Senate Bill sb0442

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    Florida Senate - 2002                                   SB 442

    By Senators Brown-Waite and Smith





    10-626A-02

  1                      A bill to be entitled

  2         An act relating to the detention of material

  3         witnesses; authorizing circuit judges to order

  4         the detention of certain material witnesses for

  5         a prescribed period of time under specified

  6         circumstances; specifying when hearing must be

  7         held; providing for right to counsel; providing

  8         that requirements relating to detention of

  9         certain material witnesses do not abrogate

10         common law; providing that detention of certain

11         material witnesses is not an arrest for

12         purposes of an employment application or

13         application for professional licensure;

14         providing for the future expiration of

15         provisions granting such authority; providing

16         an effective date.

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

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20         Section 1.  (1)  Upon application filed under the

21  authority of the Governor, the Attorney General, the statewide

22  prosecutor, or a state attorney, supported by affidavit filed

23  by the Department of Law Enforcement that the testimony of a

24  person is material in a criminal investigation or other

25  proceeding involving a suspected or charged violation of state

26  law which relates to an act of terrorism or is in furtherance

27  of an act of terrorism and that it may become impracticable to

28  secure the presence of that person by subpoena, the circuit

29  judge before whom the application is pending may order the

30  detention of that person for a period of time not to exceed 4

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    Florida Senate - 2002                                   SB 442
    10-626A-02




  1  calendar days upon a finding that detention is necessary to

  2  prevent a failure of justice.

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

  4         (a)  "Failure of justice" means that a serious risk

  5  exists that the witness will flee or will obstruct or attempt

  6  to obstruct justice or threaten, injure, or intimidate, or

  7  attempt to threaten, injure, or intimidate, another

  8  prospective witness or any other person or that the witness

  9  poses a serious risk to the safety of any other person or the

10  community.

11         (b)  "Terrorism" means an activity that:

12         1.  Involves:

13         a.  A violent act or act dangerous to human life which

14  is a violation of the criminal laws of this state or of the

15  United States; or

16         b.  A violation of section 815.06, Florida Statutes;

17  and

18         2.  Is intended to:

19         a.  Intimidate, injure, or coerce a civilian

20  population;

21         b.  Influence the policy of a government by

22  intimidation or coercion; or

23         c.  Affect the conduct of government through

24  destruction of property, assassination, murder, or kidnapping.

25         (3)(a)  The circuit judge to whom application is made

26  to detain a material witness shall review the application and

27  may order the detention of the witness as provided in this

28  section if the criminal investigation or other proceeding

29  involves a suspected or charged violation of state law which

30  relates to an act of terrorism or in furtherance of an act of

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    Florida Senate - 2002                                   SB 442
    10-626A-02




  1  terrorism and shall set out in a written order findings that

  2  justify the disposition of the application.

  3         (b)  Not later than 48 hours after being detained, the

  4  material witness is entitled to a hearing before the circuit

  5  judge who issued the order of detention to determine whether

  6  further detention is necessary to prevent a failure of

  7  justice. In order for the court to direct the continued

  8  detention of the material witness, the court must issue a

  9  written order of detention which contains findings that

10  justify the continued detention of the material witness.

11         (c)  Evidence offered in support of an application for

12  an order of detention or offered at the hearing conducted to

13  determine whether further detention is necessary must be clear

14  and convincing.

15         (4)  A person subject to possible temporary detention

16  under this section shall have the right to retain counsel

17  during the proceeding to determine whether such detention is

18  appropriate. If the person desires counsel but is indigent,

19  the court shall appoint counsel if it finds that the person is

20  indigent.

21         (5)  Nothing contained in this section abrogates any

22  rights recognized by the courts under common law.

23         (6)  This section expires July 1, 2004.

24         Section 2.  A detention as a material witness in a

25  criminal investigation or other proceeding involving a

26  suspected or charged violation of state law relating to an act

27  of terrorism or in furtherance of an act of terrorism is not

28  an arrest for purposes of an employment application or

29  application for professional licensure.

30         Section 3.  This act shall take effect upon becoming a

31  law.

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    Florida Senate - 2002                                   SB 442
    10-626A-02




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  2                          SENATE SUMMARY

  3    Authorizes a circuit court judge to order the detention
      of a person for up to 4 days if that person's testimony
  4    is material in an investigation involving an act of
      terrorism. Requires that the judge issue a written order
  5    justifying the detention. Provides for a hearing within
      48 hours after the person is detained. Requires that
  6    evidence supporting an application for an order of
      detention be clear and convincing. Provides for
  7    provisions authorizing detention as a material witness to
      expire July 1, 2004. Provides that detention as a
  8    material witness is not an arrest for purposes of
      employment or professional licensure.
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