Senate Bill sb1666

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    Florida Senate - 2006                                  SB 1666

    By Senator Haridopolos





    26-1268-06                                          See HB 251

  1                      A bill to be entitled

  2         An act relating to high-risk offenders;

  3         providing a short title; amending s. 794.011,

  4         F.S., and reenacting subsections (3), (4), and

  5         (5), relating to persons committing sexual

  6         battery upon certain persons, to incorporate

  7         the amendment to s. 794.0115, F.S., in

  8         references thereto; prohibiting a prosecutor

  9         who charges a person with certain sexual

10         battery violations from presenting or entering

11         into certain plea bargains; providing that

12         sexual predators who commit a sexual battery

13         against certain victims shall be sentenced to

14         life in prison without the possibility of

15         parole or gain-time; amending s. 794.0115,

16         F.S.; increasing the mandatory minimum sentence

17         applicable to dangerous sexual felony

18         offenders; amending s. 794.065, F.S.; providing

19         for county or municipal ordinances relating to

20         the residence of persons subject to

21         registration as sexual offenders or designated

22         as sexual predators; amending s. 1012.465,

23         F.S.; revising provisions relating to

24         background screening requirements for certain

25         noninstructional school district employees and

26         contractors; requiring annual screening;

27         revising and providing definitions; providing

28         for creation of the Statewide Background

29         Screening Clearinghouse for background

30         screening results for contractors; requiring

31         disposal of such results after a specified

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    Florida Senate - 2006                                  SB 1666
    26-1268-06                                          See HB 251




 1         time; providing for a statewide credential;

 2         providing requirements for renewal of the

 3         credential; providing rulemaking authority;

 4         requiring certain persons to inform their

 5         employer or the party with whom they are under

 6         contract and the Department of Education of a

 7         charge of a disqualifying offense within a

 8         specified period; providing criminal penalties;

 9         reenacting s. 1012.32(2)(a), (b), and (c),

10         F.S., relating to qualifications of personnel,

11         to incorporate the amendments to s. 1012.465,

12         F.S., in references thereto; providing

13         applicability; providing an effective date.

14  

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

16  

17         Section 1.  This act may be cited as the "Sexual

18  Predator Elimination Act."

19         Section 2.  Paragraph (a) of subsection (2) and

20  paragraph (c) of subsection (8) of section 794.011, Florida

21  Statutes, are amended, subsections (3), (4), and (5) are

22  reenacted, and subsection (11) is added to that section, to

23  read:

24         794.011  Sexual battery.--

25         (2)(a)  A person 18 years of age or older who commits

26  sexual battery upon, or in an attempt to commit sexual battery

27  injures the sexual organs of, a person less than 12 years of

28  age commits a capital felony, punishable as provided in ss.

29  775.082 and 921.141. Any prosecutor who charges a person with

30  a violation of this paragraph shall not present or enter into

31  with the accused any plea bargain for a term of less than life

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    Florida Senate - 2006                                  SB 1666
    26-1268-06                                          See HB 251




 1  in prison without the possibility of parole or eligibility for

 2  gain-time.

 3         (3)  A person who commits sexual battery upon a person

 4  12 years of age or older, without that person's consent, and

 5  in the process thereof uses or threatens to use a deadly

 6  weapon or uses actual physical force likely to cause serious

 7  personal injury commits a life felony, punishable as provided

 8  in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115.

 9         (4)  A person who commits sexual battery upon a person

10  12 years of age or older without that person's consent, under

11  any of the following circumstances, commits a felony of the

12  first degree, punishable as provided in s. 775.082, s.

13  775.083, s. 775.084, or s. 794.0115:

14         (a)  When the victim is physically helpless to resist.

15         (b)  When the offender coerces the victim to submit by

16  threatening to use force or violence likely to cause serious

17  personal injury on the victim, and the victim reasonably

18  believes that the offender has the present ability to execute

19  the threat.

20         (c)  When the offender coerces the victim to submit by

21  threatening to retaliate against the victim, or any other

22  person, and the victim reasonably believes that the offender

23  has the ability to execute the threat in the future.

24         (d)  When the offender, without the prior knowledge or

25  consent of the victim, administers or has knowledge of someone

26  else administering to the victim any narcotic, anesthetic, or

27  other intoxicating substance which mentally or physically

28  incapacitates the victim.

29         (e)  When the victim is mentally defective and the

30  offender has reason to believe this or has actual knowledge of

31  this fact.

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    Florida Senate - 2006                                  SB 1666
    26-1268-06                                          See HB 251




 1         (f)  When the victim is physically incapacitated.

 2         (g)  When the offender is a law enforcement officer,

 3  correctional officer, or correctional probation officer as

 4  defined by s. 943.10(1), (2), (3), (6), (7), (8), or (9), who

 5  is certified under the provisions of s. 943.1395 or is an

 6  elected official exempt from such certification by virtue of

 7  s. 943.253, or any other person in a position of control or

 8  authority in a probation, community control, controlled

 9  release, detention, custodial, or similar setting, and such

10  officer, official, or person is acting in such a manner as to

11  lead the victim to reasonably believe that the offender is in

12  a position of control or authority as an agent or employee of

13  government.

14         (5)  A person who commits sexual battery upon a person

15  12 years of age or older, without that person's consent, and

16  in the process thereof does not use physical force and

17  violence likely to cause serious personal injury commits a

18  felony of the second degree, punishable as provided in s.

19  775.082, s. 775.083, s. 775.084, or s. 794.0115.

20         (8)  Without regard to the willingness or consent of

21  the victim, which is not a defense to prosecution under this

22  subsection, a person who is in a position of familial or

23  custodial authority to a person less than 18 years of age and

24  who:

25         (c)  Engages in any act with that person while the

26  person is less than 12 years of age which constitutes sexual

27  battery under paragraph (1)(h), or in an attempt to commit

28  sexual battery injures the sexual organs of such person

29  commits a capital or life felony, punishable pursuant to

30  subsection (2).

31  

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    Florida Senate - 2006                                  SB 1666
    26-1268-06                                          See HB 251




 1         (11)  Notwithstanding any other provision of law, any

 2  person who has been designated as a sexual predator under s.

 3  775.21 who is convicted of an offense under this chapter upon

 4  a child under 12 years of age which is classified as a capital

 5  felony, a life felony, or a first-degree felony and who was 18

 6  years of age or older at the time of the offense shall be

 7  sentenced to life in prison without the possibility of parole

 8  or eligibility for gain-time.

 9         Section 3.  Subsection (2) of section 794.0115, Florida

10  Statutes, is amended to read:

11         794.0115  Dangerous sexual felony offender; mandatory

12  sentencing.--

13         (2)  Any person who is convicted of a violation of s.

14  787.025; s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or

15  (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); or s.

16  847.0145; or of any similar offense under a former

17  designation, which offense the person committed when he or she

18  was 18 years of age or older, and the person:

19         (a)  Caused serious personal injury to the victim as a

20  result of the commission of the offense;

21         (b)  Used or threatened to use a deadly weapon during

22  the commission of the offense;

23         (c)  Victimized more than one person during the course

24  of the criminal episode applicable to the offense;

25         (d)  Committed the offense while under the jurisdiction

26  of a court for a felony offense under the laws of this state,

27  for an offense that is a felony in another jurisdiction, or

28  for an offense that would be a felony if that offense were

29  committed in this state; or

30         (e)  Has previously been convicted of a violation of s.

31  787.025; s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or

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    Florida Senate - 2006                                  SB 1666
    26-1268-06                                          See HB 251




 1  (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); s.

 2  847.0145; of any offense under a former statutory designation

 3  which is similar in elements to an offense described in this

 4  paragraph; or of any offense that is a felony in another

 5  jurisdiction, or would be a felony if that offense were

 6  committed in this state, and which is similar in elements to

 7  an offense described in this paragraph,

 8  

 9  is a dangerous sexual felony offender, who must be sentenced

10  to a mandatory minimum term of life in prison without the

11  possibility of parole or eligibility for gain-time 25 years

12  imprisonment up to, and including, life imprisonment.

13         Section 4.  Subsection (3) is added to section 794.065,

14  Florida Statutes, to read:

15         794.065  Unlawful place of residence for persons

16  convicted of certain sex offenses.--

17         (3)  No state law shall prevent a county or

18  municipality from enacting an ordinance relating to the

19  residence of persons subject to registration as sexual

20  offenders under s. 943.0435 or designated as sexual predators

21  under s. 775.21 which restricts the residence of such persons

22  within its jurisdiction as it may deem appropriate to protect

23  its citizens.

24         Section 5.  Section 1012.465, Florida Statutes, is

25  amended to read:

26         1012.465  Background screening requirements for certain

27  noninstructional school district employees and contractors;

28  statewide clearinghouse.--

29         (1)  Noninstructional school district employees or

30  contractual personnel who are permitted access on school

31  grounds when students are present, who have direct contact

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    Florida Senate - 2006                                  SB 1666
    26-1268-06                                          See HB 251




 1  with students, or who have access to or control of school

 2  funds must meet level 2 screening requirements as described in

 3  s. 1012.32. For purposes of this section, the terms

 4  "contractual personnel" and "contractor" shall include any

 5  vendor, individual, or entity under contract with the school

 6  board who receives remuneration for services performed for the

 7  school board but is not otherwise considered an employee of

 8  the school board. The terms also include any employee of a

 9  contractor who performs services for the school board under

10  the contract.

11         (2)  Annually Every 5 years following employment or

12  entry into a contract in a capacity described in subsection

13  (1), unless otherwise provided in subsection (3), each person

14  who is so employed or under contract with the school district

15  must meet level 2 screening requirements as described in s.

16  1012.32, at which time the school district shall request the

17  Department of Law Enforcement to forward the fingerprints to

18  the Federal Bureau of Investigation for the level 2 screening,

19  and the background screening results for persons under

20  contract in a capacity as described in subsection (1) shall be

21  stored in the statewide clearinghouse as provided under

22  section (3). If, for any reason following employment or entry

23  into a contract in a capacity described in subsection (1), the

24  fingerprints of a person who is so employed or under contract

25  with the school district are not retained by the Department of

26  Law Enforcement under s. 1012.32(3)(a) and (b), the person

27  must file a complete set of fingerprints with the district

28  school superintendent of the employing or contracting school

29  district. Upon submission of fingerprints for this purpose,

30  the school district shall request the Department of Law

31  Enforcement to forward the fingerprints to the Federal Bureau

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    Florida Senate - 2006                                  SB 1666
    26-1268-06                                          See HB 251




 1  of Investigation for the level 2 screening, and the

 2  fingerprints shall be retained by the Department of Law

 3  Enforcement under s. 1012.32(3)(a) and (b) and, for persons

 4  under contract in a capacity as described in subsection (1),

 5  entered in the statewide clearinghouse database as provided

 6  under subsection (3). The cost of the state and federal

 7  criminal history check required by level 2 screening may be

 8  borne by the district school board, the contractor, or the

 9  person fingerprinted. Under penalty of perjury, each person

10  who is employed or under contract in a capacity described in

11  subsection (1) must agree to inform his or her employer or the

12  party with whom he or she is under contract within 48 hours if

13  convicted of any disqualifying offense while he or she is

14  employed or under contract in that capacity.

15         (3)(a)  The Department of Education, in cooperation

16  with the Department of Law Enforcement, shall create the

17  Statewide Background Screening Clearinghouse, which shall

18  maintain a database of background screening results for

19  contractual personnel screened under subsection (2) and for

20  contractual personnel seeking background screening clearance

21  prior to employment or entry into a contract in a capacity

22  described in subsection (1). The Department of Education shall

23  provide each contractor who passes the required level 2

24  screening with a statewide credential, bearing a photograph of

25  the contractor, indicating that the contractor has passed the

26  level 2 screening. The credential shall be valid for 1 year at

27  the end of which time the contractor must reapply for a

28  background screening as provided under subsection (2) without

29  additional fingerprints required, except as provided in

30  subsection (2). The credential shall be accepted in all

31  counties and in lieu of the background screening that would be

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    Florida Senate - 2006                                  SB 1666
    26-1268-06                                          See HB 251




 1  required of the individual under this section during the

 2  period that the credential is valid. The cost of the initial

 3  state and federal criminal history check required by level 2

 4  screening may be borne by the district school board or the

 5  contractor. Screening results shall be disposed of after 12

 6  months.

 7         (b)  Each year, each person who is under such contract

 8  with the school district as described in subsection (1) must

 9  apply to the local school district to renew his or her

10  credential. The local school district shall repeat the

11  background screening process pursuant to paragraph (a) and, if

12  the individual continues to meet level 2 screening

13  requirements, issue a renewed credential valid for 1 year. The

14  individual so engaged shall present the school district with

15  his or her renewed credential at the first opportunity

16  following the expiration of the individual's previous

17  credential.

18         (c)  The Department of Education may adopt rules

19  pursuant to ss. 120.536(1) and 120.54 to implement the

20  provisions of this subsection.

21         (4)(3)  If it is found that a person who is employed or

22  under contract in a capacity described in subsection (1) does

23  not meet the level 2 requirements, the person shall be

24  immediately suspended from working in that capacity and shall

25  remain suspended until final resolution of any appeals.

26         (5)(a)  Each person who is employed or under contract

27  in a capacity described in subsection (1) must agree as a

28  condition of receiving the credential under subsection (3) to

29  inform his or her employer or the party with whom he or she is

30  under contract and the Department of Education within 48 hours

31  

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    Florida Senate - 2006                                  SB 1666
    26-1268-06                                          See HB 251




 1  if charged with any disqualifying offense while he or she is

 2  employed or under contract in that capacity.

 3         (b)  A person who willfully fails to comply with

 4  paragraph (a) commits a felony of the third degree, punishable

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

 6         Section 6.  For the purpose of incorporating the

 7  amendment made by this act to section 1012.465, Florida

 8  Statutes, in references thereto, paragraphs (a), (b), and (c)

 9  of subsection (2) of section 1012.32, Florida Statutes, are

10  reenacted to read:

11         1012.32  Qualifications of personnel.--

12         (2)(a)  Instructional and noninstructional personnel

13  who are hired or contracted to fill positions requiring direct

14  contact with students in any district school system or

15  university lab school shall, upon employment or engagement to

16  provide services, undergo background screening as required

17  under s. 1012.465 or s. 1012.56, whichever is applicable.

18         (b)  Instructional and noninstructional personnel who

19  are hired or contracted to fill positions in any charter

20  school and members of the governing board of any charter

21  school, in compliance with s. 1002.33(12)(g), shall, upon

22  employment, engagement of services, or appointment, undergo

23  background screening as required under s. 1012.465 or s.

24  1012.56, whichever is applicable, by filing with the district

25  school board for the school district in which the charter

26  school is located a complete set of fingerprints taken by an

27  authorized law enforcement agency or an employee of the school

28  or school district who is trained to take fingerprints.

29         (c)  Instructional and noninstructional personnel who

30  are hired or contracted to fill positions requiring direct

31  contact with students in an alternative school that operates

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    Florida Senate - 2006                                  SB 1666
    26-1268-06                                          See HB 251




 1  under contract with a district school system shall, upon

 2  employment or engagement to provide services, undergo

 3  background screening as required under s. 1012.465 or s.

 4  1012.56, whichever is applicable, by filing with the district

 5  school board for the school district to which the alternative

 6  school is under contract a complete set of fingerprints taken

 7  by an authorized law enforcement agency or an employee of the

 8  school or school district who is trained to take fingerprints.

 9  

10  Fingerprints shall be submitted to the Department of Law

11  Enforcement for state processing and to the Federal Bureau of

12  Investigation for federal processing. Persons subject to this

13  subsection found through fingerprint processing to have been

14  convicted of a crime involving moral turpitude shall not be

15  employed, engaged to provide services, or serve in any

16  position requiring direct contact with students. Probationary

17  persons subject to this subsection terminated because of their

18  criminal record have the right to appeal such decisions. The

19  cost of the background screening may be borne by the district

20  school board, the charter school, the employee, the

21  contractor, or a person subject to this subsection.

22         Section 7.  The amendments to ss. 794.011 and 794.0115,

23  Florida Statutes, by this act shall apply to offenses

24  committed on or after the effective date of this act.

25         Section 8.  This act shall take effect upon becoming a

26  law.

27  

28  

29  

30  

31  

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