Senate Bill sb2010

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    Florida Senate - 2006                                  SB 2010

    By Senator Baker





    20-975A-06

  1                      A bill to be entitled

  2         An act relating to forensic treatment and

  3         training; amending s. 916.105, F.S.; revising

  4         legislative intent with respect to the

  5         treatment or training of defendants who are

  6         mentally ill, retarded, or autistic and are

  7         committed to the Agency for Persons with

  8         Disabilities; amending s. 916.106, F.S.;

  9         providing and revising definitions; amending s.

10         916.107, F.S., relating to the rights of

11         forensic clients; conforming provisions to the

12         transfer of duties from the Developmental

13         Disabilities Program Office within the

14         Department of Children and Family Services to

15         the Agency for Persons with Disabilities;

16         revising provisions governing the involuntary

17         treatment of clients; requiring the

18         coordination of services between the

19         department, the agency, and the Department of

20         Corrections; deleting a requirement that a

21         restriction of a client's right to

22         communication be periodically reviewed;

23         amending s. 916.1075, F.S.; revising certain

24         prohibitions on sexual misconduct involving

25         employees of the Department of Children and

26         Family Services or the Agency for Persons with

27         Disabilities; deleting an exemption; requiring

28         that notice of sexual misconduct be provided to

29         the inspector general of the agency or

30         department; amending s. 916.1081, F.S.;

31         providing that an escape or an attempt to

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 1         escape from a civil or forensic facility

 2         constitutes a second-degree felony; amending s.

 3         916.1085, F.S.; providing for certain

 4         prohibitions concerning contraband articles to

 5         apply to facilities under the supervision or

 6         control of the Agency for Persons with

 7         Disabilities; conforming a cross-reference;

 8         amending s. 916.1091, F.S.; authorizing the use

 9         of chemical weapons by agency personnel;

10         amending s. 916.1093, F.S.; authorizing the

11         agency to enter into contracts and adopt rules;

12         amending s. 916.111, F.S.; revising provisions

13         governing the training of mental health

14         experts; amending s. 916.115, F.S.; requiring

15         that the court appoint experts to determine the

16         mental condition of a criminal defendant;

17         requiring that the Department of Children and

18         Family Services provide the courts with a list

19         of mental health professionals; amending s.

20         916.12, F.S.; revising provisions governing the

21         evaluation of a defendant's competence to

22         proceed; amending s. 916.13, F.S.; revising

23         conditions under which a defendant may be

24         involuntarily committed for treatment; amending

25         s. 916.145, F.S., relating to charges against a

26         defendant adjudicated incompetent; conforming

27         provisions to changes made by the act; amending

28         s. 916.15, F.S.; clarifying that the

29         determination of not guilty by reason of

30         insanity is made under the Florida Rules of

31         Criminal Procedure; amending s. 916.16, F.S.;

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 1         providing for the continuing jurisdiction of

 2         the court over a defendant involuntarily

 3         committed due to mental illness; amending s.

 4         916.17, F.S.; clarifying circumstances under

 5         which the court may order the conditional

 6         release of a defendant; amending s. 916.301,

 7         F.S.; requiring that certain evaluations be

 8         conducted by qualified experts; requiring that

 9         the Agency for Persons with Disabilities

10         provide the court with a list of available

11         retardation and autism professionals;

12         conforming provisions to the transfer of duties

13         from the Developmental Disabilities Program

14         Office within the Department of Children and

15         Family Services to the agency; amending s.

16         916.3012, F.S.; clarifying provisions governing

17         the determination of a defendant's mental

18         competence to proceed; amending s. 916.302,

19         F.S., relating to the involuntary commitment of

20         a defendant; conforming provisions to the

21         transfer of duties from the Developmental

22         Disabilities Program Office within the

23         Department of Children and Family Services to

24         the agency; requiring that the department and

25         agency submit an evaluation to the court before

26         the transfer of a defendant from one civil or

27         forensic facility to another; amending s.

28         916.3025, F.S.; clarifying that the committing

29         court retains jurisdiction over a defendant

30         placed on conditional release; providing for

31         the transfer of continuing jurisdiction to

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 1         another court where the defendant resides;

 2         amending s. 916.303, F.S.; clarifying

 3         provisions governing the dismissal of charges

 4         against a defendant found to be incompetent to

 5         proceed due to retardation or autism; amending

 6         s. 916.304, F.S.; providing for the conditional

 7         release of a defendant to a civil facility;

 8         amending ss. 921.137 and 985.223, F.S.,

 9         relating to provisions governing the imposition

10         of the death sentence upon a mentally retarded

11         defendant and the determination of incompetency

12         in cases involving juvenile delinquency;

13         conforming provisions to the transfer of duties

14         from the Developmental Disabilities Program

15         Office within the Department of Children and

16         Family Services to the Agency for Persons with

17         Disabilities; amending ss. 287.057, 408.036,

18         943.0585, and 943.059, F.S.; conforming

19         cross-references; providing an effective date.

20  

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

22  

23         Section 1.  Section 916.105, Florida Statutes, is

24  amended to read:

25         916.105  Legislative intent.--

26         (1)  It is the intent of the Legislature that the

27  Department of Children and Family Services and the Agency for

28  Persons with Disabilities, as appropriate, establish, locate,

29  and maintain separate and secure forensic facilities and

30  programs for the treatment or training of defendants who have

31  been are charged with a felony and who have been found to be

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 1  incompetent to proceed due to their mental illness, mental

 2  retardation, or autism, or who have been acquitted of a felony

 3  felonies by reason of insanity, and who, while still under the

 4  jurisdiction of the committing court, are committed to the

 5  department or agency under the provisions of this chapter.

 6  Such The separate, secure facilities shall be sufficient to

 7  accommodate the number of defendants committed under the

 8  conditions noted above., Except for those defendants found by

 9  the department or agency to be appropriate for treatment or

10  training in a civil treatment facility or program pursuant to

11  subsection (3), forensic. Such secure facilities shall be

12  designed and administered so that ingress and egress, together

13  with other requirements of this chapter, may be strictly

14  controlled by staff responsible for security in order to

15  protect the defendant, facility personnel, other clients, and

16  citizens in adjacent communities.

17         (2)  It is further the intent of the Legislature that

18  treatment or training programs for defendants who are found to

19  be mentally ill, retarded, or autistic and are involuntarily

20  committed to the department or agency, and who are still under

21  the jurisdiction of the committing court, be provided in such

22  a manner, subject to security requirements and other mandates

23  of this chapter, as to ensure the rights of the defendants as

24  provided in this chapter.

25         (3)  It is also the intent of the Legislature that

26  evaluation and services to defendants who are mentally ill,

27  retarded, or autistic be provided in community settings, in

28  community residential facilities, or in civil, nonforensic

29  facilities, whenever this is a feasible alternative to

30  treatment or training in a state forensic facility.

31  

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 1         Section 2.  Section 916.106, Florida Statutes, is

 2  amended to read:

 3         916.106  Definitions.--For the purposes of this

 4  chapter:

 5         (1)  "Agency" means the Agency for Persons with

 6  Disabilities. The agency is responsible for training forensic

 7  clients who are developmentally disabled due to mental

 8  retardation or autism and have been determined incompetent to

 9  proceed.

10         (2)(1)  "Autism" has the same meaning as in s. 393.063.

11  means a pervasive, neurologically based developmental

12  disability of extended duration which causes severe learning,

13  communication, and behavior disorders, with the age of onset

14  of autism occurring during infancy or childhood. Individuals

15  with autism exhibit impairment in reciprocal social

16  interaction, impairment in verbal and nonverbal communication

17  and imaginative ability, and a markedly restricted repertoire

18  of activities and interests.

19         (3)(2)  "Chemical weapon" means any shell, cartridge,

20  bomb, gun, or other device capable of emitting

21  chloroacetophenone (CN), chlorobenzalmalononitrile (CS) or any

22  derivatives thereof in any form, or any other agent with

23  lacrimatory properties, and shall include products such as

24  that commonly known as "mace."

25         (4)(3)  "Civil facility" means:

26         (a)  A mental health facility established within the

27  department or by contract with the department to serve

28  individuals committed pursuant to chapter 394 and those

29  defendants committed pursuant to this chapter who do not

30  require the security provided in a forensic facility; or.

31  

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 1         (b)  An intermediate care facility for the

 2  developmentally disabled, a foster care facility, a group home

 3  facility, or a supported living setting, as defined in s.

 4  393.063, designated by the agency to serve those defendants

 5  who do not require the security provided in a forensic

 6  facility.

 7         (5)(4)  "Court" means the circuit court.

 8         (6)  "Defendant" means an adult, or a juvenile who is

 9  prosecuted as an adult, who has been arraigned and charged

10  with a felony offense under the laws of this state.

11         (7)(5)  "Department" means the Department of Children

12  and Family Services. The department is responsible for the

13  treatment of forensic clients who have been determined

14  incompetent to proceed due to mental illness or who have been

15  acquitted of a felony by reason of insanity.

16         (8)(6)  "Express and informed consent" or "consent"

17  means consent given voluntarily in writing after a

18  conscientious and sufficient explanation and disclosure of the

19  purpose of the proposed treatment, the common side effects of

20  the treatment, if any, the expected duration of the treatment,

21  and any alternative treatment available.

22         (9)(7)  "Forensic client" or "client" means any

23  defendant who has been is mentally ill, retarded, or autistic

24  and who is committed to the department or agency pursuant to

25  s. 916.13, s. 916.15, or s. 916.302. this chapter and:

26         (a)  Who has been determined to need treatment for a

27  mental illness or training for retardation or autism;

28         (b)  Who has been found incompetent to proceed on a

29  felony offense or has been acquitted of a felony offense by

30  reason of insanity;

31         (c)  Who has been determined by the department to:

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 1         1.  Be dangerous to himself or herself or others; or

 2         2.  Present a clear and present potential to escape;

 3  and

 4         (d)  Who is an adult or a juvenile prosecuted as an

 5  adult.

 6         (10)(8)  "Forensic facility" means a separate and

 7  secure facility established within the department or agency to

 8  serve forensic clients. A Such separate and secure facility

 9  means a facilities shall be security-grade building for the

10  purpose of separately housing persons who are mentally ill

11  from persons who are retarded or autistic and separately

12  housing persons who have been involuntarily committed pursuant

13  to this chapter from nonforensic residents buildings located

14  on grounds distinct in location from other facilities for

15  persons who are mentally ill. The Florida State Hospital shall

16  not be required to maintain separate facilities for mentally

17  ill, retarded, or autistic defendants who are found

18  incompetent to proceed or who are acquitted of a criminal

19  offense by reason of insanity.

20         (11)(9)  "Incompetent to proceed" means unable to

21  proceed at any material stage of a criminal proceeding, which

22  shall include trial of the case, pretrial hearings involving

23  questions of fact on which the defendant might be expected to

24  testify, entry of a plea, proceedings for violation of

25  probation or violation of community control, sentencing, and

26  hearings on issues regarding a defendant's failure to comply

27  with court orders or conditions or other matters in which the

28  mental competence of the defendant is necessary for a just

29  resolution of the issues being considered.

30         (12)(10)  "Institutional security personnel" means

31  employees of forensic facilities staff members who meet or

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 1  exceed the requirements of s. 943.13 and who are responsible

 2  for providing security, protecting for protection of clients

 3  and personnel, enforcing for the enforcement of rules,

 4  preventing and investigating for prevention and investigation

 5  of unauthorized activities, and for safeguarding the interests

 6  of citizens in the surrounding communities.

 7         (13)(11)  "Mental illness" means an impairment of the

 8  emotional processes that exercise conscious control of one's

 9  actions, or of the ability to perceive or understand reality,

10  which impairment substantially interferes with a defendant's

11  ability to meet the ordinary demands of living. For the

12  purposes of this chapter, the term does not apply to

13  defendants who are solely retarded or autistic, and does not

14  include intoxication or conditions manifested only by

15  antisocial behavior or substance abuse impairment.

16         (14)(12)  "Retardation" has the same meaning as in s.

17  393.063. means significantly subaverage general intellectual

18  functioning existing concurrently with deficits in adaptive

19  behavior and manifested during the period from conception to

20  age 18. "Significantly subaverage general intellectual

21  functioning," for the purpose of this definition, means

22  performance which is two or more standard deviations from the

23  mean score on a standardized intelligence test specified in

24  the rules of the department. "Adaptive behavior," for the

25  purpose of this definition, means the effectiveness or degree

26  with which an individual meets the standards of personal

27  independence and social responsibility expected of the

28  individual's age, cultural group, and community.

29         (15)(13)  "Social service professional," for the

30  purposes of part III, means a person whose minimum

31  qualifications include a bachelor's degree and at least 2

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 1  years of social work, clinical practice, special education,

 2  habilitation, or equivalent experience working directly with

 3  persons with retardation, autism, or other developmental

 4  disabilities.

 5         Section 3.  Section 916.107, Florida Statutes, is

 6  amended to read:

 7         916.107  Rights of forensic clients.--

 8         (1)  RIGHT TO INDIVIDUAL DIGNITY.--

 9         (a)  The policy of the state is that the individual

10  dignity of the client shall be respected at all times and upon

11  all occasions, including any occasion when the forensic client

12  is detained, transported, or treated. Clients Defendants who

13  are mentally ill, retarded, or autistic and who are charged

14  with committing felonies shall receive appropriate treatment

15  or training.  In a criminal case involving a client defendant

16  who has been adjudicated incompetent to proceed or not guilty

17  by reason of insanity, a jail may be used as an emergency

18  facility for up to 15 days following from the date the

19  department or agency receives a completed copy of the court

20  commitment order containing all the documentation required by

21  the applicable Rules 3.212 and 3.217, Florida Rules of

22  Criminal Procedure. For a forensic client defendant who is

23  mentally ill, retarded, or autistic, who is held in a jail

24  awaiting admission to a facility of the department or agency,

25  and who has been adjudicated incompetent to proceed or not

26  guilty by reason of insanity, evaluation and treatment or

27  training may shall be provided in the jail by the local

28  community mental health provider public receiving facility for

29  mental health services, or by the developmental disabilities

30  services program for persons with retardation or autism, the

31  client's physician or psychologist, or any other appropriate

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 1  program until the client is transferred to a civil or forensic

 2  facility the custody of the department.

 3         (b)  Forensic clients Mentally ill, retarded, or

 4  autistic defendants who are committed to the department

 5  pursuant to this chapter and who are initially placed in, or

 6  subsequently transferred to, a civil facility as described in

 7  part I of chapter 394 or to a residential facility as

 8  described in chapter 393 shall have the same rights as other

 9  persons committed to these facilities for as long as they

10  remain there.

11         (2)  RIGHT TO TREATMENT.--

12         (a)  The policy of the state is that neither the

13  department nor the agency shall not deny treatment or training

14  to any client and that no services shall be delayed at a

15  facility because the forensic client is indigent pursuant to

16  s. 27.52 and presently unable to pay. However, every

17  reasonable effort to collect appropriate reimbursement for the

18  cost of providing services to clients able to pay for the

19  services, including reimbursement from insurance or other

20  third-party payments, shall be made by facilities providing

21  services pursuant to this chapter and in accordance with the

22  provisions of s. 402.33.

23         (b)  Each client shall be given, at the time of

24  admission and at regular intervals thereafter, a physical

25  examination, which shall include screening for communicable

26  disease by a health practitioner authorized by law to give

27  such screenings and examinations.

28         (c)  Every client committed pursuant to this act shall

29  be afforded the opportunity to participate in activities

30  designed to enhance self-image and the beneficial effects of

31  other treatments or training, as determined by the facility.

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 1         (d)  Not more than 30 days after admission, each client

 2  shall have and receive, in writing, an individualized

 3  treatment or training plan which the client has had an

 4  opportunity to assist in preparing.

 5         (3)  RIGHT TO EXPRESS AND INFORMED CONSENT.--

 6         (a)  A forensic client committed to the department

 7  pursuant to this act shall be asked to give express and

 8  informed written consent for treatment.  If a client in a

 9  forensic facility refuses such treatment as is deemed

10  necessary and essential by the client's multidisciplinary

11  treatment team at the forensic facility for the appropriate

12  care of the client and the safety of the client or others,

13  such treatment may be provided under the following

14  circumstances:

15         1.  In an emergency situation in which there is

16  immediate danger to the safety of the client or others, such

17  treatment may be provided upon the written order of a

18  physician for a period not to exceed 48 hours, excluding

19  weekends and legal holidays.  If, after the 48-hour period,

20  the client has not given express and informed consent to the

21  treatment initially refused, the administrator or designee of

22  the civil or forensic facility shall, within 48 hours,

23  excluding weekends and legal holidays, petition the committing

24  court or the circuit court serving the county in which the

25  facility is located, at the option of the facility

26  administrator or designee, for an order authorizing the

27  continued treatment of the client.  In the interim, the need

28  for treatment shall be reviewed every 48 hours and may be

29  continued without the consent of the client upon the continued

30  written order of a physician who has determined that the

31  

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 1  emergency situation continues to present a danger to the

 2  safety of the client or others.

 3         2.  In a situation other than an emergency situation,

 4  the administrator or designee of the forensic facility shall

 5  petition the court for an order authorizing necessary and

 6  essential the treatment for to the client.  The order shall

 7  allow such treatment for a period not to exceed 90 days

 8  following from the date of the entry of the order. Unless the

 9  court is notified in writing that the client has provided

10  express and informed consent in writing or that the client has

11  been discharged by the committing court, the administrator or

12  designee shall, prior to the expiration of the initial 90-day

13  order, petition the court for an order authorizing the

14  continuation of treatment for another 90-day period.  This

15  procedure shall be repeated until the client provides consent

16  or is discharged by the committing court.

17         3.  At the hearing on the issue of whether the court

18  should enter an order authorizing treatment for which a client

19  was unable or has refused to give express and informed

20  consent, the court shall determine by clear and convincing

21  evidence that the client is mentally ill, retarded, or

22  autistic as defined in this chapter, that the treatment not

23  consented to is essential to the care of the client, and that

24  the treatment not consented to is not experimental and does

25  not present an unreasonable risk of serious, hazardous, or

26  irreversible side effects.  In arriving at the substitute

27  judgment decision, the court must consider at least the

28  following factors:

29         a.  The client's expressed preference regarding

30  treatment;

31         b.  The probability of adverse side effects;

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 1         c.  The prognosis without treatment; and

 2         d.  The prognosis with treatment.

 3  

 4  The hearing shall be as convenient to the client as may be

 5  consistent with orderly procedure and shall be conducted in

 6  physical settings not likely to be injurious to the client's

 7  condition. The court may appoint a general or special

 8  magistrate to preside at the hearing. The client or the

 9  client's guardian, and the representative, shall be provided

10  with a copy of the petition and the date, time, and location

11  of the hearing. The client has the right to have an attorney

12  represent him or her at the hearing, and, if the client is

13  indigent, the court shall appoint the office of the public

14  defender to represent the client at the hearing.  The client

15  may testify or not, as he or she chooses, and has the right to

16  cross-examine witnesses and may present his or her own

17  witnesses.

18         (b)  In addition to the provisions of paragraph (a), in

19  the case of surgical procedures requiring the use of a general

20  anesthetic or electroconvulsive treatment or nonpsychiatric

21  medical procedures, and prior to performing the procedure,

22  written permission shall be obtained from the client, if the

23  client is legally competent, from the parent or guardian of a

24  minor client, or from the guardian of an incompetent client.

25  The administrator or designee of the forensic facility or a

26  designated representative may, with the concurrence of the

27  client's attending physician, authorize emergency surgical or

28  nonpsychiatric medical treatment if such treatment is deemed

29  lifesaving or for a situation threatening serious bodily harm

30  to the client and permission of the client or the client's

31  

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 1  guardian could not cannot be obtained before provision of the

 2  needed treatment.

 3         (4)  QUALITY OF TREATMENT.--Each forensic client

 4  committed pursuant to this chapter shall receive treatment or

 5  training suited to the client's needs, which shall be

 6  administered skillfully, safely, and humanely with full

 7  respect for the client's dignity and personal integrity.  Each

 8  client shall receive such medical, vocational, social,

 9  educational, and rehabilitative services as the client's

10  condition requires to bring about a return to court for

11  disposition of charges or a return to the community.  In order

12  to achieve this goal, the department and the agency shall

13  coordinate their services with each other, the Department of

14  Corrections, is directed to coordinate the services of the

15  Mental Health Program Office and the Developmental

16  Disabilities Program Office with all other programs of the

17  department and other appropriate state agencies.

18         (5)  COMMUNICATION, ABUSE REPORTING, AND VISITS.--

19         (a)  Each forensic client committed pursuant to the

20  provisions of this chapter has the right to communicate freely

21  and privately with persons outside the facility unless it is

22  determined that such communication is likely to be harmful to

23  the client or others. Clients shall have the right to contact

24  and to receive communication from their attorneys at any

25  reasonable time.

26         (a)(b)  Each forensic client committed under the

27  provisions of this chapter shall be allowed to receive, send,

28  and mail sealed, unopened correspondence; and no client's

29  incoming or outgoing correspondence shall be opened, delayed,

30  held, or censored by the facility unless there is reason to

31  believe that it contains items or substances which may be

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 1  harmful to the client or others, in which case the

 2  administrator or designee may direct reasonable examination of

 3  such mail and may regulate the disposition of such items or

 4  substances. "Correspondence" shall not include parcels or

 5  packages.  Forensic facilities are authorized to promulgate

 6  reasonable institutional policies to provide for the

 7  inspection of parcels or packages and for the removal of

 8  contraband items for health or security reasons prior to the

 9  contents being given to a client.

10         (b)(c)  If a client's right to communicate is

11  restricted by the administrator, written notice of such

12  restriction and the duration of the restriction shall be

13  served on the client or his or her legal guardian or

14  representatives, and such restriction shall be recorded on the

15  client's clinical record with the reasons therefor. The

16  restriction of a client's right to communicate shall be

17  reviewed at least every 7 days.

18         (c)(d)  Each forensic facility shall establish

19  reasonable institutional policies governing visitors, visiting

20  hours, and the use of telephones by clients in the least

21  restrictive manner possible.

22         (d)(e)  Each forensic client committed pursuant to this

23  chapter shall have ready access to a telephone in order to

24  report an alleged abuse.  The facility or program staff shall

25  orally and in writing inform each client of the procedure for

26  reporting abuse and shall present the information in a

27  language the client understands.  A written copy of that

28  procedure, including the telephone number of the central abuse

29  hotline and reporting forms, shall be posted in plain view.

30         (e)(f)  The department's or agency's forensic

31  facilities shall develop policies providing a procedure for

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 1  reporting abuse.  Facility staff shall be required, as a

 2  condition of employment, to become familiar with the

 3  procedures for the reporting of abuse.

 4         (6)  CARE AND CUSTODY OF PERSONAL EFFECTS OF

 5  CLIENTS.--A forensic client's right to possession of clothing

 6  and personal effects shall be respected.  The department or

 7  agency by rule, or the administrator of any forensic facility

 8  by written institutional policy, may declare certain items to

 9  be hazardous to the health or welfare of clients or others or

10  to the operation of the facility.  Such items may be

11  restricted from introduction into the facility or may be

12  restricted from being in a client's possession.  The

13  administrator or designee may take temporary custody of such

14  effects when required for medical and safety reasons.  Custody

15  of such personal effects shall be recorded in the client's

16  clinical record.

17         (7)  VOTING IN PUBLIC ELECTIONS.--A forensic client

18  committed pursuant to this chapter who is eligible to vote

19  according to the laws of the state has the right to vote in

20  the primary and general elections. The department and agency

21  shall establish rules to enable clients to obtain voter

22  registration forms, applications for absentee ballots, and

23  absentee ballots.

24         (8)  CLINICAL RECORD; CONFIDENTIALITY.--A clinical

25  record for each forensic client shall be maintained. The

26  record shall include data pertaining to admission and such

27  other information as may be required under rules of the

28  department or the agency. Unless waived by express and

29  informed consent of the client or the client's legal guardian

30  or, if the client is deceased, by the client's personal

31  representative or by that family member who stands next in

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 1  line of intestate succession or except as otherwise provided

 2  in this subsection, the clinical record is confidential and

 3  exempt from the provisions of s. 119.07(1) and s. 24(a), Art.

 4  I of the State Constitution.

 5         (a)  Such clinical record may be released:

 6         1.  To such persons and agencies as are designated by

 7  the client or the client's legal guardian.

 8         2.  To persons authorized by order of court and to the

 9  client's counsel when the records are needed by the counsel

10  for adequate representation.

11         3.  To a qualified researcher, as defined by rule; a

12  staff member of the facility; or an employee of the department

13  or agency when the administrator of the facility, or secretary

14  or director of the department or agency, deems it necessary

15  for treatment of the client, maintenance of adequate records,

16  compilation of treatment data, or evaluation of programs.

17         4.  For statistical and research purposes if the

18  information is abstracted in such a way as to protect the

19  identity of individuals.

20         5.  If a client receiving services pursuant to this

21  chapter has declared an intention to harm other persons. When

22  such a declaration has been made, the administrator shall

23  authorize the release of sufficient information to provide

24  adequate warning to the person threatened with harm by the

25  client, and to the committing court, the state attorney, and

26  the attorney representing the client.

27         6.  To the parent or next of kin of a client mentally

28  ill, retarded, or autistic person who is committed to, or is

29  being served by, a facility or program when such information

30  is limited to that person's service plan and current physical

31  and mental condition. Release of such information shall be in

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 1  accordance with the code of ethics of the profession involved

 2  and must comply with all state and federal laws and

 3  regulations pertaining to the release of personal health

 4  information.

 5         (b)  Notwithstanding other provisions of this

 6  subsection, the department or agency may request or receive

 7  from or provide to any of the following entities client

 8  information to facilitate treatment, habilitation,

 9  rehabilitation, and continuity of care of any forensic client:

10         1.  The Social Security Administration and the United

11  States Department of Veterans Affairs;

12         2.  Law enforcement agencies, state attorneys, defense

13  attorneys, and judges in regard to the client's status;

14         3.  Jail personnel in the jail in to which a client may

15  be housed returned; and

16         4.  Community agencies and others expected to provide

17  followup care to the client upon the client's return to the

18  community.

19         (c)  The department or agency may provide notice to any

20  client's next of kin or first representative regarding any

21  serious medical illness or the death of the client.

22         (d)1.  Any law enforcement agency, facility, or other

23  governmental agency that receives information pursuant to this

24  subsection shall maintain the confidentiality of such

25  information except as otherwise provided herein.

26         2.  Any agency or private practitioner who acts in good

27  faith in releasing information pursuant to this subsection is

28  not subject to civil or criminal liability for such release.

29         (9)  HABEAS CORPUS.--

30         (a)  At any time, and without notice, a forensic client

31  detained by a facility, or a relative, friend, guardian,

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 1  representative, or attorney on behalf of such client, may

 2  petition for a writ of habeas corpus to question the cause and

 3  legality of such detention and request that the committing

 4  court issue a writ for release.  Each client committed

 5  pursuant to this chapter shall receive a written notice of the

 6  right to petition for a writ of habeas corpus.

 7         (b)  A client or his or her legal guardian or

 8  representatives or attorney may file a petition in the circuit

 9  court in the county where the client is committed alleging

10  that the client is being unjustly denied a right or privilege

11  granted herein or that a procedure authorized herein is being

12  abused.  Upon the filing of such a petition, the circuit court

13  shall have the authority to conduct a judicial inquiry and to

14  issue any appropriate order to correct an abuse of the

15  provisions of this chapter.

16         (10)  TRANSPORTATION.--

17         (a)  The sheriff shall consult with the governing board

18  of the county as to the most appropriate and cost-effective

19  means of transportation for forensic clients in the custody of

20  the department or agency who have been committed for treatment

21  or training.  Such consultation shall include, but is not

22  limited to, consideration of the cost to the county of

23  transportation performed by sheriff's department personnel as

24  opposed to transportation performed by other means and, if

25  sheriff's department personnel are to be used for

26  transportation, the effect such use will have, if any, on

27  service delivery levels of the sheriff's road patrol. After

28  such consultation with the governing board of the county, the

29  sheriff shall determine the most appropriate and

30  cost-effective means of transportation for forensic clients

31  committed for treatment or training.

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 1         (b)  The governing board of each county is authorized

 2  to contract with private transport companies for the

 3  transportation of such clients to and from a facility.

 4         (c)  Any company that transports a client pursuant to

 5  this section is considered an independent contractor and is

 6  solely liable for the safe and dignified transportation of the

 7  client. Any transport company that contracts with the

 8  governing board of a county for the transport of clients as

 9  provided for in this section shall be insured and provide no

10  less than $100,000 in liability insurance with respect to the

11  transportation of the clients.

12         (d)  Any company that contracts with a governing board

13  of a county to transport clients shall comply with the

14  applicable rules of the department or agency to ensure the

15  safety and dignity of the clients.

16         (11)  LIABILITY FOR VIOLATIONS.--Any person who

17  violates or abuses any rights or privileges of a forensic

18  client in the custody of the department or agency which are

19  provided under this chapter shall be by this act is liable for

20  damages as determined by law.  Any person who acts in good

21  faith in complying with the provisions of this chapter act is

22  immune from civil or criminal liability for his or her actions

23  in connection with the admission, diagnosis, treatment,

24  training, or discharge of a client to or from a facility.

25  However, this subsection does not relieve any person from

26  liability if he or she is negligent.

27         Section 4.  Subsections (1), (2), (3), (4), and (5) of

28  section 916.1075, Florida Statutes, are amended to read:

29         916.1075  Sexual misconduct prohibited; reporting

30  required; penalties.--

31         (1)  As used in this section, the term:

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 1         (a)  "Employee" includes any paid staff member,

 2  volunteer, or intern of the department or agency; any person

 3  under contract with the department or agency; and any person

 4  providing care or support to a forensic client on behalf of

 5  the department, the agency, or their its providers.

 6         (b)  "Sexual activity" means:

 7         1.  Fondling the genital area, groin, inner thighs,

 8  buttocks, or breasts of a person.

 9         2.  The oral, anal, or vaginal penetration by or union

10  with the sexual organ of another or the anal or vaginal

11  penetration of another by any other object.

12         3.  Intentionally touching in a lewd or lascivious

13  manner the breasts, genitals, the genital area, or buttocks,

14  or the clothing covering them, of a person, or forcing or

15  enticing a person to touch the perpetrator.

16         4.  Intentionally masturbating in the presence of

17  another person.

18         5.  Intentionally exposing the genitals in a lewd or

19  lascivious manner in the presence of another person.

20         6.  Intentionally committing any other sexual act that

21  does not involve actual physical or sexual contact with the

22  victim, including, but not limited to, sadomasochistic abuse,

23  sexual bestiality, or the simulation of any act involving

24  sexual activity in the presence of a victim.

25         (c)  "Sexual misconduct" means any sexual activity

26  between an employee and a forensic client in the custody of

27  the department or agency, regardless of the consent of the

28  client. The term does not include an act done for a bona fide

29  medical purpose or an internal search conducted in the lawful

30  performance of duty by an employee.

31  

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 1         (2)  An employee who engages in sexual misconduct with

 2  a forensic client who resides in a civil or forensic facility

 3  commits a felony of the second degree, punishable as provided

 4  in s. 775.082, s. 775.083, or s. 775.084. An employee may be

 5  found guilty of violating this subsection without having

 6  committed the crime of sexual battery.

 7         (3)  The consent of a forensic the client to sexual

 8  activity is not a defense to prosecution under this section.

 9         (4)  This section does not apply to an employee who:

10         (a)  is legally married to the client; or

11         (b)  Has no reason to believe that the person with whom

12  the employee engaged in sexual misconduct is a client

13  receiving services as described in subsection (2).

14         (5)  An employee who witnesses sexual misconduct, or

15  who otherwise knows or has reasonable cause to suspect that a

16  person has engaged in sexual misconduct, shall immediately

17  report the incident to the department's central abuse hotline

18  and to the appropriate local law enforcement agency. Such

19  employee shall also prepare, date, and sign an independent

20  report that specifically describes the nature of the sexual

21  misconduct, the location and time of the incident, and the

22  persons involved. For an allegation pertaining to a forensic

23  client committed to the agency, the employee shall deliver the

24  report to the supervisor or program director, who shall

25  provide copies to the agency's is responsible for providing

26  copies to the department's inspector general. For an

27  allegation pertaining to a forensic client committed to the

28  department, the employee shall deliver the report to the

29  supervisor or program director, who shall provide copies to

30  the department's inspector general. The inspector general

31  shall immediately conduct an appropriate administrative

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 1  investigation, and, if there is probable cause to believe that

 2  sexual misconduct has occurred, the inspector general shall

 3  notify the state attorney in the circuit in which the incident

 4  occurred.

 5         Section 5.  Section 916.1081, Florida Statutes, is

 6  amended to read:

 7         916.1081  Escape from program; penalty.--

 8         (1)  A forensic client who is A defendant involuntarily

 9  committed to the department or agency, who is in the custody

10  of the department or agency, and under the provisions of this

11  chapter who escapes or attempts to escape from a civil or

12  forensic facility or program commits a felony of the second

13  degree, punishable as provided in s. 775.082, s. 775.083, or

14  s. 775.084.

15         (2)  A person who is involuntarily committed to the

16  department or the agency, who is in the custody of the

17  Department of Corrections, and who escapes or attempts to

18  escape from a facility or program commits a felony of the

19  second degree, punishable as provided in s. 944.40.

20         Section 6.  Subsection (1) and paragraph (b) of

21  subsection (2) of section 916.1085, Florida Statutes, are

22  amended to read:

23         916.1085  Introduction or removal of certain articles

24  unlawful; penalty.--

25         (1)(a)  Except as authorized by law or as specifically

26  authorized by the person in charge of a facility, it is

27  unlawful to introduce into or upon the grounds of any facility

28  under the supervision or control of the department or agency,

29  or to take or attempt to take or send therefrom, any of the

30  following articles, which are hereby declared to be contraband

31  for the purposes of this section:

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 1         1.  Any intoxicating beverage or beverage which causes

 2  or may cause an intoxicating effect;

 3         2.  Any controlled substance as defined in chapter 893;

 4         3.  Any firearm or deadly weapon; or

 5         4.  Any other item as determined by the department or

 6  the agency, and as designated by departmental rule or by the

 7  administrator of any facility, and designated by written

 8  institutional policies, to be hazardous to the welfare of

 9  clients patients or the operation of the facility.

10         (b)  It is unlawful to transmit to, attempt to transmit

11  to, or cause or attempt to cause to be transmitted to or

12  received by any client of any facility under the supervision

13  or control of the department or agency any article or thing

14  declared by this section to be contraband, at any place that

15  which is outside of the grounds of such facility, except as

16  authorized by law or as specifically authorized by the person

17  in charge of such facility.

18         (2)

19         (b)  These provisions shall be enforced by

20  institutional security personnel as defined in s. 916.106(12)

21  s. 916.106(10) or by a law enforcement officer as defined in

22  s. 943.10.

23         Section 7.  Section 916.1091, Florida Statutes, is

24  amended to read:

25         916.1091  Duties, functions, and powers of

26  institutional security personnel.--In case of emergency, and

27  when necessary to provide protection and security to any

28  client, to the personnel, equipment, buildings, or grounds of

29  a department or agency facility, or to citizens in the

30  surrounding community, institutional security personnel may,

31  when authorized by the administrator of the facility or her or

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 1  his designee when the administrator is not present, use a

 2  chemical weapon against a patient housed in a forensic

 3  facility. However, such weapon shall be used only to the

 4  extent necessary to provide such protection and security.

 5  Under no circumstances shall any such officer carry a chemical

 6  weapon on her or his person except during the period of the

 7  emergency for which its use was authorized.  All chemical

 8  weapons shall be placed in secure storage when their use is

 9  not authorized as provided in this section.

10         Section 8.  Section 916.1093, Florida Statutes, is

11  amended to read:

12         916.1093  Operation and administration; rules.--

13         (1)  The department or agency may is authorized to

14  enter into contracts and do such things as may be necessary

15  and incidental to assure compliance with and to carry out the

16  provisions of this chapter in accordance with the stated

17  legislative intent.

18         (2)  The department or agency may has authority to

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

20  the provisions of this chapter.

21         Section 9.  Section 916.111, Florida Statutes, is

22  amended to read:

23         916.111  Training of mental health experts.--The

24  evaluation of defendants for competency to proceed or for

25  sanity at the time of the commission of the offense shall be

26  conducted in such a way as to ensure uniform application of

27  the criteria enumerated in applicable rules of the Rules 3.210

28  and 3.216, Florida Rules of Criminal Procedure.  The

29  department shall develop, and may contract with accredited

30  institutions:

31         (1)  To provide:

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 1         (a)  A plan for training community mental health

 2  professionals to perform forensic evaluations and to

 3  standardize the criteria and procedures to be used in these

 4  evaluations;

 5         (b)  Clinical protocols and procedures consistent with

 6  the applicable rules of the based upon the criteria of Rules

 7  3.210 and 3.216, Florida Rules of Criminal Procedure; and

 8         (c)  Training for community mental health professionals

 9  in the application of these protocols and procedures in

10  performing forensic evaluations and providing reports to the

11  courts; and

12         (2)  To compile and maintain the necessary information

13  for evaluating the success of this program, including the

14  number of persons trained, the cost of operating the program,

15  and the effect on the quality of forensic evaluations as

16  measured by appropriateness of admissions to state forensic

17  facilities and to community-based care programs.

18         Section 10.  Section 916.115, Florida Statutes, is

19  amended to read:

20         916.115  Appointment of experts.--

21         (1)(a)  Annually, the department shall provide the

22  courts with a list of mental health professionals who have

23  completed approved training as experts.

24         (b)  The court shall may appoint no more than three

25  experts to determine issues of the mental condition of a

26  defendant in a criminal case, including the issues of

27  competency to proceed, insanity, and involuntary

28  hospitalization or placement, and treatment. The panel of

29  experts An expert may evaluate the defendant in jail or in

30  another appropriate local facility or in a facility of the

31  Department of Corrections.

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 1         (a)(c)  To the extent possible, the an appointed

 2  experts expert shall have completed forensic evaluator

 3  training approved by the department and shall be either a

 4  psychiatrist, licensed psychologist, or physician.

 5         (b)  The department shall maintain and provide the

 6  courts with a list of available mental health professionals

 7  who have completed the approved training as experts.

 8         (2)  Expert witnesses appointed by the court to

 9  evaluate the mental condition of a defendant in a criminal

10  case shall be allowed reasonable fees for services rendered as

11  evaluators of competence or sanity and as witnesses.

12         (a)1.  The court shall pay for any expert that it

13  appoints by court order, upon motion of counsel for the

14  defendant or the state or upon its own motion. If the defense

15  or the state retains an expert and waives the confidentiality

16  of the expert's report, the court may pay for no more than two

17  additional experts appointed by court order. If an expert

18  appointed by the court upon motion of counsel for the

19  defendant specifically to evaluate the competence of the

20  defendant to proceed also addresses in his or her evaluation

21  issues related to sanity as an affirmative defense, the court

22  shall pay only for that portion of the expert's fees relating

23  to the evaluation on competency to proceed, and the balance of

24  the fees shall be chargeable to the defense.

25         (a)2.  Pursuant to s. 29.006, the office of the public

26  defender shall pay for any expert retained by the office.

27         (b)3.  Pursuant to s. 29.005, the office of the state

28  attorney shall pay for any expert retained by the office and.

29  Notwithstanding subparagraph 1., the office of the state

30  attorney shall pay for any expert whom the office retains and

31  

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 1  whom the office moves the court to appoint in order to ensure

 2  that the expert has access to the defendant.

 3         (c)4.  An expert retained by the defendant who is

 4  represented by private counsel appointed under s. 27.5303

 5  shall be paid by the Justice Administrative Commission.

 6         (d)5.  An expert retained by a defendant who is

 7  indigent for costs as determined by the court and who is

 8  represented by private counsel, other than private counsel

 9  appointed under s. 27.5303, on a fee or pro bono basis, or who

10  is representing himself or herself, shall be paid by the

11  Justice Administrative Commission from funds specifically

12  appropriated for these expenses.

13         (e)(b)  State employees shall be paid expenses pursuant

14  to s. 112.061.

15         (f)(c)  The fees shall be taxed as costs in the case.

16         (g)(d)  In order for an expert to be paid for the

17  services rendered, the expert's report and testimony must

18  explicitly address each of the factors and follow the

19  procedures set out in this chapter and in the Florida Rules of

20  Criminal Procedure.

21         Section 11.  Subsections (1) and (2) of section 916.12,

22  Florida Statutes, are amended to read:

23         916.12  Mental competence to proceed.--

24         (1)  A defendant is incompetent to proceed within the

25  meaning of this chapter if the defendant does not have

26  sufficient present ability to consult with her or his lawyer

27  with a reasonable degree of rational understanding or if the

28  defendant has no rational, as well as factual, understanding

29  of the proceedings against her or him.

30         (2)  Mental health experts appointed pursuant to s.

31  916.115 An expert shall first determine whether the defendant

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 1  person is mentally ill and, if so, consider the factors

 2  related to the issue of whether the defendant meets the

 3  criteria for competence to proceed as described in subsection

 4  (1); that is, whether the defendant has sufficient present

 5  ability to consult with counsel with a reasonable degree of

 6  rational understanding and whether the defendant has a

 7  rational, as well as factual, understanding of the pending

 8  proceedings. A defendant must be evaluated by no fewer than

 9  two experts before the court commits the defendant or takes

10  other action authorized by this chapter or the Florida Rules

11  of Criminal Procedure, except if one expert finds that the

12  defendant is incompetent to proceed and the parties stipulate

13  to that finding, the court may commit the defendant or take

14  other action authorized by this chapter or the rules without

15  further evaluation or hearing, or the court may appoint no

16  more than two additional experts to evaluate the defendant.

17  Notwithstanding any stipulation by the state and the

18  defendant, the court may require a hearing with testimony from

19  the expert or experts before ordering the commitment of a

20  defendant.

21         Section 12.  Section 916.13, Florida Statutes, is

22  amended to read:

23         916.13  Involuntary commitment of defendant adjudicated

24  incompetent.--

25         (1)  Every defendant who is charged with a felony and

26  who is adjudicated incompetent to proceed, pursuant to the

27  applicable Florida Rules of Criminal Procedure, may be

28  involuntarily committed for treatment upon a finding by the

29  court of clear and convincing evidence that:

30         (a)  The defendant is mentally ill and because of the

31  mental illness:

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 1         1.  The defendant is manifestly incapable of surviving

 2  alone or with the help of willing and responsible family or

 3  friends, including available alternative services, and,

 4  without treatment, the defendant is likely to suffer from

 5  neglect or refuse to care for herself or himself and such

 6  neglect or refusal poses a real and present threat of

 7  substantial harm to the defendant's well-being; or and

 8         2.  There is a substantial likelihood that in the near

 9  future the defendant will inflict serious bodily harm on

10  herself or himself or another person, as evidenced by recent

11  behavior causing, attempting, or threatening such harm;

12         (b)  All available, less restrictive treatment

13  alternatives, including treatment in community residential

14  facilities or community inpatient or outpatient settings,

15  which would offer an opportunity for improvement of the

16  defendant's condition have been judged to be inappropriate;

17  and

18         (c)  There is a substantial probability that the mental

19  illness causing the defendant's incompetence will respond to

20  treatment and the defendant will regain competency to proceed

21  in the reasonably foreseeable future.

22         (2)  A defendant who has been charged with a felony and

23  who has been adjudicated incompetent to proceed due to mental

24  illness, and who meets the criteria for involuntary commitment

25  to the department under the provisions of this chapter, may be

26  committed to the department, and the department shall retain

27  and treat the defendant.  No later than 6 months after the

28  date of admission and or at the end of any period of extended

29  commitment, or at any time the administrator or designee shall

30  have determined that the defendant has regained competency to

31  proceed or no longer meets the criteria for continued

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 1  commitment, the administrator or designee shall file a report

 2  with the court pursuant to the applicable Florida Rules of

 3  Criminal Procedure.

 4         Section 13.  Section 916.145, Florida Statutes, is

 5  amended to read:

 6         916.145  Adjudication of incompetency due to mental

 7  illness; Dismissal of charges.--The charges against any

 8  defendant adjudicated incompetent to proceed due to the

 9  defendant's mental illness shall be dismissed without

10  prejudice to the state if the defendant remains incompetent to

11  proceed 5 years after such determination, unless the court in

12  its order specifies its reasons for believing that the

13  defendant will become competent to proceed within the

14  foreseeable future and specifies the time within which the

15  defendant is expected to become competent to proceed. The

16  charges against the defendant are dismissed without prejudice

17  to the state to refile the charges should the defendant be

18  declared competent to proceed in the future.

19         Section 14.  Section 916.15, Florida Statutes, is

20  amended to read:

21         916.15  Involuntary commitment of defendant adjudicated

22  not guilty by reason of insanity.--

23         (1)  The determination of whether a defendant is not

24  guilty by reason of insanity shall be determined in accordance

25  with the Florida Rules of Criminal Procedures.

26         (2)(1)  A defendant who is acquitted of criminal

27  charges because of a finding of not guilty by reason of

28  insanity may be involuntarily committed pursuant to such

29  finding if the defendant is mentally ill and, because of the

30  illness, is manifestly dangerous to himself or herself or

31  others.

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 1         (3)(2)  Every defendant acquitted of criminal charges

 2  by reason of insanity and found to meet the criteria for

 3  involuntary commitment may be committed and treated in

 4  accordance with the provisions of this section and the

 5  applicable Florida Rules of Criminal Procedure.  The

 6  department shall admit a defendant so adjudicated to an

 7  appropriate facility or program for treatment and shall retain

 8  and treat such defendant.  No later than 6 months after the

 9  date of admission, prior to the end of any period of extended

10  commitment, or at any time the administrator or designee shall

11  have determined that the defendant no longer meets the

12  criteria for continued commitment placement, the administrator

13  or designee shall file a report with the court pursuant to the

14  applicable Florida Rules of Criminal Procedure.

15         (4)(3)  In all proceedings under this section

16  subsection, both the defendant and the state shall have the

17  right to a hearing before the committing court. Evidence at

18  such hearing may be presented by the hospital administrator or

19  the administrator's designee as well as by the state and the

20  defendant. The defendant shall have the right to counsel at

21  any such hearing. In the event that a defendant is determined

22  to be indigent pursuant to s. 27.52, the public defender shall

23  represent the defendant. The parties shall have access to the

24  defendant's records at the treating facilities and may

25  interview or depose personnel who have had contact with the

26  defendant at the treating facilities.

27         Section 15.  Section 916.16, Florida Statutes, is

28  amended to read:

29         916.16  Jurisdiction of committing court.--

30         (1)  The committing court shall retain jurisdiction

31  over in the case of any defendant involuntarily committed due

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 1  to a determination of incompetency hospitalized as incompetent

 2  to proceed or because of mental illness or a finding of not

 3  guilty by reason of insanity pursuant to this chapter. The No

 4  such defendant may not be released except by order of the

 5  committing court. An The administrative hearing examiner does

 6  not shall have no jurisdiction to determine issues of

 7  continuing commitment hospitalization or release of any

 8  defendant involuntarily committed admitted pursuant to this

 9  chapter.

10         (2)  The committing court shall retain jurisdiction in

11  the case of any defendant placed on conditional release

12  pursuant to s. 916.17. No Such defendant may not be released

13  from the conditions of release except by order of the

14  committing court.

15         Section 16.  Section 916.17, Florida Statutes, is

16  amended to read:

17         916.17  Conditional release.--

18         (1)  Except for an inmate currently serving a prison

19  sentence, The committing court may order a conditional release

20  of any defendant who has been found to be incompetent to

21  proceed or not guilty by reason of insanity, based on an

22  approved plan for providing appropriate outpatient care and

23  treatment. the committing court may order a conditional

24  release of any defendant in lieu of an involuntary commitment

25  to a facility pursuant to s. 916.13 or s. 916.15 based upon an

26  approved plan for providing appropriate outpatient care and

27  treatment. Upon a recommendation that outpatient treatment of

28  the defendant is appropriate, a written plan for outpatient

29  treatment, including recommendations from qualified

30  professionals, must be filed with the court, with copies to

31  all parties.  Such a plan may also be submitted by the

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 1  defendant and filed with the court with copies to all parties.

 2  The plan shall include:

 3         (a)  Special provisions for residential care or

 4  adequate supervision of the defendant.

 5         (b)  Provisions for outpatient mental health services.

 6         (c)  If appropriate, recommendations for auxiliary

 7  services such as vocational training, educational services, or

 8  special medical care.

 9  

10  In its order of conditional release, the court shall specify

11  the conditions of release based upon the release plan and

12  shall direct the appropriate agencies or persons to submit

13  periodic reports to the court regarding the defendant's

14  compliance with the conditions of the release and progress in

15  treatment, with copies to all parties.

16         (2)  Upon the filing of an affidavit or statement under

17  oath by any person that the defendant has failed to comply

18  with the conditions of release, that the defendant's condition

19  has deteriorated to the point that inpatient care is required,

20  or that the release conditions should be modified, the court

21  shall hold a hearing within 7 days after receipt of the

22  affidavit or statement under oath. After the hearing, the

23  court may modify the release conditions. The court may also

24  order that the defendant be returned to the department if it

25  is found, after the appointment and report of experts, that

26  the person meets the criteria for involuntary commitment under

27  s. 916.13 or s. 916.15 treatment.

28         (3)  If at any time it is determined after a hearing

29  that the defendant who has been conditionally released under

30  subsection (1) no longer requires court-supervised followup

31  

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 1  care, the court shall terminate its jurisdiction in the cause

 2  and discharge the defendant.

 3         Section 17.  Section 916.301, Florida Statutes, is

 4  amended to read:

 5         916.301  Appointment of experts.--

 6         (1)  All evaluations ordered by the court under this

 7  part must be conducted by qualified experts who have expertise

 8  in evaluating persons with retardation or autism. The agency

 9  department shall maintain and provide the courts annually with

10  a list of available retardation and autism professionals who

11  are appropriately licensed and qualified to perform

12  evaluations of defendants alleged to be incompetent to proceed

13  due to retardation or autism. The courts may use professionals

14  from this list when appointing experts and ordering

15  evaluations under this part for defendants suspected of being

16  retarded or autistic.

17         (2)  If a defendant's suspected mental condition is

18  retardation or autism, the court shall appoint a panel of

19  experts consisting of: two experts, one of whom must be the

20  developmental services program of the department, each of whom

21  will evaluate whether the defendant meets the definition of

22  retardation or autism and, if so, whether the defendant is

23  competent to proceed.

24         (a)(3)  At least one, or at the request of any party,

25  two experts the court may appoint one additional expert to

26  evaluate the defendant. The expert appointed by the court will

27  evaluate whether the defendant meets the definition of

28  retardation or autism and, if so, whether the defendant is

29  competent to proceed.

30         (b)(4)  The developmental services program shall select

31  A psychologist selected by the agency who is licensed or

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 1  authorized by law to practice in this state, with experience

 2  in evaluating persons suspected of having retardation or

 3  autism, and a social service professional, with experience in

 4  working with persons with retardation or autism to evaluate

 5  the defendant.

 6         1.(a)  The psychologist shall evaluate whether the

 7  defendant meets the definition of retardation or autism and,

 8  if so, whether the defendant is incompetent to proceed due to

 9  retardation or autism.

10         2.(b)  The social service professional shall provide a

11  social and developmental history of the defendant.

12         (5)  All evaluations ordered by the court must be from

13  qualified experts with experience in evaluating persons with

14  retardation or autism.

15         (3)(6)  The panel of experts may examine the defendant

16  in jail, in another appropriate local facility, in a facility

17  of the Department of Corrections, or on an outpatient basis.

18         (4)(7)  Experts Expert witnesses appointed by the court

19  to evaluate the mental condition of a defendant in a criminal

20  case shall be allowed reasonable fees for services rendered as

21  evaluators and as witnesses, which shall be paid by the court.

22  State employees shall be paid expenses pursuant to s. 112.061.

23  The fees shall be taxed as costs in the case. In order for the

24  experts to be paid for the services rendered, the reports and

25  testimony must explicitly address each of the factors and

26  follow the procedures set out in this chapter and in the

27  Florida Rules of Criminal Procedure.

28         Section 18.  Subsections (1) and (2) of section

29  916.3012, Florida Statutes, are amended to read:

30         916.3012  Mental competence to proceed.--

31  

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 1         (1)  A defendant whose suspected mental condition is

 2  retardation or autism is incompetent to proceed within the

 3  meaning of this chapter if the defendant does not have

 4  sufficient present ability to consult with the defendant's

 5  lawyer with a reasonable degree of rational understanding or

 6  if the defendant has no rational, as well as factual,

 7  understanding of the proceedings against the defendant.

 8         (2)  The Experts in retardation or autism, appointed

 9  pursuant to s. 916.301, shall first consider whether the

10  defendant meets the definition of retardation or autism and,

11  if so, consider the factors related to the issue of whether

12  the defendant meets the criteria for competence to proceed as

13  described in subsection(1); that is, whether the defendant has

14  sufficient present ability to consult with counsel with a

15  reasonable degree of rational understanding and whether the

16  defendant has a rational, as well as factual, understanding of

17  the pending proceedings.

18         Section 19.  Section 916.302, Florida Statutes, is

19  amended to read:

20         916.302  Involuntary commitment of defendant determined

21  to be incompetent to proceed due to retardation or autism.--

22         (1)  CRITERIA.--Every defendant who is charged with a

23  felony and who is adjudicated found to be incompetent to

24  proceed due to retardation or autism, pursuant to this chapter

25  and the applicable Florida Rules of Criminal Procedure, may be

26  involuntarily committed for training upon a finding by the

27  court of clear and convincing evidence that:

28         (a)  The defendant is retarded or autistic;

29         (b)  There is a substantial likelihood that in the near

30  future the defendant will inflict serious bodily harm on

31  

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 1  himself or herself or another person, as evidenced by recent

 2  behavior causing, attempting, or threatening such harm;

 3         (c)  All available, less restrictive alternatives,

 4  including services provided in community residential

 5  facilities or other community settings, which would offer an

 6  opportunity for improvement of the condition have been judged

 7  to be inappropriate; and

 8         (d)  There is a substantial probability that the

 9  retardation or autism causing the defendant's incompetence

10  will respond to training and the defendant will regain

11  competency to proceed in the reasonably foreseeable future.

12         (2)  ADMISSION TO A FACILITY.--

13         (a)  A defendant who has been charged with a felony and

14  who is found to be incompetent to proceed due to retardation

15  or autism, and who meets the criteria for involuntary

16  commitment to the agency department under the provisions of

17  this chapter, shall be committed to the agency department, and

18  the agency department shall retain and provide appropriate

19  training for serve the defendant. No later than 6 months after

20  the date of admission or at the end of any period of extended

21  commitment or at any time the administrator or designee shall

22  have determined that the defendant has regained competency to

23  proceed or no longer meets the criteria for continued

24  commitment, the administrator or designee shall file a report

25  with the court pursuant to this chapter and the applicable

26  Florida Rules of Criminal Procedure.

27         (b)  A defendant determined to be incompetent to

28  proceed due to retardation or autism may be ordered by a

29  circuit court into a forensic secure facility designated by

30  the agency department for retarded or autistic defendants.

31  

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 1         (c)  The agency department may transfer a defendant

 2  from a designated forensic secure facility to another

 3  designated forensic secure facility and must notify the court

 4  of the transfer within 30 days after the transfer is

 5  completed.

 6         (d)  The agency department may not transfer a defendant

 7  from a designated forensic secure facility to a civil

 8  nonsecure facility without first notifying the court, and all

 9  parties, 30 days before the proposed transfer. If the court

10  objects to the proposed transfer to a nonsecure facility, it

11  must send its written objection to the agency department. The

12  agency department may transfer the defendant unless it

13  receives the written objection from the court within 30 days

14  after the court's receipt of the notice of the proposed

15  transfer.

16         (3)  PLACEMENT OF DUALLY DIAGNOSED DEFENDANTS.--

17         (a)  If a defendant is both retarded or autistic and

18  mentally ill, evaluations must address which condition is

19  primarily affecting the defendant's competency to proceed.

20  Referral of the defendant should be made to a civil or

21  forensic the facility or program most appropriate to address

22  the symptoms which are the cause of the defendant's

23  incompetence.

24         (b)  Transfer from one civil or forensic facility or

25  program to another civil or forensic facility or program may

26  occur when, in the department's and agency's judgment, it is

27  in the defendant's best treatment or training interests. The

28  department and agency shall submit an evaluation and

29  justification for the transfer to the court. The court may

30  consult with an outside expert if necessary. Transfer will

31  require an amended order from the committing court.

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 1         Section 20.  Section 916.3025, Florida Statutes, is

 2  amended to read:

 3         916.3025  Jurisdiction of committing court.--

 4         (1)  The committing court shall retain jurisdiction in

 5  the case of any defendant found to be incompetent to proceed

 6  due to retardation or autism and ordered into a forensic

 7  secure facility designated by the agency department for

 8  retarded or autistic defendants. A No defendant may not be

 9  released except by the order of the committing court. An

10  administrative hearing examiner does not have jurisdiction to

11  determine issues of continuing commitment or release of any

12  defendant involuntarily committed pursuant to this chapter.

13         (2)  The committing court shall retain jurisdiction in

14  the case of any defendant placed on conditional release

15  pursuant to s. 916.304. No Such defendant may not be released

16  from the conditions of release except by order of the

17  committing court.

18         (3)  The committing court shall consider a the petition

19  to involuntarily admit a defendant whose charges have been

20  dismissed to residential services provided by the agency

21  department's developmental services program a person whose

22  charges have been dismissed, and, when applicable, to continue

23  secure placement of such person as provided in s. 916.303. The

24  committing court shall retain jurisdiction over such person so

25  long as he or she remains in secure placement or is on

26  conditional release as provided in s. 916.304. However, upon

27  request the court may transfer continuing jurisdiction to the

28  court in the circuit where the defendant resides. The

29  defendant may not be released from an order for secure

30  placement except by order of the court.

31  

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 1         Section 21.  Section 916.303, Florida Statutes, is

 2  amended to read:

 3         916.303  Determination of incompetency due to

 4  retardation or autism; dismissal of charges.--

 5         (1)  Except for an inmate currently serving a prison

 6  sentence, the charges against any defendant found to be

 7  incompetent to proceed due to retardation or autism shall be

 8  dismissed without prejudice to the state if the defendant

 9  remains incompetent to proceed within a reasonable time after

10  such determination, not to exceed 2 years, unless the court in

11  its order specifies its reasons for believing that the

12  defendant will become competent to proceed within the

13  foreseeable future and specifies the time within which the

14  defendant is expected to become competent to proceed. The

15  charges may be refiled by the state if against the defendant

16  are dismissed without prejudice to the state to refile the

17  charges should the defendant is be declared competent to

18  proceed in the future.

19         (2)(a)  If the charges are dismissed and if the

20  defendant is considered to lack sufficient capacity to give

21  express and informed consent to a voluntary application for

22  services and lacks the basic survival and self-care skills to

23  provide for his or her well-being or is likely to physically

24  injure himself or herself or others if allowed to remain at

25  liberty, the agency department, the state attorney, or the

26  defendant's attorney shall may apply to the committing court

27  to involuntarily admit the defendant to residential services

28  pursuant to s. 393.11.

29         (3)(b)  If the defendant is considered to need

30  involuntary residential services for reasons described in

31  subsection (2) under s. 393.11 and, further, there is a

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 1  substantial likelihood that the defendant will injure another

 2  person or continues to present a danger of escape, and all

 3  available less restrictive alternatives, including services in

 4  community residential facilities or other community settings,

 5  which would offer an opportunity for improvement of the

 6  condition have been judged to be inappropriate, then the

 7  agency person or entity filing the petition under s. 393.11,

 8  the state attorney, or the defendant's counsel may request,

 9  the petitioning commission, or the department may also

10  petition the committing court to continue the defendant's

11  placement in a secure facility or program pursuant to this

12  part section. Any placement so continued under this subsection

13  must be defendant involuntarily admitted under this paragraph

14  shall have his or her status reviewed by the court at least

15  annually at a hearing.  The annual review and hearing shall

16  determine whether the defendant continues to meet the criteria

17  described in this subsection for involuntary residential

18  services and, if so, whether the defendant still requires

19  involuntary placement in a secure facility or program because

20  the court finds that the defendant is likely to physically

21  injure others as specified in s. 393.11 and whether the

22  defendant is receiving adequate care, treatment, habilitation,

23  and rehabilitation, including psychotropic medication and

24  behavioral programming.  Notice of the annual review and

25  review hearing shall be given to the state attorney and to the

26  defendant's attorney.  In no instance may a defendant's

27  placement in a secure facility or program exceed the maximum

28  sentence for the crime for which the defendant was charged.

29         Section 22.  Section 916.304, Florida Statutes, is

30  amended to read:

31         916.304  Conditional release.--

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 1         (1)  Except for an inmate currently serving a prison

 2  sentence, the committing court may order a conditional release

 3  of any defendant who has been found to be incompetent to

 4  proceed due to retardation or autism, based on an approved

 5  plan for providing continuing community-based training. The

 6  committing criminal court may order a conditional release of

 7  any defendant to a civil facility in lieu of an involuntary

 8  commitment to a forensic facility pursuant to s. 916.302. Upon

 9  a recommendation that community-based training for the

10  defendant is appropriate, a written plan for community-based

11  training, including recommendations from qualified

12  professionals, may be filed with the court, with copies to all

13  parties.  Such a plan may also be submitted by the defendant

14  and filed with the court, with copies to all parties. The plan

15  must shall include:

16         (a)  Special provisions for residential care and

17  adequate supervision of the defendant, including recommended

18  location of placement.

19         (b)  Recommendations for auxiliary services such as

20  vocational training, psychological training, educational

21  services, leisure services, and special medical care.

22  

23  In its order of conditional release, the court shall specify

24  the conditions of release based upon the release plan and

25  shall direct the appropriate agencies or persons to submit

26  periodic reports to the courts regarding the defendant's

27  compliance with the conditions of the release and progress in

28  training, with copies to all parties.

29         (2)  Upon the filing of an affidavit or statement under

30  oath by any person that the defendant has failed to comply

31  with the conditions of release, that the defendant's condition

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 1  has deteriorated, or that the release conditions should be

 2  modified, the court shall hold a hearing within 7 days after

 3  receipt of the affidavit or statement under oath. With notice

 4  to the court, the agency may detain a defendant in a forensic

 5  facility until the hearing occurs. After the hearing, the

 6  court may modify the release conditions. The court may also

 7  order that the defendant be placed into more appropriate

 8  programs for further training or may order the defendant to be

 9  committed returned to a forensic facility involuntary

10  residential services of the department if it is found, after

11  the appointment and report of experts, that the defendant

12  meets the criteria for placement in a forensic facility

13  involuntary residential services.

14         (3)  If at any time it is determined after a hearing

15  that the defendant conditionally released under subsection (1)

16  no longer requires court-supervised followup care, the court

17  shall terminate its jurisdiction in the cause and discharge

18  the defendant.

19         Section 23.  Subsection (1) of section 921.137, Florida

20  Statutes, is amended to read:

21         921.137  Imposition of the death sentence upon a

22  mentally retarded defendant prohibited.--

23         (1)  As used in this section, the term "mental

24  retardation" means significantly subaverage general

25  intellectual functioning existing concurrently with deficits

26  in adaptive behavior and manifested during the period from

27  conception to age 18. The term "significantly subaverage

28  general intellectual functioning," for the purpose of this

29  section, means performance that is two or more standard

30  deviations from the mean score on a standardized intelligence

31  test specified in the rules of the Agency for Persons with

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 1  Disabilities Department of Children and Family Services. The

 2  term "adaptive behavior," for the purpose of this definition,

 3  means the effectiveness or degree with which an individual

 4  meets the standards of personal independence and social

 5  responsibility expected of his or her age, cultural group, and

 6  community. The Agency for Persons with Disabilities Department

 7  of Children and Family Services shall adopt rules to specify

 8  the standardized intelligence tests as provided in this

 9  subsection.

10         Section 24.  Paragraphs (d), (e), (g), and (h) of

11  subsection (1), subsections (2), (3), and (4), paragraph (b)

12  of subsection (5), and paragraph (a) of subsection (6) of

13  section 985.223, Florida Statutes, are amended to read:

14         985.223  Incompetency in juvenile delinquency cases.--

15         (1)  If, at any time prior to or during a delinquency

16  case, the court has reason to believe that the child named in

17  the petition may be incompetent to proceed with the hearing,

18  the court on its own motion may, or on the motion of the

19  child's attorney or state attorney must, stay all proceedings

20  and order an evaluation of the child's mental condition.

21         (d)  For incompetency evaluations related to mental

22  illness, the Department of Children and Family Services shall

23  maintain and annually provide the courts with a list of

24  available mental health professionals who have completed a

25  training program approved by the Department of Children and

26  Family Services to perform the evaluations.

27         (e)  For incompetency evaluations related to mental

28  retardation or autism, the court shall order the Agency for

29  Persons with Disabilities Developmental Disabilities Program

30  Office within the Department of Children and Family Services

31  to examine the child to determine if the child meets the

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 1  definition of "retardation" or "autism" in s. 393.063 and, if

 2  so, whether the child is competent to proceed with delinquency

 3  proceedings.

 4         (g)  Immediately upon the filing of the court order

 5  finding a child incompetent to proceed, the clerk of the court

 6  shall notify the Department of Children and Family Services

 7  and the Agency for Persons with Disabilities and fax or hand

 8  deliver to the department and to the agency of Children and

 9  Family Services a referral packet that which includes, at a

10  minimum, the court order, the charging documents, the

11  petition, and the court-appointed evaluator's reports.

12         (h)  After placement of the child in the appropriate

13  setting, the Department of Children and Family Services in

14  consultation with the Agency for Persons with Disabilities, as

15  appropriate, must, within 30 days after placement of the

16  Department of Children and Family Services places the child,

17  prepare and submit to the court a treatment or training plan

18  for the child's restoration of competency. A copy of the

19  treatment plan must be served upon the child's attorney, the

20  state attorney, and the attorneys representing the Department

21  of Juvenile Justice.

22         (2)  A child who is mentally ill or retarded, who is

23  adjudicated incompetent to proceed, and who has committed a

24  delinquent act or violation of law, either of which would be a

25  felony if committed by an adult, must be committed to the

26  Department of Children and Family Services for treatment or

27  training. A child who has been adjudicated incompetent to

28  proceed because of age or immaturity, or for any reason other

29  than for mental illness or retardation or autism, must not be

30  committed to the department or to the Department of Children

31  and Family Services for restoration-of-competency treatment or

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 1  training services. For purposes of this section, a child who

 2  has committed a delinquent act or violation of law, either of

 3  which would be a misdemeanor if committed by an adult, may not

 4  be committed to the department or to the Department of

 5  Children and Family Services for restoration-of-competency

 6  treatment or training services.

 7         (3)  If the court finds that a child is mentally ill or

 8  retarded or autistic and adjudicates the child incompetent to

 9  proceed, the court must also determine whether the child meets

10  the criteria for secure placement. A child may be placed in a

11  secure facility or program if the court makes a finding by

12  clear and convincing evidence that:

13         (a)  The child is mentally ill and because of the

14  mental illness; or the child is mentally retarded or autistic

15  and because of the mental retardation or autism:

16         1.  The child is manifestly incapable of surviving with

17  the help of willing and responsible family or friends,

18  including available alternative services, and without

19  treatment or training the child is likely to either suffer

20  from neglect or refuse to care for self, and such neglect or

21  refusal poses a real and present threat of substantial harm to

22  the child's well-being; or

23         2.  There is a substantial likelihood that in the near

24  future the child will inflict serious bodily harm on self or

25  others, as evidenced by recent behavior causing, attempting,

26  or threatening such harm; and

27         (b)  All available less restrictive alternatives,

28  including treatment or training in community residential

29  facilities or community settings which would offer an

30  opportunity for improvement of the child's condition, are

31  inappropriate.

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 1         (4)  A child who is determined to be mentally ill, or

 2  retarded, or autistic, who has been adjudicated incompetent to

 3  proceed, and who meets the criteria set forth in subsection

 4  (3), must be committed to the Department of Children and

 5  Family Services, and receive treatment or training the

 6  Department of Children and Family Services must treat or train

 7  the child in a secure facility or program that which is the

 8  least restrictive alternative consistent with public safety.

 9  Any placement of a child to a secure residential program must

10  be separate from adult forensic programs.  If the child

11  attains competency, then custody, case management, and

12  supervision of the child will be transferred to the department

13  in order to continue delinquency proceedings; however, the

14  court retains authority to order the Department of Children

15  and Family Services to provide continued treatment or training

16  to maintain competency.

17         (a)  A child adjudicated incompetent due to mental

18  retardation or autism may be ordered into a secure program or

19  facility designated by the Department of Children and Family

20  Services for retarded or autistic children.

21         (b)  A child adjudicated incompetent due to mental

22  illness may be ordered into a secure program or facility

23  designated by the Department of Children and Family Services

24  for mentally ill children.

25         (c)  Whenever a child is placed in a secure residential

26  facility, the department will provide transportation to the

27  secure residential facility for admission and from the secure

28  residential facility upon discharge.

29         (d)  The purpose of the treatment or training is the

30  restoration of the child's competency to proceed.

31  

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 1         (e)  The service provider must file a written report

 2  with the court pursuant to the applicable Florida Rules of

 3  Juvenile Procedure not later than 6 months after the date of

 4  commitment, or at the end of any period of extended treatment

 5  or training, and at any time the Department of Children and

 6  Family Services, through its service provider determines the

 7  child has attained competency or no longer meets the criteria

 8  for secure placement, or at such shorter intervals as ordered

 9  by the court. A copy of a written report evaluating the

10  child's competency must be filed by the provider with the

11  court and with the state attorney, the child's attorney, the

12  department, and the Department of Children and Family

13  Services.

14         (5)

15         (b)  Whenever the provider files a report with the

16  court informing the court that the child will never become

17  competent to proceed, the Department of Children and Family

18  Services will develop a discharge plan for the child prior to

19  any hearing determining whether the child will ever become

20  competent to proceed and send the. The Department of Children

21  and Family Services must send the proposed discharge plan to

22  the court, the state attorney, the child's attorney, and the

23  attorneys representing the Department of Juvenile Justice. The

24  provider will continue to provide services to the child until

25  the court issues the order finding the child will never become

26  competent to proceed.

27         (6)(a)  If a child is determined to be mentally ill or

28  retarded or autistic and is found to be incompetent to proceed

29  but does not meet the criteria set forth in subsection (3),

30  the court shall commit the child to the Department of Children

31  and Family Services and shall order the Department of Children

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 1  and Family Services to provide appropriate treatment and

 2  training in the community. The purpose of the treatment or

 3  training is the restoration of the child's competency to

 4  proceed.

 5         Section 25.  Paragraph (b) of subsection (14) of

 6  section 287.057, Florida Statutes, is amended to read:

 7         287.057  Procurement of commodities or contractual

 8  services.--

 9         (14)

10         (b)  Notwithstanding paragraph (a), the Department of

11  Children and Family Services may enter into agreements, not to

12  exceed 20 years, with a private provider to finance, design,

13  and construct a forensic treatment facility, as defined in s.

14  916.106(10) s. 916.106(8), of at least 200 beds and to operate

15  all aspects of daily operations within the forensic treatment

16  facility. The selected contractor is authorized to sponsor the

17  issuance of tax-exempt certificates of participation or other

18  securities to finance the project, and the state is authorized

19  to enter into a lease-purchase agreement for the forensic

20  treatment facility. This paragraph expires July 1, 2006.

21         Section 26.  Paragraph (r) of subsection (3) of section

22  408.036, Florida Statutes, is amended to read:

23         408.036  Projects subject to review; exemptions.--

24         (3)  EXEMPTIONS.--Upon request, the following projects

25  are subject to exemption from the provisions of subsection

26  (1):

27         (r)  For beds in state mental health treatment

28  facilities operated under s. 394.455(30) and state mental

29  health forensic facilities operated under chapter 916 s.

30  916.106(8).

31  

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 1         Section 27.  Paragraph (a) of subsection (4) of section

 2  943.0585, Florida Statutes, is amended to read:

 3         943.0585  Court-ordered expunction of criminal history

 4  records.--The courts of this state have jurisdiction over

 5  their own procedures, including the maintenance, expunction,

 6  and correction of judicial records containing criminal history

 7  information to the extent such procedures are not inconsistent

 8  with the conditions, responsibilities, and duties established

 9  by this section. Any court of competent jurisdiction may order

10  a criminal justice agency to expunge the criminal history

11  record of a minor or an adult who complies with the

12  requirements of this section. The court shall not order a

13  criminal justice agency to expunge a criminal history record

14  until the person seeking to expunge a criminal history record

15  has applied for and received a certificate of eligibility for

16  expunction pursuant to subsection (2). A criminal history

17  record that relates to a violation of s. 393.135, s. 394.4593,

18  s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 817.034, s.

19  825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,

20  s. 847.0145, s. 893.135,  s. 916.1075, or a violation

21  enumerated in s. 907.041 may not be expunged, without regard

22  to whether adjudication was withheld, if the defendant was

23  found guilty of or pled guilty or nolo contendere to the

24  offense, or if the defendant, as a minor, was found to have

25  committed, or pled guilty or nolo contendere to committing,

26  the offense as a delinquent act. The court may only order

27  expunction of a criminal history record pertaining to one

28  arrest or one incident of alleged criminal activity, except as

29  provided in this section. The court may, at its sole

30  discretion, order the expunction of a criminal history record

31  pertaining to more than one arrest if the additional arrests

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 1  directly relate to the original arrest. If the court intends

 2  to order the expunction of records pertaining to such

 3  additional arrests, such intent must be specified in the

 4  order. A criminal justice agency may not expunge any record

 5  pertaining to such additional arrests if the order to expunge

 6  does not articulate the intention of the court to expunge a

 7  record pertaining to more than one arrest. This section does

 8  not prevent the court from ordering the expunction of only a

 9  portion of a criminal history record pertaining to one arrest

10  or one incident of alleged criminal activity. Notwithstanding

11  any law to the contrary, a criminal justice agency may comply

12  with laws, court orders, and official requests of other

13  jurisdictions relating to expunction, correction, or

14  confidential handling of criminal history records or

15  information derived therefrom. This section does not confer

16  any right to the expunction of any criminal history record,

17  and any request for expunction of a criminal history record

18  may be denied at the sole discretion of the court.

19         (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

20  criminal history record of a minor or an adult which is

21  ordered expunged by a court of competent jurisdiction pursuant

22  to this section must be physically destroyed or obliterated by

23  any criminal justice agency having custody of such record;

24  except that any criminal history record in the custody of the

25  department must be retained in all cases. A criminal history

26  record ordered expunged that is retained by the department is

27  confidential and exempt from the provisions of s. 119.07(1)

28  and s. 24(a), Art. I of the State Constitution and not

29  available to any person or entity except upon order of a court

30  of competent jurisdiction. A criminal justice agency may

31  

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 1  retain a notation indicating compliance with an order to

 2  expunge.

 3         (a)  The person who is the subject of a criminal

 4  history record that is expunged under this section or under

 5  other provisions of law, including former s. 893.14, former s.

 6  901.33, and former s. 943.058, may lawfully deny or fail to

 7  acknowledge the arrests covered by the expunged record, except

 8  when the subject of the record:

 9         1.  Is a candidate for employment with a criminal

10  justice agency;

11         2.  Is a defendant in a criminal prosecution;

12         3.  Concurrently or subsequently petitions for relief

13  under this section or s. 943.059;

14         4.  Is a candidate for admission to The Florida Bar;

15         5.  Is seeking to be employed or licensed by or to

16  contract with the Department of Children and Family Services

17  or the Department of Juvenile Justice or to be employed or

18  used by such contractor or licensee in a sensitive position

19  having direct contact with children, the developmentally

20  disabled, the aged, or the elderly as provided in s.

21  110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.

22  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4),

23  chapter 916 s. 916.106(10) and (13), s. 985.407, or chapter

24  400; or

25         6.  Is seeking to be employed or licensed by the

26  Department of Education, any district school board, any

27  university laboratory school, any charter school, any private

28  or parochial school, or any local governmental entity that

29  licenses child care facilities.

30         Section 28.  Paragraph (a) of subsection (4) of section

31  943.059, Florida Statutes, is amended to read:

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 1         943.059  Court-ordered sealing of criminal history

 2  records.--The courts of this state shall continue to have

 3  jurisdiction over their own procedures, including the

 4  maintenance, sealing, and correction of judicial records

 5  containing criminal history information to the extent such

 6  procedures are not inconsistent with the conditions,

 7  responsibilities, and duties established by this section. Any

 8  court of competent jurisdiction may order a criminal justice

 9  agency to seal the criminal history record of a minor or an

10  adult who complies with the requirements of this section. The

11  court shall not order a criminal justice agency to seal a

12  criminal history record until the person seeking to seal a

13  criminal history record has applied for and received a

14  certificate of eligibility for sealing pursuant to subsection

15  (2). A criminal history record that relates to a violation of

16  s. 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03,

17  s. 800.04, s. 817.034, s. 825.1025, s. 827.071, chapter 839,

18  s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.

19  916.1075, or a violation enumerated in s. 907.041 may not be

20  sealed, without regard to whether adjudication was withheld,

21  if the defendant was found guilty of or pled guilty or nolo

22  contendere to the offense, or if the defendant, as a minor,

23  was found to have committed or pled guilty or nolo contendere

24  to committing the offense as a delinquent act. The court may

25  only order sealing of a criminal history record pertaining to

26  one arrest or one incident of alleged criminal activity,

27  except as provided in this section. The court may, at its sole

28  discretion, order the sealing of a criminal history record

29  pertaining to more than one arrest if the additional arrests

30  directly relate to the original arrest. If the court intends

31  to order the sealing of records pertaining to such additional

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 1  arrests, such intent must be specified in the order. A

 2  criminal justice agency may not seal any record pertaining to

 3  such additional arrests if the order to seal does not

 4  articulate the intention of the court to seal records

 5  pertaining to more than one arrest. This section does not

 6  prevent the court from ordering the sealing of only a portion

 7  of a criminal history record pertaining to one arrest or one

 8  incident of alleged criminal activity. Notwithstanding any law

 9  to the contrary, a criminal justice agency may comply with

10  laws, court orders, and official requests of other

11  jurisdictions relating to sealing, correction, or confidential

12  handling of criminal history records or information derived

13  therefrom. This section does not confer any right to the

14  sealing of any criminal history record, and any request for

15  sealing a criminal history record may be denied at the sole

16  discretion of the court.

17         (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A

18  criminal history record of a minor or an adult which is

19  ordered sealed by a court of competent jurisdiction pursuant

20  to this section is confidential and exempt from the provisions

21  of s. 119.07(1) and s. 24(a), Art. I of the State Constitution

22  and is available only to the person who is the subject of the

23  record, to the subject's attorney, to criminal justice

24  agencies for their respective criminal justice purposes, or to

25  those entities set forth in subparagraphs (a)1., 4., 5., and

26  6. for their respective licensing and employment purposes.

27         (a)  The subject of a criminal history record sealed

28  under this section or under other provisions of law, including

29  former s. 893.14, former s. 901.33, and former s. 943.058, may

30  lawfully deny or fail to acknowledge the arrests covered by

31  the sealed record, except when the subject of the record:

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 1         1.  Is a candidate for employment with a criminal

 2  justice agency;

 3         2.  Is a defendant in a criminal prosecution;

 4         3.  Concurrently or subsequently petitions for relief

 5  under this section or s. 943.0585;

 6         4.  Is a candidate for admission to The Florida Bar;

 7         5.  Is seeking to be employed or licensed by or to

 8  contract with the Department of Children and Family Services

 9  or the Department of Juvenile Justice or to be employed or

10  used by such contractor or licensee in a sensitive position

11  having direct contact with children, the developmentally

12  disabled, the aged, or the elderly as provided in s.

13  110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.

14  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

15  415.103, chapter 916 s. 916.106(10) and (13), s. 985.407, or

16  chapter 400; or

17         6.  Is seeking to be employed or licensed by the

18  Department of Education, any district school board, any

19  university laboratory school, any charter school, any private

20  or parochial school, or any local governmental entity that

21  licenses child care facilities.

22         Section 29.  This act shall take effect upon becoming a

23  law.

24  

25  

26  

27  

28  

29  

30  

31  

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Revises various provisions of ch. 916, F.S., relating to
      the treatment and training of defendants who are mentally
 4    ill, retarded, or autistic. Conforms provisions of law to
      the transfer of duties from the Developmental
 5    Disabilities Program Office within the Department of
      Children and Family Services to the Agency for Persons
 6    with Disabilities. Requires that the department, the
      agency, and the Department of Corrections coordinate
 7    services. Provides duties of the agency's inspector
      general. Authorizes the use of chemical weapons by agency
 8    personnel. Authorizes the agency to enter into contracts
      and adopt rules. Requires that the agency provide the
 9    court with a list of retardation and autism
      professionals. Requires that the agency submit
10    evaluations to the court before a defendant is
      transferred from one civil or forensic facility to
11    another. Revises procedures for the conditional release
      of a defendant to a civil facility. (See bill for
12    details.)

13  

14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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