Senate Bill sb2010c1
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Florida Senate - 2006 CS for SB 2010
By the Committee on Children and Families; and Senator Baker
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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; providing that it is the policy
9 of the state to use restraint and seclusion
10 only as an emergency safety measure in response
11 to imminent danger; amending s. 916.106, F.S.;
12 providing and revising definitions; amending s.
13 916.107, F.S., relating to the rights of
14 forensic clients; conforming provisions to the
15 transfer of duties from the Developmental
16 Disabilities Program Office within the
17 Department of Children and Family Services to
18 the Agency for Persons with Disabilities;
19 revising provisions governing the involuntary
20 treatment of clients; requiring the
21 coordination of services between the
22 department, the agency, and the Department of
23 Corrections; amending s. 916.1075, F.S.;
24 revising definitions; revising certain
25 prohibitions on sexual misconduct involving
26 employees, volunteers, or interns of the
27 Department of Children and Family Services or
28 the Agency for Persons with Disabilities;
29 deleting an exemption; requiring that notice of
30 sexual misconduct be provided to the inspector
31 general of the agency or department; amending
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1 s. 916.1081, F.S.; providing that an escape or
2 an attempt to escape from a civil or forensic
3 facility constitutes a second-degree felony;
4 amending s. 916.1085, F.S.; providing for
5 certain prohibitions concerning contraband
6 articles to apply to facilities under the
7 supervision or control of the Agency for
8 Persons with Disabilities; conforming a
9 cross-reference; amending s. 916.1091, F.S.;
10 authorizing the use of chemical weapons by
11 agency personnel; amending s. 916.1093, F.S.;
12 authorizing the agency to enter into contracts
13 and adopt rules; requiring that the department
14 and agency adopt rules pertaining to the use of
15 restraint and seclusion; amending s. 916.111,
16 F.S.; revising provisions governing the
17 training of mental health experts; amending s.
18 916.115, F.S.; requiring that the court appoint
19 experts to determine the mental condition of a
20 criminal defendant; requiring that the
21 Department of Children and Family Services
22 annually provide the courts with a list of
23 mental health professionals; amending s.
24 916.12, F.S.; revising provisions governing the
25 evaluation of a defendant's competence to
26 proceed; amending s. 916.13, F.S.; revising
27 conditions under which a defendant may be
28 involuntarily committed for treatment; amending
29 s. 916.145, F.S., relating to charges against a
30 defendant adjudicated incompetent; conforming
31 provisions to changes made by the act; amending
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1 s. 916.15, F.S.; clarifying that the
2 determination of not guilty by reason of
3 insanity is made under the Florida Rules of
4 Criminal Procedure; amending s. 916.16, F.S.;
5 providing for the continuing jurisdiction of
6 the court over a defendant involuntarily
7 committed due to mental illness; amending s.
8 916.17, F.S.; clarifying circumstances under
9 which the court may order the conditional
10 release of a defendant; amending s. 916.301,
11 F.S.; requiring that certain evaluations be
12 conducted by qualified experts; requiring that
13 the Agency for Persons with Disabilities
14 provide the court with a list of available
15 retardation and autism professionals;
16 conforming provisions to the transfer of duties
17 from the Developmental Disabilities Program
18 Office within the Department of Children and
19 Family Services to the agency; amending s.
20 916.3012, F.S.; clarifying provisions governing
21 the determination of a defendant's mental
22 competence to proceed; amending s. 916.302,
23 F.S., relating to the involuntary commitment of
24 a defendant; conforming provisions to the
25 transfer of duties from the Developmental
26 Disabilities Program Office within the
27 Department of Children and Family Services to
28 the agency; requiring that the department and
29 agency submit an evaluation to the court before
30 the transfer of a defendant from one civil or
31 forensic facility to another; amending s.
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1 916.3025, F.S.; clarifying that the committing
2 court retains jurisdiction over a defendant
3 placed on conditional release; providing for
4 the transfer of continuing jurisdiction to
5 another court where the defendant resides;
6 amending s. 916.303, F.S.; clarifying
7 provisions governing the dismissal of charges
8 against a defendant found to be incompetent to
9 proceed due to retardation or autism; amending
10 s. 916.304, F.S.; providing for the conditional
11 release of a defendant to a civil facility;
12 amending ss. 921.137 and 985.223, F.S.,
13 relating to provisions governing the imposition
14 of the death sentence upon a mentally retarded
15 defendant and the determination of incompetency
16 in cases involving juvenile delinquency;
17 conforming provisions to the transfer of duties
18 from the Developmental Disabilities Program
19 Office within the Department of Children and
20 Family Services to the Agency for Persons with
21 Disabilities; amending ss. 287.057, 408.036,
22 943.0585, and 943.059, F.S.; conforming
23 cross-references; providing an effective date.
24
25 Be It Enacted by the Legislature of the State of Florida:
26
27 Section 1. Section 916.105, Florida Statutes, is
28 amended to read:
29 916.105 Legislative intent.--
30 (1) It is the intent of the Legislature that the
31 Department of Children and Family Services and the Agency for
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1 Persons with Disabilities, as appropriate, establish, locate,
2 and maintain separate and secure forensic facilities and
3 programs for the treatment or training of defendants who have
4 been are charged with a felony and who have been found to be
5 incompetent to proceed due to their mental illness, mental
6 retardation, or autism, or who have been acquitted of a felony
7 felonies by reason of insanity, and who, while still under the
8 jurisdiction of the committing court, are committed to the
9 department or agency under the provisions of this chapter.
10 Such The separate, secure facilities shall be sufficient to
11 accommodate the number of defendants committed under the
12 conditions noted above., Except for those defendants found by
13 the department or agency to be appropriate for treatment or
14 training in a civil treatment facility or program pursuant to
15 subsection (3), forensic. Such secure facilities shall be
16 designed and administered so that ingress and egress, together
17 with other requirements of this chapter, may be strictly
18 controlled by staff responsible for security in order to
19 protect the defendant, facility personnel, other clients, and
20 citizens in adjacent communities.
21 (2) It is further the intent of the Legislature that
22 treatment or training programs for defendants who are found to
23 be mentally ill, retarded, or autistic and are involuntarily
24 committed to the department or agency, and who are still under
25 the jurisdiction of the committing court, be provided in such
26 a manner, subject to security requirements and other mandates
27 of this chapter, as to ensure the rights of the defendants as
28 provided in this chapter.
29 (3) It is also the intent of the Legislature that
30 evaluation and services to defendants who are mentally ill,
31 retarded, or autistic be provided in community settings, in
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1 community residential facilities, or in civil, nonforensic
2 facilities, whenever this is a feasible alternative to
3 treatment or training in a state forensic facility.
4 (4) It is the policy of this state that the use of
5 restraint and seclusion on clients is justified only as an
6 emergency safety measure to be used in response to imminent
7 danger to the client or others. It is, therefore, the intent
8 of the Legislature to achieve an ongoing reduction in the use
9 of restraint and seclusion on persons who are committed to a
10 civil or forensic facility under this chapter.
11 Section 2. Section 916.106, Florida Statutes, is
12 amended to read:
13 916.106 Definitions.--For the purposes of this
14 chapter:
15 (1) "Agency" means the Agency for Persons with
16 Disabilities. The agency is responsible for training forensic
17 clients who are developmentally disabled due to mental
18 retardation or autism and have been determined incompetent to
19 proceed.
20 (2)(1) "Autism" has the same meaning as in s. 393.063.
21 means a pervasive, neurologically based developmental
22 disability of extended duration which causes severe learning,
23 communication, and behavior disorders, with the age of onset
24 of autism occurring during infancy or childhood. Individuals
25 with autism exhibit impairment in reciprocal social
26 interaction, impairment in verbal and nonverbal communication
27 and imaginative ability, and a markedly restricted repertoire
28 of activities and interests.
29 (3)(2) "Chemical weapon" means any shell, cartridge,
30 bomb, gun, or other device capable of emitting
31 chloroacetophenone (CN), chlorobenzalmalononitrile (CS) or any
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1 derivatives thereof in any form, or any other agent with
2 lacrimatory properties, and shall include products such as
3 that commonly known as "mace."
4 (4)(3) "Civil facility" means:
5 (a) A mental health facility established within the
6 department or by contract with the department to serve
7 individuals committed pursuant to chapter 394 and those
8 defendants committed pursuant to this chapter who do not
9 require the security provided in a forensic facility; or.
10 (b) An intermediate care facility for the
11 developmentally disabled, a foster care facility, a group home
12 facility, or a supported living setting, as defined in s.
13 393.063, designated by the agency to serve those defendants
14 who do not require the security provided in a forensic
15 facility.
16 (5)(4) "Court" means the circuit court.
17 (6) "Defendant" means an adult, or a juvenile who is
18 prosecuted as an adult, who has been arraigned and charged
19 with a felony offense under the laws of this state.
20 (7)(5) "Department" means the Department of Children
21 and Family Services. The department is responsible for the
22 treatment of forensic clients who have been determined
23 incompetent to proceed due to mental illness or who have been
24 acquitted of a felony by reason of insanity.
25 (8)(6) "Express and informed consent" or "consent"
26 means consent given voluntarily in writing after a
27 conscientious and sufficient explanation and disclosure of the
28 purpose of the proposed treatment, the common side effects of
29 the treatment, if any, the expected duration of the treatment,
30 and any alternative treatment available.
31
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1 (9)(7) "Forensic client" or "client" means any
2 defendant who has been is mentally ill, retarded, or autistic
3 and who is committed to the department or agency pursuant to
4 s. 916.13, s. 916.15, or s. 916.302. this chapter and:
5 (a) Who has been determined to need treatment for a
6 mental illness or training for retardation or autism;
7 (b) Who has been found incompetent to proceed on a
8 felony offense or has been acquitted of a felony offense by
9 reason of insanity;
10 (c) Who has been determined by the department to:
11 1. Be dangerous to himself or herself or others; or
12 2. Present a clear and present potential to escape;
13 and
14 (d) Who is an adult or a juvenile prosecuted as an
15 adult.
16 (10)(8) "Forensic facility" means a separate and
17 secure facility established within the department or agency to
18 serve forensic clients. A Such separate and secure facility
19 means a facilities shall be security-grade building for the
20 purpose of separately housing persons with mental illness from
21 persons with retardation or autism and separately housing
22 persons who have been involuntarily committed pursuant to this
23 chapter from nonforensic residents buildings located on
24 grounds distinct in location from other facilities for persons
25 who are mentally ill. The Florida State Hospital shall not be
26 required to maintain separate facilities for mentally ill,
27 retarded, or autistic defendants who are found incompetent to
28 proceed or who are acquitted of a criminal offense by reason
29 of insanity.
30 (11)(9) "Incompetent to proceed" means unable to
31 proceed at any material stage of a criminal proceeding, which
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1 shall include trial of the case, pretrial hearings involving
2 questions of fact on which the defendant might be expected to
3 testify, entry of a plea, proceedings for violation of
4 probation or violation of community control, sentencing, and
5 hearings on issues regarding a defendant's failure to comply
6 with court orders or conditions or other matters in which the
7 mental competence of the defendant is necessary for a just
8 resolution of the issues being considered.
9 (12)(10) "Institutional security personnel" means the
10 staff of forensic facilities staff members who meet or exceed
11 the requirements of s. 943.13 and who are responsible for
12 providing security, protecting for protection of clients and
13 personnel, enforcing for the enforcement of rules, preventing
14 and investigating for prevention and investigation of
15 unauthorized activities, and for safeguarding the interests of
16 citizens in the surrounding communities.
17 (13)(11) "Mental illness" means an impairment of the
18 emotional processes that exercise conscious control of one's
19 actions, or of the ability to perceive or understand reality,
20 which impairment substantially interferes with a defendant's
21 ability to meet the ordinary demands of living. For the
22 purposes of this chapter, the term does not apply to
23 defendants with mental retardation or autism who are solely
24 retarded or autistic, and does not include intoxication or
25 conditions manifested only by antisocial behavior or substance
26 abuse impairment.
27 (14)(a) "Restraint" means a physical device, method,
28 or drug used to control behavior. A physical restraint is any
29 manual method or physical or mechanical device, material, or
30 equipment attached or adjacent to the individual's body so
31
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1 that he or she cannot easily remove the restraint and which
2 restricts freedom of movement or normal access to one's body.
3 (b) A drug used as a restraint is a medication used to
4 control the person's behavior or to restrict his or her
5 freedom of movement. Physically holding a person during a
6 procedure to forcibly administer such medication is a physical
7 restraint.
8 (c) Restraint does not include physical devices, such
9 as orthopedically prescribed appliances, surgical dressings
10 and bandages, supportive body bands, or other physical holding
11 when necessary for routine physical examinations and tests;
12 for purposes of orthopedic, surgical, or other similar medical
13 treatment; when used to provide support for the achievement of
14 functional body position or proper balance; or when used to
15 protect a person from falling out of bed.
16 (15)(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 (16) "Seclusion" means the physical segregation of a
30 person in any fashion or the involuntary isolation of a person
31 in a room or area from which the person is prevented from
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1 leaving. The prevention may be by physical barrier or by a
2 staff member who is acting in a manner, or who is physically
3 situated, so as to prevent the person from leaving the room or
4 area. For purposes of this chapter, the term does not mean
5 isolation due to a person's medical condition or symptoms, the
6 confinement in state mental health treatment facilities to a
7 bedroom or area during normal hours of sleep when there is not
8 an active order for seclusion, or confinement during an
9 emergency such as a riot or hostage situation when clients may
10 be temporarily placed in their rooms for their own safety.
11 (17)(13) "Social service professional," for the
12 purposes of part III, means a person whose minimum
13 qualifications include a bachelor's degree and at least 2
14 years of social work, clinical practice, special education,
15 habilitation, or equivalent experience working directly with
16 persons with retardation, autism, or other developmental
17 disabilities.
18 Section 3. Section 916.107, Florida Statutes, is
19 amended to read:
20 916.107 Rights of forensic clients.--
21 (1) RIGHT TO INDIVIDUAL DIGNITY.--
22 (a) The policy of the state is that the individual
23 dignity of the client shall be respected at all times and upon
24 all occasions, including any occasion when the forensic client
25 is detained, transported, or treated. Clients with mental
26 illness, retardation, or autism Defendants who are mentally
27 ill, retarded, or autistic and who are charged with committing
28 felonies shall receive appropriate treatment or training. In
29 a criminal case involving a client defendant who has been
30 adjudicated incompetent to proceed or not guilty by reason of
31 insanity, a jail may be used as an emergency facility for up
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1 to 15 days following from the date the department or agency
2 receives a completed copy of the court commitment order
3 containing all the documentation required by Rules 3.212 and
4 3.217, Florida Rules of Criminal Procedure. For a forensic
5 client defendant who is mentally ill, retarded, or autistic,
6 who is held in a jail awaiting admission to a facility of the
7 department or agency, and who has been adjudicated incompetent
8 to proceed or not guilty by reason of insanity, evaluation and
9 treatment or training may shall be provided in the jail by the
10 local community mental health provider public receiving
11 facility for mental health services, or by the developmental
12 disabilities services program for persons with retardation or
13 autism, the client's physician or psychologist, or any other
14 appropriate program until the client is transferred to a civil
15 or forensic facility the custody of the department.
16 (b) Forensic clients Mentally ill, retarded, or
17 autistic defendants who are committed to the department
18 pursuant to this chapter and who are initially placed in, or
19 subsequently transferred to, a civil facility as described in
20 part I of chapter 394 or to a residential facility as
21 described in chapter 393 shall have the same rights as other
22 persons committed to these facilities for as long as they
23 remain there.
24 (2) RIGHT TO TREATMENT.--
25 (a) The policy of the state is that neither the
26 department nor the agency shall not deny treatment or training
27 to any client and that no services shall be delayed at a
28 facility because the forensic client is indigent pursuant to
29 s. 27.52 and presently unable to pay. However, every
30 reasonable effort to collect appropriate reimbursement for the
31 cost of providing services to clients able to pay for the
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1 services, including reimbursement from insurance or other
2 third-party payments, shall be made by facilities providing
3 services pursuant to this chapter and in accordance with the
4 provisions of s. 402.33.
5 (b) Each forensic client shall be given, at the time
6 of admission and at regular intervals thereafter, a physical
7 examination, which shall include screening for communicable
8 disease by a health practitioner authorized by law to give
9 such screenings and examinations.
10 (c) Every forensic client committed pursuant to this
11 act shall be afforded the opportunity to participate in
12 activities designed to enhance self-image and the beneficial
13 effects of other treatments or training, as determined by the
14 facility.
15 (d) Not more than 30 days after admission, each client
16 shall have and receive, in writing, an individualized
17 treatment or training plan which the client has had an
18 opportunity to assist in preparing.
19 (3) RIGHT TO EXPRESS AND INFORMED CONSENT.--
20 (a) A forensic client committed to the department
21 pursuant to this act shall be asked to give express and
22 informed written consent for treatment. If a client in a
23 forensic facility refuses such treatment as is deemed
24 necessary and essential by the client's multidisciplinary
25 treatment team at the forensic facility for the appropriate
26 care of the client and the safety of the client or others,
27 such treatment may be provided under the following
28 circumstances:
29 1. In an emergency situation in which there is
30 immediate danger to the safety of the client or others, such
31 treatment may be provided upon the written order of a
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1 physician for a period not to exceed 48 hours, excluding
2 weekends and legal holidays. If, after the 48-hour period,
3 the client has not given express and informed consent to the
4 treatment initially refused, the administrator or designee of
5 the civil or forensic facility shall, within 48 hours,
6 excluding weekends and legal holidays, petition the committing
7 court or the circuit court serving the county in which the
8 facility is located, at the option of the facility
9 administrator or designee, for an order authorizing the
10 continued treatment of the client. In the interim, the need
11 for treatment shall be reviewed every 48 hours and may be
12 continued without the consent of the client upon the continued
13 written order of a physician who has determined that the
14 emergency situation continues to present a danger to the
15 safety of the client or others.
16 2. In a situation other than an emergency situation,
17 the administrator or designee of the forensic facility shall
18 petition the court for an order authorizing necessary and
19 essential the treatment for to the client. The order shall
20 allow such treatment for a period not to exceed 90 days
21 following from the date of the entry of the order. Unless the
22 court is notified in writing that the client has provided
23 express and informed consent in writing or that the client has
24 been discharged by the committing court, the administrator or
25 designee shall, prior to the expiration of the initial 90-day
26 order, petition the court for an order authorizing the
27 continuation of treatment for another 90-day period. This
28 procedure shall be repeated until the client provides consent
29 or is discharged by the committing court.
30 3. At the hearing on the issue of whether the court
31 should enter an order authorizing treatment for which a client
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1 was unable or has refused to give express and informed
2 consent, the court shall determine by clear and convincing
3 evidence that the client has mental illness, retardation, or
4 autism is mentally ill, retarded, or autistic as defined in
5 this chapter, that the treatment not consented to is essential
6 to the care of the client, and that the treatment not
7 consented to is not experimental and does not present an
8 unreasonable risk of serious, hazardous, or irreversible side
9 effects. In arriving at the substitute judgment decision, the
10 court must consider at least the following factors:
11 a. The client's expressed preference regarding
12 treatment;
13 b. The probability of adverse side effects;
14 c. The prognosis without treatment; and
15 d. The prognosis with treatment.
16
17 The hearing shall be as convenient to the client as may be
18 consistent with orderly procedure and shall be conducted in
19 physical settings not likely to be injurious to the client's
20 condition. The court may appoint a general or special
21 magistrate to preside at the hearing. The client or the
22 client's guardian, and the representative, shall be provided
23 with a copy of the petition and the date, time, and location
24 of the hearing. The client has the right to have an attorney
25 represent him or her at the hearing, and, if the client is
26 indigent, the court shall appoint the office of the public
27 defender to represent the client at the hearing. The client
28 may testify or not, as he or she chooses, and has the right to
29 cross-examine witnesses and may present his or her own
30 witnesses.
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1 (b) In addition to the provisions of paragraph (a), in
2 the case of surgical procedures requiring the use of a general
3 anesthetic or electroconvulsive treatment or nonpsychiatric
4 medical procedures, and prior to performing the procedure,
5 written permission shall be obtained from the client, if the
6 client is legally competent, from the parent or guardian of a
7 minor client, or from the guardian of an incompetent client.
8 The administrator or designee of the forensic facility or a
9 designated representative may, with the concurrence of the
10 client's attending physician, authorize emergency surgical or
11 nonpsychiatric medical treatment if such treatment is deemed
12 lifesaving or for a situation threatening serious bodily harm
13 to the client and permission of the client or the client's
14 guardian could not cannot be obtained before provision of the
15 needed treatment.
16 (4) QUALITY OF TREATMENT.--
17 (a) Each forensic client committed pursuant to this
18 chapter shall receive treatment or training suited to the
19 client's needs, which shall be administered skillfully,
20 safely, and humanely with full respect for the client's
21 dignity and personal integrity. Each client shall receive
22 such medical, vocational, social, educational, and
23 rehabilitative services as the client's condition requires to
24 bring about a return to court for disposition of charges or a
25 return to the community. In order to achieve this goal, the
26 department and the agency shall coordinate their services with
27 each other, the Department of Corrections, is directed to
28 coordinate the services of the Mental Health Program Office
29 and the Developmental Disabilities Program Office with all
30 other programs of the department and other appropriate state
31 agencies.
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1 (b) Clients shall be free from the unnecessary use of
2 restraint and seclusion. Restraints shall be employed only in
3 emergencies or to protect the client or others from imminent
4 injury. Restraint or seclusion may not be employed as
5 punishment or for the convenience of staff. Any instance of
6 the use of restraint or seclusion must be documented in the
7 facility record of the client.
8 (5) COMMUNICATION, ABUSE REPORTING, AND VISITS.--
9 (a) Each forensic client committed pursuant to the
10 provisions of this chapter has the right to communicate freely
11 and privately with persons outside the facility unless it is
12 determined that such communication is likely to be harmful to
13 the client or others. Clients shall have the right to contact
14 and to receive communication from their attorneys at any
15 reasonable time.
16 (a)(b) Each forensic client committed under the
17 provisions of this chapter shall be allowed to receive, send,
18 and mail sealed, unopened correspondence; and no client's
19 incoming or outgoing correspondence shall be opened, delayed,
20 held, or censored by the facility unless there is reason to
21 believe that it contains items or substances which may be
22 harmful to the client or others, in which case the
23 administrator or designee may direct reasonable examination of
24 such mail and may regulate the disposition of such items or
25 substances. "Correspondence" shall not include parcels or
26 packages. Forensic facilities are authorized to promulgate
27 reasonable institutional policies to provide for the
28 inspection of parcels or packages and for the removal of
29 contraband items for health or security reasons prior to the
30 contents being given to a client.
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1 (b)(c) If a client's right to communicate is
2 restricted by the administrator, written notice of such
3 restriction and the duration of the restriction shall be
4 served on the client or his or her legal guardian or
5 representatives, and such restriction shall be recorded on the
6 client's clinical record with the reasons therefor. The
7 restriction of a client's right to communicate shall be
8 reviewed at least every 7 days.
9 (c)(d) Each forensic facility shall establish
10 reasonable institutional policies governing visitors, visiting
11 hours, and the use of telephones by clients in the least
12 restrictive manner possible.
13 (d)(e) Each forensic client committed pursuant to this
14 chapter shall have ready access to a telephone in order to
15 report an alleged abuse. The facility or program staff shall
16 orally and in writing inform each client of the procedure for
17 reporting abuse and shall present the information in a
18 language the client understands. A written copy of that
19 procedure, including the telephone number of the central abuse
20 hotline and reporting forms, shall be posted in plain view.
21 (e)(f) The department's or agency's forensic
22 facilities shall develop policies providing a procedure for
23 reporting abuse. Facility staff shall be required, as a
24 condition of employment, to become familiar with the
25 procedures for the reporting of abuse.
26 (6) CARE AND CUSTODY OF PERSONAL EFFECTS OF
27 CLIENTS.--A forensic client's right to possession of clothing
28 and personal effects shall be respected. The department or
29 agency by rule, or the administrator of any forensic facility
30 by written institutional policy, may declare certain items to
31 be hazardous to the health or welfare of clients or others or
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1 to the operation of the facility. Such items may be
2 restricted from introduction into the facility or may be
3 restricted from being in a client's possession. The
4 administrator or designee may take temporary custody of such
5 effects when required for medical and safety reasons. Custody
6 of such personal effects shall be recorded in the client's
7 clinical record.
8 (7) VOTING IN PUBLIC ELECTIONS.--A forensic client
9 committed pursuant to this chapter who is eligible to vote
10 according to the laws of the state has the right to vote in
11 the primary and general elections. The department and agency
12 shall establish rules to enable clients to obtain voter
13 registration forms, applications for absentee ballots, and
14 absentee ballots.
15 (8) CLINICAL RECORD; CONFIDENTIALITY.--A clinical
16 record for each forensic client shall be maintained. The
17 record shall include data pertaining to admission and such
18 other information as may be required under rules of the
19 department or the agency. Unless waived by express and
20 informed consent of the client or the client's legal guardian
21 or, if the client is deceased, by the client's personal
22 representative or by that family member who stands next in
23 line of intestate succession or except as otherwise provided
24 in this subsection, the clinical record is confidential and
25 exempt from the provisions of s. 119.07(1) and s. 24(a), Art.
26 I of the State Constitution.
27 (a) Such clinical record may be released:
28 1. To such persons and agencies as are designated by
29 the client or the client's legal guardian.
30
31
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1 2. To persons authorized by order of court and to the
2 client's counsel when the records are needed by the counsel
3 for adequate representation.
4 3. To a qualified researcher, as defined by rule; a
5 staff member of the facility; or an employee of the department
6 or agency when the administrator of the facility, or secretary
7 or director of the department or agency, deems it necessary
8 for treatment of the client, maintenance of adequate records,
9 compilation of treatment data, or evaluation of programs.
10 4. For statistical and research purposes if the
11 information is abstracted in such a way as to protect the
12 identity of individuals.
13 5. If a client receiving services pursuant to this
14 chapter has declared an intention to harm other persons. When
15 such a declaration has been made, the administrator shall
16 authorize the release of sufficient information to provide
17 adequate warning to the person threatened with harm by the
18 client, and to the committing court, the state attorney, and
19 the attorney representing the client.
20 6. To the parent or next of kin of a client mentally
21 ill, retarded, or autistic person who is committed to, or is
22 being served by, a facility or program when such information
23 is limited to that person's service plan and current physical
24 and mental condition. Release of such information shall be in
25 accordance with the code of ethics of the profession involved
26 and must comply with all state and federal laws and
27 regulations pertaining to the release of personal health
28 information.
29 (b) Notwithstanding other provisions of this
30 subsection, the department or agency may request or receive
31 from or provide to any of the following entities client
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1 information to facilitate treatment, habilitation,
2 rehabilitation, and continuity of care of any forensic client:
3 1. The Social Security Administration and the United
4 States Department of Veterans Affairs;
5 2. Law enforcement agencies, state attorneys, defense
6 attorneys, and judges in regard to the client's status;
7 3. Jail personnel in the jail in to which a client may
8 be housed returned; and
9 4. Community agencies and others expected to provide
10 followup care to the client upon the client's return to the
11 community.
12 (c) The department or agency may provide notice to any
13 client's next of kin or first representative regarding any
14 serious medical illness or the death of the client.
15 (d)1. Any law enforcement agency, facility, or other
16 governmental agency that receives information pursuant to this
17 subsection shall maintain the confidentiality of such
18 information except as otherwise provided herein.
19 2. Any agency or private practitioner who acts in good
20 faith in releasing information pursuant to this subsection is
21 not subject to civil or criminal liability for such release.
22 (9) HABEAS CORPUS.--
23 (a) At any time, and without notice, a forensic client
24 detained by a facility, or a relative, friend, guardian,
25 representative, or attorney on behalf of such client, may
26 petition for a writ of habeas corpus to question the cause and
27 legality of such detention and request that the committing
28 court issue a writ for release. Each client committed
29 pursuant to this chapter shall receive a written notice of the
30 right to petition for a writ of habeas corpus.
31
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1 (b) A client or his or her legal guardian or
2 representatives or attorney may file a petition in the circuit
3 court in the county where the client is committed alleging
4 that the client is being unjustly denied a right or privilege
5 granted herein or that a procedure authorized herein is being
6 abused. Upon the filing of such a petition, the circuit court
7 shall have the authority to conduct a judicial inquiry and to
8 issue any appropriate order to correct an abuse of the
9 provisions of this chapter.
10 (10) TRANSPORTATION.--
11 (a) The sheriff shall consult with the governing board
12 of the county as to the most appropriate and cost-effective
13 means of transportation for forensic clients who have been
14 committed for treatment or training. Such consultation shall
15 include, but is not limited to, consideration of the cost to
16 the county of transportation performed by sheriff's department
17 personnel as opposed to transportation performed by other
18 means and, if sheriff's department personnel are to be used
19 for transportation, the effect such use will have, if any, on
20 service delivery levels of the sheriff's road patrol. After
21 such consultation with the governing board of the county, the
22 sheriff shall determine the most appropriate and
23 cost-effective means of transportation for forensic clients
24 committed for treatment or training.
25 (b) The governing board of each county is authorized
26 to contract with private transport companies for the
27 transportation of such clients to and from a facility.
28 (c) Any company that transports a client pursuant to
29 this section is considered an independent contractor and is
30 solely liable for the safe and dignified transportation of the
31 client. Any transport company that contracts with the
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1 governing board of a county for the transport of clients as
2 provided for in this section shall be insured and provide no
3 less than $100,000 in liability insurance with respect to the
4 transportation of the clients.
5 (d) Any company that contracts with a governing board
6 of a county to transport clients shall comply with the
7 applicable rules of the department or agency to ensure the
8 safety and dignity of the clients.
9 (11) LIABILITY FOR VIOLATIONS.--Any person who
10 violates or abuses any rights or privileges of a forensic
11 client in the custody of the department or agency which are
12 provided under this chapter shall be by this act is liable for
13 damages as determined by law. Any person who acts in good
14 faith in complying with the provisions of this chapter act is
15 immune from civil or criminal liability for his or her actions
16 in connection with the admission, diagnosis, treatment,
17 training, or discharge of a client to or from a facility.
18 However, this subsection does not relieve any person from
19 liability if he or she is negligent.
20 Section 4. Subsections (1), (2), (3), (4), and (5) of
21 section 916.1075, Florida Statutes, are amended to read:
22 916.1075 Sexual misconduct prohibited; reporting
23 required; penalties.--
24 (1) As used in this section, the term:
25 (a) "Covered person" means an "employee" includes any
26 paid staff member, volunteer, or intern of the department or
27 agency; any person under contract with the department or
28 agency; and any person providing care or support to a forensic
29 client on behalf of the department, the agency, or their its
30 providers.
31 (b) "Sexual activity" means:
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1 1. Fondling the genital area, groin, inner thighs,
2 buttocks, or breasts of a person.
3 2. The oral, anal, or vaginal penetration by or union
4 with the sexual organ of another or the anal or vaginal
5 penetration of another by any other object.
6 3. Intentionally touching in a lewd or lascivious
7 manner the breasts, genitals, the genital area, or buttocks,
8 or the clothing covering them, of a person, or forcing or
9 enticing a person to touch the perpetrator.
10 4. Intentionally masturbating in the presence of
11 another person.
12 5. Intentionally exposing the genitals in a lewd or
13 lascivious manner in the presence of another person.
14 6. Intentionally committing any other sexual act that
15 does not involve actual physical or sexual contact with the
16 victim, including, but not limited to, sadomasochistic abuse,
17 sexual bestiality, or the simulation of any act involving
18 sexual activity in the presence of a victim.
19 (c) "Sexual misconduct" means any sexual activity
20 between a covered person an employee and a forensic client in
21 the custody of the department or agency, regardless of the
22 consent of the client. The term does not include an act done
23 for a bona fide medical purpose or an internal search
24 conducted in the lawful performance of duty by a covered
25 person an employee.
26 (2) A covered person An employee who engages in sexual
27 misconduct with a forensic client who resides in a civil or
28 forensic facility commits a felony of the second degree,
29 punishable as provided in s. 775.082, s. 775.083, or s.
30 775.084. Such person An employee may be found guilty of
31
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1 violating this subsection without having committed the crime
2 of sexual battery.
3 (3) The consent of a forensic the client to sexual
4 activity is not a defense to prosecution under this section.
5 (4) This section does not apply to a covered person an
6 employee who:
7 (a) Is legally married to the client; or
8 (b) Has no reason to believe that the person with whom
9 the covered person employee engaged in sexual misconduct is a
10 client receiving services as described in subsection (2).
11 (5) A covered person An employee who witnesses sexual
12 misconduct, or who otherwise knows or has reasonable cause to
13 suspect that a person has engaged in sexual misconduct, shall
14 immediately report the incident to the department's central
15 abuse hotline and to the appropriate local law enforcement
16 agency. The covered person Such employee shall also prepare,
17 date, and sign an independent report that specifically
18 describes the nature of the sexual misconduct, the location
19 and time of the incident, and the persons involved. For an
20 allegation pertaining to a forensic client committed to the
21 agency, the covered person employee shall deliver the report
22 to the supervisor or program director, who shall provide
23 copies to the agency's is responsible for providing copies to
24 the department's inspector general. For an allegation
25 pertaining to a forensic client committed to the department,
26 the covered person shall deliver the report to the supervisor
27 or program director, who shall provide copies to the
28 department's inspector general. The inspector general shall
29 immediately conduct an appropriate administrative
30 investigation, and, if there is probable cause to believe that
31 sexual misconduct has occurred, the inspector general shall
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1 notify the state attorney in the circuit in which the incident
2 occurred.
3 Section 5. Section 916.1081, Florida Statutes, is
4 amended to read:
5 916.1081 Escape from program; penalty.--
6 (1) A forensic client who is A defendant involuntarily
7 committed to the department or agency, who is in the custody
8 of the department or agency, and under the provisions of this
9 chapter who escapes or attempts to escape from a civil or
10 forensic facility or program commits a felony of the second
11 degree, punishable as provided in s. 775.082, s. 775.083, or
12 s. 775.084.
13 (2) A person who is involuntarily committed to the
14 department or the agency because of an active previous
15 sentence, who remains in the custody of the Department of
16 Corrections, and who escapes or attempts to escape from a
17 facility or program of the Department of Corrections commits a
18 felony of the second degree, punishable as provided in s.
19 944.40.
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. Rules adopted under this
21 subsection must include provisions governing the use of
22 restraint and seclusion which are consistent with recognized
23 best practices and professional judgment; prohibit inherently
24 dangerous restraint or seclusion procedures; establish
25 limitations on the use and duration of restraint and
26 seclusion; establish measures to ensure the safety of program
27 participants and staff during an incident of restraint or
28 seclusion; establish procedures for staff to follow before,
29 during, and after incidents of restraint or seclusion;
30 establish professional qualifications of and training for
31 staff who may order or be engaged in the use of restraint or
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1 seclusion; and establish mandatory reporting, data-collection,
2 and data-dissemination procedures and requirements. Rules
3 adopted under this subsection must require that each instance
4 of the use of restraint or seclusion be documented in the
5 facility's record of the client.
6 Section 9. Section 916.111, Florida Statutes, is
7 amended to read:
8 916.111 Training of mental health experts.--The
9 evaluation of defendants for competency to proceed or for
10 sanity at the time of the commission of the offense shall be
11 conducted in such a way as to ensure uniform application of
12 the criteria enumerated in Rules 3.210 and 3.216, Florida
13 Rules of Criminal Procedure. The department shall develop,
14 and may contract with accredited institutions:
15 (1) To provide:
16 (a) A plan for training community mental health
17 professionals to perform forensic evaluations and to
18 standardize the criteria and procedures to be used in these
19 evaluations;
20 (b) Clinical protocols and procedures based upon the
21 criteria of Rules 3.210 and 3.216, Florida Rules of Criminal
22 Procedure; and
23 (c) Training for community mental health professionals
24 in the application of these protocols and procedures in
25 performing forensic evaluations and providing reports to the
26 courts; and
27 (2) To compile and maintain the necessary information
28 for evaluating the success of this program, including the
29 number of persons trained, the cost of operating the program,
30 and the effect on the quality of forensic evaluations as
31
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1 measured by appropriateness of admissions to state forensic
2 facilities and to community-based care programs.
3 Section 10. Section 916.115, Florida Statutes, is
4 amended to read:
5 916.115 Appointment of experts.--
6 (1)(a) Annually, the department shall provide the
7 courts with a list of mental health professionals who have
8 completed approved training as experts.
9 (b) The court shall may appoint no more than three
10 experts to determine issues of the mental condition of a
11 defendant in a criminal case, including the issues of
12 competency to proceed, insanity, and involuntary
13 hospitalization or placement, and treatment. The panel of
14 experts An expert may evaluate the defendant in jail or in
15 another appropriate local facility or in a facility of the
16 Department of Corrections.
17 (a)(c) To the extent possible, the an appointed
18 experts expert shall have completed forensic evaluator
19 training approved by the department and shall be either a
20 psychiatrist, licensed psychologist, or physician.
21 (b) The department shall maintain and provide the
22 courts annually with a list of available mental health
23 professionals who have completed the approved training as
24 experts.
25 (2) Expert witnesses appointed by the court to
26 evaluate the mental condition of a defendant in a criminal
27 case shall be allowed reasonable fees for services rendered as
28 evaluators of competence or sanity and as witnesses.
29 (a)1. The court shall pay for any expert that it
30 appoints by court order, upon motion of counsel for the
31 defendant or the state or upon its own motion. If the defense
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1 or the state retains an expert and waives the confidentiality
2 of the expert's report, the court may pay for no more than two
3 additional experts appointed by court order. If an expert
4 appointed by the court upon motion of counsel for the
5 defendant specifically to evaluate the competence of the
6 defendant to proceed also addresses in his or her evaluation
7 issues related to sanity as an affirmative defense, the court
8 shall pay only for that portion of the expert's fees relating
9 to the evaluation on competency to proceed, and the balance of
10 the fees shall be chargeable to the defense.
11 (a)2. Pursuant to s. 29.006, the office of the public
12 defender shall pay for any expert retained by the office.
13 (b)3. Pursuant to s. 29.005, the office of the state
14 attorney shall pay for any expert retained by the office and.
15 Notwithstanding subparagraph 1., the office of the state
16 attorney shall pay for any expert whom the office retains and
17 whom the office moves the court to appoint in order to ensure
18 that the expert has access to the defendant.
19 (c)4. An expert retained by the defendant who is
20 represented by private counsel appointed under s. 27.5303
21 shall be paid by the Justice Administrative Commission.
22 (d)5. An expert retained by a defendant who is
23 indigent for costs as determined by the court and who is
24 represented by private counsel, other than private counsel
25 appointed under s. 27.5303, on a fee or pro bono basis, or who
26 is representing himself or herself, shall be paid by the
27 Justice Administrative Commission from funds specifically
28 appropriated for these expenses.
29 (e)(b) State employees shall be paid expenses pursuant
30 to s. 112.061.
31 (f)(c) The fees shall be taxed as costs in the case.
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1 (g)(d) In order for an expert to be paid for the
2 services rendered, the expert's report and testimony must
3 explicitly address each of the factors and follow the
4 procedures set out in this chapter and in the Florida Rules of
5 Criminal Procedure.
6 Section 11. Subsections (1) and (2) of section 916.12,
7 Florida Statutes, are amended to read:
8 916.12 Mental competence to proceed.--
9 (1) A defendant is incompetent to proceed within the
10 meaning of this chapter if the defendant does not have
11 sufficient present ability to consult with her or his lawyer
12 with a reasonable degree of rational understanding or if the
13 defendant has no rational, as well as factual, understanding
14 of the proceedings against her or him.
15 (2) Mental health experts appointed pursuant to s.
16 916.115 An expert shall first determine whether the defendant
17 person is mentally ill and, if so, consider the factors
18 related to the issue of whether the defendant meets the
19 criteria for competence to proceed as described in subsection
20 (1); that is, whether the defendant has sufficient present
21 ability to consult with counsel with a reasonable degree of
22 rational understanding and whether the defendant has a
23 rational, as well as factual, understanding of the pending
24 proceedings. A defendant must be evaluated by no fewer than
25 two experts before the court commits the defendant or takes
26 other action authorized by this chapter or the Florida Rules
27 of Criminal Procedure, except if one expert finds that the
28 defendant is incompetent to proceed and the parties stipulate
29 to that finding, the court may commit the defendant or take
30 other action authorized by this chapter or the rules without
31 further evaluation or hearing, or the court may appoint no
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1 more than two additional experts to evaluate the defendant.
2 Notwithstanding any stipulation by the state and the
3 defendant, the court may require a hearing with testimony from
4 the expert or experts before ordering the commitment of a
5 defendant.
6 Section 12. Section 916.13, Florida Statutes, is
7 amended to read:
8 916.13 Involuntary commitment of defendant adjudicated
9 incompetent.--
10 (1) Every defendant who is charged with a felony and
11 who is adjudicated incompetent to proceed, pursuant to the
12 applicable Florida Rules of Criminal Procedure, may be
13 involuntarily committed for treatment upon a finding by the
14 court of clear and convincing evidence that:
15 (a) The defendant is mentally ill and because of the
16 mental illness:
17 1. The defendant is manifestly incapable of surviving
18 alone or with the help of willing and responsible family or
19 friends, including available alternative services, and,
20 without treatment, the defendant is likely to suffer from
21 neglect or refuse to care for herself or himself and such
22 neglect or refusal poses a real and present threat of
23 substantial harm to the defendant's well-being; or and
24 2. There is a substantial likelihood that in the near
25 future the defendant will inflict serious bodily harm on
26 herself or himself or another person, as evidenced by recent
27 behavior causing, attempting, or threatening such harm;
28 (b) All available, less restrictive treatment
29 alternatives, including treatment in community residential
30 facilities or community inpatient or outpatient settings,
31 which would offer an opportunity for improvement of the
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1 defendant's condition have been judged to be inappropriate;
2 and
3 (c) There is a substantial probability that the mental
4 illness causing the defendant's incompetence will respond to
5 treatment and the defendant will regain competency to proceed
6 in the reasonably foreseeable future.
7 (2) A defendant who has been charged with a felony and
8 who has been adjudicated incompetent to proceed due to mental
9 illness, and who meets the criteria for involuntary commitment
10 to the department under the provisions of this chapter, may be
11 committed to the department, and the department shall retain
12 and treat the defendant. No later than 6 months after the
13 date of admission and or at the end of any period of extended
14 commitment, or at any time the administrator or designee shall
15 have determined that the defendant has regained competency to
16 proceed or no longer meets the criteria for continued
17 commitment, the administrator or designee shall file a report
18 with the court pursuant to the applicable Florida Rules of
19 Criminal Procedure.
20 Section 13. Section 916.145, Florida Statutes, is
21 amended to read:
22 916.145 Adjudication of incompetency due to mental
23 illness; Dismissal of charges.--The charges against any
24 defendant adjudicated incompetent to proceed due to the
25 defendant's mental illness shall be dismissed without
26 prejudice to the state if the defendant remains incompetent to
27 proceed 5 years after such determination, unless the court in
28 its order specifies its reasons for believing that the
29 defendant will become competent to proceed within the
30 foreseeable future and specifies the time within which the
31 defendant is expected to become competent to proceed. The
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1 charges against the defendant are dismissed without prejudice
2 to the state to refile the charges should the defendant be
3 declared competent to proceed in the future.
4 Section 14. Section 916.15, Florida Statutes, is
5 amended to read:
6 916.15 Involuntary commitment of defendant adjudicated
7 not guilty by reason of insanity.--
8 (1) The determination of whether a defendant is not
9 guilty by reason of insanity shall be determined in accordance
10 with Rule 3.217, Florida Rules of Criminal Procedure.
11 (2)(1) A defendant who is acquitted of criminal
12 charges because of a finding of not guilty by reason of
13 insanity may be involuntarily committed pursuant to such
14 finding if the defendant is mentally ill and, because of the
15 illness, is manifestly dangerous to himself or herself or
16 others.
17 (3)(2) Every defendant acquitted of criminal charges
18 by reason of insanity and found to meet the criteria for
19 involuntary commitment may be committed and treated in
20 accordance with the provisions of this section and the
21 applicable Florida Rules of Criminal Procedure. The
22 department shall admit a defendant so adjudicated to an
23 appropriate facility or program for treatment and shall retain
24 and treat such defendant. No later than 6 months after the
25 date of admission, prior to the end of any period of extended
26 commitment, or at any time the administrator or designee shall
27 have determined that the defendant no longer meets the
28 criteria for continued commitment placement, the administrator
29 or designee shall file a report with the court pursuant to the
30 applicable Florida Rules of Criminal Procedure.
31
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1 (4)(3) In all proceedings under this section
2 subsection, both the defendant and the state shall have the
3 right to a hearing before the committing court. Evidence at
4 such hearing may be presented by the hospital administrator or
5 the administrator's designee as well as by the state and the
6 defendant. The defendant shall have the right to counsel at
7 any such hearing. In the event that a defendant is determined
8 to be indigent pursuant to s. 27.52, the public defender shall
9 represent the defendant. The parties shall have access to the
10 defendant's records at the treating facilities and may
11 interview or depose personnel who have had contact with the
12 defendant at the treating facilities.
13 Section 15. Section 916.16, Florida Statutes, is
14 amended to read:
15 916.16 Jurisdiction of committing court.--
16 (1) The committing court shall retain jurisdiction
17 over in the case of any defendant involuntarily committed due
18 to a determination of incompetency hospitalized as incompetent
19 to proceed due to a mental illness or because of a finding of
20 not guilty by reason of insanity pursuant to this chapter. The
21 No such defendant may not be released except by order of the
22 committing court. An The administrative hearing examiner does
23 not shall have no jurisdiction to determine issues of
24 continuing commitment hospitalization or release of any
25 defendant involuntarily committed admitted pursuant to this
26 chapter.
27 (2) The committing court shall retain jurisdiction in
28 the case of any defendant placed on conditional release
29 pursuant to s. 916.17. No Such defendant may not be released
30 from the conditions of release except by order of the
31 committing court.
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1 Section 16. Section 916.17, Florida Statutes, is
2 amended to read:
3 916.17 Conditional release.--
4 (1) Except for an inmate also currently serving a
5 prison sentence, The committing court may order a conditional
6 release of any defendant who has been found to be incompetent
7 to proceed or not guilty by reason of insanity, based on an
8 approved plan for providing appropriate outpatient care and
9 treatment. the committing court may order a conditional
10 release of any defendant in lieu of an involuntary commitment
11 to a facility pursuant to s. 916.13 or s. 916.15 based upon an
12 approved plan for providing appropriate outpatient care and
13 treatment. Upon a recommendation that outpatient treatment of
14 the defendant is appropriate, a written plan for outpatient
15 treatment, including recommendations from qualified
16 professionals, must be filed with the court, with copies to
17 all parties. Such a plan may also be submitted by the
18 defendant and filed with the court with copies to all parties.
19 The plan shall include:
20 (a) Special provisions for residential care or
21 adequate supervision of the defendant.
22 (b) Provisions for outpatient mental health services.
23 (c) If appropriate, recommendations for auxiliary
24 services such as vocational training, educational services, or
25 special medical care.
26
27 In its order of conditional release, the court shall specify
28 the conditions of release based upon the release plan and
29 shall direct the appropriate agencies or persons to submit
30 periodic reports to the court regarding the defendant's
31
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1 compliance with the conditions of the release and progress in
2 treatment, with copies to all parties.
3 (2) Upon the filing of an affidavit or statement under
4 oath by any person that the defendant has failed to comply
5 with the conditions of release, that the defendant's condition
6 has deteriorated to the point that inpatient care is required,
7 or that the release conditions should be modified, the court
8 shall hold a hearing within 7 days after receipt of the
9 affidavit or statement under oath. After the hearing, the
10 court may modify the release conditions. The court may also
11 order that the defendant be returned to the department if it
12 is found, after the appointment and report of experts, that
13 the person meets the criteria for involuntary commitment under
14 s. 916.13 or s. 916.15 treatment.
15 (3) If at any time it is determined after a hearing
16 that the defendant who has been conditionally released under
17 subsection (1) no longer requires court-supervised followup
18 care, the court shall terminate its jurisdiction in the cause
19 and discharge the defendant.
20 Section 17. Section 916.301, Florida Statutes, is
21 amended to read:
22 916.301 Appointment of experts.--
23 (1) All evaluations ordered by the court under this
24 part must be conducted by qualified experts who have expertise
25 in evaluating persons with retardation or autism. The agency
26 department shall maintain and provide the courts annually with
27 a list of available retardation and autism professionals who
28 are appropriately licensed and qualified to perform
29 evaluations of defendants alleged to be incompetent to proceed
30 due to retardation or autism. The courts may use professionals
31 from this list when appointing experts and ordering
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1 evaluations under this part for defendants suspected of being
2 retarded or autistic.
3 (2) If a defendant's suspected mental condition is
4 retardation or autism, the court shall appoint a panel of
5 experts consisting of: two experts, one of whom must be the
6 developmental services program of the department, each of whom
7 will evaluate whether the defendant meets the definition of
8 retardation or autism and, if so, whether the defendant is
9 competent to proceed.
10 (a)(3) At least one, or at the request of any party,
11 two experts the court may appoint one additional expert to
12 evaluate the defendant. The expert appointed by the court will
13 evaluate whether the defendant meets the definition of
14 retardation or autism and, if so, whether the defendant is
15 competent to proceed.
16 (b)(4) The developmental services program shall select
17 A psychologist selected by the agency who is licensed or
18 authorized by law to practice in this state, with experience
19 in evaluating persons suspected of having retardation or
20 autism, and a social service professional, with experience in
21 working with persons with retardation or autism to evaluate
22 the defendant.
23 1.(a) The psychologist shall evaluate whether the
24 defendant meets the definition of retardation or autism and,
25 if so, whether the defendant is incompetent to proceed due to
26 retardation or autism.
27 2.(b) The social service professional shall provide a
28 social and developmental history of the defendant.
29 (5) All evaluations ordered by the court must be from
30 qualified experts with experience in evaluating persons with
31 retardation or autism.
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1 (3)(6) The panel of experts may examine the defendant
2 in jail, in another appropriate local facility, in a facility
3 of the Department of Corrections, or on an outpatient basis.
4 (4)(7) Experts Expert witnesses appointed by the court
5 to evaluate the mental condition of a defendant in a criminal
6 case shall be allowed reasonable fees for services rendered as
7 evaluators and as witnesses, which shall be paid by the court.
8 State employees shall be paid expenses pursuant to s. 112.061.
9 The fees shall be taxed as costs in the case. In order for the
10 experts to be paid for the services rendered, the reports and
11 testimony must explicitly address each of the factors and
12 follow the procedures set out in this chapter and in the
13 Florida Rules of Criminal Procedure.
14 Section 18. Subsections (1) and (2) of section
15 916.3012, Florida Statutes, are amended to read:
16 916.3012 Mental competence to proceed.--
17 (1) A defendant whose suspected mental condition is
18 retardation or autism is incompetent to proceed within the
19 meaning of this chapter if the defendant does not have
20 sufficient present ability to consult with the defendant's
21 lawyer with a reasonable degree of rational understanding or
22 if the defendant has no rational, as well as factual,
23 understanding of the proceedings against the defendant.
24 (2) The Experts in retardation or autism, appointed
25 pursuant to s. 916.301, shall first consider whether the
26 defendant meets the definition of retardation or autism and,
27 if so, consider the factors related to the issue of whether
28 the defendant meets the criteria for competence to proceed as
29 described in subsection(1); that is, whether the defendant has
30 sufficient present ability to consult with counsel with a
31 reasonable degree of rational understanding and whether the
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1 defendant has a rational, as well as factual, understanding of
2 the pending proceedings.
3 Section 19. Section 916.302, Florida Statutes, is
4 amended to read:
5 916.302 Involuntary commitment of defendant determined
6 to be incompetent to proceed due to retardation or autism.--
7 (1) CRITERIA.--Every defendant who is charged with a
8 felony and who is adjudicated found to be incompetent to
9 proceed due to retardation or autism, pursuant to this chapter
10 and the applicable Florida Rules of Criminal Procedure, may be
11 involuntarily committed for training upon a finding by the
12 court of clear and convincing evidence that:
13 (a) The defendant has retardation or autism is
14 retarded or autistic;
15 (b) There is a substantial likelihood that in the near
16 future the defendant will inflict serious bodily harm on
17 himself or herself or another person, as evidenced by recent
18 behavior causing, attempting, or threatening such harm;
19 (c) All available, less restrictive alternatives,
20 including services provided in community residential
21 facilities or other community settings, which would offer an
22 opportunity for improvement of the condition have been judged
23 to be inappropriate; and
24 (d) There is a substantial probability that the
25 retardation or autism causing the defendant's incompetence
26 will respond to training and the defendant will regain
27 competency to proceed in the reasonably foreseeable future.
28 (2) ADMISSION TO A FACILITY.--
29 (a) A defendant who has been charged with a felony and
30 who is found to be incompetent to proceed due to retardation
31 or autism, and who meets the criteria for involuntary
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1 commitment to the agency department under the provisions of
2 this chapter, shall be committed to the agency department, and
3 the agency department shall retain and provide appropriate
4 training for serve the defendant. No later than 6 months after
5 the date of admission or at the end of any period of extended
6 commitment or at any time the administrator or designee shall
7 have determined that the defendant has regained competency to
8 proceed or no longer meets the criteria for continued
9 commitment, the administrator or designee shall file a report
10 with the court pursuant to this chapter and the applicable
11 Florida Rules of Criminal Procedure.
12 (b) A defendant determined to be incompetent to
13 proceed due to retardation or autism may be ordered by a
14 circuit court into a forensic secure facility designated by
15 the agency department for retarded or autistic defendants.
16 (c) The agency department may transfer a defendant
17 from a designated forensic secure facility to another
18 designated forensic secure facility and must notify the court
19 of the transfer within 30 days after the transfer is
20 completed.
21 (d) The agency department may not transfer a defendant
22 from a designated forensic secure facility to a civil
23 nonsecure facility without first notifying the court, and all
24 parties, 30 days before the proposed transfer. If the court
25 objects to the proposed transfer to a nonsecure facility, it
26 must send its written objection to the agency department. The
27 agency department may transfer the defendant unless it
28 receives the written objection from the court within 30 days
29 after the court's receipt of the notice of the proposed
30 transfer.
31 (3) PLACEMENT OF DUALLY DIAGNOSED DEFENDANTS.--
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1 (a) If a defendant is both retarded or autistic and
2 mentally ill, evaluations must address which condition is
3 primarily affecting the defendant's competency to proceed.
4 Referral of the defendant should be made to a civil or
5 forensic the facility or program most appropriate to address
6 the symptoms which are the cause of the defendant's
7 incompetence.
8 (b) Transfer from one civil or forensic facility or
9 program to another civil or forensic facility or program may
10 occur when, in the department's and agency's judgment, it is
11 in the defendant's best treatment or training interests. The
12 department and agency shall submit an evaluation and
13 justification for the transfer to the court. The court may
14 consult with an outside expert if necessary. Transfer will
15 require an amended order from the committing court.
16 Section 20. Section 916.3025, Florida Statutes, is
17 amended to read:
18 916.3025 Jurisdiction of committing court.--
19 (1) The committing court shall retain jurisdiction in
20 the case of any defendant found to be incompetent to proceed
21 due to retardation or autism and ordered into a forensic
22 secure facility designated by the agency department for
23 retarded or autistic defendants. A No defendant may not be
24 released except by the order of the committing court. An
25 administrative hearing examiner does not have jurisdiction to
26 determine issues of continuing commitment or release of any
27 defendant involuntarily committed pursuant to this chapter.
28 (2) The committing court shall retain jurisdiction in
29 the case of any defendant placed on conditional release
30 pursuant to s. 916.304. No Such defendant may not be released
31
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1 from the conditions of release except by order of the
2 committing court.
3 (3) The committing court shall consider a the petition
4 to involuntarily admit a defendant whose charges have been
5 dismissed to residential services provided by the agency
6 department's developmental services program a person whose
7 charges have been dismissed, and, when applicable, to continue
8 secure placement of such person as provided in s. 916.303. The
9 committing court shall retain jurisdiction over such person so
10 long as he or she remains in secure placement or is on
11 conditional release as provided in s. 916.304. However, upon
12 request the court may transfer continuing jurisdiction to the
13 court in the circuit where the defendant resides. The
14 defendant may not be released from an order for secure
15 placement except by order of the court.
16 Section 21. Section 916.303, Florida Statutes, is
17 amended to read:
18 916.303 Determination of incompetency due to
19 retardation or autism; dismissal of charges.--
20 (1) The charges against any defendant found to be
21 incompetent to proceed due to retardation or autism shall be
22 dismissed without prejudice to the state if the defendant
23 remains incompetent to proceed within a reasonable time after
24 such determination, not to exceed 2 years, unless the court in
25 its order specifies its reasons for believing that the
26 defendant will become competent to proceed within the
27 foreseeable future and specifies the time within which the
28 defendant is expected to become competent to proceed. The
29 charges may be refiled by the state if against the defendant
30 are dismissed without prejudice to the state to refile the
31
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1 charges should the defendant is be declared competent to
2 proceed in the future.
3 (2)(a) If the charges are dismissed and if the
4 defendant is considered to lack sufficient capacity to give
5 express and informed consent to a voluntary application for
6 services and lacks the basic survival and self-care skills to
7 provide for his or her well-being or is likely to physically
8 injure himself or herself or others if allowed to remain at
9 liberty, the agency department, the state attorney, or the
10 defendant's attorney shall may apply to the committing court
11 to involuntarily admit the defendant to residential services
12 pursuant to s. 393.11.
13 (3)(b) If the defendant is considered to need
14 involuntary residential services for reasons described in
15 subsection (2) under s. 393.11 and, further, there is a
16 substantial likelihood that the defendant will injure another
17 person or continues to present a danger of escape, and all
18 available less restrictive alternatives, including services in
19 community residential facilities or other community settings,
20 which would offer an opportunity for improvement of the
21 condition have been judged to be inappropriate, then the
22 agency person or entity filing the petition under s. 393.11,
23 the state attorney, or the defendant's counsel may request,
24 the petitioning commission, or the department may also
25 petition the committing court to continue the defendant's
26 placement in a secure facility or program pursuant to this
27 part section. Any placement so continued under this subsection
28 must be defendant involuntarily admitted under this paragraph
29 shall have his or her status reviewed by the court at least
30 annually at a hearing. The annual review and hearing shall
31 determine whether the defendant continues to meet the criteria
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1 described in this subsection for involuntary residential
2 services and, if so, whether the defendant still requires
3 involuntary placement in a secure facility or program because
4 the court finds that the defendant is likely to physically
5 injure others as specified in s. 393.11 and whether the
6 defendant is receiving adequate care, treatment, habilitation,
7 and rehabilitation, including psychotropic medication and
8 behavioral programming. Notice of the annual review and
9 review hearing shall be given to the state attorney and to the
10 defendant's attorney. In no instance may a defendant's
11 placement in a secure facility or program exceed the maximum
12 sentence for the crime for which the defendant was charged.
13 Section 22. Section 916.304, Florida Statutes, is
14 amended to read:
15 916.304 Conditional release.--
16 (1) Except for an inmate also currently serving a
17 prison sentence, the committing court may order a conditional
18 release of any defendant who has been found to be incompetent
19 to proceed due to retardation or autism, based on an approved
20 plan for providing continuing community-based training. The
21 committing criminal court may order a conditional release of
22 any defendant to a civil facility in lieu of an involuntary
23 commitment to a forensic facility pursuant to s. 916.302. Upon
24 a recommendation that community-based training for the
25 defendant is appropriate, a written plan for community-based
26 training, including recommendations from qualified
27 professionals, may be filed with the court, with copies to all
28 parties. Such a plan may also be submitted by the defendant
29 and filed with the court, with copies to all parties. The plan
30 must shall include:
31
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1 (a) Special provisions for residential care and
2 adequate supervision of the defendant, including recommended
3 location of placement.
4 (b) Recommendations for auxiliary services such as
5 vocational training, psychological training, educational
6 services, leisure services, and special medical care.
7
8 In its order of conditional release, the court shall specify
9 the conditions of release based upon the release plan and
10 shall direct the appropriate agencies or persons to submit
11 periodic reports to the courts regarding the defendant's
12 compliance with the conditions of the release and progress in
13 training, with copies to all parties.
14 (2) Upon the filing of an affidavit or statement under
15 oath by any person that the defendant has failed to comply
16 with the conditions of release, that the defendant's condition
17 has deteriorated, or that the release conditions should be
18 modified, the court shall hold a hearing within 7 days after
19 receipt of the affidavit or statement under oath. With notice
20 to the court, the agency may detain a defendant in a forensic
21 facility until the hearing occurs. After the hearing, the
22 court may modify the release conditions. The court may also
23 order that the defendant be placed into more appropriate
24 programs for further training or may order the defendant to be
25 committed returned to a forensic facility involuntary
26 residential services of the department if it is found, after
27 the appointment and report of experts, that the defendant
28 meets the criteria for placement in a forensic facility
29 involuntary residential services.
30 (3) If at any time it is determined after a hearing
31 that the defendant conditionally released under subsection (1)
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1 no longer requires court-supervised followup care, the court
2 shall terminate its jurisdiction in the cause and discharge
3 the defendant.
4 Section 23. Section 921.137, Florida Statutes, is
5 amended to read:
6 921.137 Imposition of the death sentence upon a
7 mentally retarded defendant with retardation prohibited.--
8 (1) As used in this section, the term "mental
9 retardation" means significantly subaverage general
10 intellectual functioning existing concurrently with deficits
11 in adaptive behavior and manifested during the period from
12 conception to age 18. The term "significantly subaverage
13 general intellectual functioning," for the purpose of this
14 section, means performance that is two or more standard
15 deviations from the mean score on a standardized intelligence
16 test specified in the rules of the Agency for Persons with
17 Disabilities Department of Children and Family Services. The
18 term "adaptive behavior," for the purpose of this definition,
19 means the effectiveness or degree with which an individual
20 meets the standards of personal independence and social
21 responsibility expected of his or her age, cultural group, and
22 community. The Agency for Persons with Disabilities Department
23 of Children and Family Services shall adopt rules to specify
24 the standardized intelligence tests as provided in this
25 subsection.
26 (2) A sentence of death may not be imposed upon a
27 defendant convicted of a capital felony if it is determined in
28 accordance with this section that the defendant has mental
29 retardation.
30 (3) A defendant charged with a capital felony who
31 intends to raise mental retardation as a bar to the death
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1 sentence must give notice of such intention in accordance with
2 the rules of court governing notices of intent to offer expert
3 testimony regarding mental health mitigation during the
4 penalty phase of a capital trial.
5 (4) After a defendant who has given notice of his or
6 her intention to raise mental retardation as a bar to the
7 death sentence is convicted of a capital felony and an
8 advisory jury has returned a recommended sentence of death,
9 the defendant may file a motion to determine whether the
10 defendant has mental retardation. Upon receipt of the motion,
11 the court shall appoint two experts in the field of mental
12 retardation who shall evaluate the defendant and report their
13 findings to the court and all interested parties prior to the
14 final sentencing hearing. Notwithstanding s. 921.141 or s.
15 921.142, the final sentencing hearing shall be held without a
16 jury. At the final sentencing hearing, the court shall
17 consider the findings of the court-appointed experts and
18 consider the findings of any other expert which is offered by
19 the state or the defense on the issue of whether the defendant
20 has mental retardation. If the court finds, by clear and
21 convincing evidence, that the defendant has mental retardation
22 as defined in subsection (1), the court may not impose a
23 sentence of death and shall enter a written order that sets
24 forth with specificity the findings in support of the
25 determination.
26 (5) If a defendant waives his or her right to a
27 recommended sentence by an advisory jury following a plea of
28 guilt or nolo contendere to a capital felony and adjudication
29 of guilt by the court, or following a jury finding of guilt of
30 a capital felony, upon acceptance of the waiver by the court,
31 a defendant who has given notice as required in subsection (3)
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1 may file a motion for a determination of mental retardation.
2 Upon granting the motion, the court shall proceed as provided
3 in subsection (4).
4 (6) If, following a recommendation by an advisory jury
5 that the defendant be sentenced to life imprisonment, the
6 state intends to request the court to order that the defendant
7 be sentenced to death, the state must inform the defendant of
8 such request if the defendant has notified the court of his or
9 her intent to raise mental retardation as a bar to the death
10 sentence. After receipt of the notice from the state, the
11 defendant may file a motion requesting a determination by the
12 court of whether the defendant has mental retardation. Upon
13 granting the motion, the court shall proceed as provided in
14 subsection (4).
15 (7) The state may appeal, pursuant to s. 924.07, a
16 determination of mental retardation made under subsection (4).
17 (8) This section does not apply to a defendant who was
18 sentenced to death prior to the effective date of this act.
19 Section 24. Paragraphs (d), (e), (g), and (h) of
20 subsection (1), subsections (2), (3), and (4), paragraph (b)
21 of subsection (5), and paragraph (a) of subsection (6) of
22 section 985.223, Florida Statutes, are amended to read:
23 985.223 Incompetency in juvenile delinquency cases.--
24 (1) If, at any time prior to or during a delinquency
25 case, the court has reason to believe that the child named in
26 the petition may be incompetent to proceed with the hearing,
27 the court on its own motion may, or on the motion of the
28 child's attorney or state attorney must, stay all proceedings
29 and order an evaluation of the child's mental condition.
30 (d) For incompetency evaluations related to mental
31 illness, the Department of Children and Family Services shall
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1 maintain and annually provide the courts with a list of
2 available mental health professionals who have completed a
3 training program approved by the Department of Children and
4 Family Services to perform the evaluations.
5 (e) For incompetency evaluations related to mental
6 retardation or autism, the court shall order the Agency for
7 Persons with Disabilities Developmental Disabilities Program
8 Office within the Department of Children and Family Services
9 to examine the child to determine if the child meets the
10 definition of "retardation" or "autism" in s. 393.063 and, if
11 so, whether the child is competent to proceed with delinquency
12 proceedings.
13 (g) Immediately upon the filing of the court order
14 finding a child incompetent to proceed, the clerk of the court
15 shall notify the Department of Children and Family Services
16 and the Agency for Persons with Disabilities and fax or hand
17 deliver to the department and to the agency of Children and
18 Family Services a referral packet that which includes, at a
19 minimum, the court order, the charging documents, the
20 petition, and the court-appointed evaluator's reports.
21 (h) After placement of the child in the appropriate
22 setting, the Department of Children and Family Services in
23 consultation with the Agency for Persons with Disabilities, as
24 appropriate, must, within 30 days after placement of the
25 Department of Children and Family Services places the child,
26 prepare and submit to the court a treatment or training plan
27 for the child's restoration of competency. A copy of the
28 treatment plan must be served upon the child's attorney, the
29 state attorney, and the attorneys representing the Department
30 of Juvenile Justice.
31
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1 (2) A child who is mentally ill or retarded, who is
2 adjudicated incompetent to proceed, and who has committed a
3 delinquent act or violation of law, either of which would be a
4 felony if committed by an adult, must be committed to the
5 Department of Children and Family Services for treatment or
6 training. A child who has been adjudicated incompetent to
7 proceed because of age or immaturity, or for any reason other
8 than for mental illness or retardation or autism, must not be
9 committed to the department or to the Department of Children
10 and Family Services for restoration-of-competency treatment or
11 training services. For purposes of this section, a child who
12 has committed a delinquent act or violation of law, either of
13 which would be a misdemeanor if committed by an adult, may not
14 be committed to the department or to the Department of
15 Children and Family Services for restoration-of-competency
16 treatment or training services.
17 (3) If the court finds that a child has mental
18 illness, mental retardation, or autism is mentally ill or
19 retarded and adjudicates the child incompetent to proceed, the
20 court must also determine whether the child meets the criteria
21 for secure placement. A child may be placed in a secure
22 facility or program if the court makes a finding by clear and
23 convincing evidence that:
24 (a) The child has mental illness is mentally ill and
25 because of the mental illness; or the child has mental
26 retardation or autism is mentally retarded and because of the
27 mental retardation or autism:
28 1. The child is manifestly incapable of surviving with
29 the help of willing and responsible family or friends,
30 including available alternative services, and without
31 treatment or training the child is likely to either suffer
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1 from neglect or refuse to care for self, and such neglect or
2 refusal poses a real and present threat of substantial harm to
3 the child's well-being; or
4 2. There is a substantial likelihood that in the near
5 future the child will inflict serious bodily harm on self or
6 others, as evidenced by recent behavior causing, attempting,
7 or threatening such harm; and
8 (b) All available less restrictive alternatives,
9 including treatment or training in community residential
10 facilities or community settings which would offer an
11 opportunity for improvement of the child's condition, are
12 inappropriate.
13 (4) A child who is determined to have mental illness,
14 mental retardation, or autism be mentally ill or retarded, who
15 has been adjudicated incompetent to proceed, and who meets the
16 criteria set forth in subsection (3), must be committed to the
17 Department of Children and Family Services, and receive
18 treatment or training the Department of Children and Family
19 Services must treat or train the child in a secure facility or
20 program that which is the least restrictive alternative
21 consistent with public safety. Any placement of a child to a
22 secure residential program must be separate from adult
23 forensic programs. If the child attains competency, then
24 custody, case management, and supervision of the child will be
25 transferred to the department in order to continue delinquency
26 proceedings; however, the court retains authority to order the
27 Department of Children and Family Services to provide
28 continued treatment or training to maintain competency.
29 (a) A child adjudicated incompetent due to mental
30 retardation or autism may be ordered into a secure program or
31 facility designated by the Department of Children and Family
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1 Services for retarded children with mental retardation or
2 autism.
3 (b) A child adjudicated incompetent due to mental
4 illness may be ordered into a secure program or facility
5 designated by the Department of Children and Family Services
6 for mentally ill children.
7 (c) Whenever a child is placed in a secure residential
8 facility, the department will provide transportation to the
9 secure residential facility for admission and from the secure
10 residential facility upon discharge.
11 (d) The purpose of the treatment or training is the
12 restoration of the child's competency to proceed.
13 (e) The service provider must file a written report
14 with the court pursuant to the applicable Florida Rules of
15 Juvenile Procedure not later than 6 months after the date of
16 commitment, or at the end of any period of extended treatment
17 or training, and at any time the Department of Children and
18 Family Services, through its service provider determines the
19 child has attained competency or no longer meets the criteria
20 for secure placement, or at such shorter intervals as ordered
21 by the court. A copy of a written report evaluating the
22 child's competency must be filed by the provider with the
23 court and with the state attorney, the child's attorney, the
24 department, and the Department of Children and Family
25 Services.
26 (5)
27 (b) Whenever the provider files a report with the
28 court informing the court that the child will never become
29 competent to proceed, the Department of Children and Family
30 Services will develop a discharge plan for the child prior to
31 any hearing determining whether the child will ever become
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1 competent to proceed and send the. The Department of Children
2 and Family Services must send the proposed discharge plan to
3 the court, the state attorney, the child's attorney, and the
4 attorneys representing the Department of Juvenile Justice. The
5 provider will continue to provide services to the child until
6 the court issues the order finding the child will never become
7 competent to proceed.
8 (6)(a) If a child is determined to have mental
9 illness, mental retardation, or autism be mentally ill or
10 retarded and is found to be incompetent to proceed but does
11 not meet the criteria set forth in subsection (3), the court
12 shall commit the child to the Department of Children and
13 Family Services and shall order the Department of Children and
14 Family Services to provide appropriate treatment and training
15 in the community. The purpose of the treatment or training is
16 the restoration of the child's competency to proceed.
17 Section 25. Paragraph (b) of subsection (14) of
18 section 287.057, Florida Statutes, is amended to read:
19 287.057 Procurement of commodities or contractual
20 services.--
21 (14)
22 (b) Notwithstanding paragraph (a), the Department of
23 Children and Family Services may enter into agreements, not to
24 exceed 20 years, with a private provider to finance, design,
25 and construct a forensic treatment facility, as defined in s.
26 916.106(10) s. 916.106(8), of at least 200 beds and to operate
27 all aspects of daily operations within the forensic treatment
28 facility. The selected contractor is authorized to sponsor the
29 issuance of tax-exempt certificates of participation or other
30 securities to finance the project, and the state is authorized
31
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1 to enter into a lease-purchase agreement for the forensic
2 treatment facility. This paragraph expires July 1, 2006.
3 Section 26. Paragraph (r) of subsection (3) of section
4 408.036, Florida Statutes, is amended to read:
5 408.036 Projects subject to review; exemptions.--
6 (3) EXEMPTIONS.--Upon request, the following projects
7 are subject to exemption from the provisions of subsection
8 (1):
9 (r) For beds in state mental health treatment
10 facilities operated under s. 394.455(30) and state mental
11 health forensic facilities operated under chapter 916 s.
12 916.106(8).
13 Section 27. Paragraph (a) of subsection (4) of section
14 943.0585, Florida Statutes, is amended to read:
15 943.0585 Court-ordered expunction of criminal history
16 records.--The courts of this state have jurisdiction over
17 their own procedures, including the maintenance, expunction,
18 and correction of judicial records containing criminal history
19 information to the extent such procedures are not inconsistent
20 with the conditions, responsibilities, and duties established
21 by this section. Any court of competent jurisdiction may order
22 a criminal justice agency to expunge the criminal history
23 record of a minor or an adult who complies with the
24 requirements of this section. The court shall not order a
25 criminal justice agency to expunge a criminal history record
26 until the person seeking to expunge a criminal history record
27 has applied for and received a certificate of eligibility for
28 expunction pursuant to subsection (2). A criminal history
29 record that relates to a violation of s. 393.135, s. 394.4593,
30 s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 817.034, s.
31 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,
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1 s. 847.0145, s. 893.135, s. 916.1075, or a violation
2 enumerated in s. 907.041 may not be expunged, without regard
3 to whether adjudication was withheld, if the defendant was
4 found guilty of or pled guilty or nolo contendere to the
5 offense, or if the defendant, as a minor, was found to have
6 committed, or pled guilty or nolo contendere to committing,
7 the offense as a delinquent act. The court may only order
8 expunction of a criminal history record pertaining to one
9 arrest or one incident of alleged criminal activity, except as
10 provided in this section. The court may, at its sole
11 discretion, order the expunction of a criminal history record
12 pertaining to more than one arrest if the additional arrests
13 directly relate to the original arrest. If the court intends
14 to order the expunction of records pertaining to such
15 additional arrests, such intent must be specified in the
16 order. A criminal justice agency may not expunge any record
17 pertaining to such additional arrests if the order to expunge
18 does not articulate the intention of the court to expunge a
19 record pertaining to more than one arrest. This section does
20 not prevent the court from ordering the expunction of only a
21 portion of a criminal history record pertaining to one arrest
22 or one incident of alleged criminal activity. Notwithstanding
23 any law to the contrary, a criminal justice agency may comply
24 with laws, court orders, and official requests of other
25 jurisdictions relating to expunction, correction, or
26 confidential handling of criminal history records or
27 information derived therefrom. This section does not confer
28 any right to the expunction of any criminal history record,
29 and any request for expunction of a criminal history record
30 may be denied at the sole discretion of the court.
31
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1 (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any
2 criminal history record of a minor or an adult which is
3 ordered expunged by a court of competent jurisdiction pursuant
4 to this section must be physically destroyed or obliterated by
5 any criminal justice agency having custody of such record;
6 except that any criminal history record in the custody of the
7 department must be retained in all cases. A criminal history
8 record ordered expunged that is retained by the department is
9 confidential and exempt from the provisions of s. 119.07(1)
10 and s. 24(a), Art. I of the State Constitution and not
11 available to any person or entity except upon order of a court
12 of competent jurisdiction. A criminal justice agency may
13 retain a notation indicating compliance with an order to
14 expunge.
15 (a) The person who is the subject of a criminal
16 history record that is expunged under this section or under
17 other provisions of law, including former s. 893.14, former s.
18 901.33, and former s. 943.058, may lawfully deny or fail to
19 acknowledge the arrests covered by the expunged record, except
20 when the subject of the record:
21 1. Is a candidate for employment with a criminal
22 justice agency;
23 2. Is a defendant in a criminal prosecution;
24 3. Concurrently or subsequently petitions for relief
25 under this section or s. 943.059;
26 4. Is a candidate for admission to The Florida Bar;
27 5. Is seeking to be employed or licensed by or to
28 contract with the Department of Children and Family Services
29 or the Department of Juvenile Justice or to be employed or
30 used by such contractor or licensee in a sensitive position
31 having direct contact with children, the developmentally
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1 disabled, the aged, or the elderly as provided in s.
2 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
3 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4),
4 chapter 916 s. 916.106(10) and (13), s. 985.407, or chapter
5 400; or
6 6. Is seeking to be employed or licensed by the
7 Department of Education, any district school board, any
8 university laboratory school, any charter school, any private
9 or parochial school, or any local governmental entity that
10 licenses child care facilities.
11 Section 28. Paragraph (a) of subsection (4) of section
12 943.059, Florida Statutes, is amended to read:
13 943.059 Court-ordered sealing of criminal history
14 records.--The courts of this state shall continue to have
15 jurisdiction over their own procedures, including the
16 maintenance, sealing, and correction of judicial records
17 containing criminal history information to the extent such
18 procedures are not inconsistent with the conditions,
19 responsibilities, and duties established by this section. Any
20 court of competent jurisdiction may order a criminal justice
21 agency to seal the criminal history record of a minor or an
22 adult who complies with the requirements of this section. The
23 court shall not order a criminal justice agency to seal a
24 criminal history record until the person seeking to seal a
25 criminal history record has applied for and received a
26 certificate of eligibility for sealing pursuant to subsection
27 (2). A criminal history record that relates to a violation of
28 s. 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03,
29 s. 800.04, s. 817.034, s. 825.1025, s. 827.071, chapter 839,
30 s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
31 916.1075, or a violation enumerated in s. 907.041 may not be
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1 sealed, without regard to whether adjudication was withheld,
2 if the defendant was found guilty of or pled guilty or nolo
3 contendere to the offense, or if the defendant, as a minor,
4 was found to have committed or pled guilty or nolo contendere
5 to committing the offense as a delinquent act. The court may
6 only order sealing of a criminal history record pertaining to
7 one arrest or one incident of alleged criminal activity,
8 except as provided in this section. The court may, at its sole
9 discretion, order the sealing of a criminal history record
10 pertaining to more than one arrest if the additional arrests
11 directly relate to the original arrest. If the court intends
12 to order the sealing of records pertaining to such additional
13 arrests, such intent must be specified in the order. A
14 criminal justice agency may not seal any record pertaining to
15 such additional arrests if the order to seal does not
16 articulate the intention of the court to seal records
17 pertaining to more than one arrest. This section does not
18 prevent the court from ordering the sealing of only a portion
19 of a criminal history record pertaining to one arrest or one
20 incident of alleged criminal activity. Notwithstanding any law
21 to the contrary, a criminal justice agency may comply with
22 laws, court orders, and official requests of other
23 jurisdictions relating to sealing, correction, or confidential
24 handling of criminal history records or information derived
25 therefrom. This section does not confer any right to the
26 sealing of any criminal history record, and any request for
27 sealing a criminal history record may be denied at the sole
28 discretion of the court.
29 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A
30 criminal history record of a minor or an adult which is
31 ordered sealed by a court of competent jurisdiction pursuant
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1 to this section is confidential and exempt from the provisions
2 of s. 119.07(1) and s. 24(a), Art. I of the State Constitution
3 and is available only to the person who is the subject of the
4 record, to the subject's attorney, to criminal justice
5 agencies for their respective criminal justice purposes, or to
6 those entities set forth in subparagraphs (a)1., 4., 5., and
7 6. for their respective licensing and employment purposes.
8 (a) The subject of a criminal history record sealed
9 under this section or under other provisions of law, including
10 former s. 893.14, former s. 901.33, and former s. 943.058, may
11 lawfully deny or fail to acknowledge the arrests covered by
12 the sealed record, except when the subject of the record:
13 1. Is a candidate for employment with a criminal
14 justice agency;
15 2. Is a defendant in a criminal prosecution;
16 3. Concurrently or subsequently petitions for relief
17 under this section or s. 943.0585;
18 4. Is a candidate for admission to The Florida Bar;
19 5. Is seeking to be employed or licensed by or to
20 contract with the Department of Children and Family Services
21 or the Department of Juvenile Justice or to be employed or
22 used by such contractor or licensee in a sensitive position
23 having direct contact with children, the developmentally
24 disabled, the aged, or the elderly as provided in s.
25 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
26 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.
27 415.103, chapter 916 s. 916.106(10) and (13), s. 985.407, or
28 chapter 400; or
29 6. Is seeking to be employed or licensed by the
30 Department of Education, any district school board, any
31 university laboratory school, any charter school, any private
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1 or parochial school, or any local governmental entity that
2 licenses child care facilities.
3 Section 29. This act shall take effect upon becoming a
4 law.
5
6 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
7 Senate Bill 2010
8
9 Restores a requirement that restrictions on a client's right
to communicate be reviewed every seven days.
10
Adds definitions for "restraint" and "seclusion," provides
11 legislative intent regarding their use, and requires the
Agency for Persons with Disabilities and the Department of
12 Children and Family Services to adopt rules regarding their
use in forensic facilities.
13
Restores references to specific Rules of Criminal Procedure
14 regarding forensic commitments.
15 Restores a requirement that the Inspectors General of the
Agency for Persons with Disabilities and the Department of
16 Children and Family Services notify the state attorney of
sexual misconduct by employees.
17
Reinstates current law which provides that sexual misconduct
18 requires that the perpetrator must have knowledge that an
individual is a forensic client.
19
20
21
22
23
24
25
26
27
28
29
30
31
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