Senate Bill 0134c2

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    Florida Senate - 2000                     CS for CS for SB 134

    By the Committees on Fiscal Policy, Criminal Justice and
    Senator Diaz-Balart




    309-1734-00

  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.

18

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

20

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 CS for SB 134
    309-1734-00




  1  prosecution, or failure to appear at court proceedings.

  2  However, any defendant who previously had willfully and

  3  knowingly failed to appear on the day of any required court

  4  proceeding in the case at issue and breached a bond as

  5  specified in s. 903.26, but who had later voluntarily appeared

  6  or surrendered, shall not be eligible for a recognizance bond;

  7  and any defendant who willfully and knowingly failed to appear

  8  on the day of any required court proceeding in the case at

  9  issue and breached a bond as specified in s. 903.26 and who

10  was later arrested at any time following forfeiture shall not

11  be eligible for a recognizance bond or for any form of bond

12  which does not require a monetary undertaking or commitment

13  equal to or greater than $2,000 or twice the value of the

14  monetary commitment or undertaking of the original bond,

15  whichever is greater. Notwithstanding anything in this

16  section, the court has discretion in determining conditions of

17  release if the defendant proves circumstances beyond his or

18  her control for the failure to appear. This section may not be

19  construed as imposing additional duties or obligations on a

20  governmental entity related to monetary bonds.

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

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

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

24  Florida Statutes, are amended to read:

25         907.041  Pretrial detention and release.--

26         (3)  RELEASE ON NONMONETARY CONDITIONS.--

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

28  presumption in favor of release on nonmonetary conditions for

29  any person who is granted pretrial release unless such person

30  is charged with a dangerous crime as defined in subsection

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

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    Florida Senate - 2000                     CS for CS for SB 134
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  1  only if it is determined that such monetary conditions are

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

  3  other proceedings, to protect the community from risk of

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

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

  6  process.

  7         (b)  No person shall be released on nonmonetary

  8  conditions under the supervision of a pretrial release

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

10  investigated or otherwise verified:

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

12  employment, financial resources, character, mental condition,

13  and length of residence in the community;

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

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

16  failure to appear at court proceedings; and

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

18  determination of the indigency of the accused and whether she

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

20         (4)  PRETRIAL DETENTION.--

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

22  means any of the following:

23         1.  Arson;

24         2.  Aggravated assault;

25         3.  Aggravated battery;

26         4.  Illegal use of explosives;

27         5.  Child abuse or aggravated child abuse;

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

29  aggravated abuse of an elderly person or disabled adult;

30         7.  Hijacking;

31         8.  Kidnapping;

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    Florida Senate - 2000                     CS for CS for SB 134
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  1         9.  Homicide;

  2         10.  Manslaughter;

  3         11.  Sexual battery;

  4         12.  Robbery;

  5         13.  Carjacking;

  6         14.  Lewd, lascivious, or indecent assault or act upon

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

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

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

10  solicitation of person in familial or custodial authority;

11         16.  Burglary of a dwelling;

12         17.  Stalking and aggravated stalking;

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

14  and

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

16  and home-invasion robbery.

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

18  granted nonmonetary pretrial release at a first appearance

19  hearing; however, the court shall retain the discretion to

20  release an accused on electronic monitoring or on recognizance

21  bond if the findings on the record of facts and circumstances

22  warrant such a release.

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

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

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

26  and any other relevant facts, that:

27         1.  The defendant has previously violated conditions of

28  release and that no further conditions of release are

29  reasonably likely to assure the defendant's appearance at

30  subsequent proceedings;

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    Florida Senate - 2000                     CS for CS for SB 134
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  1         2.  The defendant, with the intent to obstruct the

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

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

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

  5  release will reasonably prevent the obstruction of the

  6  judicial process;

  7         3.  The defendant is charged with trafficking in

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

  9  a substantial probability that the defendant has committed the

10  offense, and that no conditions of release will reasonably

11  assure the defendant's appearance at subsequent criminal

12  proceedings; or

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

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

15  defendant is presently charged with a dangerous crime, that

16  there is a substantial probability that the defendant

17  committed such crime, that the factual circumstances of the

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

19  and that there are no conditions of release reasonably

20  sufficient to protect the community from the risk of physical

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

22  least one of the following conditions is present:

23         a.  The defendant has previously been convicted of a

24  crime punishable by death or life imprisonment.

25         b.  The defendant has been convicted of a dangerous

26  crime within the 10 years immediately preceding the date of

27  his or her arrest for the crime presently charged.

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

29  release pending completion of sentence or on pretrial release

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

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    Florida Senate - 2000                     CS for CS for SB 134
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  1         (d)(c)  When a person charged with a crime for which

  2  pretrial detention could be ordered is arrested, the arresting

  3  agency shall promptly notify the state attorney of the arrest

  4  and shall provide the state attorney with such information as

  5  the arresting agency has obtained relative to:

  6         1.  The nature and circumstances of the offense

  7  charged;

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

  9  contents of any statements obtained from the defendant or any

10  witness;

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

12  financial condition, and mental condition; and

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

14  including any record of convictions, previous flight to avoid

15  prosecution, or failure to appear at court proceedings.

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

17  pretrial detention could be ordered is arrested, the arresting

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

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

20  period not to exceed 24 hours.

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

22  pretrial detention hearing.  The hearing shall be held within

23  5 days of the filing by the state attorney of a complaint to

24  seek pretrial detention.  The defendant may request a

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

26  unless there are extenuating circumstances. The defendant may

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

28  entitled to one continuance for good cause.

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

30  the need for pretrial detention.

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    Florida Senate - 2000                     CS for CS for SB 134
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  1         (h)(g)  The defendant is entitled to be represented by

  2  counsel, to present witnesses and evidence, and to

  3  cross-examine witnesses.  The court may admit relevant

  4  evidence without complying with the rules of evidence, but

  5  evidence secured in violation of the United States

  6  Constitution or the Constitution of the State of Florida shall

  7  not be admissible.  No testimony by the defendant shall be

  8  admissible to prove guilt at any other judicial proceeding,

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

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

11  detention hearing, or for impeachment.

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

13  be based solely upon evidence produced at the hearing and

14  shall contain findings of fact and conclusions of law to

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

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

17  within 24 hours of the pretrial detention hearing.

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

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

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

21  defendant to trial within that time shall result in the

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

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

24  the defendant or his or her counsel.

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

26  issuance of a pretrial detention order shall have credited to

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

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

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

30  of the pretrial detention order whenever the court finds that

31  a subsequent event has eliminated the basis for detention.

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    Florida Senate - 2000                     CS for CS for SB 134
    309-1734-00




  1         Section 3.  Section 903.0471, Florida Statutes, is

  2  created to read:

  3         903.0471  Violation of condition of pretrial

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

  5  motion, revoke pretrial release and order pretrial detention

  6  if the court finds probable cause to believe that the

  7  defendant committed a new crime while on pretrial release and,

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

  9  support a finding that no conditions of release can reasonably

10  protect the community from the risk of physical harm to

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

12  assure the integrity of the judicial process.

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

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

15  are inconsistent with this act.

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

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

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

19  membership of each house of the Legislature.

20

21          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
22                          CS for SB 134

23

24  Removes "failure to appear for any required court proceeding"
    as a criterion for determining pretrial release and
25  substitutes "failure to appear for a required court proceeding
    in the case at issue."
26
    Gives the court the discretion to authorize pretrial release
27  at first appearance for someone charged with commission of a
    dangerous crime if the findings on the record warrant such a
28  release.

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30

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