HB 0391CS

CHAMBER ACTION



1The Justice Council recommends the following:
2
3     Council/Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to electronic monitoring; amending s.
7648.387, F.S.; authorizing bail bond agents to be vendors
8of electronic monitoring services; authorizing bail bond
9agents to contract with third-party vendors to provide
10electronic monitoring of pretrial releasees in certain
11circumstances; authorizing bail bond agents to contract
12with government entities to provide electronic monitoring
13services in certain circumstances; authorizing such agents
14to collect a fee for electronic monitoring services;
15providing that failure to make timely payment of fees
16constitutes grounds to remand; providing that such fees
17are exempt from regulation by the Department of Financial
18Services; creating s. 903.135, F.S.; authorizing issuance
19of a probation appearance bond for certain offenders;
20authorizing electronic monitoring of a person subject to a
21probation appearance bond; providing procedures for
22revocation of the bond; providing application; creating s.
23907.06, F.S.; providing for electronic monitoring of
24persons on pretrial release; requiring the monitored
25person to pay fees; providing that provision of electronic
26monitoring equipment and services is not an undertaking;
27prohibiting a person being monitored from tampering with
28monitoring equipment; creating s. 907.07, F.S.; providing
29a means by which the chief judge of each circuit shall
30maintain a list of eligible private vendors for provision
31of electronic monitoring services; creating s. 907.08,
32F.S.; providing standards for privately owned electronic
33monitoring devices; creating s. 907.09, F.S.; providing
34criminal penalties for tampering with electronic
35monitoring devices; providing criminal penalties for
36cloning the signal of an electronic monitoring device;
37amending s. 948.039, F.S.; allowing a court to require a
38probation appearance bond; amending s. 948.11, F.S.;
39allowing private vendors to provide electronic monitoring
40of offenders subject to community control or probation for
41violent felonies and sex-related offenses; providing an
42effective date.
43
44Be It Enacted by the Legislature of the State of Florida:
45
46     Section 1.  Subsection (6) is added to section 648.387,
47Florida Statutes, to read:
48     648.387  Primary bail bond agents; duties.--
49     (6)(a)  A licensed bail bond agent may be a vendor of
50electronic monitoring services. A licensed bail bond agent may
51also subcontract for such services with a third-party vendor of
52the bail bond agent's choice provided the licensed bail bond
53agent can certify that the equipment and services rendered by
54such third-party vendor on the bail bond agent's behalf meet the
55requirements of s. 907.07 for monitoring of a defendant for whom
56the bail bond agent has provided a criminal surety bail bond. A
57licensed bail bond agent shall also be permitted to subcontract
58with government entities as a means for the bond agent to
59provide electronic monitoring services when monitoring has been
60ordered by a court.
61     (b)  A licensed bail bond agent may charge a reasonable,
62nonrefundable fee for electronic monitoring services from the
63person who is subject to electronic monitoring. Failure to make
64timely payment of such fees constitutes grounds for the agent to
65remand such person to the court or sheriff. Fees charged by a
66bail bond agent associated with required electronic monitoring
67services are not considered part of the bail bond premium and
68shall be exempt from the provisions of s. 648.33.
69     (c)  Records and receipts for electronic monitoring
70provided by a licensed bail bond agent shall be kept separate
71and apart from bail bond records.
72     Section 2.  Section 903.135, Florida Statutes, is created
73to read:
74     903.135  Probation appearance bond.--As a condition of any
75probation, community control, or any other court-ordered
76community supervision for a violent felony or sex-related
77offense authorized pursuant to chapter 948, the court may order
78the posting of a surety bond to secure the appearance of the
79defendant at any subsequent court proceeding. Such bond may
80include as a condition thereof that the defendant be placed on
81an electronic monitoring device and subject to electronic
82monitoring services, in a like manner and under like conditions
83as set forth in s. 907.06. The appearance bond shall be filed by
84a licensed bail agent with the sheriff who shall provide a copy
85to the clerk of the court. Upon 72 hours' notice by the clerk of
86court, the licensed bail agent shall produce the person on
87probation, community control, or other court-ordered community
88supervision to the court. The licensed bail agent shall
89surrender to the sheriff a person on probation, community
90control, or court-ordered community supervision upon notice by
91the probation officer that the person has violated the terms of
92probation, community control, or court-ordered community
93supervision. Under this section, notice shall be in writing or
94by electronic data transmission. If the licensed bail agent
95fails to produce the defendant in the court at the time noticed
96by the court or the clerk of court, the bond shall be estreated
97and forfeited according to the procedures set forth in this
98chapter. Failure to appear shall be the sole grounds for
99forfeiture and estreature of the appearance bond. Where not
100inconsistent with this section, this chapter and chapter 648
101shall regulate the relationship between the bail agent and
102probationer.
103     Section 3.  Section 907.06, Florida Statutes, is created to
104read:
105     907.06  Electronic monitoring.--
106     (1)  The court may order a defendant who has been charged
107with a violent felony or sex-related offense, or who has been
108charged with any crime but who has been previously convicted of
109a violent felony or sex-related offense, to be released from
110custody on a surety bond subject to conditions that include,
111without limitation, electronic monitoring, if electronic
112monitoring is available in the jurisdiction. This section also
113applies to persons subject to electronic monitoring pursuant to
114s. 903.135.
115     (2)  A defendant required to submit to electronic
116monitoring shall pay a reasonable fee for equipment use and
117monitoring as an additional condition of pretrial release. The
118failure of the defendant to make timely payment of such fees
119constitutes a violation of pretrial release and grounds for the
120defendant to be remanded to the court or appropriate sheriff or
121law enforcement agency.
122     (3)  Electronic monitoring shall include the provision of
123services to continuously receive and monitor the electronic
124signals from the transmitter worn by the defendant so as to be
125capable of identifying the defendant's geographic position at
126any time to within 9 meters using Global Positioning Satellite
127(GPS) technology, subject to the limitations related to the
128technology and to circumstances of force majeure. Such
129electronic monitoring services may be undertaken as a primary
130responsibility by a government entity or by a licensed bail bond
131agent who may provide both bail bond services and have primary
132responsibility or oversight for electronic monitoring services.
133A government entity or licensed bail bond agent may subcontract
134to a third-party vendor for electronic monitoring services
135provided such third-party vendor complies with all provisions of
136this subsection and s. 907.08, and operates under the direction
137and control of the government entity or bond agent with primary
138responsibility as the vendor for electronic monitoring. A
139government entity that elects to subcontract for electronic
140monitoring services shall be required to select such third-party
141vendor through a competitive bidding process.
142     (4)  Any person who provides electronic monitoring services
143shall report forthwith any known violation of the defendant's
144pretrial release conditions to the appropriate court, sheriff or
145law enforcement agency, state attorney, and licensed bail agent,
146if any. Notwithstanding the foregoing requirement, the provision
147of electronic monitoring services shall not be deemed to
148constitute an undertaking to protect members of the public from
149harm occasioned by a monitored person. The sole duty owed by a
150person who provides electronic monitoring is to give a law
151enforcement officer, upon request, an indication of the physical
152location of the monitored person at any point in time. It is
153unreasonable for any member of the public to expect that a
154provider of electronic monitoring services will provide
155protection against harm occasioned by a monitored person. A
156provider of electronic monitoring services cannot control the
157activities of a monitored person. A person who provides
158electronic monitoring is not responsible to other persons for
159equipment failure or for the criminal acts of a monitored
160person.
161     (5)  A defendant who has been released in accordance with
162the provisions of this section shall not alter, tamper with,
163damage, or destroy any electronic monitoring equipment. A
164defendant who is notified of a malfunction in the equipment
165shall immediately cooperate with the vendor in restoring the
166equipment to proper functioning. A violation of this subsection
167constitutes a violation of pretrial release and grounds for the
168defendant to be remanded to the court or appropriate sheriff or
169law enforcement agency.
170     Section 4.  Section 907.07, Florida Statutes, is created to
171read:
172     907.07  Vendor requirements for provision of electronic
173monitoring services; vendor registration and certification
174process.--
175     (1)  This section shall not apply to electronic monitoring
176provided directly by the state, a county, or a sheriff.
177     (2)  The chief judge of each judicial circuit shall
178maintain a list of all eligible vendors of electronic monitoring
179in the circuit. To be an eligible vendor, a person must be a
180licensed bail bond agent in this state who has registered in
181accordance with this section as a vendor capable of providing
182electronic monitoring services in that judicial circuit. The
183chief judge shall place on such list of eligible vendors any
184licensed bail bond agent in this state who certifies in writing,
185as part of the vendor registration, that all electronic
186monitoring equipment and electronic monitoring services shall be
187operated and maintained in compliance with this section, and who
188agrees as part of such certification to comply with the terms of
189this section.
190     (3)  Only a governmental entity or a licensed bail bond
191agent who is included on a list of eligible vendors under
192subsection (2) shall be permitted to undertake primary
193responsibility as a vendor of electronic monitoring services in
194a judicial circuit of this state.
195     (4)  A licensed bail bond agent shall agree to abide by the
196following minimum terms as a condition of being included on the
197list of eligible vendors of electronic monitoring in a given
198judicial circuit of this state:
199     (a)  The vendor shall register in writing the name of the
200vendor who shall be a licensed bail bond agent in this state,
201the name of an individual employed by the vendor who is to serve
202as a contact person for the vendor, the address of the vendor,
203and the telephone number of the contact person.
204     (b)  The vendor must initially certify as part of the
205registration, and must certify in writing at least annually
206thereafter on a date set by the chief judge, that all of the
207electronic monitoring devices used by the vendor and any of the
208vendor's subcontractors comply with the requirements for
209privately owned electronic monitoring devices in s. 907.08.
210     (5)  A vendor shall promptly notify the chief judge of any
211changes in the vendor's registration information that is
212required under this section.
213     (6)  Failure to comply with the registration or
214recertification requirements of this section shall be grounds
215for removal from any chief judge's list of eligible vendors for
216electronic monitoring.
217     (7)  The chief judge, in his or her discretion, may also
218remove any registered vendor from the list of eligible vendors
219should the vendor:
220     (a)  Fail to properly monitor any person that the vendor
221was required to monitor.
222     (b)  Charge a defendant a clearly excessive fee for use and
223monitoring of electronic monitoring equipment. Such fees shall
224be considered clearly excessive if the fees charged on a per
225diem basis are at least two times greater than the average fee
226charged by other vendors on the eligible vendor list who provide
227comparable electronic monitoring equipment and services in that
228judicial circuit.
229     Section 5.  Section 907.08, Florida Statutes, is created to
230read:
231     907.08  Standards for privately owned electronic monitoring
232devices.--A privately owned electronic monitoring device
233provided by a vendor must, at a minimum, meet the standards set
234forth in this section to be used for electronic monitoring of a
235person under s. 907.06 or s. 903.135. A device must:
236     (1)  Be a transmitter unit that meets certification
237standards approved by the Federal Communications Commission.
238     (2)  At the court's discretion, either:
239     (a)  Emit signal content 24 hours per day, which signal
240identifies the specific device being worn by the defendant and
241the defendant's physical location using Global Positioning
242Satellite (GPS) technology accurate to within 9 meters; or
243     (b)  Receive signal content 24 hours per day, determining
244the defendant's physical location using Global Positioning
245Satellite (GPS) technology accurate to within 9 meters,
246recording the defendant's physical locations throughout the day,
247and capable of transmitting that record of locations to the
248vendor at least daily.
249     (3)  A unit affixed to the defendant must possess an
250internal power source that provides a minimum of 1 year of
251normal operation without need for recharging or replacing the
252power source. The device must emit signal content that indicates
253the power status of the transmitter and provides the vendor with
254notification of whether the power source needs to be recharged
255or replaced.
256     (4)  Possess and emit signal content that indicates whether
257the transmitter has been subjected to tampering or removal.
258     (5)  Possess encrypted signal content or another feature
259designed to discourage duplication.
260     (6)  Be of a design that is shock resistant, water and
261moisture proof, and capable of reliable function under normal
262atmospheric and environmental conditions.
263     (7)  Be capable of wear and use in a manner that does not
264pose a safety hazard or unduly restrict the activities of the
265defendant.
266     (8)  Be capable of being attached to the defendant in a
267manner that readily reveals any efforts to tamper with or remove
268the transmitter upon visual inspection.
269     (9)  Use straps or other mechanisms for attaching the
270transmitter to the defendant that are either capable of being
271adjusted to fit a defendant of any size or made available in a
272variety of sizes.
273     Section 6.  Section 907.09, Florida Statutes, is created to
274read:
275     907.09  Offenses related to electronic monitoring
276devices.--
277     (1)  It is illegal for any person to intentionally alter,
278tamper with, damage, or destroy any electronic monitoring
279equipment used for monitoring the location of a person pursuant
280to court order, unless such person is the owner of the
281equipment, or an agent of the owner performing ordinary
282maintenance and repairs. A person who violates this subsection
283commits a felony of the third degree, punishable as provided in
284s. 775.082, s. 775.083, or s. 775.084.
285     (2)  It is illegal for any person to develop, build,
286create, possess, or use any device that is intended to mimic,
287clone, interfere with, or jam the signal of an electronic
288monitoring device used to monitor the location of a person
289pursuant to court order. A person who violates this subsection
290commits a felony of the second degree, punishable as provided in
291s. 775.082, s. 775.083, or s. 775.084.
292     Section 7.  Subsection (3) is added to section 948.039,
293Florida Statutes, to read:
294     948.039  Special terms and conditions of probation or
295community control imposed by court order.--The court may
296determine any special terms and conditions of probation or
297community control. The terms and conditions should be reasonably
298related to the circumstances of the offense committed and
299appropriate for the offender. The court shall impose the special
300terms and conditions by oral pronouncement at sentencing and
301include the terms and conditions in the written sentencing
302order. Special terms and conditions may include, but are not
303limited to, requirements that the offender:
304     (3)  Effective October 1, 2005, and applicable for violent
305felonies and sex-related offenses committed on or after that
306date, the court may order the posting of a probation bond
307pursuant to s. 903.135 to secure the appearance of the offender
308at any subsequent court proceeding. Such bond may include as a
309condition thereof that the offender be placed on an electronic
310monitoring device and subject to electronic monitoring services,
311in a like manner and under like conditions as in s. 907.06. The
312offender shall be ordered to pay the reasonable cost of the
313electronic monitoring service.
314     Section 8.  Subsection (6) is added to section 948.11,
315Florida Statutes, to read:
316     948.11  Electronic monitoring devices.--
317     (6)  Any offender sentenced to community control or
318probation for a violent felony or sex-related offense, and
319required to submit to electronic monitoring pursuant to statute,
320court order, or the discretion of the Department of Corrections
321may be referred by the department to a vendor who has been
322selected through a competitive bidding process for the provision
323of electronic monitoring services, subject to the requirements
324of s. 907.07. Notwithstanding subsection (5) and s. 948.09(2),
325such offender shall be responsible for the cost of monitoring
326and shall pay the same directly to the vendor. A vendor shall
327report noncompliance to the assigned probation officer or
328community control officer pursuant to the procedures applicable
329to the Department of Corrections under subsection (3). If an
330offender fails to timely pay any cost related to electronic
331monitoring services to the vendor, the vendor may file an
332affidavit of nonpayment with the department and, upon receipt of
333the affidavit, the department shall proceed with a violation of
334the probation or community control.
335     Section 9.  This act shall take effect October 1, 2005.


CODING: Words stricken are deletions; words underlined are additions.