Senate Bill sb2150

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    Florida Senate - 2007                                  SB 2150

    By Senator Wilson





    33-45A-07

  1                      A bill to be entitled

  2         An act relating to the sentencing of juveniles;

  3         amending s. 985.565, F.S.; authorizing the

  4         court to sentence a juvenile using juvenile

  5         sanctions, adult sanctions, or a blend of

  6         juvenile and adult sanctions; requiring the

  7         Department of Juvenile Justice to file a

  8         written report with the court if the department

  9         believes the child's sanction is inappropriate;

10         providing that the court may place the child on

11         probation; requiring the department to notify

12         the court before it discharges a child from a

13         sanction; requiring the court to review the

14         child's educational needs-assessment and make

15         specific findings as to the child's educational

16         status; authorizing the court to order that the

17         child attain appropriate educational goals;

18         listing certain educationally appropriate

19         goals; reenacting s. 985.556(1), F.S., relating

20         to the voluntary waiver of juvenile court

21         jurisdiction, to incorporate the amendments

22         made to s. 985.565, F.S., in a reference

23         thereto; providing an effective date.

24  

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

26  

27         Section 1.  Section 985.565, Florida Statutes, is

28  amended to read:

29         985.565  Sentencing powers; procedures; alternatives

30  and blended sanctions for juveniles prosecuted as adults;

31  educational attainment.--

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    Florida Senate - 2007                                  SB 2150
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 1         (1)  POWERS OF DISPOSITION.--

 2         (a)  A child who is found to have committed a violation

 3  of law may, as an alternative to adult dispositions, be

 4  committed to the department for treatment in an appropriate

 5  program for children outside the adult correctional system or

 6  be placed on juvenile probation.

 7         (b)  In determining whether to impose juvenile

 8  sanctions, instead of adult sanctions, or blended juvenile and

 9  adult sanctions, the court shall consider the following

10  criteria:

11         1.  The seriousness of the offense to the community and

12  whether the community would best be protected by juvenile or

13  adult sanctions.

14         2.  Whether the offense was committed in an aggressive,

15  violent, premeditated, or willful manner.

16         3.  Whether the offense was against persons or against

17  property, with greater weight being given to offenses against

18  persons, especially if personal injury resulted.

19         4.  The sophistication and maturity of the offender.

20         5.  The record and previous history of the offender,

21  including:

22         a.  Previous contacts with the Department of

23  Corrections, the Department of Juvenile Justice, the former

24  Department of Health and Rehabilitative Services, the

25  Department of Children and Family Services, law enforcement

26  agencies, and the courts.

27         b.  Prior periods of probation.

28         c.  Prior adjudications that the offender committed a

29  delinquent act or violation of law as a child.

30         d.  Prior commitments to the Department of Juvenile

31  Justice, the former Department of Health and Rehabilitative

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    Florida Senate - 2007                                  SB 2150
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 1  Services, the Department of Children and Family Services, or

 2  other facilities or institutions.

 3         6.  The prospects for adequate protection of the public

 4  and the likelihood of deterrence and reasonable rehabilitation

 5  of the offender if assigned to services and facilities of the

 6  Department of Juvenile Justice.

 7         7.  Whether the Department of Juvenile Justice has

 8  appropriate programs, facilities, and services immediately

 9  available.

10         8.  Whether adult sanctions would provide more

11  appropriate punishment and deterrence to further violations of

12  law than the imposition of juvenile sanctions.

13         (2)  PRESENTENCE INVESTIGATION REPORT.--

14         (a)  Upon a plea of guilty or no contest, the court may

15  refer the case to the department for investigation and

16  recommendation as to the suitability of its programs for the

17  child.

18         (b)  Upon completion of the presentence investigation

19  report, it must be made available to the child's counsel and

20  the state attorney by the department prior to the sentencing

21  hearing.

22         (3)  SENTENCING HEARING.--

23         (a)  At the sentencing hearing the court shall receive

24  and consider a presentence investigation report by the

25  Department of Corrections regarding the suitability of the

26  offender for disposition as an adult or as a juvenile. The

27  presentence investigation report must include a comments

28  section prepared by the Department of Juvenile Justice, with

29  its recommendations as to disposition. This report requirement

30  may be waived by the offender.

31  

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 1         (b)  After considering the presentence investigation

 2  report, the court shall give all parties present at the

 3  hearing an opportunity to comment on the issue of sentence and

 4  any proposed rehabilitative plan. Parties to the case include

 5  the parent, guardian, or legal custodian of the offender; the

 6  offender's counsel; the state attorney; representatives of the

 7  Department of Corrections and the Department of Juvenile

 8  Justice; the victim or victim's representative;

 9  representatives of the school system; and the law enforcement

10  officers involved in the case.

11         (c)  The court may receive and consider any other

12  relevant and material evidence, including other reports,

13  written or oral, in its effort to determine the action to be

14  taken with regard to the child, and may rely upon such

15  evidence to the extent of its probative value even if the

16  evidence would not be competent in an adjudicatory hearing.

17         (d)  The court shall notify any victim of the offense

18  of the hearing and shall notify, or subpoena if appropriate,

19  the parents, guardians, or legal custodians of the child to

20  attend the disposition hearing.

21         (4)  SENTENCING ALTERNATIVES.--

22         (a)  Adult sanctions.--

23         1.  Cases prosecuted on indictment.--If the child is

24  found to have committed the offense punishable by death or

25  life imprisonment, the child shall be sentenced as an adult.

26  If the juvenile is not found to have committed the indictable

27  offense but is found to have committed a lesser included

28  offense or any other offense for which he or she was indicted

29  as a part of the criminal episode, the court may sentence as

30  follows:

31         a.  As an adult;

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    Florida Senate - 2007                                  SB 2150
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 1         b.  Under chapter 958; or

 2         c.  As a juvenile under this section.

 3         2.  Other cases.--If a child who has been transferred

 4  for criminal prosecution pursuant to information or waiver of

 5  juvenile court jurisdiction is found to have committed a

 6  violation of state law or a lesser included offense for which

 7  he or she was charged as a part of the criminal episode, the

 8  court may sentence as follows:

 9         a.  As an adult;

10         b.  Under chapter 958; or

11         c.  As a juvenile under this section.

12         3.  Notwithstanding any other provision to the

13  contrary, if the state attorney is required to file a motion

14  to transfer and certify the juvenile for prosecution as an

15  adult under s. 985.556(3) and that motion is granted, or if

16  the state attorney is required to file an information under s.

17  985.557(2)(a) or (b), the court must impose adult sanctions.

18         4.  Any sentence imposing adult sanctions is presumed

19  appropriate, and the court is not required to set forth

20  specific findings or enumerate the criteria in this subsection

21  as any basis for its decision to impose adult sanctions.

22         5.  When a child has been transferred for criminal

23  prosecution as an adult and has been found to have committed a

24  violation of state law, the disposition of the case may

25  include the enforcement of any restitution ordered in any

26  juvenile proceeding.

27         (b)  Juvenile sanctions.--For juveniles transferred to

28  adult court but who do not qualify for such transfer under s.

29  985.556(3) or s. 985.557(2)(a) or (b), the court may impose

30  juvenile sanctions under this paragraph. If juvenile sanctions

31  sentences are imposed, the court shall, under this paragraph,

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    Florida Senate - 2007                                  SB 2150
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 1  adjudge the child to have committed a delinquent act.

 2  Adjudication of delinquency shall not be deemed a conviction,

 3  nor shall it operate to impose any of the civil disabilities

 4  ordinarily resulting from a conviction. The court shall impose

 5  an adult sanction or a juvenile sanction or and may not

 6  sentence the child to blended juvenile and adult sanctions a

 7  combination of adult and juvenile punishments. An adult

 8  sanction or A juvenile sanction or a blended juvenile and

 9  adult sanction may include enforcement of an order of

10  restitution or probation previously ordered in any juvenile

11  proceeding. However, if the court imposes a juvenile sanction

12  and the department determines that the sanction is

13  inappropriate unsuitable for the child, the department shall

14  provide the sentencing court with a written report outlining

15  the basis for its objections to the juvenile sanction and

16  shall simultaneously provide a copy to the state attorney and

17  defense counsel. The department shall return custody of the

18  child to the sentencing court for further proceedings,

19  including the imposition of juvenile sanctions, blended

20  juvenile and adult sanctions, alternative sanctions, or adult

21  sanctions. Upon adjudicating a child delinquent under

22  subsection (1), the court may sentence the child to juvenile

23  probation, juvenile commitment, blended juvenile and adult

24  sanctions, or to alternative sanctions under ss. 985.435,

25  985.437, 985.439, 985.441, 985.445, 985.45, and 985.455:

26         1.  The court may place the child on in a probation

27  program under the supervision of the department for an

28  indeterminate period of time until the child reaches the age

29  of 21 19 years or sooner if discharged by order of the court.

30  If at any time before the child's 21st birthday the department

31  seeks to discharge the child from juvenile probation, the

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    Florida Senate - 2007                                  SB 2150
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 1  department shall notify the sentencing court of its intent to

 2  discharge the child no later than 30 days before the

 3  discharge. The department shall file a written notice of its

 4  proposal with the clerk of the court and give a copy of the

 5  written notice to the sentencing judge, the state attorney,

 6  and defense counsel at the time it files the notice with the

 7  clerk of the court. Failure of the sentencing court or the

 8  state attorney to object to the department's notice of

 9  discharge within the 30-day period shall be construed as

10  approval of the proposed discharge. If there is no objection,

11  the clerk of the court shall close the case.

12         2.  The court may commit the child to the department

13  for treatment in an appropriate program for children for an

14  indeterminate period of time until the child is 21 or sooner

15  if discharged by order of the court department. If, at any

16  time prior to the child's 21st birthday, the department seeks

17  to discharge the child from a commitment or after-care

18  program, the department shall notify the sentencing court of

19  its intent to discharge the child no later than 30 14 days

20  prior to discharge. The department shall file a written notice

21  of its proposal with the clerk of the court and give a copy of

22  the written notice to the sentencing judge, the state

23  attorney, and defense counsel at the time it files the notice

24  with the clerk of the court. Failure of the sentencing court

25  or the state attorney to object timely respond to the

26  department's notice of discharge within the 30-day period

27  shall be considered as approval for discharge. If there is no

28  objection, the clerk of the court shall close the case.

29         3.  The court may commit the child to the department

30  for treatment in an appropriate program for children for an

31  indeterminate period of time until the child is 21 years of

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    Florida Senate - 2007                                  SB 2150
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 1  age or sooner if discharged by order of the court, followed by

 2  probation under the supervision of the Department of

 3  Corrections. The department shall notify the sentencing court

 4  of its intent to discharge the child no later than 30 days

 5  before the discharge. The department must file a written

 6  notice of its proposal with the clerk of the court and give a

 7  copy of the notice to the sentencing judge, the Department of

 8  Corrections, the state attorney, and defense counsel at the

 9  time it files the notice with the clerk of the court. Failure

10  of the sentencing court or the state attorney to object to the

11  department's notice of discharge within the 30-day period

12  shall be construed as approval of the proposed discharge. An

13  order to discharge may not be entered until the Department of

14  Corrections has met with the child and explained the terms of

15  probation.

16         4.3.  The court may order disposition under ss.

17  985.435, 985.437, 985.439, 985.441, 985.445, 985.45, and

18  985.455 as an alternative to youthful offender or adult

19  sentencing if the court determines not to impose youthful

20  offender or adult sanctions.

21         5.  Upon sentencing a child under subsection (1) to

22  juvenile probation, juvenile commitment, blended juvenile and

23  adult sanctions, or alternative sanctions, the court shall

24  consider the educational needs-assessment conducted pursuant

25  to 985.18(1) and (2), the predisposition report, together with

26  any other report prepared pursuant to s. 985.43(1) and (2),

27  and any other relevant information. The court shall make a

28  finding as to the child's educational status, including, but

29  not limited to, the child's strengths, abilities, and unmet

30  and special educational needs. The court may enter an order,

31  as a condition of probation or commitment, that the child

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    Florida Senate - 2007                                  SB 2150
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 1  attain an appropriate educational goal or goals. Examples of

 2  appropriate educationally based goals are:

 3         a.  Attainment of a high school diploma or its

 4  equivalent.

 5         b.  Successful completion of literacy courses.

 6         c.  Successful completion of vocational courses.

 7         d.  Attendance and successful completion of the child's

 8  current grade if enrolled in school.

 9         e.  Enrollment in an apprenticeship or similar program.

10         (c)  Adult sanctions upon failure of juvenile

11  sanctions.--If a child proves not to be suitable to a

12  commitment program, juvenile probation program, or treatment

13  program under paragraph (b), the department shall provide the

14  sentencing court with a written report outlining the basis for

15  its objections to the juvenile sanction and shall

16  simultaneously provide a copy of the report to the state

17  attorney and the defense counsel. The department shall

18  schedule a hearing within 30 days. Upon hearing, the court may

19  revoke the previous adjudication, impose an adjudication of

20  guilt, and impose any sentence which it may lawfully impose,

21  giving credit for all time spent by the child in the

22  department. The court may also classify the child as a

23  youthful offender under s. 958.04, if appropriate. For

24  purposes of this paragraph, a child may be found not suitable

25  to a commitment program, community control program, or

26  treatment program under paragraph (b) if the child commits a

27  new violation of law while under juvenile sanctions, if the

28  child commits any other violation of the conditions of

29  juvenile sanctions, or if the child's actions are otherwise

30  determined by the court to demonstrate a failure of juvenile

31  sanctions.

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 1         (d)  Further proceedings heard in adult court.--When a

 2  child is sentenced to juvenile sanctions, further proceedings

 3  involving those sanctions shall continue to be heard in the

 4  adult court.

 5         (e)  School attendance.--If the child is attending or

 6  is eligible to attend public school and the court finds that

 7  the victim or a sibling of the victim in the case is attending

 8  or may attend the same school as the child, the court

 9  placement order shall include a finding pursuant to the

10  proceeding described in s. 985.455(2), regardless of whether

11  adjudication is withheld.

12  

13  It is the intent of the Legislature that the criteria and

14  guidelines in this subsection are mandatory and that a

15  determination of disposition under this subsection is subject

16  to the right of the child to appellate review under s.

17  985.534.

18         Section 2.  For the purpose of incorporating the

19  amendments made by this act to section 985.565, Florida

20  Statutes, in a reference thereto, subsection (1) of section

21  985.556, Florida Statutes, is reenacted to read:

22         985.556  Waiver of juvenile court jurisdiction;

23  hearing.--

24         (1)  VOLUNTARY WAIVER.--The court shall transfer and

25  certify a child's criminal case for trial as an adult if the

26  child is alleged to have committed a violation of law and,

27  prior to the commencement of an adjudicatory hearing, the

28  child, joined by a parent or, in the absence of a parent, by

29  the guardian or guardian ad litem, demands in writing to be

30  tried as an adult. Once a child has been transferred for

31  criminal prosecution pursuant to a voluntary waiver hearing

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 1  and has been found to have committed the presenting offense or

 2  a lesser included offense, the child shall be handled

 3  thereafter in every respect as an adult for any subsequent

 4  violation of state law, unless the court imposes juvenile

 5  sanctions under s. 985.565(4)(b).

 6         Section 3.  This act shall take effect October 1, 2007.

 7  

 8            *****************************************

 9                          SENATE SUMMARY

10    Authorizes the court to sentence a juvenile using
      juvenile sanctions, adult sanctions, or a blend of
11    juvenile and adult sanctions. Requires the Department of
      Juvenile Justice to file a written report with the court
12    if the department believes the child's sanction is
      inappropriate. Requires the department to notify the
13    court before it removes a sanction. Requires the court to
      review the child's educational needs-assessment and make
14    specific findings as to the child's educational status.
      Authorizes the court to order that the child attain
15    appropriate educational goals.

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