Senate Bill 2192c1

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    Florida Senate - 1999                           CS for SB 2192

    By the Committee on Children and Families; and Senator Klein





    300-1974-99

  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; providing

22         clarification on assessments and

23         recommendations to state attorneys; creating s.

24         394.9135, F.S.; prescribing procedures to be

25         followed for evaluation and filing petitions

26         for offenders being immediately released from

27         confinement; renumbering and amending s.

28         916.34, F.S.; revising requirements for filing

29         a petition; renumbering and amending s. 916.35,

30         F.S.; revising procedures relating to

31         determination of probable cause; creating s.

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  1         394.9155, F.S.; providing rules of procedure

  2         and evidence; renumbering and amending s.

  3         916.36, F.S.; prescribing jury size in a trial

  4         to determine whether a person is a sexually

  5         violent predator;  renumbering and amending s.

  6         916.37, F.S.; revising commitment procedures;

  7         providing for payment for counsel and costs in

  8         cases involving indigent defendants;

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

10         conforming cross-references; renumbering and

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

12         terminology; renumbering and amending s.

13         916.40, F.S.; revising procedures for

14         petitioning for release; renumbering and

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

16         relating to release of records; renumbering and

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

18         cross-references; renumbering and amending s.

19         916.43, F.S.; conforming cross-references;

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

21         conforming cross-references; renumbering and

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

23         relating to applicability of act; renumbering

24         and amending s. 916.46, F.S.; revising notice

25         requirements upon release of persons committed

26         as sexually violent predators; renumbering and

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

28         to notify specified persons upon escape of

29         person committed as sexually violent predators;

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

31         conforming cross-references; renumbering and

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

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

  3         directing the Department of Children and Family

  4         Services to adopt certain rules; requiring the

  5         Department of Corrections to produce quarterly

  6         reports; requiring the Office of Program Policy

  7         Analysis and Government Accountability to

  8         conduct a study and report to the Legislature;

  9         providing an effective date.

10

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

12

13         Section 1.  The Division of Statutory Revision is

14  requested to designate sections 394.910-394.930, Florida

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

16  entitle such part as "Involuntary Civil Commitment of Sexually

17  Violent Predators."

18         Section 2.  Section 916.31, Florida Statutes, 1998

19  Supplement, is transferred, renumbered as section 394.910,

20  Florida Statutes, and amended to read:

21         394.910 916.31  Legislative findings and intent.--The

22  Legislature finds that a small but extremely dangerous number

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

24  disease or defect that renders them appropriate for

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

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

27  short-term treatment to individuals with serious mental

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

29  to persons appropriate for civil commitment under the Baker

30  Act, sexually violent predators generally have antisocial

31  personality features which are unamenable to existing mental

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  1  illness treatment modalities, and those features render them

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

  3  Legislature further finds that the likelihood of sexually

  4  violent predators engaging in repeat acts of predatory sexual

  5  violence is high. The existing involuntary commitment

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

  7  mentally ill persons are inadequate to address the risk these

  8  sexually violent predators pose to society. The Legislature

  9  further finds that the prognosis for rehabilitating sexually

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

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

12  modalities for this population are very different from the

13  traditional treatment modalities for people appropriate for

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

15  the Legislature to create a civil commitment procedure for the

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

17         Section 3.  Section 394.911, Florida Statutes, is

18  created to read:

19         394.911  Legislative intent.--The Legislature intends

20  that persons who are subject to the civil commitment procedure

21  for sexually violent predators under this part be subject to

22  the procedures established in this part and not to the

23  provisions of part I of this chapter. Less restrictive

24  alternatives are not applicable to cases initiated under this

25  part.

26         Section 4.  Section 916.32, Florida Statutes, 1998

27  Supplement, is transferred, renumbered as section 394.912,

28  Florida Statutes, and amended to read:

29         394.912 916.32  Definitions.--As used in this part ss.

30  916.31-916.49, the term:

31

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

  2  releases, upon lawful order or authority, a person who is

  3  serving a sentence in the custody of the Department of

  4  Corrections, a person who was adjudicated delinquent and is

  5  committed to the custody of the Department of Juvenile

  6  Justice, or a person who was involuntarily committed to the

  7  custody of the Department of Children and Family Services upon

  8  an adjudication of not guilty by reason of insanity.

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

10  person who has been:

11         (a)  Adjudicated guilty of a sexually violent offense

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

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

14  sexually violent offense; or

15         (c)  Adjudicated delinquent of a sexually violent

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

17  contendere.

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

19  Family Services.

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

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

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

23  and safety of others.

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

25  affecting a person's emotional or volitional capacity which

26  predisposes the person to commit sexually violent offenses.

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

28  older who is a potential or actual subject of proceedings

29  under this part ss. 916.31-916.49.

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

31  of Children and Family Services.

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  1         (8)(7)  "Sexually motivated" means that one of the

  2  purposes for which the defendant committed the crime was for

  3  sexual gratification.

  4         (9)(8)  "Sexually violent offense" means:

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

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

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

  8  in the course of that offense, committing:

  9         1.  Sexual battery; or

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

11  or in the presence of the child;

12         (c)  Committing the offense of false imprisonment upon

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

14  offense, committing:

15         1.  Sexual battery; or

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

17  or in the presence of the child;

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

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

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

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

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

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

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

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

26  federal conviction or conviction in another state for a felony

27  offense that in this state would be a sexually violent

28  offense; or

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

30  sentencing for the offense or subsequently during civil

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

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  1  been determined beyond a reasonable doubt to have been

  2  sexually motivated.

  3         (10)(9)  "Sexually violent predator" means any person

  4  who:

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

  6  and

  7         (b)  Suffers from a mental abnormality or personality

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

  9  sexual violence if not confined in a secure facility for

10  long-term control, care, and treatment.

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

12  currently being held in any physically secure facility being

13  operated or contractually operated for the Department of

14  Corrections, the Department of Juvenile Justice, or the

15  Department of Children and Family Services.

16         Section 5.  Section 916.33, Florida Statutes, 1998

17  Supplement, is transferred, renumbered as section 394.913,

18  Florida Statutes, and amended to read:

19         394.913 916.33  Notice to state attorney and

20  multidisciplinary team of release of sexually violent

21  predator; establishing multidisciplinary teams; information to

22  be provided to multidisciplinary teams team.--

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

24  been convicted of a sexually violent offense shall give

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

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

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

28  never been convicted of a sexually violent offense in this

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

30  another state or in federal court, the agency with

31  jurisdiction shall give written notice to the

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

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

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

  4  pursuant to interstate compact and has a prior or current

  5  conviction for a sexually violent offense, the agency with

  6  jurisdiction shall give written notice to the

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

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

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

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

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

12  multidisciplinary team and the state attorney at least 365 180

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

14  at least 90 days before:

15         (a)  The anticipated release from total confinement of

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

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

18  total confinement for no more than 90 days, written notice

19  must be given as soon as practicable following the person's

20  return to confinement; or

21         (b)  The anticipated hearing regarding possible release

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

23  insanity or mental incapacity of a sexually violent offense.

24         (2)  The agency with jurisdiction shall provide the

25  multidisciplinary team with the following information:

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

27  anticipated future residence; the type of supervision the

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

29  offense history; and

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

31  reports, victim statements, presentence investigation reports,

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  1  post-sentence investigation reports, if available, and any

  2  other documents containing facts of the person's criminal

  3  incidents;

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

  5  including all clinical records and notes concerning the

  6  person;

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

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

  9  delinquent committed to the Department of Juvenile Justice,

10  copies of the most recent performance plan and performance

11  summary; and.

12         (e)  If the person was returned to custody after a

13  period of supervision, documentation of adjustment during

14  supervision and any treatment received.

15

16  The provisions of this section are not jurisdictional, and

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

18  attorney from proceeding against a person otherwise subject to

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

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

21  shall establish a multidisciplinary team or teams, which shall

22  include two licensed psychiatrists or psychologists, or one

23  licensed psychiatrist and one licensed psychologist,

24  designated by the Secretary of Children and Family Services.

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

26  two licensed psychiatrists or psychologists or one licensed

27  psychiatrist and one licensed psychologist. The

28  multidisciplinary team shall assess and evaluate each person

29  referred to the team. The assessment and evaluation shall

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

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

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

  2  whether such person is a sexually violent predator.

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

  4  warranted, a mental health examination, including a personal

  5  interview, of the person by a licensed psychiatrist or

  6  licensed clinical psychologist who is a member of the

  7  multidisciplinary team or who is otherwise designated by the

  8  department.

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

10  counsel to the multidisciplinary team.

11         (e)  The team, Within 45 days after receiving notice,

12  there shall be a written assessment as to assess whether the

13  person meets the definition of a sexually violent predator and

14  a written recommendation, which shall be provided to provide

15  the state attorney with its written assessment and

16  recommendation. The written recommendation shall be provided

17  by the Department of Children and Family Services and shall

18  include the written report of the multidisciplinary team.

19         Section 6.  Section 394.9135, Florida Statutes, is

20  created to read:

21         394.9135  Immediate releases from total confinement;

22  transfer of person to department; time limitations on

23  assessment, notification, and filing petition to hold in

24  custody; filing petition after release.--

25         (1)  If the anticipated release from total confinement

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

27  offense becomes immediate for any reason, the agency with

28  jurisdiction shall upon immediate release from total

29  confinement transfer that person to the custody of the

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

31  appropriate secure facility.

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  1         (2)  Within 72 hours after transfer, the

  2  multidisciplinary team shall assess whether the person meets

  3  the definition of a sexually violent predator. If the

  4  multidisciplinary team determines that the person does not

  5  meet the definition of a sexually violent predator, that

  6  person shall be immediately released. If the multidisciplinary

  7  team determines that the person meets the definition of a

  8  sexually violent predator, the team shall provide the state

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

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

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

12  next working day thereafter.

13         (3)  Within 48 hours after receipt of the written

14  assessment and recommendation from the multidisciplinary team,

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

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

17  sexually violent predator and stating facts sufficient to

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

19  hours after receipt of the written assessment and

20  recommendation by the state attorney, the person shall be

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

22  section and the judge determines that there is probable cause

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

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

25  in an appropriate secure facility for further proceedings in

26  accordance with this part.

27         (4)  The provisions of this section are not

28  jurisdictional, and failure to comply with the time

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

30  been convicted of a sexually violent offense, is not

31  dispositive of the case and does not prevent the state

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  1  attorney from proceeding against a person otherwise subject to

  2  the provisions of this part.

  3         Section 7.  Section 916.34, Florida Statutes, 1998

  4  Supplement, is transferred, renumbered as section 394.914,

  5  Florida Statutes, and amended to read:

  6         394.914 916.34  Petition; time; contents.--Following

  7  receipt of the written assessment and recommendation from the

  8  multidisciplinary team, the state attorney, in accordance with

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

10  the sexually violent offense may file a petition with the

11  circuit court alleging that the person is a sexually violent

12  predator and stating facts sufficient to support such

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

14  petition under this section.

15         Section 8.  Section 916.35, Florida Statutes, 1998

16  Supplement, is transferred, renumbered as section 394.915,

17  Florida Statutes, and amended to read:

18         394.915 916.35  Determination of probable cause;

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

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

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

22  judge shall determine whether probable cause exists to believe

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

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

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

26  judge shall order direct that the person remain in custody and

27  be immediately transferred to be taken into custody and held

28  in an appropriate secure facility if the person's

29  incarcerative sentence expires.

30         (2)  Upon the expiration of the incarcerative sentence

31  and before the release from custody of a person whom the

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  1  multidisciplinary team recommends for civil commitment, but

  2  after the state attorney files a petition under s. 394.914 s.

  3  916.33, the state attorney may further petition the court for

  4  an adversarial probable cause hearing. The person shall be

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

  6  person at, an adversarial hearing. At this hearing, the judge

  7  shall:

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

  9  and the state attorney; and

10         (b)  Determine whether probable cause exists to believe

11  that the person is a sexually violent predator.

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

13  person has the right to:

14         (a)  Be represented by counsel;

15         (b)  Present evidence;

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

17  the person; and

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

19  court file.

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

21  probable cause to believe that the person is a sexually

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

23  held in an appropriate secure facility upon the expiration of

24  his or her incarcerative sentence in the county where the

25  petition was filed for an evaluation by a mental health

26  professional.

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

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

29  held in custody in a secure facility without opportunity for

30  pretrial release or release during the trial proceedings.

31

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  1         Section 9.  Section 394.9155, Florida Statutes, is

  2  created to read:

  3         394.9155  Rules of procedures and evidence.--In all

  4  civil commitment proceedings for sexually violent predators

  5  under this part, the following shall apply:

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

  7  otherwise specified in this part;

  8         (2)  The Florida Rules of Evidence apply unless

  9  otherwise specified in this part;

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

11  90.503 does not exist or apply for communications relevant to

12  an issue in proceedings to involuntarily commit a person under

13  this part;

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

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

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

17  abnormality, personality disorder, or propensity to commit

18  sexual offenses; and

19         (5)  Hearsay evidence, including reports of a member of

20  the multidisciplinary team or reports produced on behalf of

21  the multidisciplinary team, is admissible in proceedings under

22  this part unless the court finds that such evidence is not

23  reliable.

24         Section 10.  Section 916.36, Florida Statutes, 1998

25  Supplement, is transferred, renumbered as section 394.916,

26  Florida Statutes, and amended to read:

27         394.916 916.36  Trial; counsel and experts; indigent

28  persons; jury.--

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

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

31  the person is a sexually violent predator.

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

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

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

  4  will not be substantially prejudiced.

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

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

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

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

  9  counsel to assist the person.

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

11  examination under this part chapter, the person also may

12  retain experts or mental health professionals to perform an

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

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

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

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

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

18  request, shall determine whether such an examination is

19  necessary. If the court determines that an examination is

20  necessary, the court shall appoint a mental health

21  professional and determine the reasonable compensation for the

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

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

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

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

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

27  be to the court.

28         Section 11.  Section 916.37, Florida Statutes, 1998

29  Supplement, is transferred, renumbered as section 394.917,

30  Florida Statutes, and amended to read:

31

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  1         394.917 916.37  Determination; commitment procedure;

  2  mistrials; housing; counsel and costs in indigent appellate

  3  cases.--

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

  5  convincing evidence whether the person is a sexually violent

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

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

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

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

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

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

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

13  proceed according to the provisions of this part ss.

14  916.31-916.49. Any retrial must occur within 90 days after the

15  previous trial, unless the subsequent proceeding is continued

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

17  determination that a person is a sexually violent predator may

18  be appealed.

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

20  a sexually violent predator, upon the expiration of the

21  incarcerative portion of all criminal sentences and

22  disposition of any detainers other than detainers for

23  deportation by the United States Immigration and

24  Naturalization Service, the person shall be committed to the

25  custody of the Department of Children and Family Services for

26  control, care, and treatment until such time as the person's

27  mental abnormality or personality disorder has so changed that

28  it is safe for the person to be at large. At all times,

29  sexually violent predators who are committed for control,

30  care, and treatment by the Department of Children and Family

31  Services under this section shall be kept in a secure facility

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  1  segregated from patients who are not committed under this

  2  section.

  3         (3)  The public defender of the circuit in which a

  4  person was determined to be a sexually violent predator shall

  5  be appointed to represent the person on appeal. That public

  6  defender may request the public defender who handles criminal

  7  appeals for the circuit to represent the person on appeal in

  8  the manner provided in s. 27.51(4). If the public defender is

  9  unable to represent the person on appeal due to a conflict,

10  the court shall appoint other counsel, who shall be

11  compensated at a rate not less than that provided for

12  appointed counsel in criminal cases. Filing fees for indigent

13  appeals under this act are waived. Costs and fees related to

14  such appeals, including the amounts paid for records,

15  transcripts, and compensation of appointed counsel, shall be

16  authorized by the trial court and paid from state funds that

17  are appropriated for such purposes.

18         Section 12.  Section 916.38, Florida Statutes, 1998

19  Supplement, is transferred, renumbered as section 394.918,

20  Florida Statutes, and amended to read:

21         394.918 916.38  Examinations; notice; court hearings

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

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

24  916.31-916.49 shall have an examination of his or her mental

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

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

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

28  professional to examine the person. Such a professional shall

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

30  of the examination shall be provided to the court that

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

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

  2  person's status.

  3         (2)  The department shall provide the person with

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

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

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

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

  8  the notice and waiver form to the court.

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

10  determine whether there is probable cause to believe that the

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

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

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

14  right to be represented by counsel at the probable cause

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

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

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

18  the court on the issue.

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

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

21  constitutional protections afforded the person at the initial

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

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

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

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

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

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

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

29  violence.

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  1         Section 13.  Section 916.39, Florida Statutes, 1998

  2  Supplement, is transferred, renumbered as section 394.919,

  3  Florida Statutes, and amended to read:

  4         394.919 916.39  Authorized petition for release;

  5  procedure.--

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

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

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

  9  conditionally discharged, the secretary or the secretary's

10  designee shall authorize the person to petition the court for

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

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

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

14  continued for good cause.

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

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

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

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

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

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

21  likely to engage in acts of sexual violence.

22         Section 14.  Section 916.40, Florida Statutes, 1998

23  Supplement, is transferred, renumbered as section 394.920,

24  Florida Statutes, and amended to read:

25         394.920 916.40  Petition for release.--Sections

26  916.31-916.49 do not prohibit A person is not prohibited from

27  filing a petition for discharge at any time after commitment

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

29  such a petition without the approval of the secretary of

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

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

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  1  subsequent petition shall be denied unless the petition

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

  3  condition has so changed that a probable cause hearing is

  4  warranted.

  5         Section 15.  Section 916.41, Florida Statutes, 1998

  6  Supplement, is transferred, renumbered as section 394.921,

  7  Florida Statutes, and amended to read:

  8         394.921 916.41  Release of records to agencies,

  9  multidisciplinary teams, and state attorney.--

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

11  information and records that are otherwise confidential or

12  privileged shall be released to the agency with having

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

14  attorney for the purpose of meeting the notice requirements of

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

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

17  agency, or entity receiving information under this section

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

19  119.07(1) must maintain the confidentiality of that

20  information. Such information does not lose its confidential

21  status due to its release under this section.

22         (2)  Psychological or psychiatric reports, drug and

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

24  impact statements that have been submitted to the court or

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

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

27  only pursuant to a court order.

28         Section 16.  Section 916.42, Florida Statutes, 1998

29  Supplement, is transferred, renumbered as section 394.922,

30  Florida Statutes, and amended to read:

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  1         394.922 916.42  Constitutional requirements.--The

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

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

  4  constitutional requirements.

  5         Section 17.  Section 916.43, Florida Statutes, 1998

  6  Supplement, is transferred, renumbered as section 394.923,

  7  Florida Statutes, and amended to read:

  8         394.923 916.43  Immunity from civil liability.--The

  9  agency with jurisdiction and its officers and employees; the

10  department and its officers and employees; members of the

11  multidisciplinary team; the state attorney and the state

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

13  care, and treatment of sexually violent persons committed

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

15  liability for good faith conduct under this part ss.

16  916.31-916.49.

17         Section 18.  Section 916.44, Florida Statutes, 1998

18  Supplement, is transferred, renumbered as section 394.924,

19  Florida Statutes, and amended to read:

20         394.924 916.44  Severability.--If any section,

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

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

23  jurisdiction, the remaining portions of this part ss.

24  916.31-916.49 shall be unaffected because the Legislature

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

26  are severable from each other.

27         Section 19.  Section 916.45, Florida Statutes, 1998

28  Supplement, is transferred, renumbered as section 394.925,

29  Florida Statutes, and amended to read:

30         394.925 916.45  Applicability of act.--This part

31  applies Sections 916.31-916.49 apply to all persons currently

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  1  in custody who have been convicted of a sexually violent

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

  3  916.32(8), as well as to all persons convicted of a sexually

  4  violent offense and sentenced to total confinement in the

  5  future.

  6         Section 20.  Section 916.46, Florida Statutes, 1998

  7  Supplement, is transferred, renumbered as section 394.926,

  8  Florida Statutes, and amended to read:

  9         394.926 916.46  Notice to victims of release of persons

10  committed as sexually violent predators; notice to Department

11  of Corrections and Parole Commission.--

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

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

14  sexually violent predator to any victim of the committed

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

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

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

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

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

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

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

22  pursuant to this part ss. 916.31-916.49.

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

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

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

26  release supervision is released from custody, the department

27  must immediately notify the Department of Corrections' Office

28  of Community Corrections in Tallahassee. The Parole Commission

29  must also be immediately notified of any releases of a

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

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

  2  supervision that is administered by the Parole Commission.

  3         Section 21.  Section 916.47, Florida Statutes, 1998

  4  Supplement, is transferred, renumbered as section 394.927,

  5  Florida Statutes, and amended to read:

  6         394.927 916.47  Escape while in lawful custody; notice

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

  8  Commission.--

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

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

11  916.35 or pursuant to a commitment as a sexually violent

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

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

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

15  775.083, or s. 775.084.

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

17  finding of probable cause or commitment as a sexually violent

18  predator escapes while in custody, the department shall

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

20  The state attorney that filed the petition for civil

21  commitment of the escapee must also be immediately notified by

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

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

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

25  department shall also immediately notify the Department of

26  Corrections' Office of Community Corrections in Tallahassee.

27  The Parole Commission shall also be immediately notified of an

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

29  conditional release, or other post-prison release supervision

30  that is administered by the Parole Commission.

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  1         Section 22.  Section 916.48, Florida Statutes, 1998

  2  Supplement, is transferred, renumbered as section 394.928,

  3  Florida Statutes, and amended to read:

  4         394.928 916.48  Subsistence fees and costs of

  5  treatment.--

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

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

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

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

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

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

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

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

14  shall:

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

16  disclose all revenue or assets to the department.

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

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

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

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

21  potential liability of the person to the victim or the

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

23  her dependents.

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

25  portion of daily subsistence and treatment costs is entitled

26  to reasonable advance notice of the assessment and shall be

27  afforded an opportunity to present reasons for opposition to

28  the assessment.

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

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

31  against the estate of the person.

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  1         Section 23.  Section 916.49, Florida Statutes, 1998

  2  Supplement, is transferred, renumbered as section 394.929,

  3  Florida Statutes, and amended to read:

  4         394.929 916.49  Department of Children and Family

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

  6  and Family Services is responsible for all costs relating to

  7  the evaluation and treatment of persons committed to the

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

  9  is not obligated to fund costs for psychological examinations,

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

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

12  psychological examinations, expert witnesses, and

13  court-appointed counsel required by this part ss.

14  916.31-916.49 shall be paid from state funds appropriated by

15  general law.

16         Section 24.  Section 394.930, Florida Statutes, is

17  created to read:

18         394.930  Authority to adopt rules.--The Department of

19  Children and Family Services shall adopt rules for:

20         (1)  The qualifications necessary to designate and

21  contract with a psychiatrist or psychologist to serve on a

22  multidisciplinary team;

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

24  multidisciplinary teams when assessing and evaluating persons

25  subject to this part;

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

27  multidisciplinary team to recommend to a state attorney that a

28  petition should be filed to involuntarily commit a person

29  under this part;

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  1         (4)  The designation of secure facilities for sexually

  2  violent predators who are subject to involuntary commitment

  3  under this part;

  4         (5)  The general treatment plan for all committed

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

  6  procedure for obtaining approval from the department for

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

  8  the department for sexually violent predators who are

  9  committed under this part; and

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

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

12  violent predator under this part.

13         Section 25.  Beginning July 1, 1999, the Department of

14  Corrections shall collect information and compile quarterly

15  reports with statistics profiling inmates released the

16  previous quarter who fit the criteria and were referred to the

17  Department of Children and Family Services pursuant to this

18  act. The quarterly reports must be produced beginning October

19  1, 1999. At a minimum, the information that must be collected

20  and compiled for inclusion in the reports includes: whether

21  the qualifying offense was the current offense or the prior

22  offense; the most serious sexual offense; the total number of

23  distinct victims of the sexual offense; whether the victim was

24  known to the offender; whether the sexual act was consensual;

25  whether the sexual act involved multiple victims; whether

26  direct violence was involved in the sexual offense; the age of

27  each victim at the time of the offense; the age of the

28  offender at the time of the first sexual offense; whether a

29  weapon was used; length of time since the most recent sexual

30  offense; and the total number of prior and current

31  sexual-offense convictions.

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  1         Section 26.  (1)  The Office of Program Policy Analysis

  2  and Government Accountability shall conduct a study on the

  3  implementation of this act by the Department of Children and

  4  Family Services and shall report its findings and make

  5  recommendations to the Legislature by March 1, 2000.

  6         (2)  The study must include, but need not be limited

  7  to, the following issues:

  8         (a)  The procedures used in assigning persons to a

  9  multidisciplinary team and in assigning a team to a case for

10  evaluation and assessment.

11         (b)  The activities performed by multidisciplinary

12  teams in conducting evaluations and assessments.

13         (c)  The average length of time between the referral of

14  a case by an agency with jurisdiction to the Department of

15  Children and Family Services and the department's

16  recommendation to the state attorney to file a petition or its

17  decision not to make a recommendation to the state attorney to

18  file a petition.

19         (d)  The number of cases referred to the Department of

20  Children and Family Services, the number of cases it

21  recommends to the state attorney for filing, and the number of

22  cases that did not result in a recommendation to the state

23  attorney to file a petition.

24         (e)  A profile of the number of cases and the location

25  of cases that are assigned to the persons who are serving as

26  members of the multidisciplinary teams.

27         (f)  From each of a sample of persons who are serving

28  as members of a multidisciplinary team, the education,

29  professional qualifications, prior work experience, prior and

30  current testimonies as an expert in criminal cases by type of

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  1  case, and number of cases for which he or she is currently

  2  serving as a member of a multidisciplinary team.

  3         Section 27.  This act shall take effect upon becoming a

  4  law.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 2192

  3

  4  Clarifies that less restrictive alternatives specified in
    chapter 394, Part I, F.S., do not apply to cases initiated
  5  under chapter 394, Part V, F.S.

  6  Specifies that if the person was returned to custody after a
    period of supervision, the agency with jurisdiction must
  7  provide to the multidisciplinary team documentation about the
    person's adjustment during supervision and any treatment
  8  received.

  9  Specifies that the written recommendation to the State
    Attorney about the person meeting the definition of a sexually
10  violent predator shall be provided by the Department of
    Children and Family Services and shall include the written
11  report of the multidisciplinary team.

12  Changes the time frame from 24 hours to 48 hours after
    receiving the written assessment and recommendation from the
13  multidisciplinary team for the state attorney to file a
    petition with the circuit court alleging that a person is a
14  sexually violent predator in immediate release cases.

15  Clarifies that when there is probable cause to believe that a
    person is a sexually violent predator, a judge's order must
16  provide for a person to be held and be immediately transferred
    to an appropriate secure facility in the event the person's
17  incarcerative sentence expires.

18  Specifies that hearsay evidence includes reports of a member
    of the multidisciplinary team or reports produced on behalf of
19  the multidisciplinary team and that all hearsay evidence is
    admissible unless it is determined to be unreliable.
20
    Specifies that a detainer for deportation by the United State
21  Immigration and Naturalization Services does not need to be
    disposed of to commit a person to the custody of the
22  Department of Children and Family Services upon a verdict.

23  Specifies that the public defender of the circuit in which a
    person was determined to be a sexually violent predator would
24  be appointed to represent the person on appeal and includes
    provisions concerning conflict cases.
25
    Waives the filing fees for an indigent person who files an
26  appeal under this act.

27  Requires the state to fund costs and fees associated with
    appeals under this act by indigent persons.
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    Requires the Department of Corrections beginning on October 1,
29  1999, to collect information and compile quarterly reports of
    inmates released the previous quarter who meet the criteria of
30  a sexually violent predator under chapter 394, part V, F.S.,
    and were referred to the Department of Children and Family
31  Services.

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  1  Directs the Office of Program Policy Analysis and Government
    Accountability to conduct a study and to submit a report to
  2  the Legislature by March 1, 2000, on the implementation of the
    act by the Department of Children and Family Services with a
  3  specification as to issues that must be studied verdict.

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