Bill Text: HB 1741, Engrossed 1

HB 1741, Engrossed 1

2003

A bill to be entitled

An act relating to juvenile sentencing; amending s.

985.231, F.S.; authorizing a judge to sentence a

delinquent child to a specific commitment program or

facility of the Department of Juvenile Justice; specifying

time limits to hold a child in secure detention while

awaiting placement into a specific program or facility

ordered by the court; reenacting ss. 985.201(4)(a),

985.233(4)(b), 985.31(3)(e) and (k), and 985.311(3)(e),

F.S., to incorporate by reference the amendment to s.

985.231, F.S.; providing an effective date.

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

Section 1. Paragraph (a) of subsection (1) of section

985.231, Florida Statutes, is amended and paragraph (c) of

subsection (1) and paragraphs (h) and (i) of subsection (3) of

said section are reenacted, to read:

985.231 Powers of disposition in delinquency cases.--

(1)(a) The court that has jurisdiction of an adjudicated

delinquent child may, by an order stating the facts upon which a

determination of a sanction and rehabilitative program was made

at the disposition hearing:

1. Place the child in a probation program or a

postcommitment probation program under the supervision of an

authorized agent of the Department of Juvenile Justice or of any

other person or agency specifically authorized and appointed by

the court, whether in the child's own home, in the home of a

relative of the child, or in some other suitable place under

such reasonable conditions as the court may direct. A probation

program for an adjudicated delinquent child must include a

penalty component such as restitution in money or in kind,

community service, a curfew, revocation or suspension of the

driver's license of the child, or other nonresidential

punishment appropriate to the offense and must also include a

rehabilitative program component such as a requirement of

participation in substance abuse treatment or in school or other

educational program. If the child is attending or is eligible to

attend public school and the court finds that the victim or a

sibling of the victim in the case is attending or may attend the

same school as the child, the court placement order shall

include a finding pursuant to the proceedings described in s.

985.23(1)(d). Upon the recommendation of the department at the

time of disposition, or subsequent to disposition pursuant to

the filing of a petition alleging a violation of the child's

conditions of postcommitment probation, the court may order the

child to submit to random testing for the purpose of detecting

and monitoring the use of alcohol or controlled substances.

a. A restrictiveness level classification scale for levels

of supervision shall be provided by the department, taking into

account the child's needs and risks relative to probation

supervision requirements to reasonably ensure the public safety.

Probation programs for children shall be supervised by the

department or by any other person or agency specifically

authorized by the court. These programs must include, but are

not limited to, structured or restricted activities as described

in this subparagraph, and shall be designed to encourage the

child toward acceptable and functional social behavior. If

supervision or a program of community service is ordered by the

court, the duration of such supervision or program must be

consistent with any treatment and rehabilitation needs

identified for the child and may not exceed the term for which

sentence could be imposed if the child were committed for the

offense, except that the duration of such supervision or program

for an offense that is a misdemeanor of the second degree, or is

equivalent to a misdemeanor of the second degree, may be for a

period not to exceed 6 months. When restitution is ordered by

the court, the amount of restitution may not exceed an amount

the child and the parent or guardian could reasonably be

expected to pay or make. A child who participates in any work

program under this part is considered an employee of the state

for purposes of liability, unless otherwise provided by law.

b. The court may conduct judicial review hearings for a

child placed on probation for the purpose of fostering

accountability to the judge and compliance with other

requirements, such as restitution and community service. The

court may allow early termination of probation for a child who

has substantially complied with the terms and conditions of

probation.

c. If the conditions of the probation program or the

postcommitment probation program are violated, the department or

the state attorney may bring the child before the court on a

petition alleging a violation of the program. Any child who

violates the conditions of probation or postcommitment probation

must be brought before the court if sanctions are sought. A

child taken into custody under s. 985.207 for violating the

conditions of probation or postcommitment probation shall be

held in a consequence unit if such a unit is available. The

child shall be afforded a hearing within 24 hours after being

taken into custody to determine the existence of probable cause

that the child violated the conditions of probation or

postcommitment probation. A consequence unit is a secure

facility specifically designated by the department for children

who are taken into custody under s. 985.207 for violating

probation or postcommitment probation, or who have been found by

the court to have violated the conditions of probation or

postcommitment probation. If the violation involves a new charge

of delinquency, the child may be detained under s. 985.215 in a

facility other than a consequence unit. If the child is not

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eligible for detention for the new charge of delinquency, the

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child may be held in the consequence unit pending a hearing and

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is subject to the time limitations specified in s. 985.215. If

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the child denies violating the conditions of probation or

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postcommitment probation, the court shall appoint counsel to

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represent the child at the child's request. Upon the child's

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admission, or if the court finds after a hearing that the child

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has violated the conditions of probation or postcommitment

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probation, the court shall enter an order revoking, modifying,

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or continuing probation or postcommitment probation. In each

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such case, the court shall enter a new disposition order and, in

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addition to the sanctions set forth in this paragraph, may

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impose any sanction the court could have imposed at the original

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disposition hearing. If the child is found to have violated the

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conditions of probation or postcommitment probation, the court

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may:

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(I) Place the child in a consequence unit in that judicial

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circuit, if available, for up to 5 days for a first violation,

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and up to 15 days for a second or subsequent violation.

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(II) Place the child on home detention with electronic

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monitoring. However, this sanction may be used only if a

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residential consequence unit is not available.

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(III) Modify or continue the child's probation program or

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postcommitment probation program.

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(IV) Revoke probation or postcommitment probation and

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commit the child to the department.

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d. Notwithstanding s. 743.07 and paragraph (d), and except

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as provided in s. 985.31, the term of any order placing a child

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in a probation program must be until the child's 19th birthday

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unless he or she is released by the court, on the motion of an

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interested party or on its own motion.

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2. Commit the child to a licensed child-caring agency

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willing to receive the child, but the court may not commit the

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child to a jail or to a facility used primarily as a detention

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center or facility or shelter.

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3. Commit the child to the Department of Juvenile Justice

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at a residential commitment level defined in s. 985.03. The

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court may, in its discretion, specify a program or facility

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within the commitment level to which the child has been ordered.

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A child ordered committed into a specific low-risk residential

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program or facility may not be held in secure detention for more

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than 5 days after the order of commitment, not including

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Saturdays, Sundays, and legal holidays, while awaiting

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placement. A child ordered committed to a specific moderate-risk

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residential program or facility may not be held in secure

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detention for more than 15 days after the order of commitment,

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not including Saturdays, Sundays, and legal holidays, while

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awaiting placement. A child awaiting placement into a specific

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low-risk or moderate-risk residential program or facility must

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meet the detention admission criteria provided in s. 985.215. A

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child ordered committed into a specific high-risk residential or

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maximum-risk residential program or facility shall be held in

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secure detention until the placement is accomplished. For a

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child ordered committed to a high-risk residential or maximum-

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risk residential program or facility, the department may notify

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the dispositional judge of alternative placements of the same

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risk level, as space becomes available, which could be

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accomplished prior to entry of the child into the court-ordered

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program or facility. With respect to any court-specified

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placement, the court may not select a program or facility that

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is not under contract with the department. If the court finds

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that the planned vacancies at the program or facility specified

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by the court are insufficient to allow for the placement of the

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child within 45 days after the commitment order, the court must

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select a program or facility of the same commitment risk level

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from at least three alternative placements provided by the

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department.

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Such commitment must be for the purpose of exercising active

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control over the child, including, but not limited to, custody,

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care, training, urine monitoring, and treatment of the child and

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release of the child into the community in a postcommitment

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nonresidential conditional release program. If the child is

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eligible to attend public school following residential

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commitment and the court finds that the victim or a sibling of

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the victim in the case is or may be attending the same school as

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the child, the commitment order shall include a finding pursuant

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to the proceedings described in s. 985.23(1)(d). If the child is

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not successful in the conditional release program, the

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department may use the transfer procedure under s. 985.404.

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Notwithstanding s. 743.07 and paragraph (d), and except as

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provided in s. 985.31, the term of the commitment must be until

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the child is discharged by the department or until he or she

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reaches the age of 21.

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4. Revoke or suspend the driver's license of the child.

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5. Require the child and, if the court finds it

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appropriate, the child's parent or guardian together with the

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child, to render community service in a public service program.

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6. As part of the probation program to be implemented by

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the Department of Juvenile Justice, or, in the case of a

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committed child, as part of the community-based sanctions

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ordered by the court at the disposition hearing or before the

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child's release from commitment, order the child to make

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restitution in money, through a promissory note cosigned by the

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child's parent or guardian, or in kind for any damage or loss

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caused by the child's offense in a reasonable amount or manner

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to be determined by the court. The clerk of the circuit court

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shall be the receiving and dispensing agent. In such case, the

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court shall order the child or the child's parent or guardian to

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pay to the office of the clerk of the circuit court an amount

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not to exceed the actual cost incurred by the clerk as a result

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of receiving and dispensing restitution payments. The clerk

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shall notify the court if restitution is not made, and the court

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shall take any further action that is necessary against the

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child or the child's parent or guardian. A finding by the court,

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after a hearing, that the parent or guardian has made diligent

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and good faith efforts to prevent the child from engaging in

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delinquent acts absolves the parent or guardian of liability for

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restitution under this subparagraph.

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7. Order the child and, if the court finds it appropriate,

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the child's parent or guardian together with the child, to

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participate in a community work project, either as an

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alternative to monetary restitution or as part of the

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rehabilitative or probation program.

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8. Commit the child to the Department of Juvenile Justice

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for placement in a program or facility for serious or habitual

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juvenile offenders in accordance with s. 985.31. Any commitment

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of a child to a program or facility for serious or habitual

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juvenile offenders must be for an indeterminate period of time,

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but the time may not exceed the maximum term of imprisonment

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that an adult may serve for the same offense. The court may

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retain jurisdiction over such child until the child reaches the

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age of 21, specifically for the purpose of the child completing

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the program.

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9. In addition to the sanctions imposed on the child,

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order the parent or guardian of the child to perform community

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service if the court finds that the parent or guardian did not

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make a diligent and good faith effort to prevent the child from

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engaging in delinquent acts. The court may also order the parent

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or guardian to make restitution in money or in kind for any

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damage or loss caused by the child's offense. The court shall

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determine a reasonable amount or manner of restitution, and

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payment shall be made to the clerk of the circuit court as

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provided in subparagraph 6.

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10. Subject to specific appropriation, commit the juvenile

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sexual offender to the Department of Juvenile Justice for

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placement in a program or facility for juvenile sexual offenders

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in accordance with s. 985.308. Any commitment of a juvenile

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sexual offender to a program or facility for juvenile sexual

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offenders must be for an indeterminate period of time, but the

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time may not exceed the maximum term of imprisonment that an

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adult may serve for the same offense. The court may retain

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jurisdiction over a juvenile sexual offender until the juvenile

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sexual offender reaches the age of 21, specifically for the

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purpose of completing the program.

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writing as prepared by the clerk of court and may thereafter be

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modified or set aside by the court.

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(3) Following a delinquency adjudicatory hearing pursuant

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to s. 985.228, the court may on its own or upon request by the

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state or the department and subject to specific appropriation,

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determine whether a juvenile sexual offender placement is

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required for the protection of the public and what would be the

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best approach to address the treatment needs of the juvenile

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sexual offender. When the court determines that a juvenile has

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no history of a recent comprehensive assessment focused on

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sexually deviant behavior, the court may, subject to specific

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appropriation, order the department to conduct or arrange for an

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examination to determine whether the juvenile sexual offender is

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amenable to community-based treatment.

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(h) If the juvenile sexual offender violates any condition

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of the disposition or the court finds that the juvenile sexual

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offender is failing to make satisfactory progress in treatment,

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the court may revoke the community-based treatment alternative

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and order commitment to the department pursuant to subsection

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(1).

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(i) If the court determines that the juvenile sexual

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offender is not amenable to community-based treatment, the court

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shall proceed with a juvenile sexual offender disposition

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hearing pursuant to subsection (1).

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Section 2. For the purpose of incorporating the amendment

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to section 985.231, Florida Statutes, in references thereto,

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paragraph (a) of subsection (4) of section 985.201, Florida

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Statutes, is reenacted to read:

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985.201 Jurisdiction.--

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(4)(a) Notwithstanding ss. 743.07, 985.229, 985.23, and

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985.231, and except as provided in ss. 985.31 and 985.313, when

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the jurisdiction of any child who is alleged to have committed a

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delinquent act or violation of law is obtained, the court shall

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retain jurisdiction, unless relinquished by its order, until the

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child reaches 19 years of age, with the same power over the

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child that the court had prior to the child becoming an adult.

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Section 3. For the purpose of incorporating the amendment

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to section 985.231, Florida Statutes, in references thereto,

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paragraph (b) of subsection (4) of section 985.233, Florida

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Statutes, is reenacted to read:

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985.233 Sentencing powers; procedures; alternatives for

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juveniles prosecuted as adults.--

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(4) SENTENCING ALTERNATIVES.--

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(b) Sentencing to juvenile sanctions.--For juveniles

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transferred to adult court but who do not qualify for such

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transfer pursuant to s. 985.226(2)(b) or s. 985.227(2)(a) or

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(b), the court may impose juvenile sanctions under this

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paragraph. If juvenile sentences are imposed, the court shall,

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pursuant to this paragraph, adjudge the child to have committed

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a delinquent act. Adjudication of delinquency shall not be

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deemed a conviction, nor shall it operate to impose any of the

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civil disabilities ordinarily resulting from a conviction. The

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court shall impose an adult sanction or a juvenile sanction and

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may not sentence the child to a combination of adult and

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juvenile punishments. An adult sanction or a juvenile sanction

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may include enforcement of an order of restitution or probation

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previously ordered in any juvenile proceeding. However, if the

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court imposes a juvenile sanction and the department determines

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that the sanction is unsuitable for the child, the department

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shall return custody of the child to the sentencing court for

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further proceedings, including the imposition of adult

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sanctions. Upon adjudicating a child delinquent under subsection

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(1), the court may:

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1. Place the child in a probation program under the

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supervision of the department for an indeterminate period of

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time until the child reaches the age of 19 years or sooner if

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discharged by order of the court.

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2. Commit the child to the department for treatment in an

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appropriate program for children for an indeterminate period of

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time until the child is 21 or sooner if discharged by the

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department. The department shall notify the court of its intent

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to discharge no later than 14 days prior to discharge. Failure

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of the court to timely respond to the department's notice shall

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be considered approval for discharge.

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3. Order disposition pursuant to s. 985.231 as an

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alternative to youthful offender or adult sentencing if the

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court determines not to impose youthful offender or adult

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sanctions.

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It is the intent of the Legislature that the criteria and

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guidelines in this subsection are mandatory and that a

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determination of disposition under this subsection is subject to

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the right of the child to appellate review under s. 985.234.

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Section 4. For the purpose of incorporating the amendment

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to section 985.231, Florida Statutes, in references thereto,

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paragraphs (e) and (k) of subsection (3) of section 985.31,

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Florida Statutes, are reenacted to read:

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985.31 Serious or habitual juvenile offender.--

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(3) PRINCIPLES AND RECOMMENDATIONS OF ASSESSMENT AND

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TREATMENT.--

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(e) After a child has been adjudicated delinquent pursuant

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to s. 985.228, the court shall determine whether the child meets

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the criteria for a serious or habitual juvenile offender

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pursuant to s. 985.03(48). If the court determines that the

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child does not meet such criteria, the provisions of s.

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985.231(1) shall apply.

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(k) Any commitment of a child to the department for

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placement in a serious or habitual juvenile offender program or

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facility shall be for an indeterminate period of time, but the

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time shall not exceed the maximum term of imprisonment which an

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adult may serve for the same offense. Notwithstanding the

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provisions of ss. 743.07 and 985.231(1)(d), a serious or

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habitual juvenile offender shall not be held under commitment

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from a court pursuant to this section, s. 985.231, or s. 985.233

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after becoming 21 years of age. This provision shall apply only

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for the purpose of completing the serious or habitual juvenile

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offender program pursuant to this chapter and shall be used

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solely for the purpose of treatment.

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Section 5. For the purpose of incorporating the amendment

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to section 985.231, Florida Statutes, in references thereto,

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paragraph (e) of subsection (3) of section 985.311, Florida

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Statutes, is reenacted to read:

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985.311 Intensive residential treatment program for

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offenders less than 13 years of age.--

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(3) PRINCIPLES AND RECOMMENDATIONS OF ASSESSMENT AND

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TREATMENT.--

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(e) After a child has been adjudicated delinquent pursuant

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to s. 985.228(5), the court shall determine whether the child is

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eligible for an intensive residential treatment program for

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offenders less than 13 years of age pursuant to s. 985.03(7). If

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the court determines that the child does not meet the criteria,

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the provisions of s. 985.231(1) shall apply.

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Section 6. This act shall take effect upon becoming a law.