House Bill hb1597e1

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                                       CS/HB 1597, First Engrossed



  1                      A bill to be entitled

  2         An act relating to sexually violent offenders;

  3         providing that certain evidence may be used in

  4         a criminal proceeding or for the purpose of

  5         identification; providing for the testing of

  6         certain persons for HIV/AIDS under certain

  7         circumstances; providing for the recording of

  8         the results of such a test; creating s.

  9         394.9215, F.S.; authorizing a person held in a

10         secure facility under part V of ch. 394, F.S.,

11         to file a petition for habeas corpus; providing

12         for a response and evidentiary proceeding;

13         providing for appeal; prohibiting a person from

14         filing a petition for habeas corpus in

15         commitment proceedings; providing that the

16         petitioner does not have a right to appointed

17         counsel; requiring that the court grant relief

18         in the least intrusive manner possible;

19         prohibiting the court from releasing a

20         petitioner unless it finds no other relief will

21         remedy the violation of the petitioner's

22         rights; amending s. 394.923, F.S.; providing

23         that the Department of Legal Affairs and its

24         officers and employees are immune from civil

25         liability for good faith conduct under part V

26         of ch. 394, F.S.; providing an effective date.

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

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30         Section 1.  Section 394.9215, Florida Statutes, is

31  created to read:


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                                       CS/HB 1597, First Engrossed



  1         394.9215  Right to habeas corpus.--

  2         (1)(a)  At any time after exhausting all administrative

  3  remedies, a person held in a secure facility under this part

  4  may file a petition for habeas corpus in the circuit court for

  5  the county in which the facility is located alleging that:

  6         1.  The person's conditions of confinement violate a

  7  statutory right under state law or a constitutional right

  8  under the State Constitution or the United States

  9  Constitution; or

10         2.  The facility in which the person is confined is not

11  an appropriate secure facility, as that term is used in s.

12  394.915.

13         (b)  Upon filing a legally sufficient petition stating

14  a prima facie case under paragraph (a), the court may direct

15  the Department of Children and Family Services to file a

16  response. If necessary, the court may conduct an evidentiary

17  proceeding and issue an order to correct a violation of state

18  or federal rights found to exist by the court. A final order

19  entered under this section may be appealed to the district

20  court of appeal. A nonfinal order may be appealed to the

21  extent provided by the Florida Rules of Appellate Procedure.

22  An appeal by the department shall stay the trial court's order

23  until disposition of the appeal.

24         (2)  Any claim referred to in subsection (1) may be

25  asserted only as provided in this section. No claim referred

26  to in subsection (1) shall be considered in commitment

27  proceedings brought under this part. A person does not have a

28  right to appointed council in any proceeding initiated under

29  this section.

30         (3)  Relief granted on a petition filed under this

31  section must be narrowly drawn and may not exceed that which


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                                       CS/HB 1597, First Engrossed



  1  is minimally necessary to correct, in the least intrusive

  2  manner possible, the violation of the state or federal rights

  3  of a particular petitioner. A court considering a petition

  4  under this section must give substantial weight to whether the

  5  granting of relief would adversely impact the operation of the

  6  detention and treatment facility or would adversely impact

  7  public safety.

  8         (4)  The court may not enter an order releasing a

  9  person from secure detention unless the court expressly finds

10  that no relief short of release will remedy the violation of

11  state or federal rights which is found to have occurred.

12         Section 2.  Section 394.923, Florida Statutes, is

13  amended to read:

14         394.923  Immunity from civil liability.--The agency

15  with jurisdiction and its officers and employees; the

16  department and its officers and employees; members of the

17  multidisciplinary team; the state attorney and the state

18  attorney's employees; the Department of Legal Affairs and its

19  officers and employees; and those involved in the evaluation,

20  care, and treatment of sexually violent persons committed

21  under this part are immune from any civil liability for good

22  faith conduct under this part.

23         Section 3.  The offense of sexual battery under s.

24  794.011, for which the identity of the alleged perpetrator is

25  determined after the expiration of such applicable time

26  period, and the identity is confirmed through DNA

27  (deoxyribonucleic acid) analysis from a specimen or specimens

28  collected during the investigation of a crime or otherwise

29  made available to a law enforcement agency, when such

30  information was not known to or in the possession of a law

31  enforcement agency for comparison prior to the expiration of


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                                       CS/HB 1597, First Engrossed



  1  the applicable time period, may be used as evidence in a

  2  criminal proceeding or for the purpose of identification.

  3         Section 4.  Anyone charged with sexual battery under

  4  chapter 794 of the Florida Statutes or any person charged as a

  5  sexual predator pursuant to the Florida Statutes shall be

  6  required to submit to an HIV/AIDS test upon request by the

  7  victim or if the victim is a minor the victim's family. The

  8  test must be administered within two weeks of the request and

  9  the results of the test shall be immediately provided to the

10  victim or if the victim is a minor to the victim's family.

11         Section 5.  This act shall take effect July 1, 2002.

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