Senate Bill sb1526c2

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    Florida Senate - 2005                    CS for CS for SB 1526

    By the Committees on Justice Appropriations; Criminal Justice;
    and Senator Baker




    604-2239-05

  1                      A bill to be entitled

  2         An act relating to homicide of an unborn quick

  3         child; amending s. 316.193, F.S.; including the

  4         death of an unborn quick child under DUI

  5         manslaughter; adopting the definition of viable

  6         fetus for purposes of this offense; amending s.

  7         782.09, F.S.; providing that killing an unborn

  8         quick child by injury to the mother which would

  9         be murder in any degree if it resulted in the

10         death of the mother is murder in the same

11         degree; providing penalties; providing that the

12         unlawful killing of an unborn quick child by

13         injury to the mother which would be

14         manslaughter if it resulted in the death of the

15         mother is manslaughter; providing penalties;

16         providing that the death of the mother does not

17         bar prosecution under specified circumstances;

18         providing that the section does not authorize

19         prosecution of a person in connection with a

20         termination of pregnancy; adopting the

21         definition of viable fetus for purposes of this

22         offense; amending ss. 435.03 and 435.04, F.S.,

23         to conform provisions to changes made by the

24         amendments to s. 782.09, F.S.; reenacting s.

25         921.0022(3)(h) and (i), F.S., relating to the

26         Criminal Punishment Code offense severity

27         ranking chart, to incorporate the amendment to

28         s. 316.193, F.S., in references thereto;

29         reenacting s. 316.656(3), F.S., relating to

30         mandatory adjudication, to incorporate the

31         amendment to s. 316.193, F.S., in a reference

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 1         thereto; reenacting s. 947.146(3)(j), F.S.,

 2         relating to the Control Release Authority, to

 3         incorporate the amendment to s. 316.193, F.S.,

 4         in a reference thereto; reenacting s.

 5         960.03(3)(b), F.S., relating to the definition

 6         of "crime" under the Florida Crimes

 7         Compensation Act, to incorporate the amendment

 8         to s. 316.193, F.S., in a reference thereto;

 9         providing an effective date.

10  

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

12  

13         Section 1.  Subsection (3) of section 316.193, Florida

14  Statutes, is amended to read:

15         316.193  Driving under the influence; penalties.--

16         (3)  Any person:

17         (a)  Who is in violation of subsection (1);

18         (b)  Who operates a vehicle; and

19         (c)  Who, by reason of such operation, causes or

20  contributes to causing:

21         1.  Damage to the property or person of another commits

22  a misdemeanor of the first degree, punishable as provided in

23  s. 775.082 or s. 775.083.

24         2.  Serious bodily injury to another, as defined in s.

25  316.1933, commits a felony of the third degree, punishable as

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

27         3.  The death of any human being or unborn quick child

28  commits DUI manslaughter, and commits:

29         a.  A felony of the second degree, punishable as

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

31  

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 1         b.  A felony of the first degree, punishable as

 2  provided in s. 775.082, s. 775.083, or s. 775.084, if:

 3         (I)  At the time of the crash, the person knew, or

 4  should have known, that the crash occurred; and

 5         (II)  The person failed to give information and render

 6  aid as required by s. 316.062.

 7  

 8  For purposes of this subsection, the definition of the term

 9  "unborn quick child" shall be determined in accordance with

10  the definition of viable fetus as set forth in s. 782.071.

11         Section 2.  Section 782.09, Florida Statutes, is

12  amended to read:

13         782.09  Killing of unborn quick child by injury to

14  mother.--

15         (1)  The unlawful willful killing of an unborn quick

16  child, by any injury to the mother of such child which would

17  be murder if it resulted in the death of such mother, shall be

18  deemed murder in the same degree as that which would have been

19  committed against the mother. Any person, other than the

20  mother, who unlawfully kills an unborn quick child by any

21  injury to the mother:

22         (a)  Which would be murder in the first degree

23  constituting a capital felony if it resulted in the mother's

24  death commits murder in the first degree constituting a

25  capital felony, punishable as provided in s. 775.082.

26         (b)  Which would be murder in the second degree if it

27  resulted in the mother's death commits murder in the second

28  degree, a felony of the first degree, punishable as provided

29  in s. 775.082, s. 775.083, or s. 775.084.

30         (c)  Which would be murder in the third degree if it

31  resulted in the mother's death commits murder in the third

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 1  degree manslaughter, a felony of the second degree, punishable

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

 3         (2)  The unlawful killing of an unborn quick child by

 4  any injury to the mother of such child which would be

 5  manslaughter if it resulted in the death of such mother shall

 6  be deemed manslaughter. A person who unlawfully kills an

 7  unborn quick child by any injury to the mother which would be

 8  manslaughter if it resulted in the mother's death commits

 9  manslaughter, a felony of the second degree, punishable as

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

11         (3)  The death of the mother resulting from the same

12  act or criminal episode that caused the death of the unborn

13  quick child does not bar prosecution under this section.

14         (4)  This section does not authorize the prosecution of

15  any person in connection with a termination of pregnancy

16  pursuant to chapter 390.

17         (5)  For purposes of this section, the definition of

18  the term "unborn quick child" shall be determined in

19  accordance with the definition of viable fetus as set forth in

20  s. 782.071.

21         Section 3.  Paragraph (g) of subsection (2) of section

22  435.03, Florida Statutes, is amended to read:

23         435.03  Level 1 screening standards.--

24         (2)  Any person for whom employment screening is

25  required by statute must not have been found guilty of,

26  regardless of adjudication, or entered a plea of nolo

27  contendere or guilty to, any offense prohibited under any of

28  the following provisions of the Florida Statutes or under any

29  similar statute of another jurisdiction:

30         (g)  Section 782.09, relating to killing of an unborn

31  quick child by injury to the mother.

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 1         Section 4.  Paragraph (g) of subsection (2) of section

 2  435.04, Florida Statutes, is amended to read:

 3         435.04  Level 2 screening standards.--

 4         (2)  The security background investigations under this

 5  section must ensure that no persons subject to the provisions

 6  of this section have been found guilty of, regardless of

 7  adjudication, or entered a plea of nolo contendere or guilty

 8  to, any offense prohibited under any of the following

 9  provisions of the Florida Statutes or under any similar

10  statute of another jurisdiction:

11         (g)  Section 782.09, relating to killing of an unborn

12  quick child by injury to the mother.

13         Section 5.  For the purpose of incorporating the

14  amendment to s. 316.193, Florida Statutes, in a reference

15  thereto, paragraphs (h) and (i) of subsection (3) of section

16  921.0022, Florida Statutes, are reenacted to read:

17         921.0022  Criminal Punishment Code; offense severity

18  ranking chart.--

19         (3)  OFFENSE SEVERITY RANKING CHART

20  

21  Florida           Felony

22  Statute           Degree             Description

23  

24                     

25                              (h)  LEVEL 8

26  316.193

27   (3)(c)3.a.        2nd      DUI manslaughter.

28  316.1935(4)(b)     1st      Aggravated fleeing or attempted

29                              eluding with serious bodily

30                              injury or death.

31  327.35(3)(c)3.     2nd      Vessel BUI manslaughter.

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 1  499.0051(7)        1st      Forgery of prescription or legend

 2                              drug labels.

 3  499.0052           1st      Trafficking in contraband legend

 4                              drugs.

 5  560.123(8)(b)2.    2nd      Failure to report currency or

 6                              payment instruments totaling or

 7                              exceeding $20,000, but less than

 8                              $100,000 by money transmitter.

 9  560.125(5)(b)      2nd      Money transmitter business by

10                              unauthorized person, currency or

11                              payment instruments totaling or

12                              exceeding $20,000, but less than

13                              $100,000.

14  655.50(10)(b)2.    2nd      Failure to report financial

15                              transactions totaling or

16                              exceeding $20,000, but less than

17                              $100,000 by financial

18                              institutions.

19  777.03(2)(a)       1st      Accessory after the fact, capital

20                              felony.

21  782.04(4)          2nd      Killing of human without design

22                              when engaged in act or attempt of

23                              any felony other than arson,

24                              sexual battery, robbery,

25                              burglary, kidnapping, aircraft

26                              piracy, or unlawfully discharging

27                              bomb.

28  782.051(2)         1st      Attempted felony murder while

29                              perpetrating or attempting to

30                              perpetrate a felony not

31                              enumerated in s. 782.04(3).

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 1  782.071(1)(b)      1st      Committing vehicular homicide and

 2                              failing to render aid or give

 3                              information.

 4  782.072(2)         1st      Committing vessel homicide and

 5                              failing to render aid or give

 6                              information.

 7  790.161(3)         1st      Discharging a destructive device

 8                              which results in bodily harm or

 9                              property damage.

10  794.011(5)         2nd      Sexual battery, victim 12 years

11                              or over, offender does not use

12                              physical force likely to cause

13                              serious injury.

14  800.04(4)          2nd      Lewd or lascivious battery.

15  806.01(1)          1st      Maliciously damage dwelling or

16                              structure by fire or explosive,

17                              believing person in structure.

18  810.02(2)(a)       1st,PBL  Burglary with assault or battery.

19  810.02(2)(b)       1st,PBL  Burglary; armed with explosives

20                              or dangerous weapon.

21  810.02(2)(c)       1st      Burglary of a dwelling or

22                              structure causing structural

23                              damage or $1,000 or more property

24                              damage.

25  812.014(2)(a)2.    1st      Property stolen; cargo valued at

26                              $50,000 or more, grand theft in

27                              1st degree.

28  812.13(2)(b)       1st      Robbery with a weapon.

29  812.135(2)(c)      1st      Home-invasion robbery, no

30                              firearm, deadly weapon, or other

31                              weapon.

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 1  817.568(6)         2nd      Fraudulent use of personal

 2                              identification information of an

 3                              individual under the age of 18.

 4  825.102(2)         2nd      Aggravated abuse of an elderly

 5                              person or disabled adult.

 6  825.1025(2)        2nd      Lewd or lascivious battery upon

 7                              an elderly person or disabled

 8                              adult.

 9  825.103(2)(a)      1st      Exploiting an elderly person or

10                              disabled adult and property is

11                              valued at $100,000 or more.

12  837.02(2)          2nd      Perjury in official proceedings

13                              relating to prosecution of a

14                              capital felony.

15  837.021(2)         2nd      Making contradictory statements

16                              in official proceedings relating

17                              to prosecution of a capital

18                              felony.

19  860.121(2)(c)      1st      Shooting at or throwing any

20                              object in path of railroad

21                              vehicle resulting in great bodily

22                              harm.

23  860.16             1st      Aircraft piracy.

24  893.13(1)(b)       1st      Sell or deliver in excess of 10

25                              grams of any substance specified

26                              in s. 893.03(1)(a) or (b).

27  893.13(2)(b)       1st      Purchase in excess of 10 grams of

28                              any substance specified in s.

29                              893.03(1)(a) or (b).

30  

31  

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 1  893.13(6)(c)       1st      Possess in excess of 10 grams of

 2                              any substance specified in s.

 3                              893.03(1)(a) or (b).

 4  893.135(1)(a)2.    1st      Trafficking in cannabis, more

 5                              than 2,000 lbs., less than 10,000

 6                              lbs.

 7  893.135

 8   (1)(b)1.b.        1st      Trafficking in cocaine, more than

 9                              200 grams, less than 400 grams.

10  893.135

11   (1)(c)1.b.        1st      Trafficking in illegal drugs,

12                              more than 14 grams, less than 28

13                              grams.

14  893.135

15   (1)(d)1.b.        1st      Trafficking in phencyclidine,

16                              more than 200 grams, less than

17                              400 grams.

18  893.135

19   (1)(e)1.b.        1st      Trafficking in methaqualone, more

20                              than 5 kilograms, less than 25

21                              kilograms.

22  893.135

23   (1)(f)1.b.        1st      Trafficking in amphetamine, more

24                              than 28 grams, less than 200

25                              grams.

26  893.135

27   (1)(g)1.b.        1st      Trafficking in flunitrazepam, 14

28                              grams or more, less than 28

29                              grams.

30  

31  

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 1  893.135

 2   (1)(h)1.b.        1st      Trafficking in

 3                              gamma-hydroxybutyric acid (GHB),

 4                              5 kilograms or more, less than 10

 5                              kilograms.

 6  893.135

 7   (1)(j)1.b.        1st      Trafficking in 1,4-Butanediol, 5

 8                              kilograms or more, less than 10

 9                              kilograms.

10  893.135

11   (1)(k)2.b.        1st      Trafficking in Phenethylamines,

12                              200 grams or more, less than 400

13                              grams.

14  895.03(1)          1st      Use or invest proceeds derived

15                              from pattern of racketeering

16                              activity.

17  895.03(2)          1st      Acquire or maintain through

18                              racketeering activity any

19                              interest in or control of any

20                              enterprise or real property.

21  895.03(3)          1st      Conduct or participate in any

22                              enterprise through pattern of

23                              racketeering activity.

24  896.101(5)(b)      2nd      Money laundering, financial

25                              transactions totaling or

26                              exceeding $20,000, but less than

27                              $100,000.

28  

29  

30  

31  

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 1  896.104(4)(a)2.    2nd      Structuring transactions to evade

 2                              reporting or registration

 3                              requirements, financial

 4                              transactions totaling or

 5                              exceeding $20,000 but less than

 6                              $100,000.

 7                              (i)  LEVEL 9

 8  316.193

 9   (3)(c)3.b.        1st      DUI manslaughter; failing to

10                              render aid or give information.

11  327.35(3)(c)3.b.   1st      BUI manslaughter; failing to

12                              render aid or give information.

13  499.0053           1st      Sale or purchase of contraband

14                              legend drugs resulting in great

15                              bodily harm.

16  560.123(8)(b)3.    1st      Failure to report currency or

17                              payment instruments totaling or

18                              exceeding $100,000 by money

19                              transmitter.

20  560.125(5)(c)      1st      Money transmitter business by

21                              unauthorized person, currency, or

22                              payment instruments totaling or

23                              exceeding $100,000.

24  655.50(10)(b)3.    1st      Failure to report financial

25                              transactions totaling or

26                              exceeding $100,000 by financial

27                              institution.

28  775.0844           1st      Aggravated white collar crime.

29  782.04(1)          1st      Attempt, conspire, or solicit to

30                              commit premeditated murder.

31  

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 1  782.04(3)          1st,PBL   Accomplice to murder in

 2                              connection with arson, sexual

 3                              battery, robbery, burglary, and

 4                              other specified felonies.

 5  782.051(1)         1st      Attempted felony murder while

 6                              perpetrating or attempting to

 7                              perpetrate a felony enumerated in

 8                              s. 782.04(3).

 9  782.07(2)          1st      Aggravated manslaughter of an

10                              elderly person or disabled adult.

11  787.01(1)(a)1.     1st,PBL  Kidnapping; hold for ransom or

12                              reward or as a shield or hostage.

13  787.01(1)(a)2.     1st,PBL  Kidnapping with intent to commit

14                              or facilitate commission of any

15                              felony.

16  787.01(1)(a)4.     1st,PBL  Kidnapping with intent to

17                              interfere with performance of any

18                              governmental or political

19                              function.

20  787.02(3)(a)       1st      False imprisonment; child under

21                              age 13; perpetrator also commits

22                              aggravated child abuse, sexual

23                              battery, or lewd or lascivious

24                              battery, molestation, conduct, or

25                              exhibition.

26  790.161            1st      Attempted capital destructive

27                              device offense.

28  790.166(2)         1st,PBL  Possessing, selling, using, or

29                              attempting to use a weapon of

30                              mass destruction.

31  

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 1  794.011(2)         1st      Attempted sexual battery; victim

 2                              less than 12 years of age.

 3  794.011(2)         Life     Sexual battery; offender younger

 4                              than 18 years and commits sexual

 5                              battery on a person less than 12

 6                              years.

 7  794.011(4)         1st      Sexual battery; victim 12 years

 8                              or older, certain circumstances.

 9  794.011(8)(b)      1st      Sexual battery; engage in sexual

10                              conduct with minor 12 to 18 years

11                              by person in familial or

12                              custodial authority.

13  800.04(5)(b)       1st      Lewd or lascivious molestation;

14                              victim less than 12 years;

15                              offender 18 years or older.

16  812.13(2)(a)       1st,PBL  Robbery with firearm or other

17                              deadly weapon.

18  812.133(2)(a)      1st,PBL  Carjacking; firearm or other

19                              deadly weapon.

20  812.135(2)(b)      1st      Home-invasion robbery with

21                              weapon.

22  817.568(7)         2nd,PBL  Fraudulent use of personal

23                              identification information of an

24                              individual under the age of 18 by

25                              his or her parent, legal

26                              guardian, or person exercising

27                              custodial authority.

28  827.03(2)          1st      Aggravated child abuse.

29  847.0145(1)        1st      Selling, or otherwise

30                              transferring custody or control,

31                              of a minor.

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 1  847.0145(2)        1st      Purchasing, or otherwise

 2                              obtaining custody or control, of

 3                              a minor.

 4  859.01             1st      Poisoning or introducing

 5                              bacteria, radioactive materials,

 6                              viruses, or chemical compounds

 7                              into food, drink, medicine, or

 8                              water with intent to kill or

 9                              injure another person.

10  893.135            1st      Attempted capital trafficking

11                              offense.

12  893.135(1)(a)3.    1st      Trafficking in cannabis, more

13                              than 10,000 lbs.

14  893.135

15   (1)(b)1.c.        1st      Trafficking in cocaine, more than

16                              400 grams, less than 150

17                              kilograms.

18  893.135

19   (1)(c)1.c.        1st      Trafficking in illegal drugs,

20                              more than 28 grams, less than 30

21                              kilograms.

22  893.135

23   (1)(d)1.c.        1st      Trafficking in phencyclidine,

24                              more than 400 grams.

25  893.135

26   (1)(e)1.c.        1st      Trafficking in methaqualone, more

27                              than 25 kilograms.

28  893.135

29   (1)(f)1.c.        1st      Trafficking in amphetamine, more

30                              than 200 grams.

31  

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 1  893.135

 2   (1)(h)1.c.        1st      Trafficking in

 3                              gamma-hydroxybutyric acid (GHB),

 4                              10 kilograms or more.

 5  893.135

 6   (1)(j)1.c.        1st      Trafficking in 1,4-Butanediol, 10

 7                              kilograms or more.

 8  893.135

 9   (1)(k)2.c.        1st      Trafficking in Phenethylamines,

10                              400 grams or more.

11  896.101(5)(c)      1st      Money laundering, financial

12                              instruments totaling or exceeding

13                              $100,000.

14  896.104(4)(a)3.    1st      Structuring transactions to evade

15                              reporting or registration

16                              requirements, financial

17                              transactions totaling or

18                              exceeding $100,000.

19         Section 6.  For the purpose of incorporating the

20  amendment to section 316.193, Florida Statutes, in a reference

21  thereto, subsection (1) of section 316.656, Florida Statutes,

22  is reenacted to read:

23         316.656  Mandatory adjudication; prohibition against

24  accepting plea to lesser included offense.--

25         (1)  Notwithstanding the provisions of s. 948.01, no

26  court may suspend, defer, or withhold adjudication of guilt or

27  imposition of sentence for any violation of s. 316.193, for

28  manslaughter resulting from the operation of a motor vehicle,

29  or for vehicular homicide.

30         Section 7.  For the purpose of incorporating the

31  amendment to section 316.193, Florida Statutes, in a reference

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 1  thereto, paragraph (j) of subsection (3) of section 947.146,

 2  Florida Statutes, is reenacted to read:

 3         947.146  Control Release Authority.--

 4         (3)  Within 120 days prior to the date the state

 5  correctional system is projected pursuant to s. 216.136 to

 6  exceed 99 percent of total capacity, the authority shall

 7  determine eligibility for and establish a control release date

 8  for an appropriate number of parole ineligible inmates

 9  committed to the department and incarcerated within the state

10  who have been determined by the authority to be eligible for

11  discretionary early release pursuant to this section. In

12  establishing control release dates, it is the intent of the

13  Legislature that the authority prioritize consideration of

14  eligible inmates closest to their tentative release date. The

15  authority shall rely upon commitment data on the offender

16  information system maintained by the department to initially

17  identify inmates who are to be reviewed for control release

18  consideration. The authority may use a method of objective

19  risk assessment in determining if an eligible inmate should be

20  released. Such assessment shall be a part of the department's

21  management information system. However, the authority shall

22  have sole responsibility for determining control release

23  eligibility, establishing a control release date, and

24  effectuating the release of a sufficient number of inmates to

25  maintain the inmate population between 99 percent and 100

26  percent of total capacity. Inmates who are ineligible for

27  control release are inmates who are parole eligible or inmates

28  who:

29         (j)  Are convicted, or have been previously convicted,

30  of DUI manslaughter under s. 316.193(3)(c)3., and are

31  sentenced, or have been sentenced at any time, as a habitual

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 1  offender for such offense, or have been sentenced at any time

 2  in another jurisdiction as a habitual offender for such

 3  offense;

 4  

 5  In making control release eligibility determinations under

 6  this subsection, the authority may rely on any document

 7  leading to or generated during the course of the criminal

 8  proceedings, including, but not limited to, any presentence or

 9  postsentence investigation or any information contained in

10  arrest reports relating to circumstances of the offense.

11         Section 8.  For the purpose of incorporating the

12  amendment to section 316.193, Florida Statutes, in a reference

13  thereto, paragraph (b) of subsection (3) of section 960.03,

14  Florida Statutes, is reenacted to read:

15         960.03  Definitions; ss. 960.01-960.28.--As used in ss.

16  960.01-960.28, unless the context otherwise requires, the

17  term:

18         (3)  "Crime" means:

19         (b)  A violation of s. 316.193, s. 316.027(1), s.

20  327.35(1), s. 782.071(1)(b), or s. 860.13(1)(a) which results

21  in physical injury or death; however, no other act involving

22  the operation of a motor vehicle, boat, or aircraft which

23  results in injury or death shall constitute a crime for the

24  purpose of this chapter unless the injury or death was

25  intentionally inflicted through the use of such vehicle, boat,

26  or aircraft or unless such vehicle, boat, or aircraft is an

27  implement of a crime to which this act applies.

28         Section 9.  This act shall take effect October 1, 2005,

29  and shall apply to offenses committed on or after that date.

30  

31  

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    Florida Senate - 2005                    CS for CS for SB 1526
    604-2239-05




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                          CS for SB 1526

 3                                 

 4  The committee substitute for committee substitute adopts the
    definition of the term "viable fetus", as set forth in s.
 5  782.071, F.S., for purposes of the offenses proscribed in the
    bill.
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                                  18

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