Senate Bill 0134c1

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    Florida Senate - 2000                            CS for SB 134

    By the Committee on Criminal Justice and Senator Diaz-Balart





    307-847-00

  1                      A bill to be entitled

  2         An act relating to pretrial release; amending

  3         s. 903.046, F.S.; revising criteria for bail

  4         determination; amending s. 907.041, F.S.;

  5         prohibiting persons charged with dangerous

  6         crimes from being placed on pretrial release on

  7         nonmonetary conditions at first appearance

  8         hearings; providing criteria for pretrial

  9         release on nonmonetary conditions; creating s.

10         903.0471, F.S.; authorizing a court to order

11         pretrial detention for persons on pretrial

12         release who commit new crimes under certain

13         circumstances; repealing Rules 3.131 and 3.132,

14         Florida Rules of Criminal Procedure, relating

15         to pretrial release and pretrial detention, to

16         the extent those rules are inconsistent with

17         this act; providing an effective date.

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

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21         Section 1.  Paragraph (d) of subsection (2) of section

22  903.046, Florida Statutes, is amended, present paragraph (j)

23  of that subsection is redesignated as paragraph (k), and a new

24  paragraph (j) is added to that subsection to read:

25         903.046  Purpose of and criteria for bail

26  determination.--

27         (2)  When determining whether to release a defendant on

28  bail or other conditions, and what that bail or those

29  conditions may be, the court shall consider:

30         (d)  The defendant's past and present conduct,

31  including any record of convictions, previous flight to avoid

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    Florida Senate - 2000                            CS for SB 134
    307-847-00




  1  prosecution, or failure to appear at court proceedings.

  2  However, any defendant who previously had willfully and

  3  knowingly failed to appear for any required court proceeding

  4  and breached a bond as specified in s. 903.26, but who had

  5  voluntarily appeared or surrendered, shall not be eligible for

  6  a recognizance bond; and any defendant who willfully and

  7  knowingly failed to appear and breached a bond as specified in

  8  s. 903.26 and who was later arrested at any time following

  9  forfeiture shall not be eligible for a recognizance bond or

10  for any form of bond which does not require a monetary

11  undertaking or commitment equal to or greater than $2,000 or

12  twice the value of the monetary commitment or undertaking of

13  the original bond, whichever is greater.

14         (j)  Whether there is probable cause to believe that

15  the defendant committed a new crime while on pretrial release.

16         Section 2.  Subsections (3) and (4) of section 907.041,

17  Florida Statutes, are amended to read:

18         907.041  Pretrial detention and release.--

19         (3)  RELEASE ON NONMONETARY CONDITIONS.--

20         (a)  It is the intent of the Legislature to create a

21  presumption in favor of release on nonmonetary conditions for

22  any person who is granted pretrial release unless such person

23  is charged with a dangerous crime as defined in subsection

24  (4).  Such person shall be released on monetary conditions

25  only if it is determined that such monetary conditions are

26  necessary to assure the presence of the person at trial or at

27  other proceedings, to protect the community from risk of

28  physical harm to persons, to assure the presence of the

29  accused at trial, or to assure the integrity of the judicial

30  process.

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    Florida Senate - 2000                            CS for SB 134
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  1         (b)  No person shall be released on nonmonetary

  2  conditions under the supervision of a pretrial release

  3  service, unless the service certifies to the court that it has

  4  investigated or otherwise verified:

  5         1.  The circumstances of the accused's family,

  6  employment, financial resources, character, mental condition,

  7  and length of residence in the community;

  8         2.  The accused's record of convictions, of appearances

  9  at court proceedings, of flight to avoid prosecution, or of

10  failure to appear at court proceedings; and

11         3.  Other facts necessary to assist the court in its

12  determination of the indigency of the accused and whether she

13  or he should be released under the supervision of the service.

14         (4)  PRETRIAL DETENTION.--

15         (a)  As used in this subsection, "dangerous crime"

16  means any of the following:

17         1.  Arson;

18         2.  Aggravated assault;

19         3.  Aggravated battery;

20         4.  Illegal use of explosives;

21         5.  Child abuse or aggravated child abuse;

22         6.  Abuse of an elderly person or disabled adult, or

23  aggravated abuse of an elderly person or disabled adult;

24         7.  Hijacking;

25         8.  Kidnapping;

26         9.  Homicide;

27         10.  Manslaughter;

28         11.  Sexual battery;

29         12.  Robbery;

30         13.  Carjacking;

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    Florida Senate - 2000                            CS for SB 134
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  1         14.  Lewd, lascivious, or indecent assault or act upon

  2  or in presence of a child under the age of 16 years;

  3         15.  Sexual activity with a child, who is 12 years of

  4  age or older but less than 18 years of age, by or at

  5  solicitation of person in familial or custodial authority;

  6         16.  Burglary of a dwelling;

  7         17.  Stalking and aggravated stalking;

  8         18.  Act of domestic violence as defined in s. 741.28;

  9  and

10         19.  Attempting or conspiring to commit any such crime;

11  and home-invasion robbery.

12         (b)  No person charged with a dangerous crime shall be

13  granted nonmonetary pretrial release at a first appearance

14  hearing. A hearing to determine eligibility for nonmonetary

15  pretrial release must be held within 72 hours after the first

16  appearance hearing of any person charged with a dangerous

17  crime who was not granted nonmonetary release at first

18  appearance.

19         (c)(b)  The court may order pretrial detention if it

20  finds a substantial probability, based on a defendant's past

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

22  and any other relevant facts, that:

23         1.  The defendant has previously violated conditions of

24  release and that no further conditions of release are

25  reasonably likely to assure the defendant's appearance at

26  subsequent proceedings;

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

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

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

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

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    Florida Senate - 2000                            CS for SB 134
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  1  release will reasonably prevent the obstruction of the

  2  judicial process;

  3         3.  The defendant is charged with trafficking in

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

  5  a substantial probability that the defendant has committed the

  6  offense, and that no conditions of release will reasonably

  7  assure the defendant's appearance at subsequent criminal

  8  proceedings; or

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

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

11  defendant is presently charged with a dangerous crime, that

12  there is a substantial probability that the defendant

13  committed such crime, that the factual circumstances of the

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

15  and that there are no conditions of release reasonably

16  sufficient to protect the community from the risk of physical

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

18  least one of the following conditions is present:

19         a.  The defendant has previously been convicted of a

20  crime punishable by death or life imprisonment.

21         b.  The defendant has been convicted of a dangerous

22  crime within the 10 years immediately preceding the date of

23  his or her arrest for the crime presently charged.

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

25  release pending completion of sentence or on pretrial release

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

27         (d)(c)  When a person charged with a crime for which

28  pretrial detention could be ordered is arrested, the arresting

29  agency shall promptly notify the state attorney of the arrest

30  and shall provide the state attorney with such information as

31  the arresting agency has obtained relative to:

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    Florida Senate - 2000                            CS for SB 134
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  1         1.  The nature and circumstances of the offense

  2  charged;

  3         2.  The nature of any physical evidence seized and the

  4  contents of any statements obtained from the defendant or any

  5  witness;

  6         3.  The defendant's family ties, residence, employment,

  7  financial condition, and mental condition; and

  8         4.  The defendant's past conduct and present conduct,

  9  including any record of convictions, previous flight to avoid

10  prosecution, or failure to appear at court proceedings.

11         (e)(d)  When a person charged with a crime for which

12  pretrial detention could be ordered is arrested, the arresting

13  agency may detain such defendant, prior to the filing by the

14  state attorney of a motion seeking pretrial detention, for a

15  period not to exceed 24 hours.

16         (f)(e)  The court shall order detention only after a

17  pretrial detention hearing.  The hearing shall be held within

18  5 days of the filing by the state attorney of a complaint to

19  seek pretrial detention.  The defendant may request a

20  continuance.  No continuance shall be for longer than 5 days

21  unless there are extenuating circumstances. The defendant may

22  be detained pending the hearing.  The state attorney shall be

23  entitled to one continuance for good cause.

24         (g)(f)  The state attorney has the burden of showing

25  the need for pretrial detention.

26         (h)(g)  The defendant is entitled to be represented by

27  counsel, to present witnesses and evidence, and to

28  cross-examine witnesses.  The court may admit relevant

29  evidence without complying with the rules of evidence, but

30  evidence secured in violation of the United States

31  Constitution or the Constitution of the State of Florida shall

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    Florida Senate - 2000                            CS for SB 134
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  1  not be admissible.  No testimony by the defendant shall be

  2  admissible to prove guilt at any other judicial proceeding,

  3  but such testimony may be admitted in an action for perjury,

  4  based upon the defendant's statements made at the pretrial

  5  detention hearing, or for impeachment.

  6         (i)(h)  The pretrial detention order of the court shall

  7  be based solely upon evidence produced at the hearing and

  8  shall contain findings of fact and conclusions of law to

  9  support it.  The order shall be made either in writing or

10  orally on the record. The court shall render its findings

11  within 24 hours of the pretrial detention hearing.

12         (j)(i)  If ordered detained pending trial pursuant to

13  subparagraph (c)4. (b)4., the defendant may not be held for

14  more than 90 days.  Failure of the state to bring the

15  defendant to trial within that time shall result in the

16  defendant's release from detention, subject to any conditions

17  of release, unless the trial delay was requested or caused by

18  the defendant or his or her counsel.

19         (k)(j)  A defendant convicted at trial following the

20  issuance of a pretrial detention order shall have credited to

21  his or her sentence, if imprisonment is imposed, the time the

22  defendant was held under the order, pursuant to s. 921.161.

23         (l)(k)  The defendant shall be entitled to dissolution

24  of the pretrial detention order whenever the court finds that

25  a subsequent event has eliminated the basis for detention.

26         Section 3.  Section 903.0471, Florida Statutes, is

27  created to read:

28         903.0471  Violation of condition of pretrial

29  release.--Notwithstanding s. 907.041, a court may, on its own

30  motion, revoke pretrial release and order pretrial detention

31  if the court finds probable cause to believe that the

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    Florida Senate - 2000                            CS for SB 134
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  1  defendant committed a new crime while on pretrial release and,

  2  in the discretion of the court, the facts and circumstances

  3  support a finding that no conditions of release can reasonably

  4  protect the community from the risk of physical harm to

  5  persons, assure the presence of the accused at trial, or

  6  assure the integrity of the judicial process.

  7         Section 4.  Rules 3.131 and 3.132, Florida Rules of

  8  Criminal Procedure, are repealed to the extent that the rules

  9  are inconsistent with this act.

10         Section 5.  This act shall take effect upon becoming a

11  law, except that section 4 shall take effect only if this act

12  is passed by the affirmative vote of two-thirds of the

13  membership of each house of the Legislature.

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    Florida Senate - 2000                            CS for SB 134
    307-847-00




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 134

  3

  4  -     Removes provision which permits court, under specified
          circumstances, to order pretrial detention of a
  5        defendant charged with DUI manslaughter.

  6  -     Deletes references to a "willful and knowing" failure to
          appear and that the defendant breached a bond. This
  7        makes the current prohibition against recognizance bonds
          and certain monetary bonds applicable to any defendant
  8        who previously failed to appear, even if it was not a
          willful and knowing failure to appear and even if the
  9        defendant did not breach a bond.

10  -     Requires the court to consider, when determing whether
          to release a defendant on bail or other conditions,
11        whether their is probable cause to believe that the
          defendant committed a new crime while on pretrial
12        release.

13  -     Revises legislative intent by removing the presumption
          in favor of release on nonmonetary conditions for any
14        person who is granted pretrial release, if the person is
          charged with a dangerous crime.
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    -     Prohibits the release of a defendant on nonmonetary
16        conditions and under the supervision of a pretrial
          release service, unless the service certifies to the
17        court that it has investigated or otherwise verified an
          enumerated list of factors.
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    -     Prohibits the court at a first appearance hearing from
19        granting nonmonetary pretrial release to any person
          charged with a "dangerous crime." However, it requires a
20        hearing to determine eligibility for nonmonetary
          pretrial release within 72 hours of the first appearance
21        of any person charged with a "dangerous crime."

22  -     Permits a court, on its own initiative, to revoke
          pretrial release and order pretrial detention if it
23        finds probable cause to believe that the defendant
          committed a new crime while on pretrial release, and the
24        court finds release would risk harm to persons, not
          assure presence at trail or assure the integrity of the
25        judicial process.

26  -     Repeals Rules 3.121 and 3.132, to the extent these rules
          are inconsistent with the act.
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