Senate Bill 2192e1

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    CS for CS for CS for SB 2192                   First Engrossed



  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; amending s. 27.51,

  8         F.S.; clarifying duty of the public defender to

  9         represent sexually violent predators who are

10         indigent; prohibiting a public defender from

11         representing such persons in civil actions and

12         administrative proceedings; renumbering and

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

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

15         declaring legislative intent with respect to

16         procedures to be used for commitment of

17         sexually violent predators; renumbering and

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

19         "secretary"; redefining the term "sexually

20         violent offense" to revise the applicability of

21         the act; clarifying the term "total

22         confinement" for purposes of the act;

23         renumbering and amending s. 916.33, F.S.;

24         prescribing additional notice requirements;

25         requiring additional information; revising

26         composition of multidisciplinary teams;

27         providing for additional elements of assessment

28         of offenders; providing clarification on

29         assessments and recommendations to state

30         attorneys; creating s. 394.9135, F.S.;

31         prescribing procedures to be followed for


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  1         evaluation and filing petitions for offenders

  2         being immediately released from confinement;

  3         renumbering and amending s. 916.34, F.S.;

  4         revising requirements for filing a petition;

  5         renumbering and amending s. 916.35, F.S.;

  6         revising procedures relating to determination

  7         of probable cause; creating s. 394.9155, F.S.;

  8         providing rules of procedure and evidence;

  9         renumbering and amending s. 916.36, F.S.;

10         prescribing jury size in a trial to determine

11         whether a person is a sexually violent

12         predator; renumbering and amending s. 916.37,

13         F.S.; revising commitment procedures; providing

14         for payment for counsel and costs in cases

15         involving indigent defendants; renumbering and

16         amending s. 916.38, F.S.; conforming

17         cross-references; renumbering and amending s.

18         916.39, F.S.; conforming terminology;

19         renumbering and amending s. 916.40, F.S.;

20         revising procedures for petitioning for

21         release; renumbering and amending s. 916.41,

22         F.S.; revising guidelines relating to release

23         of records; renumbering and amending s. 916.42,

24         F.S.; conforming cross-references; renumbering

25         and amending s. 916.43, F.S.; conforming

26         cross-references; renumbering and amending s.

27         916.44, F.S.; conforming cross-references;

28         renumbering and amending s. 916.45, F.S.;

29         revising provision relating to applicability of

30         act; renumbering and amending s. 916.46, F.S.;

31         revising notice requirements upon release of


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  1         persons committed as sexually violent

  2         predators; renumbering and amending s. 916.47,

  3         F.S.; providing requirement to notify specified

  4         persons upon escape of person committed as

  5         sexually violent predators; renumbering and

  6         amending s. 916.48, F.S.; conforming

  7         cross-references; renumbering and amending s.

  8         916.49, F.S.; conforming cross-references;

  9         creating s. 394.930, F.S.; directing the

10         Department of Children and Family Services to

11         adopt certain rules; requiring the Department

12         of Corrections to produce quarterly reports;

13         requiring the Office of Program Policy Analysis

14         and Government Accountability to conduct a

15         study and report to the Legislature; requiring

16         the Department of Children and Family Services

17         to contract with the Correctional Privatization

18         Commission to create the Jimmy Ryce Treatment

19         Facility; directing a request for proposals be

20         developed and issued by a specified date;

21         providing for an initial capacity of the

22         facility, exempting specified provisions;

23         providing for an interagency agreement for

24         monitoring and auditing of the facility;

25         providing for financing options to be used by

26         the selected contractor; providing an effective

27         date.

28

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

30

31


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  1         Section 1.  The Division of Statutory Revision is

  2  requested to designate sections 394.910-394.930, Florida

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

  4  entitle such part as "Involuntary Civil Commitment of Sexually

  5  Violent Predators."

  6         Section 2.  Subsection (1) of section 27.51, Florida

  7  Statutes, is amended to read:

  8         27.51  Duties of public defender.--

  9         (1)  The public defender shall represent, without

10  additional compensation, any person who is determined by the

11  court to be indigent as provided in s. 27.52 and who is:

12         (a)  Under arrest for, or is charged with, a felony;

13         (b)  Under arrest for, or is charged with, a

14  misdemeanor, a violation of chapter 316 which is punishable by

15  imprisonment, criminal contempt, or a violation of a municipal

16  or county ordinance in the county court, unless the court,

17  prior to trial, files in the cause an order of no imprisonment

18  which states that the defendant will not be imprisoned if he

19  or she is convicted;

20         (c)  Alleged to be a delinquent child pursuant to a

21  petition filed before a circuit court; or

22         (d)  Sought by petition filed in such court to be

23  involuntarily placed as a mentally ill person or sexually

24  violent predator or involuntarily admitted to residential

25  services as a person with developmental disabilities. However,

26  a public defender does not have the authority to represent any

27  person who is a plaintiff in a civil action brought under the

28  Florida Rules of Civil Procedure, the Federal Rules of Civil

29  Procedure, or the Federal Statutes, or who is a petitioner in

30  an administrative proceeding challenging a rule under chapter

31  120, unless specifically authorized by statute.


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  1         Section 3.  Section 916.31, Florida Statutes, 1998

  2  Supplement, is transferred, renumbered as section 394.910,

  3  Florida Statutes, and amended to read:

  4         394.910 916.31  Legislative findings and intent.--The

  5  Legislature finds that a small but extremely dangerous number

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

  7  disease or defect that renders them appropriate for

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

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

10  short-term treatment to individuals with serious mental

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

12  to persons appropriate for civil commitment under the Baker

13  Act, sexually violent predators generally have antisocial

14  personality features which are unamenable to existing mental

15  illness treatment modalities, and those features render them

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

17  Legislature further finds that the likelihood of sexually

18  violent predators engaging in repeat acts of predatory sexual

19  violence is high. The existing involuntary commitment

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

21  mentally ill persons are inadequate to address the risk these

22  sexually violent predators pose to society. The Legislature

23  further finds that the prognosis for rehabilitating sexually

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

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

26  modalities for this population are very different from the

27  traditional treatment modalities for people appropriate for

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

29  the Legislature to create a civil commitment procedure for the

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

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  1         Section 4.  Section 394.911, Florida Statutes, is

  2  created to read:

  3         394.911  Legislative intent.--The Legislature intends

  4  that persons who are subject to the civil commitment procedure

  5  for sexually violent predators under this part be subject to

  6  the procedures established in this part and not to the

  7  provisions of part I of this chapter. Less restrictive

  8  alternatives are not applicable to cases initiated under this

  9  part.

10         Section 5.  Section 916.32, Florida Statutes, 1998

11  Supplement, is transferred, renumbered as section 394.912,

12  Florida Statutes, and amended to read:

13         394.912 916.32  Definitions.--As used in this part ss.

14  916.31-916.49, the term:

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

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

17  serving a sentence in the custody of the Department of

18  Corrections, a person who was adjudicated delinquent and is

19  committed to the custody of the Department of Juvenile

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

21  custody of the Department of Children and Family Services upon

22  an adjudication of not guilty by reason of insanity.

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

24  person who has been:

25         (a)  Adjudicated guilty of a sexually violent offense

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

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

28  sexually violent offense; or

29         (c)  Adjudicated delinquent of a sexually violent

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

31  contendere.


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

  2  Family Services.

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

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

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

  6  and safety of others.

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

  8  affecting a person's emotional or volitional capacity which

  9  predisposes the person to commit sexually violent offenses.

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

11  older who is a potential or actual subject of proceedings

12  under this part ss. 916.31-916.49.

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

14  of Children and Family Services.

15         (8)(7)  "Sexually motivated" means that one of the

16  purposes for which the defendant committed the crime was for

17  sexual gratification.

18         (9)(8)  "Sexually violent offense" means:

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

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

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

22  in the course of that offense, committing:

23         1.  Sexual battery; or

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

25  or in the presence of the child;

26         (c)  Committing the offense of false imprisonment upon

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

28  offense, committing:

29         1.  Sexual battery; or

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

31  or in the presence of the child;


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

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

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

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

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

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

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

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

  9  federal conviction or conviction in another state for a felony

10  offense that in this state would be a sexually violent

11  offense; or

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

13  sentencing for the offense or subsequently during civil

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

15  been determined beyond a reasonable doubt to have been

16  sexually motivated.

17         (10)(9)  "Sexually violent predator" means any person

18  who:

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

20  and

21         (b)  Suffers from a mental abnormality or personality

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

23  sexual violence if not confined in a secure facility for

24  long-term control, care, and treatment.

25         (11)(10)  "Total confinement" means that the person is

26  currently being held in any physically secure facility being

27  operated or contractually operated for the Department of

28  Corrections, the Department of Juvenile Justice, or the

29  Department of Children and Family Services. A person shall

30  also be deemed to be in total confinement for applicability of

31  provisions under this part if the person is serving an


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  1  incarcerative sentence under the custody of the Department of

  2  Corrections or the Department of Juvenile Justice and is being

  3  held in any other secure facility for any reason.

  4         Section 6.  Section 916.33, Florida Statutes, 1998

  5  Supplement, is transferred, renumbered as section 394.913,

  6  Florida Statutes, and amended to read:

  7         394.913 916.33  Notice to state attorney and

  8  multidisciplinary team of release of sexually violent

  9  predator; establishing multidisciplinary teams; information to

10  be provided to multidisciplinary teams team.--

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

12  been convicted of a sexually violent offense shall give

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

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

15  convicted of a sexually violent offense. If the person has

16  never been convicted of a sexually violent offense in this

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

18  another state or in federal court, the agency with

19  jurisdiction shall give written notice to the

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

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

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

23  pursuant to interstate compact and has a prior or current

24  conviction for a sexually violent offense, the agency with

25  jurisdiction shall give written notice to the

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

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

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

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

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

31  multidisciplinary team and the state attorney at least 365 180


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

  2  at least 90 days before:

  3         (a)  The anticipated release from total confinement of

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

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

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

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

  8  return to confinement; or

  9         (b)  The anticipated hearing regarding possible release

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

11  insanity or mental incapacity of a sexually violent offense.

12         (2)  The agency with jurisdiction shall provide the

13  multidisciplinary team with the following information:

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

15  anticipated future residence; the type of supervision the

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

17  offense history; and

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

19  reports, victim statements, presentence investigation reports,

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

21  other documents containing facts of the person's criminal

22  incidents;

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

24  including all clinical records and notes concerning the

25  person;

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

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

28  delinquent committed to the Department of Juvenile Justice,

29  copies of the most recent performance plan and performance

30  summary; and.

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

  2  period of supervision, documentation of adjustment during

  3  supervision and any treatment received.

  4

  5  The provisions of this section are not jurisdictional, and

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

  7  attorney from proceeding against a person otherwise subject to

  8  the provisions of ss. 916.31-916.49.

  9         (3)(a)  The secretary or his or her designee of

10  Children and Family Services shall establish a

11  multidisciplinary team or teams, which shall include two

12  licensed psychiatrists or psychologists, or one licensed

13  psychiatrist and one licensed psychologist, designated by the

14  Secretary of Children and Family Services.

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

16  two licensed psychiatrists or psychologists or one licensed

17  psychiatrist and one licensed psychologist. The

18  multidisciplinary team shall assess and evaluate each person

19  referred to the team. The assessment and evaluation shall

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

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

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

23  whether such person is a sexually violent predator.

24         (c)  Before recommending that a person meets the

25  definition of a sexually violent predator, the person must be

26  offered a personal interview. If the person agrees to

27  participate in a personal interview, at least one member of

28  the team who is a licensed psychiatrist or psychologist must

29  conduct a personal interview of the person. If the person

30  refuses to fully participate in a personal interview, the

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  1  multidisciplinary team may proceed with its recommendation

  2  without a personal interview of the person.

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

  4  counsel to the multidisciplinary team.

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

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

  7  person meets the definition of a sexually violent predator and

  8  a written recommendation, which shall be provided to provide

  9  the state attorney with its written assessment and

10  recommendation. The written recommendation shall be provided

11  by the Department of Children and Family Services and shall

12  include the written report of the multidisciplinary team.

13

14  The provisions of this section are not jurisdictional, and

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

16  attorney from proceeding against a person otherwise subject to

17  the provisions of this part.

18         Section 7.  Section 394.9135, Florida Statutes, is

19  created to read:

20         394.9135  Immediate releases from total confinement;

21  transfer of person to department; time limitations on

22  assessment, notification, and filing petition to hold in

23  custody; filing petition after release.--

24         (1)  If the anticipated release from total confinement

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

26  offense becomes immediate for any reason, the agency with

27  jurisdiction shall upon immediate release from total

28  confinement transfer that person to the custody of the

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

30  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 48

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 8.  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 9.  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 court may conduct an adversarial probable cause

  4  hearing if it determines such hearing is necessary state

  5  attorney may further petition the court for an adversarial

  6  probable cause hearing. The court shall only consider whether

  7  to have an adversarial probable cause hearing in cases where

  8  the failure to begin a trial is not the result of any delay

  9  caused by the respondent. The person shall be provided with

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

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

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

13  and the state attorney; and

14         (b)  Determine whether probable cause exists to believe

15  that the person is a sexually violent predator.

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

17  person has the right to:

18         (a)  Be represented by counsel;

19         (b)  Present evidence;

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

21  the person; and

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

23  court file.

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

25  probable cause to believe that the person is a sexually

26  violent predator, the court shall order direct that the person

27  be held in an appropriate secure facility upon the expiration

28  of his or her incarcerative sentence in the county where the

29  petition was filed for an evaluation by a mental health

30  professional.

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

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

  3  held in custody in a secure facility without opportunity for

  4  pretrial release or release during the trial proceedings.

  5         Section 10.  Section 394.9155, Florida Statutes, is

  6  created to read:

  7         394.9155  Rules of procedure and evidence.--In all

  8  civil commitment proceedings for sexually violent predators

  9  under this part, the following shall apply.

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

11  otherwise specified in this part.

12         (2)  The Florida Rules of Evidence apply unless

13  otherwise specified in this part.

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

15  90.503 does not exist or apply for communications relevant to

16  an issue in proceedings to involuntarily commit a person under

17  this part.

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

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

20  such evidence is relevant to proving that the person is a

21  sexually violent predator.

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

23  the multidisciplinary team or reports produced on behalf of

24  the multidisciplinary team, is admissible in proceedings under

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

26  reliable. In a trial, however, hearsay evidence may not be

27  used as the sole basis for committing a person under this

28  part.

29         (6)  Rules adopted under s. 394.930 shall not

30  constitute:

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  1         (a)  An evidentiary predicate for the admission of any

  2  physical evidence or testimony;

  3         (b)  A basis for excluding or otherwise limiting the

  4  presentation of any physical evidence or testimony in judicial

  5  proceedings under this part; or

  6         (c)  Elements of the cause of action that the state

  7  needs to allege or prove in judicial proceedings under this

  8  part.

  9         (7)  If the person who is subject to proceedings under

10  this part refuses to be interviewed by or fully cooperate with

11  members of the multidisciplinary team or any state mental

12  health expert, the court may, in its discretion:

13         (a)  Order the person to allow members of the

14  multidisciplinary team and any state mental health experts to

15  review all mental health reports, tests, and evaluations by

16  the person's mental health expert or experts; or

17         (b)  Prohibit the person's mental health experts from

18  testifying concerning mental health tests, evaluations, or

19  examinations of the person.

20

21  The failure of any party to comply with such rules shall not

22  constitute a defense in any judicial proceedings under this

23  part.

24         Section 11.  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 12.  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 13.  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.

30

31


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  1         Section 14.  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 15.  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 16.  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 17.  Section 916.42, Florida Statutes, 1998

29  Supplement, is transferred, renumbered as section 394.922,

30  Florida Statutes, and amended to read:

31


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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 18.  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 19.  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 20.  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 21.  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

31


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

  2  supervision that is administered by the Parole Commission.

  3         Section 22.  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.

31


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  1         Section 23.  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 24.  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 25.  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)  Procedures that must be followed by members of the

21  multidisciplinary teams when assessing and evaluating persons

22  subject to this part;

23         (2)  The criteria that must exist in order for a

24  multidisciplinary team to recommend to a state attorney that a

25  petition should be filed to involuntarily commit a person

26  under this part. The criteria shall include, but are not

27  limited to, whether:

28         (a)  The person has a propensity to engage in future

29  acts of sexual violence;

30         (b)  The person should be placed in a secure,

31  residential facility; and


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  1         (c)  The person needs long-term treatment and care.

  2         (3)  The designation of secure facilities for sexually

  3  violent predators who are subject to involuntary commitment

  4  under this part;

  5         (4)  The components of the basic treatment plan for all

  6  committed persons under this part;

  7         (5)  The protocol to inform a person that he or she is

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

  9  violent predator under this part.

10         Section 26.  Beginning July 1, 1999, the Department of

11  Corrections shall collect information and compile quarterly

12  reports with statistics profiling inmates released the

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

14  Department of Children and Family Services pursuant to this

15  act. The quarterly reports must be produced beginning October

16  1, 1999. At a minimum, the information that must be collected

17  and compiled for inclusion in the reports includes: whether

18  the qualifying offense was the current offense or the prior

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

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

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

22  whether the sexual act involved multiple victims; whether

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

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

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

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

27  offense; and the total number of prior and current

28  sexual-offense convictions.

29         Section 27.  (1)  The Office of Program Policy Analysis

30  and Government Accountability shall conduct a study on the

31  implementation of this act by the Department of Children and


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  1  Family Services and shall report its findings and make

  2  recommendations to the Legislature by March 1, 2000.

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

  4  to, the following issues:

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

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

  7  evaluation and assessment.

  8         (b)  The activities performed by multidisciplinary

  9  teams in conducting evaluations and assessments.

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

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

12  Children and Family Services and the department's

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

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

15  file a petition.

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

17  Children and Family Services, the number of cases it

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

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

20  attorney to file a petition.

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

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

23  members of the multidisciplinary teams.

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

25  as members of a multidisciplinary team, the education,

26  professional qualifications, prior work experience, prior and

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

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

29  serving as a member of a multidisciplinary team.

30         Section 28.  The Department of Children and Family

31  Services shall contract with the Correctional Privatization


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    CS for CS for CS for SB 2192                   First Engrossed



  1  Commission created under chapter 957, Florida Statutes, from

  2  funds contained in the 1999-2000 General Appropriations Act

  3  for the purpose of creating The Jimmy Ryce Treatment Facility.

  4  The commission is directed to develop and issue by September

  5  1, 1999, a request for proposals for the financing, designing,

  6  constructing, acquiring, owning, leasing, and operating of a

  7  treatment facility, to house and rehabilitate individuals

  8  committed under the Jimmy Ryce Act of 1998. The commission

  9  shall determine the feasibility of using an existing privately

10  owned or state-owned facility prior to the issuance of the

11  request for proposals. If the commission determines that a new

12  facility is necessary, the facility shall be designed with an

13  initial capacity for 450 individuals. The facility shall also

14  be designed with expansion capabilities to serve additional

15  individuals committed under the Jimmy Ryce Act of 1998. The

16  provisions of section 957.07, Florida Statutes, and section

17  957.11, Florida Statutes, shall not apply to this procurement.

18  The commission shall enter into contracts as soon as possible

19  with a provider for the financing, designing, constructing,

20  acquiring, owning, leasing, and operating of the Jimmy Ryce

21  Treatment Facility. The operations contract shall be for an

22  initial period of three years with options to renew. The

23  commission and the Department of Children and Family Services

24  shall enter into an interagency agreement for the commission

25  to provide contract monitoring and auditing of the operation

26  of the facility by the contractor in accordance with standards

27  established by the Department of Children and Family Services.

28  The commission shall invite proposers to present various

29  financing options in their proposals and shall determine which

30  financing mechanism is in the best interests of the state. The

31  selected contractor is authorized to enter into a lease


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  1  arrangement or other private financing, or to sponsor the

  2  issuance of tax exempt bonds, certificates of participation,

  3  or other public or private means to finance the project. The

  4  state is authorized to enter into all such agreements as are

  5  necessary including lease alternatives to bring this project

  6  to operational and lease commencement.

  7         Section 29.  This act shall take effect upon becoming a

  8  law.

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