a criminal

19  history record that is expunged under this section or under

20  other provisions of law, including former s. 893.14, former s.

21  901.33, and former s. 943.058, may lawfully deny or fail to

22  acknowledge the arrests covered by the expunged record, except

23  when the subject of the record:

24         1.  Is a candidate for employment with a criminal

25  justice agency;

26         2.  Is a defendant in a criminal prosecution;

27         3.  Concurrently or subsequently petitions for relief

28  under this section or s. 943.059;

29         4.  Is a candidate for admission to The Florida Bar;

30         5.  Is seeking to be employed or licensed by or to

31  contract with the Department of Children and Family Services

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  1  or the Department of Juvenile Justice or to be employed or

  2  used by such contractor or licensee in a sensitive position

  3  having direct contact with children, the developmentally

  4  disabled, the aged, or the elderly as provided in s.

  5  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

  6  402.302(8), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

  7  415.1075(4), s. 985.407, or chapter 400; or

  8         6.  Is seeking to be employed or licensed by the Office

  9  of Teacher Education, Certification, Staff Development, and

10  Professional Practices of the Department of Education, any

11  district school board, or any local governmental entity that

12  licenses child care facilities.

13         (b)  Subject to the exceptions in paragraph (a), a

14  person who has been granted an expunction under this section,

15  former s. 893.14, former s. 901.33, or former s. 943.058 may

16  not be held under any provision of law of this state to commit

17  perjury or to be otherwise liable for giving a false statement

18  by reason of such person's failure to recite or acknowledge an

19  expunged criminal history record.

20         (c)  Information relating to the existence of an

21  expunged criminal history record which is provided in

22  accordance with paragraph (a) is confidential and exempt from

23  the provisions of s. 119.07(1) and s. 24(a), Art. I of the

24  State Constitution, except that the department shall disclose

25  the existence of a criminal history record ordered expunged to

26  the entities set forth in subparagraphs (a)1., 4., 5., and 6.

27  for their respective licensing and employment purposes, and to

28  criminal justice agencies for their respective criminal

29  justice purposes.  It is unlawful for any employee of an

30  entity set forth in subparagraph (a)1., subparagraph (a)4.,

31  subparagraph (a)5., or subparagraph (a)6. to disclose

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  1  information relating to the existence of an expunged criminal

  2  history record of a person seeking employment or licensure

  3  with such entity or contractor, except to the person to whom

  4  the criminal history record relates or to persons having

  5  direct responsibility for employment or licensure decisions.

  6  Any person who violates this paragraph commits a misdemeanor

  7  of the first degree, punishable as provided in s. 775.082 or

  8  s. 775.083.

  9         Section 11.  For the purpose of incorporating the

10  amendments made by this act to section 893.135, Florida

11  Statutes, in references thereto, section 943.059, Florida

12  Statutes, 1998 Supplement, is reenacted to read:

13         943.059  Court-ordered sealing of criminal history

14  records.--The courts of this state shall continue to have

15  jurisdiction over their own procedures, including the

16  maintenance, sealing, and correction of judicial records

17  containing criminal history information to the extent such

18  procedures are not inconsistent with the conditions,

19  responsibilities, and duties established by this section.  Any

20  court of competent jurisdiction may order a criminal justice

21  agency to seal the criminal history record of a minor or an

22  adult who complies with the requirements of this section.  The

23  court shall not order a criminal justice agency to seal a

24  criminal history record until the person seeking to seal a

25  criminal history record has applied for and received a

26  certificate of eligibility for sealing pursuant to subsection

27  (2).  A criminal history record that relates to a violation of

28  chapter 794, s. 800.04, s. 817.034, s. 827.071, chapter 839,

29  s. 893.135, or a violation enumerated in s. 907.041 may not be

30  sealed, without regard to whether adjudication was withheld,

31  if the defendant was found guilty of or pled guilty or nolo

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  1  contendere to the offense, or if the defendant, as a minor,

  2  was found to have committed or pled guilty or nolo contendere

  3  to committing the offense as a delinquent act.  The court may

  4  only order sealing of a criminal history record pertaining to

  5  one arrest or one incident of alleged criminal activity,

  6  except as provided in this section. The court may, at its sole

  7  discretion, order the sealing of a criminal history record

  8  pertaining to more than one arrest if the additional arrests

  9  directly relate to the original arrest.  If the court intends

10  to order the sealing of records pertaining to such additional

11  arrests, such intent must be specified in the order.  A

12  criminal justice agency may not seal any record pertaining to

13  such additional arrests if the order to seal does not

14  articulate the intention of the court to seal records

15  pertaining to more than one arrest.  This section does not

16  prevent the court from ordering the sealing of only a portion

17  of a criminal history record pertaining to one arrest or one

18  incident of alleged criminal activity. Notwithstanding any law

19  to the contrary, a criminal justice agency may comply with

20  laws, court orders, and official requests of other

21  jurisdictions relating to sealing, correction, or confidential

22  handling of criminal history records or information derived

23  therefrom.  This section does not confer any right to the

24  sealing of any criminal history record, and any request for

25  sealing a criminal history record may be denied at the sole

26  discretion of the court.

27         (1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each

28  petition to a court to seal a criminal history record is

29  complete only when accompanied by:

30         (a)  A certificate of eligibility for sealing issued by

31  the department pursuant to subsection (2).

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  1         (b)  The petitioner's sworn statement attesting that

  2  the petitioner:

  3         1.  Has never previously been adjudicated guilty of a

  4  criminal offense or comparable ordinance violation or

  5  adjudicated delinquent for committing a felony or a

  6  misdemeanor specified in s. 943.051(3)(b).

  7         2.  Has not been adjudicated guilty of or adjudicated

  8  delinquent for committing any of the acts stemming from the

  9  arrest or alleged criminal activity to which the petition to

10  seal pertains.

11         3.  Has never secured a prior sealing or expunction of

12  a criminal history record under this section, former s.

13  893.14, former s. 901.33, former s. 943.058, or from any

14  jurisdiction outside the state.

15         4.  Is eligible for such a sealing to the best of his

16  or her knowledge or belief and does not have any other

17  petition to seal or any petition to expunge pending before any

18  court.

19

20  Any person who knowingly provides false information on such

21  sworn statement to the court commits a felony of the third

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

23  s. 775.084.

24         (2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to

25  petitioning the court to seal a criminal history record, a

26  person seeking to seal a criminal history record shall apply

27  to the department for a certificate of eligibility for

28  sealing.  The department shall, by rule adopted pursuant to

29  chapter 120, establish procedures pertaining to the

30  application for and issuance of certificates of eligibility

31  for sealing.  The department shall issue a certificate of

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  1  eligibility for sealing to a person who is the subject of a

  2  criminal history record provided that such person:

  3         (a)  Has submitted to the department a certified copy

  4  of the disposition of the charge to which the petition to seal

  5  pertains.

  6         (b)  Remits a $75 processing fee to the department for

  7  placement in the Department of Law Enforcement Operating Trust

  8  Fund, unless such fee is waived by the executive director.

  9         (c)  Has never previously been adjudicated guilty of a

10  criminal offense or comparable ordinance violation or

11  adjudicated delinquent for committing a felony or a

12  misdemeanor specified in s. 943.051(3)(b).

13         (d)  Has not been adjudicated guilty of or adjudicated

14  delinquent for committing any of the acts stemming from the

15  arrest or alleged criminal activity to which the petition to

16  seal pertains.

17         (e)  Has never secured a prior sealing or expunction of

18  a criminal history record under this section, former s.

19  893.14, former s. 901.33, or former s. 943.058.

20         (f)  Is no longer under court supervision applicable to

21  the disposition of the arrest or alleged criminal activity to

22  which the petition to seal pertains.

23         (3)  PROCESSING OF A PETITION OR ORDER TO SEAL.--

24         (a)  In judicial proceedings under this section, a copy

25  of the completed petition to seal shall be served upon the

26  appropriate state attorney or the statewide prosecutor and

27  upon the arresting agency; however, it is not necessary to

28  make any agency other than the state a party.  The appropriate

29  state attorney or the statewide prosecutor and the arresting

30  agency may respond to the court regarding the completed

31  petition to seal.

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  1         (b)  If relief is granted by the court, the clerk of

  2  the court shall certify copies of the order to the appropriate

  3  state attorney or the statewide prosecutor and to the

  4  arresting agency. The arresting agency is responsible for

  5  forwarding the order to any other agency to which the

  6  arresting agency disseminated the criminal history record

  7  information to which the order pertains. The department shall

  8  forward the order to seal to the Federal Bureau of

  9  Investigation. The clerk of the court shall certify a copy of

10  the order to any other agency which the records of the court

11  reflect has received the criminal history record from the

12  court.

13         (c)  For an order to seal entered by a court prior to

14  July 1, 1992, the department shall notify the appropriate

15  state attorney or statewide prosecutor of any order to seal

16  which is contrary to law because the person who is the subject

17  of the record has previously been convicted of a crime or

18  comparable ordinance violation or has had a prior criminal

19  history record sealed or expunged.  Upon receipt of such

20  notice, the appropriate state attorney or statewide prosecutor

21  shall take action, within 60 days, to correct the record and

22  petition the court to void the order to seal.  The department

23  shall seal the record until such time as the order is voided

24  by the court.

25         (d)  On or after July 1, 1992, the department or any

26  other criminal justice agency is not required to act on an

27  order to seal entered by a court when such order does not

28  comply with the requirements of this section.  Upon receipt of

29  such an order, the department must notify the issuing court,

30  the appropriate state attorney or statewide prosecutor, the

31  petitioner or the petitioner's attorney, and the arresting

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  1  agency of the reason for noncompliance. The appropriate state

  2  attorney or statewide prosecutor shall take action within 60

  3  days to correct the record and petition the court to void the

  4  order.  No cause of action, including contempt of court, shall

  5  arise against any criminal justice agency for failure to

  6  comply with an order to seal when the petitioner for such

  7  order failed to obtain the certificate of eligibility as

  8  required by this section or when such order does not comply

  9  with the requirements of this section.

10         (e)  An order sealing a criminal history record

11  pursuant to this section does not require that such record be

12  surrendered to the court, and such record shall continue to be

13  maintained by the department and other criminal justice

14  agencies.

15         (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A

16  criminal history record of a minor or an adult which is

17  ordered sealed by a court of competent jurisdiction pursuant

18  to this section is confidential and exempt from the provisions

19  of s. 119.07(1) and s. 24(a), Art. I of the State Constitution

20  and is available only to the person who is the subject of the

21  record, to the subject's attorney, to criminal justice

22  agencies for their respective criminal justice purposes, or to

23  those entities set forth in subparagraphs (a)1., 4., 5., and

24  6. for their respective licensing and employment purposes.

25         (a)  The subject of a criminal history record sealed

26  under this section or under other provisions of law, including

27  former s. 893.14, former s. 901.33, and former s. 943.058, may

28  lawfully deny or fail to acknowledge the arrests covered by

29  the sealed record, except when the subject of the record:

30         1.  Is a candidate for employment with a criminal

31  justice agency;

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    Florida Senate - 1999                           CS for SB 1614
    307-1760D-99




  1         2.  Is a defendant in a criminal prosecution;

  2         3.  Concurrently or subsequently petitions for relief

  3  under this section or s. 943.0585;

  4         4.  Is a candidate for admission to The Florida Bar;

  5         5.  Is seeking to be employed or licensed by or to

  6  contract with the Department of Children and Family Services

  7  or the Department of Juvenile Justice or to be employed or

  8  used by such contractor or licensee in a sensitive position

  9  having direct contact with children, the developmentally

10  disabled, the aged, or the elderly as provided in s.

11  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

12  402.302(8), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

13  415.103, s. 985.407, or chapter 400; or

14         6.  Is seeking to be employed or licensed by the Office

15  of Teacher Education, Certification, Staff Development, and

16  Professional Practices of the Department of Education, any

17  district school board, or any local governmental entity which

18  licenses child care facilities.

19         (b)  Subject to the exceptions in paragraph (a), a

20  person who has been granted a sealing under this section,

21  former s. 893.14, former s. 901.33, or former s. 943.058 may

22  not be held under any provision of law of this state to commit

23  perjury or to be otherwise liable for giving a false statement

24  by reason of such person's failure to recite or acknowledge a

25  sealed criminal history record.

26         (c)  Information relating to the existence of a sealed

27  criminal record provided in accordance with the provisions of

28  paragraph (a) is confidential and exempt from the provisions

29  of s. 119.07(1) and s. 24(a), Art. I of the State

30  Constitution, except that the department shall disclose the

31  sealed criminal history record to the entities set forth in

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    Florida Senate - 1999                           CS for SB 1614
    307-1760D-99




  1  subparagraphs (a)1., 4., 5., and 6. for their respective

  2  licensing and employment purposes. It is unlawful for any

  3  employee of an entity set forth in subparagraph (a)1.,

  4  subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6.

  5  to disclose information relating to the existence of a sealed

  6  criminal history record of a person seeking employment or

  7  licensure with such entity or contractor, except to the person

  8  to whom the criminal history record relates or to persons

  9  having direct responsibility for employment or licensure

10  decisions.  Any person who violates the provisions of this

11  paragraph commits a misdemeanor of the first degree,

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

13         Section 12.  This act shall take effect July 1, 1999.

14

15          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
16                         Senate Bill 1614

17

18  -     Provides for 3 and 5 year mandatory minimum terms of
          imprisonment for lower-weight trafficking in
19        methaqualone, amphetamines and methamphetamines,
          phencyclidine, and flunitrazepam.
20
    -     Defines "cannabis plant" for purposes of sentencing for
21        the offense of trafficking in cannabis based upon the
          number of cannabis plants.
22
    -     Directs how a court shall sentence cannabis trafficking
23        based upon weight and number of cannabis plants.

24  -     Provides that a current sentencing multiplier for
          certain trafficking offenses be applied to all
25        trafficking offenses, and authorizes state attorneys to
          move to reduce or suspend any trafficking offense if the
26        offender provides substantial assistance.

27  -     Removes the upper caps for weight ranges applicable to
          high-weight, first degree felony trafficking offenses.
28

29

30

31

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