Senate Bill 2192

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    Florida Senate - 1999                                  SB 2192

    By Senator Klein





    28-856-99

  1                      A bill to be entitled

  2         An act relating to civil commitment of sexually

  3         violent predators; providing a directive to the

  4         Division of Statutory Revision; transferring

  5         provisions relating to civil commitment of

  6         sexually violent predators to ch. 394, F.S.,

  7         relating to mental health; renumbering and

  8         amending s. 916.31, F.S.; conforming

  9         cross-references; creating s. 394.911, F.S.;

10         declaring legislative intent with respect to

11         procedures to be used for commitment of

12         sexually violent predators; renumbering and

13         amending s. 916.32, F.S.; defining the term

14         "secretary"; redefining the term "sexually

15         violent offense" to revise the applicability of

16         the act; renumbering and amending s. 916.33,

17         F.S.; prescribing additional notice

18         requirements; requiring additional information;

19         revising composition of multidisciplinary

20         teams; providing for additional elements of

21         assessment of offenders; creating s. 394.9135,

22         F.S.; prescribing procedures to be followed for

23         evaluation and commitment of offenders upon

24         release from confinement; renumbering and

25         amending s. 916.34, F.S.; revising requirements

26         for filing a petition; renumbering and amending

27         s. 916.35, F.S.; revising procedures relating

28         to determination of probable cause; creating s.

29         394.9155, F.S.; providing rules of procedure

30         and evidence; renumbering and amending s.

31         916.36, F.S.; prescribing jury size in a trial

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  1         to determine whether a person is a sexually

  2         violent predator; renumbering and amending s.

  3         916.37, F.S.; revising commitment procedures;

  4         renumbering and amending s. 916.38, F.S.;

  5         conforming cross-references; renumbering and

  6         amending s. 916.39, F.S.; conforming

  7         terminology; renumbering and amending s.

  8         916.40, F.S.; revising procedures for

  9         petitioning for release; renumbering and

10         amending s. 916.41, F.S.; revising guidelines

11         relating to release of records; renumbering and

12         amending s. 916.42, F.S.; conforming

13         cross-references; renumbering and amending s.

14         916.43, F.S.; conforming cross-references;

15         renumbering and amending s. 916.44, F.S.;

16         conforming cross-references; renumbering and

17         amending s. 916.45, F.S.; revising provision

18         relating to applicability; renumbering and

19         amending s. 916.46, F.S.; revising notice

20         requirements upon release of persons committed

21         as sexually violent predators; renumbering and

22         amending s. 916.47, F.S.; providing requirement

23         to notify specified persons upon escape of

24         person committed as sexually violent predators;

25         renumbering and amending s. 916.48, F.S.;

26         conforming cross-references; renumbering and

27         amending s. 916.49, F.S.; conforming

28         cross-references; creating s. 394.930, F.S.;

29         directing the Department of Children and Family

30         Services to adopt certain rules; providing an

31         effective date.

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

  2

  3         Section 1.  The Division of Statutory Revision is

  4  requested to designate sections 394.910-394.930, Florida

  5  Statutes, as part V of chapter 394, Florida Statutes, and to

  6  entitle such part as "Involuntary Civil Commitment of Sexually

  7  Violent Predators."

  8         Section 2.  Section 916.31, Florida Statutes, 1998

  9  Supplement, is transferred, renumbered as section 394.910,

10  Florida Statutes, and amended to read:

11         394.910 916.31  Legislative findings and intent.--The

12  Legislature finds that a small but extremely dangerous number

13  of sexually violent predators exist who do not have a mental

14  disease or defect that renders them appropriate for

15  involuntary treatment under the Baker Act, part I of this

16  chapter ss. 394.451-394.4789, which is intended to provide

17  short-term treatment to individuals with serious mental

18  disorders and then return them to the community. In contrast

19  to persons appropriate for civil commitment under the Baker

20  Act, sexually violent predators generally have antisocial

21  personality features which are unamenable to existing mental

22  illness treatment modalities, and those features render them

23  likely to engage in criminal, sexually violent behavior. The

24  Legislature further finds that the likelihood of sexually

25  violent predators engaging in repeat acts of predatory sexual

26  violence is high. The existing involuntary commitment

27  procedures under the Baker Act for the treatment and care of

28  mentally ill persons are inadequate to address the risk these

29  sexually violent predators pose to society. The Legislature

30  further finds that the prognosis for rehabilitating sexually

31  violent predators in a prison setting is poor, the treatment

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  1  needs of this population are very long term, and the treatment

  2  modalities for this population are very different from the

  3  traditional treatment modalities for people appropriate for

  4  commitment under the Baker Act. It is therefore the intent of

  5  the Legislature to create a civil commitment procedure for the

  6  long-term care and treatment of sexually violent predators.

  7         Section 3.  Section 394.911, Florida Statutes, is

  8  created to read:

  9         394.911  Legislative intent.--The Legislature intents

10  that persons who are subject to the civil commitment procedure

11  for sexually violent predators under this part be subject to

12  the procedures established in this part and not to the

13  provisions of part I of this chapter. Judicial decisions

14  relating to the Baker Act, or part I of this chapter, are not

15  applicable to cases relating to the civil commitment of

16  sexually violent predators under this part.

17         Section 4.  Section 916.32, Florida Statutes, 1998

18  Supplement, is transferred, renumbered as section 394.912,

19  Florida Statutes, and amended to read:

20         394.912 916.32  Definitions.--As used in this part ss.

21  916.31-916.49, the term:

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

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

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

25  person adjudicated delinquent and committed to the custody of

26  the Department of Juvenile Justice, or a person who was

27  involuntarily committed to the custody of the Department of

28  Children and Family Services upon an adjudication of not

29  guilty by reason of insanity.

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

31  person who has been:

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  1         (a)  Adjudicated guilty of a sexually violent offense

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

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

  4  sexually violent offense; or

  5         (c)  Adjudicated delinquent of a sexually violent

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

  7  contendere.

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

  9  Family Services.

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

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

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

13  and safety of others.

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

15  affecting a person's emotional or volitional capacity which

16  predisposes the person to commit sexually violent offenses.

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

18  older who is a potential or actual subject of proceedings

19  under this part ss. 916.31-916.49.

20         (7)  "Secretary" means the Secretary of the Department

21  of Children and Family Services.

22         (8)(7)  "Sexually motivated" means that one of the

23  purposes for which the defendant committed the crime was for

24  sexual gratification.

25         (9)(8)  "Sexually violent offense" means:

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

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

28         (b)  Kidnapping of a child under the age of 13 16 and,

29  in the course of that offense, committing:

30         1.  Sexual battery; or

31

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

  2  or in the presence of the child;

  3         (c)  Committing the offense of false imprisonment upon

  4  a child under the age of 13 16 and, in the course of that

  5  offense, committing:

  6         1.  Sexual battery; or

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

  8  or in the presence of the child;

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

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

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

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

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

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

15  any time before October 1, 1998, which is comparable to a

16  sexually violent offense under paragraphs (a)-(f) or any

17  federal conviction or conviction in another state for a felony

18  offense that in this state would be a sexually violent

19  offense; or

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

21  sentencing for the offense or subsequently during civil

22  commitment proceedings under this part ss. 916.31-916.49, has

23  been determined beyond a reasonable doubt to have been

24  sexually motivated.

25         (10)(9)  "Sexually violent predator" means any person

26  who:

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

28  and

29         (b)  Suffers from a mental abnormality or personality

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

31

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  1  sexual violence if not confined in a secure facility for

  2  long-term control, care, and treatment.

  3         (11)(10)  "Total confinement" means that the person is

  4  currently being held in any physically secure facility being

  5  operated or contractually operated for the Department of

  6  Corrections, the Department of Juvenile Justice, or the

  7  Department of Children and Family Services.

  8         Section 5.  Section 916.33, Florida Statutes, 1998

  9  Supplement, is transferred, renumbered as section 394.913,

10  Florida Statutes, and amended to read:

11         394.913 916.33  Notice to state attorney and

12  multidisciplinary team of release of sexually violent

13  predator; establishing multidisciplinary teams; information to

14  be provided to multidisciplinary teams team.--

15         (1)  The agency with jurisdiction over a person who has

16  been convicted of a sexually violent offense shall give

17  written notice to the multidisciplinary team, and a copy to

18  the state attorney of the circuit where that person was last

19  convicted of a sexually violent offense., If the person has

20  never been convicted of a sexually violent offense in this

21  state but has been convicted of a sexually violent offense in

22  another state or in federal court, the agency with

23  jurisdiction shall give written notice to the

24  multidisciplinary team and a copy to the state attorney of the

25  circuit where the person was last convicted of any offense in

26  this state. If the person is being confined in this state

27  pursuant to interstate compact and has a prior or current

28  conviction for a sexually violent offense, the agency with

29  jurisdiction shall give written notice to the

30  multidisciplinary team and a copy to the state attorney of the

31  circuit where the person plans to reside upon release or, if

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  1  no residence in this state is planned, the state attorney in

  2  the circuit where the facility from which the person to be

  3  released is located. The written notice must be given to the

  4  multidisciplinary team and the state attorney at least 365 180

  5  days or, in the case of an adjudicated committed delinquent,

  6  at least 90 days before:

  7         (a)  The anticipated release from total confinement of

  8  a person who has been convicted of a sexually violent offense,

  9  except that in the case of persons who have been returned to

10  confinement for no more than 90 days, written notice must be

11  given as soon as practicable following the person's return to

12  confinement; or

13         (b)  The anticipated hearing regarding possible release

14  of a person who has been found not guilty by reason of

15  insanity or mental incapacity of a sexually violent offense.

16         (2)  The agency with jurisdiction shall provide the

17  multidisciplinary team with the following information:

18         (a)  The person's name; identifying characteristics;

19  anticipated future residence; the type of supervision the

20  person will receive in the community, if any; and the person's

21  offense history; and

22         (b)  The person's criminal history, including police

23  reports, victim statements, presentence investigation reports,

24  post sentence investigation reports, and any other documents

25  containing facts of the person's criminal incidents;

26         (c)  Mental health, mental status, and medical records,

27  including all clinical records and notes concerning the

28  person; and

29         (d)(b)  Documentation of institutional adjustment and

30  any treatment received and, in the case of an adjudicated

31  delinquent committed to the Department of Juvenile Justice,

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  1  copies of the most recent performance plan and performance

  2  summary.

  3

  4  The provisions of this section are not jurisdictional, and

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

  6  attorney from proceeding against a person otherwise subject to

  7  the provisions of this part ss. 916.31-916.49.

  8         (3)(a)  The secretary of Children and Family Services

  9  shall establish a multidisciplinary team or teams, which shall

10  include two licensed psychiatrists or psychologists, or one

11  licensed psychiatrist and one licensed psychologist,

12  designated by the Secretary of Children and Family Services.

13         (b)  Each team shall include, but is not limited to,

14  two licensed psychiatrists or psychologists or one licensed

15  psychiatrist and one licensed psychologist. The

16  multidisciplinary team shall assess and evaluate each person

17  referred to the team. The assessment and evaluation shall

18  include a review of the person's institutional history and

19  treatment record, if any, the person's criminal background,

20  and any other factor that is relevant to the determination of

21  whether such person is a sexually violent predator.

22         (c)  The assessment and evaluation may also include, if

23  warranted, a mental health examination, including a personal

24  interview, of the person by a licensed psychiatrist or

25  licensed clinical psychologist designated by the department.

26         (d)  The Attorney General's Office shall serve as legal

27  counsel to the multidisciplinary team.

28         (e)  The team, within 45 days after receiving notice,

29  shall assess whether the person meets the definition of a

30  sexually violent predator and provide the state attorney with

31  its written assessment and recommendation.

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  1         Section 6.  Section 394.9135, Florida Statutes, is

  2  created to read:

  3         394.9135  Immediate releases from total confinement;

  4  transfer of person to department; time limitations on

  5  assessment, notification, and filing petition to hold in

  6  custody; filing petition after release.--

  7         (1)  If the anticipated release from total confinement

  8  of a person who has been convicted of a sexually violent

  9  offense becomes immediate for any reason, the agency with

10  jurisdiction shall upon immediate release from total

11  confinement transfer that person to the custody of the

12  Department of Children and Family Services to be held in an

13  appropriate secure facility.

14         (2)  Within 72 hours after transfer, the

15  multidisciplinary team shall assess whether the person meets

16  the definition of a sexually violent predator. If the

17  multidisciplinary team determines that the person does not

18  meet the definition of a sexually violent predator, that

19  person shall be immediately released. If the multidisciplinary

20  team determines that the person meets the definition of a

21  sexually violent predator, the team shall provide the state

22  attorney, as designated by s. 394.913, with its written

23  assessment and recommendation within the 72-hour period or, if

24  the 72-hour period ends on a weekend or holiday, within the

25  next working day thereafter.

26         (3)  Within 24 hours after receipt of the written

27  assessment and recommendation from the multidisciplinary team,

28  the state attorney, as designated in s. 394.913, may file a

29  petition with the circuit court alleging that the person is a

30  sexually violent predator and stating facts sufficient to

31  support such allegation. If a petition is not filed within 24

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  1  hours after receipt of the written assessment and

  2  recommendation by the state attorney, the person shall be

  3  immediately released. If a petition is filed pursuant to this

  4  section and the judge determines that there is probable cause

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

  6  judge shall order the person be maintained in custody and held

  7  in an appropriate secure facility for further proceedings in

  8  accordance with this part.

  9         (4)  The provisions of this section are not

10  jurisdictional, and failure to comply with the time

11  limitations, which results in the release of a person who has

12  been convicted of a sexually violent offense, is not

13  dispositive of the case and does not prevent the state

14  attorney from proceeding against a person otherwise subject to

15  the provisions of this part.

16         Section 7.  Section 916.34, Florida Statutes, 1998

17  Supplement, is transferred, renumbered as section 394.914,

18  Florida Statutes, and amended to read:

19         394.914 916.34  Petition; time; contents.--Following

20  receipt of the written assessment and recommendation from the

21  multidisciplinary team, the state attorney, in accordance with

22  s. 394.913, in the judicial circuit where the person committed

23  the sexually violent offense may file a petition with the

24  circuit court alleging that the person is a sexually violent

25  predator and stating facts sufficient to support such

26  allegation. No fee shall be charged for the filing of a

27  petition under this section.

28         Section 8.  Section 916.35, Florida Statutes, 1998

29  Supplement, is transferred, renumbered as section 394.915,

30  Florida Statutes, and amended to read:

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  1         394.915 916.35  Determination of probable cause;

  2  hearing; evaluation; respondent taken into custody; bail.--

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

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

  5  judge shall determine whether probable cause exists to believe

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

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

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

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

10  held in an appropriate secure facility if the person's

11  incarcerative sentence has expired.

12         (2)  Upon expiration of sentence and before the release

13  from custody of a person whom the multidisciplinary team

14  recommends for civil commitment, but after the state attorney

15  files a petition under s. 394.914 s. 916.33, the state

16  attorney may further petition the court for an adversarial

17  probable cause hearing. The person shall be provided with

18  notice of, and an opportunity to appear in person at, an

19  adversarial hearing. At this hearing, the judge shall:

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

21  and the state attorney; and

22         (b)  Determine whether probable cause exists to believe

23  that the person is a sexually violent predator.

24         (3)  At the adversarial probable cause hearing, the

25  person has the right to:

26         (a)  Be represented by counsel;

27         (b)  Present evidence;

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

29  the person; and

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

31  court file.

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

  2  probable cause to believe that the person is a sexually

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

  4  held in an appropriate secure facility upon the expiration of

  5  his or her incarcerative sentence in the county where the

  6  petition was filed for an evaluation by a mental health

  7  professional.

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

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

10  held in custody in a secure facility without opportunity for

11  pretrial release or release during the trial proceedings.

12         Section 9.  Section 394.9155, Florida Statutes, is

13  created to read:

14         394.9155  Rules of procedures and evidence.--In all

15  civil commitment proceedings for sexually violent predators

16  under this part, the following shall apply:

17         (1)  The Florida Rules of Civil Procedure apply unless

18  otherwise specified in this part;

19         (2)  The Florida Rules of Evidence apply unless

20  otherwise specified in this part;

21         (3)  The psychotherapist-patient privilege under s.

22  90.503 does not exist or apply for communications relevant to

23  an issue in proceedings to involuntarily commit a person under

24  this part;

25         (4)  The court may consider evidence of prior behavior

26  by a person who is subject to proceedings under this part if

27  such evidence is relevant to proving the person has a mental

28  abnormality, personality disorder, or propensity to commit

29  sexual offenses; and

30

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  1         (5)  Hearsay evidence is admissible in proceedings

  2  under this part if the court finds that such evidence is

  3  reliable.

  4         Section 10.  Section 916.36, Florida Statutes, 1998

  5  Supplement, is transferred, renumbered as section 394.916,

  6  Florida Statutes, and amended to read:

  7         394.916 916.36  Trial; counsel and experts; indigent

  8  persons; jury.--

  9         (1)  Within 30 days after the determination of probable

10  cause, the court shall conduct a trial to determine whether

11  the person is a sexually violent predator.

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

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

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

15  will not be substantially prejudiced.

16         (3)  At all adversarial proceedings under this act, the

17  person subject to this act is entitled to the assistance of

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

19  appoint the public defender or, if a conflict exists, other

20  counsel to assist the person.

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

22  examination under this part chapter, the person also may

23  retain experts or mental health professionals to perform an

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

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

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

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

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

29  request, shall determine whether such an examination is

30  necessary. If the court determines that an examination is

31  necessary, the court shall appoint a mental health

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  1  professional and determine the reasonable compensation for the

  2  professional's services, which shall be paid by the state.

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

  4  demand that the trial be before a jury of six members. A

  5  demand for a jury trial must be filed, in writing, at least 5

  6  days before the trial. If no demand is made, the trial shall

  7  be to the court.

  8         Section 11.  Section 916.37, Florida Statutes, 1998

  9  Supplement, is transferred, renumbered as section 394.917,

10  Florida Statutes, and amended to read:

11         394.917 916.37  Determination; commitment procedure;

12  mistrials; housing.--

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

14  convincing evidence whether the person is a sexually violent

15  predator. If the determination is made by a jury, the verdict

16  decision must be unanimous. If the jury is unable to reach a

17  unanimous verdict, the court must declare a mistrial and poll

18  the jury. If a majority of the jury would find the person is a

19  sexually violent predator If a majority of the jury finds that

20  the person is a sexually violent predator, but the decision is

21  not unanimous, the state attorney may refile the petition and

22  proceed according to the provisions of this part ss.

23  916.31-916.49. Any retrial must occur within 90 days after the

24  previous trial, unless the subsequent proceeding is continued

25  in accordance with s. 394.916(2) s. 916.36(2). The

26  determination that a person is a sexually violent predator may

27  be appealed.

28         (2)  If the court or jury determines that the person is

29  a sexually violent predator, upon the expiration of all

30  criminal sentences and discharge of any detainers, the person

31  shall be committed to the custody of the Department of

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  1  Children and Family Services for control, care, and treatment

  2  until such time as the person's mental abnormality or

  3  personality disorder has so changed that it is safe for the

  4  person to be at large. At all times, sexually violent

  5  predators who are committed for control, care, and treatment

  6  by the Department of Children and Family Services under this

  7  section shall be kept in a secure facility segregated from

  8  patients who are not committed under this section.

  9         Section 12.  Section 916.38, Florida Statutes, 1998

10  Supplement, is transferred, renumbered as section 394.918,

11  Florida Statutes, and amended to read:

12         394.918 916.38  Examinations; notice; court hearings

13  for release of committed persons; burden of proof.--

14         (1)  A person committed under this part ss.

15  916.31-916.49 shall have an examination of his or her mental

16  condition once every year or more frequently at the court's

17  discretion. The person may retain or, if the person is

18  indigent and so requests, the court may appoint, a qualified

19  professional to examine the person. Such a professional shall

20  have access to all records concerning the person. The results

21  of the examination shall be provided to the court that

22  committed the person under this part ss. 916.31-916.49. Upon

23  receipt of the report, the court shall conduct a review of the

24  person's status.

25         (2)  The department shall provide the person with

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

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

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

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

30  the notice and waiver form to the court.

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

  2  determine whether there is probable cause to believe that the

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

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

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

  6  right to be represented by counsel at the probable cause

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

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

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

10  the court on the issue.

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

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

13  constitutional protections afforded the person at the initial

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

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

16  examined by professionals chosen by the state. At the hearing,

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

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

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

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

21  violence.

22         Section 13.  Section 916.39, Florida Statutes, 1998

23  Supplement, is transferred, renumbered as section 394.919,

24  Florida Statutes, and amended to read:

25         394.919 916.39  Authorized petition for release;

26  procedure.--

27         (1)  If the secretary of Children and Family Services

28  or the secretary's designee at any time determines that the

29  person is not likely to commit acts of sexual violence if

30  conditionally discharged, the secretary or the secretary's

31  designee shall authorize the person to petition the court for

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  1  release.  The petition shall be served upon the court and the

  2  state attorney. The court, upon receipt of such a petition,

  3  shall order a trial before the court within 30 days, unless

  4  continued for good cause.

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

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

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

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

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

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

11  likely to engage in acts of sexual violence.

12         Section 14.  Section 916.40, Florida Statutes, 1998

13  Supplement, is transferred, renumbered as section 394.920,

14  Florida Statutes, and amended to read:

15         394.920 916.40  Petition for release.--Sections

16  916.31-916.49 do not prohibit A person is not prohibited from

17  filing a petition for discharge at any time after commitment

18  under this part. However, if the person has previously filed

19  such a petition without the approval of the secretary of

20  Children and Family Services or the secretary's designee and

21  the court determined that the petition was without merit, a

22  subsequent petition shall be denied unless the petition

23  contains facts upon which a court could find that the person's

24  condition has so changed that a probable cause hearing is

25  warranted.

26         Section 15.  Section 916.41, Florida Statutes, 1998

27  Supplement, is transferred, renumbered as section 394.921,

28  Florida Statutes, and amended to read:

29         394.921 916.41  Release of records to agencies,

30  multidisciplinary teams, and state attorney.--

31

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

  2  information and records that are otherwise confidential or

  3  privileged shall be released to the agency having

  4  jurisdiction, to a multidisciplinary team, or to the state

  5  attorney for the purpose of meeting the notice requirements of

  6  this part ss. 916.31-916.49 and determining whether a person

  7  is or continues to be a sexually violent predator. A person,

  8  agency, or entity receiving information under this section

  9  which is confidential and exempt from the provisions of s.

10  119.07(1) must maintain the confidentiality of that

11  information. Such information does not lose its confidential

12  status due to its release under this section.

13         (2)  Psychological or psychiatric reports, drug and

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

15  impact statements that have been submitted to the court or

16  admitted into evidence under this part ss. 916.31-916.49 shall

17  be part of the record but shall be sealed and may be opened

18  only pursuant to a court order.

19         Section 16.  Section 916.42, Florida Statutes, 1998

20  Supplement, is transferred, renumbered as section 394.922,

21  Florida Statutes, and amended to read:

22         394.922 916.42  Constitutional requirements.--The

23  long-term control, care, and treatment of a person committed

24  under this part ss. 916.31-916.49 must conform to

25  constitutional requirements.

26         Section 17.  Section 916.43, Florida Statutes, 1998

27  Supplement, is transferred, renumbered as section 394.923,

28  Florida Statutes, and amended to read:

29         394.923 916.43  Immunity from civil liability.--The

30  agency with jurisdiction and its officers and employees; the

31  department and its officers and employees; members of the

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  1  multidisciplinary team; the state attorney and the state

  2  attorney's employees; and those involved in the evaluation,

  3  care, and treatment of sexually violent persons committed

  4  under this part ss. 916.31-916.49 are immune from any civil

  5  liability for good faith conduct under this part ss.

  6  916.31-916.49.

  7         Section 18.  Section 916.44, Florida Statutes, 1998

  8  Supplement, is transferred, renumbered as section 394.924,

  9  Florida Statutes, and amended to read:

10         394.924 916.44  Severability.--If any section,

11  subsection, or provision of this part ss. 916.31-916.49 is

12  held to be unconstitutional or invalid by a court of competent

13  jurisdiction, the remaining portions of this part ss.

14  916.31-916.49 shall be unaffected because the Legislature

15  declares that the provisions of this part ss. 916.31-916.49

16  are severable from each other.

17         Section 19.  Section 916.45, Florida Statutes, 1998

18  Supplement, is transferred, renumbered as section 394.925,

19  Florida Statutes, and amended to read:

20         394.925 916.45  Applicability of act.--This part

21  applies Sections 916.31-916.49 apply to all persons currently

22  in custody who have been convicted of a sexually violent

23  offense, as that term is defined in s. 394.912(9) s.

24  916.32(8), as well as to all persons convicted of a sexually

25  violent offense and sentenced to confinement in the future.

26         Section 20.  Section 916.46, Florida Statutes, 1998

27  Supplement, is transferred, renumbered as section 394.926,

28  Florida Statutes, and amended to read:

29         394.926 916.46  Notice to victims of release of persons

30  committed as sexually violent predators; notice to Department

31  of Corrections and Parole Commission.--

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  1         (1)  As soon as is practicable, the department shall

  2  give written notice of the release of a person committed as a

  3  sexually violent predator to any victim of the committed

  4  person who is alive and whose address is known to the

  5  department or, if the victim is deceased, to the victim's

  6  family, if the family's address is known to the department.

  7  Failure to notify is not a reason for postponement of release.

  8  This section does not create a cause of action against the

  9  state or an employee of the state acting within the scope of

10  the employee's employment as a result of the failure to notify

11  pursuant to this part ss. 916.31-916.49.

12         (2)  If a sexually violent predator who has an active

13  or pending term of probation, community control, parole,

14  conditional release, or other court-ordered or post-prison

15  release supervision is released from custody, the department

16  must immediately notify the Department of Corrections' Office

17  of Community Corrections in Tallahassee. The Parole Commission

18  must also be immediately notified of any releases of a

19  sexually violent predator who has an active or pending term of

20  parole, conditional release, or other post-prison release

21  supervision that is administered by the Parole Commission.

22         Section 21.  Section 916.47, Florida Statutes, 1998

23  Supplement, is transferred, renumbered as section 394.927,

24  Florida Statutes, and amended to read:

25         394.927 916.47  Escape while in lawful custody; notice

26  to victim; notice to the Department of Corrections and Parole

27  Commission.--

28         (1)  A person who is held in lawful custody pursuant to

29  a judicial finding of probable cause under s. 394.915 s.

30  916.35 or pursuant to a commitment as a sexually violent

31  predator under s. 394.916 s. 916.36 and who escapes or

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

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

  3  775.083, or s. 775.084.

  4         (2)  If a person who is held in custody pursuant to a

  5  finding of probable cause or commitment as a sexually violent

  6  predator escapes while in custody, the department shall

  7  immediately notify the victim in accordance with s. 394.926.

  8  The state attorney that filed the petition for civil

  9  commitment of the escapee must also be immediately notified by

10  the department. If the escapee has an active or pending term

11  of probation, community control, parole, conditional release,

12  or other court-ordered or post-prison release supervision, the

13  department shall also immediately notify the Department of

14  Corrections' Office of Community Corrections in Tallahassee.

15  The Parole Commission shall also be immediately notified of an

16  escape if the escapee has an active or pending term of parole,

17  conditional release, or other post-prison release supervision

18  that is administered by the Parole Commission.

19         Section 22.  Section 916.48, Florida Statutes, 1998

20  Supplement, is transferred, renumbered as section 394.928,

21  Florida Statutes, and amended to read:

22         394.928 916.48  Subsistence fees and costs of

23  treatment.--

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

25  under this part ss. 916.31-916.49 may have sources of income

26  and assets, which may include bank accounts, inheritances,

27  real estate, social security payments, veteran's payments, and

28  other types of financial resources, and in recognition of the

29  fact that the daily subsistence cost and costs of treatment of

30  persons committed under this part ss. 916.31-916.49 are a

31

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  1  burden on the taxpayers of the state, each person so committed

  2  shall:

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

  4  disclose all revenue or assets to the department.

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

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

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

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

  9  potential liability of the person to the victim or the

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

11  her dependents.

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

13  portion of daily subsistence and treatment costs is entitled

14  to reasonable advance notice of the assessment and shall be

15  afforded an opportunity to present reasons for opposition to

16  the assessment.

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

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

19  against the estate of the person.

20         Section 23.  Section 916.49, Florida Statutes, 1998

21  Supplement, is transferred, renumbered as section 394.929,

22  Florida Statutes, and amended to read:

23         394.929 916.49  Department of Children and Family

24  Services responsible for costs.--The Department of Children

25  and Family Services is responsible for all costs relating to

26  the evaluation and treatment of persons committed to the

27  department's custody as sexually violent predators. A county

28  is not obligated to fund costs for psychological examinations,

29  expert witnesses, court-appointed counsel, or other costs

30  required by this part ss. 916.31-916.49. Other costs for

31  psychological examinations, expert witnesses, and

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  1  court-appointed counsel required by this part ss.

  2  916.31-916.49 shall be paid from state funds appropriated by

  3  general law.

  4         Section 24.  Section 394.930, Florida Statutes, is

  5  created to read:

  6         394.930  Authority to adopt rules.--The Department of

  7  Children and Family Services shall adopt rules for:

  8         (1)  The qualifications necessary to designate and

  9  contract with a psychiatrist or psychologist to serve on a

10  multidisciplinary team;

11         (2)  Procedures that must be followed by members of the

12  multidisciplinary teams when assessing and evaluating persons

13  subject to this part;

14         (3)  The criteria that must exist in order for a

15  multidisciplinary team to recommend to a state attorney that a

16  petition should be filed to involuntarily commit a person

17  under this part;

18         (4)  The designation of secure facilities for sexually

19  violent predators who are subject to involuntary commitment

20  under this part;

21         (5)  The general treatment plan for all committed

22  persons under this part and all other authorized treatment, or

23  procedure for obtaining approval from the department for

24  treatment that is not delineated or described in the rules of

25  the department for sexually violent predators who are

26  committed under this part; and

27         (6)  The protocol to inform a person that he or she is

28  being examined to determine whether he or she is a sexually

29  violent predator under this part.

30         Section 25.  This act shall take effect upon becoming a

31  law.

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  1            *****************************************

  2                          SENATE SUMMARY

  3    Transfers provisions governing the involuntary commitment
      of sexually violent predators to chapter 394, Florida
  4    Statutes, relating to mental health. Redefines the term
      "sexually violent offense" to narrow the applicability of
  5    the act. Revises provisions for examination of persons
      alleged to be sexually violent predators. Provides that
  6    rules of evidence and civil procedure apply in
      proceedings under this act, that the
  7    psychotherapist-patient privilege does not apply, that
      prior behavior may be considered, and that hearsay may be
  8    admissible. Provides additional requirements for notice
      when a person committed as a sexually violent predator is
  9    to be released or escapes.

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