Senate Bill sb0640c1
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Florida Senate - 2006 CS for SB 640
By the Committee on Judiciary; and Senators Miller and Lynn
590-1910-06
1 A bill to be entitled
2 An act relating to luring or enticing a child;
3 amending s. 787.025, F.S.; defining the term
4 "convicted"; providing that a person 18 years
5 of age or older who intentionally lures or
6 entices, or attempts to lure or entice, a child
7 under the age of 12 into a structure, dwelling,
8 or conveyance for other than a lawful purpose
9 commits a misdemeanor of the first degree;
10 providing criminal penalties; providing that a
11 person who has previously been convicted of
12 this offense and who intentionally lures or
13 entices, or attempts to lure or entice, a child
14 under the age of 12 into a structure, dwelling,
15 or conveyance for other than a lawful purpose
16 commits a felony of the third degree; providing
17 criminal penalties; deleting a presumption
18 regarding what constitutes other than a lawful
19 purpose; amending ss. 775.21, 794.0115,
20 943.0435, 944.606, 944.607, and 948.32, F.S.;
21 conforming cross-references; amending s.
22 901.15, F.S.; authorizing a law enforcement
23 officer to arrest a person without a warrant if
24 there is probable cause to believe that the
25 person is intentionally luring or enticing, or
26 attempting to lure or entice, a child under the
27 age of 12 into a structure, dwelling, or
28 conveyance for other than a lawful purpose;
29 providing an effective date.
30
31 Be It Enacted by the Legislature of the State of Florida:
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1 Section 1. Section 787.025, Florida Statutes, is
2 amended to read:
3 787.025 Luring or enticing a child.--
4 (1) As used in this section, the term:
5 (a) "Structure" means a building of any kind, either
6 temporary or permanent, which has a roof over it, together
7 with the curtilage thereof.
8 (b) "Dwelling" means a building or conveyance of any
9 kind, either temporary or permanent, mobile or immobile, which
10 has a roof over it and is designed to be occupied by people
11 lodging together therein at night, together with the curtilage
12 thereof.
13 (c) "Conveyance" means any motor vehicle, ship,
14 vessel, railroad car, trailer, aircraft, or sleeping car.
15 (d) "Convicted" means a determination of guilt which
16 is the result of a trial or the entry of a plea of guilty or
17 nolo contendere, regardless of whether adjudication is
18 withheld.
19 (2)(a) A person 18 years of age or older who
20 intentionally lures or entices, or attempts to lure or entice,
21 a child under the age of 12 into a structure, dwelling, or
22 conveyance for other than a lawful purpose commits a
23 misdemeanor of the first degree, punishable as provided in s.
24 775.082 or s. 775.083.
25 (b) A person 18 years of age or older who, having been
26 previously convicted of a violation of paragraph (a),
27 intentionally lures or entices, or attempts to lure or entice,
28 a child under the age of 12 into a structure, dwelling, or
29 conveyance for other than a lawful purpose commits a felony of
30 the third degree, punishable as provided in s. 775.082, s.
31 775.083, or s. 775.084.
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1 (c) A person 18 years of age or older over the age of
2 18 who, having been previously convicted of a violation of
3 chapter 794 or s. 800.04, or a violation of a similar law of
4 another jurisdiction, intentionally lures or entices, or
5 attempts to lure or entice, a child under the age of 12 into a
6 structure, dwelling, or conveyance for other than a lawful
7 purpose commits a felony of the third degree, punishable as
8 provided in s. 775.082, s. 775.083, or s. 775.084.
9 (b) For purposes of this section, the luring or
10 enticing, or attempted luring or enticing, of a child under
11 the age of 12 into a structure, dwelling, or conveyance
12 without the consent of the child's parent or legal guardian
13 shall be prima facie evidence of other than a lawful purpose.
14 (3) It is an affirmative defense to a prosecution
15 under this section that:
16 (a) The person reasonably believed that his or her
17 action was necessary to prevent the child from being seriously
18 injured.
19 (b) The person lured or enticed, or attempted to lure
20 or entice, the child under the age of 12 into a structure,
21 dwelling, or conveyance for a lawful purpose.
22 (c) The person's actions were reasonable under the
23 circumstances and the defendant did not have any intent to
24 harm the health, safety, or welfare of the child.
25 Section 2. Subsections (4) and (10) of section 775.21,
26 Florida Statutes, are amended to read:
27 775.21 The Florida Sexual Predators Act.--
28 (4) SEXUAL PREDATOR CRITERIA.--
29 (a) For a current offense committed on or after
30 October 1, 1993, upon conviction, an offender shall be
31 designated as a "sexual predator" under subsection (5), and
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1 subject to registration under subsection (6) and community and
2 public notification under subsection (7) if:
3 1. The felony is:
4 a. A capital, life, or first-degree felony violation,
5 or any attempt thereof, of s. 787.01 or s. 787.02, where the
6 victim is a minor and the defendant is not the victim's
7 parent, or of chapter 794, s. 800.04, or s. 847.0145, or a
8 violation of a similar law of another jurisdiction; or
9 b. Any felony violation, or any attempt thereof, of s.
10 787.01, s. 787.02, or s. 787.025(2)(c) s. 787.025, where the
11 victim is a minor and the defendant is not the victim's
12 parent; chapter 794, excluding ss. 794.011(10) and 794.0235;
13 s. 796.03; s. 800.04; s. 825.1025(2)(b); s. 827.071; or s.
14 847.0145; or a violation of a similar law of another
15 jurisdiction, and the offender has previously been convicted
16 of or found to have committed, or has pled nolo contendere or
17 guilty to, regardless of adjudication, any violation of s.
18 787.01, s. 787.02, or s. 787.025(2)(c) s. 787.025, where the
19 victim is a minor and the defendant is not the victim's
20 parent; s. 794.011(2), (3), (4), (5), or (8); s. 794.05; s.
21 796.03; s. 800.04; s. 825.1025; s. 827.071; s. 847.0133; s.
22 847.0135; or s. 847.0145, or a violation of a similar law of
23 another jurisdiction;
24 2. The offender has not received a pardon for any
25 felony or similar law of another jurisdiction that is
26 necessary for the operation of this paragraph; and
27 3. A conviction of a felony or similar law of another
28 jurisdiction necessary to the operation of this paragraph has
29 not been set aside in any postconviction proceeding.
30 (b) In order to be counted as a prior felony for
31 purposes of this subsection, the felony must have resulted in
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1 a conviction sentenced separately, or an adjudication of
2 delinquency entered separately, prior to the current offense
3 and sentenced or adjudicated separately from any other felony
4 conviction that is to be counted as a prior felony.
5 (c) If an offender has been registered as a sexual
6 predator by the Department of Corrections, the department, or
7 any other law enforcement agency and if:
8 1. The court did not, for whatever reason, make a
9 written finding at the time of sentencing that the offender
10 was a sexual predator; or
11 2. The offender was administratively registered as a
12 sexual predator because the Department of Corrections, the
13 department, or any other law enforcement agency obtained
14 information that indicated that the offender met the criteria
15 for designation as a sexual predator based on a violation of a
16 similar law in another jurisdiction,
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18 the department shall remove that offender from the
19 department's list of sexual predators and, for an offender
20 described under subparagraph 1., shall notify the state
21 attorney who prosecuted the offense that met the criteria for
22 administrative designation as a sexual predator, and, for an
23 offender described under this subparagraph, shall notify the
24 state attorney of the county where the offender establishes or
25 maintains a permanent or temporary residence. The state
26 attorney shall bring the matter to the court's attention in
27 order to establish that the offender meets the criteria for
28 designation as a sexual predator. If the court makes a written
29 finding that the offender is a sexual predator, the offender
30 must be designated as a sexual predator, must register or be
31 registered as a sexual predator with the department as
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1 provided in subsection (6), and is subject to the community
2 and public notification as provided in subsection (7). If the
3 court does not make a written finding that the offender is a
4 sexual predator, the offender may not be designated as a
5 sexual predator with respect to that offense and is not
6 required to register or be registered as a sexual predator
7 with the department.
8 (d) An offender who has been determined to be a
9 sexually violent predator pursuant to a civil commitment
10 proceeding under chapter 394 shall be designated as a "sexual
11 predator" under subsection (5) and subject to registration
12 under subsection (6) and community and public notification
13 under subsection (7).
14 (10) PENALTIES.--
15 (a) Except as otherwise specifically provided, a
16 sexual predator who fails to register; who fails, after
17 registration, to maintain, acquire, or renew a driver's
18 license or identification card; who fails to provide required
19 location information or change-of-name information; who fails
20 to make a required report in connection with vacating a
21 permanent residence; who fails to reregister as required; who
22 fails to respond to any address verification correspondence
23 from the department within 3 weeks of the date of the
24 correspondence; or who otherwise fails, by act or omission, to
25 comply with the requirements of this section, commits a felony
26 of the third degree, punishable as provided in s. 775.082, s.
27 775.083, or s. 775.084.
28 (b) A sexual predator who has been convicted of or
29 found to have committed, or has pled nolo contendere or guilty
30 to, regardless of adjudication, any violation, or attempted
31 violation, of s. 787.01, s. 787.02, or s. 787.025(2)(c) s.
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1 787.025, where the victim is a minor and the defendant is not
2 the victim's parent; s. 794.011(2), (3), (4), (5), or (8); s.
3 794.05; s. 796.03; s. 800.04; s. 827.071; s. 847.0133; or s.
4 847.0145, or a violation of a similar law of another
5 jurisdiction, when the victim of the offense was a minor, and
6 who works, whether for compensation or as a volunteer, at any
7 business, school, day care center, park, playground, or other
8 place where children regularly congregate, commits a felony of
9 the third degree, punishable as provided in s. 775.082, s.
10 775.083, or s. 775.084.
11 (c) Any person who misuses public records information
12 relating to a sexual predator, as defined in this section, or
13 a sexual offender, as defined in s. 943.0435 or s. 944.607, to
14 secure a payment from such a predator or offender; who
15 knowingly distributes or publishes false information relating
16 to such a predator or offender which the person misrepresents
17 as being public records information; or who materially alters
18 public records information with the intent to misrepresent the
19 information, including documents, summaries of public records
20 information provided by law enforcement agencies, or public
21 records information displayed by law enforcement agencies on
22 websites or provided through other means of communication,
23 commits a misdemeanor of the first degree, punishable as
24 provided in s. 775.082 or s. 775.083.
25 (d) A sexual predator who commits any act or omission
26 in violation of this section may be prosecuted for the act or
27 omission in the county in which the act or omission was
28 committed, the county of the last registered address of the
29 sexual predator, or the county in which the conviction
30 occurred for the offense or offenses that meet the criteria
31 for designating a person as a sexual predator. In addition, a
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1 sexual predator may be prosecuted for any such act or omission
2 in the county in which he or she was designated a sexual
3 predator.
4 (e) An arrest on charges of failure to register, the
5 service of an information or a complaint for a violation of
6 this section, or an arraignment on charges for a violation of
7 this section constitutes actual notice of the duty to register
8 when the predator has been provided and advised of his or her
9 statutory obligation to register under subsection (6). A
10 sexual predator's failure to immediately register as required
11 by this section following such arrest, service, or arraignment
12 constitutes grounds for a subsequent charge of failure to
13 register. A sexual predator charged with the crime of failure
14 to register who asserts, or intends to assert, a lack of
15 notice of the duty to register as a defense to a charge of
16 failure to register shall immediately register as required by
17 this section. A sexual predator who is charged with a
18 subsequent failure to register may not assert the defense of a
19 lack of notice of the duty to register.
20 (f) Registration following such arrest, service, or
21 arraignment is not a defense and does not relieve the sexual
22 predator of criminal liability for the failure to register.
23 (g) Any person who has reason to believe that a sexual
24 predator is not complying, or has not complied, with the
25 requirements of this section and who, with the intent to
26 assist the sexual predator in eluding a law enforcement agency
27 that is seeking to find the sexual predator to question the
28 sexual predator about, or to arrest the sexual predator for,
29 his or her noncompliance with the requirements of this
30 section:
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1 1. Withholds information from, or does not notify, the
2 law enforcement agency about the sexual predator's
3 noncompliance with the requirements of this section, and, if
4 known, the whereabouts of the sexual predator;
5 2. Harbors, or attempts to harbor, or assists another
6 person in harboring or attempting to harbor, the sexual
7 predator;
8 3. Conceals or attempts to conceal, or assists another
9 person in concealing or attempting to conceal, the sexual
10 predator; or
11 4. Provides information to the law enforcement agency
12 regarding the sexual predator which the person knows to be
13 false information,
14
15 commits a felony of the third degree, punishable as provided
16 in s. 775.082, s. 775.083, or s. 775.084. This paragraph does
17 not apply if the sexual predator is incarcerated in or is in
18 the custody of a state correctional facility, a private
19 correctional facility, a local jail, or a federal correctional
20 facility.
21 Section 3. Subsection (2) of section 794.0115, Florida
22 Statutes, is amended to read:
23 794.0115 Dangerous sexual felony offender; mandatory
24 sentencing.--
25 (2) Any person who is convicted of a violation of s.
26 787.025(2)(c) s. 787.025; s. 794.011(2), (3), (4), (5), or
27 (8); s. 800.04(4) or (5); s. 825.1025(2) or (3); s.
28 827.071(2), (3), or (4); or s. 847.0145; or of any similar
29 offense under a former designation, which offense the person
30 committed when he or she was 18 years of age or older, and the
31 person:
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1 (a) Caused serious personal injury to the victim as a
2 result of the commission of the offense;
3 (b) Used or threatened to use a deadly weapon during
4 the commission of the offense;
5 (c) Victimized more than one person during the course
6 of the criminal episode applicable to the offense;
7 (d) Committed the offense while under the jurisdiction
8 of a court for a felony offense under the laws of this state,
9 for an offense that is a felony in another jurisdiction, or
10 for an offense that would be a felony if that offense were
11 committed in this state; or
12 (e) Has previously been convicted of a violation of s.
13 787.025(2)(c) s. 787.025; s. 794.011(2), (3), (4), (5), or
14 (8); s. 800.04(4) or (5); s. 825.1025(2) or (3); s.
15 827.071(2), (3), or (4); s. 847.0145; of any offense under a
16 former statutory designation which is similar in elements to
17 an offense described in this paragraph; or of any offense that
18 is a felony in another jurisdiction, or would be a felony if
19 that offense were committed in this state, and which is
20 similar in elements to an offense described in this paragraph,
21
22 is a dangerous sexual felony offender, who must be sentenced
23 to a mandatory minimum term of 25 years imprisonment up to,
24 and including, life imprisonment.
25 Section 4. Paragraph (a) of subsection (1) of section
26 943.0435, Florida Statutes, is amended to read:
27 943.0435 Sexual offenders required to register with
28 the department; penalty.--
29 (1) As used in this section, the term:
30 (a) "Sexual offender" means a person who:
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1 1. Has been convicted of committing, or attempting,
2 soliciting, or conspiring to commit, any of the criminal
3 offenses proscribed in the following statutes in this state or
4 similar offenses in another jurisdiction: s. 787.01, s.
5 787.02, or s. 787.025(2)(c) s. 787.025, where the victim is a
6 minor and the defendant is not the victim's parent; chapter
7 794, excluding ss. 794.011(10) and 794.0235; s. 796.03; s.
8 800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135; s.
9 847.0137; s. 847.0138; s. 847.0145; or any similar offense
10 committed in this state which has been redesignated from a
11 former statute number to one of those listed in this
12 subparagraph; and
13 2. Has been released on or after October 1, 1997, from
14 the sanction imposed for any conviction of an offense
15 described in subparagraph 1. For purposes of subparagraph 1.,
16 a sanction imposed in this state or in any other jurisdiction
17 includes, but is not limited to, a fine, probation, community
18 control, parole, conditional release, control release, or
19 incarceration in a state prison, federal prison, private
20 correctional facility, or local detention facility; or
21 3. Establishes or maintains a residence in this state
22 and who has not been designated as a sexual predator by a
23 court of this state but who has been designated as a sexual
24 predator, as a sexually violent predator, or by another sexual
25 offender designation in another state or jurisdiction and was,
26 as a result of such designation, subjected to registration or
27 community or public notification, or both, or would be if the
28 person were a resident of that state or jurisdiction; or
29 4. Establishes or maintains a residence in this state
30 who is in the custody or control of, or under the supervision
31 of, any other state or jurisdiction as a result of a
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1 conviction for committing, or attempting, soliciting, or
2 conspiring to commit, any of the criminal offenses proscribed
3 in the following statutes or similar offense in another
4 jurisdiction: s. 787.01, s. 787.02, or s. 787.025(2)(c) s.
5 787.025, where the victim is a minor and the defendant is not
6 the victim's parent; chapter 794, excluding ss. 794.011(10)
7 and 794.0235; s. 796.03; s. 800.04; s. 825.1025; s. 827.071;
8 s. 847.0133; s. 847.0135; s. 847.0137; s. 847.0138; s.
9 847.0145; or any similar offense committed in this state which
10 has been redesignated from a former statute number to one of
11 those listed in this subparagraph.
12 Section 5. Paragraph (b) of subsection (1) of section
13 944.606, Florida Statutes, is amended to read:
14 944.606 Sexual offenders; notification upon release.--
15 (1) As used in this section:
16 (b) "Sexual offender" means a person who has been
17 convicted of committing, or attempting, soliciting, or
18 conspiring to commit, any of the criminal offenses proscribed
19 in the following statutes in this state or similar offenses in
20 another jurisdiction: s. 787.01, s. 787.02, or s.
21 787.025(2)(c) s. 787.025, where the victim is a minor and the
22 defendant is not the victim's parent; chapter 794, excluding
23 ss. 794.011(10) and 794.0235; s. 796.03; s. 800.04; s.
24 825.1025; s. 827.071; s. 847.0133; s. 847.0135; s. 847.0137;
25 s. 847.0138; s. 847.0145; or any similar offense committed in
26 this state which has been redesignated from a former statute
27 number to one of those listed in this subsection, when the
28 department has received verified information regarding such
29 conviction; an offender's computerized criminal history record
30 is not, in and of itself, verified information.
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1 Section 6. Paragraph (a) of subsection (1) of section
2 944.607, Florida Statutes, is amended to read:
3 944.607 Notification to Department of Law Enforcement
4 of information on sexual offenders.--
5 (1) As used in this section, the term:
6 (a) "Sexual offender" means a person who is in the
7 custody or control of, or under the supervision of, the
8 department or is in the custody of a private correctional
9 facility:
10 1. On or after October 1, 1997, as a result of a
11 conviction for committing, or attempting, soliciting, or
12 conspiring to commit, any of the criminal offenses proscribed
13 in the following statutes in this state or similar offenses in
14 another jurisdiction: s. 787.01, s. 787.02, or s.
15 787.025(2)(c) s. 787.025, where the victim is a minor and the
16 defendant is not the victim's parent; chapter 794, excluding
17 ss. 794.011(10) and 794.0235; s. 796.03; s. 800.04; s.
18 825.1025; s. 827.071; s. 847.0133; s. 847.0135; s. 847.0137;
19 s. 847.0138; s. 847.0145; or any similar offense committed in
20 this state which has been redesignated from a former statute
21 number to one of those listed in this paragraph; or
22 2. Who establishes or maintains a residence in this
23 state and who has not been designated as a sexual predator by
24 a court of this state but who has been designated as a sexual
25 predator, as a sexually violent predator, or by another sexual
26 offender designation in another state or jurisdiction and was,
27 as a result of such designation, subjected to registration or
28 community or public notification, or both, or would be if the
29 person were a resident of that state or jurisdiction.
30 Section 7. Subsection (1) of section 948.32, Florida
31 Statutes, is amended to read:
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1 948.32 Requirements of law enforcement agency upon
2 arrest of persons for certain sex offenses.--
3 (1) When any state or local law enforcement agency
4 investigates or arrests a person for committing, or
5 attempting, soliciting, or conspiring to commit, a violation
6 of s. 787.025(2)(c) s. 787.025, chapter 794, s. 796.03, s.
7 800.04, s. 827.071, s. 847.0133, s. 847.0135, or s. 847.0145,
8 the law enforcement agency shall contact the Department of
9 Corrections to verify whether the person under investigation
10 or under arrest is on probation, community control, parole,
11 conditional release, or control release.
12 Section 8. Subsection (8) of section 901.15, Florida
13 Statutes, is amended to read:
14 901.15 When arrest by officer without warrant is
15 lawful.--A law enforcement officer may arrest a person without
16 a warrant when:
17 (8) There is probable cause to believe that the person
18 has committed child abuse, as defined in s. 827.03, or has
19 violated s. 787.025, relating to luring or enticing a child
20 for unlawful purposes. The decision to arrest does shall not
21 require consent of the victim or consideration of the
22 relationship of the parties. It is the public policy of this
23 state to protect abused children by strongly encouraging the
24 arrest and prosecution of persons who commit child abuse. A
25 law enforcement officer who acts in good faith and exercises
26 due care in making an arrest under this subsection is immune
27 from civil liability that otherwise might result by reason of
28 his or her action.
29 Section 9. This act shall take effect July 1, 2006.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 640
3
4 Clarifies that the qualifying age of a person subject to the
luring or enticing a child statute includes persons 18 years
5 of age by using the language "18 years of age or older" in
place of the existing language "over the age of 18.
6
Moves the new felony luring offense, which requires a prior
7 misdemeanor luring violation, into a separate paragraph for
the purpose of maintaining the original content of the current
8 felony luring offense, which was necessary to preserve the
meaning of certain references to the existing felony offense.
9
Deletes the presumption of what constitutes the "other than a
10 lawful purpose" element of the luring offense which has been
declared unconstitutional by the Florida Supreme Court.
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Conforms the references to the felony luring statute in the
12 Florida Sexual Predators Act.
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