Senate Bill 1618c1

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    Florida Senate - 2000                           CS for SB 1618

    By the Committee on Criminal Justice and Senator Saunders





    307-1855A-00

  1                      A bill to be entitled

  2         An act relating to offenses against children or

  3         minors; amending s. 787.025, F.S.; redefining

  4         the crime of luring or enticing a child so that

  5         it applies to offenses against all minors;

  6         providing penalties; amending s. 800.04, F.S.;

  7         providing a penalty for the transmission of

  8         lewd or lascivious exhibition over the Internet

  9         under certain circumstances; amending s.

10         847.0135, F.S.; prescribing the penalty for

11         computer pornography; amending s. 921.0022,

12         F.S.; conforming a cross-reference; reenacting

13         ss. 394.912(9), 775.082(9)(a), 775.084(1)(d),

14         775.15(7), 775.21(4)(c) and (10)(b), 787.01(3),

15         787.02(3), 914.16, 943.0435(1)(a), 943.0585,

16         943.059, 944.606(1)(b), 944.607(1)(a),

17         947.1405(7), 948.01(15), 948.03(4), (5), and

18         (6), and 948.06(2)(a), F.S., relating to

19         definition of "sexually violent offense" for

20         purposes of pt. IV of ch. 394, F.S., penalties,

21         applicability of sentencing structures, and

22         mandatory minimum sentences, violent career

23         criminals, habitual felony offenders and

24         habitual violent felony offenders, three-time

25         violent felony offenders, definitions,

26         procedure, and enhanced penalties or mandatory

27         minimum prison terms, time limitations, the

28         Florida Sexual Predators Act, kidnapping, false

29         imprisonment, child abuse and sexual abuse of

30         victims under age 16 or persons with mental

31         retardation, and limits on interviews, sexual

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  1         offenders required to register with the

  2         Department of Law Enforcement, court-ordered

  3         expunction of criminal history records,

  4         court-ordered sealing of criminal history

  5         records, notification to law enforcement

  6         agencies upon release of sexual offenders,

  7         notification to Department of Law Enforcement

  8         of information on sexual offenders, conditional

  9         release program, when court may place defendant

10         on probation or into community control, terms

11         and conditions of probation or community

12         control, violation of probation or community

13         control, revocation, modification, continuance,

14         and failure to pay restitution or cost of

15         supervision, to incorporate the amendment to s.

16         800.04, F.S., in references thereto; providing

17         an effective date.

18

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

20

21         Section 1.  Section 787.025, Florida Statutes, is

22  amended to read:

23         787.025  Luring or enticing a minor child.--

24         (1)  As used in this section, the term:

25         (a)  "Structure" means a building of any kind, either

26  temporary or permanent, which has a roof over it, together

27  with the curtilage thereof.

28         (b)  "Dwelling" means a building or conveyance of any

29  kind, either temporary or permanent, mobile or immobile, which

30  has a roof over it and is designed to be occupied by people

31

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  1  lodging together therein at night, together with the curtilage

  2  thereof.

  3         (c)  "Conveyance" means any motor vehicle, ship,

  4  vessel, railroad car, trailer, aircraft, or sleeping car.

  5         (2)(a)  A person over the age of 18 who, having been

  6  previously convicted of a violation of chapter 794 or s.

  7  800.04, or a violation of a similar law of another

  8  jurisdiction, intentionally lures or entices, or attempts to

  9  lure or entice, a minor child under the age of 12 into a

10  structure, dwelling, or conveyance for other than a lawful

11  purpose commits a felony of the third degree, punishable as

12  provided in s. 775.082, s. 775.083, or s. 775.084.

13         (b)  For purposes of this section, the luring or

14  enticing, or attempted luring or enticing, of a minor child

15  under the age of 12 into a structure, dwelling, or conveyance

16  without the consent of the minor's child's parent or legal

17  guardian shall be prima facie evidence of other than a lawful

18  purpose.

19         (3)  It is an affirmative defense to a prosecution

20  under this section that:

21         (a)  The person reasonably believed that his or her

22  action was necessary to prevent the minor child from being

23  seriously injured.

24         (b)  The person lured or enticed, or attempted to lure

25  or entice, the minor child under the age of 12 into a

26  structure, dwelling, or conveyance for a lawful purpose.

27         (c)  The person's actions were reasonable under the

28  circumstances and the defendant did not have any intent to

29  harm the health, safety, or welfare of the minor child.

30         Section 2.  Subsection (7) of section 800.04, Florida

31  Statutes, is amended to read:

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  1         800.04  Lewd or lascivious offenses committed upon or

  2  in the presence of persons less than 16 years of age.--

  3         (7)  LEWD OR LASCIVIOUS EXHIBITION.--

  4         (a)  A person who:

  5         1.  Intentionally masturbates;

  6         2.  Intentionally exposes the genitals in a lewd or

  7  lascivious manner; or

  8         3.  Intentionally commits any other sexual act that

  9  does not involve actual physical or sexual contact with the

10  victim, including, but not limited to, sadomasochistic abuse,

11  sexual bestiality, or the simulation of any act involving

12  sexual activity

13

14  in the presence of a victim who is less than 16 years of age,

15  commits lewd or lascivious exhibition.

16         (b)  A person who:

17         1.  Intentionally masturbates;

18         2.  Intentionally exposes the genitals in a lewd or

19  lascivious manner; or

20         3.  Intentionally commits any other sexual act that

21  does not involve actual physical or sexual contact with the

22  victim, including, but not limited to, sadomasochistic abuse,

23  sexual bestiality, or the simulation of any act involving

24  sexual activity

25

26  live over a computer on-line service, Internet service, or

27  local bulletin board service and who knows or should know or

28  has reason to believe that the transmission is viewed on a

29  computer or television monitor by a victim in this state who

30  is less than 16 years of age, commits lewd or lascivious

31  exhibition. The fact that an undercover operative or law

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    Florida Senate - 2000                           CS for SB 1618
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  1  enforcement officer was involved in the detection and

  2  investigation of an offense under this paragraph shall not

  3  constitute a defense to a prosecution under this paragraph.

  4         (c)(b)  An offender 18 years of age or older who

  5  commits a lewd or lascivious exhibition commits a felony of

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

  7  775.083, or s. 775.084.

  8         (d)(c)  An offender less than 18 years of age who

  9  commits a lewd or lascivious exhibition commits a felony of

10  the third degree, punishable as provided in s. 775.082, s.

11  775.083, or s. 775.084.

12         Section 3.  Subsection (2) of section 847.0135, Florida

13  Statutes, is amended to read:

14         847.0135  Computer pornography; penalties.--

15         (2)  COMPUTER PORNOGRAPHY.--A person who:

16         (a)  Knowingly compiles, enters into, or transmits by

17  means of computer;

18         (b)  Makes, prints, publishes, or reproduces by other

19  computerized means;

20         (c)  Knowingly causes or allows to be entered into or

21  transmitted by means of computer; or

22         (d)  Buys, sells, receives, exchanges, or disseminates,

23

24  any notice, statement, or advertisement of, or any minor's

25  name, telephone number, place of residence, physical

26  characteristics, or other descriptive or identifying

27  information, for purposes of facilitating, encouraging,

28  offering, or soliciting sexual conduct of or with any minor,

29  or the visual depiction of such conduct, commits a felony of

30  the third degree, punishable as provided in s. 775.082, s.

31  775.083, or s. 775.084. The fact that an undercover operative

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    Florida Senate - 2000                           CS for SB 1618
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  1  or law enforcement officer was involved in the detection and

  2  investigation of an offense under this section shall not

  3  constitute a defense to a prosecution under this section. Any

  4  person who violates the provisions of this subsection commits

  5  a felony of the third degree, punishable as provided for in s.

  6  775.082, s. 775.083, or s. 775.084.

  7         Section 4.  Paragraphs (d) and (e) of subsection (3) of

  8  section 921.0022, Florida Statutes, are amended to read:

  9         921.0022  Criminal Punishment Code; offense severity

10  ranking chart.--

11         (3)  OFFENSE SEVERITY RANKING CHART

12

13  Florida           Felony

14  Statute           Degree             Description

15

16

17                              (d)  LEVEL 4

18  316.1935(3)        2nd      Driving at high speed or with

19                              wanton disregard for safety while

20                              fleeing or attempting to elude

21                              law enforcement officer who is in

22                              a marked patrol vehicle with

23                              siren and lights activated.

24  784.07(2)(b)       3rd      Battery of law enforcement

25                              officer, firefighter, intake

26                              officer, etc.

27  784.075            3rd      Battery on detention or

28                              commitment facility staff.

29  784.08(2)(c)       3rd      Battery on a person 65 years of

30                              age or older.

31

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  1  784.081(3)         3rd      Battery on specified official or

  2                              employee.

  3  784.082(3)         3rd      Battery by detained person on

  4                              visitor or other detainee.

  5  784.083(3)         3rd      Battery on code inspector.

  6  787.03(1)          3rd      Interference with custody;

  7                              wrongly takes child from

  8                              appointed guardian.

  9  787.04(2)          3rd      Take, entice, or remove child

10                              beyond state limits with criminal

11                              intent pending custody

12                              proceedings.

13  787.04(3)          3rd      Carrying child beyond state lines

14                              with criminal intent to avoid

15                              producing child at custody

16                              hearing or delivering to

17                              designated person.

18  790.115(1)         3rd      Exhibiting firearm or weapon

19                              within 1,000 feet of a school.

20  790.115(2)(b)      3rd      Possessing electric weapon or

21                              device, destructive device, or

22                              other weapon on school property.

23  790.115(2)(c)      3rd      Possessing firearm on school

24                              property.

25  800.04(7)(d)(c)    3rd      Lewd or lascivious exhibition;

26                              offender less than 18 years.

27  810.02(4)(a)       3rd      Burglary, or attempted burglary,

28                              of an unoccupied structure;

29                              unarmed; no assault or battery.

30

31

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  1  810.02(4)(b)       3rd      Burglary, or attempted burglary,

  2                              of an unoccupied conveyance;

  3                              unarmed; no assault or battery.

  4  810.06             3rd      Burglary; possession of tools.

  5  810.08(2)(c)       3rd      Trespass on property, armed with

  6                              firearm or dangerous weapon.

  7  812.014(2)(c)3.    3rd      Grand theft, 3rd degree $10,000

  8                              or more but less than $20,000.

  9  812.014

10   (2)(c)4.-10.      3rd      Grand theft, 3rd degree, a will,

11                              firearm, motor vehicle,

12                              livestock, etc.

13  817.563(1)         3rd      Sell or deliver substance other

14                              than controlled substance agreed

15                              upon, excluding s. 893.03(5)

16                              drugs.

17  828.125(1)         2nd      Kill, maim, or cause great bodily

18                              harm or permanent breeding

19                              disability to any registered

20                              horse or cattle.

21  837.02(1)          3rd      Perjury in official proceedings.

22  837.021(1)         3rd      Make contradictory statements in

23                              official proceedings.

24  843.025            3rd      Deprive law enforcement,

25                              correctional, or correctional

26                              probation officer of means of

27                              protection or communication.

28  843.15(1)(a)       3rd      Failure to appear while on bail

29                              for felony (bond estreature or

30                              bond jumping).

31

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  1  874.05(1)          3rd      Encouraging or recruiting another

  2                              to join a criminal street gang.

  3  893.13(2)(a)1.     2nd      Purchase of cocaine (or other s.

  4                              893.03(1)(a), (b), or (d), or

  5                              (2)(a) or (b) drugs).

  6  914.14(2)          3rd      Witnesses accepting bribes.

  7  914.22(1)          3rd      Force, threaten, etc., witness,

  8                              victim, or informant.

  9  914.23(2)          3rd      Retaliation against a witness,

10                              victim, or informant, no bodily

11                              injury.

12  918.12             3rd      Tampering with jurors.

13                              (e)  LEVEL 5

14  316.027(1)(a)      3rd      Accidents involving personal

15                              injuries, failure to stop;

16                              leaving scene.

17  316.1935(4)        2nd      Aggravated fleeing or eluding.

18  322.34(6)          3rd      Careless operation of motor

19                              vehicle with suspended license,

20                              resulting in death or serious

21                              bodily injury.

22  327.30(5)          3rd      Vessel accidents involving

23                              personal injury; leaving scene.

24  381.0041(11)(b)    3rd      Donate blood, plasma, or organs

25                              knowing HIV positive.

26  790.01(2)          3rd      Carrying a concealed firearm.

27  790.162            2nd      Threat to throw or discharge

28                              destructive device.

29  790.163            2nd      False report of deadly explosive.

30  790.165(2)         3rd      Manufacture, sell, possess, or

31                              deliver hoax bomb.

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  1  790.221(1)         2nd      Possession of short-barreled

  2                              shotgun or machine gun.

  3  790.23             2nd      Felons in possession of firearms

  4                              or electronic weapons or devices.

  5  800.04(6)(c)       3rd      Lewd or lascivious conduct;

  6                              offender less than 18 years.

  7  800.04(7)(c)(b)    2nd      Lewd or lascivious exhibition;

  8                              offender 18 years or older.

  9  806.111(1)         3rd      Possess, manufacture, or dispense

10                              fire bomb with intent to damage

11                              any structure or property.

12  812.019(1)         2nd      Stolen property; dealing in or

13                              trafficking in.

14  812.131(2)(b)      3rd      Robbery by sudden snatching.

15  812.16(2)          3rd      Owning, operating, or conducting

16                              a chop shop.

17  817.034(4)(a)2.    2nd      Communications fraud, value

18                              $20,000 to $50,000.

19  825.1025(4)        3rd      Lewd or lascivious exhibition in

20                              the presence of an elderly person

21                              or disabled adult.

22  827.071(4)         2nd      Possess with intent to promote

23                              any photographic material, motion

24                              picture, etc., which includes

25                              sexual conduct by a child.

26  843.01             3rd      Resist officer with violence to

27                              person; resist arrest with

28                              violence.

29  874.05(2)          2nd      Encouraging or recruiting another

30                              to join a criminal street gang;

31                              second or subsequent offense.

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  1  893.13(1)(a)1.     2nd      Sell, manufacture, or deliver

  2                              cocaine (or other s.

  3                              893.03(1)(a), (1)(b), (1)(d),

  4                              (2)(a), or (2)(b) drugs).

  5  893.13(1)(c)2.     2nd      Sell, manufacture, or deliver

  6                              cannabis (or other s.

  7                              893.03(1)(c), (2)(c), (3), or (4)

  8                              drugs) within 1,000 feet of a

  9                              child care facility or school.

10  893.13(1)(d)1.     1st      Sell, manufacture, or deliver

11                              cocaine (or other s.

12                              893.03(1)(a), (1)(b), (1)(d),

13                              (2)(a), or (2)(b) drugs) within

14                              200 feet of university or public

15                              park.

16  893.13(1)(e)       2nd      Sell, manufacture, or deliver

17                              cannabis or other drug prohibited

18                              under s. 893.03(1)(c), (2)(c),

19                              (3), or (4) within 1,000 feet of

20                              property used for religious

21                              services or a specified business

22                              site.

23  893.13(1)(f)1.     1st      Sell, manufacture, or deliver

24                              cocaine (or other s.

25                              893.03(1)(a), (1)(b), (1)(d), or

26                              (2)(a), or (2)(b) drugs) within

27                              200 feet of public housing

28                              facility.

29  893.13(4)(b)       2nd      Deliver to minor cannabis (or

30                              other s. 893.03(1)(c), (2)(c),

31                              (3), or (4) drugs).

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  1         Section 5.  For the purpose of incorporating the

  2  amendment made by this act to section 800.04, Florida

  3  Statutes, in references thereto, subsection (9) of section

  4  394.912, Florida Statutes, is reenacted to read:

  5         394.912  Definitions.--As used in this part, the term:

  6         (9)  "Sexually violent offense" means:

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

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

  9         (b)  Kidnapping of a child under the age of 13 and, in

10  the course of that offense, committing:

11         1.  Sexual battery; or

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

13  or in the presence of the child;

14         (c)  Committing the offense of false imprisonment upon

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

16  offense, committing:

17         1.  Sexual battery; or

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

19  or in the presence of the child;

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

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

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

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

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

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

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

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

28  federal conviction or conviction in another state for a felony

29  offense that in this state would be a sexually violent

30  offense; or

31

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

  2  sentencing for the offense or subsequently during civil

  3  commitment proceedings under this part, has been determined

  4  beyond a reasonable doubt to have been sexually motivated.

  5         Section 6.  For the purpose of incorporating the

  6  amendment made by this act to section 800.04, Florida

  7  Statutes, in references thereto, paragraph (a) of subsection

  8  (9) of section 775.082, Florida Statutes, is reenacted to

  9  read:

10         775.082  Penalties; applicability of sentencing

11  structures; mandatory minimum sentences for certain

12  reoffenders previously released from prison.--

13         (9)(a)1.  "Prison releasee reoffender" means any

14  defendant who commits, or attempts to commit:

15         a.  Treason;

16         b.  Murder;

17         c.  Manslaughter;

18         d.  Sexual battery;

19         e.  Carjacking;

20         f.  Home-invasion robbery;

21         g.  Robbery;

22         h.  Arson;

23         i.  Kidnapping;

24         j.  Aggravated assault with a deadly weapon;

25         k.  Aggravated battery;

26         l.  Aggravated stalking;

27         m.  Aircraft piracy;

28         n.  Unlawful throwing, placing, or discharging of a

29  destructive device or bomb;

30         o.  Any felony that involves the use or threat of

31  physical force or violence against an individual;

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  1         p.  Armed burglary;

  2         q.  Burglary of an occupied structure or dwelling; or

  3         r.  Any felony violation of s. 790.07, s. 800.04, s.

  4  827.03, or s. 827.071;

  5

  6  within 3 years of being released from a state correctional

  7  facility operated by the Department of Corrections or a

  8  private vendor.

  9         2.  "Prison releasee reoffender" also means any

10  defendant who commits or attempts to commit any offense listed

11  in subparagraph (a)1.a.-r. while the defendant was serving a

12  prison sentence or on escape status from a state correctional

13  facility operated by the Department of Corrections or a

14  private vendor.

15         3.  If the state attorney determines that a defendant

16  is a prison releasee reoffender as defined in subparagraph 1.,

17  the state attorney may seek to have the court sentence the

18  defendant as a prison releasee reoffender. Upon proof from the

19  state attorney that establishes by a preponderance of the

20  evidence that a defendant is a prison releasee reoffender as

21  defined in this section, such defendant is not eligible for

22  sentencing under the sentencing guidelines and must be

23  sentenced as follows:

24         a.  For a felony punishable by life, by a term of

25  imprisonment for life;

26         b.  For a felony of the first degree, by a term of

27  imprisonment of 30 years;

28         c.  For a felony of the second degree, by a term of

29  imprisonment of 15 years; and

30         d.  For a felony of the third degree, by a term of

31  imprisonment of 5 years.

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  1         Section 7.  For the purpose of incorporating the

  2  amendment made by this act to section 800.04, Florida

  3  Statutes, in references thereto, paragraph (d) of subsection

  4  (1) of section 775.084, Florida Statutes, is reenacted to

  5  read:

  6         775.084  Violent career criminals; habitual felony

  7  offenders and habitual violent felony offenders; three-time

  8  violent felony offenders; definitions; procedure; enhanced

  9  penalties or mandatory minimum prison terms.--

10         (1)  As used in this act:

11         (d)  "Violent career criminal" means a defendant for

12  whom the court must impose imprisonment pursuant to paragraph

13  (4)(d), if it finds that:

14         1.  The defendant has previously been convicted as an

15  adult three or more times for an offense in this state or

16  other qualified offense that is:

17         a.  Any forcible felony, as described in s. 776.08;

18         b.  Aggravated stalking, as described in s. 784.048(3)

19  and (4);

20         c.  Aggravated child abuse, as described in s.

21  827.03(2);

22         d.  Aggravated abuse of an elderly person or disabled

23  adult, as described in s. 825.102(2);

24         e.  Lewd or lascivious battery, lewd or lascivious

25  molestation, lewd or lascivious conduct, or lewd or lascivious

26  exhibition, as described in s. 800.04;

27         f.  Escape, as described in s. 944.40; or

28         g.  A felony violation of chapter 790 involving the use

29  or possession of a firearm.

30         2.  The defendant has been incarcerated in a state

31  prison or a federal prison.

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  1         3.  The primary felony offense for which the defendant

  2  is to be sentenced is a felony enumerated in subparagraph 1.

  3  and was committed on or after October 1, 1995, and:

  4         a.  While the defendant was serving a prison sentence

  5  or other sentence, or court-ordered or lawfully imposed

  6  supervision that is imposed as a result of a prior conviction

  7  for an enumerated felony; or

  8         b.  Within 5 years after the conviction of the last

  9  prior enumerated felony, or within 5 years after the

10  defendant's release from a prison sentence, probation,

11  community control, control release, conditional release,

12  parole, or court-ordered or lawfully imposed supervision or

13  other sentence that is imposed as a result of a prior

14  conviction for an enumerated felony, whichever is later.

15         4.  The defendant has not received a pardon for any

16  felony or other qualified offense that is necessary for the

17  operation of this paragraph.

18         5.  A conviction of a felony or other qualified offense

19  necessary to the operation of this paragraph has not been set

20  aside in any postconviction proceeding.

21         Section 8.  For the purpose of incorporating the

22  amendment made by this act to section 800.04, Florida

23  Statutes, in references thereto, subsection (7) of section

24  775.15, Florida Statutes, is reenacted to read:

25         775.15  Time limitations.--

26         (7)  If the victim of a violation of s. 794.011, former

27  s. 794.05, Florida Statutes 1995, s. 800.04, or s. 826.04 is

28  under the age of 16, the applicable period of limitation, if

29  any, does not begin to run until the victim has reached the

30  age of 16 or the violation is reported to a law enforcement

31  agency or other governmental agency, whichever occurs earlier.

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  1  Such law enforcement agency or other governmental agency shall

  2  promptly report such allegation to the state attorney for the

  3  judicial circuit in which the alleged violation occurred. If

  4  the offense is a first or second degree felony violation of s.

  5  794.011, and the crime is reported within 72 hours after its

  6  commission, paragraph (1)(b) applies. This subsection applies

  7  to any such offense except an offense the prosecution of which

  8  would have been barred by subsection (2) on or before December

  9  31, 1984.

10         Section 9.  For the purpose of incorporating the

11  amendment made by this act to section 800.04, Florida

12  Statutes, in references thereto, paragraph (c) of subsection

13  (4) and paragraph (b) of subsection (10) of section 775.21,

14  Florida Statutes, are reenacted to read:

15         775.21  The Florida Sexual Predators Act; definitions;

16  legislative findings, purpose, and intent; criteria;

17  designation; registration; community and public notification;

18  immunity; penalties.--

19         (4)  SEXUAL PREDATOR CRITERIA.--

20         (c)  For a current offense committed on or after

21  October 1, 1996, upon conviction, an offender shall be

22  designated as a "sexual predator" under subsection (5), and

23  subject to registration under subsection (6) and community and

24  public notification under subsection (7) if:

25         1.  The felony meets the criteria of former ss.

26  775.22(2) and 775.23(2), specifically, the felony is:

27         a.  A capital, life, or first-degree felony violation

28  of s. 787.01 or s. 787.02, where the victim is a minor and the

29  defendant is not the victim's parent, or of chapter 794 or s.

30  847.0145, or a violation of a similar law of another

31  jurisdiction;

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  1         b.  An attempt to commit a capital, life, or

  2  first-degree felony violation of chapter 794, where the victim

  3  is a minor, or a violation of a similar law of another

  4  jurisdiction; or

  5         c.  Any second-degree or greater felony violation of s.

  6  787.01 or s. 787.02, where the victim is a minor and the

  7  defendant is not the victim's parent; chapter 794; s. 796.03;

  8  s. 800.04; s. 825.1025(2)(b); s. 827.071; or s. 847.0145; or a

  9  violation of a similar law of another jurisdiction, and the

10  offender has previously been convicted of or found to have

11  committed, or has pled nolo contendere or guilty to,

12  regardless of adjudication, any violation of s. 787.01 or s.

13  787.02, where the victim is a minor and the defendant is not

14  the victim's parent; s. 794.011(2), (3), (4), (5), or (8); s.

15  794.023; s. 796.03; s. 800.04; s. 825.1025; s. 827.071; s.

16  847.0133; s. 847.0135; or s. 847.0145, or a violation of a

17  similar law of another jurisdiction;

18         2.  The offender has not received a pardon for any

19  felony or similar law of another jurisdiction that is

20  necessary for the operation of this paragraph; and

21         3.  A conviction of a felony or similar law of another

22  jurisdiction necessary to the operation of this paragraph has

23  not been set aside in any postconviction proceeding.

24         (10)  PENALTIES.--

25         (b)  A sexual predator who has been convicted of or

26  found to have committed, or has pled nolo contendere or guilty

27  to, regardless of adjudication, any violation of s.

28  794.011(2), (3), (4), (5), or (8); s. 794.023; s. 800.04; s.

29  827.071; s. 847.0133; or s. 847.0145, or a violation of a

30  similar law of another jurisdiction, when the victim of the

31  offense was a minor, and who works, whether for compensation

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  1  or as a volunteer, at any business, school, day care center,

  2  park, playground, or other place where children regularly

  3  congregate, commits a felony of the third degree, punishable

  4  as provided in s. 775.082, s. 775.083, or s. 775.084.

  5         Section 10.  For the purpose of incorporating the

  6  amendment made by this act to section 800.04, Florida

  7  Statutes, in references thereto, subsection (3) of section

  8  787.01, Florida Statutes, is reenacted to read:

  9         787.01  Kidnapping; kidnapping of child under age 13,

10  aggravating circumstances.--

11         (3)(a)  A person who commits the offense of kidnapping

12  upon a child under the age of 13 and who, in the course of

13  committing the offense, commits one or more of the following:

14         1.  Aggravated child abuse, as defined in s. 827.03;

15         2.  Sexual battery, as defined in chapter 794, against

16  the child;

17         3.  Lewd or lascivious battery, lewd or lascivious

18  molestation, lewd or lascivious conduct, or lewd or lascivious

19  exhibition, in violation of s. 800.04;

20         4.  A violation of s. 796.03 or s. 796.04, relating to

21  prostitution, upon the child; or

22         5.  Exploitation of the child or allowing the child to

23  be exploited, in violation of s. 450.151,

24

25  commits a life felony, punishable as provided in s. 775.082,

26  s. 775.083, or s. 775.084.

27         (b)  Pursuant to s. 775.021(4), nothing contained

28  herein shall be construed to prohibit the imposition of

29  separate judgments and sentences for the life felony described

30  in paragraph (a) and for each separate offense enumerated in

31  subparagraphs (a)1.-5.

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  1         Section 11.  For the purpose of incorporating the

  2  amendment made by this act to section 800.04, Florida

  3  Statutes, in references thereto, subsection (3) of section

  4  787.02, Florida Statutes, is reenacted to read:

  5         787.02  False imprisonment; false imprisonment of child

  6  under age 13, aggravating circumstances.--

  7         (3)(a)  A person who commits the offense of false

  8  imprisonment upon a child under the age of 13 and who, in the

  9  course of committing the offense, commits any offense

10  enumerated in subparagraphs 1.-5., commits a felony of the

11  first degree, punishable by imprisonment for a term of years

12  not exceeding life or as provided in s. 775.082, s. 775.083,

13  or s. 775.084.

14         1.  Aggravated child abuse, as defined in s. 827.03;

15         2.  Sexual battery, as defined in chapter 794, against

16  the child;

17         3.  Lewd or lascivious battery, lewd or lascivious

18  molestation, lewd or lascivious conduct, or lewd or lascivious

19  exhibition, in violation of s. 800.04;

20         4.  A violation of s. 796.03 or s. 796.04, relating to

21  prostitution, upon the child; or

22         5.  Exploitation of the child or allowing the child to

23  be exploited, in violation of s. 450.151.

24         (b)  Pursuant to s. 775.021(4), nothing contained

25  herein shall be construed to prohibit the imposition of

26  separate judgments and sentences for the first degree offense

27  described in paragraph (a) and for each separate offense

28  enumerated in subparagraphs (a)1.-5.

29         Section 12.  For the purpose of incorporating the

30  amendment made by this act to section 800.04, Florida

31

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  1  Statutes, in references thereto, section 914.16, Florida

  2  Statutes, is reenacted to read:

  3         914.16  Child abuse and sexual abuse of victims under

  4  age 16 or persons with mental retardation; limits on

  5  interviews.--The chief judge of each judicial circuit, after

  6  consultation with the state attorney and the public defender

  7  for the judicial circuit, the appropriate chief law

  8  enforcement officer, and any other person deemed appropriate

  9  by the chief judge, shall provide by order reasonable limits

10  on the number of interviews that a victim of a violation of s.

11  794.011, s. 800.04, or s. 827.03 who is under 16 years of age

12  or a victim of a violation of s. 794.011, s. 800.02, s.

13  800.03, or s. 825.102 who is a person with mental retardation

14  as defined in s. 393.063(44) must submit to for law

15  enforcement or discovery purposes.  The order shall, to the

16  extent possible, protect the victim from the psychological

17  damage of repeated interrogations while preserving the rights

18  of the public, the victim, and the person charged with the

19  violation.

20         Section 13.  For the purpose of incorporating the

21  amendment made by this act to section 800.04, Florida

22  Statutes, in references thereto, paragraph (a) of subsection

23  (1) of section 943.0435, Florida Statutes, is reenacted to

24  read:

25         943.0435  Sexual offenders required to register with

26  the department; penalty.--

27         (1)  As used in this section, the term:

28         (a)  "Sexual offender" means a person who has been:

29         1.  Convicted of committing, or attempting, soliciting,

30  or conspiring to commit, any of the criminal offenses

31  proscribed in the following statutes in this state or similar

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  1  offenses in another jurisdiction: s. 787.01 or s. 787.02,

  2  where the victim is a minor and the defendant is not the

  3  victim's parent; s. 787.025; chapter 794; s. 796.03; s.

  4  800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135; s.

  5  847.0145; or any similar offense committed in this state which

  6  has been redesignated from a former statute number to one of

  7  those listed in this subparagraph.

  8         2.  Released on or after October 1, 1997, from the

  9  sanction imposed for any conviction of an offense described in

10  subparagraph 1. For purposes of subparagraph 1., a sanction

11  imposed in this state or in any other jurisdiction includes,

12  but is not limited to, a fine, probation, community control,

13  parole, conditional release, control release, or incarceration

14  in a state prison, federal prison, private correctional

15  facility, or local detention facility.

16         Section 14.  For the purpose of incorporating the

17  amendment made by this act to section 800.04, Florida

18  Statutes, in references thereto, section 943.0585, Florida

19  Statutes, is reenacted to read:

20         943.0585  Court-ordered expunction of criminal history

21  records.--The courts of this state have jurisdiction over

22  their own procedures, including the maintenance, expunction,

23  and correction of judicial records containing criminal history

24  information to the extent such procedures are not inconsistent

25  with the conditions, responsibilities, and duties established

26  by this section.  Any court of competent jurisdiction may

27  order a criminal justice agency to expunge the criminal

28  history record of a minor or an adult who complies with the

29  requirements of this section.  The court shall not order a

30  criminal justice agency to expunge a criminal history record

31  until the person seeking to expunge a criminal history record

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  1  has applied for and received a certificate of eligibility for

  2  expunction pursuant to subsection (2).  A criminal history

  3  record that relates to a violation of chapter 794, s. 800.04,

  4  s. 817.034, s. 827.071, chapter 839, s. 893.135, or a

  5  violation enumerated in s. 907.041 may not be expunged,

  6  without regard to whether adjudication was withheld, if the

  7  defendant was found guilty of or pled guilty or nolo

  8  contendere to the offense, or if the defendant, as a minor,

  9  was found to have committed, or pled guilty or nolo contendere

10  to committing, the offense as a delinquent act. The court may

11  only order expunction of a criminal history record pertaining

12  to one arrest or one incident of alleged criminal activity,

13  except as provided in this section. The court may, at its sole

14  discretion, order the expunction of a criminal history record

15  pertaining to more than one arrest if the additional arrests

16  directly relate to the original arrest. If the court intends

17  to order the expunction of records pertaining to such

18  additional arrests, such intent must be specified in the

19  order. A criminal justice agency may not expunge any record

20  pertaining to such additional arrests if the order to expunge

21  does not articulate the intention of the court to expunge a

22  record pertaining to more than one arrest. This section does

23  not prevent the court from ordering the expunction of only a

24  portion of a criminal history record pertaining to one arrest

25  or one incident of alleged criminal activity.  Notwithstanding

26  any law to the contrary, a criminal justice agency may comply

27  with laws, court orders, and official requests of other

28  jurisdictions relating to expunction, correction, or

29  confidential handling of criminal history records or

30  information derived therefrom.  This section does not confer

31  any right to the expunction of any criminal history record,

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  1  and any request for expunction of a criminal history record

  2  may be denied at the sole discretion of the court.

  3         (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY

  4  RECORD.--Each petition to a court to expunge a criminal

  5  history record is complete only when accompanied by:

  6         (a)  A certificate of eligibility for expunction issued

  7  by the department pursuant to subsection (2).

  8         (b)  The petitioner's sworn statement attesting that

  9  the petitioner:

10         1.  Has never, prior to the date on which the petition

11  is filed, been adjudicated guilty of a criminal offense or

12  comparable ordinance violation or adjudicated delinquent for

13  committing a felony or a misdemeanor specified in s.

14  943.051(3)(b).

15         2.  Has not been adjudicated guilty of, or adjudicated

16  delinquent for committing, any of the acts stemming from the

17  arrest or alleged criminal activity to which the petition

18  pertains.

19         3.  Has never secured a prior sealing or expunction of

20  a criminal history record under this section, former s.

21  893.14, former s. 901.33, or former s. 943.058, or from any

22  jurisdiction outside the state.

23         4.  Is eligible for such an expunction to the best of

24  his or her knowledge or belief and does not have any other

25  petition to expunge or any petition to seal pending before any

26  court.

27

28  Any person who knowingly provides false information on such

29  sworn statement to the court commits a felony of the third

30  degree, punishable as provided in s. 775.082, s. 775.083, or

31  s. 775.084.

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  1         (2)  CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior

  2  to petitioning the court to expunge a criminal history record,

  3  a person seeking to expunge a criminal history record shall

  4  apply to the department for a certificate of eligibility for

  5  expunction. The department shall, by rule adopted pursuant to

  6  chapter 120, establish procedures pertaining to the

  7  application for and issuance of certificates of eligibility

  8  for expunction. The department shall issue a certificate of

  9  eligibility for expunction to a person who is the subject of a

10  criminal history record if that person:

11         (a)  Has obtained, and submitted to the department, a

12  written, certified statement from the appropriate state

13  attorney or statewide prosecutor which indicates:

14         1.  That an indictment, information, or other charging

15  document was not filed or issued in the case.

16         2.  That an indictment, information, or other charging

17  document, if filed or issued in the case, was dismissed or

18  nolle prosequi by the state attorney or statewide prosecutor,

19  or was dismissed by a court of competent jurisdiction.

20         3.  That the criminal history record does not relate to

21  a violation of chapter 794, s. 800.04, s. 817.034, s. 827.071,

22  chapter 839, s. 893.135, or a violation enumerated in s.

23  907.041, where the defendant was found guilty of, or pled

24  guilty or nolo contendere to any such offense, or that the

25  defendant, as a minor, was found to have committed, or pled

26  guilty or nolo contendere to committing, such an offense as a

27  delinquent act, without regard to whether adjudication was

28  withheld.

29         (b)  Remits a $75 processing fee to the department for

30  placement in the Department of Law Enforcement Operating Trust

31  Fund, unless such fee is waived by the executive director.

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  1         (c)  Has submitted to the department a certified copy

  2  of the disposition of the charge to which the petition to

  3  expunge pertains.

  4         (d)  Has never, prior to the date on which the

  5  application for a certificate of eligibility is filed, been

  6  adjudicated guilty of a criminal offense or comparable

  7  ordinance violation or adjudicated delinquent for committing a

  8  felony or a misdemeanor specified in s. 943.051(3)(b).

  9         (e)  Has not been adjudicated guilty of, or adjudicated

10  delinquent for committing, any of the acts stemming from the

11  arrest or alleged criminal activity to which the petition to

12  expunge pertains.

13         (f)  Has never secured a prior sealing or expunction of

14  a criminal history record under this section, former s.

15  893.14, former s. 901.33, or former s. 943.058.

16         (g)  Is no longer under court supervision applicable to

17  the disposition of the arrest or alleged criminal activity to

18  which the petition to expunge pertains.

19         (h)  Is not required to wait a minimum of 10 years

20  prior to being eligible for an expunction of such records

21  because all charges related to the arrest or criminal activity

22  to which the petition to expunge pertains were dismissed prior

23  to trial, adjudication, or the withholding of adjudication.

24  Otherwise, such criminal history record must be sealed under

25  this section, former s. 893.14, former s. 901.33, or former s.

26  943.058 for at least 10 years before such record is eligible

27  for expunction.

28         (3)  PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--

29         (a)  In judicial proceedings under this section, a copy

30  of the completed petition to expunge shall be served upon the

31  appropriate state attorney or the statewide prosecutor and

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  1  upon the arresting agency; however, it is not necessary to

  2  make any agency other than the state a party. The appropriate

  3  state attorney or the statewide prosecutor and the arresting

  4  agency may respond to the court regarding the completed

  5  petition to expunge.

  6         (b)  If relief is granted by the court, the clerk of

  7  the court shall certify copies of the order to the appropriate

  8  state attorney or the statewide prosecutor and the arresting

  9  agency. The arresting agency is responsible for forwarding the

10  order to any other agency to which the arresting agency

11  disseminated the criminal history record information to which

12  the order pertains. The department shall forward the order to

13  expunge to the Federal Bureau of Investigation. The clerk of

14  the court shall certify a copy of the order to any other

15  agency which the records of the court reflect has received the

16  criminal history record from the court.

17         (c)  For an order to expunge entered by a court prior

18  to July 1, 1992, the department shall notify the appropriate

19  state attorney or statewide prosecutor of an order to expunge

20  which is contrary to law because the person who is the subject

21  of the record has previously been convicted of a crime or

22  comparable ordinance violation or has had a prior criminal

23  history record sealed or expunged. Upon receipt of such

24  notice, the appropriate state attorney or statewide prosecutor

25  shall take action, within 60 days, to correct the record and

26  petition the court to void the order to expunge. The

27  department shall seal the record until such time as the order

28  is voided by the court.

29         (d)  On or after July 1, 1992, the department or any

30  other criminal justice agency is not required to act on an

31  order to expunge entered by a court when such order does not

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  1  comply with the requirements of this section. Upon receipt of

  2  such an order, the department must notify the issuing court,

  3  the appropriate state attorney or statewide prosecutor, the

  4  petitioner or the petitioner's attorney, and the arresting

  5  agency of the reason for noncompliance. The appropriate state

  6  attorney or statewide prosecutor shall take action within 60

  7  days to correct the record and petition the court to void the

  8  order.  No cause of action, including contempt of court, shall

  9  arise against any criminal justice agency for failure to

10  comply with an order to expunge when the petitioner for such

11  order failed to obtain the certificate of eligibility as

12  required by this section or such order does not otherwise

13  comply with the requirements of this section.

14         (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

15  criminal history record of a minor or an adult which is

16  ordered expunged by a court of competent jurisdiction pursuant

17  to this section must be physically destroyed or obliterated by

18  any criminal justice agency having custody of such record;

19  except that any criminal history record in the custody of the

20  department must be retained in all cases. A criminal history

21  record ordered expunged that is retained by the department is

22  confidential and exempt from the provisions of s. 119.07(1)

23  and s. 24(a), Art. I of the State Constitution and not

24  available to any person or entity except upon order of a court

25  of competent jurisdiction. A criminal justice agency may

26  retain a notation indicating compliance with an order to

27  expunge.

28         (a)  The person who is the subject of a criminal

29  history record that is expunged under this section or under

30  other provisions of law, including former s. 893.14, former s.

31  901.33, and former s. 943.058, may lawfully deny or fail to

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  1  acknowledge the arrests covered by the expunged record, except

  2  when the subject of the record:

  3         1.  Is a candidate for employment with a criminal

  4  justice agency;

  5         2.  Is a defendant in a criminal prosecution;

  6         3.  Concurrently or subsequently petitions for relief

  7  under this section or s. 943.059;

  8         4.  Is a candidate for admission to The Florida Bar;

  9         5.  Is seeking to be employed or licensed by or to

10  contract with the Department of Children and Family Services

11  or the Department of Juvenile Justice or to be employed or

12  used by such contractor or licensee in a sensitive position

13  having direct contact with children, the developmentally

14  disabled, the aged, or the elderly as provided in s.

15  110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.

16  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

17  415.1075(4), s. 985.407, or chapter 400; or

18         6.  Is seeking to be employed or licensed by the Office

19  of Teacher Education, Certification, Staff Development, and

20  Professional Practices of the Department of Education, any

21  district school board, or any local governmental entity that

22  licenses child care facilities.

23         (b)  Subject to the exceptions in paragraph (a), a

24  person who has been granted an expunction under this section,

25  former s. 893.14, former s. 901.33, or former s. 943.058 may

26  not be held under any provision of law of this state to commit

27  perjury or to be otherwise liable for giving a false statement

28  by reason of such person's failure to recite or acknowledge an

29  expunged criminal history record.

30         (c)  Information relating to the existence of an

31  expunged criminal history record which is provided in

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  1  accordance with paragraph (a) is confidential and exempt from

  2  the provisions of s. 119.07(1) and s. 24(a), Art. I of the

  3  State Constitution, except that the department shall disclose

  4  the existence of a criminal history record ordered expunged to

  5  the entities set forth in subparagraphs (a)1., 4., 5., and 6.

  6  for their respective licensing and employment purposes, and to

  7  criminal justice agencies for their respective criminal

  8  justice purposes.  It is unlawful for any employee of an

  9  entity set forth in subparagraph (a)1., subparagraph (a)4.,

10  subparagraph (a)5., or subparagraph (a)6. to disclose

11  information relating to the existence of an expunged criminal

12  history record of a person seeking employment or licensure

13  with such entity or contractor, except to the person to whom

14  the criminal history record relates or to persons having

15  direct responsibility for employment or licensure decisions.

16  Any person who violates this paragraph commits a misdemeanor

17  of the first degree, punishable as provided in s. 775.082 or

18  s. 775.083.

19         (5)  STATUTORY REFERENCES.--Any reference to any other

20  chapter, section, or subdivision of the Florida Statutes in

21  this section constitutes a general reference under the

22  doctrine of incorporation by reference.

23         Section 15.  For the purpose of incorporating the

24  amendment made by this act to section 800.04, Florida

25  Statutes, in references thereto, section 943.059, Florida

26  Statutes, is reenacted to read:

27         943.059  Court-ordered sealing of criminal history

28  records.--The courts of this state shall continue to have

29  jurisdiction over their own procedures, including the

30  maintenance, sealing, and correction of judicial records

31  containing criminal history information to the extent such

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  1  procedures are not inconsistent with the conditions,

  2  responsibilities, and duties established by this section.  Any

  3  court of competent jurisdiction may order a criminal justice

  4  agency to seal the criminal history record of a minor or an

  5  adult who complies with the requirements of this section.  The

  6  court shall not order a criminal justice agency to seal a

  7  criminal history record until the person seeking to seal a

  8  criminal history record has applied for and received a

  9  certificate of eligibility for sealing pursuant to subsection

10  (2).  A criminal history record that relates to a violation of

11  chapter 794, s. 800.04, s. 817.034, s. 827.071, chapter 839,

12  s. 893.135, or a violation enumerated in s. 907.041 may not be

13  sealed, without regard to whether adjudication was withheld,

14  if the defendant was found guilty of or pled guilty or nolo

15  contendere to the offense, or if the defendant, as a minor,

16  was found to have committed or pled guilty or nolo contendere

17  to committing the offense as a delinquent act.  The court may

18  only order sealing of a criminal history record pertaining to

19  one arrest or one incident of alleged criminal activity,

20  except as provided in this section. The court may, at its sole

21  discretion, order the sealing of a criminal history record

22  pertaining to more than one arrest if the additional arrests

23  directly relate to the original arrest.  If the court intends

24  to order the sealing of records pertaining to such additional

25  arrests, such intent must be specified in the order.  A

26  criminal justice agency may not seal any record pertaining to

27  such additional arrests if the order to seal does not

28  articulate the intention of the court to seal records

29  pertaining to more than one arrest.  This section does not

30  prevent the court from ordering the sealing of only a portion

31  of a criminal history record pertaining to one arrest or one

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  1  incident of alleged criminal activity. Notwithstanding any law

  2  to the contrary, a criminal justice agency may comply with

  3  laws, court orders, and official requests of other

  4  jurisdictions relating to sealing, correction, or confidential

  5  handling of criminal history records or information derived

  6  therefrom.  This section does not confer any right to the

  7  sealing of any criminal history record, and any request for

  8  sealing a criminal history record may be denied at the sole

  9  discretion of the court.

10         (1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each

11  petition to a court to seal a criminal history record is

12  complete only when accompanied by:

13         (a)  A certificate of eligibility for sealing issued by

14  the department pursuant to subsection (2).

15         (b)  The petitioner's sworn statement attesting that

16  the petitioner:

17         1.  Has never, prior to the date on which the petition

18  is filed, been adjudicated guilty of a criminal offense or

19  comparable ordinance violation or adjudicated delinquent for

20  committing a felony or a misdemeanor specified in s.

21  943.051(3)(b).

22         2.  Has not been adjudicated guilty of or adjudicated

23  delinquent for committing any of the acts stemming from the

24  arrest or alleged criminal activity to which the petition to

25  seal pertains.

26         3.  Has never secured a prior sealing or expunction of

27  a criminal history record under this section, former s.

28  893.14, former s. 901.33, former s. 943.058, or from any

29  jurisdiction outside the state.

30         4.  Is eligible for such a sealing to the best of his

31  or her knowledge or belief and does not have any other

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  1  petition to seal or any petition to expunge pending before any

  2  court.

  3

  4  Any person who knowingly provides false information on such

  5  sworn statement to the court commits a felony of the third

  6  degree, punishable as provided in s. 775.082, s. 775.083, or

  7  s. 775.084.

  8         (2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to

  9  petitioning the court to seal a criminal history record, a

10  person seeking to seal a criminal history record shall apply

11  to the department for a certificate of eligibility for

12  sealing.  The department shall, by rule adopted pursuant to

13  chapter 120, establish procedures pertaining to the

14  application for and issuance of certificates of eligibility

15  for sealing.  The department shall issue a certificate of

16  eligibility for sealing to a person who is the subject of a

17  criminal history record provided that such person:

18         (a)  Has submitted to the department a certified copy

19  of the disposition of the charge to which the petition to seal

20  pertains.

21         (b)  Remits a $75 processing fee to the department for

22  placement in the Department of Law Enforcement Operating Trust

23  Fund, unless such fee is waived by the executive director.

24         (c)  Has never, prior to the date on which the

25  application for a certificate of eligibility is filed, been

26  adjudicated guilty of a criminal offense or comparable

27  ordinance violation or adjudicated delinquent for committing a

28  felony or a misdemeanor specified in s. 943.051(3)(b).

29         (d)  Has not been adjudicated guilty of or adjudicated

30  delinquent for committing any of the acts stemming from the

31

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  1  arrest or alleged criminal activity to which the petition to

  2  seal pertains.

  3         (e)  Has never secured a prior sealing or expunction of

  4  a criminal history record under this section, former s.

  5  893.14, former s. 901.33, or former s. 943.058.

  6         (f)  Is no longer under court supervision applicable to

  7  the disposition of the arrest or alleged criminal activity to

  8  which the petition to seal pertains.

  9         (3)  PROCESSING OF A PETITION OR ORDER TO SEAL.--

10         (a)  In judicial proceedings under this section, a copy

11  of the completed petition to seal shall be served upon the

12  appropriate state attorney or the statewide prosecutor and

13  upon the arresting agency; however, it is not necessary to

14  make any agency other than the state a party.  The appropriate

15  state attorney or the statewide prosecutor and the arresting

16  agency may respond to the court regarding the completed

17  petition to seal.

18         (b)  If relief is granted by the court, the clerk of

19  the court shall certify copies of the order to the appropriate

20  state attorney or the statewide prosecutor and to the

21  arresting agency. The arresting agency is responsible for

22  forwarding the order to any other agency to which the

23  arresting agency disseminated the criminal history record

24  information to which the order pertains. The department shall

25  forward the order to seal to the Federal Bureau of

26  Investigation. The clerk of the court shall certify a copy of

27  the order to any other agency which the records of the court

28  reflect has received the criminal history record from the

29  court.

30         (c)  For an order to seal entered by a court prior to

31  July 1, 1992, the department shall notify the appropriate

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  1  state attorney or statewide prosecutor of any order to seal

  2  which is contrary to law because the person who is the subject

  3  of the record has previously been convicted of a crime or

  4  comparable ordinance violation or has had a prior criminal

  5  history record sealed or expunged.  Upon receipt of such

  6  notice, the appropriate state attorney or statewide prosecutor

  7  shall take action, within 60 days, to correct the record and

  8  petition the court to void the order to seal.  The department

  9  shall seal the record until such time as the order is voided

10  by the court.

11         (d)  On or after July 1, 1992, the department or any

12  other criminal justice agency is not required to act on an

13  order to seal entered by a court when such order does not

14  comply with the requirements of this section.  Upon receipt of

15  such an order, the department must notify the issuing court,

16  the appropriate state attorney or statewide prosecutor, the

17  petitioner or the petitioner's attorney, and the arresting

18  agency of the reason for noncompliance. The appropriate state

19  attorney or statewide prosecutor shall take action within 60

20  days to correct the record and petition the court to void the

21  order.  No cause of action, including contempt of court, shall

22  arise against any criminal justice agency for failure to

23  comply with an order to seal when the petitioner for such

24  order failed to obtain the certificate of eligibility as

25  required by this section or when such order does not comply

26  with the requirements of this section.

27         (e)  An order sealing a criminal history record

28  pursuant to this section does not require that such record be

29  surrendered to the court, and such record shall continue to be

30  maintained by the department and other criminal justice

31  agencies.

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  1         (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A

  2  criminal history record of a minor or an adult which is

  3  ordered sealed by a court of competent jurisdiction pursuant

  4  to this section is confidential and exempt from the provisions

  5  of s. 119.07(1) and s. 24(a), Art. I of the State Constitution

  6  and is available only to the person who is the subject of the

  7  record, to the subject's attorney, to criminal justice

  8  agencies for their respective criminal justice purposes, or to

  9  those entities set forth in subparagraphs (a)1., 4., 5., and

10  6. for their respective licensing and employment purposes.

11         (a)  The subject of a criminal history record sealed

12  under this section or under other provisions of law, including

13  former s. 893.14, former s. 901.33, and former s. 943.058, may

14  lawfully deny or fail to acknowledge the arrests covered by

15  the sealed record, except when the subject of the record:

16         1.  Is a candidate for employment with a criminal

17  justice agency;

18         2.  Is a defendant in a criminal prosecution;

19         3.  Concurrently or subsequently petitions for relief

20  under this section or s. 943.0585;

21         4.  Is a candidate for admission to The Florida Bar;

22         5.  Is seeking to be employed or licensed by or to

23  contract with the Department of Children and Family Services

24  or the Department of Juvenile Justice or to be employed or

25  used by such contractor or licensee in a sensitive position

26  having direct contact with children, the developmentally

27  disabled, the aged, or the elderly as provided in s.

28  110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.

29  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

30  415.103, s. 985.407, or chapter 400; or

31

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  1         6.  Is seeking to be employed or licensed by the Office

  2  of Teacher Education, Certification, Staff Development, and

  3  Professional Practices of the Department of Education, any

  4  district school board, or any local governmental entity which

  5  licenses child care facilities.

  6         (b)  Subject to the exceptions in paragraph (a), a

  7  person who has been granted a sealing under this section,

  8  former s. 893.14, former s. 901.33, or former s. 943.058 may

  9  not be held under any provision of law of this state to commit

10  perjury or to be otherwise liable for giving a false statement

11  by reason of such person's failure to recite or acknowledge a

12  sealed criminal history record.

13         (c)  Information relating to the existence of a sealed

14  criminal record provided in accordance with the provisions of

15  paragraph (a) is confidential and exempt from the provisions

16  of s. 119.07(1) and s. 24(a), Art. I of the State

17  Constitution, except that the department shall disclose the

18  sealed criminal history record to the entities set forth in

19  subparagraphs (a)1., 4., 5., and 6. for their respective

20  licensing and employment purposes. It is unlawful for any

21  employee of an entity set forth in subparagraph (a)1.,

22  subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6.

23  to disclose information relating to the existence of a sealed

24  criminal history record of a person seeking employment or

25  licensure with such entity or contractor, except to the person

26  to whom the criminal history record relates or to persons

27  having direct responsibility for employment or licensure

28  decisions.  Any person who violates the provisions of this

29  paragraph commits a misdemeanor of the first degree,

30  punishable as provided in s. 775.082 or s. 775.083.

31

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  1         (5)  STATUTORY REFERENCES.--Any reference to any other

  2  chapter, section, or subdivision of the Florida Statutes in

  3  this section constitutes a general reference under the

  4  doctrine of incorporation by reference.

  5         Section 16.  For the purpose of incorporating the

  6  amendment made by this act to section 800.04, Florida

  7  Statutes, in references thereto, paragraph (b) of subsection

  8  (1) of section 944.606, Florida Statutes, is reenacted to

  9  read:

10         944.606  Sexual offenders; notification upon release.--

11         (1)  As used in this section:

12         (b)  "Sexual offender" means a person who has been

13  convicted of committing, or attempting, soliciting, or

14  conspiring to commit, any of the criminal offenses proscribed

15  in the following statutes in this state or similar offenses in

16  another jurisdiction:  s. 787.01 or s. 787.02, where the

17  victim is a minor and the defendant is not the victim's

18  parent; s. 787.025; chapter 794; s. 796.03; s. 800.04; s.

19  825.1025; s. 827.071; s. 847.0133; s. 847.0135; s. 847.0145;

20  or any similar offense committed in this state which has been

21  redesignated from a former statute number to one of those

22  listed in this subsection, when the department has received

23  verified information regarding such conviction; an offender's

24  computerized criminal history record is not, in and of itself,

25  verified information.

26         Section 17.  For the purpose of incorporating the

27  amendment made by this act to section 800.04, Florida

28  Statutes, in references thereto, paragraph (a) of subsection

29  (1) of section 944.607, Florida Statutes, is reenacted to

30  read:

31

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  1         944.607  Notification to Department of Law Enforcement

  2  of information on sexual offenders.--

  3         (1)  As used in this section, the term:

  4         (a)  "Sexual offender" means a person who is in the

  5  custody or control of, or under the supervision of, the

  6  department or is in the custody of a private correctional

  7  facility on or after October 1, 1997, as a result of a

  8  conviction for committing, or attempting, soliciting, or

  9  conspiring to commit, any of the criminal offenses proscribed

10  in the following statutes in this state or similar offenses in

11  another jurisdiction:  s. 787.01 or s. 787.02, where the

12  victim is a minor and the defendant is not the victim's

13  parent; s. 787.025; chapter 794; s. 796.03; s. 800.04; s.

14  825.1025; s. 827.071; s. 847.0133; s. 847.0135; s. 847.0145;

15  or any similar offense committed in this state which has been

16  redesignated from a former statute number to one of those

17  listed in this paragraph.

18         Section 18.  For the purpose of incorporating the

19  amendment made by this act to section 800.04, Florida

20  Statutes, in references thereto, subsection (7) of section

21  947.1405, Florida Statutes, is reenacted to read:

22         947.1405  Conditional release program.--

23         (7)(a)  Any inmate who is convicted of a crime

24  committed on or after October 1, 1995, or who has been

25  previously convicted of a crime committed on or after October

26  1, 1995, in violation of chapter 794, s. 800.04, s. 827.071,

27  or s. 847.0145, and is subject to conditional release

28  supervision, shall have, in addition to any other conditions

29  imposed, the following special conditions imposed by the

30  commission:

31

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  1         1.  A mandatory curfew from 10 p.m. to 6 a.m. The court

  2  may designate another 8-hour period if the offender's

  3  employment precludes the above specified time, and such

  4  alternative is recommended by the Department of Corrections.

  5  If the court determines that imposing a curfew would endanger

  6  the victim, the court may consider alternative sanctions.

  7         2.  If the victim was under the age of 18, a

  8  prohibition on living within 1,000 feet of a school, day care

  9  center, park, playground, or other place where children

10  regularly congregate.

11         3.  Active participation in and successful completion

12  of a sex offender treatment program with therapists

13  specifically trained to treat sex offenders, at the releasee's

14  own expense. If a specially trained therapist is not available

15  within a 50-mile radius of the releasee's residence, the

16  offender shall participate in other appropriate therapy.

17         4.  A prohibition on any contact with the victim,

18  directly or indirectly, including through a third person,

19  unless approved by the victim, the offender's therapist, and

20  the sentencing court.

21         5.  If the victim was under the age of 18, a

22  prohibition, until successful completion of a sex offender

23  treatment program, on unsupervised contact with a child under

24  the age of 18, unless authorized by the commission without

25  another adult present who is responsible for the child's

26  welfare, has been advised of the crime, and is approved by the

27  commission.

28         6.  If the victim was under age 18, a prohibition on

29  working for pay or as a volunteer at any school, day care

30  center, park, playground, or other place where children

31  regularly congregate, as prescribed by the commission.

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  1         7.  Unless otherwise indicated in the treatment plan

  2  provided by the sexual offender treatment program, a

  3  prohibition on viewing, owning, or possessing any obscene,

  4  pornographic, or sexually stimulating visual or auditory

  5  material, including telephone, electronic media, computer

  6  programs, or computer services that are relevant to the

  7  offender's deviant behavior pattern.

  8         8.  A requirement that the releasee must submit two

  9  specimens of blood to the Florida Department of Law

10  Enforcement to be registered with the DNA database.

11         9.  A requirement that the releasee make restitution to

12  the victim, as determined by the sentencing court or the

13  commission, for all necessary medical and related professional

14  services relating to physical, psychiatric, and psychological

15  care.

16         10.  Submission to a warrantless search by the

17  community control or probation officer of the probationer's or

18  community controllee's person, residence, or vehicle.

19         (b)  For a releasee whose crime was committed on or

20  after October 1, 1997, in violation of chapter 794, s. 800.04,

21  s. 827.071, or s. 847.0145, and who is subject to conditional

22  release supervision, in addition to any other provision of

23  this subsection, the commission shall impose the following

24  additional conditions of conditional release supervision:

25         1.  As part of a treatment program, participation in a

26  minimum of one annual polygraph examination to obtain

27  information necessary for risk management and treatment and to

28  reduce the sex offender's denial mechanisms. The polygraph

29  examination must be conducted by a polygrapher trained

30  specifically in the use of the polygraph for the monitoring of

31  sex offenders, where available, and at the expense of the sex

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  1  offender. The results of the polygraph examination shall not

  2  be used as evidence in a hearing to prove that a violation of

  3  supervision has occurred.

  4         2.  Maintenance of a driving log and a prohibition

  5  against driving a motor vehicle alone without the prior

  6  approval of the supervising officer.

  7         3.  A prohibition against obtaining or using a post

  8  office box without the prior approval of the supervising

  9  officer.

10         4.  If there was sexual contact, a submission to, at

11  the probationer's or community controllee's expense, an HIV

12  test with the results to be released to the victim or the

13  victim's parent or guardian.

14         5.  Electronic monitoring when deemed necessary by the

15  community control or probation officer and his or her

16  supervisor, and ordered by the court at the recommendation of

17  the Department of Corrections.

18         Section 19.  For the purpose of incorporating the

19  amendment made by this act to section 800.04, Florida

20  Statutes, in references thereto, subsection (15) of section

21  948.01, Florida Statutes, is reenacted to read:

22         948.01  When court may place defendant on probation or

23  into community control.--

24         (15)  Effective for an offense committed on or after

25  July 1, 1998, a person is ineligible for placement on

26  administrative probation if the person is sentenced to or is

27  serving a term of probation or community control, regardless

28  of the conviction or adjudication, for committing, or

29  attempting, conspiring, or soliciting to commit, any of the

30  felony offenses described in s. 787.01 or s. 787.02, where the

31  victim is a minor and the defendant is not the victim's

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  1  parent; s. 787.025; chapter 794; s. 796.03; s. 800.04; s.

  2  825.1025(2)(b); s. 827.071; s. 847.0133; s. 847.0135; or s.

  3  847.0145.

  4         Section 20.  For the purpose of incorporating the

  5  amendment made by this act to section 800.04, Florida

  6  Statutes, in references thereto, subsections (4), (5), and (6)

  7  of section 948.03, Florida Statutes, are reenacted to read:

  8         948.03  Terms and conditions of probation or community

  9  control.--

10         (4)  The court shall require a diagnosis and evaluation

11  to determine the need of a probationer or offender in

12  community control for treatment.  If the court determines that

13  a need therefor is established by such diagnosis and

14  evaluation process, the court shall require outpatient

15  counseling as a term or condition of probation or community

16  control for any person who was found guilty of any of the

17  following, or whose plea of guilty or nolo contendere to any

18  of the following was accepted by the court:

19         (a)  Lewd or lascivious battery, lewd or lascivious

20  molestation, lewd or lascivious conduct, or lewd or lascivious

21  exhibition, as defined in s. 800.04.

22         (b)  Sexual battery, as defined in chapter 794, against

23  a child.

24         (c)  Exploitation of a child as provided in s. 450.151,

25  or for prostitution.

26

27  Such counseling shall be required to be obtained from a

28  community mental health center, a recognized social service

29  agency providing mental health services, or a private mental

30  health professional or through other professional counseling.

31

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  1  The plan for counseling for the individual shall be provided

  2  to the court for review.

  3         (5)  Conditions imposed pursuant to this subsection, as

  4  specified in paragraphs (a) and (b), do not require oral

  5  pronouncement at the time of sentencing and shall be

  6  considered standard conditions of probation or community

  7  control for offenders specified in this subsection.

  8         (a)  Effective for probationers or community

  9  controllees whose crime was committed on or after October 1,

10  1995, and who are placed under supervision for violation of

11  chapter 794, s. 800.04, s. 827.071, or s. 847.0145, the court

12  must impose the following conditions in addition to all other

13  standard and special conditions imposed:

14         1.  A mandatory curfew from 10 p.m. to 6 a.m. The court

15  may designate another 8-hour period if the offender's

16  employment precludes the above specified time, and such

17  alternative is recommended by the Department of Corrections.

18  If the court determines that imposing a curfew would endanger

19  the victim, the court may consider alternative sanctions.

20         2.  If the victim was under the age of 18, a

21  prohibition on living within 1,000 feet of a school, day care

22  center, park, playground, or other place where children

23  regularly congregate, as prescribed by the court.

24         3.  Active participation in and successful completion

25  of a sex offender treatment program with therapists

26  specifically trained to treat sex offenders, at the

27  probationer's or community controllee's own expense. If a

28  specially trained therapist is not available within a 50-mile

29  radius of the probationer's or community controllee's

30  residence, the offender shall participate in other appropriate

31  therapy.

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  1         4.  A prohibition on any contact with the victim,

  2  directly or indirectly, including through a third person,

  3  unless approved by the victim, the offender's therapist, and

  4  the sentencing court.

  5         5.  If the victim was under the age of 18, a

  6  prohibition, until successful completion of a sex offender

  7  treatment program, on unsupervised contact with a child under

  8  the age of 18, unless authorized by the sentencing court

  9  without another adult present who is responsible for the

10  child's welfare, has been advised of the crime, and is

11  approved by the sentencing court.

12         6.  If the victim was under age 18, a prohibition on

13  working for pay or as a volunteer at any school, day care

14  center, park, playground, or other place where children

15  regularly congregate.

16         7.  Unless otherwise indicated in the treatment plan

17  provided by the sexual offender treatment program, a

18  prohibition on viewing, owning, or possessing any obscene,

19  pornographic, or sexually stimulating visual or auditory

20  material, including telephone, electronic media, computer

21  programs, or computer services that are relevant to the

22  offender's deviant behavior pattern.

23         8.  A requirement that the probationer or community

24  controllee must submit two specimens of blood to the Florida

25  Department of Law Enforcement to be registered with the DNA

26  data bank.

27         9.  A requirement that the probationer or community

28  controllee make restitution to the victim, as ordered by the

29  court under s. 775.089, for all necessary medical and related

30  professional services relating to physical, psychiatric, and

31  psychological care.

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  1         10.  Submission to a warrantless search by the

  2  community control or probation officer of the probationer's or

  3  community controllee's person, residence, or vehicle.

  4         (b)  Effective for a probationer or community

  5  controllee whose crime was committed on or after October 1,

  6  1997, and who is placed on sex offender probation for a

  7  violation of chapter 794, s. 800.04, s. 827.071, or s.

  8  847.0145, in addition to any other provision of this

  9  subsection, the court must impose the following conditions of

10  probation or community control:

11         1.  As part of a treatment program, participation at

12  least annually in polygraph examinations to obtain information

13  necessary for risk management and treatment and to reduce the

14  sex offender's denial mechanisms. A polygraph examination must

15  be conducted by a polygrapher trained specifically in the use

16  of the polygraph for the monitoring of sex offenders, where

17  available, and shall be paid by the sex offender. The results

18  of the polygraph examination shall not be used as evidence in

19  court to prove that a violation of community supervision has

20  occurred.

21         2.  Maintenance of a driving log and a prohibition

22  against driving a motor vehicle alone without the prior

23  approval of the supervising officer.

24         3.  A prohibition against obtaining or using a post

25  office box without the prior approval of the supervising

26  officer.

27         4.  If there was sexual contact, a submission to, at

28  the probationer's or community controllee's expense, an HIV

29  test with the results to be released to the victim and/or the

30  victim's parent or guardian.

31

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    Florida Senate - 2000                           CS for SB 1618
    307-1855A-00




  1         5.  Electronic monitoring when deemed necessary by the

  2  community control or probation officer and his or her

  3  supervisor, and ordered by the court at the recommendation of

  4  the Department of Corrections.

  5         (6)  The enumeration of specific kinds of terms and

  6  conditions shall not prevent the court from adding thereto

  7  such other or others as it considers proper. However, the

  8  sentencing court may only impose a condition of supervision

  9  allowing an offender convicted of s. 794.011, s. 800.04, s.

10  827.071, or s. 847.0145, to reside in another state, if the

11  order stipulates that it is contingent upon the approval of

12  the receiving state interstate compact authority. The court

13  may rescind or modify at any time the terms and conditions

14  theretofore imposed by it upon the probationer or offender in

15  community control.  However, if the court withholds

16  adjudication of guilt or imposes a period of incarceration as

17  a condition of probation or community control, the period

18  shall not exceed 364 days, and incarceration shall be

19  restricted to either a county facility, a probation and

20  restitution center under the jurisdiction of the Department of

21  Corrections, a probation program drug punishment phase I

22  secure residential treatment institution, or a community

23  residential facility owned or operated by any entity providing

24  such services.

25         Section 21.  For the purpose of incorporating the

26  amendment made by this act to section 800.04, Florida

27  Statutes, in references thereto, paragraph (a) of subsection

28  (2) of section 948.06, Florida Statutes, is reenacted to read:

29         948.06  Violation of probation or community control;

30  revocation; modification; continuance; failure to pay

31  restitution or cost of supervision.--

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    Florida Senate - 2000                           CS for SB 1618
    307-1855A-00




  1         (2)(a)  When any state or local law enforcement agency

  2  investigates or arrests a person for committing, or

  3  attempting, soliciting, or conspiring to commit, a violation

  4  of  s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 827.071,

  5  s. 847.0133, s. 847.0135, or s. 847.0145, the law enforcement

  6  agency shall contact the Department of Corrections to verify

  7  whether the person under investigation or under arrest is on

  8  probation, community control, parole, conditional release, or

  9  control release.

10         Section 22.  This act shall take effect October 1,

11  2000.

12

13          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
14                         Senate Bill 1618

15

16  -     Prohibits the luring or enticing of a minor into a
          building, structure, or conveyance for other than a
17        lawful purpose.

18  -     Corrects an omission in the section relating to computer
          pornography which does not expressly state the conduct
19        described in that section is prohibited.

20

21

22

23

24

25

26

27

28

29

30

31

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