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2 An act relating to violent felony offenders;
3 providing a short title; creating s. 903.0351,
4 F.S.; prohibiting bail or other pretrial
5 release for specified violent felony offenders
6 of special concern and certain arrested persons
7 pending a probation-violation hearing or
8 community-control-violation hearing; providing
9 exceptions; amending s. 948.06, F.S.; providing
10 definitions; providing that certain alleged
11 violations of probation or community control by
12 violent felony offenders of special concern and
13 certain arrested persons require a hearing and
14 require the alleged offenders to remain in
15 custody pending hearing; requiring findings by
16 the court and a decision on revocation of
17 probation or community control; creating s.
18 948.064, F.S.; providing for notification to
19 the criminal justice system of an offender's
20 status as a violent felony offender of special
21 concern or other specified offender; amending
22 s. 921.0024, F.S.; revising the worksheet
23 computations of the Criminal Punishment Code to
24 provide additional community sanction violation
25 points for certain community sanction
26 violations committed by violent felony
27 offenders of special concern; reenacting ss.
28 948.012(2)(b), 948.10(9), and 958.14, F.S.,
29 relating to split sentence of probation or
30 community control and imprisonment, community
31 control programs, and violation of probation or
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1 community control, respectively, to incorporate
2 the amendment to s. 948.06, F.S., in references
3 thereto; requiring a report on implementation
4 of this act; providing appropriations and
5 authorizing an additional full-time equivalent
6 position; providing for severability; providing
7 an effective date.
8
9 Be It Enacted by the Legislature of the State of Florida:
10
11 Section 1. This act may be cited as the "Anti-Murder
12 Act."
13 Section 2. Section 903.0351, Florida Statutes, is
14 created to read:
15 903.0351 Restrictions on pretrial release pending
16 probation-violation hearing or community-control-violation
17 hearing.--
18 (1) In the instance of an alleged violation of felony
19 probation or community control, bail or any other form of
20 pretrial release shall not be granted prior to the resolution
21 of the probation-violation hearing or the
22 community-control-violation hearing to:
23 (a) A violent felony offender of special concern as
24 defined in s. 948.06;
25 (b) A person who is on felony probation or community
26 control for any offense committed on or after the effective
27 date of this act and who is arrested for a qualifying offense
28 as defined in s. 948.06(8)(c); or
29 (c) A person who is on felony probation or community
30 control and has previously been found by a court to be a
31 habitual violent felony offender as defined in s.
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1 775.084(1)(b), a three-time violent felony offender as defined
2 in s. 775.084(1)(c), or a sexual predator under s. 775.21, and
3 who is arrested for committing a qualifying offense as defined
4 in s. 948.06(8)(c) on or after the effective date of this act.
5 (2) Subsection (1) shall not apply where the alleged
6 violation of felony probation or community control is based
7 solely on the probationer or offender's failure to pay costs
8 or fines or make restitution payments.
9 Section 3. Subsection (4) of section 948.06, Florida
10 Statutes, is amended, and subsection (8) is added to that
11 section, to read:
12 948.06 Violation of probation or community control;
13 revocation; modification; continuance; failure to pay
14 restitution or cost of supervision.--
15 (4) Notwithstanding any other provision of this
16 section, a felony probationer or an offender in community
17 control who is arrested for violating his or her probation or
18 community control in a material respect may be taken before
19 the court in the county or circuit in which the probationer or
20 offender was arrested. That court shall advise him or her of
21 the such charge of a violation and, if such charge is
22 admitted, shall cause him or her to be brought before the
23 court that which granted the probation or community control.
24 If the such violation is not admitted by the probationer or
25 offender, the court may commit him or her or release him or
26 her with or without bail to await further hearing. However, if
27 the probationer or offender is under supervision for any
28 criminal offense proscribed in chapter 794, s. 800.04(4), (5),
29 (6), s. 827.071, or s. 847.0145, or is a registered sexual
30 predator or a registered sexual offender, or is under
31 supervision for a criminal offense for which he or she would
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1 meet the registration criteria in s. 775.21, s. 943.0435, or
2 s. 944.607 but for the effective date of those sections, the
3 court must make a finding that the probationer or offender is
4 not a danger to the public prior to release with or without
5 bail. In determining the danger posed by the offender's or
6 probationer's release, the court may consider the nature and
7 circumstances of the violation and any new offenses charged;
8 the offender's or probationer's past and present conduct,
9 including convictions of crimes; any record of arrests without
10 conviction for crimes involving violence or sexual crimes; any
11 other evidence of allegations of unlawful sexual conduct or
12 the use of violence by the offender or probationer; the
13 offender's or probationer's family ties, length of residence
14 in the community, employment history, and mental condition;
15 his or her history and conduct during the probation or
16 community control supervision from which the violation arises
17 and any other previous supervisions, including disciplinary
18 records of previous incarcerations; the likelihood that the
19 offender or probationer will engage again in a criminal course
20 of conduct; the weight of the evidence against the offender or
21 probationer; and any other facts the court considers relevant.
22 The court, as soon as is practicable, shall give the
23 probationer or offender an opportunity to be fully heard on
24 his or her behalf in person or by counsel. After the such
25 hearing, the court shall make findings of fact and forward the
26 findings to the court that which granted the probation or
27 community control and to the probationer or offender or his or
28 her attorney. The findings of fact by the hearing court are
29 binding on the court that which granted the probation or
30 community control. Upon the probationer or offender being
31 brought before it, the court that which granted the probation
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1 or community control may revoke, modify, or continue the
2 probation or community control or may place the probationer
3 into community control as provided in this section. However,
4 the probationer or offender shall not be released and shall
5 not be admitted to bail, but shall be brought before the court
6 that granted the probation or community control if any
7 violation of felony probation or community control other than
8 a failure to pay costs or fines or make restitution payments
9 is alleged to have been committed by:
10 (a) A violent felony offender of special concern, as
11 defined in this section;
12 (b) A person who is on felony probation or community
13 control for any offense committed on or after the effective
14 date of this act and who is arrested for a qualifying offense
15 as defined in this section; or
16 (c) A person who is on felony probation or community
17 control and has previously been found by a court to be a
18 habitual violent felony offender as defined in s.
19 775.084(1)(b), a three-time violent felony offender as defined
20 in s. 775.084(1)(c), or a sexual predator under s. 775.21, and
21 who is arrested for committing a qualifying offense as defined
22 in this section on or after the effective date of this act.
23 (8)(a) In addition to complying with the provisions of
24 subsections (1)-(7), this subsection provides further
25 requirements regarding a probationer or offender in community
26 control who is a violent felony offender of special concern.
27 The provisions of this subsection shall control over any
28 conflicting provisions in subsections (1)-(7). For purposes of
29 this subsection, the term "convicted" means a determination of
30 guilt which is the result of a trial or the entry of a plea of
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1 guilty or nolo contendere, regardless of whether adjudication
2 is withheld.
3 (b) For purposes of this section and ss. 903.0351,
4 948.064, and 921.0024, the term "violent felony offender of
5 special concern" means a person who is on:
6 1. Felony probation or community control related to
7 the commission of a qualifying offense committed on or after
8 the effective date of this act;
9 2. Felony probation or community control for any
10 offense committed on or after the effective date of this act,
11 and has previously been convicted of a qualifying offense;
12 3. Felony probation or community control for any
13 offense committed on or after the effective date of this act,
14 and is found to have violated that probation or community
15 control by committing a qualifying offense;
16 4. Felony probation or community control and has
17 previously been found by a court to be a habitual violent
18 felony offender as defined in s. 775.084(1)(b) and has
19 committed a qualifying offense on or after the effective date
20 of this act;
21 5. Felony probation or community control and has
22 previously been found by a court to be a three-time violent
23 felony offender as defined in s. 775.084(1)(c) and has
24 committed a qualifying offense on or after the effective date
25 of this act; or
26 6. Felony probation or community control and has
27 previously been found by a court to be a sexual predator under
28 s. 775.21 and has committed a qualifying offense on or after
29 the effective date of this act.
30 (c) For purposes of this section, the term "qualifying
31 offense" means any of the following:
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1 1. Kidnapping or attempted kidnapping under s. 787.01,
2 false imprisonment of a child under the age of 13 under s.
3 787.02(3), or luring or enticing a child under s.
4 787.025(2)(b) or (c).
5 2. Murder or attempted murder under s. 782.04,
6 attempted felony murder under s. 782.051, or manslaughter
7 under s. 782.07.
8 3. Aggravated battery or attempted aggravated battery
9 under s. 784.045.
10 4. Sexual battery or attempted sexual battery under s.
11 794.011(2), (3), (4), or (8)(b) or (c).
12 5. Lewd or lascivious battery or attempted lewd or
13 lascivious battery under s. 800.04(4), lewd or lascivious
14 molestation under s. 800.04(5)(b) or (c)2., lewd or lascivious
15 conduct under s. 800.04(6)(b), or lewd or lascivious
16 exhibition under s. 800.04(7)(c).
17 6. Robbery or attempted robbery under s. 812.13,
18 carjacking or attempted carjacking under s. 812.133, or home
19 invasion robbery or attempted home invasion robbery under s.
20 812.135.
21 7. Lewd or lascivious offense upon or in the presence
22 of an elderly or disabled person or attempted lewd or
23 lascivious offense upon or in the presence of an elderly or
24 disabled person under s. 825.1025.
25 8. Sexual performance by a child or attempted sexual
26 performance by a child under s. 827.071.
27 9. Computer pornography under s. 847.0135(2) or (3),
28 transmission of child pornography under s. 847.0137, or
29 selling or buying of minors under s. 847.0145.
30 10. Poisoning food or water under s. 859.01.
31 11. Abuse of a dead human body under s. 872.06.
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1 12. Any burglary offense or attempted burglary offense
2 that is either a first-degree felony or second-degree felony
3 under s. 810.02(2) or (3).
4 13. Arson or attempted arson under s. 806.01(1).
5 14. Aggravated assault under s. 784.021.
6 15. Aggravated stalking under s. 784.048(3), (4), (5),
7 or (7).
8 16. Aircraft piracy under s. 860.16.
9 17. Unlawful throwing, placing, or discharging of a
10 destructive device or bomb under s. 790.161(2), (3), or (4).
11 18. Treason under s. 876.32.
12 19. Any offense committed in another jurisdiction
13 which would be an offense listed in this paragraph if that
14 offense had been committed in this state.
15 (d) In the case of an alleged violation of probation
16 or community control other than a failure to pay costs, fines,
17 or restitution, the following individuals shall remain in
18 custody pending the resolution of the probation or community
19 control violation:
20 1. A violent felony offender of special concern, as
21 defined in this section;
22 2. A person who is on felony probation or community
23 control for any offense committed on or after the effective
24 date of this act and who is arrested for a qualifying offense
25 as defined in this section; or
26 3. A person who is on felony probation or community
27 control and has previously been found by a court to be a
28 habitual violent felony offender as defined in s.
29 775.084(1)(b), a three-time violent felony offender as defined
30 in s. 775.084(1)(c), or a sexual predator under s. 775.21, and
31
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1 who is arrested for committing a qualifying offense as defined
2 in this section on or after the effective date of this act.
3
4 The court shall not dismiss the probation or community control
5 violation warrant pending against an offender enumerated in
6 this paragraph without holding a recorded
7 violation-of-probation hearing at which both the state and the
8 offender are represented.
9 (e) If the court, after conducting the hearing
10 required by paragraph (d), determines that a violent felony
11 offender of special concern has committed a violation of
12 probation or community control other than a failure to pay
13 costs, fines, or restitution, the court shall:
14 1. Make written findings as to whether or not the
15 violent felony offender of special concern poses a danger to
16 the community. In determining the danger to the community
17 posed by the offender's release, the court shall base its
18 findings on one or more of the following:
19 a. The nature and circumstances of the violation and
20 any new offenses charged.
21 b. The offender's present conduct, including criminal
22 convictions.
23 c. The offender's amenability to nonincarcerative
24 sanctions based on his or her history and conduct during the
25 probation or community control supervision from which the
26 violation hearing arises and any other previous supervisions,
27 including disciplinary records of previous incarcerations.
28 d. The weight of the evidence against the offender.
29 e. Any other facts the court considers relevant.
30 2. Decide whether to revoke the probation or community
31 control.
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1 a. If the court has found that a violent felony
2 offender of special concern poses a danger to the community,
3 the court shall revoke probation and shall sentence the
4 offender up to the statutory maximum, or longer if permitted
5 by law.
6 b. If the court has found that a violent felony
7 offender of special concern does not pose a danger to the
8 community, the court may revoke, modify, or continue the
9 probation or community control or may place the probationer
10 into community control as provided in this section.
11 Section 4. Section 948.064, Florida Statutes, is
12 created to read:
13 948.064 Notification of status as a violent felony
14 offender of special concern.--
15 (1) To facilitate the information available to the
16 court at first appearance hearings and at all subsequent
17 hearings for "violent felony offenders of special concern," as
18 defined in s. 948.06, the Department of Corrections shall, no
19 later than October 1, 2007, develop a system for identifying
20 the offenders in the department's database and post on the
21 Department of Law Enforcement's Criminal Justice Intranet a
22 listing of all "violent felony offenders of special concern"
23 who are under community supervision.
24 (2) The county where the arrested person is booked
25 shall provide the following information to the court at the
26 time of the first appearance:
27 (a) State and national criminal history information;
28 (b) All criminal justice information available in the
29 Florida Crime Information Center and the National Crime
30 Information Center; and
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1 (c) Notice that the arrested person meets the
2 requirement for restrictions on pretrial release pending the
3 probation-violation hearing or community-control-violation
4 hearing in s. 903.0351(1)(b).
5 (3) The courts shall assist the department's
6 dissemination of critical information by creating and
7 maintaining an automated system to provide the information as
8 specified in this section to the court with the jurisdiction
9 to conduct the hearings.
10 (4) The state attorney, or the statewide prosecutor if
11 applicable, shall advise the court at each critical stage in
12 the judicial process, at which the state attorney or statewide
13 prosecutor is represented, whether an alleged or convicted
14 offender is a violent felony offender of special concern; a
15 person who is on felony probation or community control for any
16 offense committed on or after the effective date of this act
17 and who is arrested for a qualifying offense; or a person who
18 is on felony probation or community control and has previously
19 been found by a court to be a habitual violent felony offender
20 as defined in s. 775.084(1)(b), a three-time violent felony
21 offender as defined in s. 775.084(1)(c), or a sexual predator
22 under s. 775.21, and who is arrested for committing a
23 qualifying offense on or after the effective date of this act.
24 Section 5. Paragraph (b) of subsection (1) of section
25 921.0024, Florida Statutes, is amended to read:
26 921.0024 Criminal Punishment Code; worksheet
27 computations; scoresheets.--
28 (1)
29
30 (b) WORKSHEET KEY:
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1 Legal status points are assessed when any form of legal status
2 existed at the time the offender committed an offense before
3 the court for sentencing. Four (4) sentence points are
4 assessed for an offender's legal status.
5
6 Community sanction violation points are assessed when a
7 community sanction violation is before the court for
8 sentencing. Six (6) sentence points are assessed for each
9 community sanction violation, and each successive community
10 sanction violation, unless any of the following apply:;
11 however,
12 1. If the community sanction violation includes a new
13 felony conviction before the sentencing court, twelve (12)
14 community sanction violation points are assessed for the such
15 violation, and for each successive community sanction
16 violation involving a new felony conviction.
17 2. If the community sanction violation is committed by
18 a violent felony offender of special concern as defined in s.
19 948.06:
20 a. Twelve (12) community sanction violation points are
21 assessed for the violation and for each successive violation
22 of felony probation or community control where:
23 (I) The violation does not include a new felony
24 conviction; and
25 (II) The community sanction violation is not based
26 solely on the probationer or offender's failure to pay costs
27 or fines or make restitution payments.
28 b. Twenty-four (24) community sanction violation
29 points are assessed for the violation and for each successive
30 violation of felony probation or community control where the
31 violation includes a new felony conviction.
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2 Multiple counts of community sanction violations before the
3 sentencing court shall not be a basis for multiplying the
4 assessment of community sanction violation points.
5
6 Prior serious felony points: If the offender has a primary
7 offense or any additional offense ranked in level 8, level 9,
8 or level 10, and one or more prior serious felonies, a single
9 assessment of thirty (30) 30 points shall be added. For
10 purposes of this section, a prior serious felony is an offense
11 in the offender's prior record that is ranked in level 8,
12 level 9, or level 10 under s. 921.0022 or s. 921.0023 and for
13 which the offender is serving a sentence of confinement,
14 supervision, or other sanction or for which the offender's
15 date of release from confinement, supervision, or other
16 sanction, whichever is later, is within 3 years before the
17 date the primary offense or any additional offense was
18 committed.
19
20 Prior capital felony points: If the offender has one or more
21 prior capital felonies in the offender's criminal record,
22 points shall be added to the subtotal sentence points of the
23 offender equal to twice the number of points the offender
24 receives for the primary offense and any additional offense. A
25 prior capital felony in the offender's criminal record is a
26 previous capital felony offense for which the offender has
27 entered a plea of nolo contendere or guilty or has been found
28 guilty; or a felony in another jurisdiction which is a capital
29 felony in that jurisdiction, or would be a capital felony if
30 the offense were committed in this state.
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1 Possession of a firearm, semiautomatic firearm, or machine
2 gun: If the offender is convicted of committing or attempting
3 to commit any felony other than those enumerated in s.
4 775.087(2) while having in his or her possession: a firearm as
5 defined in s. 790.001(6), an additional eighteen (18) 18
6 sentence points are assessed; or if the offender is convicted
7 of committing or attempting to commit any felony other than
8 those enumerated in s. 775.087(3) while having in his or her
9 possession a semiautomatic firearm as defined in s. 775.087(3)
10 or a machine gun as defined in s. 790.001(9), an additional
11 twenty-five (25) 25 sentence points are assessed.
12
13 Sentencing multipliers:
14
15 Drug trafficking: If the primary offense is drug trafficking
16 under s. 893.135, the subtotal sentence points are multiplied,
17 at the discretion of the court, for a level 7 or level 8
18 offense, by 1.5. The state attorney may move the sentencing
19 court to reduce or suspend the sentence of a person convicted
20 of a level 7 or level 8 offense, if the offender provides
21 substantial assistance as described in s. 893.135(4).
22
23 Law enforcement protection: If the primary offense is a
24 violation of the Law Enforcement Protection Act under s.
25 775.0823(2), the subtotal sentence points are multiplied by
26 2.5. If the primary offense is a violation of s. 775.0823(3),
27 (4), (5), (6), (7), or (8), the subtotal sentence points are
28 multiplied by 2.0. If the primary offense is a violation of s.
29 784.07(3) or s. 775.0875(1), or of the Law Enforcement
30 Protection Act under s. 775.0823(9) or (10), the subtotal
31 sentence points are multiplied by 1.5.
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2 Grand theft of a motor vehicle: If the primary offense is
3 grand theft of the third degree involving a motor vehicle and
4 in the offender's prior record, there are three or more grand
5 thefts of the third degree involving a motor vehicle, the
6 subtotal sentence points are multiplied by 1.5.
7
8 Offense related to a criminal street gang: If the offender is
9 convicted of the primary offense and committed that offense
10 for the purpose of benefiting, promoting, or furthering the
11 interests of a criminal street gang as prohibited under s.
12 874.04, the subtotal sentence points are multiplied by 1.5.
13
14 Domestic violence in the presence of a child: If the offender
15 is convicted of the primary offense and the primary offense is
16 a crime of domestic violence, as defined in s. 741.28, which
17 was committed in the presence of a child under 16 years of age
18 who is a family or household member as defined in s. 741.28(3)
19 with the victim or perpetrator, the subtotal sentence points
20 are multiplied by 1.5.
21 Section 6. For the purpose of incorporating the
22 amendment made by this act to section 948.06, Florida
23 Statutes, in a reference thereto, paragraph (b) of subsection
24 (2) of section 948.012, Florida Statutes, is reenacted to
25 read:
26 948.012 Split sentence of probation or community
27 control and imprisonment.--
28 (2) The court may also impose a split sentence whereby
29 the defendant is sentenced to a term of probation which may be
30 followed by a period of incarceration or, with respect to a
31 felony, into community control, as follows:
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1 (b) If the offender does not meet the terms and
2 conditions of probation or community control, the court may
3 revoke, modify, or continue the probation or community control
4 as provided in s. 948.06. If the probation or community
5 control is revoked, the court may impose any sentence that it
6 could have imposed at the time the offender was placed on
7 probation or community control. The court may not provide
8 credit for time served for any portion of a probation or
9 community control term toward a subsequent term of probation
10 or community control. However, the court may not impose a
11 subsequent term of probation or community control which, when
12 combined with any amount of time served on preceding terms of
13 probation or community control for offenses pending before the
14 court for sentencing, would exceed the maximum penalty
15 allowable as provided in s. 775.082. Such term of
16 incarceration shall be served under applicable law or county
17 ordinance governing service of sentences in state or county
18 jurisdiction. This paragraph does not prohibit any other
19 sanction provided by law.
20 Section 7. For the purpose of incorporating the
21 amendment made by this act to section 948.06, Florida
22 Statutes, in a reference thereto, subsection (9) of section
23 948.10, Florida Statutes, is reenacted to read:
24 948.10 Community control programs.--
25 (9) Procedures governing violations of community
26 control shall be the same as those described in s. 948.06 with
27 respect to probation.
28 Section 8. For the purpose of incorporating the
29 amendment made by this act to section 948.06, Florida
30 Statutes, in a reference thereto, section 958.14, Florida
31 Statutes, is reenacted to read:
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1 958.14 Violation of probation or community control
2 program.--A violation or alleged violation of probation or the
3 terms of a community control program shall subject the
4 youthful offender to the provisions of s. 948.06. However, no
5 youthful offender shall be committed to the custody of the
6 department for a substantive violation for a period longer
7 than the maximum sentence for the offense for which he or she
8 was found guilty, with credit for time served while
9 incarcerated, or for a technical or nonsubstantive violation
10 for a period longer than 6 years or for a period longer than
11 the maximum sentence for the offense for which he or she was
12 found guilty, whichever is less, with credit for time served
13 while incarcerated.
14 Section 9. (1) The Department of Corrections shall
15 coordinate preparation of a report on implementation of the
16 Anti-Murder Act and shall submit the report to the Governor,
17 the President of the Senate, and the Speaker of the House of
18 Representatives no later than February 1, 2008.
19 (2) The department shall convene the participation of,
20 and coordinate preparation of the report with, representatives
21 of:
22 (a) The Office of the State Courts Administrator on
23 behalf of the state courts system;
24 (b) The Florida Prosecuting Attorneys Association;
25 (c) The Florida Public Defender Association;
26 (d) The Florida Association of Criminal Defense
27 Lawyers; and
28 (e) Any other units of government, organizations, or
29 entities which the department considers necessary.
30 (3) At a minimum, the report must identify any legal,
31 fiscal, or administrative impediments to full implementation
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1 of this act and recommend any legislative action related to
2 implementation of this act.
3 Section 10. The sums of $39,906 in recurring funds and
4 $221,526 in nonrecurring funds are appropriated from the
5 General Revenue Fund to the Office of State Courts
6 Administrator for the 2006-2007 fiscal year for the purpose of
7 implementing the provisions of this act, and one full-time
8 equivalent position and associated rate of 53,093 are
9 authorized. The sum of $46,330 in recurring funds is
10 appropriated from the General Revenue Fund to the Office of
11 State Courts Administrator for the 2007-2008 fiscal year.
12 Section 11. The sum of $158,756 in recurring funds is
13 appropriated from the General Revenue Fund to the Department
14 of Corrections for operating costs for the 2006-2007 fiscal
15 year. The sum of $316,180 in recurring funds is appropriated
16 from the General Revenue Fund to the Department of Corrections
17 for operating costs for the 2007-2008 fiscal year.
18 Section 12. If any provision of this act or its
19 application to any person or circumstance is held invalid, the
20 invalidity does not affect other provisions or applications of
21 the act which can be given effect without the invalid
22 provision or application, and to this end the provisions of
23 this act are severable.
24 Section 13. This act shall take effect upon becoming a
25 law.
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CODING: Words stricken are deletions; words underlined are additions.