Senate Bill sb2622

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    Florida Senate - 2006                                  SB 2622

    By Senator Dockery





    15-1473A-06

  1                      A bill to be entitled

  2         An act relating to violent felony offenders of

  3         special concern; creating the Anti-Murder Act;

  4         creating s. 903.0351, F.S.; denying bail or any

  5         form of pretrial release to violent felony

  6         offenders of special concern under certain

  7         circumstances; amending s. 948.06, F.S.;

  8         providing definitions; requiring that a violent

  9         felony offender of special concern remain in

10         custody pending a hearing on the probation or

11         community control violation; providing for the

12         hearing to determine the nature and probability

13         of any danger that the violent felony offender

14         of special concern poses to the community

15         before release of the violator following a

16         violation of probation or community control;

17         providing criteria to determine the danger

18         posed by a violent felony offender of special

19         concern; amending s. 921.0024, F.S.; revising

20         computations under the Criminal Punishment Code

21         to provide additional points for a community

22         sanction violation when a community sanction

23         violation is committed by a violent felony

24         offender of special concern; reenacting ss.

25         948.012(2)(b), 948.10(9), and 958.14, F.S.,

26         relating to split sentence of probation or

27         community control and imprisonment, community

28         control programs, and violation of probation or

29         community control program, respectively, to

30         incorporate the amendment to s. 948.06, F.S.,

31  

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    Florida Senate - 2006                                  SB 2622
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 1         in references thereto; providing an effective

 2         date.

 3  

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

 5  

 6         Section 1.  This act may be cited as the "Anti-Murder

 7  Act."

 8         Section 2.  Section 903.0351, Florida Statutes, is

 9  created to read:

10         903.0351  Violent felony offenders of special concern;

11  bail hearing required.--A violent felony offender of special

12  concern, as defined in s. 948.06, who has been arrested for an

13  alleged violation of probation or community control may not be

14  granted bail or any form of pretrial release before the

15  resolution of the hearing on the violation of probation or

16  community control unless the charge or arrest is based solely

17  on the offender's failure to pay costs, fines, or restitution.

18         Section 3.  Subsection (4) of section 948.06, Florida

19  Statutes, is amended, and subsection (8) is added to that

20  section, to read:

21         948.06  Violation of probation or community control;

22  revocation; modification; continuance; failure to pay

23  restitution or cost of supervision.--

24         (4)  Notwithstanding any other provision of this

25  section, a probationer or an offender in community control who

26  is arrested for violating his or her probation or community

27  control in a material respect may be taken before the court in

28  the county or circuit in which the probationer or offender was

29  arrested. That court shall advise him or her of the such

30  charge of a violation and, if such charge is admitted, shall

31  cause him or her to be brought before the court that which

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    Florida Senate - 2006                                  SB 2622
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 1  granted the probation or community control. If the such

 2  violation is not admitted by the probationer or offender, the

 3  court may commit him or her or release him or her with or

 4  without bail to await further hearing. However, if the

 5  probationer or offender is under supervision for any criminal

 6  offense proscribed in chapter 794, s. 800.04(4), (5), (6), s.

 7  827.071, or s. 847.0145, or is a registered sexual predator or

 8  a registered sexual offender, or is under supervision for a

 9  criminal offense for which he or she would meet the

10  registration criteria in s. 775.21, s. 943.0435, or s. 944.607

11  but for the effective date of those sections, the court must

12  make a finding that the probationer or offender is not a

13  danger to the public prior to release with or without bail. In

14  determining the danger posed by the offender's or

15  probationer's release, the court may consider the nature and

16  circumstances of the violation and any new offenses charged;

17  the offender's or probationer's past and present conduct,

18  including convictions of crimes; any record of arrests without

19  conviction for crimes involving violence or sexual crimes; any

20  other evidence of allegations of unlawful sexual conduct or

21  the use of violence by the offender or probationer; the

22  offender's or probationer's family ties, length of residence

23  in the community, employment history, and mental condition;

24  his or her history and conduct during the probation or

25  community control supervision from which the violation arises

26  and any other previous supervisions, including disciplinary

27  records of previous incarcerations; the likelihood that the

28  offender or probationer will engage again in a criminal course

29  of conduct; the weight of the evidence against the offender or

30  probationer; and any other facts the court considers relevant.

31  The court, as soon as is practicable, shall give the

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    Florida Senate - 2006                                  SB 2622
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 1  probationer or offender an opportunity to be fully heard on

 2  his or her behalf in person or by counsel. After the such

 3  hearing, the court shall make findings of fact and forward the

 4  findings to the court that which granted the probation or

 5  community control and to the probationer or offender or his or

 6  her attorney. The findings of fact by the hearing court are

 7  binding on the court that which granted the probation or

 8  community control. Upon the probationer or offender being

 9  brought before it, the court that which granted the probation

10  or community control may revoke, modify, or continue the

11  probation or community control or may place the probationer

12  into community control as provided in this section. However,

13  if any violation other than a failure to pay costs, fines, or

14  restitution is alleged to have been committed by a violent

15  felony offender of special concern, as defined in subsection

16  (8), the probationer or offender may not be released and may

17  not be admitted to bail but shall be brought before the court

18  that granted the probation or community control.

19         (8)(a)  In addition to the provisions of subsections

20  (1)-(7), this subsection provides further requirements

21  regarding a probationer or offender in community control who

22  is a violent felony offender of special concern. The

23  provisions of this subsection shall control over any

24  conflicting provision in subsections (1)-(7).

25         (b)  For purposes of this subsection and ss. 903.0351

26  and 921.0024, the term:

27         1.  "Violent felony offender of special concern" means

28  a person who is on probation or community control:

29         a.  For the commission of a qualifying offense

30  committed on or after July 1, 2006;

31  

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    Florida Senate - 2006                                  SB 2622
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 1         b.  For any offense committed on or after July 1, 2006,

 2  and who has previously been convicted of or had adjudication

 3  withheld for a qualifying offense;

 4         c.  For any offense committed on or after July 1, 2006,

 5  and who is found to have violated that probation or community

 6  control by committing a qualifying offense;

 7         d.  And has been previously found by a court to be a

 8  habitual violent felony offender as defined in s.

 9  775.084(1)(b) and has committed a qualifying offense on or

10  after July 1, 2006;

11         e.  And has been previously found by a court to be a

12  three-time violent felony offender as defined in s.

13  775.084(1)(c) and has committed a qualifying offense on or

14  after July 1, 2006; or

15         f.  And has been previously found by a court to be a

16  sexual predator under s. 775.21 and has committed a qualifying

17  offense on or after July 1, 2006.

18         2.  "Qualifying offense" means any of the following:

19         a.  Kidnapping under s. 787.01, false imprisonment of a

20  child younger than 13 years of age under s. 787.02(3), or

21  luring or enticing a child under s. 787.025;

22         b.  Murder or attempted murder under s. 782.04,

23  attempted felony murder under s. 782.051, or manslaughter

24  under s. 782.07;

25         c.  Aggravated battery or attempted aggravated battery

26  under s. 784.045;

27         d.  Sexual battery or attempted sexual battery under s.

28  794.011(2), (3), or (4);

29         e.  Lewd or lascivious battery or attempted lewd or

30  lascivious battery under s. 800.04(4) or lewd or lascivious

31  molestation under s. 800.04(5)(b);

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    Florida Senate - 2006                                  SB 2622
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 1         f.  Robbery or attempted robbery under s. 812.13,

 2  carjacking under s. 812.133, or home invasion robbery under s.

 3  812.135;

 4         g.  Lewd or lascivious offense upon or in the presence

 5  of an elderly or disabled person under s. 825.1025;

 6         h.  Sexual performance by a child or attempted sexual

 7  performance by a child under s. 827.071;

 8         i.  Computer pornography under s. 847.0135(2) or (3),

 9  transmission of child pornography under s. 847.0137, or

10  selling or buying of a minor under s. 847.0145;

11         j.  Poisoning food or water under s. 859.01;

12         k.  Abuse of a dead human body under s. 872.06;

13         l.  Any burglary offense or attempted burglary offense

14  that is a first-degree or second-degree felony, or any

15  attempted burglary offense, under s. 810.02(2) or (3);

16         m.  Arson, or attempted arson, under s. 806.01(1);

17         n.  Aggravated assault under s. 784.021;

18         o.  Aggravated stalking under s. 784.048(3), (4), (5),

19  or (7);

20         p.  Airplane piracy under s. 860.16;

21         q.  Unlawful throwing, placing, or discharging of a

22  destructive device or bomb under s. 790.161(2), (3), or (4);

23         r.  Treason under s. 876.32; or

24         s.  Any offense in another jurisdiction which would be

25  an offense described in sub-subparagraphs a.-r. if that

26  offense had been committed in this state.

27         (c)  In the case of an alleged violation of probation

28  or community control by a violent felony offender of special

29  concern, on any ground other than a failure to pay costs,

30  fines, or restitution, the violent felony offender of special

31  concern shall remain in custody pending the resolution of the

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    Florida Senate - 2006                                  SB 2622
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 1  violation of probation or community control. The court may not

 2  dismiss the violation of probation or community control which

 3  is pending against a violent felony offender of special

 4  concern without holding a recorded hearing at which the state

 5  and the offender are represented.

 6         (d)  If the court, after conducting the hearing,

 7  determines that a violent felony offender of special concern

 8  has violated any nonmonetary term of probation or community

 9  control, the court must determine whether to revoke the

10  offender's probation or community control.

11         1.  If the court determines, by a preponderance of the

12  evidence, that a violent felony offender of special concern

13  poses a danger to the community, the court shall revoke

14  probation or community control and sentence the violent felony

15  offender of special concern as provided under s. 921.0024 up

16  to the statutory maximum.

17         2.  In determining the danger to the community posed by

18  the offender's release, the court may consider the nature and

19  circumstances of the violation and any new offenses charged;

20  the offender's past and present conduct, including convictions

21  of crimes; the offender's family ties, length of residence in

22  the community, employment history, and mental condition; the

23  offender's amenability to nonincarcerative sanctions based on

24  his or her history and conduct during the probation or

25  community control supervision from which the violation hearing

26  arises and on any other previous supervisions, including

27  disciplinary records of previous incarcerations; the

28  likelihood that the offender will engage again in a criminal

29  course of conduct; the weight of the evidence against the

30  offender; and any other facts the court considers relevant.

31  

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    Florida Senate - 2006                                  SB 2622
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 1         3.  The court must enter a written order in support of

 2  its findings.

 3         Section 4.  Paragraph (b) of subsection (1) of section

 4  921.0024, Florida Statutes, is amended to read:

 5         921.0024  Criminal Punishment Code; worksheet

 6  computations; scoresheets.--

 7         (1)

 8  

 9                       (b)  WORKSHEET KEY:

10  

11  Legal status points are assessed when any form of legal status

12  existed at the time the offender committed an offense before

13  the court for sentencing. Four (4) sentence points are

14  assessed for an offender's legal status.

15  

16  Community sanction violation points are assessed when a

17  community sanction violation is before the court for

18  sentencing.  Six (6) sentence points are assessed for each

19  community sanction violation, and each successive community

20  sanction violation unless any of the following apply:;

21  however,

22         1.  If the community sanction violation includes a new

23  felony conviction before the sentencing court, twelve (12)

24  community sanction violation points are assessed for the such

25  violation, and for each successive community sanction

26  violation involving a new felony conviction.

27         2.  If the community sanction violation is committed by

28  a violent felony offender of special concern as defined in s.

29  948.06(8)(b) but does not include a new felony conviction,

30  nine (9) community sanction violation points are assessed for

31  

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    Florida Senate - 2006                                  SB 2622
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 1  the violation and for each successive community sanction

 2  violation not involving a new felony conviction.

 3         3.  If the community sanction violation is committed by

 4  a violent felony offender of special concern as defined in s.

 5  948.06(8)(b) and includes a new felony conviction before the

 6  sentencing court, eighteen (18) community sanction violation

 7  points are assessed for the violation, and for each successive

 8  community sanction violation involving a new felony

 9  conviction.

10  

11  Multiple counts of community sanction violations before the

12  sentencing court shall not be a basis for multiplying the

13  assessment of community sanction violation points.

14  

15  Prior serious felony points: If the offender has a primary

16  offense or any additional offense ranked in level 8, level 9,

17  or level 10, and one or more prior serious felonies, a single

18  assessment of 30 points shall be added. For purposes of this

19  section, a prior serious felony is an offense in the

20  offender's prior record that is ranked in level 8, level 9, or

21  level 10 under s. 921.0022 or s. 921.0023 and for which the

22  offender is serving a sentence of confinement, supervision, or

23  other sanction or for which the offender's date of release

24  from confinement, supervision, or other sanction, whichever is

25  later, is within 3 years before the date the primary offense

26  or any additional offense was committed.

27  

28  Prior capital felony points:  If the offender has one or more

29  prior capital felonies in the offender's criminal record,

30  points shall be added to the subtotal sentence points of the

31  offender equal to twice the number of points the offender

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 1  receives for the primary offense and any additional offense. A

 2  prior capital felony in the offender's criminal record is a

 3  previous capital felony offense for which the offender has

 4  entered a plea of nolo contendere or guilty or has been found

 5  guilty; or a felony in another jurisdiction which is a capital

 6  felony in that jurisdiction, or would be a capital felony if

 7  the offense were committed in this state.

 8  

 9  Possession of a firearm, semiautomatic firearm, or machine

10  gun:  If the offender is convicted of committing or attempting

11  to commit any felony other than those enumerated in s.

12  775.087(2) while having in his or her possession: a firearm as

13  defined in s. 790.001(6), an additional 18 sentence points are

14  assessed; or if the offender is convicted of committing or

15  attempting to commit any felony other than those enumerated in

16  s. 775.087(3) while having in his or her possession a

17  semiautomatic firearm as defined in s. 775.087(3) or a machine

18  gun as defined in s. 790.001(9), an additional 25 sentence

19  points are assessed.

20  

21  Sentencing multipliers:

22  

23  Drug trafficking: If the primary offense is drug trafficking

24  under s. 893.135, the subtotal sentence points are multiplied,

25  at the discretion of the court, for a level 7 or level 8

26  offense, by 1.5.  The state attorney may move the sentencing

27  court to reduce or suspend the sentence of a person convicted

28  of a level 7 or level 8 offense, if the offender provides

29  substantial assistance as described in s. 893.135(4).

30  

31  

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 1  Law enforcement protection: If the primary offense is a

 2  violation of the Law Enforcement Protection Act under s.

 3  775.0823(2), the subtotal sentence points are multiplied by

 4  2.5.  If the primary offense is a violation of s. 775.0823(3),

 5  (4), (5), (6), (7), or (8), the subtotal sentence points are

 6  multiplied by 2.0. If the primary offense is a violation of s.

 7  784.07(3) or s. 775.0875(1), or of the Law Enforcement

 8  Protection Act under s. 775.0823(9) or (10), the subtotal

 9  sentence points are multiplied by 1.5.

10  

11  Grand theft of a motor vehicle: If the primary offense is

12  grand theft of the third degree involving a motor vehicle and

13  in the offender's prior record, there are three or more grand

14  thefts of the third degree involving a motor vehicle, the

15  subtotal sentence points are multiplied by 1.5.

16  

17  Offense related to a criminal street gang: If the offender is

18  convicted of the primary offense and committed that offense

19  for the purpose of benefiting, promoting, or furthering the

20  interests of a criminal street gang as prohibited under s.

21  874.04, the subtotal sentence points are multiplied by 1.5.

22  

23  Domestic violence in the presence of a child: If the offender

24  is convicted of the primary offense and the primary offense is

25  a crime of domestic violence, as defined in s. 741.28, which

26  was committed in the presence of a child under 16 years of age

27  who is a family or household member as defined in s. 741.28(3)

28  with the victim or perpetrator, the subtotal sentence points

29  are multiplied by 1.5.

30         Section 5.  For the purpose of incorporating the

31  amendment to section 948.06, Florida Statutes, in a reference

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 1  thereto, paragraph (b) of subsection (2) of section 948.012,

 2  Florida Statutes, is reenacted to read:

 3         948.012  Split sentence of probation or community

 4  control and imprisonment.--

 5         (2)  The court may also impose a split sentence whereby

 6  the defendant is sentenced to a term of probation which may be

 7  followed by a period of incarceration or, with respect to a

 8  felony, into community control, as follows:

 9         (b)  If the offender does not meet the terms and

10  conditions of probation or community control, the court may

11  revoke, modify, or continue the probation or community control

12  as provided in s. 948.06. If the probation or community

13  control is revoked, the court may impose any sentence that it

14  could have imposed at the time the offender was placed on

15  probation or community control. The court may not provide

16  credit for time served for any portion of a probation or

17  community control term toward a subsequent term of probation

18  or community control. However, the court may not impose a

19  subsequent term of probation or community control which, when

20  combined with any amount of time served on preceding terms of

21  probation or community control for offenses pending before the

22  court for sentencing, would exceed the maximum penalty

23  allowable as provided in s. 775.082. Such term of

24  incarceration shall be served under applicable law or county

25  ordinance governing service of sentences in state or county

26  jurisdiction. This paragraph does not prohibit any other

27  sanction provided by law.

28         Section 6.  For the purpose of incorporating the

29  amendment to section 948.06, Florida Statutes, in a reference

30  thereto, subsection (9) of section 948.10, Florida Statutes,

31  is reenacted to read:

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 1         948.10  Community control programs.--

 2         (9)  Procedures governing violations of community

 3  control shall be the same as those described in s. 948.06 with

 4  respect to probation.

 5         Section 7.  For the purpose of incorporating the

 6  amendment to section 948.06, Florida Statutes, in a reference

 7  thereto, section 958.14, Florida Statutes, is reenacted to

 8  read:

 9         958.14  Violation of probation or community control

10  program.--A violation or alleged violation of probation or the

11  terms of a community control program shall subject the

12  youthful offender to the provisions of s. 948.06. However, no

13  youthful offender shall be committed to the custody of the

14  department for a substantive violation for a period longer

15  than the maximum sentence for the offense for which he or she

16  was found guilty, with credit for time served while

17  incarcerated, or for a technical or nonsubstantive violation

18  for a period longer than 6 years or for a period longer than

19  the maximum sentence for the offense for which he or she was

20  found guilty, whichever is less, with credit for time served

21  while incarcerated.

22         Section 8.  This act shall take effect July 1, 2006.

23  

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25  

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

 2                          SENATE SUMMARY

 3    Denies bail or any form of pretrial release to violent
      felony offenders of special concern under certain
 4    circumstances. Requires that a violent felony offender of
      special concern remain in custody pending the hearing on
 5    the probation or community control violation. Provides
      for hearings to determine the nature and probability of
 6    any danger that violent felony offenders of special
      concern pose to the community before release of a
 7    violator following violations of probation or community
      control. Provides criteria to determine the danger posed
 8    by a violent felony offender of special concern. Revises
      the Criminal Punishment Code to provide additional points
 9    for a community sanction violation when a community
      sanction violation is committed by a violent felony
10    offender of special concern.

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