HB 5B

1
A bill to be entitled
2An act relating to high-risk offenders; providing a short
3title; amending s. 794.011, F.S., and reenacting
4subsections (3), (4), and (5), relating to persons
5committing sexual battery upon certain persons, to
6incorporate the amendment to s. 794.0115, F.S., in
7references thereto; prohibiting a prosecutor who charges a
8person with certain sexual battery violations from
9presenting or entering into certain plea bargains;
10providing that sexual predators who commit a sexual
11battery against certain victims shall be sentenced to life
12in prison without the possibility of parole or gain-time;
13amending s. 794.0115, F.S.; increasing the mandatory
14minimum sentence applicable to dangerous sexual felony
15offenders; amending s. 794.065, F.S.; providing for county
16or municipal ordinances relating to the residence of
17persons subject to registration as sexual offenders or
18designated as sexual predators; amending s. 1012.465,
19F.S.; revising provisions relating to background screening
20requirements for certain noninstructional school district
21employees and contractors; requiring annual screening;
22revising and providing definitions; providing for creation
23of the Statewide Background Screening Clearinghouse for
24background screening results for contractors; requiring
25disposal of such results after a specified time; providing
26for a statewide credential; providing requirements for
27renewal of the credential; providing rulemaking authority;
28requiring certain persons to inform their employer or the
29party with whom they are under contract and the Department
30of Education of a charge of a disqualifying offense within
31a specified period; providing criminal penalties;
32reenacting s. 1012.32(2)(a), (b), and (c), F.S., relating
33to qualifications of personnel, to incorporate the
34amendments to s. 1012.465, F.S., in references thereto;
35providing an effective date.
36
37Be It Enacted by the Legislature of the State of Florida:
38
39     Section 1.  This act may be cited as the "Sexual Predator
40Elimination Act."
41     Section 2.  Paragraph (a) of subsection (2) of section
42794.011, Florida Statutes, is amended, subsections (3), (4), and
43(5) are reenacted, and subsection (11) is added to that section,
44to read:
45     794.011  Sexual battery.--
46     (2)(a)  A person 18 years of age or older who commits
47sexual battery upon, or in an attempt to commit sexual battery
48injures the sexual organs of, a person less than 12 years of age
49commits a capital felony, punishable as provided in ss. 775.082
50and 921.141. Any prosecutor who charges a person with a
51violation of this paragraph shall not present or enter into with
52the accused any plea bargain for a term of less than life in
53prison without the possibility of parole or eligibility for
54gain-time.
55     (3)  A person who commits sexual battery upon a person 12
56years of age or older, without that person's consent, and in the
57process thereof uses or threatens to use a deadly weapon or uses
58actual physical force likely to cause serious personal injury
59commits a life felony, punishable as provided in s. 775.082, s.
60775.083, s. 775.084, or s. 794.0115.
61     (4)  A person who commits sexual battery upon a person 12
62years of age or older without that person's consent, under any
63of the following circumstances, commits a felony of the first
64degree, punishable as provided in s. 775.082, s. 775.083, s.
65775.084, or s. 794.0115:
66     (a)  When the victim is physically helpless to resist.
67     (b)  When the offender coerces the victim to submit by
68threatening to use force or violence likely to cause serious
69personal injury on the victim, and the victim reasonably
70believes that the offender has the present ability to execute
71the threat.
72     (c)  When the offender coerces the victim to submit by
73threatening to retaliate against the victim, or any other
74person, and the victim reasonably believes that the offender has
75the ability to execute the threat in the future.
76     (d)  When the offender, without the prior knowledge or
77consent of the victim, administers or has knowledge of someone
78else administering to the victim any narcotic, anesthetic, or
79other intoxicating substance which mentally or physically
80incapacitates the victim.
81     (e)  When the victim is mentally defective and the offender
82has reason to believe this or has actual knowledge of this fact.
83     (f)  When the victim is physically incapacitated.
84     (g)  When the offender is a law enforcement officer,
85correctional officer, or correctional probation officer as
86defined by s. 943.10(1), (2), (3), (6), (7), (8), or (9), who is
87certified under the provisions of s. 943.1395 or is an elected
88official exempt from such certification by virtue of s. 943.253,
89or any other person in a position of control or authority in a
90probation, community control, controlled release, detention,
91custodial, or similar setting, and such officer, official, or
92person is acting in such a manner as to lead the victim to
93reasonably believe that the offender is in a position of control
94or authority as an agent or employee of government.
95     (5)  A person who commits sexual battery upon a person 12
96years of age or older, without that person's consent, and in the
97process thereof does not use physical force and violence likely
98to cause serious personal injury commits a felony of the second
99degree, punishable as provided in s. 775.082, s. 775.083, s.
100775.084, or s. 794.0115.
101     (11)  Notwithstanding any other provision of law, any
102person who has been designated as a sexual predator under s.
103775.21 who is convicted of an offense under this chapter upon a
104child under 12 years of age that is classified as a capital
105felony, a life felony, or a first degree felony and who was 18
106years of age or older at the time of the offense shall be
107sentenced to life in prison without the possibility of parole or
108eligibility for gain-time.
109     Section 3.  Subsection (2) of section 794.0115, Florida
110Statutes, is amended to read:
111     794.0115  Dangerous sexual felony offender; mandatory
112sentencing.--
113     (2)  Any person who is convicted of a violation of s.
114787.025; s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or
115(5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); or s.
116847.0145; or of any similar offense under a former designation,
117which offense the person committed when he or she was 18 years
118of age or older, and the person:
119     (a)  Caused serious personal injury to the victim as a
120result of the commission of the offense;
121     (b)  Used or threatened to use a deadly weapon during the
122commission of the offense;
123     (c)  Victimized more than one person during the course of
124the criminal episode applicable to the offense;
125     (d)  Committed the offense while under the jurisdiction of
126a court for a felony offense under the laws of this state, for
127an offense that is a felony in another jurisdiction, or for an
128offense that would be a felony if that offense were committed in
129this state; or
130     (e)  Has previously been convicted of a violation of s.
131787.025; s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or
132(5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); s.
133847.0145; of any offense under a former statutory designation
134which is similar in elements to an offense described in this
135paragraph; or of any offense that is a felony in another
136jurisdiction, or would be a felony if that offense were
137committed in this state, and which is similar in elements to an
138offense described in this paragraph,
139
140is a dangerous sexual felony offender, who must be sentenced to
141a mandatory minimum term of life in prison without the
142possibility of parole or eligibility for gain-time 25 years
143imprisonment up to, and including, life imprisonment.
144     Section 4.  Subsection (3) is added to section 794.065,
145Florida Statutes, to read:
146     794.065  Unlawful place of residence for persons convicted
147of certain sex offenses.--
148     (3)  No state law shall prevent a county or municipality
149from enacting an ordinance relating to the residence of persons
150subject to registration as sexual offenders under s. 943.0435 or
151designated as sexual predators under s. 775.21 that restricts
152the residence of such persons within its jurisdiction as it may
153deem appropriate to protect its citizens.
154     Section 5.  Section 1012.465, Florida Statutes, is amended
155to read:
156     1012.465  Background screening requirements for certain
157noninstructional school district employees and contractors;
158statewide clearinghouse.--
159     (1)  Noninstructional school district employees or
160contractual personnel who are permitted access on school grounds
161when students are present, who have direct contact with
162students, or who have access to or control of school funds must
163meet level 2 screening requirements as described in s. 1012.32.
164For purposes of this section, the terms "contractual personnel"
165and "contractor" shall include any vendor, individual, or entity
166under contract with the school board who receives remuneration
167for services performed for the school board but is not otherwise
168considered an employee of the school board. The terms also
169include any employee of a contractor who performs services for
170the school board under the contract.
171     (2)  Annually Every 5 years following employment or entry
172into a contract in a capacity described in subsection (1),
173unless otherwise provided in subsection (3), each person who is
174so employed or under contract with the school district must meet
175level 2 screening requirements as described in s. 1012.32, at
176which time the school district shall request the Department of
177Law Enforcement to forward the fingerprints to the Federal
178Bureau of Investigation for the level 2 screening, and the
179background screening results for persons under contract in a
180capacity as described in subsection (1) shall be stored in the
181statewide clearinghouse as provided under section (3). If, for
182any reason following employment or entry into a contract in a
183capacity described in subsection (1), the fingerprints of a
184person who is so employed or under contract with the school
185district are not retained by the Department of Law Enforcement
186under s. 1012.32(3)(a) and (b), the person must file a complete
187set of fingerprints with the district school superintendent of
188the employing or contracting school district. Upon submission of
189fingerprints for this purpose, the school district shall request
190the Department of Law Enforcement to forward the fingerprints to
191the Federal Bureau of Investigation for the level 2 screening,
192and the fingerprints shall be retained by the Department of Law
193Enforcement under s. 1012.32(3)(a) and (b) and, for persons
194under contract in a capacity as described in subsection (1),
195entered in the statewide clearinghouse database as provided
196under subsection (3). The cost of the state and federal criminal
197history check required by level 2 screening may be borne by the
198district school board, the contractor, or the person
199fingerprinted. Under penalty of perjury, each person who is
200employed or under contract in a capacity described in subsection
201(1) must agree to inform his or her employer or the party with
202whom he or she is under contract within 48 hours if convicted of
203any disqualifying offense while he or she is employed or under
204contract in that capacity.
205     (3)(a)  The Department of Education, in cooperation with
206the Department of Law Enforcement, shall create the Statewide
207Background Screening Clearinghouse that shall maintain a
208database of background screening results for contractual
209personnel screened under subsection (2) and for contractual
210personnel seeking background screening clearance prior to
211employment or entry into a contract in a capacity described in
212subsection (1). The Department of Education shall provide each
213contractor who passes the required level 2 screening with a
214statewide credential, bearing a photograph of the contractor,
215indicating that the contractor has passed the level 2 screening.
216The credential shall be valid for 1 year at the end of which
217time the contractor must reapply for a background screening as
218provided under section (2) without requiring additional
219fingerprints to be taken, except as provided in subsection (2).
220The credential shall be accepted in all counties and in lieu of
221the background screening that would be required of the
222individual under this section during the period that the
223credential is valid. The cost of the initial state and federal
224criminal history check required by level 2 screening may be
225borne by the district school board or the contractor. Screening
226results shall be disposed of after 12 months.
227     (b)  Each year, each person who is under such contract with
228the school district as described in subsection (1) must apply to
229the local school district to renew his or her credential. The
230local school district shall repeat the background screening
231process pursuant to paragraph (a) and, if the individual
232continues to meet level 2 screening requirements, issue a
233renewed credential valid for 1 year. The individual so engaged
234shall present the school district with his or her renewed
235credential at the first opportunity following the expiration of
236the individual's previous credential.
237     (c)  The Department of Education may adopt rules pursuant
238to ss. 120.536(1) and 120.54 to implement the provisions of this
239subsection.
240     (4)(3)  If it is found that a person who is employed or
241under contract in a capacity described in subsection (1) does
242not meet the level 2 requirements, the person shall be
243immediately suspended from working in that capacity and shall
244remain suspended until final resolution of any appeals.
245     (5)(a)  Each person who is employed or under contract in a
246capacity described in subsection (1) must agree as a condition
247of receiving the credential under subsection (3) to inform his
248or her employer or the party with whom he or she is under
249contract and the Department of Education within 48 hours if
250charged with any disqualifying offense while he or she is
251employed or under contract in that capacity.
252     (b)  A person who willfully fails to comply with paragraph
253(a) commits a felony of the third degree, punishable as provided
254in s. 775.082, s. 775.083, or s. 775.084.
255     Section 6.  For the purpose of incorporating the amendment
256made by this act to section 1012.465, Florida Statutes, in
257references thereto, paragraphs (a), (b), and (c) of subsection
258(2) of section 1012.32, Florida Statutes, are reenacted to read:
259     1012.32  Qualifications of personnel.--
260     (2)(a)  Instructional and noninstructional personnel who
261are hired or contracted to fill positions requiring direct
262contact with students in any district school system or
263university lab school shall, upon employment or engagement to
264provide services, undergo background screening as required under
265s. 1012.465 or s. 1012.56, whichever is applicable.
266     (b)  Instructional and noninstructional personnel who are
267hired or contracted to fill positions in any charter school and
268members of the governing board of any charter school, in
269compliance with s. 1002.33(12)(g), shall, upon employment,
270engagement of services, or appointment, undergo background
271screening as required under s. 1012.465 or s. 1012.56, whichever
272is applicable, by filing with the district school board for the
273school district in which the charter school is located a
274complete set of fingerprints taken by an authorized law
275enforcement agency or an employee of the school or school
276district who is trained to take fingerprints.
277     (c)  Instructional and noninstructional personnel who are
278hired or contracted to fill positions requiring direct contact
279with students in an alternative school that operates under
280contract with a district school system shall, upon employment or
281engagement to provide services, undergo background screening as
282required under s. 1012.465 or s. 1012.56, whichever is
283applicable, by filing with the district school board for the
284school district to which the alternative school is under
285contract a complete set of fingerprints taken by an authorized
286law enforcement agency or an employee of the school or school
287district who is trained to take fingerprints.
288
289Fingerprints shall be submitted to the Department of Law
290Enforcement for state processing and to the Federal Bureau of
291Investigation for federal processing. Persons subject to this
292subsection found through fingerprint processing to have been
293convicted of a crime involving moral turpitude shall not be
294employed, engaged to provide services, or serve in any position
295requiring direct contact with students. Probationary persons
296subject to this subsection terminated because of their criminal
297record have the right to appeal such decisions. The cost of the
298background screening may be borne by the district school board,
299the charter school, the employee, the contractor, or a person
300subject to this subsection.
301     Section 7.  This act shall take effect upon becoming a law.


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