HB 7199

1
A bill to be entitled
2An act relating to forensic treatment and training;
3amending s. 916.105, F.S.; revising legislative intent
4with respect to the treatment or training of defendants
5who have mental illness, mental retardation, or autism and
6are committed to the Agency for Persons with Disabilities;
7providing intent with respect to the use of restraint and
8seclusion; amending s. 916.106, F.S.; providing and
9revising definitions; amending s. 916.107, F.S., relating
10to the rights of forensic clients; conforming provisions
11to the transfer of duties from the Developmental
12Disabilities Program Office within the Department of
13Children and Family Services to the Agency for Persons
14with Disabilities; revising provisions governing the
15involuntary treatment of clients; requiring the
16coordination of services between the department, the
17agency, and the Department of Corrections; amending s.
18916.1075, F.S.; revising certain prohibitions on sexual
19misconduct involving covered persons of the Department of
20Children and Family Services or the Agency for Persons
21with Disabilities; defining the term "covered person";
22requiring that notice of sexual misconduct be provided to
23the inspector general of the agency or department;
24amending s. 916.1081, F.S.; providing that an escape or an
25attempt to escape from a civil or forensic facility
26constitutes a second-degree felony; amending s. 916.1085,
27F.S.; providing for certain prohibitions concerning
28contraband articles to apply to facilities under the
29supervision or control of the Agency for Persons with
30Disabilities; deleting a cross-reference; amending s.
31916.1091, F.S.; authorizing the use of chemical weapons by
32agency personnel; amending s. 916.1093, F.S.; authorizing
33the agency to enter into contracts and adopt rules;
34requiring department and agency rules to address the use
35of restraint and seclusion; providing requirements for
36such rules; amending s. 916.111, F.S.; revising provisions
37governing the training of mental health experts; amending
38s. 916.115, F.S.; requiring that the court appoint experts
39to determine the mental condition of a criminal defendant;
40requiring that the Department of Children and Family
41Services annually provide the courts with a list of
42certain mental health professionals; amending s. 916.12,
43F.S.; revising provisions governing the evaluation of a
44defendant's competence to proceed; amending s. 916.13,
45F.S.; revising conditions under which a defendant may be
46involuntarily committed for treatment; amending s.
47916.145, F.S., relating to dismissal of charges against a
48defendant adjudicated incompetent; conforming provisions
49to changes made by the act; amending s. 916.15, F.S.;
50clarifying that the determination of not guilty by reason
51of insanity is made under a specified Florida Rule of
52Criminal Procedure; amending s. 916.16, F.S.; providing
53for the continuing jurisdiction of the court over a
54defendant involuntarily committed due to mental illness;
55amending s. 916.17, F.S.; clarifying circumstances under
56which the court may order the conditional release of a
57defendant; amending s. 916.301, F.S.; requiring that
58certain evaluations be conducted by certain qualified
59experts; requiring that the Agency for Persons with
60Disabilities provide the court with a list of certain
61available retardation and autism professionals; conforming
62provisions to the transfer of duties from the
63Developmental Disabilities Program Office within the
64Department of Children and Family Services to the agency;
65amending s. 916.3012, F.S.; clarifying provisions
66governing the determination of a defendant's mental
67competence to proceed; amending s. 916.302, F.S., relating
68to the involuntary commitment of a defendant; conforming
69provisions to the transfer of duties from the
70Developmental Disabilities Program Office within the
71Department of Children and Family Services to the agency;
72requiring that the department and agency submit an
73evaluation to the court before the transfer of a defendant
74from one civil or forensic facility to another; amending
75s. 916.3025, F.S.; clarifying that the committing court
76retains jurisdiction over a defendant placed on
77conditional release; providing for the transfer of
78continuing jurisdiction to another court where the
79defendant resides; amending s. 916.303, F.S.; clarifying
80provisions governing the dismissal of charges against a
81defendant found to be incompetent to proceed due to
82retardation or autism; amending s. 916.304, F.S.;
83providing for the conditional release of a defendant to a
84civil facility; amending ss. 921.137 and 985.223, F.S.,
85relating to provisions governing the imposition of the
86death sentence upon a defendant with mental retardation
87and the determination of incompetency in cases involving
88juvenile delinquency; conforming provisions to the
89transfer of duties from the Developmental Disabilities
90Program Office within the Department of Children and
91Family Services to the Agency for Persons with
92Disabilities; amending ss. 287.057, 408.036, 943.0585, and
93943.059, F.S.; conforming cross-references; providing an
94effective date.
95
96Be It Enacted by the Legislature of the State of Florida:
97
98     Section 1.  Section 916.105, Florida Statutes, is amended
99to read:
100     916.105  Legislative intent.--
101     (1)  It is the intent of the Legislature that the
102Department of Children and Family Services and the Agency for
103Persons with Disabilities, as appropriate, establish, locate,
104and maintain separate and secure forensic facilities and
105programs for the treatment or training of defendants who have
106been are charged with a felony and who have been found to be
107incompetent to proceed due to their mental illness, mental
108retardation, or autism, or who have been acquitted of a felony
109felonies by reason of insanity, and who, while still under the
110jurisdiction of the committing court, are committed to the
111department or agency under the provisions of this chapter. Such
112The separate, secure facilities shall be sufficient to
113accommodate the number of defendants committed under the
114conditions noted above., Except for those defendants found by
115the department or agency to be appropriate for treatment or
116training in a civil treatment facility or program pursuant to
117subsection (3), forensic. Such secure facilities shall be
118designed and administered so that ingress and egress, together
119with other requirements of this chapter, may be strictly
120controlled by staff responsible for security in order to protect
121the defendant, facility personnel, other clients, and citizens
122in adjacent communities.
123     (2)  It is further the intent of the Legislature that
124treatment or training programs for defendants who are found to
125have mental illness, mental retardation, or autism are found to
126be mentally ill, retarded, or autistic and are involuntarily
127committed to the department or agency, and who are still under
128the jurisdiction of the committing court, be provided in such a
129manner, subject to security requirements and other mandates of
130this chapter, as to ensure the rights of the defendants as
131provided in this chapter.
132     (3)  It is the intent of the Legislature that evaluation
133and services to defendants who have mental illness, mental
134retardation, or autism are mentally ill, retarded, or autistic
135be provided in community settings, in community residential
136facilities, or in civil, nonforensic facilities, whenever this
137is a feasible alternative to treatment or training in a state
138forensic facility.
139     (4)  It is the intent of the Legislature to minimize and
140achieve an ongoing reduction in the use of restraint and
141seclusion on persons who are committed to a civil or forensic
142facility under this chapter.
143     Section 2.  Section 916.106, Florida Statutes, is amended
144to read:
145     916.106  Definitions.--For the purposes of this chapter,
146the term:
147     (1)  "Agency" means the Agency for Persons with
148Disabilities. The agency is responsible for training forensic
149clients who are developmentally disabled due to mental
150retardation or autism and have been determined incompetent to
151proceed.
152     (2)(1)  "Autism" has the same meaning as in s. 393.063.
153means a pervasive, neurologically based developmental disability
154of extended duration which causes severe learning,
155communication, and behavior disorders, with the age of onset of
156autism occurring during infancy or childhood. Individuals with
157autism exhibit impairment in reciprocal social interaction,
158impairment in verbal and nonverbal communication and imaginative
159ability, and a markedly restricted repertoire of activities and
160interests.
161     (3)(2)  "Chemical weapon" means any shell, cartridge, bomb,
162gun, or other device capable of emitting chloroacetophenone
163(CN), chlorobenzalmalononitrile (CS) or any derivatives thereof
164in any form, or any other agent with lacrimatory properties, and
165shall include products such as that commonly known as "mace."
166     (4)(3)  "Civil facility" means:
167     (a)  A mental health facility established within the
168department or by contract with the department to serve
169individuals committed pursuant to chapter 394 and those
170defendants committed pursuant to this chapter who do not require
171the security provided in a forensic facility; or.
172     (b)  An intermediate care facility for the developmentally
173disabled, a foster care facility, a group home facility, or a
174supported living setting, as defined in s. 393.063, designated
175by the agency to serve those defendants who do not require the
176security provided in a forensic facility.
177     (5)(4)  "Court" means the circuit court.
178     (6)  "Defendant" means an adult, or a juvenile who is
179prosecuted as an adult, who has been arraigned and charged with
180a felony offense under the laws of this state.
181     (7)(5)  "Department" means the Department of Children and
182Family Services. The department is responsible for the treatment
183of forensic clients who have been determined incompetent to
184proceed due to mental illness or who have been acquitted of a
185felony by reason of insanity.
186     (8)(6)  "Express and informed consent" or "consent" means
187consent given voluntarily in writing after a conscientious and
188sufficient explanation and disclosure of the purpose of the
189proposed treatment, the common side effects of the treatment, if
190any, the expected duration of the treatment, and any alternative
191treatment available.
192     (9)(7)  "Forensic client" or "client" means any defendant
193who has been is mentally ill, retarded, or autistic and who is
194committed to the department or agency pursuant to s. 916.13, s.
195916.15, or s. 916.302. this chapter and:
196     (a)  Who has been determined to need treatment for a mental
197illness or training for retardation or autism;
198     (b)  Who has been found incompetent to proceed on a felony
199offense or has been acquitted of a felony offense by reason of
200insanity;
201     (c)  Who has been determined by the department to:
202     1.  Be dangerous to himself or herself or others; or
203     2.  Present a clear and present potential to escape; and
204     (d)  Who is an adult or a juvenile prosecuted as an adult.
205     (10)(8)  "Forensic facility" means a separate and secure
206facility established within the department or agency to serve
207forensic clients. A Such separate and secure facility means a
208facilities shall be security-grade building for the purpose of
209separately housing persons who have mental illness from persons
210with retardation or autism and separately housing persons who
211have been involuntarily committed pursuant to this chapter from
212nonforensic residents buildings located on grounds distinct in
213location from other facilities for persons who are mentally ill.
214The Florida State Hospital shall not be required to maintain
215separate facilities for mentally ill, retarded, or autistic
216defendants who are found incompetent to proceed or who are
217acquitted of a criminal offense by reason of insanity.
218     (11)(9)  "Incompetent to proceed" means unable to proceed
219at any material stage of a criminal proceeding, which shall
220include trial of the case, pretrial hearings involving questions
221of fact on which the defendant might be expected to testify,
222entry of a plea, proceedings for violation of probation or
223violation of community control, sentencing, and hearings on
224issues regarding a defendant's failure to comply with court
225orders or conditions or other matters in which the mental
226competence of the defendant is necessary for a just resolution
227of the issues being considered.
228     (12)(10)  "Institutional security personnel" means the
229staff of forensic facilities members who meet or exceed the
230requirements of s. 943.13 and who are responsible for providing
231security, protecting for protection of clients and personnel,
232enforcing for the enforcement of rules, preventing and
233investigating for prevention and investigation of unauthorized
234activities, and for safeguarding the interests of citizens in
235the surrounding communities.
236     (13)(11)  "Mental illness" means an impairment of the
237emotional processes that exercise conscious control of one's
238actions, or of the ability to perceive or understand reality,
239which impairment substantially interferes with a defendant's
240ability to meet the ordinary demands of living. For the purposes
241of this chapter, the term does not apply to defendants with only
242mental retardation or autism who are solely retarded or
243autistic, and does not include intoxication or conditions
244manifested only by antisocial behavior or substance abuse
245impairment.
246     (14)  "Restraint" means a physical device, method, or drug
247used to control dangerous behavior.
248     (a)  A physical restraint is any manual method or physical
249or mechanical device, material, or equipment attached or
250adjacent to a person's body so that he or she cannot easily
251remove the restraint and that restricts freedom of movement or
252normal access to one's body.
253     (b)  A drug used as a restraint is a medication used to
254control the person's behavior or to restrict his or her freedom
255of movement and not part of the standard treatment regimen of
256the person with a diagnosed mental illness who is a client of
257the department. Physically holding a person during a procedure
258to forcibly administer psychotropic medication is a physical
259restraint.
260     (c)  Restraint does not include physical devices, such as
261orthopedically prescribed appliances, surgical dressings and
262bandages, supportive body bands, or other physical holding when
263necessary for routine physical examinations and tests; for
264purposes of orthopedic, surgical, or other similar medical
265treatment; when used to provide support for the achievement of
266functional body position or proper balance; or when used to
267protect a person from falling out of bed.
268     (15)(12)  "Retardation" has the same meaning as in s.
269393.063. means significantly subaverage general intellectual
270functioning existing concurrently with deficits in adaptive
271behavior and manifested during the period from conception to age
27218. "Significantly subaverage general intellectual functioning,"
273for the purpose of this definition, means performance which is
274two or more standard deviations from the mean score on a
275standardized intelligence test specified in the rules of the
276department. "Adaptive behavior," for the purpose of this
277definition, means the effectiveness or degree with which an
278individual meets the standards of personal independence and
279social responsibility expected of the individual's age, cultural
280group, and community.
281     (16)  "Seclusion" means the physical segregation of a
282person in any fashion or the involuntary isolation of a person
283in a room or area from which the person is prevented from
284leaving. The prevention may be by physical barrier or by a staff
285member who is acting in a manner, or who is physically situated,
286so as to prevent the person from leaving the room or area. For
287purposes of this chapter, the term does not mean isolation due
288to a person's medical condition or symptoms, the confinement in
289a forensic facility to a bedroom or area during normal hours of
290sleep when there is not an active order for seclusion, or during
291an emergency such as a riot or hostage situation when clients
292may be temporarily placed in their rooms for their own safety.
293     (17)(13)  "Social service professional," for the purposes
294of part III, means a person whose minimum qualifications include
295a bachelor's degree and at least 2 years of social work,
296clinical practice, special education, habilitation, or
297equivalent experience working directly with persons with
298retardation, autism, or other developmental disabilities.
299     Section 3.  Section 916.107, Florida Statutes, is amended
300to read:
301     916.107  Rights of forensic clients.--
302     (1)  RIGHT TO INDIVIDUAL DIGNITY.--
303     (a)  The policy of the state is that the individual dignity
304of the client shall be respected at all times and upon all
305occasions, including any occasion when the forensic client is
306detained, transported, or treated. Clients with mental illness,
307retardation, or autism Defendants who are mentally ill,
308retarded, or autistic and who are charged with committing
309felonies shall receive appropriate treatment or training. In a
310criminal case involving a client defendant who has been
311adjudicated incompetent to proceed or not guilty by reason of
312insanity, a jail may be used as an emergency facility for up to
31315 days following from the date the department or agency
314receives a completed copy of the court commitment order
315containing all the documentation required by the applicable
316Rules 3.212 and 3.217, Florida Rules of Criminal Procedure. For
317a forensic client defendant who is mentally ill, retarded, or
318autistic, who is held in a jail awaiting admission to a facility
319of the department or agency, and who has been adjudicated
320incompetent to proceed or not guilty by reason of insanity,
321evaluation and treatment or training may shall be provided in
322the jail by the local community mental health provider public
323receiving facility for mental health services, or by the
324developmental disabilities services program for persons with
325retardation or autism, the client's physician or psychologist,
326or any other appropriate program until the client is transferred
327to a civil or forensic facility the custody of the department.
328     (b)  Forensic clients Mentally ill, retarded, or autistic
329defendants who are committed to the department pursuant to this
330chapter and who are initially placed in, or subsequently
331transferred to, a civil facility as described in part I of
332chapter 394 or to a residential facility as described in chapter
333393 shall have the same rights as other persons committed to
334these facilities for as long as they remain there.
335     (2)  RIGHT TO TREATMENT.--
336     (a)  The policy of the state is that neither the department
337nor the agency shall not deny treatment or training to any
338client and that no services shall be delayed at a facility
339because the forensic client is indigent pursuant to s. 27.52 and
340presently unable to pay. However, every reasonable effort to
341collect appropriate reimbursement for the cost of providing
342services to clients able to pay for the services, including
343reimbursement from insurance or other third-party payments,
344shall be made by facilities providing services pursuant to this
345chapter and in accordance with the provisions of s. 402.33.
346     (b)  Each forensic client shall be given, at the time of
347admission and at regular intervals thereafter, a physical
348examination, which shall include screening for communicable
349disease by a health practitioner authorized by law to give such
350screenings and examinations.
351     (c)  Every forensic client committed pursuant to this act
352shall be afforded the opportunity to participate in activities
353designed to enhance self-image and the beneficial effects of
354other treatments or training, as determined by the facility.
355     (d)  Not more than 30 days after admission, each client
356shall have and receive, in writing, an individualized treatment
357or training plan which the client has had an opportunity to
358assist in preparing.
359     (3)  RIGHT TO EXPRESS AND INFORMED CONSENT.--
360     (a)  A forensic client committed to the department pursuant
361to this act shall be asked to give express and informed written
362consent for treatment. If a client in a forensic facility
363refuses such treatment as is deemed necessary and essential by
364the client's multidisciplinary treatment team at the forensic
365facility for the appropriate care of the client and the safety
366of the client or others, such treatment may be provided under
367the following circumstances:
368     1.  In an emergency situation in which there is immediate
369danger to the safety of the client or others, such treatment may
370be provided upon the written order of a physician for a period
371not to exceed 48 hours, excluding weekends and legal holidays.
372If, after the 48-hour period, the client has not given express
373and informed consent to the treatment initially refused, the
374administrator or designee of the civil or forensic facility
375shall, within 48 hours, excluding weekends and legal holidays,
376petition the committing court or the circuit court serving the
377county in which the facility is located, at the option of the
378facility administrator or designee, for an order authorizing the
379continued treatment of the client. In the interim, the need for
380treatment shall be reviewed every 48 hours and may be continued
381without the consent of the client upon the continued written
382order of a physician who has determined that the emergency
383situation continues to present a danger to the safety of the
384client or others.
385     2.  In a situation other than an emergency situation, the
386administrator or designee of the forensic facility shall
387petition the court for an order authorizing necessary and
388essential the treatment for to the client. The order shall allow
389such treatment for a period not to exceed 90 days following from
390the date of the entry of the order. Unless the court is notified
391in writing that the client has provided express and informed
392consent in writing or that the client has been discharged by the
393committing court, the administrator or designee shall, prior to
394the expiration of the initial 90-day order, petition the court
395for an order authorizing the continuation of treatment for
396another 90-day period. This procedure shall be repeated until
397the client provides consent or is discharged by the committing
398court.
399     3.  At the hearing on the issue of whether the court should
400enter an order authorizing treatment for which a client was
401unable to or has refused to give express and informed consent,
402the court shall determine by clear and convincing evidence that
403the client has mental illness, retardation, or autism is
404mentally ill, retarded, or autistic as defined in this chapter,
405that the treatment not consented to is essential to the care of
406the client, and that the treatment not consented to is not
407experimental and does not present an unreasonable risk of
408serious, hazardous, or irreversible side effects. In arriving at
409the substitute judgment decision, the court must consider at
410least the following factors:
411     a.  The client's expressed preference regarding treatment;
412     b.  The probability of adverse side effects;
413     c.  The prognosis without treatment; and
414     d.  The prognosis with treatment.
415
416The hearing shall be as convenient to the client as may be
417consistent with orderly procedure and shall be conducted in
418physical settings not likely to be injurious to the client's
419condition. The court may appoint a general or special magistrate
420to preside at the hearing. The client or the client's guardian,
421and the representative, shall be provided with a copy of the
422petition and the date, time, and location of the hearing. The
423client has the right to have an attorney represent him or her at
424the hearing, and, if the client is indigent, the court shall
425appoint the office of the public defender to represent the
426client at the hearing. The client may testify or not, as he or
427she chooses, and has the right to cross-examine witnesses and
428may present his or her own witnesses.
429     (b)  In addition to the provisions of paragraph (a), in the
430case of surgical procedures requiring the use of a general
431anesthetic or electroconvulsive treatment or nonpsychiatric
432medical procedures, and prior to performing the procedure,
433written permission shall be obtained from the client, if the
434client is legally competent, from the parent or guardian of a
435minor client, or from the guardian of an incompetent client. The
436administrator or designee of the forensic facility or a
437designated representative may, with the concurrence of the
438client's attending physician, authorize emergency surgical or
439nonpsychiatric medical treatment if such treatment is deemed
440lifesaving or for a situation threatening serious bodily harm to
441the client and permission of the client or the client's guardian
442could not cannot be obtained before provision of the needed
443treatment.
444     (4)  QUALITY OF TREATMENT.--
445     (a)  Each forensic client committed pursuant to this
446chapter shall receive treatment or training suited to the
447client's needs, which shall be administered skillfully, safely,
448and humanely with full respect for the client's dignity and
449personal integrity. Each client shall receive such medical,
450vocational, social, educational, and rehabilitative services as
451the client's condition requires to bring about a return to court
452for disposition of charges or a return to the community. In
453order to achieve this goal, the department and the agency shall
454coordinate their services with each other, the Department of
455Corrections, is directed to coordinate the services of the
456Mental Health Program Office and the Developmental Disabilities
457Program Office with all other programs of the department and
458other appropriate state agencies.
459     (b)  Forensic clients shall be free from the unnecessary
460use of restraint or seclusion. Restraints shall be employed only
461in emergencies or to protect the client or others from imminent
462injury. Restraints may not be employed as punishment or for the
463convenience of staff.
464     (5)  COMMUNICATION, ABUSE REPORTING, AND VISITS.--
465     (a)  Each forensic client committed pursuant to the
466provisions of this chapter has the right to communicate freely
467and privately with persons outside the facility unless it is
468determined that such communication is likely to be harmful to
469the client or others. Clients shall have the right to contact
470and to receive communication from their attorneys at any
471reasonable time.
472     (a)(b)  Each forensic client committed under the provisions
473of this chapter shall be allowed to receive, send, and mail
474sealed, unopened correspondence; and no client's incoming or
475outgoing correspondence shall be opened, delayed, held, or
476censored by the facility unless there is reason to believe that
477it contains items or substances that which may be harmful to the
478client or others, in which case the administrator or designee
479may direct reasonable examination of such mail and may regulate
480the disposition of such items or substances. For purposes of
481this paragraph, the term "correspondence" does shall not include
482parcels or packages. Forensic facilities may are authorized to
483promulgate reasonable institutional policies to provide for the
484inspection of parcels or packages and for the removal of
485contraband items for health or security reasons prior to the
486contents being given to a client.
487     (b)(c)  If a client's right to communicate is restricted by
488the administrator, written notice of such restriction and the
489duration of the restriction shall be served on the client or his
490or her legal guardian or representatives, and such restriction
491shall be recorded on the client's clinical record with the
492reasons therefor. The restriction of a client's right to
493communicate shall be reviewed at least every 7 days.
494     (c)(d)  Each forensic facility shall establish reasonable
495institutional policies governing visitors, visiting hours, and
496the use of telephones by clients in the least restrictive manner
497possible.
498     (d)(e)  Each forensic client committed pursuant to this
499chapter shall have ready access to a telephone in order to
500report an alleged abuse. The facility or program staff shall
501orally and in writing inform each client of the procedure for
502reporting abuse and shall present the information in a language
503the client understands. A written copy of that procedure,
504including the telephone number of the central abuse hotline and
505reporting forms, shall be posted in plain view.
506     (e)(f)  The department's or agency's forensic facilities
507shall develop policies providing a procedure for reporting
508abuse. Facility staff shall be required, as a condition of
509employment, to become familiar with the procedures for the
510reporting of abuse.
511     (6)  CARE AND CUSTODY OF PERSONAL EFFECTS OF CLIENTS.--A
512forensic client's right to possession of clothing and personal
513effects shall be respected. The department or agency by rule, or
514the administrator of any forensic facility by written
515institutional policy, may declare certain items to be hazardous
516to the health or welfare of clients or others or to the
517operation of the facility. Such items may be restricted from
518introduction into the facility or may be restricted from being
519in a client's possession. The administrator or designee may take
520temporary custody of such effects when required for medical and
521safety reasons. Custody of such personal effects shall be
522recorded in the client's clinical record.
523     (7)  VOTING IN PUBLIC ELECTIONS.--A forensic client
524committed pursuant to this chapter who is eligible to vote
525according to the laws of the state has the right to vote in the
526primary and general elections. The department and agency shall
527establish rules to enable clients to obtain voter registration
528forms, applications for absentee ballots, and absentee ballots.
529     (8)  CLINICAL RECORD; CONFIDENTIALITY.--A clinical record
530for each forensic client shall be maintained. The record shall
531include data pertaining to admission and such other information
532as may be required under rules of the department or the agency.
533Unless waived by express and informed consent of the client or
534the client's legal guardian or, if the client is deceased, by
535the client's personal representative or by that family member
536who stands next in line of intestate succession or except as
537otherwise provided in this subsection, the clinical record is
538confidential and exempt from the provisions of s. 119.07(1) and
539s. 24(a), Art. I of the State Constitution.
540     (a)  Such clinical record may be released:
541     1.  To such persons and agencies as are designated by the
542client or the client's legal guardian.
543     2.  To persons authorized by order of court and to the
544client's counsel when the records are needed by the counsel for
545adequate representation.
546     3.  To a qualified researcher, as defined by rule; a staff
547member of the facility; or an employee of the department or
548agency when the administrator of the facility, or secretary or
549director of the department or agency, deems it necessary for
550treatment of the client, maintenance of adequate records,
551compilation of treatment data, or evaluation of programs.
552     4.  For statistical and research purposes if the
553information is abstracted in such a way as to protect the
554identity of individuals.
555     5.  If a client receiving services pursuant to this chapter
556has declared an intention to harm other persons. When such a
557declaration has been made, the administrator shall authorize the
558release of sufficient information to provide adequate warning to
559the person threatened with harm by the client, and to the
560committing court, the state attorney, and the attorney
561representing the client.
562     6.  To the parent or next of kin of a client mentally ill,
563retarded, or autistic person who is committed to, or is being
564served by, a facility or program when such information is
565limited to that person's service plan and current physical and
566mental condition. Release of such information shall be in
567accordance with the code of ethics of the profession involved
568and must comply with all state and federal laws and regulations
569pertaining to the release of personal health information.
570     (b)  Notwithstanding other provisions of this subsection,
571the department or agency may request or receive from or provide
572to any of the following entities client information to
573facilitate treatment, habilitation, rehabilitation, and
574continuity of care of any forensic client:
575     1.  The Social Security Administration and the United
576States Department of Veterans Affairs;
577     2.  Law enforcement agencies, state attorneys, defense
578attorneys, and judges in regard to the client's status;
579     3.  Jail personnel in the jail in to which a client may be
580housed returned; and
581     4.  Community agencies and others expected to provide
582followup care to the client upon the client's return to the
583community.
584     (c)  The department or agency may provide notice to any
585client's next of kin or first representative regarding any
586serious medical illness or the death of the client.
587     (d)1.  Any law enforcement agency, facility, or other
588governmental agency that receives information pursuant to this
589subsection shall maintain the confidentiality of such
590information except as otherwise provided herein.
591     2.  Any agency or private practitioner who acts in good
592faith in releasing information pursuant to this subsection is
593not subject to civil or criminal liability for such release.
594     (9)  HABEAS CORPUS.--
595     (a)  At any time, and without notice, a forensic client
596detained by a facility, or a relative, friend, guardian,
597representative, or attorney on behalf of such client, may
598petition for a writ of habeas corpus to question the cause and
599legality of such detention and request that the committing court
600issue a writ for release. Each client committed pursuant to this
601chapter shall receive a written notice of the right to petition
602for a writ of habeas corpus.
603     (b)  A client or his or her legal guardian or
604representatives or attorney may file a petition in the circuit
605court in the county where the client is committed alleging that
606the client is being unjustly denied a right or privilege granted
607herein or that a procedure authorized herein is being abused.
608Upon the filing of such a petition, the circuit court shall have
609the authority to conduct a judicial inquiry and to issue any
610appropriate order to correct an abuse of the provisions of this
611chapter.
612     (10)  TRANSPORTATION.--
613     (a)  The sheriff shall consult with the governing board of
614the county as to the most appropriate and cost-effective means
615of transportation for forensic clients who have been committed
616for treatment or training. Such consultation shall include, but
617is not limited to, consideration of the cost to the county of
618transportation performed by sheriff's department personnel as
619opposed to transportation performed by other means and, if
620sheriff's department personnel are to be used for
621transportation, the effect such use will have, if any, on
622service delivery levels of the sheriff's road patrol. After such
623consultation with the governing board of the county, the sheriff
624shall determine the most appropriate and cost-effective means of
625transportation for forensic clients committed for treatment or
626training.
627     (b)  The governing board of each county is authorized to
628contract with private transport companies for the transportation
629of such clients to and from a facility.
630     (c)  Any company that transports a client pursuant to this
631section is considered an independent contractor and is solely
632liable for the safe and dignified transportation of the client.
633Any transport company that contracts with the governing board of
634a county for the transport of clients as provided for in this
635section shall be insured and provide no less than $100,000 in
636liability insurance with respect to the transportation of the
637clients.
638     (d)  Any company that contracts with a governing board of a
639county to transport clients shall comply with the applicable
640rules of the department or agency to ensure the safety and
641dignity of the clients.
642     (11)  LIABILITY FOR VIOLATIONS.--Any person who violates or
643abuses any rights or privileges of a forensic client in the
644custody of the department or agency that are provided under this
645chapter shall be by this act is liable for damages as determined
646by law. Any person who acts in good faith in complying with the
647provisions of this chapter act is immune from civil or criminal
648liability for his or her actions in connection with the
649admission, diagnosis, treatment, training, or discharge of a
650client to or from a facility. However, this subsection does not
651relieve any person from liability if he or she is negligent.
652     Section 4.  Subsections (1), (2), (3), (4), and (5) of
653section 916.1075, Florida Statutes, are amended to read:
654     916.1075  Sexual misconduct prohibited; reporting required;
655penalties.--
656     (1)  As used in this section, the term:
657     (a)  "Covered person" means an employee," includes any paid
658staff member, volunteer, or intern of the department or agency;
659any person under contract with the department or agency; and any
660person providing care or support to a forensic client on behalf
661of the department, the agency, or their its providers.
662     (b)  "Sexual activity" means:
663     1.  Fondling the genital area, groin, inner thighs,
664buttocks, or breasts of a person.
665     2.  The oral, anal, or vaginal penetration by or union with
666the sexual organ of another or the anal or vaginal penetration
667of another by any other object.
668     3.  Intentionally touching in a lewd or lascivious manner
669the breasts, genitals, the genital area, or buttocks, or the
670clothing covering them, of a person, or forcing or enticing a
671person to touch the perpetrator.
672     4.  Intentionally masturbating in the presence of another
673person.
674     5.  Intentionally exposing the genitals in a lewd or
675lascivious manner in the presence of another person.
676     6.  Intentionally committing any other sexual act that does
677not involve actual physical or sexual contact with the victim,
678including, but not limited to, sadomasochistic abuse, sexual
679bestiality, or the simulation of any act involving sexual
680activity in the presence of a victim.
681     (c)  "Sexual misconduct" means any sexual activity between
682a covered person an employee and a forensic client in the
683custody of the department or agency, regardless of the consent
684of the client. The term does not include an act done for a bona
685fide medical purpose or an internal search conducted in the
686lawful performance of duty by a covered person an employee.
687     (2)  A covered person An employee who engages in sexual
688misconduct with a forensic client who resides in a civil or
689forensic facility commits a felony of the second degree,
690punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
691Such person An employee may be found guilty of violating this
692subsection without having committed the crime of sexual battery.
693     (3)  The consent of a forensic the client to sexual
694activity is not a defense to prosecution under this section.
695     (4)  This section does not apply to a covered person an
696employee who:
697     (a)  Is legally married to the client; or
698     (b)  Has no reason to believe that the person with whom the
699covered person employee engaged in sexual misconduct is a client
700receiving services as described in subsection (2).
701     (5)  A covered person An employee who witnesses sexual
702misconduct, or who otherwise knows or has reasonable cause to
703suspect that a person has engaged in sexual misconduct, shall
704immediately report the incident to the department's central
705abuse hotline and to the appropriate local law enforcement
706agency. The covered person Such employee shall also prepare,
707date, and sign an independent report that specifically describes
708the nature of the sexual misconduct, the location and time of
709the incident, and the persons involved. For an allegation
710pertaining to a forensic client committed to the department or
711agency, the covered person employee shall deliver the report
712directly to the department's or agency's inspector general, as
713appropriate, or to the supervisor or program director, who shall
714provide copies to the department's or agency's is responsible
715for providing copies to the department's inspector general. The
716inspector general shall immediately conduct an appropriate
717administrative investigation, and, if there is probable cause to
718believe that sexual misconduct has occurred, the inspector
719general shall notify the state attorney in the circuit in which
720the incident occurred.
721     Section 5.  Section 916.1081, Florida Statutes, is amended
722to read:
723     916.1081  Escape from program; penalty.--
724     (1)  A forensic client who is A defendant involuntarily
725committed to the department or agency, who is in the custody of
726the department or agency, and under the provisions of this
727chapter who escapes or attempts to escape from a civil or
728forensic facility or program commits a felony of the second
729degree, punishable as provided in s. 775.082, s. 775.083, or s.
730775.084.
731     (2)  A person who is involuntarily committed to the
732department or the agency, who is in the custody of the
733Department of Corrections, and who escapes or attempts to escape
734from a facility or program commits a felony of the second
735degree, punishable as provided in s. 775.082, s. 775.083, or s.
736775.084. Any punishment of imprisonment imposed under this
737subsection shall run consecutive to any former sentence imposed
738upon the person.
739     Section 6.  Subsection (1) and paragraph (b) of subsection
740(2) of section 916.1085, Florida Statutes, are amended to read:
741     916.1085  Introduction or removal of certain articles
742unlawful; penalty.--
743     (1)(a)  Except as authorized by law or as specifically
744authorized by the person in charge of a facility, it is unlawful
745to introduce into or upon the grounds of any facility under the
746supervision or control of the department or agency, or to take
747or attempt to take or send therefrom, any of the following
748articles, which are hereby declared to be contraband for the
749purposes of this section:
750     1.  Any intoxicating beverage or beverage which causes or
751may cause an intoxicating effect;
752     2.  Any controlled substance as defined in chapter 893;
753     3.  Any firearm or deadly weapon; or
754     4.  Any other item as determined by the department or the
755agency, and as designated by departmental rule or by the
756administrator of any facility, and designated by written
757institutional policies, to be hazardous to the welfare of
758clients patients or the operation of the facility.
759     (b)  It is unlawful to transmit to, attempt to transmit to,
760or cause or attempt to cause to be transmitted to or received by
761any client of any facility under the supervision or control of
762the department or agency any article or thing declared by this
763section to be contraband, at any place that which is outside of
764the grounds of such facility, except as authorized by law or as
765specifically authorized by the person in charge of such
766facility.
767     (2)
768     (b)  These provisions shall be enforced by institutional
769security personnel as defined in s. 916.106(10) or by a law
770enforcement officer as defined in s. 943.10.
771     Section 7.  Section 916.1091, Florida Statutes, is amended
772to read:
773     916.1091  Duties, functions, and powers of institutional
774security personnel.--In case of emergency, and when necessary to
775provide protection and security to any client, to the personnel,
776equipment, buildings, or grounds of a department or agency
777facility, or to citizens in the surrounding community,
778institutional security personnel may, when authorized by the
779administrator of the facility or her or his designee when the
780administrator is not present, use a chemical weapon against a
781patient housed in a forensic facility. However, such weapon
782shall be used only to the extent necessary to provide such
783protection and security. Under no circumstances shall any such
784officer carry a chemical weapon on her or his person except
785during the period of the emergency for which its use was
786authorized. All chemical weapons shall be placed in secure
787storage when their use is not authorized as provided in this
788section.
789     Section 8.  Section 916.1093, Florida Statutes, is amended
790to read:
791     916.1093  Operation and administration; rules.--
792     (1)  The department or agency may is authorized to enter
793into contracts and do such things as may be necessary and
794incidental to assure compliance with and to carry out the
795provisions of this chapter in accordance with the stated
796legislative intent.
797     (2)  The department and agency are authorized has authority
798to adopt rules pursuant to ss. 120.536(1) and 120.54 to
799implement the provisions of this chapter. Such rules must
800address the use of restraint and seclusion in forensic
801facilities and must be consistent with recognized best
802practices; prohibit inherently dangerous restraint or seclusion
803procedures; establish limitations on the use and duration of
804restraint and seclusion; establish measures to ensure the safety
805of clients and staff during an incident of restraint or
806seclusion; establish procedures for staff to follow before,
807during, and after incidents of restraint or seclusion; establish
808professional qualifications of and training for staff who may
809order or be engaged in the use of restraint or seclusion;
810provide data reporting and data collection procedures relating
811to the use of restraint and seclusion; and provide for the
812documentation of the use of restraint or seclusion in the
813client's facility record.
814     Section 9.  Subsection (1) of section 916.111, Florida
815Statutes, is amended to read:
816     916.111  Training of mental health experts.--The evaluation
817of defendants for competency to proceed or for sanity at the
818time of the commission of the offense shall be conducted in such
819a way as to ensure uniform application of the criteria
820enumerated in Rules 3.210 and 3.216, Florida Rules of Criminal
821Procedure. The department shall develop, and may contract with
822accredited institutions:
823     (1)  To provide:
824     (a)  A plan for training community mental health
825professionals to perform forensic evaluations and to standardize
826the criteria and procedures to be used in these evaluations;
827     (b)  Clinical protocols and procedures based upon the
828criteria of Rules 3.210 and 3.216, Florida Rules of Criminal
829Procedure; and
830     (c)  Training for community mental health professionals in
831the application of these protocols and procedures in performing
832forensic evaluations and providing reports to the courts; and
833     Section 10.  Section 916.115, Florida Statutes, is amended
834to read:
835     916.115  Appointment of experts.--
836     (1)(a)  Annually, the department shall provide the courts
837with a list of mental health professionals who have completed
838approved training as experts.
839     (b)  The court shall may appoint no more than three experts
840to determine issues of the mental condition of a defendant in a
841criminal case, including the issues of competency to proceed,
842insanity, and involuntary hospitalization or placement, and
843treatment. The experts An expert may evaluate the defendant in
844jail or in another appropriate local facility or in a facility
845of the Department of Corrections.
846     (a)(c)  To the extent possible, the an appointed experts
847expert shall have completed forensic evaluator training approved
848by the department and each shall be either a psychiatrist,
849licensed psychologist, or physician.
850     (b)  The department shall maintain and annually provide the
851courts with a list of available mental health professionals who
852have completed the approved training as experts.
853     (2)  Expert witnesses appointed by the court to evaluate
854the mental condition of a defendant in a criminal case shall be
855allowed reasonable fees for services rendered as evaluators of
856competence or sanity and as witnesses.
857     (a)1.  The court shall pay for any expert that it appoints
858by court order, upon motion of counsel for the defendant or the
859state or upon its own motion. If the defense or the state
860retains an expert and waives the confidentiality of the expert's
861report, the court may pay for no more than two additional
862experts appointed by court order. If an expert appointed by the
863court upon motion of counsel for the defendant specifically to
864evaluate the competence of the defendant to proceed also
865addresses in his or her evaluation issues related to sanity as
866an affirmative defense, the court shall pay only for that
867portion of the expert's fees relating to the evaluation on
868competency to proceed, and the balance of the fees shall be
869chargeable to the defense.
870     (a)2.  Pursuant to s. 29.006, the office of the public
871defender shall pay for any expert retained by the office.
872     (b)3.  Pursuant to s. 29.005, the office of the state
873attorney shall pay for any expert retained by the office and.
874Notwithstanding subparagraph 1., the office of the state
875attorney shall pay for any expert whom the office retains and
876whom the office moves the court to appoint in order to ensure
877that the expert has access to the defendant.
878     (c)4.  An expert retained by the defendant who is
879represented by private counsel appointed under s. 27.5303 shall
880be paid by the Justice Administrative Commission.
881     (d)5.  An expert retained by a defendant who is indigent
882for costs as determined by the court and who is represented by
883private counsel, other than private counsel appointed under s.
88427.5303, on a fee or pro bono basis, or who is representing
885himself or herself, shall be paid by the Justice Administrative
886Commission from funds specifically appropriated for these
887expenses.
888     (e)(b)  State employees shall be reimbursed for paid
889expenses pursuant to s. 112.061.
890     (f)(c)  The fees shall be taxed as costs in the case.
891     (g)(d)  In order for an expert to be paid for the services
892rendered, the expert's report and testimony must explicitly
893address each of the factors and follow the procedures set out in
894this chapter and in the Florida Rules of Criminal Procedure.
895     Section 11.  Subsections (1), (2), and (3) of section
896916.12, Florida Statutes, are amended to read:
897     916.12  Mental competence to proceed.--
898     (1)  A defendant is incompetent to proceed within the
899meaning of this chapter if the defendant does not have
900sufficient present ability to consult with her or his lawyer
901with a reasonable degree of rational understanding or if the
902defendant has no rational, as well as factual, understanding of
903the proceedings against her or him.
904     (2)  Mental health experts appointed pursuant to s. 916.115
905An expert shall first determine whether the defendant has a
906mental illness person is mentally ill and, if so, consider the
907factors related to the issue of whether the defendant meets the
908criteria for competence to proceed as described in subsection
909(1); that is, whether the defendant has sufficient present
910ability to consult with counsel with a reasonable degree of
911rational understanding and whether the defendant has a rational,
912as well as factual, understanding of the pending proceedings. A
913defendant must be evaluated by no fewer than two experts before
914the court commits the defendant or takes other action authorized
915by this chapter or the Florida Rules of Criminal Procedure,
916except if one expert finds that the defendant is incompetent to
917proceed and the parties stipulate to that finding, the court may
918commit the defendant or take other action authorized by this
919chapter or the rules without further evaluation or hearing, or
920the court may appoint no more than two additional experts to
921evaluate the defendant. Notwithstanding any stipulation by the
922state and the defendant, the court may require a hearing with
923testimony from the expert or experts before ordering the
924commitment of a defendant.
925     (3)  In considering the issue of competence to proceed, an
926examining expert shall first consider and specifically include
927in his or her report the defendant's capacity to:
928     (a)  Appreciate the charges or allegations against the
929defendant.;
930     (b)  Appreciate the range and nature of possible penalties,
931if applicable, that may be imposed in the proceedings against
932the defendant.;
933     (c)  Understand the adversarial nature of the legal
934process.;
935     (d)  Disclose to counsel facts pertinent to the proceedings
936at issue.;
937     (e)  Manifest appropriate courtroom behavior.; and
938     (f)  Testify relevantly.;
939     (g)  and include in his or her report Any other factor
940deemed relevant by the expert.
941     Section 12.  Section 916.13, Florida Statutes, is amended
942to read:
943     916.13  Involuntary commitment of defendant adjudicated
944incompetent.--
945     (1)  Every defendant who is charged with a felony and who
946is adjudicated incompetent to proceed, pursuant to the
947applicable Florida Rules of Criminal Procedure, may be
948involuntarily committed for treatment upon a finding by the
949court of clear and convincing evidence that:
950     (a)  The defendant has a mental illness is mentally ill and
951because of the mental illness:
952     1.  The defendant is manifestly incapable of surviving
953alone or with the help of willing and responsible family or
954friends, including available alternative services, and, without
955treatment, the defendant is likely to suffer from neglect or
956refuse to care for herself or himself and such neglect or
957refusal poses a real and present threat of substantial harm to
958the defendant's well-being; or and
959     2.  There is a substantial likelihood that in the near
960future the defendant will inflict serious bodily harm on herself
961or himself or another person, as evidenced by recent behavior
962causing, attempting, or threatening such harm;
963     (b)  All available, less restrictive treatment
964alternatives, including treatment in community residential
965facilities or community inpatient or outpatient settings, which
966would offer an opportunity for improvement of the defendant's
967condition have been judged to be inappropriate; and
968     (c)  There is a substantial probability that the mental
969illness causing the defendant's incompetence will respond to
970treatment and the defendant will regain competency to proceed in
971the reasonably foreseeable future.
972     (2)  A defendant who has been charged with a felony and who
973has been adjudicated incompetent to proceed due to mental
974illness, and who meets the criteria for involuntary commitment
975to the department under the provisions of this chapter, may be
976committed to the department, and the department shall retain and
977treat the defendant. No later than 6 months after the date of
978admission and or at the end of any period of extended
979commitment, or at any time the administrator or designee shall
980have determined that the defendant has regained competency to
981proceed or no longer meets the criteria for continued
982commitment, the administrator or designee shall file a report
983with the court pursuant to the applicable Florida Rules of
984Criminal Procedure.
985     Section 13.  Section 916.145, Florida Statutes, is amended
986to read:
987     916.145  Adjudication of incompetency due to mental
988illness; Dismissal of charges.--The charges against any
989defendant adjudicated incompetent to proceed due to the
990defendant's mental illness shall be dismissed without prejudice
991to the state if the defendant remains incompetent to proceed 5
992years after such determination, unless the court in its order
993specifies its reasons for believing that the defendant will
994become competent to proceed within the foreseeable future and
995specifies the time within which the defendant is expected to
996become competent to proceed. The charges against the defendant
997are dismissed without prejudice to the state to refile the
998charges should the defendant be declared competent to proceed in
999the future.
1000     Section 14.  Section 916.15, Florida Statutes, is amended
1001to read:
1002     916.15  Involuntary commitment of defendant adjudicated not
1003guilty by reason of insanity.--
1004     (1)  The determination of whether a defendant is not guilty
1005by reason of insanity shall be determined in accordance with
1006Rule 3.217, Florida Rules of Criminal Procedure.
1007     (2)(1)  A defendant who is acquitted of criminal charges
1008because of a finding of not guilty by reason of insanity may be
1009involuntarily committed pursuant to such finding if the
1010defendant has a mental illness is mentally ill and, because of
1011the illness, is manifestly dangerous to himself or herself or
1012others.
1013     (3)(2)  Every defendant acquitted of criminal charges by
1014reason of insanity and found to meet the criteria for
1015involuntary commitment may be committed and treated in
1016accordance with the provisions of this section and the
1017applicable Florida Rules of Criminal Procedure. The department
1018shall admit a defendant so adjudicated to an appropriate
1019facility or program for treatment and shall retain and treat
1020such defendant. No later than 6 months after the date of
1021admission, prior to the end of any period of extended
1022commitment, or at any time the administrator or designee shall
1023have determined that the defendant no longer meets the criteria
1024for continued commitment placement, the administrator or
1025designee shall file a report with the court pursuant to the
1026applicable Florida Rules of Criminal Procedure.
1027     (4)(3)  In all proceedings under this section subsection,
1028both the defendant and the state shall have the right to a
1029hearing before the committing court. Evidence at such hearing
1030may be presented by the hospital administrator or the
1031administrator's designee as well as by the state and the
1032defendant. The defendant shall have the right to counsel at any
1033such hearing. In the event that a defendant is determined to be
1034indigent pursuant to s. 27.52, the public defender shall
1035represent the defendant. The parties shall have access to the
1036defendant's records at the treating facilities and may interview
1037or depose personnel who have had contact with the defendant at
1038the treating facilities.
1039     Section 15.  Section 916.16, Florida Statutes, is amended
1040to read:
1041     916.16  Jurisdiction of committing court.--
1042     (1)  The committing court shall retain jurisdiction over in
1043the case of any defendant involuntarily committed due to a
1044determination of incompetency hospitalized as incompetent to
1045proceed due to mental illness or because of a finding of not
1046guilty by reason of insanity pursuant to this chapter. The No
1047such defendant may not be released except by order of the
1048committing court. An The administrative hearing examiner does
1049not shall have no jurisdiction to determine issues of continuing
1050commitment hospitalization or release of any defendant
1051involuntarily committed admitted pursuant to this chapter.
1052     (2)  The committing court shall retain jurisdiction in the
1053case of any defendant placed on conditional release pursuant to
1054s. 916.17. No Such defendant may not be released from the
1055conditions of release except by order of the committing court.
1056     Section 16.  Section 916.17, Florida Statutes, is amended
1057to read:
1058     916.17  Conditional release.--
1059     (1)  Except for an inmate currently serving a prison
1060sentence, The committing court may order a conditional release
1061of any defendant who has been found to be incompetent to proceed
1062or not guilty by reason of insanity, based on an approved plan
1063for providing appropriate outpatient care and treatment. the
1064committing court may order a conditional release of any
1065defendant in lieu of an involuntary commitment to a facility
1066pursuant to s. 916.13 or s. 916.15 based upon an approved plan
1067for providing appropriate outpatient care and treatment. Upon a
1068recommendation that outpatient treatment of the defendant is
1069appropriate, a written plan for outpatient treatment, including
1070recommendations from qualified professionals, must be filed with
1071the court, with copies to all parties. Such a plan may also be
1072submitted by the defendant and filed with the court with copies
1073to all parties. The plan shall include:
1074     (a)  Special provisions for residential care or adequate
1075supervision of the defendant.
1076     (b)  Provisions for outpatient mental health services.
1077     (c)  If appropriate, recommendations for auxiliary services
1078such as vocational training, educational services, or special
1079medical care.
1080
1081In its order of conditional release, the court shall specify the
1082conditions of release based upon the release plan and shall
1083direct the appropriate agencies or persons to submit periodic
1084reports to the court regarding the defendant's compliance with
1085the conditions of the release and progress in treatment, with
1086copies to all parties.
1087     (2)  Upon the filing of an affidavit or statement under
1088oath by any person that the defendant has failed to comply with
1089the conditions of release, that the defendant's condition has
1090deteriorated to the point that inpatient care is required, or
1091that the release conditions should be modified, the court shall
1092hold a hearing within 7 days after receipt of the affidavit or
1093statement under oath. After the hearing, the court may modify
1094the release conditions. The court may also order that the
1095defendant be returned to the department if it is found, after
1096the appointment and report of experts, that the person meets the
1097criteria for involuntary commitment under s. 916.13 or s. 916.15
1098treatment.
1099     (3)  If at any time it is determined after a hearing that
1100the defendant who has been conditionally released under
1101subsection (1) no longer requires court-supervised followup
1102care, the court shall terminate its jurisdiction in the cause
1103and discharge the defendant.
1104     Section 17.  Section 916.301, Florida Statutes, is amended
1105to read:
1106     916.301  Appointment of experts.--
1107     (1)  All evaluations ordered by the court under this part
1108must be conducted by qualified experts who have expertise in
1109evaluating persons with retardation or autism. The agency
1110department shall maintain and provide the courts annually with a
1111list of available retardation and autism professionals who are
1112appropriately licensed and qualified to perform evaluations of
1113defendants alleged to be incompetent to proceed due to
1114retardation or autism. The courts may use professionals from
1115this list when appointing experts and ordering evaluations under
1116this part for defendants suspected of being retarded or
1117autistic.
1118     (2)  If a defendant's suspected mental condition is
1119retardation or autism, the court shall appoint the following:
1120two experts, one of whom must be the developmental services
1121program of the department, each of whom will evaluate whether
1122the defendant meets the definition of retardation or autism and,
1123if so, whether the defendant is competent to proceed.
1124     (a)(3)  At least one, or at the request of any party, two
1125experts the court may appoint one additional expert to evaluate
1126the defendant. The expert appointed by the court will evaluate
1127whether the defendant meets the definition of retardation or
1128autism and, if so, whether the defendant is competent to
1129proceed.
1130     (b)(4)  The developmental services program shall select A
1131psychologist selected by the agency who is licensed or
1132authorized by law to practice in this state, with experience in
1133evaluating persons suspected of having retardation or autism,
1134and a social service professional, with experience in working
1135with persons with retardation or autism to evaluate the
1136defendant.
1137     1.(a)  The psychologist shall evaluate whether the
1138defendant meets the definition of retardation or autism and, if
1139so, whether the defendant is incompetent to proceed due to
1140retardation or autism.
1141     2.(b)  The social service professional shall provide a
1142social and developmental history of the defendant.
1143     (5)  All evaluations ordered by the court must be from
1144qualified experts with experience in evaluating persons with
1145retardation or autism.
1146     (3)(6)  The panel of experts may examine the defendant in
1147jail, in another appropriate local facility, in a facility of
1148the Department of Corrections, or on an outpatient basis.
1149     (4)(7)  Experts Expert witnesses appointed by the court to
1150evaluate the mental condition of a defendant in a criminal case
1151shall be allowed reasonable fees for services rendered as
1152evaluators and as witnesses, which shall be paid by the court.
1153State employees shall be paid expenses pursuant to s. 112.061.
1154The fees shall be taxed as costs in the case. In order for the
1155experts to be paid for the services rendered, the reports and
1156testimony must explicitly address each of the factors and follow
1157the procedures set out in this chapter and in the Florida Rules
1158of Criminal Procedure.
1159     Section 18.  Subsections (1), (2), and (3) of section
1160916.3012, Florida Statutes, are amended to read:
1161     916.3012  Mental competence to proceed.--
1162     (1)  A defendant whose suspected mental condition is
1163retardation or autism is incompetent to proceed within the
1164meaning of this chapter if the defendant does not have
1165sufficient present ability to consult with the defendant's
1166lawyer with a reasonable degree of rational understanding or if
1167the defendant has no rational, as well as factual, understanding
1168of the proceedings against the defendant.
1169     (2)  The Experts in retardation or autism appointed
1170pursuant to s. 916.301 shall first consider whether the
1171defendant meets the definition of retardation or autism and, if
1172so, consider the factors related to the issue of whether the
1173defendant meets the criteria for competence to proceed as
1174described in subsection (1); that is, whether the defendant has
1175sufficient present ability to consult with counsel with a
1176reasonable degree of rational understanding and whether the
1177defendant has a rational, as well as factual, understanding of
1178the pending proceedings.
1179     (3)  In considering the issue of competence to proceed, the
1180examining experts shall first consider and specifically include
1181in their report the defendant's capacity to:
1182     (a)  Appreciate the charges or allegations against the
1183defendant.;
1184     (b)  Appreciate the range and nature of possible penalties,
1185if applicable, that may be imposed in the proceedings against
1186the defendant.;
1187     (c)  Understand the adversarial nature of the legal
1188process.;
1189     (d)  Disclose to counsel facts pertinent to the proceedings
1190at issue.;
1191     (e)  Manifest appropriate courtroom behavior.; and
1192     (f)  Testify relevantly.;
1193     (g)  and include in their report Any other factor deemed
1194relevant by the experts.
1195     Section 19.  Section 916.302, Florida Statutes, is amended
1196to read:
1197     916.302  Involuntary commitment of defendant determined to
1198be incompetent to proceed due to retardation or autism.--
1199     (1)  CRITERIA.--Every defendant who is charged with a
1200felony and who is adjudicated found to be incompetent to proceed
1201due to retardation or autism, pursuant to this chapter and the
1202applicable Florida Rules of Criminal Procedure, may be
1203involuntarily committed for training upon a finding by the court
1204of clear and convincing evidence that:
1205     (a)  The defendant has retardation or autism is retarded or
1206autistic;
1207     (b)  There is a substantial likelihood that in the near
1208future the defendant will inflict serious bodily harm on himself
1209or herself or another person, as evidenced by recent behavior
1210causing, attempting, or threatening such harm;
1211     (c)  All available, less restrictive alternatives,
1212including services provided in community residential facilities
1213or other community settings, which would offer an opportunity
1214for improvement of the condition have been judged to be
1215inappropriate; and
1216     (d)  There is a substantial probability that the
1217retardation or autism causing the defendant's incompetence will
1218respond to training and the defendant will regain competency to
1219proceed in the reasonably foreseeable future.
1220     (2)  ADMISSION TO A FACILITY.--
1221     (a)  A defendant who has been charged with a felony and who
1222is found to be incompetent to proceed due to retardation or
1223autism, and who meets the criteria for involuntary commitment to
1224the agency department under the provisions of this chapter,
1225shall be committed to the agency department, and the agency
1226department shall retain and provide appropriate training for
1227serve the defendant. No later than 6 months after the date of
1228admission or at the end of any period of extended commitment or
1229at any time the administrator or designee shall have determined
1230that the defendant has regained competency to proceed or no
1231longer meets the criteria for continued commitment, the
1232administrator or designee shall file a report with the court
1233pursuant to this chapter and the applicable Florida Rules of
1234Criminal Procedure.
1235     (b)  A defendant determined to be incompetent to proceed
1236due to retardation or autism may be ordered by a circuit court
1237into a forensic secure facility designated by the agency
1238department for retarded or autistic defendants who have mental
1239retardation or autism.
1240     (c)  The agency department may transfer a defendant from a
1241designated forensic secure facility to another designated
1242forensic secure facility and must notify the court of the
1243transfer within 30 days after the transfer is completed.
1244     (d)  The agency department may not transfer a defendant
1245from a designated forensic secure facility to a civil nonsecure
1246facility without first notifying the court, and all parties, 30
1247days before the proposed transfer. If the court objects to the
1248proposed transfer to a nonsecure facility, it must send its
1249written objection to the agency department. The agency
1250department may transfer the defendant unless it receives the
1251written objection from the court within 30 days after the
1252court's receipt of the notice of the proposed transfer.
1253     (3)  PLACEMENT OF DUALLY DIAGNOSED DEFENDANTS.--
1254     (a)  If a defendant has is both mental retardation or
1255autism retarded or autistic and has a mental illness mentally
1256ill, evaluations must address which condition is primarily
1257affecting the defendant's competency to proceed. Referral of the
1258defendant should be made to a civil or forensic the facility or
1259program most appropriate to address the symptoms that which are
1260the cause of the defendant's incompetence.
1261     (b)  Transfer from one civil or forensic facility or
1262program to another civil or forensic facility or program may
1263occur when, in the department's and agency's judgment, it is in
1264the defendant's best treatment or training interests. The
1265department and agency shall submit an evaluation and
1266justification for the transfer to the court. The court may
1267consult with an outside expert if necessary. Transfer will
1268require an amended order from the committing court.
1269     Section 20.  Section 916.3025, Florida Statutes, is amended
1270to read:
1271     916.3025  Jurisdiction of committing court.--
1272     (1)  The committing court shall retain jurisdiction in the
1273case of any defendant found to be incompetent to proceed due to
1274retardation or autism and ordered into a forensic secure
1275facility designated by the agency department for retarded or
1276autistic defendants who have mental retardation or autism. A No
1277defendant may not be released except by the order of the
1278committing court. An administrative hearing examiner does not
1279have jurisdiction to determine issues of continuing commitment
1280or release of any defendant involuntarily committed pursuant to
1281this chapter.
1282     (2)  The committing court shall retain jurisdiction in the
1283case of any defendant placed on conditional release pursuant to
1284s. 916.304. No Such defendant may not be released from the
1285conditions of release except by order of the committing court.
1286     (3)  The committing court shall consider a the petition to
1287involuntarily admit a defendant whose charges have been
1288dismissed to residential services provided by the agency
1289department's developmental services program a person whose
1290charges have been dismissed, and, when applicable, to continue
1291secure placement of such person as provided in s. 916.303. The
1292committing court shall retain jurisdiction over such person so
1293long as he or she remains in secure placement or is on
1294conditional release as provided in s. 916.304. However, upon
1295request, the court may transfer continuing jurisdiction to the
1296court in the circuit where the defendant resides. The defendant
1297may not be released from an order for secure placement except by
1298order of the court.
1299     Section 21.  Section 916.303, Florida Statutes, is amended
1300to read:
1301     916.303  Determination of incompetency due to retardation
1302or autism; dismissal of charges.--
1303     (1)  The charges against any defendant found to be
1304incompetent to proceed due to retardation or autism shall be
1305dismissed without prejudice to the state if the defendant
1306remains incompetent to proceed within a reasonable time after
1307such determination, not to exceed 2 years, unless the court in
1308its order specifies its reasons for believing that the defendant
1309will become competent to proceed within the foreseeable future
1310and specifies the time within which the defendant is expected to
1311become competent to proceed. The charges may be refiled by the
1312state if against the defendant are dismissed without prejudice
1313to the state to refile the charges should the defendant is be
1314declared competent to proceed in the future.
1315     (2)(a)  If the charges are dismissed and if the defendant
1316is considered to lack sufficient capacity to give express and
1317informed consent to a voluntary application for services and
1318lacks the basic survival and self-care skills to provide for his
1319or her well-being or is likely to physically injure himself or
1320herself or others if allowed to remain at liberty, the agency
1321department, the state attorney, or the defendant's attorney
1322shall may apply to the committing court to involuntarily admit
1323the defendant to residential services pursuant to s. 393.11.
1324     (3)(b)  If the defendant is considered to need involuntary
1325residential services for reasons described in subsection (2)
1326under s. 393.11 and, further, there is a substantial likelihood
1327that the defendant will injure another person or continues to
1328present a danger of escape, and all available less restrictive
1329alternatives, including services in community residential
1330facilities or other community settings, which would offer an
1331opportunity for improvement of the condition have been judged to
1332be inappropriate, then the agency person or entity filing the
1333petition under s. 393.11, the state attorney, or the defendant's
1334counsel may request, the petitioning commission, or the
1335department may also petition the committing court to continue
1336the defendant's placement in a secure facility or program
1337pursuant to this part section. Any placement so continued under
1338this subsection must be defendant involuntarily admitted under
1339this paragraph shall have his or her status reviewed by the
1340court at least annually at a hearing. The annual review and
1341hearing shall determine whether the defendant continues to meet
1342the criteria described in this subsection for involuntary
1343residential services and, if so, whether the defendant still
1344requires involuntary placement in a secure facility or program
1345because the court finds that the defendant is likely to
1346physically injure others as specified in s. 393.11 and whether
1347the defendant is receiving adequate care, treatment,
1348habilitation, and rehabilitation, including psychotropic
1349medication and behavioral programming. Notice of the annual
1350review and review hearing shall be given to the state attorney
1351and to the defendant's attorney. In no instance may a
1352defendant's placement in a secure facility or program exceed the
1353maximum sentence for the crime for which the defendant was
1354charged.
1355     Section 22.  Section 916.304, Florida Statutes, is amended
1356to read:
1357     916.304  Conditional release.--
1358     (1)  Except for an inmate currently serving a prison
1359sentence, the committing court may order a conditional release
1360of any defendant who has been found to be incompetent to proceed
1361due to retardation or autism, based on an approved plan for
1362providing continuing community-based training. The committing
1363criminal court may order a conditional release of any defendant
1364to a civil facility in lieu of an involuntary commitment to a
1365forensic facility pursuant to s. 916.302. Upon a recommendation
1366that community-based training for the defendant is appropriate,
1367a written plan for community-based training, including
1368recommendations from qualified professionals, may be filed with
1369the court, with copies to all parties. Such a plan may also be
1370submitted by the defendant and filed with the court, with copies
1371to all parties. The plan must shall include:
1372     (a)  Special provisions for residential care and adequate
1373supervision of the defendant, including recommended location of
1374placement.
1375     (b)  Recommendations for auxiliary services such as
1376vocational training, psychological training, educational
1377services, leisure services, and special medical care.
1378
1379In its order of conditional release, the court shall specify the
1380conditions of release based upon the release plan and shall
1381direct the appropriate agencies or persons to submit periodic
1382reports to the courts regarding the defendant's compliance with
1383the conditions of the release and progress in training, with
1384copies to all parties.
1385     (2)  Upon the filing of an affidavit or statement under
1386oath by any person that the defendant has failed to comply with
1387the conditions of release, that the defendant's condition has
1388deteriorated, or that the release conditions should be modified,
1389the court shall hold a hearing within 7 days after receipt of
1390the affidavit or statement under oath. With notice to the court
1391and all parties, the agency may detain a defendant in a forensic
1392facility until the hearing occurs. After the hearing, the court
1393may modify the release conditions. The court may also order that
1394the defendant be placed into more appropriate programs for
1395further training or may order the defendant to be committed
1396returned to a forensic facility involuntary residential services
1397of the department if it is found, after the appointment and
1398report of experts, that the defendant meets the criteria for
1399placement in a forensic facility involuntary residential
1400services.
1401     (3)  If at any time it is determined after a hearing that
1402the defendant conditionally released under subsection (1) no
1403longer requires court-supervised followup care, the court shall
1404terminate its jurisdiction in the cause and discharge the
1405defendant.
1406     Section 23.  Subsection (1) of section 921.137, Florida
1407Statutes, is amended to read:
1408     921.137  Imposition of the death sentence upon a mentally
1409retarded defendant with mental retardation prohibited.--
1410     (1)  As used in this section, the term "mental retardation"
1411means significantly subaverage general intellectual functioning
1412existing concurrently with deficits in adaptive behavior and
1413manifested during the period from conception to age 18. The term
1414"significantly subaverage general intellectual functioning," for
1415the purpose of this section, means performance that is two or
1416more standard deviations from the mean score on a standardized
1417intelligence test specified in the rules of the Agency for
1418Persons with Disabilities Department of Children and Family
1419Services. The term "adaptive behavior," for the purpose of this
1420definition, means the effectiveness or degree with which an
1421individual meets the standards of personal independence and
1422social responsibility expected of his or her age, cultural
1423group, and community. The Agency for Persons with Disabilities
1424Department of Children and Family Services shall adopt rules to
1425specify the standardized intelligence tests as provided in this
1426subsection.
1427     Section 24.  Paragraphs (d), (e), (g), and (h) of
1428subsection (1), subsections (2), (3), and (4), paragraph (b) of
1429subsection (5), and paragraph (a) of subsection (6) of section
1430985.223, Florida Statutes, are amended to read:
1431     985.223  Incompetency in juvenile delinquency cases.--
1432     (1)  If, at any time prior to or during a delinquency case,
1433the court has reason to believe that the child named in the
1434petition may be incompetent to proceed with the hearing, the
1435court on its own motion may, or on the motion of the child's
1436attorney or state attorney must, stay all proceedings and order
1437an evaluation of the child's mental condition.
1438     (d)  For incompetency evaluations related to mental
1439illness, the Department of Children and Family Services shall
1440maintain and annually provide the courts with a list of
1441available mental health professionals who have completed a
1442training program approved by the Department of Children and
1443Family Services to perform the evaluations.
1444     (e)  For incompetency evaluations related to mental
1445retardation or autism, the court shall order the Agency for
1446Persons with Disabilities Developmental Disabilities Program
1447Office within the Department of Children and Family Services to
1448examine the child to determine if the child meets the definition
1449of "retardation" or "autism" in s. 393.063 and, if so, whether
1450the child is competent to proceed with delinquency proceedings.
1451     (g)  Immediately upon the filing of the court order finding
1452a child incompetent to proceed, the clerk of the court shall
1453notify the Department of Children and Family Services and the
1454Agency for Persons with Disabilities and fax or hand deliver to
1455the department and to the agency of Children and Family Services
1456a referral packet that which includes, at a minimum, the court
1457order, the charging documents, the petition, and the court-
1458appointed evaluator's reports.
1459     (h)  After placement of the child in the appropriate
1460setting, the Department of Children and Family Services in
1461consultation with the Agency for Persons with Disabilities, as
1462appropriate, must, within 30 days after placement of the
1463Department of Children and Family Services places the child,
1464prepare and submit to the court a treatment or training plan for
1465the child's restoration of competency. A copy of the treatment
1466plan must be served upon the child's attorney, the state
1467attorney, and the attorneys representing the Department of
1468Juvenile Justice.
1469     (2)  A child who is mentally ill or retarded, who is
1470adjudicated incompetent to proceed, and who has committed a
1471delinquent act or violation of law, either of which would be a
1472felony if committed by an adult, must be committed to the
1473Department of Children and Family Services for treatment or
1474training. A child who has been adjudicated incompetent to
1475proceed because of age or immaturity, or for any reason other
1476than for mental illness or retardation or autism, must not be
1477committed to the department or to the Department of Children and
1478Family Services for restoration-of-competency treatment or
1479training services. For purposes of this section, a child who has
1480committed a delinquent act or violation of law, either of which
1481would be a misdemeanor if committed by an adult, may not be
1482committed to the department or to the Department of Children and
1483Family Services for restoration-of-competency treatment or
1484training services.
1485     (3)  If the court finds that a child has mental illness,
1486mental retardation, or autism is mentally ill or retarded and
1487adjudicates the child incompetent to proceed, the court must
1488also determine whether the child meets the criteria for secure
1489placement. A child may be placed in a secure facility or program
1490if the court makes a finding by clear and convincing evidence
1491that:
1492     (a)  The child has mental illness, mental retardation, or
1493autism is mentally ill and because of the mental illness, mental
1494retardation, or autism; or the child is mentally retarded and
1495because of the mental retardation:
1496     1.  The child is manifestly incapable of surviving with the
1497help of willing and responsible family or friends, including
1498available alternative services, and without treatment or
1499training the child is likely to either suffer from neglect or
1500refuse to care for self, and such neglect or refusal poses a
1501real and present threat of substantial harm to the child's well-
1502being; or
1503     2.  There is a substantial likelihood that in the near
1504future the child will inflict serious bodily harm on self or
1505others, as evidenced by recent behavior causing, attempting, or
1506threatening such harm; and
1507     (b)  All available less restrictive alternatives, including
1508treatment or training in community residential facilities or
1509community settings which would offer an opportunity for
1510improvement of the child's condition, are inappropriate.
1511     (4) A child who is determined to have mental illness,
1512mental retardation, or autism be mentally ill or retarded, who
1513has been adjudicated incompetent to proceed, and who meets the
1514criteria set forth in subsection (3), must be committed to the
1515Department of Children and Family Services, and receive
1516treatment or training the Department of Children and Family
1517Services must treat or train the child in a secure facility or
1518program that which is the least restrictive alternative
1519consistent with public safety. Any placement of a child to a
1520secure residential program must be separate from adult forensic
1521programs. If the child attains competency, then custody, case
1522management, and supervision of the child will be transferred to
1523the department in order to continue delinquency proceedings;
1524however, the court retains authority to order the Department of
1525Children and Family Services to provide continued treatment or
1526training to maintain competency.
1527     (a)  A child adjudicated incompetent due to mental
1528retardation or autism may be ordered into a secure program or
1529facility designated by the Department of Children and Family
1530Services for retarded children with mental retardation or
1531autism.
1532     (b)  A child adjudicated incompetent due to mental illness
1533may be ordered into a secure program or facility designated by
1534the Department of Children and Family Services for mentally ill
1535children have mental illnesses.
1536     (c)  Whenever a child is placed in a secure residential
1537facility, the department will provide transportation to the
1538secure residential facility for admission and from the secure
1539residential facility upon discharge.
1540     (d)  The purpose of the treatment or training is the
1541restoration of the child's competency to proceed.
1542     (e)  The service provider must file a written report with
1543the court pursuant to the applicable Florida Rules of Juvenile
1544Procedure not later than 6 months after the date of commitment,
1545or at the end of any period of extended treatment or training,
1546and at any time the Department of Children and Family Services,
1547through its service provider determines the child has attained
1548competency or no longer meets the criteria for secure placement,
1549or at such shorter intervals as ordered by the court. A copy of
1550a written report evaluating the child's competency must be filed
1551by the provider with the court and with the state attorney, the
1552child's attorney, the department, and the Department of Children
1553and Family Services.
1554     (5)
1555     (b)  Whenever the provider files a report with the court
1556informing the court that the child will never become competent
1557to proceed, the Department of Children and Family Services will
1558develop a discharge plan for the child prior to any hearing
1559determining whether the child will ever become competent to
1560proceed and send the. The Department of Children and Family
1561Services must send the proposed discharge plan to the court, the
1562state attorney, the child's attorney, and the attorneys
1563representing the Department of Juvenile Justice. The provider
1564will continue to provide services to the child until the court
1565issues the order finding the child will never become competent
1566to proceed.
1567     (6)(a)  If a child is determined to have mental illness,
1568mental retardation, or autism be mentally ill or retarded and is
1569found to be incompetent to proceed but does not meet the
1570criteria set forth in subsection (3), the court shall commit the
1571child to the Department of Children and Family Services and
1572shall order the Department of Children and Family Services to
1573provide appropriate treatment and training in the community. The
1574purpose of the treatment or training is the restoration of the
1575child's competency to proceed.
1576     Section 25.  Paragraph (b) of subsection (14) of section
1577287.057, Florida Statutes, is amended to read:
1578     287.057  Procurement of commodities or contractual
1579services.--
1580     (14)
1581     (b)  Notwithstanding paragraph (a), the Department of
1582Children and Family Services may enter into agreements, not to
1583exceed 20 years, with a private provider to finance, design, and
1584construct a forensic treatment facility, as defined in s.
1585916.106(10)(8), of at least 200 beds and to operate all aspects
1586of daily operations within the forensic treatment facility. The
1587selected contractor is authorized to sponsor the issuance of
1588tax-exempt certificates of participation or other securities to
1589finance the project, and the state is authorized to enter into a
1590lease-purchase agreement for the forensic treatment facility.
1591This paragraph expires July 1, 2006.
1592     Section 26.  Paragraph (r) of subsection (3) of section
1593408.036, Florida Statutes, is amended to read:
1594     408.036  Projects subject to review; exemptions.--
1595     (3)  EXEMPTIONS.--Upon request, the following projects are
1596subject to exemption from the provisions of subsection (1):
1597     (r)  For beds in state mental health treatment facilities
1598defined in s. 394.455 operated under s. 394.455(30) and state
1599mental health forensic facilities operated under chapter 916 s.
1600916.106(8).
1601     Section 27.  Paragraph (a) of subsection (4) of section
1602943.0585, Florida Statutes, is amended to read:
1603     943.0585  Court-ordered expunction of criminal history
1604records.--The courts of this state have jurisdiction over their
1605own procedures, including the maintenance, expunction, and
1606correction of judicial records containing criminal history
1607information to the extent such procedures are not inconsistent
1608with the conditions, responsibilities, and duties established by
1609this section. Any court of competent jurisdiction may order a
1610criminal justice agency to expunge the criminal history record
1611of a minor or an adult who complies with the requirements of
1612this section. The court shall not order a criminal justice
1613agency to expunge a criminal history record until the person
1614seeking to expunge a criminal history record has applied for and
1615received a certificate of eligibility for expunction pursuant to
1616subsection (2). A criminal history record that relates to a
1617violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
1618s. 796.03, s. 800.04, s. 817.034, s. 825.1025, s. 827.071,
1619chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135,
1620s. 916.1075, or a violation enumerated in s. 907.041 may not be
1621expunged, without regard to whether adjudication was withheld,
1622if the defendant was found guilty of or pled guilty or nolo
1623contendere to the offense, or if the defendant, as a minor, was
1624found to have committed, or pled guilty or nolo contendere to
1625committing, the offense as a delinquent act. The court may only
1626order expunction of a criminal history record pertaining to one
1627arrest or one incident of alleged criminal activity, except as
1628provided in this section. The court may, at its sole discretion,
1629order the expunction of a criminal history record pertaining to
1630more than one arrest if the additional arrests directly relate
1631to the original arrest. If the court intends to order the
1632expunction of records pertaining to such additional arrests,
1633such intent must be specified in the order. A criminal justice
1634agency may not expunge any record pertaining to such additional
1635arrests if the order to expunge does not articulate the
1636intention of the court to expunge a record pertaining to more
1637than one arrest. This section does not prevent the court from
1638ordering the expunction of only a portion of a criminal history
1639record pertaining to one arrest or one incident of alleged
1640criminal activity. Notwithstanding any law to the contrary, a
1641criminal justice agency may comply with laws, court orders, and
1642official requests of other jurisdictions relating to expunction,
1643correction, or confidential handling of criminal history records
1644or information derived therefrom. This section does not confer
1645any right to the expunction of any criminal history record, and
1646any request for expunction of a criminal history record may be
1647denied at the sole discretion of the court.
1648     (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any
1649criminal history record of a minor or an adult which is ordered
1650expunged by a court of competent jurisdiction pursuant to this
1651section must be physically destroyed or obliterated by any
1652criminal justice agency having custody of such record; except
1653that any criminal history record in the custody of the
1654department must be retained in all cases. A criminal history
1655record ordered expunged that is retained by the department is
1656confidential and exempt from the provisions of s. 119.07(1) and
1657s. 24(a), Art. I of the State Constitution and not available to
1658any person or entity except upon order of a court of competent
1659jurisdiction. A criminal justice agency may retain a notation
1660indicating compliance with an order to expunge.
1661     (a)  The person who is the subject of a criminal history
1662record that is expunged under this section or under other
1663provisions of law, including former s. 893.14, former s. 901.33,
1664and former s. 943.058, may lawfully deny or fail to acknowledge
1665the arrests covered by the expunged record, except when the
1666subject of the record:
1667     1.  Is a candidate for employment with a criminal justice
1668agency;
1669     2.  Is a defendant in a criminal prosecution;
1670     3.  Concurrently or subsequently petitions for relief under
1671this section or s. 943.059;
1672     4.  Is a candidate for admission to The Florida Bar;
1673     5.  Is seeking to be employed or licensed by or to contract
1674with the Department of Children and Family Services or the
1675Department of Juvenile Justice or to be employed or used by such
1676contractor or licensee in a sensitive position having direct
1677contact with children, the developmentally disabled, the aged,
1678or the elderly as provided in s. 110.1127(3), s. 393.063, s.
1679394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s.
1680409.175(2)(i), s. 415.102(4), chapter 916 s. 916.106(10) and
1681(13), s. 985.407, or chapter 400; or
1682     6.  Is seeking to be employed or licensed by the Department
1683of Education, any district school board, any university
1684laboratory school, any charter school, any private or parochial
1685school, or any local governmental entity that licenses child
1686care facilities.
1687     Section 28.  Paragraph (a) of subsection (4) of section
1688943.059, Florida Statutes, is amended to read:
1689     943.059  Court-ordered sealing of criminal history
1690records.--The courts of this state shall continue to have
1691jurisdiction over their own procedures, including the
1692maintenance, sealing, and correction of judicial records
1693containing criminal history information to the extent such
1694procedures are not inconsistent with the conditions,
1695responsibilities, and duties established by this section. Any
1696court of competent jurisdiction may order a criminal justice
1697agency to seal the criminal history record of a minor or an
1698adult who complies with the requirements of this section. The
1699court shall not order a criminal justice agency to seal a
1700criminal history record until the person seeking to seal a
1701criminal history record has applied for and received a
1702certificate of eligibility for sealing pursuant to subsection
1703(2). A criminal history record that relates to a violation of s.
1704393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
1705800.04, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s.
1706847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, or
1707a violation enumerated in s. 907.041 may not be sealed, without
1708regard to whether adjudication was withheld, if the defendant
1709was found guilty of or pled guilty or nolo contendere to the
1710offense, or if the defendant, as a minor, was found to have
1711committed or pled guilty or nolo contendere to committing the
1712offense as a delinquent act. The court may only order sealing of
1713a criminal history record pertaining to one arrest or one
1714incident of alleged criminal activity, except as provided in
1715this section. The court may, at its sole discretion, order the
1716sealing of a criminal history record pertaining to more than one
1717arrest if the additional arrests directly relate to the original
1718arrest. If the court intends to order the sealing of records
1719pertaining to such additional arrests, such intent must be
1720specified in the order. A criminal justice agency may not seal
1721any record pertaining to such additional arrests if the order to
1722seal does not articulate the intention of the court to seal
1723records pertaining to more than one arrest. This section does
1724not prevent the court from ordering the sealing of only a
1725portion of a criminal history record pertaining to one arrest or
1726one incident of alleged criminal activity. Notwithstanding any
1727law to the contrary, a criminal justice agency may comply with
1728laws, court orders, and official requests of other jurisdictions
1729relating to sealing, correction, or confidential handling of
1730criminal history records or information derived therefrom. This
1731section does not confer any right to the sealing of any criminal
1732history record, and any request for sealing a criminal history
1733record may be denied at the sole discretion of the court.
1734     (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A criminal
1735history record of a minor or an adult which is ordered sealed by
1736a court of competent jurisdiction pursuant to this section is
1737confidential and exempt from the provisions of s. 119.07(1) and
1738s. 24(a), Art. I of the State Constitution and is available only
1739to the person who is the subject of the record, to the subject's
1740attorney, to criminal justice agencies for their respective
1741criminal justice purposes, or to those entities set forth in
1742subparagraphs (a)1., 4., 5., and 6. for their respective
1743licensing and employment purposes.
1744     (a)  The subject of a criminal history record sealed under
1745this section or under other provisions of law, including former
1746s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
1747deny or fail to acknowledge the arrests covered by the sealed
1748record, except when the subject of the record:
1749     1.  Is a candidate for employment with a criminal justice
1750agency;
1751     2.  Is a defendant in a criminal prosecution;
1752     3.  Concurrently or subsequently petitions for relief under
1753this section or s. 943.0585;
1754     4.  Is a candidate for admission to The Florida Bar;
1755     5.  Is seeking to be employed or licensed by or to contract
1756with the Department of Children and Family Services or the
1757Department of Juvenile Justice or to be employed or used by such
1758contractor or licensee in a sensitive position having direct
1759contact with children, the developmentally disabled, the aged,
1760or the elderly as provided in s. 110.1127(3), s. 393.063, s.
1761394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s.
1762409.175(2)(i), s. 415.102(4), s. 415.103, chapter 916 s.
1763916.106(10) and (13), s. 985.407, or chapter 400; or
1764     6.  Is seeking to be employed or licensed by the Department
1765of Education, any district school board, any university
1766laboratory school, any charter school, any private or parochial
1767school, or any local governmental entity that licenses child
1768care facilities.
1769     Section 29.  This act shall take effect upon becoming a
1770law.


CODING: Words stricken are deletions; words underlined are additions.