CS/HB 29

1
A bill to be entitled
2An act relating to violent felony offenders; providing a
3short title; creating s. 903.0351, F.S.; prohibiting bail
4or other pretrial release for specified violent felony
5offenders of special concern and certain arrested persons
6pending a probation or community control violation
7hearing; providing exceptions; amending s. 948.06, F.S.;
8providing definitions; providing that certain alleged
9violations of probation or community control by violent
10felony offenders of special concern and certain arrested
11persons require a hearing and require the alleged
12offenders to remain in custody pending hearing; requiring
13findings by the court and a decision on revocation of
14probation or community control; creating s. 948.064, F.S.;
15providing for notification to the criminal justice system
16of an offender's status as a violent felony offender of
17special concern or other specified offender; amending s.
18921.0024, F.S.; revising the worksheet computations of the
19Criminal Punishment Code to provide additional community
20sanction violation points for certain community sanction
21violations committed by violent felony offenders of
22special concern; reenacting ss. 948.012(2)(b), 948.10(9),
23and 958.14, F.S., relating to split sentence of probation
24or community control and imprisonment, community control
25programs, and violation of probation or community control,
26respectively, to incorporate the amendment to s. 948.06,
27F.S., in references thereto; requiring a report on
28implementation of this act; providing for severability;
29providing an effective date.
30
31Be It Enacted by the Legislature of the State of Florida:
32
33     Section 1.  This act may be cited as the "Anti-Murder Act."
34     Section 2.  Section 903.0351, Florida Statutes, is created
35to read:
36     903.0351  Restrictions on pretrial release pending
37probation or community control violation hearing.--
38     (1)  In the instance of an alleged violation of felony
39probation or community control, bail or any other form of
40pretrial release shall not be granted prior to the resolution of
41the probation or community control violation hearing to:
42     (a)  A violent felony offender of special concern as
43defined in s. 948.06;
44     (b)  A person who is on felony probation or community
45control for any offense committed on or after the effective date
46of this act and who is arrested for a qualifying offense as
47defined in s. 948.06(8)(c); or
48     (c)  A person who is on felony probation or community
49control and has previously been found by a court to be a
50habitual violent felony offender as defined by s. 775.084(1)(b),
51a three-time violent felony offender as defined by s.
52775.084(1)(c), or a sexual predator under s. 775.21, and who is
53arrested for committing a qualifying offense as defined in s.
54948.06(8)(c) on or after the effective date of this act.
55     (2)  Subsection (1) shall not apply where the alleged
56violation of felony probation or community control is based
57solely on the probationer's or offender's failure to pay costs
58or fines or make restitution payments.
59     Section 3.  Subsection (4) of section 948.06, Florida
60Statutes, is amended, and subsection (8) is added to that
61section, to read:
62     948.06  Violation of probation or community control;
63revocation; modification; continuance; failure to pay
64restitution or cost of supervision.--
65     (4)  Notwithstanding any other provision of this section, a
66felony probationer or an offender in community control who is
67arrested for violating his or her probation or community control
68in a material respect may be taken before the court in the
69county or circuit in which the probationer or offender was
70arrested. That court shall advise him or her of the such charge
71of a violation and, if such charge is admitted, shall cause him
72or her to be brought before the court that which granted the
73probation or community control. If the such violation is not
74admitted by the probationer or offender, the court may commit
75him or her or release him or her with or without bail to await
76further hearing. However, if the probationer or offender is
77under supervision for any criminal offense proscribed in chapter
78794, s. 800.04(4), (5), (6), s. 827.071, or s. 847.0145, or is a
79registered sexual predator or a registered sexual offender, or
80is under supervision for a criminal offense for which he or she
81would meet the registration criteria in s. 775.21, s. 943.0435,
82or s. 944.607 but for the effective date of those sections, the
83court must make a finding that the probationer or offender is
84not a danger to the public prior to release with or without
85bail. In determining the danger posed by the offender's or
86probationer's release, the court may consider the nature and
87circumstances of the violation and any new offenses charged; the
88offender's or probationer's past and present conduct, including
89convictions of crimes; any record of arrests without conviction
90for crimes involving violence or sexual crimes; any other
91evidence of allegations of unlawful sexual conduct or the use of
92violence by the offender or probationer; the offender's or
93probationer's family ties, length of residence in the community,
94employment history, and mental condition; his or her history and
95conduct during the probation or community control supervision
96from which the violation arises and any other previous
97supervisions, including disciplinary records of previous
98incarcerations; the likelihood that the offender or probationer
99will engage again in a criminal course of conduct; the weight of
100the evidence against the offender or probationer; and any other
101facts the court considers relevant. The court, as soon as is
102practicable, shall give the probationer or offender an
103opportunity to be fully heard on his or her behalf in person or
104by counsel. After the such hearing, the court shall make
105findings of fact and forward the findings to the court that
106which granted the probation or community control and to the
107probationer or offender or his or her attorney. The findings of
108fact by the hearing court are binding on the court that which
109granted the probation or community control. Upon the probationer
110or offender being brought before it, the court which granted the
111probation or community control may revoke, modify, or continue
112the probation or community control or may place the probationer
113into community control as provided in this section. However, the
114probationer or offender shall not be released and shall not be
115admitted to bail, but shall be brought before the court that
116granted the probation or community control, if any violation of
117felony probation or community control other than a failure to
118pay costs or fines or make restitution payments is alleged to
119have been committed by:
120     (a)  A violent felony offender of special concern, as
121defined in this section;
122     (b)  A person who is on felony probation or community
123control for any offense committed on or after the effective date
124of this act and who is arrested for a qualifying offense as
125defined in this section; or
126     (c)  A person who is on felony probation or community
127control and has previously been found by a court to be a
128habitual violent felony offender as defined by s. 775.084(1)(b),
129a three-time violent felony offender as defined by s.
130775.084(1)(c), or a sexual predator under s. 775.21, and who is
131arrested for committing a qualifying offense as defined in this
132section on or after the effective date of this act.
133     (8)(a)  In addition to complying with the provisions of
134subsections (1)-(7), this subsection provides further
135requirements regarding a probationer or offender in community
136control who is a violent felony offender of special concern. The
137provisions of this subsection shall control over any conflicting
138provisions in subsections (1)-(7). For purposes of this
139subsection, the term "convicted" means that there has been a
140determination of guilt which is the result of a trial or the
141entry of a plea of guilty or nolo contendere, regardless of
142whether adjudication is withheld.
143     (b)  For purposes of this section and ss. 903.0351,
144948.064, and 921.0024, the term "violent felony offender of
145special concern" means a person who is on:
146     1.  Felony probation or community control related to the
147commission of a qualifying offense committed on or after the
148effective date of this act;
149     2.  Felony probation or community control for any offense
150committed on or after the effective date of this act and has
151previously been convicted of a qualifying offense;
152     3.  Felony probation or community control for any offense
153committed on or after the effective date of this act and is
154found to have violated that probation or community control by
155committing a qualifying offense;
156     4.  Felony probation or community control and has
157previously been found by a court to be a habitual violent felony
158offender as defined in s. 775.084(1)(b) and has committed a
159qualifying offense on or after the effective date of this act;
160     5.  Felony probation or community control and has
161previously been found by a court to be a three-time violent
162felony offender as defined in s. 775.084(1)(c) and has committed
163a qualifying offense on or after the effective date of this act;
164or
165     6.  Felony probation or community control and has
166previously been found by a court to be a sexual predator under
167s. 775.21 and has committed a qualifying offense on or after the
168effective date of this act.
169     (c)  For purposes of this section, the term "qualifying
170offense" means any of the following:
171     1.  Kidnapping or attempted kidnapping under s. 787.01,
172false imprisonment of a child under the age of 13 under s.
173787.02(3), or luring or enticing a child under s. 787.025(2)(b)_
174or (c).
175     2.  Murder or attempted murder under s. 782.04, attempted
176felony murder under s. 782.051, or manslaughter under s. 782.07.
177     3.  Aggravated battery or attempted aggravated battery
178under s. 784.045.
179     4.  Sexual battery or attempted sexual battery under s.
180794.011(2), (3), (4), or (8)(b) or (c).
181     5.  Lewd or lascivious battery or attempted lewd or
182lascivious battery under s. 800.04(4), lewd or lascivious
183molestation under s. 800.04(5)(b) or (c)2., lewd or lascivious
184conduct under s. 800.04(6)(b), or lewd or lascivious exhibition
185under s. 800.04(7)(c).
186     6.  Robbery or attempted robbery under s. 812.13,
187carjacking or attempted carjacking under s. 812.133, or home
188invasion robbery or attempted home invasion robbery under s.
189812.135.
190     7.  Lewd or lascivious offense upon or in the presence of
191an elderly or disabled person or attempted lewd or lascivious
192offense upon or in the presence of an elderly or disabled person
193under s. 825.1025.
194     8.  Sexual performance by a child or attempted sexual
195performance by a child under s. 827.071.
196     9.  Computer pornography under s. 847.0135(2) or (3),
197transmission of child pornography under s. 847.0137, or selling
198or buying of minors under s. 847.0145.
199     10.  Poisoning food or water under s. 859.01.
200     11.  Abuse of a dead human body under s. 872.06.
201     12.  Any burglary offense or attempted burglary offense
202that is either a first-degree felony or second-degree felony
203under s. 810.02(2) or (3).
204     13.  Arson or attempted arson under s. 806.01(1).
205     14.  Aggravated assault under s. 784.021.
206     15.  Aggravated stalking under s. 784.048(3), (4), (5), or
207(7).
208     16.  Aircraft piracy under s. 860.16.
209     17.  Unlawful throwing, placing, or discharging of a
210destructive device or bomb under s. 790.161(2), (3), or (4).
211     18.  Treason under s. 876.32.
212     19.  Any offense committed in another jurisdiction which
213would be an offense listed in this paragraph if that offense had
214been committed in this state.
215     (d)  In the case of an alleged violation of probation or
216community control other than a failure to pay costs, fines, or
217restitution, the following individuals shall remain in custody
218pending the resolution of the probation or community control
219violation:
220     1.  A violent felony offender of special concern, as
221defined in this section;
222     2.  A person who is on felony probation or community
223control for any offense committed on or after the effective date
224of this act and who is arrested for a qualifying offense as
225defined in this section; or
226     3.  A person who is on felony probation or community
227control and has previously been found by a court to be a
228habitual violent felony offender as defined by s. 775.084(1)(b),
229a three-time violent felony offender as defined by s.
230775.084(1)(c), or a sexual predator under s. 775.21, and who is
231arrested for committing a qualifying offense as defined in this
232section on or after the effective date of this act.
233
234The court shall not dismiss the probation or community control
235violation warrant pending against an offender enumerated in this
236paragraph without holding a recorded violation-of-probation
237hearing at which both the state and the offender are
238represented.
239     (e)  If the court, after conducting the hearing required by
240paragraph (d), determines that a violent felony offender of
241special concern has committed a violation of probation or
242community control other than a failure to pay costs, fines, or
243restitution, the court shall:
244     1.  Make written findings as to whether or not the violent
245felony offender of special concern poses a danger to the
246community. In determining the danger to the community posed by
247the offender's release, the court shall base its findings on one
248or more of the following:
249     a.  The nature and circumstances of the violation and any
250new offenses charged.
251     b.  The offender's present conduct, including criminal
252convictions.
253     c.  The offender's amenability to nonincarcerative
254sanctions based on his or her history and conduct during the
255probation or community control supervision from which the
256violation hearing arises and any other previous supervisions,
257including disciplinary records of previous incarcerations.
258     d.  The weight of the evidence against the offender.
259     e.  Any other facts the court considers relevant.
260     2.  Decide whether to revoke the probation or community
261control.
262     a.  If the court has found that a violent felony offender
263of special concern poses a danger to the community, the court
264shall revoke probation and shall sentence the offender up to the
265statutory maximum, or longer if permitted by law.
266     b.  If the court has found that a violent felony offender
267of special concern does not pose a danger to the community, the
268court may revoke, modify, or continue the probation or community
269control or may place the probationer into community control as
270provided in this section.
271     Section 4.  Section 948.064, Florida Statutes, is created
272to read:
273     948.064  Notification of status as a violent felony
274offender of special concern.--
275     (1)  To facilitate the information available to the court
276at first appearance hearings and at all subsequent hearings for
277"violent felony offenders of special concern" as defined in s.
278948.06, the Department of Corrections shall, no later than
279October 1, 2007, develop a system for identifying the offenders
280in the department's database and post on the Department of Law
281Enforcement's Criminal Justice Intranet a listing of all violent
282felony offenders of special concern who are under community
283supervision.
284     (2)  The county where the arrested person is booked shall
285provide the following information to the court at the time of
286the first appearance:
287     (a)  State and national criminal history information.
288     (b)  All criminal justice information available in the
289Florida Crime Information Center and the National Crime
290Information Center.
291     (c)  Notice that the arrested person meets the requirement
292for restrictions on pretrial release pending probation or
293community control violation hearing in s. 903.0351(1)(b).
294     (3)  The courts shall assist the department's dissemination
295of critical information by creating and maintaining an automated
296system to provide the information as specified in this section
297to the court with the jurisdiction to conduct the hearings.
298     (4)  The state attorney, or the statewide prosecutor if
299applicable, shall advise the court at each critical stage in the
300judicial process, at which the state attorney or statewide
301prosecutor is represented, whether an alleged or convicted
302offender is a violent felony offender of special concern; a
303person who is on felony probation or community control for any
304offense committed on or after the effective date of this act and
305who is arrested for a qualifying offense; or a person who is on
306felony probation or community control and has previously been
307found by a court to be a habitual violent felony offender as
308defined by s. 775.084(1)(b), a three-time violent felony
309offender as defined by s. 775.084(1)(c), or a sexual predator
310under s. 775.21, and who is arrested for committing a qualifying
311offense on or after the effective date of this act.
312     Section 5.  Paragraph (b) of subsection (1) of section
313921.0024, Florida Statutes, is amended to read:
314     921.0024  Criminal Punishment Code; worksheet computations;
315scoresheets.--
316     (1)
317     (b)  WORKSHEET KEY:
318
319Legal status points are assessed when any form of legal status
320existed at the time the offender committed an offense before the
321court for sentencing. Four (4) sentence points are assessed for
322an offender's legal status.
323
324Community sanction violation points are assessed when a
325community sanction violation is before the court for sentencing.
326Six (6) sentence points are assessed for each community sanction
327violation, and each successive community sanction violation,
328unless any of the following apply:; however,
329     1.  If the community sanction violation includes a new
330felony conviction before the sentencing court, twelve (12)
331community sanction violation points are assessed for the such
332violation, and for each successive community sanction violation
333involving a new felony conviction.
334     2.  If the community sanction violation is committed by a
335violent felony offender of special concern as defined in s.
336948.06:
337     a.  Twelve (12) community sanction violation points are
338assessed for the violation and for each successive violation of
339felony probation or community control where:
340     (I)  The violation does not involve a new felony
341conviction; and
342     (II)  The community sanction violation is not based solely
343on the probationer or offender's failure to pay costs or fines
344or make restitution payments.
345     b.  Twenty-four (24) community sanction violation points
346are assessed for the violation and for each successive violation
347of felony probation or community control where the violation
348includes a new felony conviction.
349
350Multiple counts of community sanction violations before the
351sentencing court shall not be a basis for multiplying the
352assessment of community sanction violation points.
353
354Prior serious felony points: If the offender has a primary
355offense or any additional offense ranked in level 8, level 9, or
356level 10, and one or more prior serious felonies, a single
357assessment of thirty (30) 30 points shall be added. For purposes
358of this section, a prior serious felony is an offense in the
359offender's prior record that is ranked in level 8, level 9, or
360level 10 under s. 921.0022 or s. 921.0023 and for which the
361offender is serving a sentence of confinement, supervision, or
362other sanction or for which the offender's date of release from
363confinement, supervision, or other sanction, whichever is later,
364is within 3 years before the date the primary offense or any
365additional offense was committed.
366
367Prior capital felony points: If the offender has one or more
368prior capital felonies in the offender's criminal record, points
369shall be added to the subtotal sentence points of the offender
370equal to twice the number of points the offender receives for
371the primary offense and any additional offense. A prior capital
372felony in the offender's criminal record is a previous capital
373felony offense for which the offender has entered a plea of nolo
374contendere or guilty or has been found guilty; or a felony in
375another jurisdiction which is a capital felony in that
376jurisdiction, or would be a capital felony if the offense were
377committed in this state.
378
379Possession of a firearm, semiautomatic firearm, or machine gun:
380If the offender is convicted of committing or attempting to
381commit any felony other than those enumerated in s. 775.087(2)
382while having in his or her possession: a firearm as defined in
383s. 790.001(6), an additional eighteen (18) 18 sentence points
384are assessed; or if the offender is convicted of committing or
385attempting to commit any felony other than those enumerated in
386s. 775.087(3) while having in his or her possession a
387semiautomatic firearm as defined in s. 775.087(3) or a machine
388gun as defined in s. 790.001(9), an additional twenty-five (25)
38925 sentence points are assessed.
390
391Sentencing multipliers:
392
393Drug trafficking: If the primary offense is drug trafficking
394under s. 893.135, the subtotal sentence points are multiplied,
395at the discretion of the court, for a level 7 or level 8
396offense, by 1.5. The state attorney may move the sentencing
397court to reduce or suspend the sentence of a person convicted of
398a level 7 or level 8 offense, if the offender provides
399substantial assistance as described in s. 893.135(4).
400
401Law enforcement protection: If the primary offense is a
402violation of the Law Enforcement Protection Act under s.
403775.0823(2), the subtotal sentence points are multiplied by 2.5.
404If the primary offense is a violation of s. 775.0823(3), (4),
405(5), (6), (7), or (8), the subtotal sentence points are
406multiplied by 2.0. If the primary offense is a violation of s.
407784.07(3) or s. 775.0875(1), or of the Law Enforcement
408Protection Act under s. 775.0823(9) or (10), the subtotal
409sentence points are multiplied by 1.5.
410
411Grand theft of a motor vehicle: If the primary offense is grand
412theft of the third degree involving a motor vehicle and in the
413offender's prior record, there are three or more grand thefts of
414the third degree involving a motor vehicle, the subtotal
415sentence points are multiplied by 1.5.
416
417Offense related to a criminal street gang: If the offender is
418convicted of the primary offense and committed that offense for
419the purpose of benefiting, promoting, or furthering the
420interests of a criminal street gang as prohibited under s.
421874.04, the subtotal sentence points are multiplied by 1.5.
422
423Domestic violence in the presence of a child: If the offender is
424convicted of the primary offense and the primary offense is a
425crime of domestic violence, as defined in s. 741.28, which was
426committed in the presence of a child under 16 years of age who
427is a family or household member as defined in s. 741.28(3) with
428the victim or perpetrator, the subtotal sentence points are
429multiplied by 1.5.
430     Section 6.  For the purpose of incorporating the amendment
431made by this act to section 948.06, Florida Statutes, in a
432reference thereto, paragraph (b) of subsection (2) of section
433948.012, Florida Statutes, is reenacted to read:
434     948.012  Split sentence of probation or community control
435and imprisonment.--
436     (2)  The court may also impose a split sentence whereby the
437defendant is sentenced to a term of probation which may be
438followed by a period of incarceration or, with respect to a
439felony, into community control, as follows:
440     (b)  If the offender does not meet the terms and conditions
441of probation or community control, the court may revoke, modify,
442or continue the probation or community control as provided in s.
443948.06. If the probation or community control is revoked, the
444court may impose any sentence that it could have imposed at the
445time the offender was placed on probation or community control.
446The court may not provide credit for time served for any portion
447of a probation or community control term toward a subsequent
448term of probation or community control. However, the court may
449not impose a subsequent term of probation or community control
450which, when combined with any amount of time served on preceding
451terms of probation or community control for offenses pending
452before the court for sentencing, would exceed the maximum
453penalty allowable as provided in s. 775.082. Such term of
454incarceration shall be served under applicable law or county
455ordinance governing service of sentences in state or county
456jurisdiction. This paragraph does not prohibit any other
457sanction provided by law.
458     Section 7.  For the purpose of incorporating the amendment
459made by this act to section 948.06, Florida Statutes, in a
460reference thereto, subsection (9) of section 948.10, Florida
461Statutes, is reenacted to read:
462     948.10  Community control programs.--
463     (9)  Procedures governing violations of community control
464shall be the same as those described in s. 948.06 with respect
465to probation.
466     Section 8.  For the purpose of incorporating the amendment
467made by this act to section 948.06, Florida Statutes, in a
468reference thereto, section 958.14, Florida Statutes, is
469reenacted to read:
470     958.14  Violation of probation or community control
471program.--A violation or alleged violation of probation or the
472terms of a community control program shall subject the youthful
473offender to the provisions of s. 948.06. However, no youthful
474offender shall be committed to the custody of the department for
475a substantive violation for a period longer than the maximum
476sentence for the offense for which he or she was found guilty,
477with credit for time served while incarcerated, or for a
478technical or nonsubstantive violation for a period longer than 6
479years or for a period longer than the maximum sentence for the
480offense for which he or she was found guilty, whichever is less,
481with credit for time served while incarcerated.
482     Section 9.  (1)  The Department of Corrections shall
483coordinate preparation of a report on implementation of the
484Anti-Murder Act and shall submit the report to the Governor, the
485President of the Senate, and the Speaker of the House of
486Representatives no later than February 1, 2008.
487     (2)  The department shall convene the participation of, and
488coordinate preparation of the report with, representatives of
489the following:
490     (a)  The Office of the State Courts Administrator on behalf
491of the state courts system.
492     (b)  The Florida Prosecuting Attorneys Association.
493     (c)  The Florida Public Defender Association.
494     (d)  The Florida Association of Criminal Defense Lawyers.
495     (e)  Any other units of government, organizations, or
496entities the department deems necessary.
497     (3)  At a minimum, the report shall identify any legal,
498fiscal, or administrative impediments to full implementation of
499this act and recommend any legislative action related to
500implementation of this act.
501     Section 10.  If any provision of this act or its
502application to any person or circumstance is held invalid, the
503invalidity does not affect other provisions or applications of
504the act which can be given effect without the invalid provision
505or application, and to this end the provisions of this act are
506severable.
507     Section 11.  This act shall take effect upon becoming a
508law.


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